MALAYSIA Law and Practice Contributed by: Tai Foong Lam and Amy Lim Yun Jin, Gan Partnership
owned by an employer, the copyright protection lasts 50 years from the date of first publication or 50 years from the date of creation if unpublished. However, termination and reversion rights are not rec- ognised in Malaysia. It may, however, be stipulated in the contract between the author and the owner. 3.6 Limitations, Exceptions and Defences One of the main defences to copyright infringement is fair dealing, ie, for the purposes of research, private study, criticism, review or the reporting of news or current events. When determining whether a dealing constitutes a fair dealing, the factors to be considered shall include: • the purpose and character of the dealing, whether it is commercial in nature or for non-profit educa- tional purposes; • the nature of the copyright work; • the amount and substantiality of the portion used; and • the effect of the dealing upon the potential market for or value of the copyright work. Other defences such as acts done by parody, pastiche or caricature, reproduction made in schools, universi- ties or educational institutions of a work included in a broadcast intended for such schools, universities or educational institutions, the performance of a work by a non-profit making club for charitable or educational purposes and in a place where no admission fee is charged are also recognised in Malaysia. Ultimately, the Malaysian courts assess factors such as the purpose of use, the extent of use, the neces- sity of use and the potential impact on the market to determine whether the copyright work was fairly used whilst safeguarding the interests of copyright owners. 3.7 Copyright Enforcement and Remedies A copyright infringement arises when any person, without the authorisation of the owner of the copy- right, does an act which is controlled by copyright under the Copyright Act 1987 or imports, sells or dis- tributes an article of the copyrighted work without the consent of the copyright owner.
Under the Copyright Act 1987, any person who: • commits an infringing act by way of making for sale or hire any infringing copy; • is selling, letting for hire or by way of trade, expos- ing or offering for sale or hire any infringing copy; • is distributing infringing copy; • has in his possession, custody or control, other- wise than for his private and domestic use, any infringing copy; • by way of trade, exhibiting in public any infringing copy; • importing into Malaysia, other than for his private and domestic use, an infringing copy; • making or having in his possession any contrivance used or intended to be used for the purposes of making infringing copies; • cam-cording in a screening room, etc (all of which are offences that fall under the Copyright Act 1987), shall be subjected to a fine not less than MYR2,000 or more, depending on the offence and/or imprisonment not more than five years, depending on the offence. Alternatively, the copyright owner may also take civil action against the infringer by filing an infringement action in the High Court. Whilst an interim injunction can be applied for and granted at the court’s discre- tion, other civil remedies available in an infringement case, subject to the court’s discretion, include a dec- laration of infringement, a permanent injunction to prevent further infringement, an order to deliver or destroy infringing materials and monetary damages, which can be awarded as a lump sum or based on an account of profits. Additionally, the court may award aggravated, exemplary or punitive damages, among others. As for legal fees and costs, these are generally recoverable at the court’s discretion, depending on the complexity of the case and in accordance with the standard scale of costs prescribed under the Rules of Court 2012. 3.8 Infringement Tests and Substantiality When evaluating “substantial part” copying, Malay- sian courts consider both quantitative and qualitative factors, such as:
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