MALAYSIA Law and Practice Contributed by: Tai Foong Lam and Amy Lim Yun Jin, Gan Partnership
• whether the copied element constitutes a signifi- cant part of the copyright work; and/or • if a substantial amount of the copyright work was copied. Courts frequently take into account the part’s impor- tance to the entire work rather than just the copied piece. Under Malaysian law, non-literal copying is also actionable, particularly when software is involved. This includes copying a work’s structure, sequence and arrangement. Courts acknowledge that the crea- tive and functional elements of software – such as its organisation, flow and structure – are protected. If these non-literal components represent the original author’s significant intellectual effort and unique style, then copying them may constitute infringement. 3.9 Collective Management and Licensing Collecting societies in Malaysia, also known as col- lective management organisations, such as Music Authors’ Copyright Protection Berhad (MACP) and Recording Performers Malaysia Berhad (RPM), rep- resent authors like songwriters, composers, music publishers and performers by managing the licensing of musical works for public performance, broadcast and streaming and collect royalties on their behalf. Whilst there is no clear regulation on tariffs and royal- ties, the Guidelines of Copyright (Collective Manage- ment Organisation) 2025 require collective manage- ment organisations to set out their tariffs and board information clearly and transparently. The terms of a licensing scheme proposed to be operated by a collective management body may be referred to the Tribunal, so that the tariff structures are not entirely dictated by the collective management organisation itself, but may also be challenged by the users before the Tribunal. Generally, if the user intends to use a copyrighted work for commercial purposes, the user may obtain a license for such use through a collective management organisation appointed by the copyright owner. The licensing schemes that may be offered by collective management organisations are for reproducing the work, performing, showing or playing the work in pub- lic, communicating the work to the public, rebroad-
casting the work, the commercial rental of the work to the public or making an adaptation of the work. The aspects of collective management organisation are regulated under Part IVA of the Copyright Act 1987. Malaysia allows limited exceptions for educational, scientific and professional institutions through the Copyright (Public Libraries and Educational, Scien- tific or Professional Institutions) Order 1987, which permits certain limited reproductions or use of works for educational and library purposes without requiring licensing. However, Malaysia does not presently have any regulation providing for broadcasting licences; the licensing scheme framework under Section 27AA of the Copyright Act 1987, however, provides the Tribu- nal with certain oversight over the rebroadcasting of works. The broadcasting licence, not in copyright per se, falls under the jurisdiction of the Malaysian Com- munications and Multimedia Commission. In the event of disputes over royalties or tariffs between the collective management organisations and users, it may be resolved via the Copyright Tribunal. Alterna- tively, parties may opt for arbitration and/or civil action in courts. 4. Industrial Designs and Trade Dress 4.1 Legal Framework and Protectable Subject Matter The main source of law governing industrial design in Malaysia is the Industrial Designs Act 1996. Trade dress is not commonly addressed in Malaysia, but is usually adopted under the aspect of tort of passing off under the common law. Under the Industrial Designs Act 1996, the features of shape, configuration, pattern or ornament applied to an article by any industrial process may be pro- tected, including surface decoration, contours, the visual appearance of packaging and the aesthetic arrangement of product features. It is, however, not- ed that functional features, methods or principles of construction and features dictated solely by technical necessity cannot be protected under industrial design in Malaysia.
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