MALAYSIA Law and Practice Contributed by: Dato’ Brian Law, Suaran Singh Sidhu, Woo Wai Teng and Nur Jannah Khairul Anuar, LAW Partnership
Applicants may use the trade mark symbol to indi - cate that the sign is used as a trade mark, but this is optional. 2.6 Related Rights Logos can be protected as artistic works under the CA 1987, meaning trade marks can also benefit from copyright protection in Malaysia. See 2.1 Types of Trade Marks on the registration of surnames. The CA 1987 and the TMA 2019 do not explicitly address interactions between trade marks and moral rights. Trade mark and copyright laws oper - ate independently. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Types of Copyrightable Works Sections 7 and 8 of the CA 1987 grant protection to literary works, musical works, artistic works, films, sound recordings, broadcasts and derivative works. Mutual Exclusivity on Protection over Industrial Designs Section 7 (5) of the CA 1987 precludes copyright protection of industrial designs which are registered under any law related to industrial designs. Industrial designs are protected by the Industrial Designs Act 1996 instead. 3.2 Essential Elements of Copyright Protection The elements to qualify for copyright protection are set out in the CA 1987. They are as follows. • Sufficient effort is expended to make the work original in nature. • The work is written down, recorded or otherwise reduced to material form. • There is a requirement for the copyright to be con - nected to Malaysia. This can be because: (a) the author is a qualified person (ie, a citizen or permanent resident in Malaysia or a body corporate established in Malaysia); (b) the work was first published in Malaysia; or
(c) the work was created in Malaysia. 3.3 Copyright Authorship Definition of an “Author” Section 3 of the CA 1987 defines an “author” for the following categories of works as: • the writer or maker of the works for literary works; • the composer of the works for musical works; • the artist of the works for artistic works (other than photographs); • the person by whom the arrangements for the taking of the photographs were undertaken for photographic works; • the person by whom the arrangements for the making of the film or recording were undertaken for films or sound recordings; • the person transmitting the programme, if they have responsibility for the selection of its con - tents or any person providing the programme who makes the arrangements necessary for its trans - mission for broadcast with the person transmitting it; and • the person by whom the work was made for any Section 26 (2) of the CA 1987 provides that: • works created in the course of the author’s employment will be deemed to be automatically transferred to the author’s employer unless other - wise agreed by the parties; and • copyright arising from commissioned works will vest in the person who commissioned the work, subject to any contrary agreements between the parties. Limitation of Authorship to Humans The current wording of the CA 1987 primarily leans toward addressing rights of individuals and legal enti - ties. Section 10 of the CA 1987 provides that copy - right subsists in every work eligible for copyright of which the author (or in the case of a work of joint authorship, any of the authors) is, at the time when the work is made, a “qualified person”. A “qualified person” is defined by the CA 1987 as: other works/cases. Work Made for Hire
292 CHAMBERS.COM
Powered by FlippingBook