MALAYSIA Law and Practice Contributed by: Dato’ Brian Law, Suaran Singh Sidhu, Woo Wai Teng and Ashlyn Kwong, LAW Partnership
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 under - taken for films or sound recordings; • the person transmitting the programme, if they have responsibility for the selection of its contents or any person providing the programme who makes the arrangements necessary for its transmission for broadcast with the person transmitting it; and • the person by whom the work was made for any other works/cases. Work Made for Hire Section 26(2) of the CA 1987 provides that: • works created in the course of the author’s employment will be deemed to be automati - cally transferred to the author’s employer unless otherwise 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 entities. Section 10 of the CA 1987 provides that copyright 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: • a person who is a citizen of, or a permanent resident in Malaysia in relation to an indi- vidual; and • a body corporate established in Malaysia and constituted or vested with legal personality under the laws of Malaysia in relation to a body corporate. While this issue remains untested in the Malay - sian courts, the existing legal framework limits the scope of a “qualified person” for copyrighted works to natural persons. Joint Authorship Joint authorship is statutorily recognised in Malaysia. A “work of joint authorship” is defined under Section 3 of the CA 1987 as “work pro - duced by the collaboration of two or more authors in which the contribution of each author is not separable from the contribution of the other author or authors”. As the CA 1987 and other regulations are silent on the determination of ownership percentages in regard to joint authorship works, percentages are determined by way of agreement between copyright owners themselves. Provided that the joint authorships are awarded copyright ownership over the works, they are at liberty to exercise all rights tied to the copyright rights (see 3.4 Copyright Rights ). Section 27 of the CA 1987 provides that the fees received by any of the copyright owners following an assign -
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