MALAYSIA Law and Practice Contributed by: Janet Toh, Irene Yong, Krystle Lui and Boo Cheng Xuan, Shearn Delamore & Co.
The development and use of AI is nevertheless subject to compliance with existing laws, includ - ing those on consumer protection, data protec - tion and protection of intellectual property rights. Intellectual Property As is often the case with AI, computer programs are involved in the creation of products or pro - cesses, which has given rise to issues concern - ing their creation and ownership as regards intellectual property laws, including patent and copyright. While courts in the past have held that an author under Section 3 of the Copyright Act 1987 may also include a body corporate (eg, the company that developed the AI), the other provisions of the Copyright Act 1987 may not seem to align with this interpretation, for example, the duration of copyright in relation to literary, artistic and musi - cal works extends for a period of 50 years after the death of the author. This inherently suggests that an author in relation to these types of works would need to be a natural person capable of expending a certain level of skill, judgement or effort. Further, the human element here arguably is confined to the input of ideas or concepts (eg, input, descriptions or instructions by the user, which are not protectible by copyright) and not the ultimate expression of the work generated by the AI. For these reasons, it is likely that AI would not qualify as an author of its generated works, nor would the human users whose input may simply be confined to ideas or concepts. By extension therefore, it is arguable that copyright may not subsist in these AI-generated works. As regards patents, the treatment of AI contribu - tions in the invention process gives rise to con - ceptual difficulties, particularly due to the Pat - ents Act 1983’s definition of an “inventor” which suggests that inventors must be natural persons.
This is supported by Section 18, which assigns the right to apply for a patent to the inventor. Moreover, the Patents Regulations 1986 require patent applications to include either the personal identification of inventors or signed written dec - larations when anonymity is sought. Therefore, it is unlikely in Malaysia for AI inventions to be patentable. Apart from authorship and inventorship, it is also crucial to ensure that AI-generated works do not infringe the intellectual property rights of third parties, as the use of infringing materials may nevertheless entail liabilities under the relevant intellectual property laws, regardless of the fact that such materials were generated by AI. Liability To date, there is no specific legislation to address the liability for personal injury or commercial harm resulting from AI-enabled technologies. Consumer Protection From a consumer protection perspective, AI- related products and services may be regarded as consumer products and services that are subject to the consumer protection laws dis - cussed in 1. Digital Economy . Data Protection AI technologies can potentially process a vast amount of personal data, which requires the design and use of AI to comply with the relevant laws on personal data protection discussed in 1. Digital Economy and 2. Cloud and Edge Com- puting . As personal data shall generally not be processed without the consent of the relevant data subjects, this poses a challenge to the use of AI, where certain datasets and information are automatically scrapped from the internet, potentially without the consent and knowledge of the data subjects involved. The PDPA is also
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