Copyright
1
LAWS OF MALAYSIA
REPRINT
Act 332
COPYRIGHT ACT 1987
Incorporating all amendments up to 1 January 2006
PUBLISHED BY
THE COMMISSIONER OF LAW REVISION, MALAYSIA
UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968
IN COLLABORATION WITH
PERCETAKAN NASIONAL MALAYSIA BHD
2006
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COPYRIGHT ACT 1987
Date of Royal Assent
... ... ... ... ...
30 April 1987
Date of publication in the Gazette ... ...
21 May 1987
PREVIOUS REPRINT
First Reprint
...
...
...
...
...
2001
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LAWS OF MALAYSIA
Act 332
COPYRIGHT ACT 1987
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1.
Short title, application and commencement
2.
Extent of application
3.
Interpretation
4.
Publication
5.
Controller, Deputy Controllers and Assistant Controllers
PART II
GENERAL PROVISIONS
6.
No copyright except by virtue of this Act
7.
Works eligible for copyright
8.
Derivative works
9.
Copyright in published editions of works
10.
Qualification for protection
10A. Qualification for protection of performer
11.
Copyright in works of Government, Government organizations and
international bodies
12.
Administration of Government copyright
PART III
NATURE AND DURATION OF COPYRIGHT
13.
Nature of copyright in literary, musical or artistic works, films and
sound recordings
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Section
13A. Design documents and models
13B. Effect of exploitation of design derived from artistic work
13C. Things done in reliance on registration of design
14.
Nature of copyright in works of architecture
15.
Nature of copyright in broadcasts
16.
Broadcasting of works incorporated in films
16A. Nature of performers' right
16B. Equitable remuneration
17.
Duration of copyright in literary, musical or artistic works
18.
Duration of copyright in published editions
19.
Duration of copyright in sound recording
20.
Duration of copyright in broadcasts
21.
(Deleted)
22.
Duration of copyright in films
23.
Duration of copyright in works of Government, Government organizations
and international bodies
23A. Duration of performers' rights
23B. Duration of an equitable remuneration
24.
(Deleted)
25.
Moral rights
25A. Moral right of a performer
PART IV
OWNERSHIP AND ASSIGNMENT OF COPYRIGHT
26.
First ownership of copyright
27.
Assignment, licences and testamentary disposition
PART IVA
COPYRIGHT LICENSING
27A.
Licensing schemes to which sections 27B to 27G apply
27B.
Reference of proposed licensing scheme to Tribunal
27C.
Reference of licensing scheme to Tribunal
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Section
27D. Further reference of licensing scheme to Tribunal
27E. Application for grant of licence in connection with licensing scheme
27F. Application for review of order as to entitlement to licence
27G. Effect of order of Tribunal as to licensing scheme
27H. Licences to which sections 27I to 27L apply
27I. Reference to Tribunal of terms of proposed licence
27J. Reference to Tribunal of expiring licence
27K. Application for review of order as to licence
27L. Effect of order of Tribunal as to licence
PART V
COPYRIGHT TRIBUNAL
28.
Establishment of Copyright Tribunal
29.
Appointment of Chairman and members of Tribunal
30.
Proceedings before the Tribunal
30A. Reference of questions of law to High Court
31.
Licence to produce and publish translation
32.
(Deleted)
33.
Tribunal may request for information
34.
No action to lie against Tribunal
35.
Regulations relating to Tribunal
PART VI
REMEDIES FOR INFRINGEMENTS AND OFFENCES
36.
Infringements
37.
Action by owner of copyright and relief
38.
Proceedings in case of copyright subject to exclusive licence
39.
Restriction on importation of infringing copies
39A. Application of sections 36, 37, 38 and 39 to performers' right
40.
Back-up copy of computer program
41.
Offences
41A. Compounding of offences
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Section
42.
Affidavit admissible in evidence
43.
Penalty
PART VII
ENFORCEMENT
44.
Entry by warrant or otherwise
45.
Effecting entry, removal and detention
46.
List of things seized
47.
Sealing of things
48.
Obstruction to search, etc.
49.
Warrant admissible notwithstanding defects, etc.
50.
Powers of investigation
50A. Power of arrest
51.
Admissibility of statement
52.
Disclosure of information
53.
Institution of prosecution
54.
Forfeiture of articles
55.
Proportional examination of articles seized to be accepted
56.
Protection of informers from discovery
57.
Protection of Assistant Controllers and police officers
PART VIII
MISCELLANEOUS
58.
(Deleted)
59.
Regulations
59A. Extension of application of Act
59B. Power of Minister to exclude from definition of "broadcast"
60.
Savings
61.
Repeal
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LAWS OF MALAYSIA
Act 332
COPYRIGHT ACT 1987
An Act to make better provisions in the law relating to copyright
and for other matters connected therewith.
[1 December 1987,P.U.(B)586/1987]
BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan
Agong with the advice and consent of the Dewan Negara and
Dewan Rakyat in Parliament assembled, and by the authority of
the same, as follows:
PART I
PRELIMINARY
Short title, application and commencement
1. (1) This Act may be cited as the Copyright Act 1987 and shall
come into force on such date as the Minister may, by notification
in the Gazette, appoint and different dates may be appointed for
the coming into force of different provisions of this Act.
(2) This Act shall apply throughout Malaysia.
Extent of application
2. (1) Subject to this section and section 59A and regulations
made under section 59A, this Act shall apply in relation to works
made before the commencement of this Act as it applies in relation
to works made after the commencement of this Act:
Provided that this section shall not be construed as reviving any
copyrights which had expired before the commencement of this
Act.
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(2) Where only by virtue of subsection (1) copyrights subsist
in works that were made before the commencement of this Act,
nothing done before the commencement of this Act shall be taken
to constitute an infringement of those copyrights.
(3) For the purposes of this section, a work the making of
which extended over a period of time shall not be deemed to have
been made before the commencement of this Act unless the making
of the work was completed before such commencement.
Interpretation
3. In this Act, unless the context otherwise requires--
"adaptation" includes any of the following, that is to say--
(a) in relation to a literary work, a version of the work
(whether in its original language or a different language)
in which it is converted into a dramatic work;
(b) in relation to a dramatic work, a version of the work
(whether in its original language or a different language)
in which it is converted into a literary work;
(c) in relation to a literary or dramatic work--
(i) a translation of the work;
(ii) a version of the work in which the story or action
is conveyed wholly or mainly by means of pictures
in a form suitable for reproduction in a book or in
a newspaper, magazine or similar periodical;
(d) in relation to a literary work in the form of a computer
program, a version of the work, whether or not in the
language, code or notation in which the work was originally
expressed not being a reproduction of the work;
(e) in relation to a musical work, an arrangement or
transcription of the work;
(f) in relation to a literary or artistic work, a version of the
work (whether in its original language or a different
language) in which it is converted into a film;
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"appointed date" has the same meaning as is assigned to that
expression in the Intellectual Property Corporation of Malaysia
Act 2002 [Act 617];
"artistic work" means--
(a) a graphic work, photograph, sculpture or collage,
irrespective of artistic quality;
(b) a work of architecture being a building or a model for
a building; or
(c) a work of artistic craftsmanship,
but does not include a layout-design within the meaning of the
Layout-Designs of Integrated Circuits Act 2000 [Act 601];
"Assistant Controller" means the person appointed or deemed
to have been appointed to be an Assistant Controller under subsection
5(2) or (3);
"author"--
(a) in relation to literary works, means the writer or the
maker of the works;
(b) in relation to musical works, means the composer;
(c) in relation to artistic works other than photographs, means
the artist;
(d) in relation to photographs, means the person by whom
the arrangements for the taking of the photograph were
undertaken;
(e) in relation to films or sound recordings, means the person
by whom the arrangements for the making of the film or
recording were undertaken;
(f) in relation to broadcasts transmitted from within any
country, means--
(i) the person transmitting the programme, if he has
responsibility for the selection of its contents; or
(ii) any person providing the programme who makes
with the person transmitting it the arrangements
necessary for its transmission;
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(g) in relation to any other cases, means the person by whom
the work was made;
"broadcast" means a transmission, by wire or wireless means,
of visual images, sounds or other information which--
(a) is capable of being lawfully received by members of the
public; or
(b) is transmitted for presentation to members of the public,
and includes the transmission of encrypted signals where the means
for decrypting are provided to the public by the broadcasting
service or with its consent;
"broadcasting service" means any service of radio or television
broadcast, operated under the general direction and control of or
under licence by the Government, in any part of Malaysia;
"building" includes any fixed structure, and a part of a building
or fixed structure;
"citizen" includes a person who, if he had been alive on the
relevant day, would have qualified for citizenship under the Federal
Constitution;
"communication to the public" means the transmission of a
work or live performance through wire or wireless means to the
public, including the making available of a work or live performance
to the public in such a way that members of the public may access
the work or live performance from a place and at a time individually
chosen by them;
"computer program" means an expression, in any language,
code or notation, of a set of instructions (whether with or without
related information) intended to cause a device having an information
processing capability to perform a particular function either directly
or after either or both of the following:
(a) conversion to another language, code or notation;
(b) reproduction in a different material form;
"Controller" means the Controller of Copyright as designated in
subsection 5(1);
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"copy" means a reproduction of a work in written form, in the
form of a recording or film, or in any other material form;
"copyright" means copyright under this Act;
"Corporation" means the Intellectual Property Corporation of
Malaysia established under the Intellectual Property Corporation
of Malaysia Act 2002;
"Deputy Controller" means the person appointed or deemed to
have been appointed to be a Deputy Controller under subsection
5(2) or (3);
"derivative works" means the works mentioned in paragraphs 8(1)(a)
and (b);
"educational institution" shall have the same meaning as assigned
to it in the Education Act 1961 [Act 550];
"film" means any fixation of a sequence of visual images on
material of any description, whether translucent or not, so as to
be capable by use of that material with or without any assistance
of any contrivance--
(a) of being shown as a moving picture; or
(b) of being recorded on other material, whether translucent
or not by the use of which it can be so shown,
and includes the sounds embodied in any soundtrack associated
with a film;
"fixation" means the embodiment of sounds, images or both, or
the representation thereof, in a material form sufficiently permanent
or stable to permit them to be perceived, reproduced or otherwise
communicated during a period of more than transitory duration;
"future copyright" means copyright which will or may come
into existence in respect of any future works or class of works or
other subject matter, or on the coming into operation of any provision
of this Act, or in any future event;
" G o v e r n m e n t " means the Government of Malaysia or the
Government of any State;
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"graphic work" includes--
(a) any painting, drawing, diagram, map, chart or plan; and
(b) any engraving, etching, lithograph, woodcut or similar
work;
"infringing copy"--
(a) in relation to copyright, means any reproduction of any
work eligible for copyright under this Act the making of
which constitutes an infringement of the copyright in the
work or, in the case of any article imported into Malaysia
without the consent of the owner of the copyright, the
making of which was carried out without the consent of
the owner of the copyright;
(b) in relation to performers' right, means any reproduction
of any recording of a live performance the making of
which constitutes an infringement of the performers' right
or, in the case of any recording imported into Malaysia
without the consent of the performer, the making of which
was carried out without the consent of the performer;
"licence" means a lawfully granted licence in writing, permitting
the doing of an act controlled by copyright;
"licensing body" means a society or other organization which
has as its main object, or one of its main objects, the negotiation
or granting, either as owner or prospective owner of copyright or
as agent for him, of copyright licences, and whose objects include
the granting of licences covering works of more than one author;
"licensing scheme" means a scheme (including anything in the
nature of a scheme, whether described as a scheme or as a tariff
or by any other name) setting out--
(a) the classes of case in which the operator of the scheme,
or the person on whose behalf he acts, is willing to grant
copyright licences; and
(b) the terms on which licences would be granted in those
classes of case;
"literary work" includes--
(a) novels, stories, books, pamphlets, manuscripts, poetical
works and other writings;
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(b) plays, dramas, stage directions, film scenarios, broadcasting
scripts, choreographic works and pantomimes;
(c) treatises, histories, biographies, essays and articles;
(d) encyclopaedias, dictionaries and other works of reference;
(e) letters, reports and memoranda;
(f) lectures, addresses, sermons and other works of the same
nature;
(g) tables or compilations, whether or not expressed in words,
figures or symbols and whether or not in a visible form;
and
(h) computer programs,
but does not include official texts of the Government or statutory
bodies of a legislative or regulatory nature, or judicial decisions;
"live performance"--
(a) includes--
(i) a performance of a dramatic work, or part of such
a work, including such a performance given with the
use of puppets, or the performance of an improvised
dramatic work;
(ii) a performance of a musical work or part of such a
work, or the performance of an improvised musical
work;
(iii) the reading, recitation or delivery of a literary work,
or part of such a work, or the reading, recitation or
delivery of an improvised literary work;
(iv) a performance of a dance;
(v) a performance of a circus act or a variety act or any
similar presentation or show; or
(vi) a performance in relation to expressions of folklore,
which is given live by one or more persons in Malaysia,
whether in the presence of an audience or otherwise; but
(b) does not include--
(i) any reading, recital or delivery of any item of news
or information;
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(ii) any live performance of a sporting activity; or
(iii) a participation in a live performance by a member
of an audience;
"manuscript", in relation to a work, means the original document
embodying the work, whether written by hand or not;
"material form", in relation to a work or a derivative work,
includes any form (whether visible or not) of storage from which
the work or derivative work, or a substantial part of the work or
derivative work can be reproduced;
"Minister" means the Minister for the time being charged with
the responsibility for intellectual property;
"musical work" means any musical work, and includes works
composed for musical accompaniment;
"performer" means a person who performs a live performance
under this Act;
"performers' right" means the performers' right under this Act;
"photograph" means a recording of light or other radiation on
any medium on which an image is produced or from which an
image may by any means be produced, and which is not part of
a film;
"premises" means any place, stationary or otherwise established
or set up by any person, whether such place is with or without
enclosure, and also includes vehicles, aircraft, ships and any other
vessel;
"qualified person",--
(a) in relation to an individual, means a person who is a
citizen of, or a permanent resident in, Malaysia; and
(b) in relation to a body corporate, means a body corporate
established in Malaysia and constituted or vested with
legal personality under the laws of Malaysia;
"rebroadcast" means a simultaneous or subsequent broadcast by
one broadcasting service of the broadcast of another broadcasting
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service, whether situated in Malaysia or abroad, and includes diffusion
of such broadcast over wires; and "rebroadcasting" shall be construed
accordingly;
"recording" means a sound recording or film, other than a recording
made under subsection 16A(3);
"relevant day" means Merdeka Day in respect of Peninsular
Malaysia and Malaysia Day in respect of Sabah, Sarawak and the
Federal Territory of Labuan;
"reproduction" means the making of one or more copies of a
work in any form or version, and in relation to an artistic work
includes the making of a copy in three dimensions of a two-
dimensional work and the making of a copy in two dimensions of
a three-dimensional work, and "reproducing" shall be construed
accordingly;
"sculpture" includes a cast or model made for the purposes of
a sculpture;
"sound recording" means any fixation of a sequence of sounds
or of a representation of sounds capable of being perceived aurally
and of being reproduced by any means, but does not include a
soundtrack associated with a film;
"Tribunal" means the Copyright Tribunal established under section
28; and
"work of joint authorship" means a work produced 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.
Publication
4. (1) Subject to this section, for the purposes of this Act--
(a) a literary, musical or artistic work, or an edition of such
a work, shall be deemed to have been published only if
a copy or copies of the work have been made available
with the consent of the author or of any person lawfully
claiming under the author in a manner sufficient to satisfy
the reasonable requirements of the public, whether by
sale or otherwise;
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(b) a film shall be deemed to have been published only if a
copy or copies of the film have been sold, let on hire,
or offered or exposed for sale or hire, with the consent
of the author or of any person lawfully claiming under
the author in a manner sufficient to satisfy the reasonable
requirements of the public;
(c) a sound recording shall be deemed to have been published
only if a copy or copies of such sound recording have
been made available with the consent of the author or of
any person lawfully claiming under the author in a manner
sufficient to satisfy the reasonable requirements of the
public; and
(d) a live performance shall be deemed to have been published
only if a copy or copies of the fixed live performance
have been made available with the consent of the performer
in a manner sufficient to satisfy the reasonable requirements
to the public.
(2) For the purposes of this Act, the performance of a literary
or musical work and the exhibition of an artistic work does not
constitute publication of the work.
(3) For the purposes of this Act, a publication shall be deemed
to be a first publication in Malaysia if--
(a) the work or live performance was first published in Malaysia
and not elsewhere; or
(b) the work or live performance was first published elsewhere
but published in Malaysia within thirty days of such
publication elsewhere.
(4) Where in the first instance a part only of a work or live
performance is published, that part shall be treated for the purposes
of this Act as a separate work or live performance, as the case may
be.
Controller, Deputy Controllers and Assistant Controllers
5. (1) The Director General of the Corporation shall be the
Controller of Copyright.
(2) The Corporation may appoint, on such terms and conditions
as it may determine, from amongst any public officers and persons
in the employment of the Corporation, such number of Deputy
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Controllers of Copyright, Assistant Controllers of Copyright and
other officers as may be necessary for the proper administration
of this Act, and may revoke the appointment of any person so
appointed or deemed to have been so appointed under subsection
(3).
(3) The persons holding office as Deputy Controllers, Assistant
Controllers and other officers under this Act before the appointed
date shall on the appointed date be deemed to have been appointed
as Deputy Controllers, Assistant Controllers and such other officers
under subsection (2).
(4) Subject to the general direction and control of the Controller
and to such conditions or restrictions as may be imposed by the
Controller and subject to section 41A, a Deputy Controller or an
Assistant Controller may exercise any function of the Controller
under this Act, and anything by this Act appointed or authorized
or required to be done or signed by the Controller may be done
or signed by any Deputy Controller or Assistant Controller and the
act or signature of a Deputy Controller or an Assistant Controller
shall be as valid and effectual as if done or signed by the Controller.
PART II
GENERAL PROVISIONS
No copyright except by virtue of this Act
6. Subject to this Act, no copyright shall subsist otherwise than
by virtue of this Act.
Works eligible for copyright
7. (1) Subject to this section, the following works shall be eligible
for copyright:
(a) literary works;
(b) musical works;
(c) artistic works;
(d) films;
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(e) sound recordings; and
(f) broadcasts.
(2) Works shall be protected irrespective of their quality and
the purpose for which they were created.
(2A) Copyright protection shall not extend to any idea, procedure,
method of operation or mathematical concept as such.
(3) A literary, musical or artistic work shall not be eligible for
copyright unless--
(a) sufficient effort has been expended to make the work
original in character; and
(b) the work has been written down, recorded or otherwise
reduced to material form.
(4) A work shall not be ineligible for copyright by reason only
that the making of the work, or the doing of any act in relation
to the work involves an infringement of copyright in some other
work.
(5) Copyright shall not subsist under this Act in any design
which is registered under any written law relating to industrial
design.
(6) Copyright in any design which is capable of being registered
under any written law relating to industrial design, but which has
not been so registered, shall cease as soon as any article to which
the design has been applied has been reproduced more than fifty
times by an industrial process by the owner of the copyright or,
with his license, by any other person.
(7) For the purpose of this section, "any written law relating
to industrial design" includes:
(a) the United Kingdom Designs (Protection) Act 1949
[Act 214];
(b) the United Kingdom Designs (Protection) Ordinance of
Sabah [Sabah Cap. 152]; and
(c) the Designs (United Kingdom) Ordinance of Sarawak
[SWK Cap. 59].
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Derivative works
8. (1) The following derivative works are protected as original
works:
(a) t r a n s l a t i o n s , adaptations, arrangements and other
transformations of works eligible for copyright; and
(b) collections of works or collections of mere data, whether
in machine readable or other form, eligible for copyright
which, by reason of the selection and arrangement of
their contents, constitute intellectual creation.
(2) Protection of works referred to in subsection (1) shall be
without prejudice to any protection of the existing works used.
Copyright in published editions of works
9. (1) Copyright shall subsist, subject to the provisions of this
Act, in every published edition of any one or more literary, artistic
or musical work in the case of which either--
(a) the first publication of the edition took place in Malaysia;
or
(b) the publisher of the edition was a qualified person at the
date of the first publication thereof:
Provided that this subsection does not apply to an edition which
reproduces the typographical arrangement of a previous edition of
the same work or works.
(2) Subject to the provisions of this Act, the publisher of an
edition shall be entitled to any copyright subsisting in the edition
by virtue of this section.
(3) Subject to the provisions of this Act, the act restricted by
the copyright subsisting by virtue of this section in an edition is
the making of a reproduction of the typographical arrangement of
the edition.
(4) Reproduction of the typographical arrangement of a published
edition for the purposes of research, private study, criticism, review
or the reporting of current events does not infringe the copyright
subsisting by virtue of this section if such reproduction is compatible
with fair dealing:
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Provided that if such reproduction is made public it is accompanied
by an acknowledgement of the title of the work and its authorship,
except where the work is incidentally included in a broadcast.
(5) The Government, the National Archives, or any State
Archives, the National Library, or any State library, or any public
libraries and educational, scientific or professional institutions as
the Minister may by order prescribe, may reproduce the typographical
arrangement of a published edition without infringing the copyright
subsisting by virtue of this section if such reproduction is in the
public interest and is compatible with fair dealing and the provisions
of any regulations.
Qualification for protection
10. (1) Copyright shall subsist 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.
(2) Copyright shall also subsist in every work which is eligible
for copyright and which--
(a) being a literary, musical or artistic work or film or sound
recording is first published in Malaysia;
(b) being a work of architecture is erected in Malaysia or
being any other artistic work is incorporated in a building
located in Malaysia;
(c) being a broadcast is transmitted from Malaysia.
(3) Notwithstanding subsections (1) and (2), copyright shall
subsist, subject to this Act, in every work eligible for copyright
if the work is made in Malaysia.
Qualification for protection of performer
10A. Performers' right shall subsist in every live performances of
which the performer is--
(a) a citizen or permanent resident of Malaysia; or
(b) not a citizen or permanent resident of Malaysia but whose
performance--
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(i) takes place in Malaysia;
(ii) is incorporated in sound recordings that are protected
under this Act; or
(iii) has not been fixed in a sound recording but is
included in a broadcast qualifying for protection
under this Act.
Copyright in works of Government, Government organizations
and international bodies
11. (1) Copyright shall subsist in every work which is eligible
for copyright and which is made by or under the direction or
control of the Government and such Government organizations or
international bodies as the Minister may by order prescribe.
(2) Section 10 shall not be taken to confer copyright on works
to which this section applies.
Administration of Government copyright
12. Where the copyright in any work is vested in the Government,
the Ministry or Department concerned with the copyright shall be
responsible for the administration and control of that copyright on
behalf of the Government:
Provided that the Ministry or Department concerned may authorize
the Director of National Archives to administer and control that
copyright on behalf of the Government.
PART III
NATURE AND DURATION OF COPYRIGHT
Nature of copyright in literary, musical or artistic works, films
and sound recordings
13. (1) Copyright in a literary, musical or artistic work, a film,
or a sound recording or a derivative work shall be the exclusive
right to control in Malaysia--
(a)
the reproduction in any material form;
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(aa) the communication to the public;
(b)
the performance, showing or playing to the public;
(c)
(Deleted by Act A994);
(d)
(Deleted by Act A994);
(e)
the distribution of copies to the public by sale or other
transfer of ownership; and
(f)
the commercial rental to the public,
of the whole work or a substantial part thereof, either in its original
or derivative form provided that, without prejudice to paragraph
(e), the exclusive right to control the distribution of copies refer
only to the act of putting into circulation copies not previously put
into circulation in Malaysia and not to any subsequent distribution
of those copies or any subsequent importation of those copies into
Malaysia.
(2) Notwithstanding subsection (1), the right of control under
that subsection does not include the right to control--
(a) the doing of any of the acts referred to in subsection (1)
by way of fair dealing for purposes of non-profit research,
private study, criticism, review or the reporting of current
events, subject to the condition that if such use is public,
it is accompanied by an acknowledgement of the title of
the work and its authorship, except where the work is in
connection with the doing of any of such acts for the
purposes of non-profit research, private study and the
reporting of current events by means of a sound recording,
film or broadcast;
(b) the doing of any of the acts referred to in subsection (1)
by way of parody, pastiche or caricature;
(c) the inclusion in a film or broadcast of any artistic work
situated in a place where it can be viewed by the public;
(d) the reproduction and distribution of copies of any artistic
work permanently situated in a place where it can be
viewed by the public;
(e) the incidental inclusion of a work in an artistic work,
sound recording, film or broadcast;
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(f) the inclusion of a work in a broadcast, performance,
showing, or playing to the public, collection of literary
or musical works, sound recording or film, if such inclusion
is made by way of illustration for teaching purposes and
is compatible with fair practice:
Provided that mention is made of the source and of
the name of the author which appears on the work used;
(ff) any use of a work for the purpose of an examination by
way of setting the questions, communicating the questions
to the candidates or answering the questions:
Provided that a reprographic copy of a musical work
shall not be made for use by an examination candidate
in performing the work;
(g) the recording made in schools, universities or educational
institutions of a work included in a broadcast intended
for such schools, universities or educational institutions;
(gg) the making of a sound recording of a broadcast, or a
literary, dramatic or musical work, sound recording or a
film included in the broadcast insofar as it consists of
sounds if such sound recording of a broadcast is for the
private and domestic use of the person by whom the
sound recording is made;
(ggg) the making of a film of a broadcast, or a literary, artistic,
dramatic or musical work or a film included in the broadcast
insofar as it consists of visual images if such making of
a film of the broadcast is for the private and domestic use
of the person by whom the film is made;
(gggg) the making of copies of television broadcasts which are
subtitled or otherwise modified for people who are deaf
or hard of hearing, or physically or mentally handicapped
in other ways and the issuing of such copies to the public
by non-profit making bodies or institutions which the
Minister may, by order, prescribe;
(h) the reading or recitation in public or in a broadcast by
one person of any reasonable extract from a published
l i t e r a r y  work  if  accompanied  by  sufficient
acknowledgement;
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(i) any use made of a work by or under the direction or
control of the Government, by the National Archives or
any State Archives, by the National Library, or any State
library, or by such public libraries and educational, scientific
or professional institutions as the Minister may by order
prescribe, where such use is in the public interest and is
compatible with fair practice and the provisions of any
regulations, and--
(i) no profit is derived therefrom; and
(ii) no admission fee is charged for the performance,
showing or playing, if any, to the public of the
work thus used;
(j) the reproduction of any work by or under the direction
or control of a broadcasting service wholly-owned by the
Government where such reproduction or any copies thereof
are intended exclusively for a lawful broadcasting and
are destroyed before the end of the period of six calendar
m o n t h s immediately following the making of the
reproduction or such longer period as may be agreed
between the broadcasting service and the owner of the
relevant part of the copyright in the work:
Provided that any reproduction of a work made under
this paragraph may, if it is of exceptional documentary
character, be preserved in the archives of the broadcasting
service which are hereby designated official archives for
the purpose, but subject to this Act, shall not be used for
broadcasting or for any other purpose without the consent
of the owner of the relevant part of the copyright in the
work;
(k) the performance, showing or playing of a work by a non-
profit making club or institution where such performance,
showing or playing is for charitable or educational purpose
and is in a place where no admission fee is charged in
respect of such performance, showing or playing;
(l) any use of a work for the purposes of any judicial
proceedings, the proceedings of a royal commission, a
legislative body, a statutory or Governmental inquiry, or
of any report of any such proceedings, or for the purpose
of the giving of professional advice by a legal practitioner;
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(m) the making of quotations from a published work if they
are compatible with fair practice and their extent does
not exceed that justified by the purpose, including quotations
from newspaper articles and periodicals in the form of
press summaries:
Provided that mention is made of the source and of the
name of the author which appears on the work thus used;
(n) the reproduction by the press, the broadcasting or the
showing to the public of articles published in newspapers
or periodicals on current topics, if such reproduction,
broadcasting or showing has not been expressly reserved:
Provided that the source is clearly indicated;
(o) the reproduction by the press, the broadcasting or the
performance, showing or playing to the public of lectures,
addresses and other works of the same nature which are
delivered in public if such use is for informatory purposes
and has not been expressly reserved; and
(p) the commercial rental of computer programs, where the
program is not the essential object of the rental.
(3) For the purposes of paragraph (2)(l), "a legislative body"
means the Parliament of Malaysia or, in relation to a State, the
authority having power under the Constitution of that State to
make laws for the State, as the case may be.
Design documents and models
13A. (1) It shall not be an infringement of any copyright in a
design document or model recording or embodying a design for
anything other than an artistic work or a typeface--
(a) to make an article to the design, or to copy or to reproduce
an article made to the design; or
(b) to issue to the public, or include in a film, broadcast or
cable programme service, anything the making of which
was, by virtue of paragraph (a), not an infringement of
that copyright.
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(2) In this section--
"design" means the design of any aspect of the shape or
configuration (whether internal or external) of the whole or part
of an article, other than surface decoration; and
"design document" means any record of a design, whether in the
form of a drawing, a written description, a photograph, data stored
in a computer or otherwise.
Effect of exploitation of design derived from artistic work
13B. (1) This section applies where an artistic work has been
exploited, by or with the licence of the copyright owner, by--
(a) making, by an industrial process or means, articles falling
to be treated for the purposes of this section and sections
13A and 13C as copies of the work; and
(b) marketing such articles in Malaysia or elsewhere.
(2) Without prejudice to subsection 7(6), after the end of the
period of twenty-five years from the end of the calendar year in
which such articles are first marketed, the work may be copied by
making articles of any description, or doing anything for the purpose
of making articles of any description, and anything may be done
in relation to articles so made, without infringing copyright in the
work.
(3) Where only part of an artistic work is exploited as mentioned
in subsection (1), subsection (2) applies only in relation to that
part.
(4) The Minister may by order make provision--
(a) as to the circumstances in which an article, or any
description of article, is to be regarded for the purposes
of this section as made by an industrial process or means;
and
(b) for excluding from the operation of this section such
articles of a primarily literary or artistic character as he
thinks fit.
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(5) In this section--
(a) references to articles do not include films; and
(b) references to the marketing of an article shall be construed
as references to it being sold or let for hire or offered or
exposed for sale or hire.
Things done in reliance on registration of design
13C. (1) The copyright in an artistic work is not infringed by
anything done--
(a) in pursuance of an assignment or licence made or granted
by a person registered under the Registered Designs Act
1949 of the United Kingdom [12, 13 & 14 Geo. VI c.88]
or under any written law enforced in Malaysia at the
material time as the proprietor or owner of a corresponding
design; and
(b) in good faith in reliance on the registration and without
notice of any proceedings for the cancellation of the
registration or for rectifying the relevant entry in the
register of designs,
notwithstanding any defect that may afterwards be discovered in
the registration.
(2) In subsection (1) a "corresponding design", in relation to
an artistic work, means a design or an industrial design, as the case
may be, within the meaning of the Registered Designs Act 1949
of the United Kingdom or any written law enforced in Malaysia
at the material time which if applied to an article would produce
something which would be treated for the purposes of this section
and sections 13A and 13B as a copy of the artistic work.
(3) For the purpose of this section, "any written law enforced
in Malaysia at the material time" includes--
(a) the United Kingdom Designs (Protection) Act 1949;
(b) the United Kingdom Designs (Protection) Ordinance of
Sabah; and
(c) the Designs (United Kingdom) Ordinance of Sarawak.
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Nature of copyright in works of architecture
14. Copyright in a work of architecture shall include the exclusive
right to control the erection of any building which reproduces the
whole or a substantial part of the work either in its original form
or in any form recognizably derived from the original:
Provided that the copyright in any such work shall not include
the right to control the reconstruction or rehabilitation in the same
style as the original, of a building to which that copyright relates.
Nature of copyright in broadcasts
15. (1) Copyright in a broadcast shall be the exclusive right to
control in Malaysia the recording, the reproduction, and the
rebroadcasting, of the whole or a substantial part of the broadcast,
and the performance, showing or playing to the public in a place
where an admission fee is charged of the whole or a substantial
part of a television broadcast either in its original form or in any
way recognizably derived from the original.
(2) Notwithstanding subsection 13(1), paragraphs 13(2)(a), (g),
(gg), (ggg), (gggg), (h) and (o) shall also apply to the copyright
in a broadcast.
(3) The copyright in a television broadcast shall include the
right to control the taking of still photographs from such broadcasts.
Broadcasting of works incorporated in films
16. (1) Where the owner of the copyright in any literary, musical
or artistic work authorizes a person to incorporate the work in a
film and a broadcasting service broadcasts the film in the absence
of any express agreement to the contrary between such owner and
person, it shall be deemed that the owner of the copyright authorized
the broadcast.
(2) Notwithstanding subsection (1), where a broadcasting service
broadcasts a film in which a literary, musical or artistic work is
incorporated, the owner of the right to broadcast the literary, musical
or artistic work shall be entitled to receive fair compensation from
the broadcasting service.
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Nature of performers' right
16A. (1) Performers' right shall be the exclusive right to control
in Malaysia--
(a) the communication to the public of a live performance,
e x c e p t where the live performance used in such
communication is itself a live broadcast performance;
(b) the fixation of an unfixed performance;
(c) the reproduction of the fixation of a live performance
if--
(i) the fixation itself was done without the performer's
consent;
(ii) the reproduction is made for purposes different from
those for which the performer gave consent; or
(iii) the fixation was made in accordance with subsection
(3), and the reproduction is made for purposes
different from those referred to in these provisions;
(d) the first making available to the public of a fixation of
a live performance, or copies thereof, through sale or
other transfer of ownership; and
(e) rental to the public of a fixation of a live performance,
or copies thereof, irrespective of the ownership of the
copy rented.
(2) A performer shall cease to have the exclusive right under
subsection (1) once has given consent to the fixation of his live
performance.
(3) Notwithstanding subsection (1), the right to control under
that subsection does not include the right to control--
(a) a direct or an indirect sound recording or an indirect film
of a live performance--
(i) being a sound recording or film made solely for the
purpose of the private and domestic use of the
person who made it; or
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(ii) being a sound recording or film made solely for the
purpose of use in scientific research;
(b) a direct or indirect sound recording or film of a live
performance--
(i) made for the purpose of, or associated with, the
reporting of news or current affairs;
(ii) made for the purpose of criticism or review; or
(iii) made solely for the purpose of a judicial proceeding
or the giving of professional advice by a legal
practitioner;
(c) an indirect sound recording or film of a live performance--
(i) being a sound recording or film made by, or on
behalf of, the body administering an educational
institution solely for the educational purposes of
that institution or of another educational institution;
or
(ii) being a sound recording or film made by, or on
behalf of, the body administering an institution
assisting persons with a print disability solely for
t h e purpose of the provision, whether by the
institution or otherwise, of assistance to persons
with a visual, aural, intellectual and print disability;
(d) a direct sound recording or film of a live performance
made by a broadcaster who has the consent of the performer
to broadcast the live performance, being a recording made
solely for the purpose of making that broadcast provided
that it is destroyed before the end of the period of twelve
months beginning on the day on which any of those
copies is first used for broadcasting the live performance;
(e) a direct or an indirect sound recording or an indirect film
of a live performance made by a person who reasonably
believes, due to a fraudulent or innocent misrepresentation
made to the person, that the performer has authorized the
making of the recording by the person;
(f) a copy of a sound recording or film referred to in paragraphs
(a), (b), (c) and (d), being a copy made solely for a
purpose referred to in any of those paragraphs;
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(g) a copy of a sound recording or film referred to in paragraph
(e), being a copy made solely for the purpose referred to
in that paragraph; and
(h) a copy of a sound recording or film referred to in paragraph
(f), being a copy made--
(i) by a person who believes, due to a fraudulent or
innocent representation made to the person, that
the performer has consented to the making of the
copy; or
(ii) solely for a purpose referred to in paragraphs (a),
(b), (c) and (d).
(4) For the purpose of this section--
"direct" in relation to a sound recording or film of a live
performance, means made directly from a live performance;
"indirect" in relation to a sound recording or film of a live
performance, means made from a broadcast or re-broadcast of the
live performance.
Equitable remuneration
16B. (1) Where a sound recording is published for commercial
purposes or a reproduction of such recording is publicly performed
or used directly for broadcast or other communication to the public,
an equitable remuneration for the performance shall be payable to
the performer by the user of the sound recording.
(2) Remuneration shall not be considered inequitable merely
because it was paid by way of single payment or at the time of
the transfer of the rental right.
(3) Nothing in this section shall be construed so as to deprive
a performer of the right to agree by contract on terms and conditions
more favourable for him in respect of his live performance.
(4) For the purpose of this section--
"published for commercial purpose" means the sound recording
has been made available to the public by wire or wireless means
in such a way that members of the public may access them from
a place and at a time individually chosen by them;
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"rental right" means the right under paragraph 16A(1)(e).
Duration of copyright in literary, musical or artistic works
17. (1) Except as otherwise provided in this Act, copyright in
any literary, musical or artistic work which subsists in such work
under this Act shall subsist during the life of the author and shall
continue to subsist until the expiry of a period of fifty years after
his death.
(2) Where a literary, musical or artistic work had not been
published before the death of the author, copyright which subsists
in such work under this Act shall continue to subsist until the
expiry of a period of fifty years computed from the beginning of
the calendar year next following the year in which the work was
first published.
(3) Where a literary, musical or artistic work is published
anonymously or under a pseudonym, copyright which subsists in
such work under this Act shall continue to subsist until the expiry
of a period of fifty years computed from the beginning of the
calendar year next following the year in which the work was first
published or first made available to the public or made, whichever
is the latest:
Provided that in the event of the identity of the author becoming
known, the duration of copyright shall be calculated in accordance
with subsection (1).
(4) In this section, a reference to "author" shall, in the case of
a work of joint authorship, be construed as a reference to the
author who dies last.
Duration of copyright in published editions
18. Copyright which subsists in a published edition under this Act
shall continue to subsist until the expiry of a period of fifty years
computed from the beginning of the calendar year next following
the year in which the edition was first published.
Duration of copyright in sound recording
19. Copyright which subsists in a sound recording under this Act
shall continue to subsist until the expiry of a period of fifty years
computed from the beginning of the calendar year next following
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the year in which the recording was first published or, if the sound
recording has not been published, from the beginning of the calendar
year following the year of fixation.
Duration of copyright in broadcasts
20. Copyright which subsists in a broadcast under this Act shall
continue to subsist until the expiry of a period of fifty years
computed from the beginning of the calendar year next following
the year in which the broadcast was first made.
21. (Deleted by Act A994).
Duration of copyright in films
22. Copyright which subsists in a film under this Act shall continue
to subsist until the expiry of a period of fifty years computed from
the beginning of the calendar year next following the year in
which the film was first published.
Duration of copyright in works of Government, Government
organizations and international bodies
23. C o p y r i g h t which subsists in works of the Government,
Government organizations and international bodies under this Act
shall continue to subsist until the expiry of a period of fifty years
computed from the beginning of the calendar year next following
the year in which the work was first published.
Duration of performers' rights
23A. Rights in a live performance which subsists under this Act
shall continue to subsist until the expiry of a period of fifty years
computed from the beginning of the calendar year next following
the year in which the live performance was given.
Duration of an equitable remuneration
23B. The right to equitable remuneration shall subsist from the
time the sound recording is published until the expiry of a period
of fifty years computed from the beginning of the calendar year
next following the year of publication or, if the sound recording
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has not been published, from the time of fixation of the sound
recording until the expiry of a period of fifty years computed from
the beginning of the calendar year next following the year of the
fixation.
24. (Deleted by Act A775).
Moral rights
25. (1) For the purposes of this section, the word "name" includes
initials or monograms.
(2) Subject to this section, where copyright subsists in a work,
no person may, without the consent of the author, or, after the
author's death, of his personal representative, do or authorize the
doing of any of the following acts:
(a) the presentation of the work, by any means whatsoever,
without identifying the author or under a name other than
that of the author; and
(b) the distortion, mutilation or other modification of the
work if the distortion, mutilation or modification--
(i) significantly alters the work; and
(ii) is such that it might reasonably be regarded as
adversely affecting the author's honour or reputation.
(3) Where a person is authorized, whether by virtue of an
assignment, a licence or otherwise, to publish, reproduce, perform
in public or communicate to the public a work, that person may
make modifications to the work if it would be reasonable to expect
that the authorized publication, reproduction, public performance
or communication to the public, as the case may be, could not take
place without the modifications; but nothing in this subsection
shall authorize a modification to a work which would constitute
a contravention of subsection (2).
(4) The author or, after his death, his personal representative,
may exercise the rights conferred by this section notwithstanding
that the copyright in the work is not at the time of the act complained
of, vested in the author or personal representative, as the case may
be.
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(5) Any contravention or threatened contravention of this section
in respect of a work shall be actionable at the suit of the author
of the work or, if he is dead, at the suit of his personal representative,
as a breach of statutory duty.
(6) Any damages recovered under this section by a personal
representative in respect of a contravention committed in relation
to a work after the death of the author of the work shall devolve
as part of the author's estate, as if the right of action had subsisted
and had been vested in him immediately before his death.
(7) Where in an action brought under this section a contravention
of the restrictions imposed by this section is proved or admitted,
the court may order the offender to publish such correction in such
manner as the court may direct.
(8) Nothing in this section shall derogate from any right of
action or other remedy (whether civil or criminal) in proceedings
instituted otherwise than by virtue of this section; but this subsection
shall not be construed as requiring any damages recovered by
virtue of this section to be disregarded in assessing damages in any
proceedings instituted otherwise than by virtue of this section and
arising out of the same transaction.
Moral right of a performer
25A. (1) A performer shall, as regards his live performance or
live performance fixed in phonogram, have the right--
(a) to claim to be identified as the performer of his live
performance, except where omission is dictated by the
manner of the use of the live performance; and
(b) to object to any distortion, mutilation or other modification
of his live performance that would be prejudicial to his
reputation.
(2) The rights granted to a performer under subsection (1)
shall, after his death, be maintained and shall be exercisable by
the persons or institutions authorized by the performer.
(3) For the purpose of this section, "phonogram" means the
fixation of the sounds of a live performance or of other sounds or
of a representation of the sounds, other than in the form of a
fixation incorporated in a film or other audiovisual work.
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PART IV
OWNERSHIP AND ASSIGNMENT OF COPYRIGHT
First ownership of copyright
26. (1) Copyright conferred by section 10 shall vest initially in
the author.
(2) Notwithstanding subsection 27(6), where a work--
(a) is commissioned by a person who is not the author's
employer under a contract of service or apprenticeship;
or
(b) not having been so commissioned, is made in the course
of the author's employment,
the copyright shall be deemed to be transferred to the person who
commissioned the work or the author's employer, subject to any
agreement between the parties excluding or limiting such transfer.
(3) Copyright conferred by section 11 shall vest initially in the
Government, Government organization or international body and
not in the author.
(4) Subject to subsection (3)--
(a) the name on a work purporting to be the name of its
author shall be considered as such, unless the contrary
is proved;
(b) in the case of an anonymous or pseudonymous work, the
publisher whose name is indicated in the work as such
shall be deemed to be, unless the contrary is proved, the
legal representative of the anonymous or pseudonymous
author and shall be entitled to exercise and protect the
rights belonging to the author under this Act;
(c) in the case of unpublished work where the identity of the
author is unknown, but where there is every reason to
presume that he is a citizen of Malaysia, the copyright
conferred by this Act shall be deemed to vest in the
Minister charged with the responsibility for culture.
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(5) Paragraphs (4)(b) and (c) shall cease to apply when the
identity of the author becomes known.
Assignment, licences and testamentary disposition
27. (1) Subject to this section, copyright shall be transferable by
assignment, testamentary disposition, or by operation of law, as
movable property.
(2) An assignment or testamentary disposition of copyright
may be limited so as to apply only to some of the acts which the
owner of the copyright has the exclusive right to control, or to only
part of the period of the copyright, or to a specified country or
other geographical area.
(3) No assignment of copyright and no licence to do an act the
doing of which is controlled by copyright shall have effect unless
it is in writing.
(4) An assignment or licence granted by one copyright owner
shall have effect as if the assignment or licence is also granted by
his co-owner or co-owners, and subject to any agreement between
the co-owners, fees received by any of the owners shall be divided
equally between all the co-owners.
(5) For the purposes of this section, persons shall be deemed
to be co-owners if they share a joint interest in the whole or any
part of a copyright.
(6) An assignment, licence or testamentary disposition may be
effectively granted or made in respect of a future work, or an
existing work in which copyright does not yet subsist, and the
future copyright in any such work shall be transferable by operation
of law as movable property.
(7) Where under a testamentary disposition, whether specific
or general, a person is entitled beneficially or otherwise, to the
manuscript of a literary or musical work, or to an artistic work,
and the work has not been published before the death of the
testator, the testamentary disposition shall, unless a contrary intention
is indicated in the testator's will or a codicil thereto, be construed
as including the copyright in the work in so far as the testator was
the owner of the copyright immediately before his death.
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PART IVA
COPYRIGHT LICENSING
Licensing schemes to which sections 27B to 27G apply
27A. Sections 27B to 27G shall apply to--
(a) licensing schemes operated by licensing bodies in relation
to the copyright in literary or musical works, so far as
they relate to licences for--
(i) reproducing the work;
(ii) performing, showing or playing the work in public;
(iii) communicating the work to the public; or
(iv) distributing the work to the public; and
(b) licensing schemes operated by licensing bodies in relation
to the copyright in any other works, so far as they relate
to licences for--
(i) making copies of the work;
(ii) performing, showing or playing the work in public;
(iii) communicating the work to the public; or
(iv) causing the work to be publicly performed, shown
or played,
and in those sections, "licensing scheme" means a licensing scheme
of any of those descriptions.
Reference of proposed licensing scheme to Tribunal
27B. (1) The terms of a licensing scheme proposed to be operated
by a licensing body may be referred to the Tribunal by any
organization claiming to be representative of persons claiming that
they require licences in cases of a description to which the licensing
scheme would apply, either generally or in relation to any description
of case.
(2) The Tribunal shall first decide whether to entertain the
reference, and may decline to do so on the ground that the reference
is premature.
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(3) If the Tribunal decides to entertain the reference, it shall
consider the matter referred and make such order, either confirming
or varying the proposed licensing scheme, either generally or so
far as it relates to cases of the description to which the reference
relates, as the Tribunal may determine to be reasonable in the
circumstances.
(4) An order under subsection (3) may be made so as to be in
force indefinitely or for such period as the Tribunal may determine.
Reference of licensing scheme to Tribunal
27C. (1) If while a licensing scheme is in operation a dispute
arises between the operator of the licensing scheme and--
(a) a person claiming that he requires a licence in a case of
a description to which the licensing scheme applies; or
(b) an organization claiming to be representative of such
persons,
that person or organization may refer the licensing scheme to the
Tribunal in so far as it relates to cases of that description.
(2) A licensing scheme which has been referred to the Tribunal
under this section shall remain in operation until proceedings on
the reference are concluded.
(3) The Tribunal shall consider the matter in dispute and make
such order, either confirming or varying the licensing scheme so
far as it relates to cases of the description to which the reference
relates, as the Tribunal may determine to be reasonable in the
circumstances.
(4) An order under subsection (3) may be made so as to be in
force indefinitely or for such period as the Tribunal may determine.
Further reference of licensing scheme to Tribunal
27D. (1) Where the Tribunal has on a previous reference of a
licensing scheme under section 27B or 27C or under this section
made an order with respect to the licensing scheme, then, while
the order remains in force--
(a) the operator of the licensing scheme;
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(b) a person claiming that he requires a licence in a case of
the description to which the order applies; or
(c) an organization claiming to be representative of such
persons,
may again refer the licensing scheme to the Tribunal so far as it
relates to cases of that description.
(2) A licensing scheme shall not, except with the special leave
of the Tribunal, be again referred to the Tribunal in respect of the
same description of cases--
(a) within twelve months from the date of the order on the
previous reference; or
(b) if the order was made so as to be in force for fifteen
months or less, until the last three months before the
expiry of the order.
(3) A licensing scheme which has been referred to the Tribunal
under this section shall remain in operation until proceedings on
the reference are concluded.
(4) The Tribunal shall consider the matter in dispute and make
such order, either confirming, varying or further varying the licensing
scheme so far as it relates to cases of the description to which the
reference relates, as the Tribunal may determine to be reasonable
in the circumstances.
(5) An order under subsection (4) may be made so as to be in
force indefinitely or for such period as the Tribunal may determine.
Application for grant of licence in connection with licensing
scheme
27E. (1) A person who claims, in a case covered by a licensing
scheme, that the operator of the licensing scheme--
(a) has refused to grant him or procure the grant to him of
a licence in accordance with the licensing scheme; or
(b) has failed to grant him or procure the grant to him of a
licence in accordance with the licensing scheme within
a reasonable time after being asked,
may apply to the Tribunal for an order under subsection (4).
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(2) A person who claims, in a case excluded from a licensing
scheme, that the operator of the licensing scheme either--
(a) has refused to grant him a licence or procure the grant
to him of a licence, or has failed to do so within a
r e a s o n a b l e time of being asked, and that in the
circumstances it is unreasonable that a licence should not
be granted; or
(b) proposes terms for a licence which are unreasonable,
may apply to the Tribunal for an order under subsection (4).
(3) A case shall be regarded as excluded from a licensing
scheme for the purposes of subsection (2) if--
(a) the licensing scheme provides for the grant of licences
subject to terms excepting matters from the licence and
the case falls within such an exception; or
(b) the case is so similar to those in which licences are
granted under the licensing scheme that it is unreasonable
that it should not be dealt with in the same way.
(4) If the Tribunal is satisfied that the claim is well-founded,
it shall make an order declaring that, in respect of the matters
specified in the order, the applicant is entitled to a licence on such
terms as the Tribunal may determine to be applicable in accordance
with the licensing scheme or, as the case may be, to be reasonable
in the circumstances.
(5) An order under subsection (4) may be made so as to be in
force indefinitely or for such period as the Tribunal may determine.
Application for review of order as to entitlement to licence
27F. (1) Where the Tribunal has made an order under section
27E that a person is entitled to a licence under a licensing scheme,
the operator of the licensing scheme or the original applicant may
apply to the Tribunal to review its order.
(2) An application shall not be made, except with the special
leave of the Tribunal,--
(a) within twelve months from the date of the order, or of
the decision on a previous application under this section;
or
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(b) if the order was made so as to be in force for fifteen
months or less, or as a result of the decision on a previous
application under this section which is due to expire
within fifteen months of that decision, until the last three
months before the expiry of the order.
(3) The Tribunal shall on an application for review confirm or
vary its order as the Tribunal may determine to be reasonable
having regard to the terms applicable in accordance with the licensing
scheme or, as the case may be, the circumstances of the case.
Effect of order of Tribunal as to licensing scheme
27G. (1) A licensing scheme which has been confirmed or varied
by the Tribunal under section 27B, 27C or 27D shall be in force
or, as the case may be, remain in operation, so far as it relates to
the description of case in respect of which the order was made,
so long as the order remains in force.
(2) While the order is in force a person, who in a case of a class
to which the order applies, shall--
(a) pay to the operator of the licensing scheme any charges
payable under the licensing scheme in respect of a licence
covering the case in question or, if the amount cannot be
ascertained, give an undertaking to the operator to pay
the charges when ascertained; and
(b) comply with the other terms applicable to such a licence
under the licensing scheme; and
(c) be in the same position as regards infringement of copyright
as if he had at all material times been the holder of a
licence granted by the owner of the copyright in question
in accordance with the licensing scheme.
(3) The Tribunal may direct that the order, so far as it varies
the amount of charges payable, has effect from a date before that
on which it is made, but not earlier than the date on which the
reference was made or, if later, on which the licensing scheme
came into operation.
(4) Where a direction is made under subsection (3)--
(a) any necessary repayments, or further payments, shall be
made in respect of charges already paid or payable; and
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43
(b) the reference in paragraph (2)(a) to the charges payable
under the licensing scheme shall be construed as a reference
to the charges so payable by virtue of the order.
(5) Where the Tribunal has made an order under section 27E
and the order remains in force, the person in whose favour the
order is made shall, if he--
(a) pays to the operator of the licensing scheme any charges
payable in accordance with the order or, if the amount
cannot be ascertained, gives an undertaking to the operator
to pay the charges when ascertained; and
(b) complies with the other terms specified in the order,
be in the same position as regards infringement of copyright as if
he had at all material times been the holder of a licence granted
by the owner of the copyright in question on the terms specified
in the order.
Licences to which sections 27I to 27L apply
27H. Sections 27I to 27L shall apply to the following descriptions
of licence granted by a licensing body otherwise than in pursuance
of a licensing scheme:
(a) licences relating to the copyright in literary or musical
works which cover works of more than one author, so far
as they authorize--
(i) reproducing the work;
(ii) performing, showing or playing the work in public;
(iii) communicating the work to the public; or
(iv) distributing the work to the public; and
(b) licences relating to the copyright in any other works, so
far as they authorize--
(i) making copies of the work;
(ii) performing, showing or playing the work in public;
(iii) communicating the work to the public; or
(iv) causing the work to be publicly performed, shown
or played,
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and in those sections, a "licence" means a licence of any of those
descriptions.
Reference to Tribunal of terms of proposed licence
27I. (1) The terms on which a licensing body proposes to grant
a licence may be referred to the Tribunal by the prospective licensee.
(2) The Tribunal shall first decide whether to entertain the
reference, and may decline to do so on the ground that the reference
is premature.
(3) If the Tribunal decides to entertain the reference, it shall
consider the terms of the proposed licence and make such order,
either confirming or varying the terms, as the Tribunal may determine
to be reasonable in the circumstances.
(4) An order under subsection (3) may be made so as to be in
force indefinitely or for such period as the Tribunal may determine.
Reference to Tribunal of expiring licence
27J. (1) A licensee under a licence which is due to expire, by
effluxion of time or as a result of notice given by the licensing
body, may apply to the Tribunal on the ground that it is unreasonable
in the circumstances that the licence should cease to be in force.
(2) Such an application may not be made until the last three
months before the licence is due to expire.
(3) A licence in respect of which a reference has been made
to the Tribunal under this section shall remain in operation until
proceedings on the reference are concluded.
(4) If the Tribunal finds the application to be well-founded, it
shall make an order declaring that the licensee shall continue to
be entitled to the benefit of the licence on such terms as the
Tribunal may determine to be reasonable in the circumstances.
(5) An order under subsection (4) may be made so as to be in
force indefinitely or for such period as the Tribunal may determine.
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Application for review of order as to licence
27K. (1) Where the Tribunal has made an order under section 27I
or 27J, the licensing body or the person entitled to the benefit of
the order may apply to the Tribunal to review its order.
(2) An application shall not be made, except with the special
leave of the Tribunal,--
(a) within twelve months from the date of the order, or of
the decision on a previous application under this section;
or
(b) if the order was made so as to be in force for fifteen
months or less, or as a result of the decision on a previous
application under this section which is due to expire
within fifteen months of that decision, until the last three
months before the expiry of the order.
(3) The Tribunal shall on an application for review confirm or
vary its order as the Tribunal may determine to be reasonable in
the circumstances.
Effect of order of Tribunal as to licence
27L. (1) Where the Tribunal has made an order under section 27I
or 27J and the order remains in force, the person entitled to the
benefit of the order shall, if he--
(a) pays to the licensing body any charges payable in
accordance with the order or, if the amount cannot be
ascertained, gives an undertaking to the operator to pay
the charges when ascertained; and
(b) complies with the other terms specified in the order,
be in the same position as regards infringement of copyright as if
he had at all material times been the holder of a licence granted
by the owner of the copyright in question on the terms specified
in the order.
(2) The benefit of the order may be assigned--
(a) in the case of an order under section 27I, if assignment
is not prohibited under the terms of the Tribunal's order;
and
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(b) in the case of an order under section 27J, if assignment
is not prohibited under the terms of the original licence.
(3) The Tribunal may direct that an order under section 27I or
27J, or an order under section 27K varying such an order, so far
as it varies the amount of charges payable, has effect from a date
before that on which it is made, but not earlier than the date on
which the reference or application was made or, if later, on which
the licence was granted or, as the case may be, was due to expire.
(4) Where a direction is made under subsection (3)--
(a) any necessary repayments, or further payments, shall be
made in respect of charges already paid or payable; and
(b) the reference in paragraph (1)(a) to the charges payable
in accordance with the order shall be construed, where
the order is varied by a later order, as a reference to the
charges so payable by virtue of the later order.
PART V
COPYRIGHT TRIBUNAL
Establishment of Copyright Tribunal
28. There shall be established a tribunal to be known as the
Copyright Tribunal.
Appointment of Chairman and members of Tribunal
29. (1) The Tribunal shall consist of the following persons who
shall be appointed by the Minister:
(a) a Chairman;
(b) a Deputy Chairman; and
(c) not more than twenty persons as the Minister considers
fit and proper to be members of the Tribunal.
(2) The Chairman, Deputy Chairman, and members of the
Tribunal shall hold office for a period not exceeding three years,
after which they shall be eligible to be reappointed.
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47
(3) The Minister shall determine the remuneration and other
terms and conditions of the appointment of the Chairman, Deputy
Chairman, and members of the Tribunal.
(4) The Minister may declare the office of any member of the
Tribunal vacant on the ground that he is found to be unfit to
continue in office or unable to perform the duties thereof.
(5) The Chairman, Deputy Chairman, or any member of the
Tribunal may at any time resign from his office by giving notice
in writing to the Minister.
(6) The Chairman, Deputy Chairman, and members of the
Tribunal shall be deemed to be public servants within the meaning
of the Penal Code.
(7) There shall be a Secretary to the Tribunal and such other
officers as may be necessary to assist the Tribunal, who shall be
appointed by the Minister.
Proceedings before the Tribunal
30. (1) Every proceedings before the Tribunal shall be heard and
disposed of by the Chairman or Deputy Chairman and two other
members selected by the Chairman from among the members
appointed under section 29.
(2) No member of the Tribunal shall take part in any proceedings
before the Tribunal if he has a pecuniary interest in any matter
which is to be determined by the Tribunal.
(3) Where the Chairman has been disqualified under subsection
(2), the Minister shall appoint another member of the Tribunal to
act as Chairman for the purposes of that proceedings.
(4) A person is deemed to have a pecuniary interest if he, his
partner, employer or any member of his family or if a body whether
statutory or not of which he is a member has a pecuniary interest
in any matter which is to be determined by the Tribunal.
(5) If, on any matter to be determined by the Tribunal there is
an equality of votes, the chairman or the member presiding shall
have a casting vote in addition to his deliberative vote.
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(6) If, in the course of any proceedings, any member of the
Tribunal is unable through illness or any other cause to continue,
the proceedings shall continue before the remaining members of
the Tribunal, not being less than two, and the Tribunal shall, for
the purposes of the proceedings, be deemed to be duly constituted.
(7) In any such case as is mentioned in subsection (6) where
the member who is unable to continue is the chairman of the
proceedings, then the Minister shall appoint from amongst the
remaining members a new chairman for the purposes of the continued
proceedings.
Reference of questions of law to High Court
30A. (1) The Tribunal may of its own motion, or shall at the
request of a party, refer a question of law arising in proceedings
concluded before it for determination by the High Court.
(2) A request under subsection (1) shall be made in writing
within fourteen days of the date on which the decision was made.
(3) Where a question has been referred to the High Court under
this section, the Tribunal shall forward the record of its proceedings
to the Registrar of the High Court who shall thereupon appoint and
notify the parties to the proceedings of the time and place for its
hearing.
(4) At the hearing of the reference in the High Court, every
party to the proceedings before the Tribunal shall be entitled to
appear and to be heard.
(5) The High Court shall hear and determine the question referred
to it under this section as if the reference were an appeal to the
High Court against the decision of the Tribunal, and may consequently
confirm, vary, substitute or quash the decision, or make such other
order as it considers just or necessary.
(6) A decision of the High Court under subsection (5) shall be
final and conclusive, and no such decision shall be challenged,
appealed against, reviewed, quashed or called in question in any
other court or before any other authority, judicial or otherwise,
whatsoever.
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49
(7) For the purposes of this section, a question of law shall not
include a question whether there is sufficient evidence to justify
a finding of fact by the Tribunal.
Licence to produce and publish translation
31. (1) Any person may apply to the Tribunal for a licence to
produce and publish in the national language a translation of a
literary work written in any other language.
(2) The Tribunal after holding such inquiry as it thinks necessary
may, subject to this section, grant to the applicant a licence (not
being an exclusive licence) to produce and publish a translation
of the work in the national language, on condition that the applicant
shall pay to the owner of the right of translation in the work in
respect of copies sold to the public, royalties at a rate to be
determined by the Tribunal in the prescribed manner.
(3) A licence may be granted on an application made under
subsection (1) in respect of a work only where--
(a) a translation of the work in the national language has not
been published by the owner of the copyright (or by any
person authorized by him) within one year after the first
publication of the work or, if such translation has been
so published, it is out of print;
(b)
(i) t h e applicant has requested and been denied
authorization by the owner of the right to produce
and publish the translation; or
(ii) the applicant, after due diligence on his part, is unable
to find the owner;
(c) the applicant, if the nationality of the owner of the right
of translation is known, has sent a copy of his request
f o r the translation to the diplomatic or consular
representative of the state of which that owner is a national,
or to the organization which may have been designated
by the government of that state;
(d) the Tribunal is satisfied that--
(i) the applicant is able to produce and publish a correct
translation of the work and possesses the means to
pay to the owner of the right of translation the
royalties payable under this section; and
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(ii) the applicant undertakes to have the original title
and the name of the author of the work printed on
all copies of the published translation;
(e) the author of the work has not withdrawn it from circulation;
(f) an opportunity of being heard is first given, wherever
practicable, to the owner of the right of translation in the
work;
(g) a further period of nine months has elapsed from the
fulfilment of the formalities mentioned in paragraphs (b)
and (c) and during this period no translation in the national
language has been published by the owner of the right
of translation or with his authorization; and
(h) the translation is for the purpose of teaching, scholarship
or research.
(4) The licence granted under this section shall not be transferable
and shall not extend to the export of copies:
Provided that the sending of copies to another country by the
Government or any Government organization shall not constitute
export if all of the following conditions are met:
(a) the recipients are individuals who are nationals of Malaysia
or organizations grouping such individuals;
(b) the copies are to be used only for the purpose of teaching,
scholarship or research;
(c) the sending of the copies and their subsequent distribution
to recipients is without any commercial purpose; and
(d) the country to which the copies have been sent has agreed
with Malaysia to allow the receipt, or distribution, or
both.
(5) The licence shall be valid only for publication of the translation
in Malaysia and all copies published under the licence shall bear
a notice in the national language stating that the copies are available
for distribution only in Malaysia.
(6) Any licence granted under this section shall terminate if a
translation in the national language and with substantially the
same content as that for which a licence has been granted has been
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51
published by the owner of the right of translation or with his
authorization at a price reasonably related to that charged in Malaysia
for comparable works:
Provided that any copies already made before the licence terminates
may, however, continue to be distributed until their stock is exhausted.
(7) If the work to be translated consists mainly of illustrations,
no licence under this section shall be granted.
32. (Deleted by Act A952).
Tribunal may request for information
33. (1) The Tribunal may request for such information as it may
deem necessary for the purpose of exercising any of its powers and
functions under this Act and any subsidiary legislation made
thereunder.
(2) Any person who refuses to comply with such request by the
Tribunal shall be guilty of an offence under this Act.
No action to lie against Tribunal
34. No action or other legal proceedings shall lie against any
member of the Tribunal for anything done or omitted to be done
in good faith in connection with the exercise of the powers and
functions of the Tribunal under this Act.
Regulations relating to Tribunal
35. The Minister may make regulations in respect of the Tribunal
and in particular and without prejudice to the generality of the
foregoing, in respect of the following matters:
(a) prescribing the manner in which any matter may be referred
to the Tribunal;
(b) prescribing the procedure to be adopted by the Tribunal
in dealing with any matter referred to it under this Act
and the records to be kept by the Tribunal;
(c) prescribing the manner in which the Tribunal shall be
convened and the place where the Tribunal shall hold its
sittings;
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(d) prescribing a scale of costs and fees payable in respect
of any inquiry or proceedings before the Tribunal; and
(e) generally for the better carrying out of the functions
assigned to the Tribunal by this Act.
PART VI
REMEDIES FOR INFRINGEMENTS AND OFFENCES
Infringements
36. (1) Copyright is infringed by any person who does, or causes
any other person to do, without the licence of the owner of the
copyright, an act the doing of which is controlled by copyright
under this Act.
(2) Copyright is infringed by any person who, without the
consent or licence of the owner of the copyright, imports an article
into Malaysia for the purpose of--
(a) selling, letting for hire, or by way of trade, offering or
exposing for sale or hire, the article;
(b) distributing the article--
(i) for the purpose of trade; or
(ii) for any other purpose to an extent that it will affect
prejudicially the owner of the copyright; or
(c) by way of trade, exhibiting the article in public,
where he knows or ought reasonably to know that the making of
the article was carried out without the consent or licence of the
owner of the copyright.
(3) Copyright is infringed by any person who circumvents or
causes any other person to circumvent any effective technological
measures that are used by authors in connection with the exercise
of their rights under this Act and that restrict acts, in respect of
their works, which are not authorized by the authors concerned or
permitted by law.
(4) Copyright is infringed by any person who knowingly performs
any of the following acts knowing or having reasonable grounds
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53
to know that it will induce, enable, facilitate or conceal an
infringement of any right under this Act:
(a) the removal or alteration of any electronic rights
management information without authority;
(b) the distribution, importation for distribution or
communication to the public, without authority, of works
o r copies of works knowing that electronic rights
management information has been removed or altered
without authority.
(5) For the purpose of subsection (4) and section 41, "rights
management information" means information which identifies the
works, the author of the work, the owner of any right in the work,
or information about the terms and conditions of use of the work,
any numbers or codes that represent such information, when any
of these items of information is attached to a copy of a work or
appears in connection with the communication of a work to the
public.
Action by owner of copyright and relief
37. (1) Subject to this Act, infringements of copyright shall be
actionable at the suit of the owner of the copyright and in any
action for such an infringement, all such relief by way of damages,
injunction, accounts or otherwise, shall be available to the plaintiff
as are available in any corresponding proceedings in respect of
infringement of other proprietary rights.
(2) Where in an action under this section, an infringement of
copyright is proved or admitted, and the court, having regard, in
addition to all other material considerations to--
(a) the flagrancy of the infringement; and
(b) any benefit shown to have accrued to the defendant by
reason of the infringement,
is satisfied that effective relief would not otherwise be available
to the plaintiff, the court in assessing damages for the infringement,
shall have power to award such additional damages by virtue of
this subsection as the court may consider appropriate in the
circumstances.
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(3) No injunction shall be issued in proceedings for infringement
of copyright which requires a completed or partly built building
to be demolished or which prevents the completion of a partly
built building.
(4) For the purposes of this section and section 38--
(a) "action" includes a counterclaim, and reference to the
plaintiff and to the defendant in an action shall be construed
accordingly; and
(b) "court" means the appropriate High Court in Malaysia.
(5) For the purposes of this section, owner of the copyright
means the first owner or an assignee, as the case may be, of the
relevant part of the copyright.
Proceedings in case of copyright subject to exclusive licence
38. (1) This section shall have effect as to proceedings in the
case of any copyright in respect of which an exclusive licence has
been granted and is in force at the time of the events to which the
proceedings relate.
(2) Subject to this section, the exclusive licensee shall (except
against the owner of the copyright) have the same rights of action,
and be entitled to the same remedies, under section 37 as if the
licence had been an assignment, and those rights and remedies
shall be concurrent with the rights and remedies of the owner of
the copyright under that section.
(3) Where an action is brought either by the owner of the
copyright or by the exclusive licensee, and the action, in so far as
it is brought under section 37, relates (wholly or partly) to an
infringement in respect of which they have concurrent rights of
action under that section, the owner or licensee, as the case may
be, shall not be entitled, except with the leave of the court, to
proceed with the action, in so far as it is brought under that section
and relates to that infringement, unless the other party is either
joined as a plaintiff in the action or added as a defendant: but this
subsection shall not affect the granting of an interlocutory injunction
on the application of either of them.
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55
(4) In any action brought by the exclusive licensee by virtue
of this section, any defence which would have been available to
a defendant in the action, if this section had not been enacted and
the action have been brought by the owner of the copyright, shall
be available to that defendant as against the exclusive licensee.
(5) Where an action is brought in the circumstances mentioned
in subsection (3) and the owner of the copyright and the exclusive
licensee are not plaintiffs in the action, the court, in assessing
damages in respect of any infringement as is mentioned in that
subsection--
(a) if the plaintiff is the exclusive licensee, shall take into
account any liabilities (in respect of royalties or otherwise)
to which the licence is subject; and
(b) whether the plaintiff is the owner of the copyright or the
exclusive licensee, shall take into account any pecuniary
remedy awarded to the other party under section 37 in
respect of that infringement, or, as the case may require,
any right of action exercisable to the other party under
that section in respect thereof.
(6) Where an action, in so far as it is brought under section 37,
relates (wholly or partly) to an infringement in respect of which
the owner of the copyright and the exclusive licensee have concurrent
rights of action under that section, and in that section (whether
they are both parties to it or not) an account of profits is directed
to be taken in respect of that infringement, then subject to any
agreement of which the court is aware whereby the application of
those profits is determined as between the owner of the copyright
and the exclusive licensee, the court shall apportion the profits
between them as the court may consider just and shall give such
directions as the court may consider appropriate for giving effect
to the apportionment.
(7) In an action brought either by the owner of the copyright
or by the exclusive licensee--
(a) no judgment or order for the payment of damages in
respect of an infringement of copyright shall be given or
made under section 37, if a final judgment or order has
been given or made awarding an account of profits to the
other party under that section in respect of the same
infringement; and
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(b) no judgment or order for an account of profit in respect
of an infringement of copyright shall be given or made
under that section, if a final judgment or order has been
given or made awarding either damages or an account of
profits to the other party under that section in respect of
the same infringement.
(8) Where, in an action brought in the circumstances mentioned
in subsection (3), whether by the owner of the copyright or by the
exclusive licensee, the other party is not joined as a plaintiff
(either at the commencement of the action or subsequently) but is
added as a defendant, he shall not be liable for any costs in the
action unless he enters an appearance and takes part in the
proceedings.
(9) For the purposes of this section, the expression--
"exclusive licence" means a licence signed by or on behalf of
an owner or a prospective owner of copyright authorizing the
licensee to the exclusion of all other persons, to exercise a right
which by virtue of this Act would (apart from the licence) be
exercisable exclusively by the owner of the copyright; and "exclusive
licensee" shall be construed accordingly;
"if the licence had been an assignment" means if, instead of the
licence, there had been granted (subject to terms and conditions
corresponding as nearly as may be with those subject to which the
licence was granted) an assignment of the copyright in respect of
its or their application to the doing, at the place and time authorized
by the licence, of the acts so authorized;
"the other party", in relation to the owner of the copyright,
means the exclusive licensee, and in relation to the exclusive
licensee, means the owner of the copyright.
Restriction on importation of infringing copies
39. (1) The owner of copyright in any work, or any person
authorized by him, may make an application to the Controller to
request that during a period specified in the application copies of
the work to which this section applies be treated as infringing
copies.
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(1A) The application under subsection (1)--
(a) shall be in such form as may be prescribed;
(b) shall state that the person named in it is the owner
of the copyright; and
(c) shall be supported by such documents and
information, and accompanied by such fee, as may
be prescribed.
(2) This section shall apply to any copy of a work made outside
Malaysia the making of which was carried out without the consent
or licence of the owner of the copyright in the work.
(2A) Upon receipt of the application under subsection (1), the
Controller shall determine the application and the Controller shall
within a reasonable period inform the applicant by a written notice
whether the application has been approved and specify the period
during which the copies shall be treated as infringing copies.
(3) Where the application is approved by the Controller in
respect of a work and the application is not withdrawn, the importation
of any infringing copies into Malaysia for the duration of the
period specified in the Controller's notice shall be prohibited:
Provided that this subsection shall not apply to the importation
of any copy by a person for his private and domestic use.
(4) (Deleted by Act A1082).
(5) The Controller shall require any person making an application
under subsection (1)--
(a) to deposit a security which in the Controller's opinion is
sufficient to reimburse the Government for any liability
or expenses which may be incurred in consequence of the
detention at any time within the period specified in the
C o n t r o l l e r ' s notice of any infringing copies or in
consequence of anything done in relation to a copy so
detained; and
(b) whether or not a security is given, to keep the Controller
indemnified against any liability or expenses referred to
in paragraph (a).
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(6) Any Assistant Controller, police officer not below the rank
of Inspector or any officer of Customs may search for and seize
any infringing copies which are prohibited from being imported
into Malaysia under subsection (3).
(7) Whenever any infringing copies are seized under this section,
the seizing officer shall forthwith give notice in writing of such
seizure and the grounds thereof to the owner of the infringing
copies if known, either by delivering such notice to him personally
or by post at his residence, if known:
Provided that such notice shall not be required to be given
where such seizure is made on the person, or in the presence of
the offender or the owner or his agent, or in the case of a vessel
or aircraft, in the presence of the master or pilot, as the case may
be.
(8) Infringing copies shall be liable to forfeiture as if they were
prohibited goods under the law relating to Customs.
(9) The Minister may make such regulations as he thinks necessary
or expedient for the purpose of this section.
Application of sections 36, 37, 38 and 39 to performers' right
39A.  Sections 36, 37, 38 and 39 shall apply mutatis mutandis to
performers' right.
Back-up copy of computer program
40. (1) Subject to subsection (2), the copyright in a literary work
in the form of a computer program is not infringed by the making
of a reproduction of the work or of a computer program being an
adaptation of the work, if--
(a) the reproduction is made by, or on behalf of, the owner
of the copy (in this section referred to as "the original
copy") from which the reproduction is made; and
(b) the reproduction is made for the purpose only of being
used, by or on behalf of the owner of the original copy,
in lieu of the original copy in the event that the original
copy is lost, destroyed or rendered unusable.
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59
(2) Subsection (1) does not apply to the making of a reproduction
of a computer program, or of an adaptation of a computer program--
(a) from an infringing copy of the computer program; or
(b) contrary to an express direction by or on behalf of the
owner of the copyright in the computer program given
to the owner of the original copy not later than the time
when the owner of the original copy acquired the original
copy.
(3) For the purposes of this section--
(a) a reference to a copy of a computer program or of an
adaptation of a computer program is a reference to any
article in which the computer program or adaptation is
reproduced in a material form; and
(b) a reference to an express direction, in relation to a copy
of a computer program, or of an adaptation of a computer
program, includes a reference to a clearly legible direction
printed on the copy or on a package in which the copy
is supplied.
Offences
41. (1) Any person who during the subsistence of copyright in
a work or performers' right--
(a) makes for sale or hire any infringing copy;
(b) sells, lets for hire or by way of trade, exposes or offers
for sale or hire any infringing copy;
(c) distributes infringing copies;
(d) possesses, otherwise than for his private and domestic
use, any infringing copy;
(e) by way of trade, exhibits in public any infringing copy;
(f) imports into Malaysia, otherwise than for his private and
domestic use, an infringing copy;
(g) makes or has in his possession any contrivance used or
intended to be used for the purposes of making infringing
copies;
(h) circumvents or causes the circumvention of any effective
technological measures referred to in subsection 36(3);
(i) removes or alters any electronic rights management
information without authority; or
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(j) distributes, imports for distribution or communicates to
the public, without authority, works or copies of works
i n respect of which electronic rights management
information has been removed or altered without authority,
shall, unless he is able to prove that he had acted in good faith
and had no reasonable grounds for supposing that copyright or
performers' right would or might thereby be infringed, be guilty
of an offence and shall on conviction be liable--
(i) in the case of an offence under paragraphs (a) to (f), to
*a fine of not less than two thousand ringgit and not
more than twenty thousand ringgit for each infringing
copy, or to imprisonment for a term not exceeding five
years or to both and for any subsequent offence, to **a
fine of not less than four thousand ringgit and not more
than forty thousand ringgit for each infringing copy or
to imprisonment for a term not exceeding ten years or to
both;
(ii) in the case of an offence under paragraph (g), to ***a
fine of not less than four thousand ringgit and not more
than forty thousand ringgit for each contrivance in respect
of which the offence was committed or to imprisonment
for a term not exceeding ten years or to both and for any
subsequent offence to a fine of not less than eight thousand
ringgit and not more than eighty thousand ringgit for
each contrivance in respect of which the offence was
committed or to imprisonment for a term not exceeding
twenty years or to both;
(iii) in the case of an offence under paragraphs (h), (i) and
(j), to a fine not exceeding two hundred and fifty thousand
ringgit or to imprisonment for a term not exceeding ††five
years or to both and for any subsequent offence, to a fine
n o t exceeding five hundred thousand ringgit or to
imprisonment for a term not exceeding †††ten years or to
both.
*NOTE--Previously "a fine not exceeding ten thousand ringgit"see the Copyright (Amendment)
Act 2003 [Act A1195].
**NOTE--Previously "a fine not exceeding twenty thousand ringgit"see the Copyright (Amendment)
Act 2003 [Act A1195].
***NOTE--Previously "a fine not exceeding twenty thousand ringgit"see the Copyright (Amendment)
Act 2003 [Act A1195].
NOTE--Previously "a fine not exceeding forty thousand ringgit"see the Copyright (Amendment)
Act 2003 [Act A1195].
††NOTE--Previously "three years"see the Copyright (Amendment) Act 2003 [Act A1195].
†††NOTE--Previously "five years"see the Copyright (Amendment) Act 2003 [Act A1195].
Copyright
61
(2) For the purposes of paragraphs (1)(a) to (f), any person who
has in his possession, custody or control three or more infringing
copies of a work or recording in the same form shall, unless the
contrary is proved, be presumed to be in possession of or to import
such copies otherwise than for private or domestic use.
(3) Any person who causes a literary, or musical work to be
performed in public shall be guilty of an offence under this subsection
unless he is able to prove that he had acted in good faith and had
no reasonable grounds for supposing that copyright would or might
thereby be infringed.
(4) Where an offence under this section is committed by a body
corporate or by a person who is a partner in a firm, every director,
secretary or manager of the body corporate or, as the case may be,
every other partner in the firm shall be deemed to be guilty of the
offence unless he proves that the offence was committed without
his consent or connivance and that he exercised all due diligence
to prevent the commission of the offence.
Compounding of offences
41A. (1) The Controller or a Deputy Controller or any person
authorized in writing by the Controller may with the written consent
of the Public Prosecutor compound any subsidiary legislation made
under this Act which is prescribed to be a compoundable offence
by accepting from the person reasonably suspected of having
committed such offence a sum of money not exceeding such amount
as may be prescribed.
(2) Upon receipt of the payment under subsection (1), no further
proceedings shall be taken against such person in respect of such
offence and where possession has been taken of any goods, such
goods may be released, subject to such conditions as may be
imposed in accordance with the conditions of the compound.
(3) (Deleted by Act A1139).
Affidavit admissible in evidence
42. (1) An affidavit or statutory declaration made before any
person having authority to administer oath by or on behalf of any
person claiming to be--
(a) the owner of the copyright in any works eligible for
copyright under this Act stating that--
(i) at the time specified herein copyright subsisted in
such work;
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(ii) he or the person named therein is the owner of the
copyright; and
(iii) a copy of the work annexed thereto is the true copy
thereof; or
(b) the performer in a live performance eligible for performers'
right under this Act stating that--
(i) at the time specified therein performers' right
subsisted in such live performance;
(ii) he or the person named therein is the performer;
and
(iii) a copy of the document annexed thereto is the
document which proves that he or the person named
therein performed in the live performance,
shall be admissible in evidence any proceedings under
this Act and shall be prima facie evidence of the facts
contained therein.
(2) Any person who is authorized to act on behalf of the owner
of the copyright or performer for the purposes of subsection (1)
shall be required to produce such authorization in writing.
(3) (Deleted by Act A1082).
Penalty
43.  Any person who is guilty of an offence under this Act or any
regulations made thereunder for which no special penalty is provided,
shall on conviction be liable to *a fine of not less than ten thousand
ringgit and not more than fifty thousand ringgit or to imprisonment
for a term not exceeding **five years or to both.
*NOTE--Previously "a fine not exceeding twenty-five thousand ringgit"see the Copyright
(Amendment) Act 2003 [Act A1195].
**NOTE--Previously "three years"see the Copyright (Amendment) Act 2003 [Act A1195].
Copyright
63
PART VII
ENFORCEMENT
Entry by warrant or otherwise
44. (1) In every case where information is given on oath to any
magistrate that there is reasonable cause for suspecting that there
is in any house or premises any infringing copy or any contrivance
used or intended to be used for making infringing copies or capable
of being used for the purpose of making infringing copies, or any
other article or vehicle, book or document by means of or in
relation to which any offence under section 41 has been committed,
he shall issue a warrant under his hand by virtue of which any
Assistant Controller or police officer not below the rank of Inspector
named or referred to in the warrant may enter the house or premises
at any reasonable time by day or night and search for and seize
any such copy, contrivance, article, vehicle, book or document:
Provided that if an Assistant Controller or a police officer not
below the rank of Inspector is satisfied upon information received
that he has reasonable grounds for believing that by reason of
delay in obtaining a search warrant, any copy, contrivance, article
or vehicle, book or document used to commit or to be used to
commit an offence under this Act is likely to be removed or
destroyed, he may enter such house or premises without a warrant
and seize any such copy, contrivance, article, vehicle, book or
document from therein.
(1A) An Assistant Controller or a police officer not below the
rank of Inspector entering any house or premises by virtue of
subsection (1) may take with him such other persons and such
equipment as may appear to him necessary; and on leaving any
house or premises which he has entered he shall, if the house or
premises is unoccupied or the occupier is temporarily absent, leave
it as effectively secured against trespassers as he found it.
(2) An Assistant Controller or a police officer not below the
rank of Inspector making the search may seize any infringing
copy, copy suspected to be an infringing copy, contrivance used
or intended to be used for making infringing copies or capable of
being used for the purpose of making infringing copies, or any
other article, vehicle, book or document and if any such copy,
contrivance, article, vehicle, book or document is seized, he shall
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produce the same before the magistrate, and upon such production
the magistrate shall direct the same to be kept in the custody of
the Controller or Assistant Controller or the police for the purpose
of any investigation or prosecution under this Act:
Provided that where, upon any such seizure, any such copies,
contrivances, articles, vehicles, books or documents are kept in the
custody of the Controller or Assistant Controller or the police and
where it is found, by reason of their nature, size or amount, that
it is not practical to produce the same before the magistrate, it shall
be sufficient for the purposes of this subsection for the seizure to
be reported to the magistrate.
(3) If it is found, by reason of their nature, size or amount, that
it is not practical to remove from where they are found such things
or documents seized by an Assistant Controller or a police officer
not below the rank of Inspector and the Assistant Controller or the
police officer has sealed the same in the premises or container in
which they are found pursuant to section 47, it shall be sufficient
for the purpose of producing the same before the magistrate under
subsection (2) for the seizure to be reported to the magistrate or
for the magistrate to view the same in such premises or container.
Effecting entry, removal and detention
45.  Any Assistant Controller or police officer not below the rank
of Inspector may in the exercise of his powers under section 44,
if it is necessary so to do--
(a) break open any outer or inner door of the dwelling house
or any other premises and enter thereinto;
(b) forcibly enter the place and every part thereof;
(c) remove by force any obstruction to entry, search, seizure
and removal as he is empowered to effect; and
(d) detain every person found in the place until the place has
been searched.
List of things seized
46. (1) The Assistant Controller or police officer not below the
rank of Inspector seizing any infringing copy, any copy suspected
to be an infringing copy, contrivance, article, vehicle, book or
document under this Part shall prepare a list of the things seized
and forthwith deliver a copy signed by him to the occupier, or his
agents or servants present in the premises.
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65
(2) If the premises are unoccupied, the Assistant Controller or
police officer not below the rank of Inspector shall wherever possible
post a list of the things seized on the premises.
Sealing of things
47.  Where it appears to an Assistant Controller or a police officer
not below the rank of Inspector that it is not practical to remove
from where they are found, any thing or document seized by him
in the exercise of his powers under this Act, by reason of their
nature, size or amount, he may by any means seal such things or
documents in the premises or container in which they are found
and it shall be an offence for any person without lawful authority
to break, tamper with or damage such seal or remove such things
or documents or to attempt to do so.
Obstruction to search, etc.
48.
Any person who--
(a) refuses any Assis