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CHAPTER18
Intellectual Property
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OBJECTIVES
This chapter:
lays down and discusses the laws, in particular, the
legislation, governing intellectual property, such ascopyrights
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PREVIEW
Introduction
Copyright
Copyright in General Ownership and Assignment of Copyright
Copyright Tribunal
Infringements
Offences
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INTRODUCTION
intellectual property: legal property rights over creations of the mind, both artistic and
commercial, and the corresponding fields of law
intangible property
area of lawsometime known as the law of
industrial property
intellectual or industrial property comprises:
1. Copyright2. Designs
3. Patents
4. Trademarks
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COPYRIGHT
exists in original works
protects all works that owe their origin to the expressiveefforts of a writer, composer, artist or other creativeindividuals
gives the individual the exclusive right to copy aparticular form of expression of literary, dramatic,musical or artistic work
applies to the expression of an idea, not the idea itself
and belongs to the person who gives form to the ideaseeDonoghue vAllied Newspapers
the Copyright Act 1987enacted to make betterprovisions in the law relating to copyright and for othermatters connected therewith
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COPYRIGHT (cont.)
section 2 of the said Act defines copyright as
meaning copyright under this Act
section 7(1) of the Act provides that the following
works are eligible for copyright:
a) literary works
b) musical works
c) artistic works
d) films
e) sound recordings
f) broadcasts
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COPYRIGHT (cont.)
section 3 provides definitions of: material form
literary work
musical work artistic work
film
sound recording
broadcast
seeComputer Edge Pty Ltd vApple Computer Inc the word copy in the law of copyright refers to the
literal copying of a workaltered versions of anoriginal are not infringements of copyright
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COPYRIGHT (cont.)
information set out in a different way is not a breach ofcopyrightsee John Fairfax and Sons Pty Ltd v ConsolidatedPress Ltd
copyright shall not subsist under this Act in any design whichis registered under any written law relating to industrial design
designs are also known as industrial designs because theyare used for some industrial purpose, usually to make aparticular manufacturers products identifiable with thatmanufacturer and readily distinguishable from those of itscompetitors
1. Nature of Copyright copyright in a literary, musical or artistic work, a film, or a
sound recording or a derivative work shall be the exclusiveright to control in Malaysiasee Section 13(1) and 13(2)of the Act
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COPYRIGHT (cont.)
2. Types of Copyright section 7(1) of the Act provides that the following
works are eligible for copyright: literary works
musical works artistic works
films
sound recordings
broadcasts
Li terary Works
section 3 defines literary work as including:a) novels, stories, books, pamphlets, manuscripts, poetical works
and other writings
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COPYRIGHT (cont.)
b) plays, dramas, stage directions, film scenarios, broadcastingscripts, choreographic works and pantomimes
c) treatises, histories, biographies, essays and articles
d) encyclopaedias, dictionaries and other works of referencee) letters, reports and memoranda
f) lectures, addresses, sermons and other works of the samenature
g) tables or compilations, whether or not expressed in words,figures or symbols and whether or not in a visible form
h) computer programmes, but does not include official texts of theGovernment or statutory bodies of a legislative or regulatorynature, or judicial decisions
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COPYRIGHT (cont.)
Musical Works
musical work means any musical work, and includesworks composed for musical accompanimentsection 3
musical work would cover the lyrics of songs as well asthe music
Art is t ic Works
section 3 defines artistic work to mean:a) a graphic work, photograph, sculpture or collage, irrespective of artistic
qualityb) a work of architecture being a building or a model for a building
c) a work of artistic craftsmanship, but does not include a layout-design within the meaning of the Layout-Designs of IntegratedCircuits Act 2000
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COPYRIGHT (cont.)
artistic works include: paintings
sculptures
drawings
engravings
photographs
buildings or models of buildings
other works of artistic craftsmanship
although the definition is of artistic work, the sectionspecifically excludes artistic quality as a requirementit does not have to be good art
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COPYRIGHT (cont.)
Circui ts Layou t
a development of this area of law is the Layout-Designsof Integrated Circuits Act 2000 which gives protection
similar to copyright and patent rights in respect tooriginal circuit layouts for integrated circuits
these rights are electronic layout (EL) rights
the person who first makes an eligible layout is the
owner unless he or she did so as an employee, in whichcase the owner is the employer
the owner of the EL rights has the exclusive right tocopy, manufacture or to exploit the layout commercially
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COPYRIGHT (cont.)
Film
section 3film means any fixation of a sequence of visualimages on material of any description, whether translucentor not, so as to be capable by use of that material with orwithout any assistance of any contrivancea) of being shown as a moving picture
b) of being recorded on other material, whether translucent or notby the use of which it can be so shown, and includes the soundsembodied in any soundtrack associated with a film
sound recording any fixation of a sequence of sounds orof a representation of sounds capable of being perceivedaurally and of being reproduced by any means, but doesnot include a soundtrack associated with a film
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COPYRIGHT (cont.)
broadcast a transmission, by wire or wirelessmeans, of visual images, sounds or otherinformation which:
a) is capable of being lawfully received by members ofthe public
b) is transmitted for presentation to members of thepublic, and includes the transmission of encrypted
signals where the means for decrypting are providedto the public by the broadcasting service or with itsconsent
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COPYRIGHT IN GENERAL
1. Publication
there is no requirement under the Copyright Act toregister copyrightit comes into existence upon
publication of the work a literary, dramatic, musical or artistic work will be
published only if copies of the work have beensupplied to the publicsee section 4
the Director General of the Corporationthe Controller of Copyright
no copyright shall subsist otherwise than by virtue ofthe Copyright Act
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COPYRIGHT IN GENERAL (cont.)
the following derivative works are protected asoriginal works:
a) translations, adaptations, arrangements and other
transformations of works eligible for copyrightb) collections of works or collections of mere data,
whether in machine readable or other form, eligiblefor copyright which, by reason of the selection andarrangement of their contents, constitute intellectual
creation
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COPYRIGHT IN GENERAL (cont.)
Copyr igh t in Publ ished Edi t ions of Works
under section 9(1), copyright shall subsist in everypublished 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
b) the publisher of the edition was a qualified person atthe date of the first publication thereof
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COPYRIGHT IN GENERAL (cont.)
Qual if icat ion for Protect ion
copyright exists in a published original if the firstpublication of the work (made available to the
public) was in Malaysia or if the author was aMalaysian citizen, a permanent resident or aresident (a qualified person) section 10
Qual if icat ion for Protect ion of Perform er performers right in every live performance see
section 10A
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COPYRIGHT IN GENERAL (cont.)
2. Nature and Duration of Copyright copyright does not last forever
Nature of copyr ight
under the Copyright Act: the nature of copyright as regards design documents andmodels: see section 13A
the effect of exploitation of design derived from artisticwork: see section 13B
things done in reliance on registration of design: seesection 13C
nature of copyright in works of architecture:see section 14
nature of copyright in broadcasts: see section 15
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COPYRIGHT IN GENERAL (cont.)
where the owner of the copyright in any literary, musical orartistic work authorizes a person to incorporate the work ina film and a broadcasting service broadcasts the film inthe absence of any express agreement to the contrary
between such owner and person, it shall be deemed thatthe owner of the copyright authorized the broadcast: seesection 16(2)
the nature of performers rights see section 16A
Durat ion of Copyr igh t under section 17copyright in literary, dramatic and
musical works lasts for fifty years after the calendar yearin which the author died
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COPYRIGHT IN GENERAL (cont.)
if the work has not been published, performed oroffered for sale before the author dies, the copyrightwill last fifty years after the end of the calendar year inwhich it was first published
where there are two or more authors, the copyright willlast for fifty years after the death of the last survivingauthor
for artistic works, sound recordings, broadcasts, films,television and sound recordings and published editionof workssee sections 1822
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COPYRIGHT IN GENERAL (cont.)
works of the Government; Government organizationsand international bodiesa period of fifty years fromthe beginning of the calendar year next following the
year in which the work was first published
rights in a live performancea period of fifty years
from the beginning of the calendar year next following
the year in which the live performance was given
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OWNERSHIP AND ASSIGNMENT
OF COPYRIGHT
part IV of the Act makes provisions for issues onownership and assignment of copyright:
First Ownership of Copyright: see section 26
Assignment, Licenses and Testamentary Disposition: seesection 27
part IV (A) of the Act provides for copyright licensing;including in relation to the copyright in literary ormusical works; references of proposed licensing
scheme and licensing scheme to the Tribunal;application for grant of licence in connection withlicensing scheme; reference to Tribunal of expiringlicence; effect of order of Tribunal as to licence, etc.
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COPYRIGHT TRIBUNAL
was established pursuant to section 28 of the
Copyright Act 1987
the constitution of the Tribunal is stated in section 29
proceedings before the Tribunal are as set out in
section 30
matters concerning the Tribunalsee Part V of the
Act
remedies for infringements and offencessee Part VI
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INFRINGEMENTS
infringement of copyrightif a person reproduces in amaterial form, the whole (or even part) of a literary,dramatic, musical or artistic work that is subject tocopyright, without the consent of the owner: section 36
of the Act the civil remedies for infringement of copyright are:
1. Injunction
restrains the infringement or threatened infringement of thecopyright
2. Damages or an account of profits amount of money that will compensate the author for the
loss suffered as a result of the infringement; such as thefees lost in the unauthorized performance of a musical workor the loss of sales of a book
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INFRINGEMENTS (cont.)
restriction on importation of infringing copiessee
section 39
back-up copies of computer programssee section 40
the courts will therefore make an order permitting the
plaintiffs representatives to enter premises to search for
and remove copies of the work or other material or
documents relating to them
Anton Piller orders can also be used against defendantswho are persistent in their breach
seeAnton Piller KG vManufacturing Processes Ltd
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OFFENCES
1. Compounding of Offences see section 41A of the Act
2. Penalty see section 43 of the Act
3. Enforcement
PART VII of the Act provides wide powers forenforcement
any persons who obstruct searches or the exerciseof powers by the Assistant Controller or police officernot below the rank of Inspector shall be guilty of anoffencesection 48
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REVIEW
Introduction
Copyright
Copyright in General Ownership and Assignment of Copyright
Copyright Tribunal
Infringements Offences
Recommended