Voluntary Notification in Malaysian Copyright Law and Copyright Issues in the Trans-Pacific Partnership Agreement

By Zuhairy Fauzy (Ella Cheong IP Services Sdn Bhd)
 
In Malaysia, copyright is protected under the Copyright Act 1987. It was recently amended in 2012. One of the more significant aspects of these amendments is the option for authors or licensees of creative works to provide voluntary notification of copyright to the Controller of Copyright, thereby providing prima facie evidence of authorship or licensed user.
The process is “voluntary” because an original work is automatically afforded copyright protection in Malaysia once published, without the need for any formal registration.
Nevertheless, the voluntary notification system offers several distinct advantages:
• In case of litigious proceedings, unless refuted, the courts will presume that a party is indeed the author of the copyrighted work.
• The copy lodged with MyIPO serves to show the actual expression or form of the work as at the time of deposit.
• MyIPO could serve as a safety deposit box for the copyrighted work, in the event that the work is lost.
• Authors or licensed users who provide voluntary notification of copyright with MyIPO may be issued certificates of copyright. At the time of writing, these certificates are personally signed by the Controller of Copyright cum Director-General of MyIPO.
Under section 7(1) of the Act, literary, musical, and artistic works, films, sound recordings and broadcasts (and derivative works thereof) are all eligible for copyright protection.
Copyright notification in Malaysia is a relatively quick process by comparison to trade marks or patents. The only documentations needed are:
1) the official forms together with payment
2) a statutory declaration asserting that the person making the notification is the author or licensed user of the work, and
3) a copy of the aforementioned work.
Fees vary depending on the type or amount of work to be lodged, but are nevertheless much lower than registration of trade marks, industrial designs and patents.
Although Malaysian copyright law is still in its infancy relative to other jurisdictions, public awareness of its importance is steadily growing. According to unofficial sources, although the voluntary notification procedure has only been officially implemented in the past two years, the response has nevertheless been overwhelming.
In view of the above, copyright owners are strongly encouraged to seriously consider filing voluntary notification of copyright in Malaysia.
For further details on filing copyright notifications in Malaysia, please feel free to enquire with us.

Copyright-related issues in the Trans-Pacific Partnership Agreement
Malaysia is currently in negotiations to enter into the Trans-Pacific Partnership Agreement (TPPA), a free trade agreement currently involving 12 countries within the Pacific Rim, which, if ratified, will have considerable implications for local intellectual property law.
With regard to copyright, some of the more obvious ramifications are:
• Extension of copyright terms from the current life+50 years to 70 years after the author’s death. In the case of a non-natural person, the term may extend between 95 – 120 years depending on the circumstances.
• More stringent controls by Internet service providers on copyrighted content. In contrast, the Copyright Act offers generous immunities to ISPs (the so-called “safe-harbour provisions”) as part of the 2012 amendments.
• Authors will have the right to authorise/prohibit reproductions of their works, including temporary electronic copies.
It is feared that such restrictive laws may inhibit innovation and other forms of legitimate creative expression, or otherwise discourage fair use of copyrighted material, e.g. for public research or other non-profit purposes. It would be interesting to see how the IP-related provisions of the TPPA would impact Malaysia’s domestic IP laws. Whether for better or worse, the resultant legislative amendments (and, in some cases, repeals) may have profound and far-reaching consequences for intellectual property rights in the country.

Ella Cheong LLC