A Beginner's Guide on Copyright©
You have spent countless hours crafting a new novel, writing a new software or composing a song, and you wish to protect these creations from being copied by others. Fret not! All these are protected as copyright in Malaysia!
What is copyright?
Copyright is the exclusive right to control creative works for a specific period of time. In Malaysia, copyright is governed by the Copyright Act 1987 (“Copyright Act”).
The works eligible to be protected under the Copyright Act include:-
literary works, eg. novels, books, articles, tables and computer programs
musical works, including works composed for musical accompaniments
artistic works, eg. graphic work, photographs, work of architecture being a buildings
films, eg. fixation of a sequence of visual images on the material of any description, moving picture
sound recordings mean 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
derivative works, eg. translations and adaptations of works eligible for copyright protection.
(Section 7(1) of the Copyright Act 1987)
Can we protect ideas?
The short answer is, NO. However, it is worth noting that copyright could protect the expression of the idea or creative authorship. So, if you imagine a plot, this is not protected. But when you express it in a novel, the expression of the plot in that novel will be protected.
(Section 7(2A) & Section 8 of the Copyright Act 1987)
What are the requirements to be entitled to copyright protection?
Your literary, musical or artistic works will be protected as the copyright, so long as:-
(1) Sufficient effort has been expended to make the work original in character. In short, make sure it is Original! This depends on the degree of effort, skill, labour and time expended by the author. Unlike patent and industrial design, the work does not need to be new or inventive, as long as it is original from the author.
Interestingly, the quality of the work is not a concern either! Section 7(2) of the Copyright Act provides that works shall be protected irrespective of their quality and the purpose for which they were created.
(2) The work has been written down, recorded or reduced to material form. This is satisfied provided that the work that is stored or a substantial part of it can be reproduced. This is contrary to films, sound recordings and broadcasts, which need not fulfil this requirement.
(Section 7(3) of the Copyright Act 1987)
What are the rights enjoyed by a Copyright Owner?
Having copyright protection, the owner of the work will enjoy the following rights:-
legal rights - this is the exclusive right to enforce their copyrighted works in cases for infringement either by civil or criminal action.
economic rights - rights of reproduction, rights of communication to the public, rights to perform, showing or playing to the public, rights of distribution and rights of commercial rental. Further, it also includes the rights to derive financial reward from the use of the works by way of assignment, licensing and testamentary disposition; and
moral rights - this includes the paternity right (right to be identified as the author of the work) and integrity right (prevent users from modifications of the works without consent, whereby it will significantly alter the original work and adversely affect the author’s honour or reputation.)
(Sections 13 and 25 of the Copyright Act 1987)
How long is the duration of copyright protection?
The duration of copyright protection is dependent on the categories of copyright work involved as discussed above.
Generally, for literary, musical or artistic works, the duration of the copyright is the life of the author plus 50 years after his death. In the case of a work of joint authorship, the computation only starts from the author who dies last.
(Sections 17(1), (4) of the Copyright Act 1987)
For film and sound recordings, the copyright shall subsist for 50 years from the following year in which the work was first published. It is stated in Section 4 of the Copyright Act that a film or sound recording is first published when the former is sold and the latter is made with the consent of the author.
However, if the sound recording has not been published, its copyright shall subsist for 50 years from the following year in which the fixation is fixed. Fixation means the sound recording is reduced into a material form and able to be reproduced.
As for the performers’ rights, the copyrighted work shall subsist for 50 years from the following year the performance was given or fixed in a sound recording.
(Sections 19 and 23A of the Copyright Act 1987)
For the copyright in broadcasts, its protection shall subsist for 50 years from the following year in which the broadcasts was first made.
(Section 20 of the Copyright Act 1987)
Do we need registration to be eligible for protection under copyright?
In short, NO. Copyright protection subsists automatically in every work if the prerequisites are met, without the need for registration, of which the author is a “qualified person”. This includes any citizen or permanent resident of Malaysia, or a body corporate incorporated under Malaysian law. This is one of the key differences between copyright and the other intellectual property such as trademarks and patent.
(Sections 3 and 10 of the Copyright Act 1987)
However, it is highly advisable for the author to apply for a Copyright Voluntary Notification, to assist in providing the prima facie evidence of the ownership and the date of creation. This is because even though there is no need for registration for copyright protection, it is sometimes difficult for the author to set out evidence against a copyright infringement.
(Sections 26A and 26B of the Copyright Act 1987)
How to apply for Copyright Voluntary Notification in Malaysia?
Step 1 - Compile the works intended to be protected and relevant information
While you may file a hardcopy of the works with the Malaysian Controller of Copyright, it is advisable to save them in digital form for submission purposes, eg. DVD.
In addition, you will need to compile the following information,
(1) Name and address of the owner(s)
(2) IC number of the owner (for natural persons)
(3) Registration number of the owner (for legal persons)
(4) Name and address of the author(s)
(5) IC number of the author(s)
(6) Title of work
(7) Date of creation and publication of the work
Step 2 - Prepare a Statutory Declaration
The Statutory Declaration should declare that the applicant is the author or owner of the copyright in the work, or how the applicant is being vested with the right or interest in the work. Further, the said SD should state the date that the work was recorded and reduced into material form, and also exhibit a copy of the work.
The SD must be signed and attested before a Sessions Court Judge, Magistrate, Commissioner for Oaths or Notary Public.
Step 3 - Prepare Copyright Application Forms
The Applicant to complete Form CR-1 for Original Works or Form CR-2 for Derivative Works, sign and submit to the Controller of Copyright. It is important to note that there are 2 types of names to be included in the application, i.e. the applicant’s name and the author’s name. The applicant will be the owner of the copyright.
Step 4 - Examination and Recordal of Notification of Copyright
Upon submission, the Controller of Copyright will examine the contents of the submitted information and documents. The Controller usually takes about 9 to 12 months to examine an application.
If there are any issues with the copyright voluntary copyright application, the Controller will issue a letter requesting the applicant to rectify the error within the prescribed period. If the applicant does not respond to the said letter, the application would be deemed withdrawn.
Step 5 - Recordal of Copyright Voluntary Notification and Issuance of Certificate
Once the Controller of Copyright is satisfied that the application meets the requirements, the Controller will issue a Notice of Recordal of Copyright Voluntary Notification informing the successful recordal. At this point, the owner may file Form CR-5 to request a certificate. It is worth noting that there is no renewal fee required to maintain the Copyright Voluntary Notification.
The applicant may opt to apply for the Voluntary Notification of Copyright directly or through a representative. Form CR-3 shall also be submitted if a representative is appointed for the filing of the application, alongside the relevant forms and information stated above. However, a foreign applicant must appoint a representative for this application.
It is always advisable to appoint a competent IP agent or lawyer to assist with your copyright voluntary notification to avoid unnecessary mistakes.
Do we need registration overseas?
Under the Berne Convention for the Protection of Literary and Artistic Works, copyright protection is obtained automatically without the need for registration or other formalities in all member states to the Berne Convention, including Malaysia.
(Articles 5(2) of the Berne Convention for the Protection of Literary and Artistic Works)
Register your copyright if it is worth the investment
Even though copyright protection is automatically conferred by the law, it is highly advisable to register a copyright for works that are commercially viable. We would not know when we need our copyright proof of ownership to knock on the infringer’s door. Call us today to protect your copyright!
Registered Trademark, Patent and Design Agent
LL.B (HONS), CLP Advocate & Solicitor (Non-Practising)
IP Legal Intern
Bachelor of Laws
Disclaimer: The above information is merely for general sharing and does not constitute any legal advice. Readers are advised to seek individual advice from the professionals.
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