It is recognised that Malaysia, in terms of strengthening and updating its intellectual property laws, had introduced a slew of amendments to its statutes, including Copyrights (Amendment) Act 2022, Patent (Amendment) Act 2022, and Geographical Indications (Amendment) Act 2022, which all sought to update the intellectual property law to fit into the mould of current economic landscape. It is our experience that one of the most sought after for explanation and understanding is the Copyrights (Amendment) Act 2022, which we will proffer some discussion herein as to what has changed, and what effect has it brought.

As a background, the Copyrights (Amendment) Bill was read in parliament on 15.12.2021 by the Minister of Domestic Trade and Consumer Affairs, which had succinctly explained the purpose of this amendment is to provide efficient and effective protection in line with the current needs, and that this area of law must be improved from time to time in line with the landscape of intellectual property protection and to be conforming international treaties.

The primary amendments to the Copyrights (Amendment) Act 2022 are made to conform with the Marrakesh Treaty, which can be found in the amendment to Section 3 and the inclusion in Section 13(2B), Section 16, Section 25 and Section 36. The amendment is a ratification of the Marrakesh Treaty which sought to protect the Copyright works of specially adapted books for people with visual impairments and blindness.

In essence, the amendments in compliance with the Marrakesh Treaty are as follows:-

1. i. Section 13 stipulates that an authorized entity or persons with print disability may make and issue copies of any work in accessible format copy.

1. ii. Section 16 stipulates that an authorised entity, a non profit body or a person with print disability himself may make an indirect sound recording or film a performance with the sole purpose of assisting people who are hearing impaired or person with print disability, and such actions shall not be held as infringement.

1. iii. Section 25 (which deals with the moral rights and modification of an author’s work) now stipulates that if the modification of a work is done to make it into an accessible format by authorised entity or persons with print disability, the modification is not a contravention of subsection 2 if such modification is necessary to make it into an accessible format copy.

1. iv. Section 36 (which deals with circumvention of technological protection measure) now includes that the prohibition of circumventing technological protection measure does not apply to authorised entity or persons with print disability in the sole purpose of making the work into accessible format copy.

Other than the ratification of the Marrakesh Treaty, the law now also aims to enhance enforcement of copyrights law, specifically in terms of digital offences to target the streaming technology, as it is well known that streaming services (which is the primary means of consuming media nowadays) is a warm bed for infringement. The amendment under Section 43AA now specifically prohibits the following actions as offence which may invite a fine of not less than RM10,000.00 and not more than RM200,000.00 or imprisonment of not more than 20 years:-

1. (i) manufacturing a streaming technology for sale or hire;
2. (ii) importing a streaming technology;
3. (iii) selling or letting for hire, offering, exposing or advertising for sale or hire,    possessing or distributing a streaming technology in the course of a business;
4. (iv) distributing a streaming technology for purposes other than in the course of a business to such an extent as to affect prejudicially the owner of the copyright; or
5. (v) offering to the public or providing any service of streaming technology.

Other improvements in terms of offences may also be perceived in Section 41A(2) which sees that the Controller, Deputy Controller or any other authorised person may, with the consent of Public Prosecutor, compound the offence by a payment of sum not exceeding 50% of the maximum fine the offender would have received. Section 48 also now specifically targets offenders which tries to destroy evidence of infringements.

Another feature included in the latest amendment is the change in Voluntary Notification of Copyright works. It was reported during the parliament reading that the Voluntary Notification received was 7,372 in year 2020, and as at October 2021, there was another 4,314, showing that it is still extremely popular for voluntary notification. Thus to avoid confusion, the words “author of the work” and the words “an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence” is now just limited to assignee of the copyright.

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This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.

About the author

Loh Cien Zen
Partner
General Civil Litigation, Energy Supply Disputes, Corporate Commercial Litigation, Contractual Dispute, Construction Litigation
Zen, Chyuan & Farliza
zenchyuanco@gmail.com