The year 2022 saw notable changes to the Intellectual Property (IP) scene in Malaysia with significant amendments being made to key legislations which deal with IP in Malaysia among which include amendments to the Copyright Act 1987 (“the CA 1987”) which was effected by the Copyright (Amendment) Act 2022 (“ the Amendment Act”). The Amendment Act was passed by the Dewan Rakyat on 18 December 2021 and came into force on 18 March 2022.
The amendments to the CA 1987 were introduced to ensure the copyright laws of the country is on par with other nations and meets the demand and needs of the current time as well as to ensure compliance with Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled 2012 (“Marrakesh Treaty”) which was acceded by Malaysia on 31 March 2022.
Accession to Marrakesh Treaty: Access of Published Work for Persons who are Blind, Visually Impaired or Otherwise Print Disabled
One of the key amendments introduced by the Amendment Act was to allow persons with print disability to have access and use copyrighted works without being liable for infringement.
This is in line with Malaysia’s obligation under the Marrakesh Treaty. Malaysia’s accession to the Marrakesh Treaty reflects the country’s commitment to the obligations under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
Newly amended Section 3 of CA 1987 defines a person with print disability as a person registered under the Persons with Disability Act 2008 ( “the PDA 2008”) as a disabled person, and who is blind; visually impaired or has other physical disabilities which may prevent a person from holding or manipulating a book or to move the eyes, to the extent that would be normally acceptable to read.
The amendments introduced for the benefit of persons with print disability include production and distribution of accessible format copy of any work for their exclusive use by an authorized entity, a person with print disability or any other person acting on his behalf including his caregiver as encapsulated in the newly added Section 13(2)(ggggg) of CA 1987.
An “accessible format copy” is defined in amended Section 3 of CA 1987 as “a copy of a work in an alternative manner or form which gives a person with print disability access to the work including to permit the person with print disability to have access as feasibly and comfortably as a person without such disability for his exclusive use”.
An “authorized entity” is a prescribed entity which is a “non-profit making body or institution which provides education, instructional training, adaptive reading or information access to a person with print disability” as defined in newly inserted Section 13 (2C) of CA 1987.
Amended Section 16a(3)(c)(ii)] of the CA 1987, also states that an indirect sound recording, or a film of a performance made by a person with print disability, or an authorized entity or a non-profit making body or institution, solely for the purpose of assisting people with hearing impairment or print disability, does not constitute copyright infringement.
Further the amended Section 36A of the CA 1987, provides that technological protection measures applied to a work may be circumvented by the authorized entity, person with print disability, or any other person acting on his behalf including his caregiver for the sole purpose of making issuing or distributing copies of any work into an accessible format for the exclusive use of person with disability.
It is worth noting that prior to the amendment, Section 13(2)(gggg) of CA 1987 did provide copyright exception for the benefit of those with visual or hearing impairment. The Amendment Act has increased the exception to include person with print disability and has enhanced their accessibility to use copyrighted works.
Voluntary Notification
Another significant change brought about by the Amendment Act is on the person who is entitled to make a Voluntary Notification of Copyright. Prior to the amendment, authors, owners , licensees, and assignee can apply for Voluntary Notification of Copyright. Section 7 of the Amendment Act has amended Section 26(A) of the CA 1987, which in essence has removed reference to authors and licensee. As a result of the amendment only owners or assignees of a copyrighted work will be entitled to apply for a Voluntary Notification of Copyright.
The amendment also resulted in removal of Section 26(A)(3) of the CA 1987, which abolishes the requirement for a statutory declaration affirming that the applicant is the copyright owner or assignee of the subject work. This certainly would simplify the Voluntary Notification process for copyright owners.
Collective Management Organization (CMO)
Section 2 of the Amendment Act has replaced the word licensing body in CA 1987 with the CMO. This is line with the practise of World Intellectual Property Organization (WIPO) which refers to the organization which manages the rights of copyright owners and performers as CMO.
Previously, societies or organizations are allowed to apply to be a licensing body, however, under the newly amended Section 27A of the CA 1987, only body corporate i.e. “a company limited by guarantee incorporated under the Companies Act 2016 may be declared as CMO”.
The amended Section 27A of the CA 1987, also has set a limit of two years, subject to renewal, for a body corporate to act as a CMO. Thus, a body corporate could only be declared as a CMO for a period of two years after which they are required to apply to renew in order to continue to act as a CMO. This is in contrasts with before the amendment, whereby a body was allowed to act as a licensing body indefinitely.
Further, the amendment now empowers the Controller to issue guidelines relating to any matter on the declaration and operation of CMO through the newly inserted Section 27M of the CA 1987.
Offences
The amendment has also brought about with it measures to further strengthen the enforcement of the copyright law through introduction of new offences.
In particular, against the backdrop of increased usage of paid streaming services such as Netflix, Hulu, Amazon Prime Video etc and free sources such as Internet Archive, Crackle etc., the CA 1987 has newly inserted Section 43AA, which makes it an offence for a person to manufacture, import, sell, distribute or offer to public a streaming technology which commits or facilitate infringement of copyright in any work.
The newly amended Section 41(1)(k) of the CA 1987 also makes it an offence for a person to provide or share access to an online location containing pirated works.
Further the amended Section 48 of CA 1987, makes it an offence for a person to intentionally cause any evidence relating to the commission of an offence to disappear or to give any information in respect of the offence which he knows or believes to be false, with the intention of protecting the offender.
Enhanced power of enforcement authorities
The Amendment Act has increased the power of the enforcement authorities, equipping them with the necessary statutory authority to be able to carry out their functions more efficiently.
Through the amended section 39 of the CA 1987, the Assistant Controller, a police officer (not below the rank of an Inspector) or any officer of Customs may search for and seize any infringing works which are prohibited from being imported into Malaysia, with or without an application made by the owner of the copyright.
Furthermore, the newly inserted Section 51B of the CA 1987, empowers the Assistant Controller to direct the copyright owner or any person authorized to act on behalf of the copyright owner to make test purchases to determine if there are any infringements or offence(s) committed.
The newly inserted Section 52B of the CA 1987 also now empowers the Assistant Controller to direct any person to produce information, evidence or documents which are relevant to the performance of the Assistant Controller’s power and functions.
Conclusion
The amendments introduced to the CA 1987, in addition to ensuring Malaysia’s compliance to the obligations under the Marrakesh Treaty has certainly brought about changes which meets the demands of the current time. Introduction of new offences and empowerment of the enforcement officers would certainly provide stronger safeguard against copyright infringement(s). The amendments surely will benefit the relevant stakeholders and provide a more conducive environment for copyright protection in Malaysia.