This article examines two significant copyright infringement cases: Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors in Malaysia and Zeccola v Universal City Studios Inc in Australia. By comparing the facts, legal issues, and judicial reasoning in these cases, we aim to understand the principles governing copyright infringement across different jurisdictions.

Malaysian Case

The Appellant authored a novel titled “Aku Bohsia” (“the novel”) in 1995. In 2009, the First Respondent served as the lead actor, scriptwriter, and director of a film called “Bohsia: Jangan Pilih Jalan Hitam” (“the movie”). The Second Respondent produced the film, and the Third Respondent distributed it.

Upon discovering substantial similarities between his novel and the movie in terms of theme, plot, characters, and message, the Appellant filed a lawsuit against the Respondents for copyright infringement. In his statement of claim, the Appellant highlighted several significant resemblances between the two works.

The Respondents denied the allegations, asserting that they had never encountered the novel and that any similarities were coincidental, as the topics of “bohsia” girls and “mat rempit” were widely known to the public.

Additionally, the Respondents counterclaimed for defamation, seeking damages for two articles the Appellant had written on his blog, accusing them of plagiarising his novel.

The High Court dismissed the Appellant’s claim and upheld the Respondents’ counterclaim, awarding RM100,000.00 (approximately USD25,000.00) in damages to each Respondent. The trial judge concluded that any similarities between the novel and the movie were not due to copying. Instead, the issues addressed were prevalent in the country before the novel was written and were considered “commonplace, unoriginal, or general ideas” that the novel could not exclusively claim.

Furthermore, the trial judge determined that the Appellant failed to establish a causal link between the novel and the movie to prove that the movie was based on the novel. The Appellant subsequently filed an appeal against the dismissal of his claim and the allowance of the counterclaim.

Issues

1. Is the mere publication of a work sufficient to satisfy the legal requirement of establishing a causal connection in a copyright infringement claim?
2. According to the test established in Megnaway Enterprise Sdn Bhd v Soon Lian Hock (sole proprietor of the firm Performance Audio & Car Accessories Enterprise) [2009] 3 MLJ 525, is there a legal obligation for the court to examine and evaluate both materials in question when adjudicating a copyright infringement claim?

Ratios

1. The trial judge declined to consider the alleged similarities in the Plaintiff’s evidence, as they had not been pleaded in the statement of claim.

1. The Court disagreed with the trial judge’s findings, asserting that the substantial similarities between the Plaintiff’s novel and the film could not be dismissed as coincidental.

1. While the ‘bohsia’ phenomenon was prevalent in the 1990s and the issue of ‘mat rempit’ continues to be a social issue today, the numerous similarities between the novel and the movie extend beyond general themes, plots, and names of characters and places. They include specific character traits, events, and relationships that cannot be deemed ‘commonplace, unoriginal, or consisting of general ideas.’ The clear conclusion is that the film was based on the novel.

1. Given the numerous and significant similarities between the novel and the film, the Court was not persuaded by the Defendants’ submission that the similarities were merely in ideas, which are not protected by Section 7(2A) of the Copyright Act 1987 (Act 332).

2014. Furthermore, the Court felt that the trial judge had placed undue reliance on irrelevant considerations, such as the 14-year gap between the novel’s publication in 1995 and the film’s release in 2009, and the fact that the Plaintiff’s suit against the Defendants was filed only five years later, in 2014.

1. According to Section 18 of the Copyright Act 1987 (Act 332), the duration of copyright protection is fifty years from the date of publication.
2. The Court also disagreed with the trial judge’s conclusion that the Plaintiff failed to establish a causal link between the original work and the infringing work due to the lack of evidence on the sale of the novel, the number of copies sold, or its availability in the market 14 years later.

1. The Court affirmed that evidence of a causal connection can be established either directly or indirectly. In this case, the causal link is indirect, as the original work was published and thus accessible to the public.

1. Consequently, even if the novel was no longer in the market, it was presumably still available in libraries and bookstores.

Decision

1. The owner of a copyrighted work has the exclusive right to control its reproduction in whole or substantial part in Malaysia. This right is protected under Section 36(1) of the Copyright Act 1987, which specifies the instances where copyright is said to be infringed. The copyright owner must prove the following to establish infringement:

1. A sufficient degree of objective similarity between the two works.
2. A causal connection between the copyrighted work and the alleged infringing work.

The degree of objective similarity must be substantial.

2. Determining the elements outlined in Francis Day and Hunter Ltd v Bron [1963] 1A IPR 331 (“Francis Day”), namely sufficient objective similarity and a causal connection between the two works, is a question of fact. The plaintiff bears the burden of establishing these elements with evidence. If these elements give rise to an inference that the defendants copied the plaintiff’s work, the burden then shifts to the defendants to show independent creation. In a copyright infringement action, the court must first identify the features of the defendants’ work that the plaintiff alleges were copied from his novel. A full comparison of the two works is necessary, noting the similarities and differences. The court determines whether the similarities are sufficiently close, numerous, or extensive to suggest copying rather than coincidence. Commonplace, unoriginal, or general ideas may be disregarded. Whether the defendant copied the plaintiff’s work is generally answered by comparing the two works in all essential features. A useful test of copying is whether the similarities come so close to the original that the features in the infringing work appear to be the original to any observer. Whether there has been an infringement “depends on the facts and circumstances of each case”, as stated by Upjohn LJ in Francis Day.

3. The trial judge’s approach in dealing with the matter was correct, adhering to the established principles of copyright infringement. The Court of Appeal’s decision to reverse and set aside the trial judge’s findings on the issue of similarities was based on the respondents’ assertions in their statement of claims. The Court of Appeal’s judgment did not indicate an examination or evaluation of the evidence presented by both parties during the trial.

4. The trial judge, with sufficient reason and after examining all available evidence and having the visual advantage of seeing and hearing the witnesses, made specific findings of fact. These findings were later reversed and set aside by the Court of Appeal based only on the respondents’ assertions in the statement of claim. The Court of Appeal failed to adopt the correct approach by not examining and evaluating the evidence. The objective similarity and its substantiality between the two works can only be determined by direct comparison. The novel needs to be read in full, and the movie needs to be seen. The trial judge did this, but the Court of Appeal did not.

5. The Court allowed the Plaintiff’s appeal, as well as the appeal against the finding of defamation, and set aside the orders of the learned judge in respect of both the copyright action and defamation.

6. The Federal Court of Malaysia reaffirmed the High Court’s judgement and set aside the decision of the Court of Appeal. The High Court Judge’s decision was affirmed and reinstated. The Federal Court agreed with the High Court Judge’s conclusion that the similarities in the case “cannot be said to be substantial similarities that go to the root of the novel and the movie.” Without substantial objective similarity between the novel and the movie, the first requirement or element as outlined in Megnaway Enterprise Sdn Bhd, following the principle adopted by Sir Raymond Evershed MR in Purefoy Engineering Co Ltd, had not been established by the plaintiff in the current case.

As a result, the Federal Court found no necessity to answer Question 1 regarding the issue of causal connection. It was determined that the issue of causal connection arises only after the issue of substantial similarity between the two works has been established.

Australian Case

An Australian case with similar material facts to the above-mentioned case is Zeccola v Universal City Studios Inc. In the case of Zeccola v Universal City Studios Inc ‘Universal’ owned copyright in the film Jaws, screenplay Jaws, and novel Jaws. Zeccola made a film about man eating sharks called Great White. Universal sued for copyright infringement. The court held that Zeccola had not infringed copyright in the “film” as there was no copy of the visual images. As to whether Zeccola had infringed copyright in the novel and screenplay, the primary judge watched both films (“with some degree of fortitude”) and held there was such a marked degree of similarity between the two films that there was an inescapable inference of copying. There is no copyright in the central idea: the idea of a shark terrorising a community cannot be protected. However, in this case, there was significant overlap in situations, characters, and location (even though the dialogue was different). The Full Federal Court wasn’t as certain but did not find fault with the primary judge’s opinion.

According to Australian statute an infringing act need not be done in relation to the whole of the work or other subject-matter. It is sufficient if it is done in relation to a substantial part of the work as per the Copyright Act 1968 s 14(1). “Substantial” is a question of fact to be determined in the circumstances, requires a consideration of the quality of the work taken in relation to the work as a whole.

The cases of Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors [2019] 1 MLJ 530 and Zeccola v Universal City Studios Inc (1982) 46 ALR 189 share several similarities despite their different jurisdictions and contexts. Both cases involve allegations of copyright infringement, with plaintiffs claiming that their original works were copied without permission by the defendants. The central issue in both cases was whether the defendants had copied a substantial part of the plaintiffs’ copyrighted works. The courts had to determine if the similarities between the works were significant enough to constitute infringement.

In each instance, the courts closely examined the similarities between the original works and the allegedly infringing works to ascertain if there was unauthorised copying. This involved a detailed analysis of the content, themes, and expressions of the works. Ultimately, the courts ruled in favour of the plaintiffs, finding that the defendants had indeed infringed upon the copyrights of the original works. The judgments emphasised the importance of protecting the rights of creators and underscored the principle that copyright law is designed to protect the original expressions of creators. These rulings highlighted the need to respect the intellectual property rights of individuals and entities who produce original content.

Therefore, despite the jurisdictional differences and specific details of each case, the similarities in the rulings handed down by the respective judges lead me to believe that the outcomes of Elias bin Idris v Mohd Syamsul bin Md Yusof would remain the same if they were heard in Australian courts and under Australian law.