Copyright Cyber Law Notes

COPYRIGHT
INTRODUCTION
• What is copyright?
- Merriam-Webster: “the exclusive legal right to reproduce, publish, sell, or distribute
the matter and form of something (such as a literary, musical, or artistic work)”
- WIPO: “a legal term used to describe the rights that creators have over their literary
and artistic works”
• In Malaysia, copyrights are governed by the Copyrights Act 1987
• Why the need for protection?
- works can easily be manipulated
ELEMENTS OF PROTECTION (For a work to be copyrighted under CRA)
1. The work must be under the category of protectable works under CRA 1987
Category of protectable works:
Basic works Neighbouring Works
(Definition of each work in is in s.3) s.8 – Derivative works
Basic works under s.7 - translations, adaptations, arrangements,
1. Literary compilations
- Does not have to be literal in s.16A – performer’s work
nature. Exp: computer - any performance
programs can be read by Exp: lecture, perform on stage
computers Neighbouring Works under s.7
2. Musical 4. Films
Exp: songs, musical notes - videos
3. Artistic 5. Sound recordings
Exp: photos, portraits, paintings - Diff with musical is that
sound recordings is more
complete.
- Exp: completed songs, inc
nature sounds
6. Broadcasts
- news
Works on the Internet
1. Websites
▪ Frames
Made by web designers and can be a separate protectable work
▪ Programs
applications
▪ Content of Websites
Articles, pictures, videos, music
2. Bulletin Board
▪ Forums
▪ Usenet
▪ Social Media
3. Digital Work
▪ Conversation thread
Example: Comments on blogs or posts or social media, Email.
▪ Digital files
2. The work must be original

Meaning of ‘original’
S. 7(3)(a) – sufficient effort has been expended to make the work original in character
• Originality relates to the expression of ideas. But originality of ideas is not protected
as in s.7 (2A).
• University of London V University Tutorial Press
“The word original does not in this connection means that the work must be an
expression of original or inventive thought. Copyright act are not concerned with
the originality of ideas, but with the expression of thought, and, in the case of
literary work with the expression of thought in print or writing. The originality
required relates to the expression of thought”
3. The work must be reduced to material form
S. 7(3)(b) – the work has been written down, recorded or otherwise reduced to material
form.
▪ It must be recorded. For example, singing a song does not make it protected. The
act of singing or the song MUST be recorded.
EXAMPLES OF PROTECTED WORKS UNDER S.7(3) ON THE INTERNET
▪ Perfomance in a show, theatre play

▪ Youtube videos
▪ Drawings (either digital or physical). For pictures that are edited in apps, the edited
picture is our copyright)
4. The work must be qualified

Conditions for qualification:
a. Creator must be citizen or PR Malaysia. If not, must be citizen or PR of a country
who are parties to the treaty.
b. Work must be published in Malaysia
c. Work is made in Malaysia
d. Work made under the control of Malaysian Government.
After fulfilling elements above,
FORMALITY OF COPYRIGHT
• Generally, the copyright is earned automatically. No formal registration needed.

However, there are problems when there is no formal registration.
• Problems: Difficulties in court evidence. Difficult to prove the originality of work.
Therefore, it is encouraged to:
1. Make an affidavit or SD – s.42
2. Make a voluntary notification – s.26A
Creaters can make notifications to MyIPO to claim that the work is theirs.
Both can be used as prima facie evidence for originality of work.
PERIOD OF PROTECTION
S.17 – literary, music, artistic (1) During authors life + 50 years after his
death.
(2) If not published before author’s death,

starts 50 years from the beginning of the
next calendar year that he made the work
Exp: If it was made in 2020, copyright starts
at 2021
(3) If the work is published anonymously

(don’t know who the author is), copyright
starts 50 years from the beginning of the next
calendar year following the year it was first
published or made know to the public.
Exp: published in 2020, copyright start 2021.
But, if the identity of author is known,
copyright is calculated according to (1).
EXCLUSIVE RIGHTS OF COPYRIGHT OWNER – S.13(1)
1. Right to reproduce in any material form

Example: An author writes a book, and then scans the book.
2. Right to communicate to public
- Creator has rights to put work on social media, websites etc
3. Right to perform, show or play to public
4. Right to distribute copies of copyrighted works to public by selling it or transfer
of ownership
5. Right to rent commercially to the public.
- This is more relevant in the past for cd rentals, but now people are more familiar
with subscribing instead of rent CDs. Subscribing is not the same as rent.
Examples of exclusive rights:
- Presentations
- Online distribution
- Online video
- Presentation
- Copyright licensing
MORAL RIGHTS OF CREATOR – S.25
• Paternity Rights
No person can present the work, by any means, without identifying the author, or under a
name other than the author; without consent from the author or representative (after death).
and
• Integrity Rights
No person can distorte, mutilate or modify the work that:
a. Significantly alters the work; and
b. It such that it might be reasonable regarded as adversely affecting the author’s honour
and reputation
COPYRIGHT INFRINGEMENT
• Infringement of Exclusive rights – s.36(1)

- When someone does or causes other to do the exclusive rights of owner under
s.13(1) without consent. Refer to s.13(1)
• Importation infringement articles without permission – s.36(2)
- Import copyright works without consent from creator or license for the purpose of
commercialization.
• Circumventing technological measure – s.36A
- The conduct of circumventing technological measures used by the author without
consent.
- For example, a person hacks into the system to retrieve the copyright work.
Hacking = circumventing technological measures.
• Removal of electronic right management – 36B

- Removing or altering anything on the work without consent.
For example, removing name on slide or removing watermarks
- Distributes the altered work
EXCEPTIONS TO INFRINGEMENT – S.13(2)
• FAIR DEALINGS – s.13(2)(a)

Provided that the author and title of work is acknowledged
- Non profitable research
- Private studying
- Criticism
- Review
- Reporting of news or current event
For reporting of news or current event by means of sound recording, film or
broadcasting, no acknowledgement is needed.
Example of fair dealings: sharing lecture slides without permission
Refer to s.13(2) for other exceptions

CASES OF COPYRIGHT INRINGEMENT ON THE INTERNET
(Cases are copied so must be paraphrased)
• BMG v Cox
A case in which BMG Rights Management accused Cox Communications of contributory
and vicarious copyright infringement based on its subscribers’ peer-to-peer file-sharing
• Cambridge University Press v Albert

A case brought by several academic publishers in 2008 that alleged infringement by
Georgia State University in connection with its course e-reserve system.
• Capitol Records v ReDigi

A case involving a service that allowed users to “resell” digital mp3 files.
Held: The court rejected ReDigi’s fair use argument
• Fox News v TVEyes

A case concerning whether TVEyes’ subscription service allowing users to view,
download, and email ten-minute clips of Fox’s programming qualified as fair use.
Held:
i. The function in TVEyes’ service that enabled subscribers to search for videos and
clips using keywords (“Search Function”) and the functions that allowed subscribers
to watch, archive, and share relevant clips with others (“Watch Function”) were both
allowed under the fair use exception. However, this was reversed by Court Of
Appeal.
ii. the functions that allowed TVEyes subscribers to download and freely email clips or
to watch clips obtained by using search functions other than by keywords were not
fair use.
• Goldman v Breitbart
A case concerning “how images [here, a photo of New England Patriots quarterback Tom
Brady] shown on one website, but stored on another website’s server, implicate an owner’s
exclusive display right.”
• The Pirate Bay
The Pirate Bay website operates to share digital files between users of the system via a
software and file transfer protocol called BitTorrent.
• Newzbin
Twentieth Century Fox and other parties (Fox) sued British-based Newzbin for copyright
infringement on the basis that the Newzbin website operated to locate and identify unlawful
copies of films online and then display the titles of those files, allowing visitors to the
website to acquire unlawful copies of the films by clicking on the link provided.
• Rapidshare
RapidShare is a Swiss-German hosting and filesharing service founded in 2006. In 2009,
the German royalty’s collector GEMA brought proceedings against RapidShare before the
Regional Court of Hamburg for copyright infringement in respect of 5000 recordings,
which GEMA alleged had been shared through the website.
HOW IS COPYRIGHT TRANSFERRED? (COPYRIGHT DEALINGS) – s.27
• Assignment
Gives all exclusive rights to the assignee
• Licensing
The permission to grant exclusive rights to the copyright owner, for which the unauthorized
access may infringe copyright.
• Testamentary Disposition
Under Distribution Act 1958
LEGAL ACTION FOR COPYRIGHT INFRINGEMENT
Copyright infringement is a quasi-criminal act. Therefore:
• Civil Action
Can claim for civil relief such as damages, injunction
• Criminal Action
Results to criminal punishment such as imprisonment and/or penalty

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COPYRIGHT

ELEMENTS OF PROTECTION (For a work to be copyrighted under CRA)

2. The work must be original

EXAMPLES OF PROTECTED WORKS UNDER S.7(3) ON THE INTERNET

▪ Perfomance in a show, theatre play

4. The work must be qualified

• Generally, the copyright is earned automatically. No formal registration needed.

(2) If not published before author’s death,

(3) If the work is published anonymously

1. Right to reproduce in any material form

Examples of exclusive rights:

MORAL RIGHTS OF CREATOR – S.25

• Infringement of Exclusive rights – s.36(1)

• Removal of electronic right management – 36B

EXCEPTIONS TO INFRINGEMENT – S.13(2)

• FAIR DEALINGS – s.13(2)(a)

Refer to s.13(2) for other exceptions

(Cases are copied so must be paraphrased)

• Cambridge University Press v Albert

• Capitol Records v ReDigi

• Fox News v TVEyes

HOW IS COPYRIGHT TRANSFERRED? (COPYRIGHT DEALINGS) – s.27

LEGAL ACTION FOR COPYRIGHT INFRINGEMENT

Copyright infringement is a quasi-criminal act. Therefore:

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