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Swinburne University of Technology Sarawak Campus

Shedding light on copyright

July 23, 2015

By Jacob Ting King Soon

You walk into a shop selling CDs and DVDs on any given day and you are greeted with rows and rows of neatly displayed and packaged discs, ranging from Fast & Furious 7 to Taylor Swift’s 1989, from Microsoft Windows 10 to Grand Theft Auto V. The young man attending to you is tattooed on both arms but he smiles courteously as he introduces you to an array of movies and albums. He emphasizes that they are all “clear”, meaning they are of high definition quality, and further adds that you are free to exchange the discs if you find the quality unsatisfactory. You choose three movies which are screening at a cinema near you and pay an amount of money equivalent to the price of an average movie ticket. Another typical day, and another satisfied customer.

Though this may be a common scenario in Malaysia, something is missing … copyright. How much do we know and care about copyright? Why are some ignoring it while others are dying to embrace it? In a nutshell, intellectual property refers to creations of the mind, such as inventions, literary and artistic works, designs and symbols as well as names and images used in commerce, according to the World Intellectual Property Organization. These intellectually-created properties are protected in law by, for example, copyright, patents and trademarks. This enables the right owners to earn credit or commercial benefit from what they develop or construct.

Copyright is a form of intellectual property which covers the expression of ideas. Copyright law protects the expression of works which the human mind can generate, and grant the owners a wad of moral and economic rights to manage, enjoy and utilize. Its intention is to promote intellectual creation and innovation.

For a work to qualify for copyright protection, the author must be a “qualified person”, i.e. a citizen or permanent resident of Malaysia, or a Berne Convention country, or the work was made or first published in such a country (or if first published elsewhere, the work must be brought in and published in Malaysia or any Berne Convention countries within 30 days from its first publication). Malaysia has been a member of the Berne Convention since 1 October, 1990.

In Malaysia, copyright is governed by the Copyright Act 1987.  Under the Act, the categories of works protected include literary works, musical works, artistic works, films, sound recordings and broadcasts. The work for which copyright is claimed must be original, in the sense that there has been independent skill or labour from the author in the creation of the work.

The Copyright Act (1987) was amended in 1997 (there were several more amendments after that) to include multimedia works. These provisions are to ensure adequate protection of intellectual property rights for companies investing in the information technology and multimedia environment. Since there is no registration for copyright in Malaysia, a Statutory Declaration stating the name of the author, date of creation of the work and exhibiting a copy of the work is accepted by the courts as prima facie proof of ownership of the copyright.

As crucial as it is to protect the creative work, it is also imperative to balance copyright protection law given its monopoly with the public interest, inter alia, access to knowledge. Former US President Harry S. Truman once said, “there is nothing new in the world, except the history you do not know”. Relating that conviction to copyright, what one has “created” may well have been built on the experience, exposure, understanding, acquaintance, revelation, observation and perception of things, people, happenings around him which was related to him in years of learning through formal as well as informal education that may be socially constructed. That being said, why then, should the work of an individual be protected by law when the creation of the work may be constructed from a prior knowledge of others?

Of course, copyright owners may ride on the wave of technological advancement by exploiting technological innovations and at the same time,  preclude any unauthorised abuse on their works. As such, many countries from the EU to North and South America have extended copyright protection to 70 years after the death of the author, in the name of protecting the author’s work. Is this justifiable or is it too long to kill the creation of innovation?

Too often, copyright law is viewed distortedly as a mechanism to get rid of the dreadful crime of piracy. The overall perception is that any enforcement of copyright law is a denial of access to the abundance of copyrighted works. Some perceive it as a major hindrance that strangulates creativity. On the other hand, the interests and concern of the rights owners have to be squared up to as well, striking a balance (which is never easy).

The 21st Century has witnessed the exponential growth of the internet making it extremely difficult, if not impossible, to visualise the probable uses and exploitations of copyrighted works. With the digitization of information, widespread electronic gadget ownership, the exponential growth of the internet and the development of communal software, it poses as an unprecedented challenge to the existing copyright law.

Perhaps, building a progressive-thinking set of objectives in any future copyright law amendment (or reform, which is undeniably paramount), striking a balance between the rights of the author and serving the interest of the public in circulating information and ideas, supporting creative and innovative work (rather than obstructing it) and not viewing the technology of internet as copying but as developing and constructing. All these, should sculpt the future bearing of the direction where copyright law is heading.

It is foreseeable that the road to reform and enforcement is long and winding. After all, not many dare to say that all the domestic software used and utilised (be it movies, songs, games, Operating System, etc) are genuine with licence and original.

Jacob Ting King Soon is a lecturer with the Faculty of Business and Design at Swinburne University of Technology Sarawak Campus. He is contactable at jting@swinburne.edu.my