26 November 2015

To copy or not to copy – the fine line of copyright

By Jacob Ting King Soon

It has happened to many of us. You are rushing through your slides for a major presentation the following day before a panel of senior management staff, and thought a few more pictures (or a video clip) and/or quotes will put the icing on the cake. So, frantically, you turn to the ever familiar and reliable Google search engine and start the search. You come across masses of pictures and quotes and finally say to yourself, “Voilà! The top guy is going to be impressed this time!”

Hold on. Before you can put the finishing touch to your slides, you have to first make sure whether downloading the material is a legitimate act. All of us have this tiny little voice we call conscience, ringing in our ear about taking things that do not belong to us and not acknowledging it. “Online theft” and “digital piracy” are familiar terms among internet users today. Just because it is easier to steal nowadays (a mere click of the mouse) doesn’t mean it is not stealing.

However, a dissenting and equally convincing voice may surface, contending that, “I’m only duplicating the work, not taking the copyrights. The work is still intact with the rights holder and it shouldn’t be taken as stealing”. Take a stolen car, for example. The car thief permanently deprives the owner of his vehicle whereas copying does not deprive the rights holder of his copyright nor his work. Thus, if trespassing, assaulting and driving through a red light are not stealing, then copyright infringement should be accorded the same status. To say that copying is stealing is like equating a dog to a kangaroo. Though both are animals, different descriptions are used to distinguish between the two. 

The Malaysia Copyright Act 1987 has this notion of “fair dealing” stamped under section 13(2)(a). It is an exception that allows anyone to use a copyright protected work without payment or permission of the rights holder. In other words, the exception provides for specified acts which the rights holder has no right to control. It is actually a balancing act between the exclusive right of the rights holder and the interests of public users. One may ask, what then, are the acts permitted under fair dealing?

Article 9(2) of the Berne Convention stipulates that reproduction of copyrighted works in certain special cases, provided that such production does not conflict with normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rights holder, are permissible. A similar (if not broader) provision in Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 1994 indicates that limitations or exceptions to exclusive rights of the rights holder should be confined to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

Since fair dealing is not defined in the 1987 Act, it would be practical to bear the above conditions in mind when determining the span of the statutory exceptions since Malaysia is a member of both the Berne Convention and TRIPS. Besides, it would be a matter of fact, its extent and the type of perception it generates to determine whether the usage of the work infringes copyright or not.

All laws and technicalities aside, in general, the aspects which are to be taken into consideration include the amount of the dealing, the purpose and character of the dealing, the effect of the dealing on the copyrighted work and the availability of the work in the market. To be more specific, the doing of any deeds in the context of non-profit research, private study, criticism, review of the reporting of current events does not infringe copyright in any literary, musical or artistic work, a film, a sound recording or a derivative work (examples of which may be translations, musical arrangements and cinematic adaptations).

That being said, prudence should be exercised when considering whether you can rely on the exceptions. Law can be complex at times and subject to discrete interpretations. Legal advice should be sought to avoid any avoidable pitfalls as well as any possible legal ramifications.

Copyright law and those who are against it is analogous to that voices of angels and demons, just that it is still inconclusive as to which takes after the angels, and which the demons. The reality is that both sides of the ambit have underlying blemish and finding a middle ground that actually works is an ethical, semantical as well as technological minefield. A severe back and forth swing on both arguments is expected in the foreseeable future.

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