The Copyright (Amendment) Bill 2021 (‘the Bill’) was recently passed by the Dewan Rakyat (House of Representatives) on 15 December 2021 and the Dewan Negara (Senate) on 22 December 2021. The Bill will be presented to the Yang di-Pertuan Agong for Royal Assent. The Bill will come into operation on a date to be determined by notification in the Gazette by the Minister of Domestic Trade and Consumer Affairs (‘Minister’) after being gazetted.
 
The key amendments, among others, to be made to the Copyright Act 1987 (‘the Act’) under the Bill are discussed below.
 
Accession to Marrakesh Treaty
 
New provisions have been introduced to give effect to Malaysia’s accession to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled 2013 (‘Marrakesh Treaty’). The Marrakesh Treaty is part of the body of international copyright treaties administered by the World Intellectual Property Office (WIPO) and allows for copyright exceptions to facilitate the creation of accessible versions of books and other copyrighted works for visually impaired persons.
 
These new provisions under Clauses 3 to 6 of the Bill mainly cover the introduction of various copyright infringement exemptions which cater for the making and distribution of an accessible format copy of any work for the exclusive use of a person with print disability. A “person with print disability” is defined to mean a person who is registered as a person with disability under the Persons with Disabilities Act 2008 who is (a) blind; (b) visually impaired or has a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person without such impairment or disability, and due to such impairment or disability is unable to read printed works to substantially the same degree as a person without such impairment or disability; or (c) unable to hold or manipulate a book or to focus or move the eyes, to the extent that would be normally acceptable to read due to physical disability.
 
Minor revisions to Voluntary Notification of Copyright system
 
The right of an author of a work to apply for a Voluntary Notification of Copyright under Section 26A of the Act will also be removed under Clause 7 of the Bill. This means that only the copyright owner of a work, an assignee of the copyright or a person to whom an interest in the copyright has been granted by licence will be entitled to apply for a Voluntary Notification of Copyright.
 
Enhancements to the Collective Management Organisations system
 
A number of amendments will enhance the provisions in relation to “licensing bodies” (i.e. bodies which represent and administer the rights for groups of copyright owners, typically granting licences to third parties and collecting royalties on behalf of the copyright owners), which under Clause 2 of the Bill will be renamed as “collective management organisations” (‘CMO’) to be in line with international practice.
 
These amendments include a new requirement whereby only companies limited by guarantee may apply to be declared as a CMO, in contrast to the previous position where any society or organisation could apply to be declared as a CMO. Applicants for declaration as a CMO will also be required to submit documents relating to the collection and distribution of the licensing scheme as part of the application process. The declaration of a body as a CMO will be limited to two years, subject to renewals. Previously, a body could be declared as a CMO indefinitely. A new Section 27M will also be introduced into the Act to allow the Controller of Copyright to issue guidelines relating to any matter on the declaration and operation of CMOs.
 
Introduction of new offences
 
The following new offences will be introduced, which appear aimed at tackling the latest trends of piracy on the internet, namely: 

Strengthening of enforcement powers
 
The Bill will amend the Act to confer new investigative powers and enforcement powers on the Assistant Controller, including the power to search for and seize any infringing copies of works which are prohibited from being imported into Malaysia, without the need for an application to be made by the copyright owner first, and the power to direct a copyright owner or any authorised person to make test purchases for the purpose of determining compliance with the Act.
 
Comments
 
The amendments under the Bill are certainly welcome. The accession to the Marrakesh Treaty is timely as there have been numerous calls over the years by interest groups for the Intellectual Property Corporation of Malaysia (‘MyIPO’) to accelerate the accession in order to empower the blind and visually impaired.
 
The improvements to the CMO system in Malaysia also appear to be a step in the right direction. It is hoped that MyIPO will make use of the new Section 27M sooner rather than later to issue guidelines on the operations of CMOs to provide greater clarity on how CMOs work not only to the copyright owners which the CMOs may represent but to members of the public who may wish to seek licences from CMOs as well.
 
Lastly, the introduction of new streaming and linking related offences will certainly be lauded by copyright owners as it brings Malaysia’s copyright enforcement regime up-to-date with the scourge of online piracy in a world where most content (infringing or otherwise) is often communicated and consumed via streaming.
 
Article by Gooi Yang Shuh (Senior Associate) of the Intellectual Property Practice of Skrine.