The Copyright (Amendment) Act 2022
(‘the Amendment Act
’) came into operation on 18 March 2022, except for Sections 4, 5, 6 and 10 thereof. Two pieces of subsidiary legislation were issued and came into force at the same time as the Amendment Act, namely the Copyright (Collective Management Organization) Regulations 2022
[P.U.(A) 61/2022] (‘the CMO Regulations
’) and the Copyright (Voluntary Notification) (Amendment) Regulations 2022
[P.U.(A) 62/2022] (‘the Voluntary Notification Amendment Regulations’
), which amend the Copyright (Voluntary Notification) Regulations 2012 (‘the Voluntary Notification Regulations
This article will discuss the key changes introduced by the above-referred legislation to the copyright laws in Malaysia.
Accession to Marrakesh Treaty
The Amendment Act will introduce amendments to the Copyright Act 1987 (‘the Act
’) to lay the groundwork for 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 amendments are set out in Sections 4, 5, 6 and 10 of the Amendment Act and 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.
However, it is to be noted that the Sections of the Amendment Act relating to the Marrakesh Treaty have yet to come into operation and will only be enforced when the relevant subsidiary legislation have been issued. Based on a Public Consultation Paper issued by the Intellectual Property Corporation of Malaysia (‘MyIPO
’) in February 2022, a Copyright (Authorized Entity) Regulations 2022 and a Copyright Order (Authorised Entity) 2022 are being deliberated, which intend to, among others, prescribe the duties of “authorised entities” (i.e. non-profit institutions which provide training and education to persons with print disability) as well as clarify the rights of persons with print disability and their caregivers when making and issuing accessible formats of copyrighted works.
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 has been removed under Section 7 of the Amendment Act. Henceforth, only the owner or assignee of a copyrighted work will be entitled to apply for a Voluntary Notification of Copyright.
The Voluntary Notification Amendment Regulations have also made a number of procedural changes to the system for applying for a Voluntary Notification of Copyright. These include revising the application forms such that there is now only one single form, Form CR-1, used for notification of both original works and derivative works; whereas previously there was a separate Form CR-2 for notification of derivative works. The Schedules of filing fees in the Voluntary Notification Regulations have also been revised, with some fees being increased – e.g. the fees for the notification of a work is now RM200.00 instead of RM15.00.
A notable amendment under the Voluntary Notification Amendment Regulations is the removal of the requirement to file a statutory declaration together with an application for notification. This ought to simplify the voluntary notification process for copyright owners.
Further, an applicant may now notify the Controller of Copyright (‘the Controller
’) in writing if he/she intends to withdraw an application for notification without the need to submit any prescribed form.
Regulation 8 of the Voluntary Notification Regulations has also been amended whereby the Controller shall upon receiving notification of a copyrighted work, issue a certificate to the applicant stating that the notification has been entered into the Register of Copyright. Previously, only a letter would be issued and an Applicant was required to submit an application in Form CR-5 to request for a certificate.
Enhancements to the Collective Management Organisations system
A number of changes have been introduced to enhance the provisions relating 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 Section 2 of the Amendment Act, will now be renamed as “collective management organisations” (‘CMO
’) to be in line with international practice.
These changes 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 has been introduced into the Act to allow the Controller to issue guidelines relating to any matter on the declaration and operation of CMOs.
Meanwhile, the CMO Regulations introduce the application process for companies limited by guarantee who wish to apply to be declared as a CMO, as well as the fees payable. Its predecessor, the Copyright (Licensing Body) Regulations 2012, has been revoked.
Introduction of new offences
The following new offences, which appear to be aimed at tackling the latest trends of piracy on the internet, have been introduced:
Strengthening of enforcement powers
- providing or sharing access to an online location containing pirated works;
- committing or facilitating copyright infringement by manufacturing, importing or selling or letting for hire any streaming technology; and
- intentionally causing any evidence relating to the commission of an offence to disappear, or giving any information in respect of the offence which they know or believe to be false, with the intention of screening the offender from legal punishment.
The Amendment Act enhances the Act by conferring new investigative 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.
The amendments under the Amendment Act and the related subsidiary legislation are certainly welcome. The preparation of the groundwork for the Marrakesh Treaty is timely as there have been numerous calls over the years by interest groups for the Malaysian Government to accelerate the accession in order to empower the blind and visually impaired.
The amendments to the voluntary notification of copyright regime ought to be viewed favourably by copyright owners, as they simplify the application process and reduce the potential barriers to entry. Although the filing fees for notifying the copyright in a work have been increased, the removal of the statutory declaration requirement ought to reduce the overall costs associated with notifying a copyright.
The improvements to the CMO system 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. The days when young men with bleached blonde hair peddled pirated DVDs in night markets and coffee shops are long gone.
Article by Gooi Yang Shuh (Senior Associate) of the Intellectual Property Practice of Skrine.