18th March 2022
The Copyright (Amendment) Act 2022 introduces amendments to the Copyright Act 1987 (“Act”) which aims to strengthen provisions relating to the enforcement of copyright, especially in the digital environment, by introducing offences involving streaming technology in line with the development of online content streaming, and to comply with standards required by, amongst others, the Marrakesh Treaty To Facilitate Access To Published Works For Persons Who Are Blind, Visually Impaired Or Otherwise Print Disabled (“Marrakesh Treaty”).
The words “licensing body” have been replaced with “collective management organization” save for subsections 27A(3) and (4) of the Act, with Section 27A of the Act amended to include the requirements for a collective management organization. In addition, definitions for “authorized entity”, “person with print disability”, “collective management organization” and “accessible format copy” are now provided for in Section 3 of the Act.
Further, what is deemed to be an “accessible format copy” is set out in the new subsection (3a) of Section 25 of the Act which provides that where a work is modified into an accessible format copy, that modification shall not amount to a contravention of the author’s moral rights if the modification is necessary to make the work in an accessible format copy.
Ratification of the Marrakesh Treaty
The Act is amended to comply with standards required by the Marrakesh Treaty, thereby acknowledging the rights of visually impaired individuals to obtain works in accessible format copy. To that end, provisions relating to the import or making of copies of works into an accessible format for persons with a print disability have been included:-
i. to provide that an authorized entity or a person with print disability may make and issue copies of any work in accessible format copy. This clause seeks to make the importation, exportation for the purpose of distribution or making available of copies of work in accessible format copy by an authorized entity or a person with print disability a non-infringing act [subsection 13(2)];
ii. to provide that an indirect sound recording or a film of a performance made by a person with print disability, or an authorized entity or a non-profit making body or institution, solely for the purpose of assisting people who are hearing impaired or with print disability, does not constitute an infringement of copyright [subparagraph 16a(3)(c)(ii)]; and
iii. to provide that technological protection measures applied to a work may be circumvented for the sole purpose of making, issuing, distributing or making available copies of any work in an accessible format copy for the exclusive use of a person with print disability, if done by an authorized entity or a person with print disability [Section 36A].
The Act now contains provisions to strengthen enforcement of copyright law in the digital landscape by introducing offences involving streaming technology in line with the development and surge of online content streaming. The Act now explicitly recognizes streaming technology as an avenue to copyright infringement and defines penalties against offenders with the introduction of Section 43AA on offences relating to streaming technology.
Under Section 43AA, it would be an offence for a person to commit or facilitate the infringement of the copyright in any work by:-
(a) manufacturing a streaming technology for sale or hire;
(b) importing a streaming technology;
(c) selling or letting for hire, offering, exposing or advertising for sale or hire, possessing or distributing a streaming technology in the course of a business;
(d) distributing a streaming technology for purposes other than in the course of a business to such an extent as to affect prejudicially the owner of the copyright; or
(e) offering to the public or a person who manufactures, imports, sells or lets for hire, a streaming technology.
Law enforcement agencies are granted search-and-seizure authority for infringing copies of media content, and it will be an offence to share online access to copies of works to persons without authority to access the works [Section 41(1)(k)].
Upon conviction, offenders are liable to pay a fine between RM 10,000.00 to RM 200,000, up to 20 years in prison, or both. Offenders may also be given an opportunity to settle for “a sum of money not exceeding fifty per centum of the amount of the maximum fine to which the person would have been liable to if he had been convicted of the offence, within such time as may be specified in the written offer,” under Section 41A (2) of the Act; and be relieved of prosecution if the offender forfeits or returns the article connected with the offense.
Section 48 of Act sees the addition of a new paragraph (f) to make it an offence for any person who intentionally caused any evidence relating to the commission of an offence to disappear or who gives any information in respect of the offence which he knows or believes to be false, with the intention of screening the offender from legal punishment.
Enforcement of Copyright
The Act is also amended to expand enforcement powers to ensure more effective and efficient action against those who commit copyright infringement including:-
i. The Controller may issue guidelines relating to any matter on the declaration and operation of a collective management organization [Section 27M];
ii. The Assistant Controller, a police officer not below the rank of an Inspector or any officer of Customs may search for and seize any infringing copies which are prohibited from being imported into Malaysia, with or without an application made under subsection 39(1) of the Act [Section 39(6)];
iii. Further clarification on the procedure for the exercise of power of the Controller, Deputy Controller or any person authorized in writing by the Controller, with the written consent of the Public Prosecutor, to compound any offence which is prescribed to be a compoundable offence committed by any person under Act. The amount compounded shall not exceed fifty per centum of the amount of the maximum fine for that offence [Section 41A];
iv. The Assistant Controller is empowered to direct the copyright owner or any person authorized to act on behalf of the copyright owner to make test purchases for the purpose of determining the compliance with Act [Section 51B]; and
v. The Assistant Controller is now empowered to require any person that has any information or document, or is capable of giving any evidence, to produce such information, document or evidence relevant to the performance of the Assistant Controller’s powers and functions, and to provide for the procedures on the exercise of the powers by the Assistant Controller [Section 52B]
Removal of Author’s Rights for Voluntary Notifications
What is interesting is that the right of an author to lodge a voluntary notification of copyright is now removed from Section 26A of Act. This amendment may clarify the pre-existing confusion on the which party is the rightful rights holder as the owner has the moral right whereas the owner has the economic rights to a work protected by copyright.
Managing Partner and Head, IP
* This Alert is intended for general information of the clients of our Firm. It should not be regarded as legal professional advice. If you need advice based on specific facts, please feel free to contact us.