Copyright is a form of intellectual property right that confers onto the creator of original works the exclusive rights to reproduce, publish, perform, communicate and adapt the works. These rights enable the creator to control the commercial exploitation of his works. Copyright protects literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished.
At present, there is no system for copyright registration in Malaysia, and copyright protection is conferred automatically onto a work upon its creation and reduction into material form. The duration of copyright protection for artistic, dramatic, literary, and musical works originating within Malaysia is the author’s lifetime plus 50 years.
Infringement of Copyright
Copyright is infringed by a person who, without permission, does any restricted act, and such acts include but are not limited to:
- copying the work, or any part of it
- issuing copies of the work to the public
- publishing the work
- performing, playing or showing the work in public
- broadcasting the work
- making an adaptation of the work, or doing any of these restricted acts in relation to an adaptation
- importing an infringing copy
- possessing an infringing copy
- subsequent dealings.
Definition of Research
“Research” means: ”diligent and systematic enquiry or investigation into a subject in order to discover facts or principles...” and
“(1.) The application of the mind to the acquisition of knowledge, as by reading, investigation, or reflection; (2.) the cultivation of a particular branch of learning, science, or art:.... (3.) a particular course of effort to acquire knowledge... (5.) a thorough examination and analysis of a particular subject...”
Using Copyright Material for Research or Study
As a result of Section13(2)(a) of the Malaysian Copyright Act 1987 (“CA”), where copyright material is used for the purpose of research or study, review, criticism or reporting of current events, there is no infringement of copyright, provided that such use is “fair”. Whether or not the use is fair will depend on all the circumstances, i.e. purpose of the use, nature of the work used, amount of the use and effect on the potential market/ original copyrighted material.
A reproduction may benefit from the fair dealing defense if it consists of a reproduction of the whole or a part of the work in a periodical publication or (in any other case) of not more than a reasonable proportion of the work or adaptation. The CA does not provide for what will constitute “reasonable proportion” and what will be considered “ reasonable” will depend on the facts and circumstances of the case.
||Unauthorised copying of commercially produced computer software is not permitted and applies regardless of whether the original copies of the software have been purchased on a medium such as a CD-ROM or DVD, or downloaded from the Web. Commercial rental of computer programs will not be an infringement where the program is not the essential object of the rental: Section 13(2)(p) CA.
|Copying of web
|All materials published on the Web (texts, images, audio files and video files) are subject to copyright and may not be disseminated.
||No permission is required. It is, however, common courtesy to contact the owner of a site that the user wishes to link to. The user should always acknowledge the source of the site that he links to and makes sure (i) that its full URL appears in the browser’s address box, and (ii) that the linked site appears in a separate window rather than within a frame that suggests the page may belong to the user’s own site – which could be interpreted as “passing off” the linked site as the user’s own. Terms and conditions of use are normally published at websites of large organizations and government websites, and they usually allow linking subject to due acknowledgement.
|Copying printed materials
Non-profit research or study – no infringement provided that the use is ‘fair”, taking into account the purpose and nature of the dealing; nature of the work or adaption; the possibility of obtaining the work or adaption within a reasonable time at an ordinary commercial price; the effect of the dealing upon the potential market or value of the work or adaptation; and the amount and substantiality of the part copied taken in relation to the whole work or adaptation. The copying must be for the sole purpose of the user’s own research or private study and the whole of the work must not be copied. Section13(2)(a)CA.
Criticism or Review – no infringement if it is for the purpose of criticism or review on condition that if such use is public, it is accompanied by an acknowledgement of the title of the work and its authorship. –Section13(2)(a)CA.
Quotations – It is not an infringement to use quotations from a published work is they are compatible with fair practice and their extent does not exceed that justified by the purpose, including quotations from newspapers articles and periodicals in the form of press summaries provided that mention is made of the source and the name of the author which appears on the work used – Section 32(2)(m) CA.
Newspaper Articles/ Periodicals/ Public Address – Articles published in the newspapers or periodicals on current topics may be reproduced by the press, broadcasted or shown to the public if such reproduction, broadcasting or showing has not been expressly reserved or is for informatory purposes, provided that the source is clearly indicated. – Section 13(2)(m), Section 13(2)(n), Section 13(2)(o) CA.
|Copying and communicating material from TV and radio
||CA allows educational institutions to record from radio and TV for educational purposes, and to copy and communicate those recordings. If a copy is sold, or used for a purpose other than education, it is deemed to be an infringing copy – Section 13(2)(gg), Section 13(2)(ggg) CA.
||The inclusion of a work in a broadcast, performance, showing or playing to the public, sound recording or film does not infringe the copyright in such a work if such inclusion is made by way of illustration for teaching purposes and is compatible with fair practice. There must be mention of the source and the name of the author which appears on the work used – Section 13(2)(f) CA.
||Where the public disclosure of copyrighted material is in the public interest, the court will refuse to enforce the statutory right of the copyright owner. Further, any use of any work by or under the direction/control of the Government, National Archives, National Library is not an infringement where such use is in the public interest and is compatible with fair practice, and no profit is derived therefrom – Section 13(2)(i)CA.
It should be noted that researchers will not be able to rely on the exception for fair dealing for research or study, if their purpose of publishing in an academic journal is not research or study.If the dissertation went no further than the researcher’s faculty committee and university’s library, this factor would likely work strongly in the researcher’s favor. Once published, the “purpose” of the dissertation may change, although not necessarily. Even a commercial or for-profit publication of the work may be overshadowed by the scholarly or educational nature of the content.
However, the researcher will not need a clearance for:
- anything copied for the purpose of criticism or review, provided there is acknowledgment of the work and its author (In Malaysia, it is enough to satisfy the requirement of sufficient acknowledgement if the name of the author and the title of the work is acknowledged);
- anything in which the copyright has expired (generally 50 years after the author’s death);or
- anything which is not an important part of the work it was copied from.
Copyright clearance can be obtained by writing to the owner of the copyright to seek permission, vide a simple and concise letter with a thorough description of the material to be used and a detailed explanation of how it will be used. The letter should include a place for the recipient to sign indicating permission is granted.It is imperative that an affirmative response is obtained as silence is not permission.
© 2010 by Seow & Associates. All Rights Reserved.
These guidelines are for information purposes only. With the exception of personal, noncommercial use or properly cited quotations as provided for under the Malaysian Copyright Act 1987, any reproduction, republishing, translation, sale or broadcast of any part of these guidelines without prior permission of Seow & Associates is prohibited. Any changes to or deletion of any part of these guidelines requires the prior permission of Seow & Associates.
Please note that these guidelines are not intended to take the place of legal consultation