The Plaintiff is entitled to 8% royalties under the terms of the 2005 Agreement and 2008 Novation Agreement but not 20% as claimed.

[1] The Plaintiff's claim against the Defendant, inter alia, is for the following reliefs:

(i) a 20% royalty payment from the sale of his album and song, whether in cassette, digital, or in whatever form/medium;

(ii) a declaration that he has performers' rights under s 16A of the Copyright Act 1987 (the " CA 1987");

(iii) a declaration that the Defendant has breach the Plaintiff's performers rights under s 36 of the CA 1987;

(iv) that the Plaintiff is entitled to the equitable remuneration under s 16B of the CA 1987 from the Defendant;

(v) alternatively, the Plaintiff seeks an account of profit from the sale of his album; and

(vi) injunction and damages.

The Salient Facts

[2] The Plaintiff is a singer, and has been active in the entertainment business since 1980's. The Plaintiff's singing career was based in Los Angeles, United States of America from 1986 to 2008, and thereafter, in Paris, France. Apart from his professional career as a singer in Los Angeles and Paris, the Plaintiff also returns home to Malaysia to do stage performance and recorded songs under his stage name in Malaysia, Dato Shake.

[3] The Defendant is a company incorporated in Malaysia and is involved in the recording business.

[4] The Plaintiff had entered into a contractual relationship with a recording company, Malaysian Recording Corporation Sdn Bhd ("MRC") in 1983 (the '1983 Contract') to produce an album "Kau Bungaku" (the 'Album'). The Plaintiff is the singer of the songs in the Album. The Plaintiff claims that under the 1983 Contract with MRC, the Plaintiff is entitled to 20% royalty from the sale of each Album and/or songs from the said Album.

[5] The producer of the Album is Ahmad Nawab, (from Nawab Production Sdn Bhd) a renowned song writer and producer at that time. Under cross examination, the Plaintiff has admitted that Ahmad Nawab owns the copyright in the said Album.

[6] The Plaintiff claims that the Album was selling like hot cakes at that time, reaching sales of 100,000 units. However despite the huge sales of the Album, in both LP and cassette, MRC did not make any payment to the Plaintiff. Therefore, the Plaintiff did not continue with his contract with MRC, which had since closed down.

[7] On 30 November 2005, Nawab Production Sdn Bhd, Nawab Publishing House Sdn Bhd and Music Valley Sdn Bhd entered into a sale and purchase agreement (the '2005 Agreement'), whereby Nawab Production will assign the rights in the Album to Music Valley on a 60% and 40% ownership. Under cl 3.1.2 of the 2005 Agreement, the Defendant is to pay 40% of the Net Profits to Nawab Production.

[8] Under cl 3.1.4 of the 2005 Agreement, it is the responsibility of the Vendor, Nawab Production to deal with Third Party liabilities, which would include the royalties due to the artists concerned, including the Plaintiff. Therefore, Nawab Production shall be solely responsible to pay to the artists, from the payments made by Music Valley Sdn Bhd under cls 3.1.1 and 3.1.2 (from the net profits of the sales). Clause 3.1.4 reads:

"3.1.4 Payment under cls 3.1.2 and 3.1.3 shall be deemed to include payment in respect of Third Party liabilities. The Vendors shall be solely responsible for such Third Party liabilities and shall have no further claim of reimbursement or compensation from the purchaser in respect of the same."

[9] Therefore, until the signing of the Novation Agreement on 22 December 2008, the payments made by Music Valley to Nawab Production includes the liability to pay the royalty on the sale of the Album, and the royalty payments (for the artists) were made directly to Nawab Production Sdn Bhd under cl 3.1.2 read with 3.1.4

[10] The Novation Agreement dated 22 December 2008 (the '2008 Novation Agre