Affidavits for copyright ownership must comply with statutory requirements; failure to attach the work invalidates the claim, resulting in no standing to sue for infringement.

[1] This is a copyright infringement action brought by Ultra Dimension Sdn Bhd (the plaintiff) against the Director-General of the Malaysian Tourism Promotion Board (the first defendant).

[2] The plaintiff claims copyright of photograph with the reference No UD 3001 (the photograph). It is a photograph with images of the Kuala Lumpur Skyline with emphasis on sceneries and landmarks such as the KLCC and KL Towers.

[3] The plaintiff's case is that the first defendant infringed its copyright photograph when the latter published the Visit Malaysia Year Brochure 2007 (the brochure) incorporating the photograph.

[4] On such premises, the plaintiff seeks, inter alia, damages, delivery up, declaratory relief, and inquiry as to damages or an account of profits against the first defendant.

[5] At the outset, it must also be kept in mind that on 23 January 2009 this court struck out the writ of summons and the statement of claim against the Director-General of the Ministry of Tourism, Malaysia (the second defendant) and the Government of Malaysia (the third defendant) pursuant to O 18 r 19(1) of the Rules of the High 1980.

[6] Having said that, the critical issue for determination in this action is whether at all material and relevant times, the plaintiff is the owner of the copyright of the photograph. In this regard, the plaintiff avers in para 6 of the statement of claim as follows:

Pada kesemua masa yang material, Plaintif merupakan pemilik hakcipta yang sah bagi sebilangan gambar foto yang termasuk tetapi tidak terhad kepada gambar foto "UD 3001" yang dicetak di foto catalog Plaintif iaitu dikenali sebagai "Ultra Dimension Photo Catalog 3" (yang akan dikenali sebagai "Gambar foto tersebut"). Salinan Gambar foto tersebut akan dibentangkan di dalam perbicaraan kelak.

[7] Therefore, the pleaded case of the plaintiff is that it was the owner of the copyright of the photograph. To establish the same, the plaintiff relied on the affidavit affirmed by Mr Bok Tak Siew (PW1) dated 24 April 2009 and marked as exh. P2 made pursuant to s 42 of the Copyright Act 1987 (the Act). Section 42 of the Act provides:

42. Affidavit admissible in evidence.

(1) An affidavit or statutory declaration made before any person having authority to administer oath by or on behalf of any person claiming to be:

(a) The owner of the copyright in any works eligible for copyright under this Act stating that:

(i) At the time specified therein copyright subsisted in such work;

(ii) He or the person named therein is the owner of the copyright; and

(iii) A copy of the work annexed thereto is the true copy thereof;

shall be admissible in evidence in any proceedings under this Act and shall be prima facie evidence of the facts contained therein.

[8] As far as it is relevant to the present case, s 42 lays down a pre-condition for the admission of the affidavit, namely, a true copy of the work must be annexed to the affidavit. Which is why in the very context of the present case, it is obligatory for the plaintiff to annex the photograph to the affidavit, P2. It cannot be emphasized enough that this requirement is a condition precedent and mandatory; the court will require strict compliance.

[9] Coming back to the present case, for ease of reference, I will quote the relevant portions of the affidavit that is relevant to the current discussion.

Affidavit Pemilikan

Saya, Bok Tai S