Abdul Malik Ishak J:

Copyright Infringement

The plaintiff's cause of action is for copyright infringement and arising out of that the plaintiff seeks by way of encl. 3 summary judgment under o. 14 of the Rules of the High Court 1980 ( "RHC ") against the defendant.

Copyright is a creature of statute. The Copyright Act 1987 exclusively governs the protection and enforcement of copyright in in Malaysia. The law is clear and undisputed. To succeed in a copyright infringement claim, the plaintiff has to establish that:

(i) copyright subsists in Malaysia in the works claimed;

(ii) the plaintiff owns the copyright; and

(iii) the defendant has infringed the plaintiff's copyright.

order 14 The Summary Judgment

The plaintiff is confident that it will succeed in its cause of action and so the plaintiff files the o. 14 application. It is now trite law that a plaintiff may obtain a judgment against the defendant on the ground that the defendant has no cause of action.

The plaintiff must establish its cause of action, that is, copyright infringement and that the defendant has not raised any defence to the plaintiff's claim of copyright infringement or any triable issue for that matter. once the plaintiff succeeds in making out a prima facie case, the onus then shifts to the defendant to show to this court as to why judgment should not be entered against it. one may ask, what then constitutes a triable issue or a bona fide defence? one may also ask, how does one assess whether there are triable issues? In Renofac Builder (M) Sdn Bhd v. Chase Perdana Bhd [2001] 5 CLJ 371, at p. 379, the court there remarked:

But a mere bare assertion by the defendant would not be sufficient. The duty of the court is quite onerous in the extreme. The court must be vigilant and must view in perspective at the whole scenario in order to ascertain whether the defendant has a real or what is commonly known as a bona fide defence.

It is obvious that what is being called for is this. That a critical evaluation of the facts presented by the parties through their pleadings and affidavits must be carried out and that mere bare assertions or denials must be rejected. In Bank Negara Malaysia v. Mohd Ismail Ali Johor & ors [1992] 1 CLJ 627; [1992] 1 CLJ (Rep) 14, the Supreme Court had this to say:

Under o. 14, when a fact is asserted by one party and denied by another, and such denial is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable in itself the Judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable.

And that such bare denials or assertions do not constitute evidence and they do not give rise to triable issues. In the words of the Court of Appeal in Chen Heng Ping & ors v. Intradagang Merchant Bankers (M) Bhd [1995] 3 CLJ 690:

When an application is made for summary judgment under o. 14 supported by an affidavit which goes to show that there is no defence, the defendants must show cause why leave to defend must be given. This means that the defendants must provide answers on oath which constitute evidence that they have a defence which is fit to be tried. Denials in a defence do not constitute evidence. They are challenges to the other side to show proof. In the present case the guarantors do not appear to have appreciated this. Their affidavits merely relied on the defence they pleaded, which consists of bare denials and points of law which they could not sustain.

Likewise where a party raises a material fact and this is not contradicted, that fact would be treated as unrebutted evidence in support of the party who adduces the fact (Ng Hee Thoong & Anor v. Public Bank Bhd [1995] 1 CLJ 609, CA).

The Copyright Act 1987

I will now proceed to the core of the matter and, for this purpose, I will examine the three ingredients alluded to earlier in quick succession.

(i) That Copyright Subsists In Malaysia In The W