JUDGMENT

Manira Mohd Nor JC:

Introduction

[1] This is the defendants' application vide encl 48 filed pursuant to O 14A and/or O 33 r 2 of the Rules of 2012 seeking the determination of certain questions of law arising from the pleadings in this action.

[2] The plaintiff commenced this action alleging that twenty-three (23) photographs belonging to him were reproduced, uploaded and displayed on the website known as portal.myagro.moa.gov.my without his permission, thereby constituting copyright infringement under the Copyright Act 1987.

[3] The defendants deny liability and contend, inter alia, that the use of the photographs complained of falls within the statutory exception provided under s 13(2)(i) of the Copyright Act 1987.

[4] By the present application, the defendants contend that the real dispute between the parties turns on a pure question of statutory interpretation which can and ought to be determined without the necessity of a full trial.

[5] The defendants further contend that the determination of the questions raised in encl 48 would be capable of disposing of the entire action and avoiding unnecessary costs and delay.

[6] The plaintiff opposes the application on the basis that there remain disputed questions of fact which ought to be determined through oral evidence at trial.

Background Facts

[7] The plaintiff claims to be the owner of twenty-three (23) photographs depicting various species of fish.

[8] It is not disputed that the photographs were displayed on the website located at portal.myagro.moa.gov.my, a portal established pursuant to the Agriculture Intelligence System ("AIS") project under the Ministry of Agriculture and Agro-Based Industry.

[9] According to the defendants, the AIS project was approved as a national strategic initiative intended to establish an agricultural information database for public use and to enhance the Government's ability to develop and support the agricultural sector in Malaysia.

[10] The defendants further contend that the project was implemented through the Malaysian Agricultural Research and Development Institute ("MARDI"), which acted as the technical implementing agency under the Ministry. The defendants' position is that the portal was created for educational, informational and public interest purposes, was accessible free of charge and generated no profit whatsoever.

[11] The plaintiff does not dispute that the portal was intended to provide information and public education relating to agriculture and fisheries. However, the plaintiff maintains that the defendants were nevertheless required to obtain prior consent from the copyright owner and acknowledge the plaintiff as the author before reproducing or displaying the photographs.

[12] The defendants, on the other hand, contend that s 13(2)(i) of the Copyright Act 1987 does not impose either of those requirements and that the use complained of falls squarely within the statutory exception provided by Parliament.

Issues For Determination

[13] This Court is of the view that the present application may appropriately be determined under the following three principal issues:

Issue (i): Whether the questions raised by the defendants constitute pure questions of law capable of determination under O 14A and/or as preliminary issues under O 33 r 2 of the Rules of 2012.

Issue (ii): Whether s 13(2)(i) of the Copyright Act 1987 requires:

(a) prior consent from the copyright owner; and/or

(b) acknowledgement of authorship or ownership of copyright, before the statutory exception therein may apply.

Issue (iii) - Whether, upon the proper interpretation of s 13(2)(i) of the Copyright Act 1987, the plaintiff's action against the defendants is barred as a matter of law.

Analysis And Findings Of The Court

Issue (i) — Whether The Questions Raised By The Defendants Constitute Pure Questions Of Law Capable Of Determination Under Order 14A And/Or As Preliminary Issues Under Order 33 Rule 2 Of The Rules Of 2012

[14] Before this Court can consider the substantive qu