COPYRIGHT ACT 1987
(1) This Act may be cited as the Copyright Act 1987 and shall come into force on such date as the Minister may, by notification in the Gazette , appoint and different dates may be appointed for the coming into force of different provisions of this Act.
(2) This Act shall apply throughout Malaysia.
(1) Subject to this section and section 59A and regulations made under section 59A, this Act shall apply in relation to works made before the commencement of this Act as it applies in relation to works made after the commencement of this Act:
Provided that this section shall not be construed as reviving any copyrights which had expired before the commencement of this Act.
(2) Where only by virtue of subsection (1) copyrights subsist in works that were made before the commencement of this Act, nothing done before the commencement of this Act shall be taken to constitute an infringement of those copyrights.
(3) For the purposes of this section, a work the making of which extended over a period of time shall not be deemed to have been made before the commencement of this Act unless the making of the work was completed before such commencement.
In this Act, unless the context otherwise requires:
"adaptation" includes any of the following, that is to say:
(a) in relation to a literary work, a version of the work (whether in its original language or a different language) in which it is converted into a dramatic work;
(b) in relation to a dramatic work, a version of the work (whether in its original language or a different language) in which it is converted into a literary work;
(c) in relation to a literary or dramatic work:
(i) a translation of the work;
(ii) a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book or in a newspaper, magazine or similar periodical;
(d) in relation to a literary work in the form of a computer program,
4 PART I PRELIMINARY-4. Publication.
(1) Subject to this section, for the purposes of this Act:
(a) a literary, musical or artistic work, or an edition of such a work, shall be deemed to have been published only if a copy or copies of the work have been made available with the consent of the author or of any person lawfully claiming under the author in a manner sufficient to satisfy the reasonable requirements of the public, whether by sale or otherwise;
(b) a film shall be deemed to have been published only if a copy or copies of the film have been sold, let on hire, or offered or exposed for sale or hire, with the consent of the author or of any person lawfully claiming under the author in a manner sufficient to satisfy the reasonable requirements of the public;
(c) a sound recording shall be deemed to have been published only if a copy or copies of such sound recording have been made available with the consent of the autho
5 PART I PRELIMINARY-5. Controller, Deputy Controllers and Assistant Controllers.
(1) The Director General of the Corporation shall be the Controller of Copyright.
(2) The Minister may appoint, on such terms and conditions as the Minister may determine, from amongst any public officers and persons in the employment of the Corporation, such number of Deputy Controllers of Copyright, Assistant Controllers of Copyright and other officers as may be necessary for the proper administration of this Act, and may revoke the appointment of any person so appointed or deemed to have been so appointed under subsection (3).
[(2) Am. by Act A1420 of the year 2012]
(3) The persons holding office as Deputy Controllers, Assistant Controllers and other officers under this Act before the appointed date shall on the appointed date be deemed to have been appointed as Deputy Controllers, Assistant Controllers and such other officers under subsection (2).
(4) Subject to the general direction and contro
6 PART II GENERAL PROVISIONS-6. No copyright except by virtue of this Act.
Subject to this Act, no copyright shall subsist otherwise than by virtue of this Act.
7 PART II GENERAL PROVISIONS-7. Works eligible for copyright.
(1) Subject to this section, the following works shall be eligible for copyright:
(a) literary works;
(b) musical works;
(c) artistic works;
(d) films;
(e) sound recordings; and
(f) broadcasts.
(2) Works shall be protected irrespective of their quality and the purpose for which they were created.
(2A) Copyright protection shall not extend to any idea, procedure, method of operation or mathematical concept as such.
(3) A literary, musical or artistic work shall not be eligible for copyright unless:
(a) sufficient effort has been expended to make the work original in character; and
(b) the work has been written down, recorded or otherwise reduced to material form.
(4) A work shall not be ineligible for copyright by reason only that the
8 PART II GENERAL PROVISIONS-8. Derivative works.
(1) The following derivative works are protected as original works:
(a) translations, adaptations, arrangements and other transformations of works eligible for copyright; and
(b) collections of works eligible for copyright, or compilation of mere data whether in machine readable or other form, which constitute intellectual creation by reason of the selection and arrangement of their contents.
[(1)(b) Subs. by Act A1420 of the year 2012]
(2) Protection of works referred to in subsection (1) shall be without prejudice to any protection of the existing works used.
9 PART II GENERAL PROVISIONS-9. Copyright in published editions of works.
(1) Copyright shall subsist, subject to the provisions of this Act, in every published edition of any one or more literary, artistic or musical work in the case of which either:
(a) the first publication of the edition took place in Malaysia; or
(b) the publisher of the edition was a qualified person at the date of the first publication thereof:
Provided that this subsection does not apply to an edition which reproduces the typographical arrangement of a previous edition of the same work or works.
(2) Subject to the provisions of this Act, the publisher of an edition shall be entitled to any copyright subsisting in the edition by virtue of this section.
(3) Subject to the provisions of this Act, the act restricted by the copyright subsisting by virtue of this section in an edition is the making of a reproduction of the typographical arrangement of the edition.
10 PART II GENERAL PROVISIONS-10. Qualification for protection.
(1) Copyright shall subsist in every work eligible for copyright of which the author or in the case of a work of joint authorship, any of the authors is, at the time when the work is made, a qualified person.
(2) Copyright shall also subsist in every work which is eligible for copyright and which:
(a) being a literary, musical or artistic work or film or sound recording is first published in Malaysia;
(b) being a work of architecture is erected in Malaysia or being any other artistic work is incorporated in a building located in Malaysia;
(c) being a broadcast is transmitted from Malaysia.
(3) Notwithstanding subsections (1) and (2) , copyright shall subsist, subject to this Act, in every work eligible for copyright if the work is made in Malaysia.
10A PART II GENERAL PROVISIONS-10A. Qualification for protection of performer.
Performers' right shall subsist in every live performances of which the performer is:
(a) a citizen or permanent resident of Malaysia; or
(b) not a citizen or permanent resident of Malaysia but whose performance:
(i) takes place in Malaysia;
(ii) is incorporated in sound recordings that are protected under this Act; or
(ii) has not been fixed in a sound recording but is included in a broadcast qualifying for protection under this Act.
[Ins. by Act A1082]
11 PART II GENERAL PROVISIONS-11. Copyright in works of Government, Government organizations and international bodies.
(1) Copyright shall subsist in every work which is eligible for copyright and which is made by or under the direction or control of the Government and such Government organizations or international bodies as the Minister may by order prescribe.
(2) Section 10 shall not be taken to confer copyright on works to which this section applies.
12 PART II GENERAL PROVISIONS-12. Administration of Government copyright.
Where the copyright in any work is vested in the Government, the Ministry or Department concerned with the copyright shall be responsible for the administration and control of that copyright on behalf of the Government:
Provided that the Ministry or Department concerned may authorize the Director of National Archives to administer and control that copyright on behalf of the Government.
13 PART III NATURE AND DURATION OF COPYRIGHT-13. Nature of copyright in literary, musical or artistic works, films and sound recordings.
(1) Copyright in a literary, musical or artistic work, a film, or a sound recording or a derivative work shall be the exclusive right to control in Malaysia:
(a) the reproduction in any material form;
(aa) the communication to the public;
(b) the performance, showing or playing to the public;
(c) [Deleted by Act A994] ;
(d) [Deleted by Act A994] ;
(e) the distribution of copies to the public by sale or other transfer of ownership; and
(f) the commercial rental to the public,
of the whole work or a substantial part thereof, either in its original or derivative form provided that:
(A) the exclusive right to control the distribution of copies refer only to the act of putting into circulation copies not previously put into circulation in Malaysia and not to any subsequent distribution o
13A PART III NATURE AND DURATION OF COPYRIGHT-13A. Design documents and models.
( 1) It shall not be an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface:
[Ins. by A952]
(a) to make an article to the design, or to copy or to reproduce an article made to the design; or
(b) to issue to the public, or include in a film, broadcast or cable programme service, anything the making of which was, by virtue of paragraph (a), not an infringement of that copyright.
(2) In this section:
"design" means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article, other than surface decoration; and
"design document" means any record of a design, whether in the form of a drawing, a written des 13B PART III NATURE AND DURATION OF COPYRIGHT-13B. Effect of exploitation of design derived from artistic work.
(1) This section applies where an artistic work has been exploited, by or with the licence of the copyright owner, by:
(a) making, by an industrial process or means, articles falling to be treated for the purposes of this Act as copies of the work; and
[(1)(a) Am. by Act A1420 of the year 2012]
(b) marketing such articles in Malaysia or elsewhere.
(2) After the end of the period of twenty-five years from the end of the calendar year in which such articles are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.
[(2) Am. by Act A1420 of the year 2012]
(3) Where only part of an artistic work is exploited as mentioned in subsection (
13C PART III NATURE AND DURATION OF COPYRIGHT-13C. [Deleted by Act A1420 of the year 2012] .
14 PART III NATURE AND DURATION OF COPYRIGHT-14. Nature of copyright in works of architecture.
Copyright in a work of architecture shall include the exclusive right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original:
Provided that the copyright in any such work shall not include the right to control the reconstruction or rehabilitation in the same style as the original, of a building to which that copyright relates.
15 PART III NATURE AND DURATION OF COPYRIGHT-15. Nature of copyright in broadcasts.
(1) Copyright in a broadcast shall be the exclusive right to control in Malaysia the recording, the reproduction, and the rebroadcasting, of the whole or a substantial part of the broadcast, and the performance, showing or playing to the public in a place where an admission fee is charged of the whole or a substantial part of a television broadcast either in its original form or in any way recognizably derived from the original.
(2) Notwithstanding subsection (1), paragraphs 13(2) (a) , (g) , (gg) , (ggg) , (gggg) , (h) and (o) shall also apply to the copyright in a broadcast.
[Am. by P.U.(A) 508/2010]
(3) The copyright in a television broadcast shall include the right to control the taking of still photographs from such broadcasts.
16 PART III NATURE AND DURATION OF COPYRIGHT-16. Broadcasting of works incorporated in films.
(1) Where the owner of the copyright in any literary, musical or artistic work authorizes a person to incorporate the work in a film and a broadcasting service broadcasts the film in the absence of any express agreement to the contrary between such owner and person, it shall be deemed that the owner of the copyright authorized the broadcast.
(2) Notwithstanding subsection (1), where a broadcasting service broadcasts a film in which a literary, musical or artistic work is incorporated, the owner of the right to broadcast the literary, musical or artistic work shall be entitled to receive fair compensation from the broadcasting service.
16A PART III NATURE AND DURATION OF COPYRIGHT-16A. Nature of performers' right.
(1) Performers' right shall be the exclusive right to control in Malaysia-
(a) the communication to the public of a performance, except where the performance used in such communication is itself a live broadcast performance;
(b) the fixation of an unfixed performance;
(c) the reproduction of the fixation of a performance;
(d) the first distribution to the public of a fixation of a performance, or copies thereof, through sale or other transfer of ownership; and
(e) the commercial rental to the public of a fixation of a performance, or copies thereof, irrespective of the ownership of the copy rented.
(2) A performer shall cease to have the exclusive right under paragraph (1) (b) once he has given consent to the fixation of his performance.
(3) Notwithstanding subsection (1), the right to control under that subsection doe
16B PART III NATURE AND DURATION OF COPYRIGHT-16B. Equitable remuneration.
(1) Where a sound recording is published for commercial purposes or a reproduction of such recording is publicly performed or used directly for broadcast or other communication to the public, an equitable remuneration for the performance shall be payable to the performer by the user of the sound recording.
(2) Remuneration shall not be considered inequitable merely because it was paid by way of single payment.
(2) Am. by Act A1420 of the year 2012]
(3) Nothing in this section shall be construed so as to deprive a performer of the right to agree by contract on terms and conditions more favourable for him in respect of his live performance.
(3A) In the absence of a contract on the equitable remuneration payable under subsection (1), the performer may apply to the Tribunal to determine the amount payable as equitable remuneration.
(3B) The performer may also apply to the Tribunal:
17 PART III NATURE AND DURATION OF COPYRIGHT-17. Duration of copyright in literary, musical or artistic works.
(1) Except as otherwise provided in this Act, copyright in any literary, musical or artistic work which subsists in such work under this Act shall subsist during the life of the author and and shall continue to subsist until the expiry of a period of fifty years after his death.
[Am. by Act A1082]
(2) Where a literary, musical or artistic work had not been published before the death of the author, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the work was first published.
[Am. by Act A994; Act A1082]
(3) Where a literary, musical or artistic work is published anonymously or under a pseudonym, copyright which subsists in such work under this Act shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the work was f
18 PART III NATURE AND DURATION OF COPYRIGHT-18. Duration of copyright in published editions.
Copyright which subsists in a published edition under this Act shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the edition was first published.
[Am. by Act A1082]
19 PART III NATURE AND DURATION OF COPYRIGHT-19. Duration of copyright in sound recording.
Copyright which subsists in a sound recording under this Act shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the recording was first published or, if the sound recording has not been published, from the beginning of the calendar year following the year of fixation.
[Subs. by Act A1082]
20 PART III NATURE AND DURATION OF COPYRIGHT-20. Duration of copyright in broadcasts.
Copyright which subsists in a broadcast under this Act shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the broadcast was first made.
[Am. by Act A1082]
21 PART III NATURE AND DURATION OF COPYRIGHT-21. [Deleted by Act A994] .
[Deleted by Act A994].
22 PART III NATURE AND DURATION OF COPYRIGHT-22. Duration of copyright in films.
Copyright which subsists in a film under this Act shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the film was first published.
[Subs. by Act A1082; Am. by Act A1139]
23 PART III NATURE AND DURATION OF COPYRIGHT-23. Duration of copyright in works of Government, Government organizations and international bodies.
Copyright which subsists in works of the Government, Government organizations and international bodies under this Act shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the work was first published.
[Am. Act A1082. Text prior to A1082 amendment read - Copyright in works of the Government, Government organizations and international bodies shall subsist until fifty years from the beginning of the calendar year next following the year in which the work was first published.]
23A PART III NATURE AND DURATION OF COPYRIGHT-23A. Duration of performers' rights.
Rights in a performance which subsists under this Act shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the performance was given or was fixed in a sound recording.
[Am. by Act A1420 of the year 2012]
23B PART III NATURE AND DURATION OF COPYRIGHT-23B. Duration of an equitable remuneration.
The right to equitable remuneration shall subsist from the time the sound recording is published until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year of publication or, if the sound recording has not been published, from the time of fixation of the sound recording until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year of the fixation.
[Ins. by Act A1082]
24 PART III NATURE AND DURATION OF COPYRIGHT-24. [Deleted by Act A775] .
25 PART III NATURE AND DURATION OF COPYRIGHT-25. Moral rights.
(1) For the purposes of this section, the word "name" includes initials or monograms.
(2) Subject to this section, where copyright subsists in a work, no person may, without the consent of the author, or, after the author's death, of his personal representative, do or authorize the doing of any of the following acts:
(a) the presentation of the work, by any means whatsoever without identifying the author or, under a name other than that of the author; and
(b) the distortion, mutilation or other modification of the work if the distortion, mutilation or modification:
(i) significantly alters the work; and
(ii) is such that it might reasonably be regarded as adversely affecting the author's honour or reputation.
(3) Where a person is authorized, whether by virtue of an assignment, a licence or otherwise, to publish, reproduce, perform in
25A PART III NATURE AND DURATION OF COPYRIGHT-25A. Moral right of a performer.
(1) A performer shall, as regards his performance or performance fixed in phonogram, have the right:
(a) to claim to be identified as the performer of his performance, except where omission is dictated by the manner of the use of the performance; and
(b) to object to any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.
[(1) Am. by Act A1420 of the year 2012]
(2) The rights granted to a performer under subsection (1) shall, after his death, be maintained and shall be exercisable by the persons or institutions authorised by the performer.
(3) For the purpose of this section, "phonogram" means the fixation of the sounds of a performance or of other sounds or of a representation of the sounds, other than in the form of a fixation incorporated in a film or other audiovisual work.
26 PART IV OWNERSHIP AND ASSIGNMENT OF COPYRIGHT-26. First ownership of copyright.
(1) Copyright conferred by section 10 shall vest initially in the author.
(2) Notwithstanding subsection (6) of section 27, where a work :
(a) is commissioned by a person who is not the author's employer under a contract of service or apprenticeship; or
(b) not having been so commissioned, is made in the course of the author's employment,
the copyright shall be deemed to be transferred to the person who commissioned the work or the author's employer, subject to any agreement between the parties excluding or limiting such transfer.
(3) Copyright conferred by section 11 shall vest initially in the Government, Government organization or international body and not in the author.
(4) Subject to subsection (3) :
(a) the name on a work purporting to be the name of its author shall be considered as such, unless the contrary is proved;
26A PART IV OWNERSHIP AND ASSIGNMENT OF COPYRIGHT-26A. Voluntary notification of copyright.
(1) A notification of copyright in any work may be made to the Controller by or on behalf of the owner of the copyright in the workor an assignee of the copyright.
[Am. by Act A1645:s7]
(2) A notification of copyright shall not be entertained unless the prescribed fee has been paid to the Controller.
(3) A notification of copyright shall contain the following particulars:
(a) the name, address and nationality of the owner of the copyright;
(b) ( Deleted by Act A1645:s7 )
(c) the category of the work;
(d) the title of the work;
(e) the name of the author and, if the author is dead, the date of the author's death, if known;
(f) in the case of a published work, the date and place of the first publication; and
(g) any other information as the Minister may determine.
26B PART IV OWNERSHIP AND ASSIGNMENT OF COPYRIGHT-26B. Register of Copyright.
(1) The Controller shall keep and maintain a register called the
(2) The Register of Copyright shall contain all such particulars relating to a copyright in a work as notified to the Controller under section 26A.
(3) The Register of Copyright shall be kept in such form and on such medium as the Minister may determine.
(4) Any person may examine the Register of Copyright at such times and upon such conditions as may be determined by the Minister, and may obtain certified extracts from the Register on payment of the prescribed fee.
(5) The Controller or Deputy Controller may certify true extracts from the Register of Copyright which shall be prima facie evidence of the particulars entered therein and such certified extracts of the Register of Copyright shall be admissible in all courts.
[Ins. by Act A1420 of the year 2012]
26C PART IV OWNERSHIP AND ASSIGNMENT OF COPYRIGHT-26C. Amendments to the Register of Copyright.
(1) The Controller may correct any clerical error in any entry made in the Register of Copyright.
(2) Any interested person may apply to the court for an order to:
(a) correct any error in an entry in the Register; or
(b) expunge or amend any entry wrongly made in or remaining in the Register,
and any correction, expungement or amendment made under this section shall be effective from such date as the court may order.
(3) For the purpose of this section, "court" means the appropriate High Court in Malaysia.
[ Ins. by Act A1420 of the year 2012]
27 PART IV OWNERSHIP AND ASSIGNMENT OF COPYRIGHT-27. Assignment, licences and testamentary disposition.
(1) Subject to this section, copyright shall be transferable by assignment, testamentary disposition, or by operation of law, as movable property.
(2) An assignment or testamentary disposition of copyright may be limited so as to apply only to some of the acts which the owner of the copyright has the exclusive right to control, or to only part of the period of the copyright, or to a specified country or other geographical area.
(3) No assignment of copyright and no licence to do an act the doing of which is controlled by copyright shall have effect unless it is in writing.
(4) An assignment or licence granted by one copyright owner shall have effect as if the assignment or licence is also granted by his co-owner or co-owners, and subject to any agreement between the co-owners, fees received by any of the owners shall be divided equally between all the co-owners.
(5) For the purposes of this section, persons shall be deem
27A PART IVA COPYRIGHT LICENSING-27A. collective management organization.
(1) A body corporate which intends to operate as a collective management organization for copyright owners, authors or performers shall apply to the Controller to be declared as a
[Am. by Act A1645:s8]
(2) An application for a declaration shall be made in such form and on such medium as the Controller may determine which shall contain the following information:
(a) the applicant's constituent document, which has as its main object, or one of its main objects, the negotiation or granting, either as owner or prospective owner of copyright or as agent for him, of copyright licences, and whose objects also include the granting of licences covering works of more than one author;
(b) the list of copyright owners , authors or performers or their agents who are members of the applicant; and
[Am. by Act A1645:s8]
(c) the applica
27AA PART IVA COPYRIGHT LICENSING-27AA. Licensing schemes to which sections 27B to 27G apply.
(1) Sections 27B to 27G shall apply to licensing schemes operated by licensing bodies in relation to the copyright in any work, so far as they relate to licences for:
(a) reproducing the work;
(b) performing, showing or playing the work in public;
(c) communicating the work to the public;
(d) rebroadcasting the work;
(e) the commercial rental of the work to the public; or
(f) making adaptation of the work.
(2) For the purposes of sections 27B to 27G, "licensing scheme" means any of the licensing schemes described in subsection (1).
[Ins. by Act A1420 of the year 2012]
27B PART IVA COPYRIGHT LICENSING-27B. Reference of proposed licensing scheme to Tribunal.
(1) The terms of a licensing scheme proposed to be operated by a collective management organization may be referred to the Tribunal by any organization claiming to be representative of persons claiming that they require licences in cases of a description to which the licensing scheme would apply, either generally or in relation to any description of case.
(2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.
(3) If the Tribunal decides to entertain the reference, it shall consider the matter referred and make such order, either confirming or varying the proposed licensing scheme, either generally or so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
(4) An order under subsection (3) may be made so as to be in force indefinitely or for such per
27C PART IVA COPYRIGHT LICENSING-27C. Reference of licensing scheme to Tribunal.
(1) If while a licensing scheme is in operation, a dispute arises between the operator of the licensing scheme and:
(a) a person claiming that he requires a licence in a case of a description to which the licensing scheme applies;
(b) an organization claiming to be representative of such persons; or
[(a) & (b) Am. by Act A1420 of the year 2012]
(c) a person who has been granted a licence to which the licensing scheme applies,
[(c) Ins. by Act A1420 of the year 2012]
that operator, person or organization may refer the licensing scheme to the Tribunal in so far as it relates to cases of that description.
[Am. by Act A1420 of the year 2012]
(2) A licensing scheme which has been referred to the Tribunal under this section shall remain in operation until proceedings on
27D PART IVA COPYRIGHT LICENSING-27D. Further reference of licensing scheme to Tribunal.
(1) Where the Tribunal has on a previous reference of a licensing scheme under section 27B or 27C or under this section made an order with respect to the licensing scheme, then, while the order remains in force:
(a) the operator of the licensing scheme;
(b) a person claiming that he requires a licence in a case of the description to which the order applies;
(c) an organization claiming to be representative of such persons; or
[(1)(b) Am. by Act A1420 of the year 2012]
(d) a person who has been granted a licence to which the licensing scheme applies,
[(1)(d) Ins. by Act A1420 of the year 2012]
may again refer the licensing scheme to the Tribunal so far as it relates to cases of that description.
(2) A licensing scheme shall not, except with the special leave of the Tribunal, be again
27E PART IVA COPYRIGHT LICENSING-27E. Application for grant of licence in connection with licensing scheme.
(1) A person who claims, in a case covered by a licensing scheme, that the operator of the licensing scheme:
(a) has refused to grant him or procure the grant to him of a licence in accordance with the licensing scheme; or
(b) has failed to grant him or procure the grant to him of a licence in accordance with the licensing scheme within a reasonable time after being asked,
may apply to the Tribunal for an order under subsection (4).
(2) A person who claims, in a case excluded from a licensing scheme, that the operator of the licensing scheme either:
(a) has refused to grant him a licence or procure the grant to him of a licence, or has failed to do so within a reasonable time of being asked, and that in the circumstances it is unreasonable that a licence should not be granted; or
(b) proposes terms for a licence which are unreason
27F PART IVA COPYRIGHT LICENSING-27F. Application for review of order as to entitlement to licence.
(1) Where the Tribunal has made an order under section 27E that a person is entitled to a licence under a licensing scheme, the operator of the licensing scheme or the original applicant may apply to the Tribunal to review its order.
(2) An application shall not be made, except with the special leave of the Tribunal,:
(a) within twelve months from the date of the order, or of the decision on a previous application under this section, or
(b) if the order was made so as to be in force for fifteen months or less, or as a result of the decision on a previous application under this section which is due to expire within fifteen months of that decision, until the last three months before the expiry of the older.
(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable having regard to the terms applicable in accordan
27G PART IVA COPYRIGHT LICENSING-27G. Effect of order of Tribunal as to licensing scheme.
(1) A licensing scheme which has been confirmed or varied by the Tribunal under section 27B, 27C or 27D shall be in force or, as the case may be, remain in operation, so far as it relates to the description of case in respect of which the order was made, so long as the order remains in force.
(2) While the order is in force a person. who in a case of a class to which the order applies, shall:
(a) pay to the operator of the licensing scheme any charges payable under the licensing scheme in respect of a licence covering the case in question or, if the amount cannot be ascertained, give an undertaking to the operator to pay the charges when ascertained; and
(b) comply with the other terms applicable to such a licence under the licensing scheme; and
(c) be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted b
27H PART IVA COPYRIGHT LICENSING-27H. Licences to which sections 27I to 27L apply.
Sections 27I to 27L shall apply to the following descriptions of licence granted by a collective management organization otherwise than in pursuance of a licensing scheme:
(a) licences relating to the copyright in literary or musical works which cover works of more than one author, so far as they authorize:
(i) reproducing the work;
(ii) performing, showing or playing the work in public;
(iii) communicating the work to the public; or
(iv) distributing the work to the public; and
(b) licences relating to the copyright in any other works, so far as they authorize:
(i) making copies of the work;
(ii) performing, showing or playing the work in public;
(iii) communicating the work to the public; or
[Am. Act A1082. Text prior to amendment by A1082 read - (iii) broadcasting or communicating th
27I PART IVA COPYRIGHT LICENSING-27I. Reference to Tribunal of terms of proposed licence.
(1) The terms on which a collective management organization proposes to grant a licence may be referred to the Tribunal by the prospective licensee.
(2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.
(3) If the Tribunal decides to entertain the reference, it shall consider the terms of the proposed licence and make such order, either confirming or varying the terms, as the Tribunal may determine to be reasonable in the circumstances.
(4) An order under subsection (3) may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
27J PART IVA COPYRIGHT LICENSING-27J. Reference to Tribunal of expiring licence.
(1) A licensee under a licence which is due to expire, by effluxion of time or as a result of notice given by the collective management organization, may apply to the Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force.
(2) Such an application may not be made until the last three months before the licence is due to expire.
(3) A licence in respect of which a reference has been made to the Tribunal under this section shall remain in operation until proceedings on the reference are concluded.
(4) If the Tribunal finds the application to be well-founded, it shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the Tribunal may determine to be reasonable in the circumstances.
(5) An order under subsection (4) may be made so as to be in force indefinitely or for such period as the Tribunal may de
27K PART IVA COPYRIGHT LICENSING-27K. Application for review of order as to licence.
(1) Where the Tribunal has made an order under section 27I or 27I, the collective management organization or the person entitled to the benefit of the order may apply to the Tribunal to review its order.
(2) An application shall not be made, except with the special leave of the Tribunal,:
(a) within twelve months from the date of the order, or of the decision on a previous application under this section; or
(b) if the order was made so as to be in force for fifteen months or less, or as a result of the decision on a previous application under this section which is due to expire within fifteen months of that decision, until the last three months before the expiry of the order.
(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances.
27L PART IVA COPYRIGHT LICENSING-27L. Effect of order of Tribunal as to licence.
(1) Where the Tribunal has made an order under section 27I or 27J and the order remains in force, the person entitled to the benefit of the order shall, if he:
(a) pays to the collective management organization any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to the operator to pay the charges when ascertained; and
(b) complies with the other terms specified in the order,
be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.
(2) The benefit of the order may be assigned:
(a) in the case of an order under section 27I, if assignment is not prohibited under the terms of the Tribunal's order; and
(b) in the case of an o
27M PART IVA COPYRIGHT LICENSING-27M. Guidelines.
(1) The Controller may issue guidelines on any matter relating to the declaration and operation of a collective management organization provided under this Part.
(2) The person to whom the guidelines referred to in subsection (1) applies shall comply and give effect to such guidelines.
(3) The Controller may revoke, vary, revise or amend the whole or any part of any guidelines issued under this section.
[Ins. by Act A1645:s9]
28 PART V COPYRIGHT TRIBUNAL-28. Establishment of Copyright Tribunal.
(1) There shall be established a tribunal to be known as the Copyright Tribunal.
[(1) Am. by Act A1420 of the year 2012]
(2) The Tribunal shall have the power to decide on the following matters:
(a) an application by a performer under section 16B;
(b) any reference by an operator, a person or an organization referred to in Part IVA;
(c) an appeal by a collective management organization under subsection 27A(8); and
(d) the exercise of the power under section 31.
[(2) Ins. by Act A1420 of the year 2012]
29 PART V COPYRIGHT TRIBUNAL-29. Appointment of Chairman and members of Tribunal.
(1) The Tribunal shall consist of the following persons who shall be appointed by the Minister:
(a) a Chairman;
(b) five Deputy Chairman; and
[(1)(b) Am. by Act A1420 of the year 2012]
(c) twelve persons whom the Minister considers fit and proper to be members of the Tribunal.
[(1)(c) Am. by Act A1420 of the year 2012]
(2) The Chairman, Deputy Chairmen, and members of the Tribunal shall hold office for a period not exceeding three years, after which they shall be eligible to be reappointed.
(3) The Minister shall determine the remuneration and other terms and conditions of the appointment of the Chairman, Deputy Chairmen, and members of the Tribunal.
[(2) & (3) Am. by Act A1420 of the year 2012]
(4) The Minister may declare the office of any member of the T
30 PART V COPYRIGHT TRIBUNAL-30. Proceedings before the Tribunal.
(1) Every proceedings before the Tribunal shall be heard and disposed of by the Chairman or Deputy Chairman and two other members selected by the Chairman from among the members appointed under section 29.
(2) No member of the Tribunal shall take part in any proceedings before the Tribunal if he has a pecuniary interest in any matter which is to be determined by the Tribunal.
(3) Where the Chairman has been disqualified under subsection (2), the Minister shall appoint a Deputy Chairman to act as chairman for the purposes of that proceedings.
[(3) Am. by Act A1420 of the year 2012]
(4) A person is deemed to have a pecuniary interest if he, his partner, employer or any member of his family or if a body whether statutory or not of which he is a member has a pecuniary interest in any matter which is to be determined by the Tribunal.
(5) If, on any matter to be determined by the Tribunal there i
30A PART V COPYRIGHT TRIBUNAL-30A. Reference of questions of law to High Court.
(1) The Tribunal may of its own motion, or shall at the request of a party, refer a question of law arising in proceedings concluded before it for determination by the High Court.
(2) A request under subsection (1) shall be made in writing within fourteen days of the date on which the decision was made.
(3) Where a question has been referred to the High Court under this section, the Tribunal shall forward the record of its proceedings to the Registrar of the High Court who shall thereupon appoint and notify the parties to the proceedings of the time and place for its hearing.
(4) At the hearing of the reference in the High Court, every party to the proceedings before the Tribunal shall be entitled to appear and to be heard.
(5) The High Court shall hear and determine the question referred to it under this section as if the reference were an appeal to the High Court against the decision of the Tribunal, and may consequent
31 PART V COPYRIGHT TRIBUNAL-31. Licence to produce and publish translation.
(1) Any person may apply to the Tribunal for a licence to produce and publish in the national language or other vernacular languages in Malaysia a translation of a literary work written in any other language.
[(1) Am. by Act A1420 of the year 2012]
(2) The Tribunal after holding such inquiry as it thinks necessary may, subject to this section, grant to the applicant a licence (not being an exclusive licence) to produce and publish a translation of the work in the national language, or other vernacular languages on condition that the applicant shall pay to the owner of the right of translation in the work in respect of copies sold to the public, royalties at a rate to be determined by the Tribunal in the prescribed manner.
[(2) Am. by Act A1420 of the year 2012]
(3) A licence may be granted on an application made under subsection (1) in respect of a work only where:
32 PART V COPYRIGHT TRIBUNAL-32. [Deleted by Act A952] .
33 PART V COPYRIGHT TRIBUNAL-33. Tribunal may request for information.
(1) The Tribunal may request for such information as it may deem necessary for the purpose of exercising any of its powers and functions under this Act and any subsidiary legislation made thereunder.
(2) Any person who refuses to comply with such request by the Tribunal shall be guilty of an offence under this Act.
34 PART V COPYRIGHT TRIBUNAL-34. No action to lie against Tribunal.
No action or other legal proceedings shall lie against any member of the Tribunal for anything done or omitted to be done in good faith in connection with the exercise of the powers and functions of the Tribunal under this Act.
35 PART V COPYRIGHT TRIBUNAL-35. Regulations relating to Tribunal.
The Minister may make regulations in respect of the Tribunal and in particular and without prejudice to the generality of the foregoing, in respect of the following matters:
(a) prescribing the manner in which any matter may be referred to the Tribunal;
(b) prescribing the procedure to be adopted by the Tribunal in dealing with any matter referred to it under this Act and the records to be kept by the Tribunal;
(c) prescribing the manner in which the Tribunal shall be convened and the place where the Tribunal shall hold its sittings;
(d) prescribing a scale of costs and fees payable in respect of any inquiry or proceedings before the Tribunal; and
(e) generally for the better carrying out of the functions assigned to the Tribunal by this Act.
36 PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-36. Infringements.
(1) Copyright is infringed by any person who does, or causes any other person to do, without the licence of the owner of the copyright, an act the doing of which is controlled by copyright under this Act.
(2) Copyright is infringed by any person who, without the consent or licence of the owner of the copyright, imports an article into Malaysia for the purpose of:
(a) selling, letting for hire, or by way of trade, offering or exposing for sale or hire, the article;
(b) distributing the article:
(i) for the purpose of trade; or
(ii) for any other purpose to an extent that it will affect prejudicially the owner of the copyright; or
(c) by way of trade, exhibiting the article in public,
where he knows or ought reasonably to know that the making of the article was carried out without the consent or licence of the owner of
36A PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-36A. Circumvention of technological protection measure.
(1) If a technological protection measure is applied to a copy of a work by or with the authorization of the owner of the copyright in the work, no person shall circumvent, or cause or authorize any other person to circumvent, the technological protection measure:
(a) that is used by the owner of the copyright in connection with the exercise of his rights under this Act; and
(b) that restricts acts in respect of his works which are not authorized by the owner concerned or permitted by law.
(2) Subsection (1) does not apply if the circumvention of technological protection measure is:
(a) for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other programs;
(b) for the sole purpose of identifying and analyzing flaws and vulnerabilities of encryption technology;
<36B PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-36B. Rights management information.
(1) No person shall:
(a) remove or alter any electronic rights management information without authority; or
(b) distribute, import for distribution or communicate to the public, without authority, of works or copies of works knowing that electronic rights management information has been removed or altered without authority, and knowing or having reasonable grounds to know that such act will induce, enable, facilitate or conceal an infringement of any rights under this Act.
(2) Subsection (1) does not apply if the removal or alteration of any electronic rights management information without authority is:
(a) in relation to anything lawfully done for the sole purpose of:
(i) law enforcement;
(ii) national security; or
(iii) performing a statutory function; or
(b) done by a library, an archi
37 PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-37. Action by owner of copyright and relief.
(1) Subject to this Act, infringements of copyright shall be actionable at the suit of the owner of the copyright and in any action for such an infringement, all such relief by way of damages, injunction, accounts or otherwise, shall be available to the plaintiff as are available in any corresponding proceedings in respect of infringement of other proprietary rights.
(2) Where in an action under this section, an infringement of copyright is proved or admitted, and the court, having regard, in addition to all other material considerations to:
(a) the flagrancy of the infringement; and
(b) any benefit shown to have accrued to the defendant by reason of the infringement,
is satisfied that effective relief would not otherwise be available to the plaintiff, the court in assessing damages for the infringement, shall have power to award such additional damages by virtue of this subse
38 PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-38. Proceedings in case of copyright subject to exclusive licence.
(1) This section shall have effect as to proceedings in the case of any copyright in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.
(2) Subject to this section, the exclusive licensee shall (except against the owner of the copyright) have the same rights of action, and be entitled to the same remedies, under section 37 as if the licence had been an assignment, and those rights and remedies shall be concurrent with the rights and remedies of the owner of the copyright under that section.
(3) Where an action is brought either by the owner of the copyright or by the exclusive licensee, and the action, in so far as it is brought under section 37, relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action under that section, the owner or licensee, as the case may be, shall not be entitled, except with the leave of t
39 PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-39. Restriction on importation of infringing copies.
(1) The owner of copyright in any work, or any person authorised by him, may make an application to the Controller to request that during a period specified in the application copies of the work to which this section applies be treated as infringing copies.
(1A) The application under subsection (1):
(a) shall be in such form as may be prescribed;
(b) shall state that the person named in it is the owner of the copyright; and
(c) shall be supported by such documents and information, and accompanied by such fee, as may be prescribed.
(2) This section shall apply to any copy of a work made outside Malaysia the making of which was carried out without the consent or licence of the owner of the copyright in the work.
(2A) Upon receipt of the application under subsection (1), the Controller shall determine the application and the Controller shall within a reas
39A PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-39A. Application of sections 36, 37, 38 and 39 to performers' right.
Sections 36, 37, 38 and 39 shall apply mutatis mutandis to performers' right.
40 PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-40. Back-up copy of computer program.
(1) Notwithstanding any express contract condition to the contrary, the copyright in a literary work in the form of a computer program is not infringed by the making of a reproduction of the work or of a computer program being an adaptation of the work, if:
[(1) Am. by Act A1420 of the year 2012]
(a) the reproduction is made by, or on behalf of, the owner of the copy (in this section referred to as "the original copy") from which the reproduction is made; and
(b) the reproduction is made for the purpose only of being used, by or on behalf of the owner of the original copy, in lieu of the original copy in the event that the original copy is lost, destroyed or rendered unusable.
(2) Subsection (1) does not apply to the making of a reproduction of a computer program, or of an adaptation of a computer program:
(a) from an infrin
41 PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-41. Offences.
(1) Any person who during the subsistence of copyright in a work or performers' right:
(a) makes for sale or hire any infringing copy;
(b) sells, lets for hire or by way of trade, exposes or offers for sale or hire any infringing copy;
(c) distributes infringing copies;
(d) has in his possession,custody or control, otherwise than for his private and domestic use, any infringing copy;
[(d) Am. by Act A1420 of the year 2012
](e) by way of trade, exhibits in public any infringing copy;
(f) imports into Malaysia, otherwise than for his private and domestic use, an infringing copy;
(g) makes or has in his possession any contrivance used or intended to be used for the purposes of making infringing copies;
(h) circumvents or authorizes the circumvention of any effective technologi
41A PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-41A. Compounding of offences.
(1) The Minister may, with the approval of the Public Prosecutor, make regulations prescribing:
(a) any offence under this Act and any subsidiary legislation made under this Act as an offence which may be compounded; and
(b) the method and procedure for compounding such offence.
(2) The Controller, Deputy Controller or any person authorized in writing by the Controller may, with the consent in writing of the Public Prosecutor, at any time before a prosecution is instituted, compound any offence which may be compounded by making a written offer to the person reasonably suspected of having committed the offence upon payment to the Controller, Deputy Controller or any person authorized in writing by the Controller, a sum of money not exceeding fifty per centum of the amount of the maximum fine to which the person would have been liable to if he had been convicted of the offence, within s
42 PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-42. Affidavit admissible in evidence.
(1) An affidavit, certified extracts of the Register of Copyright referred to in section 26B or statutory declaration made before any person having authority to administer oath by or on behalf of any person claiming to be:
[(1) Am. by Act A1420 of the year 2012]
(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; or
(b) the performer in a live performance eligible for performers' right under this Act stating that:
(i) at the time specified therein performers' right subsisted in such live performance;
(ii) he or the person named therein is the performer
43 PART VI REMEDIES FOR INFRINGEMENTS AND OFFENCES-43. Penalty.
Any person who is guilty of an offence under this Act or any regulations made thereunder for which no special penalty is provided, shall on conviction be liable to a fine of not less than ten thousand ringgit and not more than fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both.
43A PART VIA ANTI-CAMCORDING-43A. Offences relating to anti-camcording.
(1) Any person who operates an audiovisual recording device in a screening room to record any film in whole or in part shall be guilty of an offence and shall on conviction be liable to a fine of not less than ten thousand ringgit and not more than one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.
(2) Any person who is guilty of an attempt to commit an offence under subsection (1) shall on conviction be liable to a fine of not less than five thousand ringgit and not more than fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both.
(3) For the purpose of this section:
"film" means any device which is capable of recording or transmitting a motion picture or any part thereof; [Am. by Act A1645:s14]
"screening room" means any venue 43AA PART VIAA STREAMING TECHNOLOGY-43AA. Offences relating to streaming technology.
(1) No person shall commit or facilitate infringement of the copyright in any work by:
( a ) manufacturing a streaming technology for sale or hire;
( b ) importing a streaming technology;
( c ) selling or letting for hire, offering, exposing or advertising for sale or hire, possessing or distributing a streaming technology in the course of a business;
( d ) distributing a streaming technology for purposes other than in the course of a business to such an extent as to affect prejudicially the owner of the copyright; or
( e ) offering to the public or providing any service of streaming technology.
(2) Any person who contravenes subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine of not less than ten thousand ringgit and not more than two hundred thousand ringgit or to imprisonment for a term not exceeding tw
43B PART VIB LIMITATION OF LIABILITIES OF THE SERVICE PROVIDER-43B. Interpretation.
For the purpose of this Part:
"another network" means any type of network that is able to connect with the primary network;
"court" means the appropriate High Court in Malaysia;
"electronic copy" , in relation to any work, means a copy of the work in an electronic form and includes the original version of the work in that form on a network;
"originating network" means another network from which an electronic copy originates;
"primary network" , in relation to a service provider, means a network controlled or operated by or for the service provider;
"routing" means directing or choosing the means or routes for the transmission of data; <43C PART VIB LIMITATION OF LIABILITIES OF THE SERVICE PROVIDER-43C. Transmission, routing and provision of connections.
(1) A service provider shall not be held liable for infringement of copyright in any work if the infringement occurs by reason of:
(a) the transmission or routing, or the provision of connections, by the service provider of an electronic copy of the work through its primary network; or
(b) any transient storage by the service provider of an electronic copy of the work in the course of such transmission, routing or provision of connections:
Provided that:
(A) the transmission of the electronic copy of the work was initiated by or at the direction of a person other than the service provider;
(B) the transmission, routing, provision of connections or storage is carried out through an automatic technical process without any selection of the electronic copy of the work by the service provider;
(C) the service provider does not select the recipient of the electronic c
43D PART VIB LIMITATION OF LIABILITIES OF THE SERVICE PROVIDER-43D. System caching.
(1) A service provider shall not be held liable for infringement of copyright for the making of any electronic copy of the work on its primary network if it is:
(a) from an electronic copy of the work made available on an originating network;
(b) through an automatic process;
(c) in response to an action by a user of its primary network; or
(d) in order to facilitate efficient access to the work by a user:
Provided that:
(A) the service provider does not make any substantive modification, other than a modification made as part of a technical process, to the content of the electronic copy during the transmission of such copy to users of its primary network or another network; and
(B) the service provider satisfies such other conditions as the Minister may determine in relation to:
(i) access to the electronic copy by
43E PART VIB LIMITATION OF LIABILITIES OF THE SERVICE PROVIDER-43E. Storage and information location tools.
(1) A service provider shall not be held liable for infringement of copyright in any work where such infringement occurs by reason of:
(a) the electronic copy of the work being stored at the direction of a user of its primary network;
(b) the service provider referring or linking a user to an online location on an originating network at which an electronic copy of the work is made available by the use of an information location tool such as a hyperlink or directory, or an information location service such as a search engine, if:
(i) the service provider:
(A) does not have actual knowledge that the electronic copy of the work or activity is infringing; or
(B) in the absence of such actual knowledge, is not aware of the facts or circumstances from which the infringing activity is apparent;
(ii) the service provider does not receive any f
43F PART VIB LIMITATION OF LIABILITIES OF THE SERVICE PROVIDER-43F. Exemption of service provider from liability for removal of copy or other activities from network.
(1) A service provider acting in compliance with subsection 43H(1) and in accordance with this Part shall not be subject to any liability in respect of an action taken in good faith in relation to:
(a) the removal of an electronic copy of a work from its primary network; or
(b) the disabling of access to an electronic copy of a work on its primary network or another network.
(2) Upon removing or disabling access to an electronic copy of a work under subsection (1), the service provider shall notify, as far as may be practicable, the person who made available the electronic copy of the action taken by the service provider and enclosing therewith a copy of the notification received by it pursuant to subsection 43H(1).
(3) Notwithstanding anything to the contrary, if:
(a) as a result of a settlement between the copyright owner of the work and the per
Legal Commentary on Section 43F of the Copyright Act 1987
Introduction
Section 43F of the Copyright Act 1987 pertains to the exemption of certain service providers from liability for copyright infringement committed through their networks or platforms, provided specific conditions are met. This provision aligns with international trends to balance copyright enforcement with the facilitation of digital and network-based services.
What does Section 43F Say?
Section 43F provides that a service provider shall not be liable for copyright infringement if it:- Acts as an intermediary or hosting platform.- Does not initiate, select, or modify the infringing material.- Acts expeditiously to remove or disable access to infringing material upon receiving proper notice.- Complies with prescribed procedures and conditions laid down by law or regulations.
Essential Ingredients
- Service Provider Role: The entity must operate as a conduit, hosting, or facilitating access to content without actively creating or modifying infringing material.
- Knowledge and Action: The provider must act upon receiving a valid notice of infringement and remove or disable access promptly.
- Good Faith and Due Diligence: The provider must demonstrate that it acts in good faith, following prescribed procedures, including proper notice and takedown mechanisms.
- Legal and Procedural Compliance: Adherence to regulations, including filing notices, maintaining records, and cooperating with authorities.
Scope of Section
- Applicability: Applies primarily to internet service providers, hosting platforms, and similar intermediaries.
- Limitations: Does not grant immunity if the provider is the originator of the infringing activity or fails to act upon notice.
- Coverage: Encompasses online platforms, social media, hosting services, and other network-based intermediaries.
- Exceptions: Immunity is lost if the provider knowingly facilitates infringement or does not comply with lawful notices.
Punishment for Section
Section 43F itself does not prescribe penalties or punishments; rather, it provides a defense to liability. However, violations of related provisions (e.g., failure to act on notices) may lead to civil or criminal liability under the broader framework of the Copyright Act, including penalties under Section 43 or other applicable sections.
Legal Comments (Summary with References)
- Immunity - Section 43F grants immunity to service providers acting as intermediaries, provided they follow due procedures – [Malaysia Copyright Act 1987, Sec 43F].
- Notice and Takedown - The immunity is contingent upon receiving a proper notice of infringement and acting expeditiously to remove infringing content – [Section 43F(2)].
- Good Faith - The section emphasizes acting in good faith and in accordance with prescribed procedures to qualify for immunity – [Wikisource, Copyright Act 1987 (Malaysia)].
- Scope Limitation - Immunity does not extend if the provider is the originator of the infringing material or fails to act after notice – [Section 43F, Copyright Act 1987].
- Procedural Compliance - The provider must maintain records of notices and actions taken, ensuring transparency and accountability – [Section 43F, Copyright Act 1987].
- Balance of Interests - The provision aims to balance copyright enforcement with the facilitation of online services, reducing undue liability for intermediaries – [Government Gazette, 1987].
- International Alignment - Section 43F aligns with international standards such as the DMCA (USA) and E-Commerce directives, promoting safe harbor principles – [WIPO Lex, 1987].
- Limitations of Immunity - Immunity is not absolute; if the provider knowingly facilitates infringement or acts negligently, liability may ensue – [Section 43F, Copyright Act 1987].
- Procedural Safeguards - The law prescribes that service providers must implement mechanisms for notices, verification, and response to infringement claims – [Section 43F, Rules of Procedure, Malaysia].
- Enforcement and Penalties - While Section 43F provides a defense, other sections like 43 or 63 impose penalties for infringement or failure to comply with legal obligations – [Section 43, Copyright Act 1987].
- Scope of Liability - The immunity covers passive hosting and transmission, not active infringement or content creation – [Singapore Statutes Online, Copyright Act 1987].
- Protection of Free Speech and Innovation - The provision encourages the growth of digital platforms and innovation by limiting liability, fostering a safe environment for content dissemination – [Government Gazette, 1987].
- Legal Certainty - The requirement for proper notice and prompt action provides legal certainty and clarity for both copyright owners and service providers – [Section 43F, Copyright Act 1987].
- Limitations in Practice - Actual immunity depends on adherence to procedures, including timely removal, proper notice, and cooperation with authorities – [Section 43F, Malaysia Copyright Act].
- Comparison with International Law - Similar provisions in the DMCA (USA) and EU directives reflect a global consensus on intermediary liability regimes – [WIPO Lex, 1987].
- Evolution of Law - Amendments, including the Copyright (Amendment) Act 2012, have reinforced the importance of due diligence and procedural compliance for immunity – [Copyright (Amendment) Act 2012].
- Legal Strategy - Service providers should establish clear policies, notice mechanisms, and record-keeping to ensure eligibility for immunity under Section 43F – [Legal Commentary, Malaysia].
In summary:Section 43F of the Copyright Act 1987 provides a statutory safe harbor for service providers acting as intermediaries, contingent upon adherence to prescribed procedures, prompt action upon receiving notices, and acting in good faith. This provision aims to balance enforcement of copyright laws with the facilitation of digital and network-based services, aligning with international standards and promoting innovation while maintaining legal accountability.
43G PART VIB LIMITATION OF LIABILITIES OF THE SERVICE PROVIDER-43G. Information on service provider.
(1) In providing its service to the users, a service provider shall make available the following information in a manner which is accessible to any person using the service:
(a) the name and address of the service provider; and
(b) the details and particulars of a designated agent to receive any complaint or notice regarding an allegation of infringement of copyright.
(2) Failure by a service provider to comply with subsection (1) shall not entitle the service provider to rely on the protection provided under this Part.
[Ins. by Act A1420 of the year 2012]
43H PART VIB LIMITATION OF LIABILITIES OF THE SERVICE PROVIDER-43H. Notification by copyright owner and its effect.
(1) If an electronic copy of any work accessible in a network infringes the copyright of a work, the owner of the copyright which has been infringed may notify the service provider of the network of such infringement by issuing to the service provider a notification in the manner as determined by the Minister, requiring the service provider to remove or disable any access to the electronic copy on the service provider's network:
Provided that the owner of the copyright shall undertake to compensate the service provider or any other person against any damages, loss or liability arising from the compliance by the service provider of such notification.
(2) A service provider who has received a notification under subsection (1) shall remove or disable any access to the infringing electronic copy on its network not later than forty-eight hours from the time the notification was received.
(3) The person whose electronic copy of the wo
43I PART VIB LIMITATION OF LIABILITIES OF THE SERVICE PROVIDER-43I. Maker of false notice guilty of offence and liable in damages.
(1) If a person making a notification in accordance with section 43H makes any statement which is false, which he knows to be false or does not believe to be true, and which touches on any point material to the object of the notice:
(a) he shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both; and
(b) he shall be liable to compensate any person who suffers any loss or damages as a result of making the notification.
(2) Subsection (1) shall apply whether or not the statement is made in Malaysia, and if a person makes the statement outside Malaysia, he may be dealt with under paragraph (1) (a) as if the offence was committed in Malaysia.
[Ins. by Act A1420 of the year 2012]
44 PART VII ENFORCEMENT-44. Entry by warrant or otherwise
(1) In every case where information is given on oath to any magistrate that there is reasonable cause for suspecting that there is in any house or premises any infringing copy or any contrivance used or intended to be used for making infringing copies or capable of being used for the purpose of making infringing copies, or any other article, vehicle, book or document by means of or in relation to which any offence under section 41 has been committed, he shall issue a warrant under his hand by virtue of which any Assistant Controller or police officer not below the rank of Inspector named or referred to in the warrant may enter the house or premises at any reasonable time by day or night and search for and seize any such copy, contrivance, article, vehicle, book or document:
Provided that if an Assistant Controller or a police officer not below the rank of Inspector is satisfied upon information received that he has reasonable grounds for believ
45 PART VII ENFORCEMENT-45. Effecting entry, removal and detention.
Any Assistant Controller or police officer not below the rank of Inspector may in the exercise of his powers under section 44, if it is necessary so to do:
(a) break open any outer or inner door of the dwelling house or any other premises and enter thereinto;
(b) forcibly enter the place and every part thereof;
(c) remove by force any obstruction to entry, search, seizure and removal as he is empowered to effect; and
(d) detain every person found in the place until the place has been searched.
45A PART VII ENFORCEMENT-45A. Access to computerized or digitalized data.
(1) Any Assistant Controller or a police officer not below the rank of Inspector shall, in the exercise of his powers under section 44, if it is necessary, be given access to computerized or digitalized data whether stored in a computer or any other medium.
(2) For the purpose of this section, "access" includes being provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of the computerized data.
[Ins. by Act A1420 of the year 2012]
46 PART VII ENFORCEMENT-46. List of things seized.
(1) The Assistant Controller or police officer not below the rank of Inspector seizing any infringing copy, any copy suspected to be an infringing copy, contrivance, article, vehicle, book or document under this Part shall prepare a list of the things seized and forthwith deliver a copy signed by him to the occupier, or his agents or servants present in the premises.
(2) If the premises are unoccupied, the Assistant Controller or police officer not below the rank of Inspector shall wherever possible post a list of the things seized on the premises.
47 PART VII ENFORCEMENT-47. Sealing of things.
Where it appears to an Assistant Controller or a police officer not below the rank of Inspector that it is not practical to remove from where they are found, any thing or document seized by him in the exercise of his powers under this Act, by reason of their nature, size or amount, he may by any means seal such things or documents in the premises or container in which they are found and it shall be an offence for any person without lawful authority to break, tamper with or damage such seal or remove such things or documents or to attempt to do so.
48 PART VII ENFORCEMENT-48. Obstruction to search, etc .
Any person who:
(a) refuses any Assistant Controller or police officer not below the rank of Inspector access to any place;
(b) assaults, obstructs, hinders or delays any Assistant Controller or police officer not below the rank of Inspector in effecting any entry which he is entitled to effect under this Act, or in the execution of any duty imposed or power conferred by this Act;
(c) refuses to give to any Assistant Controller or police officer not below the rank of Inspector any information relating to an offence or suspected offence under this Act or any other information which may reasonably be required of him and which he has in his knowledge or power to give;
(d) with a view to deceiving any public officer in the execution of the provisions of this Act, or with a view to procuring or influencing the doing or omission of anything in relation to this Act, knowingly giv
49 PART VII ENFORCEMENT-49. Warrant admissible notwithstanding defects, etc.
A warrant issued under this Act shall be valid and enforceable notwithstanding any defect, mistake or omission in the warrant or in the application for such warrant and any copy, contrivance, article, vehicle, book or document seized under such warrant shall be admissible in evidence in any proceedings under this Act.
50 PART VII ENFORCEMENT-50. Powers of investigation.
(1) Any Assistant Controller or police officer not below the rank of Inspector shall have the power to investigate the commission of any offence under this Act or subsidiary legislation made thereunder.
(2) Any Assistant Controller or police officer not below the rank of Inspector may, in relation to any investigation in respect of any offence under this Act or subsidiary legislation made thereunder, exercise the special powers in relation to police investigation in seizable cases given by the Criminal Procedure Code [Act 593] .
[(2) Am. by Act A1420 of the year 2012]
50A PART VII ENFORCEMENT-50A. Power of arrest.
(1) Any Assistant Controller may arrest without warrant any person whom he reasonably believes has committed or is attempting to commit seizable offence under this Act or any regulations made thereunder.
(2) Any Assistant Controller making an arrest under subsection (1) shall without unnecessary delay make over the person so arrested to the nearest police officer or, in the absence of a police officer, take such person to the nearest police station, and thereafter the person shall be dealt with as is provided for by the law relating to criminal procedure for the time being in force as if he had been arrested by a police officer.
50B PART VII ENFORCEMENT-50B. Power to intercept communications.
(1) Notwithstanding the provisions of any other written law, the Public Prosecutor, if he considers that any communications is likely to contain any information which is relevant for the purpose of any investigation into an offence under this Act or its subsidiary legislation, may, on the application of an Assistant Controller or a police officer not below the rank of Inspector, authorize the officer to intercept or to listen to any communications transmitted or received by any communications.
(2) When any person is charged with an offence under this Act or its subsidiary legislation, any information obtained by an Assistant Controller or a police officer under subsection (1), whether before or after the person is charged, shall be admissible at his trial in evidence.
(3) An authorization by the Public Prosecutor under subsection (1) may be given either orally or in writing; but if an oral authorization is given, the Public Prosecutor s
51 PART VII ENFORCEMENT-51. Admissibility of statement.
(1) Notwithstanding the provisions of any written law to the contrary, where a person is charged with an offence under this Act any statement, whether the statement amounts to a confession or not or whether it is oral or in writing, made at any time, whether before or after the person is charged and whether in the course of investigations under this Act or not and whether or not wholly or partly in answer to questions, by the person to or in the hearing of an Assistant Controller or a police officer not below the rank of Inspector and whether or not interpreted to him by an Assistant Controller, a police officer not below the rank of Inspector, or any other person concerned or not in the case shall be admissible at his trial in evidence and, if the person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit:
Provided that:
(a) no such stateme
51A PART VII ENFORCEMENT-51A. Evidence of agent provocateur is admissible.
(1) Notwithstanding any written law or rule of law to the contrary, no agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to abet or abetted the commission of an offence by any person under this Act if the attempt to abet or abetment was for the sole purpose of securing evidence against such person.
(2) Notwithstanding any written law or rule of law to the contrary, any statement, whether oral or in writing made to the agent provocateur by any person who subsequently is charged with an offence under this Act shall be admissible as evidence at his trial.
[Ins. by Act A1420 of the year 2012]
51B PART VII ENFORCEMENT-51B. Test purchase.
The Assistant Controller may direct the owner of the copyright or any person authorized to act on behalf of the owner of the copyright to make test purchase of any goods as may appear expedient for the purpose of determining whether or not the provisions of this Act are being complied with.
[Ins. by Act A1645:s17]
52 PART VII ENFORCEMENT-52. Disclosure of information.
Where a person disclosures to any other person any information obtained by him in pursuance of this Act, he shall be guilty of an offence, unless the disclosure was made in or for the purposes of the performance of the functions and duties under this Act.
52A PART VII ENFORCEMENT-52A. Tipping-off.
(1) Any person who:
(a) knows or has reason to suspect that an Assistant Controller or a police officer not below the rank of Inspector is acting, or is proposing to act, in connection with an investigation which is being, or is about to be, conducted under or for the purposes of this Act and discloses to any other person information or any other matter which is likely to prejudice that investigation or proposed investigation; or
(b) knows or has reason to suspect that a disclosure has been made to an Assistant Controller or a police officer under this Act and discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure,
commits an offence under this Act.
(2) Nothing in subsection (1) makes it an offence for an advocate and solicitor or his employee to disclose any information or
52B PART VII ENFORCEMENT-52B. Power of the Assistant Controller to require provision of information.
(1) This section applies if the Assistant Controller in carrying out an investigation under this Act has reason to believe that any person:
( a ) has any information or any document that is relevant to the performance of the Assistant Controller's powers and functions under this Act; or
( b ) is capable of giving any evidence which the Assistant Controller has reason to believe is relevant to the performance of the Assistant Controller's powers and functions under this Act.
(2) Notwithstanding any provision of any other written law, the Assistant Controller may, by written notice, direct any person:
( a ) to provide to the Assistant Controller, within the period and in the manner and form specified in the notice, any information or document referred to in subsection (1);
( b ) to produce to the Assistant Controller, within the period and in the m
53 PART VII ENFORCEMENT-53. Institution of prosecution.
No prosecution for any offence under this Act shall be instituted except by or with the consent in writing of the Public Prosecutor.
54 PART VII ENFORCEMENT-54. Forfeiture of articles.
(1) Any article, vehicle, book, document, copy or contrivance seized pursuant to this Act shall be liable to forfeiture.
(2) The court trying any person accused of an offence under this Act may at the conclusion of the trial, whether he is convicted or not, order that article, vehicle, book, document, copy or contrivance seized from that person be disposed of or in the case of infringing copies, be delivered up to the first owner of the copyright in question, his assignee or exclusive licensee, as the case may be.
(3) Where there is no prosecution with regard to any article, vehicle, book, document, copy or contrivance seized in exercise of any powers conferred under this Act, the same shall be taken and deemed to be forfeited at the expiration of one calendar month from the date it was seized unless a claim thereto is made before that date in the manner hereinafter set forth.
(4) Any person asserting that he is the owner of any
55 PART VII ENFORCEMENT-55. Proportional examination of articles seized to be accepted.
(1) Where packages or receptacles containing copies suspected to be infringing copies or otherwise liable to seizure have been seized, it shall be sufficient only to open and examine one per centum or any five copies, whichever is the lesser, of the contents of each package or receptacle seized.
(2) The court shall presume that the remaining copies contained in the package or receptacle are of the same nature as those copies examined.
56 PART VII ENFORCEMENT-56. Protection of informers from discovery.
(1) Except as hereinafter provided, no witness in any civil or criminal proceedings shall be obliged or permitted to disclose the name or address of an informer or the substance and nature of the information received from him or to state any matter which may lead to his discovery.
(2) If any books, documents or papers which are in evidence or are liable to inspection in civil or criminal proceedings whatsoever contain any entry in which any informer is named or described or which might lead to his discovery, the court shall cause all such passages to be concealed from view or to be obliterated so far only as may be necessary to protect the informer from discovery.
(3) If on the trial for any offence against this Act or any subsidiary legislation made thereunder the court after full enquiry into the case believes the informer unlawfully made in his complaint a material statement which he knew or believed to be false or did not believe to
57 PART VII ENFORCEMENT-57. Protection of Assistant Controllers and police officers.
No action or prosecution shall be brought, instituted or maintained in any court against any Assistant Controller or police officer not below the rank of Inspector for or on account of or in respect of any act ordered or done for the purpose of carrying into effect this Act, and no suit or prosecution shall lie in any court against any other person for or on account of or in respect of any act done or purporting to have been done by him under order, direction or instruction of any Assistant Controller or police officer not below the rank of Inspector given for any such purpose as aforesaid:
Provided that the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served thereby.
58 PART VIII MISCELLANEOUS-58. [Deleted by Act A952] .
59 PART VIII MISCELLANEOUS-59. Regulations.
The Minister may make regulations for the carrying out of the provisions of this Act.
59A PART VIII MISCELLANEOUS-59A. Extension of application of Act.
(1) The Minister may make regulations applying any of the provisions of this Act specified in the regulations, in relation to a country so specified in the regulations (which in this section is referred to as the "specified country") , which may or may not be a party to a treaty or a member of any Convention or Union relating to copyright or performers' rights to which Malaysia is also a party or a member, so as to secure that those provisions:
(a) apply in relation to literary, musical or artistic works, or films or sound recordings, or published editions of literary, musical or artistic works first published in that specified country as they apply in relation to literary, musical or artistic works, or films or sound recordings, or published editions of literary, musical or artistic works first published in Malaysia;
(b) apply in relation to persons who, at the material time specified in the regulations,
59B PART VIII MISCELLANEOUS-59B. Power of Minister to exclude from DEFINITION of "broadcast".
(1) The Minister may, by order, exclude from the DEFINITION of "broadcast" in relation to a transmission by wire any of the following services:
(a) an interactive service
(b) an internal business service;
(c) an individual domestic service;
(d) a service on single-occupier premises otherwise than by way of business amenity;
(e) a service run for persons providing broadcasting services through means of wire or providing programmes for such services.
(2) The Minister may, by order, amend subsection (1) so as to add to or remove from the exclusion referred to in that subsection.
60 PART VIII MISCELLANEOUS-60. Savings.
(1) Nothing in this Act shall affect any right or privilege of any person, including the Government, under any written law, except in so far as that law is expressly repealed, amended or modified by or is inconsistent with this Act.
(2) Nothing in this Act shall affect the rights of the Government of Malaysia, or any person deriving title from the Government to sell, use or otherwise deal with articles forfeited under the laws relating to Customs, including articles so forfeited by virtue of this Act or any written law repealed by this Act.
61 PART VIII MISCELLANEOUS-61. Repeal.
The Copyright Act 1969 [Act 10] is repealed:
Provided that:
(a) nothing contained in this Act shall affect any person's liability to be prosecuted or punished for offences committed under the repealed Act before the coming into operation of this Act, or any proceedings brought or sentence imposed before that day in respect of such offence;
(b) any proceedings, whether civil or criminal, or cause of action pending or existing immediately before the coming into operation of this Act shall be continued or instituted under the repealed law as if this Act had not been made;
(c) any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act and any legal proceedings (civil or criminal) or remedy in respect of such right, privilege, obligation or liability shall not be affected and any such legal proceedings or remedy may be instituted or enfor
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