A party must prove ownership and copyright subsistence to sue for infringement, particularly showing originality and that the work is eligible for protection under the relevant statute.

A. Background

[1] The plaintiff claims that he owns the copyright in two computer programs (two Programs) as follows:

(1) "B3 Cafe Internet Cafe Billing Management with MyCard Solution Software" program (B3 Program); and

(2) "Coin River Net Cafe Management System" (Coin River Program).

[2] The plaintiff alleges that the defendant company's (defendant) software, "Keybilling Management Sysem" (Keybilling Program) has infringed the plaintiff's copyright in the two Programs under s 36(1) of the Copyright Act 1987 ( CA ).

B. Issues

[3] The following questions arise in this case:

(1) if a witness has given oral evidence based on a written statement (the witness has not obtained leave of the court to refer to the statement and the statement has not been adduced in court):

(a) can the court decide that the witness's oral evidence is inadmissible and expunge such evidence?; and

(b) if the witness's oral evidence is admissible, how should the court assess the weight of such evidence?

(2) whether a raid on the defendant's premises (Raid) by the Enforcement Division of the Ministry of Domestic Trade, Cooperatives and Consumerism (Ministry) supports the plaintiff's claim in this case (This Suit);

(3) in view of s 7(2A) CA , can the plaintiff claim copyright in a function of a computer program?;

(4) whether the plaintiff can rely on his statutory declaration (plaintiff 's SD) as prima facie evidence under s 42(1) CA that:

(a) copyright subsists in the Two Programs; and

(b) the plaintiff is the owner of the copyright in the Two Programs;

(5) if the plaintiff cannot rely on plaintiff's SD:

(a) whether the plaintiff is the "author" of the Two Programs;

(b) has sufficient effort been expended to make the Two Programs original in character within the meaning of s 7(3) (a) CA ?;

(c) whether the Two Programs have been "written down, recorded or otherwise reduced to material form" as required under s 7(3)(b) CA ;

(d) whether the Two Programs qualify for copyright protection:

(i) when the Two Programs have not been "authored" by a "qualified person" within the meaning of s 10(1) CA ;

(ii) if the Two Programs are not first published in Malaysia as required by s 10(2)(a) CA ; and

(iii) when the Two Programs are not made in Malaysia as provided in s 10(3) CA ;

(e) whether an adverse inference under s 114(g) of the Evidence Act 1950 (EA) should be drawn against the Plaintiff for not calling the person from Zhengzhou Yilingshin Software Co Ltd (ZYS) who has authored the Two Programs; and

(6) whether the Keybilling Program has infringed the plaintiff's copyright in the Two Programs (Alleged Copyright Infringement). In this regard:

(a) has the plaintiff proven that copyright subsists in the Two Programs and he is the owner of such a copyright as required by s 37(1) CA ?;

(b) is the plaintiff required to adduce expert evidence under s 45(1) EA to prove the Alleged Copyright Infringement?; and

(c) whether the Alleged Copyright Infringement can be proven by the plaintiff showing a similarity in the screenshots of computer screen images and graphic user interface between the Two Programs and Keybilling Program.

C. plaintiff's Case

[4] The plaintiff is the sole proprietor of "B Three Technology", a registered business. The plaintiff gave the following evidence, among others:

(1) the plaintiff runs an internet cafe business;

(2) the plaintiff has created "MyCard Solution" software (MyCard Solution Program) but the "main engine" to run MyCard Solution Program is created by ZYS, a company in the People's Republic of China. Regarding MyCard Solution Program:

(a) the plaintiff has "created" MyCard Solution Program in the sense that he had advised, given his ideas and commissioned ZYS to cre