JUDGMENT

Hamid Sultan Abu Backer JC:

[1] This is my judgment in respect of the plaintiffs' action premised on copyright, against the defendant, who is the distributor of the infringed product, complained of.

Brief Facts

[2] The plaintiffs say (i) the 1st plaintiff is the owner of copyright subsisting in original drawing for water meter known as Kent PSM and its predecessor the Kent Water Meter; (ii) the 2nd plaintiff is the licensee of the copyright in the drawing and the plaintiffs' water meter in Malaysia; (iii) Ningbo Water Meter Co. Ltd (Ningbo) has infringed by reproducing in material form the drawings and the plaintiffs' water meter; (iv) the defendant has infringed by selling the infringed water meter.

[3] The defendant says (i) there is no evidence to prove the drawings and subsequent drawings with minor amendments to have sufficient originality to enjoy copyright protection; (ii) the statutory declaration of plaintiff to invoke copyright must fail as the drawings were not annexed and only subsequent drawings were annexed; (iii) no substantial reproduction of the drawings; (iv) any similarities between the plaintiffs' and the defendant's water meter simply follow from the similar concept used which is not protected by copyright; (v) Ningbo is an established water meter manufacturer for 80 years and the water meter was a result of its own development efforts and was not copying of the plaintiffs' water meter.

Preliminaries

[4] Three witnesses gave evidence for the plaintiffs and two for the defendant. The plaintiffs did not produce the 1st drawings related to the copyright. Only subsequent drawings related to the amended version were produced. In essence, the plaintiffs were attempting to establish the case by putting in evidence a s. 42 statutory declaration pursuant to Copyright Act 1987 (CRA 1987).

[5] In addition, it must also be noted there were numerous changes in the name of the original companies which claim copyright and the 1st plaintiff is said to have obtained an assignment of the copyright, pursuant to a deed of assignment executed in 2000, which assignment attempts to place the 1st plaintiff retrospectively as copyright owner from 3 April 1966, that too more than 30 years later.

[6] In addition, there are further complications in the plaintiffs' case in that the 2nd plaintiff is said to be the licensee of the copyright from 1995 when at that material time the deed of assignment dated 2000 was not executed.

[7] It also must be noted in this case that PW1, who was the witness armed with the statutory declaration, stated that the 1st plaintiff is entitled to the copyright as it was originally done by the employees of the 1st plaintiff. This part of the evidence in my view appears to be a material contradiction in the light of the contents of the deed of assignment. It must be emphasized that where there are changes in ownership the nexus of the copyright from the originator must be clearly shown to satisfy all the criteria set out under the Act. In essence break in chain will be fatal. I have dealt with this area of law in Ultra Dimension Sdn Bhd v. American Home Assurance Co (Rewardstreet.com (M) Sdn Bhd, Third Party) [2009] 9 CLJ 589.

Arguments

[8] In respect of authorship and/or ownership the learned counsel for the defendant says as follows:

(i) PW1 in his examination in chief stated that all the makers of the Drawings were in the employment of the company.

(ii) Under cross-examination however he admitted that he derived his knowledge from the company's drawing sheets, and because an unidentified colleague in the company told him so. In the context of this answer, it must be borne in mind that the Drawings merely carried the initials of the maker, and not the maker's name.

(iii) However he failed to produce any contract of employment or other contemporaneous company records prove this vital point.

(iv) The Plaintiff could not even name one of the makers of the Drawings. The drawing of the w