copyright assignment malaysia

Copyright Act 1987 (Malaysia)

Date of Commencement: 1 December 1987 (P.U. (B) 586/1987) Act retroactively amended by Copyright (Amendment) Act 1990 [ Act A775 ] English text declared to be authoritative text according to section 6 of the National Language Acts 1963/67 [ Act 32 ] (P.U. (B) 220/2022)

LAWS OF MALAYSIA

COPYRIGHT ACT 1987

ARRANGEMENT OF SECTIONS

Part I PRELIMINARY

• 0 1. Short title, application and commencement.
• 0 2. Extent of application.
• 0 3. Interpretation.
• 0 4. Publication.
• 0 5. Appointment and powers of Controller, Deputy Controllers, etc.

Part II GENERAL PROVISIONS

• 0 6. No copyright except by virtue of this Act.
• 0 7. Works eligible for copyright.
• 0 8. Derivative works.
• 0 9. Copyright in published editions of works.
• 10. Qualification for protection.
• 11. Copyright in works of Government, Government organizations and international bodies.
• 12. Administration of Government copyright.

Part III NATURE AND DURATION OF COPYRIGHT

• 13. Nature of copyright in literary, musical or artistic works, films and sound recordings.
• 14. Nature of copyright in works of architecture.
• 15. Nature of copyright in broadcasts.
• 16. Broadcasting of works incorporated in films. ​
• 17. Duration of copyright in literary, musical or artistic works (other than photographs).
• 18. Duration of copyright in published editions.
• 19. Duration of copyright in sound recordings.
• 20. Duration of copyright in broadcasts.
• 21. Duration of copyright in photographs.
• 22. Duration of copyright in films.
• 23. Duration of copyright in works of Government, Government organizations and international bodies.
• 24. Government use of copyright.
• 25. Moral rights.

Part IV OWNERSHIP AND ASSIGNMENT OF COPYRIGHT

• 26. First ownership of copyright.
• 27. Assignment, licenses and testamentary disposition.

Part V COPYRIGHT TRIBUNAL

• 28. Establishment of Copyright Tribunal.
• 29. Appointment of Chairman and members of Tribunal.
• 30. Proceedings before the Tribunal.
• 31. License to produce and publish translation.
• 32. Appeal from decision of the Tribunal.
• 33. Tribunal may request for information.
• 34. No action to lie against Tribunal.
• 35. Regulations relating to Tribunal.

Part VI REMEDIES FOR INFRINGEMENTS AND OFFENCES

• 36. Infringements.
• 37. Action by owner of copyright and relief.
• 38. Proceedings in case of copyright subject to exclusive license.
• 39. Restriction on importation of infringing copies.
• 40. Back-up copy of computer program. ​
• 41. Offences.
• 42. Affidavit admissible in evidence.
• 43. Penalty.

Part VII ENFORCEMENT

• 44. Entry by warrant or otherwise.
• 45. Effecting entry, removal and detention.
• 46. List of things seized.
• 47. Sealing of things.
• 48. Obstruction to search.
• 49. Warrant admissible notwithstanding, etc.
• 50. Powers of investigation.
• 51. Admissibility of statement.
• 52. Disclosure of information.
• 53. Conduct of prosecution in court.
• 54. Forfeiture of articles.
• 55. Proportional examination of articles seized to be accpeted.
• 56. Protection of informers from discovery.
• 57. Protection of Assistant Controllers and police officers.

Part VIII MISCELLANEOUS

• 58. Disputes with licensing bodies.
• 59. Regulations and extension of application of Act.
• 60. Savings.
• 61. Repeal.

An Act to make better provisions in the law relating to copyright and for other matters connected therewith.

BE IT ENACTED by the Duli Yang Maha Mulia Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows:

(2) This Act shall apply throughout Malaysia.

Extent of application. 2. (1) Subject to this section, this Act shall apply in relation to works made before the commencement of this Act as it applies in relation to works made thereafter.

(2) Where only by virtue of this Act copyright subsists in a work that was made before the commencement of this Act, nothing done before the commencement of this Act shall be taken to constitute an infringement of that copyright.

(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.

Interpretation. 3. In this Act, unless the context otherwise requires—

“adaptation” includes any of the following, that is to say—

“artistic work” includes—

“broadcast” means the transmitting, for reception by the general public, by wireless means or wire, of sounds or images or both; and “broadcasting” shall be construed accordingly;

​ “broadcasting service” means any service of radio or television broadcast, operated under the general direction and control of or under license by the Government, in any part of Malaysia;

“building” includes any structure;

“citizen” includes a person who, if he had been alive on the relevant day, would have qualified for citizenship under the Federal Constitution;

“communication by cable” means the operation by which signals are guided by wire, beam or other conduction device, to the public or any section thereof, for reception, and “communicate by cable” shall be construed accordingly;

“computer program” means an expression, in any language, code or notation, of a set of instructions (whether with or without related information) intended to cause a device having an information processing capability to perform a particular function either directly or after either or both of the following:

“Controller”, “Deputy Controller” and “Assistant Controller” means respectively the Controller of Copyright, the Deputy Controller of Copyright and an Assistant Controller of Copyright appointed under section 5(1);

“copy” means a reproduction of a work in written form, in the form of a recording or film, or in any other material form;

“copyright” means copyright under this Act;

​ “educational institution” shall have the same meaning as assigned to it in the 43/61. Education Act 1961;

“film” means any fixation of a sequence of visual images on material of any description, whether translucent or not, so as to be capable by use of that material with or without any assistance of any contrivance—

and includes the sounds embodied in any sound-track associated with a film;

“fixation” means the embodiment of sounds, images or both in a material form sufficiently permanent or stable to permit them to be perceived, reproduced or otherwise communicated during a period of more than transitory duration;

“future copyright” means copyright which will or may come into existence in respect of any future works or class of works or other subject matter, or on the coming into operation of any provision of this Act, or in any future event;

“Government” means the Government of Malaysia or the Government of any State;

“infringing copy” means any reproduction of any work eligible for copyright under this Act, the making of which constitutes an infringement of the copyright in the work;

“licence” means a lawfully granted licence in writing, permitting the doing of an act controlled by copyright;

“licensing body” means a society, firm or other organization which has as its main object, or one of its main objects, the negotiation or granting of licences in respect of copyright works, and includes an individual carrying on the same activity;

​ “literary work” includes—

“manuscript”, in relation to a work, means the original document embodying the work, whether written by hand or not;

“material form”, in relation to a work or a derivative work, includes any form (whether visible or not) of storage from which the work or derivative work, or a substantial part of the work or derivative work can be reproduced;

“Minister” means, unless otherwise stated, the Minister charged with the responsibility for copyright matters;

“musical work” means any musical work, and includes works composed for musical accompaniment;

“photograph” means any product of photography or of any process akin to photography, other than a part of a film, and includes a product created through any electronic process;

​ “premises” means any place, stationary or otherwise established or set up by any person, and includes any such place in the open air, whether such place is with or without enclosure, and also includes vehicles, aircraft, ships and any other vessel;

“qualified person”,—

“rebroadcast” means a simultaneous or subsequent broadcast by one broadcasting service of the broadcast of another broadcasting service, whether situated in Malaysia or abroad, and includes diffusion of such broadcast over wires; and “rebroadcasting” shall be construed accordingly;

“relevant day” means Merdeka Day in respect of West Malaysia and Malaysia Day in respect of Sabah, Sarawak and the Federal Territory of Labuan;

“reproduction” means the making of one or more copies of work in any form or version and “reproducing” shall be construed accordingly;

“sound recording” means any fixation of a sequence of sounds capable of being perceived aurally and of being reproduced by any means, but does not include a sound-track associated with a film;

“Tribunal” means the Copyright Tribunal established under section 28; and

“work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not separable from the contribution of the other author or authors.

​ Publication. 4. (1) Subject to this section, for the purposes of this Act—

(2) For the purposes of this Act, the performance of a literary or musical work and the exhibition of an artistic work does not constitute publication of the work.

(3) For the purposes of this Act, a publication shall be deemed to be a first publication in Malaysia if—

(4) Where in the first instance a part only of a work is published, that part shall be treated for the purposes of this Act as a separate work.

​ Appointment and powers of Controller, Deputy Controllers, etc. 5. (1) The Minister may appoint a Controller of Copyright and such number of Deputy Controllers of Copyright, Assistant Controllers of Copyright and other officers as may be necessary for the purposes of this Act.

(2) The Controller shall, subject to the general direction and control of the Minister, have supervision of all matters relating to copyright under this Act.

(3) The powers and functions of the Controller and the duties required to be discharged by him may be exercised and discharged by any Deputy Controller.

(4) The Controller or Deputy Controller may perform such duties and exercise such powers and functions conferred upon an Assistant Controller by this Act.

(5) The Controller, Deputy Controllers and Assistant Controllers shall be deemed to be public servants within the meaning of the F.M.S. Cap. 45. Penal Code.

No copyright except by virtue of this Act. 6. Subject to this Act, no copyright shall subsist otherwise than by virtue of this Act.

Works eligible for copyright. 7. (1) Subject to this section, the following works shall be eligible for copyright:

(2) Works shall be protected irrespective of their quality and the purpose for which they were created.

​ (3) A literary, musical or artistic work shall not be eligible for copyright unless—

(4) A work shall not be ineligible for copyright by reason only that the making of the work, or the doing of any act in relation to the work involves an infringement of copyright in some other work.

Derivative works. 8. (1) The following derivative works are protected as original works:

(2) Protection of works referred to in subsection (1) shall be without prejudice to any protection of the existing works used.

Copyright in published editions of works. 9. (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—

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) 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.

Qualification for protection. 10. (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—

(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.

Copyright in works of Government, Government organizations and international bodies. 11. (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.

​ Administration of Government copyright. 12. 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.

Nature of copyright in literary, musical or artistic works, films and sound recordings. 13. (1) Copyright in a literary, musical or artistic work, a film, or a sound recording shall be the exclusive right to control in Malaysia—

of the whole work or a substantial part thereof, either in its original or derivative form:

Provided that in respect of sound recording, the rights mentioned in (b) , (c) and (d) shall not be exercised without the consent of the author of the musical work.

(2) Notwithstanding subsection (1), the right of control under that subsection does not include the right to control—

Provided that any reproduction of a work made under this paragraph may, if it is of exceptional documentary character, be preserved in the archives of the broadcasting service which are hereby designated official archives for the purpose, but subject to this Act, shall not be used for broadcasting or for any other purpose without the consent of the owner of the relevant part of the copyright in the work;

Provided that mention is made of the source and of the name of the author which appears on the work thus used;

Provided that the source is clearly indicated; and

Nature of copyright in works of architecture. 14. 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.

Nature of copyright in broadcasts. 15. (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 communication 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 (a) , (g) , (h) and (o) of subsection (2) of section 13 shall also apply to the copyright in a broadcast.

(3) The copyright in a televisions broadcast shall include the right to control the taking of still photographs from such broadcasts.

Broadcasting of works incorporated in films. 16. (1) Where the owner of the copyright in any literary, musical or artistic work authorized 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.

Duration of copyright in literary, musical or artistic works (other than photographs). 17. (1) Except as otherwise provided in this Act, copyright in any literary, musical or artistic work (other than a photograph) shall subsist during the life of the author and fifty years after his death.

(2) Where a literary, musical or artistic work (other than a photograph) 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.

(3) Where a literary, musical or artistic work (other than a photograph) is published anonymously or under a pseudonym, copyright shall subsist until fifty years ​ from the beginning of the calendar year next following the year in which the work was first published:

Provided that in the event of the identity of the author becoming known, the duration of copyright shall be calculated in accordance with subsection (1).

(4) In this section, a reference to “author” shall, in the case of a work of joint authorship, be construed as a reference to the author who dies last.

Duration of copyright in published editions. 18. Copyright in a published edition shall subsist until fifty years from the beginning of the calendar year next following the year in which the edition was first published.

Duration of copyright in sound recordings. 19. Copyright in a sound recording shall subsist until fifty years from the beginning of the calendar year next following the year in which the recording was first published.

Duration of copyright in broadcasts. 20. Copyright in a broadcast shall subsist until fifty years from the beginning of the calendar year next following the year in which the broadcast was first made.

Duration of copyright in photographs. 21. Copyright in a photograph shall subsist until fifty years from the beginning of the calendar year next following the year in which the photograph was first published.

Duration of copyright in films. 22. Copyright in a film shall subsist until fifty years from the beginning of the calendar year next following the year in which the film was first published.

Duration of copyright in works of Government, Government organizations and international bodies. 23. 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.

24. (1) Notwithstanding anything contained in this Act, the copyright in any work which is eligible for copyright is not infringed by—

of any work by or on behalf of the Government.

(2) The Government shall pay to the owner of the copyright adequate compensation for the use of the work.

Moral rights. 25. (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:

(3) Where a person is authorized, whether by virtue of an assignment, a licence or otherwise, to publish, reproduce, perform in public, broadcast or communicate by cable a work, that person may make modifications to the work if it would be reasonable to expect that the authorized publication, reproduction, public performance, broadcast or communication by ​ cable, as the case may be, could not take place without the modifications; but nothing in this subsection shall authorize a modification to a work which would constitute a contravention of subsection (2).

(4) The author or, after his death, his personal representative, may exercise the rights conferred by this section notwithstanding that the copyright in the work is not at the time of the act complained of, vested in the author or personal representative, as the case may be.

(5) Any contravention or threatened contravention of this section in respect of a work shall be actionable at the suit of the author of the work or, is he is dead, at the suit of his personal representative, as a breach of statutory duty.

(6) Any damages recovered under this section by a personal representative in respect of a contravention committed in relation to a work after the death of the author of the work shall devolve as part of the author’s estate, as if the right of action had subsisted and had been vested in him immediately before his death.

(7) Where in an action brought under this section a contravention of the restrictions imposed by this section is proved or admitted, the court may order the offender to publish such correction in such manner as the court may direct.

(8) Nothing in this section shall derogate from any right of action or other remedy (whether civil or criminal) in proceedings instituted otherwise than by virtue of this section; but this subsection shall not be construed as requiring any damages recovered by virtue of this section to be disregarded in assessing damages in any proceedings instituted otherwise than by virtue of this section and arising out of the same transaction.

First ownership of copyright. 26. (1) Copyright conferred by section 10 shall vest initially in the author.

​ (2) Notwithstanding subsection (6) of section 27, where a work—

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)—

(5) Paragraphs (b) and (c) of subsection (4) shall cease to apply when the identity of the author becomes known.

Assignment, licences and testamentary disposition. 27. (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 deemed to be co-owners if they share a joint interest in the whole or any part of a copyright.

(6) An assignment, licence or testamentary disposition may be effectively granted or made in respect of a future work, or an existing work in which copyright does not yet subsist, and the future copyright in any such work shall be transferable by operation of law as movable property.

(7) Where under a testamentary disposition, whether specific or general, a person is entitled beneficially or otherwise, to the manuscript of a literary or musical work, or to an artistic work, and the work has not been published before the death of the testator, the testamentary disposition shall, unless a contrary intention is indicated in the testator’s will or a codicil thereto, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

Establishment of Copyright Tribunal. 28. There shall be established a tribunal to be known as the Copyright Tribunal.

29. (1) The Minister shall appoint a suitable person to be the Chairman of the Tribunal and not more than twenty other suitable persons as members of the Tribunal.

(2) The Chairman 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 and members of the Tribunal.

(4) The Minister may declare the office of any member of the Tribunal vacant on the ground that he is found to be unfit to continue in office or unable to perform the duties thereof.

(5) The Chairman or any member of the Tribunal may at any time resign from his office by giving notice in writing to the Minister.

(6) The Chairman and members of the Tribunal shall be deemed to be public servants within the meaning of the F.M.S. Cap. 45. Penal Code.

Proceedings before the Tribunal. 30. (1) Every proceedings before the Tribunal shall be heard and disposed of by the Chairman and three 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 is 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 another member of the Tribunal to act as Chairman for the purposes of that proceedings.

(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.

​ Licence to produce and publish translation. 31. (1) Any person may apply to the Tribunal for a licence to produce and publish in the national language a translation of a literary work written in any other language.

(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, 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.

(3) A licence may be granted on an application made under subsection (1) in respect of a work only where—

(4) The licence granted under this section shall not be transferable and shall not extend to the export of copies:

Provided that the sending of copies to another country by the Government or any Government organization shall not constitute export if all of the following conditions are met:

​ (5) The licence shall be valid only for publication of the translation in Malaysia and all copies published under the licence shall bear a notice in the national language stating that the copies are available for distribution only in Malaysia.

(6) Any licence granted under this section shall terminate if a translation in the national language with substantially the same content as that for which a licence has been granted has been published by the owner of the right of translation or with his authorization at a price reasonably related to that charged in Malaysia for comparable works:

Provided that any copies already made before the licence terminates may, however, continue to be distributed until their stock is exhausted.

(7) If the work to be licenced consits mainly of illustrations, no licence under this section shall be granted.

Appeal from decision of the Tribunal. 32. Any person aggrieved by the decision of the Tribunal may appeal within thirty days of such decision to the High Court.

Tribunal may request for information. 33. (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.

No action to lie against Tribunal. 34. 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.

​ Regulations relating to Tribunal. 35. 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:

Infringements. 36. (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 also 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—

unless he satisfies the court that he did not know or had no reasonable grounds of knowing that the making of the article would, if the article had been made in Malaysia by the importer, have constituted an infringement of the copyright.

Action by owner of copyright and relief. 37. (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—

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 subsection as the court may consider appropriate in the circumstances.

(3) No injunction shall be issued in proceedings for infringement of copyright which requires a completed or partly built building to be demolished or which prevents the completion of a partly built building.

​ (4) For the purposes of this section and section 38—

(5) For the purposes of this section, owner of the copyright means the first owner or an assignee, as the case may be, of the relevant part of the copyright.

Proceedings in case of copyright subject to exclusive licence. 38. (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 the court, to proceed with the action, in so far as it is brought under that section and relates to that infringement, unless the other party is either joined as a plaintiff in the action or added as a defendant: but this subsection shall not affect the granting of an interlocutory injunction on the application of either of them.

(4) In any action brought by the exclusive licensee by virtue of this section, any defence which would have been available to a defendant in the action, if this ​ section had not been enacted and the action have been brought by the owner of the copyright, shall be available to that defendant as against the exclusive licensee.

(5) Where an action is brought in the circumstances mentioned in subsection (3) and the owner of the copyright and the exclusive licensee are not plaintiffs in the action, the court, in assessing damages in respect of any infringement as is mentioned in that subsection—

(6) Where an action, in so far as it is brought under section 37, relates (wholly or partly) to an infringement in respect of which the owner of the copyright and the exclusive licensee have concurrent rights of action under that section, and in that section (whether they are both parties to it or not) an account of profits is directed to be taken in respect of that infringement, then subject to any agreement of which the court is aware whereby the application of those profits is determined as between the owner of the copyright and the exclusive licensee, the court shall apportion the profits between them as the court may consider just and shall give such directions as the court may consider appropriate for giving effect to the apportionment.

(7) In an action brought either by the owner of the copyright or by the exclusive licensee—

(8) Where, in an action brought in the circumstances mentioned in subsection (3), whether by the owner of the copyright or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or subsequently) but is added as a defendant, he shall not be liable for any costs in the action unless he enters an appearance and takes part in the proceedings.

(9) For the purposes of this section, the expression—

“exclusive licence” means a licence signed by or on behalf of an owner or a prospective owner of copyright authorizing the licensee to the exclusion of all other persons, to exercise a right which by virtue of this Act would (apart form the licence) be exercisable exclusively by the owner of the copyright; and “exclusive licensee” shall be construed accordingly;

“if the licence had been an assignment” means if, instead of the licence, there had been granted (subject to terms and conditions corresponding as nearly as may be with those subject to which the licence was granted) an assignment of the copyright in respect of its or their application to the doing, at the place and time authorized by the licence, of the acts so authorized;

“the other party”, in relation to the owner of the copyright, means the exclusive licensee, and in relation to the exclusive licensee, means the owner of the copyright.

​ Restriction on importation of infringing copies. 39. (1) The owner of copyright in any work may give notice in writing to the Minister—

Provided that the period specified in a notice under this subsection shall not exceed such number of years as may be prescribed by the Minister under subsection (4) and shall in any case, extend beyond the end of the period for which copyright is to subsist.

(2) This section applies to any copy of a work made outside Malaysia which, if it had been made by the importer in Malaysia, would have infringed the copyright in the work; and for the purpose of this section such copies shall be referred to as “infringing copies”.

(3) Where a notice has been given under this section in respect of a work and has not been withdrawn, the importation into Malaysia at a time before the end of the period specified in the notice of any infringing copies shall he prohibited:

Provided that this subsection shall not apply to the importation of any article by a person for his private and domestic use.

(4) The Minister may make regulations prescribing the form in which notices are to be given under this section and requiring a person giving such notice, either at the time of giving the notice or at the time when the infringing copies are imported, or at both those times, to furnish such evidence and to comply with such other conditions, if any, as may be specified in the regulations.

​ (5) Without prejudice to the generality of subsection (4), regulations made under that subsection may include provisions for requiring a person who has given a notice under subsection (1)—

(6) Any Assistant Controller, police officer not below the rank of Inspector or any officer of Customs may search for and seize and infringing copies which are prohibited under subsection (3).

(7) Whenever any infringing copies are seized under this section, the seizing officer shall forthwith give notice in writing of such seizure and the grounds thereof to the owner of the infringing copies if known, either by delivering such notice to him personally or by post at his residence, if known:

Provided that such notice shall not be required to be given where such seizure is made on the person, or in the presence of the offender or the owner or his agent, or in the case of a vessel or aircraft, in the presence of the master or pilot, as the case may be.

(8) Infringing copies shall be liable to forfeiture as if they were prohibited goods under the law relating to Customs.

​ Back-up copy of computer program. 40. (1) Subject to subsection (2), 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—

(2) Subsection (1) does not apply to the making of a reproduction of a computer program, or of an adaptation of a computer program—

(3) For the purposes of this section—

​ Offences. 41. (1) Any person who during the subsistence of copyright in a work—

shall, unless he is able to prove that he had acted in good faith and had no reasonable grounds for supposing that copyright would or might thereby be infringed, be guilty of an offence and shall on conviction be liable—

(2) For the purposes of paragraphs ( a ) to ( f ) of subsection (1), any person who has in his possession, custody or control three or more infringing copies of a work in the same form shall, unless the contrary is proved, be presumed to be in possession of or to import such copies otherwise than for private or domestic use.

(3) Any person who causes a literary or musical work to be performed in public shall be guilty of an offence under this subsection unless he is able to prove that he had acted in good faith and had no reasonable grounds for supposing that copyright would or might thereby be infringed.

(4) Where an offence under this section is committed by a body corporate or by a person who is a partner in a firm, every director, secretary or manager of the body corporate or, as the case may be, every other partner in the firm shall be deemed to be guilty of the offence unless he proves that the offence was committed without his consent or connivance and that he exercised all due diligence to prevent the commission of the offence.

Affidavit admissible in evidence. 42. (1) An affidavit or statutory declaration made before any person having authority to administer oath by any person claiming to be the owner of the copyright or by his agent in any of the works eligible for copyright under this Act stating that—

shall be admissible in evidence in any proceedings under this Act and shall be prima facie proof of the facts contained therein.

​ (2) Any person who acts as an agent for the purposes of subsection (1) shall be required to produce such authorization in writing.

(3) If the ownership of the copyright is claimed by a company or any other body of persons, the affidavit or statutory declaration shall be made by a responsible officer of the company or body of persons.

Penalty. 43. 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 not exceeding twenty-five thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Entry by warrant or otherwise. 44. (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, 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, 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 believing that by reason of delay in obtaining a search warrant, any copy, contrivance, article, book or document used to commit or to be used to commit an offence under this Act is likely to be removed or ​ destroyed, he may enter such house or premises without a warrant and seize any such copy, contrivance, article, book or document from therein.

(2) An Assistant Controller or a police officer not below the rank of Inspector making the search may seize any infringing copy, 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, book or document and if any such copy, contrivance, article, book or document is seized, he shall produce the same before the magistrate, and upon such production the magistrate shall direct the same to be kept in the custody of the Controller or the police for the purpose of any investigation or prosecution under this Act.

Effecting entry, removal and detention. 45. 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—

List of things seized. 46. (1) The Assistant Controller or police officer not below the rank of Inspector seizing any infringing copy, contrivance, article, 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.

​ Sealing of things. 47. 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.

Obstruction to search. 48. Any person who—

shall be guilty of an offence.

Warrant admissible notwithstanding defects, etc. 49. A warrant issued under this Act shall be valid and enforceable notwithstanding any defect, mistake or omission therein and any copy, contrivance, article, book or document seized under such warrant or in the application for such warrant shall be admissible in evidence in any proceedings under this Act.

​ Powers of investigation. 50. (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 except that the power to arrest without warrant given by the F.M.S. Cap. 6. Criminal Procedure Code in any seizable offence may not be exercised by any Assistant Controller.

Admissibility of statement. 51. (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—

(2) Notwithstanding the provisions of any written law to the contrary, a person accused of an offence to which subsection (1) applies shall not be bound to answer any question relating to the case after he has been cautioned.

Disclosure of information. 52. Where a person discloses 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.

Conduct of prosecution in court. 53. Any criminal prosecution before the Session Court for an offence under this Act or subsidiary legislation made thereunder may be conducted by an Assistant Controller or a police officer not below the rank of Inspector.

​ Forfeiture of articles. 54. (1) Any article, 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, book, document, copy or contrivance seized from that person be destroyed 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, 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 setforth .

(4) Any person asserting that he is the owner of any article, book, document, copy or contrivance seized under this Act and that the same are not liable to forfeiture may personally or by his agent authorized in writing by him give written notice to an Assistant Controller of his claim.

(5) On receipt of a notice under subsection (4), the Assistant Controller shall refer the notice to the Controller who may, after such enquiry as may be necessary, direct that such article, book, document, copy or contrivance be released or forfeited or refer the matter to the court for decision.

(6) The court to which the matter is referred shall issue a summons requiring the person asserting that the is the owner of the article, book, document, copy or contrivance and the person from whom they were seized to appear before it and upon his appearance or default to appear, due service of the summons being proved, the court shall proceed to the examination of the matter and on proof that an offence under this Act ​ or subsidiary legislation made thereunder has been committed and that such article, book, document, copy or contrivance was the subject matter or was used in the commission of such offence, shall order the same to be forfeited or may, in the absence of such proof, order the release of such article, book, document, copy or contrivance to the person entitled to it.

(7) Any article, book, document, copy or contrivance forfeited or deemed to be forfeited shall be delivered to the Controller who shall dispose of it in a manner he deems fir or deliver it up to the first owner of copyright in question, his assignee or exclusive licencee , as the case may be.

Proportional examination of articles seized to be accepted. 55. (1) Where packages or receptacles containing copies suspected of infringing any copyright or otherwise liable to seizure have been seized, it shall be sufficient only to open an 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 in the package or receptacle are of the same nature as those copies examined.

Protection of informers from discovery. 56. (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 practical statement which he knew or believed to be false or did not believe to be true, or if in any other proceedings the court is of the opinion that justice cannot be fully done between the parties thereto without the discovery of the informer, it shall be lawful for the court to require the production of the original complaint, if in writing, and permit enquiry, and receive full disclosure concerning the informer.

Protection of Assistant Controllers and police officers. 57. 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 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.

Disputes with licensing bodies. 58. (1) Where a dispute arises between any person and a licensing body with respect to—

either that person or the licensing body may refer the dispute to the High Court.

(2) This section applies to a general licence authorizing the licensee—

(3) For the purposes of this section, a licensing body shall be deemed to have refused to grant a general licence to a person if the licensing body has failed, within a reasonable time from the date when that person had made a written request to the licensing body for such a licence, to grant a licence or to state in writing the terms and conditions on which it is prepared to grant the licence.

(4) While an order made by the High Court by way of determination of a dispute referred to it pursuant to subsection (1) remains in force, either party to the dispute may refer the matter back to the High Court for further consideration, but, except with the special leave of the Court—

​ Regulations and extension of application of Act. 59. The Minister may make regulations for the carrying out of the provisions of this Act and in particular and without prejudice to the generality of the foregoing, may make regulations extending the application of this Act in respect of any or all of the works referred to in subsection (1) of section 7—

a country which is a party to a treaty or a member of any convention or union to which Malaysia is also a party or a member, as the case may be, and which provided for protection of copyright in works which are protected under this Act.

Savings. 60. (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.

​ Repeal. Act 10. 61. The Copyright Act 1969 is repealed:

This work is in the public domain in the U.S. because it is an edict of a government , local or foreign. See § 313.6(C)(2) of the Compendium II: Copyright Office Practices . Such documents include "legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials" as well as "any translation prepared by a government employee acting within the course of his or her official duties."

These do not include works of the Organization of American States, United Nations, or any of the UN specialized agencies. See Compendium III § 313.6(C)(2) and 17 U.S.C. 104(b)(5).

A non-American governmental edict may still be copyrighted outside the U.S. Similar to {{ PD-in-USGov }}, the above U.S. Copyright Office Practice does not prevent U.S. states or localities from holding copyright abroad, depending on foreign copyright laws and regulations.

Public domain Public domain false false

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• Laws of Malaysia
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Copyright Law in Malaysia: How to Ensure Exclusive Rights

Having a thorough understanding of copyright law in Malaysia is pertinent in safeguarding the value of your work. In this article, we cover what you need to know about copyright, from its definition to the rights of copyright owners and copyright infringements. 

What Is Copyright?

Copyright is one of the many forms of intellectual property rights that safeguard creative works produced by people in the creative businesses, such as authors, photographers, songwriters, musicians, producers, artists, copyright owners, and performers. 

In addition, copyright protects the exclusive right to create derivative works as well as to perform and display the original work. In Malaysia, the legal framework for copyright is governed under the Copyright Act 1987. 

Copyright Law in Malaysia

In Malaysia, unlike patents, trademarks, and industrial designs, there is no registration process for copyright. Instead, copyright works immediately upon the creation of an original work and is inherently owned by the creator without the need for additional actions or procedures.

Since copyright cannot be registered in Malaysia, it can be challenging to establish ownership of the copyright. Therefore, it is advisable to prepare and create proper documentation for ownership verification. 

To do so, copyright owners can submit a Copyright Voluntary Notification to the Intellectual Property Corporation of Malaysia ( MyIPO ). Owners can also establish their ownership through a Statutory Declaration.

Read More: The Importance of the Entire Agreement Clause

What Works Are Protected by Copyright Law in Malaysia

A broad range of works is covered by the Copyright Act. Any eligible work is automatically safeguarded under the Act, provided that certain conditions are met: 

• Sufficient effort has been expended to make the work original in character; 
• The work has been written down, recorded, or otherwise reduced to material form;
• The creator is a qualified person, or the work was created in Malaysia, or the work was first published in Malaysia.

The list of work protected under the Copyright Act includes:

• Musical works
• Artistic works (paintings, sculptures, photographs, drawings, diagrams, maps, charts, engravings, etc.)
• Literary works (books, articles, plays, pamphlets, scripts, memoranda, tables, reports, compilations, etc.)
• Sound recordings
• Derivative works

Period of Copyright Protection in Malaysia

The period of copyright protection differs from one country to another. Below are the duration of copyright protection in Malaysia:

1. Literary, Musical or Artistic Works

The copyright protection for these categories typically lasts for the duration of the author’s life and 50 years after their death. This means that the copyright can be used for another 50 years by the estate of the deceased author.

2. Film, Sound Recordings, and Performer

Copyright for films, sound recordings, and performances subsists for 50 years beginning from the date of publication or fixation for films and sound recordings. The same period also applies to the performance or fixation in a sound recording for performers.

3. Broadcasts

Copyright for broadcasts exists in the form of transmissions via wire or wireless means and lasts 50 years from the first broadcast date.

When the copyright protection period expires, the work enters the public domain. At this point, the work can be used without the copyright owner’s consent.

Read More: 7 Must Have Terms and Conditions for Your eCommerce Website

Rights of Copyright Owners in Malaysia

The Malaysian government has presented various privileges to copyright owners, consisting of legal, moral, and economic rights.

1. Legal Rights

The copyright law grants the author, copyright owner, and performer the exclusive authority to manage their works. This includes the ability to take civil and criminal legal action against any infringements of their copyright. 

In Malaysia, the Enforcement Division of the Ministry of Domestic Trade, Cooperative and Consumerism (MTDCC) or the Royal Malaysian Police are the bodies that handle the criminal prosecution of copyright infringement cases.

2. Moral Rights

Moral rights are categorised into:

Paternity Rights

• Paternity rights enable copyright owners to claim ownership over their creations’ originality. Owners are entitled to receive credit and have their names mentioned in any appropriate acknowledgements.
• Under Section 13(2) of the Copyright Act, if a work is referenced, copied, aired, or shared with the public, it must give appropriate credit to the source and author of the work. The creator can also choose to keep their identity anonymous.

Integrity Rights 

• According to Section 25(2) of the Copyright Act, integrity rights grant owners the authority to prohibit any unauthorised user from altering, mutilating, misrepresenting, or modifying their work’s original meaning.
• Essentially, owners have the authority to stop their work from being published without consent, copied, used in an unfavourable context, or destroyed without first offering to return it to the author.

3. Economic Rights

Copyright owners have the economic privileges of reproduction rights, communication to the public rights, performance rights, public display or playing rights, distribution rights, and commercial rental rights. 

These privileges can be exercised within the protection period specified in the Copyright Act 1987. 

Economic rights enable copyright owners to receive financial compensation from others using their works for commercial purposes. These rights can be transferred through assignment, licensing, or testamentary disposition.

Copyright Infringements in Malaysia

Examples of activities of copyright infringements include:

• Reproducing the work in any form, such as performing, showing, playing, or distributing it to the public
• Importing any works into Malaysia for commercial or financial gain
• Creating or renting out infringing copies for sale
• Selling, renting, exhibiting, or offering for sale or rent any infringing copies
• Distributing infringing copies
• Possessing any infringing copy, except for private and domestic use
• Publicly exhibiting any infringing copy for commercial purposes
• Creating or possessing any device that is used or intended for creating infringing copies

Is Copyright Law in Malaysia Recognised Globally?

As a signatory of the Berne Convention, copyrighted works originating from Malaysia are recognised by all the member countries of the convention. 

Due to this, creative works produced in Malaysia are eligible for copyright protection in Malaysia and other Berne Convention member countries worldwide. Hence, Malaysian copyright owners can potentially exploit their works in foreign markets with minimal additional cost.

Read More: What To Know About ChatGPT and Malaysia’s Copyright Act 1987

Engage a Professional Copyright Lawyer

In conclusion, it is imperative to comprehend your rights and responsibilities under the copyright law in Malaysia. As a trusted boutique law firm , Sabrina Hashim & Co provides sound legal advice to protect your intellectual property rights. 

Combining extensive knowledge and legal experience, our lawyers deliver holistic solutions in technology and telecommunication , media and entertainment , corporate and commercial , and on-demand legal services. Above all, we strive to provide tailored solutions that suit your needs.

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For online businesses, selecting the right e-commerce lawyer is pivotal to navigating the complex legal landscape and ensuring long-term business prosperity. The current digital market

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Due to a lack of prevention awareness, online scam activities and fraud have become rampant in Malaysia, causing billions of yearly losses. Various bodies and

Amendments to Malaysia’s Personal Data Protection Act Explained

The Personal Data Protection Act 2010 (PDPA) stands as the cornerstone of data protection in Malaysia. The act sets the standard for the handling, processing,

NFT and Digital Art: Legal Implications in Malaysia

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A Beginner's Guide on Copyright© in Malaysia

Updated: Nov 3, 2022

You have spent countless hours crafting a new novel, writing a new software or composing a song, and you wish to protect these creations from being copied by others. Fret not! All these are protected as copyright in Malaysia!

What is copyright?

Copyright is the exclusive right to control creative works for a specific period of time. In Malaysia, copyright is governed by the Copyright Act 1987 ( “Copyright Act” ).

The works eligible to be protected under the Malaysian Copyright Act include:-

literary works , eg. novels, books, articles, tables and computer programs

musical works , including works composed for musical accompaniments

artistic works , eg. graphic work, photographs, work of architecture being a buildings

films , eg. fixation of a sequence of visual images on the material of any description, moving picture

sound recordings mean any fixation of a sequence of sounds or of a representation of sounds capable of being perceived aurally and of being reproduced by any means

broadcasts ; and

derivative works , eg. translations and adaptations of works eligible for copyright protection.

( Section 7(1) of the Malaysian Copyright Act 1987 )

Can we protect ideas?

The short answer is, NO. However, it is worth noting that copyright could protect the expression of the idea or creative authorship. So, if you imagine a plot, this is not protected. But when you express it in a novel, the expression of the plot in that novel will be protected.

( Section 7(2A) & Section 8 of the Malaysian Copyright Act 1987 )

What are the requirements to be entitled to copyright protection?

Your literary, musical or artistic works will be protected as the copyright, so long as:-

(1) Sufficient effort has been expended to make the work original in character . In short, make sure it is Original! This depends on the degree of effort, skill, labour and time expended by the author. Unlike patent and industrial design, the work does not need to be new or inventive, as long as it is original from the author.

Interestingly, the quality of the work is not a concern either! Section 7(2) of the Copyright Act provides that works shall be protected irrespective of their quality and the purpose for which they were created.

(2) The work has been written down, recorded or reduced to material form. This is satisfied provided that the work that is stored or a substantial part of it can be reproduced. This is contrary to films, sound recordings and broadcasts, which need not fulfil this requirement.

( Section 7(3) of the Copyright Act 1987 )

What are the rights enjoyed by a Copyright Owner?

Having copyright protection, the owner of the work will enjoy the following rights:-

legal rights - this is the exclusive right to enforce their copyrighted works in cases for infringement either by civil or criminal action.

economic rights - rights of reproduction, rights of communication to the public, rights to perform, showing or playing to the public, rights of distribution and rights of commercial rental. Further, it also includes the rights to derive financial reward from the use of the works by way of assignment, licensing and testamentary disposition.

moral rights - this includes the paternity right (right to be identified as the author of the work) and integrity right (prevent users from modifications of the works without consent, whereby it will significantly alter the original work and adversely affect the author’s honour or reputation.)

( Sections 13 and 25 of the Malaysian Copyright Act 1987 )

How long is the duration of copyright protection?

The duration of copyright protection is dependent on the categories of copyright work involved as discussed above.

Generally, for literary, musical or artistic works , the duration of the copyright is the life of the author plus 50 years after his death. In the case of a work of joint authorship, the computation only starts from the author who dies last.

( Sections 17(1), (4) of the Malaysian Copyright Act 1987 )

For film and sound recordings , the copyright shall subsist for 50 years from the following year in which the work was first published. It is stated in Section 4 of the Copyright Act that a film or sound recording is first published when the former is sold and the latter is made with the consent of the author.

However, if the sound recording has not been published, its copyright shall subsist for 50 years from the following year in which the fixation is fixed. Fixation means the sound recording is reduced into a material form and able to be reproduced.

As for the performers’ rights , the copyrighted work shall subsist for 50 years from the following year the performance was given or fixed in a sound recording.

( Sections 19 and 23A of the Malaysian Copyright Act 1987 )

For the copyright in broadcasts, its protection shall subsist for 50 years from the following year in which the broadcasts was first made.

( Section 20 of the Malaysian Copyright Act 1987 )

Do we need registration to be eligible for protection under copyright?

In short, NO. Copyright protection subsists automatically in every work if the prerequisites are met, without the need for registration, of which the author is a “qualified person”. This includes any citizen or permanent resident of Malaysia, or a body corporate incorporated under Malaysian law. This is one of the key differences between copyright and the other intellectual property such as trademark and patent.

( Sections 3 and 10 of the Malaysian Copyright Act 1987 )

However, it is highly advisable to apply for a Copyright Voluntary Notification , to assist in providing the prima facie evidence of the ownership and the date of creation. This is because even though there is no need for registration for copyright protection, it is sometimes difficult for the owner to set out evidence against a copyright infringement.

( Sections 26A and 26B of the Malaysian Copyright Act 1987 )

How to apply for Copyright Voluntary Notification in Malaysia?

Step 1 - Compile the works intended to be protected and relevant information

While you may file a hardcopy of the works with the Malaysian Controller of Copyright, it is advisable to save them in digital form for submission purposes, eg. DVD.

In addition, you will need to compile the following information,

(1) Name and address of the owner(s)

(2) IC number of the owner (for natural persons)

(3) Registration number of the owner (for legal persons)

(4) Name and address of the author(s)

(5) IC number of the author(s)

(6) Title of work

(7) Date of creation and publication of the work

Step 2 - Prepare a Statutory Declaration

**Update: following the amendements brought by Copyright (Amendment) Act 2022 and Copyright (Voluntary Notification) Regulations 2022, the requirement on filing a Statutory Declaration has been removed.

Before this, the applicant is required to file a Statutory Declaration declaring that the applicant is the author or owner of the copyright in the work, or how the applicant is being vested with the right or interest in the work. Further, the said SD should state the date that the work was recorded and reduced into material form, and also exhibit a copy of the work. The SD must be signed and attested before a Sessions Court Judge, Magistrate, Commissioner for Oaths or Notary Public.

Step 3 - Prepare Copyright Application Forms

The Applicant to complete Form CR-1 for Original and Derivative Works, sign and submit to the Controller of Copyright. It is important to note that there are 2 types of names to be included in the application, i.e. the applicant’s name and the author’s name. The applicant will be the owner of the copyright.

Step 4 - Examination and Recordal of Notification of Copyright

Upon submission, the Controller of Copyright will examine the contents of the submitted information and documents. The Controller usually takes about 6 to 12 months to examine an application.

If there are any issues with the copyright voluntary copyright application, the Controller will issue a letter requesting the applicant to rectify the error within the prescribed period. If the applicant does not respond to the said letter, the application would be deemed withdrawn.

Step 5 - Recordal of Copyright Voluntary Notification and Issuance of Certificate

Once the Controller of Copyright is satisfied that the application meets the requirements, the Controller will issue a Notice of Recordal of Copyright Voluntary Notification informing the successful recordal. It is worth noting that there is no renewal fee required to maintain the Copyright Voluntary Notification.

The applicant may opt to apply for the Voluntary Notification of Copyright directly or through a representative. Form CR-3 shall also be submitted if a representative is appointed for the filing of the application, alongside the relevant forms and information stated above. However, a foreign applicant must appoint a representative for this application.

It is always advisable to appoint a competent IP agent or lawyer to assist with your copyright voluntary notification to avoid unnecessary mistakes.

Do we need registration overseas?

Under the Berne Convention for the Protection of Literary and Artistic Works, copyright protection is obtained automatically without the need for registration or other formalities in all member states to the Berne Convention, including Malaysia.

( Articles 5(2) of the Berne Convention for the Protection of Literary and Artistic Works )

Register your copyright if it is worth the investment

Even though copyright protection is automatically conferred by the law, it is highly advisable to register a copyright for works that are commercially viable. We would not know when we need our copyright proof of ownership to knock on the infringer’s door. Call us today to protect your copyright!

Written by,

Lawrence Tan

Registered Trademark, Patent and Design Agent

LL.B (HONS), CLP Advocate & Solicitor (Non-Practising)

Veronnie Thu

IP Legal Intern

Bachelor of Laws

Disclaimer: The above information is merely for general sharing and does not constitute any legal advice. Readers are advised to seek individual advice from the professionals.

Copyright reserved 2021 © IP Gennesis Sdn Bhd

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Copyright in Malaysia (part 1)

10 Nov Copyright in Malaysia (part 1)

In Malaysia, copyright protection is provided under the Copyright Act 1987. Unlike trademarks, designs and patents (other intellectual property rights), there is no specific system of registration for copyright in Malaysia. Copyright exists as soon as the original work is created and belongs to the creator of the work automatically under Section 26 of the Copyright Act 1987 . Copyright protects creative works made by authors, producers, photographers, musicians, songwriters, artists, sculptors and other persons in creative businesses – Section 3 of the Copyright Act 1987 . Malaysia is a signatory of the Berne Convention and therefore, copyrighted work created in Malaysia would be recognized by each contracting member country of the Berne Convention.

What can be protected by copyright?

Books (traditional or digital), scripts, music, pictures, videos, source codes for software, manuals/guidebooks, university journals, and other kinds of creative works or materials have special intangible rights attached to them – Section 7(1) of the Copyright Act 1987. These rights, known as “copyrights”, are owned by the people who create the work – authors, producers, photographers, musicians, songwriters, artists and such – who can choose to do anything and everything they wish with their exclusive rights under Section 27 of the Copyright Act 1987.

Copyright protects the expression of the author’s artistic and literary works and is also related to the exclusive right to prepare derivative works and to perform and display the work – Section 10 of the Copyright Act 1987. Subject to Section 7(1) of the Copyright Act 1987, artistic, literary and musical works, films, sounds recordings and broadcasts are eligible for copyright protection.

The only criteria for a creative work to be eligible for copyright is that there must have been sufficient effort applied or put into the work to make the work original and the work must be reduced to material form (so the work can be “seen” or “heard” by others) as per Section 7(3)(a) of the Copyright Act 1987. Works are eligible for copyright regardless of the quality of the work and the purpose for which they were created under Section 7(2) of the Copyright Act 1987.

How is copyright protected in Malaysia?

Although copyright is a non-registrable right (i.e., cannot be registered) in Malaysia and does not enjoy automatic protection, ownership of copyright can be established by production of proper documentation. Copyright owners can claim ownership by way of a Statutory Declaration or by filing a Voluntary Notification at the Intellectual Property Corporation of Malaysia (MyIPO).

Cases on protection of copyright:

Siti Khadijah Apparel Sdn Bhd v. Ariani Textiles & Manufacturing (M) Sdn Bhd [2018] MLRHU 892 which provides that:

“According to Section 6 of the Copyright Act 1987, no copyright shall subsist otherwise than by virtue of Copyright Act 1987. Whether a piece of “artistic work” [as understood in ss 3 and 7(1)(c) Copyright Act 1987] can be protected by copyright under Copyright Act 1987 depends on whether all the following conditions under Copyright Act 1987 (Conditions) have been fulfilled. …

(4) There is no copyright protection:-

• For “any idea, procedure, method of operation or mathematical concept” – please see s 7(2A) Copyright Act 1987 and Chuah Aik King v. Keydonesoft Sdn Bhd [2018] MLRHU 426, at paras 18 and 28(2). Section 7(2A) Copyright Act 1987 has been inserted by way of Copyright (Amendment) Act 1997. If Parliament has intended that a purely functional work is not protected by copyright, Parliament would have expressly provided as such in s 7(2A) Copyright Act 1987. The legislature however has chosen not to do so in s 7(2A) Copyright Act 1987. Furthermore, s 7(2) Copyright Act 1987 provides that works shall be protected by copyright “irrespective of … the purpose for which they were created”; and
• If the design in question has been registered under the Industrial Designs Act 1996 (IDA) – please see s 7(5) Copyright Act 1987.”

Local Publications (M) Sdn Bhd v. Sliya Nu Printing Sdn Bhd & Another Appeal [2019] 4 MLRH 422 which provided the following with regards to the assignment of copyright ownership:

“That notwithstanding and even if the Memorandums of Agreement are the only binding contractual documents between the parties, I nonetheless find and hold that the copyright in the manuscripts of the Books could not still have resided with the defendants in the Authors’ Suit because the copyright in them has already been assigned away to the plaintiff upon the execution of the Commissioning Letters. This assignment stood on an independent footing and cl 16 of the Commissioning Letters may be treated as merely evidence of the assignment. Alternatively by virtue of s 26(2) of the CA, I find and hold that the defendants in the Author’s Suit never had copyright in the manuscripts of the Books in the first instance because it was the plaintiff who commissioned them to undertake the same. In this regard, I followed the English case of Trimingham v. Associated Newspapers Ltd [2012] EWHC 1296 where commissioning was held to mean that there must be an obligation on the part of the commissioned party to produce the work and an obligation on the part of the commissioning party to pay money or money’s worth. The copyright thus always resided with the plaintiff in the circumstances of this case.”

Disclaimer: Please note that the contents above do not constitute legal advice. Should you require legal advice, please contact any of our lawyers as listed below:

If you have any queries, please contact our via e-mail, we are available for a scheduled conference call.

Messrs. Jeeva Partnership

Dato’ Shamesh (Partner): [email protected]

Charlotte Williams (Senior Associate): [email protected]

PENANG OFFICE Tel:  04-263 1702 Email:  [email protected]

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Copyright In Malaysia

April 6, 2016 by Conventus Law

6 April, 2016

Copyright in Malaysia is governed by the Copyright Act (1987) and the Berne Convention (to which Malaysia acceded in 1990). As a member of the Berne Convention, Malaysia recognises a wide variety of artistic works which are copyrightable, including literary, artistic, and musical works, sound recordings and films, drawings, computer codes, and more. All artistic works receive protection for the form of the work’s expression—meaning, for example, that your code is protected, but you cannot prevent someone from writing different code which accomplishes the same thing by using copyright.

In today’s article we explore the Malaysian copyright system, with a focus on how European SME’s can best exploit it to protect their materials.

For a work to be eligible for protection in Malaysia, the author must come from, the work must be first published in, or the work must be made in Malaysia or any other country which is a party to the Berne Convention. 

Criteria for and Periods of Protection

Copyright grants moral and economic rights to the author of the work, unless that author was commissioned or employed by another party (in which case the commissioner or employer gains copyright). Despite this, it can be difficult to prove copyright in court. As such, it is advised that a work and its owner be documented. This can be accomplished according to Section 42 of the Copyright Act, which allows for a person to create an affidavit or statutory declaration stating that he or she is the true owner of the copyright. This statement can then be used as evidence in court.

Furthermore, as of 2012, Malaysia has implemented rules which allow for copyright owners and stakeholders to notify Malaysia’s Copyright Controller of their claims and to give MyIPO a copy of the copyrighted work. A representative may also make such a notification on behalf of a copyright holder if the holder is not a resident of Malaysia. These notifications require the following information:

• Details of the owner and author of the copyright, as well as the applicant’s status as representative (if the application is made on behalf of another)
• A (clear and durable) copy of the copyrighted work and a title of the work (translated into Bahasa Malaysia or English if it is not in one of these languages)
• Information on the date and place of publication of the work
• Information on payment of the required fee

Copyright registrations are not subject to substantive examination, so the application itself is taken as proof that the facts within the application are true. After examination, an applicant may ask for a certificate which can be presented to Malaysian courts as evidence.

As per the Berne Convention, in Malaysia, copyrights extend protection for the life of the author and an additional 50 years thereafter. 

Enforcement

Copyright grants two types of rights in Malaysia. Economic rights guarantee that the owner of a copyright is the only one who can engage in or authorise reproduction, performance, distribution, sale, stocking, or other commercial exploitation of the work in Malaysia. On the other hand, moral rights give the author of the work the right to be identified as the author and to object to any use or alteration of the work which would harm his or her reputation or integrity. These moral rights remain with the author of the work regardless of who possesses the economic rights to the work (such as by transfer of rights). 

Before taking civil or criminal actions, SMEs should strongly consider mediation. Firms with limited budget options and a need to quickly halt infringement can use mediation as a quick and cost-efficient means of halting infringement.

Beyond mediation, the two main avenues of enforcement in Malaysia are the Enforcement Division of the Ministry of Domestic Trade, Cooperatives, and Consumerism (for criminal enforcement) and IP court litigation. Before any enforcement action, you should always gather proof of your ownership of the IP in question and proof of infringement. 

In criminal enforcement with the Enforcement Division (ED), counterfeiting and piracy cases can quickly yield goods seizures, injunctions, and prosecutions. To prepare for such actions, you should provide proof of infringement and a letter of complaint.

After raids or product seizures, SMEs should assist the ED by providing identification and analysis of seized goods to prove infringement. Prison sentences range from up to five years for minor offenses to up to ten years for egregious offenses.

In litigation through IP courts, IP owners can bring cases before specialised Malaysian IP courts. These courts are empowered to issue injunctions which immediately halt infringement and to assign unlimited damages to be paid to the rights owners. Nine months is the proscribed maximum waiting time for these cases between filing and their day in court, offering a reasonable expectation of timely resolution. There are six “High Courts” (in Kuala Lumpur, Johor, Perak, Selangor, Sabah, and Sarawak) which focus on civil cases (as the damages are often difficult to quantify), as well as 15 “Sessions Courts” spread among the Malaysian states which focus on criminal cases and which have unlimited power to issue fines. 

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CONVENTUS LAW

CONVENTUS DOCS CONVENTUS PEOPLE

3/f, Chinachem Tower 34-37 Connaught Road Central, Central, Hong Kong

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This copyright assignment is between  , an individual a(n) (the " Assignor ") and  , an individual a(n) (the " Assignee ").

The Assignor has created and (a) has registered or (b) has applied for registration with the Copyright Office of those works listed in Exhibit A (collectively, the " Work ").

The Assignor wishes to transfer to the Assignee all of its interest in the Work, and the Assignee wishes to acquire all of the Assignor's interest in the Work.

The parties therefore agree as follows:

1. ASSIGNMENT OF AUTHORED WORKS.

The Assignor assigns to the Assignee, and the Assignee accepts the assignment of, all of the Assignor's interest in the following:

• (a) the Work listed in Exhibit A ;
• (b) all of the exclusive rights granted to the owner of a copyright under United States federal law, including all rights to reproduce, publish, adapt, modify, distribute, create derivative works based on the Work, display, publicize, and transmit (digitally or otherwise) the Work;
• (c) the registrations and applications for registrations of each Work, and any renewals or extensions of those;
• (d) all goodwill and moral rights in and to the Work;
• (e) all income, royalties, and damages due to the Assignor with respect to the Work, including damages and payments for past or future infringements and misappropriations of the Work; and
• (f) all rights to sue for past, present, and future infringements or misappropriations of the Work.

2. CONSIDERATION.

The Assignee shall pay the Assignor a flat fee of as full payment for all rights granted under this agreement. The Assignee shall complete this payment no later than .

3. RECORDATION.

In order to record this assignment with the United States Copyright Office, within hours of the effective date of this assignment, the parties shall sign the form of copyright assignment agreement attached as Exhibit B . The Assignor Assignee  is solely responsible for filing the assignment and paying any associated fees of the transfer.

4. NO EARLY ASSIGNMENT.

The Assignee shall not assign or otherwise encumber its interest in the Work or any associated copyright registrations until it has paid to the Assignor the full consideration provided for in this assignment. Any assignment or encumbrance contrary to this provision shall be void.

5. DOCUMENTATION.

The Assignor shall provide the Assignee with a complete copy of all documentation (in any format) relating to the Work for the Assignee's own use, to meet record-keeping requirements of the Assignee, or to allow the Assignee to assert its rights granted pursuant to this assignment. The Assignor shall also, on request:

• (a) sign any additional papers, including any separate assignments of the Work, reasonably necessary to record the assignment in the United States;
• (b) do all other lawful acts reasonable and necessary to record the assignment in the United States; and
• (c) sign all papers reasonable and necessary for Assignee to obtain a copyright on any of the Work. 

6.   NO FURTHER USE OF WORK. NONEXCLUSIVE LICENSE TO ASSIGNOR.

After the effective date, the Assignor may make no further use of the Work or any derivatives of the Work, except as authorized by the prior written consent of the Assignee, and the Assignor may not challenge the Assignee's use or ownership, or the validity, of the Work.   However, the Assignor shall retain its rights to be identified as the author whenever the Work is reproduced, published, distributed, or otherwise publicly displayed. After the effective date, the Assignee grants back to the Assignor a nonexclusive, royalty-free license to use the Work as the Assignor sees fit, including for the creation of derivative works of those Work. This license does not limit the Assignee's rights and public rights under this assignment.

7. ASSIGNOR'S REPRESENTATIONS.

The Assignor hereby represents to the Assignee that:

• (a) the Assignor is the sole owner of all interest in the Work;
• (b) the Work is original, are not in the public domain, are not plagiarized, and do not contain anything that is libelous or obscene;
• (c) the Assignor has not transferred, licensed, pledged, or otherwise encumbered any Work or agreed to do so;
• (d) the Assignor is not aware of any violation, infringement, or misappropriation of any third party's rights or any claims of rights (including existing intellectual property rights, rights of privacy, or any other rights) by the Work;
• (e) the Assignor is not aware of any third-party consents, assignments, or licenses that are necessary to perform under this assignment; and
• (f) the Assignor was not acting within the scope of employment of any third party when conceiving, creating, or otherwise performing any activity with respect to the Work.

8. GOVERNING LAW.

• (a) Choice of Law. The laws of the state of  govern this agreement (without giving effect to its conflicts of law principles).
• (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in County, .

9. AMENDMENTS.

No amendment to this assignment will be effective unless it is in writing and signed by a party.

10. ASSIGNMENT AND DELEGATION.

• (a) No Assignment. Neither party may assign any of its rights under this assignment, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
• (b) No Delegation. Neither party may delegate any performance under this assignment, except with the prior written consent of the other party.
• (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.

11. COUNTERPARTS; ELECTRONIC SIGNATURES.

• (a) Counterparts. The parties may execute this assignment in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
• (b) Electronic Signatures. This assignment, agreements ancillary to this assignment, and related documents entered into in connection with this assignment are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.

12. SEVERABILITY.

If any one or more of the provisions contained in this assignment is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this assignment, but this assignment will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this assignment to be unreasonable.

13. NOTICES.

• (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this assignment shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this assignment: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
• (b) Addresses. A party shall address notices under this section to a party at the following addresses:
• If to the Assignor: 
• If to the Assignee: 
• (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.

14. WAIVER.

No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this assignment will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.

15. ENTIRE AGREEMENT.

This assignment constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this assignment. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this assignment are expressly merged into and superseded by this assignment. The provisions of this assignment may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this assignment by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this assignment. Except as set forth expressly in this assignment, there are no conditions precedent to this assignment's effectiveness.

16. HEADINGS.

The descriptive headings of the sections and subsections of this assignment are for convenience only, and do not affect this assignment's construction or interpretation.

17. EFFECTIVENESS.

This assignment will become effective when all parties have signed it. The date this assignment is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this assignment.

18. NECESSARY ACTS; FURTHER ASSURANCES.

Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this assignment contemplates or to evidence or carry out the intent and purposes of this assignment.

[SIGNATURE PAGE FOLLOWS]

Each party is signing this agreement on the date stated opposite that party's signature. 

[PAGE BREAK HERE] EXHIBIT A LIST OF WORKS TRANSFERRED

[PAGE BREAK HERE]

EXHIBIT B FORM OF COPYRIGHT ASSIGNMENT

For good and valuable consideration, the receipt of which is hereby acknowledged,  an individual a(n)   (the " Assignor ") hereby assigns to an individual a(n)   (the " Assignee ") all of the Assignor's interest in the Assigned Copyrights identified in Attachment A to this assignment, and the Assignee accepts this assignment.

Each party is signing this agreement on the date stated opposite that party's signature.

ATTACHMENT A (TO EXHIBIT B) ASSIGNED COPYRIGHTS

Free Copyright Assignment Template

Protect your intellectual property with a copyright assignment form. securely transfer your copyright to another party, clearly defining ownership terms while preserving your rights effectively..

Complete your document with ease

How-to guides, articles, and any other content appearing on this page are for informational purposes only, do not constitute legal advice, and are no substitute for the advice of an attorney.

Copyright assignment: How-to guide

Have you ever wondered what happens to your creative work once it's out in the world? How can you ensure that your intellectual property remains protected? These questions often lead us to explore the world of copyright assignment.

Copyright assignments empower creators to control the destiny of their creations. In this how-to guide, we'll explain the details of copyright assignments.

Join us as we deep dive into copyright ownership and discover how you can effectively transfer your rights to others while safeguarding your creative legacy.

What is a copyright assignment?

Copyright assignment refers to the transfer of copyright ownership rights from one party to another. Copyright owners have exclusive rights to their creative works, including the right to perform, display, distribute, reproduce, and create derivative works based on the original. These  rights are protected for a specified duration , typically throughout the life of a creation:

1. Copyright protection for works created by individual writers on or after January 1, 1978, begins at the time of creation and lasts for the author's life plus 70 years.

2. Copyright for anonymous or pseudonymous works (if the author's name is not revealed) and works done for hire are valid for 95 years from the date of first publication or 120 years from the date of creation, whichever expires first.

3. The copyright in joint works is valid for the life of the last living author plus 70 years.

Copyright assignment involves the assignor (the original copyright holder) transferring their rights to the assignee (the new copyright owner) through a written agreement. Key terms to understand include the assignor, assignee, consideration (something of value exchanged for the transfer), and the transfer of rights.

What are the types of copyright transfer?

Copyright assignments can be either: 

1. Exclusive : In an exclusive assignment, the assignee gains exclusive rights to use the copyrighted work.

2. Non-exclusive : In a non-exclusive assignment, the assignor retains the right to license the work to others. 

3. Partial : Partial assignments may also be considered, transferring only specific rights or territories.

What are the benefits of copyright assignment?

Copyright assignment offers several benefits to both creators and assignees:

Monetization

Assigning copyright allows creators or the copyright owner to monetize their personal property by selling or licensing their rights to others, providing opportunities for additional income streams.

Transfer of responsibility

By assigning copyright, creators can transfer the responsibility for managing and protecting their personal property rights to the assignee, relieving them of the burden of enforcement and administration.

Expanding reach

Assigning copyright to a larger entity, such as a publishing house or production company, can help creators reach a wider audience and expand the distribution of their works.

Legal protection

Assigning copyright provides legal protection against unauthorized use or reproduction of the work, allowing assignees to take legal action against infringers to protect their rights.

Collaboration opportunities

Copyright assignment facilitates collaboration between creators and businesses, enabling joint ventures and partnerships that can lead to creative synergies and mutually beneficial outcomes.

When do you need a copyright assignment?

The following situations may require you to think about assigning a copyright:

Collaborative projects

A copyright assignment may be necessary to establish ownership and distribution rights when working with others on a creative endeavor, such as authoring a book or making a movie.

Commissioned work

A copyright assignment can outline the ownership and usage rights for any work you are contracted to produce for someone else, including written articles, music compositions, and artwork.

Your employer may ask you to assign your copyright to them as part of your employment agreement if you produce intellectual property as part of your work, such as software code, marketing materials, or product designs.

Selling or licensing

A copyright assignment agreement will formalize the transfer of rights and set out the conditions of the transaction if you choose to sell or license your copyright to a third party, such as a publishing house, record label, or production studio.

Safeguarding your legacy

As you make plans, you should ensure that your creative works' management and preservation follow your instructions. You may create a clear plan for how your personal property will be managed after your death with the use of a copyright assignment.

Copyright assignment is required anytime you need to distribute or transfer ownership of your creative works in a way that is official and compliant with the law. All parties concerned benefit from its clarity and protection, which guarantees that the rights and obligations related to intellectual property are accurately established and respected.

What laws and regulations to follow for copyright assignment in the US?

Copyright assignment in the United States is governed by federal law, primarily outlined in the  Copyright Act of 1976 . This legislation provides the legal framework for copyright ownership and transfer, ensuring that assignments are enforceable and legally binding. In addition, the following points must be considered.

Ensuring validity and compliance : Precautions must be taken to guarantee the authenticity and validity of a copyright transfer. These include recording the assignment's conditions, getting the original express approval of the copyright owner, and making sure all legal requirements are met. To find and fix any possible validity issues, the written agreement must be legally reviewed. It might be advisable to visit the copyright office.

Legal requirements and formalities : A proper copyright assignment requires attention to legal requirements. One part of this is making sure the assignment agreement is in writing and signed by all parties. In addition to safeguarding the rights of both the assignor and the assignee, written agreements offer clarity and act as proof of the transfer of ownership.

What are the elements of a copyright assignment?

A copyright assignment agreement typically includes several essential components:

Identification of the parties involved (assignor and assignee)

This part identifies who is giving up the rights to the work (assignor) and who is receiving them (assignee).

Description of the copyrighted work

This describes the creative work being transferred, such as a book, song, or artwork.

Scope of rights being transferred

It specifies exactly which rights, such as reproduction, distribution, or adaptation rights, are being given up by the assignor and acquired by the assignee.

• Reproduction rights : These refers to the right to make copies or reproductions of the copyrighted work. For example, if the assignee has reproduction rights, they can produce copies of a book, music recording, or artwork.
• Distribution rights : These refer to the right to distribute copies of the copyrighted work to the public. This includes selling, renting, leasing, or otherwise making the work available to the public. For example, if the assignee has distribution rights, they can sell copies of a book in bookstores or distribute copies of a film through online streaming platforms.
• Adaptation rights : This refers to the right to create derivative works based on the copyrighted work. A derivative work is a new work that is based on or adapted from the original work, such as a movie adaptation of a book or a remix of a song. If the assignee has adaptation rights, they can create and distribute adaptations or derivative works based on the original copyrighted work.

Consideration exchanged for the transfer

Consideration refers to what the assignee gives to the assignor in exchange for the rights to the work. It could be money, goods, services, or other valuable benefits.

Signatures of all parties

All parties involved in the agreement need to sign it to make it legally binding. This ensures that everyone agrees to the terms of the copyright assignment.

The effective date of the assignment

This is the date when the transfer of copyright ownership becomes official and legally enforceable.

Recordation

Recordation involves officially documenting the copyright assignment with the appropriate government office, such as the U.S. Copyright Office. This provides a public record of the transfer.

No early assignment

This clause specifies that the assignor cannot transfer the rights to the work before a certain date or event specified in the agreement.

This clause is typically included to provide stability and certainty to both parties involved in the agreement. It ensures that the assignor cannot prematurely transfer the rights to the work, thereby disrupting the intended timeline or violating the terms of the agreement. This clause helps in:

• Protecting investment : The assignee may have invested time, resources, or finances into the agreement, and the "no early assignment" clause helps protect their investment by ensuring that the assignor cannot abruptly transfer the rights to someone else.
• Completion of obligations : The clause may specify that the rights cannot be transferred until either party fulfills certain obligations or conditions. This ensures that both parties fulfill their responsibilities before the rights are transferred.
• Preventing premature transfers : It prevents the assignor from transferring the rights to the work before the assignee has had sufficient time to benefit from the assignment or before certain milestones are reached.
• Maintaining stability : This clause helps maintain stability by establishing a clear timeline for the transfer of rights and prevents unexpected changes or disruptions to the agreement.

Assignor’s representations

The assignor or the copyright holder may need to make certain statements or assurances about the work being transferred, such as confirming that they are the rightful owner of the copyright. The reasons being:

• Legal assurance : By making representations about the work being transferred, the assignor provides legal assurance to the assignee that they have the rightful ownership of the copyright. This helps establish the validity and authenticity of the transfer.
• Protection against claims : The representations serve as protection for the assignee against any claims or disputes regarding the ownership of the copyright in the future. If the assignor falsely represents themselves as the rightful owner, they may be held liable for any resulting damages.

This section outlines how the agreement can be modified or amended in the future if necessary.

A waiver clause specifies whether any rights or obligations under the agreement can be waived by either party and under what circumstances.

Now that you know the elements of a copyright assignment agreement, you may create one with greater clarity and detail by following the above list. This involves defining the rights being transferred accurately, including any restrictions or conditions, and, if required, obtaining legal counsel. A well-written contract helps in avoiding miscommunications and conflicts.

You can also use pre-made templates, like the copyright assignment template provided on this page, to speed up the process of drafting a copyright transfer agreement. Templates provide the agreement structure, which makes it simpler to modify and tailor to particular requirements. 

What are the consequences of copyright infringement?

Copyright infringement carries several consequences, both legal and reputational, including:

1. Legal liability

Infringers may be liable for legal action, including injunctions, damages, and attorney fees, which can result in financial losses and potential reputational damage.

2. Loss of revenue

Infringement of copyright can result in lost revenue for creators and assignees, as unauthorized use of their works deprives them of potential licensing or sales opportunities.

3. Damage to reputation

Infringement can damage the reputation of creators and assignees, harming their credibility and trustworthiness in the eyes of consumers and business partners.

4. Diminished control

Copyright infringement devalues the control that creators and assignees have over their intellectual property, diminishing their ability to dictate how their works are used and distributed.

5. Erosion of rights and potential public domain status

Failure to enforce copyright protections can lead to the gradual loss of rights over time. Infringers may exploit this lapse by arguing that the works have entered the public domain or that they have acquired rights through long-term usage. This underscores the importance of proactive enforcement to safeguard intellectual property rights.

To sum up, copyright assignment is an essential tool that helps creators properly manage and safeguard their personal property rights. Through formal agreements, creators may transfer ownership of their works and open up new avenues for profit, cooperation, and reach. Nonetheless, the consequences of copyright infringement highlight how important it is to enforce and defend these rights with care. Creators and assignees may confidently handle the complicated world of intellectual property and secure the existence and success of their creative activities for future generations by knowing and following copyright assignment standards. 

Frequently asked questions

What does a copyright assignment mean.

The creator of intellectual property protected by copyright can sell that material and transfer the copyright to a buyer. A copyright assignment clarifies the terms of the transfer of ownership to a new person or business.

Here's the information you'll need to have handy to complete your copyright assignment:

• Who it's coming from (original owner) : Determine if a business or individual is sending the document and have the assignor’s name and contact information ready
• Who it's going to : Know who this document is going to and have the individual or business name and contact information of the assignee ready
• Copyright registration information : Identify the material's title, registration number, and date
• Payment : Decide the sale amount and when the buyer needs to pay

What is the process of assignment of copyright?

Transferring ownership of creative works through a formal agreement is the process of assigning copyright. In this arrangement, the parties typically identify themselves, describe the copyrighted work, specify the rights being transferred, exchange compensation, obtain signatures, and register the assignment with the relevant authorities for legal recognition.

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101 on Assignment and Novation Agreements

By aqila zulaiqha zulkifli ~ 6 january 2024.

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Aqila Zulaiqha Zulkifli

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As a general rule, parties to an agreement must perform their respective obligations set out therein. However, where such performance becomes unfeasible or impossible to perform, parties may consider novating or altering the agreement. The present article, shall focus on novation of the said agreement.

A novation of an agreement is summarized as when an agreement is made between two contracting parties to allow for the substitution of a new party for an existing one.

There could be two (2) classes of novation [1] , that is:

• where a new contract is substituted for an old one between the same parties; and
• where a new contract is substituted for an old one between different parties.

Novation is provided for in Section 63 Contracts Act 1950 as follows:

“Section 63 Effect of novation, rescission and alteration of contract

If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.

Several examples are reproduced below:

• A owes money to B under a contract. It is agreed between A, B and C that B shall henceforth accept C as his debtor, instead of A. The old debt of A to B is at an end, and a new debt from C to B has been contracted.
• A owes B RM10,000. A enters into an arrangement with B, and gives B a mortgage of his (A's) estate for RM5,000 in place of the debt of RM10,000. This is a new contract and extinguishes the old.

Novation requires the consent of all parties as a new contract is substituted for an existing contract and a former party is discharged. Whether there was is no written consent, to novation may, however, be inferred from conduct and not only by way of express words [2] .

Unlike assignments (See our article on Assignment of Debt in this link ), a novation is not to assign or transfer a right or liability. Rather, it is to extinguish the original contract and replace it with another [3] .

The effect of it is that the original contract between parties need not be performed. It is a practical way to rescue a transaction amicably between parties and to avoid a situation where a party to the agreement is stranded without recourse or is forced to resort to litigation to recoup it’s losses.

[1] See the High Court case of Malaysian International Merchant Bankers Bhd. V. Datuk Mohd. Salleh & Anor. [1988] 1 CLJ Rep 786. [2] See the High Court case of Malaysian International Merchant Bankers Bhd. V. Datuk Mohd. Salleh & Anor. [1988] 1 CLJ Rep 786 . [3] See the High Court case of H & R Johnson Tiles & Anor v H & R Johnson (M) Bhd [1998] 4 MLJ 13

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