Malaysia | Legislative Change to the Copyright Law: Copyright (Amendment) Act 2022

Introduction

The Copyright (Amendment) Act 2022 (Act A1645) (“the Amending Act”) came into force on 18 March 2022 except for sections 4, 5, 6 and 10 therein¹. The Copyright (Voluntary Notification) (Amendment) Regulations 2012 [P.U. (A) 62/222] also came into force on the same day.

In tandem with the change in laws, the Intellectual Property Corporation of Malaysia (“MyIPO”) has issued Practice Direction Bil. 1/2022 which clarifies certain aspects relating to the change in procedures for voluntary notification.

Briefly, the Amending Act covers five main aspects namely: 

• collective management organization;
• rights of persons with print disability;
• voluntary notification;
• streaming technology; and
• enforcement power under the Copyright Act 1987 (“CA”).

Collective management organization

Under the Amending Act-

• the term “licensing body” in the CA has been replaced with “collective management organization”. The change in the term brings the CA in line with international practices, as “collective management organization” is the current term used by the World Intellectual Property Organization (“WIPO”).
• only a body corporate that is a company limited by guarantee incorporated under the Companies Act 2016 may be a collective management organisation. Prior to this amendment, a society was allowed to be a licensing body.

Rights of persons with print disability

One of the main amendments under the Amending Act is to give effect to Malaysia’s eventual participation in the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”).

The Marrakesh Treaty is an international copyright treaty administered by WIPO, which requires member states to allow the reproduction, distribution and making available of published works in accessible formats, as well as to allow cross-border exchange of such works for the benefit of persons who are print disabled².

To this end, section 3 of the CA has been amended, among others, to define a “person with print disability” as a person who is registered as a person with disability under the Persons with Disabilities Act 2008 who is 

1. blind;
2. visually impaired or has a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person without such impairment or disability, and due to such impairment or disability is unable to read printed works to substantially the same degree as a person without such impairment or disability; or
3. unable to hold or manipulate a book or to focus or move the eyes, to the extent that would be normally acceptable to read due to physical disability.

Section 13(2) of the CA was amended by section 4 of the Amending Act by insertion of a new paragraph (ggggg) to allow the making and issuing of copies of any work into an accessible format copy by:

1. an authorized entity; or
2. a person with print disability or any other person acting on his behalf including his caregiver.

Each  authorized entity will be prescribed by the Minister and the list is expected to be gazetted via the Copyright Order (Authorised Entity) 2022.

At the time of writing, sections 4, 5, 6 and 10 of the Amending Act which concern such rights of persons with print disability have not come into force. 

Voluntary notification of copyright

Previously, section 26A of the CA provided that a voluntary notification may be made by or on behalf of the author, the copyright owner, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence. 

Under the Amending Act, the words “the author of the work” and “a person to whom an interest in the copyright has been granted by licence” have been deleted. Simply put, only the copyright owner or its assignee may now submit a voluntary notification to the Copyright Registrar.

Under the Copyright (Voluntary Notification) Amendment Regulations 2022, there are several changes relating to the procedures to submit a voluntary notification. One of the changes is the standardised use of Form CR-1 to submit a voluntary notification without a distinction being made on whether the work is an original work or a derivative work. More pertinently, the requirement to submit a statutory declaration as a supporting document has now been removed, thus simplifying the process.

Enforcement powers

The enforcement powers in respect of copyright-related offences have been strengthened by the Amending Act.

Under the previous section 39 of the CA, the Assistant Controller or the police may only search and seize infringing copies imported into Malaysia upon receipt of an application by the copyright owner. It has now been amended to allow the search and seizure of any infringing copy by the Assistant Controller or the police even without an application by the copyright owner. 

Other additional powers include the power of the Assistant Controller to direct the copyright owner or an authorised person to make a test purchase of any goods for the purposes of determining whether the CA is being complied with, and the power of the Assistant Controller to require provision of information in the course of an investigation under the CA.

Conclusion

The amendments to our copyright law are timely, as they will enhance the copyright regime in Malaysia considering the changes in how works are being created and used in recent times. 

In particular, the amendments relating to rights of persons with print disabilities should be applauded, as the Amending Act demonstrates Malaysia’s continuous dedication in harmonising its local intellectual property laws with international standards, while at the same time recognising the  right to information and knowledge without discrimination.

Endnotes:

¹ Appointment of Date of Coming into Operation of the Copyright (Amendment) Act 2022 [P.U.

(B) 167/2022].

² WIPO, “Summary of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (MVT) (2013)”, accessed at https://www.wipo.int/treaties/en/ip/marrakesh/summary_marrakesh.html.