Malaysia: Copyright (Amendment) Bill 2021 - Key amendments to the Copyright Act 1987

In brief

On 15 December 2021, the Copyright (Amendment) Bill 2021 ("Bill") was read the second time and passed in the Dewan Rakyat. The Bill broadly aims to amend the Copyright Act 1987 ("Act") to better align with international standards and practices, and enhance the enforcement powers under the Act.


Contents

In depth

Some of the notable key amendments proposed to the Act are set out below.

  1. Alignment with the Marrakesh Treaty

This Bill exempts authorized entities, individuals with print disability or any persons acting on their behalf from copyright infringement for making, issuing, exporting and importing copies of any work in an accessible format.

It further provides that an indirect sound recording or a film of a performance made by a person with print disability, or an authorized entity or a non-profit making body or institution, solely for the purpose of assisting people with hearing impairment or print disability, does not constitute copyright infringement.

  1. Enhancement of Voluntary Notification

Under this Bill, authors of copyrighted works are no longer permitted to make a voluntary notification of copyright in the work. The Bill also abolishes the requirement for a statutory declaration affirming that the applicant is the copyright owner or assignee of the subject work.

  1. Collective Management Organization

This Bill replaces the term "licensing bodies" with "collective management organization", and the relevant declaration will be effective for a period of 2 years. An application for a renewal of the declaration must be made no later than 60 days before the expiry of the declaration or the application for renewal will be subject to an imposition of surcharge.

  1. General Offences

The Bill introduces an additional offence (k) under Section 41(1) of the Act, which criminalizes the act of providing or sharing access to an online location of any works or copies of works to any other person without authority. 

  1. Offences relating to streaming technology

The Bill introduces criminal liabilities for copyright infringment by engaging in commercial dealings (including manufacture for sale or hire, import, sell or let for hire, offer, export or advertise, distribute, and offer or provide any related service) with streaming technology. For the purpose of this provision, "streaming technology" is defined broadly to include both software and hardware which is used in part or in whole that facilitates access to copyright infringing works.

Any person who is guilty of this offence shall, on conviction, be liable to a fine of up to RM200,000 or imprisonment not exceeding 20 years or both.

  1. Compounding offences

Under this Bill, the Controller, Deputy Controller or any person authorized in writing by the Controller will, with the written consent of the Public Prosecutor, be granted the power to compound any compoundable offence under the Act at any time before a prosecution is instituted. The quantum of the compound shall not exceed 50% of the maximum fine of the relevant offence. 

Once an offence has been compounded, no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made and any item seized in connection with the offence may be forfeited or returned in accordance with such terms as the Controller, Deputy Controller or any person authorized in writing by the Controller deems fit. Conversely, if the offer of compound is not paid within the time specified in the offer (or such extended time granted in writing), the prosecution for the offence may be instituted at any time after that.

  1. Obstruction to search

The Bill expands the scope of criminal liability for obstruction to search to include the act of causing any evidence relating to the commission of an offence to disappear or knowingly giving information in relation to the offence which he knows or believes to be false, with the intention of screening the offender from legal punishment, or with the knowledge that he is likely thereby to screen the offender from legal punishment.

  1. Expansion of powers of authorities

Under this Bill, the Assistant Controller, police officers (not below the rank of an Inspector) or any officer of Customs will be granted the power to search for and seize any infringing copies which are prohibited from being imported into Malaysia, regardless whether an application has been made by the copyright owner or any person authorised by him.

 This Bill also introduces new sections to empower Assistant Controllers to direct:-

  1. copyright owners or any person authorized to act on behalf of the copyright owner to make test purchase; and
  2. any person to produce the relevant information, evidence, or document

to facilitate the Assistant Controller in its exercise of its functions.

Conclusion

This Bill is a welcome change for expanding the scope of criminal liability against copyright infringement and streamlining the provisions of the Copyright Act. In particular, without the proposed amendments, the speed at which pirate streaming technology evolves presents a challenge for copyright laws to keep pace. Therefore, the introduction of offences relating to streaming technology proposed by this Bill enhances the safeguard and protection of copyright and will be welcomed by rights-holders and the relevant stakeholders in the business community.

Currently, there is no indication on the date of coming into force of the proposed amendments.

LOGO Malaysia_Wong & Partners_KualaLumpur

This client alert was issued by Wong & Partners, a member firm of Baker McKenzie International, a global law firm with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner or equivalent in such a law firm. Similarly, reference to an "office" means an office of any such law firm. This may qualify as "Attorney Advertising" requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome. 

Contact Information

Copyright © 2022 Baker & McKenzie. All rights reserved. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). The Content is protected under international copyright conventions. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All Content is for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulations and practice are subject to change. The Content is not offered as legal or professional advice for any specific matter. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any Content. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The Content may contain links to external websites and external websites may link to the Content. Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability, howsoever occurring, in respect of the content or operation of any such external websites. Attorney Advertising: This Content may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes.