By Clara C.F. Yip

Computer software in any form is protected by copyright in Malaysia. This being the case, the 1987 Copyright Act ("the principal Act") confers copyright owners of computer programs the same exclusive rights and subjects this broad protection to the same fair-use exceptions as in the case of any other literary work.

Of significance is the prohibition introduced by the 1997 Copyright (Amendment) Act on the communication to the public of the whole work or a substantial part thereof, either in its original or derivative form, without the copyright owner’s consent. Any commercial rental to the public without such consent is also regarded as a violation.

In keeping abreast with the rapid advances in computer technology, the amending Act has defined "communication to the public" to mean "the transmission of a work through wire or wireless means to the public, including the making available of a work to the public in such a way that members of the public may access the work from a place and at a time individually chosen by them".

This definition is now broad enough to bring within the framework of the principal Act, traditional forms of broadcast such as TV/radio transmissions as well as amongst others, Internet transmissions.

The principal Act (as amended) sets forth specific limitations/exceptions relating to computer programs:-

(i) In the absence of any express direction from the copyright owner, the principal Act permits the making of a back-up copy of a computer program by or on behalf of the owner of the original copy of the program but only as a precautionary measure in the event that the original copy is "lost, destroyed or rendered unusable" and provided that the back-up copy is made from a legitimate copy of the program;

(ii) It is also not a violation of the copyright owner’s rights for anyone to engage in the commercial rental of computer programs where the program is not the essential object of the rental.

The principal Act already imposes primary liability on those found violating any of the owner’s exclusive rights, and secondary liability on importers of infringing articles. In addition, protection against acts of circumvention are now provided by the 1997 amendment. Hence, a copyright owner can effectively restrain anyone from circumventing technological protection for copyrighted works or from enabling another to do the same. This restriction protects the copyright owner against the conduct of circumvention and arguably, the technologies that may be used for the purposes of circumvention.

The 1997 (Amendment) Act also seeks to preserve the integrity of electronic rights management information (ERMI) by prohibiting the removal or alteration of ERMI and the commercial dealings or transmission to the public of works knowing that the ERMI has been tampered with. However, such conduct or dealing will not be caught by this prohibition if it is carried out without actual or implied knowledge that this will "induce, enable, facilitate or conceal" copyright infringement.

"Rights management information" is characterized as information identifying the works, the author’s name, the owner’s name, the terms and conditions of use of the work, any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.

Action against infringers may be taken by way of civil proceedings instituted by the copyright owner. Criminal offences under the principal Act including acts of circumvention and tampering of ERMI will also render the infringer liable to criminal prosecution and conviction unless he can make use of the defence of good faith and show that he had no reasonable grounds for supposing that copyright would or might thereby be infringed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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