5 THINGS CREATORS OF ARTISTIC WORKS SHOULD KNOW ABOUT COPYRIGHT … BUT PROBABLY DON’T
An original piece of music, a poem, a script, a painting, a newly choreographed dance. You’ve created it, but do you own it? And if you do, how do make sure no one else uses it, distorts it or even makes money off of it without your permission? Jessie Tan and Renny Tan of Seow & Associates share 5 things any artist, playwright, choreographer, composer, set designer, etc. need to know.
Copyright is a term used to describe the rights that creators have over their literary and artistic works. In essence, a creator of an original work (“Creator”) has an exclusive right of control over the piece of original work (“Work”) but is this always the case and just how much do Creators really know about copyright?
The following points are 5 basic facts that any Creator of a literary, musical or artistic work should know about copyright in Malaysia:-
1. Your Work may not be eligible for copyright protection!
Copyright law in Malaysia is governed by the Copyright Act 1987 (“CA 1987”). Pursuant to the provisions of the CA 1987, copyright subsists in a literary, musical or artistic work if it is original and has been reduced to material form. Originality here simply means that the Work must have originated from the Creator and that some effort must have gone into the creation of the Work. As such, always bear in mind that your Work needs to be original and fixed in a tangible medium to be eligible for copyright protection in Malaysia.
2. You may not own the copyright to your Work!
The general rule is that ownership of the copyright is vested in the Creator of the Work. However, this general rule does not apply to Work that was commissioned and Work created by an employee.
a. Where the Work is commissioned, how is ownership of the copyright determined between the Creator and the commissioner?
Commissioning refers to a contractual arrangement arising from the ordering of and payment for the creation of a piece of work. Copyright shall belong to the commissioner of the Work, subject to any contrary agreement between the parties excluding or limiting such transfer of ownership.
b. Where the Work is created by the Creator who is an employee, how is ownership of the copyright determined between the Creator and the Creator’s employer?
Copyright shall be deemed to belong to the employer of the Creator subject to any contrary agreement between the parties excluding or limiting such transfer of ownership.
In determining whether a Creator is an employee, the courts will take into account the existence of a written contract of employment. However, things may get tricky in the absence of a contract of employment. In such a situation, various factors will be taken into consideration by the courts to determine whether a Creator is an employee and these include but are not limited to the scope of the Creator’s duties, nature of the Creator’s remuneration, the employer’s authority to supervise the Creator’s Work, the Creator’s entitlement to leave and rest days, employment provident fund contributions by the Employer and other relevant facts.
If you are under employment and at the same time are a Creator, be sure to read your contract of employment thoroughly to understand ownership rights to Work created by you.
3. Your Work will not be protected forever!
Copyright is not perpetual and the duration of copyright protection varies from work to work. A Creator should be aware of the different durations of copyright protection provided by the CA 1987. For example:-
a. Literary, Musical or Artistic Works
The copyright protection will subsist during the lifetime of the Creator plus 50 years after the Creator’s death. In the event of a joint authorship, the 50-year period starts from the date of the death of the surviving Creator.
b. Film, Sound Recordings and Performer
Copyright subsists until the expiry of a period of 50 years computed from the beginning of the calendar year following the year in which the recording was first published or if not published, from the beginning of the calendar year following the year of fixation.
Copyright subsists until the expiry of a period of 50 years computed from the beginning of the calendar year following the year in which the work was first published.
4. It’s important to prove ownership of copyright over your Work!
A Creator should bear in mind that in Malaysia, there is no system of registration of copyright in Malaysia for artistic works to be eligible for copyright protection. Hence, copyright protection arises automatically without the need for any formal registration where the requirements of copyright are fulfilled.
This may lead to difficulties in establishing ownership of copyright in the event of a dispute. The following are some of the common methods used in Malaysia as proof of copyright ownership:-
a. Postal evidence (Poor man’s copyright)
This is a method that is not recognized by the CA 1987 but may commonly practiced by aspiring Creators on a tight budget. The postal method simply requires the Creator to self-post to him or herself by registered post, a sealed self-addressed envelope which consists of a true copy of the Work. The envelope remains sealed until the time comes when the Creator needs to prove his or her ownership of copyright over the Work. The posting date on the stamp will show that the Work is created on or before the date of posting.
b. Sworn statement
Creators may also consider dating their Work by way of a statutory declaration which is admissible in Courts. The statutory declaration should be drafted with due care (preferably by someone with legal expertise) and be affirmed by a commissioner for oaths. A copy of the Work should also be attached to the statutory declaration or affidavit.
c. Voluntary notification
Malaysia has adopted the voluntary notification system which allows a Creator to make a voluntary notification of copyright of his or her Work with the Intellectual Property Corporation of Malaysia (“MyIPO”) to be recorded in the Register of Copyright. Once the notification has been successfully recorded, applicants can request for a certificate (by filing and paying the corresponding fee) to be issued by MyIPO which shall be considered prima facie evidence in Court of the ownership of the Work.
5. What do you do when someone else copies your Work?
It is not only important for a Creator to know his or her rights arising from the Work but also the methods to enforce such rights. If a Creator has any suspicion or reason to believe that his or her copyright has been infringed by a third party i.e. where the Work has been used without consent or authorization from the Creator, it is advisable to first obtain legal advice on the matter before proceeding with any action.
There are two main avenues of enforcement in Malaysia; the Enforcement Division of the Ministry of Domestic Trade, Cooperatives, and Consumerism (“MDTCC”) for criminal enforcement and Intellectual Property (“IP”) court litigation for civil enforcement.
a. Criminal Enforcement
The CA 1987 empowers the MDTCC to appoint a Controller of Copyright, Deputy Controllers and Assistant Controllers (“Controllers”) who have supervision over all matters relating to copyright, including enforcement of the CA 1987. The Controllers are conferred powers of investigation which are shared with the police, although, in practice, the police generally carry out an ancillary role.
b. Civil Enforcement
For civil enforcement, a Creator can commence the action in court. The Intellectual Property Courts (“IP Courts”) were established in July 2007. These IP Courts are empowered to issue injunctions which would immediately halt any infringement of the Creator’s rights and award appropriate damages to the Creator.
No matter which avenue of enforcement is chosen by the Creator, the Creator must be ready to showcase evidence to show that he or she is the owner of the copyright arising from the Work and evidence to show that the Creator’s copyright has been infringed by a third party in Malaysia.
With a good understanding of copyright protection in Malaysia, a Creator will be able to make more informed commercial decisions and strategise how best to exploit and commercise his/her artistic works. As such, it is vital for Creators to keep abreast with the developments of copyright law in Malaysia and seek legal advice on the matter.
No part of this article may be reproduced without the permission of Seow & Associates and no part of this article shall or is intended to take the place of legal consultation.
If you require further clarity/ assistance, the authors Jessie Tan & Renny Tan can be contacted at the details below.
Seow & Associates
Suite B-11-6, Level 11, Wisma Pantai, Plaza Pantai
No.5, Jalan 4/83A, Off Jalan Pantai Baru, 59200 Kuala Lumpur
t: +603 2201 5584
f: +603 2201 9686
Email: firstname.lastname@example.org / email@example.com