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InsiderTAPS (2 July 2012)

Voluntary Notification of Copyright and Compulsory Registration of Licensing Body under the Copyright (Amendment) Act 2012 in Malaysia

The Malaysian Copyright Act 1987 (the “Act”) was recently amended by the Copyright (Amendment) Act 2012 to, amongst others, facilitate Malaysia in fulfilling the requirements for accession to the WIPO Copyright Treaty (WCT) and WIPO Phonograms and Performances Treaty (WPPT). The amendments came into force on 1 March 2012. Amongst the amendments made is the introduction of a Voluntary Notification of Copyright System. The Copyright (Voluntary Notification) Regulations 2012 was gazetted on 28 May 2012 and came into force on 1 June 2012.

Voluntary Notification of Copyright

It is provided under the newly introduced section 26B(5) of the Copyright Act 1987 that a certified true extracts from the Register of Copyright shall be prima facie evidence of the particulars entered therein and shall be admissible in all courts. In other words, one may rely on the particulars entered onto the Register of Copyright by way of a Voluntary Notification of Copyright provided under the new provisions in all legal proceedings in court.

Who is eligible to file the Voluntary Notification?

A Voluntary Notification shall only be filed by a Malaysian citizen or a permanent resident of Malaysia. An Applicant i.e. the author of the work eligible for copyright in Malaysia, the copyright proprietor, assignee of the copyright or a licensee of an interest in the copyright who is not a Malaysian citizen or a permanent resident of Malaysia may appoint a representative who is a Malaysian citizen or a permanent resident of Malaysia to file the Voluntary Notification on his behalf.

Procedure and Requirements

The following documents are required for filing a Voluntary Notification:

1. A statutory declaration affirming that the Applicant is the author of the work eligible for copyright in Malaysia (the “Work”), the copyright proprietor, assignee of the copyright or a person granted with an interest in the copyright;
2. A copy of the Work is to be annexed to the statutory declaration;
3. Prescribed Form consisting of the following details:
 
o name, address, telephone and telefax numbers, email and nationality of the copyright proprietor;
o name, address, telephone and telefax numbers, email and nationality of the author (if the author is dead, the date of the author’s death, if known);
o name, address, telephone and telefax numbers, email and nationality of the assignee/licensee;
o name, address, telephone and telefax numbers, email and nationality of the contact person;
o title of the Work in original language, if it is in a language other than the national language of Malaysia and English, to provide its translation, transliteration and the type of language;
o category of the Work, whether it is literary work, musical work, artistic work, film, sound recording or broadcast;
o person making the declaration whether he is the author, proprietor or licensee, (if he is the licensee, sufficient supporting documents shall be provided);
o in the case of a published work, the date and place of the first publication as well as the year of compilation; and
o in the case of derivative work, the previous title as well as the type of derivative work, i.e. whether it is a translation, adaptation, arrangement, collection of work and compilation of mere data or other transformation of works eligible for copyright;
4. Prescribed Fee;
5. In the case where the Voluntary Notification is filed by a representative in Malaysia, an additional prescribed form stating the name, address, telephone and telefax numbers, email and nationality of the representative and authorising the person to file the notification on behalf of the author of the Work, the copyright proprietor, assignee of the copyright or a person granted with an interest in the copyright.

Having filed the Notification, it will be examined and processed by the office of the Controller of Copyright. If the Controller is not satisfied with the clarity or durability of the copy of the Work submitted, he may request in writing for another copy as a replacement. If his request is not fulfilled within thirty (30) days from the date of such request, the Notification filed shall be deemed to be withdrawn. If the Notification is in order, the particulars stated in the Notification shall be entered into the Register of Copyright and a letter confirming the same will be sent to the Applicant.

Register of Copyright

The Register of Copyright consisting of the particulars stated in the Notification is open for inspection and examination by any person upon payment of prescribed fee and approval by the Controller.

Amendment of clerical error in the Register of Copyright

An Applicant may request the Controller to rectify any clerical error in the Register of Copyright by filing a prescribed form at the prescribed fee.

Correction, Expungement and Amendment of the entry in the Register of Copyright

Any interested person may apply to the High Court in Malaysia for an order to correct any error in an entry in the Register of Copyright; or to expunge or amend any entry wrongly made in or remaining in the Register of Copyright. The sealed copy of the court order shall be filed and served on the Controller so that the entry in the Register is corrected, expunged or amended accordingly. There is however no definition of “interested person” provided in the Act and Regulations and it will need to be tested in Court.

No refund

It is also provided under the Copyright (Voluntary Notification) Regulations 2012 that any fee paid to the Controller under the Regulations is not refundable.

Conclusion

In conclusion, the newly introduced Voluntary Notification of Copyright will provide an avenue for the copyright owner as well as person having interest in the copyright to keep an official record of their copyright in the Copyright Register, assisting in proving the particulars of the copyright in the event of legal disputes.

Cheah Chiew Lan