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Malaysia – Important aspect of copyright infringement

In a recent copyright infringement case (April 2010) in Malaysia [Suit No: D5 (IP)-22-1152-2005], the local High Court carefully reviewed certain key facts and legal precedents to meticulously analyse and rule on some important aspects of copyright infringement.

One such issue pertained to whether protection under the Copyright Act, afforded to a set of drawings qualifying as artistic work, can be extended to a finished product based on the same set of drawings.  In its judgment the Court drew heavily from a precedent where copyright was held to cover not only the drawings of metal components for an anti-theft system but also extended to the metal components manufactured thereof. It ruled that where a design can be used to have functional utility, copyright protection could be extended and enlarged to cover three-dimensional reproduction of the two-dimensional drawings in the form of products for use.

The judgment also addressed the issue of degree of originality required in a work before it can fall under the purview of the Copyright Act. Highlighting the notion that originality in copyright law is not the same as novelty found in patent law, the Court remarked that unlike patent applications which require search into prior art or satisfy novelty and non-obviousness of closest prior art, the only pre-requisite for obtaining a copyright is that sufficient efforts should have been expended to make the work original in character. Hence, it is incorrect to employ the claims in a patent specification to regulate or limit the scope of copyright protection over an artistic work of a device, which may incidentally correlate or form part of the patented invention.

Furthermore, for the purposes of direct copyright infringement, it must be established that what has been infringed must constitute a substantial part of the original work. On the validity of a Statutory Declaration affirmed after lapse of considerable time from the creation of the copyrighted work, the Court observed that there is no legal requirement that the statutory declaration should be made contemporaneously with the creation of the works. Hence, a Statutory Declaration remains valid irrespective of the time gap between the creation of the copyrighted work and swearing of the Declaration.


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