BFM Podcast: THE DAILY DIGEST: TAKING DOWN PATRIOT ACT


Your browser does not support native audio, but you can download this MP3 to listen on your device.


The Bigger Picture team kicks off a new daily show, where we discuss current issues – both local and global – that have been thoughtfully curated by the team. Netflix has taken down an episode of its comedy show “Patriot Act with Hasan Minhaj”, in Saudi Arabia, after officials from the kingdom complained. The move has sparked criticism, and leads to questions about how streaming platforms will handle censorship.

Produced by: Sharmilla Ganesan
Presented by: Sharmilla Ganesan, Tee Shiao Eek and Tina Carmillia

Top 5 Steps To Protecting Your Music

By Cheng Leong Foong, Rachel Fung
13 March, 2019

As the Internet continues to transform the landscape of the music industry, its players have to navigate and find their place in it.

While the age of the Internet has brought new and exciting ways for musicians to reach wider audiences for example through music streaming or sharing sites, it has also brought its own set of problems such as online piracy and widespread unlicensed use of music. It is in this environment that any artist needs now more than ever to understand how they can take charge of and better protect their work. This article seeks to share the intellectual property laws that are important for any artist to know and more importantly, the practical steps you can take to protect your music in Malaysia.

1.Protect your copyright
This is the most basic and important area of law for an artist. Copyright exerts your ownership over your creation and it is what gives you the host of exclusive rights you have over your music, such as performance, reproduction and distribution of it. There are two main types of copyright in music. The first is the composition copyright which protects the melody and lyrics of a song and belongs to composers, lyricists and publishers. The second type is the sound recording copyright. This protects the recording itself that has been made of a piece of music and usually belongs to the performers and maker of a recording. Be clear on which copyright you are dealing with and what belongs to you.

An interesting point to note is that copyright in fact comes into existence upon the time of creation of your work without you having done anything further. However, your creation must be in a tangible form such as sheet music, lyrics you have written down or a sound recording. Hence an idea in your head or even a freestyle live performance cannot be copyrighted.

Further, even though copyright exists upon creation, should you be faced with any dispute over the ownership of your work in the future, proving that you have the copyright in the work is another matter. There are a number of simple ways you can be prepared for this.

In Malaysia, the best and preferred method is to simply notify the Intellectual Property Corporation of Malaysia (MyIPO) of your copyright. This is a lot simpler than it may first seem and is also a more secure method for if you ever have to prove your copyright before a court of law. All it involves is filling up a form called Form CR-1, making a statutory declaration that you are the owner and/or author of the work and details of the work, and depositing a copy of the work with MyIPO. MyIPO’s website (www.myipo.gov.my) is very helpful in this respect as it provides samples of the form and statutory declaration needed and even has an easy to follow flowchart of the process. Application costs are reasonable with fees starting from RM35 for an application.

Another alternative method is called the poor man’s copyright. This involves placing into an envelope a sample of your created work, sealing it, and mailing it to yourself using registered mail. The key is not to open the mail when you receive it and to keep your proof of postage. This mail package then becomes proof that you created a particular work at a particular time.

The modern day version of this would be uploading your music to a website such as Facebook, YouTube or Bandcamp as your uploads would carry date-stamps.

2.Make trade marks work for you
While copyright law involves the protection of creative works, trade marks are more to do with your branding. Trade mark protection refers to the protection of a sign, word or phrase which helps to distinguish your goods from those of another. Trade marks will thus likely be most relevant to music artists in respect of band names or logos and particularly with regards to merchandise. Think the Rolling Stone’s tongue and lip logo. According to a recent poll, this legendary logo is now the most iconic T-shirt design of all time.

When first coming up with a band name, it may be worth checking to see if a possible name you have in mind is already listed or not on the WIPO trade mark database. This is to ensure that you do not pick a name or logo which is identical or similar to that of another music artist and hopefully avoid the possibility of any trade mark infringement troubles in the future.

If you are at the stage of considering to expand into merchandise with a band name or logo printed on it, then you may wish to consider registering your band name or logo as trade marks. Registering logos or names as trade marks however is a more expensive and complicated process than registering copyrights. Hence it is advisable to seek some legal advice in this respect to find out what is the best option for your situation.

3.Become a member of a music licensing society (hello royalties!)
Music licensing societies help to license the use of music and provide royalties to their members when their music is played, performed or broadcasted in any way. In Malaysia, the sole licensing body is now Music Rights Malaysia (MRM), which then distributes the fees and royalties collected to its member bodies such as Music Copyright Protection Berhad (MACP), Recording Performers Malaysia Berhad (RPM) and Public Performance Malaysia (PPM). Thus composers, lyricists and publishers should still sign up for membership with MACP, while recording artists can sign up with RPM. MACP and RPM membership forms can be downloaded from their websites respectively.

4.Spell things out
As with any relationship, communication and setting things out clearly is important. You can think of this step as a “music pre-nup”. Where a piece of work is a group effort, have a talk with your co-authors to establish which part of it they own. An easy example would be in a lyricist and composer duo where the lyricist owns the copyright in the lyrics written and the composer owns the composition. If you are thinking of signing to a recording company, spell out clearly your rights in your music. Thus in the (hopefully unlikely!) event of an Oasis-level breakup, knowing your rights and positions clearly can help prevent future copyright squabbles.

5. Talk to an intellectual property lawyer
Finally, where you still have questions on your intellectual property rights or what is the best option for you, have a chat with a lawyer. Besides advising or assisting you on the steps above, a good lawyer can also help check through any contracts that you may sign with a recording company for example to ensure that your rights are protected.

In the mean time, keep making music and remember to protect it well!

ABOUT THE CONTRIBUTOR(S)

Foong Cheng Leong is an Advocate and Solicitor of the High Court of Malaya and also a registered Malaysian trade mark, industrial designs and patent agent. He is the author of the book, Compendium of Malaysian Intellectual Property Cases. He also writes at www.foongchengleong.com.

Rachel Fung graduated from King’s College London with a Law LLB, where she first developed an interest in intellectual property law. She is called to the Bar of England and Wales and the High Court of Sabah and Sarawak. She is currently chambering at the boutique IP firm, Foong Cheng Leong & Co.

First published on Music Press Asia on 8 March 2019.

Tomorrow’s law today: More legal firms embracing tech than before

Image Credit: AZHAR MAHFOF/The Star

The FCL&Co Case Law Search App was featured in the The Star Newspaper.

Another firm to have jumped on board the bandwagon is Foong Cheng Leong and Co with its FCL&CO Case Law Search app which catalogues some 12,000 cases.

Unlike most law libraries, the app is free, making it a significant resource for boutique and single-owner firms which may not be able to afford subscription-based libraries that are costly.

The firm’s namesake and founder, Foong Cheng Leong, says the app was built in collaboration with another company.

He says that technology which enables lawyers to work more efficiently is a bigger priority than solutions for the public such as lawyer matching services, and tech companies should consult lawyers to grasp what the industry actually needs.

“The industry is still at its infancy, but newcomers may need to go through the Bar Council hurdle to see if they are in contravention of the Legal Profession Act (LPA) 1976,” he opines.

The LPA defines acceptable conduct and business practices for lawyers, and violating it can result in members being fined or even disbarred.

Read more at The Star Online

Introduction of Legal Technology Provision in the new Malaysian Legal Profession Act

The Bar Council recently submitted the draft of the new Legal Profession Act to the Attorney General. The new Act seeks to account for developing trends and technological innovation in the legal profession and also seeks to introduce provisions with the aim of being a fully self-governing Bar.

The new Act was drafted by the Committee to Reform the Legal Sector with the assistance of various working groups. I was appointed to assist Working Group 13 to draft the provision for “Legal Technology” which is now s. 35 of the new Act.

S. 35 of the new Act provides the following-

Legal technology

(1) For the purposes of this section:

“legal technology” means any technological product or service used or to be used in the provision of any service or any act which is within any function or responsibility of any advocate and solicitor, or places at the disposal of any other person the services of an advocate and solicitor;

“legal technology provider” means any person or entity that provides legal technology;

(2) The Bar Council may make rules and rulings for the regulation of any legal technology or legal technology provider, taking into account the promotion of technological innovations, public interest and the interests of members of the Malaysian Bar.

(3) The Bar Council shall have the power to exempt any legal technology or legal technology provider from any rules and rulings of the Bar Council and from section 33, with or without any condition, as may be deemed fit by the Bar Council from time to time.

(4) Any contravention of this section by any legal technology provider, shall result in the revocation of any approval or any exemption granted by the Bar Council.

(5) The Bar Council shall have the power to conduct any inquiry to identify or determine any contravention referred to in subsection (4), and may apply to the High Court by way of originating summons, to compel any person or entity to produce any document for the purpose of the inquiry.

(6) Where the Bar Council concludes that there has been a contravention of this section, the Bar Council shall have the power to apply to the High Court –

(a) for an order to restrain the legal technology provider from providing its product, service or solution;
(b) for an order to compel the relevant authority to disclose any further relevant information related to the contravention; and
(c) for an order to compel the relevant authority to restrain or limit access to such legal technological providers that contravene subsection (2).

(7) Any person or entity who contravenes subsection (2) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit and where such person or entity is an advocate and solicitor or limited liability law partnership, he or it shall also be liable to disciplinary proceedings under Part XI.

S. 35 seeks to regulate the provision of legal technology by legal technology service provider. It is noted that no approval is required to provide any legal technology or legal technology provider technology services unless Bar Council makes rules and rulings for it.

There had been proposal to introduce provision to require legal technology service provider to register itself with Bar Council before it can provide legal technology services. Fortunately, this provision was not introduced as it would stifle innovation. Businesses would be discouraged from creating any innovation for the legal profession if the barrier to entry is high or uncertain. Furthermore, certain technologies like accounting software are catered to all industries and not only legal industry. It would be difficult for the technology provider to divide itself between non-legal technology and legal technology.

There are two (2) parts to the definition of the term “legal technology”. Legal technology is defined as any technological product or service used or to be used-
(1) in the provision of any service or any act which is within any function or responsibility of any advocate and solicitor, or
(2) places at the disposal of any other person the services of an advocate and solicitor.

The first part basically covers all forms of legal technology used by an advocate and solicitor, whether in a form of a hardware and software, and could include legal information platform, artificial intelligence, accounting, software, mobile payment etc.

The second part basically covers lawyer-client matching service. Lawyer-client matching service is currently prohibited by s. 37 of the Legal Profession Act 1976. Lawyer matching service providers, Burgielaw and CanLaw were prohibited by the Bar Council to provide such services with a fee as it amounts to touting.

With the new s. 35(2) and (3), matching service may again be provided but with Bar Council’s approval.

Disclaimer: The views above are purely my personal views. They are not the official view or intent of the Bar Council.

‘Hunt’ for critics of monarchy: So what does the law say about ‘doxing’?

I was interviewed by the Malay Mail regarding the issue of “doxing”.

“Doxing” or “doxxing”, in my opinion, is the act of harvesting and publication of personal information of a person on the Internet often with the intention to, among others, annoy, harass, humiliate, insult, threaten, intimidate, or punish the identified individual. Such personal information may be publicly available or private information. They include full name, identity card number, pictures, home or work address, contact number and email.

The act of doxing may be as a result of the act of the victim himself. Often the victim was recorded acting negatively (such as video of a road rage) and such record had gone viral on the Internet.

The act of doxing will usually result with emotional distress to the victim as the victim will be subject to annoy, harass, humiliate, insult, threaten or intimidate by that person or other person(s) being influenced to do the same. In some cases, victims of doxing have lost their job, moved out from their place or residence, change their contact details or even assaulted.

Currently, there is no specific law in Malaysia to govern doxing. In the Malay Mail article, I said-

Lawyers polled by Malay Mail conceded that doxing on its own is not a criminal offence, although it could fall under Section 233 of the Communications and Multimedia Act 1998 that handles improper use of network facilities or network service.

However, lawyer Foong Cheng Leong said this is only true if there had been publication of a comment which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person.

“Invasion of privacy is also possible but the information leaked must be something of a private nature — not those in the public domain like full name, identification card number and address.

“Tort of harassment is also possible but that must be something of a repeated act of harassment by the same person,” said the chairman of the Kuala Lumpur Bar Information Technology and Publication Committee.

The Malay Mail

Also read Bread & Kaya: Cyberstalking, harassment … and road rage

Make it a point to ‘check and verify web addresses

I was interviewed by The Star Newspaper on the issue of fake websites-

He said a fake website was usually poorly designed and used low resolution images.

“Some of the contents are also too good to be true.

“Some would also request for information such as login or password, which they normally do not ask,’’ he added.

“Your browser or a good virus scanner would also warn that the website you are visiting is a suspicious site,” said Foong.

Foong said those operating fake websites could be punished under, among others, the Penal Code and Trade Marks Act 1976.

The article did not reproduce my entire interview. For completeness, I will elaborate the further points above. Other than the above points to spot a fake website, one can spot a fake website by first looking at the URL. If the URL of the page is suspicious, the page is likely to be fake.

In respect of the offence, it may amount to cheating under s. 415 of the Penal Code. The website owner may also initiate an action for trade mark infringement and passing off against the operator. If the design, logo or image of the website owner is used, this could amount to copyright infringement.

In order to take action against these unknown websites operators, the website owner may file a complaint with the domain registrar or website hosting provider, or even those advertising the fake pages e.g. Facebook.

The website owner should also warn the public about the existence of these websites.

Cyber Laws Cases

I assisted the Bar Council Cyber Laws Committee to prepare this of cases relating to cyber laws. This list is taken from my draft manuscript for my next book “Information Technology and Cyber Laws of Malaysia“.

This list is intended to assist practitioners and members of the public in understanding cyber laws and information technology laws and to contribute to the development of such laws.

(A) Defamation and Other Actions

(1) Email

Nagandran Kalianna Gaundar (berniaga dibawah RAJU RESTOREN) v. Melinda Alison Monteiro & Ors [2011] 1 LNS 466 / [2011] 4 MLJ 224
Mox-Linde Gases Sdn Bhd & Anor v Wong Siew Yap [2015] 10 MLJ 413
Lye Eng Eng & Anor v Ho Kee Jin [2017] MLJU 521
Toh See Wei v. Teddric Jon Mohr & Anor [2017] 1 LNS 445 / [2017] 11 MLJ 67

(2) Facebook

Amber Court Management Corporation & Ors v Hong Gan Gui & Anor [2014] 1 LNS 1384
Foo Hiap Siong v Chong Chin Hsiang [2014] 1 LNS 1196
National Union of Bank Employees v Noorzeela Binti Lamin [2012] 9 MLJ 410
Salleh Berindi Bin Hj Othman v Abdul Hamid Ahmad & 4 Others [2014] 1 LNS 1611

(3) Twitter

Dato Seri Mohammad Nizar Bin Jamaluddin v Sistem Televisyen Malaysia & Anor [2013] 4 MLJ 448
Datuk Seri Mohammad Nizar Jamaluddin lwn. Utusan Melayu (M) Berhad [2013] 1 LNS 592

(4) Online Forum

Stemlife Berhad v Bristol Myers Squibb (M) Sdn Bhd [2008] MLJU 354
Stemlife Berhad v Mead Johnson Nutrian (Malaysia) Sdn Bhd [2013] 1 LNS 1446

(5) Blogs

Kho Whai Phiaw v Chong Chieng Jen [2009] 4 MLJ 103
Tong Seak Kan & Anor v Loke Ah Kin & Anor [2014] 6 CLJ 904
Datuk Seri Anwar Bin Ibrahim v Wan Muhammad Azri Bin Wan Deris [2014] 3 MLRH 21 / [2014] 9 MLJ 605

(6) Hyperlinks

The New Straits Times Press (M) Bhd & Ors v Ahirudin bin Attan [2008] 1 MLJ 814

(B) Criminal Law-Related

(1) Communications and Multimedia Act 1998

Nor Hisham Bin Osman v Pendakwaraya [2010] MLJU 1249
PP v. Muslim Ahmad [2013] 5 CLJ 822
PP v. Rutinin Suhaimin [2013] 2 CLJ 427
Rutinin Suhaimin v. PP [2015] 3 CLJ 838
Ahmad Abd Jalil lwn. PP [2015] 5 CLJ 480
Mohd Fahmi Redza Bin Mohd Zarin Lawan Pendakwa Raya dan Satu Lagi Kes [2017] MLJU 516
Nik Adib Bin Nik Mat v Public Prosecutor [2017] MLJU 1831

(2) Computer Crimes Act 1997

Basheer Ahmad Maula Sahul Hameed & Anor v Pendakwa Raya [2016] 9 MLJ 549
Roslan bin Mohamad Som & Anor v Pendakwa Raya [2016] 1 LNS 651
Rose Hanida Binti Long lwn Pendakwa Raya [2017] MLJU 1212
Kangaie Agilan Jammany lwn. PP [2017] 1 LNS 1640

(3) Other Crimes

Dato’ Ibrahim Ali v. Datuk Seri Anwar Ibrahim [2015] 1 CLJ 176
Tan Jye Lee & Anor v PP [2014] 1 LNS 860
PP v Yuneswaran a/l Ramaraj [2015] 6 MLJ 47
Reza Kianmehr v. PP [2013] 7 CLJ 265
Mat Shuhaimi bin Shafiei v Pendakwa Raya [2014] 2 MLJ 145

(C) Electronic Evidence

(1) Electronic Commerce Act 2006

Yam Kong Seng & Anor v Yee Weng Kai [2014] 6 CLJ 285

(2) Section 114A Evidence Act 1950

PP v. Rutinin Suhaimin [2013] 2 CLJ 427
Tong Seak Kan & Anor v Loke Ah Kim & Anor [2014] 6 CLJ 904
YB Dato Haji Husam bin HJ Musa v Mohd Faisal bin Rohban Ahmad [2015] MLJU 53
Stemlife Berhad v Mead Johnson Nutrian (Malaysia) Sdn Bhd [2013] 1 LNS 1446
Kangaie Agilan Jammany lwn. Pendakwa Raya [2017] 1 LNS 1640

(3) Wikipedia

Lee Lai Ching v Lim Hooi Teik [2013] 1 LNS 18
Etonic Garment Manufacturing Sdn Bhd v Kunn-G Freight System (M) Sdn Bhd [2010] 1 LNS 13
Pendakwa Raya v Murugan a/l Arumugam [2009] 1 LNS 1759

(4) Wayback Machine

Petroliam Nasional Bhd (Petronas) & Ors v. Khoo Nee Kiong [2003] 4 CLJ

(5) Google Maps

Eddy Salim & Ors v. Iskandar Regional Development Authority & Ors (No 2) [2017] 1 LNS 822

(6) Search Engine

Reka Setia Playground Sdn Bhd v Siow Wee Hong [2016] 1 lns 549

(7) Others

Menteri Dalam Negeri & Ors v. Titular Roman Catholic Archbishop Of Kuala Lumpur [2013] 8 CLJ 890
Tan Chow Cheang v Pendakwa Raya [2017] MLJU 1642

(8) Harassment

Mohd Ridzwan bin Abdul Razak v Asmah Binti HJ. Mohd Nor [2016] 4 MLJ 282

(9) Pre-Action Discovery

Stemlife Berhad v Bristol Myers Squibb (M) Sdn Bhd [2008] 1 LNS 273
Neoh Chong Po v Cari Internet Sdn Bhd [2009] 1 LNS 34

(10) Domain Names

Petrolium Nasional Bhd (Petronas) & Ors v Khoo Nee Kiong [2003] 4 CLJ 303

(D) FinTech

(1) Payment System

Tekun Nasional v Plentitude Drive (M) Sdn Bhd and another Appeal [2018] MLJU 516

(2) E-Hailing Services

Joe Vincent Singgoh v Commercial Vehicles Licensing Board Sabah 1 & Ors [2017] MLJU 800

(3) E-Commerce

Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor [2017] 7 MLJ 354
Groupon Sdn Bhd v Tribunal Pengguna & Anor [2016] 1 LNS 555
Groupon Sdn Bhd v Tribunal Pengguna & Anor [2016] 1 LNS 1009

(4) Viral Content

Public Prosecutor v Poovarasan Subramaniam & 2 Others [2017] 1 LNS 1009
Datuk Wira SM Faisal Sm Nasimuddin Kamal v Emilia Hanafi & Ors [2017] 1 LNS 1373
Synergistic Duo Sdn Bhd v Lai Mei Juan [2017] 9 CLJ 244

1 2 3 4 30  Scroll to top