Monthly Archives: March 2012

Registration of Copyright in Malaysia

The new Copyright (Amendment) Act 2012 provides for the voluntary notification of copyright. S. 26A of the Act states that a notification of copyright in any work may be made to the Controller by or on behalf of the author of the work, the owner of the copyright in the work, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licensee.

A notification of copyright shall contain the following particulars:

(a) the name, address and nationality of the owner of the copyright;
(b) a statutory declaration that the applicant is the author of the work, or the owner of the copyright in the work, or an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence;
(c) the category of the work;
(d) the title of the work;
(e) the name of the author and, if the author is dead, the date of the author’s death, if known;
(f) in the case of a published work, the date and place of the first publication; and
(g) any other information as the Minister may determine.

The Act changed the requirements of a statutory declaration for prima facie evidence of copyright. The new s. 42 provides that an affidavit, certified extracts of the Register of Copyright or statutory declaration made before any person having authority to administer oath by or on behalf of any person claiming to be –

(a) the owner of the copyright in any works eligible for copyright under this Act stating that-
(i) at the time specified therein copyright subsisted in such work;
(ii) he or the person named therein is the owner of the copyright; and
(iii) a copy of the work annexed thereto is the true copy thereof; or

(b) the performer in a live performance eligible for performers’ right under this Act stating that –

(i) at the time specified therein performers’ right subsisted in such live performance;
(ii) he or the person named therein is the performer; and
(iii) a copy of the document annexed thereto is the document which proves that he or the person named therein performed in the live performance,

shall be admissible in evidence in any proceedings under the Act and shall be prima facie evidence of the facts contained therein.

The Act was enforced on 1 March 2012 but the registration of copyright regime is not in place yet.

We spoke to the Intellectual Property Corporation of Malaysia and we have been informed that the registration regime will be in place in June this year.

[Postscript: The Malaysian Copyright (Voluntary Notification) Regulations 2012 which provides for the forms, fees and procedures for voluntarily notification of copyright is now in effect from 1 June 2012]

My Neighbour Is Spying On Me!

In the recent LoyarBurok “Msia I Can Series: The Right To Your Privacy” on BFM Radio, which I have been reliably informed is one of the top hit links on BFM, I told a story about neighbours fighting over CCTVs which faced a neighbour’s house.

In the case of Lew Cher Phow @ Lew Cha Paw & 11 Ors v Pua Yong Yong & Anor, the occupants of a house at Skudai, Johor initiated an action against their neighbour for invasion of privacy sometime in 2007.

In this case, the Defendants had installed CCTVs around their house and one of the CCTVs captured part of the Plaintiffs’ house, notwithstanding that the CCTV also captured the front yard of the Defendants’ house. The Plaintiffs complained that they were being spied on and therefore their right to privacy had been infringed. The Defendants claimed that the CCTVs were for safety reasons.

The Plaintiffs filed an interim injunction against their neighbour requesting that the CCTVs be taken down. However, the application was dismissed by the High Court on the grounds that, among others, the tort of invasion of privacy is not recognised in Malaysia (see Lew Cher Phow @ Lew Cha Paw & 11 Ors v Pua Yong Yong & Anor [2009] 1 LNS 1256).

A different kind of use of CCTV.

The case went to trial and recently the High Court allowed the CCTV to be taken down.

Justice Vernon Ong, like the judges in Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653 (impliedly recognised the tort); Lee Ewe Poh v Dr. Lim Teik Man & Anor [2010] 1 LNS 1162; and Sherrina Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd (Sabah High Court Suit No. K22-187-2009-I (Unreported)), recognised the right to privacy and the tort of invasion of privacy in Malaysia.

According to the learned Judge, the test to determine whether there is an invasion of privacy of rights is:

Arising from this case are two competing values: safety and privacy. Does the defendants’ fear for their safety and security override the right to privacy of the plaintiffs? Does the CCTV surveillance constitute an intrusion or interference with plaintiffs’ right to respect for their private and family life and their home? Is the CCTV surveillance an unreasonable intrusion upon the privacy of the plaintiffs?

Ultimately this is a question of balance between the rights of the owner of the CCTV camera (the defendants) and the CCTV camera’s target (the plaintiffs).

The learned Judge held that the balance lies on the Plaintiffs. The right to privacy is a fundamental human right. On the peculiar facts of this case, the right to privacy consists of the plaintiffs’ right to private and family life and home. This is a basic right and need which everyone cherishes and holds dear. The well known saying that a man’s home is his castle holds true.

The recognition of privacy rights and invasion of the same have a tremendous impact to Malaysians. This would include the following:

  1. Employees’ right to privacy. Employers would now have to take into account of the same. Each task which affects employees’ privacy will need to be subject to a privacy impact assessment.
  2. Public authorities’ investigation powers. They now would need to take into account of an individuals’ rights. They cannot force suspects or witnesses (like Teoh Beng Hock‘s case) to reveal their personal email and computer.
  3. Celebrities’ right to privacy.
  4. Media’s right to express themselves. Media will now have to take into account of any individuals’ privacy right when reporting stories. Most litigations involving privacy rights in United Kingdom are fought by the media.
  5. The advent of Superinjunctions? Superinjunction, also known as a gagging order, refers to an order that prevents any parties from reporting details of a court case including mentioning the fact that the injunction has been taken out. This injunction was taken by many UK celebrities. Footballers John Terry and Michael Owen are known to have taken a superinjunction over their alleged extramarital affairs.
  6. Bloggers’ rights. As a consequence to the effect on authorities, bloggers’ private information such as password to their personal email and computer data are protected by the right to privacy. Authorities must take measures to ensure that their investigation does not affect the bloggers’ privacy right. However, a blogger’s identity is not protected by right to privacy (see The Author of A Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB) (16 June 2009))

The above list is non exhaustive. It is interesting to see how the right of privacy will develop further in Malaysia.

Download Written Judgement of Lew Cher Phow @ Lew Cha Paw & 11 Ors v Pua Yong Yong & Anor by Justice Vernon Ong.

BFM Podcast: Msia I Can Series: The Right To Your Privacy

This is my podcast from my live radio interview on BFM Radio Station.

As part of our series, Msia: I Can in collaboration with Loyar Burok to encourage awareness of rights amongst citizens, we will be examining the right to privacy. In a society with extremely communal tendencies, the right to privacy is rarely discussed. As adolescents we submit to the right of our parents to invade our lives, and as adults we submit to the authorities. Where should we draw the line? Foong Cheng Leong, privacy law expert joins us to explain our inherent right to keep our business to ourselves, and its limitations in Malaysia.

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

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