WORLD TRADE
ORGANIZATIONIP/C/W/327/Add.3
12 September 2002
(02-4809)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Malaysia to questions posed by Australia
Addendum
By means of a communication from the Permanent Mission of Malaysia, dated 6 June 2002,
the Secretariat has received copies of the following responses to the questions posed by Australia, as
circulated in document IP/C/W/328.
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MALAYSIA
A. COPYRIGHT AND RELATED RIGHTS
1. What is the current duration of copyright in photographs?  With regard to the term
"Author’s Life plus 50 years" when was this te rm enacted?  Was the "Author’s Life plus 50
years" term applied to all photographs currentl y protected by copyright at the date of force of
the amendment?  If so, were there any schemes or provisions to protect existing contractualarrangements, or mitigate damage to copyright users for arrangements existing prior to the
amendment?
The duration of copyright in photographs shall subsist during the life of the author and fifty
years after his death.
The term is computed upon subsistence of the works under the Copyright Act 1987.
The provision has been in force since August 1969 under the Copyright Act 1969 which has
been later repealed by the Copyright Act 1987.
Provisions to protect existing contractual arrangements or mitigate damage to copyright users
for arrangements existing prior to the amendment is laid down under section 2 of the Copyright Act
1987.
2. Does Malaysia grant WPPT standard performers ’ rights in audio fixations?  If not, is
the introduction of audio performers’ rights under active consideration, and if so have any
proposals been released for public comment?  If  yes, when were these rights enacted and was
there an existing system of performers’ rights (as opposed to Rome Convention anti-bootlegging
rights) at that time?  If there was no existing  system of performers’ rights, did the relevantIP/C/W/327/Add.3
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legislation recognize rights in performances embodied in pre-amendment sound recordings (i.e.
retrospectively apply the legislation)?
Malaysia does grant WPPT standard performers’ rights in audio fixation.
These rights came into force in 1997.The amendment gives retrospectives effect by virtue of section 2 of the Copyright Act 1987.
3. Has Malaysia enacted audio-visual perf ormers’ rights (beyond Rome Convention
standards)?  If not, is the introduction of  audio-visual performers’ rights under active
consideration, and if so have any prop osals been released for public comment?
Our Copyright Act 1987 has been amended to prov ide for the provisions of WIPO Copyright
Treaty (WCT) 1996 and WIPO Performances and Phonograms Treaty (WPPT) 1996  although
Malaysia has not acceded to both of these treaties.
Malaysia has not enacted audio-visual performers’ rights and currently it is still under
consideration.
4. To what extent does current copyright protection in Malaysia cover the use and
dissemination of copyright works on digital ne tworks such as the Internet?  Are there any
specific provisions in copyright law concerning the digital on-line environment, and are there
any significant judicial or administrative  decisions with bearing on this issue?
Section 10 of the Copyright Act 1987 states the qualification for protection of works eligible
for copyright under section 7 in whatever forms or media.  There is no specific provisions under the
Act concerning the digital on-line environment.  However, section 7(3)(b) provides that a literary,
musical or artistic work shall not be eligible for copyright unless it is written down, recorded or
reduced to material form.
"Writing" is not defined in the 1987 Act, but section 3 of the Interpretation Acts 1948 and
1967 (Consolidated and Revised – 1989) defines it to include "typewriting, printing, lithography,
photography, electronic storage or transmission or any other method of recording information or
fixing information in a form capable of being preserved."
5. Are there any specific exceptions to copyright under the law of Malaysia to allow use of
copyright materials by third parties for permitted purposes?  Are there any significant judicial
decisions with bearing on this issue?  Are th ere any specific rules or findings concerning
exceptions or limitations to copyright protection of computer software?
Section 13(2) of the Copyright Act 1987 provides exceptions to copyright to allow use of
copyright materials by third parties for permitted purposes under the law.  There are no specific rulesconcerning exceptions or limitations to copyright protection of computer software.
6. Does the law of your country provide copyright protection for material created by
government?  If yes, does the law provide pr otection to government in the same way as
protection is provided for other copyright creators or do different provisions apply?  How doesthe law of your country deal with the use of copyright material by government?  For example, is
government subject to the same requirements as other users of copyright material or do
different provisions apply?IP/C/W/327/Add.3
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Section 23 of the Act provides copyright protection for works created by the government.
The protection given to the government works are similar to those protection given to other copyright
creators with the same requirements.
7. How does the law of your country deal with the copying of material by educational
institutions?  Are educational institutions subject to the same requirements as other users of
copyright material or do different provisions ap ply?  Are there exceptions to the general rules
regarding infringement of copyright which apply in respect of copying by educational
institutions?
Section 13(2)(i) gives specific exception in respect of using copyright works by educational
institutions, where such use is in the public interest and is compatible with fair practice of which no
profit is derived therefrom.
8. How does the law of your country implement the obligations under Article 14.3 of the
TRIPS Agreement in respect of broadcasting organizations?
Sections 15, 16 and 20 of the Act deal with the issue of copyright in broadcasting.
9. Does the law of your country provide criminal  sanctions for copyright infringement?  If
yes, please describe the operation of these provisions.
Section 41 of the Act provides for criminal sanctions for copyright infringement.  Generally,
the right holders shall institute the proceeding by lodging an official complaint to the Enforcement
Division of the Ministry of Domestic Trade & Consum er Affairs or police, with proof of subsistence
of copyright.  The relevant authorities will do the necessary investigation and if there is a prima facie
case, the infringer will be summoned to the court for criminal infringement.
B. PATENTS (INCLUDING PLANT VARIETY PROTECTION )
10. How does your country provide protection for new plant varieties as required under
Article 27.3(b)?  If your legislation is based on the UPOV system, on which UPOV Act was it
modeled?  Can new plant varieties be protected by patent in your country?
Malaysia will provide protection for new plant varieties under the sui generis  system,
however, this protection system is still not enforced.  The legislation will have elements of UPOV
1991 model and 1978 model.  Section 13(1)(b) of the Patents Act 1983, does not protect new plant
varieties.
C. PROTECTION OF UNDISCLOSED INFORMATION
11. To whom does the law providing for the protection of undisclosed information, as
required by Article 39.2 of the TRIPS Agreement, apply?  Does the relevant law apply to
government and government-linked agencies?
Generally, the protection of undisclosed information in Malaysia is laid down under the rule
of common law and equity.  Any natural person or legal entity may not disclose trade secrets in his or
its possession in a manner that is contrary to honest  practice in trade.  A commercial or industrial
activity shall be considered value from its confidentiality, reasonable measure have been taken to
maintain its confidentiality, or it is not easily accessible to an ordinary person having skill in the art.
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