Copyright law in Malaysia
Over the years, numerous platforms have been created on the internet for people to share and publish their works including but not limited to songs, videos and photographs. With these platforms and the internet, new opportunities and professions such as “Youtuber”, “Streamer”, “Instagrammer” and “Internet Influencer” have emerged in the market.
Youtubers, as an example, are creating contents and uploading the same on the internet which form a source of our daily entertainment. The contents include among other, make up tutorials, workout videos, gaming videos and even advertisements.
But what happens if youtuber A uploaded a video titled “Types of Adults during Zoom Meeting” (“Video A”) in April 2020. A month later, youtuber B uploaded “12 Types of Adults during Zoom Meeting” (“Video B”) and having watched Video A and Video B, it appears to the viewers that the storyline, filming techniques, message and contents of Video B are similar to Video A.
To what extend does the Malaysian Copyright law protect the videos created by Malaysian Youtubers?
What is Copyright?
Copyright is an intellectual property right that subsists in original works provided for under the Copyright Act 1987. The Copyright Act 1987 enables the owner of the work to enjoy exclusive right to among others, share, publish or even granting permission to others for usage of his/her works.
Pursuant to Section 10(2) of the Copyright Act 1987, copyright will subsist in works which:-
(a) being a literary, musical or artistic work, film or sound recording is first published in Malaysia;
(b) being a work of architecture erected in Malaysia or any other artistic work incorporated in a building located in Malaysia;
(c) being a broadcast transmitted from Malaysia.
Section 3 of the Copyright Act 1987 had also defined “film” means any fixation of a sequence of visual images on material of any description, whether translucent or not, so as to be capable by use of that material with or without any assistance of any contrivance:-
(a) of being shown as a moving picture; or
(b) of being recorded on other material, whether translucent or not by the use of which it can be so shown,
and includes the sounds embodied in any sound-track associated with a film”
Based on the definition in the Act, Video A and Video B fall under the category of film. As such, copyright automatically subsists once the work is made or published in accordance with Section 10 of the Act.
Video A vs Video B
There would be an infringement of copyright if any of the copyright protected work has been reproduced, performed and/or distributed by any other parties without obtaining the necessary consent from the copyright owner.
An individual cannot copy someone’s work which was expended from the author’s own creativity and claim it as their own work. Despite the fact that an individual might claim that the work was created by inspiration or a derivative work, it may be considered as plagiarism.
In this situation, if youtuber B has reproduced, performed and/or distributed Video A without obtaining consent from youtuber A, it will amount to an infringement of copyright. However, youtuber B did not reproduce, perform and/or distribute Video A but adopted the idea in Video A and film its own video, Video B.
Section 7(2A) of the Copyright Act 1987 specifically excludes ideas, procedures, methods of operation and mathematical concepts from copyright protection.
In Telmark Teleproducts Australia Pty Ltd v Bond International Pty Ltd (1985) 5 IPR 203, the Defendant had made an advertising film which is similar to the Plaintiff’s advertising film by using similar or even identical visual images and sounds. The Plaintiff then sought an injunction from the Court to refrain the Defendant from showing the advertising film. The Federal Court held that in view that the Defendant had made its own film and had not copied from the Plaintiff’s advertising film, the Defendant had not infringed the Plaintiff’s copyright in the film.
Despite youtuber A produced the “Types of Adults during Zoom Meeting” video, the idea to create the video would not be protected by copyright because only the video is protected by copyright. In other words, a video creator having the same idea as youtuber A could create “Types of Adults during Zoom Meeting” video without infringing youtuber A’s copyright.
However, the fact that the contents of Video A and Video B have such similarities, it may be argued that youtuber B has copied youtuber A’s expression of idea.
By: Lee Su Ting
DISCLAIMER: This article is for general information only and should not be relied upon as legal advice and/or legal opinion. Messrs Yeoh & Joanne accepts no liability for any loss which may arise from reliance on the information contained in this article.
在Telmak Teleproducts Australia Pty Ltd & others v Bond International Pty Ltd & others (1985) 5 IPR 203案件中，被告制作了一部与原告的广告影片相似的广告影片，使用了相似或甚至相同的视觉图像和声音。原告随后向法院申请禁令，禁止被告放映该广告影片。联邦法院认为，鉴于被告制作了自己的广告影片，并且没有复制或抄袭原告的广告影片，被告没有侵犯原告在该广告影片中的版权。
李淑婷律师(Lee Su Ting)
免责声明:本文仅供参考，不应作为法律建议和/或法律意见。Yeoh & Joanne律师事务所不会承担因依赖本文所含信息而产生的任何损失的责任。