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Voluntary Notification of Copyright

22 August 2012

Voluntary Notification of Copyright

On June 1, 2012, heralded a significant development in copyright protection in Malaysia with the coming into force of the Copyright (Voluntary Notification) Regulations 2012. No doubt there are still no actual formalities to register copyright here because of existing automatic protection by virtue of the Berne Convention. However, since most copyright owners have for years been demanding for a more tangible form of protection similar to their trademark and patent peers, the new Regulations can be seen as a fulfillment of such a request.

Copyright stakeholders can now voluntarily notify the Copyright Controller of their claims and deposit a copy of an eligible work with the Intellectual Property Corporation of Malaysia (MyIPO) for recording. The types of work acceptable by notification are various forms of literary, musical and artistic works, including films, sound recordings, broadcasts and derivative works recognized by the main statute – Copyright Act 1987.

The rightful applicant under the Regulations is the author, owner, assignee or licensee of the copyrighted work; but a representative may make such notification on behalf of these persons especially if the applicant is not a citizen or permanent resident of Malaysia only.

A notification shall contain particulars such as details of the copyright owner, details of the author(s), a Statutory Declaration to assert the applicant’s locus standi, a copy of the work (including its category and title), date and place of first publication, and accompanied by the prescribed fee. The work must be titled and if it is in a language other than our national language or English, the name of that language and its translation must be provided. Accuracy of the information entered into the Registrar is dependent on the information provided by the applicant.

One requirement is that the copy of work submitted must be “clear and of durable quality to the satisfaction of the Controller.” This vague standard is opened for interpretation although the Controller will not be quick to object. Either hard or electronic copies are permitted, depending on the nature of the work to be deposited. Official fees also depend on how voluminous the work deposited is. If a replacement is required by the Controller, it must be provided within 30 days of the request; otherwise the notification is deemed as withdrawn.

If the notification is in order and upon its successful entry into a register, the Controller shall inform the Applicant in writing. The Applicant may go one step further and request for a proper certificate to this effect by filing a form and paying the prescribed fee.

Although strictly not a registration system, the Copyright (Amendment) Act 2012 nonetheless provides that the Controller shall keep and maintain a Register of Copyright. Moreover, despite its voluntary nature, the notification does have a profound effect on admissibility of evidence. This is because the original presumption of ownership under the Act is maintained because any extracts (certified to be true) from the Register shall be prima facie evidence of the particulars therein and shall be admissible in all courts.
Should the work in question requires modification, an amendment to the notification of copyright can be
requested. Similarly, correction of any clerical error is also allowed under the Regulations. In fact, the High Court can order for a correction, expungement or amendment of the Register and the Controller must be served with such a court order. There is also a duty to notify the Controller of any change of address, assignment, licence or testamentary disposition to the copyrighted work.

Since there is no substantive examination of the work (for example, whether it is original, was effort expended) deposited, the process of having the notification recorded should be quick and painless. Although the notification is entirely voluntary, we can already see publishing houses and recording companies flocking to notify MyIPO of their back catalogues of work. Given the low official fees payable and the general ease of the procedures, copyright owners can only have to gain from this new and welcomed system.

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