23 June, 2016

TOPIK 4 09 ABCR3203 Topic 5 PUBLICATION OF INFORMATION – COPYRIGHT

TOPIC 5 PUBLICATION OF INFORMATION – COPYRIGHT
TOPIK 4 09 ABCR3203 Topic 5

LEARNING OUTCOMES

By the end of this topic, you should be able to:

1.  Define what is copyright;

2.  Identify works that are capable of protection under copyright law;

3.  Identify the rights given by copyright law;

4.  Distinguish what amounts to infringement of copyright; and

5.  Evaluate the allowable limits of copyright law.



INTRODUCTION



„The media, especially journalists, have much to learn from the law of copyright.

The   law  represents  a  double-edged  sword,   in  that  the  journalist  as  both  the

creator of original material and a user of othersÊ work could be destined for either

the  plaintiffÊs  or  the  defendantÊs  role in  a  court  case.  Careful  and  sensible

operation   within   the   available   defences  should   ensure   the   journalist   minimises

the likelihood of having to defend such an action‰ (Mark Pearson, 1997).



Copyright law is an important area of law for the media. Copyright is a property

right in a work. It is a branch of intellectual property law that protects peopleÊs

skill, creativity, labour or time. The Copyright Act 1987 is the principal legislation

that deals with copyright in Malaysia. The basis for protection is the concept that

the  creator  of  „original‰  and  „productive  ideas‰  has  a  right  to  control  the

commercial exploitation of such ideas. „Essentially, copyright refers to the right

to control and stop others from copying oneÊs work‰ (Ida Madieha, 2004).



Refer to the following cases:



Designers Guild Limited v Russell Williams (Textiles) Ltd [2001] 1 All ER 700
(HL) at 701.
„The law of copyright rests on a very clear principle: that anyone who by his
or   her   own   skill   and   labour   creates   an  original   work   of   whatever   character

shall, for a limited period, enjoy an exclusive right to copy that work. No one

else may for a reason reap what the copyright owner has sown‰ (Ida Madieha,

2004).



Stowe v Thomas 23 F Cas 201 at 206-207 (CCED Pa 1853) (No 13, 514) „The authorÊs exclusive property in the creation of his mind cannot be vested

 in the author as abstractions, but only in the concrete form which he has given

 them, and the language in which he has clothed them. When he has sold his

 book, the only property which he reserves to himself, or which the law gives

 him, is the exclusive right to multiply the copies of that particular combination

  of   characters   which   exhibits   to   the   eyes  of   another   the   ideas   intended   to   be

 conveyed. This is what the law terms copy, copyright‰ (Ida Madieha, 2004).



Charles Jeffreys v Thomas Boosey 10 Eng Rep 681 (1854) (HL) at 702

  „The subject of property is the order of words in the authorÊs composition; not

 the words themselves, they being analogous to the elements of matter, which

  are   not  appropriated     unless   combined,     not  the  ideas   expressed    by  those

 words, they existing in the mind alone, which is not capable of appropriation‰

  (Ida Madieha, 2004).



5.1          WHAT IS CAPABLE OF PROTECTION UNDER COPYRIGHT?



Figure   5.1   shows   the   types   of   work   eligible   for   copyright   (Section   7   Copyright

Act).

Figure 5.1: Types of work eligible for copyright (Section 7 Copyright Act)



These types will be discussed further in the next subtopics.



5.1.1        Literary Works



The    following    are  the  kinds   of  literary works    that  are  protected   under   the

Copyright Act:



(a)    Novels,   stories,   books,   pamphlets,   manuscripts,   poetical   works   and   other writings.



(b)    Plays,    dramas,    stage   directions,   film   scenarios,   broadcasting     scripts,
choreographic works and pantomimes.



(c)    Treaties, histories, biographies, essays and articles.



(d)    Encyclopaedias, dictionaries and other works of reference.



(e)    Letters, reports and memoranda.



(f)    Lectures, addresses, sermons and other works of the same nature.



(g)    Tables   or  compilations,    whether    or not   expressed    in  words,   figures   or
symbols and whether or not in a visible form.



(h)    Computer programmes.



The list, however, does not include official texts of the Government or statutory

bodies   of   a   legislative   regulatory   nature,  or   judicial   decisions   (Section   7   of   the

Copyright      Act  1987)   composed     for  musical   accompaniment        (Section  7  of  the

Copyright Act 1987).



5.1.2         Musical Works



Musical     works    refer  to  any  musical    work,   and   include   works    composed     for

musical accompaniment (Section 7 of the Copyright Act 1987).



5.1.3         Artistic Works



The following are some meanings of artistic works:



(a)    Graphic     work,   photograph,     sculpture    or  collage,  irrespective    of  artistic

       quality;



(b)    A work of architecture being a building or a model for a building; or



(c)    Works of artistic craftsmanship, but do not include layout-design within the

       meaning of the Layout-Designs of Integrated Circuits Act 2000 (Section 7 of

       the Copyright Act 1987).



5.1.4         Films



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 (Section 7 of the Copyright Act

1987):



(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.



5.1.5         Sound Recording



Sound      recording    means     any   fixation    of  a  sequence     of   sounds    or   of  a

representation      of  sounds    capable    of being    perceived     aurally   and   of  being

reproduced by any means, but does not include a sound-track associated with a

film (Section 7 of the Copyright Act 1987).



5.1.6         Broadcasts



Broadcast   means   a   transmission,   by   wire  or   wireless   means,   of   visual   images,

sounds or other information which is:



(a)    Capable of being lawfully received by members of the public; or



(b)    Transmitted   for   presentation   to   members   of   the   public,   and   includes   the
transmission      of  encrypted    signals   where    the  means     for  decrypting    are
provided to the public by the broadcasting service or with its consent.



Broadcasting   service   here   refers   to   any  service   of   radio   or  television   broadcast,

operated     under    the  general   direction   and   control   of  or  under   licence   by  the

Government, in any part of Malaysia (Section 7 of the Copyright Act 1987).



5.1.7        Derivative Works



The following are derivative works:



(a)    Translation, adaptation,  arrangements and other transformations of   works
eligible for copyright; and



(b)    Collection     of  works    or  collections    of  mere   data,   whether     in  machine
readable     or  other   form,   eligible  for  copyright    which,   by   reason   of  the
selection and arrangement of their contents, constitute intellectual creation.



The   above   works   shall   be   capable   of   protection   under   copyright   irrespective   of

their quality and purpose for which they are created (Section 8 of the Copyright

Act 1987).



5.2         WHAT IS NOT CAPABLE OF PROTECTION UNDER COPYRIGHT?



Copyright protection will not be extended to any idea, procedure and method of

operation or mathematical concept. So, in the case of literary, musical or artistic

work,   copyright   protection   will   not   be   given   unless   sufficient   effort   has   been

made   to   make   the   work   original   in   character   and   the   work   has   been   put   into

writing, recorded or reduced to material form.



Copyright   will   not   be   given   to   a   design  which   is   registered   under   Industrial

Designs Act 1996 (Section 7 of the Copyright Act).



5.3          RIGHTS GIVEN BY COPYRIGHT



The following are the rights given by copyright:



(a)    Exclusive Right To Control (Section 13 of the Copyright Act 1987)
An owner of a copyright shall have the exclusive right to control any of the
following in Malaysia:


(i)   The reproduction in any material form.
(ii)  The communication to the public.
(iii) The performance, showing or playing to the public.
(iv)  The distribution of copies to the public:


? The commercial rental to the public.


? The whole work or substantial part of the work.



(b)    Ownership (Section 26 of the Copyright Act 1987)
First   ownership   of   copyright   shall   vest   in   the   author   unless   the   work   is
commissioned       by   a  person   who    is  not  the  authorÊs   employer     under   a
contract of   service or apprenticeship or the work is made in the course of
the authorÊs employment.



(c)    Author (Section 3 of the Copyright Act 1987) is defined as:


(i)   In   relation   to   literary   works,   means   the   writer   or   the   maker   of   the
works.


(ii)  In relation to musical works, means the composer.


(iii) In relation to artistic works other than photographs, means the artist.


(iv)  In    relation   to   photographs,     means      the   person    by   whom      the
arrangements for the taking of the photographs were undertaken.


(v)   In relation to films or sound recordings, means the person by whom
the   arrangements      for  the   making     of  the  film  or   recording    were
undertaken.




(vi)   In relation to broadcasts transmission from within the country, means:


? The   person   transmitting   the   programme,   if   he   has   responsibility
for the selection of its contents; or


? Any person providing the programme who makes with the person
transmitting it the arrangements necessary for its transmission.


? In relation to any other cases, means the person by whom the work
was made.



(d)    Right to Control (Section 13 of the Copyright Act 1987)
The right to control in Section 13 does not include the right to control:


(i)    By way of fair dealing for the purpose of non-profit research, private
study, criticism, and review or reporting of current events, provided
that if the use is public, there should be an acknowledgement of the
title of the work and its authorship. However, this acknowledgement
need not be made in the case of copyright in sound recording, film or
broadcast.


(ii)   The    inclusion   of  a  work    in  a  broadcast,   performance,      showing    or
playing   to   the   public,   collection   of   literary   or   musical   works,   sound
recording   or   film   which   is   made   by   way   of   illustration   for   teaching
purposes and is compatible with fair practice. Mention must be made
to the source and the name of the author which appears on the work used.


(iii)  Any   use   of   the   work   for   the   purpose   of   an   examination   by   way   of
setting the questions, communicating the questions to the candidates
or   answering   the   questions.   Nevertheless   a   reprographic   copy   of   a
musical work shall not be made for use by an examination candidate
in performing the work.


(iv)   The recording made in schools, universities or educational institutions
of   a  work     included    in   a  broadcast     intended    for   such   schools,
universities or educational institutions.


(v)    The reading or recitation in public or in a broadcast by one person of
any reasonable extract from a published literary work if accompanied
by sufficient acknowledgement.


(vi)   The    making     of  quotations    from  a   published     work    if  they  are
compatible   with   fair   practice   and  their   extent   does   not   exceed   that
justified by the purpose, including quotations from newspaper articles
and periodicals in the form of press summaries but there should be a
mention of the source and of the name of the author which appears on
the work used.



(e)  Duration (Section 17 of the Copyright Act 1987)
Duration   of   the   right   to   a   copyright  shall   be   during   the   life   of   the   author
plus fifty years after his death.



(f)   Dealings (Section 27 & Section 27A of the Copyright Act 1987)
Dealings   may   be   in   the   form   of   an   assignment,   licences   and   testamentary
disposition.



5.4          WHAT AMOUNTS TO AN INFRINGEMENT OF COPYRIGHT?



A person is deemed to have infringed a copyright if he does or causes any other

person to do, without licence from the owner of copyright the right granted to a

copyright owner (Section 36 of the Copyright Act 1987).



 5.5          DEFENCES TO COPYRIGHT INFRINGEMENT



The    work    of  the  media   involves    drawing    upon    the  work    of  others  when

reporting. If the work is in the public domain, no problem, but if not, they have to

acknowledge the use of such work, or working within a defence. Section 13(2) of

the Copyright Act 1987 provides the following:


Section 13 (2)


Notwithstanding   subsection   (1)   [exclusive  right   to   control],   the   right   of   control
under that subsection does not include the right to control:


(a)     The   doing   of   any   of   the   acts   referred   to   in   subsection   (1)   by   way   of   fair
dealing for purposes of non-profit research, private study, criticism, [review]
or the reporting of current events, subject to the condition that if such use is
public, it is accompanied by an acknowledgement of the title of the work and
its authorship, except where the work is in connection with the doing of any
of   such   acts   for   the   purposes   of   non-profit   research,   private   study   and   the
reporting of current events by means of a sound recording, film or broadcast.


(b)     The inclusion in a film or broadcast of any artistic work situated in a place
where it can be viewed by the public.


(c)     The incidental inclusion of a work in an artistic work, sound recording, film
or broadcast.


(d)     The making of quotations from a published work if they are compatible with
fair   practice   and   their   extent   does   not   exceed   that   justified   by   the   purpose,
including quotations from newspaper articles and periodicals in the form of
press   summaries:   Provided   that   mention  is   made   of   the   source   and   of   the
name of the author which appears on the work thus used.


(e)     The    reproduction     by   the  press,   the  broadcasting      [or  the  showing]     to  the
public of articles published in newspapers or periodicals on current topics, if
such    reproduction,       broadcasting      [or  showing]      has   not   been    expressly
reserved; Provided that the source is clearly indicated.


(f)     The    reproduction      by   the   press,   the  broadcasting       [or   the  performance,
showing or playing] to the public of lectures, addresses and other works of
the same nature which are delivered in public is such use is for informatory
purposes and has not been expressly reserved.



Example of a Copyright case:


Beloff v Pressdram Ltd & Anor [1973] 1 All ER 241

  „The plaintiff, a newspaper correspondent with The Observer, had written a

  memorandum to her editor, copies of which were circulated to other members

  of  the   editorial   staff.  The  defendant    reproduced       verbatim     and   in  full,  the

  plaintiffÊs   memorandum   in   an   article   attacking   the   plaintiff.   Apparently   the

  memorandum   had   been   disclosed   or   leaked   by   someone   in   The   Observer   to

  the defendant. In an action for infringement of copyright, the plaintiff failed as

  she   was   not   able   to   prove   that   she   was   the   owner   of   the   copyright   in   the

  memorandum.‰          The    defences    of  public    interest   and   fair  dealing    for  the

  purposes      of  criticism   or  review     of  the  memorandum          or  the   purpose     of

  reporting of current events. „With respect to the defence of public interest, the

  court    recognised     that   it  was   a   defence    based    on   common       law   and,    if

  applicable, operated to override the rights of individual, including copyright.

  However the learned judge in that case, held that the defence did not Âextend

 beyond misdeeds of a serious nature and  importance to the countryÊ such as

 breach     of  the   countryÊs    security,   breach    of  law,  including     statutory    duty,

  fraud, or otherwise destructive of the country or its people. In that case, as the

  memorandum did not disclose any iniquity or misdeed, the defence of public

  interest failed. With respect to the defence of fair dealing, it was held that the

  dealing    must    be  directed    to  the  prescribed     purposes     and   no   other.  Thus,

  dealing   for   the   purpose   of   disclosing   information   which   was   in   the   public

  interest to know did not fall within the defence. It was further held that the

  leak was clearly a dealing with the work in which copyright existed and that

  the   publication   of   information   known   to   be   leaked   was   unjustified   for   the

  authorised     purposes     of  criticism,   review    and    news    and   hence,    could   not

  constitute fair dealing.‰


SELF-CHECK 5.1


1.   Explain what does copyright protection mean.

2.   What can an owner of copyright do? Elaborate.

3.   Explain what amounts to an infringement of copyright.

4.   As   a   member   of   the   media,   to   what   extent   can   you   copy   someone
else's work? Discuss.


ACTIVITY 5.1


Discuss the copyright issues in the problem below:


Valerie    gives   a  lecture   at  a  business    seminar     on   ÂThe   future   of  risk
analysis in the construction industryÊ. Her lecture is in two parts. The first
part    is  a   detailed    address     based    upon     notes    written    by    herself,
expounding two theories propounded by Valerie and issued as materials
to the delegates. The materials are marked with a copyright symbol. The
first part also includes a short role-playing section to enliven the address
by   extracting   a   volunteer   from   the   audience   to   illustrate   some   difficult
concepts.     The   content    of  this  is  flexible.  The   second    part   of  the  talk
consists   of   some   personal   reminiscences,   and   also   includes   some   stories
which are typical in risk analysis and certain commonly told stories in the
industry.


Valerie   is   aware   that   the   audience   takes   notes   during   both   parts   of   her
lecture. However, she is not aware until afterwards of the following:


Barry, a journalist, has taken detailed notes, adding some odd thoughts of
his own on ValerieÊs ideas. He then uses them to compose a critical article
repeating   key   parts   of   her   speech   in   an   article   on   risk   assessment.   He
thinks    the  speech    largely    condemns     itself  and    makes    little  input.  He
copies the material distributed at the seminar.


Cuthbert     has   taken    detailed   notes   in shorthand,      translated    them    into
Japanese     and    published     the   speech    verbatim    in   a  Japanese    business
paper.


Carver has made a video of ValerieÊs talk.


Agnes has made a sound recording of the lecture and is now repeating it
to paying audiences, appropriating many of ValerieÊs ideas. (Alan Murdie (1997)



? Copyright refers  to  the  right  to  control   and  stop   others  from    copying
one's work.



? Sections 7 and 8 of the Copyright Act lay down the types of works capable of
protection.



? The right granted by copyright is the exclusive right to control.



? Infringement of copyright occurs if another person does anything which is the
exclusive right of the owner without permission or licence.




Artistic work                                
Fair dealing



Author                                        
Films



Broadcasts                                    
Infringement



Dealings                                      
Literary works



Derivative works                              
Musical works



Duration                                      
Ownership



Exclusive right to control                    
Sound recordings

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