TOPIC 5
PUBLICATION OF INFORMATION – COPYRIGHT
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
others work could be destined for either
the plaintiff’s or
the defendant’s 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 people’s 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 one’s 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 author’s
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 author’s
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
author’s employer under
a contract of service or apprenticeship or the work is
made in the course of the author’s
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:
72 ? TOPIC 5 PUBLICATION OF INFORMATION –
COPYRIGHT
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 plaintiff’s 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 extend beyond misdeeds of a serious nature and importance to the country such as breach
of the country’s
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 The
future of risk
analysis in the construction industry. 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 Valerie’s 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 Valerie’s
talk. Agnes has made a sound
recording of the lecture and is now repeating it to paying audiences, appropriating many
of Valerie’s ideas.
? 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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