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LEGISLATION
The Evidence (Amendment) (No. 2) Act of 2012, Act A1432 [The Amendment of Evidence Act 1950 introduced Section 114A. Presumption of fact in publication, providing (1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved. (2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved. (3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved. (4) For the purpose of this section - (a) “network service” and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and (b) “publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.] [(1) Section 114A is controversial since it might enable law enforcement officials to hold publishers of websites accountable for seditious, defamatory, or libelous postings even if they are not the actual authors of the content. (2) Not only those that were identifiable via a name or pseudonym but also via IP (internet protocol) numbers and those that own a computer might have to defend themselves of the activities that were done under these identifiers. This would have chilling effects on the freedom of expression at public forums, blogs and news sites even if these publications represent someone else’s opinion. (3) In protest against this amendment the Centre for Independent Journalism organized the Internet Blackout Day (14 August 2012) in Malaysia to no avail. Section 114A was passed after the second and third reading. On 9 May, Dewan Negara (Senate) passed the amendment. The amendment was gazetted on 22 June 2012. This means the law is now operational.] Agreement between the Government of Japan and the Government of Malaysia for an Economic Partnership, July 13, 2006 [The Agreement contains Article 122 (2): “Each Country shall provide for appropriate measures concerning limitations on liability for service providers: (a) in case where a service provider provides a necessary deterrent to the transmission of information through telecommunication systems or networks controlled or operated by the service provider which it believes to be the infringement of copyright or related rights; and (b) in case where the infringement of copyright or related rights occurs by the transmission of information through telecommunication systems or networks controlled or operated by a service provider and where the service provider is technically unable to deter the transmission or has difficulty in finding the infringement of copyright or related rights.]Malaysian Communication and Multimedia Act of 1998 (CMA 1998), Act 588[This Act provides a legal mandate to defend a free and open internet. Malaysia is one of the only countries in the world where a free and open internet is mandated by law. This mandate is overseen by the Malaysian Multimedia and Communications Commission (MMCC), an independent regulator tasked with oversight of mobile and internet providers (see below).(1) Section 3(3) CMA 1998 states: “Nothing in this Act shall be construed as permitting the censorship of the Internet.” (2) The CMA sets out the conditions for Malaysia’s objectives to create a national policy framework for the convergence industries. It establishes Codes of practice to self-regulate the content industries. (i) Section 213 CMA 1998 makes clear that a Content Code should be drafted in such a way as to provide model procedures for dealing with offensive or indecent content. Despite Section 3(3) CMA 1998, Section 213 CMA 1998 provides a non-exhaustive list of broadly worded categories for a Content Code which should include restrictions on the provision of unsuitable content; methods of classifying content; procedures for handling public complaints and for reporting information about complaints to the Commission; the representation of Malaysian culture and national identity; public information and education regarding content regulation and technologies for the end user control of content; and other matters of concern to the community. (ii) Section 95 CMA 1998 states that “An industry forum may prepare a voluntary industry code dealing with any matter provided for in this Act – (a) on its own initiative; or (b) upon request by the Commission. (iii) Section 99 CMA 1998 states that the Commission may direct a person or a class of persons to comply with a registered voluntary industry code. (iv) Section 98(2) CMA 1998 states that “[c]ompliance with a registered voluntary industry code shall be a defence against any prosecution, action or proceeding of any nature, whether in a court or otherwise, taken against a person (who is subject to the voluntary industry code) regarding a matter dealt with in that code.” Malaysian Multimedia and Communications Commission Act 1998 (MMCCA 1998), Act 589 [(1) The MMCCA was passed to create a Commission to supervise the implementation of the CMA 1998. (2) The CMA 1998 does not define ‘industry’ or ‘multimedia’. According to Rahman, the chairman of the MMCC, Dr Syed Hussein Mohamed, has indicated that it includes broadcasting, telecommunications and the internet. See Nor Saadah Abd Rahman, Copyright in the Internet with reference to Malaysia, Durham theses, Durham University (2004), 234. (3) The Commission is also responsible for the granting or rejecting of mandatory licenses, see Sections 27 and 117 CMA 1998.]Copyright Act of 1987, Act 322, December 1, 1987 [Section 36(1) Copyright Act 1987 provided a measure against primary infringers “Copyright is infringed by any person who does”, and secondary infringers “or causes any other person to do,” without the licence of the owner of the copyright, an act the doing of which is controlled by copyright under this Act. According to Daniel Seng, the Copyright Act 1987 is based on the UK Copyright Act 1911, hence UK cases on the element of “authorizing infringement” will be highly persuasive to Malaysian courts. Because of the emphasis on control that a secondary defendant has to exercise over a primary infringer in U.K. cases to be held liable for “causing” the primary infringer to commit an infringing act, Seng believed that if Malaysian courts would follow U.K. case law it was unlikely that they would find an Internet intermediary liable for the acts of its users or subscribers.” See Daniel Seng, Comparative Analysis of the National Approaches to the Liability of Internet Intermediaries, Internet Intermediaries and Creative Content, WIPO 2011, 32, para 84.] Copyright Amendments Act of 1990 (Act A775), and 2012 (Act 1420), before amended in 1996 (Act A952), 1997 (Act A994), 2000 (Act A1082), 2002 (Act A1139) and 2003 (Act 1195) [In 2012 Section 36(1) Copyright Act 1987 remains unaltered in the amendment (Act A1420) of 2012. However, Part VIB ‘Limitation of Liabilities of the Service Provider’ Sections 43B-I, was added which provides a safe harbor provision for internet intermediary liability for copyright infringement. The provisions are similar to the DMCA in the US in which ISPs and content aggregators are provided immunity from liability for copyright infringement if they protect copyright owners by removing or disabling access to infringing content. 43B. Interpretation A service provider is a person who provides services relating to, or provides connections for, the access, transmission or routing of data; or operates facilities for, online services or network access. 43C. Transmission, routing and provision of connections (1) A service provider shall not be held liable for copyright infringement for the transmission or routing of or providing connections to an infringing work; or any transient storage thereof; under the following conditions: the transmission, routing, provision of connections or storage of the electronic copy of the infringing work was not initiated by the service provider; is carried out through an automatic technical process, does not make any modification, and does not select the recipient, except as an automatic response. (2) The court may order the service provider to take reasonable steps to disable access to an online location that is physically situated outside Malaysia; or terminate a specified account. 43D. System caching The service provider shall not be held liable for system caching. 43E. Storage and information location tools (1) The service provider shall not be held liable for storing infringing work at the direction of a user of its primary network; or linking a user via a hyperlink, directory or search engine to an online location which makes an infringing work available. Under the condition that the service provider: (i) does not have actual knowledge that the electronic copy of the work or activity is infringing; is not aware of the facts or circumstances from which the infringing activity is apparent, which is the red flag requirement (contributory liability);(ii) that the service provider does not receive any financial benefit directly attributable to the infringement of the copyright and that the service provider does not have the right and ability to control the infringing activity (vicarious liability); (iii) that upon receipt of a notification of any infringement, the service provider responds within the time specified to remove or disable access to the material. If no notification is given the service provider shall not be held liable. (2) A test is given for vicarious liability, which includes taking into account any industry practice in relation to charging of services by a service provider. 43F. Exemption of service provider from liability for removal of copy or other activities from network (1) The service provider is not liable for the removal or disabling of content in good faith, but he shall notify “as far as may be practicable” the person who made available the electronic copy and also show him the notification received from the copyright owner. (2) If the person who made the copy available settled with the copyright owner or was adjudicated by any court or tribunal as the rightful copyright owner, the service provider shall “as far as practicable” restore the electronic copy to its primary network or restore access to the electronic (3) If a service provider had solely provided a facility which was used by a person to infringe a copyrighted work he did not authorize the copyright infringement of copyright. 43G. Information on service provider If the service provider would like to fall under the safe harbor provision he needs to make accessible his name and address and provide details and particulars of a designated agent to receive any complaint or notice regarding an allegation of infringement of copyright. 43H. Notification by copyright owner and its effect (1) The copyright holder can notify the service provider to remove or disable any access to copyright infringing content, provided that the copyright owner shall compensate the service provider or any other person against any damages, loss or liability arising from the compliance by the service provider of such notification. (2) The service provider shall remove or disable any access to work that is infringing copyright within 48 hours after he received the notification. (3) The person whose electronic copy was removed or to which access has been disabled may issue to the service provider a counter notification, after which the service provider needs to restore the electronic copy or access to it, provided that the person shall undertake to compensate the service provider or any other person against any damages, loss or liability arising from the compliance by the service provider of such counter notification. A counter notification to the service provider’s designated agent should contain a statement under penalty of perjury that the issuer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. (4) The service provider needs to promptly provide the issuer of the notification (copyright owner or alleged copyright owner) with a copy of the counter notification and inform such issuer that the removed material or access to the said material will be restored in ten business days, he received another notification of the copyright owner or alleged copyright owner that he filed an action seeking a court order to restrain the issuer of the counter notification from engaging in any infringing activity. 43I. Maker of false notice guilty of offence and liable in damages (1) If a person making a notification makes any statement which is false, which he knows to be false or does not believe to be true, he shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both; and he shall be liable to compensate any person who suffers any loss or damages as a result of making the notification. (2) It does not make any difference whether a person makes the statement inside or outside Malaysia.] [See also Malaysia International Intellectual Property Alliance (IIPA) 2013 Special 301 Report on Copyright Protection and Enforcement, February 8, 2013, 311 arguing that (1) Malaysia’s safe harbor provisions can be improved if: (i) it will be made clear that the duties to cooperate are triggered by a compliant notice or if the service provider knows or is aware of facts and circumstances from which the infringement is apparent; (ii) injunctive or other equitable relief can be used in case of uncooperative service providers; (iii)service providers have in place a fair and effective termination policy for repeat infringers and that those that fail to inform their customers and implement such a policy would not be eligible for the safe harbors. (2) The IIPA also criticized the “48-hour” rule for takedowns, which they deem “too slow for “pre-release” materials (movies, music, games, software, or published materials not yet available in Malaysia).” Since automated takedown technologies exist, they argue that takedown timeframes should be immediate or no longer than a couple of hours.]
Self-RegulationMalaysian Communications and Multimedia Content Code, September 1, 2004 [The Code was officially registered with the MMCC with effect from 1 September 1, 2004. (1) Paragraph 6.4 Content Code states that apart from the relevant legislation under the CMA 1998, “all applicable Malaysian Laws including but not limited to sedition, pornography, defamation, protection of intellectual property and other related legislation are to be complied with.” (2) Paragraph 2.0 provides a definition of the innocent carrier concept, which corresponds to Sections 43B, C, D and E, in the sense that when code subjects provide access to any content but have neither control over the composition of such content nor any knowledge of such content they are deemed innocent carriers, therefore not responsible for the content provided. Nonetheless, this does not exempt such access providers from adhering to the General measures as outlined in Part 6.0 of this Part where it expressly applies to them. (3) The obligations to remove or disable access to alleged infringing content after a notification are provided for four categories of code subjects, classified as Internet Access Service Provider (para 7.0), Content Aggregator (para 8.0), Link Provider (para 9.0) and Internet Content Hosting Provider (para 10). Communications and Multimedia Content Forum of Malaysia (CMCF), February 2001 [The CMCF was established in February 2001 under the CMA 1998 to govern electronic content and address content related issues. Designated by the Malaysian Communications and Multimedia Commission (MCMC) on 29 March 2001, the CMCF is made up of six member categories: advertisers, audiotext hosting service providers, broadcasters, civic groups, content creators/distributors and Internet Access Service Providers in Malaysia.]
BILLS AND PENDING PROPOSALS
Trans-Pacific Partnership [(1) Malaysia is one of the negotiating partners of the Trans-Pacific Partnership (TPP) Agreement. The intellectual property chapter of one of the drafts was published by WikiLeaks in November 2013.(2) It is clear that a notice and take down procedure is on the wish list of some countries. Article QQ.I.1 Malaysia, conform its current legislation, proposes that “Each Party shall limit the liability of, or the availability of remedies against, internet service providers.” (3) Malaysia opposes Canada’s proposal that “Eligibility for the limitations in the previous paragraph may not be conditioned on the internet service provider monitoring its service, or affirmatively seeking facts indicating infringing activity.”Internet Filtering Plan, 2009[Malaysia considered the establishment of an internet filter similar to the Green Dam project in China. Niluksi Koswanage, Malaysia Examines Internet Filter, Tougher Controls, Reuters, Aug. 6, 2009. Malaysia did not do it since it would hurt freedom and foreign direct investments. Razak Ahmad and Royce Cheah, Malaysia Backs off Internet Filter Plan, Reuters, Aug. 7, 2009. The Malaysian Communications and Multimedia Commission, which issued the tender, said it was a study on Internet usage so as to boost Malaysian content on the Internet and that reports of a filter were “sensationalized”. But a copy of the tender documents, seen by Reuters, appeared to contradict that statement. Niluksi Koswanage and Razak Ahmad, Malaysia to Cancel Internet Filter, Reuters, Aug. 12, 2009.]
DECISIONS
[There are currently no known cases that have been brought before the courts on the issue of intermediary liability. In Malaysia breach of copyright is normally handled under criminal jurisdiction of the Sessions Court (the highest in the lower court hierarchy). Normally cases are not reported. The enforcement is normally done by the enforcement division of the Ministry of Domestic Trade, not by the Malaysian Intellectual Property Office (MyIPO), which is practically a registration authority.]
Administrative Procedures[According to Esther Low, an associate with Wong & Partners, interviewed by Peter Leung, the Malaysian Communications and Multimedia Commission, at the request of the Ministry Domestic Trade, Co-operatives and Consumerism - ordered all ISPs to block 10 file-sharing websites, including Megavideo and Pirate Bay. Low: “The prescribed take-down procedures under the Copyright Amendment Act of 2012 will work with this existing framework in fighting piracy”. Peter Leung, How Malaysia escaped the US IP Watch List, MANAGING INTELL. PROP. May 7, 2012.]
OTHER RESOURCES
Peter Leung, How Malaysia escaped the US IP Watch List, MANAGING INTELL. PROP. May 7, 2012 (pointing out that by introducing the immunity from secondary liability for copyright infringement under the condition of protection, Malaysia averted that it was placed under the 2012 Section 301 Watch list (an annual list published, since 1989, of countries which the US claims insufficiently protected and enforced the intellectual property rights of US companies and individuals). 2012 Special 301 Report, Ambassador Ronald Kirk, Office of the United States Trade Representative (because Malaysia established “a mechanism for cooperation by Internet service providers (ISPs) against piracy over the Internet” and passed other copyright amendments, the United States has removed Malaysia from the Watch List.)Malaysia International Intellectual Property Alliance (IIPA) 2013 Special 301 Report on Copyright Protection and Enforcement, February 8, 2013 (arguing that (1) Malaysia’s safe harbor provisions can be improved if: (i) it will be made clear that the duties to cooperate are triggered by a compliant notice or if the service provider knows or is aware of facts and circumstances from which the infringement is apparent; (ii) injunctive or other equitable relief can be used in case of uncooperative service providers; (iii)service providers have in place a fair and effective termination policy for repeat infringers and that those that fail to inform their customers and implement such a policy would not be eligible for the safe harbors. (2) The IIPA also criticized the “48-hour” rule for takedowns, which they deem “too slow for “pre-release” materials (movies, music, games, software, or published materials not yet available in Malaysia).” Since automated takedown technologies exist, they argue that takedown timeframes should be immediate or no longer than a couple of hours.]K. Pragalath, Repeal or amend Section 114A, says Suhakam, Free Malaysia Today, August 26, 2012Sheelaa Ragavan and Jeremiah Gurusamy, IMLC 2012 - Cyberspace: Where Liabilities Are Not as Virtual as You Think, The Malaysian Bar, 26 September 2012Nor Saadah Abd Rahman, Copyright in the Internet with reference to Malaysia, Durham theses, Durham University (2004)Secret TPP treaty: Advanced Intellectual Property Chapter for All 12 Nations with Negotiating Positions, WikiLeaks release: November 13, 2013, 84-85Daniel Seng, Comparative Analysis of the National Approaches to the Liability of Internet Intermediaries, Internet Intermediaries and Creative Content, WIPO 2011
CONTRIBUTORS
Dr. Danny FriedmannResearch Associate, Centre for Rights and JusticeTeacher Intellectual Property and the Law, Faculty of Law, The Chinese University of Hong Kong, Shatin, Hong KongEmail: dannyfriedmann at cuhk.edu.hk[personal page]
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