4 Important Amendments to the Copyright Act 1987

The Copyright (Amendment) Bill 2021 received royal assent on 22 December 2021, with its provisions coming into effect on 18 March 2022. This landmark amendment to the Copyright Act 1987 introduces four significant changes that reflect Malaysia's commitment to modernising its copyright framework, fulfilling international treaty obligations, and strengthening enforcement mechanisms against the growing threat of online piracy.

For copyright owners, content creators, collective management bodies, and businesses that rely on intellectual property, these amendments carry substantial practical implications. This article examines each of the four key amendments in detail and considers their impact on the Malaysian copyright landscape.

Amendment 1: Ratification of the Marrakesh Treaty

Perhaps the most socially significant of the four amendments is the incorporation of provisions giving effect to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. The Marrakesh Treaty, adopted by the World Intellectual Property Organization (WIPO) in 2013, establishes an international framework for creating and distributing accessible format copies of published works without infringing copyright.

Under the amended Copyright Act, authorised entities in Malaysia may now produce accessible format copies of published works, such as Braille editions, large print versions, audio recordings, and digital formats compatible with assistive technology, without obtaining the prior consent of the copyright owner. This exception applies specifically to works that are made available to beneficiary persons, defined as individuals who are blind, have a visual impairment or perceptual or reading disability, or are otherwise unable to hold or manipulate a book or focus or move their eyes to the extent normally required for reading.

The amendment also facilitates the cross-border exchange of accessible format copies between Malaysia and other Marrakesh Treaty member states. This is particularly important because the cost of producing accessible format copies is high, and many developing countries lack the resources to create comprehensive libraries of accessible works independently. By enabling international sharing, the amendment ensures that visually impaired and print-disabled Malaysians have access to a much wider range of published materials.

This ratification positions Malaysia alongside over 90 countries that have acceded to the Marrakesh Treaty and demonstrates a meaningful commitment to inclusivity within the intellectual property system. Copyright owners should note that the exception is narrowly defined and does not authorise the creation of accessible format copies for commercial purposes or for persons who do not fall within the beneficiary definition.

Amendment 2: Changes to Voluntary Notification

The second amendment addresses the voluntary notification system under the Copyright Act. In Malaysia, copyright protection arises automatically upon the creation of an original work in material form, without any requirement for registration. However, the Act provides a voluntary notification mechanism that allows interested parties to record their copyright claims with the Intellectual Property Corporation of Malaysia (MyIPO), creating a public record that can serve as evidence in infringement proceedings.

Under the previous regime, both copyright owners and authors could independently apply for voluntary notification of their works. The 2022 amendment, implemented through the Copyright (Voluntary Notification) (Amendment) Regulations 2022, restricts the right to apply for voluntary notification to copyright owners and assignees only. Authors who are not the copyright owners of a work can no longer independently file for voluntary notification.

This change has significant implications for creative professionals, particularly those who create works under employment contracts or commission agreements where copyright vests in the employer or commissioner by default under the Act. In such cases, the author of a work and the copyright owner may be different persons, and the amendment ensures that only the party with actual ownership rights can record a notification. While this restriction provides greater certainty in the notification process, it also underscores the importance of clear contractual arrangements between authors and commissioning parties regarding copyright ownership and the right to seek voluntary notification.

Amendment 3: Licensing Bodies Renamed as Collective Management Organizations

The third amendment involves the renaming and restructuring of licensing bodies under the Copyright Act. Previously known as licensing bodies, these entities are now formally designated as Collective Management Organizations (CMOs), aligning Malaysian terminology with international standards and the nomenclature used by WIPO and other jurisdictions worldwide.

Beyond the name change, the amendment introduces several substantive reforms to the governance and operation of CMOs. First, eligibility to apply for declaration as a CMO is now restricted to companies limited by guarantee. This requirement ensures that CMOs operate as not-for-profit entities with a governance structure that prioritises the interests of their members, namely the copyright owners whose rights they collectively administer. Companies limited by shares or other corporate forms are no longer eligible.

Second, CMOs are now required to submit licensing scheme documents as part of their application for declaration. These documents must set out the terms and conditions under which the CMO proposes to license the works in its repertoire, providing transparency for both rights holders and licensees. This requirement addresses longstanding concerns about the opacity of licensing terms and the bargaining imbalance between large CMOs and individual licensees.

Third, the amendment restricts the declaration period for CMOs to a maximum of two years, after which the declaration must be renewed. This periodic review mechanism ensures that CMOs remain accountable and continue to meet the statutory requirements for their operation. It also provides the Intellectual Property Corporation of Malaysia with regular opportunities to assess the performance of CMOs and address any issues that may arise.

These reforms collectively aim to professionalise the collective management of copyright in Malaysia, improve governance standards, and ensure that the royalties collected by CMOs are distributed fairly and efficiently to copyright owners. Rights holders who are members of CMOs should familiarise themselves with the new requirements and ensure that their CMO complies with the amended provisions.

Amendment 4: Enhanced Online Piracy Offenses

The fourth and arguably most enforcement-oriented amendment introduces new criminal provisions targeting online piracy. As digital distribution of copyrighted works has expanded, so too have the methods employed by pirates to facilitate unauthorised access to protected content. The 2022 amendment addresses this challenge by creating several new offenses specifically tailored to the online environment.

The new provisions criminalise the act of providing or sharing access to pirated works through digital means. This extends criminal liability beyond the traditional act of copying to encompass the facilitation of access, reflecting the reality that many modern piracy operations do not involve direct copying but rather the provision of links, access codes, or streaming services that enable users to access copyrighted content without authorisation.

Additionally, the amendment targets those who facilitate copyright violations through streaming technology. This provision is aimed squarely at operators of illicit streaming services and devices that have proliferated in Malaysia and the broader Southeast Asian region. Such services typically do not host infringing content directly but provide the technological means for users to stream copyrighted films, television programmes, and sports broadcasts without paying the rights holders.

The amendment also introduces an offense for intentionally destroying evidence relevant to copyright infringement investigations. This provision addresses the practice of suspects deleting digital records, server logs, and other evidence when they become aware of impending enforcement action. By criminalising evidence destruction, the amendment strengthens the ability of enforcement authorities to build and prosecute cases against organised piracy operations.

These enhanced criminal provisions represent a significant escalation in Malaysia's enforcement toolkit against online piracy. They reflect a recognition that civil remedies alone are insufficient to deter the scale of piracy operations that now exist, and that criminal sanctions are necessary to address the most egregious forms of online copyright infringement. Content owners and distributors should take note of these new provisions as they provide additional avenues for enforcement and may serve as a deterrent against piracy activities targeting their works in Malaysia.

Looking Ahead

Taken together, these four amendments represent meaningful progress in the evolution of Malaysia's copyright framework. The Marrakesh Treaty ratification advances accessibility and social inclusion. The voluntary notification and CMO reforms improve governance and transparency. The enhanced piracy provisions strengthen enforcement against a growing digital threat. Copyright owners, content creators, and businesses operating in the Malaysian market should review their practices and strategies in light of these changes to ensure continued compliance and effective protection of their intellectual property rights.