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The Trans-Pacific Partnership Agreement:


TPPA Copyright Provisions which may Impact on Education in Malaysia

Online Publication Date: 17 December 2015

Analysis of Copyright Provisions in the TPPA which may Impact on Education[1]

Executive Summary

The TPPA copyright provisions, in many instances, exceed the international obligations laid down under the TRIPS agreement. The term of copyright duration is now extended to life of the author and 70 years after the author’s death. The agreement also mandates the presumption of the subsistence of copyright and thereby places the burden upon the defendant to prove otherwise. With regard to determination of the amount of damages, the court may consider the suggested retail price which may exceed the actual loss of the copyright owner. The court may now order destruction of materials and implements used in the manufacture of infringing goods in civil litigations as well. Seizure of implements so far has been limited to criminal offences. Acts which are not done for commercial purposes may now be criminalized. In addition, aiding and abetting in the commission of copyright infringement by innocent parties in the course of learning and teaching process may be a criminal offence. With regard to technological protection measures, the provision of exceptions and limitations may now be more onerous. Moreover, the exceptions can only be used by the intended beneficiaries which limits the applicability of the exceptions. Internet service providers may now be subjected to greater responsibilities to remove or disable access to infringing materials, including the duty to supply information which identifies the alleged infringer. Border measures obligations are now extended to goods meant for export and goods in transit. Overall, these provisions do not augur well for the education landscape in Malaysia. In addition, as this analysis demonstrates, other important stakeholders in the copyright industries are also adversely impacted in one way or another which may have a rippling effect on education.

Context

Copyright plays a very important role in the furtherance of education. Educational materials in the form of books, CDs, materials on the internet, computer programs are typical examples of resources used in schools, educational institutions and universities. Malaysia relies heavily on imported resources and educational content. These are invariably and heavily protected by copyright. The purpose of this analysis is to highlight the provisions in the TPPA which may, directly or indirectly, adversely affect or be detrimental to the availability and easy access of educational materials in Malaysia.

Key Provisions affecting Malaysia

Extension of copyright duration

Article 18.63 provides for extension of duration of copyright to 70 years after the author’s death or, in the case of sound recordings or films to 70 years from the date of first publication. Article 18.63 could technically lead to an extension of 25 plus 70 years, that is, 95 years. This has the potential of locking up knowledge far beyond the current period.

Presumption of subsistence of copyright

Article 18.72(1)(b) requires Member States to provide for a presumption that copyright subsists in a work unless proved to the contrary. Currently, in an infringement action, the onus is upon the plaintiff to prove that copyright subsists in the work. The effect of the provision is to place the burden upon the defendant to prove that copyright does not subsist in the work. Subsistence of copyright requires proof of 4 elements, namely, originality of the work, the work falls within one of the recognized copyright categories, the satisfaction of qualifications for copyright, and reduction to material form. These are within the personal knowledge of the copyright owner and usually not within the knowledge of the defendant. For instance, section 10 of the Copyright Act 1987 provides that copyright can subsist by reference to the nationality of the author or the place of first publication or the place where the work is made. Usually, the plaintiff is in possession of such facts and thus is better placed than the defendant to adduce evidence of such facts. Accordingly, by shifting the burden upon the defendant to prove that copyright does not subsist in a work, the provision places an uncalled-for difficulty on the defendant.

Determination of the amount of damages

Article 18.74(4) allows the court, when determining the amount of damages, to consider any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price or the suggested retail price. As a remedy, damages are awarded to compensate the plaintiff for his losses and not to punish the defendant. To this extent, the court will endeavour to assess an amount that is just to compensate the plaintiff for his losses and this will depend on the actual price that the plaintiff charges for the goods or services. Thus, using the measure of ‘the suggested retail price’ is not appropriate as this may at times be above the actual price which the plaintiff charges for the goods or services.

Destruction of materials and implements

Article 18.74(12)(b) allows the court to order that materials and implements used in the manufacture of infringing goods be destroyed in civil proceedings. Thus far, the copyright cases demonstrate that destruction has been confined to infringing goods, not implements. Seizure of implements so far has been limited to criminal offences. To extend this possibility of seizure of implements to civil cases is bordering on the extreme. Very often, the ‘implements’ can be used for infringing or non-infringing purposes, for example, computers, photocopy machines and scanners. It would be a waste of useful resources to order the destruction of such implements.

Criminalization of acts which are not for commercial purposes

Article 18.77(1)(b) requires Member States to provide for copyright offences in respect of acts which are not carried out for commercial advantage or financial gain but have a substantial prejudicial impact on the interests of the copyright owner. There is no equivalent of this in the Copyright Act 1987. The presence of such a provision puts researchers, lecturers, teachers, students and libraries in a potential position of being criminally liable and be subject to substantial penalties and imprisonment. This is because there is always the possibility that their act may substantially prejudice the interests of the copyright owner. The offences in relation to copyright infringement under the Copyright Act 1987 presently are only concerned with infringing activities committed for commercial activities.

Criminal liability for aiding and abetting

Article 18.77(5) requires Member States to provide for criminal liability for aiding and abetting copyright infringement. Libraries that provide photocopying and scanning facilities may find themselves liable for offences on the ground that they aid or abet infringing activities. In addition, school teachers in charge of students’ projects (and possibly, parents who assist their children in the preparation of their work or projects) are potentially in danger of committing an offence for aiding and abetting students’ work that may infringe copyright.

Technological protection measures

Article 18.68 para 4(a) requires the provision of limitations and exceptions to the prohibited acts in relation to TPM to be determined through a process which requires evidence to be presented to support the legitimacy and need for the exceptions. This could make it more difficult to rely on the existing exceptions and to introduce new exceptions.

Para 4(b) requires the exceptions to the prohibited circumvention of TPM to be allowed solely to enable the lawful use of an exception by its intended beneficiaries. Section 36A(2) of our Act does not so limit as it only looks at the purpose of the circumvention. Para 4(b) of the TPPA will thus have the effect of narrowing further the applicability of the exceptions to circumvention of TPM. For instance, a circumvention of TPM done for the sole purpose of achieving interoperability of computer programs may now be confined to acts done by the developers of computer programs. It follows that circumvention done for the same purpose by anyone else other than computer program developers may not fall within the exception. In reality, circumvention done for interoperability purposes is carried out by various people (for example, users) other than computer program developers.

Internet Service Providers

Article 18.82 para 3 which deals with hosting service providers or linking/search engines mandates ISPs to expeditiously remove or disable access to alleged infringing material upon acquiring actual or constructive knowledge of the infringement. Under the current law, knowledge of the infringement only arises upon notification from copyright owners. The current s 43E of our Act does not require the ISPs to remove or disable access to the infringing material even if they have knowledge of the infringement. The ISPs are only obliged to do so upon receipt of a notification from the copyright owners. With this new obligation, ISPs are obliged to take action in certain situations even without notification from the copyright owners.

Article 18.82 para 7 mandates each party to provide procedures, judicial or administrative, to allow copyright owners who have made ‘legally sufficient claim’ of copyright infringement to get from ISP information in the ISP’s possession which identifies the alleged infringer. This will in effect place the duty on ISPs to disclose and supply information of their users to copyright owners. The effect of this is that ISPs may be constantly bombarded with requests for information. In contrast, under the current practice ISPs are only obliged to disclose such information upon a court order.

Border Measures

Article 18.76 para 5 mandates us to have a law that allows ex officio initiation of border measures in respect of importation, export and goods in transit. Currently, the TRIPS agreement only requires border measures for importation of infringing goods. The imposition of border measures on goods in transit broadens the scope that currently exists under our law. While commencing ex officio actions may be obligatory on the Customs, the non-exercise of this provision over a period of time may create dissatisfaction among copyright owners and possibly lead to an adverse section 301 report. Accordingly, this provision may be burdensome on our Customs.

Conclusion

In light of the negative implications of the agreed provisions of the TPPA and the already stringent and world class standards of our Copyright Act 1987, we do not see the need to have all these additional provisions imposed. As mentioned earlier, these provisions will not advance the needs of the education sector in this country. At the same time, it imposes additional obligations and duties on various stakeholders in the copyright industries.



[1]This preliminary analysis was carried out by Professor Dr. Ida Madieha Abd. Ghani Azmi (IIUM), Professor Dr. Lim Heng Gee (UiTM), Associate Prof. Dr. Tay Pek San (UM) and Ms. Sik Cheng Peng (UM).




    arrowCopyright_Comparison table of Malaysian-TRIPS-TPPA copyright laws.doc (size = 47 KB)
    arrowCopyright_Comparison table of Malaysian-TRIPS-TPPA copyright laws.pdf (size = 426 KB)
 

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