DBP comes to you for advice

Open Univ is asking permission to reproduce in their student manual 8 pages from DBP called
Manuskrip Melayu. This manual will be sold to the students and will also be used as teaching
materials. This book was published by DBP in 1970.

Could DBP refuse permission? Would Open Univ have any right to reproduce without permission?

The issue is whether the DBP has copyright protection over the manual 8 pages?

The primary copyright law in Malaysia is the Copyright Act 1987. Based on Sect 6 of the
Copyright Act, copyright is a creature of statute and no copyright shall subsist except by virtue if this
Act. Copyright is said to exist and owned as soon as the original work is published and it belongs to
the creator of the work automatically. The purpose of copyright is to protect the creative works
made by authors.

Copyright means the creator or author of the work will be given exclusive right by law for a
determinable time period to make copies of their work. However copyright only protect the work
not the ideas, hence it is important to distinguish between an idea and work.

In order to claim for copyright protection, there are few elements that must be fulfilled in
order to determine whether a person has copyright over the work or not. Based on section 10(1) of
the Act, the author must be a qualified person at the time when the work was made. Qualified
person based on section 3 is stated as either Malaysian or permanent resident in Malaysia or if it is a
body corporate, it must be established in Malaysia and vested with legal personality under
Malaysian laws.

Secondly, the work must fall under the area that is covered in law. There are 7 types of
works that can be protected under Copyright Act which are; literary works, musical works, artistic
works, films, sound recordings and broadcast. This is pursuant to section 7(1) of the Act and also
Article 1 of Berne Convention. Malaysia is a Berne signatory. Literary work is defined in the Act as
any work which is written, spoke or sung and therefore include manuals.

Based on Sect 26(1), the ownership of the copyright lies in the author. Based on Sect 9 the
copyright is a work initially vests in the author however the author’s right is transferable by
assignment testamentary disposition or by law.

Based on Sect 17 the duration of copyright for literary work is it subsists during the life of the
author and shall continue to subsist until the expiry of a period of fifty years after the author’s death.

Third, the creator of literary work must prove its originality to be eligible to copyright. Base
on Sect 7(3) (a) and (b) the creator must prove they have put sufficient effort to make the work
original and it has been reduced into writing.

Applying in this case, the manual based on section 3 of the Act which defines literary as
written work, hence the manual falls under literary as it is in writing. This is fulfilling the condition of
type of work. DBP is regarded as author here since the manual was published under the name of
DBP by using law or assignment testamentary. DBP is a artificial person or entity. Since this is a
literary work, pursuant to Section 17, the duration of copyright protection enjoyed by DBP is until 50
years after the DPB has over or closed.
 Being a copyright owner, the person shall enjoy exclusive right of the copyright owner. This
is provided under section 13 which the reproduction of the work in any material form either online
or physical, that should be made under the permission of the owner. Breach of this right will
constitute infringement. There are types of infringement and one of it is substantial infringement
which involving infringement of work of its substantial part. However whether that part is
substantial or not is not looked at its quantity. Quality plays bigger role as to determine whether it
constitute substantial or not. In the case of Longman Malaysia v Pustaka Delta Pelajaran, where the
court held that whether a part is substantial or not must be decided by its quality rather than
quantity. In this case the reproduction or copy was only the graph in the work. However the court
held even though the quantity is small the parts copied were substantially significant hence the
defendant had infringed the copyright of the work.

Applying to this case, the act of Open University to reproduce the material of Manuskrip
Melayu its 8 pages falls under the exclusive rights of the owner pursuant to Section 13 of the Act. In
order to be able reproduce it legally, Open University must ask permission from DBP as DBP is the
copyright owner. If Open Univ reproduce it without the permission of DBP hence they can be made
liable for infringement. They can be held liable for infringement of substantial part of the work. This
is because eventhough it only involves 8 pages out of the whole Hikayat, it is still considered as
substantial. This is because every pages of a hikayat has wisdom which is so worthy and priceless.
Without one page of it, the plot will be interrupted. Hence pursuant to case Longman Malaysia v
Pustaka Delta the substantiality must refer to its quality rather than quantity.

In conclusion, DBP as the owner has exclusive right and right as owner over the Hikayat.
Open University cannot reproduce the material in Hikayat without DBP permission as it falls under
offence of infringement.