CHAPTER 3: EXCLUSIVE RIGHTS OF COPYRIGHT OWNER

- S13: literary, musical, artistic works, films, sound recordings, derivative works
- S14: architecture
- S15: broadcasts
- S9: published editions of works

(I) REPRODUCTION RIGHT

 S13(1)(a): reproduction in any material form
 S3 ‘reproduction’ & ‘copy’
 S3 ‘material form’: any form (whether visible or not) of storage from which the work or
derivative work, or a substantial part of the work or derivative work can be reproduced
Eg. Act of downloading file containing music/movie is subject to copyright owner’s
exclusive right to control reproduction of the relevant copyright work
 ‘in any form’: include identical and non-identical form of copying
Rock Records (M) Sdn Bhd v Audio One Entertainment Sdn Bhd: copyright owner
enjoyed the right of exclusive control including right to control reproduction in various
material forms. Licence to make copies in a particular form may not authorise
reproduction of work in another form. Eg. Licence to reproduce recording in CD format
does not permit one to make copies in Blu-ray Disc format

 Digital world
- Random Access Memory (RAM) – temporary copies falls within ambit of
reproduction right?
- No Msia case
- Australian CA defined ‘material form’ as including ‘any form of storage from
which the work…can be reproduced. Resemble Msia CA.
Stevens v Kabushiki Kaisha Sony Computer Entertainment & Ors: Modchips
was used to circumvent access control device in Sony Playstation consoles and
games CD. Sony applied access control device to protect its copyright in
computer program and games. Whether Sony’s device restricted reproduction
of its computer programs in a ‘material form’. Held: substantial part of the
computer program was kept in the RAM of PlayStation console while the game
was being played, but is was temporary (erased when console switch off). The
portion of game stored in the RAM was not capable of being extracted and
reproduced without additional hardware. It was not a reproduction in a
material form.

Hence, if adopt in Msia, temporary copies such as RAM copies may not fall
within the scope of reproduction since copyright works stored in the RAM of a
device could not be reproduced from the RAM directly without any extra
hardware.

- If copy is reproduction, who is the maker?

- US – Religious Technology Center v Netcom On-Line Communication Services
Inc: regarding liability issues relating to internet service providers (ISP). Held
that temporary copies made in the process of a user browsing the Web were
not made by ISP but the individual users who browse and visit websites.
 - Aus - National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd: cloud
based TV recording service “TV Now” made available by Optus. TV Now enables
users to record free-to-air TV programs on Optus’ servers and watch them on
their internet-connected devices. The copyright owners and exclusive licensee
of the broadcast of certain football matches claimed copyright infringement
against Optus. FC held that despite entirely automated process of recording,
Optus’ role was so pervasive that it was the maker of a copy. Optus conduct in
creating and keeping in constant readiness the TV Now system had a nexus
sufficiently close and causal to the illegal copying. Optus captured, copied,
stored and made available a program for later viewing by others, in addition to
making available its system to others who used it to copy a broadcast.

- If users are maker of the copies, they may seek shelter under Exception S13(2)
(ggg). Exception cannot be used if the entity offering the service is the maker of the
copy.
- S13(2)(ggg): allows one to record broadcast for his or her own private and
domestic use.
- Note that S13(2)(ggg) is only for private and domestic use, NOT APPLICABLE for
company providing service of network personal digital video recording.

(II) COMMUNICATION TO THE PUBLIC RIGHT

 S13(1)(aa): reproduction in any material form
 S3 ‘communication to the public’: transmission of work through wire or wireless means to
the public
- ‘including’ suggest that any other act which amounts to transmission of work to
public is regarded as an act restricted by copyright. Eg. Video-on-demand services,
live streaming, music streaming i.e. Spotify, uploading work i.e. film, youtube website
 CF S13(1)(b): performance, showing or playing to the public
- S13(1)(aa): right arises only when work is transmitted, public is not present at the
place where the communication originates.
Eg. Transmitting copyright-protected music embodied in a sound recording to the
public via radio broadcasting station.
- S13(1)(b): public is not present at the place where the communication originates
Eg. Shopping mall plays music within its premises.

 Peer-to-peer file sharing users

Dramatico Entertainment Ltd & Ors: conduct of the users of a peer-to-peer file sharing
website, known as ‘The Pirate Bay’ in uploading copies of sound recordings to the
website infringed the communication to the public right of the sound recordings right
holders.

 ‘public’: whether communication is made to public when there is only person accessing
copyright on internet at one time?
- ITV Broadcasting Ltd v TVCatchup Ltd, CJEU held the transmission of a terrestrial
television broadcast over the internet to individual users’ devices for their personal
viewing amounted to ‘communication to the public’. Even though transmission may
be delivered to individual users, it is nevertheless a communication to the public
since a large number of persons can access and view the work at the same time
 - CF. RecordTV v MediaCorp TV: RecordTV enabled its users to select the recording of
any free-to-air MediaCorp TV program in Singapore. Broadcasts were recorded on
RecordTV internet-based digital video recorder. Only registered users can use
RecordTV. Held: no communication to the ‘public’ because MediaCorp licensed the
registered users of RecordTV to view its show thus users are not members of the
public. Communication made by RecordTV to users (who requested recording of a
particular show) were made privately and individually hence aggregate of the private
and individual communications made to each registered users would not convert the
nature of such communication into ‘public communication’

 Hyperlink
- No infringement of hyperlink if the work is made available on website either by
copyright owner himself or with his consent and is freely accessible by anyone
- However, what if hyperlink links to copyright work which is restricted i.e. website
only accessible by paid subscribers?
 Svensson v Retriever Sverige AB, CJEU: provision of clickable internet links to
websites is an act of making available to relevant copyright works to the public,
and thus an act of communication since it targets all potential users of the
websites. However, the communication involves the same works as those
covered by the initial communication, that is, when the works were made
available on the original websites. Therefore, in arguing that the subsequent
communication falls within the copyright owners’ communication to the public
right, it has to be established that the subsequent communication is directed to
a “new public”. A new public refers to a public that was not taken into
consideration by the copyright owners when they gave authorisation to the
initial communication to the public. Since all users could access the works on
the website where they were initially communicated, the users were a part of
the public in the copyright owners’ consideration when they gave permission to
the initial communication. Thus, the users were not “a new public”. It follows,
therefore, that no authorisation from the copyright owners is required in setting
a link to the original websites, unless such a link enables users to bypass any
access restriction on the copyright works on the websites. If a link allows users
to access copyright works which they would otherwise be unable to access, the
users must be considered as “a new public”.
 CF. Twentieth Century Fox Film Corp v Newzbin Ltd: the defendant provided a
films cataloguing and indexing system, “Newzbin”, allowing its paying
subscribers to locate and download films of interest. It was held that the
defendant did not simply provide links to films which were made available by
third parties, but had “intervened in a highly material way” to make the
copyrighted films available to a new audience. Accordingly, the defendant was
held liable for communicating the films to the public.

(III) DISTRIBUTION RIGHT

 S13(1)(e) &13(1)(A): First Sale/Exhaustion Doctrine
i. Distribution rights deals with distribution of copies of work (whether whole work
or substantial part) to the public
ii. Distribution is by sale or transfer of ownership
 iii. Distribution rights confers on the copyright owner the right to control the first
distribution of copies of the work to the public in Malaysia
iv. Distribution rig4hts does not apply to subsequent distribution of copies after the
first distribution and subsequent importation of those copies into Malaysia
 The copyright owner cannot prevent the person who has lawfully acquired the goods
from further dealing with those goods, such as reselling or exporting to another country
for resale
 Class One Video Distributors Sdn Bhd & Anor v Chanan Singh a/l Sher Singh & Anor:
distribution right applied to all copies of the work, whether lawfully or unlawfully made.
 Kirtsaeng v John Wiley & Sons, Inc 133 S.Ct 1351: First sale doctrine applies to copies of a
copyrighted work lawfully made abroad
 CJEU in UsedSoft GmbH v Oracle International Corp,: the term “sale” should not be given
a narrow interpretation, otherwise the exhaustion rule may easily be bypassed by
labelling the agreement a “licence” instead of a “sale”.

 Whether resale of digital goods such as ebook, digital music is lawful?

- US case of Capitol Records LLC v ReDigi Inc: the defendant had created an internet
platform, ReDigi, allowing the resale of digital music legally purchased. The users of
ReDigi transferred their lawfully purchased digital music files to the defendant’s
remote server known as “Cloud Locker”, using the defendant’s method of “data
migration”. The defendant’s software broke a digital file into small blocks of data
known as “packets”. A transitory copy of the packets was made by the defendant’s
system in the initial buyer’s computer buffer and when this took place, ReDigi’s
software sent a command to delete the digital file from the permanent storage of
the initial buyer’s device. The packets would then be re-assembled into a complete
and playable file on ReDigi’s server.

(IV) COMMERCIAL RENTAL TO PUBLIC

 S13(1)(f): commercial rental to the public