Discuss the challenges of suing for copyright infringement.

INTRODUCTION

This essay will explain the challenges of suing for copyright infringement and
thereupon, discuss whether there are any justifications for such.

BODY

The first and most pertinent challenge would be in suing copyright infringement
for any artificial intelligence tools. This is because of the nature of an artificial
intelligence tool which is just not within the ambit of the definition provided in s7 of
Copyright Act 1987 (CA1987). It explicitly states that only literary works, musical
works, artistic works, films, sound recordings and broadcasts are eligible for copyright
protection. An artificial intelligence tool would therefore not be governed by CA1987
because of the way it operates that is, based on a coding which was programmed by a
software engineer. It could be in the form of a website, application or extension which
would be a great assistance to most fields. With the non-recognition of artificial
intelligence tools in CA1987, no infringement could subsequently have happened.
However, it would only be reasonable for artificial intelligence tools not to ever be given
copyright ownership because of how speedy it is at evolving and advancing whereby it
is not the case for any other works listed. Therefore, copyright law will never be able to
keep up with technology, or particularly artificial intelligence tools for it to even be
protected in the first place.

Next is the fact that there is no guarantee of absolute copyright ownership over a
work despite having followed the procedure provided. This is because despite having
satisfied the procedural requirements stipulated in sections 26, 26A and 26B of
CA1987, copyright ownership will be subjected to any claims of infringement. Goodyear
Tire & Rubber Co & Anor v Silverstone Tire & Rubber Co Sdn Bhd [1993] depicts
this. In this case, the court affirmed that copyright law protects an expression of ideas
and not the idea itself. This would mean that any similar ideas that are expressed
significantly distinctive from each other may be eligible for copyright ownership. It is
subjective as to what could be determined as distinctive in nature. Thus, copyright law is
practically challenging in a way that there is never a clear-cut answer as to whom
should copyright ownership be vested in whenever a claim of copyright infringement
comes to court. However, it cannot be denied that absolute copyright ownership to
never guaranteed only for practical reasons. It would be even more challenging on the
Intellectual Property Corporation of Malaysia (MyIPO) to compare and contrast every
artistic work, for instance in ensuring the eligibility of a work to be registered for
copyright.

Another challenge that arises for suing for copyright infringement is that limitation
periods apply to copyright infringement actions. According to section 6 of the
Limitation Act 1953 contractual, tortious, and some other actions cannot be taken
after six years have passed since the date the cause of action arose. Therefore, if a
copyright infringement lawsuit is filed more than six years after the date the claim first
became valid, the lawsuit may be dismissed as it will be considered as being
time-barred. Limitation can only be used if it is expressly pleaded by the defendant.

Additionally, since various countries may have various laws and different levels of
protection when it comes to copyright infringement and different laws that follow it, there
are lots of international issues that may arise when suing for copyright infringement. It
can be challenging to establish copyright ownership in a global context, and domestic
courts may view the enforcement of copyright claims made by foreign businesses as a
danger to national productivity. Some international organizations, like the European
Union, make an effort to maintain the greatest possible uniformity of all the laws and
enforcement practices of its member nations. National laws that control copyright
protection however, can differ greatly across nations.Therefore, creating challenges for
copyright owners to enforce their rights in different jurisdictions. However, due to
international treaties and agreements like the Berne Convention and the WIPO
Copyright Treaty, there is a common standardization of copyright rules across nations.
But, not all nations have ratified these agreements, and even those that have signed
them may have different interpretations of how they apply to their own domestic legal
systems.

Moving forward, another concern would be that the action that is brought about
falls within a legal exception, if someone does something that the copyright owner alone
has the sole authority to do without permission such as dealing with an infringing work
commercially or importing an infringing work, the copyright owner's economic rights may
be violated. This means that even if the owner of the copyright is successful in showing
that their copyright has been violated, they could have trouble getting compensation or
enforcing their rights if the offender lacks the means to pay. Since the legal procedure
for enforcing copyright might vary between nations, it may be necessary for the
copyright owner to retain legal counsel in many jurisdictions, which can be particularly
difficult if the infringement is situated in a foreign country. Additionally, it might be
expensive to file a lawsuit, which discourages some copyright owners from doing so.

Another challenge that arises is suing for copyright infringement in the digital era
where piracy is one of the most important problems in the digital age. It involves the
illicit duplication and distribution of copy-protected works, such as music, films,
software, and books. In many parts of the world, particularly in developing nations
where copyright rules are not effectively enforced, piracy is widespread. Piracy can take
various forms, including sharing copyrighted materials on peer-to-peer networks,
downloading or streaming from unauthorized websites, and distributing counterfeit
physical copies of copyrighted works. This could be a challenge for the copyright owner
as it could be time consuming as suing for copyright infringement as copyright rules
vary greatly from country to country, making it difficult to enforce copyright laws in the
digital age. This has resulted in several worldwide copyright infringement lawsuits,
especially in the music and film industries. In the digital age, copyright is a dynamic
topic that presents challenges and possibilities for artists, users, and regulators. While
digital technologies have made it easier to create, share, and distribute works, they
have also made it easier to violate the rights of those who own the copyright to such
works. One of the main difficulties is identifying the infringing party, especially in cases
where the infringement has occurred online or across borders. It can also be
challenging to gather evidence of infringement, such as proving ownership of the
copyrighted material and demonstrating that the alleged infringer had access to it. One
of the main difficulties is identifying the infringing party, especially in cases where the
infringement has occurred online or across borders. It can also be challenging to gather
evidence of infringement, such as proving ownership of the copyrighted material and
demonstrating that the alleged infringer had access to it.

Due to a number of factors, proving a causal connection in copyright infringement

cases can be challenging. The subjectivity of similarity evaluation is one factor that
contributes to the difficulty of proving the causal connection. It might be difficult to
objectively compare different characteristics like themes, characters, narratives, or
creative expression when determining how similar two works are. It can be difficult to
develop an objective estimate of the degree of similarities since different people may
interpret similarity differently. Moreover, there is no concrete proof of plagiarism. Direct
evidence of copying may be difficult to establish in many situations. The alleged
infringer may not have left behind a clear trail indicating that they directly copied the
original work. Proving copying often relies on circumstantial evidence and inference
based on the similarities between the works. The alleged infringer may claim
independent creation, asserting that their work was created without any knowledge or
influence from the original work. Next, challenges in access proof could be the
complexity of establishing a causal connection. Establishing access to the original work
is crucial in demonstrating a causal connection. However, proving that the alleged
infringer had access to the work can be challenging, particularly when the work was not
widely distributed or protected by strong access controls.

An important aspect of copyright is that the claimant can only bring a copyright
action if the work has been reproduced substantially. The substantial similarity test is
copyright law's dominant means by which courts determine whether a party has
infringed another party's copyright rights. If the defendant can satisfy the court that it
has expended sufficient effort to make the work original in character and that there is no
causal connection between the two, then the claimant may be unlikely to succeed in the
copyright action. The quality, not the quantity, of the similarities determines whether or
not the infringing work is substantially similar to the protected work (for the purposes of
reproduction). A portion of a copyrighted work that lacks originality is not a considerable
portion of the work, and its reproduction is not a substantial replica of the original. In a
journal article of ‘What Constitutes “Independent Creation” in Copyright Law by Steve
Vondran stated that even if a plaintiff could establish access and substantial similarity,
such proof “raises only a presumption of copying which may be rebutted by evidence of
independent creation. In the case of Calhoun v Lillenas Publishing, although the Court
found that the two compositions at issue were “practically identical”, it held that “in the
realm of copyright, identical expression does not necessarily constitute infringement”
and that defendant “can fully negate any claim of infringement if he can prove
independent creation.

CONCLUSION

In conclusion, it is submitted that bringing a claim for copyright infringement is

definitely a challenge to copyright owners. However, this is justified to ensure that
ultimately the balance between the public in order to create more works regulated under
s7 of CA1987 and the authors or performers to gain profits are preserved.