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Acts in PublishingPublishers

A copyright is a legal device that gives the creator of aliterary, artistic, musical, or other creative work the soleright to publish and sell that work. Copyright ownershave the right to control the reproduction of their work,including the right to receive payment for thatreproduction. An author may grant or sell those rights toothers, including publishers or recording companies.

Violation of a copyright is called infringement.

Abu Bakar SuleimanSenior LecturerFaculty of Information Management

University Technology MARA

Intellectual Property Act

Copyright Act

Fair Use

Plagiarism

Libraries Act

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Intellectual Property Act

- IPR means the property in intellectual creations,particularly technology inventions, literary andartistic work.

- World Intellectual Property Organization (WIPO)

Intellectual property (IP) refers to creations ofthe mind: inventions, literary and artistic works,

and symbols, names, images, and designs usedin commerce.

Intellectual property rights are the rights givento persons over the creations of their minds.They usually give the creator an exclusive rightover the use of his/her creation for a certain

period of time.

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Objective of IPR

- To monitor intellectual property development atnational and international level

- To encourage inventiveness, innovations andcreativity through appropriate legislations

- To safeguard creators interests.

IP is divided into two categories: Industrial property, which includesinventions (patents), trademarks, industrial designs, and geographic

indications of source; and Copyright, which includes literary andartistic works such as novels, poems and plays, films, musical works,artistic works such as drawings, paintings, photographs andsculptures, and architectural designs. Rights related to copyrightinclude those of performing artists in their performances, producersof phonograms in their recordings, and those of broadcasters in theirradio and television programs.

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4

Intellectual

Property

Copyright

Patents

Industrial Designs

Trade Marks

Confidential Info

Name, logo, brand, get-up

business, products & services

Form

& expression

Inventive ideasto solve

technological problems

Shape & visual

appearances

Info or trade secrets

which are confidential

Trade Marks Act 1976-Registration MyIPO

TOP - 10 yrs forever if renewed

-Common law passing off-No registration

Use, use & use

TOP - forever

Copyright Act 1987No registration

TOP-50 yrs + author life

50 yrs from publication date

Patents Act 1983Registration MyIPO

TOP 20 yrs from filing

Industrial Designs Act 1996Registration MyIPO

TOP- 15 yrs from filing

Common law

breach of

confidential informationNo registration

TOP- forever if kept secret

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What is Copyright Act?

A form of protection provided by MalaysianCopyright Act 1987 (Act 332) to authors/ownersof certain categories of originalworks that arefixed in a tangible form of expression

Protection is available to both published andunpublished works

One work may contain more than 1 copyright(e.g. songslyrics/music & sound recording)

The rights of authors of literary and artistic works (such as booksand other writings, musical compositions, paintings, sculpture,computer programs and films) are protected by copyright, for a

minimum period of 50 years after the death of the author.

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Definition of Copyright

is the exclusive right given to the owner of acopyright for a specific period of time.

The Copyright Act 1987 governs copyright in

Malaysia (AMENDMENT) ACT 1997

Is the exclusive right given to the owner of acopyright for a specific period of time.

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Copyright Law in Malaysia

Governed by the Copyright Act 1987.

In Malaysia, no system of registration forcopyright.

Copyright Law 1987 provides the enforcement ofthe law by the Ministry of Trade and ConsumerAffairs.

Also provides the necessary clout to theenforcement agencies.

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Why Protect Copyright?

Copyright and its related rights are essential tohuman creativity, by giving creators incentivesin the form of recognition and fair economicrewards.

Under this system of rights, creators are assuredthat their works can be disseminated without fearof unauthorized copying or piracy.

This in turn helps increase access to andenhances the enjoyment of culture,knowledge, and entertainment all over the

world.

Copyright and its related rights are essential

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Requirements for Copyright Protection

Requirements

Belongs to one of the categories of protectedworks

Must be original Complies with requirement as to form

Complies with qualifications for copyright

A work is protected irrespective of quality and

purpose

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Categories of Protected Works

Literary

Artistic

Musical

Films Sound recordings

Broadcasts

Derivative works

Published editions

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Literary Works

Books

Novels

Stories

Other writings

Pamphlets, manuscripts

Newsletters

Essays, Articles, Letters, Reports

Lectures, speeches, sermons

Tables or compilations, whether or not expressedin words, figures or symbols and whether or notin a visible form

Software

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Artistic Works

Painting Drawing Diagram Map

Chart or plan Engraving Etching Lithograph

Woodcut Photos Sculpture Collage Work of architecture

Work of artistic craftsmanship

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Derivative Works

Works derived from any pre-existing copyrightworks

Translations, adaptations, arrangements and othertransformation of works;

Play adapted from novel

Collection of works eligible for copyright which, byreason of the selection and arrangement of theircontents, constitute intellectual creation

Encyclopedias, dictionaries, tables and compilations

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Published Editions

Literary, artistic or musical work First publication took place in Malaysia; Publisher a qualified person at first publication date Protects typographical layout and arrangements

Appearance of the page, just a position of text, typeset,

photos, headlines etc Restricted actreproduction Exceptions:

Purposes of research, private study, criticism, review orreporting of current events if compatible with fair dealingand if made public, to be accompanied byacknowledgement

Government, National Archives or State Libraries,prescribed public libraries, educational institutions if inthe public interest and compatible with fair dealings

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Fixation in Material Form

Work must be written down, recorded or reducedto material form

Material form

Any form of storage, visible or not, from which the workmay be copied

Oral piece of work not protected

Work must be written down, recorded orreduced to material form.

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Scope of Protection

Copyright protects only the form in whichsomething is laid out.

It is the works that are protected and not ideas.

Creative and inspirational elements behind the

expression are not protected How to protect such concept or idea?

By way of contractual arrangement or confidentialinformation

Copyright protects only the form in whichsomething is laid out.

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Non-Protectable Works

Official texts of Government or statutory bodies ofa legislative or regulatory nature or judicialdecisions

Taglines, slogans, short phrases & titles,

names, familiar symbols

Ideas, procedures, methods of operation ormathematical concept as such

Public domain works

Copyright expired

Failed to satisfy statutoryrequirements/formalities

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No Formality

Copyright is conferred once all aboverequirements are fulfilled

Arises automatically upon creation No requirement for registration or deposit

Advisable and prudent to use symbol followedby name of copyright owner and year of firstpublication ABC Sdn Bhd 2001

Copyright notice is not a legal requirement but

gives notice of copyright. Failure to use will not prevent owner fromclaiming copyright

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Authorship

Author or creator is the person who brings thework into existence in its material form

Someone who merely suggests a general conceptor an idea is not an author

Authorship is important:

For purpose of subsistence of copyright

Identity of author is relevant in computing duration -literary, musical and artistic works

Author and not owner is entitled to moral rights

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Who is An Author?

Literary work - writer or maker

Artistic work (except photographs) - artist

Photograph - photographer and not dark room

technician Film or sound recording - person making the filmor sound recording

Computer generated work - person creating the

work using computer & its program

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Joint Authors

When two or more authors collaborate on a workand if the contribution of each author is notseparable from the contribution of the other

Each author must contribute significant amount ofskill and labour

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Ownership of Copyright

General ruleauthor is the first owner

Exceptions: Employees

Commissioned works

Government

Owners are persons entitled to control the doingof various restricted acts

Copyright is deemed transferredas soon as it

comes into existence without any formality(subject to agreement to contrary) in: Commissioned works

Works made in the course of employment

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Works Created By Employee

Ownership of the intellectual property createdduring the course of the employment is deemedtransferred to the employer, unless otherwiseagreed.

Important consideration:

Whether a work was made in the course of authorsemployment

Scope of employeesduties

Whether work is part of the regular or special duties

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Commissioned Works

Commission: to empower, to entrust with anoffice or duty

Necessary to show the relevant work wasproduced in consequence of an agreement madefor valuable consideration

The arrangement must pre-date the making of thework commissioned

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Government

Copyright shall subsist in work made by or underthe direction of the Government and suchGovernment organisation or international bodiesas Minister may by order prescribe

Copyright shall vest initially in the Government,Government organisation or international body,not the author

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Moral Rights of Author

What are moral rights? Right to be identified as the author (right of paternity)

Right to ensure that work is not distorted, mutilated ormodified (right to integrity)

Significantly alter works; Might reasonably be regarded as adversely affecting

authorshonour or reputation

These are personal rights which cannot be taken away

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Nature of Copyright

Exclusive right to sayYESor NOto

various uses

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Exclusive Rights of Copyright Owner

To reproduce in material form

To perform, show or play to public

To communicate to public

To distribute by way of sale

To control the commercial rental

To prepare derivative works based on the work Translation, adaptation

To reproduce typographical arrangement in

published editions

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What is Reproduction Right

Defined as the making of one or more copies ofthe work in any form or version Upload, download, copy

Temporary electronic copy made for purposes ofenabling user access, browse and preview

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What is Communication To The Public

Defined as the transmission of a work throughwire or wireless means to the public, including themaking available of a work to the public in such away that members of the public may access the

work from a place and at a time individuallychosen by them

Making the work available online and accessing byInternet

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Dealing with a Work

Copyright, being a proprietary work, can becommercially exploited by the owner by Assignment

License

Transmission by operation of law or testamentarydisposition

Copyright in future work can also be assigned orlicensed E.g. an author may assign or license the publishing right

in the book, which has not been written or completed

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What is Infringement?

Infringement means:

Without authorisation, does or causes thedoing of:

Reproduction Communication to the public

Performance, showing or playing to the public

Distribution by way of sale to the public

Commercial rental

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Definition of Fair Dealing

Purpose and character of the dealing, whethersuch dealing is of a commercial nature or is fornon-profit educational purposes;

The nature of the work;

The amount and substantiality of the part copiedtaken in relation to the whole work;

The effect of dealing upon the potential marketfor, or value of, the work; and

The possibility of obtaining the work within areasonable time at an ordinary commercial price

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Private Study

Study must be undertaken by the person claimingthe defense

Q: is this defense available to a library

undertaking the photocopying facilities on behalfof a student?

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Use made of a work or under direction orcontrol of Government, by the NationalArchives or any State Archives, by the NationalLibrary, or any State library, or by such public

libraries and educational, scientific orprofessional institutions as the Minister may byorder prescribe where such use is in the publicinterest and is compatible with fair practice

and the provisions of any regulations and(i) no profit is derived; and

(ii) no admission fee is charged

Section 13(2)(i) of MCA

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Remedies for Copyright Owners

Civil proceedings Injunction

Damages or accounts of profit

Additional damages if: Flagrancy;

Benefit accrued by reason of infringement

Other reliefs such as delivery up etc

Criminal sanctions RM2000 per infringing copy up to RM20,000

5 years jail

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Practical Challenges

Role of Libraries is to provide access to knowledge

Need to address legal issues associated withaccess, copying and dissemination of digitalmaterials

Copyright governs ownership, control anddistribution of knowledge;

Inadequate and insufficient exceptions anddefenses

Licenses that override copyright laws Creation of responsible practices

Acceptable use policies, codes of practices to controlextent or permissible copying and dissemination

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Issues of Concern to Libraries and Librarians

Proper clearance of copyrighted works

High costs and administrative burden of clearingIPR

Difficulty in locating right-holders

Complexity and lengthy negotiations

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Clearance of Rights

Some considerations:

Identify the WORKS to be digitized

Develop a clearance strategy

Separate works which do not require licenses (e.g.

works owned by universities) from those where licensesmust be sought (e.g. studentswritings)

Approach rights-holders

Negotiate clearances for the intended usage

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Other Issues

Does the person you deal with have the right tolicense the copyrighted materials

Normally, only copyright owner has the right to licensethe use of the copyrighted work unless he gives an

authority/licence to someone to sub-license it. Get proper proof of his authority to license have sight

of the master license agreement

Warranty that he has the authority

Get an indemnity letter

Enter into a proper license agreement

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Plagiarism

It is to use others ideas and words without clearlyacknowledging the source of that information.(knowledge tagging)

act of using someones ideas, composition, etc.

(An English MalayDictionary.Kamus Dewan. 1995. Dewan Bahasa dan Pustaka)

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is unethical and immoral; is the issue of trust between two or more; is a legal issue of fair use and intellectual

property;

it will hurt those who dont; is a breach of confidence; and is infringement of copyright and subjected to

Copyright Act 1987, andcan be sued fordamages.

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Types of Plagiarism

Deliberate, copying of text without attribution

Changing the words around, using synonymswithout attribution

Quoting too closely, without quotation marks,

but with attribution Believing the information to be common

knowledge

Using someone elsespaper

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How to Avoid?

Give credit whenever you use

anotherspersonsidea, opinion, or theory; any facts, statistics, graphs, drawings any

pieces of information that are not commonknowledge;

quotations of anothersactual spoken or writtenwords; or

paraphrase of another persons spoken orwritten words

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LAW OF MALAYSIAAct 331

DEPOSIT OF LIBRARY MATERIAL ACT

1986

An Act to make provision for the collection, conservation,bibliographical control and use of library material published inMalaysia and to provide for matters connected therewith

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Act 331

SCHEDULE I(Section 4 (1) and (2)NUMBERS OF COPIES OF LIBRARY MATERIAL TO BEDELIVERED

1. Printed library material including books,serials 5 maps, charts and posters. (5 copies)

2. Non-printed library material includingcinematograph films, microforms,phonographic records, video and audiorecordings and other electronic media. (2copies)

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Defamation Act 1957

A person who, by words either spoken or intended to be read, or bysigns or visible representations, publishes a defamatory imputationconcerning another person.

What Constitute Defamation?

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Forms of Defamation

Slander

Conveyed orally through voice or sign such asinsinuation, irony etc.

Libel

Defamation in form of printed materials suchas, books, symbols, image etc.

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Defamation Matters

Blacken the reputation of someone.

Any publication that make someone being hatedand insulted by community.

Their goodwill in job, business or profession will

spoil.

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In Publication

In this act, publication is

a) In the case of word spoken, the speaking ofthose words in the hearing of a person otherthan the person defamed.

b) The delivery, reading, or exhibition of it, ifthe person making the publication knows,the contents or nature of the documentcontaining the defamatory matter

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Defamation Actionable

The unlawful publication of defamatory matter(including words spoken) is an actionable wrongwithout proof of special damage to the persondefamed.

In the case of other defamatory matter, thedelivery, reading, or exhibition of it, in any othermanner, of its content of any part thereof to aperson other than the person defamed, the

contents or nature of the document or other thingcontaining the defamatory matter

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Contract Act 1950

A promiseof an agreementmade of a set of promises. Breachof this contract is recognized by the law and legal remedies can beprovided

What is Contract?

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Formation of Contract

It is completed when there is an offer made, a clearand unequivocal acceptance, furnishing ofconsideration and an intention to be bound by thecontract

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In Publication

Relationship arise when there is an agreementbetween the author and publisher

The author allowed publisher to publish theirwork

Publisher must pay the royalty according topercentage

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Contract Issue

Royalty payment

In some cases, publisher did not pay the royaltyto the author as written in the agreement

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Authentication of Contract

Intention to create legal relation

Offer exist from a party and acceptance fromanother party

Existence of consideration

All parties are qualified to form a contract

Not for illegal purpose

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Contract Actionable

According to Section10(1), Contract Act 1950, anyagreement must be form with willingness byparties that are qualified

If any parties breach the requirement of the

contract, another parties can make assertion tobreak the contract

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Sedition Act 1948

An act, speech, word, publication or other thing that

What is Seditious?

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What is Considered Seditious?

An act, speech, word, publication or other thingthat:

Brings into hatred or contempt of excitesdisaffection against any ruler or government, or

the administration of justice Promotes feelings of ill-will and hostility between

different races and classes of Malaysians

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Who Can Be Charged Under The Act?

Section4(1) defines the offender as anyone whocarries out any act that has a seditious tendency

Includes preparations for such an act orconspiring with anyone who is involved in such an

act

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The Act Covers:

Covers:

The saying of seditious words

The printing, publishing, sale, offer for sale,distribution or reproduction of any seditiouspublication

Import of seditious publications

When applied or used in respect of any act, speech or wordsqualifies such words and publication as one having a seditioustendency

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In Publication

Includes all printed matter and everythingwhether of a nature similar to printed matter

Not containing any visible representation by itsform, shape or in any other manner

Capable of suggesting words or ideas, andreproduction or substantial reproduction of anypublication

Includes any phases, sentences or other consecutive number orcombination of words

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What is the Penalty for these Offences?

The first-time offender is liable to a fine notexceeding RM5,000 or imprisonment for up tothree years, or both

Subsequent offences are punishable with a

maximum jail sentence of five years

Any seditious publication found in possession of the offender andused as evidence will be disposed of as the court directs

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Internal Security Act 1960

The act been demolished in 201?

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Conclusion

Copyright Law in Action: Basic Books v. Kinko's Graphics Corp.

Copyright cases typically involve disputes between competing private interests: an authoragainst someone who has copied the author's work without permission. However, theoutcome of such cases often has significant repercussions for the general public as well.One such case with significant public effect was Basic Books v. Kinko's Graphics Corp.,758 F. Supp. 1522 (S.D.N.Y. 1991), which dealt with the question of whether photocopy

stores may sell copied excerpts of books to college students without authorization fromthe books' publishers. The decision in the case ultimately affected the price that thepublic must pay for access to copyrighted information.

Many college and university students purchase photocopied materials from copy stores inassociation with courses they are taking. Usually consisting of chapters or sections taken

from different books or journals, these photocopied materials enable students to readfrom a wide variety of sources without having to purchase a large number of books. Bythe late 1980s, book publishers realized they were losing sales owing to suchphotocopying. As a result, several publishers, including Basic Books, Inc., filed a lawsuitin federal court against one of the largest photocopy firms in the United StatesKinko'sGraphics Corporation, a company that in 1989 had more than two hundred locations andannual sales of $54 million.

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Conclusion

At issue in the case was the question of who may profit from the reproduction of anauthor's work, particularly with regard to the practice that Kinko's called anthologizing,which is the copying of book excerpts into course "packets" sold to college students. Thepublishers, the plaintiffs in the case, maintained that Kinko's violated the Copyright Act of1976 (17 U.S.C.A. 101 et seq.), by failing to secure permission to reprint the excerptsincluded in course packets and, in turn, pay the necessary fees involved, part of whichwould be passed on to the authors of the books. Kinko's claimed that its sale of the

excerpts was an example of the kind of fair use that is allowed by the Copyright Act.

Citing the commercial interests involvednamely, the fact that Kinko's made a significantamount of money from the sale of course packets, and that packet sales competed withbook salesthe court found that Kinko's was guilty of copyright infringement. It orderedthe company to pay $500,000 in damages to the publishers and issued an order

forbidding it to prepare anthologies without securing permission from and prepaying feesto the appropriate publishers.

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Conclusion

Basic Bookswas a victory for the publishers and authors of books that are excerpted forcourse anthologies. As for Kinko's, it now has to pay fees to publishers, but it is able topass on those costs to customers in the form of higher prices. Does this mean thatstudents are the losers in this case? In the short run, yes, because they will pay more fortheir course materials. But in the long run, students and the rest of society may derivemore benefit, even if it is indirect, from a system that rewards authors for their intellectuallabor.

Many features of the 1976 act make U.S. copyright law conform more to internationalcopyright standards, particularly with regard to the duration of copyright protection and tothe formalities of copyright deposit, registration, and notice. These changes have beengreatly influenced by the most important international copyright treaty, the BerneConvention for the Protection of Literary and Artistic Works (828 U.N.T.S. 221, S. TreatyDoc. No. 99-27). In 1988, the United States passed the Berne Convention

Implementation Act (102 Stat. 2853), which made the nation an official member of thetreaty as of 1989. Section 2(a) of this act holds that provisions of the treaty are not legallybinding in the United States without domestic legislation that specifically implementsthem.U.S. copyright law has continued to evolve toward greater conformity withinternational copyright standards. In the 1990s, for example, the Berne Convention added20 years to the minimum standard for copyright duration, changing it to the length of the

th ' lif l 70 U S i ht l f ll d it i 1998 ith th f