Voluntary Notification of Copyright

Sri Richgopinath explains the procedure for voluntary notification of copyright

The Copyright (Amendment) Act 2012 which came into operation on 1 March 2012 introduced new Sections 26A, 26B and 26C into the Copyright Act 1987 ("Act"). These provisions establish a new and revolutionary framework for the voluntary notification of copyright into Malaysian copyright law.

The Copyright (Voluntary Notification) Regulations 2012 ("Regulations") came into operation on 1 June 2012.

This article discusses the procedure for notification of copyright under the Regulations and matters which are incidental to such notification.

 

NOTIFICATION OF COPYRIGHT

Regulation 5 permits any of the following persons, namely (i) the author of the work; (ii) the owner of the copyright; (iii) an assignee of the copyright; (iv) a licensee of an interest in the copyright; or (v) a person acting on behalf of any of the persons referred to in items (i) to (iv), to submit a notification of copyright to the Controller of Copyright ("Controller").

Regulation 5(1) requires the notification to be made by a citizen or a permanent resident of Malaysia. It appears to suggest that an owner, author or licensee of the copyright, who is not a citizen or permanent resident of Malaysia, has no locus to lodge a notification under the Act. Therefore, they will have to appoint a citizen or permanent resident of Malaysia to lodge the notification on their behalf.

A notification of copyright is made by filing (i) the prescribed forms; (ii) a statutory declaration; and (iii) a copy of the work with the Controller. The notification must be accompanied by payment of the prescribed fees.

 

The form(s) of notification to be submitted in respect the various types of work is summarised in the Table below:

Applicant Type of Work Form
Author / Owner /
Assignee / Licensee
Literary / Musical / Artistic /
Films / Sound Recording /
Broadcasts
CR-1
Derivative Works CR-2
Representative of
Author / Owner /
Assignee / Licensee
Literary / Musical / Artistic /
Films / Sound Recording /
Broadcasts
CR-1
CR-3
Derivative Works CR-2
CR-3

 

The statutory declaration that accompanies the notification must, inter alia, (i) identify the work and exhibit a copy of the work; (ii) confirm the status of the applicant, i.e. author, assignee or licensee; and (iii) state the date on which the work was created. Where the applicant is not the owner of the work, the owner must be identified in the statutory declaration and a copy of the instrument under which the applicant claims a right to the work, such as a licensing agreement, must be included as an exhibit to the declaration.

The copy of the work that is to be submitted together with the declaration must be clear and of durable quality. It may be in printed form or stored in digital format such as CD-ROM, digital video disc, thumb-drive, secure digital card or external hard disk.

The prescribed fees comprise a notification fee of a fixed amount and a deposit fee for the work which varies according to the mode of depositing and the length, or file size, of the work.

The Regulations prescribe the manner in which the notification form is to be signed. In the case of a natural person, the form must be signed personally or bear the thumb print of the applicant. Where the applicant is a society, organisation, body corporate or firm, the form is to be signed by a director, manager, secretary, partner or other similar officer or person on its behalf.

Regulation 6 permits a notification of copyright to be amended by submitting a Form CR-4 together with payment of the prescribed fee of RM30-00.

 

REGISTER OF COPYRIGHT

Regulation 8 provides that if a notification of copyright is in order, the Controller will issue a letter to the applicant stating that such notification has been entered into the Register of Copyright ("Register").

An applicant may request the Controller to issue a certificate that states that the notification of copyright has been entered on the Register by filing Form CR-5 with the prescribed fee of RM50-00.

Regulation 12 permits any person to request, in Form CR-9 together with payment of a prescribed fee that varies according to the length, or file size, of the extract, for an extract or a certified extract from the Register. Section 26B(5) of the Act provides that a certified extract from the Register shall be prima facie evidence of the particulars entered therein and be admissible in all courts.

A person may also examine the Register by filing Form CR-8 together with a prescribed fee of RM20-00 per hour.

An applicant is required to notify the Controller when there is a change to an address entered in the Register by filing Form CR-10 together with payment of a prescribed fee of RM20-00.

 

CLERICAL ERRORS

An applicant may request the Controller to correct any clerical error in the Register by submitting Form CR-6 together with the prescribed fee of RM30-00.

 

CORRECTION, EXPUNGEMENT OR AMENDMENT

Where a court order has been made under Section 26C of the Act to correct, expunge or amend any entry in the Register, the person who obtained such order is required to serve a sealed copy of the order on the Controller together with Form CR-7. The Controller will make the necessary changes to the Register upon his receipt of these documents.

 

ASSIGNMENT, LICENCE OR TESTAMENTARY DISPOSITION

Where the copyright in a work that has been entered into the Register has been transferred by assignment, testamentary disposition or operation of law, or a licence has been granted in respect of such work, the person concerned or his representative may notify the Controller of the assignment, disposal or grant of licence in Form CR-11 together with payment of a prescribed fee of RM50-00.

 

CONCLUSION

The new regime for voluntary notification of copyright is a welcomed development in Malaysia and will undoubtedly assist in establishing the subsistence of copyright in a particular work. However, it should be noted that the voluntary notification regime does not derogate from the requirement of non-formality for the enjoyment and exercise of copyright protection under the Berne Convention.

 

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