Abu Bakar Suleiman Senior Lecturer Faculty of Information Management University Technology MARA

Acts in Publishing Publishers

Intellectual Property Act Copyright Act Fair Use Plagiarism Libraries Act

A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called infringement.

Intellectual Property Act - IPR means the property in intellectual creations, particularly technology inventions, literary and artistic work. - World Intellectual Property Organization (WIPO)

Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.

Objective of IPR - To monitor intellectual property development at national and international level - To encourage inventiveness, innovations and creativity through appropriate legislations - To safeguard creators interests.

IP is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.

Trade Marks Act 1976

Trade Marks

Name, logo, brand, get-up business, products & services

-Registration MyIPO TOP - 10 yrs forever if renewed

-Common law passing off

-No registration Use, use & use TOP - forever

Copyright

Form & expression

Copyright Act 1987

No registration TOP-50 yrs + author life 50 yrs from publication date

Intellectual Property

Patents

Inventive ideas to solve technological problems

Patents Act 1983

Registration MyIPO TOP 20 yrs from filing

Industrial Designs

Shape & visual appearances

Industrial Designs Act 1996

Registration MyIPO TOP- 15 yrs from filing

Confidential Info
Info or trade secrets which are confidential

Common law breach of confidential information

No registration TOP- forever if kept secret

What is Copyright Act? A form of protection provided by Malaysian Copyright Act 1987 (Act 332) to authors/owners of certain categories of original works that are fixed in a tangible form of expression Protection is available to both published and unpublished works One work may contain more than 1 copyright (e.g. songs lyrics/music & sound recording)

The rights of authors of literary and artistic works (such as books and 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.

Definition of Copyright is the exclusive right given to the owner of a copyright 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 a copyright for a specific period of time.

Copyright Law in Malaysia Governed by the Copyright Act 1987. In Malaysia, no system of registration for copyright. Copyright Law 1987 provides the enforcement of the law by the Ministry of Trade and Consumer Affairs. Also provides the necessary clout to the enforcement agencies.

Why Protect Copyright? Copyright and its related rights are essential to human creativity, by giving creators incentives in the form of recognition and fair economic rewards. Under this system of rights, creators are assured that their works can be disseminated without fear of unauthorized copying or piracy. This in turn helps increase access to and enhances the enjoyment of culture, knowledge, and entertainment all over the world.

Copyright and its related rights are essential

What are protectable?

Employees skills & knowledge Brochures, pamphlets Advertising ideas Inventive ideas Artistic designs Biz dev ideas SOP Fantastic customer service Manufacturing techniques Special biz format/method Financial data Competitive intelligence Website Brands, Slogans Unique shape of products Packaging & labels Distinguishing colors Company/domain names Software Photographs Paintings

No IP protection
Requirements Originality, recorded Inventive steps Kept secret New/Novel (not published) Use Automatic Registration

Copyright Industrial Designs Confidential Info Patent Registered TM Common law TM

Requirements for Copyright Protection Requirements Belongs to one of the categories of protected works Must be original Complies with requirement as to form Complies with qualifications for copyright A work is protected irrespective of quality and purpose

Categories of Protected Works Literary Artistic Musical Films Sound recordings Broadcasts Derivative works Published editions

Literary Works Books Novels Stories Other writings Pamphlets, manuscripts Newsletters Essays, Articles, Letters, Reports Lectures, speeches, sermons Tables or compilations, whether or not expressed in words, figures or symbols and whether or not in a visible form Software

Artistic Works Painting Drawing Diagram Map Chart or plan Engraving Etching Lithograph Woodcut Photos Sculpture Collage Work of architecture Work of artistic craftsmanship

Derivative Works Works derived from any pre-existing copyright works

Translations, adaptations, transformation of works;
Play adapted from novel

arrangements

and

other

Collection of works eligible for copyright which, by reason of the selection and arrangement of their contents, constitute intellectual creation
Encyclopedias, dictionaries, tables and compilations

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

Restricted act reproduction Exceptions:

Appearance of the page, just a position of text, typeset, photos, headlines etc

Purposes of research, private study, criticism, review or reporting of current events if compatible with fair dealing and if made public, to be accompanied by acknowledgement Government, National Archives or State Libraries, prescribed public libraries, educational institutions if in the public interest and compatible with fair dealings

Fixation in Material Form Work must be written down, recorded or reduced to material form Material form
Any form of storage, visible or not, from which the work may be copied

Oral piece of work not protected

Work must be written down, recorded or reduced to material form.

Scope of Protection Copyright protects only the form in which something 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 confidential information

Copyright protects only the form in which something is laid out.

Non-Protectable Works Official texts of Government or statutory bodies of a legislative or regulatory nature or judicial decisions Taglines, slogans, short phrases & titles, names, familiar symbols Ideas, procedures, methods of operation or mathematical concept as such Public domain works
Copyright expired Failed to satisfy statutory requirements/formalities

No Formality Copyright is conferred once all above requirements are fulfilled Arises automatically upon creation No requirement for registration or deposit Advisable and prudent to use symbol followed by name of copyright owner and year of first publication ABC Sdn Bhd 2001 Copyright notice is not a legal requirement but gives notice of copyright. Failure to use will not prevent owner from claiming copyright

Duration of Copyright Protection Life of author plus 50 years

50 years from beginning of next calendar year after first publication 50 years from beginning of next calendar year after the date of making of work
Sound recordings, Films

Artistic, Literary, Musical In case of joint authorship, duration calculated from time of last author who dies (S17(4) of CA)

After the period, works fall into public domain

Broadcast Live performance

Authorship Author or creator is the person who brings the work into existence in its material form Someone who merely suggests a general concept or 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

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 film or sound recording Computer generated work - person creating the work using computer & its program

Joint Authors When two or more authors collaborate on a work and if the contribution of each author is not separable from the contribution of the other Each author must contribute significant amount of skill and labour

Ownership of Copyright General rule author is the first owner Exceptions:

Employees Commissioned works Government

Owners are persons entitled to control the doing of various restricted acts Copyright is deemed transferred as soon as it comes into existence without any formality (subject to agreement to contrary) in:
Commissioned works Works made in the course of employment

Works Created By Employee Ownership of the intellectual property created during the course of the employment is deemed transferred to the employer, unless otherwise agreed. Important consideration:
Whether a work was made in the course of authors employment
Scope of employees duties Whether work is part of the regular or special duties

Commissioned Works Commission: to empower, to entrust with an office or duty Necessary to show the relevant work was produced in consequence of an agreement made for valuable consideration The arrangement must pre-date the making of the work commissioned

Government Copyright shall subsist in work made by or under the direction of the Government and such Government organisation or international bodies as Minister may by order prescribe Copyright shall vest initially in the Government, Government organisation or international body, not the author

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 or modified (right to integrity)
Significantly alter works; Might reasonably be regarded as adversely affecting authors honour or reputation

These are personal rights which cannot be taken away

Nature of Copyright

Exclusive right to say YES or NO to various uses

Exclusive Rights of Copyright Owner To To To To To To reproduce in material form perform, show or play to public communicate to public distribute by way of sale control the commercial rental prepare derivative works based on the work arrangement in

Translation, adaptation

To reproduce typographical published editions

What is Reproduction Right Defined as the making of one or more copies of the work in any form or version
Upload, download, copy Temporary electronic copy made for purposes of enabling user access, browse and preview

What is Communication To The Public Defined as the transmission of a work through wire or wireless means to the public, including the making available of a work to the public in such a way that members of the public may access the work from a place and at a time individually chosen by them Making the work available online and accessing by Internet

Dealing with a Work Copyright, being a proprietary work, can be commercially exploited by the owner by
Assignment License Transmission by operation of law or testamentary disposition

Copyright in future work can also be assigned or licensed

E.g. an author may assign or license the publishing right in the book, which has not been written or completed

What is Infringement?

Infringement means: Without authorisation, does or causes the doing of:

Reproduction Communication to the public Performance, showing or playing to the public Distribution by way of sale to the public Commercial rental

Definition of Fair Dealing Purpose and character of the dealing, whether such dealing is of a commercial nature or is for non-profit educational purposes; The nature of the work; The amount and substantiality of the part copied taken in relation to the whole work; The effect of dealing upon the potential market for, or value of, the work; and The possibility of obtaining the work within a reasonable time at an ordinary commercial price

Private Study

Study must be undertaken by the person claiming the defense Q: is this defense available to a library undertaking the photocopying facilities on behalf of a student?

 Use made of a work or under direction or control of Government, by the National Archives or any State Archives, by the National Library, or any State library, or by such public libraries and educational, scientific or professional institutions as the Minister may by order prescribe where such use is in the public interest 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

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

Practical Challenges

Role of Libraries is to provide access to knowledge Need to address legal issues associated with access, copying and dissemination of digital materials Copyright governs ownership, control and distribution of knowledge; Inadequate and insufficient exceptions and defenses Licenses that override copyright laws Creation of responsible practices
Acceptable use policies, codes of practices to control extent or permissible copying and dissemination

Issues of Concern to Libraries and Librarians Proper clearance of copyrighted works High costs and administrative burden of clearing IPR Difficulty in locating right-holders Complexity and lengthy negotiations

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 licenses must be sought (e.g. students writings) Approach rights-holders Negotiate clearances for the intended usage

Other Issues Does the person you deal with have the right to license the copyrighted materials
Normally, only copyright owner has the right to license the 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

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

act of using someones ideas, composition, etc.

(An English Malay Dictionary. Kamus Dewan. 1995. Dewan Bahasa dan Pustaka)

 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 for damages.

Types of Plagiarism Deliberate, copying of text without attribution Changing the words around, using synonyms without attribution Quoting too closely, without quotation marks, but with attribution Believing the information to be common knowledge Using someone elses paper

How to Avoid? Give credit whenever you use anothers persons idea, opinion, or theory; any facts, statistics, graphs, drawings any pieces of information that are not common knowledge; quotations of anothers actual spoken or written words; or paraphrase of another persons spoken or written words

LAW OF MALAYSIA Act 331 DEPOSIT OF LIBRARY MATERIAL ACT

1986

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

Act 331
SCHEDULE I (Section 4 (1) and (2) NUMBERS OF COPIES OF LIBRARY MATERIAL TO BE DELIVERED

1.
2.

Printed library material including books, serials 5 maps, charts and posters. (5 copies) Non-printed library material including cinematograph films, microforms, phonographic records, video and audio recordings and other electronic media. (2 copies)

Defamation Act

1957

What Constitute Defamation?

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

Forms of Defamation Slander Conveyed orally through voice or sign such as insinuation, irony etc. Libel Defamation in form of printed materials such as, books, symbols, image etc.

Defamation Matters Blacken the reputation of someone. Any publication that make someone being hated and insulted by community. Their goodwill in job, business or profession will spoil.

In Publication In this act, publication is a) In the case of word spoken, the speaking of those words in the hearing of a person other than the person defamed. b) The delivery, reading, or exhibition of it, if the person making the publication knows, the contents or nature of the document containing the defamatory matter

Defamation Actionable The unlawful publication of defamatory matter (including words spoken) is an actionable wrong without proof of special damage to the person defamed. In the case of other defamatory matter, the delivery, reading, or exhibition of it, in any other manner, of its content of any part thereof to a person other than the person defamed, the contents or nature of the document or other thing containing the defamatory matter

Contract Act

1950

What is Contract?

A promise of an agreement made of a set of promises. Breach of this contract is recognized by the law and legal remedies can be provided

Formation of Contract It is completed when there is an offer made, a clear and unequivocal acceptance, furnishing of consideration and an intention to be bound by the contract

In Publication Relationship arise when there is an agreement between the author and publisher The author allowed publisher to publish their work Publisher must pay the royalty according to percentage

Contract Issue Royalty payment In some cases, publisher did not pay the royalty to the author as written in the agreement

Authentication of Contract Intention to create legal relation Offer exist from a party and acceptance from another party Existence of consideration All parties are qualified to form a contract Not for illegal purpose

Contract Actionable According to Section10(1), Contract Act 1950, any agreement must be form with willingness by parties that are qualified If any parties breach the requirement of the contract, another parties can make assertion to break the contract

Sedition Act

1948

What is Seditious?

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

What is Considered Seditious? An act, speech, word, publication or other thing that: Brings into hatred or contempt of excites disaffection against any ruler or government, or the administration of justice Promotes feelings of ill-will and hostility between different races and classes of Malaysians

Who Can Be Charged Under The Act? Section4(1) defines the offender as anyone who carries out any act that has a seditious tendency Includes preparations for such an act or conspiring with anyone who is involved in such an act

The Act Covers: Covers: The saying of seditious words The printing, publishing, sale, offer for sale, distribution or reproduction of any seditious publication Import of seditious publications

When applied or used in respect of any act, speech or words qualifies such words and publication as one having a seditious tendency

In Publication Includes all printed matter and everything whether of a nature similar to printed matter Not containing any visible representation by its form, shape or in any other manner Capable of suggesting words or ideas, and reproduction or substantial reproduction of any publication

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

What is the Penalty for these Offences? The first-time offender is liable to a fine not exceeding RM5,000 or imprisonment for up to three years, or both Subsequent offences are punishable with a maximum jail sentence of five years

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

Internal Security Act

1960

The act been demolished in 201?

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

Copyright cases typically involve disputes between competing private interests: an author against someone who has copied the author's work without permission. However, the outcome 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 from the books' publishers. The decision in the case ultimately affected the price that the public must pay for access to copyrighted information.
Many college and university students purchase photocopied materials from copy stores in association with courses they are taking. Usually consisting of chapters or sections taken from different books or journals, these photocopied materials enable students to read from a wide variety of sources without having to purchase a large number of books. By the late 1980s, book publishers realized they were losing sales owing to such photocopying. As a result, several publishers, including Basic Books, Inc., filed a lawsuit in federal court against one of the largest photocopy firms in the United StatesKinko's Graphics Corporation, a company that in 1989 had more than two hundred locations and annual sales of $54 million.

Conclusion
At issue in the case was the question of who may profit from the reproduction of an author'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. The publishers, the plaintiffs in the case, maintained that Kinko's violated the Copyright Act of 1976 (17 U.S.C.A. 101 et seq.), by failing to secure permission to reprint the excerpts included in course packets and, in turn, pay the necessary fees involved, part of which would 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 significant amount of money from the sale of course packets, and that packet sales competed with book salesthe court found that Kinko's was guilty of copyright infringement. It ordered the 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 fees to the appropriate publishers.

Conclusion
Basic Books was a victory for the publishers and authors of books that are excerpted for course anthologies. As for Kinko's, it now has to pay fees to publishers, but it is able to pass on those costs to customers in the form of higher prices. Does this mean that students are the losers in this case? In the short run, yes, because they will pay more for their course materials. But in the long run, students and the rest of society may derive more benefit, even if it is indirect, from a system that rewards authors for their intellectual labor. Many features of the 1976 act make U.S. copyright law conform more to international copyright standards, particularly with regard to the duration of copyright protection and to the formalities of copyright deposit, registration, and notice. These changes have been greatly influenced by the most important international copyright treaty, the Berne Convention for the Protection of Literary and Artistic Works (828 U.N.T.S. 221, S. Treaty Doc. 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 the treaty as of 1989. Section 2(a) of this act holds that provisions of the treaty are not legally binding in the United States without domestic legislation that specifically implements them.U.S. copyright law has continued to evolve toward greater conformity with international copyright standards. In the 1990s, for example, the Berne Convention added 20 years to the minimum standard for copyright duration, changing it to the length of the author's life plus 70 years. U.S. copyright law followed suit in 1998, with the passage of the Sonny Bono Copyright Term Extension Act.