Académique Documents
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QUESTION
11
QUESTION 11
presented by : WAN AZREEN BT WAN ZAID
d) Used controversial
keywords like
Kamala Exposed
and Kamala private
parts
What Samad
has done?
c) Uploaded
those
videos to his
YouTube
account
a) produced a
blog that
contains a
collection of
Kamalas
pictures that he
took/scanned
from
newspapers,
magazines and
internet
b) Downlaoded
Kamalas video
all
ISSUE :
1) Whether Samad is liable under Copyright Act
1987 for producing a blog that contains a
collection of Kamalas pictures that he
took/scanned from newspapers, magazines
and internet, downloading all Kamalas video,
uploading those videos to his YouTube account
and using controversial keywords like Kamala
Exposed and Kamala private parts?
2) How to prove that the content of a writing,
recording, or photograph are not original?
1) DEFINITION OF COPYRIGHT
REDUCED TO
MATERIAL
FORM
- S.7(3)(a)
Copyright Act
1987 = sufficient
effort
-Peterson J. in the
University of
London Press V
University Tutorial
Press Ltd
The originality
which is required
relates to the
expression of
thought
- S.7(3)(a) Copyright
Act 1987
Material Form :
material form is
defined as includes
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
THIS
ACT
QUALIFIED
1) author is a citizen of
Malaysia or permanent
resident of Malaysia
2) The work is published in
Malaysia
3) The work is made in Malaysia
4) The work is made by or under
the control of Malaysian
Government
5) A citizen or permanent
resident of a country which is
a member of a treaty
5. AUTHORSHIP
a) literary works - the writer or the maker of the works
b) musical works - the composer
c) artistic works other than photographs- means the artist
d) Photographs - the person by whom the arrangements for the taking of
the photographs were undertaken
e) films or sound recordings - the person by whom the arrangements for
the making of the film or recording were undertaken
f) broadcasts transmitted from within any country, means(i) the person transmitting the programme, if he has responsibility for
the selection of its contents; or
(ii) any person providing the programme who makes with the person
transmitting it the arrangements necessary for its transmission
g) any other cases - the person by whom the work was made
7. INFRINGEMENT OF COPYRIGHT
Direct Infringement
S.36(1) CA 87
Copyright is infringed by any person who does, or
causes
any other person to do, without the licence of the
owner of the copyright, an act the doing of which
is controlled by copyright under this Act.
Oral Evidence
S. 59 of the EA 1950, provides that,
All facts, except the contents of documents,
may be proved by oral evidence .
oral evidence means all statement which
the Court permits or requires to be made
before it by witnesses in relation to matters of
facts under inquiry.
(S. Augustine Paul. Evidence Practice and Procedure 1994 pg. 389)
Oral Evidence
s.60 of EA 1950 Oral evidence must be
direct.
(1) Oral evidence shall in all cases whatever be direct,
that is to say (a) if it refers to a fact which could be seen, it must be
the evidence of a witness who says he saw it;
(b) if it refers to a fact which could be heard, it must be
the evidence of a witness who says he heard it;
(c) if it refers to a fact which could be perceived by any
other sense or in any other manner, it must be the
evidence of a witness who says he perceived it by that
sense or in that manner;
(d) if it refers to an opinion or to the grounds on which
that opinion is held, it must be the evidence of the
person who holds that opinion on those grounds.
Continue :
Proof can either be by a certificate signed by
someone solely in charge of the computer
which produced the printout as required by s
90A(2), or by an officer of the bank.
In this case, Zainal was able to testify with
regard to the documents because he was in
charge of the operations of current accounts.
dismissing the appeal
Primary evidence
62. Primary evidence means the document itself produced for
the inspection of the court.
- Explanation 1Where a document is executed in several parts,
each part is primary evidence of the document. Where a
document is executed in counterpart, each counterpart being
executed by one or some of the parties only, each counterpart is
primary evidence as against the parties executing it.
- Explanation 2Where a number of documents are all made by
one uniform process, as in the case of printing, lithography or
photography, each is primary evidence of the contents of the
rest; but where they are all copies of a common original they are
not primary evidence of the contents of the original.
- Explanation 3A document produced by a computer is primary
evidence.
Application : The pictures that have been downloaded by Samad
from the Internet are primary evidence.
Secondary evidence
Refers to evidence of the contents of the original document which
comes by report, or in some other second hand or derivative way.
E.g. a copy of the original document, or oral evidence from a person
who has seen the original and can recall its contents.
Sec. 63. Secondary evidence includes
(a) certified copies given under the provisions hereinafter contained;
Evidence 55
(b) copies made from the original by mechanical processes, which in
themselves ensure the accuracy of the copy, and copies compared with
such copies;
(c) copies made from or compared with the original;
(d) counterparts of documents as against the parties who did not
execute them;
(e) oral accounts of the contents of a document given by some person
who has himself seen or heard it or perceived it by whatever means.
Application : secondary evidence is when Samad took the pictures
from newspaper and magazines and scan them.
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