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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

Overview on Intellectual Property Rights and Laws


Intellectual property rights (IPR), very generally, are rights given to creators and owners of of works that are the output of human intellectual creativity. These works can be such as writing, music, drawings, paintings, photography, and films. They also can be in the form of an invention, a manuscript a suite of software or a business name, as examples. In general, the objective of intellectual property law is to grant the creator of a work certain rights and controls over the explanation of that work, as if the others take the freedom of the ability to copy the work or invention may lead for the creator to lose his/her rights of reward and incentive. For some intellectual property rights, the grant of protection is also in return for the creator to make the work accessible to the general public. Intellectual property laws maintains a balance by - in most cases - granting the rights for a limited time. Some rights require registration, for example, patent right, whilst other rights accrue automatically upon the works creation as in copyright. Intellectual property laws cover four types of intellectual property rights which they are: Copyrights Patent Trademark Design

We will only explain the first three of the intellectual property rights stated above as they are the only titles required in this assignment by the lecturer of the module Miss Norlaili.

What is the output of this assignment?


In this assignment we will be comparing the intellectual property laws and rights of the following countries: UK, Yemen and Malaysia. We will show the similarities and differences between these countries and giving opinions and suggestions on changing the intellectual property rights and laws if needed.

Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

UK Intellectual Property Laws and Rights

Copyright

The UK copyright law fact sheet outlines the Copyright, Designs and Patents Act 1988, the principal legislation covering intellectual property rights in the United Kingdom and the work to which it applies.

Copyright law originated in the United Kingdom from a concept of common law; the Statute of Anne 1709. It became statutory with the passing of the Copyright Act 1911. The current act is the Copyright, Designs and Patents Act 1988. The Copyright, Designs and Patents Act 1988, is the current UK copyright law. It gives the creators of literary, dramatic, musical and artistic works the right to control the ways in which their material may be used. The rights cover: Broadcast and public performance, copying, adapting, issuing, renting and lending copies to the public. In many cases, the creator will also have the right to be identified as the author and to object to distortions of his work. Copyright arises when an individual or organisation creates a work, and applies to a work if it is regarded as original, and exhibits a degree of labour, skill or judgement. Interpretation is related to the independent creation rather than the idea behind the creation. For example, your idea for a book would not itself be protected, but the actual content of a book you write would be. In other words, someone else is still entitled to write their own book around the same idea, provided they do not directly copy or adapt yours to do so. Names, titles, short phrases and colours are not generally considered unique or substantial enough to be covered, but a creation, such as a logo, that combines these elements may be. Normally the individual or collective who authored the work will exclusively own the rights. However, if a work is produced as part of employment then normally the work belongs to the person/company who hired the individual. For freelance or commissioned
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

work, rights will usually belong to the author of the work, unless there is an agreement to the contrary, (i.e. in a contract for service). Only the owner, or his exclusive licensee can bring proceedings in the courts against an infringement.

Types of works copyright covers 1. Literary: Song lyrics, manuscripts, manuals, computer programs, commercial documents, leaflets, newsletters and articles etc. 2. Dramatic: Plays, dance, etc. 3. Musical: Recordings and score. 4. Artistic: Photography, painting, architecture, technical drawings/diagrams, maps, logos, etc. 5. Typographical arrangement of published editions: Magazines, periodicals, etc. 6. Sound recordings: May be recordings of works, e.g. musical and literary. 7. Films: Broadcasts and cable programmes.

Rights of the copyright owner Copyright is an automatic international right that gives the creators of literary, dramatic, musical and artistic works the right to control the ways in which their material may be used. The rights cover: Broadcast and public performance,my copying, adapting, issuing, renting and lending copies to the public. In many cases, the creator will also have the right to be identified as the author and to object to derogatory treatment and distortions of his work.

Duration of Rights 1. For literary, dramatic, musical or artistic works Literary, Dramatic, Musical or Artistic works - 70 years after the death of the author (or, if no-one knows who was the author, or a corporate publication, 70 years after publication);
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

2. Photographs (which are artistic works) are particularly complex due to successive pieces of legislation; if taken on or after 1st August 1989, the period of copyright is 70 years after the death of the photographer.

3. Database original material in the database retains its own literary copyright of 70 years after the death of the author, as does any computer software.

4. Films and Video 70 years after the death of the last surviving author (director, author of screenplay, author of dialogue, composer of music).

5. Sound recordings, tv and cable programmes and computer-generated works 50 years after date of release (or date made, if never released).

When rights occur Copyright is an automatic right and arises whenever an individual or company creates a work. To qualify, a work should be regarded as original, and exhibit a degree of labour, skill or judgement. Interpretation is related to the independent creation rather than the idea behind the creation. For example, your idea for a book would not itself be protected, but the actual
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

content of a book you write would be. In other words, someone else is still entitled to write their own book around the same idea, provided they do not directly copy or adapt yours to do so. Names, titles, short phrases and colours are not generally considered unique or substantial enough to be covered, but a creation, such as a logo, that combines these elements may be. In short, work that expresses an idea may be protected, but not the idea behind it.

Fair Dealing (Fair Use) Fair dealing also known as fair use, or fair practice, is a term used to describe acts which are permitted to a certain degree (normally copies of parts of a work) without infringing copyright, these acts are: 1. Private and research study purposes. 2. Performance, copies or lending for educational purposes. 3. Criticism and news reporting. 4. Incidental inclusion. 5. Copies and lending by librarians. 6. Acts for the purposes of Royal Commissions, statutory enquiries, judicial proceedings and parliamentary purposes. 7. Recording of broadcasts for the purposes of listening to, or viewing, at a more convenient time. This is known as time shifting. 8. Producing a backup copy for personal use of a computer program. 9. Playing sound recording for a non profit making organisation, club or society.

Infringement of Copyright 1. Infringing Copies: The statutory definition of an "infringing copy" of a copyright work is contained in section 27(2) of the copyright, designs and patents act 1988. This provides that "an article is an infringing copy if its making constituted an infringement of the copyright in the work in question".

Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

Copyright infringement is the unauthorised use of material that is covered by copyright law, violating one or more of the copyright owner's exclusive rights. The most common types of copyright infringement are copying, making an adaptation and giving a public performance. An example of copyright infringement is the unlawful downloading of copyright material and sharing of recorded music over the Internet.

2. Offenses: According to the copyright, designs and patents act 1988, and under section 107(1) a person commits an offence who, without the licence of the copyright owner a. makes for sale or hire, or b. imports into the united kingdom otherwise than for his private and domestic use, or c. possesses in the course of a business with a view to committing any act infringing the copyright, or d. in the course of a business i.sells or lets for hire, or ii.offers or exposes for sale or hire, or iii.exhibits in public, or iv.distributes, or e. distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

An article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work. Under section 107(2) a person commits an offence who a. makes an article specially designed or adapted for making copies of a particular copyright work, or b. has such an article in his possession,

Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

c. knowing or having a reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business.

Under section 107(3) where copyright is infringed (otherwise than by reception of a broadcast or cable programme) a. by the public performance of a literary, dramatic or musical work, or b. by the playing or showing in public of a sound recording or film,

Any person who caused the work to be so performed, played or shown is guilty of an offence if he knew or had reason to believe that copyright would be infringed.

3. Penalty Section 107(4) provides that the offences under section 107(1)(a),(b),(d)(iv)and (e) are offences triable either way. On conviction on indictment the maximum penalty is ten years imprisonment and/or an unlimited fine. On summary conviction the maximum penalty is 6 months imprisonment and/or a 50,000 (around RM200,000) fine. All of the remaining offences under section 107 stated above are summary offences carrying a maximum penalty of 6 months imprisonment and/or a 50,000 fine.

Patent
The Act: The Patents Act 1977 What is Patent? A patent is an intellectual property right, granted by a countrys government as a territorial right for a limited period. A patent protects new inventions and covers how things work, what they do, how they do it, what they are made of and how they are made. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission. Patentable inventions
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

A patent may be granted only for an invention in respect of which the following conditions are satisfied, that is to say a. the invention is new; b. it involves an inventive step; c. it is capable of industrial application; Patents generally cover products or processes that contain new functional or technical aspects. They are concerned with: how things work; how they are made; or what they are made of.

Patent shall not be granted for the following which are not considered as inventions: a. Discoveries, scientific theories or mathematical b. a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever; c. a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer; d. an invention the commercial exploitation of which would be contrary to public policy or morality. e. the presentation of information, or some computer programs; f. an animal or plant variety; g. a method of medical treatment or diagnosis; Patent Protection in the UK A UK Patent only gives the owner rights within the UK. For international protection, the patent owner needs to apply to patent offices in individual countries or through the international patent system, known as the Patent Cooperation Treaty (PCT). Or, they can get patent protection in most European countries by filing an application under the European Patent Convention (EPC).
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

Duration Patent Protection A UK patent has a life of 20 years and provides protection throughout the UK, but no further. Patent owner must pay renewal fees every year to keep the patent protection valid. If renewal payments are not made, the patent rights will end. Rights of the Patent Owner A patent gives its owner the right to stop others from copying, manufacturing, selling, and importing their invention without their permission. The existence of the patent may be enough on its own to stop others from trying to exploit the invention. If it does not, it gives the owner the right to take legal action to stop them exploiting your invention and to claim damages. Since the patent is a form of intellectual property, the owner of a patent can generally decide what to do with the patent or how it is used. The UK patent grants the patent owner the following rights, they can: make the product themselves; subcontract the manufacturing and receive revenue from selling the product; sell the patent rights to another person; or license the patent rights in exchange for royalty payments.

What happens if you do not patent your invention? If you do not patent your invention, anyone can use, make or sell your invention without your permission. You can attempt to keep your invention secret, but this may not be possible for a product where the technology is on display. Infringement of Patent Any commercial activities in the UK that involve making, supplying, selling, using or importing a patented invention can count as a direct infringement of the patent rights. Even providing part of the patented technology to another party,
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

or working with someone such as a customer to put on the market something which is covered by a patent, may count as a form of infringement. Innocence is no defence to infringement, although if you had no prior knowledge of the existence of the patent then the level of damages awarded against you maybe lower if such ignorance was reasonable. Penalty of Patent Infringement on summary conviction, to a fine not exceeding 1,000 (around RM4,000), or on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

Trade Marks
The Act: Trade Marks Act 1994

What is Trade Mark? Most businesses are aware of their brand or branding and rightly see it as their

corporate image. They know it is of vital importance to their business, but often do not realise how vulnerable it is. In order to protect it properly, it really should be registered as their trademark. A trade mark is the legal definition of a brand and most consist of words, logos or a combination of both. A trade mark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging.

Registered Marks

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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

A registered trade mark is a property right obtained by the registration of the trade mark under this Act and the proprietor of a registered trade mark has the rights and remedies provided by this Act. No proceedings lie to prevent or recover damages for the infringement of an unregistered trade mark as such; but nothing in this Act affects the law relating to passing off.

Reasons for Refusal of Registeration 1. The following shall not be registered: a. signs which do not generally include collective mark or certification mark. b. trade marks which are devoid of any distinctive character, c. trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of services, or other characteristics of goods or services. d. trade marks which consist exclusively of signs or indications which have become customary in the current language or in the practices of legitimate and established practices of the trade: Provided that, a trade mark shall not be refused registration by virtue of paragraph (b), (c) or (d) above if, before the date of application for registration, it has in fact acquired a distinctive character as a result of the use made of it.

(2) A sign shall not be registered as a trade mark if it consists exclusively of (a) the shape which results from the nature of the goods themselves, (b) the shape of goods which is necessary to obtain a technical result, or (c) the shape which gives substantial value to the goods.

(3) A trade mark shall not be registered if it is 11

Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

(a) contrary to public policy or to accepted principles of morality, or (b) of such a nature as to deceive the public (for instance as to the nature, quality or geographical origin of the goods or service).

(4) A trade mark shall not be registered if or to the extent that its use is prohibited in the United Kingdom by any enactment or rule of law or by any provision of Community law.

(5) A trade mark shall not be registered in the cases specified, or referred to, in section 4 (specially protected emblems).

(6) A trade mark shall not be registered if or to the extent that the application is made in bad faith. Duration of Registered Trade Marks (1) A trade mark shall be registered for a period of ten years from the date of registration. (2) Registration may be renewed for further periods of ten years.

Rights Granted by Registered Trade Marks 1. The proprietor of a registered trade mark has exclusive rights in the trade mark which are infringed by use of the trade mark in the UK without his approval. Action that considered as Infringement are explained in the next section. 2. References in this Act to the infringement of a registered trade mark are to any such infringement of the rights of the proprietor. 3. The rights of the proprietor have effect from the date of registration. Provided that a. no infringement proceedings may be begun before the date on which the trade mark is in fact registered; and

Infringement of Registered Trade Marks

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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

(1) A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered. (2) A person infringes a registered trade mark if he uses in the course of trade a sign where because (a) the sign is identical with the trade mark and is used in relation to goods or services similar to those for which the trade mark is registered, or (b) the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark. (3) A person infringes a registered trade mark if he uses in the course of trade in relation to goods or services a sign which is identical with or similar to the trade mark, where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.

Penalty of Registered Mark Infringement (a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding ten years, or both.

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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

Yemen Intellectual Property Laws and Rights

1. Copyright - The name of the act in Yemen is Intellectual property Law No.19 for the year
1994. - amended in 2006 , which include the three types of intellectual property.

The law of copyright in Yemen aims to protect the right of the authors, discoverers, inventors to ensure the freedom of creation, enhancing technological development, regulating their utilization of their works and protecting the societys interest of in making benefit of literary, scientific and artistic innovation. The subject of the authors right shall be the creative works distinguished by innovation in the fields of literature, arts and science, whatever the form of the work, its purpose, production, importance or method are and whether the work can be classified into a branch of the known branches of creation or not. A subject of the copyright shall be each work in which expression is made in writing, sound and drawing in the following: Written scientific, literary and artistic works. Works included in the arts of drawing, painting, carving and architecture. Dramatic works and musical plays. Photographic and movie work.

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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

Maps and geographical drawings and sketches Work prepared for broadcasting by radio or TV. Works related to applied arts, and in general every work in which expression is made in writing, sound, drawing and movement.

The Yemeni authors right to a creative work published in Yemen or abroad shall be recognized, and the non-Yemeni authors right shall also be recognized if the law of his country accords the same treatment to Yemenis, or according to international agreements in which the Republic of Yemen is part thereto. Also, the authors right should be established once the work is created Durations - The copyright duration in Yemen is 30 Years after the death of the author, calculated as from January 1st of the year in which the author died. - A movie or a TV film producer shall have the right to economic utilization of his work for a period of 25 Years as from the date of production which shall be calculated as from January 1st of the production year. - The owner of the authors right to photographs shall have the right to their economic utilization for 10 Years from the date of issue calculated as from January 1st of the year of issue. - The broadcasting right to broadcasting programs shall be for 2 Years, and shall be for 3 Years for TV programs.

2. Patent:
Patent law governs the "right to exclude others from making, using or selling an invention or products made by an invented process that is granted to an inventor" for a period of time. Patents are not granted if the invention or product is obvious or known or used by others. In Yemen, invention is an innovation which contains a solution for a technical assignment and has positive results in any field of economy, culture, health or defense. The newness of an invention means that it has not been used before, in the sense that the invention is new in the right of international technology, considering the scientific research achievement in Yemen and abroad.
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

The invention should be applicable i.e. can be manufactured or used in industry or agriculture. Each Yemeni, whatever his age, domicile or work shall enjoy the legal protection for the inventor or proposer Patent.

Yemen Patent Registration:

When an application is filed, the Patent Office of the General Administration of the Commercial Register will examine the patent application to ensure compliance as regards formal requirements. Once compliance with formal requirements has been satisfied, the application shall be given a filing number and a filing date. If formal requirements called for under the Implementing Regulations are not satisfied, the applicant will be notified to complete formal requirements within a period to be specified by the Registrar. In the event the required formal filing requirements are not completed, the Registrar will decline to accept the application. The applicant is entitled to appeal the Registrar's decision before the High Court of Justice within a period not exceeding one month as from the date of the Registrar's decision.

Once an application is approved, it will be published and recorded in the Official gazette. Any interested party may oppose the grant of a patent within a period not exceeding two months as from the date of publication. The letters patent will be issued subject to payment of the prescribed fee. Patents are valid for 15 years as from the date of filing subject to payment of the prescribed renewal fees which is required to be paid before expiry of the fourth, eighth, and twelfth years as from the filing date. If a patentee failed to exploit the invention within the three consecutive years from the date of grant any interested third party may request cancellation of the patent or grant of a compulsory license. The Industrial Office may, in an appropriate case, grant a compulsory license to any interested person in a position to put the patent into operation. An assignment of a patent requires to be recorded in the Official Gazette subject to presentation of a duly executed and legalized deed of assignment. Formal filing requirements are as follows:
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

1. Full particulars of the applicant. 2. A duly authenticated and legalized deed of assignment, if the applicant is not the

owner.
3. A duly certified copy of the certificate of incorporation or an extract from the

Commercial Register if the applicant is a legal entity.


4. Two copies of the specification in English with an Arabic translation. 5. Claims. 6. Two sets of the formal drawings. 7. An abstract of the invention which shall not exceed 200 words. 8. An indication of the international classification of the invention if known. 9. Priority document if priority is to be claimed.

3. Trademark:
An industrial or Trademark is the one taken as a sign to distinguish the products of industrial, agricultural or commercial projects, or to indicate the services of a project. Trademark law in Yemen has set the elements of a mark which they are: A mark consists of one element or more, which is a drawing, expression, shape, object or other things. The mark may consist of a certain drawing such as lines, inscriptions, pictures and symbols, or from specific term such as letters, figures, word and names. The mark may consist of the shape of the distinctive object, even if this project is the outer covering of the products. Formal filing requirements are as follows:
1. Name and address of the applicant including his nationality, his domicile and the

address of his place of business.


2. A copy of the certificate of incorporation or an extract from the Commercial

Register duly certified and legalized by a Yemeni Consulate.

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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

3. 15 prints of trademark/service mark for each class. A trademark print must be in

the range of (size 6x6cm)


4. A complete list of goods and services to be covered by the registration. 5. Priority document, if priority is to be claimed.

Duration: Registration shall result in protecting the industrial and trademark for a period of 10 Years starting from the date on which registration starts.

Infringement upon a right of the author, discoverer or inventors in this law has provided a penalty to any one who commits it , which is a fine of not less than 10,000 Yemen riyals or/with imprisonment for a period not exceeding six months .

References of Yemen : http://en.wikipedia.org/wiki/List_of_countries%27_copyright_length

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Intellectual Property (IP) Malaysia Malaysias Intellectual Property (IP) laws have been declared to be in conformance with the requirements of the WTOs TRIPs Agreement. By way of further development of the legal regime, the Patent Cooperation Treaty (PCT) entered into
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

force for Malaysia on 16 August 2006 and accession to the Madrid Protocol on the international registration of marks is under con-sideration. Moreover, the countrys modern and comprehensive set of IP laws is backed up by a determination on the part of the Government to promote the registration and enforcement of intellectual property rights.

Copyright of Malaysia Copyright Act 1987

Definition: Copyright is the exclusive right given to the owner of a copyright for a specific period. Copyright protection in Malaysia is governed by the Copyright Act 1987. There is no system of registration for copyright in Malaysia. A work that is eligible is protected automatically upon fulfillment of the following conditions: i) sufficient effort has been made to make the work original in character; ii) the work has been written down, recorded or reduced to a material form; iii) the author is a qualified person; or iv) the work is made in Malaysia or the work is first published in Malaysia.

Copyright Protection: Works eligible for protection are: 1) literary works: such as: Novels, books, plays, dramas, essay, articles, and computer programming. 2) Musical Work : Means any musical work, and includes works composed for musical accompaniment. 3) artistic works: Such as a graphic work, photograph, a work of architecture, and a work of artistic craftsmanship. 4) Films : Means any fixation of a sequence of visual images on material of any

description, whether translucent or not, so as to be capable by use of that material with or without any assistance of any contrivance:
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

- of being shown as a moving picture. - of being recorded on other material.

5) Sound Recording Means any fixation of a sequence of sounds or of a representation of sounds capable of being perceived aurally and of being reproduced by any means, but does not include a soundtrack associated with a film.

6) Broadcasting: Means a transmission, by wire or wireless means, of visual images, sounds or other information which: (a) is capable of being lawfully received by members of the public. (b) is transmitted for presentation to members of the public. 7) derivative works: Besides works that are protected under Section 7(1) of the

Copyright Act 1987, there are other works that are also protected by copyright. Those works are as stated below: a) Translations, adaptations, arrangements and other transformation of works eligible for copyright. b) Collection of works or collections of mere data.

Qualification for Protection: Copyright shall subsist in every work eligible for copyright of which: 1) The author or any of the authors is a qualified person at the time when the work is made. 2) The first publication took place in Malaysia or any country which are members of the Berne Convention.

Duration of Copyright Protection: (a) Literary, musical or artistic works Copyright in any literary, musical or artistic work shall subsist during the life of the author and continue to subsist until the expiry of a period of 50 years after his death.

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b) Works that have been published after the death of the author where a literary, musical or artistic work has not been published before the death of the author, copyright which subsists in such work under this Act shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the next calendar year following the year in which the work was first published.

c) Works published: anonymously or under a pseudonym where a literary, musical or artistic work is published anonymously or under a pseudonym, copyright which subsists in such work under this Act shall continue to subsist until the expiry of a period of 50 years computed from the beginning of the next calendar year following the year in which the work was first published or first made available to the public or made, whichever is the latest. d) Joint authorship: a work produced by the collaboration of two or more authors in which the contribution of each author is not separable from the contribution of the other author or authors. The duration of protection for the works is 50 years computed from the death of the last author.

(f)

Duration of copyright in sound recordings Copyright which subsists in a sound

recording under this Act shall continue to subsist until the expiry of a period of 50 years computed from the beginning of the next calendar year following the year in which the recording was first published or, if the sound recording has not been published, from the beginning of the calendar year following the year of fixation.

(g)

Duration of copyright in broadcasts Copyright in a broadcast shall continue to

subsist until the expiry of a period of 50 years computed from the beginning of the next calendar year following the year in which the broadcast was first made. (h) Duration of copyright in films Copyright in a film shall continue to subsist until the expiry of a period of 50 years computed from the beginning of the next calendar year following the year in which the film was first published.

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(i)

Duration of copyright in works of Government, Government organizations and

international bodies Copyright in works of the Government, Government organizations and international bodies shall continue to subsist until the expiry of a period of 50 years computed from the beginning of the next calendar year following the year in which the work was first published.

Infringement of Copyright Any person who during the subsistence of copyright in a work or performers' right-(a) makes for sale or hire any infringing copy; (b) sells, lets for hire or by way of trade, exposes or offers for sale or hire any infringing copy; (c) distributes infringing copies; (d) possesses, otherwise than for his private and domestic use, any infringing copy; (e) by way of trade, exhibits in public any infringing copy; (f) imports into Malaysia, otherwise than for his private and domestic use, an infringing copy; (g) makes or has in his possession any contrivance used or intended to be used for the purposes of making infringing copies; (h) circumvents or causes the circumvention of any effective technological measures referred to in subsection 36(3); (i) removes or alters any electronic rights management information without authority; or 60 Laws of Malaysia ACT 332 (j) distributes, imports for distribution or communicates to the public, without authority, works or copies of works in respect of which electronic rights management

Penalty of Copyright Infringement (i) in the case of an offence under paragraphs (a) to (f), to a fine of not less than RM2,000 and not more than RM20,000 for each infringing copy, or to imprisonment for a term not exceeding 5 years or to both and for any subsequent offence, to a fine of not

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less than RM4,000 and not more than RM40,000 for each infringing copy or to imprisonment for a term not exceeding 10 years or to both; (ii) in the case of an offence under paragraph (g), to a fine of not less than RM4,000 and not more than RM40,000 for each contrivance in respect of which the offence was committed or to imprisonment for a term not exceeding 10 years or to both and for any subsequent offence to a fine of not less than RM8,000 and not more than RM80,000 for each contrivance in respect of which the offence was committed or to imprisonment for a term not exceeding 20 years or to both; (iii) in the case of an offence under paragraphs (h), (i) and (j), to a fine not exceeding Rm250,000 or to imprisonment for a term not exceeding 5 years or to both and for any subsequent offence, to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding 10 years or to both.

Trademarks
TRADE MARKS ACT 1976 Act 175

An Act to make better provisions in the law relating to trademarks and for other matters connected therewith.

Trademark: A Trademark is a mark which distinguishes the goods and services of one trader from those of another. A mark includes words, logos, pictures, names, letters, numbers or a combination of these. Trade Marks is used as a marketing tool to enable customers in recognizing the product of a particular trader.

Trademarks: According to Malaysia Trade marks Act 1976, a "mark" includes "a device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination thereof". Use of a mark refers to use of a printed or other visual representation of the
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

mark. There is no provision for the registration of sound or smell marks. The Trademarks Act was amended with effect from 1 December 1997 making it possible to register trademarks in respect of services. Further amendment with effect from 1 August 2001 provided for protection of well known marks and abolished Parts A and B of the Register. It is possible to claim the priority date of an earlier application filed within the last six months in a Paris Convention country or a member country of the World Trade Organization. A Malaysia trademark application can also form the basis for priority date claimed in subsequent applications filed in these countries. An application can cover goods or services in only 1 class. Multi-class applications are not allowed so multiple applications must be filed if protection in different classes is required. Malaysia applies the Nice Classification of Goods and Services, in which there are 34 classes of goods and 11 classes of services.

Registrability of Trademarks: For a trademark to be registrable, it must contain or consist of: a) the name of an individual, company or firm represented in a special or particular manner, b) the signature of the applicant for registration or his predecessor in business, c) an invented word or invented words, d) a word which has no direct reference to the character or quality of the goods or services covered by the application for registration, and is not, according to its ordinary meaning, a geographical name or a surname, or e) other distinctive mark. Malaysia allows registration of three-dimensional marks. It has also been acknowledged that colour alone may constitute a mark by which a proprietor's goods may be identified and it is no objection that a mark covers the whole surface of the goods. There are also many registrations of slogans. Where a trademark owner uses several trademarks which resemble each other in material particulars but differ in respect of say statements or representations as to the goods or services, number, price, quality, or in respect of colour, he may file an
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

application for the trademarks to be registered as a series in a single registration. The differences cannot be distinctive and must not substantially affect the identity of the trademarks. Matter which is prohibited from being registered include: a) "scandalous" or "offensive" matter, or matter which "would not otherwise be entitled to protection in any court of law" the Registrar assesses this bearing in mind that Malaysia is a multi-racial country and proper regard must be had to the religious susceptibilities of substantial minorities, b) matter which is or might be prejudicial to the interest or security of the nation, c) word or words "Patent", "By Royal Letters Patent", "Registered", "Copyright" and words to like effect, in any language, and symbols that denote the same, d) other matter specifically declared by the Minister to be prohibited examples of such matter include the phrase "to counterfeit this is a forgery", the words, "Bunga Raya" and representations of the hibiscus, references to a Ruler of a State, represenations of any of the royal palaces, the word "ASEAN" and representation of the ASEAN logotype, the words "Red Crescent" (which replaces the red cross in Islamic countries). A mark which is identical to or so nearly resembles a mark that has been registered or earlier applied for by another proprietor may be refused registration. For this reason, the examination of an application will include a search by the Registry for prior rights on record. The search need not be confined to prior applications or registrations in the same class as the application being examined, because there may be goods or services in other classes which may be considered to be "of the same description" or "closely related" to the goods or services applied for.

Publication of Applications in the Government Gazette: An application that has been accepted will be published in the Government Gazette. The advertisement would set forth the conditions and/or limitations subject to which the application has been accepted. A party that wishes to object to the registration of the mark as applied for may file an opposition with the Registry. After the publication of an accepted application, if there is no opposition, or no successful opposition, an application will be processed for issuance of the certificate of registration.
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

The Registry may sometimes direct an application to be advertised before acceptance. This is usually where a mark is considered to lack inherent distinctiveness but may have become distinctive by virtue of use in Malaysia. Such an application may be advertised again after it has been accepted. Terms of Registration A registration issued under the current Trade Marks Act is valid for an initial period of 10 years from the date of application and is renewable for subsequent 10 year periods. Registrations issued prior to 1 December 1997 were valid for 7 years and renewable for subsequent 14-year periods. As the term depends on the date of issue of the certificate, if in doubt, please consult your trademark advisor for clarification. Rectification: An aggrieved person may apply for a registration to be expunged or varied. The registration of a mark that has not been put to use in Malaysia for a continuous period of three years may be removed. If there has been use of the mark in respect of some of the goods or services covered by the registration but not others, there can be partial removal. Registrations under the Trademarks Ordinances Where a proprietor has registered his trademark under all three of the Trademarks Ordinances of Malaya, Sabah and Sarawak, the trademark will be deemed a registered mark under the Trademarks Act of Malaysia. However, if the mark was registered in only one or two of the component regions, there may be limitations in its effectiveness in Malaysia. This depended on whether there was a registration or pending application for an identical or nearly resembling trademark by another proprietor in respect of the same goods or same description of goods in any of the other component regions. Due to the uncertainty of effect of Malaya, Sabah or Sarawak registrations issued under the previous Ordinances, while maintaining the priority date of these old registrations, many trademark owners would file a fresh application so as obtain a registration under the current legislation that has effect throughout Malaysia. Rights Conferred by Registration A trademark registration is meant to give to the proprietor thereof the exclusive right to the use of the trademark in relation to the goods or services covered by the registration,
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

subject to any conditions or limitations entered on the Register. A registration certificate issued under the hand of the Registrar of Trademarks is prima facie evidence of ownership of the trademark. The proprietor can take civil action under the Trademarks Act against infringement of his rights, or lodge a complaint with the Enforcement Division of the Ministry of Domestic Trade and Consumer Affairs for appropriate action under the Trade Descriptions Act 1972. A trademark registration may be assigned with or without the goodwill of the business concerned in the goods or services in respect of which the trademark is registered. For an assignment without goodwill, the mark should have been in use in Malaysia before the assignment. Trademark registrations which have been entered on the Register as associated will be assignable only as a whole and not separately. If an owner desires to assign only one of two associated registrations, he shall have to apply for the association to be dissolved before he may do so. Dissolution of association will be permissible if the Registrar is satisfied that there would be no likelihood of deception or confusion being caused if that trademark were used by another person in relation to any of the goods or services in respect of which it is registered. Assignment of a trademark registration must have been entered on the Register in order for the Assignee's entitlement to the registration to be admitted in Court. A registered proprietor may grant to another party right to use his trademark in respect of all or some of the goods or services covered by his registration. He must retain and exercise control over the use of the mark and over the quality of the goods or services provided by that party. Such a party should be entered on the Register as a Registered User of the trademark and the use of the mark by a Registered User in accordance with any stipulated conditions of use will be deemed to be use of the mark by the registered proprietor.

Duration of registration: (1) The registration of a trade mark shall be for a period of 10 years but may be renewed from time to time in accordance with this Act.

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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

Penalty of Trademark Infringement: If the offender is prosecuted and convicted, the penalty levied on the offender depends on the nature of the offender. Where the offender is an individual, he faces a fine up to RM100,000 or imprisonment up to three years or both. Where the offender is a body corporate, it faces a fine of up to RM250,000. For repeat offences, the penalty is doubled.(1) 1-http://www.managingip.com/Article/1321970/MalaysiaAlternative-enforcement-oftrade-mark-rights.html

Patenting
PATENTS ACT 1983 Act 291 According to MyIPO, a patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.

Patent Patent protection in Malaysia is governed by the Patents Act 1983 which came into force on 01 October 1986. The earlier system of re-registering United Kingdom patents has been repealed.

What is a patent? A patent is a form of legal protection given to new inventions. The owner of the patent is granted the exclusive right to exploit, assign and license the patented invention. What can be patented? An invention, which may be either a product or process, may be patented so long as it fulfills the following requirements:
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

1. It is new; 2. It involves an inventive step; and 3. It is industrially applicable However, there are some inventions which are excluded from patentability under Malaysian law, such as discoveries, scientific theories, mathematical models, and methods for doing business. A full list of exclusions can be found in the Patents Act 1983.

RIGHTS OF OWNER OF PATENT Rights of owner of patent 36. (1) Subject and without prejudice to the other provisions of this Part, the owner of a patent shall have the following exclusive rights in relation to the patent: (a) to exploit the patented invention; (b) to assign or transmit the patent; (c) to conclude licence contracts.

(2) No person shall do any of the acts referred to in subsection (1) without the consent of the owner of the patent. (3) For the purposes of this Part, exploitation of a patented invention means any of the following acts in relation to a patent: (a) when the patent has been granted in respect of a product: (i) making, importing, offering for sale, selling or using the product; (ii) stocking such product for the purpose of offering for sale, selling or using. (b) when the patent has been granted in respect of a process: (i) using the process; (ii) doing any of the acts referred to in paragraph (a), in respect of a product obtained directly by means of the process. (4) For the purposes of this section, if the patent has been granted in respect of a process for obtaining a product, the same product produced by a person other than
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Information Technology Law - Comparison of Intellectual Property Rights in UK, Yemen and Malaysia

the owner of the patent or his licensee shall, unless the contrary is proved, be taken in any proceedings to have been obtained by that process.

Duration of patent : Once granted, the maximum validity of a patent is 20 years from the date of filing. It should be noted that the patent has to be renewed annually, commencing on the 2nd year after grant, to keep it valid. You may keep renewing the patent until the maximum of 20 years from the date of filing.

Penalty of patent Infringement: Under Section 62A, any person who files or causes to be filed a patent application in contravention of the said Section 23A, commits an offence and is liable on conviction to a fine not exceeding RM15,000.00 or to imprisonment for a term not exceeding 2 years or both.

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