EXERCISE TWO

1) Discuss the doctrine of “Sweat of the Brow”

‘Sweat of the Brow’ thus emerged as an essential intellectual property law doctrine,
chiefly related to copyright law. According to this doctrine, an author gains rights through
simple diligence during the creation of any work. However, note that the reward of the right
here is not subject to the ‘originality’ of the subjectmatter but subject to the independent efforts
one puts in creation of the material. A telephone directory, atlas, anthologies or compilations
of stories curated by one are classic examples under that. Thus, it also peotects the labour and
sweat of the compiler, without the use of his vision and aptitude. Factual compilations are
protected. Due to the Copyright Act protects original and creatuve works, the doctrine is in
conflict with the core principle of the Act.

2) “Sufficient effort” must have been expended to make the work original in character. Discuss.

According to the Section 7(3)(a) of the Copyright Act 1987, a literary, musical of
artistic work shall not be eligible for copyright unless sufficient effort has been expanded to
make the work original in character. Sufficient effort must include originality, fixation and
qualifications. Thus, in the case of Megnaway Enterprise Sdn Bhd v Soon Lian Hock, it was
held that the words ‘sufficient effort’ were inextricably linked to the degree of ‘effort, skill or
labour’ expended in the creation of the work. Hence, the similarities test is applied in order to
determine the similarity between the copyrightable elements of two works.

Computer programs are listed as an example of a literary work. Therefore, by virtue of

Section 7(1) of the Copyright Act 1987, a computer program being a literary work, is eligible
for copyright. A computer program is defined as an expression, in any language, code or
notation, of a set of instructions whether with or without related information intented to cause
a device having an information processing capability to persom a particular function either
directy or after either or both which are conversion to another language, code or notation and
reproducton in a different material form.
3) The “first publication rule” under section 10(1) and section 10(2) of the Copyright Act
1987.

If the work was first published in Malaysia and not elsewhere. the publication is also
deemed to be a first publication in Malaysia if the work was first published elsewhere but
subsequently published in Malaysia within 30 days of such publication elsewere. In order to
determine when a work is made in Malaysia, the court will take into account of the completion
of the work. Just like how in the case of Hexagon Tower Sdn Bhd v Polidamic Holdings Sdn
Bhd & 3 ors, the High Court held that the work “made” denotes the point where a work is
actually completed.

If above conditions are not met, copyright can still be enjoyed and enforced in Malaysia
if the work were first produced in a Berne Convention member country. This is provided for
under Copyright Application to other countires Regulation 1990. Additionally, protection of
performers’ rights exists under secton 10A of the Copyright Act, whereby such protection will
subsists in every live performance of which perfomer is a citizen or permanent resident of
Malaysia. And if the citizen or permanent resident of Malaysia but whose performance either
takes place in malaysia or is incorporated in sound recordings that are protected under the
Copyright Act.

4) Discuss the followings:

i) Originality

The fundamental principle of copyright subsists in a literry, musical or artistic work

only if the work is original. Originality does not mean that work should be a novel or unique
work but that work should be originate from the author. It should not be copied. Under Section
7(2) of the Copyright Act 1987 says that the work shall be protected irrespective of their quality
and the purpose for which they were created. Section 7(4) of the Act says that a work shall not
be ineligible for copyright by reason only that the making of the work or the doing of any act
in relation to the work involves an infringement of copyright in some other work.

a) University of London Press Ltd v University Tutorial Press Ltd

Facts of the case, University of London’s Senate decide all examination papers created
by appointed examiners would belong to the University. Mr Jackson and Professor Lodge in
charge of creating papers. The university entered into a contract with University of London
Press, by providing them the copyrights and rights of publication for a fixed period of 6 years.
University Tutorial Press published exam from the previous year as well, containing 16 out
of42 exams which attained from students. Among 16 papers, 3 were written by Mr Jackson and
Professor Lodge. University of London Press sued University Tutorial Press for copyright
infringement over the published exams.

It was held that the University Tutorial press infringed the University of London Press’
copyright. The court said that while dealing with the copyright, the courts would not be
concerned with the originality of idea, rather what is protected is originality of expression. One
can copy ideas, but he has to convey those ideas in a different way.

ii) Skill and Judgment

The doctrine provides that the work was copyrightable on basis of the labour, skill and
investment of capital put in by the creator instead of the originality. However, according to
copyright protection, the work was not copyrightable with mere application of skill, labour and
judgement. The canadian standard of copyright is merely based on skill and judgment which
can be known as the “skill and judgment” test.

a) BBC v Time Out Ltd

Facts of this case is about the pubslishers of the Radio Times BBC, sue the defendants
for alleged infringement of copyright. The defendants publish the schedules or lists with dates,
times and titles of the BBC’s television programmes in their weekly magaizine Time Out.

It was held that it is not mere information, but sufficient skill and labour involved in
generation of compilation to justify copyright.

iii) Qualification

- Sufficient effort has been expended to make the work original in character.
- The work has been written down, recorded or otherwise reduced into material form.
- The work is made in Malaysia or first published in Malaysia.
- The author is a qualified person.

a) Foo Loke Ying v Television Broadcast

Facts of the case is about the first respondent, a limited company incorporated in Hong
Kong, are the maker and owners of the copyright in certain cinematograph films in Hong Kong.
The 2nd and 3rd respindents are respectively the licensee and sub licensee in Malaysia. The
films were video recordings to be shown on television screens for which purpose they were
copied on to tapes for sale and hire as video cassettes. Within 30 days of their first publication
in Hong Kong, the films were published in Malaysia. On behalf of themselves and other
members of the Perak Video Tape Dealers Association, the appellants in a representative action
issued a writ seeking a declaration that the first respondent is not entitled to copyright in
Malaysia. George J. Dismissed the appellants’ claim and they appealed against the decision.

It was held that there was publication in Hong Kong in the first instance and upon
publication in Malaysia within a priod of 30 days of the earlier publication in Hong Kong. He
author, limted company incorporated in Hong Kong is accordingly vested under Section 12 of
the Copyright Act 1987 in respect thereof.

5) Discuss the followings:

a) Case: Creative Purpose Sdn. Bhd v. Integrated Trans Corp Sdn. Bhd

Facts of the case, the plaintiffs were companies engaged in the business of designing,
developing and marketing software programs. In around January 1991, the plaintiff makes a
software program called MEP3 and improve the MEP3 program. So far, the have four
upgrades, namely MEP 3.30, MEP 3.31, MEP 3.32 and MEP 3.33 and they were published for
the sale and distribution in Malaysia. This particular software was never published in Singapore
or anywhere. The Main issue is about the ownership of the program. The plaintiffs argue that
the defendants had infringed the copyright of their software programs by reproducing and
distributing them to the public. The plaintiffs submitted that the defendants had hacked or
modified the programs to circumvent the ‘dongle’ which was a security feature of the programs.

From the definition of the computer program, “dongle” includes a device which is a
copy protection or circumventing device for the main program. In the case the defendant
infringed the copyright in MEP 3, 3.32, 3.33 by reproducing without licence or consent, these
software programs, and distributing the infringing copies to the public.

1. The defendants have modified these software’s to circumvent the dongle.

2. The defendants deny that the creator of the software the plaintiffs.
3. The also deny that the plaintiffs have been publish first in Malaysia.

It was held by the High Court Kuala Lumpur and the judges name are Kamalanathan
Ratnam JC. Copyright protection for software program is strongly entrenched and such
protection extends to both the object and source codes. Kamalanathan J found the liability of
the defendant for the circumvention of a “dongle”, a piece of hardware that is used by the
plaintiff to secure the work from unauthorized access.

b) Discuss regarding electronic publishing.

Electronic publishing for literary work is the term ‘communication to the public’ is
defined as the transmission of a work through a wire or wireless means to the public, including
the making available of a work in such a way that members to the public may access the work
from a place and at a time individually chosen by them’. Section 3 of the Copyright 1987 it
will apply to works made available on the Internet and other online services, as well as works
transmitted or broadcast to the public. It has broad application, applying to works, sound
recording, cinematograph films and broadcasts. Copyright protection had been widened to
cover an exclusive right of an author to control communication to the public through wire or
wireless means.

Therefore, e-publishing gets protected under Copyright Act. Section 3 of the Copyright
Act further provides that communicating a work to the public is also 'publishing. ' The language
of this definition is such that keeping any work in a digital format in a computer that is part of
a network becomes 'publication'.