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CYBER LAW

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

Property right in an incorporeal form.


Subsists in a limited period of time.
Entitlement of exclusive rights.
To prevent others from freely manipulating the copyright works.
A bundle of rights exist in a work.

2) COPYRIGHT ACT 1987


The Act which outlines the nature of copyrightable
work, scope of protections and how the protection can
be obtained.
s.7 : Literary Works, Musical Works, Artistic Works,
Film, Sound Recording, Photographs, And
Broadcasting.
Application :

In this case, it is stated that Samad has produced a blog


that contains a collection of Kamalas pictures that he
took/scanned from newspapers, magazines and internet.
Those three mediums are under copyright of their
publishers.

3. ELEMENTS OF PROTECTION OF COPYRIGHT


ORIGINALITY

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

4. EXCUSIVE RIGHTS (S.13 CA1987)


Right to
Reproduce the work in any material form
Communicate to the public
Perform, show or play to the public
Distribute copies to the public by sale or other
transfer of ownership
Rent commercially to the public
Of the whole work or a substantial part thereof,
either in its original or derivative form.
Application : Samad may be liable for the infringement
of the exclusive right of the owner of the newspaper,
magazines and internet.

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

6. OWNER OF COPYRIGHT WORK


Author - s.26(1) CA 87 - Author is the first
owner
for examples a programmer, music composer, a
book or script writer or anyone who creates a
copyrightable works.
Employer or Commissioner - s.26(2)(a) (b) CA 87
For a work which is created under commissioned or
in the course of employment then the ownership
belongs to the commissioner or employer.

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.

Samad would violate s. 25 CA that states no


person may, without the consent of the
author, or, after the authors death, of his
personal representative do the presentation
of the work without identifying the author or
under a name other than that of the owner.
If so he shall be liable under CA s.41(1).

8) CIVIL ACTION V CRIMINAL OFFENCE


Remedies - S.37 CA 87 - Damages, injunctions,
account of profit
Penalties - S.41 CA 87 - Punishment and
Penalties s.41(1)(i)(ii)_ CA 87
Application : This case may be involved under
civil action or criminal offence. If the owner of
work (has copyright) wants to take civil action
towards Samad, then he must pay for damages,
unjunctions, or account of profit.

Longman Malaysia Sdn Bhd V Pustaka Delta


Pelajaran Sdn Bhd
This was an action by the plaintiff against the defendants
for infringement of copyright in a textbook which was
translated from a manuscript in English to Bahasa Malaysia.
Since 1979 the plaintiff has not assigned the copyright of P1
to anyone nor has a licence been granted by the plaintiff to
anyone to publish or reproduce it.
The plaintiff claimed that the defendant had infringed the
plaintiff's copyright and rights in the nature of copyright by
publishing, distributing, selling without the licence of the
plaintiff. The general arrangements, language and features
and errors of which are similar to the plaintiff's P1.
Held liable for infringing copyright.

9) COPYRIGHT ON THE INTERNET


The transformation of ordinary copyright works to a
digitized form develops new issues in this area.
Text documents, photographs, music, films and computer
programs are just some broad instances of works that can
be manipulated easily through digitization technology.
Application : Johnson has no copyright on the videos he took
during the concert. He is not the organizer of the concert.
Samad does not do any infringement of copyright when he
used to download the video and upload it to his YouTube
account. under Section 233 of the Communications and
Multimedia Act 1998, which provides that a person commits
an offence if he or she posts any content that is either
indecent, obscene, false, menacing, or offensive in character
with the intention to annoy, abuse, threaten or harass any
person

233. (1) of Communication and Multimedia Act 1998 :


A person who
(a) by means of any network facilities or network
service or
applications service knowingly
(i) makes, creates or solicits; and
(ii) initiates the transmission of,
any comment, request, suggestion or other
communication
which is obscene, indecent, false, menacing or
offensive
in character with intent to annoy, abuse, threaten or
harass another person; or

Issue 2 : How to prove that the content of a writing,


recording, or photograph are not original?
(How to prove that the photographs are not original? not
belonged to Samad.)
- The owner must prove that he has the copyright by give
document of registrar of voluntary notification and proof of
copying.
Proof of copying may be established either by direct
evidence of copying or by direct evidence of showing.
1) The best evidence rule provides that: to prove the content of a writing,
recording, or photograph, the original writing, recording, or photograph
is required, except as otherwise provided in the rules or by Act of
Parliament."
2) The rule is applied is in cases using documents or copies of documents.
3) Sec 3 : "evidence" includes-- (a) all statements which the court permits or
requires to be made before it by witnesses in relation to matters of fact
under inquiry: such statements are called oral evidence; (b) all
documents produced for the inspection of the court: such documents are
called documentary evidence;

"document" means any matter expressed, described, or


howsoever represented, upon any substance, material,
thing or article, including any matter embodied in a disc,
tape, film, sound track or other device whatsoever, by
means of-- (a) letters, figures, marks, symbols, signals,
signs, or other forms of expression, description, or
representation whatsoever; (b) any visual recording
(whether of still or moving images); (c) any sound
recording, or any electronic, magnetic, mechanical or other
recording whatsoever and howsoever made, or any sounds,
electronic impulses, or other data whatsoever; (d) a
recording, or transmission, over a distance of any matter by
any, or any combination, of the means mentioned in
paragraph (a), (b) or (c),or by more than one of the means
mentioned in paragraphs (a), (b), (c) and (d), intended to be
used or which may be used for the purpose of expressing,
describing, or howsoever representing, that matter;
Application : The photographs that have been
downloaded/scanned and uploaded by Samad from the
newspaper, magazines and internet is a document.

Refer to Evidence Act 1950.


Before applying the Act it is important to note that
the Act does not stand alone.
Applying this provision to the computer means that
when someone creates a document on a computer
hard drive, for example, the electronic data stored on
that drive is an admissible document. The question
now is in what form must that evidence be offered.
Meaning of "original" writing or recording, section.
62, Explanation 3 states "a document produced by a
computer is primary evidence".

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.

Document produced by computer


s. 90A. 90B and 90C of EA 1950 relates to documents
produced by computers.
This section is an exception to the hearsay rule and provides
that a document produced by a computer or a statement
contained in such document shall be admissible as evidence
of any fact stated therein whether or not the person
tendering the same is the maker of such document or
statement.
A document shall be deemed to have been produced by a
computer whether it was produced by it directly or by means
of any appropriate equipment and whether or not there was
any direct or indirect human intervention.
It applies to civil and criminal proceedings.

Gnanasegaran a/l Prarajasingam v PP [1997] 3


MLJ 1,11 CA
The appellant appealed, arguing that the computer printout evidence was not admissible because s.90A of the
Evidence Act 1950 required that in the case of
computerized records, a certificate had to be produced
to authenticate the records.
(Per Mahadez Shankar JCA) section 90(1) is an updating
of the best evidence rule with the realities of the
electronic age, and now it is no longer necessary to call
the actual teller or bank clerk who keyed in the date
provided he did in the court of ordinary use of the
computer.
Per Shaik Daud JCA ) s. 90A of the EA 1950 makes
computerized records made in the course of its ordinary
use admissible if the following is proven, ie that: (i) the
documents were produced by a computer; and (ii) the
computer records are produced in the course of its
ordinary use.

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.

Soo Boon Siong V. Saw Fatt Seong &


Ors [2008] 1 CLJ 365
Held: (Mokhtar Sidin CJA)
It is a firmly established rule (to which there
are exceptions) requiring that when
documentary evidence is tendered, primary
evidence of the document, that is to say the
production of the documents itself is
essential.

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.

90A. (1) In any criminal or civil proceeding a


document produced
by a computer, or a statement contained in
such document, shall be
admissible as evidence of any fact stated
therein if the document was
produced by the computer in the course of its
ordinary use, whether
or not the person tendering the same is the
maker of such document
or statement.

Evidence given by witness without


personal knowledge/not available
Hearsay Rule
The assertions of persons made out of court
whether orally or in documentary form or in
the form of conduct tendered to prove the
facts which they refer to (ie. facts in issue
and relevant facts) are inadmissible unless
they fall within the scope of the established
exceptions.
(Evidence, Advocacy And The Litigation Process, 1992, Jeffrey Pinsler)

The rational for such principle is that the


witness cannot verify the truth of facts of
which he has no personal knowledge. As the
person does not have personal knowledge of
the facts is not in court, the accuracy of his
perception and his veracity cannot be
assessed and tested in cross-examination.

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