TOPIC 7

Ownership in Copyright

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 AUTHORSHIP
• Why important?
 For the purpose of the subsistence of copyright work –
s.10(1):author is a qualified person.
 Entitlement of the moral rights under s.25.
• Who is the author?
 Nottage v Jackson (1988) 11 QBD 627.
“Authorship involved ‘originating, making, producing, as the
inventor… the thing which is to be protected, whether it be…
or a photograph’. Brett MR stated that it was the person was
most nearly the effective cause of the photograph.”
 Creative Purpose Sdn. Bhd v Integrated Trans Corp Sdn. Bhd
[1997] 2 MLJ 429.

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 AUTHORSHIP
• S.3: “author” , in relation to-
(a) Literary works, means the writer or the maker of the works;
(b) Musical works, means the composer;
(c) Artistic works other than photograph, means the artist;
(d) Photographs, means the person by whom the arrangement for the taking of the
photograph were undertaken;
(e) Films of sound recording, means the person by whom the arrangement for the
making of the film or recording were undertaken;
(f) Broadcast 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, means the person by whom the work was made.

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 Can a non-human be considered
as an author?
a) Photograph by animal (selfie)
- According to s.3, author in relation to (d), Photographs, means
the person by whom the arrangement for the taking of the
photograph were undertaken.
- In Naruto v. Slater, 15-cv-04324-WHO (January 28, 2016), a crested
macaque named Naruto took photographs of himself (the “Selfies”) using
photographer David John Slater's camera. PETA and Antje Engelhardt filed
a complaint on behalf of Naruto in 2015, alleging that Slater, Blurb, Inc.
(who published a book by Slater containing the Selfies), and Wildlife
Personalities (a UK company that also claimed authorship of the Selfies)
violated Naruto’s copyrights by reproducing and selling the photographs
for profit. The court ruled that Naruto does not have standing to state a
claim under the Copyright Act. To qualify as a work of ‘authorship’ a work
must be created by a human being.
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 Can a non-human be considered
as an author?
b) Work by Computer
- Writer Oscar Schwartz revealed how an algorithm can
generate poetry capable of fooling people into thinking it was
written by an actual human. He applied a test for intelligence
(the Turing Test) that says, “if a computer can fool a human
30% of the time, then it was a human and passes the Turing
test for intelligence.” Schwartz said he has computer-
generated poems that fooled 65% of humans in a study he
conducted online.
- Direct authorship?
- Derivative work?
- Work made for hire doctrine?
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 Can a non-human be considered
as an author?
- If it is consider as computer-generated work, in UK, it may
protect. Under section 9(3) Copyright, Design, and Patents Act
1988, the author of a literary, dramatic, musical or artistic
work that is computer-generated, is deemed to be the person
“by whom the arrangements necessary for the creation of the
work are undertaken.”
- Our CA 1987 – no such provision unlike in UK, NZ, Ireland, HK,
India and South Africa.
- Although computers are capable of producing creative,
independent works (I.e. Artificial Intelligence), they cannot
perform several tasks that a copyright holder must perform to
be eligible for protection.
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 Can a non-human be considered
as an author?
c) Painting by an animal i.e elephant using its
trunk
- Whether can apply the principle under section
s.3, author in relation to (d), Photographs,
means the person by whom the arrangement
for the taking of the photograph were
undertaken. Hence, is it those person who do
the arrangement?

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 AUTHORSHIP
• Joint authorship: S.3
 Robin Ray v Classic (1998) 41 IPR 235
The plaintiff had contributed a design for a system of classifying and selecting
tracks to be played on a radio station. He did so under a consultancy contract.
Held: A Joint authorship claim required that the contributor had made some direct
contribution to the words appearing in the eventual published item. A
contribution of ideas was insufficient. What is essential is a direct responsibility for
what actually appears on the paper. The defendant was to be licensed to use the
copyright database, but only as was foreseen within the original arrangement.
• Presumptions of authorship; S.26(4)(a)
 Creative Purpose Sdn. Bhd. v Integrated Trans Corp Sdn. Bhd [1997] 2 MLJ 429
The author generally refers to the creator of the work while the owner is the person who is
entitled to control the doing of the various restricted acts. The author and owner of a
copyright may not necessarily be the same person.
• Anonymous/pseudonymous works:S.26(4)(b),(c)
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 OWNERSHIP
• S.26(1);…author as the first owner
• Single and co-ownership
• S.27(5): Persons shall be deemed to be co-owners if they share a joint
interest in the whole or any part of a copyright.
• S.27(4): An assignment or license granted by one copyright owner shall
have effect as if the assignment or licence is also granted by his co-owner
or co-owners and subject to any agreement between the co-owners, fees
received by any of the owners shall be divided equally between all the co-
owners.
• S.26(2), 27(3), 27(6).
• Licence means a lawfully granted licence in writing, permitting the doing
of an act controlled by copyright

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• Commissioned work
OWNERSHIP
Plix Products Ltd v Frank M Winstone (Merchants) & Ors [1968] FSR 63.
S.26(2): where a work
(a) Is commissioned by a person who is not the author’s employer under a
contract of service or apprenticeship; or
(b) Not having been so commissioned, is made in the course of the author’s
employment, the CR shall be deemed to be transferred to the person who
commissioned the work or the author’s employer, subject to any
agreement between the parties excluding or limiting such transfer.
 Stephenson, Jordan and Harrison Ltd v MacDonald & Evans (1952) 69 RPC
10. Lord Evershed MR: “The respondent’s duties would include research
and teaching, thus he could not be ordered to write books, the activity
not forming an integral part of his job, but merely accessory to it.”
 Abernethy v.Hutchinson (1825) 47 E.R 1313
An application was made to restrain the Defendants from publishing, in
‘The Lancet,’ Mr Abernethy’s Lectures, which had been delivered
extemporal. Lord Eldon, at first, refused the application; but afterward
granted an injunction, in the ground that there was an implied contract
between him and the parties who attended his Lectures, that they should
not publish them.
 Berjasa Information System Sdn. Bhd. v Tan Gaik Leong (t/a Juruukur
Berjasa) & Anor [1996] 1 MLJ 808
“copyright ownership on the plaintiffs,
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 OWNERSHIP
• Dealings with a work: s 27(1)
• S.27(1): Subject to this section, copyright shall be
transferable by assignment, testamentary
disposition, or by operation of law as movable
property
• S.27(2)-(7)

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 DURATION OF PROTECTION
• Calculation based on 3 things;
 The life of the author
 The date of first publication
 The date of the making of the work
• S.17(1): literary, musical and artistic – author’s life + 50 years after the
death; s. 17(3) – anonymous or pseudonym is 50 years after first
published; s.17(4)- joint authorship – author who died last.
• S.18: published editions – 50 years after the year it was first published.
• S.19: sound recording – 50 years after the year of fixation
• S.20: broadcast – 50 years after the year it was first made
• S.22: film – 50 years after the year it was first made available to the public
or made, whichever is the latest.

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 EXCLUSIVE RIGHTS:S.13(1)

• Copyright in a literary, musical or artistic work, a film, a sound recording or a

derivative work shall be the exclusive right to control in Malaysia:
(a) The reproduction in any material form;
(aa) The communication to the public
(b) The performance, showing or playing to the public;
(e) The distribution of copies to the public by sale or other transfer of ownership; and
(f) The commercial rental to the public
of the whole work or a substantial part thereof, either in its original or derivative form
provided that—
(A) the exclusive right to control the distribution of copies refer only to the act of
putting into circulation copies not previously put into circulation in Malaysia and not to
any subsequent distribution of those copies or any subsequent importation of those
copies into Malaysia; and
(B) the exclusive right to control commercial rental in relation to films shall only apply
when such commercial rental has led to widespread copying of such work materially
impairing the exclusive right of reproduction.

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