Elias Bin Idris v Mohd Syamsul Bin MD Yusof (W-02(IPCV)(W)508-03/2016)

1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN MALAYSIA RAYUAN SIVIL NO: W-02(IPCV)(W)508-03/2016 ANTARA ELIAS BIN IDRIS … PERAYU DAN

1. MOHD SYAMSUL BIN MD YUSOF

2. MOHD YUSOF BIN MD ASLAM

3. SKOP PRODUCTION … RESPONDEN-RESPONDEN (Di Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur Dalam Negeri Wilayah Persekutuan, Malaysia Writ Saman No: 22IP-67-11/2014 ANTARA ELIAS BIN IDRIS … PLAINTIF DAN

1. MOHD. SYAMSUL BIN MD YUSOF

2. MD. YUSOF BIN MD ASLAM

3. SKOP PRODUCTION SDN BHD … DEFENDAN-DEFENDAN CORAM ABANG ISKANDAR BIN ABANG HASHIM, HMR BADARIAH BINTI SAHAMID, HMR MARY LIM THIAM SUAN, HMR 2 JUDGMENT OF THE COURT Introduction [1] This is an appeal against the decision of the learned High Court Judge who on 16.02 2016 dismissed the Plaintiff’s claim against the Defendants for copyright infringement, and allowed the Defendant’s counterclaim against the Plaintiff for defamation. [2] For ease of reference parties will be referred to as they were in proceedings before the High Court. Background Facts [3] A summary of the background facts with suitable modifications is extracted from the learned Judge’s ‘Grounds of Judgment’. [4] The Plaintiff is the author of the novel titled, “Aku Bohsia” (‘the novel’). The novel was published in 1995 by Kreatif Akademik of Klang. The Plaintiff claims to be the copyright owner of the said novel which is protected by the Copyright Act 1987. (‘CA 1987’). [5] The First Defendant is the lead actor, lead scriptwriter and director of the movie, “Bohsia: Jangan Pilih Jalan Hitam” (‘movie’). Apart from this movie, the First Defendant is also the scriptwriter and director of other Malay movies on various themes. 3 [6] The Second Defendant is the producer of the movie. He is also the father of the First Defendant. [7] The Third Defendant is the distributor of the movie. [8] PW1 and PW2 who are both children of the Plaintiff gave evidence that they had watched the movie around April 2009 and found the movie to be similar to their father’s novel. They informed their father, the Plaintiff, who then watched the movie and found the movie to be similar with his novel. [9] The Plaintiff subsequently approached the Defendants, who denied copying the Plaintiff’s novel. The first Defendant, the scriptwriter of the movie claimed that he had never read the novel before directing the movie. The First Defendant also claimed that the movie is based on one of our social problems, the issue of “bohsia”. The Plaintiff’s Claim Copyright Infringement [10] The Plaintiff filed this suit in November 2014, and claimed that the movie, “Bohsia : Jangan Pilih Jalan Hitam” had lifted, utilised, copied and plagiarised the contents, theme, plot, characters and message in his novel, “Aku Bohsia” to create, develop, produce, present and distribute the movie, “Bohsia : Jangan Pilih Jalan Hitam”. 4 [11] The Plaintiff claims that the Defendants’ actions abovementioned were without the Plaintiff’s consent, knowledge, approval and permission and had thus infringed and violated the Plaintiff’s copyright. [12] The details of the alleged infringements are pleaded in the Plaintiff’s Statement of Claim dated 25.11.2014 in paragraph 10. A summary of the alleged infringements (English translation) are as follows:

1. Theme Both the novel and the movie have the same or similar theme of young girls referred to as “bohsia,” who are sexual victims and their involvement with “Mat rempit”, motorcyclists who are often involved with illegal racing.

2. Plot Both the novel and the movie contain the same or similar plots of two main characters (“bohsia girls”) who became “bohsia” after being raped by their own fathers and as a result of being influenced by their peers in a negative way.

3. Message

(ii) Both the novel and the movie also focus on the vices of drug abuse, gambling, alcoholism, illegal racing and the effects of the abovementioned vices.

4. Characters

(ii) In the movie, the two main “bohsia” girls are called “Amy” and “Tasha”, while the two “Mat rempit ” characters are called “Mus” and “Acai”. The movie also features the character of a male pimp. The character of the father is similarly that of an alcoholic who had raped his own daughter.

(iii) Both the novel as well as the movie feature characters with the common traits of being quarrelsome as well as hot tempered. (The character of Jeff in the novel and the character of Acai in the movie) 6

5. Significant similarities

(ii) Sexual scenes of the main “bohsia” character. In the novel, Anne Natasha who was drunk only recovered consciousness at 4 a.m. to discover that all the “Mat rempit” had had sexual relations with her. Whereas in the movie, Tasha who was a drug addict had sexual relations with all the “Mat rempit” at a rented house.

(iii) In the novel, Anne Natasha attends a ‘tea dance’ with the intention of attempting to drink alcohol. While in the movie, Tasha goes to a disco with the same intention of attempting to drink alcohol.

(iv) In the novel, Anne Natasha who does not go to school returns home late is scolded and slapped by her parents. Anne Natasha herself had seen her own mother come out of a hotel in Bukit Bintang with a man who was not her father. In the movie, Tasha is evicted from her home by her own mother who threw out her belongings, yet her own mother brings home other men.

1. The Defendants had never read or purchased or heard of or been informed of the Plaintiff’s novel.

2. There are significant dissimilarities between the novel and the movie. (refer to para.5 at pp 3-20 of the Defence).

3. Any similarities between the novel and the movie are only coincidental because they are premised on common social problems which is well known through the mass media such as newspapers, television dramas as well as films.

4. The similarities between the novel and the movie are similarities of ideas and not protected under section 7 (2A) of CA 1987. The Defendants ‘Counterclaim Defamation [14] The Defendants had mounted a counterclaim that the Plaintiff’s blog on the internet at http://ikanlepu.blodspot.com/2014archive.html under the heading “Elias Hj Idris, Mendepani Masa Depan” dated 8

7.11.2014 with reference to “Pengarah Muda Filem Bakal disaman” is defamatory. In addition, another of the Plaintiff’s blog on the internet at http://ikanlepu.blodspot.com/2014archive.html under the heading “Elias Hj Idris, Mendepani Masa Depan”, dated 16.11.2014, with reference to “ÄKU BOHSIA”, Sebuah Karya Sastera (novel) is also defamatory. Agreed Issues before the High Court [15] The issues in the Plaintiff’s claim and the Defendants’ Counterclaim may be summarised as follows:

(ii) Whether the Defendants’ said action as referred to above had infringed and violated the Plaintiff’s copyright to his said novel and had caused loss and damage to the Plaintiff?

(iii) Whether the Plaintiff’s blogs on the internet, details as abovementioned, are defamatory? The Findings and Decision of the High Court [16] The learned High Court Judge had dismissed the Plaintiff’s claim on copyright infringement and allowed the Defendants’ counterclaim for defamation. The grounds of decision of the learned Judge may be summarised as follows. 9 Copyright Infringement [17] The learned Judge made a finding that the novel of the Plaintiff was an original piece of work and that the Plaintiff is the owner of the copyright in the novel, “AKU BOHSIA”. [18] However, the learned Judge found that the similarities alleged between the Plaintiff’s novel and the Defendants’ movie was not the result of copying or substantial reproduction of the Plaintiff’s novel, “…because they are commonplace, unoriginal, or consists of general ideas”. (Designers Guild Ltd v Russel Williams (Textiles) Ltd. [2000] 1 WLR 2416 at p.2425; The New Straits Times Press (M) Bhd & Anor v Admal Sdn Bhd [2013] 6 MLJ 405). [19] In the learned Judge’s view, both the novel and the movie are about the life of a “bohsia”. The issues of “bohsia” girls, and the surrounding issues such as “Mat rempit”, drug abuse, alcoholism, gambling and illegal racing were social problems that were prevalent before 1995 when the novel was first published and persisted after the screening of the movie in 2008, and until today. Thus these were elements which are already in the public domain and cannot be considered as exclusive to the Plaintiff’s novel. At para. 43 of her grounds of judgment, the learned Judge had stated thus: “Bohsia” and its related social problems and common features are already part of our society before the publication of the Plaintiff’s 10 novel in 1995 and persisted until today. All these elements associated with “bohsia”, which are part of our social problems, are therefore information that is both commonplace and general ideas in our society that cannot form part of the comparison between the novel and the movie. The “bohsia” and “mat rempit” issues are general issues which are already in public domain that cannot be said to be exclusive only to the Plaintiff’s novel. The “bohsia” issue is already a part of our society that it was included in the national dictionary”. [20] The learned Judge then proceeded to exclude the general and commonplace elements in society when making comparison between the novel and the movie. What was left for comparison was, in the learned Judge’s view insufficient to support a copyright infringement. At para. of the learned Judge’s grounds of judgment she had stated as follows: “As such, and after taking out the ideas and elements associated with ‘bohsia’, what are left for comparison are the similarities in the scene of the rape of the daughter by her father, the relationship between the daughter and her mother, the names of the character, and the places of gathering of the ‘bohsia’ and the ‘mat rempit’ (similarities in item 1/a, 3, 5, 6 and 15). However, I am of the considered opinion that by themselves, they cannot be said to be substantial similarities that goes to the root of the novel and the movie. The root of both the novel and the movie are the social issues surrounding the ‘bohsia’ and to a lesser extent, the ‘mat rempit’. 11 [21] The learned Judge also made a finding that there is no causal connection between the novel and the movie to establish that the movie was copied from the novel. In para. 49 and 50 of the learned Judge’s grounds of judgment, she stated as follows: “[49] From his witness statement (WSPW5), the Plaintiff did not explain the causal connection between the novel and the movie. On this issue I agree with the Defendant that the Plaintiff has failed to establish the causal connection. The novel was published in 1995, but the movie was released only in 2009, about 14 years later. Yet, the Plaintiff only took action in 2014, about 5 years later. Added to that, there was no evidence on the sale of the novel, the number of copies that was sold or whether the said novel is still in the market, 14 years later. [50] With regards to the Plaintiff’s reliance of the case of Saleha, (Saleha Hussin lwn Ab. Wahid Nasir & Yang Lain [2004] 2 CLJ 2004) I am of the considered opinion that our factual matrix is different, because in Saleha’s case there is a nexus between Plaintiff, who is the script writer and had given the script to the Defendant. Having access to the Plaintiff’s script, the Defendant has produced the production bearing substantive similarities with the Plaintiff’s script. On the facts in that case, the Court has made a finding of fact on substantive similarities.” Defamation [22] In respect of the two articles, published on the Plainitiff’s blog, the learned Judge found that the Defendants had established their 12 counterclaim against the Plaintiff in defamation. At para. 58 of her grounds of judgment she stated thus: “…I am of the considered opinion that the words are defamatory as they claim that the movie has copied about 80% or 85% of the novel. The articles impute that the Defendants lack in integrity and/or dishonourable conduct by copying the novel into their film. This would expose the Defendants to ridicule and lower the Defendants in the estimation of society.” [23] On the premise that the Defendants are well known members of the Malay film industry, and that the allegations on copying affects the Defendants’ professional reputation and honour, the learned Judge awarded the Defendants damages in the sum of RM100,000. Plaintiff Appellant’s Grounds of Appeal [24] The Plaintiff’s grounds of appeal may be summarised as follows:

1. The learned Judge had erred in her finding that the social problem of “bohsia” was a prevalent phenomenon in the 1990’s but not of today.

2. The learned Judge had failed to appreciate that there were glaring similarities between the novel and the Defendants’ movie in respect of the theme, character, plot and underlying message. Thus the movie “Bohsia : Jangan Pilih Jalan Hitam” was not an original work but a copy of the Plaintiff’s novel, “Aku-Bohsia”. 13

3. The learned Judge had erred in fact and law in her finding there was no breach of the Plaintiff’s copyright when the Plaintiff had demonstrated that there was substantial copying (80%) of the Plaintiff’s novel.

4. The learned Judge had erred in her finding that defamation had been proved against the Plaintiff. OUR DECISION [25] After careful consideration of learned counsels’ oral and written submissions and a perusal of the Appeal records, we were of the unanimous opinion that there were merits in this appeal that warrant appellate intervention. Accordingly, we allowed the appeal with costs of RM40,000. We set aside the orders of the learned Judge in respect of both causes of action i.e. infringement of copyright and defamation. We give our reasons below. [26] It is not disputed that the Plaintiff is the author of the novel, “AKU BOHSIA: JANGAN PILIH JALAN HITAM”. It is also not disputed that the Plaintiff’s novel is a literary work within the interpretation of section 3 of the CA 1987, which includes novels, and is eligible for copyright protection pursuant to section 7(3) of the CA 1987 which reads as follows: “A literary, musical or artistic work shall not be eligible for copyright unless:

(1) 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.” [30] In the House of Lords case of Designers Guild Ltd v Russel Williams (Textiles) Ltd. [2000] 1 All ER 700 at 708, Lord Millet had succinctly summarised the essential elements in an action for copyright infringement in the following words (The alleged infringement was in respect of the alleged copying of a fabric design): “The first step in an action for infringement of artistic copyright is to identify those features of the defendant’s design which the plaintiff alleges have been copied from the copyright work. The court undertakes a visual comparison of the two designs, noting the similarities and the differences. The purpose of the examination is not to see whether the overall appearance of the two designs is similar, but to judge whether the particular similarities relied on are sufficiently close, numerous or extensive to be more likely to be the result of copying than of coincidence. It is at this stage that similarities may be disregarded because they are commonplace, unoriginal or consists of general ideas. If the plaintiff demonstrates sufficient similarity, not in the works as a whole but in the features he alleges have been copied, and establishes that the defendant had prior access to the copyright work, the burden passes to the defendant to satisfy the judge that, despite the similarities, they did not result from copying”. 16 [31] The same elements were also referred to in the Malaysian case of Megnaway Enterprise Sdn Bhd v Soon Lian Hock (No. 2) [2009] 2 MLRH 82 at 88. Justice Low Hop Bing had stated the elements which constitute copyright infringement pursuant to sections 36(1) of the CA 1987 in the following way: “The essential elements constituting copyright infringement have been set out by Sir Rymond Evershed MR in Purefoy Engineering Co. Ltd. And Another v Sykes Boxall & Co. Ltd And Others [1955] 72 RPC 89. Prof. Dr. Khaw Lake Tee adopted these elements in Copyright Law in Malaysia [1994] at pp 87 and 88 as follows: For purposes of direct infringement, it must be established that:

(ii) Sexual scenes of the main “bohsia” character. In the novel, Anne Natasha who was drunk only recovered consciousness at 4.a.m to discover that all the “Mat rempit” had had sexual relations with her. Whereas in the movie, Tasha who was a drug addict had sexual relations with all the “Mat rempit” at a rented house.

(iii) In the novel, Anne Natasha attends a ‘tea dance’ with the intention of attempting to drink alcohol. While in the movie, Tasha goes to a disco with the same intention of attempting to drink alcohol.

(iv) In the novel, Anne Natasha who does not go to school and returns home late is scolded and slapped by her parents. Anne Natasha herself had seen her own mother come out of a hotel in Bukit Bintang with a man who was not her father. In the movie, Tasha is evicted from her home by her own mother who threw out her belongings, yet her own mother brings home other men.

(2A) of the CA 1987. Neither can they be termed as commonplace general ideas or mere coincidences. [36] In the case of Saleha Hussin lwn Ab Wahid Nasir & Yang Lain [2004] 2 MLRH 19, the original work was a short story that had been published in a Malay daily. The copied work was a television drama. Justice Abdul Hamid Mohamed, (as he then was) had examined the two works and found, (at p.38): “…Adalah jelas bahawa terdapat persamaan substantif antara kedua-dua “karya” itu. Persamaan yang sebegitu banyak dan penting tidak boleh berlaku secara kebetulan. Ia semestinya disebabkan oleh perbuatan meniru.” [37] We are also of the considered opinion that in arriving at her decision, the learned Judge had placed undue reliance on irrelevant considerations i.e. the 14 year gap between the publication of the novel in 1995 and the release of the movie in 2009 and that the Plaintiff’s suit against the Defendants was only commenced five years later in 2014.

Pursuant to section 18 of the CA 1987, the duration that is protected by copyright is fifty years from the date of publication. 20 Section 18 provides as follows: “Duration of copyright in published editions 18. Copyright which subsists in a published edition under this Act shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the edition was first published”. [38] In addition, the learned Judge had, erroneously in our opinion made a finding that the Plaintiff had failed to demonstrate a causal connection between the original work and the infringing work because, “there was no evidence on the sale of the novel, the number of copies that was sold or whether the said novel is still in the market, 14 years later”. [39] It is worthy of note that evidence of a causal connection can be established directly or indirectly. It is true that in Saleha’s case the causal connection was direct in that the original script had been handed to the Defendant. In this case, the causal connection is indirect in that the original work had been published and was therefore available to the public. Thus the Defendant would have had prior access to the novel. Even if the novel was no longer in the market, it would still presumably be available in libraries and bookstores. If we were to give a restrictive meaning to “causal connection” as the learned Judge did, it would leave a lot of original works unprotected, which is clearly not intended by the CA

1987. 21 [40] In respect of the Defendants’ counterclaim for defamation: In the light of our finding that the Defendants had infringed the Plaintiff’s copyright to his novel, the Plaintiff’s allegation published in his blogs that his work had been copied by the Defendant is protected by the defence of justification. Accordingly, the Defendants’ counterclaim of defamation is not sustainable. We therefore dismissed the order of the learned Judge which found the content of the Plaintiff’s blogs to be defamatory. [41] In conclusion, we allowed the Plaintiff’s appeal as well as the appeal against the finding of defamation. We set aside the orders of the learned Judge in respect of both the copyright action and defamation. We also grant the Plaintiff’s prayers 1, 2, 3, 4 and 6 in the Statement of Claim. (pp. 3-4 of the Appeal Records, Part A Vol.1). We also ordered that general damages be assessed by the learned Judge. We awarded costs of RM40,000 here and below subject to the payment of allocator. Deposit to be refunded to the Appellant. Signed DR. BADARIAH SAHAMID JUDGE, COURT OF APPEAL PUTRAJAYA 29 March 2018 22 COUNSEL/SOLICITORS: FOR THE APPELLANT: TETUAN PERIASAMY & CO. Peguambela & Peguamcara A-1-22, Kompleks Suria Kinrara Persiaran Kinrara Seksyen 3 Taman Kinrara 47170 Puchong SELANGOR FOR THE RESPONDENT: TETUAN CHAMBERS OF SAIFUL DZULHELMI Peguambela & Peguamcara Level 5, Menara ES No. 9, Persiaran Industri Bandar Sri Damansara 52200 KUALA LUMPUR