Measat Broadcast Network Systems Sdn . Bhd. v Loh Chen Huat (WA-24IP-3-01/2025)

LOH CHEN HUAT [I/C No.: 671103-10-6455]

LOO YOONG HAW @ VANCHAI VIROCHPOKHA [I/C No.: 690607-07-5545] …DEFENDANTS 2! ! [Both are partners trading in the name and style of FORTUNE FEAST ENTERPRISE) (Business Registration No.: 201403286378 (002380392-T)] GROUNDS OF JUDGMENT (Enclosure 1 - declaration on copyright infringement pursuant to Section 36 of the Copyright Act 1987) A. INTRODUCTION [1] This is the Plaintiff's application by way of Originating Summons dated 13.01.2025 ("the Originating Summons") pursuant to Sections 13, 36, and 37 of the Copyright Act 1987 ("the Act") for, inter alia, the following reliefs:

A declaration that the Defendants' act of showing, playing, screening, streaming to the public and/or communicating to the public in a business premises or otherwise, the copyrighted works of the Plaintiff, being the whole or a substantial part thereof, and/or causing the aforementioned, without the consent of the Plaintiff as the copyright owner, constitutes an act of copyright infringement pursuant to

An injunction restraining the Defendants, whether by themselves, their servants, agents, or otherwise howsoever, from infringing the Plaintiff's copyright; 3! !

Damages, including statutory damages and additional damages pursuant to Section 37 of the Act. B. BACKGROUND FACTS The Parties [2] The Plaintiff, Measat Broadcast Network Systems Sdn. Bhd., is a company incorporated under the laws of Malaysia which is in the business of providing satellite television broadcasting services under the trade name "ASTRO" ("the Astro Television Service"). The content offered by the Plaintiff to its customers under the Astro Television Service ("Astro Content") comprises, inter alia, the Plaintiff's copyrighted works which are the subject matter of this dispute. [3] The First Defendant, Loh Chen Huat, and the Second Defendant, Loo Yoong Haw @ Vanchai Virochpokha, are Malaysian citizens of full age and capacity who are, at all material times, partners to a partnership trading under the name and style of Fortune Feast Enterprise (Business Registration No.: 201403286378 (002380392- T)) with a principal place of business at Lot TG-PW003, Lower Ground Floor, Main Wing, Tropicana Golf & Country Resort, Jalan Kelab Tropicana, 47410 Petaling Jaya, Selangor ("the Defendants' Business Premises"). The Defendants operate a food and beverage business at the said premises. 4! ! The Plaintiff's Copyrighted Works [4] It is the Plaintiff’s case that it is the copyright owner of the following works ("the Plaintiff's Copyrighted Works"):

Films: Films

Astro Shaw Gemencheh Boys trailer 7 September 2023

Malaysia Super League Match (Penang VS Sabah) on Astro Arena

Artistic Works: Artistic Works Date Made 1. Astro Arena Bola 2 logo 9 February 2023 2. Astro Go logo 31 March 2017 3. Astro Supersport 4 Logo 24 April 2013 5! ! [5] The Plaintiff's case is that on or around 13 October 2023, the Defendants showed, screened, played, and/or streamed, and/or made available the Plaintiff's Copyrighted Works to patrons of the Defendants' Business Premises using streaming devices (colloquially known as "TV boxes"), pirate websites, and/or any other means which allowed access to the Plaintiff's Copyrighted Works without the requisite subscription, authorisation, licence and/or permission of the Plaintiff ("the Unauthorised Streaming Means"). [6] The Plaintiff exhibited, at Exhibit "A-4" of PA1, video evidence which it claims depicts the Plaintiff's Copyrighted Works being communicated to the public and/or performed, shown, or played to the public at the Defendants' Business Premises. The Plaintiff also exhibited, at Exhibit "A-3" of PA1, four statutory declarations made pursuant to Section 42 of the Act, together with the written authorisation of the deponent of the said statutory declarations. [7] The Defendants refuted the Plaintiff’s allegation that they showed, played, or streamed the Plaintiff's Copyrighted Works to the public. The Defendants maintained that their business operations do not require a specific licence or subscription to operate normally. The Defendants further contended that there is no proof that any customer gained access to such works via the Defendants' premises, nor is there any proof of revenue generated from such alleged infringement. 6! ! C. ISSUES FOR DETERMINATION [8] I find the following issues to be determined by this Court:

Whether copyright subsists in the Plaintiff's Copyrighted Works and whether the Plaintiff is the owner of the same;

(ii) Whether the Defendants infringed the Plaintiff's copyright by showing, playing, screening, streaming to the public and/or communicating to the public the Plaintiff's Copyrighted Works without the consent, licence or authorisation of the Plaintiff;

(iii) Whether the Plaintiff is entitled to a declaration of copyright infringement;

(iv) Whether the Plaintiff is entitled to injunctive relief;

Whether the Plaintiff is entitled to damages, including statutory damages and/or additional damages; and

(vi) What is the appropriate quantum of damages, if any, to be awarded. [9] I shall deal with each of these issues in turn. i. WHETHER COPYRIGHT SUBSISTS IN THE PLAINTIFF'S COPYRIGHTED WORKS AND WHETHER THE PLAINTIFF IS THE OWNER OF THE SAME 7! ! [10] The starting point is Section 42 of the Act, which provides a statutory mechanism for proving the subsistence and ownership of copyright. Section 42(1) provides: "(1) An affidavit, certified extracts of the Register of Copyright referred to in section 26B or statutory declaration made before any person having authority to administer an oath by or on behalf of any person claiming to be—

the owner of the copyright in any works eligible for copyright under this Act stating that—

at the time specified therein copyright subsisted in such work;

(ii) he or the person named therein is the owner of the copyright; and

(iii) a copy of the work annexed thereto is the true copy thereof; […] shall be admissible in evidence in any proceedings under this Act and shall be prima facie evidence of the facts contained therein." [11] In Dura-Mine Sdn. Bhd. v. Elster Metering Ltd & Anor [2015] 1 CLJ 887, the Federal Court, per Jeffrey Tan FCJ, upheld the function of section 42 of the Act as a mechanism for establishing prima facie evidence of copyright subsistence and ownership. In Dura-Mine, the Federal Court held that, through the enactment of section 42, Parliament intended to furnish copyright owners with an expedited evidentiary route to substantiate the fundamental elements of a copyright claim, specifically, subsistence and ownership without the necessity for exhaustive initial proof, 8! ! contingent upon the opposing party's right to rebut the prima facie case thus established. [12] The Court of Appeal in DNC Asiatic Holdings Sdn. Bhd. & Ors v. Honda Giken Kogyo Kabushiki Kaisha & Other Appeals [2020] 1 CLJ 799 elaborated on the application of Section 42. The Court of Appeal held that section 42 of the Act a statutory mechanism for proving authorship of the works in question. Once a prima facie case is established by affidavit or statutory declaration, the evidential burden shifts to the opposing party, who must adduce factual evidence casting doubt on the subsistence of copyright. [13] The significance of the above authorities clear in that once a statutory declaration complying with Section 42 of the Act is produced, it constitutes prima facie evidence of the facts stated therein. The evidential burden then shifts to the party challenging the subsistence or ownership of copyright to adduce factual evidence to dislodge the prima facie case. Mere bare denials, without more, will be insufficient for this purpose. This is entirely consistent with the legislative intent underlying Section 42, which was designed to facilitate the enforcement of copyright by providing a presumptive evidentiary mechanism, whilst preserving the right of a defendant to mount a substantive challenge where genuine grounds exist. [14] In the present case, the Plaintiff has exhibited, at Exhibit "A-3" of PA1, four statutory declarations made pursuant to Section 42 of the Act. These statutory declarations contain affirmations that: 9! !

The Plaintiff is the owner of the copyright in the Plaintiff's Copyrighted Works, which comprise the following: Films: Films Date Made 1. Astro Shaw Gemencheh Boys trailer 7 September 2023

Malaysia Super League Match (Penang VS Sabah) on Astro Arena Bola 2 30 July 2023 Artistic Works: Artistic Works Date Made 1. Astro Arena Bola 2 logo 9 February 2023 2. Astro Go logo 31 March 2017 3. Astro Supersport 4 Logo 24 April 2013 10! !

Copyright subsisted in the Plaintiff's Copyrighted Works at the dates specified therein; and

The copies of the Plaintiff's Copyrighted Works annexed thereto are true copies thereof. [15] The Plaintiff has also exhibited a copy of the written authorisation authorising the deponent of the statutory declarations to affirm the same, in compliance with Section 42(2) of the Act. I note that the Plaintiff has been meticulous in ensuring compliance with the requirements of Section 42(2), which mandates that any person authorised to act on behalf of the copyright owner for the purposes of Section 42(1) shall produce such authorisation in writing. The production of this written authorisation further fortifies the admissibility and probative value of the statutory declarations. [16] In the premises, I find that the Plaintiff has duly complied with all the statutory requirements under Section 42 of the Act. The statutory declarations are admissible in evidence and constitute prima facie evidence that copyright subsists in the Plaintiff's Copyrighted Works and that the Plaintiff is the owner of the same. In reaching this finding, I have considered the totality of the statutory declarations wherein each of which addresses a specific category of the Plaintiff's Copyrighted Works. After having done so, and am satisfied that they collectively and individually meet the threshold prescribed by Section 42(1)(a)(i), (ii), and (iii) of the Act. [17] The burden then shifts to the Defendants to adduce factual evidence to rebut or dislodge this prima facie case. I observe that the 11! ! Defendants' Affidavit in Reply (Enclosure 5), affirmed by the 2nd Defendant on 13.05.2025, contains nothing more than bare denials. The Defendants have not adduced any factual evidence to doubt the Plaintiff's copyright in the Copyrighted Works, nor have they proffered any meaningful or substantive rebuttal to challenge the Plaintiff's averments in the statutory declarations. The Defendants' Affidavit in Reply does not include any documentary exhibits whatsoever. I note, in particular, that the Defendants have not: a. challenged the authenticity or validity of the statutory declarations; b. disputed the identity of the deponent or the authority under which the statutory declarations were made; c. adduced any evidence to suggest that the Plaintiff is not the author or owner of the Copyrighted Works; d. produced any evidence of a competing claim to ownership of the said works; or e. raised any positive averment whatsoever to undermine the substance of the statutory declarations. [18] In this respect, I refer to Rock Records (M) Sdn Bhd v. Audio One Entertainment Sdn Bhd [2005] 3 MLJ 552, where the High Court explained that bare denials are insufficient to challenge prima facie evidence: 12! ! "Mere bare denials are insufficient without more… In my judgment, bare denials in the statement of defence and in the defendant's affidavits are insufficient to challenge or rebut or dislodge the prima facie evidence adduced in the plaintiff's affidavits and the statutory declarations. In my judgment, the plaintiff has successfully established that copyright subsists in the works in Malaysia." [19] The position is that, although a court should not ordinarily resolve conflicts of affidavit evidence, it is not required to accept bare assertions or denials at face value. Where an affidavit is equivocal, imprecise, inconsistent with undisputed contemporaneous documents or the deponent’s own statements, or inherently improbable, the court may reject it as insufficient to raise a genuine triable issue. This principle was laid down by Lord Diplock in Eng Mee Yong & Ors v V Letchumanan [1979] 2 MLJ 212, where His Lordship observed: "Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be." [20] A similar position was echoed by the Supreme Court in Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ 400, where the Court held: 13! ! "Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. In our opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application…" [21] While the above authorities were decided in the context of applications for summary judgment under Order 14 of the Rules of the High Court 2012, the present proceedings, being commenced by way of Originating Summons and determined on affidavit evidence, fall squarely within the ambit of this principle. I am therefore duty-bound not to accept uncritically the Defendants' bare denials as raising genuine disputes of fact, particularly where such denials are equivocal, lacking in precision, and unsupported by any documentary evidence or positive averments. [22] Applying the foregoing principles to the present case, I find that the Defendants' bare denials in their Affidavit in Reply carry no probative value and are wholly insufficient to rebut or dislodge the prima facie evidence established by the Plaintiff's statutory declarations made pursuant to Section 42 of the Act. The Defendants have failed to discharge the evidential burden which shifted to them upon the Plaintiff's establishment of the prima facie case. The absence of any documentary exhibits in the Defendants' Affidavit in Reply is particularly telling and, in my view, fortifies the inference that the 14! ! Defendants do not have any genuine or bona fide answer to the Plaintiff's case on the issue of subsistence and ownership of copyright. [23] In the face of the Plaintiff's compliance with Section 42 of the Act, coupled with the Defendants' failure to adduce any factual evidence to rebut the prima facie case, I am satisfied and I find affirmatively that the Plaintiff is the owner of such copyright. ii. WHETHER THE DEFENDANTS’ INFRINGED THE PLAINTIFF'S COPYRIGHT [24] Section 13(1) of the Act prescribes the exclusive rights available to a copyright owner: "13. (1) Copyright in a literary, musical or artistic work, a film, or a sound recording or a derivative work shall be the exclusive right to control in Malaysia—

the reproduction in any material form; (aa) the communication to the public;

the performance, showing or playing to the public; …

the distribution of copies to the public by sale or other transfer of ownership; and

the commercial rental to the public, of the whole work or a substantial part thereof, either in its original or derivative form…" [25] Section 36(1) of the Act further provides that: 15! ! "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." [26] The combined effect of Sections 13 and 36 of the Act is that any person who, without the licence of the copyright owner, communicates to the public and/or performs, shows, or plays to the public the whole or a substantial part of a copyrighted work infringes the copyright in that work. [27] Learned counsel for the Plaintiff submitted that the Defendants' actions have resulted in an infringement of the Plaintiff's exclusive rights to control in Malaysia wherein there is elements of communication to the public of the Plaintiff's Copyrighted Works. [28] "Communication to the public" is defined in Section 3 of the Act as follows: "the transmission of a work or performance through wire or wireless means to the public, including the making available of a work or performance to the public in such a way that members of the public may access the work or performance from a place and at a time individually chosen by them" [29] Learned counsel for the Plaintiff submitted that the definition of "communication to the public" under Section 3 of the Act is sufficiently broad to include the Defendants' acts. This is primarily because the “unauthorised streaming means” allows the Defendants to communicate or transmit the Plaintiff's Copyrighted 16! ! Works to the public (i.e., the patrons of the Defendants' Business Premises). [30] Learned counsel placed heavy reliance on the case of The Football Association Premier League Ltd & Anor v Bar Theory Sdn Bhd & Ors [2023] 9 MLJ 16, wherein it was held that the defendants’ acts of showing, playing, screening, and streaming the copyrighted works through a set-top box set up in a business establishment to its patrons constitute, among others, communication to the public under Section 13(1)(aa) of the Act. [31] In The Football Association Premier League, the High Court recognised the parallel between, on the one hand, Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ("Directive 2001/29") and Sections 20(1) and (2) of the UK Copyright, Designs and Patents Act 1998, and, on the other hand, Section 13 of the Copyright Act 1987. Accordingly, the High Court drew support from European Union and United Kingdom jurisprudence in expounding the principles governing "communication to the public." [32] Upon perusal and analysis of the relevant authorities, the High Court in The Football Association Premier League held as follows: "[25] I would therefore agree with the plaintiffs’ submissions that:

by making available the copyrighted works at their restaurant bar without the consent or licence of any of 17! ! the plaintiffs, the defendants have intervened by enabling a direct link to be established between unauthorised sources of the copyrighted works and the patrons, without which they would not have access to the copyrighted works. Thus, the defendants’ acts constitute an act of communication;

that act of communication is to the public, because it is aimed at the patrons, indeterminate but more than de minimis number in number;

that communication was to a segment of the public not contemplated by the plaintiffs when they authorised the initial communication of the copyrighted works. That initial authorisation was for transmission to subscribers of the second plaintiff’s services via Astro, to receive such transmissions only in their own private or family circles. Thus, the defendants’ transmission was to a ‘new public’; and

though not a critical prerequisite, the defendants’ said communication was clearly designed to attract more customers and therefore increase the number of patrons. Being a restaurant bar, that would further positively affect the defendants’ F&B business and ultimately, its profitability thus calculated with a view to enhancing their profits." "[26] I would therefore hold that the defendants’ acts of showing, playing, screening, streaming the copyrighted works on a set-top box set up in the establishment to its patrons was a communication to the public under s 13(1)(aa) of the Act." [33] Learned counsel for the Plaintiff submitted that the facts of the present case are on all fours with the case of The Football Association Premier League. Pertinently, learned counsel 18! ! submitted that the following parallels may be drawn between the present case and the case of The Football Association Premier League, namely: a) The Defendants in the instant case, by making available the Plaintiff's Copyrighted Works at the Defendants' Business Premises without the consent or licence of the Plaintiff, have intervened by enabling a direct link to be established between unauthorised sources of the Plaintiff's Copyrighted Works and the patrons of the Defendants' Business Premises, without which the said patrons would not have access to the Plaintiff's Copyrighted Works. Hence, the Defendants' acts constitute an act of communication; b) The Defendants' act of communication is aimed at the patrons of the Defendants' Business Premises, who are an indeterminate but more than de minimis number of potential recipients, and are so to be considered “the public”, in the same way that the patrons of the restaurant bar in the case of case of The Football Association Premier League were “the public”; c) Through the unauthorised streaming means, the Plaintiff's Copyrighted Works were communicated to the patrons of the Defendants' Business Premises, that is to say a segment of the public which was not taken into account by the Plaintiff when they authorised the initial communication of the Plaintiff's Copyrighted Works. That initial authorisation permitted only the transmission of the Copyrighted Works to individual subscribers to the Astro Television Service, to receive such transmissions only in their 19! ! own private or family circles. Therefore, the Unauthorised Streaming Means resulted in the Plaintiff’s Copyrighted Works being communicated to a “new public”; and d) Further, the communication of the Plaintiff's Copyrighted Works at the Defendants' Business Premises would likely attract customers to whom the works transmitted are of interest. Consequently, the transmission in question has an effect upon the number of people patronizing the Defendants' Business Premises and, ultimately, on its profitability. Therefore, the Defendants’ acts were carried out with a view of enhancing their profits. [34] For the reasons cited above, it is the Plaintiff’s position that the principles and ratio of the judgment in The Football Association Premier League ought to be applied with equal force in the present case. [35] Learned counsel for the Plaintiff also relied on the decision of the Court of Justice of the European Union (CJEU) in the case of Football Association Premier League Ltd and others v QC Leisure and others; Murphy v Media Protection Services Ltd (Joined Cases C-403/08 and C-429/08) [2012] Bus. L.R. 1321. In the said case, a preliminary ruling was requested from the CJEU on the interpretation of, among others, Article 3(1) of Directive 2001/29/EC concerning, inter alia, the act of transmission of copyright works in a public house. 20! ! [36] It is pertinent to note that one of the questions referred to the CJEU for a preliminary ruling was as follows: "Whether "communication to the public" within the meaning of article 3(1) of the Copyright Directive must be interpreted as covering transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house." [37] For context, Article 3(1) of Directive 2001/29 reads as follows: "1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them." [38] Recital 23 of Directive 2001/29 reads as follows: “(23) This Directive should harmonise further the author's right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting.” [39] Upon a detailed analysis and consideration of the question posed to it, the CJEU held that the concept of "communication to the public" within Article 3(1) of Directive 2001/29 ought to be construed 21! ! broadly, as referring to any transmission of the protected works, irrespective of the technical means or process used; and the work must be transmitted to a new public. [40] Accordingly, the CJEU held that the transmission of the copyrighted work via a television screen and speakers to the customers present in a public house constitutes "communication to the public": 195 In Case C-403/08, the proprietor of a public house intentionally gives the customers present in that establishment access to a broadcast containing protected works via a television screen and speakers. Without his intervention the customers cannot enjoy the works broadcast, even though they are physically within the broadcast's catchment area. Thus, the circumstances of such an act prove comparable to those in the SGAE case. 196 Accordingly, it must be held that the proprietor of a public house effects a communication when he intentionally transmits broadcast works, via a television screen and speakers, to the customers present in that establishment. 197 That said, in order for there to be a "communication to the public" within the meaning of article 3(1) of the Copyright Directive in circumstances such as those of the main proceedings, it is also necessary for the work broadcast to be transmitted to a new public, that is to say, to a public which was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public: see, to this effect, the SGAE case, [2007] Bus LR 521, paras 40 and 42,… 22! ! 198 When those authors authorise a broadcast of their works, they consider, in principle, only the owners of television sets who, either personally or within their own private or family circles, receive the signal and follow the broadcasts. Where a broadcast work is transmitted, in a place accessible to the public, for an additional public which is permitted by the owner of the television set to hear or see the work, an intentional intervention of that kind must be regarded as an act by which the work in question is communicated to a new public: see, to this effect, the SGAE case, para 41, … 199 That is so when the works broadcast are transmitted by the proprietor of a public house to the customers present in that establishment, because those customers constitute an additional public which was not considered by the authors when they authorised the broadcasting of their works. … 204 Finally, it is to be observed that it is not irrelevant that a "communication" within the meaning of article 3(1) of the Copyright Directive is of a profit-making nature: see, to this effect, the SGAE case, para 44. 205 In a situation such as that in the main proceedings, it is indisputable that the proprietor transmits the broadcast works in his public house in order to benefit therefrom and that that transmission is liable to attract customers to whom the works transmitted are of interest. Consequently, the transmission in question has an effect upon the number of people going to that establishment and, ultimately, on its financial results. 23! ! 206 It follows that the communication to the public in question is of a profit-making nature. 207 In light of all the foregoing, the answer to the question referred is that "communication to the public" within the meaning of article 3(1) of the Copyright Directive must be interpreted as covering transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house. " [Underlined emphasis added] [41] Learned counsel for the Plaintiff highlighted that the aforementioned position was similarly adopted in the recent case of Warner Music UK Ltd and another v TuneIn Inc [2021] EWCA Civ 441 at [70], wherein the English Court of Appeal, citing voluminous European Union jurisprudence, explained "communication to the public" as follows: a) "Communication to the public” involves two cumulative criteria: first, an "act of communication” of a work, and secondly, the communication of that work to a "public". b) A user makes an act of "communication” when it intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, particularly where, in the absence of that intervention, those customers would not be able to enjoy the work, or would be able to do so only with difficulty. It is sufficient for there to be "communication” that the work is made available to the public in such a way 24! ! that the persons forming that public may access it, whether or not those persons actually access the work. c) "The public” refers to an indeterminate number of potential recipients and implies a fairly large number of persons. "Indeterminate” means not restricted to specific individuals belonging to a private group; and "‘a fairly large number of people” indicates that the concept of "public” encompasses a certain de minimis threshold, which excludes from the concept groups of persons which are too small, or insignificant. My Findings [42] On the issue of communication to the public, section 13(1)(aa) of the Act confers upon the copyright owner the exclusive right to control the "communication to the public" of the whole work or a substantial part thereof. The expression "communication to the public" is, in turn, defined in Section 3 of the Act as: "the transmission of a work or performance through wire or wireless means to the public, including the making available of a work or performance to the public in such a way that members of the public may access the work or performance from a place and at a time individually chosen by them" [43] A plain reading of the statutory definition reveals that Parliament has couched it in expansive terms. The use of the phrase "through wire or wireless means" is technologically neutral and is capable of 25! ! capturing a wide spectrum of transmissions, whether they originate from a satellite broadcast, an internet stream, a set-top box, or any other digital streaming device. The legislative intent, in my view, is unmistakably to ensure that the copyright owner's exclusive right is not circumvented by the mere ingenuity of the technology used by an infringer. [44] I accept the Plaintiff's submission that the principles governing "communication to the public" as expounded in The Football Association Premier League are directly applicable to the present case. In that case, the High Court squarely recognised that the showing, playing, screening or streaming of copyrighted works through a set-top box installed in a business establishment to its patrons amounts to communication to the public under Section 13(1)(aa) of the Act. [45] I also accept that the parallelism drawn by the High Court in The Football Association Premier League between Section 13 of the Copyright Act 1987 and Article 3(1) of Directive 2001/29/EC, together with Section 20 of the UK Copyright, Designs and Patents Act 1988, is an entirely sound interpretive approach. Where local statutory provisions are framed in terms substantially similar to those in foreign jurisdictions, it is permissible for this Court to draw guidance from the well-developed jurisprudence of the CJEU and the courts of the United Kingdom. [46] Drawing from the CJEU's decision in Football Association Premier League Ltd and others v QC Leisure and others; 26! ! Murphy v Media Protection Services Ltd (supra), the following principles emerge and are applicable to the present case:

The concept of "communication to the public" must be construed broadly to encompass any transmission of protected works, regardless of the technical means or process employed;

There must be an "act of communication" by the user, who must intervene with full knowledge of the consequences of his action to give his customers access to the protected work, where, in the absence of such intervention, those customers would not enjoy the work;

The work must be transmitted to a "new public" — that is, a public not contemplated by the copyright owner when authorising the original communication;

The profit-making nature of the communication, while not determinative, is a relevant consideration. [47] These principles were further crystallised by the English Court of Appeal in Warner Music UK Ltd and another v TuneIn Inc (supra), which articulated the two cumulative criteria of (i) an act of communication and (ii) communication to a public. [48] Applying the above principles to the undisputed and prima facie facts before me, the video evidence exhibited in Exhibit "A-4" of the Plaintiff's Affidavit in Support (Encl. 2) clearly depicts the Plaintiff's 27! ! Copyrighted Works being streamed and displayed at the Defendants' Business Premises through what the Plaintiff has characterised as "unauthorised streaming means" (i.e., streaming devices commonly referred to as TV boxes and/or pirate websites). It is significant that the Defendants, in their Affidavit in Reply (Encl. 5), have not advanced any positive averment denying that the videos depict their premises, nor have they exhibited any documentary evidence to controvert the Plaintiff's evidence on this point. The Defendants' position is confined to bare denials and the assertion that their business operations "do not require" any subscription or licence, an assertion which, with respect, misses the point entirely. [49] I am persuaded by the Plaintiff's submission that the issue is not whether the Defendants subjectively believed a licence was required, but whether they in fact held one. It is undisputed on the affidavit evidence that the Defendants did not, at any material time, possess any subscription, licence or authorisation from the Plaintiff to show, screen, play or stream the Plaintiff's Copyrighted Works. [50] I therefore find that the Defendants, by causing the Plaintiff's Copyrighted Works to be displayed on television screens at the Defendants' Business Premises through the Unauthorised Streaming Means, have intervened in full knowledge of the consequences of their actions to give their patrons access to the Plaintiff's Copyrighted Works. Without such intervention, the patrons of the Defendants' Business Premises would not have been able to enjoy the said works at the Defendants' Business Premises. This satisfies the first limb of the test, namely, an "act of communication". 28! ! [51] The Defendants' Business Premises, being a food and beverage outlet located at Tropicana Golf & Country Resort, is, by its very nature, a place open to the patronage of an indeterminate number of customers. The patrons constitute a "fairly large number of persons" not limited to any private or family group. They plainly fall within the meaning of "the public" as elucidated in Warner Music UK Ltd v TuneIn Inc (supra). [52] Further, applying the "new public" doctrine articulated by the CJEU, the patrons of the Defendants' Business Premises constitute a public not contemplated by the Plaintiff when its Copyrighted Works were originally made available. The Plaintiff, as the copyright owner and broadcaster of the Astro Television Service, authorises its content to be received by individual subscribers within their private or domestic circles. Patrons of a commercial food and beverage establishment plainly fall outside that contemplated audience and constitute an "additional public" or "new public" to whom the Plaintiff did not consent to communicate its works. [53] While the Defendants have submitted that there is no proof of revenue specifically generated from the alleged infringement, this argument, with respect, misapprehends the legal test. As made clear by the CJEU in QC Leisure and Murphy (at paragraphs 204– 206), the relevant question is not whether direct revenue can be traced to the act of communication, but whether the transmission is liable to attract customers and have an effect on the financial results of the establishment. The display of attractive content such as live football matches (e.g., the Malaysia Super League Match between 29! ! Penang and Sabah on Astro Arena Bola 2) and entertainment programming (e.g., the Astro Shaw Gemencheh Boys trailer) at a food and beverage outlet inherently serves to attract and retain patrons. The communication thus bears a profit-making character. [54] I have carefully considered the Defendants' contentions in their Written Submission, namely that: a. Mere ownership or use of electronic devices in a food and beverage business does not, in itself, constitute infringement; b. There is no proof that any customer gained access to the works via the Defendants' premises; and c. There is no proof of revenue generated from the alleged infringement. [55] These contentions are, in my view, unsustainable for the following reasons: i. First, the Plaintiff's case is not premised on the bare ownership of electronic devices. Rather, the Plaintiff's case is grounded in the actual act of streaming and displaying the Plaintiff's Copyrighted Works at the Defendants' Business Premises, captured on video evidence which remains uncontroverted. ii. Second, the requirement under the Section 3 definition is that the work be "made available to the public in such a way that 30! ! members of the public may access" it. It is not necessary for the Plaintiff to prove that any particular customer actually viewed the content. The making available is sufficient, and this is consistent with the principles in Warner Music v TuneIn. iii. Third, the absence of identifiable revenue specifically tied to the infringement does not negate the profit-making character of the act, for the reasons already explained. [56] For the reasons set out above, I find that the Defendants have communicated the Plaintiff's Copyrighted Works to the public within the meaning of Section 3 read with Section 13(1)(aa) of the Act. The Defendants' acts of streaming and making available the Plaintiff's Copyrighted Works through the Unauthorised Streaming Means at the Defendants' Business Premises, without the licence, consent or authorisation of the Plaintiff, constitute an infringement of the Plaintiff's exclusive right under Section 13(1)(aa) of the Act. iii) Whether the Defendants' Acts Constitute "Performance, Showing or Playing to the Public" under the Copyright Act 1987 [57] Under this heading, learned counsel for the Plaintiff submitted that the Defendants' actions have also resulted in an infringement of the Plaintiff's exclusive rights to control in Malaysia, the performance, showing or playing to the public of the Plaintiff's Copyrighted Works. [58] Authority for the aforementioned proposition can be found in the judgment of The Football Association Premier League wherein 31! ! the High Court, citing various European Union, English, and Australian jurisprudence, held that "the defendants' acts of showing, playing, screening, streaming the copyrighted works on a set-top box set up in the establishment to its patrons was also performance, showing or playing to the public under s 13(1)(b) of the Act." [59] To further support the Plaintiff's position, learned counsel referenced several authorities that collectively define and expand upon the concepts of "performance" and "in public" under copyright law. [60] First, regarding the statutory framework, counsel drew the Court's attention to Football Association Premier League v QC Leisure (supra). The position established in this case is that Sections 19 and 20 of the Copyright, Designs and Patents Act 1988 are not mutually exclusive but have a clear overlap. Kitchin LJ held that transmitting a broadcast to members of the public in a commercial setting like a pub constitutes both a "communication to the public" under s.20 and a "showing or playing in public" of the underlying film under s.19. This authority is cited to demonstrate that the Defendants' acts of broadcasting fall squarely within these infringing categories. [61] For context, Sections 19 and 20 of the Copyright, Designs and Patents Act 1988 read as follows: "19 Infringement by performance, showing or playing of work in public. 32! !

The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work.

In this Part “performance”, in relation to a work—

includes delivery in the case of lectures, addresses, speeches and sermons, and

in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film or broadcast of the work.

The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film or broadcast.

Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement. "20 Infringement by communication to the public

The communication to the public of the work is an act restricted by the copyright in—

a literary, dramatic, musical or artistic work,

a sound recording or film, or

a broadcast.

References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—

the broadcasting of the work;

the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them. 33! ! [62] Based on the authorities cited above, learned counsel for the Plaintiff submitted that the Defendants’ acts constitute performance, showing and/or playing of the Plaintiff's Copyrighted Works. Learned counsel submitted that in the present case, such performance, showing or playing were made in public. [63] Second, to define the scope of the phrase "in public," counsel relied on the judgment in Rank Film Production Ltd v Dodds (Trading as Town & Country Motel) (1983) 2 IPR 113. The legal position here is that the term "public" is construed broadly and includes any portion of the public, however small. The court held that a performance is "in public" if it is performed to the public of the copyright owner, meaning it is not restricted to a truly private or domestic circle. This authority is relied upon by the Plaintiff to argue that the Defendants' audience, regardless of its size, qualifies as a "public." In Rank Film Production Ltd, it was held that: "The words "in public" in s 86(b) must be construed in the context of the history of the copyright legislation and the case law (a summary of which is to be found in the judgment of Lord Wright in Jennings v Stephens, supra, esp at 475). Performance “in public” means performance to the public of the owner of the copyright, and “public” includes a portion of the public, however small". [Emphasis Added] [64] This broad interpretation is reinforced by the case of Performing

Right Society Ltd. v Harlequin Record Shops Ltd. [1979] 1 WLR The position from this case is that a performance to an 34! ! audience in a commercial premises open to the public, with the goal of generating profit, can only be described as a performance "in public." The court rejected attaching a special, narrow meaning to the term and instead applied its ordinary usage. In the case of Performing Right Society Ltd., Brown-Wilkinson J (as His Lordship then was) held at 857 - 858 as follows: "But in my judgment it is not a correct use of authority to lift passages from judgments dealing with performances capable of being described as being either public or private and to rely on them as authority for treating the words "in public” as not extending to a performance which on any normal meaning of the words could not be treated as anything but "public.” In my judgment a performance given to an audience consisting of the persons present in a shop which the public at large are permitted, and indeed encouraged, to enter without payment or invitation, with a view to increasing the shop owner's profit, can only properly be described as a performance "in public.” I do not think the decisions relied on provide any authority for attaching to the words "in public” a special meaning which, in ordinary usage, they cannot bear." [Underlined emphasis added] [65] Finally, to define what constitutes a "performance," counsel referenced Performing Right Society v Hammond's Bradford Brewery Co. [1934] and Ernest Turner Electrical Instruments [1943]. The established position from these cases is that a "performance" occurs when a party makes a copyright work audible to a audience beyond a domestic circle, including in commercial and 35! ! even industrial settings like hotels and factories. This includes both direct performance and the authorization of such an act. These authorities are cited to demonstrate that the Defendants' use of equipment to transmit the works to their patrons constitutes a performance. The English Court of Appeal opined at pages 133 - 134 as follows: "Bearing those sections in mind, what did the defendants do? By the use of what I have called an installation, they made this performance at Hammersmith audible to a larger number of persons than would otherwise have heard it and to persons outside the domestic circle of the George Hotel. It was at the instance of the management that steps were taken to provide this entertainment. It appears to me that that act on the part of the management constituted on their part either a performance or the authorization of a performance." [See also Ernest Turner Electrical Instruments, Limited v Performing Right Society, Limited.; Performing Right Society, Limited v. Gillette Industries, Limited. [1943] Ch. 167, where even the playing of music by the employer for their worker at a factory was held to constitute "performance in public"] [Underlined Emphasis Added] [66] Based on the authorities cited above, learned counsel for the Plaintiff submitted that the Defendants’ acts constitute a 36! ! performance, showing, and/or playing of the Plaintiff's Copyrighted Works, and that such acts were unequivocally made in public. My Findings [67] In addressing this issue, namely, whether the Defendants have, in addition to communicating the Copyrighted Works to the public, performed, shown or played the said works to the public in contravention of Section 13(1)(b) of the Act, I am cognisant of the fact that section 13(1)(b) of the Act confers upon the copyright owner the exclusive right to control "the performance, showing or playing to the public" of the whole or a substantial part of the work, whether in its original or derivative form. [68] It is important to appreciate that this right is conceptually distinct from, although it may overlap factually with, the right of communication to the public under Section 13(1)(aa). Whereas "communication to the public" is concerned with the transmission of works to a public not present at the place where the communication originates, "performance, showing or playing to the public" addresses the on-site presentation of the works to a public physically present at the place of performance. [69] In the present case, the two rights operate concurrently: the Defendants' acts of streaming the Plaintiff's Copyrighted Works through Unauthorised Streaming Means amount to communication to the public, while the simultaneous showing or playing of those works on television screens to the patrons physically present at the 37! ! Defendants' Business Premises amount to a showing or playing of the works to the public. [70] I am satisfied, on the affidavit evidence before me, that the Plaintiff's Copyrighted Works comprising the films (the Astro Shaw Gemencheh Boys trailer and the Malaysia Super League Match between Penang and Sabah on Astro Arena Bola 2) and the artistic works (the Astro Arena Bola 2 logo, the Astro Go logo and the Astro Supersport 4 logo) were shown and played at the Defendants' Business Premises on or around 13 October 2023. [71] The video evidence exhibited at Exhibit "A-4" of the Plaintiff's Affidavit in Support unambiguously depicts the Plaintiff's Copyrighted Works being displayed on the screens at the Defendants' Business Premises. The artistic works (the various Astro channel logos) were visibly displayed on the screens, and the films were shown and played to the patrons present. [72] The patrons of a commercial food and beverage outlet such as the Defendants' Business Premises plainly constitute "the public" within the meaning of Section 13(1)(b). They are not a limited group of family members or invitees within a private or domestic setting, but rather an indeterminate group of paying customers. [73] It is undisputed that the Defendants did not at any material time hold any subscription, licence or authorisation from the Plaintiff to show, play or stream the Plaintiff's Copyrighted Works at the Defendants' Business Premises. The Defendants' assertion that their business operations "do not require" such a licence or subscription is, with 38! ! respect, untenable. The requirement of a licence or authorisation is not a function of the Defendants' subjective view of their business needs. Rather, it is a legal requirement imposed by Section 36(1) of the Act, which provides that copyright is infringed by any person who does, or causes any other person to do, without the licence of the owner of the copyright, any act controlled by the copyright. [74] In coming to my findings on the above issue, I have been mindful that the Plaintiff's claim must necessarily rest upon the foundation that copyright subsists in the Copyrighted Works and that the Plaintiff is the owner thereof. On this front, the Plaintiff has exhibited four (4) statutory declarations made pursuant to Section 42 of the Act affirming, inter alia, the subsistence of copyright in the Copyrighted Works, the Plaintiff's ownership thereof, and annexing true copies of the said works. Pursuant to Section 42, those statutory declarations are admissible in evidence and constitute prima facie evidence of the facts contained therein. [75] As held by the Court of Appeal in DNC Asiatic Holdings (supra), once a prima facie case has been established by way of a statutory declaration under Section 42, the burden shifts to the Defendants to lead factual evidence to doubt the subsistence of copyright. The Defendants in the present case have adduced no such evidence. Their challenge is confined to bare denials. Accordingly, I find that the Plaintiff has discharged its burden of establishing the subsistence of copyright in the Plaintiff's Copyrighted Works and the Plaintiff's ownership of the same. 39! ! [76] For the reasons set out above, I find that the Defendants have performed, shown or played the Plaintiff's Copyrighted Works to the public within the meaning of Section 13(1)(b) of the Act. The Defendants' acts of displaying the Plaintiff's Copyrighted Works on television screens at the Defendants' Business Premises to their patrons, without the licence, consent or authorisation of the Plaintiff, constitute an infringement of the Plaintiff's exclusive right under Section 13(1)(b) of the Act. iv) WHETHER THE DEFENDANTS ACTS CONSTITUTE COPYRIGHT INFRINGEMENT [77] In the High Court case of Megnaway Enterprise Sdn Bhd v Soon Lian Hock (sole proprietor of the firm Performance Audio & Car Accessories Enterprise) [2009] 3 MLJ 525, the principles of infringement were discussed as below: “The essential elements constituting copyright infringement have been set out by Sir Rymond Evershed MR in Purefoy Engineering Co Ltd v Sykes Boxall & Co Ltd (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:

there is sufficient objective similarity between the original work or a substantial part thereof, and the infringing copy; 40! !

there is a causal connection between the original work and the infringing copy, that is, the infringing copy must have been copied from the original work, whether directly or indirectly; and

what has been infringed must constitute a Substantial Part of The Original Work. [78] There could be infringement even though the imitation is not an exact replica. It does not matter whether the size of the copy has been increased or reduced, or whether the whole or part of the original was copied. There need not be an exact reproduction, but there must be a high degree of similarity between the two: AUVI Trademark per Chao Hick Tin J. [79] In copyright law, once substantial similarity is established, a prima facie presumption of copying by the defendant arises and the burden is shifted to the defendant to rebut the causal connection. Where the defendant has failed to rebut this presumption, the second element is fulfilled. [80] The third element ie whether what has been infringed was a substantial part of the plaintiffs work, has been dealt with in Longman Malaysia Sdn Bhd v Pustaka Delta Pelajaran Sdn Bhd [1987] 2 MLJ 359at p 364. Gunn Chit Tuan J (later CJ(M)) held that this is a matter of fact and degree, not because of the physical amount of the reproduction but because of the substantial significance of that which was copied.” 41! ! [81] However, it is important to appreciate that the Megnaway formulation, while instructive for cases involving the reproduction right under Section 13(1)(a), does not represent the exclusive test for all categories of infringement. In the present case, the Plaintiff's primary complaint is not one of reproduction, but rather the public communication and/or the public performance, showing or playing of the Plaintiff's Copyrighted Works, which engage the exclusive rights under Sections 13(1)(aa) and 13(1)(b) of the Act. For such acts, the relevant inquiry is whether the Defendants communicated to the public and/or performed, showed, or played to the public the Plaintiff's Copyrighted Works, or a substantial part thereof, without the licence of the Plaintiff as the copyright owner. [82] In Motordata Research Consortium Sdn. Bhd. v. Ahmad Shahril bin Abdullah & Ors [2017] 7 AMR 560, the High Court confirmed the application of Section 36(1), emphasising that copyright is infringed by any person who does, without the licence of the copyright owner, an act the doing of which is controlled by copyright under the Act. [83] I now turn to examine the evidence adduced by the Plaintiff in support of its claim of copyright infringement. [84] First, the Plaintiff has exhibited, at Exhibit "A-4" of PA1, video evidence which it claims depicts the Plaintiff's Copyrighted Works being communicated to the public and/or performed, shown, or played to the public at the Defendants' Business Premises on or about 13 October 2023. The video evidence shows the Plaintiff's Copyrighted Works, specifically, the films and artistic works 42! ! enumerated at paragraph [5] above being displayed on screens at the Defendants' Business Premises. This evidence was affirmed by the Plaintiff's deponent, Simon John Hamilton Wilkes, on oath. [85] Second, the Plaintiff's evidence, as deposed in PA1, is that the Defendants used Unauthorised Streaming Means, specifically streaming devices colloquially known as "TV boxes," pirate websites, and/or other means to access and display the Plaintiff's Copyrighted Works without the requisite subscription, authorisation, licence, or permission of the Plaintiff. [86] Third, it is not disputed, and this is critical, that the Defendants did not, at any material time, have a valid subscription and/or licence from the Plaintiff to show, screen, play, stream, and/or make available the Plaintiff's Copyrighted Works. The Defendants have not adduced any evidence of any such subscription or licence. The Defendants' assertion that their business operations "do not require" such licence or subscription to operate normally is, with respect, beside the point. The relevant question is not whether the Defendants' business requires a licence, but whether the Defendants in fact had a licence from the Plaintiff to show, screen, play, stream, and/or communicate the Plaintiff's Copyrighted Works to the public. On this point, the evidence is unequivocal — they did not. [87] Against the Plaintiff's evidence, the Defendants merely deny, in general terms, that they showed, played, or streamed the Plaintiff's Copyrighted Works to the public. Crucially, however, the Defendants' Affidavit in Reply: 43! ! a. Contains nothing more than bare denials; b. Does not include any documentary exhibits whatsoever; c. Does not contain any positive averment that the video evidence produced by the Plaintiff does not depict the Defendants' Business Premises; d. Does not produce any evidence to contradict the Plaintiff's position or to contest the admissibility of the Plaintiff's evidence, in particular Exhibit "A-4" of PA1; and e. Does not adduce any evidence that the Defendants had a valid subscription or licence from the Plaintiff at all material times. [88] The Defendants' failure to produce any positive averment or documentary evidence against the admissibility or substance of the Plaintiff's evidence is, in my view, highly significant. The Defendants have not challenged the authenticity of the video evidence. They have not denied that the premises depicted in the videos are the Defendants' Business Premises. They have not offered any explanation as to what was being displayed on the screens at their premises if it was not the Plaintiff's Copyrighted Works. The bare denials stands unsupported. [89] I find that the Defendants' bare denials are equivocal, lacking in precision, and inconsistent with the undisputed contemporaneous 44! ! evidence, specifically, the video evidence at Exhibit "A-4" of PA1 and the unchallenged statutory declarations at Exhibit "A-3" of PA1. The Defendants have not adduced a single piece of documentary evidence to support their denials. In the face of the Plaintiff's video evidence, which remains unchallenged as to its authenticity and content, the Defendants' bare denials carry no probative value and must be rejected. [90] I note that the Defendants, in their written submissions, have sought to import the American Cyanamid test for interlocutory injunctions requiring proof of a serious issue to be tried, inadequacy of damages, and balance of convenience as a threshold for the granting of a permanent injunction. This is, with respect, a misapplication of the law. [91] The American Cyanamid principles, as set out in American Cyanamid Co v. Ethicon Ltd [1975] AC 396, govern applications for interlocutory injunctions where the court is asked to grant interim relief pending a full trial. In the present case, the Plaintiff does not seek an interlocutory injunction. Rather, the Plaintiff seeks, inter alia, a permanent injunction as part of the final reliefs prayed for in the Originating Summons. This is a hearing on the merits of the Plaintiff's claim, not an interim application. [92] The test for a permanent injunction is fundamentally different from that for an interlocutory injunction. As the High Court held in Syarikat Faiza Sdn Bhd & Anor v. Faiz Rice Sdn Bhd & Anor [2017] MLJU 1595, at paragraph [72], the Court has a discretion under Section 37(1)(a) of the Copyright Act 1987, read with Sections 45! ! 51(2), 52(1) and 53 of the Specific Relief Act 1950, to grant a perpetual injunction to restrain a defendant from infringing the plaintiff's copyright. The prerequisites for a permanent injunction are: (a) a finding of infringement on the merits; and (b) the court's exercise of discretion that such an injunction is warranted in the circumstances. [93] The High Court in Syarikat Faiza Sdn Bhd & Anor v Faiz Rice Sdn Bhd & Anor and another suit [2017] MLJU 1595 held as follows: “[71] Sections 37(1) CA, ss 51(2), 52(1) and 53 SRA provide as follows: “Action by owner of copyright and relief s 37(1) CA Infringements of copyrights and the prohibited acts under sections 36A and 36B shall be actionable at the suit of the owner of the copyright and, in any action for such an infringement or prohibited act, the court may grant the following types of relief:

an order for injunction;

damages;

an account of profits;

statutory damages of not more than twenty-five thousand ringgit for each work, but not more than five hundred thousand ringgit in the aggregate; or

any other order as the court deems fit. SRA s 51(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from 46! ! the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. s 52(1) Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication. Mandatory injunctions s 53. When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. [72] The court has a discretion under s 37(1)(a) CA read with ss 51(2), 52(1) and Illustration (s) to s 52 SRA to grant a perpetual injunction to restrain Defendants from infringing 1st Plaintiff’s copyright in the Works and I so order. [94] The Defendants further contend that "mere ownership or use of electronic devices in a food and beverage business does not, in and of itself, constitute infringement under Section 36 of the Copyright Act 1987." While this proposition, stated in the abstract, may not be objectionable, it mischaracterises the Plaintiff's case. The Plaintiff does not allege that the mere ownership or presence of electronic devices constitutes infringement. Rather, the Plaintiff's case is that the Defendants used those devices, specifically, the TV boxes and/or other Unauthorised Streaming Means to show, screen, play, stream, and/or communicate the Plaintiff's Copyrighted Works to the 47! ! public at the Defendants' Business Premises, without the Plaintiff's licence or authorisation. This is a fundamentally different allegation. [95] The video evidence at Exhibit "A-4" of PA1 does not merely show the presence of electronic devices at the Defendants' premises. It shows the Plaintiff's Copyrighted Works being actively displayed and communicated to the public at the Defendants' Business Premises. This is direct evidence of infringement, not mere circumstantial evidence of the presence of electronic devices. [96] Having carefully considered all the evidence before me, I make the following findings of fact:

The Plaintiff's Copyrighted Works were shown, screened, played, streamed, and/or communicated to the public at the Defendants' Business Premises on or about 13 October 2023. This finding is supported by the unchallenged video evidence at Exhibit "A-4" of PA1.

The Defendants did not, at any material time, have a valid subscription, licence, or authorisation from the Plaintiff to show, screen, play, stream, and/or communicate the Plaintiff's Copyrighted Works to the public. This finding is supported by the absence of any evidence from the Defendants of such subscription or licence, and the Defendants' failure to deny the same. 48! !

The Defendants' bare denials, unsupported by any documentary evidence or positive averments, are insufficient to rebut the prima facie case established by the Plaintiff. [97] Accordingly, I find that the Defendants' act of showing, playing, screening, streaming to the public and/or communicating to the public the Plaintiff's Copyrighted Works at the Defendants' Business Premises using Unauthorised Streaming Means, without the consent, licence, or authorisation of the Plaintiff, constitutes an infringement of the Plaintiff's copyright under Sections 13(1)(aa), 13(1)(b), and 36(1) of the Act. In the present action, it is undisputed that through the Defendants' acts, steps were taken by the Defendants to make available the Plaintiff's Copyrighted Works to a larger number of persons than would otherwise have seen them. The Plaintiff's Copyrighted Works were thus performed, shown or played to an audience consisting of the patrons present in the Defendants' Business Premises, which constitutes the public at large, with a view of generating a profit for the Defendants. This clearly constitutes an infringement of the Plaintiff's exclusive rights regarding the act of performing, showing or playing the Plaintiff's Copyrighted Works to the public. v) WHETHER THE PLAINTIFF IS ENTITLED TO A DECLARATION OF COPYRIGHT INFRINGEMENT [98] Having found that the Defendants have infringed the Plaintiff's copyright, the question that follows is whether the Plaintiff is entitled to the declaratory relief sought. 49! ! [99] It is well-established that the court has a wide discretion to grant declaratory relief where it is just and convenient to do so, and where the declaration will serve a useful purpose. In the context of copyright infringement, a declaration serves the important purpose of affirming the rights of the copyright owner and putting on record the finding that infringement has occurred. [100] I note that even the Defendants, in their Written Reply Submission, have conceded that if this Court finds in favour of the Plaintiff, the Defendants would seek, inter alia, "declaratory relief limited to acknowledgement of the single screening." This concession, in my view, is an implicit acknowledgement that the Plaintiff is entitled to some form of declaratory relief. [101] In the circumstances, I am satisfied that the Plaintiff is entitled to a declaration that the Defendants' act of showing, playing, screening, streaming to the public and/or communicating to the public the Plaintiff's Copyrighted Works at the Defendants' Business Premises using the Unauthorised Streaming Means, without the consent of the Plaintiff, constitutes an act of copyright infringement pursuant to Sections 13 and 36 of the Copyright Act 1987. vi) WHETHER THE PLAINTIFF IS ENTITLED TO INJUNCTIVE RELIEF [102] Section 37(1)(a) of the Act empowers the Court to grant an order for injunction in any action for infringement of copyright. This must be read together with Sections 51(2), 52(1), and 53 of the Specific 50! ! Relief Act 1950. (refer case of Syarikat Faiza Sdn Bhd & Anor v. Faiz Rice Sdn Bhd & Anor [2017] MLJU 1595) [103] Section 37(1)(a) of the Act, provides as follows: “(1) Infringements of copyrights and the prohibited acts under sections 36A and 36B shall be actionable at the suit of the owner of the copyright and, in any action for such an infringement or prohibited act, the court may grant the following types of relief.

an order for injunction; … ” [104] Section 51(2) of the Specific Relief Act 1950 provides that : "A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff." [105] Section 52(1) of the Specific Relief Act 1950 provides: "Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication." [106] The Defendants resist the granting of injunctive relief on the ground that there is no evidence of continuing conduct and that the Plaintiff has not shown any ongoing harm, any risk of irreparable damage, or any commercial loss directly attributable to the Defendants. As 51! ! submitted above, the Defendants' reliance on the American Cyanamid test is misplaced. [107] Notwithstanding this, I have given due consideration to the Defendants' contention that there is no evidence of continuing or threatened future infringement. However, I note the following: a) The Defendants have not given any undertaking to this Court that they will not commit further acts of infringement in the future. Their position throughout these proceedings has been one of bare denial. A party who does not acknowledge the wrongfulness of its conduct and does not undertake to desist from such conduct in the future cannot be heard to say that an injunction is unnecessary. b) The Defendants have, throughout these proceedings, maintained the position that their business operations "do not require" a licence or subscription from the Plaintiff. This stance, rather than providing comfort that future infringement will not occur, gives rise to a reasonable apprehension that the Defendants may continue to infringe the Plaintiff's copyright, as they do not recognise the need to obtain a licence from the Plaintiff. c) In intellectual property cases, the grant of a permanent injunction upon a finding of infringement on the merits is the norm rather than the exception. This is because the right to control the use of one's intellectual property is a proprietary 52! ! right, and the usual remedy for the violation of a proprietary right is an injunction to prevent further violations. [108] In the premises, I am satisfied that this is an appropriate case for the grant of a perpetual injunction to restrain the Defendants from further infringing the Plaintiff's copyright. I arrive at this conclusion for the following reasons: a) I have made a finding on the merits that the Defendants have infringed the Plaintiff's copyright. A perpetual injunction under Section 51(2) of the Specific Relief Act 1950 may only be granted "by the decree made at the hearing and upon the merits of the suit." That threshold has been met. b) The Defendants have not, at any point in these proceedings, given any undertaking to this Court that they will refrain from further acts of infringement. Their entire defence has been one of bare denial. A party who refuses to acknowledge the wrongfulness of its conduct cannot credibly be said to pose no future risk of repetition. c) The Defendant’s stated position that their business operations "do not require" a licence or subscription from the Plaintiff to operate normally is itself a cause for concern. Far from providing reassurance that the infringing conduct will not recur; this stance demonstrates a fundamental failure on the part of the Defendants to appreciate and respect the Plaintiff's proprietary rights. The risk of future infringement is 53! ! therefore not merely theoretical but it is real and is underscored by the Defendants' own articulated position. d) Copyright is a proprietary right. The infringement of a proprietary right is, in and of itself, a wrong that an injunction is designed to remedy and prevent. The purpose of a perpetual injunction in copyright cases is not merely to compensate for past wrongs but to vindicate the copyright owner's exclusive rights and to deter future violations. As observed in Syarikat Faiza Sdn Bhd & Anor v. Faiz Rice Sdn Bhd & Anor [2017] MLJU 1595, the court has the discretion under Section 37(1)(a) of the Copyright Act 1987, read with Sections 51(2) and 52(1) of the Specific Relief Act 1950, to grant a perpetual injunction to restrain a defendant from infringing the plaintiff's copyright, and this discretion is regularly exercised upon a finding of infringement on the merits. e) The balance of justice clearly favours the grant of a perpetual injunction. The Plaintiff, as the copyright owner, has a legitimate interest in ensuring that its copyrighted works are not exploited without authorisation. The Defendants, on the other hand, have no legitimate interest in being permitted to continue to infringe the Plaintiff's copyright. Any prejudice to the Defendants from the grant of an injunction is negligible as they are merely being restrained from doing something which they have no right to do in the first place. 54! ! [109] I therefore grant a perpetual injunction restraining the Defendants, whether by themselves, their servants, agents, or otherwise howsoever, from showing, playing, screening, streaming to the public and/or communicating to the public, and/or making available the Plaintiff's Copyrighted Works or any other copyrighted works of the Plaintiff, at the Defendants' Business Premises or any other premises, using Unauthorised Streaming Means or otherwise, without the prior written consent, licence, or authorisation of the Plaintiff. vii) WHETHER THE PLAINTIFF IS ENTITLED TO DAMAGES AND THE APPROPRIATE QUANTUM [110] I now turn to the question of damages. Assessments of damages as a form of remedy as a result of infringement was thoroughly discussed in the High Court case of Portcullis Trustnet (Singapore) Pte Ltd v George Pathmanathan a/l Michael Gandhi Nathan & Ors [2017] MLJU 223, where it was held as follows: “[158] Section 37(1)(d) and (7) CA have expressly provided for the Court to award statutory damages and additional damages respectively. I decide as follows:

in assessing statutory damages and additional damages, the Court may consider –

whether the Defendants have derived any benefit from their copyright infringement [s 37(7)(b) and (8)(e) CA]. This fact is also relevant in deciding whether the Court should award exemplary damages [please see Umi Kalthum J’s (as she then was) 55! ! judgment in the High Court case of Microsoft Corp v Conquest Computer Centre Sdn Bhd [2015] 7 MLJ 243, at 268-269]; and

whether the Defendants’ copyright infringement has been flagrant [s 37(7)(a) and (8)(b) CA]. Such a fact is pertinent to the question of whether aggravated damages should be awarded; and

as statutory damages and additional damages have been awarded in this case, I will not order exemplary and aggravated damages to be paid by Defendants to Plaintiff. To do so, will give an unjustifiable windfall to Plaintiff.” [111] Section 37(7) of the Act further provides for the award of additional damages: "(7) Where, in an action under this section, an infringement of copyright or a prohibited act under section 36A or 36B is proved and the court, having regard to—

the flagrancy of the infringement or the prohibited act; and

any benefit shown to have accrued to the defendant by reason of the infringement or the prohibited act, is satisfied that it is proper to do so in the circumstances, the court may, in assessing damages under paragraph (1)(b), award such additional damages as it considers appropriate in the circumstances." 56! ! [112] Section 37(8) of the Act sets out the factors to be considered by the court in assessing statutory damages under Section 37(1)(d): "(8) In awarding statutory damages under paragraph

(1)(d), the court shall have regard to—

the nature and purpose of the infringing act or prohibited act, including whether the infringing act or prohibited act was of a commercial nature or otherwise;

the flagrancy of the infringement or prohibited act;

whether the defendant acted in bad faith;

any loss that the plaintiff has suffered or is likely to suffer by reason of the infringement or prohibited act;

any benefit shown to have accrued to the defendant by reason of the infringement or prohibited act;

the conduct of the parties before and during the proceedings; and

the need to deter other similar infringements or prohibited acts." [113] The Defendants' primary contention is that the Plaintiff has not discharged its burden of proving the quantum, basis, or factors justifying any monetary award. The Defendants point to the absence of audited accounts, licence tariffs, surveys of patrons, or any other evidence quantifying the Plaintiff's loss or the Defendants' benefit. The Defendants rely on Motordata Research Consortium Sdn Bhd v. Ahmad Shahril bin Abdullah & Ors [2017] MLJU 1187 for the proposition that proof of infringement and proof of loss are distinct enquiries, and on Polygram Records v. The Search [1994] 2 MLJ 153 for the proposition that a claimant who adduces no evidence of loss is ordinarily entitled to nominal damages only. 57! ! [114] The Defendants further rely on The Football Association Premier League Ltd & Anor v. Bar Theory Sdn Bhd & Ors [2023] 9 MLJ 16, where the court only allowed a declaration of infringement and no monetary damages were granted, and the case against Brew Nation (M) Sdn Bhd (Company No. 202001031405 / 1387725-M), where the High Court ordered RM75,000.00 in damages. The Defendants submitted that if the Court finds infringement, any damages should be confined to nominal damages or, at most, a sum equivalent to the prevailing subscription fee. [115] The Plaintiff, on the other hand, submitted that intellectual property infringement proceedings are typically bifurcated into two stages — a trial determining liability and, if liability is established, separate proceedings for the assessment of damages. The Plaintiff contended that there is no need to adduce evidence to quantify losses at the liability stage. In the alternative, the Plaintiff submitted that statutory damages and additional damages should be granted in its favour. [116] While it is true that in some intellectual property cases, particularly those proceeding by way of writ and statement of claim, the court may bifurcate proceedings such that liability is determined first and damages are assessed separately, this is not an invariable rule. In the present case, the Plaintiff has initiated proceedings by way of Originating Summons, and the reliefs sought include damages. The Originating Summons, by its very nature, invites the court to determine all issues including the question of relief on the affidavit evidence before it. The Plaintiff has not sought a bifurcation order, 58! ! and the matter has proceeded on the basis that all issues, including relief, are to be determined at this hearing. [117] That said, the fact that proceedings are not bifurcated does not mean that the Plaintiff is required to prove its damages with mathematical precision or to adduce detailed accounting evidence at this juncture. Section 37(1)(d) of the Act expressly empowers the court to award statutory damages, which by their very nature do not require the same degree of proof as general damages or an account of profits. Statutory damages are a legislative recognition that copyright owners may face difficulty in quantifying their losses, particularly in cases of unauthorised streaming where the infringer derives benefit not necessarily in the form of direct revenue from the copyrighted works themselves, but from the increased patronage and custom attracted to the business premises. [118] I accept the Defendants' submission that the Plaintiff has not adduced specific evidence of its actual loss in terms of lost subscription revenue, licence fees, or other quantifiable financial harm directly attributable to the Defendants' infringement. The Plaintiff has not exhibited any licence tariff showing what it would charge commercial premises such as the Defendants' Business Premises for a licence to stream the Plaintiff's Copyrighted Works. No audited accounts or financial records have been produced to establish the Plaintiff's loss of revenue. [119] In Polygram Records, it was held that a claimant who adduces no evidence of loss is ordinarily entitled to nominal damages only. I accept the general proposition that proof of infringement and proof 59! ! of loss are distinct enquiries, as held in Motordata Research Consortium . [120] However, I do not accept the Defendants' submission that the only remedy available in the absence of precise quantification of loss is nominal damages. The Copyright Act 1987 expressly provides for statutory damages under Section 37(1)(d), which is an alternative to general damages or an account of profits. The very purpose of the statutory damages provision is to provide a remedy in cases where the copyright owner's actual loss is difficult to quantify. [121] I turn to the question of statutory damages. Section 37(1)(d) empowers the court to award statutory damages of not more than RM25,000.00 for each work, but not more than RM500,000.00 in the aggregate. In assessing the quantum of statutory damages, the court is required by Section 37(8) to have regard to the factors enumerated therein. I shall deal with each of these factors in turn as they apply to the facts of the present case.

The nature and purpose of the infringing act, including whether the infringing act was of a commercial nature or otherwise — Section 37(8)(a) [122] The Defendants operate a food and beverage business at the Defendants' Business Premises. The showing, screening, playing, and/or streaming of the Plaintiff's Copyrighted Works at the Defendants' Business Premises was done in the context of and in furtherance of the Defendants' commercial enterprise. The display of copyrighted content, particularly sports content such as the 60! ! Malaysia Super League Match (Penang VS Sabah) on Astro Arena Bola 2, at a food and beverage establishment is a well-known practice designed to attract and retain customers, thereby enhancing the commercial revenue of the business. Even if the Defendants did not charge a separate fee for viewing, the infringing act was conducted in a commercial setting for a commercial purpose to enhance the ambience and attractiveness of the Defendants' Business Premises to paying patrons. I therefore find that the infringing act was of a commercial nature.

The flagrancy of the infringement — Section 37(8)(b) [123] The concept of flagrancy in the context of copyright infringement connotes a degree of deliberateness or brazenness in the commission of the infringing act. In the present case, the Defendants used Unauthorised Streaming Means, specifically, TV boxes and/or pirate websites to access and display the Plaintiff's Copyrighted Works. The use of such devices and means is not an inadvertent or accidental act. It requires a conscious decision to acquire and set up the streaming devices, to connect them to the internet, and to use them to access and display content which the Defendants knew, or ought to have known, they were not authorised to display publicly. [124] Furthermore, the Defendants have not, at any material time, held a valid subscription or licence from the Plaintiff. This is not a case where the Defendants had a subscription but exceeded its terms for example, by displaying content intended for domestic use in a commercial premises. This is a case where the Defendants had no 61! ! subscription or licence at all. The absence of any subscription or licence, coupled with the deliberate use of Unauthorised Streaming Means, indicates a degree of flagrancy in the infringement. While I would not characterise this as the most egregious example of flagrant infringement that the Court might encounter, it is certainly not a case of innocent or accidental infringement.

Whether the defendant acted in bad faith — Section 37(8)(c) [125] The question of bad faith is closely related to, but distinct from, the question of flagrancy. Bad faith connotes a degree of dishonesty or moral turpitude. In the present case, the Defendants' use of Unauthorised Streaming Means to access and display the Plaintiff's Copyrighted Works without paying the requisite subscription or licence fees suggests an intention to obtain the benefit of the Plaintiff's copyrighted content without paying for it. This is the very essence of digital piracy. [126] The Defendants' conduct throughout these proceedings also bears consideration. Rather than acknowledging the infringement and offering to make amends, the Defendants have chosen to contest these proceedings on the basis of bare denials, without adducing any evidence to support their position. While the Defendants are of course entitled to defend these proceedings, their choice to do so on the basis of bare denials, without any substantive defence, may be considered as a factor relevant to the assessment of damages. [127] That said, I am mindful that the evidence before me relates to a single documented instance of infringement on 13 October 2023. 62! ! There is no evidence before me of repeated or systematic infringement over a prolonged period, nor is there evidence that the Defendants continued to infringe after the date of the documented incident. I therefore find that while the Defendants' conduct exhibits elements of bad faith, the degree of bad faith is moderate rather than extreme.

Any loss that the plaintiff has suffered or is likely to suffer by reason of the infringement — Section 37(8)(d) [128] As noted above, the Plaintiff has not adduced specific evidence quantifying its actual loss. However, I take judicial notice of the fact that the unauthorised streaming of copyrighted content, particularly in commercial premises such as food and beverage establishments, causes real and tangible harm to copyright owners such as the Plaintiff. The harm operates on multiple levels:

The Plaintiff is deprived of the subscription and/or licence fees that it would have been entitled to receive had the Defendants obtained proper authorisation;

(ii) The proliferation of unauthorised streaming undermines the value of the Plaintiff's copyrighted content and the integrity of the Plaintiff's licensing model;

(iii) The practice of unauthorised streaming in commercial premises creates an unfair competitive disadvantage for those business operators who do comply with the law and who do pay the requisite subscription and licence fees; and 63! !

(iv) The harm to the Plaintiff extends beyond the immediate financial loss and encompasses the erosion of its exclusive rights, which are the foundation of the copyright system.

While I cannot quantify the Plaintiff's loss with precision on the evidence before me, I am satisfied that the Plaintiff has suffered loss, or is likely to suffer loss, as a result of the Defendants' infringement.

Any benefit shown to have accrued to the defendant by reason of the infringement — Section 37(8)(e) [129] The Plaintiff has not adduced specific evidence of the benefit that accrued to the Defendants as a result of the infringement. I note, however, that the Defendants operate a food and beverage business, and the display of copyrighted content such as sports matches and entertainment programming at such premises is commonly understood to attract customers and enhance the business's revenue. The Defendants derived the benefit of displaying the Plaintiff's copyrighted content to their patrons without incurring any cost in the form of subscription or licence fees. This is, in itself, a form of benefit, the avoidance of a cost that should have been incurred.

The conduct of the parties before and during the proceedings — Section 37(8)(f) 64! ! [130] In relation to the Plaintiff's conduct, I am satisfied that the Plaintiff has conducted these proceedings properly and has adduced sufficient evidence to establish its case. The Plaintiff has complied with the requirements of Section 42 of the Act, has produced video evidence of the infringement, and has presented its case in a clear and comprehensive manner. [131] In relation to the Defendants' conduct, I reiterate my earlier observations that the Defendants' Affidavit in Reply contains nothing more than bare denials and does not include any documentary exhibits. The Defendants have not put forward any substantive defence to the Plaintiff's claim. Instead, the Defendants' strategy has been to challenge the sufficiency of the Plaintiff's evidence without offering any evidence of their own. While the Defendants are entitled to test the Plaintiff's case, the complete absence of any positive case or documentary evidence from the Defendants is a factor that I take into account.

The need to deter other similar infringements — Section 37(8)(g) [132] This is, in my view, a particularly important factor. The unauthorised streaming of copyrighted content in commercial premises using TV boxes and pirate websites is a widespread and growing problem in Malaysia. It undermines the rights of copyright owners and the legitimate businesses that invest in creating, acquiring, and distributing copyrighted content. The award of statutory damages must serve not only to compensate the copyright owner but also to send a clear signal to other potential infringers that the unauthorised 65! ! streaming of copyrighted content in commercial premises will not be tolerated and will attract meaningful consequences. [133] A purely nominal award of damages would fail to achieve this deterrent purpose and would, in effect, signal to potential infringers that the consequences of unauthorised streaming are negligible amounting to nothing more than the payment of a sum equivalent to a subscription fee that should have been paid in the first place. Such an outcome would perversely incentivise infringement rather than deter it, as potential infringers would reason that the worst-case scenario is merely having to pay what they should have paid in any event, with no additional penalty for having infringed. [134] Having considered all the factors enumerated in Section 37(8) of the Act, I now turn to the question of the appropriate quantum of statutory damages. [135] The Plaintiff's Copyrighted Works comprise five works in total — two films and three artistic works. Under Section 37(1)(d), the court may award statutory damages of not more than RM25,000.00 for each work. The maximum aggregate award is capped at RM500,000.00. [136] I have given due consideration to the authorities cited by the Defendants. I note the decision in The Football Association Premier League, where the Court allowed a declaration of infringement but did not grant monetary damages. I also note the case against Brew Nation (M) Sdn Bhd, where the High Court awarded RM75,000.00 in damages. However, each case must be 66! ! decided on its own facts, and the quantum of damages must be calibrated to the particular circumstances of the case at hand. [137] In determining the appropriate quantum, I bear in mind the following considerations:

The infringement involved five copyrighted works, comprising both films and artistic works;

The infringement was committed in a commercial context and for a commercial purpose;

The Defendants used Unauthorised Streaming Means (TV boxes and/or pirate websites) to access the Plaintiff's Copyrighted Works, demonstrating a deliberate choice to access copyrighted content without paying for it;

The Defendants had no subscription or licence from the Plaintiff at any material time;

The documented infringement relates to a single incident on 13 October 2023, and there is no evidence before me of repeated or systematic infringement over a prolonged period;

The Defendants' defence has been premised entirely on bare denials, with no substantive evidence or explanation offered; 67! !

The need to deter similar infringements in other commercial premises; and

The principle of proportionality that is the quantum must be sufficient to achieve the statutory objectives of compensation and deterrence, but must not be so excessive as to amount to an unjustifiable windfall to the Plaintiff. [138] Balancing all these considerations, I am of the view that a statutory damages award of RM 25,000.00 per work is appropriate in the circumstances. This amounts to a total statutory damages award of RM 125,000.00 (being RM25,000.00 × 5 works). I am satisfied that this quantum adequately reflects the seriousness of the infringement while remaining proportionate to the nature and extent of the infringing conduct. It also serves the important deterrent function mandated by Section 37(8)(g) of the Act, while not being so excessive as to constitute an unjustifiable windfall. [139] I have also considered whether additional damages should be awarded under Section 37(7) of the Act. Having regard to:

The flagrancy of the infringement, while the use of Unauthorised Streaming Means demonstrates deliberateness, the evidence discloses only a single documented incident; and

The benefit accrued to the Defendants, while the Defendants derived some benefit from the display of the Plaintiff's 68! ! copyrighted content, no specific evidence has been adduced to quantify this benefit. [140] I am of the view that the award of statutory damages in the sum of RM 125,000.00, together with the declaratory relief and the perpetual injunction, is sufficient to do justice in this case. In the exercise of my discretion, I decline to award additional damages under Section 37(7), as the statutory damages awarded already take into account the relevant factors of flagrancy and benefit under Section 37(8). To award additional damages on top of statutory damages in the present circumstances would, in my judgment, risk giving an unjustifiable windfall to the Plaintiff, a concern articulated in Portcullis Trustnet (Singapore) Pte Ltd v. George Pathmanathan a/l Michael Gandhi Nathan & Ors [2017] MLJU 223, at paragraph [158]. [141] For the reasons set out above, I make the following findings and orders:

The Defendants' acts of showing, playing, screening, streaming to the public and/or communicating to the public in a business premises or otherwise, copyrighted works of the whole, or a substantial part thereof and/or causing the aforementioned, without the consent of the copyright owner, is an act of copyright infringement pursuant to Section 36 of the Copyright Act 1987;

A permanent injunction to restrain the Defendants, whether acting by themselves or through their servants or agents or 69! ! any of them or otherwise howsoever from doing the following acts or any of them, that is to say: i. infringing in any manner howsoever, and/or causing others to infringe, in any manner howsoever, the Plaintiff's copyright in the Plaintiff's Copyrighted Works (as hereinafter defined) and/or any other copyrighted work owned by the Plaintiff, including communicating, showing and/or playing the Plaintiff's Copyrighted Works and/or any other copyrighted work owned by the Plaintiff to the public without the consent, authorization, permission and/or licence of the Plaintiff; and/or ii. aiding, enabling, assisting and/or authorising others to do any of the acts aforesaid;

Payment in the sum of RM125,000.00 to be made by the Defendants to the Plaintiff within seven (7) days from the date of this Judgment being statutory damages under Section 37(1)(d) and (8) of the Copyright Act 1987;

Interest on all amounts due and payable by the Defendants at the rate of 5% per annum pursuant to Section 11 of the Civil Law Act 1956, calculated from the date of this Judgment until the full and final settlement of the Judgment amount; and

Costs of RM10,000.00 to be paid by the Defendants to the Plaintiff, subject to allocatur. 70! ! D. CONCLUSION [142] In arriving at my decision, I have been mindful of the need to balance the rights of copyright owners against the interests of alleged infringers, and to ensure that the reliefs granted are proportionate to the nature and extent of the infringement. Copyright is the lifeblood of the creative industries and the broadcasting industry. The unauthorised streaming of copyrighted content in commercial premises using TV boxes and pirate websites is a growing scourge that undermines the integrity of the copyright system and causes real harm to copyright owners and to the legitimate businesses that respect the law. [143] The Copyright Act 1987 provides a comprehensive framework for the protection of copyright and the remedies available to copyright owners whose rights are infringed. The Act empowers the courts to grant declarations, injunctions, damages, statutory damages, and additional damages, inter alia, to vindicate the rights of copyright owners and to deter future infringements. This Court must give full effect to the legislative intent behind these provisions. [144] In the present case, the Plaintiff has, on a balance of probabilities, established that its copyright was infringed by the Defendants. The evidence comprising statutory declarations compliant with Section 42 of the Act and unchallenged video evidence of the infringement speaks clearly in support of the Plaintiff’s case. Against this evidence, the Defendants have offered nothing more than bare denials which is devoid of any supporting evidence. 71! ! [145] The reliefs I have granted are, in my considered view, proportionate and necessary to vindicate the Plaintiff's rights and to deter the Defendants and others from similar conduct in the future, thereby upholding the integrity of the copyright system in Malaysia. [146] The Plaintiff's application is accordingly allowed in terms as set out at paragraph [141] above. Dated this day of 13th May 2026. -Sgd-EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR 72! ! Counsel: For the Plaintiff : Chew Kherk Ying and Sofia Asyikin binti Mohd Kamil (Messrs. Wong & Partners) For the Defendants : Pavithra Vijaya Kumar (Messrs. Ghazi & Lim)