TAN HIANG CHING v Pengarah Projek Agriculture Flagship (AgF) Kementerian Pertanian Dan Insudtri Asas Tani (JA-21IP-1-11/2022)

PENGARAH PROJEK AGRICULTURE FLAGSHIP (AgF)

PENGARAH PROJECT MANAGEMENT OFFICE

3.

KERAJAAN MALAYSIA …... DEFFENDANTS AND BRILLIANCE INFORMATION SDN BHD ...... THIRD PARTY GROUNDS OF JUDGMENT

This is the Defendants’ application vide Enclosure 48 filed pursuant to Order 14A and/or Order 33 rule 2 of the Rules of Court 2012 seeking the determination of certain questions of law arising from the pleadings in this action.

The Plaintiff commenced this action alleging that twenty-three

photographs belonging to him were reproduced, uploaded and displayed on the website known as portal.myagro.moa.gov.my without his permission, thereby constituting copyright infringement under the Copyright Act

1987.

The Defendants deny liability and contend, inter alia, that the use of the photographs complained of falls within the statutory exception provided under section 13(2)(i) of the Copyright Act

1987.

By the present application, the Defendants contend that the real dispute between the parties turns on a pure question of statutory interpretation which can and ought to be determined without the necessity of a full trial.

The Defendants further contend that the determination of the questions raised in Enclosure 48 would be capable of disposing of the entire action and avoiding unnecessary costs and delay.

The Plaintiff opposes the application on the basis that there remain disputed questions of fact which ought to be determined through oral evidence at trial.

The Plaintiff claims to be the owner of twenty-three (23) photographs depicting various species of fish.

It is not disputed that the photographs were displayed on the website located at portal.myagro.moa.gov.my, a portal established pursuant to the Agriculture Intelligence System ("AIS") project under the Ministry of Agriculture and Agro-Based Industry.

According to the Defendants, the AIS project was approved as a national strategic initiative intended to establish an agricultural information database for public use and to enhance the Government’s ability to develop and support the agricultural sector in Malaysia.

The Defendants further contend that the project was implemented through the Malaysian Agricultural Research and Development Institute (“MARDI”), which acted as the technical implementing agency under the Ministry. The Defendants’ position is that the portal was created for educational, informational and public interest purposes, was accessible free of charge and generated no profit whatsoever.

The Plaintiff does not dispute that the portal was intended to provide information and public education relating to agriculture and fisheries. However, the Plaintiff maintains that the Defendants were nevertheless required to obtain prior consent from the copyright owner and acknowledge the Plaintiff as the author before reproducing or displaying the photographs.

The Defendants, on the other hand, contend that section 13(2)(i) of the Copyright Act 1987 does not impose either of those requirements and that the use complained of falls squarely within the statutory exception provided by Parliament.

This Court is of the view that the present application may appropriately be determined under the following three principal issues: Issue (i) : Whether the questions raised by the Defendants constitute pure questions of law capable of determination under Order 14A and/or as preliminary issues under Order 33 rule 2 of the Rules of Court 2012. Issue (ii) : Whether section 13(2)(i) of the Copyright Act 1987 requires:

prior consent from the copyright owner; and/or

acknowledgement of authorship or ownership of copyright, before the statutory exception therein may apply. Issue (iii) - Whether, upon the proper interpretation of section 13(2)(i) of the Copyright Act 1987, the Plaintiff’s action against the Defendants is barred as a matter of law. ANALYSIS AND FINDINGS OF THE COURT Issue (i) : Whether the questions raised by the Defendants constitute pure questions of law capable of determination under Order 14A and/or as preliminary issues under Order 33 Rule 2 of the Rules of Court 2012 14. Before this Court can consider the substantive questions raised by the Defendants, it is first necessary to determine whether those questions are suitable for determination under Order 14A and/or as preliminary issues under Order 33 Rule 2 of the Rules of Court 2012.

The Plaintiff contends that the present action involves disputed questions of fact relating, amongst others, to the ownership of the photographs, the circumstances under which the photographs were obtained, the manner in which the photographs came to be uploaded onto the AgF-AIS portal and the extent of the Defendants’ involvement in such use. According to the Plaintiff, those factual disputes render the matter unsuitable for determination without a full trial.

The Defendants, on the other hand, contend that the real controversy between the parties is not factual in nature. Rather, the Defendants submit that even if the facts alleged by the Plaintiff are assumed to be true, the Plaintiff’s claim is nevertheless defeated by the operation of section 13(2)(i) of the Copyright Act 1987. Accordingly, the Defendants argue that the issues raised in Enclosure 48 are pure questions of law which are capable of determination at this stage.

The principles governing Order 14A are now well established. In Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149, the Federal Court recognised that Order 14A serves an important procedural purpose in enabling the Court to determine a question of law at an early stage where the determination of that question is capable of substantially disposing of the proceedings or materially reducing the scope of the dispute.

The Court of Appeal in Petroleum Nasional Berhad v. Kerajaan Negeri Terengganu [2003] 1 MLRA 582 further clarified that an application under Order 14A is appropriate where the Court is satisfied that the determination of the question will dispose of the entire cause or matter, or any claim or issue therein, without the necessity of a full trial. The primary objective is to save time and costs where a trial would serve no useful purpose.

Similarly, in Xin Xin Engineering Sdn Bhd & Anor v Fukuyama Automation Sdn Bhd & Ors [2016] 9 MLJ 217, the Court emphasised that the existence of factual disputes does not automatically preclude the application of Order 14A. The critical question is whether the legal issue can be determined without the need for the Court to resolve contested questions of fact through oral evidence.

The same approach was adopted in CMI International Sdn Bhd & Ors v Dart Industries Inc [2020] MLJU 90, where the Court stressed that it is the substance of the dispute that must be examined. A party cannot defeat an otherwise proper Order 14A application merely by identifying factual disputes that are not material to the legal question requiring determination.

Likewise, in Syarikat Faiza Sdn Bhd & Anor v Faiz Rice Sdn Bhd & Anor [2017] MLJU 1595, the Court recognised that issues involving statutory interpretation are particularly suitable for determination under Order 14A where the relevant factual foundation is either undisputed or can be assumed for the purpose of answering the legal question posed.

Applying those principles to the present case, this Court finds that the Defendants’ application is directed principally towards the interpretation and effect of section 13(2)(i) of the Copyright Act 1987.

For the purposes of determining the legal questions raised in Enclosure 48, it is unnecessary for this Court to make any final finding as to whether the Plaintiff is the owner of the copyright in the twenty-three photographs or whether the Defendants reproduced those photographs in the manner alleged.

Indeed, this Court is prepared to assume, solely for the purposes of the present application and without making any binding finding, that:

the Plaintiff owns the copyright in the twenty-three photographs;

the photographs were reproduced and displayed in the AgF-AIS portal; and

such use occurred without the Plaintiff’s prior consent. This approach is consistent with the principles set out in Thein Hong Teck & Ors v. Mohd Afrizan Husain [2012] 4 MLRA 87, which held that Order 14A may be invoked where the material facts are either not in dispute or can be assumed for the purpose of resolving a point of law. In the present case, the legal effect of section 13(2)(i) remains the central issue even if the Plaintiff's factual allegations regarding copyright ownership and reproduction are taken at their highest

Even upon those assumptions, the question remains whether the Defendants are nevertheless entitled to rely upon the statutory exception contained in section 13(2)(i) of the Copyright Act 1987. That question does not require the assessment of witness credibility, the resolution of conflicting testimony or the making of findings on disputed facts. Rather, it requires the Court to construe the meaning and legal effect of a statutory provision enacted by Parliament.

This Court further notes that the Plaintiff does not dispute that the AgF-AIS portal is a governmental initiative established for the dissemination of agricultural and fisheries information to the public. Nor is it disputed that the portal is accessible without charge and serves an informational and educational function. The Plaintiff’s primary contention is that the Defendants were required to obtain consent and provide acknowledgement before relying on section 13(2)(i). That contention raises a question of statutory interpretation rather than a question of fact.

In the circumstances, this Court is satisfied that the issues raised by the Defendants, particularly the questions reflected in paragraphs 3 and 4 of Lampiran A, constitute pure questions of law capable of determination under Order 14A and, alternatively, as preliminary issues under Order 33 Rule 2 of the Rules of Court 2012.

Accordingly, this Court finds that it is appropriate to proceed to determine the substantive questions of statutory interpretation raised in Enclosure 48. Issue (ii) - Whether section 13(2)(i) of the Copyright Act 1987 requires prior consent and/or acknowledgement of authorship before the statutory exception may apply 29. Having found that the questions raised by the Defendants are suitable for determination under Order 14A and/or Order 33 Rule 2, this Court now turns to the substantive issue of statutory interpretation.

The Plaintiff contends that the Defendants cannot avail themselves of the protection afforded under section 13(2)(i) of the Copyright Act 1987 because the Plaintiff's prior permission was never obtained and because the Plaintiff was never acknowledged as the owner and author of the photographs concerned. According to the Plaintiff, the absence of consent and acknowledgement is fatal to the Defendants’ reliance on section 13(2)(i).

The Defendants, however, submit that neither requirement appears in the text of section 13(2)(i) and that the Court ought not to read into the provision words which Parliament has deliberately omitted. This Court agrees with the Defendants.

The modern approach to statutory interpretation is well settled. The Court must ascertain the intention of Parliament from the words used in the statute, read in their proper context and in light of the statutory scheme as a whole. In Faekah bt Hj Husin & Ors v Menteri Besar Selangor (Pemerbadanan) [2021] MLJU 613; [2021] 3 MLJ 893, the Federal Court reaffirmed that where the words of a statute are clear and unambiguous, the Court must give effect to their natural and ordinary meaning. The Court should not supplement the statutory text by introducing requirements or qualifications which do not appear in the language enacted by the legislature.

Similarly, in Re Scomi Group Bhd [2022] 7 MLJ 620, the Court emphasised that where Parliament has chosen particular language in one provision but omitted similar language in another provision within the same statute, such omission is presumed to be deliberate unless the statutory context indicates otherwise.

The same principle was applied in Festiva Mall Sdn Bhd v Badan Pengurusan Bersama Zetapark [2025] MLJU 4645, where the Court recognised that statutory provisions must be interpreted harmoniously and that the Court should not imply restrictions or qualifications which Parliament itself has elected not to impose.

Upon examining section 13(2) of the Copyright Act 1987 as a whole, this Court notes that Parliament has, in certain paragraphs, expressly imposed conditions and qualifications upon the operation of particular exceptions. Likewise, where Parliament intended acknowledgement of authorship to be a condition for the availability of a statutory exception, Parliament expressly said so.

Significantly, section 13(2)(i) contains no requirement whatsoever that:

prior consent must first be obtained from the copyright owner; or

acknowledgement of authorship must be given before the exception may operate.

This Court further notes that section 13(2) of the Copyright Act 1987 contains a number of carefully drafted exceptions, each accompanied by conditions which Parliament considered appropriate to the particular exception concerned. The deliberate variation in language employed across the different paragraphs of section 13(2) demonstrates that Parliament was fully aware of how to impose qualifications when it intended such qualifications to apply. The omission of any requirement f or prior consent or acknowledgement in section 13(2)(i) must therefore be regarded as deliberate rather than inadvertent.

A comparison between the various paragraphs under section 13(2) reveals a clear legislative pattern. Where Parliament intended to impose a requirement for 'acknowledgement of authorship' or 'source', Parliament has expressly stated such a requirement, as can be seen in sections 13(2)(a), 13(2)(f), 13(2)(h), 13(2)(m), and 13(2)(n) of the Copyright Act 1987. The absence of such a requirement in section 13(2)(i) indicates that for use by the Government in the public interest, the burden of providing an acknowledgement or obtaining prior consent is not imposed, provided that the other conditions, namely public interest, fair practice, and the absence of profit are strictly complied with.

This Court further finds that the language employed by Parliament in section 13(2)(i) of the Copyright Act 1987 strongly supports the Defendants’ interpretation of the provision.

First, section 13(2) expressly provides that the exclusive rights conferred upon a copyright owner under section 13(1) “does not include the right to control” the categories of use enumerated therein. The effect of this provision is that where a particular use falls within section 13(2)(i), such use is statutorily excluded from the scope of the copyright owner's exclusive rights. Parliament has therefore chosen to limit the extent of the rights granted under section 13(1) in circumstances falling within the statutory exception.

Secondly, Parliament adopted notably broad language by referring to “any use made of a work by or under the direction or control of the Government”. The phrase “any use” demonstrates a legislative intention to confer a wide scope upon the exception, subject only to the conditions expressly prescribed within the provision itself. In the present case, it is not disputed that the AgF-AIS portal was established and operated as a governmental initiative under the Ministry of Agriculture and Agro-Based Industry. Accordingly, the use complained of falls within the category of use contemplated by section 13(2)(i).

Thirdly, Parliament expressly stipulated that the use must be “in the public interest” and “compatible with fair practice”. Significantly, the focus of the provision is therefore directed towards the nature and purpose of the use rather than the existence of prior consent from the copyright owner. The Plaintiff does not dispute that the AgF-AIS portal was created for the dissemination of agricultural and fisheries information to the public and for educational and informational purposes. The public interest element required by section 13(2)(i) is therefore satisfied.

In determining whether the use is compatible with 'fair practice', the Court takes into account that the photographs were used within the context of disseminating authentic agricultural information to the public. Such use, viewed objectively, does not unduly prejudice the commercial exploitation of the work by the Plaintiff, particularly given that the portal is non-commercial and purely educational in nature.

Fourthly, Parliament expressly imposed two additional conditions, namely that “no profit is derived therefrom” and that “no admission fee is charged” for any public performance, showing or playing of the work concerned. The deliberate inclusion of these specific conditions is significant. While Parliament expressly chose to impose those requirements, it did not impose any requirement that prior consent be obtained from the copyright owner, nor any requirement that authorship or copyright ownership be acknowledged.

In the judgment of this Court, that omission cannot be regarded as accidental. Had Parliament intended either prior consent or acknowledgement of authorship to be a prerequisite to the operation of section 13(2)(i), Parliament could easily have said so. The Court is not at liberty to read into the provision words which Parliament deliberately omitted. To do so would amount to judicial legislation rather than statutory interpretation.

The structure of section 13(2)(i), when read as a whole, therefore reinforces the conclusion that prior consent from the copyright owner and acknowledgement of authorship are not legal prerequisites to the operation of the statutory exception created by Parliament.

This interpretation is further reinforced by the maxim expressio unius est exclusio alterius, namely that where Parliament has expressly included certain conditions within a statutory provision while omitting others, such omission is ordinarily presumed to be deliberate. In the present case, Parliament expressly imposed requirements relating to public interest, fair practice, absence of profit and the absence of admission fees, but did not impose any requirement for prior consent from the copyright owner or acknowledgement of authorship. The omission must therefore be regarded as intentional.

This interpretation is consistent with the decision of the High Court in Ultra Dimension Sdn Bhd v. Ketua Pengarah, Lembaga Penggalakan Pelancongan Malaysia & Ors [2010] 1 MLRH 503, where the court considered the application of section 13(2)(i) in the context of photographs used by a government agency in tourism brochures. In that case, the court held that the statutory exception applied as the brochures were published for the public interest of promoting tourism, were distributed free of charge, and no profit was derived from such use. Similarly, in the present case, the AgF-AIS portal serves a clear public interest by providing agricultural and fisheries information to the public at no cost, thereby falling squarely within the ambit of the protection afforded to the Government under the Act.

The deliberate inclusion of particular requirements in certain paragraphs of section 13(2), coupled with their omission from section 13(2)(i), strongly indicates that Parliament did not intend those requirements to form part of section 13(2)(i).

The Plaintiff’s interpretation would require this Court to insert additional words into the statute. Respectfully, that is not an exercise of interpretation but an exercise of legislation, which falls outside the judicial function. Accordingly, this Court finds that section 13(2)(i) of the Copyright Act 1987 does not require prior consent from the copyright owner nor acknowledgement of authorship as prerequisites to the operation of the statutory exception. Issue (iii) : Whether the Plaintiff’s action against the Defendants is barred by virtue of section 13(2)(i) of the Copyright Act 1987 51. Having determined the proper interpretation of section 13(2)(i), the Court must next consider the effect of that interpretation upon the Plaintiff’s claim.

For purposes of the present application, this Court has proceeded on assumptions most favourable to the Plaintiff, namely that:

the Plaintiff is the owner of the copyright in the twenty-three photographs;

the photographs were reproduced and displayed within the AgF-AIS portal; and

the Plaintiff did not grant prior permission for such use.

Even upon those assumptions, the Plaintiff’s case cannot succeed if the impugned use falls within the statutory exception created by section 13(2)(i). The pleadings reveal no dispute that the AgF-AIS portal was established as a governmental initiative intended to collect, organise and disseminate agricultural and fisheries information for public benefit. Nor is it disputed that the portal is accessible to the public without charge and was not established as a commercial profit-generating platform.

The Plaintiff’s objection is not directed towards the educational or informational nature of the portal. Rather, the Plaintiff’s complaint rests principally upon the absence of prior consent and acknowledgement.

However, this Court has already found that neither consent nor acknowledgement constitutes a legal prerequisite under section 13(2)(i). Indeed, the Plaintiff's interpretation would effectively render the statutory exception illusory. If prior consent from the copyright owner were always required before section 13(2)(i) could operate, the exception would serve little practical purpose because the very conduct which Parliament intended to exempt would remain dependent upon the copyright owner's permission. Such an interpretation would be inconsistent with the legislative purpose underlying the provision.

Once that conclusion is reached, the principal foundation upon which the Plaintiff seeks to avoid the statutory defence necessarily collapses. This Court is therefore satisfied that the use complained of falls within the scope of the statutory exception relied upon by the Defendants. Consequently, the Defendants possess a complete statutory defence to the Plaintiff’s claim.

In those circumstances, the remaining questions relating to contribution, indemnity, third-party liability and contractual allocation of responsibility cease to be material. Those issues arise only if liability is first established against the Defendants. Since the Defendants are entitled to rely upon section 13(2)(i), the said issues become academic and no longer require determination.

This Court therefore finds that the Plaintiff’s action against the Defendants cannot be maintained as a matter of law.

For the reasons stated above, this Court finds that:

the questions raised by the Defendants constitute pure questions of law suitable for determination under Order 14A and/or Order 33 Rule 2 of the Rules of Court 2012;

section 13(2)(i) of the Copyright Act 1987 does not require prior consent from the copyright owner nor acknowledgement of authorship before the statutory exception may operate;

the use complained of falls within the scope of section 13(2)(i) of the Copyright Act 1987, being a use made under the direction or control of the Government, in the public interest, compatible with fair practice and from which no profit was derived;

the Defendants are entitled to rely upon the statutory exception afforded by section 13(2)(i), and the Plaintiff's contention that prior consent and acknowledgement are mandatory prerequisites finds no support in the language enacted by Parliament; and

the Plaintiff’s claim against the Defendants is unsustainable in law.

In essence, the Plaintiff's case rests upon the proposition that prior consent and acknowledgement should be implied into section 13(2)(i) of the Copyright Act 1987. For the reasons already stated, this Court is unable to accept that proposition. The language enacted by Parliament is clear and unambiguous. To imply additional requirements into the provision would amount to rewriting the statute rather than interpreting it.

The present case is not ultimately about ownership of photographs, but about the legal consequences flowing from the use of those photographs in circumstances expressly contemplated by Parliament under section 13(2)(i).

Before concluding, this Court considers it appropriate to emphasise that the present application is not concerned with determining whether the Plaintiff is the owner of the copyright in the twenty-three photographs in question. Neither is this Court required, for the purposes of Enclosure 48, to make any final determination as to how the photographs came to be uploaded onto the AgF-AIS portal or which particular individual was responsible for such upload.

Those matters, although extensively debated by the parties, are not the issues that ultimately determine the outcome of the present application. The real question before this Court is considerably narrower. It concerns whether Parliament intended the statutory exception contained in section 13(2)(i) of the Copyright Act 1987 to be subject to requirements of prior consent and acknowledgement notwithstanding the absence of any such language in the provision itself.

Having carefully considered the text of section 13(2)(i), the structure of section 13(2) as a whole and the principles of statutory interpretation relied upon by the parties, this Court finds that Parliament deliberately identified the conditions governing the operation of the statutory exception. Parliament expressly required that the use be made by or under the direction or control of the Government, be in the public interest, be compatible with fair practice, and be carried out without profit and without admission fees where applicable.

Significantly, Parliament did not require prior consent from the copyright owner nor acknowledgement of authorship as conditions precedent to the operation of section 13(2)(i). The omission is both conspicuous and deliberate. To imply such requirements would not be an exercise in statutory interpretation but an impermissible exercise in judicial legislation.

The Court's constitutional function is to interpret legislation as enacted by Parliament and not to supplement statutory language with additional requirements which Parliament itself has elected not to impose.

Ultimately, this case does not turn on disputed questions concerning ownership of the photographs, authorship of the photographs or the circumstances under which the photographs were uploaded onto the AgF-AIS portal. For purposes of the present application, this Court has been prepared to assume those matters in favour of the Plaintiff.

Even upon those assumptions, the Plaintiff's claim remains unsustainable because the conduct complained of falls within a statutory exception expressly enacted by Parliament. The dispute is therefore capable of resolution through the determination of a pure question of law without the necessity of a full trial.

This Court is therefore satisfied that Enclosure 48 represents an appropriate invocation of Order 14A and Order 33 Rule 2 of the Rules of Court 2012 and that the interests of justice are best served by determining the legal issue at this stage rather than requiring the parties to incur the expense and delay of a trial that cannot alter the legal outcome.

For the avoidance of doubt, this Court makes no determination as to the ownership of copyright in the photographs concerned, as such determination is unnecessary for the disposal of Enclosure 48. The present decision proceeds on the basis that even assuming the Plaintiff is the copyright owner, the use complained of falls within the statutory exception provided under section 13(2)(i) of the Copyright Act 1987.

Enclosure 48 is allowed.

The questions of law set out in Appendix A are answered in favour of the Defendants. In particular, this Court holds that section 13(2)(i) of the Copyright Act 1987 does not require prior consent from the copyright owner nor acknowledgement of authorship as prerequisites to the operation of the statutory exception contained therein. The Defendants are entitled to rely upon the exception provided under section 13(2)(i) of the Copyright Act 1987.

Accordingly, the Plaintiff's claim against the Defendants is dismissed as being barred by the statutory exception contained in section 13(2)(i) of the Copyright Act 1987.

In light of the Court's determination of the questions of law, the Third Party proceedings are rendered academic and no further order is required thereon.

Costs RM8000.00 awarded to the Defendants. DATED :22ND JULY 2026 -SIGNED-MANIRA BINTI MOHD NOR JUDICIAL COMMISSIONER CIVIL 4 HIGH COURT JOHOR BAHRU For the Plaintiff R.Jayabalan together with Hardip Singh,Kimberly Ann Felix and Anira Frank a/p Peter Messrs Terang Manjit, Azmi & Hardip Singh Johor Bahru For the Defendants Liew Horng Bin together with Siti Syakimah Binti Ibrahim Senior Federal Counsel Attorney General’s Chamber Putrajaya