Malaysia legislation

Section 27

of COPYRIGHT (AMENDMENT) ACT 2012

Section 27

The principal Act is amended by substituting for section 37

the following section:

“37. (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:

(a)

an order for injunction;

(b)

damages;

(c)

an account of profits;

(d)

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

(e)

any other order as the court deems fit.

(2)

Notwithstanding subsection (1), all such relief shall be available to the plaintiff in an action under subsection 36a(3)

except for statutory damages.

(3)

In making an award under paragraph (1)(b), the court may also make an order under paragraph (1)(c) for an account of any profits attributable to the infringement or prohibited act that have not been taken into account in computing the damages.

(4)

Except as provided in subsection (3), the types of relief referred to in paragraphs (1)(b), (c) and (d) are mutually exclusive.

(5)

For the purpose of paragraph (1)(d), all parts of a collective work shall constitute one work.

(6)

Where in an action under this section it is established that an infringement or a prohibited act under section 36a or 36b was committed but it is also established that at the time of the infringement or commission of the prohibited act the defendant was not aware, and had no reasonable grounds for suspecting, that the act was an infringement of the copyright or prohibited under section 36a or 36b, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement or commission of the prohibited act, but shall be entitled to an account of profits or statutory damages whether or not any other relief is granted under this section.

(7)

Where in an action under this section an infringement of copyright or the commission of a prohibited act under section 36a or 36b is established, the court may, in assessing damages for the infringement or commission of the prohibited

act, award such additional damages as it may consider appropriate in the circumstances if it is satisfied that it is proper to do so having regard to—

(a)

the flagrancy of the infringement or prohibited act;

(b)

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

(c)

all other relevant matters.

(8)

In awarding statutory damages under paragraph (1)(d), the court shall have regard to—

(a)

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;

(b)

the flagrancy of the infringement or prohibited act;

(c)

whether the defendant acted in bad faith;

(d)

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

(e)

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

(f)

the conduct of the parties before and during the proceedings;

(g)

the need to deter other similar infringement or prohibited act; and

(h)

all other relevant matters.

(9)

An injunction shall not be issued in any proceedings under this section if it requires a completed or partly built building to be demolished or prevents the completion of a partly built building.

(10)

For the purposes of this section and section 38—

(a)

“action” includes a counterclaim, and reference to the plaintiff and to the defendant in an action shall be construed accordingly;

(b)

“collective work” means a work in which relevant materials, constituting separate and independent works in themselves, are assembled into a collective whole;

and

(c)

“court” means the appropriate High Court in

Malaysia.

(11)

For the purpose of this section, “owner of the copyright”

means the first owner or an assignee of the relevant part of the copyright.”.

Amendment of section 38