Malaysia legislation

Section 32

of COPYRIGHT (AMENDMENT) ACT 2012

Section 32

New Parts VIa and VIb

The principal Act is amended by inserting after Part VI the following Parts:

“Part VIa

ANTI-CAMCORDING

Offences relating to anti-camcording 43a. (1) Any person who operates an audiovisual recording device in a screening room to record any film in whole or in part shall be guilty of an offence and shall on conviction be liable to a fine of not less than ten thousand ringgit and not more than one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.

(2)

Any person who is guilty of an attempt to commit an offence under subsection (1) shall on conviction be liable to a fine of not less than five thousand ringgit and not more than fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both.

(3)

For the purpose of this section—

“audiovisual recording device” means any device which is capable of recording or transmitting a motion picture or any part thereof;

“motion picture” means film;

“screening room” means any venue which is utilized for the exhibition or screening of a motion picture, including a motion picture theatre.

Part VIb

LIMITATION OF LIABILITIES OF THE SERVICE

PROVIDER

Interpretation 43b. For the purpose of this Part—

“another network” means any type of network that is able to connect with the primary network;

“court” means the appropriate High Court in

Malaysia;

“electronic copy”, in relation to any work, means a copy of the work in an electronic form and includes the original version of the work in that form on a network;

“originating network” means another network from which an electronic copy originates;

“primary network”, in relation to a service provider, means a network controlled or operated by or for the service provider;

“routing” means directing or choosing the means or routes for the transmission of data;

“service provider”—

(a)

for the purpose of section 43c, means a person who provides services relating to, or provides connections for, the access, transmission or routing of data;

and

(b)

for the purpose of this Part other than section 43c, means a person who provides, or operates facilities for, online services or network access and includes a person referred to in paragraph (a).

Transmission, routing and provision of connections 43c. (1) A service provider shall not be held liable for infringement of copyright in any work if the infringement occurs by reason of—

(a)

the transmission or routing, or the provision of connections, by the service provider of an electronic copy of the work through its primary network; or

(b)

any transient storage by the service provider of an electronic copy of the work in the course of such transmission, routing or provision of connections:

Provided that—

(a)

the transmission of the electronic copy of the work was initiated by or at the direction of a person other than the service provider;

(b)

the transmission, routing, provision of connections or storage is carried out through an automatic technical process without any selection of the electronic copy of the work by the service provider;

(c)

the service provider does not select the recipient of the electronic copy of the work except as an automatic response to the request of another person; or

(d)

the service provider does not make any modification, other than a modification made as part of a technical process, to the content of the electronic copy of the work during its transmission through the primary network.

(2)

Where infringing material has been identified to come from an online location outside Malaysia or from a specified account and if the court is satisfied that subsection (1)

applies to the service provider, the court may order the service provider—

(a)

to take reasonable steps to disable access to an online location that is physically situated outside Malaysia;

(b)

to terminate the specified account.

System caching 43d. (1) A service provider shall not be held liable for infringement of copyright for the making of any electronic copy of the work on its primary network if it is—

(a)

from an electronic copy of the work made available on an originating network;

(b)

through an automatic process;

(c)

in response to an action by a user of its primary network;

(d)

in order to facilitate efficient access to the work by a user:

Provided that—

(a)

the service provider does not make any substantive modification, other than a modification made as part of a technical process, to the content of the electronic copy during the transmission of such copy to users of its primary network or another network; and

(b)

the service provider satisfies such other conditions as the Minister may determine in relation to—

(i)

access to the electronic copy by users of its primary network or another network;

(ii)

the refreshing, reloading or updating of the electronic copy; and

(iii)

non-interference with the technology used at the originating network to obtain information about the use of any work on the originating network, being technology that is consistent with industry standards in Malaysia.

(2)

A service provider shall not be held liable under this section if the copyright owner or his agent has not given any notification under section 43h.

Storage and information location tools 43e. (1) A service provider shall not be held liable for infringement of copyright in any work where such infringement occurs by reason of—

(a)

the electronic copy of the work being stored at the direction of a user of its primary network;

(b)

the service provider referring or linking a user to an online location on an originating network at which an electronic copy of the work is made available by the use of an information location tool such as a hyperlink or directory, or an information location service such as a search engine, if—

(i)

the service provider—

(A)

does not have actual knowledge that the electronic copy of the work or activity is infringing; or

(B)

in the absence of such actual knowledge, is not aware of the facts or circumstances from which the infringing activity is apparent;

(ii)

the service provider does not receive any financial benefit directly attributable to the infringement of the copyright in the work that occurs in, or in the course of, making available the electronic copy on its primary network or on another network, and that the service provider does not have the right and ability to control the infringing activity;

and

(iii)

upon receipt of a notification of any infringement under section 43h, the service provider responds within the time specified to remove or disable access to the material that is claimed to be infringing or to be the subject of the infringing activity.

(2)

In determining whether a financial benefit is directly attributable to the infringement of copyright in the work, the court shall have regard to—

(a)

the industry practice in relation to the charging of services by a service provider;

(b)

whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practices; and

(c)

any other matter that the court considers relevant.

(3)

A service provider shall not be held liable under this section if the copyright owner or his agent has not given any notification under section 43h.

Exemption of service provider from liability for removal of copy or other activities from network 43f. (1) A service provider acting in compliance with subsection 43h(1) and in accordance with this Part shall not be subject to any liability in respect of an action taken in good faith in relation to—

(a)

the removal of an electronic copy of a work from its primary network; or

(b)

the disabling of access to an electronic copy of a work on its primary network or another network.

(2)

Upon removing or disabling access to an electronic copy of a work under subsection (1), the service provider shall notify, as far as may be practicable, the person who made available the electronic copy of the action taken by the service provider and enclosing therewith a copy of the notification received by it pursuant to subsection 43h(1).

(3)

Notwithstanding anything to the contrary, if—

(a)

as a result of a settlement between the copyright owner of the work and the person who made available the electronic copy of the work, the service provider receives a written notification from either party to restore the electronic copy to the network or to restore access to that copy; or

(b)

the person who made available the electronic copy of the work was adjudicated by any court or tribunal as the rightful copyright owner of the work, the service provider shall, as far as practicable—

(A)

restore the electronic copy of the work to its primary network; or

(b)

restore access to the electronic copy of the work on its primary network or another network:

Provided that the service provider is furnished with the proper documentation relating to the settlement between the parties or judgment or decision of the court or tribunal.

(4)

A service provider shall not be treated as having authorized the doing of any act which is an infringement of copyright under this Act solely by reason of the service provider having provided a facility which was used by a person to perform the infringing act.

Information on service provider 43g. (1) In providing its service to the users, a service provider shall make available the following information in a manner which is accessible to any person using the service:

(a)

the name and address of the service provider; and

(b)

the details and particulars of a designated agent to receive any complaint or notice regarding an allegation of infringement of copyright.

(2)

Failure by a service provider to comply with subsection (1) shall not entitle the service provider to rely on the protection provided under this Part.

Notification by copyright owner and its effect 43h. (1) If an electronic copy of any work accessible in a network infringes the copyright of a work, the owner of the copyright which has been infringed may notify the service provider of the network of such infringement by issuing to the

service provider a notification in the manner as determined by the Minister, requiring the service provider to remove or disable any access to the electronic copy on the service provider’s network:

Provided that the owner of the copyright shall undertake to compensate the service provider or any other person against any damages, loss or liability arising from the compliance by the service provider of such notification.

(2)

A service provider who has received a notification under subsection (1) shall remove or disable any access to the infringing electronic copy on its network not later than forty-eight hours from the time the notification was received.

(3)

The person whose electronic copy of the work was removed or to which access has been disabled pursuant to subsection (2) may issue to the service provider a counter notification in the manner as may be determined by the Minister, requiring the service provider to restore the electronic copy or access to it on the service provider’s primary network:

Provided that the person shall undertake to compensate the service provider or any other person against any damages, loss or liability arising from the compliance by the service provider of such counter notification.

(4)

A service provider shall—

(a)

upon receipt of a counter notification, promptly provide the issuer of the notification under subsection (1) with a copy of the counter notification and inform such issuer that the removed material or access to the said material will be restored in ten business days; and

(b)

restore the removed material or access to it not less than ten business days following receipt of the counter notification, unless the service provider has received another notification from the issuer of the notification under subsection (1) that he has filed an action seeking a court order to restrain the issuer of the counter notification under subsection (3) from engaging in any infringing activity relating to the material on the service provider’s network.

(5)

A counter notification shall be issued to the service provider’s designated agent containing the following information:

(a)

a physical or electronic signature of the subscriber;

(b)

identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

(c)

a statement under penalty of perjury that the issuer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and

(d)

the issuer’s name, address, telephone number and a statement that the issuer consents to the jurisdiction of the court in which the address is located, or if the issuer’s address is outside Malaysia, in which the service provider may be found, and that the subscriber will accept service of process from the person who provided the notification under subsection (1) or an agent of such person.

Maker of false notice guilty of offence and liable in damages 43i. (1) If a person making a notification in accordance with section 43h makes any statement which is false, which he knows to be false or does not believe to be true, and which touches on any point material to the object of the notice—

(a)

he shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both; and

(b)

he shall be liable to compensate any person who suffers any loss or damages as a result of making the notification.

(2)

Subsection (1) shall apply whether or not the statement is made in Malaysia, and if a person makes the statement outside Malaysia, he may be dealt with under paragraph (1)(a)

as if the offence was committed in Malaysia.”.

New section 45a