Reproduction of Copyright Works in New Forms

Copyright refers to the right of the owner to control the doing of certain acts in relation to his or her created work
​Image credits: http://www.tannet.my/malaysia-copyright-protection/

I. Introduction

Copyright is a form of intellectual property. It is a legal term used  to describe the rights that exist for the creators over their copyrighted work. An inference can be made that copyright was the first legal response to challenge new technology as it came into existence as early as the sixteenth and seventeenth century as a reaction to the rapid growth of moveable type printing presses which facilitated the production and distribution of printed materials. Prior to the rapid growth in the moveable type printing press in Johannes Gutenberg in what is now modern day Germany, rights involving creative works was never considered. Creative works were non-rivalrous despite existence and development of concepts relating to exclusiveness of property and goods. Throughout the glorious historic days of the Roman and Greek, written or spoken words were not covered by any sort of exclusivity. 

​The printing press industrialised the process of distribution which, to no surprise, led to a profitable industry that more often than not benefited the publishers and booksellers rather than the authors, i.e the creators of the work. This caused much dispute and tension that lasted for over a century in a debate as to who had the rights to issue the copies to the general public. This triggered and came to an end when the world’s first Copyright Act, the Statute of Anne[1], came into effect. The Statute of Anne is the core foundation of any modern day copyright law globally. It expressly provided that authors of books, including poems and play texts, have an absolute right to control the publication of their work for a period of twenty one years and fourteen years for any works that has been published prior to the Act coming into force. Presently, most countries have enacted copyright legislations, namely the Copyright, Designs and Patents Act 1988 in the United Kingdom, the Copyright Act 1987 in Malaysia, and the Copyright Act 1976 in the United States.

This paper will discuss the reproduction of copyright works in new forms in depth. However, before that issue is addressed, one must first understand the exclusive rights granted to a maker of a particular copyright work under the existing legislation.

The Malaysian Copyright Act 1987 entitles the copyright owner to control (i) the reproduction of the work in any material form; (ii) the performance, showing or playing to the public; (iii) the communication of the work to the public; (iv) the distribution of copies to the public by sale or other transfer of ownership; and (v) the commercial rental of the work to the public.[2]

Reproduction is defined as the making of one or more copies of work in any form or version, and in relation to an artistic work includes the making of a copy in three dimensions of a two dimensional work and the making of a copy in two dimensions of a three dimensional work.[3] Prior to the 1996 amendments, the Act was silent regarding reproduction in relation to artistic works. Siti Norma J (as she then was) in the case of Peko Wallsend Operations Ltd & Ors v Linatex Process Rubber Bhd[4] opined that “since the Act makes direct copying an infringement, it is only right and proper that indirect copying is also an infringement, as to conclude otherwise would go against the intention of the legislature in enacting the Act as it did.”[5] 

If any copyrighted work is reproduced without the consent of the copyright owner, this situation invites an action for copyright infringement regardless of whether there is literal copying or non-literal copying of the original copyrighted work. Literal copying is often referred to as pirated copies which are precise identical copies of a particular work, and are usually produced with a view to sell or otherwise distribute as a substitute of the original, but does not necessarily have to be in the same form as the original. Non-literal copying, on the other hand, occurs on a much smaller scale if compared to literal copying but it is much more legally complex and technical. It occurs when a structure, design or characterisation of a literary work is copied. This simply means that the reproduction rights available for copyright owners in accordance to Section 13(1)(a) of the Copyright Act 1987 is not merely a right to control the making of duplicate or facsimile copies but also extends to the making of copies in a medium different from the original work.

Which ever mechanism of copying is used - literal or non literal, in order to reproduce a copyrighted work in a new form, a claimant has to first satisfy three elements to establish that a prima facie case of copyright infringement has occurred. These three elements to be proven are (A) the objective similarity between the plaintiff’s work and the defendant’s work, (B) the causal connection between the two works, and (C) the part copied is a substantial part of the defendant’s work.

A. Objective Similarity

The first element that has to be established by the claimant is that there is an objective similarity between the plaintiff’s work and the defendant’s work. This is an objective test which may be discharged by comparing the similarities between the original work and the alleged infringing copy. The purpose of identifying objective similarities is to determine whether the similarities relied on are sufficiently close, numerous or extensive to be more likely the result of copying rather than of coincidence. Those that are commonplace, unoriginal or consist of general ideas are generally to be disregarded.[6] Where the infringing copy in question is an exact copy of the original, proof of objective similarities generally does not pose much difficulty for the claimant to establish. In Mohd Ramly @ Dzulkifli bin Ismail v Sarimah Film Production Sdn Bhd & Anor[7]it was observed that it would be difficult to show substantial similarities in the plots, scenic effects and incidents when comparing stage-play scripts. This boils down to the question: How far beyond literal similarities does the reproduction right extend?

In Universal City Studios Inc v Zeccola[8], the plaintiffs were the copyright owners of a novel, screenplay, and cinema film called Jaws. The screen play and the film were solely based on the novel, and the film and the novel enjoyed huge international success. The defendant had made a film entitled Great White, which consists of the same theme as Jaws, i.e shark attack. The plaintiffs claimed that this had led to an infringement of their copyright,and sought for interlocutory relief. In this particular case, there was no admission by the defendant as to copying. Therefore, the plaintiffs must rely upon inferences that may be drawn from a comparison of the two films, and the conduct of the both parties. The defendants submitted that Jaws and Great White fall under a category of films based on genre. More precisely, it was said that each is a film about a killer shark menacing human beings. It was further submitted by the defendants that, if put correctly, there is no copyright in that general idea. Additionally, a film in that category must almost necessarily require involvement of the sea, persons to be threatened or killed, boats, piers, fishermen and a hunt. The defendants were merely suggesting that the similarities in existence between the two films did not go beyond what was necessarily required in the making of such a film.

The plaintiffs’ case, however, is that the similarities between the two films are such that they give rise to an inescapable inference that the latter film was intentionally copied from the former. Gray J (as he then was) opined that;

 “...practically all the principal situations and characters in Jaws had been reproduced. This would not be so apparent if the submissions and characters were of commonplace. However,t a factual situation in which a fish terrorises a land-based community is, in my opinion, singular and original. The basic characters in each film are the same. First, there is the shark itself. The shark has a singular character of its own by reason of its extraordinary strength and savagery and its presence in an unlikely area. In each film it is a shark of the same genus and species. In each film the shark appears to develop a taste for blood and therefore remains in the vicinity of the town to satisfy this appetite. In each film there is a sequence in which an attempt is made to catch the shark by tying a bait by a chain to a jetty. In each case the shark drags the jetty away with it, together with people caught on the jetty. In each film a huge mechanical shark is used which enables it to be shown with its head and body right out of the water, looming over the terrified victim. As to other characters, the politician is perhaps the most recognisable. Each of the films has a character of a blond wife who waits anxiously in the wings. Each has a child which, in due course, is attacked by the shark. Each also joins in the final hunt by which the shark eventually meets its death. In each film the most important character in the second part is the professional fisherman. The two actors are remarkably similar in appearance and mode of dress. Each man employs an accent which might be said to be Scottish. Apart from characters, a number of singular events appear in each film. In each film an empty boat is found adrift which belongs to a local fisherman who has disappeared from the boat. Eventually a part of his body is found showing huge teeth marks. Another common incident is one in which the shark attacks a small boat causing it to capsize, whereupon it eats the occupant. I think it is fair to say that there was no major character in the film who could not be recognised as having a close counterpart in Jaws.”[9]

The plaintiffs were then granted the interlocutory relief sought. The defendants filed for an appeal to the Full Federal Court which was later dismissed.
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In a much older case, Rees v Melville[10], the plaintiffs alleged there was infringement of their play, The Beggar Bride by the defendant’s play, The Beggar Girl’s Wedding. Cozen-Hardy MR stated that, “In order to constitute an infringement it was not necessary that the words of the dialogue should be the same, the situations and incidents, the mode in which the ideas were worked out and presented might constitute a material portion of the whole play and the Court must have regard to the dramatic value and importance of what if anything was taken, even although the portion might in face be small and actual language not copied... On the other hand, the fundamental ideal of two plays might be the same, but if worked out separately and on independent lines they might be so different as to bear no real resemblance to one another.”[11]

These are the classic examples of determining the objective similarities when it comes to the cinematic or entertainment industry. As for technological inventions, there was much grey area and uncertainty previously in determining objective similarities between two computer programs. Computer softwares are eligible for copyright protection as it falls within the definition of literary work.[12] In the early Australian cases, Accounting Systems 2000 (Development) Pyt Ltd & Anor v CCH (Australia) & Anor[13] and Computer Edge Pty Ltd v Apple Computer Inc[14] the courts decided that only the program in the source code and not the object code was the subject matter of copyright. A screen display may be used to demonstrate the underlying contents of the program, but it must always be noted that similarities in the screen displays between two or more softwares may not necessarily mean that copying has occurred. Sir Robert Megarry V-C stated that:

 “…the results produced by operating the program must not be confused with the program in which copyright is claimed. If I may take an absurdly simple example, 2 and 2 make 4. But so does 2 times 2, or 6 minus 2, or 2 percent of 200 or 6 squared divided by 9, or so many other things. Many different processes may produce the same answer and yet remain different processes that have not been copied one from another.”[15]

However, in the English Courts,, Pumfrey J (as he then was) expressed in the case of Cantor Fitzgerald International v Traditional (UK) Ltd[16] that the consideration of similarities in so far as computer programs are concerned, however, are not restricted to the text of the code alone; it may also encompass its non – literal elements such as the program’s structure, sequence and organisation, and design, or what is also referred to as the ‘architecture’ of a program. In the United States, the determination of whether a copyright is infringed when only non-literal elements are copied depends on whether the non-literal element in question constitutes part of the program’s expression or just merely the underlying idea of the program.

In Whelan Associates Inc. v Jaslow Dental Laboratory Inc[17], Strohl Systems Group wrote and developed a software for the Respondent. Terms and conditions of the agreement permit Strohl to resell the software to other dental laboratories. In return, the Respondent receives 10% royalty for each copy sold. Ms. Whelan who wrote and developed the software, Dentlab, subsequently bought all rights to the software and started her own company, Whelan Associates. Respondent started to develop an alternative program, Dentcom as he discovered there was a potential market for it. The Respondent studied the plaintiff’s program and developed the new program, Dentcom, but it was written in a different language. Judge Becker held that ‘…the purpose or function of a utilitarian work would be the work’s idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea.”[18] Therefore, in applying the test laid down, the court was in the view that the purpose of the software was to essentially assist in the operations of a dental laboratory. A software could be created and designed in many ways in order to achieve the purpose as the initial original structure is not essential to the purpose in which means an expression of Ms. Whelan’s expression. Since Dentcom and Dentlab shared many structural elements, as the look and feel of both software’s were substantially similar, the court was satisfied that there was copyright infringement.

 The test laid down in the case of Whelan did not last long. In 1992, the courts in Computer Associates International Inc. v Atlai[19] introduced a new three-step test when dealing with non- literal infringement of utilitarian work. The three-stage test then was said to be more precise than the test laid down in Whelan on the basis that it would prevent copyright from being used to protect essential elements such as a menu system. The test comprises of abstraction, filtration and comparison. Basically, the first stage is to reverse engineer and deconstruct the software from the lowest level to the highest level, followed by a filtration stage where all unprotected expressions are to be separated from protected expression. Finally, a comparison is to be made to determine if any copyright infringement has occurred. The court at first instance, applying the test, held that none of the lines of code in the defendant’s program was identical to the plaintiff’s code and that the similarities in the non – literal elements were due to the fact that both programs were meant to run on the same operating system.

Although the Malaysian Copyright Act is silent on the objective similarity requirement, it has been adopted and applied by the courts in the case of Longman Malaysia Sdn Bhd v Pustaka Delta Pelajaran Sdn Bhd.[20]

B. Causal Connection

One must bear in mind that proof of objective similarities does not conclusively amount to proof of copying. The claimant must further establish that the defendant’s work is copied from his/her work. Therefore, the second element that has to be satisfied by the claimant is that there was a causal connection between the two works. Although sufficient similarities generally indicates the existence of a causal connection, it is a rebuttable presumption as to copying.

Upjohn LJ in Francis Day & Hunter v Bron[21] stated that whether there was copying was a question of fact in two stages, “The first stage is objective, and the second stage is subjective. The first question is whether in fact the alleged infringing work….is similar to the work of the original author…. Is it then proper to draw inference that the defendant’s work may have been copied from the plaintiff’s work? This is purely an objective question of fact, and depends in large degree upon the aural perception of the judge, but also upon the expert evidence tendered to him… The next stage is the subjective stage and is equally a question of fact, though…the degree of similarity is most important in reaching this subjective conclusion. The question is, has the defendant copied the plaintiff’s work, or is it an independent work of his own?”[22]

Therefore, for the second question to be answered, a proper inference must be drawn from the facts of the case as the copying may occur literally or non-literally. Any production of any article in accordance to a verbal description which conveys to the infringer the actual shape and form of the copyrighted work is sufficient to establish a causal link between the work and the infringing article.[23]

In Henkel KGaA v Holdfast New Zealand Ltd[24] the court held to find copyright infringement, there needs to be evidence to show that the alleged infringing work had been copied from the copyrighted work. The Assistant Commissioner opined that, “The ultimate issue in a breach of copyright case concerns derivation, not similarity, albeit the degree of similarity between the copyright work and the allegedly infringing work has evidentiary significance. Proof of copying will seldom be direct; in most cases the Court will rely on inference. The closer the similarity between the two works the stronger the inference is likely to be that the one was copied from the other. If the alleged infringer has had access to, and therefore an opportunity to copy, the copyright work, and the similarity between the works supports an inference of copying, it may well be appropriate for the Court to conclude, on the balance of probabilities, that there was indeed copying.”

Despite the fact that the infringing work was identical to the copyrighted work, the Commissioner was reluctant to come to an inference to suggest copying solely based on the high degree of similarity without further evidence.[25]

However, the courts took a slightly different approach when determining the causal connection in respect of computer programs. It may not be sufficient to establish a causal connection if the defendant had not had access to the computer program but rather reverse engineered the final product with the aid of a computer program and written another program to produce a similar product. In Coogi Australia Pty Ltd v Hysport International Pty Ltd & Ors[26] the plaintiff claimed that its copyright in a fabric design which was successfully made using a computerised machine was infringed by the defendants who produced same fabric design on its own knitting machines. The plaintiff could not prove that the defendants had any access to the plaintiff’s computerised fabric patterns. The defendants had actually reverse engineered a sample of the plaintiff’s fabric and from the findings obtained wrote their own program in order to produce similar fabric pattern.

The presiding judge, Drummond J held that, “In my opinion, it will never be possible to make out a case that one program constitutes to an infringement of another computer program where the purpose of the original is to control the manufacture of an object and the alleged infringer has produced its computer program to enable it to manufacture a like object by reverse engineering the original object, that is, by analyzing it to see how it has been constructed and then by writing its own program to identify the steps that have to be gone through to make the object.”[27]

Similarly, the English courts adopted the same approach when the most significant non – literal infringement case came in 2004, Navitaire Inc. v easyJet Airline Co. & Anor.[28] The claimant, Navitaire, claimed that the defendant had attempted to reverse engineer and replicate a proprietary software, OpenRes. OpenRes was supplied by the claimant under license to the defendant for the use on their website. It allowed the defendants to take and accept bookings online without the need to issue any physical ticket. easyJet wanted to overhaul their booking software and negotiated with Navitaire about the upgrade required but came to no agreement. easyJet requested the second defendant, Bulletproof Technologies, to write a new booking system that will allow easyJet to install the upgrades desired but on a requirement that the new system shall operate in all respects exactly alike as OpenRes. This gave birth to eRes, which was designed and developed by Bulletproof. No examination or use of any OpenRes codes were utilised in developing the latter software. As none of OpenRes code was literally copied, the claimant raised a non – literal infringement. The crucial question was whether any infringement had occurred simply because both the software’s looked the same, operated the same way and even produced the same results. This is a classic example of copying without having access to the thing copied, directly or indirectly.[29]

Based on the merit of the claim, Pumfrey J was not willing to extend copyright protection in this manner. He closes his analysis by saying “take the example of a chef who invents a new pudding. After a lot of work he gets a satisfactory result, and thereafter his puddings are always made using his written recipe, undoubtedly a literary work. Along comes a competitor who likes the pudding and resolves to make it himself. Ultimately, after much culinary labour, he succeeds in emulating the earlier result, and he records his recipe. Is the later recipe an infringement of the earlier, as the end result, the plot and purpose of both (the pudding) is the same? I believe the answer is no.”[30]

Therefore, in order for a claimant to establish a causal connection, it must be evident that - either directly or indirectly - the alleged defendant had in making his/her copy, appropriated the labours of the claimant.

C. Substantiality of the Copied Parts

Once objective similarities and causal connection are established based on evidence and inferences, the issue of substantiality shall be considered, being the third and last element to be proven in order for a prima facie case to exist.

The general principle is that unless the part copied is a substantial part of the plaintiff’s work, there is no copyright infringement. The important question to be determined is stated by Lord Pearce: “the question here is whether a substantial part of the plaintiff’s work has been copied, not whether the part copied is a substantial part of the defendant’s work.”[31]

‘Substantial part’ is not defined, but may be determined by referring to factors that have been laid down by the courts in other common law jurisdictions. The Malaysian Courts adopted these factors in the case of Longman Malaysia Sdn Bhd v Pustaka Delta Pelajaran Sdn Bhd.[32] The subject matter of the case appears to be that the plaintiff’s textbook had about 304 diagrams while the defendant had 366 diagrams. The primary question here is whether was there a substantial reproduction of the plaintiff’s work by the defendant.

The presiding judge in the case, Gunn J, relied on three important factors as addressed by Ricketson in his book, The Law of Intellectual Property.[33] The first factor addressed was in relation to the element of originality of the part copied; whether there were sufficient skill and labour expended in making the said part. It is said that if there had been sufficient skill and labour expended, then the part is substantial although slight in quantitative measure. This factor was precisely expressed by Lord Pearce when he stated that “whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that  collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that ‘there is no copyright’ in some unoriginal part of a whole that is copyright”[34]

Next, it must be determined whether the defendant’s object in taking and utilising the part copied is the same as the plaintiff. The last factor that was adopted by Gunn J is whether the part taken interferes with the sales of the original work and/or competes with it. Based on the facts of the case, Gunn J found that there was sufficient amount of skill and labour expended by the plaintiff and it is clear that the purpose of the reproduction by the defendant in the new form is the same as the plaintiff, and the part taken did affect the plaintiff’s sales. It was held that although only a small quantity of the work had been copied, the part copied was substantial and therefore, the defendant was held liable for copyright infringement.

However, if only an idea underlying a work is copied, there will be no copyright infringement. Lord Hailsham in the case of Plastics Ltd v Swish Products Ltd[35] opined that “….it is trite law that there is no copyright in ideas, and it may be that if all the respondents were shown to have copied from the appellants was the idea of some sort of external latching of the moulded corner pieces and clips to the extrusions, this would have been a sound enough conclusion. But, of course, as the late Professor Joad used to observe, it all depends on what you mean by ‘ideas’. What the respondents in fact copied from the appellants was no mere general idea.”[36]

The Malaysian Copyright Act is consistent and beyond the view of Lord Hailsham as Section 7(2A) of the Copyright Act 1987 states that copyright protection shall not extend to any idea, procedure, method or operation or mathematical concept as such.

In Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd[37], the plaintiffs owned the copyright in the words and music of a song entitled ‘Rock-a-Billy’, which was a major successful hit in 1957. The words sung and related is a four-line chorus:

Rock-a-Billy, Rock-a-Billy, Rock-a-Billy, Rock,
Rock-a-Billy, Rock-a-Billy, Rock-a-Billy, Rock,
Rock-a-Billy, Rock-a-Billy, Rock-a-Billy, Rock,
Rock-a-Billy, Rock-a-Billy, Rock, Rock.

In the same year, 1957, the defendant newspaper published a special article on Prince Philip who at that time was subjected to heavy criticism due to his apparently ‘dangerous pastimes’. The article was titled, ‘Rock-a-Philip, Rock! Rock!’ and was further repeated another four times. McNair J said that the primary question to be considered is whether has there been a substantial part of the words reproduced. He later held that, “…it would not be right merely to say that the whole of the original copyright consisted of so many lines, the lines which appear in the alleged infringing copy were few, and, therefore, not a substantial part. One has really to look to a large extent – I will not say at the primary ‘idea’, because idea cannot be the subject of copyright – but at the essential feature of the work which is alleged to have been subject to copyright.”[38]

Although the jury found in favour of the plaintiff, McNair J was in the view that while it can be established that the article by Paul Boyle in the Sunday Pictoral Newspaper had its origin from ‘Rock-a-Billy’, it was produced with sufficient new labour as to qualify for new original work. Under the Malaysian Copyright Act however, such an act would be exempted from liability as Section 13(2)(b)[39] of the Act expressly provides an exemption to any act in relation to parody, pastiche or caricature, and Paul Boyle’s article was no more than a parody.

The famous non – literal copying case is Baigent & Anor v The Random House Group Ltd (The Da Vinci Code)[40], where the High Court had to determine and decide whether copyright infringement has occurred. The primary question for the court in this case was whether the blockbuster novel by Dan Brown, The Da Vinci Code (DVC), had copied elements from a previously published non – fiction book, The Holy Blood and the Holy Grail (HBHG). The authors of HBHG claimed that Mr. Brown had copied the sole central theme of HBHG, and further expressed that without the said central theme there is very little or no structure to be found in either books.

Peter Smith J in deciding the case was in the view that “even if there is a Central Theme as alleged by the Claimants in HBHG it is merely an expression of a number of facts and ideas at a very general level. There is nothing in them in my view that goes beyond that proposition. It follows therefore that the Central Theme as expressed is not such as to justify being protected against copying.”[41] He added further that “as ideas themselves cannot be copyrighted therefore Mr. Brown had not substantially copied the original work.”[42] This is a typical literary non – literal infringement case where the debate is usually surrounding the shared structures, themes, and concepts which are, on one hand, copyrightable, and shared ideas which are, on the other hand, not copyrightable.

Substantial similarity between two works requires a high fact-intensive inquiry and varies from one case to another. Trivial similarities between the copyrighted work and the alleged infringing work will not, however, be sufficient for the conclusion that there is copyright infringement. Much burden and discretion are allocated for the judge to determine whether the works before them are substantially similar as a whole, or only with respect to protectable claims.

II. Exceptions

However, even if a prima facie case has been successfully established by the claimant, there are exceptions available under Section 13(2) of the Copyright Act 1968 for the defendant to rely upon in order to discharge any liability. The main and most important exception is the doing of any act by way of fair dealing, including for purposes of research, private study, criticism, review or the reporting of news or current event.[43] The Act goes on further post-2012-amendments to include that in determining whether a dealing constitutes a fair dealing, the factors to be considered shall include the purpose and character of the dealing, whether it is commercial or non-commercial in nature, the nature of the copyrighted work itself, the amount and substantiality of the portion used in relation to the copyright work as a whole, and the effect of the dealing upon the potential market for or value of the copyright work. Another important exception would be Section 13(2)(gg)[44] which provides that it is not an infringement to make a recording of a broadcast or a literary, artistic, dramatic or musical work, sound recording or a film included in a broadcast if the recording is for private and domestic use. Another similar exception exists in the case of recording a film of a broadcast, or a literary, dramatic or musical work, or a film included in a film.[45] Basically, off-the-air taping of radio and television broadcasts is legally permitted provided that it is not done for purposes other than private and domestic use.
 
III. Conclusion

Literal copying may be easy to be determined and established by the courts in deciding if copyright infringement has occurred, however, it gets much more technical when just a portion or section of a copyright work is taken, and a new material is produced in a new form. Despite the differences, the test to be applied remains the same, namely that there must first exist objective similarities between the copyright work and the alleged infringing work, the Claimant is then required to establish that there had been a causal connection between the two works, and finally the court must be satisfied that there is a substantial similarity between the two works.

With the present legislation and case laws, a positive inference can be concluded that there is a balance in the law in order to maintain the exclusive rights of reproduction granted for the enjoyment of copyright owners and also to provide sufficient amount of exceptions to safely guard the public from potential copyright infringement suits.

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This article was written by Premjit Singh Kolwant Singh, a postgraduate student at the Faculty of Law, University of Malaya. (Edited by Corina R. Mangharam)

Disclaimer: The opinions expressed in this article are those of the author, and do not necessarily reflect the views of the University of Malaya Law Review and the institution is affiliated with.

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Footnotes:
[1] 8 Ann. c. 19 (1710)          

[2] Section 13(1) Copyright Act 1987.

[3] Section 3 Copyright Act, post 1996 amendments

[4] [1993] 1 MLJ 225

[5] See footnote 4 above

[6] Designers Guild Ltd v Russell Williams (Textiles) ltd [2001] FSR 113 at 124 (Lord Millet)

[7] [1984] 1 CLJ 247

[8] Universal City Studios Inc v Zeccola [1982] AIPC 90-192 (Supreme Court of Victoria)

[9] Gray J at 38, 297-301, Universal City Studios Inc v Zeccola [1982] AIPC 90-192 (Supreme Court of Victoria)

[10] Rees v Melville [1911 – 16] MacG Cas 168

[11] Cozens-Hardy Mr at 174, ibid

[12] Section 3 Copyright Act 1987

[13] (1993) 114 ALR 355

[14] (1986) 60 ALJR 313

[15] Thrustcode Ltd v WW Computing Ltd [1983] FSR at 505

[16] [2000] RPC

[17] 797 F 2d 1222 (3d Cir.1986)

[18] 797 F 2d 1222 (3d Cir.1986), 1236

[19] 982 F 693 (2nd Cir,1992)

[20] [1987] 2 MLJ 359

[21] [1963] Ch 587 (United Kingdom Court of Appeal)

[22] Francis Day & Hunter v Bron [1963] Ch 587 (United Kingdom Court of Appeal) at 618

[23] Solar Thompson Engineering Co Ltd & Anor v Barton [1977] RPC 537

[24] [2007] 1 NZLR 577 (SC) at 592.

[25] http://www.henryhughes.co.nz/Site/News_Articles_Case_Notes/New_Dawn_v_Nick_Williams.aspx

[26] [1998] FCA 1059

[27] Coogi Australia Pty Ltd v Hysport International Pty Ltd & Ors [1998] FCA 1059 at 280.

[28] [2004] EWHC 1725

[29] [2004] EWHC 1725 at 113

[30] [2004] EWHC 1725 at 127

[31] Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 293

[32] [1987] 2 MLJ 359

[33] (Sydney, Law Book Co, 1984) at paras 9.10 – 9.14

[34] Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 293

[35] [1979] RPC 551

[36] [1979] RPC 551 at 160

[37] [1960] 2 WLR 645 (United Kingdom Queen’s Bench Division)

[38] Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd [1960] 2 WLR 645 at 648-51

[39][39] Section 13(2)(b) Copyright Act 1968

[40] [2006] EWHC 719

[41] Baigent & Anor v The Random House Group Ltd (The Da Vinci Code) [2006] EWHC 719 at 259.

[42] See footnote 41 above

[43] Section 13(2)(a) Copyright Act 1968

[44] Section 13(2)(gg) Copyright Act 1968

[45] Section 13(2)(ggg) Copyright Act 1968