Written by Quek Yew Aun and Selvapandiyan a/l Krishnan, second-year Bachelor of Jurisprudence students, University of Malaya; and Vishal a/l Gopinathan, Advocate and Solicitor of the High Court of Malaya.
Edited by Chrystal Foo.
Reviewed by Luc Choong and Celin Khoo Roong Teng.
For students in Malaysia, textbooks are often a scarce and expensive resource. This situation has led to the widespread practice of photocopying textbooks and use of electronic copies as reference. However, the legality of such practices in Malaysia is unclear. Textbooks come under the definition of ‘literary works’ and hence their copyright is protected by the Copyright Act 1987. The legality of photocopying and common practices of textbook dealings was examined based on the Copyright Act 1987, decided cases in Malaysia and the Commonwealth.
The start of every semester as a student is almost always accompanied by a brief period of confusion. Among some of the most common questions asked would be the subjects to register for, names of lecturers and number of assignments. However, in the momentary dissonance, a routine always exists: the search for textbooks.
In light of dire need, the scarcity and non-affordability of textbooks have led many to rely on photocopied or electronic copies as references. Photocopy machines are readily available, making the practice an inherent part of student life in Malaysia. It is often the case that bookstores or libraries willingly provide photocopying services at a moment’s notice without truly questioning the legality of such practices. In the age of the internet, electronic copies of selected published materials are also available online, either for free or a fee. A quick search on shopping platforms such as Carousell and Mudah show both hard and electronic copies of textbooks for sale.
This calls into question the legality of copying textbooks in Malaysia. Through this article, the authors attempt to elucidate said legality specifically by examining the legality of copying published materials with a specific emphasis on textbooks.
II. THE LAW IN MALAYSIA
The main legislation protecting the rights of a copyright owner (author or publisher) is the Copyright Act 1987 (‘CA 1987’), which was enacted to replace the repealed Copyright Act 1969. CA 1987 protects three types of rights: legal, economic and moral rights of a copyright owner.
Legal rights are enshrined under Section 10(2) of the CA 1987 that provides automatic protection for any works eligible for copyright, and Section 13(1) that states the exclusive control of the works eligible by the copyright owner. Economic rights are provided under Section 36(2) by prohibiting the selling, offering to sell, renting and distributing of protected works without consent or license from the copyright owner. Moral rights are outlined by Section 25(2), which ensures that due recognition is given to the author whenever the copyright owner’s work is presented or quoted. This section also prohibits mutilation or distortion of the work such that it would adversely affect the copyright owner’s honour and reputation.
It is also important to note that copyright registration is not required for a copyright to exist in Malaysia. Once the statutory requirements for eligibility and qualification are met, copyright is said to be conferred upon a piece of work. However, the copyright owner may choose to register with the Intellectual Property Corporation of Malaysia (MyIPO) or obtain a statutory declaration under Section 42 of the CA 1987. In Siti Khadijah Apparel Sdn Bhd v Ariani Textiles & Manufacturing (M) Sdn Bhd, the court was satisfied that the plaintiff ‘expended sufficient effort, time and expense’ to make her telekung ‘original within the meaning of S.7(3)’. Hence, the telekung in question was a created — not copied — product. Copyright was said to exist and was further proven by drawings, records of measurements and photographs of the designs. A statutory declaration by the plaintiff also constituted prima facie evidence under Section 42(1)(a).
While ‘copying’ and ‘reproduction’ may be used interchangeably in daily conversations, the terms take on specific legal meanings as defined by the law. Section 3 of the CA 1987 reads as follows:
‘“Copy” means a reproduction of a work in written form, in the form of a recording or film, or in any other material form’; whereas ‘“Reproduction” means the making of one or more copies of a 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.’
As laid down by Longman Malaysia Sdn Bhd v Pustaka Delta Pelajaran Sdn Bhd, a person is said to be copying if there was an act of taking something ‘original and protected by copyright’ and then claiming it as his own. It did not concern the physical amount but rather the substantial significance of the material, i.e., whether the part taken represents the application of a ‘high degree of skill and labour’ on the part of the plaintiff. The court, in its ruling, also considered the objective whereby if there was animo furandi to ‘saving [sic] themselves time and labour’, copying is said to exist. Such safeguards are necessary to prevent parties from taking a free ride from the work of others.
Reproduction, however, takes on a wider definition as laid down by Public Prosecutor v Choo Soon Onn. The court relied on Peko Wallsend Operations Ltd & Ors v Linatex Process Rubber Bhd and another action and Megnaway Enterprise Sdn Bhd v Soon Lian Hock (sole proprietor of the firm Performance Audio & Car Accessories Enterprise) in ruling that there need not be direct copying for an infringement to occur. A ‘high degree of objective similarities’ existing between the original and converted works is sufficient. Hence, if the converted works are produced through reverse-engineering, such as taking the product apart to produce a new product, this will constitute indirect copying, resulting in copyright infringement.
Upon infringement of copyright, an owner may launch a civil claim in court. Alternatively, a complaint can be lodged with the Ministry of Domestic Trade and Consumer Affairs, to which their enforcement division will conduct investigations before referring to the Public Prosecutor (Attorney General) for possible criminal prosecution.
III. REMEDIES AND OFFENCES
For civil cases, remedies upon copyright infringement may include permanent injunctions, monetary remedies, delivery or destruction of infringing goods, recall of order and declaration of infringement. In Kiwi Brands (M) Sdn Bhd v Multiview Enterprises Sdn Bhd, the plaintiffs sought an order for a public apology in five national newspapers as an additional remedy. The court did not allow this, citing that this form of remedy is ‘unknown in copyright law’.
The monetary remedies can be assessed by calculation of royalties and potential loss of profits by the copyright owner in the absence of infringement. An example of assessment of damages can be seen in the detailed judgment of Megnaway Enterprise Sdn Bhd. The defendant, a car accessory proprietor, was found to have infringed upon the copyright of an anti-car theft system created by the plaintiff. The court granted monetary relief amounting to RM644,400 (with 8% interest per annum) to the plaintiff based on the loss in dealer/agent sales (RM 475,200), loss in company sales (RM128,700) and loss in sales during the trial (RM40,500).
In a criminal case, Section 41(1) of the CA 1987 categorises offences into three categories. The first category deals with the copied material itself, i.e., illegal distribution, possession, exhibition in public and importation. If convicted, the offenders will be liable to a fine of not less than RM2,000 and not more than RM20,000 for each infringing copy, or imprisonment for a term not exceeding ten years or both.
The second category focuses on technology used to produce infringing copies. An offender who possesses, authorises, manufactures, imports or sells contrivances (machines) that is found to produce illegal copies may be liable to a fine of not less than RM4,000 and not more than RM40,000 for each infringing contrivance of which the offence was committed, or imprisonment for a term not exceeding 10 years.
The third category is related to electronic rights management. Any acts of removal, alteration, distribution, importation and communication to the public (for electronic rights management) without authorisation will be punished with a fine not exceeding RM250,000 or imprisonment for a term not exceeding five years.
IV. FAIR DEALINGS AND PRIVATE USE
However, Section 13(2) of the CA 1987 provides several exceptions to this protection, one of which is the fair dealings clause, also referred to as fair use. Under this clause, copyright will be exempted if the material is used for the purposes of research, private study, criticism, review or reporting of news and current events. However, reproduction of these works must be accompanied by an acknowledgement of the title of the works and their authorship.
Fair dealing is often used as a defence in copyright infringement cases. Other exceptions allowed by the CA 1987 include reproduction for examinations, use by educational institutions, reproduction for people with special needs, statutory requirements and reproduction by the press. CA 1987 also details four main factors to be considered when applying the defence of fair dealings:
(i) the purpose and character of the dealing, including whether such dealing is of a commercial nature or for non-profit educational purposes;
(ii) the nature of the copyrighted work;
(iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(iv) the effect of the dealing upon the potential market for or value of the copyrighted work.
The defence of fair dealing has been used, albeit unsuccessfully, in MediaCorp News Pte Ltd & Ors v MediaBlanc (Johor Bahru) Sdn Bhd & Ors. The plaintiffs, a broadcasting company based in Singapore, sued the defendants, a media monitoring company based in Malaysia because the defendants allegedly repurposed the plaintiffs’ content and sold it to paying customers. The defendants raised the defence of fair dealings, claiming that the data collected was restricted in use. Nallini Pathmanathan J (as Her Ladyship then was) ruled that the defence of fair dealings was unavailable to the defendants, as they had recorded the broadcasts continuously with the intent to provide services (data and analysis) to clients for a fee.
Section 41(1)(d) of the CA 1987 showcases another important aspect of copyright in Malaysia, whereby possession, custody or control of any infringing works for private and domestic purposes does not contravene the CA 1987. This clause is often used as a defence; that is, it is generally accepted that the infringer has to gain certain benefits (financial or reputational) to be liable, thus protecting against outright monopolies.
V. INTERNATIONAL CONVENTION
Malaysia is also progressive on the issue of copyright for textbooks published in other countries. In the debates leading up to the passing of the CA 1987 in 1987, there were strong voices for accession to the World Intellectual Property Organization’s Berne Convention for the Protection of Literary and Artistic Works 1971 (‘Berne Convention’), particularly from former MP Bukit Bintang Tan Sri Dato’ Seri Panglima Dr Lee Lam Thye and former MP Hulu Selangor Datuk Seri Dr S Subramaniam.
Tan Sri Dato’ Seri Panglima Dr Lee Lam Thye argued that accession to the Berne Convention would allow works produced by Malaysians to be protected abroad and foreign works to be protected in Malaysia. He added that this is an important step for the country as Malaysia and the world are interdependent for the rapid advancement of technology. Datuk Seri Dr S Subramaniam called for this accession to stimulate joint ventures with corporations abroad that benefit Malaysia through the transfer of technology in the fields of science, technology, accounting and computers.
Hence, to accede to the Berne Convention on the 1st of October 1990, Malaysia amended CA 1987 to insert Section 59A, which allowed promulgation of the Copyright (Application to other Countries) Regulations 1990 (‘the Regulations’). Under the Regulations, any copyrightable material is accorded protection in Malaysia — irrespective of whether the material came prior to or after the Regulations came into force — provided that the country of origin is also a member of the Berne Convention.
An application of the Regulations was observed in the High Court case of Honda Giken Kogyo Kabushiki Kaisha v Allied Pacific Motor (M) Sdn Bhd & Anor. The plaintiff, a multinational motorcycle manufacturer, claimed that the defendants copied the design of motorcycle parts to produce a local model. The defendants’ counterclaim was that the designs were not considered a ‘first publication in Malaysia’ as Section 4 of the CA 1987 stipulated that any copyrightable works need to be published in Malaysia within 30 days upon publication elsewhere. The court quashed this argument in ruling that, ‘even though the works were published in Thailand sometime in 1986, but not published within one month in Malaysia, the statutory stumbling block of S.4(3) of the Act was neutralised by the promulgation of the Copyright (Application to Other Countries) Regulations 1990’.
Further, in Peko Wallsend Operations Ltd, the court decided that by virtue of the Regulations, copyright can exist in Malaysia or be afforded a higher level of protection even though it did not exist in its country of origin, as provided by Article 3, 5 and 19 in the Berne Convention. In this case, the plaintiffs referred to the court regarding the existence of copyright for their slurry pump designs that were reproduced without consent by the defendant, a local company. The court ruled that provisions of the CA 1987 ‘have, through the Regulations, been extended to Australia and by virtue of this... would enjoy copyright protection even though the local laws of Australia do not accord such protection’.
In CA 1987, textbooks come under the definition of ‘literary works’ and hence are protected under Section 7(1)(a). Section 13(1) further protects against reproduction, communication, public performance, distribution and commercial renting of any literary works without permission from the copyright owner. This protection is also extended to e-copies of literary works through Section 13(1)(a), whereby reproduction into any ‘material form’ is illegal. Section 17(1) provides for the duration of protection: throughout the life of the author with an additional 50 years upon death.
An early case regarding copyright in textbooks can be observed in Longman Malaysia Sdn Bhd v Pustaka Delta Pelajaran Sdn Bhd. The defendant, a local publisher, was found to have sold a translated version of an SPM textbook (including diagrams and tables) published by the plaintiff. The court adopted principles from the English case of Ladbroke (Football) Ltd v William Hill (Football) Ltd in ruling that sufficient copying amounting to substantial reproduction had taken place.
In the same vein, due to the dearth of textbook-related cases in Malaysia, it is useful to examine cases in Commonwealth countries that have the same or similar facts to the topic at hand. The authors wish to highlight several cases to enable a better understanding.
In University of London Press Ltd v University Tutorial Press Ltd, the defendant, a publisher, reproduced old exam papers printed by the plaintiff and sold them to students preparing for exams. The court laid down that:
(i) the question papers required compilation, application of intelligence and reasonable consideration and hence could be defined as literary work;
(ii) the originality of the work relies upon the originality of thought and not the originality of idea;
(iii) the University of London hold copyright of the papers since it was created by the professors who are employees; and
(iv) the defence of fair dealings was not available to the defendants as the compilation was made for commercial purposes and hence not intended for private study.
This was echoed by the case of Sillitoe v McGraw-Hill Book Co (UK) Ltd. It further solidified the concept that the defence of fair dealings cannot be invoked when the user himself is not engaged in research and private study. Since the defendant was a multinational publisher, they were still liable to copyright laws despite the argument that the notes were intended for students engaging in research and private study. The fact remains that the book creation — which infringed upon the plaintiff’s literary work — was produced for commercial reasons. Similarly, in the New Zealand case of Copyright Licensing Ltd v University of Auckland, the plaintiffs successfully sued the University of Auckland that provided copyrighted material to students as part of their paid course packs. Since the material was not used by the copiers but the university themselves for research or private study, the courts ruled that it did not fulfil the requirements for the defence of fair dealings.
There is yet to be a landmark case on textbook copyright in Malaysia. However, a case that can be said to be in pari materia is Province of Alberta (represented by the Minister of Education) and Others v Canadian Copyright Licensing Agency (operating as ‘Access Copyright’). Many principles can be observed, especially on the concept of fair dealings specifically related to textbook materials.
In this case, the Canadian Copyright Licensing Agency (CCH), which represented authors and publishers, first obtained a favourable ruling from the Copyright Board of Canada (CBC). The board granted royalty to members of CCH for book excerpts that were photocopied and used by teachers in class across Canada. CBC came to this conclusion by relying on the six fairness factors first laid down by CCH Canadian Ltd v Law Society of Upper Canada, which were the purpose, character, amount of the dealing, the existence of any alternatives, the nature of the work and the effect of the dealing on the work. This decision was upheld by the Court of Appeal.
However, upon appeal and in a 5-4 decision, the Supreme Court ruled in favour of the appellants. In short, the court held that:
(i) the purpose of the dealing should be user-centric, and the teachers had no ulterior motive in providing excerpts to facilitate the students’ research and private study;
(ii) photocopies were made for private study;
(iii) when compared with the entire textbook, only a small number of pages were used;
(iv) buying books for all students was not a realistic alternative; and
(v) there was no link established between the act of photocopying short excerpts and the decline in textbook sales.
The Supreme Court declined to follow these precedents set by University of London Press Ltd, Sillitoe and Copyright Licensing Ltd as they ‘do not stand for the proposition that “research” and “private study” are inconsistent with instructional purposes, but for the principle that copiers cannot camouflage their own distinct purpose by purporting to conflate it with the research or study purposes of the ultimate user’. In summary, under Canadian Law, the action of the teachers photocopying textbook excerpts for educational purposes qualifies as research and private study, hence affording the fair dealings defence of copyright.
A recent event of a local publisher threatening to sue those who distribute a portable document format (PDF) copy of a book has prompted the authors to further ruminate about the use of ‘distribution’ in the CA 1987. More specifically, whether it covers online dissemination through websites and social media such as Facebook, Twitter and WhatsApp.
With the advent of the internet and digital media, the very concept of sharing single digital copies of books in an easily traceable manner from one person to another is fast becoming a thing of the past. Bearing in mind that the law accords the same protection for digital copies and physical copies, virtual dissemination through websites and social media between two people should be treated as if they had met in person and exchanged physical copies of textbooks. Sharing content via these online platforms are relatively straightforward as the sender and receiver can be easily identified and hence adjudicated.
However, it is much more difficult to regulate downloads through peer-to-peer (‘P2P’) clients. P2P offers relatively risk-free access to a wide selection of books, movies or any other media. Unlike older websites that would host the infringing items on their own servers, P2P file sharing occurs in a more complex manner, often making it extremely difficult for the copyright holder to remove the offending items or even identify potential infringers of copyright.
Individual users download and install P2P software such as BitTorrent on their devices for free. When a device with this software is connected to the internet, it becomes part of the P2P network. Users can designate files to be made available to other users and similarly search for files that have been made available on other users’ devices.
This then poses a conundrum: in the context of sharing files illegally, it would be these individual users who have made copyright materials available to the masses while other individual users download said materials using the aforementioned P2P software. When these individual users are identified, it is not contentious to declare that such users can still be held liable for copyright infringement. This is illustrated clearly in the Hong Kong case of HKSAR v Chan Nai Ming where the court ruled that uploaded files (.torrent format) derived from genuine copies are to be treated as duplicate copies. The judge affirmed that ‘duplication’ must be held in its ordinary meaning as provided for by the statute, even though — upon publication — the seeder/appellant’s computer was passive and not distributing the material. Furthermore, the intention of the appellant to distribute much more widely was sufficient to affect prejudicially and undermine the business of the copyright owners. This ratio decidendi behind the ruling departs from many decided cases in Malaysia, whereby it must be proven that the infringer obtains certain benefits for him to be liable. Here, the intention to distribute — which ultimately caused harm to the copyright owner — was enough to ascertain liability.
However, due to the large number of individual users and the largely decentralised nature of P2P networks, it would be an extremely tedious and monumental task to track down and pursue legal action against these individual infringers. As such, practicality dictates that copyright holders pursue legal action against more readily identifiable infringers with the capacity to settle the court’s award, i.e., the operators of P2P file sharing websites. This course of action has its own challenges due to said operators not being directly involved in the transmission of the files, nor are they the ones who make the files available. As established earlier on, that entire process operates on a peer-to-peer basis between individual copyright infringers.
Within our national context, the appropriate course of action against such P2P service providers would be under Section 36(1) of the CA 1987 for secondary liability. Section 36(1) reads 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, an act the doing of which is controlled by copyright under this Act.’ If it could be proven that P2P websites do indeed cause copyright infringement, they could very well be held liable under this section. However, the word ‘causes’ itself is not defined in the CA 1987. There is a need to examine case law to understand better exactly how a person or entity could be deemed to have caused copyright infringement.
The dearth of case law on this rather pressing definitional issue was remedied in 2017 by the case of Motordata Research Consortium Sdn Bhd v Ahmad Shahril bin Abdullah & Ors. After referring to several local cases that did not involve copyright issues to aid in His Lordship’s interpretation of the word ‘causes’, Wong Kian Keng JC held that an individual could cause another person to infringe copyright under Section 36(1) in two specific circumstances. Firstly, the defendant has authority over the primary infringer and orders or directs the latter to commit copyright infringement. Secondly, the former has an express or positive mandate to cause the primary infringer to commit copyright infringement and has caused the latter to do so.
If this definition of causation were to be brought upon our present example, it is hard to imagine how a P2P sharing service could be held to have caused copyright infringement in this context as the service provider does not have authority over the thousands of uses that make up the P2P network. As such, this definition has narrowed the scope of liability under Section 36(1) of the CA 1987. The learned judicial commissioner recognised this and expressed that the legislature may consider replacing the term ‘causes’ with the word ‘authorises’ to align the CA 1987 with similar legislation in other common law jurisdictions such as the United Kingdom and Australia.
In the case of Falcon v Famous Players Film Company, Bankes LJ observed that the word ‘authorises’ has a broader meaning than ‘causes’; it is to be understood in its ordinary dictionary meaning, i.e., to sanction, approve and countenance. Atkin LJ expressed the view, in this self-same case, that to authorise means ‘to grant or purport to grant to a third person the right to do the act complained of’. Subsequent case law adopted Atkin LJ’s approach and developed the concept of authorisation further. In a nutshell, a defendant would not be liable for authorising infringement if the tools or equipment he has made available to the primary infringer can be used for both infringing and non-infringing uses. Ultimately, the defendant’s ability to control or restrict infringement is more relevant to the question of secondary liability rather than their knowledge of possible infringing use.
This was illustrated with great clarity in Dramatico Entertainment Ltd & Ors v British Sky Broadcasting Ltd & Or, involving The Pirate Bay (‘TPB’), a much-venerated P2P file sharing website that offered users a directory of torrent files to browse and download. In deciding TPB’s liability for authorising copyright infringement committed by its users, the English High Court considered a few factors. Firstly, it held that TPB was not a passive repository of files as it was structured to create a ‘sophisticated and user-friendly environment’ for its users to search for and locate content. Furthermore, TPB also provided its users with assistance on how to download files and bypass blocking measures. Thirdly, the court held that by indexing, arranging and presenting the infringing files in the manner that it had, TPB had provided the direct infringers with the means to carry out the infringing activities. The fact that TPB had a name and logo indicative of support for piracy did nothing to help shake these charges.
With regard to the degree of control to prevent infringement, the courts held that while TPB had the ability to prevent infringement, TPB had never taken any steps to do so. On the contrary, it actively promoted magnet links to such content to avoid being blocked easily, as torrent files sometimes are by internet service providers.
In the Malaysian context, due to the narrowed scope of liability arising from the concept of causing infringement as opposed to authorising infringement used in Section 36(1) of the CA 1987, it is unlikely that a P2P operator would be found liable. Even if users populate a P2P index with the entire wealth of the UM Law Library — unless the various copyright holders in question can clear the hurdle of establishing that thousands of anonymous seeders who uploaded or seeded those files were also subject to the authority of the P2P operators and given the green light to engage in copyright infringement — it is unlikely that the operators will face any charges for copyright infringement. As such, in the absence of any legislative groundwork being authorised or initiated to strengthen the effectiveness of the section in question, imposing secondary liability for copyright infringement cannot be bandied about as the primary catch-all solution to this all too modern malady.
VIII. POSSIBLE LEGAL RAMIFICATIONS OF SELECTED SITUATIONS
There have yet to be any local cases involving photocopying textbooks. However, upon describing the relevant laws and precedents above, the following are the authors’ submissions on some illustrations to postulate the legality of several practices of textbook acquisition among students:
(i) A purchased a textbook and photocopies pages for his notes
Since A owns the textbook, he is entitled to its contents. Photocopying the pages for his notes comes under research or private study purposes under Section 13(2) of the CA 1987 and is not infringing any copyright. A is not liable.
(ii) B has given C a photocopy (or electronic copy) of a textbook that B purchased
Since B owns the textbook, he is entitled to its contents. His action of providing a photocopy and electronic copy (PDF) is not accompanied by commercial profit. Hence, the purpose of research or private study under Section 13(2) of the CA 1987 holds up. B and C are not liable.
(iii) B has given C a photocopy (or electronic copy) of a textbook that B did not purchase
B does not own the textbook but has committed no crime for possessing a copy. While he has given a copy to C in the same way as the situation illustrated above, he does not gain any commercial profit from this exchange. B and C are not liable.
(iv) D purchases a photocopy (or electronic copy) of a textbook from E, E owns the textbook
Since E owns the textbook, he is entitled to its contents. His action of providing a photocopy or electronic copy to D is accompanied by commercial profit. Hence, E has infringed upon copyright. As for D, he has committed no crime for possessing a copy as long as he can prove it is for research or private study under Section 13(2) of the CA 1987. E is liable while D is not liable.
(v) D buys a photocopy (and PDF copy) of a textbook from E, E does not own the textbook
E does not own the textbook and hence is not entitled to its contents. His action of providing a photocopy or electronic copy to D is accompanied by commercial profit. Hence, E has infringed upon copyright. As for D, he has committed no crime for possessing a copy as long as he can prove it is for research or private study under Section 13(2) of the CA 1987. E is liable while D is not liable.
(vi) F downloads a PDF copy from G’s website
F is not liable as long as he can prove it is for research or private study under Section 13(2) of the CA 1987. G’s actions of posting copyrighted material on his website would constitute distribution. F is not liable while G is liable under Section 36(b)(ii) of the CA 1987.
(vii) F torrents a PDF copy from various seeders after obtaining a link from a torrent site
F is not liable as long as he can prove it is for research or private study under Section 13(2) of the CA 1987. Meanwhile, since the seeders cannot be individually identified, both F and the seeders are not liable.
It is clear that Malaysia has a stringent copyright law in the CA 1987, strengthened further upon accession to the Berne Convention through the promulgation of Copyright (Application to other Countries) Regulations 1990.
Nonetheless, it is ultimately up to the courts to decide whether copyright exists, whether any infringement has occurred and whether to grant any quantum of remedies. As observed in Honda Giken Kogyo Kabushiki Kaisha, the courts may rule that copyright exists but choose to deny any form of relief due to ‘social and financial ramifications’. Here, the court decided as such after considering the irreversible impact of an injunction on the defendants and their employees, i.e., the loss in excise duties to the government and the negligible loss in potential profits by the plaintiff who is an established company in possession of the best-selling motorcycle model.
Now, to combat any future injustice, it is important for CA 1987 to deal with foreshadowed, unknown or novel future situations in light of the nature and speed of developments in dissemination modalities. In the event that a case regarding photocopying of textbooks makes its way into court, the authors feel that the route taken by CCH Canadian Ltd is the most just. The authors would like to end this article by agreeing with the eloquent submission on the ethos of copyright by Mr Benjamin Thompson, the learned counsel for the defendant in MediaCorp News Pte Ltd, that:
‘…inherent in copyright law is the need for a balance between the copyright owner’s right to protect his economic benefit, and the need for society to progress in the development of its creativity and ideas without undue restriction.’
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 it is affiliated with.
 Hamedi M. Adnan. (2008). Book Photocopy-ing in Malaysia: Problems and Prospects for Publishers. Jurnal Sosio-Humanika, X(2), 57, 58.
 Copyright Act 1987 (Act 332) (Malaysia).
 See footnote 2 above, s 10(2).
 See footnote 2 above, s 13(1).
 See footnote 2 above, s 36(2).
 See footnote 2 above, s. 25(2).
 See footnote 2 above, s 42.
 Siti Khadijah Apparel Sdn Bhd v Ariani Textiles & Manufacturing (M) Sdn Bhd  7 MLJ 478.
 See footnote 2 above, s 7(3).
 See footnote 2 above, s 42(1)(a).
 See footnote 2 above, s 3.
 Longman Malaysia Sdn Bhd v Pustaka Delta Pelajaran Sdn Bhd  2 MLJ 359.
 Intention to steal.
 Public Prosecutor v Choo Soon Onn  9 MLJ 598.
 Peko Wallsend Operations Ltd & Ors v Linatex Process Rubber Bhd and another action  1 MLJ 225.
 Megnaway Enterprise Sdn Bhd v Soon Lian Hock  3 MLJ 525.
 Mediacorp News Pte Ltd & Ors v Mediabanc (JB) Sdn Bhd & Ors  6 MLJ 657.
 See footnote 12 and 16 above.
 See footnote 12 and 15 above.
 See footnote 12 above.
 Sungei Kahang Palm Oil Sdn Bhd & Anor v YKL Engineering Sdn Bhd  MLJU 953.
 Kiwi Brands (M) Sdn Bhd v Multiview Enterprises Sdn Bhd  6 MLJ 38.
 See footnote 16 above.
 See footnote 2 above, s 41(1).
 See footnote 2 above, s 13(2).
 See footnote 2 above, s 13(2A).
 See footnote 17 above.
 See footnote 2 above, s 41(1)(d).
 Berne Convention for the Protection of Literary and Artistic Works, opened for signature 9 September 1886 (entered into force 5 December 1887).
 Malaysia, Parliamentary Debates, Dewan Rakyat, 19 March 1987, Seventh Parliament, First Session (Tan Sri Lee Lam Thye).
 Malaysia, Parliamentary Debates, Dewan Rakyat, 20 March 1987, Seventh Parliament, First Session (Mr. S. S. Subramaniam).
 Copyright (Application to other Countries) Regulations 1990 (P.U.(A) 314/90) (Malaysia).
 Honda Giken Kogyo Kabushiki Kaisha v Allied Pacific Motor (M) Sdn Bhd & Anor  3 MLJ 30.
 See footnote 2 above, s 4.
 See footnote 32 above.
 See footnote 15 above.
 See footnote 29 above, art 3, 5 and 7.
 See footnote 2 above, s 7(1)(a).
 S.3 of the CA 1987 defines material form in relation to a work or a derivative work as to include ‘any form (whether visible or not) of storage from which the work or derivative work, or a substantial part of the work or derivative work can be reproduced’. The wideness of this definition would undoubtedly encompass digital copies of a copyrighted work as such the copyright owners would be empowered with the ability to control sale or other transfer of ownership over digital copies of their work. See footnote 2 above, s 13(1)(a).
 See footnote 2 above, s 17(1).
 See footnote 12 above.
 Ladbroke (Football) Ltd v William Hill (Football) Ltd  1 All ER 465.
 University of London Press Ltd v University Tutorial Press Ltd  2 Ch 601.
 Sillitoe v McGraw-Hill Book Co (UK) Ltd  FSR 545.
 Copyright Licensing Ltd v University of Auckland  3 NZLR 76.
 On the same subject or matter.
 Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright)  37 SCC 249.
 CCH Canadian Ltd v Law Society of Upper Canada  5 LRC 428.
 Free Malaysia Today. (2021, Feb 1). Publisher to sue anyone sharing PDF copy of Tommy Thomas’ book. Free Malaysia Today. Retrieved from <https://www.freemalaysiatoday.com/category/nation/2021/02/01/publisher-to-sue-anyone-sharing-pdf-copy-of-tommy-thomas-book/>. Site accessed on 11 Apr 2020.
 P2P file sharing means the sharing of files in a network of interconnected peer nodes which could consist of any internet capable tech devices such as laptops, handphones or tablets.
 HKSAR v Chan Nai Ming (陳乃明)  2 HKC 1.
 See footnote 2 above, s 36(1).
 Motordata Research Consortium Sdn Bhd v Ahmad Shahril bin Abdullah & Ors  MLJU 1187.
 See footnote 2 above, s 36(1).
 See footnote 2 above, s 36(1).
 Falcon v Famous Players Film Co  2 KB 474.
 Dramatico Entertainment Ltd v British Sky Broadcasting Ltd  EWHC 268 (Ch).
 See footnote 2 above, s 13(2).
 See footnote 2 above, s 13(2).
 See footnote 2 above, s 13(2).
 See footnote 2 above, s 13(2).
 See footnote 2 above, s 13(2).
 See footnote 2 above, s 36(b)(ii).
 See footnote 2 above, s 13(2).
 See footnote 33 above.
 See footnote 48 above.
 See footnote 17 above.