COPYRIGHT

What Is a Copyright?

Copyright is the exclusive right given to the owner of a copyright for a specific period. Copyright protection in Malaysia is governed by the Copyright Act 1987. There is no system of registration for copyright in Malaysia.

A work that is eligible is protected automatically upon fulfillment of the following conditions :-  sufficient effort has been expected to make the work original in character. the work has been written down, recorded or reduced to a material form. the author is qualified person or the work is made in Malaysia or the

works first published in Malaysia.

What Does Copyright Protect?Works eligible for protection are :- literary works. musical works. artistic works. Films. sound recordings. Broadcasts. derivative works.

These works shall be protected irrespective of their quality and purpose for which they were created.

However, the copyright protection shall only extend to expression and not ideas, procedures, methods of operation or mathematical concepts as such.        

Who Owns Copyright?

Copyrights in a work vests initially in the author (writer, composer, maker of the work. However, where the making of a work is made by an employee in the course of his employment, unless there is any contrary agreement, the copyright in the work shall be deemed to vest in the person who commissioned the work or the employer. The author's right is transferable by assignment, testamentary disposition or by operation of law, in which case the assignee shall be the owner.

How long does copyright last?

Literary, Musical or Artistic Works Generally, copyright in any literary, musical or

artistic work shall subsist during the life of the author plus 50 years after his death. However, if a work has not been published during the lifetime of the author, copyright in the work continues to subsist until the expiration of 50 years, following the year in which the work was first published. In the case of a work with joint authorship, the life of the author who dies last is used for the purpose of calculating the copyright duration of the work.

Sound Recordings The copyright in sound recordings shall subsist

until the expiry of a period of 50 years computed from the beginning of the calendar year next following the year in which the recording was first published or, if the sound recording has not been published, from the beginning of the calendar year following the year of fixation.

Broadcasts For the copyright in broadcasts, the duration

shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the broadcasts was first made.

Films The duration of the copyright in films shall

continue to subsist for a period of fifty years computed from the beginning of the calendar year next following the year in which the film was first published or first made available to the public or made, whichever is the last.

Government Works Copyright in works of Government, Government

organizations and international bodies shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the work was first published.

What Are The Legal Rights Of Copyright Owners?

Generally, owners of copyright works in literary, musical or artistic works, films and sound recordings have the exclusive rights to control: the reproduction of the works in any form (including

photocopying, recording etc); the performing, showing or playing to the public; the communication to the public; the distribution of copies to the public by sale or other transfer of

ownership; and the commercial rental to the public.

These exclusive rights apply irrespective of whether the works are copied partly or wholly. Thus, infringement of copyright occurs if the person claiming can show that the defendant has done such an act. In other words, the burden of proof lies on the person claiming that his/her work has been infringed.

Copyright in Broadcasts

For the copyright in a broadcast, there shall be exclusive rights to control the recording, the reproduction, and the rebroadcasting of the whole or a substantial part of the broadcast. The show or the play must be made in public and in a place where an admission fee is charged for the whole or a substantial part of the broadcast either in its original form or in any way recognizably derived from the original. The copyright in a television broadcast shall include the right to control the taking of still photographs from such broadcasts.

TRADE MARK

What is trademark

A trade mark is a sign which distinguishes the goods and services of one trader from those of another.

A mark includes words, logos, pictures, names, letters, numbers or a combination of these.

A trade mark is used as a marketing tool to enable customers in recognizing the product of a particular trader. 

Functions of trademark

Origin Function - A trade mark helps to identify the source and those responsible for the products and services sold in the market.  

Choice Function - A trade mark enables consumers to choose goods and services with ease while shopping.  

Quality Function - Consumers choose a particular trade mark for its known quality.

Marketing Function - Trade marks play an important role in advertising. Its normal for consumers to make purchases based on continuous influence of advertising.  

Economic Function - Established trade mark is a valuable asset. Trade marks may be licensed or franchised.  

REGISTRATION BENEFITS

Trade marks registration provides for:

Exclusive Rights - Registered trade marks owners have exclusive right to use their marks in trading.  They also have the rights to take legal action for infringement under the Trade Mark Law against others who use their marks without consent. They can either take civil action or lodge complaints to Enforcement Division for appropriate actions under the Trade Description Act 1972.

Legal Evidence - Registration certificate issued by Registrar Office is a prima facie evidence of trade mark ownership.  A certificate of registration serves as an important document to establish the ownership of goods exported to other countries. 

TRADEMARK OVERVIEW DEFINITION

A distinctive mark, consists of words, logo, name, alphabets, numbers or combination of one or multitude elements, functions as a way to distinguish goods / services from one another, as a marketing tools, and as an aid to help customers to differentiate products.

Trademark have 2 types as below:

• ("TM", for an unregistered trademark, a mark used to promote or brand products)

• (the letter "R" surrounded by a circle, for a registered trademark)

WHO CAN APPLY TO REGISTER A TRADEMARK ?

A trademark can be registered by an individual who is a citizen of Malaysia, or a foreigner who holds Permanent Resident status, and he / she resides in Malaysia. The applicant can also be a company, society or partnerships.

IMAGES

Different between trademark & copyright

While both offer intellectual property protection, they protect different types of assets.

Copyright is geared toward literary and artistic works, such as books and videos.

A trademark protects items that help define a company brand, such as its logo.

For example, Acme Publishing Company can trademark its name and logo, but would copyright books and videos that it created.

Trademarks Protect: Company, brand, or product names Logos and other marks used to identify a

company or product Company taglines and catch phrases such as

"just do it."

Copyrights Protect: Books, articles, web content, and other writings Paintings, photographs, and other visual works Songs, movies, television shows and ads Recorded dances, choreography and other

performing arts works

ROYALTY

DEFINITION OF ROYALTYPayments made by one company (the licensee) to another company (the licensor) in exchange for the right to use intellectual property or physical assets owned by the licensor. For example,  computer manufacturers such as IBM and Compaq pay a royalty to Microsoft in exchange for being allowed to use the Windows operating system in their computers.

In the fashion industry, designers like Calvin Klein has the right to name the goods / products for their royalty. As an example, they signed a contract with the company jeans and put their names on the jeans product.

In book publishing, the author should pay according to the percentage royalty on the price of the book.

In the music industry, royalties will be paid to holders of songs and songwriters by radio stations.   

ROYALTY AGREEMENT Royalty agreement is intended to benefit

the licensor and the licensee. For licensors, entered into a royalty agreement to allow other companies to use their products. For the licensee, the agreement can get products that might be too expensive or too difficult to produce on its own, or that have been protected by patents that are not owned.

SAMPLE CONTRACT OF ROYALTY

SHOULD USE ROYALTY AGREEMENT IF

You are the owner of a property interest and you would like to grant the right to use of such property interest to another party for a limited period of time.

You would like to contract the use of certain property from the company or individual who owns the property rights.

IF NOT USING A AGREEMENT ROYALTY

You have no right to use your company name to a product that does not belong to you.

You can not sue other companies that use the same product with you.