MALAYSIA: “THE WORKS” COPYRIGHT

July 2nd, 2014

 

In the case of Microsoft Corporation v Conquest Computer Centre Sdn. Bhd., the High Court of Malaysia at Kuala Lumpur ordered an injunction against Conquest Computer Centre preventing it from infringing Microsoft Corporation’s copyright in artistic works involving computer programs Microsoft Office Starter 2010 and Microsoft Window 7 Home Premium (“hereinafter referred to as “the Works”).

Microsoft Corporation (hereinafter referred to as “the Plaintiff”) is recognised globally and renowned company involving designing, producing, marketing and supporting computer related products.

Conquest Computer Center Sdn. Bhd. (hereinafter referred to as “the Defendant”) is a Malaysian company incorporated under the Company Act 1965.

The Plaintiff filed an action against the Defendant for infringing copyright in the Works as the Defendant allegedly had reproduced and marketed pirated copies of computer software which belongs to the Plaintiff.

Furthermore Plaintiff argued that the Defendant did not request for consent or license from the Plaintiff and used Plaintiff’s software to pre-install into their personal computers. It was also alleged that the Defendant did not provide original and licensed software in CD-ROMs or discs, end-user license agreements, manuals, product registration cards and Certificate of Authenticity when requested by the Plaintiff.

The Defendant disagreed with the argument put by the Plaintiff with regards to the Works and further works. Defendant asserted that there is no need for them to give consent or go with end-user license agreements because they are using a trial version of the Work and it was made available to the Defendant for free.

Considering the issues whether the Defendant had infringed Plaintiff’s copyright in the Works under the definition of “literary work” in the Copyright Act 1987. Under this Act, literary work includes “computer programs”. However, under this Act, there is no copyright for literary work unless the Plaintiff expended to make the work original in character and or work has been written down, recorded or reduced to material form.

The Court agreed with the submission made by the Plaintiff that it had expended to make the work original and the Works reduced to material form which involves computer codes stored in the CD ROMs/discs.

The Plaintiff had also brought to the Court’s attention of the Plaintiff’s name “Microsoft” stipulated on the CD-ROMs of the Works and the casing of the CD-ROMs.

The Plaintiff also argued that the affidavit and statutory declaration been submitted as an evidence of copyright ownership.

The Defendant argued that the copyright of the Works does not belong to the Plaintiff and it also challenged the validity of the statutory declaration as it was not signed in front of a Commissioner for Oaths.

The Court found that the Plaintiff was successful in proving that, in balance of probabilities, the Plaintiff is the true owner of the copyright in relation to the Works and dismissed the Defendant’s arguments and granted an injunctive relief to the Plaintiff to prevent the Defendant from using and/or selling any product that embodies the Works. The Court awarded exemplary damages to the Plaintiff amounting to RM200,000.00 (approximately USD61,000.00).