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28th November, 2013

A recent case of dispute in the Intellectual Property Court of Kuala Lumpur, Malaysia concerning copyright matters saw an escalation of its appeal to the High Court of Kuala Lumpur, Malaysia. The case was between the Deputy Public Prosecutor (DPP) and an individual named Chun Tat Chan.

Mr. Chan runs an internet café business under the name Internet De Net. He was charged on the account of unlawfully possessing two (2) copies of copyrighted articles in a form of a computer program, for use apart from personal and domestic use. Both of the copyrights for the computer programs, being Warcraft III – The Frozen Throne and Warcraft III – Reign of Chaos, belonged to Blizzard Entertainment, Inc. Accordingly, Sendi Mutiara is the appointed sole agent and distributor in Malaysia as a licensed cybercafé to legally use computer games software produced by Blizzard Entertainment, Inc.

At the time of a police raid, the authorities found there were a total of 46 computers and 10 customers at the premises of Internet De Net. The authorities have verified that there was a billing system over the counter for the customers to make payment. Out of the total of 46 computers, a number of 44 were found having the both Warcraft III – The Frozen Throne and Warcraft III – Reign of Chaos games installed. The remaining other two (2) computers were spoilt. A technician of Internet De Net confirmed to the authorities that both games were able to be played on the computers based on his simulated demonstration. It was also found that Mr. Chan was the only person in the premises who has the password access to the server.

However, the IP Court ruled that the DPP failed to establish a prima facie case against Mr. Chan. Therefore, Mr. Chan he was acquitted.

The DPP (hereinafter referred to as “the Appellant”) then appealed to the High Court of Kuala Lumpur on the decision of the IP Court acquitting Mr. Chan (hereinafter referred to as “the Respondent”) of the offence under Section 41(1) of the Copyright Act 1987 following a police raid on the premises of the Respondent.

In the appeal, the Appellant highlighted key points below on whether:

a)      the Appellant had successfully provided evidence of the unlawful act of the  Respondent to establish a prima facie case;

b)     an affidavit can be accepted as a testimony in the event of the deponent, Dr. Lim Mok Guan failing to attend the hearing; and

c)      the deponent, Dr. Lim Mok Guan as Director of Sendi Mutiara had the power to depose the affidavit according to Section 42 of the act.

In order for the appeal to be granted, the following elements must be satisfied:

a)      the Respondent possessed infringed articles;

b)     the infringed articles were for use apart from personal and domestic use;

c)      copyrights for the infringed articles existed and are claimed by the owner of the copyrights;

d)     copies of the articles are infringed copies.

In the judgment, the High Court found that the Appellant had gathered sufficient evidence to satisfy all of the elements above. The Respondent had argued that since the Appellant did not provide evidence hard disk containing the infringed copyrighted articles in court, there was no proof that he committed an unlawful act. However, the Judge dismissed this argument, further saying that it is sufficient evidence for her that the hard disk in the server already contained the infringed copyrighted articles when the server is operating. This can be supported by the fact that shortcut icons of the games are clearly seen on the start-up menu of the computers. Further, she also found that the computer games software were not only found in the possession at the premises of Internet de Net, but were also installed in a server connected to the computers which are being used by its customers. It can be deduced that the Respondent knew about his unlawful act as he is the only person having access password to the server in Internet De Café. Amid all, the Respondent failed to provide evidence that he had an authorized license for the infringed copyrighted articles.

The High Court also found that the affidavit is a statement of prima facie and admissible in evidence in any proceedings.

The High Court also indicated that under Section 42(1) of the Copyright Act, the presence of the deponent in court to provide statement is necessary. The High Court accepted that the presence of Dr. Lim Mok Guan who is a director of Sendi Mutiara is not necessary during the hearing at the IP Court as he has been granted powers by Blizzard Entertainment, Inc. to appoint any representative to act on his behalf for legal matters pertaining Blizzard Entertainment, Inc. products.

Hence, the High Court overruled the decision of the IP Court and granted the appeal in favour of the appellant and has instructed Mr. Chan to defend himself against the charges before the same IP Court.