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14th August, 2018

This article relates to a copyright dispute between Elias Idris (hereinafter referred to as the “Plaintiff” or “Appellant”) and well-known local filmmaker Datuk Mohd. Yusof Md Aslam, along with his son Mohd Syamsul Md Yusof and a movie production company, Skop Productions Sdn.Bhd. (hereinafter referred to as the “Defendants” or “Respondents”).

The Plaintiff, who is the author of the novel ‘’Aku Bohsia’’, claimed that the Defendants had infringed his copyright as they had produced a movie titled "Bohsia: Jangan Pilih Jalan Hitam", which had similar contents, theme, plot, characters and messages as his novel and therefore the Defendants had infringed his copyright.

Both the novel and the movie portrayed a similar theme of young sexual victim girls and their involvement with who are often involved with illegal racers. Both the novel and the movie also contain similar plots, where two main characters were being raped by their own fathers and how they got involved with the illegal racers.

There were also similar messages conveyed. Firstly, both the novel and movie urge the society to sympathise with these girls and to overcome this social issue as well as to find means to rehabilitate both the girls and the illegal racers. Attention is also drawn to certain parties who take advantage of them, in particular the pimps who would prostitute these girls. Secondly, both the novel and the movie also focus on the vices of drug abuse, gambling, alcoholism, illegal racing along with their effects towards society.

After the hearing at the High Court, the High Court dismissed the Plaintiff’s claim. The Plaintiff then filed an appeal against the decision at the Court of Appeal. After the hearing, the Court of Appeal had concluded that there was a substantial similarity between the Plaintiff’s novel and the Defendants’ movie that cannot be considered as merely coincidental. For example, certain character traits, even specific events and relationships in the lives of the characters. These cannot be termed as similarities in ideas, nor are they considered as commonplace general ideas.

The Court of Appeal also held that evidence of causal connection between the original work and the infringing copy can be established directly or indirectly. In this case, the Court was of the view that the causal connection was indirect in the sense that that the original work had been published and was therefore available to the public. Thus the Defendants would have had prior access to the novel. Even if the novel was no longer in the market, it would still presumably be available in libraries and bookstores. The Court held that the meaning of ‘causal connection’ should not be given a restrictive interpretation, otherwise it would leave a lot of original works

Thus, the Court of Appeal allowed the Appellant’s claim and found that there was indeed copyright infringement on the part of the Respondents. However, this copyright dispute has yet to end. The Respondents had filed an appeal at the Federal Court against the decision of the Court of Appeal. The Federal Court, in response, had granted a leave to appeal based on the following questions:
1. Is publication itself sufficient satisfaction to the legal requirement of causal connection in order to succeed in a claim on infringement of copyright?

2.  In carrying out the test in Megnaway Enterprise Sdn Bhd v Soon Lian Hock (sole proprietor of the firm Performance Audio & Car Accessories Enterprise) [2009] 3 MLJ 525, is there a legal duty for the court to examine and evaluate both the distinct materials being the subject matter under the claim on infringement of copyright)?

At the time of writing, the Federal Court has yet to fix a hearing date.