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MALAYSIA COPYRIGHT INFRINGEMENT: TO CHARGE OR NOT TO CHARGE?

15th January, 2018

An internet café called “Gen X” was raided on 17 November 2009 by a team of law enforcement officers from The Ministry of Domestic Trade, Co-operatives and Consumerism after receiving a complaint from Sendi Mutiara Multimedia Sdn. Bhd. (hereinafter referred as “SMM”) whose representatives were also present during the raid. During the raid, some items were seized for investigations into possibility of offences under the Copyright Act 1987. SMM was given the rights by One Blizzard Entertainment Inc. (Blizzard) in Delaware, USA to sell, distribute and collect monthly royalty from cyber cafes for the software products of the Warcraft copyright. They were also appointed by Blizzard to take any legal actions against illegal or unauthorized reproduction of the above-mentioned products.

As a result of the raid, the partners of the cyber café, herein referred as the “respondents”, had filed an action against Malaysian Government (1st appellant), The Ministry of Domestic Trade, Co-operatives and Consumerism (2nd appellant) and a representative of the latter appellant (3rd appellant) in the High Court of Malaysia for loss and damages purportedly suffered by the respondents due to the appellant’s “illegal” raid and seizure. The Judge was of the view that the search warrant was illegal due to several reasons – (i) SMM presented a complaint based on a Statutory Declaration prepared by someone which had relied upon a surveillance report that was prepared by a person who cannot be traced, (ii) it was an unsafe exercise of discretion by the Registrar to grant the search warrant based on the document mention in point 1 and (iii) the Deputy Public Prosecutor (DPP) was of the view the whole conduct and exercise of their powers of applying for the search warrant, of search, seizures, investigation and detention of the seized items by the appellants was carried out in a negligent manner. The final results obtained from the proceedings in the High Court had granted several reliefs prayed for by the respondents – that is special as well as exemplary damages, loss of earning and loss of reputation.

In this case, there were two issues that were raised in the Court of Appeal, as filed by the appellants: (i) the legality of the search warrant and (ii) why were the respondents not charged any offence under Copyright Act?

In the Court of Appeal, the learned Senior Federal Counsel was of the view that the warrant was legally issued as the application was properly done in accordance to the Section 44 of the Copyright Act. As an official complaint from SMM was received by the appellants, exhibiting its Enforcement Technical Surveillance Report, Statutory Declaration, Letter of Authorization and Power of Attorney and instantly, the information on oath was submitted to the magistrate on the same day the premise was raided. The documents were submitted by the Assistant Controller of Copyright where SMM suspected that the respondents possessed materials such as pirated copies of designs, articles, books documents and others, in which creating an offence under Section 41 of the Copyright Act.

Also, Section 57 of the Copyright Act gave a protection to the raiding officer, in this case, the 3rd appellant, who was the Assistance Controller. The learned Senior Federal Counsel also argued that the learned High Court Judge had made a mistake that the 3rd appellant to be jointly and severally liable to the respondents. As the 3rd appellant was an Enforcement Assistant of the 2nd appellant, that made him an Assistant Controller under the Copyright Act, by virtue of P.U (B) 131/2003, therefore, he would be protected under the provision unless it be shown in a bad faith on his action.

It is noted that the respondents were not charged of any offence under the Copyright Act because Cyber Security did not find any evidence of Warcraft software or any game simulations inside the A44 server, hence the prosecution was discontinued due to insufficient evidence.

As a conclusion, the absence of the copyright infringement prosecution did not affect the legality of the search warrant and seizure as the request for the issuance the warrant was conducted in accordance to Section 44 of the Copyright Act and no charges will be prosecuted if the evidence is insufficient.