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MALAYSIA: A COPYRIGHT SAGA

6th June, 2018

In a case of Chuah Aik King (hereinafter referred to as the “Plaintiff”) filed a suit against Keydonesoft Sdn. Bhd. (hereinafter referred to as the “Defendant”) at the High Court of Malaya at Kuala Lumpur claiming that the he, the Plaintiff, owns the copyright in two computer programmes, (1) “B3 Café Internet Café Billing Management with MyCard Solution Software” programme (hereinafter referred to as the “B3 Programme”) and (2) “Coin River Net Café Management System” (hereinafter referred to as the “Coin River Programme”). The Plaintiff claims that the Defendant’s software, “Keybilling Management System” (hereinafter referred to as “Keybiling Program”) has infringed the Plaintiff’s copyright to B3 Programme and the Coin River Programme.

The Plaintiff is the sole proprietor of “B Three Technology”. The Plaintiff provided evidence that he has created the “MyCard Solution” software (hereinafter referred to as the “MyCard Solution Programme”). However, the main engine to run the programme was created by ZYS, a company based in China. The Plaintiff claims that he has “created” the MyCard Solution Programme by advising and given his ideas and then commissioned ZYS to create the aforementioned programme. To support his claim, the Plaintiff relies on a Copyright Agreement between him and ZYS dated 13 January 2009. The Plaintiff further provided the sources codes to the two programmes and the author to these source codes is one Mr. Feng Jiang (hereinafter referred to as Mr. Feng) from ZYS, China. The Plaintiff also added that he sold the B3 programme to many entities except the Defendant. The Plaintiff alleges that the Defendant has infringed the two programmes and this has led to the raid of the Defendant’s premises. The Plaintiff further claims that the infringement has resulted him to suffer a loss amounting to RM1,100,00/approximately USD27, 6073.00

The Defendant appointed ZYS to provide customised software to be used by cybercafé operators. The Keybilling Programme was the software customized by ZYS and the copyright to the programme vest in ZYS. It was further pointed out that there are differences between the graphic user interface of B3 programme and the Keybiling programme. The Defendant further testified that the Selangor State Government had required all cybercafé operators in Selangor to install the B3 programme and that the Plaintiff was the sole distributor to the software giving the Plaintiff the leverage to impose an exorbitant fee.

The Court was of the view that the Plaintiff cannot claim copyright in any function of a computer programme. Under Section 7(2A) of the Copyrights Act, a function of a computer programme constitutes as an idea and therefore is not entitled to copyright protection. The Plaintiff therefore cannot rely on the functions of the two programmes to support his suit against the
Defendant. It is the legal burden of the Plaintiff to adduce oral and documentary evidence to prove that copyright subsists in the two programmes and that they belonged to him. However, the Court is of the view that the Plaintiff has failed to do so on several grounds. The Plaintiff has testified that the author to the source codes of both programmes was Mr. Feng. The Plaintiff has not provided any evidence regarding his qualification, training, experience or achievements in the creation and development of a software. The Court further ruled that the Plaintiff has caused an adverse interference for not calling Mr. Feng to testify in this suit and that the Plaintiff is not a credible witness. According to Section 37(1) of the Copyrights Act, only an owner of a copyright may file a suit for copyright infringement. For the reasons elaborated above, the Court has found that the Plaintiff has failed to discharge the legal and evidential burden to prove that copyright subsists in the two programmes and that he is the owner of the copyright.

Thus, the Court ruled that the Plaintiff has no right to institute this suit for copyright infringement and dismissed the suit with cost.