Tag: intellectual property

Remember my post on “Quick, throw your CDs away! There’s a roadblock!“? It was an article about the Government implementing a law to nab people with pirated DVDs.

Latest news is that the Government decided to scrap off this law. I wonder if the article I wrote had helped in scrapping the proposed law! Hehe! *perasan*

Maybe it’s because election is coming…

Pirated DVDs Buyers Let off

KUALA LUMPUR: The proposal to penalise those who buy pirated DVDs, VCDs and CDs will not be seeing the light of day after all.

Domestic Trade, Cooperatives and Consumerism Minister Datuk Seri Ismail Sabri Yaakob told the New Sunday Times that the proposal, which was mooted by the industry, had been shot down because the ‘public feels the move is too harsh’.

“The people think the proposal to amend the Copyright Act to this effect is too punitive. They fear the enforcement of the amendment.

“They are concerned about misuse of power during enforcement.

“As far as I am concerned, that won’t happen, but the public is afraid that the police will stop their cars or go into their homes to look for pirated DVDs and VCDs.

“Therefore, the proposal to criminalise the purchase of pirated DVDs, VCDs and CDs will not go through,” he said.

Expressing his disappointment, Malaysian Artistes’ Association president Datuk Freddie Fernandez said, however, that “we are in an era where CD piracy will soon be a thing of the past.”

“People are not buying pirated CDs any more as they can get their music free from the Internet. For us, Internet piracy is the bigger problem.

“We feel more effort should be focused on this area. Websites which offer illegal downloading should be shut down and people who file-share should be subject to prosecution.

“I think for CD piracy, the fines are very high for suppliers and this
is a good deterrent, but where the Internet is concerned, we need more enforcement.”

Recording Industry Association of Malaysia (RIM) chairman Norman Abdul Halim, who is also president and chief executive officer of KRU Studios, said while penalising copyright infringers is “ideal”, it is “a bit difficult to implement”.

“To be honest, the more serious threat is from the Internet. We hope the amendment to the Copyright Act will address Internet piracy — from Internet service provider liability to the ‘three strikes’ rule — where customers receive three warnings before their Internet connection is cut off.”

It had been initially reported that buyers of pirated DVDs and VCDs would be fined five times the price of the genuine product once the Copyright Act was amended.

This was greeted by public outrage with many arguing that it was the sellers who should be penalised and that it was unfair to take legal action against buyers when original DVDs were too expensive.

One of the drafters of the Consumer Protection Act 1999, Datuk Dr Sothi Rachagan, who is currently vice-president (academic affairs) of Nilai University College, said intellectual property (IP) should be protected, but the manner in which it is protected was also very important.

He said there were two central issues — the amount of protection the holder of IP rights is entitled to, and the manner in which protection is to be effected.

“If the amendments to the Copyright Act had been enacted, then we would, for the first time, begin penalising purchasers of pirated DVDs, VCDs and CDs.

“This is essentially criminalising consumer conduct which has hitherto not been criminal.

“Peddling pirated DVDs is always an offence, but the act of purchasing a single DVD for personal use, even if frowned upon, was never an offence.”

The law currently allows a person to be arrested if he has three copies or more of a pirated DVD or VCD of the same title, the presumption being that such a person is a peddler.

“Consumers would obviously ask why, when we have serious problems with counterfeit handbags, T-shirts and shoes and other fake products, is it only an offence to buy fake DVDs, VCDs or CDs?

“When you amend the law to apply to DVDs, VCDs and CDs, then shouldn’t it also apply to other fake products?

“Are we going to extend the law to these areas? If not, why not? Why should purchasers of these products be treated differently?”

There are also implementation issues to be considered.

“If I buy a pirated DVD now when it is not illegal, will it be illegal when the law comes into effect? Will the law have retrospective effect?

“If it does, that will be repugnant to any sense of justice. It is also against Article 7 of the Federal Constitution which says no person shall be punished for an act or omission which was not punishable by law when it was done or made.

“But if it does not have retrospective effect, then it will be necessary to establish that the purchase of the DVD or VCD was later than the date the amendment was gazetted,” said Sothi.

Then comes the question of enforcement, he said.

“Are they going to search houses and cars for pirated DVDs, VCDs and CDs? Who will be given the authority to search and take action? Is it going to be ministry enforcement officers, Rela, or will the police also be involved? Would a warrant be needed?”

I recently contributed an article on LoyarBurok, a prominent Malaysian BLawg, regarding the powers of the police and the enforcement division of the Domestic Trade and Consumer Affairs Ministry’s (now the Ministry of Domestic Trade, Co-operatives And Consumerism. Some of you may have received the following emails below:

To all those CDs lover pls beware!

Please do not keep any pirated or burned CDs, DVDs, or VCDs in your car.

Police and Domestic Trade & Consumer Affairs Ministry’s enforcement division in Malaysia have started the operation to search and fine anyone who keep pirated disc inside their car especially through road block at all main road and expressways.

If any pirated or burned disc found inside your car will be charged RM400 per disc. Example 30 discs found means the fine will be RM12,000.

This is real. Another friend of mine from Seagate, today during lunch time, 5 CD x RM400 = RM2,000

One of the Plexus colleague brother-in-law caught by Police due to pirated CD in the car on the way to town for lunch with his friend in the afternoon. One CD fined RM400.

Please disseminate this to all your friends who are driving in Malaysia

Fehmes lawyer Edmund Bon asked me to address this issue and I subsequently wrote a short article on it. It is published at this page.

For the past few months, an email has been circulating alleging that police and the enforcement division of the Domestic Trade and Consumer Affairs Ministry’s (now the Ministry of Domestic Trade, Co-operatives And Consumerism) have started operations to search and fine anyone who keeps pirated discs inside their cars. The email alleges that these operations were carried out through roadblocks at main roads and expressways, and that persons caught in possession of pirated discs were fined RM400 per disc.

In fact, these stories have been circulating for some time now. A report in the Sun newspaper in April 2009 stated that the police set out roadblocks to nab anyone with pirated discs. However, the same report stated that the Ministry denied having such roadblocks being set up.

Whether or not such roadblocks have been set up, it leaves us with the question: Do the police or the Ministry have the power to search our vehicles for pirated discs?

Section 24 of the Police Act 1967 allows any police officer to stop and search without warrant any vehicle which he has reasonable grounds for suspecting is being used in the commission of any offence against any law in force. The Ministry has also authority to enter and search a vehicle without warrant provided that he has reasonable grounds for believing that delay in obtaining a search warrant would lead to the destruction of evidence.

Under section 41 of the Copyright Act 1987, it is an offence to possess, other than for private and domestic use, any infringing goods. Any person who has in his possession, custody or control three or more infringing copies of a work or recording in the same form is presumed to be in possession of such copies otherwise than for private or domestic use. This basically means that possession of a pirated disc for private and domestic use is allowed provided that the pirated disc do not exceed three or more copies of the same form.

The offence would attract a fine not less than RM2,000 and not more than RM20,000 for each infringing copy or imprisonment for a term not exceeding five years or to both.

Can the police or the Ministry stop and search your vehicle?

In short, for now, if the police or Ministry have reasonable grounds to think that you are distributing pirated goods, (e.g. if you’re suspected to be a pirated VCD/DVD seller), they can stop and search your vehicle. Otherwise, they have no authority to stop and search your vehicle for pirated discs.

This situation may soon change.

The Government recently announced plans to amend the Copyright Act 1987 to make it an offence to keep pirated goods, similar to the offence of possessing stolen goods. Although the Government has not announced the details of the amendment, such news is worrying. This basically means that anyone in possession of pirated goods is committing an offence. Hence, any police, with reasonable grounds that there are pirated goods in a vehicle, may stop and search the vehicle.

What if the driver had purchased genuine songs from the internet and had it copied into a CD? The driver would have to prove and explain that he had genuinely purchased the song.

If I had downloaded software, music or movies into my computer from the Internet, does the police or Ministry has the authority to enter my house and search my computer? Based on the proposed amendment, the police or Ministry has the authority to do so.

Guidelines to allow the authorities to stop and search a vehicle for pirated goods should be clearly spelled out and made available to the public. The public should be given the right to use or copy copyrighted materials for their private use. Certain levies or exemptions should be given to the public if they are in possession of pirated goods unintentionally.

An outright ban of unauthorised possession copyrighted materials will create fear and chaos to the country and society.

On another note, United Kingdom will be amending their copyright laws to make them fit for the internet age. According to UK Prime Minister David Cameron, the law could be relaxed to allow greater use of copyright material without the owner’s permission. (Read more here.

How unfortunate, while UK is moving forward with the Internet age, Malaysian IP laws are going backwards.