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Computer software protection in Malaysia is provided by the Copyright Act 1987 ("the 1987 Act").The 1987 Act will be amended in due course by the Copyright (Amendment) Acts of 1996 and 1997.
The definition of "literary work" in the 1987 Act includes "computer programs or compilations of computer programs". The words "or compilations of computer programs" will be deleted when the 1997 (Amendment) Act comes into force. "Computer program" according to the 1987 Act means "an expression, in any language, code or notation, of a set of instructions (whether with or without related information) intended to cause a device having an information processing capability to perform a particular function either directly or after either or both of the following:-
(a) conversion to another language, code or notation;
(b) reproduction in a different material form.
Although there has been no substantial juridical consideration of the definition, the provisions of the Malaysian Act in relation to computer programs clearly follows those of the Australian Copyright Amendment Act 1984. As such, the decision under the Australian Act will have precedental effect and will be followed by the Malaysian courts. This should particularly apply to Autodesk Inc v Dyason [1992] 66 ALJR 233 which made it clear that in Australia, the definition was wide enough to cover the initial program, the source code and the object code.
A recent Malaysian High Court decision illustrated that copyright protection for software programs can be extended to embody all manifestations of that set of instructions which can be read by a computer in whatever converted form, including even any copy protection device such as a "dongle" adopted by the owner as a security measure (See Creative Purpose Sdn. Bhd. v Integrated Trans Corp Sdn. Bhd. [1997] 2 M.L.J. 429).
This decision has foreshadowed the 1997 (Amendment) Act which would, upon its enforcement, regard any circumvention of effective technological measures employed by authors to prevent any unauthorised acts in connection with their copyright works, as an infringement actionable in a civil suit and/or criminal proceedings.
A literary work does not become eligible for copyright unless sufficient effort has been expended to make the work original in character and it has been written down, recorded or reduced to material form. 'Recorded' is not defined in the 1987 Act but "material form" is defined as including "any form (whether visible or not) of storage from which the work or derivative work, or a substantial part of the work or derivative work can be reproduced". Form this definition it is clear that the work can be in the form of electrical impulses on tape, disk, ROM or EPROM and the work may be regarded as being "made" when it is first stored on disk and "reduced to material form" when stored in the computer. Of course, if a programmer literally writes out his program the literary work is made and reproduced in material form at the same time.
Clara Yip, Legal Officer
Tel: 03 - 243 9122
Fax: 03 - 242 3354
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