Balance of Interest among Copyright Owner,

Service Provider, and Users in the Digital World

1.0 INTRODUCTION
The advent of the digital age has fundamentally reshaped the landscape of copyright
law, introducing a complex tripartite relationship between copyright owners, service
providers, and users. In this interconnected environment, the traditional exclusive rights
of copyright owners face unprecedented challenges due to the ease of digital
reproduction and dissemination. Simultaneously, Internet Service Providers (ISPs) and
Online Service Providers (OSPs) play an indispensable role in facilitating online activity,
yet they face immense potential liability for copyright infringements occurring on their
networks. Users, on the other hand, demand free and easy access to information and
creative works, often without a full understanding of copyright implications. Malaysian
copyright law, particularly the Copyright Act 1987 (CA 1987), has sought to navigate this
intricate balance, implementing provisions aimed at mediating these often-conflicting
interests. This essay will explore the dynamic balance between copyright owners,
service providers, and users in the digital world under Malaysian law, comparing it with
other jurisdictions and supported by legal authorities. It will critically assess areas where
Malaysian copyright law can be improved and where improvements may not be
necessary, considering Malaysia's context as a developing country.

2.0 POINT 1: Interests of the Copyright Owner –

Protecting Exclusive Rights in the Digital Age
Copyright owners hold a fundamental interest in protecting their exclusive rights, which
are the cornerstone of the copyright system. These rights, as enumerated in Section
13(1) of the CA 1987, provide the necessary incentives for creators to invest their time,
effort, and resources into producing original works. In the digital world, the challenge for
copyright owners is amplified because digital technologies enable the reproduction and
distribution of works with unprecedented ease, speed, and near-perfect quality.

The right of reproduction (Section 13(1)(a)) is central to this interest. Every activity on
the internet, from browsing a webpage to downloading a file, inherently involves the
creation of a copy, whether temporary or permanent. This means that copyright owners
face a massive scale of potential infringement, making enforcement difficult and costly.
For example, peer-to-peer (P2P) file-sharing networks allow users to download
copyrighted musical works or films, directly infringing the reproduction right. Cases like
A & M Records v Napster [2001] 239 F.3d 1004 (US) and Dramatico Entertainment v
British Sky Broadcasting [2012] EWHC 268 (Ch) (UK) illustrate how users' actions of
downloading files constitute direct infringement of the copyright owner's reproduction
right. The challenge for copyright owners is identifying and pursuing individual
infringers, which is often impractical given the sheer volume of online activity.

The right of communication to the public (Section 13(1)(aa)) is equally vital in the
digital realm. This right covers the "making available" of works to the public, allowing
individuals to access content at a time and place of their choosing, such as through
streaming services. While this expands the market for copyright owners, it also means
that unauthorized uploading and streaming can rapidly disseminate infringing content
worldwide. Copyright owners thus have a strong interest in controlling these new forms
of communication to ensure proper licensing and remuneration. The European Union's
stance, as seen in ITV Broadcasting Ltd v TVCatchup Ltd [2013] ECDR 9, confirms that
even individual transmissions to users, if cumulative, constitute communication to the
public. This reinforces the copyright owner's ability to assert control over services that
facilitate mass access to their works.

Furthermore, copyright owners are interested in leveraging Technological Protection

Measures (TPMs) and Rights Management Information (RMI) to control access to
and use of their digital works. Sections 36A and 36B of the CA 1987 provide legal
protection against the circumvention of TPMs and the removal of RMI. TPMs (e.g.,
encryption, copy controls) are a technological "fence" copyright owners use to
safeguard their digital content, offering a first line of defense against unauthorized use.
The legal backing for these measures is crucial for copyright owners to manage their
digital assets effectively and maintain market control. However, the scope and
effectiveness of TPMs in balancing rights remain a contentious issue, as strict
enforcement could potentially override legitimate public interests and exceptions.

The underlying concern for copyright owners is the potential for market erosion due to
widespread unauthorized copying and distribution. If their exclusive rights are not
adequately protected, the economic viability of creating and distributing copyrighted
works diminishes, potentially leading to a reduction in creative output. Therefore,
copyright owners advocate for strong legal frameworks and effective enforcement
mechanisms that deter infringement and ensure they can monetize their intellectual
property in the digital marketplace. This includes clear provisions for addressing
secondary liability, where service providers might be held responsible for facilitating
user infringement.

3.0 POINT 2: Interests of the Service Provider – The Need

for Safe Harbour
Service providers (SPs), encompassing both Internet Service Providers (ISPs) and
Online Service Providers (OSPs), are essential facilitators of the modern digital
ecosystem. Their core interest lies in providing connectivity, hosting content, and
offering information location tools without incurring disproportionate legal liability for the
actions of their vast user bases. Without SPs, the internet would be "devoid of
information" (5.0 Limitation of Liability (Incomplete).pdf, Page 1).

The primary concern for SPs is the high potential for copyright infringement
liability. Due to the sheer volume of data transmitted and stored on their networks, it is
"almost impossible for them to control and monitor the internet users activity" (5.0
Limitation of Liability (Incomplete).pdf, Page 1). Every technical activity, from routing
data to caching webpages, involves copying, making SPs potentially liable for direct
infringement. More significantly, SPs face secondary liability for their users' direct
infringements, as their services facilitate the reproduction and communication to the
public of copyrighted material. Imposing strict liability or a general monitoring duty would
result in "extremely high cause for them and it will cause discouragement for people to
join in business of service providers" (5.0 Limitation of Liability (Incomplete).pdf, Page
1). This would stifle the growth and innovation of the internet itself.

To mitigate this risk, safe harbour provisions are crucial. These legal frameworks limit
the liability of SPs, provided they meet certain conditions, often revolving around a
"notice and takedown" procedure. The philosophy behind safe harbour laws is to
"compromise between the interest of the copyright owners and the interest of the
service providers" (5.0 Limitation of Liability (Incomplete).pdf, Page 2). Instead of
requiring SPs to proactively monitor content, the onus is shifted to copyright owners to
notify SPs of infringing material. If an SP complies with the notice and takes down the
infringing content, they enjoy limited liability.

Malaysia's CA 1987 introduced Part VIB, which includes Sections 43C, 43D, and 43E,
addressing different types of SP activities:

● Section 43C (Mere Conduit): This provision exempts SPs (specifically ISPs)
from liability for copyright infringement when they merely act as a "mere conduit"
for the transmission or routing of data without initiating, selecting, or modifying
the content. This covers activities like internet access provision. The US Digital
Millennium Copyright Act (DMCA) Section 512(a) similarly provides safe harbour
for mere conduit activities, as seen in Religious Technology Center v Netcom
On-Line Communication Services, Inc [1995] 907 F. Supp. 1361 (ND Cal). The
key here is the passive nature of the SP's role.
● Section 43D (System Caching): This section exempts SPs engaged in "system
caching," where copies of works are stored temporarily to facilitate efficient
 access by users. This is a common practice to improve internet performance. For
this exemption to apply, the caching must be an "automatic process" and "in
response to an action by a user" (Section 43D(1)(b) and (c)). Unlike some other
jurisdictions, Section 43D is silent on the duration of storage, and curiously, it still
subjects SPs to Section 43H notice and takedown procedures for system
caching, even if the infringing copy remains on the originating network (5.1
Limitation of Liability Part [Link], Page 6). This raises practical concerns, as SPs
would inevitably re-cache the content.
● Section 43E (Storage at User's Direction and Information Location Tools):
This is arguably the most critical safe harbour for OSPs, covering hosting
services (e.g., YouTube, Facebook) and information location tools (e.g., search
engines like Google). For hosting services (Section 43E(1)(a)), the SP is exempt
if the infringement occurs "by reason of" the electronic copy being stored "at the
direction of a user." This "by reason of" phrase has been broadly interpreted in
the US, as in UMG Recordings Inc v Veoh Networks 620 F Supp 2d 1081 (CD
Cal 2008), where the automatic conversion of uploaded video files into Flash
format by the SP did not disqualify them from safe harbour, as the initial
uploading was "at the direction of its user." This limits SP liability to situations
where they do not actively participate in or select infringing content. For
information location tools (Section 43E(1)(b)), such as search engines providing
hyperlinks, the SP is exempt if the infringement occurs "by reason of" them
"referring or linking a user to an online location."

A crucial condition for SPs to enjoy safe harbour under Section 43E is the absence of
"actual knowledge" of infringing activity or, in its absence, being "aware of the fact or
circumstances of which the infringing activities is apparent" (Section 43E(1)(i)), often
referred to as the "red flag" test. This test involves both subjective awareness and
objective indicators that would alert a reasonable person to infringement, as discussed
in Viacom International v YouTube [2010] 718 F Supp 2d 514 (SDNY).

In essence, SPs' interests demand a balanced legal framework that acknowledges their
critical role in the digital economy while providing clear, achievable conditions for
limiting their liability, preventing them from becoming de facto copyright enforcers
burdened by impossible monitoring duties.

4.0 POINT 3: Interests of the Users – Access to

Information and Legitimate Use
Users in the digital world have a strong and growing interest in accessing information
and creative works freely and conveniently. This interest aligns with broader public
policy goals of promoting education, research, cultural participation, and freedom of
expression. The digital environment, with its vast repositories of information and
collaborative tools, offers unprecedented opportunities for users to engage with content.

One of the primary interests of users is the ability to browse and consume digital
content without fear of inadvertently infringing copyright. As discussed in Q1, every
instance of viewing a webpage or streaming a video involves the creation of temporary
copies (RAM copies, cached copies). Without legal exceptions, these common activities
would expose millions of users to potential copyright infringement liability. The transient
copy exception in Section 13(2)(q) of the CA 1987 directly addresses this, stating that
"the making of a transient and incidental electronic copy of a work made available on a
network if the making of such copy is required for the viewing, listening or utilisation of
the said work" is not an infringement. This exception is vital for ensuring unimpeded
access to online content for users. It is an acknowledgment that the act of "reading" or
"viewing" in the digital sphere should be treated similarly to its physical counterpart,
where such acts do not constitute infringement. The UK Supreme Court in Public
Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors
[2013] UKSC 18 strongly supported such an exception, deeming it unacceptable for
users to incur civil liability merely by browsing.

Users also have a legitimate interest in fair dealing with copyrighted works for
purposes such as private study, research, criticism, parody, or news reporting. The
broadened fair dealing exception in Section 13(2)(a) and the four-factor test in Section
13(2A) of the CA 1987 empower users to make uses of copyrighted works that are
socially beneficial and transformative, without requiring prior permission from the
copyright owner. This flexibility allows users to build upon existing creative works,
contributing to new knowledge and cultural expressions. Examples like the Google
Books project highlight how mass digitalization and snippet views, while involving
copying, serve the public interest by enhancing research and access to information,
ultimately benefiting users. The transformative nature of such uses, even if commercial,
often outweighs the direct commercial harm to copyright owners.

Furthermore, users benefit from the existence of search engines and other
information location tools. These services, by indexing and providing links to vast
amounts of online content (including cached links), significantly enhance users' ability to
find and access information. While these activities involve SPs and their liability, the
ultimate beneficiaries are the users who gain efficient and comprehensive access to the
internet's resources. The US case of Field v Google, Inc [2006] 412 F. Supp. 2d 1106,
found Google's cached links to be fair use, partly because they served "socially
important purposes" like preserving access to information and aiding research, which
directly benefit users.
The tension for users arises when their desire for free and unfettered access clashes
with the copyright owners' exclusive rights. While fair dealing and transient copy
exceptions provide legal avenues for legitimate use, users may sometimes engage in
unauthorized activities, such as illegal downloading or sharing. Educating users about
copyright law and promoting legal alternatives (e.g., licensed streaming services, digital
purchases) is crucial to channel their interest in access towards lawful consumption.
The existence of safe harbour provisions for SPs also indirectly benefits users, as it
ensures that the infrastructure they rely on for accessing content remains viable and
accessible. Without these protections for SPs, the services users rely on might cease to
exist or become prohibitively expensive.

In summary, users' interests are deeply intertwined with the free flow of information and
the ability to engage with digital content in a flexible and dynamic manner. Copyright
law's challenge is to accommodate these interests without undermining the fundamental
economic incentives of creators.

5.0 POINT 4: The Balancing Act in Malaysian Law and

Comparison with Other Jurisdictions
Malaysia's Copyright Act 1987 has made significant strides in attempting to balance the
interests of copyright owners, service providers, and users in the digital world, largely
influenced by international treaties and the experiences of developed jurisdictions.

Malaysian Approach:

1. Exclusive Rights (Pro-Copyright Owner): The CA 1987 grants robust

exclusive rights (Section 13(1)), covering reproduction, communication to the
public, and distribution. The interpretation of these rights, particularly the broad
definition of "material form" (Section 3) and the expansive "communication to the
public" (Section 13(1)(aa)), initially appears to favor copyright owners by covering
a wide range of digital activities. The Rock Records (M) Sdn Bhd case
exemplifies the strict construction of licensing, protecting owners' control over
different formats.
2. Exceptions (Pro-User/Public Interest): The 2012 amendments introduced
crucial exceptions to benefit users and the broader public. The broadened fair
dealing (Section 13(2)(a) and (2A)) is a significant step, shifting from a closed list
to a flexible, factor-based approach akin to US fair use. This allows Malaysian
courts to consider transformative uses that benefit society, acknowledging the
fluid nature of digital creativity. The transient copy exception (Section 13(2)(q))
is a pragmatic concession to internet functionality, protecting users from liability
for inherent technical copying during browsing.
 3. Safe Harbours (Pro-Service Provider): Part VIB of the CA 1987, introduced in
2012, provides safe harbours for SPs (Sections 43C, 43D, 43E). This is the
primary mechanism to shield SPs from extensive liability for user-generated
content.
○ Mere Conduit (Section 43C): Protects ISPs for passive data
transmission. This is a clear balance: SPs enable the internet, so they
shouldn't be liable for content they don't control.
○ System Caching (Section 43D): Exempts SPs for temporary storage for
efficiency. However, the condition subjecting caching SPs to notice-and-
takedown (Section 43D(2)) even if the source material remains online is a
practical imbalance, placing an undue burden on SPs and undermining
the efficiency goal of caching.
○ Hosting and Information Location Tools (Section 43E): This is the
most critical for large platforms. The "at the direction of a user" and "by
reason of" language attempts to limit liability to purely passive hosting,
excluding SPs who actively select or control infringing content. The "actual
knowledge" or "red flag" test (Section 43E(1)(i)) requires SPs to act only
when infringement is apparent, not to proactively monitor. This attempts to
strike a balance between holding SPs accountable for known
infringements and preventing them from becoming internet censors.

Comparison with Other Jurisdictions:

1. United States (DMCA 1998): The DMCA (17 USC Section 512) is the global
benchmark for safe harbour. Malaysia's Part VIB is heavily influenced by the
DMCA.
○ Similarities: The DMCA also provides safe harbours for mere conduit
(512(a)), caching (512(b)), hosting (512(c)), and information location tools
(512(d)), with similar conditions (knowledge/red flag, no financial benefit,
compliance with takedown). Cases like UMG Recordings Inc v Veoh
Networks and Viacom International v YouTube (US) have interpreted the
"at the direction of a user" and "red flag" tests, generally favoring SPs in
the absence of specific knowledge of infringement or active inducement.
○ Differences: The DMCA's caching safe harbour (512(b)) is more refined,
with specific conditions regarding content refreshing and compliance with
industry-standard technology to obtain usage information, and importantly,
does not explicitly subject caching to general notice and takedown, only
specific source removal. This avoids the practical problem in Malaysia's
Section 43D(2). Furthermore, the DMCA has an anti-circumvention
provision (512(f)) against knowingly making false claims, which is intended
to protect SPs and users from abusive takedown notices. Malaysia's
 Section 43I offers a similar, but perhaps less robust, protection for SPs
against knowingly misrepresenting infringing material.
○ Overall Balance: The US, through the DMCA and a broad fair use
doctrine, has historically leaned towards fostering innovation and
protecting SPs to enable internet growth, while still providing avenues for
copyright owner enforcement.
2. European Union (E-Commerce Directive 2000/31/EC): The EU framework,
particularly Articles 12 (mere conduit), 13 (caching), and 14 (hosting) of the E-
Commerce Directive, also provides safe harbours.
○ Similarities: Like Malaysia and the US, the EU exempts SPs for passive
activities and imposes a knowledge requirement before liability attaches.
○ Differences: The EU Directive (Article 15) explicitly states that member
states "shall not impose a general obligation on providers... to monitor the
information which they transmit or store." This strong prohibition against
general monitoring is a clear pro-SP stance. The EU's caching provision
(Article 13) is also more aligned with the DMCA, not imposing a general
takedown for cached content if the original is still online. The recent
Directive on Copyright in the Digital Single Market (DSM Directive),
particularly Article 17, shifts more responsibility onto platforms for user-
uploaded content, requiring them to obtain licenses or ensure content is
not available, representing a potential rebalancing towards copyright
owners. This is a significant departure from the previous safe harbour
regime for platforms relying on user uploads.
○ Overall Balance: Historically, the EU had a relatively SP-friendly safe
harbour, but the DSM Directive signifies a shift, requiring platforms to be
more active in managing copyrighted content.
3. Australia: Australia also has safe harbour provisions in its Copyright Act 1968
(e.g., Section 116AE for carriage service providers, Section 116AF for online
content hosts), similarly based on the notice and takedown principle and
knowledge thresholds. The interpretation of "authorizing infringement" has been
significant, as seen in National Rugby League Investments Pty Ltd v Singtel
Optus Pty Ltd [2012] FCAFC 59, where Optus was held to be the "maker" of
copies in its cloud TV recording service, demonstrating a stricter view on SP
involvement than the US Cartoon Network case.
○ Overall Balance: Australia's approach can be seen as slightly more
conservative than the US in some areas, potentially placing more onus on
SPs depending on their level of "pervasive" involvement.

Malaysian Balancing Act Assessment: Malaysia's Part VIB generally achieves a

reasonable balance by adopting international best practices for safe harbour. It
recognizes the practical impossibility of SPs monitoring all content while providing
copyright owners with a mechanism (notice and takedown) to enforce their rights. The
broadened fair dealing exception also empowers users for legitimate uses. However,
the current drafting of Section 43D(2) concerning cached links is a weak point, creating
an impractical obligation for caching SPs and potentially undermining the efficiency
rationale of caching. This specific aspect of Malaysian law could be seen as less
balanced than its US and EU counterparts, where caching SPs are typically not required
to remove cached content unless the original is also removed.

In conclusion, Malaysia's copyright law reflects a conscious effort to balance the digital
interests. While largely effective, specific details, like the caching provision, demonstrate
areas where the balance can be refined for greater practical effectiveness and
alignment with the realities of digital infrastructure.

6.0 WHAT CAN WE DO FOR IMPROVEMENT?

Given Malaysia's status as a developing country, any improvements to copyright law
should ideally promote a vibrant digital economy, foster innovation, and ensure public
access to knowledge, without placing undue burdens on emerging industries or stifling
user creativity.

Areas for Improvement:

1. Refine the Notice-and-Takedown Procedure for System Caching (Section

43D):
○ Problem: As currently drafted, Section 43D(2) implies that SPs engaged
in system caching are liable if they don't comply with a Section 43H notice,
even if the infringing material remains on the originating network. This is
impractical and inefficient, as caching SPs would endlessly re-cache the
content.
○ Proposed Improvement: Amend Section 43D(2) to align with the US
(DMCA Section 512(b)) and EU (E-Commerce Directive Article 13)
approaches. Specifically, a caching SP should only be required to remove
cached content if the original infringing material has been removed from
the originating network. This shifts the primary responsibility to the
copyright owner to address the source of the infringement. This would
ensure that SPs providing caching services are not subjected to an
impossible task and can continue to facilitate efficient internet access.
○ Why for a developing country: Efficient internet infrastructure is crucial
for economic development. Burdensome caching rules can degrade
internet speed and increase costs, hindering digital inclusion and
innovation. A practical approach to caching safe harbour encourages the
 deployment of essential internet services without imposing unfeasible
monitoring duties.
2. Enhance Clarity on "Red Flag" Knowledge for Hosting SPs (Section 43E):
○ Problem: While the "red flag" test (Section 43E(1)(i)(B)) is designed to
capture apparent infringement, its interpretation can be subjective,
potentially leading to uncertainty for SPs and copyright owners. What
constitutes "facts or circumstances of which the infringing activities is
apparent" can be vague.
○ Proposed Improvement: Provide more detailed guidance, perhaps
through ministerial orders or judicial precedents, on what specific
circumstances would constitute a "red flag" for a reasonable SP. This
could include examples of typical "red flag" scenarios (e.g., specific and
repeated infringement notices, explicit user comments about infringing
content, high-volume uploads of known pirated material without licensing).
This would give SPs clearer criteria to operate under and reduce litigation.
○ Why for a developing country: Clearer rules reduce legal uncertainty
and compliance costs for burgeoning local tech companies and startups
that might act as hosting providers. This fosters a more predictable
regulatory environment, encouraging investment and growth in the digital
services sector.

Areas Where Improvements Are Not Necessary:

1. Broadened Fair Dealing Exception (Section 13(2A)):

○ Current State: The 2012 amendments moved Malaysia's fair dealing
towards a flexible, open-ended doctrine, similar to US fair use. This allows
courts to consider a wide range of socially beneficial uses, including
transformative ones.
○ Why No Immediate Improvement: This flexibility is highly advantageous
for a developing country. It means the law can adapt to new digital uses
and technologies without constant legislative intervention. It supports
education, research, and public discourse by allowing access to and re-
purposing of copyrighted works, which are crucial for human capital
development and economic growth. A rigid, prescriptive approach could
stifle innovation and limit access to information, which would be
detrimental to development. The current framework allows for a nuanced,
case-by-case balancing of interests, which is a strength.
2. General Framework of Safe Harbours (Sections 43C, 43E):
○ Current State: The overall structure of Malaysia's safe harbour provisions
for mere conduit and hosting services is sound and aligns well with
international standards (DMCA, E-Commerce Directive). It properly shifts
 the primary enforcement burden to copyright owners (notice and
takedown) while providing necessary protection for SPs.
○ Why No Immediate Improvement: This framework is fundamental to the
internet's operation. Overly strict liability would cripple SPs, making
essential online services unfeasible or prohibitively expensive, which
would be disastrous for a developing country's digital infrastructure and
economy. The current system allows for the healthy growth of the internet
and digital services, benefiting all stakeholders while still providing a
mechanism for copyright owners to protect their rights. The balance
achieved here is pragmatic and conducive to digital development.

7.0 CONCLUSION
The Malaysian Copyright Act 1987 has made commendable efforts to balance the
intricate interests of copyright owners, service providers, and users in the digital age. By
expanding fair dealing provisions and introducing safe harbour mechanisms, Malaysia
has largely aligned itself with international best practices, aiming to foster both creative
output and a thriving digital economy. Copyright owners retain significant control over
their works, while users are granted essential freedoms for legitimate uses, and service
providers are shielded from crippling liability.

However, the balance is not without its nuances and potential for refinement. The
specific challenges posed by the system caching provision (Section 43D(2)) highlight a
need for practical adjustment to ensure the law operates effectively without unintended
burdens on essential internet services. Furthermore, as the digital landscape continues
its rapid evolution, particularly with emerging technologies like AI, ongoing vigilance and
proactive legal development will be crucial. For a developing country like Malaysia,
maintaining a flexible and adaptable copyright framework, while strategically improving
specific areas, is paramount to nurturing its digital ecosystem, encouraging innovation,
and ensuring equitable access to information and creativity for all its citizens. This
continuous recalibration will be key to achieving a truly harmonious digital environment
where all stakeholders can thrive.
General Improvements for Malaysian Copyright
Law
1.0 INTRODUCTION
Malaysian copyright law, primarily governed by the Copyright Act 1987 (CA 1987), has
undergone several amendments to adapt to the evolving technological landscape,
particularly the digital environment. While these updates have introduced crucial
provisions, such as expanded fair dealing and safe harbour for service providers, the
rapid pace of technological innovation, including the advent of artificial intelligence (AI),
necessitates continuous review and improvement. This essay will identify general
improvements that Malaysian copyright law should consider, making reference to other
jurisdictions and supporting the proposals with legal authorities. The aim is to ensure
that the law remains robust, relevant, and capable of fostering creativity and innovation
while safeguarding public access in an increasingly complex digital world.

2.0 POINT 1: Addressing the Challenges of AI-Generated

Works
The emergence of artificial intelligence (AI) capable of generating creative works (e.g.,
text, music, art) poses fundamental challenges to traditional copyright principles,
particularly concerning authorship and originality. The CA 1987, like many older
copyright statutes, is premised on human authorship.

The general rule in Malaysia, as stated in Section 26(1) CA 1987, is that "the author of a
copyright work is the initial owner of the copyright." Section 3 CA 1987 defines "author"
based on the type of work: for literary, musical, or artistic works, it refers to the "writer or
maker," "composer," or "artist," respectively. For films or sound recordings, it means
"the person by whom the arrangements for the making... were undertaken." These
definitions inherently point to a natural person's creative input or a corporate entity's
organizational role in coordinating human creativity (for neighbouring rights). AI,
however, can generate works autonomously, without direct human creative intervention
in each output.

This raises several critical questions:

● Can an AI be considered an "author" under current Malaysian law? The

prevailing view globally is that copyright subsists only in works created by a
human author. The notion of originality, often linked to human intellect, creativity,
and judgment, is difficult to apply to AI.
 ● If AI cannot be an author, who owns the copyright in AI-generated works?
Potential candidates include the AI developer, the person who inputs the prompt
(the user), or the owner of the AI system.
● What is the term of protection for AI-generated works if there is no human
author? The general term is the life of the author plus 50 years.

Comparison with other Jurisdictions:

● United Kingdom: The UK Copyright, Designs and Patents Act 1988 (CDPA) is
one of the few jurisdictions to explicitly address computer-generated works.
Section 9(3) CDPA states that "in the case of a literary, dramatic, musical or
artistic work which is computer-generated, the author shall be taken to be the
person by whom the arrangements necessary for the creation of the work are
undertaken." This provision allows for copyright to subsist in works created by
computers without a human author in the traditional sense, as long as there is a
human who made the "arrangements necessary." Section 178 CDPA defines
"computer-generated" as "generated by computer in circumstances where there
is no human author of the work." The term of copyright for such works is 50 years
from the end of the calendar year in which the work was made (Section 12(7)
CDPA), and moral rights do not apply (Section 79(2)(c) CDPA). This provides a
pragmatic solution.
● United States: The US Copyright Office position is that copyright protection "only
extends to works created by a human author." The US Copyright Review Board,
in its decision regarding the "A Recent Entrance to Paradise" artwork created by
an AI (Thaler v. Perlmutter, No. 22-1047 (D.D.C. Feb. 18, 2022)), reiterated that
human authorship is a prerequisite for copyright registration. This means works
autonomously generated by AI are not copyrightable in the US.
● European Union: The EU legal framework, while acknowledging the role of
technology, generally adheres to the principle that copyright protection applies
only to human intellectual creations. The concept of "author's own intellectual
creation" requires a human imprint. Some scholars argue for sui generis rights or
a narrow interpretation of human intervention.

Proposed Improvement for Malaysia: Malaysia should consider following the

pragmatic approach of the UK by introducing a specific provision for "AI-generated
works."

● Define "AI-generated work": A work created by artificial intelligence where

there is no human author in the traditional sense.
● Identify the "author": The person or entity who makes "the arrangements
necessary for the creation of the work." This could be the programmer, the user
 providing the prompt, or the person who deploys and manages the AI system.
This shifts the focus from direct creative input to the human effort in setting up
and operating the AI.
● Specify a fixed term of protection: A shorter, fixed term, such as 50 years from
the date of creation, as in the UK, would avoid the issue of "life plus" for a non-
human entity and ensure that AI-generated works eventually enter the public
domain.
● Clarify moral rights: Explicitly state that moral rights (e.g., paternity, integrity)
do not apply to AI-generated works, as they are inherently tied to human
personality and reputation.

Implementing such provisions would provide legal certainty, encourage investment in AI

development within Malaysia, and ensure that valuable AI-generated works are
protected, preventing free-riding without creating perpetual monopolies. This is a critical
area for a developing country to address proactively to remain competitive in the global
digital economy.

3.0 POINT 2: Reforming the Digital Exhaustion Principle

(First Sale Doctrine for Digital Content)
The application of the exhaustion principle, or first sale doctrine, to digital content
remains a significant challenge for copyright laws worldwide. In Malaysia, Section 13(1)
(A) of the CA 1987 states that the distribution right is exhausted upon the "first instance
of sale or other transfer of ownership of that copy in Malaysia." While "copy" is broadly
defined in Section 3 to include digital forms, the practical reality of digital transfer
creates complexities.

The Problem: When a digital file is transferred, it typically involves the creation of a
new copy on the recipient's device and, ideally, the deletion of the original from the
sender's device. This act of creating a new copy can be argued to constitute a
"reproduction" (Section 13(1)(a)), which is a separate exclusive right from distribution. If
every transfer involves a "reproduction," then the exhaustion of the "distribution" right
becomes meaningless, as the "reproduction" right is re-infringed.

Comparison with other Jurisdictions:

● United States: The US first sale doctrine (17 USC Section 109(a)) applies to the
"owner of a particular copy." US courts, notably in Capitol Records LLC v ReDigi
Inc [2018] No. 16-2321 (2d Cir), have held that transmitting a digital music file,
even if the original is deleted, constitutes an infringing "reproduction" because a
new copy is created on the recipient's server. This effectively prevents a digital
 first sale doctrine from applying unless specific statutory intervention occurs. This
approach prioritizes the copyright holder's control over digital copies.
● European Union: The EU has taken a more nuanced approach. In UsedSoft
GmbH v Oracle International Corp [2012] Case C-128/11 (CJEU), the European
Court of Justice ruled that the principle of exhaustion of the right of distribution
applies to a copy of computer software downloaded from the internet where that
copy was granted a perpetual license for a fee. The Court reasoned that a "sale"
occurs if the transfer of ownership of a copy is accompanied by an unlimited right
to use it. This decision allows for the resale of "used" software licenses, provided
the original copy is rendered unusable. This is a pro-consumer stance that
recognizes the economic reality of digital transactions.

Proposed Improvement for Malaysia: Malaysia should consider legislative

amendments to clarify the application of the exhaustion principle to digital works,
potentially following the EU's UsedSoft approach, but also directly addressing the
ReDigi reproduction issue.

● Define "digital sale": Clearly define what constitutes a "sale or other transfer of
ownership" for digital works that would trigger exhaustion, focusing on the
perpetual nature of the license and a one-off payment, regardless of how the
transaction is labelled (e.g., "license").
● Introduce a "digital first sale" exception: Create a specific exception that
permits the transfer of a lawfully acquired digital copy, provided that:
○ The original copy on the transferor's device is verifiably deleted or
rendered unusable.
○ The transfer is of the original digital copy and not a new reproduction for
commercial purposes.
○ This would likely require the development of secure technical measures to
verify deletion and prevent multiple concurrent copies.
● Leverage Technology: Encourage the development and adoption of secure
digital rights management (DRM) technologies or blockchain-based solutions that
can facilitate legitimate digital resale while preventing widespread piracy.

Implementing a robust digital exhaustion principle would empower consumers, create a

legitimate secondary market for digital content, and potentially foster new business
models. This move would demonstrate Malaysia's commitment to balancing copyright
protection with consumer rights and promoting a dynamic digital economy. While
challenging from a technical and enforcement perspective, it represents a progressive
step for a developing country aiming to keep pace with global digital trends and user
expectations.
4.0 POINT 3: Strengthening and Clarifying Anti-
Circumvention Measures (TPMs) and Exceptions
Sections 36A and 36B of the CA 1987 protect Technological Protection Measures
(TPMs) and Rights Management Information (RMI), respectively, aligning Malaysia with
international obligations under the WIPO Copyright Treaty (WCT). These provisions
prohibit the circumvention of effective TPMs that control access to or use of copyrighted
works, and the removal/alteration of RMI. While essential for copyright owners, the
balance between these protections and legitimate public access (exceptions to
copyright) is often contentious.

Current Malaysian Provisions:

● Section 36A (TPMs): Prohibits circumvention of "effective technological

measures" that control access or restrict acts (e.g., reproduction). Section 36A(2)
provides limited exceptions for law enforcement, national security, or statutory
functions.
● Section 36B (RMI): Prohibits removal or alteration of RMI (e.g., watermarks,
metadata) if done with knowledge that it will induce, enable, facilitate, or conceal
infringement. Section 36B(2) has similar narrow exceptions.

The Problem: A significant criticism of strong anti-circumvention laws is their potential

to override statutory exceptions to copyright (e.g., fair dealing, educational uses,
accessibility for persons with disabilities). If a work is protected by an effective TPM,
even if a user has a right to use it under fair dealing, they might be unable to access it to
exercise that right. This creates a "perfect storm" for public access.

Comparison with other Jurisdictions:

● United States (DMCA Section 1201): The DMCA's anti-circumvention

provisions are robust but also allow for a triennial rulemaking process where the
Librarian of Congress, acting on the recommendation of the Register of
Copyrights, can grant temporary exemptions to the prohibition on circumventing
access controls for specific non-infringing uses. This process provides a flexible
mechanism to address real-world problems where TPMs impede legitimate
access to copyrighted works (e.g., for educational purposes, accessibility). This
is a unique feature that allows for dynamic rebalancing.
● European Union (Information Society Directive Article 6): The EU Directive
requires member states to provide "adequate legal protection" against
circumvention. While it mandates the legal protection of TPMs, it also requires
member states to ensure that users benefiting from specific copyright exceptions
can still exercise those exceptions if TPMs prevent them. This often leads to
 "private copying levies" or other remuneration schemes to compensate rights
holders, or a requirement for rights holders to make non-protected versions
available for legitimate uses.

Proposed Improvement for Malaysia: Malaysia should review its TPM provisions to
ensure they do not unduly restrict legitimate access and use under statutory exceptions.

● Introduce a more flexible exception mechanism: Instead of rigid, narrow

exceptions, Malaysia could consider a mechanism similar to the US triennial
rulemaking process. This would allow for a periodic review of specific categories
of works and uses where TPMs hinder non-infringing activities (e.g., for
educational institutions to use material for online learning, for libraries to preserve
digital content, or for accessibility purposes for persons with disabilities as
permitted under Section 13(2)(r) and (s)). This would involve a public
consultation process.
● Promote Interoperability: Consider measures that facilitate interoperability for
legitimate purposes, ensuring that TPMs do not create monopolies over
hardware or software required to access works.
● Clarify Interaction with Exceptions: Explicitly state how TPMs interact with
other exceptions, ensuring that where a statutory exception applies, the TPMs do
not act as an absolute barrier to the exercise of that exception. This could involve
an obligation on copyright owners to provide a non-TPM-protected version for
legitimate uses upon request, or a mandatory licensing scheme for such uses.

Strengthening the exceptions to TPMs would strike a better balance between protecting
copyright owners' investments in digital security and ensuring that the public benefits
from the exceptions enshrined in the CA 1987. This is particularly important for a
developing country where access to educational and cultural materials may be vital for
societal progress.

5.0 POINT 4: Strengthening Enforcement against

Commercial-Scale Online Infringement
While Malaysian law has safe harbour provisions for service providers, the effectiveness
of copyright enforcement against commercial-scale online infringement, particularly
rogue websites and platforms facilitating mass piracy, remains a challenge.

Current Malaysian Landscape:

● Blocking Orders (Section 43C(2)): The court may order service providers to
"take reasonable steps to disable access to that online location or to terminate
 the specified account" if infringing material originates outside Malaysia and other
conditions are met. However, the provision "does not specify the requirements or
the factors to be considered by the court in deciding whether to grant the
blocking order or not" (5.1 Limitation of Liability Part [Link], Page 1).
● Offence of Misrepresentation (Section 43I): This provision penalizes copyright
owners who knowingly make material misrepresentations in a notice under
Section 43H. While intended to prevent abuse, it can make copyright owners
hesitant to issue notices, especially given the "knowledge" requirement which is
hard to prove (5.1 Limitation of Liability Part [Link], Page 29).

The Problem: Blocking orders are an effective tool, but the lack of statutory criteria in
Malaysia for granting them can lead to inconsistency and uncertainty. The enforcement
against commercial-scale online piracy requires efficient and clear legal mechanisms.
The reluctance of copyright owners to issue takedown notices due to fear of Section 43I
also hampers enforcement.

Comparison with other Jurisdictions:

● United Kingdom (Section 97A CDPA): The UK explicitly lists factors for courts
to consider when granting injunctions against service providers for infringing
websites, including the necessity and proportionality of the order, its
effectiveness, and the impact on legitimate users. This provides clear judicial
guidance. Cases like Dramatico Entertainment Ltd v British Telecommunications
Plc [2011] EWHC 268 (Ch) and subsequent cases have established a robust
framework for site-blocking injunctions.
● Singapore (Section 193D Copyright Act): Singapore's framework for site-
blocking injunctions is also robust, allowing for orders against ISPs to block
access to "flagrantly infringing online locations." The law sets out clear criteria,
including whether the online location has the primary purpose of enabling or
facilitating copyright infringement, and proportionality.
● EU (DSM Directive Article 17): The DSM Directive (2019) places direct
responsibility on online content-sharing service providers (OCSSPs) to obtain
licenses for copyrighted content uploaded by users or to take measures to
prevent unauthorized availability of works for which rights holders have provided
relevant and necessary information. This shifts from a pure "notice-and-
takedown" to a "stay-down" obligation, requiring platforms to proactively prevent
re-uploading of infringing content.

Proposed Improvement for Malaysia:

 ● Introduce Statutory Criteria for Blocking Orders: Amend Section 43C(2) or
introduce a new provision that outlines specific factors for the court to consider
when deciding whether to grant a blocking order. These factors could include:
○ The flagrant nature of the infringement (e.g., primary purpose of the site is
infringement).
○ The effectiveness and proportionality of the order.
○ The impact on legitimate content and users (minimizing collateral
damage).
○ The availability of less restrictive measures.
○ The public interest. This would provide judicial certainty, predictability, and
transparency in the application of blocking orders, making them a more
consistent and effective tool against commercial piracy.
● Review Section 43I's "Knowledge" Requirement: Consider adjusting the
"knowledge" requirement in Section 43I to a "reasonable belief" standard, or
clarifying that "knowingly" includes wilful blindness. While preventing abuse of
the notice-and-takedown system is important, the current strict interpretation of
"knowingly" (as illustrated by the difficulty in establishing an offence in Lenz v.
Universal Music Publishing Group in the US, compared to the successful Online
Policy Group v. Diebold case) may deter legitimate copyright owners from issuing
notices. A more balanced standard would encourage rights holders to act without
fear of disproportionate penalties for honest mistakes.

Strengthening enforcement against large-scale online infringement is crucial for

copyright owners to protect their digital markets and for Malaysia to be perceived as a
jurisdiction that takes intellectual property rights seriously. This, in turn, can attract
foreign investment and foster local creative industries.

6.0 WHAT CAN WE DO FOR IMPROVEMENT?

To achieve the proposed improvements for Malaysian Copyright Law, a multi-faceted
approach involving legislative review, stakeholder engagement, and judicial
interpretation is necessary:

1. Comprehensive Legislative Review:

○ The Attorney General's Chambers, in collaboration with the Intellectual
Property Corporation of Malaysia (MyIPO), should initiate a
comprehensive review of the CA 1987, specifically focusing on the
identified areas. This review should involve drafting amendments that
incorporate the proposed changes regarding AI-generated works, digital
exhaustion, TPM exceptions, and blocking order criteria.
 ○ Action: Form a special parliamentary committee or a task force to
specifically study and propose amendments related to these advanced
topics.
2. Stakeholder Consultation and Collaboration:
○ Before legislative changes are finalized, extensive consultation with all
relevant stakeholders is crucial. This includes copyright owners (e.g.,
creative industries, publishers), service providers (e.g., ISPs, hosting
companies, tech giants), user advocacy groups, academics, and legal
practitioners.
○ Action: Organize public forums, workshops, and calls for public
submissions to gather diverse perspectives and ensure that the proposed
changes are practical, fair, and conducive to Malaysia's digital
development goals. This collaborative approach will help craft well-
balanced legislation.
3. Capacity Building and Judicial Training:
○ The complex nature of digital copyright issues, especially concerning AI
and advanced technological measures, requires specialized knowledge.
Judges, lawyers, and enforcement agencies need to be well-versed in
these nuances.
○ Action: MyIPO and the Malaysian Bar should collaborate to provide
ongoing training and educational programs for legal professionals,
focusing on emerging copyright challenges and best practices from other
jurisdictions. This will ensure consistent and informed judicial
interpretation of new and existing provisions.
4. Promote Research and Development:
○ To effectively address issues like digital exhaustion and TPMs, Malaysia
could encourage research into and development of technological solutions
(e.g., robust DRM, blockchain for digital asset management).
○ Action: Fund pilot projects, incentivize collaboration between universities,
tech companies, and legal experts to explore how technology can facilitate
the legal framework, rather than solely posing challenges. This can
position Malaysia as an innovator in copyright management.
5. International Cooperation and Benchmarking:
○ Continue to actively participate in international copyright discussions and
bodies (e.g., WIPO, ASEAN IP working groups). Learning from the
experiences (both successes and failures) of developed countries can
inform Malaysia's legislative agenda.
○ Action: Regularly benchmark Malaysian copyright law against leading
jurisdictions and adapt best practices that are suitable for Malaysia's
specific context and developmental stage. This continuous learning will
keep the law agile and globally relevant.
These actions, taken together, would create a dynamic and responsive legal
environment for copyright in Malaysia, capable of navigating the complexities of the
digital and AI eras while ensuring a fair balance for all stakeholders.

7.0 CONCLUSION
The Malaysian Copyright Act 1987 has proven adaptable, but the relentless march of
technological innovation demands continuous vigilance and strategic enhancement.
Addressing the fundamental questions of authorship for AI-generated works, clarifying
the digital exhaustion principle, refining anti-circumvention measures to accommodate
legitimate exceptions, and bolstering effective enforcement against commercial online
infringement are critical areas for improvement.

By drawing lessons from the pragmatic approaches of jurisdictions like the UK regarding
AI authorship and the EU concerning digital exhaustion, Malaysia can proactively
strengthen its copyright framework. Implementing clearer statutory criteria for blocking
orders and re-evaluating the "knowledge" threshold for misrepresentation claims would
also significantly enhance enforcement capabilities against rampant online piracy.

Crucially, as a developing country, Malaysia must ensure that any reforms promote
innovation, foster digital literacy, and expand public access to knowledge, without
stifling local industries or creating undue burdens. A collaborative legislative process,
informed by expert insights and public consultation, coupled with ongoing capacity
building for legal professionals, will be instrumental in ensuring that Malaysian copyright
law remains effective, equitable, and future-proof in the rapidly evolving digital
landscape. This forward-looking approach will reinforce Malaysia's position in the global
digital economy and empower its creative industries and citizens alike.
Balancing Public Interest and Exclusive Rights
in the Digital World (Temporary Copies and
Cache Links)
1.0 INTRODUCTION
The pervasive nature of digital technologies has profoundly altered how creative works
are consumed and disseminated. Copying, once a deliberate act requiring effort, is now
an inherent and often invisible part of almost every digital interaction. From simply
browsing a website to streaming a video, temporary copies are constantly being made
in the background. This ubiquitous copying presents a significant challenge to traditional
copyright law, which is founded on the copyright owner's exclusive right to reproduce
their work. Balancing the public interest in the enjoyment of the digital world – which
necessitates such temporary copies and efficient access to information – with the
exclusive rights enjoyed by copyright owners is a critical task for modern copyright
legislation. This essay will examine how Malaysian Copyright Law addresses this
balance, with a specific focus on temporary copies and search engine cache links,
providing support with legal authorities and discussing the implications.

2.0 POINT 1: The Exclusive Right of Reproduction and its

Digital Implications
At the core of copyright law is the exclusive right of the copyright owner to "reproduce
the work in any material form" (Section 13(1)(a) of the Copyright Act 1987 (CA 1987)).
Section 3 of the CA 1987 broadly defines "material form" as "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." This broad definition is intended to be
technologically neutral, covering both tangible and intangible forms of storage, including
digital.

In the digital world, almost every interaction with copyrighted content involves the
creation of a "copy," even if transient. When a user accesses a webpage, digital files
(text, images, code) are downloaded from a server and temporarily stored in the
computer's Random Access Memory (RAM) and/or hard drive (e.g., browser cache).
When streaming a video or audio, buffered data is temporarily stored. These processes
are fundamental to the technical functioning of the internet and the seamless user
experience it provides.
The Problem: Without specific legal provisions, a strict interpretation of the
reproduction right would mean that virtually every internet user, and every service
provider involved in data transmission and caching, could be considered a direct
infringer. This would render the internet unworkable as we know it, placing an
impossible burden on users and stifling digital activity. It creates a tension between the
legal framework, which traditionally views "copying" as an act of infringement, and the
technical realities of digital consumption, where "copying" is often an invisible and
unavoidable prerequisite for "viewing" or "listening."

The challenge for copyright owners is to assert their right to control reproduction without
inadvertently stifling legitimate online activities. While they have a vested interest in
preventing unauthorized mass reproduction and distribution (e.g., torrenting), applying
the same strictness to incidental temporary copies would undermine the very medium
that allows their works to reach a wider audience. The balance here is delicate:
protecting the economic incentives of creators while ensuring the internet remains a free
and accessible platform for information and cultural exchange.

3.0 POINT 2: Malaysian Law's Approach to Temporary

Copies – The Transient Copy Exception (Section 13(2)(q))
Recognizing the practical implications of digital copying, Malaysia introduced the
transient copy exception in Section 13(2)(q) of the CA 1987 through the 2012
amendments. This crucial provision states:

"(2) Notwithstanding subsection (1), the copyright in a work is not infringed by any fair
dealing with the work or by such other acts in relation to the work as may be prescribed
by the Minister by an order published in the Gazette, and the other acts prescribed shall
not include… (q) the making of a transient and incidental electronic copy of a work
made available on a network if the making of such copy is required for the viewing,
listening or utilisation of the said work."

This exception directly addresses the technical necessity of temporary copies for online
activities. The key elements of this provision are:

1. Transient and incidental: The copy must be temporary and a by-product of the
viewing process. This excludes permanent downloads or unauthorized saving.
The concept of "transient" refers to the copy's fleeting nature, existing only for as
long as necessary for the transmission or display.
2. Electronic copy: It applies specifically to digital copies.
3. Made available on a network: The original work must have been legitimately
placed online.
 4. Required for viewing, listening, or utilisation: The copy must be
technologically essential for the user to access or interact with the work. This
covers activities like web browsing, streaming, and software execution.

Purpose and Impact: The transient copy exception is vital for ensuring that ordinary
internet users are not inadvertently deemed copyright infringers simply by accessing
content online. It embodies a pragmatic recognition that using the internet inevitably
involves making temporary copies. Without it, the "right to reproduce" would effectively
become a "right to read" or "right to view," which is not the intended scope of copyright
protection.

Comparison with Other Jurisdictions:

● European Union: The EU's Information Society Directive (2001/29/EC) includes

an explicit exception for "temporary acts of reproduction" (Article 5(1)). This
exception is subject to three cumulative conditions: (a) they are transient or
incidental, (b) they are an integral and essential part of a technological process,
and (c) their sole purpose is to enable a transmission in a network between third
parties by an intermediary, or a lawful use of a work or other subject-matter, and
(d) they have no independent economic significance. The CJEU in Infopaq
International A/S v Danske Dagblades Forening [2009] ECDR 5 confirmed that
temporary copies made during browsing (including screen displays and cached
copies) fall under this exception, provided they meet the conditions. The UK,
before Brexit, implemented this via Section 28A of the Copyright, Designs and
Patents Act 1988 (CDPA), which was largely consistent. The UK Supreme Court
in Public Relations Consultants Association Ltd v The Newspaper Licensing
Agency Ltd & Ors [2013] UKSC 18 unequivocally stated that "the ordinary use of
the internet would be a criminal offence" without such an exception, emphasizing
its fundamental importance.
● United States: The US Copyright Act does not have a direct statutory transient
copy exception akin to Malaysia's or the EU's. Instead, such temporary copies
are typically addressed through the fair use doctrine (17 USC Section 107) or
by judicial interpretation of the "fixation" requirement (17 USC Section 101). For a
copy to be infringing, it must be "fixed in a tangible medium of expression for a
period of more than transitory duration." Ephemeral copies, such as those in
RAM that exist for a very brief period, may not meet this fixation requirement. For
example, in Cartoon Network LP, LLLP v CSC Holdings, Inc [2008] 536 F.3d 121
(2d Cir), fleeting buffer copies were not considered "fixed" and thus not infringing.
Alternatively, if a temporary copy is "fixed," it may still be deemed "fair use,"
especially if it is transformative or serves a functional purpose (e.g., search
engine indexing).
Malaysian Section 13(2)(q) provides a clearer and more direct solution to the transient
copy problem than relying solely on fair dealing or fixation interpretations. It establishes
a straightforward statutory defence for ordinary digital consumption, which is beneficial
for both users and the overall functioning of the internet economy in Malaysia.

4.0 POINT 3: Search Engine Cache Links and the

Intersection of Rights
Search engines play an indispensable role in the digital world by indexing vast amounts
of information and enabling users to find content efficiently. A key feature of many
search engines is the provision of "cached links," which allow users to view a snapshot
of a webpage as it appeared when the search engine last indexed it. These cached
copies are stored on the search engine's servers.

The Copyright Challenge of Cache Links: The creation and provision of cached links
by search engines involve two potential acts of copyright infringement:

1. Reproduction: The search engine makes a copy of the webpage content and
stores it on its servers (a form of caching beyond the transient copies made by
an end-user).
2. Communication to the public: By making the cached version available to
users, the search engine could be seen as communicating the copyrighted work
to the public.

Malaysian Law and Cache Links: Malaysian law addresses search engine caching
primarily through Section 43E(1)(b), which provides a safe harbour for "information
location tools," and tangentially through Section 43D for "system caching."

● Section 43E (Information Location Tools): This section exempts service

providers from liability for copyright infringement "by reason of the service
provider referring or linking a user to an online location containing infringing
material or infringing activity, by using information location tools." To qualify, the
SP must not have "actual knowledge" of the infringement or "facts or
circumstances of which the infringing activities is apparent" (the "red flag" test),
and must comply with notice and takedown procedures (Section 43E(1)(i)). This
safe harbour is crucial for search engines to operate without constant fear of
liability for indexing infringing content.
● Section 43D (System Caching): While Section 43D deals with "system caching"
where copies are stored to facilitate access by "subsequent users," it is primarily
designed for network intermediaries (like ISPs) rather than directly for search
engine content caching. Critically, Section 43D(2) states that the safe harbour is
 lost if the service provider does not comply with a notice given under Section
43H, even if the originating online location containing the infringing material is not
removed. This specific condition poses a practical challenge for search engines,
as they would be required to remove their cached copy even if the infringing
material remains online, potentially leading to a continuous cycle of re-caching if
not proactively managed by the search engine.

Comparison with Other Jurisdictions:

● United States (DMCA Section 512(d) and 512(b)): The DMCA's safe harbour
for "information location tools" (512(d)) is similar to Malaysia's 43E(1)(b),
protecting search engines. For search engine content caching, the DMCA's
"system caching" safe harbour (512(b)) is generally understood to cover this.
Crucially, 512(b) has conditions that are less onerous than Malaysia's 43D(2)
concerning notice and takedown. Under DMCA 512(b)(2)(E), a caching SP loses
its safe harbour only if the material has been "removed or disabled at the
originating site." This prevents the continuous re-caching issue faced by
Malaysia. US courts have often applied the fair use doctrine to search engine
caching, finding that the creation of cached copies and thumbnails is
transformative (e.g., Kelly v. Arriba Soft Corp. [2003] 336 F.3d 811; Perfect 10,
Inc. v. [Link], Inc. [2007] 508 F.3d 1146). The transformative purpose
(indexing and facilitating search) and the lack of market harm (thumbnails are
low-resolution, and cached links direct traffic to the original site) often weigh in
favor of fair use.
● European Union (E-Commerce Directive Article 13): The EU's caching safe
harbour (Article 13) also typically requires removal only if the original content is
removed from the source. The recent DSM Directive (Article 17) introduces more
direct liability for online content-sharing service providers, requiring them to
obtain licenses or implement content recognition technologies, which could
impact how search engines or similar platforms handle cached content if they
host significant user-uploaded material.

Malaysian Balance on Cache Links: Malaysia's safe harbour for information location
tools (Section 43E) generally provides necessary protection for search engines.
However, the potentially problematic interpretation of Section 43D(2) for caching, where
takedown might be required even if the source remains, creates an imbalance. This
could place a disproportionate burden on search engines and impact the efficiency of
information retrieval for users. The lack of explicit judicial application of the fair dealing
doctrine to search engine caching in Malaysia, unlike in the US, means that the safe
harbour remains the primary, and potentially only, defence.
5.0 POINT 4: The Balance Achieved and Remaining Gaps
Malaysian copyright law attempts to strike a balance between copyright owners'
exclusive rights and the public interest in digital enjoyment, particularly through:

1. The Transient Copy Exception (Section 13(2)(q)): This is a critical and well-
placed provision that acknowledges the technical reality of digital consumption. It
effectively insulates ordinary users from copyright infringement liability for
temporary copies made during browsing or streaming, thus facilitating
unimpeded access to and enjoyment of the digital world. This is a clear victory for
public interest.
2. Safe Harbour for Information Location Tools (Section 43E): This provision
protects essential services like search engines, which are vital for users to
navigate the vast digital landscape. By requiring a "notice and takedown" rather
than proactive monitoring, it supports the public interest in efficient information
discovery without making service providers de facto internet police.

Remaining Gaps/Areas for Refinement:

1. Clarity on "Transient" and "Material Form": While Section 13(2)(q) exists, the
underlying interpretation of whether all transient copies necessarily constitute a
"reproduction in any material form" under Section 13(1)(a) and Section 3 still
lacks definitive judicial clarity. If a court were to adopt a strict view (e.g., that only
copies from which a new, non-transient copy can be made are "material form"),
then 13(2)(q) could become redundant for truly fleeting RAM copies. This
uncertainty, while not immediately impacting users due to the exception, could
lead to legal ambiguity.
2. System Caching (Section 43D) and Search Engines: The conditions under
Section 43D(2) concerning notice and takedown for caching services are
problematic when applied to search engine content caching. Requiring a cached
copy to be removed even if the original infringing material is still online places an
impractical burden on search engines and can degrade the quality of search
results for users. This specific point of balance leans too heavily against the
efficiency of digital information access.
3. Explicit Application of Fair Dealing to Search Engine Functionality: Unlike
the US, where fair use has been explicitly applied to aspects of search engine
functionality (e.g., thumbnail images, cached links), Malaysian jurisprudence has
not yet clearly established how the broadened fair dealing (Section 13(2A))
applies to these specific technical processes. While safe harbour protects the
service provider, a clear judicial affirmation of fair dealing for search engine
 indexing, beyond mere safe harbour, would provide additional robustness to the
legal framework for public access to information.

The current legal framework in Malaysia, with its explicit transient copy exception and
safe harbour provisions, provides a generally workable balance. It recognizes the
inevitability of copying in the digital realm and seeks to prevent undue restrictions on
internet usage. However, fine-tuning the provisions related to system caching for search
engines and ensuring consistent judicial interpretation would further strengthen this
balance.

6.0 WHAT CAN WE DO FOR IMPROVEMENT?

To further enhance the balance between public interest and exclusive rights in the
context of temporary copies and search engine cache links within Malaysian Copyright
Law, the following improvements can be considered:

1. Clarify the Interplay of Section 13(1)(a), Section 3 (Material Form), and

Section 13(2)(q):
○ Action: Encourage judicial pronouncements or, if necessary, amend
Section 3 to explicitly clarify that "material form" unequivocally includes all
forms of temporary digital storage, regardless of whether a further "fixed"
reproduction can be made from it. Concurrently, ensure that Section 13(2)
(q) remains the primary and comprehensive exception for all necessary
transient copies.
○ Rationale: This removes any ambiguity regarding whether fleeting RAM
copies are even "reproductions" in the first place, ensuring that the
transient copy exception serves its intended purpose effectively and
consistently. It aligns Malaysia with jurisdictions that treat all temporary
technical copies as falling within the scope of reproduction but then
provide specific exceptions.
2. Amend Section 43D(2) for System Caching to Reflect International Best
Practices:
○ Action: Revise Section 43D(2) to stipulate that a caching service provider
is only required to remove cached infringing material if the original
infringing material has been removed or disabled from its originating
online location.
○ Rationale: This brings Malaysia's system caching safe harbour in line with
the more practical and effective approaches seen in the US (DMCA
512(b)) and the EU (E-Commerce Directive Article 13). It prevents a
situation where search engines or other caching service providers are
forced to continuously remove re-cached content that is still available at
 the source. This ensures that caching services, which are vital for internet
speed and efficiency (and thus public enjoyment), can operate optimally
without undue legal burden.
3. Encourage Judicial Application of Fair Dealing to Search Engine Indexing
and Caching:
○ Action: While legislative amendments can provide clarity, judicial
interpretation can also play a crucial role. Courts, when faced with cases
involving search engine functionality, should consider applying the factors
of fair dealing (Section 13(2A)) to assess whether the copying and display
of content (e.g., thumbnails, cached links) constitute fair use, especially
given the transformative nature of search indexing.
○ Rationale: A judicial affirmation of fair dealing in this context would
provide an additional layer of legal certainty for search engines and
reinforce the public interest in access to information. It would complement
the existing safe harbour by providing a substantive defence based on the
nature of the use itself, rather than solely on the service provider's passive
role and response to notices.
4. Public Awareness Campaigns:
○ Action: MyIPO and relevant government agencies should collaborate on
public awareness campaigns to educate internet users about copyright
law, including what constitutes legitimate digital use (e.g., transient copies,
fair dealing) versus infringement.
○ Rationale: While legal provisions are crucial, understanding among users
is equally important. Educating the public on their rights and
responsibilities in the digital space can foster a more responsible online
environment and reduce unintentional infringements, contributing to a
more balanced ecosystem.

These improvements would collectively solidify Malaysia's position as a jurisdiction that

thoughtfully balances the economic rights of creators with the fundamental public
interest in accessing and utilizing information in the digital age.

7.0 CONCLUSION
The digital world, characterized by ubiquitous copying, necessitates a sophisticated
approach to copyright law. Malaysian Copyright Law, through its introduction of the
transient copy exception in Section 13(2)(q) and safe harbour provisions for service
providers in Part VIB, has commendably sought to balance the exclusive reproduction
rights of copyright owners with the public interest in enjoying the digital environment.
The transient copy exception is a particularly crucial provision, effectively preventing
ordinary internet usage from being classified as infringement and thereby ensuring
unimpeded access to online content.

However, areas for refinement remain. The ambiguities surrounding the definition of
"material form" for ephemeral copies and, more critically, the practical challenges posed
by Section 43D(2) for system caching (especially concerning search engine cache
links), indicate that the balance can be further optimized. By clarifying these provisions
and potentially embracing judicial interpretations that recognize the transformative
nature of search engine functionalities, Malaysia can align its copyright law even more
closely with the realities of the digital economy and international best practices.

Ultimately, striking the right balance is an ongoing process. Continuous legislative

review, informed by technological advancements and comparative legal analysis,
coupled with robust public education, will be essential for Malaysian copyright law to
remain relevant, effective, and capable of fostering both creativity and broad public
access in the perpetually evolving digital landscape. This dynamic approach will ensure
that the enjoyment of the digital world is preserved while simultaneously upholding the
legitimate rights of creators.
Copyright Law and AI-Created Works in the AI
Era
1.0 INTRODUCTION
The advent of Artificial Intelligence (AI) capable of autonomously generating creative
works—from text and music to visual art and even code—presents one of the most
profound challenges to traditional copyright law in decades. Copyright systems globally
are fundamentally rooted in the concept of human authorship, originality, and the
protection of intellectual creations stemming from human intellect. As AI systems
become increasingly sophisticated, producing outputs that rival human creativity,
questions surrounding copyright ownership, infringement, and the very subsistence of
copyright in AI-generated works have moved from theoretical discussions to urgent
legal dilemmas. This essay will explore how current copyright laws deal with works
created by AI, drawing upon legal authorities and making specific reference to the
Malaysian jurisdiction in comparison with other key jurisdictions. It will highlight the
existing gaps and the need for a forward-thinking approach in the coming AI era.

2.0 POINT 1: The Concept of Authorship and Originality in

Traditional Copyright Law
Traditional copyright law is built on the premise that copyright protection subsists in
"original works" created by "authors." These two concepts—originality and authorship—
are inherently intertwined and typically presuppose human involvement.

In Malaysia, the Copyright Act 1987 (CA 1987) embodies these traditional principles:

● Subsistence of Copyright: Section 7(1) CA 1987 lists categories of works

eligible for copyright (e.g., literary, musical, artistic works). Section 7(3) further
states that a "literary, musical or artistic work shall not be eligible for copyright
unless sufficient effort has been expended to make the work original in character
and has been reduced to material form." The "sufficient effort" test implies human
input or endeavour.
● Originality: While the CA 1987 does not explicitly define "originality," Malaysian
courts generally interpret it as requiring that the work must not be a mere copy of
another work and must be the product of the author's skill, labour, or judgment. It
does not require novelty or artistic merit, only that it originates from the author.
This low threshold, common in Commonwealth jurisdictions, still fundamentally
relies on human effort.
 ● Authorship: Section 26(1) CA 1987 states the general rule: "the author of a
copyright work is the initial owner of the copyright." Section 3 CA 1987 defines
"author" based on the type of work:
○ For literary works: "the writer or maker of the work."
○ For musical works: "the composer."
○ For artistic works (excluding photographs): "the artist."
○ For photographs: "the person who takes the photo." (This has been
interpreted to mean the person who gives the idea and determines the
arrangement of the photoshoot, not necessarily the one who presses the
shutter, implying human creative control.)
○ For films or sound recordings: "the person by whom the arrangements for
the making... were undertaken." This can include a body corporate, but it
refers to the human-orchestrated arrangements, not autonomous creation.

These definitions consistently point to a natural person as the source of intellectual

creation or the orchestrator of creative arrangements. The implicit assumption is that an
"author" is a human being exercising creative choices. This human-centric view is a
global norm in copyright law, reflecting its historical purpose of incentivizing human
creativity.

The AI Challenge: AI-generated works directly challenge this human-centric paradigm.

If an AI system autonomously produces a novel piece of music or a painting, without
direct human intervention in the specific creative choices leading to that output, does it
meet the "originality" requirement? And, more importantly, can an AI be an "author" as
understood by existing law? Most jurisdictions, including Malaysia, are not explicitly
equipped to answer these questions affirmatively for AI.

3.0 POINT 2: How Current Copyright Laws Deal with AI-

Created Works (Malaysian Context and Comparison)
Given the human-centric nature of existing copyright laws, works purely autonomously
created by AI currently face significant hurdles to copyright protection.

Malaysian Position (Implied): Based on the current wording of the CA 1987, it is

highly probable that works generated solely by AI, without discernible human
intellectual effort or creative control in the specific output, would not be eligible
for copyright protection in Malaysia. This is because:

1. No Human Author: The definitions of "author" in Section 3 universally refer to

human roles (writer, composer, artist, person who takes the photo, person
undertaking arrangements). An AI itself does not fit these descriptions.
 2. Originality Requirement: While "sufficient effort" (Section 7(3)) is a low
threshold, it still implies human effort or intellectual contribution. An AI's "effort" is
computational, not intellectual in the human sense. For example, if an AI
generates countless images based on algorithms, the "originality" of each
individual image may be questioned in the absence of human creative selection
or modification of that specific output.

Therefore, under Malaysian law, it is likely that AI-generated works would fall into the
public domain immediately, unless a human element can be identified as the "author."
This would apply, for instance, if a human user crafts a highly specific and detailed
prompt that essentially dictates the creative outcome, or if a human extensively edits
and refines the AI's output. In such cases, copyright might vest in the human who
provided the creative input.

Comparison with Other Jurisdictions:

1. United States (Human Authorship Requirement):

○ Legal Stance: The US Copyright Office explicitly maintains that copyright
protection "only extends to works created by a human author."
○ Key Authority: The US Copyright Review Board's decision in the case of
Stephen Thaler's "A Recent Entrance to Paradise" (2022) affirmed the
denial of copyright registration for an artwork created by an AI system
named "DABUS," reiterating that human authorship is a prerequisite.
Thaler's argument that he owned the copyright as the AI's creator and
owner was rejected because there was no human "creative contribution"
to the work itself.
○ Implication: If an AI autonomously generates a work, that work cannot be
copyrighted in the US. This means a vast amount of AI-generated content
might lack copyright protection, potentially falling into the public domain.
2. United Kingdom (Computer-Generated Works):
○ Legal Stance: The UK is an outlier, having a specific provision for
"computer-generated works" in its Copyright, Designs and Patents Act
1988 (CDPA).
○ Key Authority: Section 9(3) CDPA states: "In the case of a literary,
dramatic, musical or artistic work which is computer-generated, the author
shall be taken to be the person by whom the arrangements necessary for
the creation of the work are undertaken." Section 178 CDPA defines
"computer-generated" as "generated by computer in circumstances where
there is no human author of the work."
○ Implication: This means copyright can subsist in works created by AI in
the UK, even without direct human creative input in the final output. The
 "author" is the human who set up or operated the AI system in such a way
as to enable the creation of the work (e.g., the programmer, the person
who configured the AI, or the user who directed its operation). The term of
copyright is 50 years from creation (Section 12(7) CDPA), and moral rights
do not apply. This pragmatic approach seeks to provide an incentive for
investment in AI development.
3. European Union (Human Intellectual Creation):
○ Legal Stance: EU copyright law, as interpreted by the Court of Justice of
the European Union (CJEU), consistently emphasizes the requirement of
"author's own intellectual creation" for copyright subsistence. This concept
implies a human author's free and creative choices.
○ Key Authority: Cases like Infopaq International A/S v Danske Dagblades
Forening [2009] ECDR 5 and BSA v Ministero per i Beni e le Attività
Culturali [2010] ECDR 13 reinforce that copyright only protects "original"
works which reflect the "author's own intellectual creation."
○ Implication: The prevailing view is that works autonomously generated by
AI, without a human making creative choices that are "reflected" in the
work, would not be protected by copyright under current EU law.
Discussions are ongoing regarding potential sui generis rights or
extending copyright through a more expansive interpretation of human
input (e.g., the person setting up the system).

Summary of Current Treatment: Most jurisdictions, including Malaysia (by implication)

and the US, currently do not recognize AI as an author and require human authorship
for copyright. The UK stands out with its specific provision for computer-generated
works. This divergence highlights a significant legal lacuna in many countries as AI's
creative capabilities rapidly advance.

4.0 POINT 3: Infringement by AI and the Copyrightability

of AI Training Data
Beyond the authorship of AI-generated works, two other critical copyright issues arise:

1. Infringement by AI (Training Data): Do AI systems "infringe" copyright when

they ingest vast amounts of copyrighted material (e.g., books, images, music,
code) from the internet for training purposes? This process involves making
copies of the data.
2. Copyrightability of AI Training Data and AI Output: Whether the data used to
train AI is copyrighted, and whether the output generated by AI is copyrighted.

Infringement by AI (Training Data):

● The Problem: AI models, especially large language models (LLMs) and
generative AI, are trained on massive datasets that often include copyrighted
works. This "ingestion" process involves copying these works. The question is
whether this copying constitutes copyright infringement.
● Legal Arguments:
○ Copyright Owners' Argument: Making copies of copyrighted works
without permission for training purposes constitutes direct infringement of
the reproduction right.
○ AI Developers' Argument (Fair Use/Dealing): AI training could be
argued as fair use (US) or fair dealing (Malaysia) because:
■ Purpose and Character: It is often transformative (creating a new
model, not merely distributing the original works). It is for research
and development.
■ Nature of Work: AI models extract patterns and relationships, not
the expressive content itself, making it more akin to data analysis.
■ Amount and Substantiality: While entire works might be copied,
it's for machine learning, not for human consumption of the original.
■ Market Effect: The training process itself does not directly compete
with the original work's market.
● Comparison with Other Jurisdictions:
○ United States: Several lawsuits have been filed (e.g., Authors Guild v.
OpenAI, Getty Images v. Stability AI) alleging copyright infringement
through AI training. AI developers typically raise fair use as a defense.
Courts are grappling with whether the act of copying for training, given its
transformative nature and non-consumptive purpose, falls under fair use.
The outcomes of these cases will significantly shape the future of AI
development.
○ European Union: The EU's DSM Directive (2019) includes a specific
exception for text and data mining (TDM) (Article 3 and 4). Article 4
permits TDM for "illustration for teaching or scientific research" and for
"any lawful use" without copyright owners' authorization, provided that
rights holders can opt-out. This TDM exception is a significant step
towards facilitating AI training, provided the use is non-commercial (for
research/education) or there is no opt-out.
○ Malaysian Context: Malaysia's fair dealing (Section 13(2A)) is an open-
ended doctrine. AI training, particularly for research or non-commercial
purposes, could potentially fall under fair dealing. However, its application
to commercial AI development remains uncertain without judicial
precedent. The "purpose and character" factor (transformative use) and
the "effect on the market" factor would be key considerations. There is no
specific TDM exception like in the EU.
Copyrightability of AI Training Data and AI Output:

● Training Data: The underlying copyrighted works used as training data retain
their copyright protection. The question is only about the legality of their use for
training.
● AI Output: This circles back to Point 2. If the AI output is deemed to lack human
authorship (as in the US and likely Malaysia), it falls into the public domain. If it's
considered "computer-generated" (UK), it can be copyrighted with the "arranger"
as the author.

Proposed Considerations for Malaysia:

● Clarify AI Training under Fair Dealing: Malaysian courts should provide

guidance on whether AI training falls under fair dealing, particularly for
commercial models. Alternatively, the legislature could introduce a specific
exception for text and data mining, similar to the EU, potentially with opt-out
mechanisms for copyright owners. This would provide legal certainty for AI
developers.
● Address AI Output Copyrightability: As discussed in Q3, Malaysia needs to
definitively address whether AI-generated works can be copyrighted and, if so, by
whom, and for what term. This is crucial to incentivize investment in generative
AI technologies and their application in the creative industries.

5.0 POINT 4: Future Challenges and the Need for a

Holistic Approach
The intersection of AI and copyright law presents several other complex future
challenges that current laws are ill-equipped to handle:

1. Determining Infringement by AI-Generated Output: If an AI-generated work is

substantially similar to an existing copyrighted work, who is liable for
infringement? Is it the AI developer, the user who prompted the AI, or the AI
itself? Most legal systems would lean towards human responsibility (developer or
user) if there's evidence of human control or intentional infringement. However,
autonomously generated outputs could pose a significant challenge.
2. Moral Rights: Moral rights (e.g., right of paternity, right of integrity) are inherently
personal to the human author. Can an AI have moral rights? The answer is
unequivocally no under current human-centric legal frameworks. The UK CDPA
explicitly excludes moral rights for computer-generated works (Section 79(2)(c)).
Malaysia would likely follow a similar implied exclusion.
 3. Collective Works and Licensing: As AI becomes integrated into collaborative
creative processes, how will copyright ownership be determined when humans
and AI co-create? Licensing models for AI training data and AI-generated content
will become increasingly complex.
4. "Human-in-the-Loop" vs. Autonomous AI: The degree of human intervention
in the AI's creative process will be a crucial factor. If a human extensively edits or
curates AI outputs, their contribution might be sufficient for authorship. But what
about purely autonomous outputs? The line is blurring.
5. International Harmonization: Given the global nature of AI development and
data flow, a lack of international consensus on AI copyright issues could lead to
significant legal fragmentation and jurisdictional conflicts, hindering innovation.

The Need for a Holistic Approach in Malaysia: Malaysia, as a developing country,

has an opportunity to be proactive rather than reactive. A holistic approach is required:

● Legislative Clarity: Proactive amendments to the CA 1987 are essential to

address the core issues of AI authorship, originality, and the legal status of AI-
generated works. This includes considering a UK-style "computer-generated
work" provision.
● Judicial Interpretation: Courts will play a vital role in interpreting existing laws in
the context of AI, particularly concerning fair dealing for AI training data.
● Policy Dialogue: Engage in ongoing multi-stakeholder dialogues involving
government, industry, academia, and civil society to understand the implications
of AI and shape appropriate policy responses.
● Ethical Considerations: Beyond legal frameworks, ethical guidelines for AI
development and deployment are crucial to ensure responsible use and prevent
misuse, which could indirectly impact copyright enforcement.
● Balance of Interests: Any new legal framework must carefully balance
incentivizing AI innovation and protecting the rights of existing human creators,
while ensuring public access to information and promoting cultural development.
Overly restrictive laws could stifle AI development, while too permissive ones
could devalue human creativity.

The current Malaysian copyright law, while having some flexibility (like the fair dealing
doctrine), is fundamentally designed for a human-centric creative ecosystem. It is not
designed for AI-generated works. Therefore, significant legislative and policy
interventions are required to ensure its continued relevance and effectiveness in the AI
era.

6.0 WHAT CAN WE DO FOR IMPROVEMENT?

For Malaysia to effectively address the challenges posed by AI in copyright law, a
strategic and multi-pronged approach is necessary:

1. Proactive Legislative Amendments for AI Authorship and Originality:

○ Action: Introduce new provisions in the CA 1987 specifically for "AI-
generated works," similar to the UK's CDPA. These amendments should:
■ Define "AI-generated work" as a work generated by AI without
direct human creative input.
■ Designate the "author" as the person or entity responsible for the
"arrangements necessary for the creation of the work" (e.g., the
developer of the AI, the user providing a detailed prompt that
dictates the creative outcome).
■ Stipulate a shorter, fixed term of copyright for such works (e.g., 50
years from creation), distinct from the life-plus-50 years for human
authors, to avoid perpetual monopolies.
■ Explicitly exclude moral rights for AI-generated works, recognizing
their non-human origin.
○ Rationale: This provides legal certainty, encourages investment in AI
technologies by providing intellectual property protection, and positions
Malaysia as a forward-thinking jurisdiction in AI law. It avoids the
ambiguity of whether AI works fall into the public domain.
2. Introduce a Text and Data Mining (TDM) Exception:
○ Action: Amend the CA 1987 to include a specific exception for text and
data mining, akin to the EU's DSM Directive (Articles 3 and 4). This
exception should permit the reproduction of copyrighted works for the
purpose of TDM, particularly for research, scientific, and potentially
commercial purposes, with clear conditions such as a right for copyright
holders to "opt-out" where appropriate.
○ Rationale: This legal clarity would facilitate the development and training
of AI models, which rely heavily on ingesting vast amounts of data. It
addresses the "copying for training" issue directly, providing a clear legal
basis for AI development without constantly relying on potentially
uncertain fair dealing arguments, while still allowing rights holders some
control. This is vital for fostering a thriving AI ecosystem in Malaysia.
3. Develop Guidelines for Human-AI Co-creation:
○ Action: MyIPO or a designated body should develop clear guidelines on
how to determine authorship and ownership in "human-in-the-loop"
scenarios where AI assists human creators. These guidelines could focus
on the degree of human creative control, selection, and arrangement in
the final work.
 ○ Rationale: As AI tools become more integrated into creative workflows,
establishing clear criteria for when human contribution is sufficient to
warrant copyright will be crucial. This provides practical advice to creators
and avoids unnecessary disputes.
4. Promote Public and Industry Dialogue on AI and Copyright:
○ Action: Organize regular public forums, workshops, and multi-stakeholder
consultations involving copyright owners, AI developers, artists, legal
experts, and policymakers. These dialogues should explore the evolving
challenges and potential solutions in AI copyright.
○ Rationale: A collaborative approach is essential given the novelty and
complexity of these issues. Open discussion can help build consensus,
identify unforeseen impacts, and ensure that legislative and policy
responses are well-informed and balanced, addressing the concerns of all
affected parties.
5. Invest in Research and Capacity Building:
○ Action: Encourage academic research into AI and copyright, and provide
training for legal professionals (judges, lawyers, enforcement officers) on
the technical and legal nuances of AI.
○ Rationale: A deeper understanding of AI technology and its implications
for copyright is critical for effective legal development and enforcement.
Building expertise within the legal community will enable more informed
and robust decision-making.

By implementing these improvements, Malaysia can create a robust and adaptable

copyright framework that effectively addresses the opportunities and challenges
presented by the AI era, fostering innovation while upholding the fundamental principles
of intellectual property protection.

7.0 CONCLUSION
The AI era heralds a transformative period for copyright law, challenging its foundational
principles of authorship and originality. Current Malaysian copyright law, like that of
most other jurisdictions, is inherently human-centric and thus struggles to adequately
address works autonomously created by AI. Unless there is discernible human creative
input, such works would likely fall into the public domain, a scenario that may
disincentivize investment in generative AI technologies.

While the US firmly adheres to a human authorship requirement, the UK offers a

pragmatic alternative with its "computer-generated work" provisions, recognizing
copyright in works created by AI through the human "arrangements necessary." The
EU's proactive stance on Text and Data Mining also provides a model for facilitating AI
training.

For Malaysia to remain competitive and foster innovation in the burgeoning AI

landscape, proactive legislative reform is imperative. This includes introducing specific
provisions for AI-generated works, clearly defining authorship and term of protection,
and considering a dedicated exception for text and data mining for AI training.
Additionally, developing guidelines for human-AI co-creation and fostering ongoing
dialogue among stakeholders are crucial steps. By adopting a forward-looking and
balanced approach, Malaysia can ensure its copyright framework remains relevant and
effective, protecting creative output in all its forms, whether human or AI-assisted, and
thus securing its place in the global digital and AI economy. This is not merely a legal
update but a strategic imperative for the nation's future development.
Malaysian Copyright Law on Temporary Copies
(Including RAM)
1.0 INTRODUCTION
The digital era has fundamentally transformed how copyrighted works are accessed and
utilized. A key characteristic of digital interaction is the ubiquitous creation of temporary
copies, such as those made in Random Access Memory (RAM) or browser caches,
whenever content is viewed, streamed, or processed online. This inherent technical
necessity poses a significant challenge to traditional copyright law, which grants
copyright owners the exclusive right to reproduce their works. This essay will examine
whether such temporary copies constitute copyright infringement under Malaysian law,
explore the available defences for both individual users and service providers, and draw
comparisons with the approaches taken in other jurisdictions, supported by relevant
legal authorities.

2.0 POINT 1: Temporary Copies and Copyright

Infringement in Malaysia
Under Malaysian copyright law, the exclusive right of a copyright owner includes the
right to "reproduce the work in any material form" as stipulated in Section 13(1)(a) of the
Copyright Act 1987 (CA 1987). The term "material form" is broadly defined in Section 3
of the CA 1987 as "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."

The question of whether temporary copies, such as those made in RAM or cached on a
hard drive during web browsing or streaming, constitute "reproduction in any material
form" is crucial. If interpreted strictly, almost every interaction with digital content online
could technically be an infringement, as digital consumption inherently involves making
such copies.

Is it a copyright infringement? Malaysian law, through its broad definition of "material

form," could technically deem temporary copies as "reproductions" for the purpose of
infringement, prior to considering any exceptions. The definition "from which the work...
can be reproduced" suggests that even fleeting copies, if they are stored in a form that
allows for subsequent reproduction (even if only for a short duration or for the purpose
of display), might fall within the scope.

However, unlike some jurisdictions where judicial clarity on this specific point exists
(e.g., the pre-amendment Australian stance in Stevens v Kabushiki Kaisha Sony
Computer Entertainment & Ors [2005] HCA 58, which held that RAM copies not capable
of being reproduced without additional hardware were not in material form), Malaysian
courts have not definitively ruled on whether temporary RAM copies or browser caches
are prima facie reproductions under Section 13(1)(a) without considering exceptions.
The very existence of Section 13(2)(q) (the transient copy exception, discussed below)
implicitly suggests that such copies are indeed reproductions that would otherwise
infringe copyright, thus necessitating a specific exception to avoid widespread
infringement by ordinary internet users.

Therefore, while the primary right to reproduce is broad enough to potentially capture
temporary copies, the practical reality and legislative intent in Malaysia are to provide
specific defences.

3.0 POINT 2: Defences for Individual Users (The Transient

Copy Exception)
For individual users, the primary defence against copyright infringement for making
temporary copies in the digital environment is the transient copy exception under
Section 13(2)(q) of the CA 1987. This provision, introduced through the 2012
amendments, states:

"(2) Notwithstanding subsection (1), the copyright in a work is not infringed by any fair
dealing with the work or by such other acts in relation to the work as may be prescribed
by the Minister by an order published in the Gazette, and the other acts prescribed shall
not include… (q) the making of a transient and incidental electronic copy of a work
made available on a network if the making of such copy is required for the viewing,
listening or utilisation of the said work."

This exception directly addresses the technical necessity of temporary copies for online
activities. The key elements that must be satisfied for this defence to be invoked are:

● Transient and incidental: The copy must be temporary and a by-product of the
viewing process, not a permanent or unauthorized download. It exists only for as
long as necessary for the transmission or display.
● Electronic copy: It applies specifically to digital copies.
● Made available on a network: The original work must have been legitimately
placed online by the copyright owner or with their consent.
● Required for viewing, listening, or utilisation: The copy must be
technologically essential for the user to access or interact with the work. This
covers activities like web browsing, streaming, and temporary storage for
software execution.
Rationale and Significance: This exception is crucial for ensuring that ordinary internet
users are not inadvertently deemed copyright infringers simply by accessing content
online. It acknowledges that using the internet inevitably involves making temporary
copies (e.g., in RAM, browser cache) that are essential for the functionality of web
browsers and streaming services. Without this exception, the act of merely reading a
webpage or watching a video online could constitute infringement. The inclusion of this
provision demonstrates a pragmatic approach by Malaysian law to align with the
realities of digital consumption and facilitate public access to online information. It
prevents the copyright owner's reproduction right from being interpreted as a "right to
control the act of reading" or viewing.

Comparison with Other Jurisdictions:

● European Union: The EU's Information Society Directive (2001/29/EC) includes

a similar exception for "temporary acts of reproduction" (Article 5(1)). This
provision is widely implemented in EU member states. The CJEU in Infopaq
International A/S v Danske Dagblades Forening [2009] ECDR 5 confirmed that
temporary copies made during browsing (including screen displays and cached
copies) fall under this exception, provided they meet the conditions of being
transient or incidental, an integral and essential part of a technological process,
for a lawful use, and having no independent economic significance. The UK,
before Brexit, implemented this via Section 28A of the Copyright, Designs and
Patents Act 1988 (CDPA). The UK Supreme Court in Public Relations
Consultants Association Ltd v The Newspaper Licensing Agency Ltd & Ors
[2013] UKSC 18 strongly supported this exception, noting that without it, the
ordinary use of the internet would be a criminal offence.
● United States: The US Copyright Act does not have a direct statutory transient
copy exception. Instead, such temporary copies are typically addressed through
the fair use doctrine (17 USC Section 107) or by judicial interpretation of the
"fixation" requirement (17 USC Section 101). For a copy to be infringing, it must
be "fixed in a tangible medium of expression for a period of more than transitory
duration." Ephemeral copies, such as those in RAM that exist for a very brief
period, may not meet this fixation requirement. For example, in Cartoon Network
LP, LLLP v CSC Holdings, Inc [2008] 536 F.3d 121 (2d Cir), fleeting buffer copies
were not considered "fixed" and thus not infringing. Alternatively, if a temporary
copy is "fixed," it may still be deemed "fair use," especially if it is transformative or
serves a functional purpose (e.g., search engine indexing).

Malaysia's Section 13(2)(q) provides a clear and direct statutory defence, offering more
certainty than reliance solely on flexible doctrines like fair use or complex interpretations
of "fixation."
4.0 POINT 3: Defences for Service Providers (Safe
Harbour Provisions)
Service providers (SPs), including Internet Service Providers (ISPs) and Online Service
Providers (OSPs), play a crucial role in transmitting and storing digital content. As such,
they too are involved in the creation of temporary copies, and potentially face liability for
direct or secondary infringement. To address this, Malaysian law, like other jurisdictions,
provides "safe harbour" provisions that limit SPs' liability under certain conditions.

Part VIB of the CA 1987, specifically Sections 43C and 43D, are most relevant to
temporary copies made by SPs:

1. Section 43C (Mere Conduit): This provision exempts SPs from liability when
they merely act as a "mere conduit" for the transmission or routing of data. This
covers activities where the SP does not initiate, select, or modify the content,
essentially acting as a passive carrier of information. This exemption is crucial for
ISPs whose networks constantly carry and temporarily store data (including in
transit, such as in routers) that may be copyrighted.
○ Conditions: The transmission must be automatic, technical, and passive.
The SP must not select the recipients or the content.
○ Comparison: This aligns with Section 512(a) of the US Digital Millennium
Copyright Act (DMCA) and Article 12 of the EU E-Commerce Directive
(2000/31/EC). The purpose is to protect SPs from being held liable for
every piece of content that flows through their networks, which would be
an impossible burden.
2. Section 43D (System Caching): This section specifically addresses temporary
copies made by SPs for "system caching," where copies of works are stored
automatically and temporarily to facilitate efficient access by users (e.g.,
frequently accessed webpages being stored closer to users to reduce load
times). This is distinct from individual user browser caching.
○ Conditions:
■ The caching must be "an automatic technical process."
■ It must be "in response to an action by a user."
■ It must be "for the purpose of making the work available to
subsequent users of the service provider's service."
■ The SP must not modify the content.
■ The SP must comply with rules regarding the updating of the
cached data.
○ Crucial Condition and Problem: Section 43D(2) states that the safe
harbour is lost if the service provider "does not expeditiously remove or
disable access to the electronic copy upon obtaining actual knowledge of
 the infringing material or activity by reason of the service provider
receiving a notification given in accordance with section 43H." This means
that even if the original infringing content remains on the originating
network, the caching SP is still required to remove its cached copy. This
poses a practical problem, as the SP would inevitably re-cache the
content, leading to a continuous cycle of takedown notices.
○ Comparison:
■ United States (DMCA Section 512(b)): The DMCA's caching safe
harbour is similar, but crucially, it generally requires the cached
material to be removed only if the original infringing material has
been removed or disabled at the originating site. This avoids the
impracticality seen in Malaysia's Section 43D(2).
■ European Union (E-Commerce Directive Article 13): The EU's
caching safe harbour also typically requires removal only if the
original content is removed from the source, or if a
court/administrative authority has ordered its removal.

Overall Balance for Service Providers: Malaysia's safe harbour provisions generally
provide necessary protection for SPs involved in making temporary copies through
mere conduit and system caching activities. However, the specific wording of Section
43D(2) creates a potential imbalance, placing a more onerous burden on caching SPs
compared to their counterparts in the US and EU, which could impact internet efficiency
and cost in Malaysia.

5.0 POINT 4: Legal Authorities and the Balancing Act

The legal authorities supporting the arguments above primarily stem from the Malaysian
Copyright Act 1987, particularly Section 13(1)(a) (reproduction right), Section 3
(definition of material form), Section 13(2)(q) (transient copy exception), and Sections
43C and 43D (safe harbours for SPs).

While Malaysian case law has not extensively interpreted the nuances of "transient
copy" or "material form" in relation to ephemeral digital copies, the legislative intent
behind Section 13(2)(q) is clear: to prevent ordinary internet usage from constituting
infringement. This aligns with global trends.

Key Legal Authorities (Comparative):

● For Transient Copies (Users):

 ○ Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 5
(CJEU): Affirmed that temporary copies made during browsing fall under
the EU's temporary acts of reproduction exception.
○ Public Relations Consultants Association Ltd v The Newspaper Licensing
Agency Ltd & Ors [2013] UKSC 18 (UK Supreme Court): Emphasized the
necessity of such an exception to prevent widespread liability for internet
browsing.
○ Cartoon Network LP, LLLP v CSC Holdings, Inc [2008] 536 F.3d 121 (2d
Cir) (US): Discussed the "fixation" requirement for copies, suggesting
fleeting RAM copies might not meet it.
● For System Caching (Service Providers):
○ US DMCA Section 512(b): Provides safe harbour for system caching,
with conditions relating to the removal of the original infringing material.
○ EU E-Commerce Directive Article 13: Similar to DMCA, requiring
original material removal for cached content takedown.

The balancing act within Malaysian law is evident:

● It acknowledges the broad nature of the reproduction right (Section 13(1)(a)) that
could encompass all digital copies.
● It then provides a critical exception for individual users (Section 13(2)(q)) to
ensure the internet remains usable and accessible without fear of constant
infringement.
● It provides safe harbours for service providers (Sections 43C, 43D) to enable the
functioning of the internet infrastructure without imposing impossible monitoring
burdens.

The primary point of friction in this balance remains Section 43D(2), where the strict
takedown requirement for cached content, even if the source remains, arguably places
an undue burden on service providers compared to other leading jurisdictions. This
could lead to inefficiencies in content delivery and potentially disincentivize caching
services.

6.0 WHAT CAN WE DO FOR IMPROVEMENT?

To enhance the clarity and effectiveness of Malaysian copyright law regarding
temporary copies, while maintaining a balance between copyright owners and
users/service providers, the following improvements can be considered:

1. Judicial Clarification on "Material Form" for Temporary Copies:

 ○ Action: While Section 13(2)(q) provides an exception, explicit judicial
interpretation regarding whether truly ephemeral RAM copies meet the
"material form" definition under Section 3 would be beneficial. This would
confirm whether the exception is indeed necessary for all types of
temporary digital storage.
○ Rationale: Such clarity would resolve any underlying ambiguity, aligning
Malaysian jurisprudence more definitively with how technical copies are
legally classified from the outset, before applying exceptions. This reduces
the risk of legal challenges based on the primary infringement right alone.
2. Amendment of Section 43D(2) for System Caching:
○ Action: Amend Section 43D(2) to stipulate that a caching service provider
is only required to remove cached infringing material if the original
infringing material has been removed or disabled from its originating
online location.
○ Rationale: This revision would bring Malaysia's system caching safe
harbour in line with international best practices (e.g., US DMCA 512(b),
EU E-Commerce Directive Article 13). It addresses the practical and
inefficient scenario of continuously removing re-cached content that is still
accessible at the source. This ensures that caching services, vital for
internet speed and user experience, can operate efficiently without undue
legal burden, fostering a healthier digital environment for all.
3. Public Awareness on Legitimate Digital Use:
○ Action: MyIPO and other relevant bodies should conduct public
awareness campaigns to educate users on the concept of temporary
copies and the scope of the transient copy exception.
○ Rationale: While the law provides the defence, a better understanding
among the general public about what constitutes legitimate online
behaviour versus infringement can reduce fear and promote responsible
digital citizenship.

These improvements would strengthen the existing framework, ensuring Malaysian

copyright law is robust, practical, and well-adapted to the dynamic nature of digital
technologies.

7.0 CONCLUSION
Malaysian copyright law demonstrates a commendable effort to balance the exclusive
reproduction rights of copyright owners with the public interest in the seamless
enjoyment of the digital world. The introduction of the transient copy exception in
Section 13(2)(q) is a pivotal provision, effectively shielding individual users from
copyright infringement liability for temporary copies made in RAM and caches during
normal online activities. This pragmatic approach acknowledges the technical realities
of internet usage, preventing an outcome where browsing itself becomes an infringing
act.

Similarly, the safe harbour provisions in Sections 43C and 43D provide crucial
protection for service providers, allowing them to facilitate digital communication and
content delivery without being held disproportionately liable for the vast amount of data
transiting their networks. However, the specific conditions within Section 43D(2)
regarding system caching, which may require removal of cached content even if the
original source remains online, present a point of imbalance when compared to leading
international jurisdictions.

By clarifying the legal status of temporary copies at the foundational level and refining
the safe harbour provisions for caching, Malaysia can further optimize its copyright
framework. This continuous evolution is essential to ensure that the law remains
effective, supports the growth of the digital economy, and continues to facilitate broad
public access to information and creativity in the ever-evolving digital landscape.
Legal Implications of Hyperlinking, Embedding,
and Cached Links in Copyright Infringement
1.0 INTRODUCTION
The architecture of the internet is built upon interconnectedness, primarily through
mechanisms like hyperlinking, embedding, and cached links. These functionalities
facilitate seamless navigation and access to vast amounts of information, forming the
backbone of the digital world. However, in an environment where copyrighted content is
ubiquitous, these seemingly innocuous technical acts raise complex questions
regarding copyright infringement. This essay will examine the legal implications of
hyperlinking, embedding, and cached links in the context of copyright infringement
under Malaysian law, drawing upon relevant provisions of the Copyright Act 1987 (CA
1987) and comparing these approaches with key international jurisdictions. The
discussion will distinguish between potential direct infringement and various forms of
secondary liability, highlighting the delicate balance between enabling internet
functionality and protecting copyright owners' exclusive rights.

2.0 POINT 1: Understanding Hyperlinking and its Legal

Implications
Hyperlinking refers to the act of creating a clickable reference (a "link") from one online
location to another. When a user clicks a hyperlink, their browser is directed to the
content residing on the linked server. From a technical standpoint, a hyperlink does not
involve the reproduction or hosting of the linked content on the linking website's server.
It merely provides a pathway to content located elsewhere.

The legal implications of hyperlinking in copyright law are complex and often debated,
primarily revolving around the concept of "communication to the public" or "authorisation
of infringement."

Direct Infringement (Reproduction/Communication): Generally, merely providing a

hyperlink, by itself, is not considered a direct act of reproduction or communication to
the public. This is because the linking website does not host the content and, in most
cases, does not actively "reproduce" the copyrighted material in a material form or
"communicate" it to a new public. The content remains on the original server.

● Malaysian Law: Under Section 13(1)(a) CA 1987, the right of reproduction

requires making a copy in "material form." Hyperlinking typically does not involve
this. Similarly, Section 13(1)(aa) CA 1987 covers "communication to the public,"
 defined in Section 3 as "transmission... or making available." While making
available is broad, simply linking generally points to the original source, which is
already made available by the content host.

Secondary Liability (Authorisation/Facilitation): The more pertinent legal question

arises when a hyperlink leads to infringing content. Here, the issue shifts from direct
infringement by the linker to potential secondary liability, such as "authorising" copyright
infringement or "facilitating" it.

● Authorisation of Infringement: Section 36(1) CA 1987 states that copyright is

infringed by "any person who, without the licence of the copyright owner, does or
causes to be done any of the acts the doing of which is controlled by copyright."
The term "causes to be done" can be interpreted as authorising. The Malaysian
courts have generally adopted the three-part test for authorisation from
University of New South Wales v Moorhouse [1975] 133 CLR 1 (Australia), which
considers: (i) the extent of the power to prevent the act, (ii) the relationship
between the parties, and (iii) whether the person took reasonable steps to
prevent the infringement. Applying this to hyperlinking, a hyperlink provider might
be deemed to authorise if they have the power to prevent access to the infringing
link (e.g., by removing it), have a close relationship with the infringer, and fail to
take reasonable steps after being notified.
● Knowledge Requirement: Crucially, for secondary liability, knowledge of the
infringement is often a key factor. If a hyperlink provider does not know, and has
no reason to know, that the linked content is infringing, liability is less likely.

Comparison with Other Jurisdictions:

● European Union: EU law has grappled extensively with linking. In Svensson v

Retriever Sverige AB [2014] ECLI:EU:C:2014:76 (CJEU), the CJEU ruled that
merely providing a hyperlink to freely available content on another website does
not constitute a "communication to a new public" (and thus no infringement) if the
content was already freely accessible. However, the situation changed with GS
Media BV v Sanoma Media Netherlands BV [2016] ECLI:EU:C:2016:644 (CJEU).
Here, the CJEU held that providing a hyperlink to infringing content that was not
freely accessible on the original site (i.e., had been put online without the
copyright holder's permission) could constitute a "communication to the public" if
the linker knew or ought to have known that the content was infringing. For
commercial entities, knowledge is presumed. This imposes a higher due
diligence burden on commercial linkers.
● United States: US courts generally view mere linking as non-infringing, relying
on the "server rule" (no copy on the linking server). The focus is usually on
 secondary liability (contributory or vicarious infringement). In Perfect 10, Inc v
[Link], Inc [2007] 508 F.3d 1146, the Ninth Circuit distinguished between
direct infringement (making copies) and providing links, finding that search
engines only facilitated user access rather than directly infringing. Secondary
liability requires knowledge and inducement (contributory) or direct financial
benefit and control (vicarious).

In Malaysia, the "authorisation" test, combined with the general principles of knowledge
and reasonable steps, offers a framework to address hyperlinking to infringing content,
leaning towards secondary liability rather than direct infringement for the act of linking
itself.

3.0 POINT 2: Embedding (In-line Linking/Framing) and its

Legal Implications
Embedding, also known as in-line linking or framing, is a technique where content from
one website (e.g., a YouTube video, an image) is displayed directly within another
website, without actually hosting the content on the second website's server. The
content is still streamed or served from its original source, but it appears as if it is an
integral part of the embedding page.

The legal implications of embedding are more contentious than simple hyperlinks
because the content is presented to the user within the context of the embedding site,
potentially creating a false impression of origin or control.

Direct Infringement (Communication to the Public): The key legal question for
embedding is whether it constitutes an unauthorized "communication to the public"
(Section 13(1)(aa) CA 1987) or a "reproduction."

● Reproduction: Similar to hyperlinking, embedding typically does not involve the

reproduction of the content on the embedding site's server. The content remains
on the original server.
● Communication to the Public: This is where embedding differs. While
technically the content is streamed from the original source, its presentation
within a new context can be argued to constitute a new "communication to the
public," especially if the original content was not freely accessible or was
presented in a way that bypasses original site restrictions (e.g., advertisements,
terms of use).

Comparison with Other Jurisdictions:

 ● European Union: The CJEU has provided significant rulings on embedding. In
Svensson v Retriever Sverige AB [2014] (CJEU), the court applied the same
logic for embedding as for hyperlinking: if the content was already freely available
on the internet with the copyright holder's permission, embedding it does not
constitute a "communication to a new public." However, BestWater International
GmbH v Mebes & Telko GbR [2014] ECLI:EU:C:2014:1310 (CJEU) reaffirmed
that embedding content that was already freely available (with the copyright
owner's consent) does not infringe, even if the user perceives it as being
integrated. The critical shift came with Land Nordrhein-Westfalen v Renckhoff
[2018] ECLI:EU:C:2018:728 (CJEU), which clarified that embedding a work (e.g.,
a photograph) that was initially posted on a third-party website without the
copyright owner's authorization constitutes a "communication to a new public."
This is because the new act of embedding makes it available to a different public
than the one intended by the original unauthorized uploader. This places a
burden on the embedding party to ensure the linked content is authorized.
● United States: US courts, applying the "server rule," generally hold that
embedding does not constitute direct infringement of the reproduction or display
rights if the content is hosted on a third-party server. In Perfect 10, Inc v
[Link], Inc [2007], the court explicitly stated that "in-line linking and
framing do not themselves cause an infringing display of the image by the HTML
provider because the image is not stored on the HTML provider’s computer." The
focus remains on whether the linking party induces or facilitates infringement
(secondary liability). This means that simply displaying embedded content that is
hosted elsewhere is generally not direct infringement.

Malaysian Law (Implied): Malaysia's CA 1987 does not have specific provisions
addressing embedding. Therefore, its legality would be assessed under existing
provisions.

● Reproduction: As established, embedding generally does not involve direct

reproduction on the embedding site.
● Communication to the Public (Section 13(1)(aa)): This is the more likely
avenue for infringement claims. Given the broad definition of "communication to
the public" to include "making available," Malaysian courts might be persuaded
by the EU's Renckhoff reasoning, especially if the embedded content was
originally put online without authorization. If the embedded content was
legitimately available, then the Svensson/BestWater principle of no "new public"
might apply.
● Authorisation (Section 36(1)): Similar to hyperlinking, if the embedding party
has knowledge that the embedded content is infringing and facilitates its display
 without reasonable steps to prevent it, secondary liability for authorisation could
arise.

The legal landscape for embedding in Malaysia remains less clear than in the EU.
Without specific judicial guidance, the broad "communication to the public" right,
coupled with the authorisation principle and the content's legitimacy, would be key
considerations.

4.0 POINT 3: Cached Links and Search Engine Liability

Cached links are a feature typically offered by search engines, allowing users to view a
snapshot of a webpage as it appeared when the search engine last indexed it. The
cached version is stored on the search engine's servers. These links are distinct from
live hyperlinks because they serve a copy of the page directly from the search engine's
cache, rather than redirecting to the original website.

The legal implications of cached links arise from two main copyright aspects:

1. Reproduction: The act of a search engine making a copy of a webpage and

storing it on its servers constitutes a "reproduction" in "material form" (Section
13(1)(a) and Section 3 CA 1987).
2. Communication to the Public: Making this cached copy available to users via a
"cached link" could be seen as a "communication to the public" (Section 13(1)
(aa) CA 1987).

Defences and Limitations on Liability: Given that search engines regularly copy and
store billions of webpages, strict application of copyright infringement would render their
operation impossible. Therefore, jurisdictions typically rely on specific exceptions or safe
harbour provisions.

Malaysian Law (Safe Harbour for Service Providers): Malaysia's CA 1987 provides
defences for service providers that are relevant to cached links:

● Section 43D (System Caching): This safe harbour directly addresses temporary
copies made by SPs for "system caching," which could cover the caching of
webpages by search engines. The conditions for this safe harbour (automatic
process, in response to user action, for subsequent users, no modification,
compliance with update rules) generally apply to search engine caching.
○ Crucial Condition and Problem: As discussed in Q6, Section 43D(2)
states that the safe harbour is lost if the SP "does not expeditiously
remove or disable access to the electronic copy upon obtaining actual
knowledge... by reason of the service provider receiving a notification
 given in accordance with section 43H." This means that even if the original
infringing content remains on the originating network, the caching SP is
still required to remove its cached copy. This poses a practical problem for
search engines, as they would inevitably re-cache the content unless the
original is removed.
● Section 43E(1)(b) (Information Location Tools): This safe harbour protects
SPs for "referring or linking a user to an online location containing infringing
material or infringing activity, by using information location tools." While this
primarily covers the hyperlink aspect of search results, it can implicitly extend to
cached links as part of the search engine's overall functionality. The conditions
include lack of actual knowledge or "red flags," and compliance with notice and
takedown.

Comparison with Other Jurisdictions:

● United States (DMCA Section 512(b) and Fair Use):

○ DMCA 512(b) (System Caching): This provision provides safe harbour
for caching services, but with a crucial difference: it generally requires the
cached material to be removed only if the original infringing material has
been removed or disabled at the originating site. This is more practical for
search engines.
○ Fair Use (17 USC Section 107): US courts have also frequently relied on
the fair use doctrine to protect search engine activities, including the
creation of cached copies and thumbnail images. In Kelly v. Arriba Soft
Corp. [2003] 336 F.3d 811 and Perfect 10, Inc. v. [Link], Inc.
[2007] 508 F.3d 1146, the courts found that search engines' copying of
images to create thumbnails and cached versions for indexing purposes
was transformative and did not harm the market for the original, thus
constituting fair use. This provides a robust substantive defence beyond
safe harbour.
● European Union (E-Commerce Directive Article 13): The EU's caching safe
harbour (Article 13) also typically requires removal only if the original content is
removed from the source.

In Malaysia, the combined effect of Sections 43D and 43E provides a framework for
protecting search engines, but the strictness of Section 43D(2) for caching, when
compared to international norms, remains a point of concern for efficiency and
practicality. Without explicit judicial application of fair dealing to search engine indexing,
the safe harbour provisions are the primary line of defence.

5.0 POINT 4: The Balancing Act in Malaysian Law

Malaysian copyright law attempts to strike a balance between facilitating the
functionality of the internet and protecting the rights of copyright owners, particularly
through:

1. Strict Interpretation of Exclusive Rights (Pro-Copyright Owner): The broad

definitions of "reproduction in any material form" (Section 13(1)(a) and Section 3)
and "communication to the public" (Section 13(1)(aa)) mean that acts like
creating temporary copies (for caching) and making content available (through
embedded players) could theoretically constitute direct infringement without
considering exceptions. This places a high burden of proof on potential infringers
and signals robust protection for copyright owners' digital rights. This is
reinforced by the general principle that any act controlled by copyright, if done
without license, is an infringement.
2. Statutory Exceptions for Users (Pro-User): The introduction of Section 13(2)
(q) (transient copy exception) is a crucial legislative intervention that directly
addresses the reality of digital consumption. By explicitly stating that the making
of "transient and incidental electronic copy... if required for viewing, listening or
utilisation" is not an infringement, Malaysian law effectively shields individual
internet users from liability for temporary RAM or browser cache copies. This
pragmatic approach is vital for ensuring the internet remains usable and
accessible to the public without fear of constant inadvertent infringement. It
represents a clear policy choice to prioritize unimpeded access for legitimate
consumption over a maximalist interpretation of the reproduction right for fleeting
copies.
3. Safe Harbour for Service Providers (Pro-Service Provider): Part VIB of the
CA 1987, particularly Sections 43C (Mere Conduit), 43D (System Caching),
and 43E (Information Location Tools/Hosting), represents Malaysia's primary
mechanism for balancing the interests of copyright owners with those of service
providers. These provisions acknowledge the indispensable role SPs play in the
digital ecosystem and aim to prevent them from becoming de facto copyright
police.
○ Mere Conduit (43C): Protects ISPs who are merely passive conduits,
allowing the internet to function as a data highway.
○ System Caching (43D): Aims to facilitate efficient content delivery by
protecting SPs who temporarily store content. However, as noted, the
strict takedown condition in Section 43D(2) creates a practical challenge,
potentially undermining the efficiency rationale.
○ Information Location Tools/Hosting (43E): This is vital for platforms like
search engines and social media. It places the onus on copyright owners
to issue notices, and protects SPs who act expeditiously upon knowledge
 or red flags, without requiring general monitoring. This attempts to balance
enforcement with the practical limitations of SPs.

The balance in Malaysian law is a dynamic one, reflecting a move towards harmonizing
with international treaties and practices. While it provides substantial protection for
copyright owners, it also makes significant concessions to accommodate the technical
realities of the internet and the broader public interest in digital access. The remaining
areas of friction, particularly concerning the nuances of Section 43D(2) for caching and
the lack of explicit judicial fair dealing for search engine functions, highlight where the
balance could be further refined.

6.0 WHAT CAN WE DO FOR IMPROVEMENT?

To enhance clarity and effectiveness in addressing the legal implications of
hyperlinking, embedding, and cached links in Malaysian copyright law, while
maintaining a balanced ecosystem, the following improvements can be considered:

1. Judicial Clarity on Embedding and "Communication to the Public":

○ Action: Malaysian courts should actively engage with cases involving
embedding to provide clearer interpretations of what constitutes a
"communication to the public" under Section 13(1)(aa) in this context.
They could consider drawing lessons from the EU's Renckhoff principle,
which differentiates between embedding authorized content and
embedding unauthorized content.
○ Rationale: The current Act does not explicitly address embedding. Clear
judicial guidance would provide much-needed certainty for website
operators and content creators on when embedding crosses the line into
infringement, especially when the embedded content itself is
unauthorized. This would help prevent unintended infringement and
encourage responsible embedding practices.
2. Refine Section 43D(2) for System Caching (Relevant to Cached Links):
○ Action: Amend Section 43D(2) to stipulate that a caching service provider
is only required to remove cached infringing material if the original
infringing material has been removed or disabled from its originating
online location.
○ Rationale: As discussed, the current phrasing places an impractical
burden on caching SPs, particularly search engines, leading to a perpetual
cycle of takedown notices for content still available at its source. Aligning
this with the US (DMCA 512(b)) and EU (E-Commerce Directive Article
13) approaches would create a more practical and efficient safe harbour,
 fostering better internet performance and reducing legal friction for
essential services.
3. Explore Explicit Fair Dealing Application to Search Engine Functionality:
○ Action: While safe harbours protect service providers, Malaysian courts
could explicitly consider how the broadened fair dealing doctrine (Section
13(2A)) applies to the transformative uses inherent in search engine
indexing and caching. This could be done through judicial precedent.
○ Rationale: A substantive fair dealing defence, in addition to safe harbour,
would provide greater legal robustness for search engines and
acknowledge the significant public benefit they provide in organizing and
making information accessible. This mirrors the US approach where fair
use has been instrumental in protecting search engine functions.
4. Public and Industry Guidelines on Linking and Embedding:
○ Action: MyIPO, perhaps in collaboration with industry associations, could
issue guidelines or best practices for hyperlinking and embedding,
clarifying their legal status under current Malaysian law. This could include
advice on due diligence for commercial entities.
○ Rationale: Clear, accessible guidelines can help internet users and
businesses understand their responsibilities and avoid copyright pitfalls,
promoting a more compliant online environment.

These improvements would strengthen Malaysia's legal framework, ensuring it remains

robust, predictable, and supportive of both content creation and efficient information
access in the digital age.

7.0 CONCLUSION
The legal implications of hyperlinking, embedding, and cached links in the context of
copyright infringement are multifaceted, reflecting the inherent complexities of regulating
digital interactions. Malaysian copyright law, through its broad definitions of reproduction
and communication to the public, initially suggests that many such acts could fall within
the scope of infringement. However, the subsequent introduction of the transient copy
exception for individual users and comprehensive safe harbour provisions for service
providers demonstrates a pragmatic and commendable effort to balance the rights of
copyright owners with the functional imperatives of the internet.

While simple hyperlinking without knowledge of infringement is generally not considered

an infringing act, the legality of embedding, especially if it involves unauthorized
content, remains a nuanced area where Malaysian courts could benefit from explicit
interpretation, potentially drawing from the EU's approach. For cached links, the existing
safe harbours provide protection for search engines, but the specific conditions for
system caching under Section 43D(2) could be refined to align with international best
practices and ensure greater efficiency.

Ultimately, the continuous evolution of digital technologies necessitates ongoing review

and adaptation of copyright law. By providing clearer judicial guidance on contentious
areas like embedding and refining existing statutory provisions, Malaysia can further
solidify its copyright framework, ensuring it effectively protects creators while
simultaneously fostering an open, accessible, and innovative digital environment for all.
Effectiveness of Malaysian Copyright
Framework in Online Disputes
1.0 INTRODUCTION
The rapid proliferation of digital technologies has fundamentally transformed the
landscape of copyright, leading to a dramatic increase in online copyright disputes. The
ease with which digital content can be copied, disseminated, and accessed globally
presents a perpetual challenge to copyright owners seeking to protect their exclusive
rights. Concurrently, the internet's functionality relies heavily on the activities of
individual users and service providers, whose legitimate actions often involve the
technical creation of temporary copies or the facilitation of content access. The
Malaysian legal framework, primarily enshrined in the Copyright Act 1987 (CA 1987),
has undergone significant amendments to address these digital realities. This essay will
critically analyse the effectiveness of this framework, focusing on the exceptions to
exclusive rights for individual users, safe harbour provisions for service providers, and
the protection afforded to Technological Protection Measures (TPMs) and Rights
Management Information (RMI). The analysis will be supported by legal authorities and
cross-referenced with approaches adopted in other jurisdictions to assess Malaysia's
position in navigating these complex online copyright disputes.

2.0 POINT 1: Effectiveness of Exceptions to Exclusive

Rights (Individual User)
The effectiveness of any copyright framework in the digital age hinges on its ability to
strike a pragmatic balance between the rights of copyright owners and the legitimate
interests of individual users. Malaysian law provides two key statutory exceptions that
directly impact individual users in the online environment: the fair dealing doctrine and
the transient copy exception.

2.1 Fair Dealing (Section 13(2)(a) read with Section 13(2A))

● Purpose: Fair dealing aims to permit certain uses of copyrighted works without
permission, provided they are for specific purposes and meet a multi-factor test,
thereby balancing the copyright owner's monopoly with public interest uses like
education, research, criticism, and news reporting.
● Malaysian Effectiveness: The 2012 amendments significantly broadened
Malaysia's fair dealing provision by introducing Section 13(2A), which outlines
four mandatory factors for consideration, mirroring the US fair use doctrine
 (purpose and character of the dealing, nature of the work, amount and
substantiality used, and effect on the market). This shift from a closed list to an
open-ended, flexible approach has been widely lauded as a progressive step. It
allows Malaysian courts the necessary flexibility to adapt to evolving digital uses
and technologies on a case-by-case basis. For example, uses involving
transformative purposes, where a new expression or meaning is added, are
more likely to be considered fair, as seen in US jurisprudence (e.g., Campbell v
Acuff-Rose Music, Inc 510 US 569 (1994) on parody; The Authors Guild, Inc v
Google, Inc (US) concerning the Google Books project's snippet view and
indexing for research). This flexibility is crucial in a developing country like
Malaysia to foster innovation and digital literacy without requiring constant
legislative updates for every new digital appropriation.
● Critical Analysis: While the framework is sound, its effectiveness relies heavily
on judicial interpretation. There is still limited Malaysian case law definitively
applying the Section 13(2A) factors to complex online scenarios (e.g., fan art,
memes, online educational resource sharing beyond traditional classroom
settings). Without robust judicial precedents, individual users and even small
content creators may remain uncertain about the boundaries of fair dealing,
potentially leading to self-censorship or a chilling effect on legitimate uses.
● Comparison with Other Jurisdictions: The move towards a US-style fair use is
a strength. The US framework, through extensive case law (e.g., Perfect 10, Inc
v [Link], Inc 508 F 3d 1146 (9th Cir 2007) on search engine thumbnails),
has demonstrated its adaptability. In contrast, many EU member states,
traditionally relying on narrower, specific exceptions, are still grappling with a
more prescriptive approach, although the recent Directive on Copyright in the
Digital Single Market (DSM Directive) aims to update some areas. Malaysia's
current fair dealing provides a broad canvas for future judicial development.

2.2 Transient Copy Exception (Section 13(2)(q))

● Purpose: This exception explicitly addresses the technical necessity of making

temporary copies (e.g., in RAM, browser cache) during normal online activities
like viewing a webpage or streaming a video.
● Malaysian Effectiveness: Section 13(2)(q) explicitly states that "the making of a
transient and incidental electronic copy of a work made available on a network if
the making of such copy is required for the viewing, listening or utilisation of the
said work" is not an infringement. This provision is highly effective in shielding
millions of ordinary internet users from copyright infringement liability for activities
that are inherent to internet usage. Without it, simply browsing the web would be
a technical infringement, rendering the internet largely unworkable. It represents
a pragmatic and essential concession to the realities of the digital world.
 ● Critical Analysis: While highly effective in its direct application, there is still
some theoretical ambiguity in Malaysian law regarding whether temporary RAM
copies themselves are prima facie "reproductions in any material form" under
Section 13(1)(a) before the exception is applied. The very existence of the
exception implies they are, but explicit judicial confirmation on the definition of
"material form" for ephemeral copies would remove any lingering doubt.
However, for practical purposes, the exception provides sufficient protection.
● Comparison with Other Jurisdictions: This provision aligns Malaysia with the
prevailing international norm. The EU's Information Society Directive
(2001/29/EC) includes a similar exception (Article 5(1)), as interpreted by the
CJEU in Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 5
and reaffirmed by the UK Supreme Court in Public Relations Consultants
Association Ltd v The Newspaper Licensing Agency Ltd & Ors [2013] UKSC 18,
which emphasized its necessity. The US achieves a similar outcome primarily
through fair use or interpretations of the "fixation" requirement (e.g., Cartoon
Network LP, LLLP v CSC Holdings, Inc 536 F 3d 121 (2d Cir 2008)). Malaysia's
direct statutory provision offers clear legal certainty.

In summary, Malaysia's exceptions for individual users are largely effective, particularly
the transient copy exception. The fair dealing provision offers strong potential but
requires more judicial application to clarify its boundaries in the increasingly complex
online environment.

3.0 POINT 2: Effectiveness of Safe Harbour Provisions

(Service Provider)
Service providers (SPs) are the intermediaries that enable the internet to function, but
their role also exposes them to immense potential liability for copyright infringements
committed by their users. Malaysia's CA 1987, through Part VIB (Sections 43A-43L),
introduces safe harbour provisions to limit SP liability, aiming to foster the growth of the
digital economy without turning SPs into internet police.

3.1 Mere Conduit (Section 43C)

● Purpose: Exempts SPs from liability when they merely act as passive conduits
for transmitting data, without initiating, selecting, or modifying content.
● Malaysian Effectiveness: This provision is highly effective. It acknowledges the
technical reality that ISPs cannot realistically monitor all data flowing through
their networks. By shielding passive SPs, it allows the fundamental infrastructure
of the internet to operate without fear of constant legal battles. This is crucial for
maintaining an open internet and encouraging SP investment in Malaysia.
 ● Critical Analysis: The clarity and breadth of this provision are a strength,
aligning well with international standards.
● Comparison: This mirrors Section 512(a) of the US Digital Millennium Copyright
Act (DMCA) and Article 12 of the EU E-Commerce Directive (2000/31/EC).

3.2 System Caching (Section 43D)

● Purpose: Limits liability for SPs who temporarily store copies of works for
efficiency, making them available to subsequent users.
● Malaysian Effectiveness: While intended to be effective, Section 43D has a
notable flaw. Section 43D(2) states that the safe harbour is lost if the SP fails to
remove or disable access to the cached copy upon notice, even if the original
infringing material remains on the originating network. This places an impractical
burden on caching SPs, as they would continuously re-cache the content,
leading to an endless cycle of takedown notices. This condition undermines the
efficiency purpose of caching and is less effective in practice.
● Critical Analysis: This specific condition creates a significant practical challenge
and is less effective than desired. It can lead to unnecessary disputes and
operational burdens for SPs.
● Comparison: This contrasts sharply with the US DMCA 512(b) and EU E-
Commerce Directive Article 13, which generally require the cached material to be
removed only if the original infringing material has been removed or disabled at
the originating site. This difference makes Malaysia's caching safe harbour less
effective in practice.

3.3 Storage at User's Direction and Information Location Tools (Section 43E)

● Purpose: This is arguably the most crucial safe harbour for OSPs, covering
hosting services (e.g., YouTube, Facebook) and search engines. It limits liability
if the infringement occurs "at the direction of a user" (for hosting) or "by using
information location tools," provided the SP lacks "actual knowledge" or "red flag"
awareness and complies with notice and takedown.
● Malaysian Effectiveness: This provision generally works well, providing
necessary protection for platforms hosting user-generated content or indexing
the internet. It shifts the primary enforcement burden to copyright owners (notice-
and-takedown) while requiring SPs to act expeditiously on known infringements.
The "actual knowledge" or "facts or circumstances... apparent" (red flag) test
balances the SP's operational burden with the copyright owner's enforcement
needs. Cases like UMG Recordings Inc v Veoh Networks 620 F Supp 2d 1081
(CD Cal 2008) and Viacom International v YouTube 718 F Supp 2d 514 (SDNY
 2010) (US) have explored the nuances of this "red flag" test, generally favouring
SPs in the absence of specific knowledge or active inducement.
● Critical Analysis: The effectiveness of this provision hinges on the interpretation
of "actual knowledge" and "red flags" and the efficiency of the notice-and-
takedown system. Proving "actual knowledge" is notoriously difficult for copyright
owners (as seen in Lenz v Universal Music Publishing Group [2015] 801 F.3d
1126 (9th Cir) (US) regarding good faith belief), and Section 43I (offence of
misrepresentation for false notices) can make copyright owners hesitant. This
creates some friction in dispute resolution.
● Comparison: This provision is heavily inspired by and largely aligns with DMCA
512(c) and 512(d), and Articles 13 and 14 of the EU E-Commerce Directive.
However, the EU's recent DSM Directive (Article 17) represents a significant
shift, placing more direct responsibility on online content-sharing service
providers to obtain licenses or proactively prevent the availability of unauthorized
works, moving beyond a pure notice-and-takedown regime for large platforms.
Malaysia's current framework, while effective in its original intent, may need to
consider such shifts for major platforms in the future to keep pace with evolving
international norms for large user-generated content sites.

Overall, Malaysia's safe harbour provisions are largely effective in facilitating internet
operations, but the system caching provision needs refinement for optimal functionality.

4.0 POINT 3: Effectiveness of Technological Protection

Measures (TPMs) and Rights Management Information
(RMI)
In response to the ease of digital copying, copyright owners increasingly rely on
technological means to protect their works. Malaysian law provides legal backing for
these measures through Sections 36A (TPMs) and 36B (RMI) of the CA 1987,
introduced to comply with the WIPO Copyright Treaty (WCT).

4.1 Technological Protection Measures (TPMs) (Section 36A)

● Purpose: Section 36A prohibits the circumvention of "effective technological

measures" that control access to or restrict acts (e.g., reproduction,
communication) relating to copyrighted works. This provides a legal "digital lock"
against unauthorized access and use.
● Malaysian Effectiveness: The provision is effective in deterring mass-scale
circumvention tools and commercial circumvention activities. It empowers
copyright owners by giving them a legal remedy against those who undermine
 their technological safeguards. This is particularly important for digital distribution
models (e.g., streaming services, e-books).
● Critical Analysis: A major criticism globally, and applicable to Malaysia, is the
potential for TPMs to override statutory exceptions to copyright. If a work is
protected by an effective TPM, a user may be legally entitled to use it under fair
dealing (e.g., for research or education), but technologically prevented from
doing so. Section 36A(2) provides very narrow exceptions (law enforcement,
national security, statutory function), which do not cover general copyright
exceptions. This creates a "chilling effect" on legitimate uses and can tilt the
balance too heavily in favour of copyright owners, hindering public access and
educational activities. This can lead to increased disputes where users or
institutions feel their statutory rights are being curtailed by technology.
● Comparison:
○ United States (DMCA Section 1201): The US has robust anti-
circumvention laws but includes a unique "triennial rulemaking" process.
Every three years, the Librarian of Congress, advised by the Register of
Copyrights, grants temporary exemptions to the anti-circumvention
prohibition for specific non-infringing uses (e.g., for accessibility,
educational purposes, or repair). This provides a flexible mechanism to
rebalance TPMs with legitimate access needs and resolve disputes that
arise from technological barriers to lawful use.
○ European Union (Information Society Directive Article 6): The EU
Directive mandates legal protection for TPMs but also requires member
states to ensure that users benefiting from specific copyright exceptions
can still exercise those exceptions if TPMs prevent them. This often leads
to mechanisms for rights holders to provide access or remuneration for
such uses.

4.2 Rights Management Information (RMI) (Section 36B)

● Purpose: Section 36B prohibits the removal or alteration of RMI (e.g.,

watermarks, metadata identifying author, owner, terms of use) if done with
knowledge that it will induce, enable, facilitate, or conceal copyright infringement.
● Malaysian Effectiveness: This provision is effective in protecting the integrity of
copyright information embedded in digital works. It helps copyright owners track
and manage their works and identify infringing copies, thereby supporting
enforcement efforts.
● Critical Analysis: The "knowledge" requirement for infringement under Section
36B can be difficult to prove in practice, similar to the "knowledge" requirement in
safe harbour provisions, potentially limiting its effectiveness in deterring
sophisticated infringers.
 ● Comparison: Similar provisions exist in the US (DMCA Section 1202) and EU
(Information Society Directive Article 7), reflecting international consensus on
protecting RMI.

In essence, while TPMs and RMI provisions offer strong protection for copyright owners
in the digital realm, Malaysia's lack of flexible exceptions for TPMs, unlike the US and
EU, means that they can inadvertently hinder legitimate uses, potentially increasing
disputes rather than resolving them equitably.

5.0 POINT 4: Overall Challenges and Gaps in

Effectiveness
Despite significant advancements, the Malaysian legal framework faces several
overarching challenges that limit its effectiveness in addressing the increasing
complexity of online copyright disputes:

1. Judicial Interpretation and Precedent: While the CA 1987 provides a robust

statutory framework, the effectiveness of several key provisions (e.g., fair dealing
factors, "red flag" awareness for SPs, "material form" for ephemeral copies, and
the nuances of embedding) relies heavily on consistent and extensive judicial
interpretation. Compared to jurisdictions with long histories of digital copyright
litigation like the US and EU, Malaysia has fewer landmark cases providing clear
precedents. This lack of detailed judicial guidance can lead to legal uncertainty
for both copyright owners and potential users/SPs, potentially escalating disputes
rather than providing clear pathways for resolution.
2. Enforcement Challenges: Online copyright disputes are inherently challenging
to enforce due to the borderless nature of the internet, the anonymity of
infringers, and the sheer volume of infringing content. While Malaysia has
blocking orders (Section 43C(2)), the lack of statutory criteria for granting them
(as discussed in Q3) can lead to inconsistent application. The difficulty in proving
"knowledge" for secondary liability or false notices (Section 43I) can also hinder
effective enforcement efforts by copyright owners. The Online Policy Group v
Diebold (US) case shows successful prosecution of misrepresentation, but Lenz
v Universal Music Publishing Group highlights the difficulty of proving bad faith.
3. Digital Exhaustion Principle: As discussed in Q1 and Q3, the application of the
exhaustion principle to digital copies remains ambiguous in Malaysian law. The
ReDigi case (US) underscores how unavoidable "reproduction" during digital
transfer can override any theoretical exhaustion of the distribution right for digital
content. Without clarity or a specific "digital first sale" doctrine, consumers of
digital content lack clear "ownership" rights, leading to potential disputes
 regarding resale or transfer of digital licenses. The EU's UsedSoft ruling offers a
more pro-consumer stance that Malaysia could consider.
4. The Rise of AI-Generated Works: The most significant emerging challenge is
copyright in AI-generated works. Malaysia's current human-centric definition of
"author" (Section 3) likely means that purely AI-generated works cannot be
copyrighted. This creates a legal vacuum where valuable creative output might
fall into the public domain, disincentivizing investment in generative AI, or leading
to disputes over ownership for human-AI collaborations. The lack of a specific
"computer-generated work" provision (like the UK's Section 9(3) CDPA) is a
significant gap.
5. Adapting as a Developing Country: As a developing country, Malaysia must
balance robust copyright protection (to attract foreign investment and foster local
creative industries) with ensuring broad public access to information and
promoting technological innovation. Overly restrictive interpretations or
enforcement mechanisms could stifle digital growth and literacy. The existing
framework aims for this balance, but the noted gaps, particularly TPMs overriding
exceptions, can create friction in this crucial balance.

In essence, while the Malaysian legal framework provides the essential tools, its
effectiveness in real-world online disputes is sometimes hampered by interpretational
ambiguities, practical enforcement hurdles, and a reactive rather than proactive stance
on emerging technologies like AI.

6.0 WHAT CAN WE DO FOR IMPROVEMENT?

To enhance the effectiveness of the Malaysian legal framework in managing increasing
online copyright disputes, several strategic improvements, drawing lessons from other
jurisdictions, are necessary:

1. Strengthen Fair Dealing through Judicial Interpretation and Guidelines:

○ Action: Actively encourage and support judicial training to foster a
consistent and comprehensive application of the four-factor fair dealing
test (Section 13(2A)) to complex online scenarios (e.g., transformative
uses, non-commercial sharing, educational resource creation). MyIPO
could issue non-binding guidelines or illustrative examples.
○ Rationale: While the statutory framework is flexible, its practical
effectiveness hinges on clear precedents. Greater clarity will empower
individual users to engage in legitimate activities without fear and provide
clearer boundaries for copyright owners in enforcement.
2. Refine Safe Harbour for System Caching (Section 43D):
 ○ Action: Amend Section 43D(2) to explicitly state that a caching service
provider is only required to remove cached infringing material if the
original infringing material has been removed or disabled from its
originating online location.
○ Rationale: This would align Malaysia with international best practices (US
DMCA 512(b), EU E-Commerce Directive Article 13). It removes an
impractical burden on SPs, promotes efficiency in content delivery, and
reduces unnecessary disputes arising from technical re-caching.
3. Introduce Flexible Exceptions to TPMs (Section 36A):
○ Action: Amend Section 36A(2) or introduce a new mechanism (e.g., a
triennial review process similar to US DMCA 1201 or a general provision
for exercising statutory exceptions where TPMs prevent them, like the EU)
to allow for legitimate circumvention for non-infringing purposes (e.g.,
education, accessibility for persons with disabilities under S.13(2)(r) & (s),
research, preservation).
○ Rationale: Currently, TPMs can act as a "digital lock" that overrides
legitimate statutory exceptions, leading to disputes over access rights.
Introducing flexibility ensures that copyright protection does not stifle
public interest uses and aligns Malaysia with more balanced international
approaches.
4. Proactive Legislative Action on AI-Generated Works:
○ Action: Introduce new provisions in the CA 1987 to address AI-generated
works, clearly defining who is the "author" (e.g., the human making the
"arrangements necessary"), the term of copyright (e.g., a fixed shorter
term like 50 years), and the applicability of moral rights (likely excluded).
Consider a specific exception for text and data mining for AI training.
○ Rationale: The lack of clarity on AI authorship is a significant gap leading
to uncertainty and potential disputes. Proactive legislation (drawing from
the UK and EU models) will provide legal certainty, foster innovation in the
AI sector, and address one of the most pressing emerging copyright
challenges.
5. Enhance Enforcement Mechanisms and Clarity on Blocking Orders:
○ Action: Introduce statutory criteria for courts to consider when granting
blocking orders under Section 43C(2), similar to the UK's Section 97A
CDPA or Singapore's Section 193D. Also, review the "knowledge"
requirement in Section 43I to ensure it is practical to prove, possibly
shifting to a "reasonable belief" standard where appropriate.
○ Rationale: Clearer criteria for blocking orders will ensure consistent and
predictable application, making them a more effective tool against
commercial piracy. A more practical standard for proving
 misrepresentation will encourage copyright owners to issue legitimate
notices without undue fear, facilitating smoother dispute resolution.
6. Address Digital Exhaustion:
○ Action: Explore legislative amendments to clarify the application of the
exhaustion principle to digital works, perhaps by defining what constitutes
a "digital sale" and introducing a "digital first sale" doctrine, possibly with
technical safeguards, similar to the EU's UsedSoft ruling.
○ Rationale: This would provide clarity on consumer rights in digital
purchases, reduce disputes over digital resale, and help modernize
Malaysian copyright law to meet consumer expectations in the digital age.

These comprehensive improvements would make the Malaysian legal framework more
robust, predictable, and adaptable, thereby increasing its effectiveness in resolving and
preventing online copyright disputes in the rapidly evolving digital landscape.

7.0 CONCLUSION
The Malaysian legal framework for copyright has made significant strides in adapting to
the digital era, particularly through its broadened fair dealing and crucial safe harbour
provisions. These measures effectively shield individual users from inadvertent
infringement and limit the liability of service providers, thereby facilitating the
indispensable functioning of the internet. The legal protection afforded to TPMs and RMI
also empowers copyright owners in the digital realm.

However, a critical analysis reveals several areas where the framework's effectiveness
in addressing increasing online copyright disputes can be substantially improved. The
practical challenges within the system caching safe harbour, the potential for TPMs to
override legitimate user exceptions, the ambiguities surrounding judicial interpretation of
flexible provisions, and the looming challenges posed by AI-generated works represent
significant gaps. Moreover, the effectiveness of enforcement mechanisms and the
clarity on digital exhaustion principles require further attention.

By proactively addressing these areas—through refined legislation, clearer judicial

guidance, and ongoing dialogue with stakeholders—Malaysia can solidify its position as
a jurisdiction with a robust and equitable copyright system. Learning from the strengths
and weaknesses of other international jurisdictions, Malaysia has the opportunity to craft
a legal framework that not only safeguards the rights of creators but also fosters
innovation, ensures broad public access to knowledge, and supports a thriving digital
economy, thereby effectively managing the complexities of online copyright disputes in
the decades to come.
Balance of Interest between Copyright Holder
and Individual User
1.0 INTRODUCTION
Copyright law, at its core, seeks to achieve a delicate balance between granting
creators exclusive rights over their works and ensuring public access to and utilization
of those works. This equilibrium is crucial for fostering creativity, disseminating
knowledge, and promoting cultural development. In the digital age, this balance is
constantly tested by the unprecedented ease of copying, sharing, and interacting with
content online. This essay will critically examine the balance of interest between the
copyright holder and the individual user within the Malaysian legal framework,
specifically focusing on exclusive rights, exceptions to those rights, Technological
Protection Measures (TPMs), and Rights Management Information (RMI). Supported by
legal authorities and cross-referenced with other jurisdictions, this analysis aims to
illuminate where the Malaysian Copyright Act 1987 (CA 1987) effectively manages this
dynamic tension and where challenges persist.

2.0 POINT 1: Exclusive Rights of Copyright Holders and

Their Impact on Individual Users
Copyright holders are granted a bundle of exclusive rights that empower them to control
various acts related to their works, providing the necessary incentive for creative
endeavor and ensuring they can financially benefit from their creations. These rights,
enshrined in Section 13(1) of the CA 1987, include:

● The right of reproduction in any material form (Section 13(1)(a))

● The right of communication to the public (Section 13(1)(aa))
● The right of distribution (Section 13(1)(e))

Impact on Individual Users in the Digital World: If applied strictly without exceptions,
these exclusive rights would significantly curtail the activities of individual users in the
digital environment:

● Reproduction: Every act of digital consumption, from viewing a webpage (which

involves temporary copies in RAM) to downloading a file, inherently involves
making a "reproduction." Section 3 of the CA 1987 defines "material form"
broadly as "any form (whether visible or not) of storage from which the work...
can be reproduced." A strict interpretation could technically render almost every
internet user a direct infringer simply by accessing content. This creates a
 fundamental tension: the internet's functionality depends on such copying, while
copyright holders need to control unauthorized duplication.
● Communication to the Public: This right covers making a work available to the
public "from a place and at a time individually chosen by them" (Section 3), which
is crucial for on-demand services. For individual users, this means that
unauthorized uploading or sharing of copyrighted content (e.g., on social media
platforms, file-sharing sites) directly infringes this right. While copyright holders
aim to control commercial exploitation, individual users might engage in such
acts without understanding the full legal implications, driven by a desire for easy
access and sharing.
● Distribution: Section 13(1)(e) covers the distribution of copies by sale or other
transfer of ownership. For individual users, this impacts their ability to resell or
transfer digital content they have "purchased." While Section 13(1)(A) provides
for the exhaustion of the distribution right upon the first sale of a copy in
Malaysia, the application of this "first sale doctrine" to digital goods is highly
contentious. If a digital transfer involves a new "reproduction" (as argued in some
jurisdictions), the exhaustion of the distribution right becomes moot, effectively
preventing the individual user from truly "owning" and reselling digital content in
the same way they could physical goods.

From the copyright holder's perspective, strong exclusive rights are vital to protect their
economic interests against widespread digital piracy, which can undermine traditional
markets and incentives to create. For the individual user, these rights, if unfettered,
impose a heavy burden, making many common and seemingly innocent digital activities
potentially unlawful. The challenge for the law is to find a middle ground that respects
both interests.

3.0 POINT 2: Exceptions to Exclusive Rights –

Empowering the Individual User
To counterbalance the broad scope of exclusive rights, Malaysian copyright law
incorporates crucial exceptions that allow individual users to engage in certain activities
without infringing copyright. These provisions are fundamental to enabling public
access, fostering education, and encouraging new creative endeavors.

2.1 Fair Dealing (Section 13(2)(a) read with Section 13(2A))

● Purpose: Fair dealing provides a defence against infringement for uses of

copyrighted works that are deemed beneficial to society, without requiring the
copyright owner's permission.
 ● Malaysian Approach: The 2012 amendments significantly improved Malaysia's
fair dealing provision. Section 13(2)(a) permits "fair dealing" for purposes
"including" non-profit research, private study, criticism, review, or the reporting of
current events. Crucially, Section 13(2A) introduced a four-factor test that must
be considered:
○ (a) the purpose and character of the dealing (e.g., commercial vs. non-
profit educational, transformative vs. merely superseding);
○ (b) the nature of the copyright work;
○ (c) the amount and substantiality of the portion used; and
○ (d) the effect of the dealing upon the potential market for or value of the
copyright work.
● Effectiveness for Individual Users: This flexible, open-ended approach (similar
to US fair use) greatly benefits individual users. It allows for a case-by-case
assessment, enabling uses that were not explicitly listed previously. For instance,
an individual user making a parody of a copyrighted song (as in Campbell v
Acuff-Rose Music, Inc 510 US 569 (1994) in the US) or using snippets of a work
for educational commentary on a blog might invoke this defence. The emphasis
on "transformative use" (where the new work adds "new expression, meaning, or
message" to the original) allows users to build upon existing creations, fostering
creativity and public discourse. The Google Books project in the US, found to be
fair use, exemplifies how even commercial activities that transform works for
public benefit (like indexing and snippet views for research) can be protected,
directly benefiting users.
● Critical Analysis: While the framework is robust, the lack of extensive Malaysian
judicial precedent on these factors in diverse online scenarios leaves some
uncertainty for individual users. Users may be hesitant to engage in potentially
"fair" uses without clearer guidance.
● Comparison with Other Jurisdictions: Malaysia's shift towards a US-style fair
use is a strength, offering more flexibility than the traditionally narrower, specific
exceptions in many EU countries (though the DSM Directive introduces new
exceptions like TDM).

2.2 Transient Copy Exception (Section 13(2)(q))

● Purpose: This provision explicitly states that "the making of a transient and
incidental electronic copy of a work made available on a network if the making of
such copy is required for the viewing, listening or utilisation of the said work" is
not an infringement.
● Effectiveness for Individual Users: This exception is critically important for
individual users. It directly legalizes the ubiquitous technical copies (e.g., RAM
copies, browser caches) that are inherently made when browsing the web,
 streaming videos, or listening to online music. Without this provision, every user
who accesses online content could technically be infringing copyright, making the
internet unworkable. It ensures that the act of "reading" or "viewing" digital
content, which is a fundamental aspect of digital enjoyment, does not
automatically constitute infringement.
● Critical Analysis: Section 13(2)(q) is highly effective in its direct application,
providing clear protection. The only minor theoretical ambiguity is whether
ephemeral RAM copies are prima facie "reproductions" under Section 13(1)(a)
before the exception applies, but for practical purposes, the exception provides
robust protection.
● Comparison with Other Jurisdictions: This aligns Malaysia with the global
trend. The EU's Information Society Directive (2001/29/EC) includes a similar
exception (Article 5(1)), which was affirmed as necessary by the CJEU in Infopaq
International A/S v Danske Dagblades Forening [2009] ECDR 5 and the UK
Supreme Court in Public Relations Consultants Association Ltd v The
Newspaper Licensing Agency Ltd & Ors [2013] UKSC 18. The US achieves a
similar outcome via fair use or interpretations of the "fixation" requirement (e.g.,
Cartoon Network LP, LLLP v CSC Holdings, Inc 536 F 3d 121 (2d Cir 2008)).

These exceptions collectively provide substantial protection for individual users,

ensuring they can interact with digital content in a variety of common and beneficial
ways without infringing copyright.

3.0 POINT 3: Technological Protection Measures (TPMs)

and Rights Management Information (RMI) – Tools for
Copyright Holders, Potential Barriers for Users
While exceptions expand user rights, Technological Protection Measures (TPMs) and
Rights Management Information (RMI) are tools primarily employed by copyright
holders to secure their digital content, and their legal protection can sometimes create
tension with individual user interests.

3.1 Technological Protection Measures (TPMs) (Section 36A)

● Purpose: Section 36A prohibits the circumvention of "effective technological

measures" that control access to or restrict acts (e.g., reproduction,
communication) relating to copyrighted works. These are digital locks (e.g.,
encryption, copy controls) designed to prevent unauthorized access and use.
● Copyright Holder's Interest: TPMs are seen as essential for copyright holders
to protect their investments in digital content, prevent piracy, and maintain control
 over their distribution channels. They provide a first line of defence in the digital
environment.
● Individual User's Interest/Impact: The primary concern for individual users is
that TPMs can act as an absolute barrier, preventing them from exercising their
legitimate rights under copyright exceptions. For example, if a user legally owns
an e-book but its TPM prevents text-to-speech conversion for accessibility
purposes, or if a student cannot extract a quote for a research paper due to a
TPM, their statutory rights are effectively nullified. Section 36A(2) provides very
narrow exceptions (law enforcement, national security, statutory functions), but
notably does not include general copyright exceptions (like fair dealing or
accessibility for persons with disabilities under Section 13(2)(r) & (s)). This
creates a "chilling effect" where legitimate non-infringing uses are technologically
impossible, leading to potential disputes between copyright holders asserting
TPM rights and users asserting statutory exceptions.
● Critical Analysis: Malaysia's TPM provisions are effective in protecting copyright
holders but create an imbalance by largely failing to accommodate legitimate
user access under statutory exceptions. This can be a significant source of online
copyright disputes, as users might feel their legal rights are being undermined by
technological controls.
● Comparison:
○ United States (DMCA Section 1201): The US also has strong anti-
circumvention laws but provides a more balanced approach through its
unique "triennial rulemaking" process. Every three years, the Librarian of
Congress grants temporary exemptions to the circumvention prohibition
for specific non-infringing uses where TPMs impede legitimate access
(e.g., for educational uses, accessibility, or repair). This provides a flexible
mechanism to rebalance the interests.
○ European Union (Information Society Directive Article 6): The EU
mandates legal protection for TPMs but also requires member states to
ensure that users who benefit from specific copyright exceptions can still
exercise those exceptions if TPMs prevent them. This often translates to
obligations on copyright holders to provide access to non-TPM protected
versions or through remuneration schemes.

3.2 Rights Management Information (RMI) (Section 36B)

● Purpose: Section 36B prohibits the removal or alteration of RMI (e.g.,

watermarks, metadata identifying author, owner, or terms of use) if done with
knowledge that it will induce, enable, facilitate, or conceal copyright infringement.
 ● Copyright Holder's Interest: RMI is crucial for copyright holders to track their
works, identify legitimate copies, and facilitate licensing. Its protection helps
maintain the integrity of copyright information in the digital chain.
● Individual User's Interest/Impact: For most individual users, RMI does not
directly impact their ability to access or use content. However, knowingly
removing or altering RMI to facilitate infringement (e.g., stripping a watermark to
present content as original) would incur liability. The "knowledge" requirement for
infringement under Section 36B aims to protect innocent users who might
unknowingly interact with RMI.
● Critical Analysis: This provision generally strikes a reasonable balance. It
protects the copyright holder's ability to manage their rights without unduly
burdening the average individual user, provided the user is not attempting to
conceal infringement.
● Comparison: Similar provisions exist in the US (DMCA Section 1202) and EU
(Information Society Directive Article 7), reflecting an international consensus on
the importance of protecting RMI.

In summary, while RMI protection largely achieves a fair balance, the strict application
of TPM laws in Malaysia without flexible exceptions for legitimate uses creates a
significant point of contention and imbalance between copyright holders and individual
users.

4.0 POINT 4: The Dynamic Equilibrium and Remaining

Challenges
The Malaysian legal framework attempts to forge a dynamic equilibrium between the
exclusive rights of copyright holders and the legitimate interests of individual users.

● Strengths in Balance: The broad fair dealing exception provides flexibility for
transformative and socially beneficial uses by individuals, while the transient
copy exception ensures that everyday online activities do not constitute
infringement. These are strong pro-user provisions that facilitate digital
enjoyment and access to information.
● Areas of Imbalance/Challenges for Individual User:
○ TPMs Overriding Exceptions: As critically analysed, the lack of robust,
flexible exceptions to TPM circumvention remains a significant challenge
for individual users seeking to exercise their statutory rights (e.g., for
accessibility, research, education). This can lead to frustration and
disputes where the law theoretically grants a right, but technology
prevents its exercise. This is a key area where the balance tilts heavily
towards the copyright holder's technological control.
 ○ Ambiguity in Fair Dealing Application: While conceptually strong, the
effectiveness of fair dealing for individual users depends on judicial
interpretation. Without clear precedents in various novel online contexts
(e.g., generative AI prompts, data analysis, user-generated content),
individual users may face uncertainty regarding what constitutes fair use.
○ Digital Exhaustion: The ambiguity surrounding the exhaustion principle
for digital copies means that individual users who "buy" digital content
essentially acquire a perpetual license rather than ownership with rights to
resell. This limits the user's control over their digital property compared to
physical goods, benefiting copyright holders by potentially enabling
multiple "first sales."
○ Knowledge Requirement for Authorisation (for users creating
links/embedding): While Section 36(1) provides for secondary liability for
authorisation, for individual users who hyperlink or embed content, the
requirement for "knowledge" of infringement offers some protection.
However, the exact boundaries of "knowledge" (e.g., "ought to have
known" vs. actual knowledge) can be ambiguous, potentially leading to
disputes.
● Challenges for the Copyright Holder (related to individual users):
○ Scale of Infringement: Despite the legal framework, the sheer volume of
individual user infringements (e.g., illegal file-sharing, unauthorized
streaming) remains a significant challenge for copyright holders to monitor
and enforce, particularly against non-commercial users. While the law is in
their favour, practical enforcement is difficult.
○ Difficulty in Proving Knowledge: For secondary liability of individual
users (e.g., authorising, providing links to infringing content), proving the
user's "knowledge" can be difficult, which benefits the user but hinders
enforcement for the copyright holder.

The digital environment constantly reshapes this balance. As AI technologies advance,

creating new forms of content and new ways to interact with copyrighted material, the
existing framework will face further strain, particularly concerning the distinction
between human and AI creative contributions and how they impact individual users'
ability to utilize these new tools.

6.0 WHAT CAN WE DO FOR IMPROVEMENT?

To achieve a more equitable and effective balance between copyright holders and
individual users in Malaysia, the following improvements, drawing from international
best practices, are recommended:
1. Introduce Flexible Exceptions to TPMs (Section 36A):
○ Action: Amend Section 36A(2) or introduce a new mechanism (e.g., a
periodic review process similar to US DMCA 1201 or a general provision
clarifying that TPMs cannot prevent the exercise of statutory exceptions as
in the EU's Information Society Directive). This would allow for legitimate
circumvention for non-infringing purposes (e.g., for accessibility of works
by persons with print disabilities under S.13(2)(r) & (s), for research,
education, or archiving).
○ Rationale: This is crucial to prevent TPMs from becoming absolute
barriers that override users' statutory rights, thereby resolving a key
source of online disputes and ensuring that copyright law's public interest
objectives are not undermined by technology.
2. Promote Judicial Clarity and Guidelines for Fair Dealing:
○ Action: Encourage judicial training and the development of non-binding
guidelines by MyIPO (in consultation with stakeholders) to clarify the
application of the four-factor fair dealing test (Section 13(2A)) to diverse
and emerging online scenarios (e.g., uses of online content for memes,
fan fiction, text and data mining for individual research, or creative
transformations by users).
○ Rationale: Greater clarity will reduce uncertainty for individual users,
empower them to confidently engage in legitimate uses of copyrighted
material, and provide more predictable outcomes in disputes, fostering
creativity and digital literacy.
3. Address the Digital Exhaustion Principle for Individual Users:
○ Action: Explore legislative amendments to clarify the application of the
exhaustion principle to digital works, potentially by defining what
constitutes a "digital sale" and introducing a specific "digital first sale"
doctrine. This might involve requiring technical safeguards to ensure
verifiable deletion of the original copy when a digital work is transferred,
similar to the EU's UsedSoft ruling for software.
○ Rationale: This would grant individual users clearer "ownership" rights
over their legitimately acquired digital content, allowing for a legitimate
secondary market and aligning digital ownership more closely with
consumer expectations from physical goods, thus balancing copyright
holder control with consumer property rights.
4. Public Awareness and Education:
○ Action: Conduct extensive public awareness campaigns by MyIPO,
perhaps in collaboration with educational institutions and NGOs, to
educate individual users about their rights and responsibilities under
copyright law, including fair dealing, the transient copy exception, and the
implications of TPMs.
 ○ Rationale: An informed user base is crucial for reducing unintentional
infringement and for empowering individuals to exercise their legitimate
rights. This proactive approach helps to prevent disputes by fostering a
more knowledgeable online community.

These improvements would collectively foster a more balanced and effective copyright
ecosystem in Malaysia, one that genuinely supports both the creative incentives of
copyright holders and the legitimate access and utilization needs of individual users in
the digital age.

7.0 CONCLUSION
The Malaysian copyright legal framework has made significant strides in attempting to
balance the interests of copyright holders and individual users in the digital world. The
broadened fair dealing doctrine (Section 13(2A)) provides crucial flexibility for legitimate
and transformative uses, while the explicit transient copy exception (Section 13(2)(q))
effectively shields individual users from liability for common online activities like
browsing and streaming. These provisions are vital for ensuring that the internet
remains an accessible and usable platform for the public.

However, a critical examination reveals persistent areas of imbalance. The rigid

application of Technological Protection Measures (TPMs) without sufficient exceptions
for legitimate uses remains a significant challenge for individual users, potentially
overriding their statutory rights and hindering public access. Furthermore, ambiguities
surrounding the practical application of fair dealing in novel digital contexts and the lack
of clarity on the digital exhaustion principle limit users' certainty and control over their
digital content.

To achieve a truly effective and equitable balance, Malaysia must continue to adapt its
legal framework. Introducing more flexible exceptions for TPMs, promoting clearer
judicial guidance on fair dealing, and addressing the complexities of digital exhaustion
are crucial next steps. By proactively engaging with these challenges, drawing lessons
from international experiences, and fostering public awareness, Malaysia can ensure its
copyright law remains robust, predictable, and fair, supporting both a vibrant creative
industry and empowered individual users in the perpetually evolving digital landscape.

Balance of Interest between Copyright Holder

and Service Provider
1.0 INTRODUCTION
The digital landscape is characterized by an intricate ecosystem where copyright
holders seek to protect their intellectual property rights, while service providers (SPs)
facilitate the vast majority of online activities. This creates a fundamental tension:
copyright holders aim to control the reproduction and dissemination of their works,
whereas SPs primarily focus on providing connectivity and hosting services without
incurring disproportionate liability for content they do not create or directly control. The
Malaysian legal framework, particularly the Copyright Act 1987 (CA 1987), attempts to
strike a balance in this dynamic relationship, primarily through exclusive rights, safe
harbour provisions, and the protection of Technological Protection Measures (TPMs)
and Rights Management Information (RMI). This essay will critically examine this
balance, supported by legal authorities and cross-referenced with approaches in other
jurisdictions, to assess the effectiveness of the Malaysian framework in mediating online
copyright disputes between these two crucial stakeholders.

2.0 POINT 1: Exclusive Rights of Copyright Holders and

Potential Liability for Service Providers
Copyright holders are granted a set of exclusive rights under Section 13(1) of the CA
1987, which forms the basis of their control over copyrighted works. These rights
include:

● The right of reproduction in any material form (Section 13(1)(a))

● The right of communication to the public (Section 13(1)(aa))
● The right of distribution (Section 13(1)(e))

Impact on Service Providers (Potential Liability): The broad scope of these rights
means that SPs, due to the technical nature of their operations, are highly susceptible to
potential copyright infringement liability:

● Direct Infringement: SPs are constantly engaged in making temporary copies

(e.g., in RAM, caches) of content as they transmit, route, and host data. Even
without intending to infringe, these technical copies could, in a strict
interpretation, be seen as "reproductions" under Section 13(1)(a) CA 1987.
Furthermore, services that enable users to upload and share content could be
deemed to "communicate to the public" by making works available.
○ Example: An ISP transmits an infringing movie file. A hosting provider
stores an unauthorized song. A search engine caches a pirated webpage.
Each of these technical acts involves "reproduction" or "communication."
● Secondary Liability: This is the most significant concern for SPs. They can be
held liable for their users' direct infringements if they are deemed to have
"authorised" the infringement (Section 36(1) CA 1987) or to have substantially
 contributed to it. The sheer volume of content transmitted and stored means that
SPs could be overwhelmed by potential claims if a strict "authorisation" standard
were applied without specific liability limitations.
○ Example: A file-sharing website (OSP) allows users to upload and
download copyrighted music. The OSP might be deemed to have
authorised infringement if it had the power to prevent the act, a sufficient
relationship with its users, and failed to take reasonable steps (applying
the University of New South Wales v Moorhouse test).

Copyright Holder's Perspective: From the copyright holder's viewpoint, SPs are
crucial enablers of online infringement. Without SPs, large-scale digital piracy would be
impossible. Therefore, copyright holders demand mechanisms to hold SPs accountable,
often arguing that SPs should take more proactive steps to prevent infringement,
especially when they derive substantial financial benefit from their services. They fear
that unchecked infringement through SP networks would devalue their works and
undermine their ability to control and monetize their intellectual property. The high
potential for liability for SPs, however, would likely stifle internet growth due to
"extremely high costs for them and it will cause discouragement for people to join in
business of service providers" (5.0 Limitation of Liability (Incomplete).pdf, Page 1). This
underscores the need for a balanced framework.

3.0 POINT 2: Safe Harbour Provisions – Limiting Service

Provider Liability
Recognizing the indispensable role of SPs and the impracticality of holding them strictly
liable for all user-generated content, copyright laws globally, including Malaysia's, have
introduced "safe harbour" provisions. These provisions limit SP liability provided they
meet certain conditions, thereby striking a crucial balance between copyright
enforcement and internet functionality.

Malaysia's key safe harbour provisions are found in Part VIB of the CA 1987 (Sections
43A-43L), introduced in 2012:

2.1 Mere Conduit (Section 43C)

● Purpose: This provision exempts SPs (primarily ISPs) from liability when they
act as a "mere conduit" for the transmission or routing of data. This applies
where the SP does not initiate, select, or modify the content, essentially
operating as a passive carrier.
● Conditions: The transmission must be automatic, technical, passive, and the SP
must not select the recipients or the content.
 ● Effectiveness for SPs: This is highly effective in protecting ISPs. It
acknowledges that they cannot reasonably monitor the vast amount of data
flowing through their networks. This protection is fundamental for the internet's
basic operation and encourages investment in network infrastructure.
● Comparison: This mirrors Section 512(a) of the US Digital Millennium Copyright
Act (DMCA) and Article 12 of the EU E-Commerce Directive (2000/31/EC).
These provisions are globally accepted as essential for internet functionality.

2.2 System Caching (Section 43D)

● Purpose: This section limits liability for SPs who temporarily store copies of
works for efficiency, making them available to subsequent users (e.g., frequently
accessed webpages being cached closer to users).
● Conditions: The caching must be an "automatic technical process," "in response
to an action by a user," "for the purpose of making the work available to
subsequent users," and the SP must not modify the content.
● Effectiveness for SPs (with critique): While intended to protect SPs and
improve internet performance, Section 43D has a notable practical flaw. Section
43D(2) states that the safe harbour is lost if the SP fails to remove or disable
access to the cached copy upon notice, even if the original infringing material
remains on the originating network. This places an impractical burden on caching
SPs, as they would continuously re-cache the content, leading to an endless
cycle of takedown notices. This particular condition diminishes the practical
effectiveness of this safe harbour and creates friction with copyright holders.
● Comparison: This contrasts sharply with the US DMCA 512(b) and EU E-
Commerce Directive Article 13, which generally require the cached material to be
removed only if the original infringing material has been removed or disabled at
the originating site. This difference makes Malaysia's caching safe harbour less
effective and less aligned with international best practices.

2.3 Storage at User's Direction and Information Location Tools (Section 43E)

● Purpose: This is the most critical safe harbour for Online Service Providers
(OSPs) who host user-generated content (e.g., social media, video-sharing
platforms) or provide information location tools (e.g., search engines). It limits
liability if the infringement occurs "by reason of" the content being stored "at the
direction of a user" or by "referring or linking a user" to infringing material.
● Conditions: The SP must not have "actual knowledge" of the infringement or be
aware of "facts or circumstances of which the infringing activities is apparent"
(the "red flag" test), and must comply with a "notice and takedown" procedure
(Section 43H). The SP must also not receive a direct financial benefit attributable
 to the infringing activity where the SP has the right and ability to control such
activity (Section 43E(1)(ii)).
● Effectiveness for SPs: This provision is largely effective in protecting major
OSPs in Malaysia. It shifts the primary enforcement burden to copyright holders
(through the notice and takedown system) while requiring SPs to act
expeditiously on known infringements. The "red flag" test prevents a general
monitoring obligation, which would be impossible for large platforms. Cases like
UMG Recordings Inc v Veoh Networks 620 F Supp 2d 1081 (CD Cal 2008) and
Viacom International v YouTube 718 F Supp 2d 514 (SDNY 2010) (US) illustrate
judicial interpretation of the "red flag" test, generally favouring SPs in the
absence of specific knowledge or active inducement.
● Comparison: This provision is heavily influenced by and largely aligns with
DMCA 512(c) and 512(d). However, the EU's recent DSM Directive (Article 17)
represents a significant rebalancing, placing more direct responsibility on online
content-sharing service providers to obtain licenses or proactively prevent the
availability of unauthorized works, moving beyond a pure notice-and-takedown
regime for large platforms. This suggests a potential future direction for
Malaysian law to consider for major content-sharing platforms.

Overall, Malaysia's safe harbour provisions generally achieve a reasonable balance,

protecting SPs from impossible monitoring duties while providing copyright holders with
tools for enforcement. However, the system caching provision remains a weak link.

4.0 POINT 3: Technological Protection Measures (TPMs)

and Rights Management Information (RMI)
TPMs and RMI are technological safeguards employed by copyright holders to protect
their digital works. Malaysian law provides legal protection against the circumvention of
these measures and the alteration of the information they carry, impacting the
relationship between copyright holders and service providers.

3.1 Technological Protection Measures (TPMs) (Section 36A)

● Purpose: Section 36A prohibits the circumvention of "effective technological

measures" that control access to or restrict acts (e.g., reproduction) relating to
copyrighted works. This means it is illegal to bypass encryption or copy controls.
● Copyright Holder's Interest: Copyright holders rely on TPMs as a technical
"fence" to secure their digital content and control its distribution. The legal
protection of these measures (anti-circumvention laws) is crucial for their
business models in the digital age, as it provides a legal remedy against those
 who develop or distribute tools designed to break these locks. This helps
copyright holders maintain market control and reduces piracy.
● Service Provider's Interest/Impact: For SPs, dealing with TPMs can be
complex. While they are generally not directly liable for circumvention (unless
they actively provide tools for it), they must ensure their platforms do not facilitate
it. More critically, the strictness of TPM laws can sometimes conflict with
interoperability or legitimate uses facilitated by SPs. For instance, a cloud service
or archival service might face challenges in processing or storing content with
certain TPMs if such processing inadvertently involves circumvention.
● Critical Analysis: While effective in deterring explicit circumvention tool
providers, the strictness of Malaysia's Section 36A, with its very narrow
exceptions, can indirectly create tension for SPs by potentially restricting
legitimate technological innovation that might involve bypassing TPMs for non-
infringing purposes (e.g., data analysis, interoperability solutions, or content
delivery methods).
● Comparison:
○ United States (DMCA Section 1201): The US has strong anti-
circumvention laws, but also includes a unique "triennial rulemaking"
process that allows for temporary exemptions to the prohibition for specific
non-infringing uses where TPMs impede legitimate access. This provides
a more flexible approach to balance TPM protection with broader public
and technological interests, which can also benefit SPs by clarifying
boundaries.
○ European Union (Information Society Directive Article 6): The EU
mandates legal protection for TPMs but also often requires member states
to ensure that users benefiting from specific copyright exceptions can still
exercise those exceptions if TPMs prevent them, potentially through
obligations on rights holders to provide access to non-TPM protected
versions.

3.2 Rights Management Information (RMI) (Section 36B)

● Purpose: Section 36B prohibits the removal or alteration of RMI (e.g.,

watermarks, metadata identifying author, owner, or terms of use) if done with
knowledge that it will induce, enable, facilitate, or conceal copyright infringement.
● Copyright Holder's Interest: RMI is vital for copyright holders to identify their
works, track their usage, and manage licensing. Its legal protection ensures that
this crucial identifying information remains intact, supporting enforcement and
business models.
● Service Provider's Interest/Impact: SPs generally benefit from RMI as it helps
them identify copyrighted content and comply with takedown notices. However,
 for SPs that engage in content processing or transformation, there's a need to
ensure RMI is not inadvertently altered or removed, especially if it's done without
the "knowledge" required for infringement.
● Critical Analysis: This provision generally strikes a reasonable balance. It
protects the copyright holder's ability to manage their rights without unduly
burdening SPs, provided SPs are not attempting to conceal infringement. The
"knowledge" requirement for infringement under Section 36B provides a
necessary safeguard for SPs.
● Comparison: Similar provisions exist in the US (DMCA Section 1202) and EU
(Information Society Directive Article 7), reflecting an international consensus on
protecting RMI.

In essence, while RMI protection generally fosters cooperation, Malaysia's strict TPM
laws can create an imbalance, potentially hindering certain SP activities that might
inadvertently interact with TPMs for legitimate purposes.

5.0 POINT 4: Overall Balance and Challenges for Service

Providers and Copyright Holders
The Malaysian legal framework, through its combination of exclusive rights, safe
harbour provisions, and TPM/RMI protection, attempts to manage the complex
relationship between copyright holders and service providers.

Strengths in Balance:

● Clear Safe Harbours for Core Functions: The mere conduit (Section 43C) and
basic hosting/information location tool (Section 43E) safe harbours are largely
effective, providing essential protection for SPs to operate without being crippled
by liability. This is a significant win for SPs and crucial for the internet's growth.
● Notice and Takedown System: The framework relies on a notice and takedown
system (Section 43H) as the primary enforcement mechanism, which places the
initial burden of identification on copyright holders while requiring SPs to act upon
notification. This provides a clear process for copyright holders to enforce their
rights against infringing content.
● Legal Backing for TPMs/RMI: Sections 36A and 36B provide necessary legal
protection for digital security measures, which is vital for copyright holders to
control their digital assets and combat piracy.

Areas of Imbalance/Challenges:
 ● System Caching (Section 43D(2)) Flaw: As discussed, the condition requiring
removal of cached content even if the original infringing material remains online
creates an undue burden on SPs and impacts internet efficiency. This tilts the
balance unfairly against SPs.
● "Knowledge" Requirement for Enforcement: While providing protection for
SPs, the high bar for proving "actual knowledge" or "red flag" awareness (Section
43E(1)(i)) can make it challenging for copyright holders to successfully enforce
against certain infringements, particularly for complex or frequently re-uploaded
content. The offence of misrepresentation (Section 43I) for false notices, while
important, can also make copyright holders overly cautious in issuing notices.
● TPMs Overriding Exceptions: The lack of flexible exceptions to anti-
circumvention laws (Section 36A) means TPMs can become absolute barriers,
potentially hindering SPs from developing or offering services that might involve
circumvention for legitimate (non-infringing) purposes. This gives copyright
holders near-absolute control over access to their works, potentially at the
expense of technological innovation and interoperability, which are key interests
for SPs.
● Monitoring Obligations: While the safe harbours preclude a general monitoring
obligation, the increasing calls from copyright holders for greater proactive
measures from SPs (especially large content-sharing platforms) indicate a
continuing tension. The EU's DSM Directive (Article 17) reflects a global shift
where major platforms might face greater responsibility for managing user-
uploaded copyrighted content, moving beyond a purely passive role. This could
put pressure on Malaysia to evolve its framework.
● Cost of Compliance: Even with safe harbours, SPs incur significant costs in
implementing notice and takedown procedures, managing content, and dealing
with legal disputes. This is a constant balance point, particularly for smaller SPs.

The effectiveness of the Malaysian framework in navigating online copyright disputes

between copyright holders and service providers is generally good but has specific
areas that could benefit from refinement to ensure a more equitable and practical
balance for the digital future.

6.0 WHAT CAN WE DO FOR IMPROVEMENT?

To achieve a more equitable and effective balance between copyright holders and
service providers in Malaysia, the following improvements, drawing from international
best practices, are recommended:

1. Refine Section 43D(2) for System Caching:

 ○ Action: Amend Section 43D(2) to stipulate that a caching service provider
is only required to remove cached infringing material if the original
infringing material has been removed or disabled from its originating
online location.
○ Rationale: This aligns Malaysia's system caching safe harbour with the
more practical and effective approaches seen in the US (DMCA 512(b))
and the EU (E-Commerce Directive Article 13). It removes an undue
burden on SPs, promotes efficiency in content delivery, and reduces
unnecessary disputes arising from technical re-caching. This fosters a
healthier environment for SPs and benefits overall internet performance.
2. Introduce Flexible Exceptions to TPMs (Section 36A):
○ Action: Amend Section 36A(2) or introduce a new mechanism (e.g., a
periodic review process similar to US DMCA 1201) to allow for legitimate
circumvention for non-infringing purposes (e.g., for interoperability,
security research, or content analysis by SPs for legitimate purposes).
○ Rationale: This is crucial to prevent TPMs from becoming absolute
barriers that hinder technological innovation and the development of
legitimate services by SPs, which might involve technical interaction with
protected content for non-infringing reasons. It rebalances the scales
slightly, acknowledging that absolute technological control by copyright
holders can stifle broader digital development.
3. Enhance Clarity on "Red Flag" Knowledge for SPs (Section 43E):
○ Action: Provide more detailed guidance, perhaps through ministerial
orders or judicial precedents, on what specific circumstances would
constitute a "red flag" for a reasonable SP. This would give SPs clearer
criteria for their liability threshold.
○ Rationale: Clearer rules reduce legal uncertainty and compliance costs
for SPs, particularly for new entrants and local tech companies. This
fosters a more predictable regulatory environment, encouraging
investment and growth in the digital services sector, while still ensuring
SPs respond to apparent infringements.
4. Consider Future Evolution of SP Liability for Large Platforms:
○ Action: While not an immediate amendment, Malaysia should closely
monitor international developments, particularly the implementation and
impact of the EU's DSM Directive (Article 17) on major online content-
sharing service providers. This may inform future policy discussions
regarding potentially greater responsibilities for large platforms that
actively organize and promote user-uploaded copyrighted content.
○ Rationale: As digital platforms grow in influence, the balance of
responsibility for content management may shift. Being aware of these
 global trends allows Malaysia to anticipate future needs and maintain
competitiveness in its legal framework.

These improvements would collectively strengthen the Malaysian legal framework,

ensuring it remains robust, predictable, and fair, supporting both the creative industries
and the vital service providers that underpin Malaysia's digital economy.

7.0 CONCLUSION
The Malaysian copyright legal framework has made commendable efforts to balance
the intricate interests of copyright holders and service providers in the digital
environment. The robust exclusive rights granted to copyright owners provide the
necessary incentives for creation, while the comprehensive safe harbour provisions in
Part VIB of the CA 1987 protect SPs from crippling liability, ensuring the fundamental
functionality and growth of the internet. The reliance on a notice and takedown system
is a pragmatic approach that acknowledges the operational realities for SPs.

However, a critical analysis reveals specific areas where this balance can be refined.
The problematic condition within the system caching safe harbour (Section 43D(2)) and
the potentially rigid application of TPM laws (Section 36A) without sufficient flexible
exceptions create friction and an imbalance that could hinder technological innovation
and efficient content delivery. While the "knowledge" standard for SP liability offers
protection, it can pose enforcement challenges for copyright holders.

To achieve a truly effective and equitable balance, Malaysia must continue to adapt its
legal framework. By refining the caching provisions, introducing flexible exceptions to
TPMs, providing clearer guidance on "red flags," and monitoring international shifts in
platform responsibility, Malaysia can ensure its copyright law remains robust,
predictable, and fair. This continuous recalibration will be key to fostering a thriving
digital ecosystem that supports both creative industries and the service providers
essential for their reach and sustainability.