January 19, 2013 | By Maira Sutton

Guest Memo: Copyright in Malaysia and the Fight For a Positive International IP Agenda

We asked leading digital rights activists who have been involved in Trans-Pacific Partnership (TPP) negotiations to discuss copyright law and their advocacy work in the countries where they are based.

This week, Jeremy Malcolm of Consumers International explains recent changes to Malaysia’s copyright law, and his current work in pushing for positive global standards that would protect the rights of users against abusive copyright policies. Jeremy is the Project Coordinator for Intellectual Property and Communications. He is based in Kuala Lumpur, Malaysia.

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Malaysia's copyright law changed last year with the Copyright (Amendment) Act 2012, and the changes were a mixed bag. On the positive side, the existing fair dealing exception to copyright—the more narrowly defined counterpart to "fair use" in US law—was broadened, and a specific exception for temporary electronic copies was added. But in exchange, infringers are now liable for much tougher penalties, including six-figure statutory damages. Tougher protections for digital locks are included too, including a crackdown on the sale of circumvention devices - though unlike in the US, you are free to break a digital lock that restricts you from exercising your fair dealing rights.

Jeremy Malcolm of Consumers International
Jeremy Malcolm of Consumers International

There were some copyright changes that Malaysia was pressured to adopt by the United States, but which didn't find their way into these latest amendments. It was proposed to make the possession of even a single copy of infringing content a criminal offence, and to make landlords of premises where it was sold liable too. Since most Malaysians possess at least one pirated DVD, this caused an uproar in the local newspapers, and the proposal was dropped. Though I don't condone piracy, their reaction is understandable when you consider just how expensive legitimate content is here. Malaysia's favourite breakfast dish is called nasi lemak, and you could buy 90 plates of it for the cost of one original Blu-ray disc.

One of the big problems is that copyright is a pretty invisible issue politically—except perhaps in the United States and Europe, in the wake of the successful protests over ACTA, SOPA and PIPA. Elsewhere in the world, people don't think about copyright, and newspapers don't report on it.  Therefore, there is little political risk for the government in, for example, extending the term of copyright protection by 20 years in exchange for increased market access. Even if the value lost to the local economy from the extension of copyright outweighs the value gained from new exports of local goods, the new exports are much more newsworthy and will gain the government more votes than it loses from the extension of copyright.

Although I am based in Malaysia, the work that I do for Consumers International is global. We see it as important to promote some global standards for access to knowledge that can offset the push from rights-holders for ever-increasing levels of copyright protection and enforcement.

Some of this we have already seen happening through the good work being done at the World Intellectual Property Organisation (WIPO) to introduce new minimum copyright exceptions for the blind and visually impaired, and for libraries. The problem is that historically WIPO has been an organisation for the promotion of intellectual property rights, and so having to balance these rights against other interests does not come naturally.  It is made all the harder by the fact that the majority of the NGOs who participate in WIPO are themselves rights-holder organisations, leaving the voice of consumers sidelined.

Therefore our approach has been to try a different venue, and we have settled on UNCTAD, the UN Conference on Trade and Development.  It too has a mandate over intellectual property issues, but from a development perspective, which makes it more favourable towards the promotion of access to knowledge.

We have developed some proposals for UNCTAD to update the UN Guidelines for Consumer Protection to protect consumers from abuse by rights-holders: for example, preventing the use of digital locks to cut out your fair use or fair dealing rights, stopping them from pushing updates to your digital devices that take away functionality, and requiring that if you're sold a digital product such as an e-book, it should come by default with all of the same rights that you'd have if you purchased a hard-copy.

We are now reviewing and drafting our proposed text for amendments to the UN Guidelines, and will have final proposals this March. Before the proposals finally come before governments in July this year, we will need your help to support these proactive amendments that assert the rights of users over the single-minded interests of the content industry.


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