What can be considered an act that infringes upon copyright law?
Have you ever came across two distinctive work only to realize that they actually look, sound or feel similar? If you have, you are not alone. Chances are, one of the work have copied the other. That is to say, one of the works is an infringing copy and could potentially breach copyright law.
What can be deemed to be an “infringing copy” of copyright law?
Whether something is deemed to be an infringing copy of copyright law, two elements must be satisfied, namely:
- There must be a similarity between the original work and the potentially infringing work; and
- The source of the potentially infringing work must be derived from the original work.
What can be copyright?
Under Section 7 of Copyright Act (‘the Act’), the following works are eligible for copyright:
- Literal works;
- Musical works;
- Artistic works;
- Sound recordings; and
Bear in mind that ideas are not protected by the Act unless the work has been recorded down into something that is tangible. Without further delay, let us explore some of the things a person does that may infringe copyright law.
(See previous article on How to Protect Your Brilliant Ideas)
Selling/Hiring or offers for sale/hiring
Selling or hiring occurs when a person renders the infringing copy to another by means of trading it for a sum of money or allowing another person to temporary use the infringing copy for a sum of money. For example, a person sells pirated DVDs or rent out DVD illegally. Note that the person only needs to put up the infringing copy for sale/hire. There is no need for an actual transaction to occur for a person to be caught under this definition.
Alternatively, a person can be liable for offering the infringing copy for sale/hire. This occurs when a person puts up the infringing copy for display, inviting another person to purchase or hire the infringing copy for a sum of money.
Distribution arises when an infringing copy is either delivered from one location to another or it is delivered to several persons or places. Therefore, a person can be caught under the Act if he is found liable for shipping pirated DVDs from his house to the market or where he is distributing the pirated DVDs to his friends. The individual does not need to be making a profit or money out of such transaction i.e. the person can be liable for distribution even though he is distributing the infringing copies for free.
Possession arises when an individual has sole control over the infringing copy to the exclusion of another and is not using it for his own private and domestic use.
How does the law determine if an individual is in possession of an infringing copy? In Toh Ah Loh & Anor v R, the court held that all the following elements must be present when determining whether a person is in possession of an infringing copy:
- The individual must possess the infringing copy;
- The individual must aware that he is in possession of the infringing copy. In this respect, it could be said that the person is aware that he is in possession of the infringing copy if he holds sole control of the said infringing copy. For example, he holds the key to the place that holds the said infringing copy; and
- The individual must know the nature of the infringing copy possessed.
Next, how do we know whether the infringing copy was for the person’s own private and domestic use? There is a general presumption that if a person owns more than 3 or more of the infringing copies, such possession will be deemed not to be for his own personal use unless he can prove otherwise. Does that mean a person can own one copy and claim that it does not fall under the general presumption? The answer is no, as the person still has to prove by way of evidence that the copy is for his own private and domestic use.
All elements need to be satisfied before a person is deemed to be in possession of an infringing copy.
Possession of contrivance
A person can be caught under this section if he is found to be in control of machinery capable of reproducing the infringement copies, such as photocopy machines and computers to duplicate the pirated DVDs. However, merely having possession of the machinery is not sufficient for the prosecution to prosecute a person under this particular section. Each case will be dealt with on a case to case basis to determine if a person can be liable for copyright infringement under this section.
1. Francis Day & Hunter v Bron  CH 587
3. Section 7 (3)(b), Copyright Act 1987
4. Section 41(1)(b), Copyright Act 1987
5. Trade Facilities Pte Ltd & Ors v PP  2 SLR 475
6. Fisher v Bell  3 All ER 731
7. Section 41(1)(c), Ibid
8. Article 61, Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement)
9. Section 41(1)(d), Ibid
10. Chan Pean Leon v PP  MLJ 237
11.  MLJ 54
12. Cartier International BV v Lee Hock Lee  1 SLR 616
13. Section 41(1)(g), Ibid