According to leaked text on limitations and exceptions, Malaysian negotiators have supported a proposal that would allow signatory countries to implement limitations and exceptions to copyright in accordance with domestic laws. Many civil society groups, including members of the Fair Deal Coalition, have expressed support for this position, which has been staunchly opposed by both the US and Australia.
[NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.]
[NZ/CL/MY/BN/VN propose; US/AU oppose: Paragraph 1 permits a party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws. Similarly, these provisions permit a Party to devise new] [US/AU propose; NZ/CL/MY/BN/VN oppose: its understood that each party may, consistent with the foregoing, adopt or maintain] exceptions and limitations for the digital environment.]
–Excerpt from leaked TPP text on copyright limitations & exceptions
However, Malaysia’s position on copyright issues in the TPP has been undermined by recent changes to its copyright law. In 2012, Malaysia amended Copyright Act 1987 to include tougher penalties for infringers, with damages of up to six figures and tougher digital lock protections. This change was purportedly, at least in part, a response to pressure exerted on the government by the USTR. In 2011, the USTR placed Malaysia on the Special 301 Watch List despite having made efforts towards protecting intellectual property.
“Malaysia remains on the Watch List. Malaysia continues to make positive progress with respect to the protection and enforcement of IPR. In 2010, Malaysia introduced amendments to its copyright law that intended to, among other things, implement the WIPO Internet Treaties and prohibit unauthorized camcording of motion pictures in theaters…Nonetheless, enforcement efforts are hampered by a lack of follow-up investigations and effective prosecutions. Pirated and counterfeit products continue to be widely available in Malaysia, and book piracy remains a significant problem.”
-Excerpt from 2011 Special 301 Report
Following the 2012 amendment, USTR removed the country from the list as a result of the changes to the copyright regime.
“Malaysia passed copyright amendments that significantly strengthen its protection of copyrights and its enforcement against piracy….in recognition of Malaysia’s recent improved efforts with respect to IPR protection and enforcement, the United States has removed Malaysia from the Watch List. The United States will continue to work closely with Malaysia to ensure that progress is sustained and to address our remaining areas of concern, including through the Trans-Pacific Partnership negotiations.”
–Excerpt from 2012 Special 301 Report
Despite having introduced some more stringent copyright protections, the Malaysian government has attempted to maintain a certain level of balance in its legislation. For example, the 2012 amendment actually broadened copyright fair deal exceptions in addition to introducing a new exception for temporary electronic copies. As well, the amendment limited the liability of service providers in cases of infringement. In addition, some of the proposed measures pushed by the United States were simply too politically contentious to pass through the Malaysian parliament. For example, it was proposed that possession of a single copy of infringing content should be a criminal offense, even making landlords of an establishment where it was sold liable.
For more information, visit our partner organizations in Malaysia
The TPP Will Also Affect Access to Medicines and Innovation in Malaysia: Find out more
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