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Malaysia: Copyright collecting societies in the spotlight

In recent months, business owners and associations in Malaysia have, via various channels, vented their frustration over the high-handed manner in which a collecting society for performers had been collecting its fees from music users, such as retailers and shopkeepers.

There was confusion over the nature of the copyright fees and also disagreement over the quantum imposed. More importantly, two collecting societies have been set up to collect on behalf of performers, and as a result, music users queried the need to pay two collecting societies for the same copyright.

There are four music copyright collecting societies in Malaysia. The Music Authors Copyright Protection (MACP) collects royalties on behalf of songwriters and composers for public performance of music, while Public Performers Malaysia (PPM) collects royalties on behalf of recording companies. Performers & Artistes Rights Malaysia (PRISM) and Recording Performers Malaysia (RPM) collect fees on behalf of performers.

The nature of the rights administered by these collecting societies is different. PRISM and RPM seeks "equitable remuneration" from users for public use of music. This right is set out in Section 16B of the Malaysian Copyright Act, which provides performers, such as singers, with an entitlement to ask for equitable remuneration for the communication to the public of sound recordings, which includes commercial publication, public performance and broadcast, from the user.

There is no definition of equitable remuneration in the Copyright Act and it is likely that such remuneration must have a correlation between the economic value of the benefit provided by the collecting society, the actual use of the copyrighted works and the royalty charged.

If there is no agreement to make such payment to PRISM or RPM, the recourse will be for PRISM and RPM members to apply to the Copyright Tribunal to determine the amount payable as equitable remuneration. Section 16B merely provides performers an entitlement to "equitable remuneration", which can be determined by the Copyright Tribunal. Disagreement on the equitable remuneration to be paid does not entitle PRISM and RPM members to bring a civil action for infringement.

The Controller of Copyright has authority to exercise control over licensing bodies such as PRISM and RPM, and may revoke a declaration given to a licensing body if he is satisfied that the licensing body is not acting in accordance with its rules or in the best interests of its members or their agents.

It remains to the seen whether the Controller of Copyright will step in to help PRISM and RPM collaborate as a single collecting society for performers in Malaysia and address the recent concerns of music users in the country.

Chew Kherk Ying Chong Tze Lin

Wong & Partners
Level 21, The Gardens South Tower
Mid Valley City, Lingkaran Syed Putra
59200 Kuala Lumpur
Tel: +603 2298 7888
Fax: +603 2282 2669


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