As the national trade association representing over 110 recording companies in Malaysia, one of the main objectives of the Recording Industry Association of Malaysia (RIM) is to protect and enforce the rights of its members.

Established in 1978, RIM is also the music industry's frontline copyright enforcement organization and works closely with government agencies to tackle music piracy.

Forms of music piracy

As experienced the world over, piracy has dogged the evolution of formats for recorded music, from vinyls, cartridges, cassettes, compact discs (CDs), video compact discs (VCDs), digital video discs (DVDs) and now various digital formats. These are easily transmitted over mobile telephones and online and used in an exploding multitude of computerized devices.

While digital piracy is becoming an increasingly serious concern as digital music formats continue to gain traction with music consumers, physical piracy – especially in CD form – remains the bane of the music industry in Malaysia for the time being.

Dealing with the pirate shops

The primary focus of RIM's enforcement activities has always been on bringing to book those involved in direct infringement of its members' copyright. Hence, pirates involved in the manufacture, distribution and sale of sound and music video recordings have long been the target of RIM's anti-piracy unit.

With illegal manufacturing by CD plants in Malaysia gradually being curbed through exemplary efforts by the enforcement division of the Malaysian Ministry of Domestic Trade and Consumer Affairs, RIM began concentrating more attention on widespread piracy in fixed premises such as shopping malls and shops.

However, RIM often found its efforts thwarted by the existence of illegal businesses and syndicates which operated in such fixed premises. They invariably operated without proper business registration documents and used so-called expendable individuals such as young school leavers to run their shops and stalls.

Compounding matters is the fact that some landlords, especially those in charge of shopping complexes and large premises, often do not affix identifiable unit addresses to individual outlets or stalls within their premises, thereby making identification of such illegal businesses by way of their addresses or location extremely difficult.

Unsurprisingly, these illegal pirate businesses have been regularly able to evade legal action, whether criminal or civil in nature.

Faced with losing the constant cat and mouse battles with such illegal music retailers, RIM was forced to explore more innovative methods within the law to tackle blatant sales of pirated music in shopping complexes throughout the nation.

Getting tough on landlords

From its nationwide investigations, RIM found that many of the tenants selling pirated music often pay well above market rents to property owners or landlords. It would therefore be fair to say that these landlords obtain direct financial benefits from the illegal trade of their tenants.

For this reason alone, some landlords are loathe to insist that their pirate tenants cease their illegal business even though most tenancy agreements contain a standard clause which allows the landlord to terminate the tenancy of a tenant who uses the rented premises for illegal or unlawful purposes.

Bearing in mind that landlords are often people or corporations of means who are easily located (as opposed to tenants without static assets who find it all too easy to evade legal action), RIM found that in addition to ongoing awareness campaigns, deterrent action was still required to force landlords to take more responsibility to address music piracy within their premises.

While the Malaysian Copyright Act of 1987 (Act 332) does not expressly impose a liability on anyone other than a direct infringer, RIM believes that common law principles of tort will apply in holding the landlord liable for being negligent as to the occasioning of unlawful activity in premises that they own and/or control.

In RIM's case scenario, prior to the filing of civil action against landlords who have leased or rented out premises which are being used by tenants or occupiers for activities which constitute acts of copyright infringement, RIM issues several written notices to both the tenants and the landlords.

Having been formally notified of pirate activity being carried out in premises within their ownership or control, these landlords can no longer deny knowledge of such illegal activity and are therefore placed under a duty of care to music copyright holders represented by RIM to ensure that they do not permit their tenants to continue with such pirate activity. These landlords should accordingly be held liable for breach of duty if they fail, refuse and/or neglect to take reasonable action against their pirate tenants.

Criminal charges

Notwithstanding RIM's warning notices, there remain landlords who refuse to exclude a tenant or terminate an existing lease on the basis of the tenant indulging in the illegal trade of pirated music – an activity which is clearly both a criminal and civil offence under the Malaysian Copyright Act.

Charles Alexander Monteiro (suing on behalf of RIM) & 2 Ors v Cempaka Properties Sdn Bhd & 2 Ors was filed in the Malaysian High Court on March 20 2006 and became the first case in Malaysia to be filed against a property owner for knowingly permitting a tenant to sell and continue to sell pirated music. RIM has since filed four more similar civil actions against landlords.

In addition to initiating civil action against the landlords, RIM has also successfully lobbied the Malaysian government to file Malaysia's first ever criminal charges of aiding and abetting the commission of copyright infringement against landlords who knowingly permit their tenants to continue trading in pirated music at their premises (Public Prosecutor v Bellwood Sdn Bhd Kuching Sessions Court Criminal Summons No. 63-91-06-1/11).

The concept of holding landlords liable for the illegal actions of their tenants is however not new in Malaysia, with the Common Gaming Houses Act 1953 already holding landlords liable for the illegal gambling activities of their tenants.

RIM's nationwide landlord liability campaign has achieved significant success to date with close to 50% of music pirates being forced out of fixed premises over the past 18 months. In addition, a number of shopping complexes which were previously well known as retail piracy hubs have now become totally free of pirated music. It is however still early days to predict how RIM's pioneering legal strategy will pan out in the Malaysian courts.

The continuing decline in recording industry revenues has nevertheless dictated that RIM must continue to be creative in addressing music piracy in other areas such as in open-air night markets and in its newer manifestations such as digital music piracy over the air (over mobile and internet networks) and over the counter sales of pirated mobile music ringtones and full tracks by mobile phone and computer equipment dealers.