In the case of Dura-Mine Sdn Bhd v Elster Metering Ltd & Anor [2015] 1 CLJ 887, the Federal Court of Malaysia conclusively decided that the exact original copies of artistic works were not required for the purposes of establishing prima facie evidence of ownership of copyright under the "true copy" requirement within Section 42(1)(a)(iii) of the Copyright Act 1987, and applied the common law position that copyright is not limited to the first or earliest work.
In the present case, Dura-Mine contended that the courts should not have found it to have infringed Elster Metering's copyright. Dura-Mine's argument was based on Elster Metering's statutory declaration submission of modified versions of the original drawings, instead of the original drawings itself. As such, Dura-Mine submitted that the non-original submission invalidated the finding of copyright infringement, as "without the original drawings [one] could not see if there was copyright infringement". Dura-Mine further contended that the modified versions of the drawings, even if substantially similar to the original, lacked originality to enjoy copyright protection.
The Federal Court took the position that for the purposes of Section 42, there was no requirement for the original drawing (original in the sense of not copied or in the sense of the earliest drawing). In this case, the modified version of the original drawings contained a combination of annotations, tabulations and log of modifications, which allowed the original design to be made out and thus constituted a "true copy" which fulfilled the requirement of Section 42. Insofar as the "true copy" of work is concerned, the Federal Court maintained that a "a true and accurate representation of [the] original [work]" is sufficient, which was successfully provided by Elster Metering.
Corresponding to the above, the Federal Court turned onto Dura-Mine's second contention and considered the applicability of copyright for subsequent revisions or modifications made to the original drawings. The Federal Court took the approach that copyright is not limited to the first or earliest work, and the documentation provided had established that Elster Metering was the owner of the copyright in the original design and entire chain of modifications, thereby similarly dismissing Dura-Mine's second argument.
This case establishes two important positions that the Federal Court has taken in respect of both statutory law (the test for "true copy") and common law (existence of copyright in revised or modified work) in the copyright realm.
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Chew Kherk Ying |
Florence Tan |
Wong & Partners
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