DOI: https://doi.org/10.47405/mjssh.v7i12.1951
Cultural and Creative Industries and Value Creation: An Analysis on Malaysian Copyright Laws
Diyana Sulaiman1*
1Faculty of Law, Universiti Teknologi MARA, Shah Alam, 40450 Selangor, Malaysia.
Email: [email protected]
CORRESPONDING AUTHOR (*):
Diyana Sulaiman
([email protected]) KEYWORDS:
Creative industries Copyright
Malaysia CITATION:
Diyana Sulaiman. (2022). Cultural and Creative Industries and Value Creation: An Analysis on Malaysian Copyright Laws.
Malaysian Journal of Social Sciences and Humanities (MJSSH), 7(12), e001951.
https://doi.org/10.47405/mjssh.v7i12.1951
ABSTRACT
The strategic and economic importance of cultural and creative industries that are supported by intellectual property laws has been duly acknowledged. They are instrumental to propel the growth of Malaysia during the 4th Industrial Revolution. The 12th Malaysian Plan (2021- 2025) that was deliberated by the 9th Prime Minister of Malaysia, Dato’ Sri Ismail Sabri bin Yaakob in October 2021 has identified the creative industry as one of the strategic and high-impact industries for the country. The Malaysian government has also agreed in approving the intellectual property fund as one of the programs or main projects to be implemented in the 12th Malaysian Plan to improve the strategic industries. The aim of becoming a high-income nation has been envisioned much earlier with the establishment of Vision 2020 for Malaysia. This article aims to review copyright laws in Malaysia, with a focus on provisions pertaining to ownership and authorship of copyright, and dealings of copyright. The rationale for this approach is due to the fact that ownership, authorship, and dealing of copyright are essential for value creation at the individual and institutional levels, which then could translate to the success of the creative industries at the national level.
Contribution/Originality: This study adds to the existing literature on intellectual property laws and creative industries, through review of copyright laws in Malaysia. It highlights the link between value creation and the laws, where the latter could serve the purpose as the mechanism or instrument in protecting the copyright of the works.
1. Introduction
Creative economy, value creation, and intellectual property have an almost symbiotic relationship. A lack of any of these elements could cause an imbalance, which would fail the desired objectives. The United Nations Sustainable Development Goals highlighted the importance of knowledge and creative economy, UNSDG Ninth Goal, aims to “build resilient infrastructure, promote inclusive and sustainable industrialisation and foster innovation”, the Eighth Goal aims to “promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all”, and the
Seventeenth Goal aims to “strengthen the means of implementation and revitalise the global partnership for sustainable development.”
A creative economy is also known as “Orange Economy” (Buitrago & Duque, 2013) and has been described as an economy “[…] in which people combine an aspiration for ‘the beautiful’ and [include] the use of extreme creativity, with huge market potential, to solve problems worth solving; solutions worthy of our humanity” (Adler, 2011). Another view offered regarding the definition of the creative economy, states it as “[…] the sum of economic activity arising from a highly educated segment of the workforce encompassing a wide variety of creative individuals — like artists, architects, computer programmers, university professors and writers from a diverse range of industries such as technology, entertainment, journalism, finance, high-end manufacturing and the arts”
(Davis, 2006 cited in Stern & Seifert, 2008).
The use of term ‘creative economy’ has been marketed by John Howkins and used more frequently since 2001 (Boccella & Salerno, 2016; Schlesinger, 2016). UNCTAD (2010) drew the connection between the creative economy and creative industries, in the context where “[t]he scope of the creative economy is determined by the extent of the creative industries. […][s]ometimes a distinction is made between the creative and the cultural industries; sometimes the two terms are used interchangeably. A sensible way to proceed is to begin by defining the goods and services that these industries produce”
(UNCTAD, 2010). OECD (2014) defines ‘creative industry’ as “[…] knowledge-based creative activities that link producers, consumers and places by utilising technology, talent or skill to generate meaningful intangible cultural products, creative content, and experiences. They comprise many different sectors, including advertising, animation, architecture, design, film, gaming, gastronomy, music, performing arts, software and interactive games, and television and radio.
The creative industries are often described as integrating the present element of digitalization and modern technology used such as music and filmmaking. Nevertheless, the element of arts and culture also contribute to the creative economy through the flow of various streams of creative work from the industries. Kong et al. (2006) made the following observation, that encapsulates the transition phases of the creative economy:
“[p]rior to the digital era, the domain of ‘culture’ was largely insulated from phases of industrial globalisation when thought of as ‘national culture’ […] The semantic turn in policy to ‘creative economy’ and ‘cultural industries’ has changed this, and often replaced policy directed at maintaining the arts sector (within the nation) in favour of strategies to reorient culture to export markets, enterprise dynamics and skilled business in- migration” (Kong et al., 2006).
In the context of Malaysia, cultural and creative industries include (1) crafts, (2) visual arts, (3) music, (4) performing arts, (5) creative writing, (6) fashion, and (7) textile (Dasar Industri Kreatif Negara). In a broader sense, it contributes to the creative economy of the country. Through the implementation of the National Creative Industry Policy, it was reported that as many as 7799 job opportunities were created and RM674.8 million of investment return was generated between the period of 2010 to 2015 (Bernama, 2016).
On the global scale, UNCTAD reported that the creative economy contributed as much as USD509 billion in 2015 to world trade, with an outlook of growth based on the set of data between the year 2002 to the year 2015 (UNCTAD, 2019). In the year 2008, Malaysia was
ranked number ten, among developing economies in terms of the export of creative goods with a value of USD3.5 million translating to 0.87% of the global market share, with a growth rate of 12.86% between the year 2003 to 2008 (UNCTAD, 2010). Creative industries are regarded as important in the economic development of Malaysia (UNCTAD, 2010).
2. Literature Review
2.1. Value Creation for Cultural and Creative Industries through the Application of Copyright Laws in Malaysia
Intellectual property laws in Malaysia are statutory laws that focus on a number of areas which include copyright, industrial designs, trade mark, geographical indications, and patents. The regulatory body with the jurisdiction to oversee the implementation of the intellectual laws in Malaysia is the Intellectual Property Corporation of Malaysia (MyIPO), an agency established under the auspices of the Ministry of Domestic Trade and Consumer Affairs, Malaysia. For the purpose of this study, focus will be given to the Copyright Act 1987 (hereinafter referred as “Copyright Act”). This section will review the provisions from the Copyright Act that highlights the characteristics of the laws as enablers of value creation for the works created by the authors, which would allow enjoyment of monetary benefits by the copyright owners.
2.1.1. Ownership and authorship of the intellectual property
From the perspective of copyright law, a “work” that has been created by a person or persons (in instances involving work of joint authorship) is entitled to copyright protection. In terms of the legal categorisation of the work, they are provided in Section 7 of the Copyright Act. Broadly, there are six categories of ‘works’ that are eligible for copyright, which are literary works, musical works, artistic works, films, sound recordings, and broadcasts. ‘Literary works’ would include “(a) novels, stories, books, pamphlets, manuscripts, poetical works and other writings; (b) plays, dramas, stage directions, film scenarios, broadcasting scripts, choreographic works and pantomimes;
(c) treatises, histories, biographies, essays and articles; (d) encyclopaedias, dictionaries and other works of reference; (e) letters, reports and memoranda; (f) lectures, addresses, sermons and other works of the same nature; (g) tables or compilations, whether or not expressed in words, figures or symbols and whether or not in a visible form; and (h) computer program” (Section 3 of the Copyright Act). The term “musical work” is defined as “any musical work, and includes works composed for musical accompaniment” in accordance with the said provision.
Section 3 of the Copyright Act also defines “artistic work”, which refers to “(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality; (b) a work of architecture being a building or a model for a building; or (c) a work of artistic craftsmanship […].” This definition excludes a lay-out design within the meaning of the Layout-Designs of Integrated Circuits Act 2000, from the meaning of an artistic work.
The term ‘film’, being one of the creations created and protected by the intellectual property law, is also defined by Section 3 of the Copyright Act. The provision states that “
“film” means any fixation of a sequence of visual images on material of any description, whether translucent or not, so as to be capable by use of that material with or without any assistance of any contrivance – (a) of being shown as a moving picture; or (b) of
being recorded on other material, whether translucent or not by the use of which it can be so shown.”
The definition of “sound recording” states that it is “any fixation of a sequence of sounds or of a representation of sounds capable of being perceived aurally and of being reproduced by any means, but does not include a sound-track associated with a film”
(Section 3 of the Copyright Act).
Concerning “broadcast”, it refers to and is defined as “the transmitting, by wire or wireless means, of visual images, sounds or other information which – (a) is capable of being lawfully received by members of the public; or (b) is transmitted for presentation to members of the public, and includes the transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting service or with its consent” (Section 3 of the Copyright Act).
A review of the interpretation provision that defines the key terminologies concerning the “author” and the “works” protected pursuant to copyright law in Malaysia, reveals that the law protects a wide range of works within the cultural and creative industries.
The works and the creators are essential in the cultural and creative industries, and the creative economy. From textual form to graphic, whether in audio or in pictures, static in words, and moving on the screen, a whole range of works are being protected by the copyright law in Malaysia. This also reveals that there are various manners in terms of how an ‘author’ in the creative industries produced his creative work, as the intellectual property law caters to a variety of types of works within its scope of protection. There is a range of types of works that are protected under copyright law, with various economic benefits that can be enjoyed by the creator of the work or the copyright owner, as well as those who are authorised to enter into dealings involving the intellectual property of the work.
In terms of the first ownership of the copyright for the work produced, Section 26(1) of the Copyright Act states that the copyright for the work qualified for protection pursuant to the Copyright Act, shall vest initially with the author.
In the context of employment, when the work is being produced within the scope of employment, the general presumption of the law provides that the copyright of the said work is transferred to his employer unless there is an express agreement that stipulates otherwise (Section 26(2)(b) of the Copyright Act). With regards to the copyright of the work produced by a maker who was commissioned to do the work, Section 26(2)(a) of the Copyright Act discussed the transfer, as well as the limitation and restriction of the transfer of the copyright. The said provision states that ‘[n]otwithstanding subsection 27(6), where a work – (a) is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship; […] the copyright shall be deemed to be transferred to the person who commissioned the work […], subject to any agreement between the parties excluding or limiting such transfer.’ The application of the provisions allows for the copyright of the work to be transferred to the employer, or the person who commissioned the work to be carried out unless there are specific agreements that limits or restricts such transfer from taking place.
Proving ownership of the copyright to the work could be challenging in some instances, as copyright is created the moment the work is created. Instances of competing claims over the copyright of a work might occur. This could reduce confidence and diminish the
motivation of persons in the cultural and creative industries to continue producing work.
As such, it is important for employment arrangement, or apprenticeship as well as commissioning of work to properly reflect an arrangement or remuneration package that sufficiently reimburses the author, with clarity in terms of the status of the copyright of the work produced by the author. It will also be beneficial for all parties to be adequately informed and empowered concerning the rights and responsibilities of parties under copyright law. The question of balancing the interests, in terms of securing a competitive edge as well as enjoying the economic benefit pursuant to the creative works produced, is equally important for the employer and the potential employee in hiring process.
Employment arrangement and the ownership of the copyright over the work created need to illustrate the need for a balance of interests between the author and the employer. Based on national statistics, 216,811 persons have been reported as being engaged in the year 2015 from the creative industry, with the total amount of salaries and wages that have been paid amounting to RM6,888.5 million (Department of Statistics Malaysia, 2020). Whether this is commensurate with the value of contributions by artists who have authored the works will require further analysis. Employers have also faced a number of challenges, particularly during the COVID-19 pandemic where production activities have slowed down. This is not only a scenario that is seen occurring in Malaysia but also reported within the regional context, as well as in other countries worldwide.
2.1.2. Dealings of copyright
Copyright is a transferable property that could be subjected to dealings. This would enable the author or the owner of the copyright to gain monetary benefit pursuant to commercial arrangements. In Malaysia, having copyright ownership over a particular work grants the owner with a number of benefits pursuant to the Copyright Act. The benefits are enjoyable pursuant to having the ‘exclusive right to control’ a number of conducts in Malaysia, with regards to the whole or substantial part of the whole work.
They are the exclusive rights to control “(a) the reproduction in any material form; (aa) the communication to the public; (b) the performance, showing or playing to the public;
[…] (e) the distribution of copies to the public by sale or other transfer of ownership; and (f) the commercial rental to the public […].” (Section 13(1) of the Copyright Act). This provision describes the model where the exercise of the exclusive right by the owner of the copyright could yield economic benefit.
In terms of transfer of copyright, Section 27 of the Copyright Act provides that “[…]
copyright shall be transferable by assignment, testamentary disposition, or by operation of law, as movable property. (1) An assignment or testamentary disposition of copyright may be limited so as to apply only to some of the acts which the owner of the copyright has the exclusive right to control, or to only part of the period of the copyright, or to a specified country or other geographical area. […] (3) An assignment or licence granted by one copyright owner shall have effect as if the assignment or licence is also granted by his co-owner or co-owners, and subject to any agreement between the co-owners, fees received by any […].” Examples of licensing arrangements include the use of an image created by an artist that could be licensed to be used by a company that specialises in marketing and merchandising. The artist could agree to this licensing arrangement for the use of the said image at a fee. This will give the public the advantage to enjoy the creative work that was produced by the author, which was licensed to be reproduced by another party with the marketing capacity. The artist could further benefit from having the creative work that he produced reaching the public at large, as well as enjoyment of
monetary benefit from the licensing arrangement, and the party who acted as the licensee will also benefit from the transaction accordingly.
This provision also allows the owner of the copyright to enter into an assignment agreement with a party. When entering an assignment arrangement, the owner of the copyright would transfer the said copyright by way of an assignment to the assignee. The terms of the assignment arrangement, could stipulate that it is a full and complete transfer of the copyright to the work, including but not limited to any other rights and liabilities that arise from the copyright that is being assigned. In addition to a full and complete assignment of copyright, a partial and conditional assignment of copyright could also be entered into between parties. This can be seen from Section 27(2) of the Copyright Act, which states that “[a]n assignment […] of copyright may be limited so as to apply only to some of the acts which the owner of the copyright has the exclusive right to control, or to only part of the period of the copyright, or to a specified country or other geographical area.”
3. Methodology
The research employs the doctrinal research method, where the sources of data are derived from statutes, reports by international and government agencies, news reports, as well as works by other scholars. This method suits this research that is drawing analysis on the relationship between copyright laws in Malaysia and the cultural and creative industries.
4. Result
4.1. Cultural and Creative Industries in Malaysia – Economic Potentials through the Application of Copyright Law
During the period of COVID-19 pandemic, the Ministry of Communication and Multimedia, Malaysia has rolled out a short-term initiative known as the Malaysian Creative Industry Stimulus Package (PRISMA) consisting of allocation of fund amounting to RM89.2 million that will benefit more than 9000 industry players (Bernama, 2021).
The initiative also anticipates that more than 40000 job opportunities will be created in the creative industry, with a focus on film; music; digital creative content and visual arts;
and performance and crafts. This reveals the potential economic benefits that could be enjoyed by the authors or owners of copyright, through the application of copyright law.
The nature of copyright as property that could be transferred and be made a subject of dealing, highlights its characteristic as a valuable asset to its owner.
5. Discussion
5.1. Value creation and value transfer of copyright as a movable property
Copyright does not depend on formality nor are there procedural requirements that need to be fulfilled in order for a copyright to be created. The law does not require the copyright to be registered in order for the copyright to be established. Nevertheless, a voluntary procedure known as voluntary notification of copyright could be opted for, which would be useful in asserting copyright ownership over the work. This is provided for under Section 26A of the Copyright Act, which states that “[a] voluntary notification of copyright in any work may be made to the Controller by or on behalf of the author of
the work, the owner of the copyright in the work, an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence.” This will enable the owner of the copyright to assert his claim, where in the event that the copyright ownership is being contested, the voluntary notification will enable an easier process in establishing that the owner indeed has the copyright to the work.
The copyright law in Malaysia is fair and balanced for all parties involved in the copyright matter the author, licensee, assignee, and users of the work. There are opportunities for the author, and other creative industry players to obtain economic benefits from the works that are protected by copyright law. This would potentially encourage continued furtherance of creative endeavours. There is support through the implementation of copyright laws where all parties can exercise their rights and freedom creatively in the creative space. The creative works by the authors are contributions to society. Copyright law provides legal protection to enable authors to continue their endeavours in creative works. It also protects the work from being wrongfully used by unauthorised persons (Section 36 and Section 41 Copyright Act).
In the context of a creative economy, the opportunities that could be offered by traditional knowledge and traditional cultural expression could not be undermined. They continue to spur the innovation-driven culture in our country. It might be argued that they have become less significant, as works that embody culturally linked motifs can be reproduced through the use of machines. Modification or change, as well as adaptation, are essential to the continuity of the intangible cultural heritage. Its ability to adapt to continuous changes has enabled cultural heritage to remain agile and relevant, timeless and everlasting. However, it is important that the local community is included in this process, and that their voices are heard. The community should be empowered to decide, irrespective of any support from external agencies or parties. External entities can remain to be collaborators or partners in strategic partnerships with the respective communities. However, it is for the community to decide when it concerns with the use of its intangible cultural heritage or traditional knowledge, or traditional cultural expression.
Legal literacy and legal awareness which are combined with a business-oriented approach, as well as financial and technical savviness are also useful in steering the creative economy. Intellectual property law operates in harmony with other areas of law such as contract law and succession law, in the context of rights and benefits, as well as the ownership of the copyright of the work. While the basis of determining the ownership of the work is outlined in the Copyright Act, for example when the work is produced in the context of employment, the position concerning the ownership of the right to the work could change if it is mutually agreed between parties through a contractual arrangement. With a strategic approach to monetising the copyrighted work, various parties could meaningfully benefit through synergised collaboration.
Another aspect that could facilitate the growth of the creative economy in Malaysia derives from the characteristic of copyright that could be transferred or shared, via licensing arrangement, or assignment arrangement, as well as through will. Unlike other commodities where the transfer of property will typically result in the owner losing control over the property, the copyright owner could still benefit from the work after the parties enter into the licensing arrangement. Sharing of the property could allow the owner of the copyright to increase the monetary benefit, as the property will have a greater value when being dealt with strategically. This offers a safeguard for the owner of
the copyright who may be involved in a licensing or an assignment arrangement, with the assignee; or the licensee, as the case may be.
As a property that could be transferred, copyright to a work could be bequeathed and inherited by the next generation. The relevant part of Section 27(1) of the Copyright Act states that “[s]ubject to this section, copyright shall be transferable by […] testamentary disposition […] as movable property.” The transfer of the physical property, as well as the copyright of the property, are two different matters for unpublished work.
Nevertheless, the Copyright Act has provided clarity to this arrangement as seen from Section 27(7) which reads as follows: “[w]here under a testamentary disposition, whether specific or general, a person is entitled beneficially or otherwise, to the manuscript of a literary or musical work, or to an artistic work, and the work has not been published before the death of the testator, the testamentary disposition shall, unless a contrary intention is indicated in the testator’s will or a codicil thereto, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.” The provision encourages the creation of work protected by copyright law, and the demise of the author does not mean the end to the exercise of the exclusive right to control certain conducts in accordance with Section 13 of the Copyright Act. It could be bequeathed to the children of the author, and the enjoyment of the economic benefit could resumed even after the passing of the author, in accordance with the provisions of the statute that applies concerning the duration of the copyright. Should the work be unpublished by the author during his lifetime, the children who have inherited the work, could publish the said unpublished work.
6. Conclusion
Copyright law permits a transactional approach, contractual arrangement, negotiation process, and mutual understanding in determining copyright ownership to the extent permissible by the law. Therefore, there is flexibility, bargaining power, and a win-win approach that can be employed by the involved parties in the protection of intellectual property rights. It involves a strategical approach as well as economic benefit analysis that could bring advantages to all parties involved, in celebrating the marvel of the creative work produced.
In providing support to the cultural and creative industries players or the “authors” of the work, the interests of the employer and employee need to be balanced. One of the ways to achieve it is through the inclusion of a clause that clearly stipulates the ownership of the copyright of the work in the contract between the employer and the artists. A more inclusive clause in the contract could be introduced, subject to mutual agreement between both parties, where the clause could enable the “author” to enjoy better remuneration or greater financial benefit in recognition of his contribution as an employee.
The presence of a legal infrastructure that promotes and protects intellectual property law in Malaysia supports stability and encourages a creative economy and value creation to sustain in the country. A legal platform such as the Malaysian Copyright Tribunal also offers an avenue for the aggrieved party to submit his claim, which will be heard by an independent tribunal. In addition to that, increased legal awareness among the parties in the cultural and creative industries coupled with business savviness and financial orientation in strategic decision-making would be desired. These would enable the most
beneficial approach with the aim of contributing to the economy and for creative endeavours to flourish.
Acknowledgement
This article is a continuation of the author’s research interest on the role of intellectual property laws for the protection of intangible cultural heritage, traditional knowledge and traditional cultural expressions.
Funding
The publication of this article was made possible through the UiTM Faculty of Law Internal Support Fund.
Conflict of Interests
The author reported no conflicts of interest for this work and declare that there is no potential conflict of interest with respect to the research, authorship, or publication of this article.
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