Section 36(1) Copyright Act 1987 provided a measure against primary infringers “Copyright is infringed by any person who does”, and secondary infringers “or causes any other person to do,” without the licence of the owner of the copyright, an act the doing of which is controlled by copyright under this Act.
According to Daniel Seng, the Copyright Act 1987 is based on the UK Copyright Act 1911, hence UK cases on the element of “authorizing infringement” will be highly persuasive to Malaysian courts. Because of the emphasis on control that a secondary defendant has to exercise over a primary infringer in U.K. cases to be held liable for “causing” the primary infringer to commit an infringing act, Seng believed that if Malaysian courts would follow U.K. case law it was unlikely that they would find an Internet intermediary liable for the acts of its users or subscribers.” See Daniel Seng, Comparative Analysis of the National Approaches to the Liability of Internet Intermediaries, Internet Intermediaries and Creative Content, WIPO 2011, 32, para 84.
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