In 2012 Section 36(1) Copyright Act 1987 remains unaltered in the amendment (Act A1420) of 2012. However, Part VIB ‘Limitation of Liabilities of the Service Provider’ Sections 43B-I, was added which provides a safe harbor provision for internet intermediary liability for copyright infringement. The provisions are similar to the DMCA in the US in which ISPs and content aggregators are provided immunity from liability for copyright infringement if they protect copyright owners by removing or disabling access to infringing content.
A service provider is a person who provides services relating to, or provides connections for, the access, transmission or routing of data; or operates facilities for, online services or network access.
43C. Transmission, routing and provision of connections
(1) A service provider shall not be held liable for copyright infringement for the transmission or routing of or providing connections to an infringing work; or any transient storage thereof; under the following conditions: the transmission, routing, provision of connections or storage of the electronic copy of the infringing work was not initiated by the service provider; is carried out through an automatic technical process, does not make any modification, and does not select the recipient, except as an automatic response.
(2) The court may order the service provider to take reasonable steps to disable access to an online location that is physically situated outside Malaysia; or terminate a specified account.
43D. System caching
The service provider shall not be held liable for system caching.
43E. Storage and information location tools
(1) The service provider shall not be held liable for storing infringing work at the direction of a user of its primary network; or linking a user via a hyperlink, directory or search engine to an online location which makes an infringing work available. Under the condition that the service provider:
(i) does not have actual knowledge that the electronic copy of the work or activity is infringing; is not aware of the facts or circumstances from which the infringing activity is apparent, which is the red flag requirement (contributory liability);
(ii) that the service provider does not receive any financial benefit directly attributable to the infringement of the copyright and that the service provider does not have the right and ability to control the infringing activity (vicarious liability);
(iii) that upon receipt of a notification of any infringement, the service provider responds within the time specified to remove or disable access to the material. If no notification is given the service provider shall not be held liable.
(2) A test is given for vicarious liability, which includes taking into account any industry practice in relation to charging of services by a service provider.
43F. Exemption of service provider from liability for removal of copy or other activities from network
(1) The service provider is not liable for the removal or disabling of content in good faith, but he shall notify “as far as may be practicable” the person who made available the electronic copy and also show him the notification received from the copyright owner.
(2) If the person who made the copy available settled with the copyright owner or was adjudicated by any court or tribunal as the rightful copyright owner, the service provider shall “as far as practicable” restore the electronic copy to its primary network or restore access to the electronic
(3) If a service provider had solely provided a facility which was used by a person to infringe a copyrighted work he did not authorize the copyright infringement of copyright.
43G. Information on service provider
If the service provider would like to fall under the safe harbor provision he needs to make accessible his name and address and provide details and particulars of a designated agent to receive any complaint or notice regarding an allegation of infringement of copyright.
43H. Notification by copyright owner and its effect
(1) The copyright holder can notify the service provider to remove or disable any access to copyright infringing content, provided that the copyright owner shall compensate the service provider or any other person against any damages, loss or liability arising from the compliance by the service provider of such notification.
(2) The service provider shall remove or disable any access to work that is infringing copyright within 48 hours after he received the notification.
(3) The person whose electronic copy was removed or to which access has been disabled may issue to the service provider a counter notification, after which the service provider needs to restore the electronic copy or access to it, provided that the person shall undertake to compensate the service provider or any other person against any damages, loss or liability arising from the compliance by the service provider of such counter notification. A counter notification to the service provider’s designated agent should contain a statement under penalty of perjury that the issuer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(4) The service provider needs to promptly provide the issuer of the notification (copyright owner or alleged copyright owner) with a copy of the counter notification and inform such issuer that the removed material or access to the said material will be restored in ten business days, he received another notification of the copyright owner or alleged copyright owner that he filed an action seeking a court order to restrain the issuer of the counter notification from engaging in any infringing activity.
43I. Maker of false notice guilty of offence and liable in damages
(1) If a person making a notification makes any statement which is false, which he knows to be false or does not believe to be true, he shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both; and he shall be liable to compensate any person who suffers any loss or damages as a result of making the notification.
(2) It does not make any difference whether a person makes the statement inside or outside Malaysia.
See also Malaysia International Intellectual Property Alliance (IIPA) 2013 Special 301 Report on Copyright Protection and Enforcement, February 8, 2013, 311 arguing that
(1) Malaysia’s safe harbor provisions can be improved if: (i) it will be made clear that the duties to cooperate are triggered by a compliant notice or if the service provider knows or is aware of facts and circumstances from which the infringement is apparent; (ii) injunctive or other equitable relief can be used in case of uncooperative service providers; (iii)service providers have in place a fair and effective termination policy for repeat infringers and that those that fail to inform their customers and implement such a policy would not be eligible for the safe harbors.
(2) The IIPA also criticized the “48-hour” rule for takedowns, which they deem “too slow for “pre-release” materials (movies, music, games, software, or published materials not yet available in Malaysia).” Since automated takedown technologies exist, they argue that takedown timeframes should be immediate or no longer than a couple of hours.
Topic, claim, or defense
Type of service provider
General or Non-Specified
Trigger for OSP obligations
OSP obligation considered
Block or Remove
Type of law
General effect on immunity
General intermediary liability model
Takedown/Act Upon Knowledge (Includes Notice and Takedown)