This article first appeared on DNA here.
Disclaimer: I am not a lawyer and this is not a legal opinion. Please seek professional advice.
I WAS driving home one day when my mind began to wander, from some reason, onto the intersection between copyright laws and Open Source Software (OSS), and I began to mull over the consequences of recent amendments to our Copyright Act.
The Malaysian Copyright Act was amended in 2012 with many new sections added, but my focus is on Sections 26A – 26C. These sections create a Register of Copyright and spell procedures to apply for and amend registrations. The combined effect is the voluntary registration of copyright in Malaysia.
The entire OSS ecosystem relies on strong copyright laws to thrive. Without strong copyright laws, we will not be able to propagate OSS. So, these amendments simplify certain things as there will now be a central directory of all copyrighted works in Malaysia.
In principle, copyright vests automatically with the author the moment that the work is created, and this is clearly spelled out in Section 26 of the Act. Unlike trademarks or patents, there is no need for someone to register a copyright for it to exist.
What the new Section 26B(5) says is that all registered copyrights are secured and admissible as evidence in court. This means that there is now a rebuttable presumption that the person listed on the Register is the copyright owner.
From here on, this article is pure speculation as this is uncharted territory in Malaysian law. However, some insight can be obtained from the United States, where similar laws already exist. Over there, you cannot sue in court if your copyright is not registered, even if you do own the copyright. This may prove to be a problem.
As an illustration, let’s assume Mr Rekacipta wrote some software but did not register his work. Then Mr Cetakrompak copied his code and registered it. After a while, Mr Rekacipta found out that Mr Cetakrompak was selling his software. He was unable to sue because he did not register his work. Instead, Mr Cetakrompak sued Mr Rekacipta.
Since Mr Cetakrompak has a registered copyright, he is presumed to be the ‘true’ owner. So, Mr Rekacipta has the burden to prove that he is the ‘true’ owner. If he fails to prove it, then the law presumes that the owner is actually Mr Cetakrompak.
So, all that we need to do is to register our work and all will be well, right?
Then we need to understand how OSS is developed. There are two main models of OSS development, often called the Cathedral and the Bazaar models.
The Cathedral model is similar to a lot of proprietary software development, where the development work happens behind closed doors. It is centrally driven. The software is only opened up at the end of the development cycle when released to the public.
In this model, it is certainly possible to register the copyright as the code is under tight control from beginning to end. So, it is difficult for someone to copy the code and register the software ahead of the original owner; and the software only needs to be registered when it is finally released.
However, the Bazaar model is the exact opposite, where the development work happens in the open. It is usually community driven. An example of this is the Linux operating system, which is worked on by thousands of developers spread across the entire globe with new code ‘released’ practically every day.
Projects using this development model release new code continuously, whether due to bug fixes or adding new features. These projects are most at risk of being copied and registered by Mr Cetakrompak.
With this model, since copyright merely protects a specific expression of an idea, continuous releases of new code may constitute a new work and would potentially need to be registered, particularly if they added features or changed things significantly. For some actively developed projects, this could mean a new registration every day.
Unfortunately, under Section 26A(2) of the Malaysian Copyright Act , no voluntary registration will be entertained unless a prescribed fee is paid. While the fee may be a nominal one, multiply it across the daily release lifetime of the project, and it is no longer merely ‘nominal.’
Unlike patent registration, there is no requirement under the Copyright Act for the registering body to conduct a search of prior art. All that is needed to register a copyright is to submit the proper forms with due payment, accompanied by a statutory declaration.
For community developed projects, most of the developers are not paid and are contributing code on their own time and dime. Asking them to contribute additional money to register their copyrights regularly, would be a little unreasonable.
Therefore, this new voluntary registration ‘requirement’ has the potential to affect the Bazaar model of community driven software development in Malaysia, to our detriment.