Measures to curb illegal streaming in Malaysia
The Copyright Act 1987 in Malaysia was amended in 2022 to include offences relating to streaming technology. This important legislative amendment has strengthened recent efforts by copyright owners and enforcement authorities to tackle the growing problem of online piracy of copyrighted media content in Malaysia.
Emergence of online streaming media
The prevalence of high-speed Internet, widespread coverage of Wi-Fi connectivity and ubiquity of smartphones have changed the way in which media content is being received and consumed by the masses in the 21st century.
Video streaming platforms have increasingly become the preferred destination to watch movies and drama serials as compared to DVDs and Blu-ray discs in the last decade. Most traditional broadcasting stations also are concurrently streaming their channels via the Internet in addition to operating their existing cable television channels.
New forms of copyright piracy have emerged together with the evolution of technology. In the past, peddlers selling bootleg DVDs in Malaysia were a major concern for copyright owners, but such peddlers have become almost extinct with the current technological trends in Malaysia. Instead, illicit streaming devices (“ISDs”) which enable illegal free access into online subscription-based video streaming platforms and television channels are becoming more popular in Malaysia. A survey finding by YouGov in 2019 shows that at least 23% of online users from Malaysia have utilized ISDs to gain access to pirated media content and channels on the Internet. It is also no surprise that the same survey has revealed that 64% of online users from Malaysia who have purchased ISDs have also cancelled their existing subscriptions to legitimate channels for media content [1]. If left unchecked, illegal streaming can potentially cause millions of lost revenue annually to the entertainment and media industry in Malaysia.
Enforcement against illicit streaming devices
In the early efforts of combating illegal streaming from ISDs, enforcement authorities in Malaysia have relied on provisions in the Communications and Multimedia Act 1998 (“CMA 1998”) to conduct raids and seizures of ISDs that were sold in the market. The ISDs are deemed by the authorities to be non-conformant to Section 239 CMA which prohibits unlawful use, possession or supply of non-standard equipment or device that do not comply with the technical and safety requirements prescribed by the CMA 1998 and its regulations.
In 2021, a landmark decision was issued by the Intellectual Property High Court in Kuala Lumpur in the unreported case of Measat Broadcast Network Systems Sdn Bhd v Koo Kok Wee [Suit No. WA-22IP-61-10/2020] (“Measat”). The plaintiff in this case had filed a civil suit against the defendant for selling ISDs that enable access to copyrighted content which were owned by and/or licensed to the plaintiff. The IP Court had allowed the plaintiff’s claims and held that the defendant’s act of selling the ISDs have infringed the plaintiff’s exclusive rights under the Copyright Act 1987 (“CA 1987”).
The IP Court decision in the Measat case is a much-welcomed development in the utilization of existing IP legislation to combat illegal streaming in Malaysia and for copyright owners to be emboldened in seeking recourse from participants of illegal streaming activities. However, as of 2021, there is no specific provision in the CA 1987 which explicitly addresses the issue of illegal streaming activities at that point of time. This creates ambiguity on the extent to which the authorities can conduct criminal enforcement against illegal streaming activities in Malaysia, especially if the infringing act does not involve the use or possession of ISDs. Copyright owners may still need to go through the route of costly civil litigation to enforce their rights against participants of illegal streaming activities.
Changes to the Copyright Act 1987
The Copyright (Amendment) Act 2022 (“Amending Act”) was later passed by the Malaysian Parliament to address this lacuna in the CA 1987. One of the interesting additions made by the Amending Act is the insertion of Section 43AA[2] CA 1987 which deals with “offences relating to streaming technology”. “Streaming technology” is also defined widely to include a computer program, device or component which is used in part or in whole that results in an infringement of the copyright in a work. Hence, an infringer that participates in illegal streaming activities solely through software or website but without hardware or ISDs can still be potentially caught under this new provision.
A person convicted for an offence under this new provision can be liable for a fine of not less than RM 10,000 (US$ 2,100) and not more than RM 200,000 (US$ 42,000) or to imprisonment for a term not exceeding 20 years or to both.
Developments after the Amending Act
Since the passing of the Amending Act, the enforcement authorities in Malaysia were visibly active in their efforts in conducting raids and initiating criminal prosecutions against offenders that had infringed Section 43AA(1) CA 1987. Some of the reported actions which have been taken by the enforcement authorities in Malaysia include the following:
• April 2022 – 3 premises in Klang, Selangor were raided for selling ISDs[3]
• September 2022 – 2 premises were raided for selling ISDs in a shopping center in Kuala Lumpur[4]
• October 2022 – More than 600 ISDs seized in a raid in Johor Bahru[5]
• June 2023 – An individual was fined RM 20,000 (US$ 4,200) by the Kuala Lumpur Sessions Court for selling ISDs[6]
• August 2023 – A salesperson was fined RM 20,000 (US$ 4,200) by the Ampang Sessions Court for selling ISDs[7]
• August 2023 – Business owner and salesperson fined a total of RM 40,000 (US$ 8,400) for selling ISDs[8]
• August 2023 – A man was arrested by the police in Puchong for selling ISDs following a raid[9]
There is another judicial decision which was issued after the Amending Act that may have an impact on illegal streaming activities in Malaysia. In the case of The Football Association Premier League Ltd & Anor. v Bar Theory Sdn. Bhd. & Ors. [2023] 1 CLJ 471 (“Bar Theory”), the plaintiffs were the organizer of the English Premier League (“EPL”) football competition and the licensed broadcaster of EPL matches in Malaysia while the defendants consist of a restaurant bar in Kuala Lumpur and its directors. The plaintiffs had sued the defendants for live-screening EPL matches without the requisite paid subscription. The IP High Court held that the defendants’ acts of “showing, playing, screening, streaming the Copyrighted Works on a set-top box set up in the establishment to its patrons” were acts which were :
(i) communication to the public; and
(ii) performance, showing or playing to the public.
Since the aforementioned acts were done without the consent or licence of the plaintiffs, the IP High Court had found that there was copyright infringement committed by the defendants. It is interesting to note that the IP High Court did not make any reference to the newly-enacted Section 43AA CA 1987 in its judgment.
Concluding remarks
The new provisions in the CA 1987 which created the new category of “offences relating to streaming technology” have certainly added firepower in the range of arsenal which Malaysian enforcement authorities can deploy against illegal streaming activities. The media reports on regular raids and criminal prosecutions against offenders under Section 43AA CA 1987 in 2022 and 2023 are indications that the enforcement authorities in Malaysia have taken a strict stance against illegal streaming activities and are determined to curb such activities using the new legislative provisions.
The positive findings of copyright infringement by the IP High Court in the civil cases of Measat and Bar Theory together with the substantial monetary fines imposed by the criminal courts on convicted offenders under Section 43AA CA 1987 also constitute strong legal precedents which copyright owners can rely on to discourage the public in Malaysia from participating in illegal streaming activities.
A strong copyright protection regime in Malaysia against illegal streaming activities would ultimately ensure that copyright owners and content creators are fairly remunerated for their work, and this would in turn, encourage the growth of the entertainment and media industry in Malaysia.
If you have any questions or require additional information, please contact Stanley Lee Wai Jin or the partner you usually deal with at Zaid Ibrahim & Co.
This article is for general information only and is not a substitute fo
[1] https://sg.news.yahoo.com/survey-23pc-malaysian-online-consumers-104002255.html
[2] Section 43AA(1) CA 1987 provides that:
(1) No person shall commit or facilitate infringement of the copyright in any work by—
(a) manufacturing a streaming technology for sale or hire;
(b) importing a streaming technology;
(c) selling or letting for hire, offering, exposing or advertising for sale or hire, possessing or distributing a streaming technology in the course of a business;
(d) distributing a streaming technology for purposes other than in the course of a business to such an extent as to affect prejudicially the owner of the copyright; or
(e) offering to the public or providing any service of streaming technology.
[3] https://www.kpdn.gov.my/en/media-kpdnhep/berita-kpdn/berita-terkini/2022-berita-terkini/1186-premises-for-selling-streaming-technology-devices-raid-by-mdtcol-enforcement
[4] https://www.nst.com.my/news/crime-courts/2022/09/833782/ministry-raids-outlets-seizes-android-streaming-boxes
[5] https://www.alliance4creativity.com/news/alliance-for-creativity-and-entertainment-applauds-malaysian-seizure-of-more-than-600-illegal-streaming-devices/
[6] https://www.astroawani.com/berita-malaysia/one-individual-pleaded-guilty-selling-tv-boxes-unauthorised-content-424284
[7] https://theedgemalaysia.com/node/677386
[8] https://theedgemalaysia.com/node/677656
[9] https://www.thestar.com.my/news/nation/2023/08/18/man-nabbed-for-selling-illegal-video-streaming-devices-in-puchong