Creativity knows no bounds. There are chances that content creators may express their ideas in the form of immoral or illegal works. In this article, we will answer your question of whether these works that are tainted by illegality or immorality could be protected by copyright in Malaysia.
What are “illegal works” and “immoral works”?
“Illegal works” may refer to works that result from illegal conduct, contain unlawful contents or that promote crimes. In Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (2006) 157 FCR 442, the court explained “immoral works” as works that “offend against community values or standards”. Some illegal works, by definition, would offend community standards, but others, such as street art, or a film revealing animal cruelty made when trespassing into another’s property, may not.
Copyright subsistence: No content restriction
According to section 7(2) of the Copyright Act 1987 (“CA1987”), works are protected irrespective of their quality and the purpose for which they are created. Section 7(4) elaborates that a work shall not be ineligible for copyright by reason only that the making of the work involves an infringement in copyright in some other work. These provisions indicate that the Malaysian copyright law does not impose content-based restrictions on the copyrightability of works – so long as a work is original and fixed in a material form, it is entitled to copyright protection. The result would be that immoral and illegal works like child pornography are copyrightable.
Copyright enforcement: What do the courts say?
However, notwithstanding that the CA1987 recognizes copyright subsistence in immoral and illegal works, enforcement of copyright in these works is a different question altogether. Article 17 of the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) expressly provides that “The provisions of this Convention cannot affect members’ rights to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regards to which the competent authority may find it necessary to exercise that right”. Pursuant to this Article, Malaysia, a contracting state of the Berne Convention, is given the liberty to control or limit the exclusive rights of copyright owners, in order to protect its public interest. Illustration (s) of section 52 of the Specific Relief Act 1950 also states that “If A pirates B’s copyright, B may obtain an injunction to restrain the piracy, unless the work of which copyright is claimed is libellous or obscene”.
In Hyde Park Residence Ltd v Yelland  RPC 604, the court held that it was against the policy of the law to use the court’s procedure to enforce copyright if the work was: (i) immoral, scandalous or contrary to family life; (ii) injurious to public life, public health and safety or the administration of justice; or (iii) incites or encourages others to act in a way in (ii). In Attorney General v Guardian Newspaper Ltd  1 AC 109, it was also decided that no copyright protection could be afforded to a book written and published by a former intelligent officer as the publication was against the public interest and in breach of a duty of confidence. Hence, even though in theory copyright may subsist in immoral and illegal works, the court could refuse the enforcement of copyright in these works on the ground of public policy.
Although in practice it may not always be easy to determine whether a work is illegal or immoral, content creators should refrain from creating works that are outright contrary to the law or widely accepted to be immoral, such as films that defame our leaders, songs that reproduce substantial parts of other musical works without the copyright owners’ consent, novels that romanticize incest and compilations of illegal streaming websites. Putting the possibility of committing a criminal offence aside, there is a real danger that the court would refuse to enforce the copyright in an illegal or immoral work, which may cause the skill and effort expended into creating the work to go down the drain. As the saying goes, better be safe than sorry. Therefore, we strongly advise our clients and prospective clients to think twice before creating works that are known to be immoral or illegal. Seek the services of a reputable IP firm like Pintas to assist you on your IP matters. Free Consultation available.