providing that the judge may issue a cessation injunction against the intermediaries whose services are used by third parties to infringe patents (Article 80ter).
(prepared by Swiss Institute of Comparative Law for Council of Europe)
This is one of series of country reports prepared for the Council of Europe in 2015. Other countries' reports, and responses from national governments, are available here. The studies undertake to present the laws and, in so far as information is easily available, the practices concerning the filtering, blocking and takedown of illegal content on the internet.
The Agreement contains Article 122 (2): “Each Country shall provide for appropriate measures concerning limitations on liability for service providers: (a) in case where a service provider provides a necessary deterrent to the transmission of information through telecommunication systems or networks controlled or operated by the service provider which it believes to be the infringement of copyright or related rights; and (b) in case where the infringement of copyright or related rights occurs by the transmission of information through telecommunication systems or networks controlled or operated by a service provider and where the service provider is technically unable to deter the transmission or has difficulty in finding the infringement of copyright or related rights.
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...
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. 43B. Interpretation 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...