Abstract
This chapter discusses the legal issues surrounding the use of free software and license contracts in Malaysia. More specifically, the legal issues are explored from the standpoint of two main areas of law, namely, contract law and intellectual property law with particular focus on copyright. In addition, aspects of competition law and public procurement law are also examined broadly. Insofar as contract law is concerned, license contracts pertaining to free software must meet the requirements for the formation of contract and must not contain terms which are unfair to consumers. Where ambiguity arises, the court will apply the established rules on interpretation of contracts to determine objectively what the parties had intended. Copyright law confers a bundle of exclusive rights on the copyright owner and, accordingly, the mere use of a program without license amounts to an infringement of copyright. Licensees of free software must ensure that any license given to them to use the software should specifically cover the intended use. In addition, as all types of use of software involve the making of a copy of the program, a licensee should also secure permission to make a reproduction of the program. The discussion in the chapter suggests that although Malaysia does not have any specific statutory provisions governing the use of free software and license contracts pertaining to such software, these areas of Malaysian law are sufficiently broad to address issues and possible conflicts arising from the use of free software and license contracts.
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Notes
- 1.
The Copyright Act 1987 (Act 332), with effect from April 30, 1987 available at http://www.agc.gov.my/Akta/Vol.%207/Act%20332.pdf.
- 2.
Preston Corporation Sdn Bhd v Edward Leong [1982] 2 MLJ 22.
- 3.
[2008] 2 MLJ 481 at para [41].
- 4.
[2012] 9 MLJ 181 at para [156].
- 5.
Foong Seong Equipment Sdn Bhd (receivers and managers appointed) v Keris Properties [2011] 2 AMR 473 (Federal Court).
- 6.
Terengganu State Economic Development Corp v Nade Finco Ltd [1982] 1 MLJ 365 (Federal Court).
- 7.
Lim Yee Teck & Co v Shell Trading Sdn Bhd [1985] 2 MLJ 265 (Privy Council, on appeal from Malaysia).
- 8.
Kedah Cement Sdn Bhd v Masjaya Trading Sdn Bhd [2007] 3 MLJ 597 (Federal Court).
- 9.
Ooi Boon Leong & Ors v Citibank NA [1989] 1 MLJ 222.
- 10.
Section 24D(2) is lengthy and provides a number of circumstances which a court or the Tribunal for Consumer Claims may take into account in determining whether a contract or a term of a contract is substantively unfair.
- 11.
Premier Hotel Sdn Bhd v Tang Ling Seng [1995] 4 MLJ 229.
- 12.
Paragraph (d) of section 2 of the Contracts Act 1950 defines ‘consideration’ as follows:
When, at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.
- 13.
Section 67 of the Contracts Act 1950 provides that the rescission of a voidable contract may be communicated in the same manner as the communication or revocation of a proposal.
- 14.
The Copyright Act 1987 (Act 332), with effect from April 30, 1987.
- 15.
Section 13(1)(a) of the Copyright Act 1987.
- 16.
Section 3 of the Copyright Act 1987.
- 17.
Section 3 of the Copyright Act 1987.
- 18.
Section 13(1) of the Copyright Act 1987 provides for the exclusive rights for the reproduction in any material form; the communication to the public; the performance, showing or playing to the public; the distribution of copies to the public by sale or other transfer of ownership; and the commercial rental to the public; of a copyright work.
- 19.
When a copy of the work is uploaded, it involves a reproduction of the work. When an internet user downloads a copy of the work, a reproduction of the work once again takes place.
- 20.
Section 3 of the Copyright Act 1987 defines ‘communication to the public’ as ‘the transmission of a work or live performance through wire or wireless means to the public, including the making available of a work or live performance to the public in such a way that members of the public may access the work or live performance from a place and at a time individually chosen by them’.
- 21.
[2005] 3 MLJ 552; [2005] 1 CLJ 200. The plaintiff in this case applied for summary judgement on copyright infringement in respect of the alleged unauthorized reproduction of sound recordings in the form of karaoke VCDs by the defendant.
- 22.
[2005] 3 MLJ 552 at 563; [2005] 1 CLJ 200 at 212.
- 23.
Section 16B of the Copyright Act 1987.
- 24.
Section 38(2) of the Copyright Act 1987 provides that an exclusive licensee shall have the same rights of action, except against the copyright owner, and be entitled to the same remedies as if the licence had been an assignment. ‘Exclusive licence’ is defined in s 38(9) of the Copyright Act 1987 as ‘a licence signed by or on behalf of an owner or a prospective owner of copyright authorizing the licensee to the exclusion of all other persons, to exercise a right which by virtue of this Act would (apart from the licence) be exercisable exclusively by the owner of the copyright’. ‘Exclusive licensee’ shall be construed accordingly.
- 25.
‘Author’ is defined in relation to various types of copyright works in s 3 of the Copyright Act 1987. In general, an author is the creator or maker of a copyright work.
- 26.
Section 25(2)(a) of the Copyright Act 1987 describes the right as the right to authorize ‘the presentation of the work, by any means whatsoever, without identifying the author or under a name other than that of the author’.
- 27.
Section 25(2)(b) of the Copyright Act 1987 provides the author’s right against ‘the distortion, mutilation or other modification of the work if the distortion, mutilation or modification (i) significantly alters the work; and (ii) is such that it might reasonably be regarded as adversely affecting the author’s honour or reputation’.
- 28.
Section 25(3) of the Copyright Act 1987 states ‘Where a person is authorized, whether by virtue of an assignment, a licence or otherwise, to publish, reproduce, perform in public or communicate to the public a work, that person may make modifications to the work if it would be reasonable to expect that the authorized publication, reproduction, public performance or communication to the public, as the case may be, could not take place without the modifications; but nothing in this subsection shall authorize a modification to a work which would constitute a contravention of sub-s (2)’.
- 29.
Section 37(4) of the Copyright Act 1987 provides that damages and an account of profits are mutually exclusive.
- 30.
Section 37(4) of the Copyright Act 1987 provides that the relief of damages, an account of profits, and statutory damages are mutually exclusive.
- 31.
An agreement could be either horizontal or vertical. ‘Horizontal agreement’ is defined in section 2 of the Competition Act 2010 as ‘an agreement between enterprises each of which operates at the same level in the production or distribution chain’. ‘Vertical agreement’ is defined in s 2 of the Competition Act 2010 as ‘an agreement between enterprises each of which operates at a different level in the production or distribution chain’.
- 32.
Section 4(1) of the Competition Act 2010.
- 33.
Section 4(2)(a) of the Competition Act 2010.
- 34.
Section 4(2)(b) of the Competition Act 2010.
- 35.
Section 4(2)(c) of the Competition Act 2010.
- 36.
Section 4(2)(d) of the Competition Act 2010.
- 37.
The Commission is established under the Competition Commission Act 2010.
- 38.
The guidelines, which are embodied in a broader document entitled ‘Open Source Software (OSS) Implementation Guidelines: Malaysian Public Sector Open Source Software Initiative’ are available at http://www.mampu.gov.my/documents/10228/92525/OSS+Implementation+Guideline.pdf/38ce9b16-07ff-48e8-9a12-c9309c3cab88.
- 39.
The Malaysian Government general procurement policies, principles and objectives are available in the document entitled ‘Malaysia’s Government Procurement Regime’ available at http://www.treasury.gov.my/pdf/lain-lain/msia_regime.pdf.
- 40.
OSCC, MAMPU, OSS Implementation Guidelines, at http://opensource.mampu.gov.my/index.php/en/policy/policy-guidelines-standards.
- 41.
OSCC, MAMPU, OSS Implementation Guidelines, Part 3.
- 42.
‘Value for money’ is defined as ‘optimum combination of whole-life cost and fitness/ability to meet the user’s requirement’. It does not necessarily mean the lowest price or market domination by the relevant product/service.
- 43.
OS is defined as ‘specifications for systems that are publicly available and are developed by an open community and affirmed by an internationally recognised standard body’.
- 44.
The Government of Malaysia, Malaysia’s Government Procurement Regime, at http://www.treasury.gov.my/pdf/lain-lain/msia_regime.pdf. The main policies are (a) to stimulate the growth of local industries through the maximum utilization of local materials and resources; (b) to encourage and support the evolvement of Bumiputera (indigenous) entrepreneurs in line with the nation’s aspirations to create a Bumiputera Commercial and Industrial Community; (c) to increase and enhance the capabilities of local institutions and industries via transfer of technology and expertise; (d) to stimulate and promote service oriented local industries such as freight and insurance; and (e) to accelerate economic growth whereby Government procurement is used as a tool to achieve socio-economic and development objectives.
- 45.
Fair dealing here refers to the fair processing of all acceptable bids based on the current rules, policies and procedures.
- 46.
OSCC, MAMPU, OSS Implementation Guidelines, 3.1.
- 47.
OSCC, MAMPU, OSS Implementation Guidelines, Part 4.
- 48.
An agency commissioning changes to an OSS may be compelled to make the source code of such changes available to the OSS due to the terms of the OSS while the agency may wish to keep the changes private.
- 49.
OSCC, MAMPU, OSS Implementation Guidelines, 4.1.6.1. Some of the considerations on this aspect include whether the OSS licence allows free copying and redistribution; whether a fee may be imposed for the physical transfer of the software; whether there is a requirement that a copyright notice to be affixed during redistribution; and whether the complete source code shall be provided during redistribution.
- 50.
Reciprocal licences allow any use of the software provided that the source code of the software is provided to the persons to whom it is redistributed, and its redistribution is subject to the same licence under which it was initially distributed. Examples of reciprocal licences are the General Public Licence (GPL), Lesser General Public Licence (LGPL) and MIT Licence.
- 51.
In general, academic licences permit any use of software without requiring the user to provide the source code, either in its original, modified or derivative form, if it is redistributed. Academic licences also do not impose the obligation to subject the software to the same licence when it is redistributed.
- 52.
An agency should consider various questions including whether the OSS licence allows modification of the software in developing a new work; whether it authorizes free copying and distribution of the modified software; whether it permits royalty to be imposed for distribution of the modified software; whether it requires the making available of the source code when the modified software is distributed.
References
Cases
Alexander John Shek Kwok Bun v Rich Avenue Sdn Bhd & Anor [2008] 2 MLJ 481.
Citibank Berhad v Pembangunan Cahaya Tulin Sdn Bhd (Receivers and Managers Appointed) & Ors and other Suits [2012] 9 MLJ 181.
Foong Seong Equipment Sdn Bhd (receivers and managers appointed) v Keris Properties [2011] 2 AMR 473 (Federal Court).
Kedah Cement Sdn Bhd v Masjaya Trading Sdn Bhd [2007] 3 MLJ 597 (Federal Court).
Lim Yee Teck & Co v Shell Trading Sdn Bhd [1985] 2 MLJ 265 (Privy Council).
Ooi Boon Leong & Ors v Citibank NA [1989] 1 MLJ 222.
Premier Hotel Sdn Bhd v Tang Ling Seng [1995] 4 MLJ 229.
Preston Corporation Sdn Bhd v Edward Leong [1982] 2 MLJ 22.
Rock Records (M) Sdn Bhd v Audio One Entertainment Sdn Bhd [2005] 3 MLJ 552; [2005] 1 CLJ 200.
Terengganu State Economic Development Corp v Nade Finco Ltd [1982] 1 MLJ 365 (Federal Court).
Statutes
Competition Act 2010.
Competition Commission Act 2010.
Consumer Protection Act 1999.
Consumer Protection (Amendment) Act 2010.
Contracts Act 1950.
Copyright Act 1987.
Electronic Commerce Act 2006.
Patents Act 1983.
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San, T.P., Peng, S.C. (2016). Legal Issues on Free Software and License Contracts: A Malaysian Perspective. In: Metzger, A. (eds) Free and Open Source Software (FOSS) and other Alternative License Models. Ius Comparatum - Global Studies in Comparative Law, vol 12. Springer, Cham. https://doi.org/10.1007/978-3-319-21560-0_15
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