Should ‘causes’ under the CA 1987 be interpreted literally or liberally?

A comparison between the scope of liability for causing infringement and that for authorizing infringement reveals the very narrow ambit of the former as compared to the broader scope as well as flexibility of the latter. The former hinges solely on the relationship between a defendant and the primary infringers. Unless the infringement is committed by a person who is either the servant or agent of the defendant, no liability for causing infringements may be imposed on the defendant. As regards the position under the Malaysian CA 1987, the question to be considered is whether ‘causes’ under section 36(1) should be construed literally, on the one hand, or liberally and purposively, on the other hand.

A literal interpretation of ‘causes’ is supported by the word of choice in section 36(1) of the CA 1987 which holds a person liable if he ‘causes’, instead of ‘authorizes’, another person to infringe copyright. Having regard to the above discussion on the different meanings of ‘causes’ and ‘authorizes’ as expounded by the English courts,124 _{it will require one to turn a blind eye to the}

distinction made between the meaning of the two words. However, if interpreted literally, liability for causing infringement under the CA 1987 appears to be the normal tortious rules of vicarious liability which holds one liable for the conduct of his servant or agent. Copyright infringement, or

123 _{Id at para 142.}

124 _{See section 3.5.2, particularly section 3.5.2.1.}

University

95

indeed infringement of intellectual property right in general, is after all a tort125 and hence the rules of vicarious liability are applicable. Khaw questioned whether the word ‘causes’ in section 36(1) of the CA 1987 should be so confined to its literal meaning since a person is in any event liable for torts committed by his servant or agent.126 In other words, section 36(1) of the CA 1987, if literally interpreted, simply endorses the rules of vicarious liability and adds nothing more than that.

When considered in light of the new Part VIB which provides for the limitation of liabilities of service providers,127 a purposive construction on ‘causes’ seems sensible. If the scope of liability for causing infringement is the same as that of vicarious liability, it is very unlikely that the service providers particularized in Part VIB will be liable for infringement committed by their users or subscribers and thus there will be no need for liability limitation as prescribed in Part VIB. Besides, if a literal interpretation on ‘causes’ is adopted, it is very unlikely, if not impossible, for P2P operators to be liable under the CA 1987, even including those whose conduct is manifestly culpable in promoting copyright infringement by the users. This is so because the users are not P2P operators’ servants or agents, which is required to establish liability for causing infringement. The cases discussed earlier demonstrate certain noteworthy changes in the circumstances where the question of secondary liability for copyright infringement arose: from the instances of infringement taking place at the defendant’s physical premises to that of infringement made possible by the tangible products manufactured or offered for sale by the defendant; and later to that of infringement enabled and promoted by the service and facilities offered or made available by the defendant. It is evident that the subject matter in dispute has developed into something less

125 _{Davies, P. S., ‘Accessory liability: protecting intellectual property rights’, 2011 IPQ 390 at 390.}

126 _{Referring to the UK Copyright Act 1911 which replaced ‘causes’ with ‘authorizes’, Khaw argued that a person’s liability under copyright law} for infringement done by another person was not meant to be limited to vicarious liability: see Khaw, supra n 34 at 246.

127 _{The new sections 43B-43I were introduced by the Copyright (Amendment) Act 2012 (Act A1420).}

University

96

tangible and more fluid while the relationship between the defendant and primary infringers has become more distant and remote from each other.

Liability for causing infringement was not established in Russell v Briant,128 Lyon v Knowles129 and Karno v Path Freres130 in respect of infringing performances at the defendant’s premises. In circumstances where the defendant did not have any physical control over the platform where copyright infringement takes place, the case is even clearer that no liability for causing infringement can arise, as in Falcon v Famous Players Film Company131 _{discussed above. It is also}

indisputable that liability for causing infringement will not be extended to the mere supply of products that could be employed for both infringing and non-infringing uses, over which the supplier has no control after the sale such as that in CBS Inc v Ames Records & Tapes Ltd132 _or

CBS Songs Ltd v Amstrad Consumer Electronics Plc.133 It is thus apparent that liability for causing infringement will not be imposed on P2P operators such as those in Dramatico Entertainment

Ltd134 and Sharman License Holdings Ltd,135 in the absence of a relationship where the primary infringers are the defendant’s servants or agents.

P2P file sharing has evolved from a centralized to decentralized system and in the latter situation the defendant’s right and ability to control the primary infringer or users will be extremely difficult to be shown. This is because in a decentralized system, which essentially is truly P2P file sharing, the transmission of files take places entirely among the users. The objective of substituting ‘causes’ with ‘authorizes’ under the UK Copyright Act 1911 was explained by Scrutton J in Falcon v

128 _{Supra n 65.} 129 _{Supra n 66.} 130 _{Supra n 67.} 131 _{Supra n 76.} 132 _{Supra n 80.} 133 _{Supra n 82.} 134 _{Supra n 25.} 135 _{Supra n 106.}

University

of Malaya

97 Famous Players Film Company136 that it was meant to increase copyright protection and ‘to sweep away those decisions by which their rights had been limited, as against the makers of mechanical instruments by which their works could be reproduced.’137 The narrow scope of liability for causing infringement under the CA 1987, if construed literally, is unable to keep in pace with technological developments.

It may be concluded that a literal interpretation on ‘causes’ will result in impotency of Malaysian copyright law to protect copyright owners adequately in respect of rampant infringement accomplished via P2P services. This will defeat any attempt aiming at achieving a fair balance of interests in addressing the challenges brought about by technological developments.On the other hand, a liberal interpretation of ‘causes’ is in accordance with the universally and commonly shared trend for P2P operators to be held liable for widespread infringement committed by users via P2P file sharing in appropriate circumstances.