Malaysia’s Enforcement of Copyright in the Post-Pandemic E-learning Boom
Introduction : After the COVID-19 pandemic, the education systems worldwide, including Malaysia, have seen a significant transformation, where school, colleges, and universities were forced to shift from traditional classroom teaching to online learning very rapidly. To ensure that education remains seamless, educators increasingly shifted to digital learning platforms such as Learning Management System (LMS), video conferencing applications, and online resource repositories. In the process of shifting, textbooks, journals, articles, videos, recorded lectures and other educational related content and materials were frequently uploaded, shared and distributed in digital form.
Even though this transition improved the accessibility of education for students and ensured that education reaches seamlessly, at the same time it also raised copyright concerns. Many educators assume that use of copyrighted material is permitted under the law. However, it does not necessarily mean that the educational use exempts a person from the liabilities. The large-scale dissemination of copyright content through online platforms presents legal issues which differ from those arising in traditional classroom learning structure.
Although the Malaysian law recognises fair dealing and educational exceptions, the digital learning environment has raised new copyright challenges. As educational institutes are increasingly relying on online platforms, copyright compliance cannot be depended on the assumptions, and instead of that it must be supported by proper licensing, governance, and a careful application of the statutory fair dealing framework.
The Malaysian Copyright Framework: The Baseline
In Malaysia, the primary legislation governing copyright protection is the Copyright Act, 1987. Under Section 13 (1) of the Act, the copyright owners are granted exclusive rights in relation to their works, it includes the right to control the reproduction of the work, the communication of the work to the public, and the distribution of copies. As a result, anyone who wants to exercise these rights must generally obtain the permission of the copyright owner unless a statutory exception applies.
The importance of these rights became particularly evident during the rapid expansion and boom of e-learning. The routine activities which may appear normal in an educational environment, such as uploading a textbook chapter on the university portal, sharing journal articles through an LMS, or screen-sharing a copyrighted video during an online lecture, may involve the copyright owner’s exclusive rights under the Act.
Section – 3 of the Copyright Act 1987, defines “Communication to the Public” broadly to include the transmission of a work by wire or wireless means in a way that allows members of the public to access it from a place and at the individually chosen time. In the context of digital education, this becomes significant because the educational materials uploaded to online platforms can often be easily assessed by students at different times. As a result, the use of copyrighted works in an e-learning environment may involve issues that are different from those found in traditional classroom settings.
The Scope and Limits of Fair Dealing
Although in Malaysia the Copyright Act 1987 grants extensive rights to copyright owners, the law also recognises certain exceptions. For educators and students, one of the most important exceptions is the concept of fair dealing under Section 13(2)(a). To provide greater clarity on the scope of fair dealing, the Copyright (Amendment) Act 2012 introduced Section 13(2A), which requires the court to consider four factors. These include the purpose of the use, the nature of the work, amount of the work used, and the effect of the use on the market value of the original work.
These factors become especially relevant in the context of digital education. For example, sharing a small extract from textbook for classroom discussion may fall under the ambit of fair dealing, but instead of that uploading an entire textbook to a LMS or an online platform where hundreds of students can access and download it may affect the market of original work and can cause a commercial loss to the owner. In such cases, despite being used for educational purposes, it may not satisfy the requirements of fair dealing.
The Act also contains a specific educational exception under Section 13(2)(ff), under which the use of copyrighted work is permitted under certain cases in schools and universities for non-profit educational purposes. Even though this provision supports educational activities, its application to the modern e-learning environment is not always straightforward. The provision was enacted when educational activities were mostly conducted in physical classrooms, whereas now online platforms allow educational materials to be stored, copied and easily sharable on a much larger scale.
Therefore, the key issue for educational institutes is not merely whether the use of copyrighted content serves an educational purpose, but whether it should remain fair when assessed against the statutory factors under Malaysian copyright law. As digital learning continues to expand, educational institutes must balance the access to learning materials in compliance with copyright law.
Institutional Liability and the EdTech Boom
As digital learning continues to expand rapidly at a large scale, the issue of copyright compliance is no longer limited to individual educators only but also involves educational institutions themselves. During the pandemic, there was a rapid adoption of EdTech which created an awareness gap, as faculties and teaching staff were not familiar with the legal requirements for the use of copyrighted material. As a result, now the key question is not limited to whether a copyright infringement has occurred, but also who may be responsible for it.
Section 36(1) of the Copyright Act 1987 states that the copyright may be infringed not only by a person who directly commits an act infringing copyright’s owner right, but also by a person who causes or authorises another person to do so without the permission of the copyright owner. This becomes particularly important, as educational institutions facilitate and manage digital infrastructure, such as the Learning Management System (LMS), through which copyrighted materials are uploaded, stored and distributed to students.
The question of institutional liability may therefore arise where the educational institutes from their official platforms facilitate the distribution of copyrighted material to their students, without implementing any adequate compliance measures. Factors such as the awareness of infringement activity, the level of control of the institution over the platform, and the existence of internal copyright policies may become relevant when assessing responsibility. Therefore, educational institutions should not rely solely on individual educators and should take steps to strengthen the compliance measures and reduce the risk of copyright infringement.
Strategic Solutions: Licensing and Governance
Educational institutions should adopt a more proactive approach to ensure copyright compliance in the digital learning environment. They should not rely solely on the defence of fair dealing, as relying on this exception only may create uncertainty, particularly when copyrighted materials are distributed to a large number of students through online platforms.
A practical solution to tackle these challenges would be for educational institutions to obtain licences through recognised Collective Management Organizations (CMOs) and licensing bodies regulated under Section 27A of the Copyright Act 1987. These licensing arrangements allow educational institutes to use certain copyrighted materials under specific conditions without the requirement to take permission from every copyright owner individually. This will allow institutions to distribute learning materials to their students while at the same time it will help to reduce the risk of copyright disputes.
Educational institutions should also be aware of changes in copyright law. The Copyright (Amendment) Act 2022 introduced by the government shows that Malaysia is placing greater emphasis on digital copyright protection to tackle modern time challenges. In response to future challenges, institutes must formulate internal policies for the use of copyrighted material, provide proper copyright awareness training to teaching staff and implement appropriate compliance measures in their system.
Conclusion
The rapid adoption of e-learning during the COVID-19 pandemic changed the way education is delivered in Malaysia and contributed to the increased use of digital materials. This rapid transition has also exposed important challenges related to copyright compliance, particularly where the copyrighted works are reproduced, uploaded and shared through online platforms.
Even though Malaysian copyright law provides exceptions through the fair dealing defence, it does not provide a blanket exemption for all educational activities. The use of copyrighted materials for the purpose of e-learning must be assessed in pursuant to the statutory requirements of the Copyright Act 1987. As the digital education landscape continues to evolve, educational institutions should focus on balancing access to educational resources while respecting copyright protection through proper licensing, institutional policies, and greater legal awareness among educators.
Author:- Pranjal Gupta, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
Endnotes
- Copyright Act 1987 (Act 332) (Malay.), as amended by the Copyright (Amendment) Act 2022 (Act A1645), pts. VI & VII (providing civil remedies, criminal offences, and enforcement mechanisms for copyright infringement).
- World Intellectual Property Organization (WIPO), Copyright Act 1987 (Act No. 332, as amended up to Act No. A1645), WIPO Lex, https://www.wipo.int/wipolex/en/legislation/details/22674.
- Intellectual Property Corporation of Malaysia (MyIPO), Copyright Basic, https://www.myipo.gov.my/copyright-basic/. (Explaining the scope of copyright protection, protected works, ownership, and enforcement under Malaysian copyright law.)
- Berne Convention for the Protection of Literary and Artistic Works arts. 9–11, Sept. 9, 1886, as revised at Paris, July 24, 1971, 828 U.N.T.S. 221.
- Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) arts. 9–14, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299.