What to do when police conduct body search on you?

GENERAL RULE: where no arrest has been made, the police have no right to search your body. You have the right to walk away. Any such body search without your consent is unlawful.

EXCEPTION: body search is allowed under 3 situations:-

i) Body search without arrest
S.17 CPC states that if you are found at a place e.g. karaoke, clubs, entertainment outlet where the police are conducting a lawful raid and looking for something such as drugs, the police may search your body or your bag without arresting you. This must be done in the presence of a police officer who is an inspector or of a higher rank. You may be lawfully detained until the search is completed.

What you should do:
- do not allow the police officer to put his hands into your pockets or bags
- volunteer to empty your pockets or bags in his presence so that you can see all your belongings
- take out your belonging one by one. Each time, say, “purse”, “keys” etc
- when your pockets or bags are empty, turn your pockets o bags inside out

If you are a female:
S.19(2) CPC:
- a female can only be body searched by a female police officer
- the body search must be carried out with strict regard to decency

ii) Body search with arrest
S.20 CPC states that the police have the right to search your body for any object relating to the suspected offence and detain any such object believed to be the instruments/fruits/evidence of the crime until your release.

S.21 CPC states that the police can take away any offensive weapon found on you.

You have the right to request for such body search to be conducted in a private or confined place.

iii) Body search while in lawful custody
S.22 CPC states that this is where you are in a lawful custody but you are unable to give a reasonable account of yourself due to intoxication, illness, mental disorder or infancy, a body search can be carried out for the sole purpose of ascertaining your name and address.

Is strip search legal in Malaysia?
S.20A CPC provides that any body search of a person shall comply with the procedure of search as specified in the Third Schedule of CPC. There are only four types of body search:

(a) pat down search
(b) strip search
(c) intimate search
(d) intrusive search

The procedure of search must be complied strictly for each type of search. With regard to strip search, it can only be done where an arrest has been made and there is a reasonable suspicion that the person is concealing an object, evidence, contraband or weapon on him.

Take note that:
- the search shall be conducted in a private room out of the view of anyone outside the room and no recording or communication devices shall be allowed including phones and cameras.
- Only the officer conducting a search, the second officer and the arrested person shall be present in the private room
- The strip search does not require the arrested person to remove all his/her clothes at the same time
- Therefore, the search shall be divided into upper part and lower part.
- A male person shall be allowed to put on his shirt before removing his trousers
- A female person shall be allowed to put on her blouse and upper garments before removing her pants or skirt

IMPORTANT ADVICE: Should you find that the police officer abuses his power such as use force or threat, remember to take note of his ID or name and lodge a report immediately after the incident.

© 2008 Edwin Lee

What to do when police arrest you?

1st stage (you are outside):
There are two types of arrest, namely, arrest with warrant and without warrant.

Politely ask, “Am I under arrest?”

Immediately after the police inform you that you are under arrest, you have the right to ask, “Why am I under arrest?” If he does not tell you the reason, the arrest is unlawful.

Do not resist a lawful arrest as the police have the right to use reasonable force to arrest you if you resist. The police will immediately take you to the nearest police station and no other places.
Once you are arrested, the police may detain you up to 24 hours for the purpose of investigation. You may be detained at the police station or in a lock-up.

2nd stage (you are in the police station or lock-up):
a) You have the right to be informed reason of your arrest
The police must inform you of the reason of your arrest as soon as possible.

b) You have the right to contact lawyer
GENERAL RULE: S.28A Criminal Procedure Code states that the police must inform you that you may contact your lawyer. The police shall allow a reasonable time for your lawyer to be present to meet you and allow for the consultation to take place.

Thereafter, only the police can begin any questioning or recording of any statement from you.

EXCEPTION : the police may not allow you to exercise this right if he reasonably believe that:
i) it would result in an accomplice taking steps to avoid apprehension; or
ii) it would result in the concealment, fabrication or destruction of evidence or the intimidation of a witness; or
iii) having regard to the safety of other persons, the questioning or recording of statement is so urgent that it should not be delayed

c) You have the right to contact family, relative or friend
GENERAL RULE: You can contact your family, relative or friend and inform them that:
i) you have been arrested
ii) the time, place and reasons of your arrest
iii) the identity of the police officer who arrested you
iv) the police station where you are being detained
v) the duration of your detention

EXCEPTION: the police may not allow you to exercise this right for the reasons similar to the above.

d) You have the right to remain silent
You may choose not to answer the questions asked by the police and say you will answer in court. The police have no right to force you to answer the questions.

f) You have the welfare right such as:
- to have one set of clothing on you
- to take bath twice in a day
- to have proper and adequate food and water
- to have medical treatment if you are sick

g) You have the right to have safe custody of your personal belongings and they must be returned to you upon your release

3rd stage (after 24 hours of detention):
The police may either:
a) release you immediately; or
b) produce you before a Magistrate for a remand order in order to detain you further

How long can a remand order be granted by a Magistrate:
S.117(2) CPC provides that:
If the offence is punishable with imprisonment of less than 14 years:
the detention shall not be more than 4 days on the first application and 3 days on the second application.

If the offence is punishable with death or imprisonment of more than 14 years:
the detention shall not be more than 7 days on the first application and shall not be more than 7 days on the second application.

© 2008 Edwin Lee

What to do when police start questioning you?

Politely ask, “Am I under arrest?”

You are under arrest when one of the following occurs:
a) the police say, “You are under arrest”; or
b) he uses force to restrain you. e.g. he handcuffs you; or
c) by words or conduct, he makes it clear that he does not allow you to leave or he wants to take you to the
police station.

What if you are not under arrest?
GENERAL RULE: Apart from giving him your personal particulars such as name, identity card number and home address, you have no legal duty to help the police with their enquiries. You only owe a moral duty to do so. You can walk away and refuse to follow the police to the police station or anywhere else.

EXCEPTION: if you are aware of the commission of a crime or the intention of any person to commit a crime, you are under legal duty to give such information to the police. Failing which you may be guilty of an offence punishable under S.176 or S.202 Penal Code. If you give false information, you may be guilty under S.177 Penal Code.

© 2008 Edwin Lee

What to do when police stop you?

If he is in uniform:
Take note of his name and ID number on his uniform.

If he is in plainclothes:
Politely ask, “Can you show me your Police Authority Card?” Then, take note of his name and ID number on his uniform.

If the card is in:
Red colour : He is a suspended police officer. He has no authority to stop you or do anything
to you. You have all the rights to walk away.
Blue colour : Rank of inspector and above
Yellow colour : Below the rank of inspector
White colour : Police reserve

© 2008 Edwin Lee

Companies using pirated software

A Warning To Company Directors and Senior Management For Using Pirated Software : Your Employees May Be Watching At You

According to the May 2007 Global Piracy Study conducted by Business Software Alliance (BSA) and International Data Corporation (IDC), software piracy in Malaysia is responsible for over USD$ 289 million of the estimated USD$ 40 billion losses to the software industry worldwide. Compare with last year, the losses in revenue have increased USD$ 140 million although the piracy rate remains 60%. In view of the seriousness of software piracy, the Malaysian Government has shown serious commitment to combat software piracy. The enforcement division of the Ministry of Domestic Trade and Consumer Affairs, as well as the Police, is empowered to raid the premises of an infringer and seize the infringing articles.

BSA is an organization that represents the world’s commercial software industry. BSA works with the Malaysian Government in bringing legal action against companies that use illegal software. As part of their initiative to eradicate software piracy, BSA offers monetary reward of RM 20,000 to informant who reports software piracy which lead to a successfully raid. This offer is open to anyone, includes ex-employee of a company and since the informant can file a report anonymously and all reports will be treated in the strictest confidentiality to protect the identity of the informant, there is even an incentive for informant to report.

In May and July 2007, two informants were given the RM 20,000 reward for reporting software piracy in their company. One of the informant said, “ I had no option but to protect myself as I did not want to be incriminated against should the company be raided for its unethical practice of using pirated software. There is no way I am going to jail for something that I had no part in.” Another informant said, “We kept losing all our work when the computers kept crashing. When that happens, everyone had to start redoing everything from scratch. It was very frustrating when we constantly lost our work although it was no fault of ours. The morale in the company was very low.” Hence, this serves as a warning to company directors that your employees may be watching at you.

Software piracy is the unauthorized copying or distribution of copyrighted software. It can be committed by various means such as copying, downloading, sharing, selling or installing multiple copies onto personal or work computers. Under the Malaysian Copyright Act 1987, use of software without proper licences in the course of conducting business is illegal. If found guilty in a court of law, the business and/or its directors or senior management not only face a criminal record, but also liable to a fine of between RM2,000 and RM20,000 for each infringing copy of software charged, and/or up to five years jail. The offenders may also face possible civil suits by copyright owners, claiming damages, an injunction, an account of profits and other remedies.

Many people do not realize that when you purchase software, you are actually purchasing a license to use it, not the actual software. In that license, it tells you how many times you can install the software. You commit a piracy offence if you make more copies of the software than the license allows. Hence, as a software user, you should only purchase original software for use and it must be used according to the license agreement. It should be noted that each and every copy used in every computer is authorized by the copyright owner. You are not allowed to purchase a single set of original software to load onto more than one computer.

Software piracy is not only a crime, but it can destroy computers and data. Illegal software lacks the quality controls built into original software. As such, using illegal software will put the computer prone to computer viruses, corrupted disks etc. You may lose your data resources due to illegal software. This will in turn lead to loss of time, money, business and credibility. Ethical companies that value integrity should only use original software to run their daily businesses.

According to the study, for every two dollars of software purchased legally, one dollar was obtained illegally. Software piracy not only affects the software industry, but it also deters the software development as there would be no financial incentive for future innovation and the development of new technologies.

Although the global losses in revenues increased by more than USD$ 5 billion, of the 102 countries covered in this year’s study, the piracy rates dropped moderately in 62 countries while increasing in 13. Overall, the steady decline in term of piracy rates is a good progress. In reducing the software piracy, the Malaysian Government has shown serious commitment. The government works with the IT industry, strengthening IP policies, educating consumers and businesses on the benefits of using legal software, introducing companies way to manage their software assets. In respect of enforcement, the government keeps launching raids on premises that use pirated software. The government also employs 2 professionally-trained tracking dogs, “Lucky” and “Flo” which has since helped to bust several optical discs syndicates worth RM 15 million. Last month, the Malaysian Government set up its very first Intellectual Property Court to deal with IP infringement cases. This will help the enforcement actions to be done more efficiently. With all these enforcements and the fact that employees are encouraged to be watchdog i.e. to report software piracy, company directors should not attempt to flout the law and put themselves at risk.

© 2008 Edwin Lee

Comparative Advertising in Malaysia

Comparative Advertising in Malaysia – Allow or not allow?

Comparative advertising occurs when one advertiser compares its goods or services directly or indirectly with others. Such comparison will usually refer to differences in price, quality or value. For instance, where an advertiser lists his goods or services alongside the competitor using the competitor’s trademark.

Comparative advertising is commonplace in the US,[1] but it is not widely used in most other countries, due to cultural norms or government regulation. In the UK, the English courts had decided that when an advertiser used the competitor’s registered trademark for comparative advertising, this was a form of trademark infringement under S.4(1)(b) Trade Marks Act 1938 because one cannot seek to gain on the “good virtues” of the competitor’s goodwill and reputation in selling or promoting its goods.[2] However, in the interest of consumers information, comparative advertising is now allowed under S.10(6) UK Trade Marks Act 1994 which repealed S.4(1)(b) Trade Marks Act 1938. The recent English Court of Appeal case of O2 Holdings v Hutchinson 3G (2007) affirms this proposition of law. In the European Union, comparative advertising is also allowable as can be seen in Art 3a of the Comparative Advertising Directive 97/55/EC.

In Malaysia, the Trade Marks Act 1976 does not expressly disallow comparative advertising. There has yet to be a reported decision of the High Court or higher court on the issue of comparative advertising in Malaysia. However, since S.38(1)(b) Trade Marks Act 1976 is very much similar to the old UK trademark law which disallows comparative advertising, and the fact that UK courts precedent is highly persuasive but not binding to the interpretation of Malaysian law, it is submitted that it is highly likely that comparative advertising is not allowed in Malaysia.

However, it is noted that not all forms of advertisement will be prohibited from comparative advertising. According to the Malaysian Communications and Multimedia Content Code (“Content Code”), comparative advertising is allowable for advertisements communicated electronically i.e. this includes television, radio, online services and audiotext hosting services. The Content Code set out guidelines and procedures for good practice and standards of content disseminated for public consumption by service providers in the communications and multimedia industry. A Complaints Bureau has also been established to deal with complaints.

Part 3 of the Content Code states that:
(a) comparison advertising is allowable in the interest of vigorous competition and public information. It shall, however, respect the principles of fair competition and shall be so designed that there is no likelihood of the consumer being misled as a result of the comparison.

(b) The subject matter of a comparison shall not be chosen in such a way as to confer an artificial advantage upon the advertiser or so as to suggest that a better bargain is offered than is truly the case.

(c) Points of comparison shall be based on facts that can be substantiated and should not be unfairly selected.

(d) Advertisers should not attack or discredit other businesses or their products.

(e) Advertisers should not make unfair use of the goodwill attached to the trademark, name, brand, logo, slogan or the advertising campaign of any other organizations.

Comparative advertising can be in the form of direct or indirect. Direct comparative advertising occurs where the competitors are explicitly named whereas indirect comparative advertising occurs where the name of the competitors are not precisely identified. Famous examples are such as Pepsi over Coca-Cola, Burger King over McDonald’s and Hewlett-Packard over IBM. In Malaysia, since direct comparative advertising is not allowed for printed advertisement, indirect comparative advertising is commonly used as can be seen in the picture 1 where Tesco compares their price of goods with two hypermarkets; picture 2 and 3 where BMW and Audi “congratulate” each others; picture 4 where KFC alleges that their Alaskan Fish Combo has “30% more fish compared with KFC’s nearest competitor” and picture 5 where a telecommunication company added another two different coloured ducks into the advertisement implicating the other two telecommunication companies in which it is a known fact that these three companies are using these three different colours as their companies’ representative colours respectively.

On March 3, 1998, the Comparative Advertising Sub Committee of INTA[3] has unanimously passed a resolution encouraging all countries to permit comparative advertising so long as there are legal controls to prevent harm or damage to the mark of competitors, and to prevent explicit or implicit false or misleading representations or other forms of unfair competition.

The issue on comparative advertising is controversial. On one hand, it is said that the use of another’s trademark without permission of the trademark owner, even if used to identify the goods or services of the trademark owner, constitutes a trademark infringement. Furthermore, a claim by owners of lesser known trademarks that their goods or services are comparable with those well-known marks, constitute an unfair riding on the reputation and goodwill of the trademark owner even if the claims are truthful and not misleading.

On the other hand, however, it is believed that comparative advertising which is not false or misleading, consistent with principles of fair competition and not harmful to the trademark of competitors would encourage innovation and improvements to goods or services. Such a healthy competition would increase the options available to consumers and provide consumers with useful information that can encourage consumers to make more informed purchasing decisions. Moreover, comparative advertising would assist the consumers to evaluate the performance of the competing brands.

The very advantage of comparative advertising is that it is informative. A competing brand can highlight the superiority of their goods or services and thereby compare it with the competitor brand that is something that consumers are unable to do so before they purchase the goods. A check and balance is provided in which trademark owners have several legal remedies. If the advertisement is found out to be false or misleading, severe punishment will be imposed accordingly. They can also seek for injunctions to stop offending advertisements. A common law remedy under tort of injurious falsehood can also be initiated if the advertisement goes beyond mere puff whereby it serves to denigrate or disparage the trademark owner’s brand. This in effect would reduce the chances of false advertisement.

Although the Content Code is merely a self-regulation that based on voluntary compliance, as opposed to enforceable laws, however, by virtue of it being a voluntary Code, those subscribing to it have undertaken the commitment and responsibility to uphold its objectives and principles. Failure to comply with the Content Code will subject to sanction imposed by the Complaints Bureau and also the adverse publicity which most advertisers will wish to avoid.

Conclusion:
Comparative advertising is a young phenomenon in Malaysia, but it is excited to see advertisers started to make use of it. A lot of advertisers shun away from comparison advertising for the fear of trademark infringement lawsuit which to some extent it is true because comparative advertising is itself a trademark infringement in the first place. However, with the increase pressure for fair competition, we can anticipate that the trademark law may be amended in the near future to accommodate comparative advertising.

Comparative advertising is the most effective way for companies to tell the truth. Hence, businesses are encourage to be a little more aggressive and use comparative advertising to inform consumers of the best option available.

Therefore, businesses, feel free to compare!

reference:
[1] In the US, federal advertising legislation is found in two major laws : the Federal Trade Commission Act and the Trademark (Lanham) Act
[2] Bismag Ltd. v. Amblins (Chemists) Ltd. [1940] RPC 209
[3]http://www.inta.org/index.php?option=com_content&task=view&id=217&Itemid=153&getcontent=3

© 2008 Edwin Lee

Copyright Law Protects Reverse Engineering?

How Far Does the Malaysian Copyright Law Protect Reverse Engineering?

When a product or a substantial part of a product is reproduced by indirectly copying through inspecting and measuring the product or substantial part of the product (three-dimensional or 3D) without looking at the drawings of the product (two-dimensional or 2D), this amounts to a copyright infringement of the product and this method is known as reverse engineering. Reverse engineering has become a feasible method to create a 3D model with the help of 3D scanning technologies such as CMMs, laser scanners, structured light digitizers or computer tomography which is used to measure the physical aspects of a product.

In Malaysia, the Copyright Act 1987 is silent on the question of reverse engineering. In this instance, the question of whether reverse engineering is a copyright infringement was considered for the first time in the case of Peko Wallsend Operations Ltd v Linatex Process Rubber Bhd [1993] 1 MLJ 225. This case delved on the scope of protection afforded for engineering drawings originating from a member country of Berne Convention since Malaysia became a member in 1990. It was held that :

(1) Since the Copyright Act 1987 states that any work shall be protected irrespective of their quality and the purpose for which they were created, hence engineering drawings would be included as a form of artistic works and 2D work is entitled to copyright protection.

(2) A finished product (3D work) manufactured from an engineering drawing (2D work) may be protected in its own right as an artistic work, provided it is original. Therefore, 3D work is also afforded copyright protection.

(3) Since direct copying is a copyright infringement, it is only right and proper to conclude that indirect copying of an engineering drawing is also an infringement.

The court followed the English case of British Leyland Motor Corp. Ltd. v Armstrong Patents Co. Ltd. [1986] 1 All ER 850 and held that any material reproduction of the whole or a substantial part of the 3D works by reverse engineering amounts to a copyright infringement in the 3D works.

The question then arises as to whether it is a copyright infringement if someone reproduces an identical spare part of a product by way of reverse engineering for the purpose of repair. In British Leyland case, the House of Lords held that there cannot be a monopoly in the supply of spare part because car owners have an inherent right to repair their cars in the most economic way and they should therefore have access to a free market in spare parts.

However, the court in Peko Wallsend case distinguished the British Leyland case on the ground that since Malaysian copyright law does not have such a similar concept of “access to a free market in spare parts”, any reproduction of identical spare part by way of reverse engineering is a form of copyright infringement.

The local court in a recent case of Honda Giken Kogyo Kabushiki Kaisha v Allied Pacific Motor (M) Sdn Bhd [2005] 3 MLJ 30 also reaffirmed the protection as propounded in Peko Wallsend case. A Japanese company, Honda brought a suit against a local company, alleging infringements of its registered designs and copyright works in the design of motorcycle by the local company. The court followed the decision Peko Wallsend case and confirmed that the plaintiff’s 2D drawings and 3D works, embodied in the form of a motorcycle, are protected by Malaysian copyright law. It was held that the plaintiff’s drawings were similar to the eventual product of the defendant products and hence there was a copyright infringement when the defendant’s products were produced or substantially reproduced.

It is worth mentioning that the court in the Honda Giken case also followed the decision in Peko Wallsend case and ruled that according to the Copyright (Application to Other Countries) Regulations 1990, any work originating from any of the specified countries under the Berne Convention, regardless of time, subject to the eligibility under the Act, shall be entitled to copyright protection in Malaysia, regardless of whether it enjoyed protection or not in that specified country.

As a conclusion, it is clear that reproducing the 2D or 3D works, either directly or indirectly, is a copyright infringement. Hence, manufacturers are rest-assured that their 2D engineering drawings and 3D products are given adequate protection under the Malaysian Copyright Act 1987.

© 2008 Edwin Lee