Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors [2019] 1 MLJ 530

Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors [2019] 1 MLJ 530

Court of Appeal (Putrajaya)

Copyright Infringement  

Facts 1.     The Appellant wrote a novel called ‘Aku Bohsia’ (‘the novel’) in 1995, while the First Respondent was the lead actor, scriptwriter, and director of a film called ‘Bohsia: Jangan Pilih Jalan Hitam’ (‘the movie’) in 2009.

2.     The Second Respondent produced the film, and the Third Respondent distributed it.

3.     The Appellant sued the Respondents for infringement of his copyright in the novel after discovering that the movie was substantially similar to his novel in theme, plot, characters, and message, among other things.

4.     In his statement of claim, the Appellant identified several significant similarities between his novel and the film.

5.     The Respondents denied the Appellant’s claim, claiming that they had never read or heard of the novel and that any similarities between the film and the novel were purely coincidental because the subjects of ‘bohsia’ girls and ‘mat rempit’ were well-known to the general public.

6.     The Respondents counterclaimed against the Appellant for defamation damages based on two articles he wrote on his blog alleging that the Respondents had plagiarised his novel for the film.

7.     The High Court dismissed the Appellant’s claim, granted the Respondents’ counterclaim, and awarded them damages of RM100,000.00 each.

8.     The trial judge found that any similarities between the novel and the movie was not the result of copying; that the issues dealt with had been endemic in the country since before the novel came into being and were ‘commonplace, unoriginal or consisted of general ideas’ over which the novel could not claim exclusive ‘ownership’.

9.     The trial judge also determined that the Appellant failed to establish a causal link between the novel and the movie in order to establish that the movie was based on the novel.

10.  The Appellant filed an appeal against the dismissal of his claim as well as the allowance of the counterclaim.

Issue 1.     Whether there were obvious similarities between the novel and the Defendants’ film in terms of theme, character, plot, and underlying message.

2.     Whether the Plaintiff’s blogs on the internet, details as abovementioned, can be considered as defamatory.

Ratios 1.     Whether there were obvious similarities between the novel and the Defendants’ film in terms of theme, character, plot, and underlying message.

(a)    The learned judge had declined to consider the alleged similarities in the Plaintiff’s evidence as the same had not been pleaded in the statement of claim.

(b)    The Court respectfully disagreed with the learned judge’s findings, stating that there is a substantial similarity between the Plaintiff’s novel and the film that cannot be dismissed as coincidental. This demonstrates the learned judge’s obvious lack of judicial appreciation.

(c)    While the ‘bohsia’ phenomenon was prevalent in the 1990s, and the issue of ‘mat rempit’ continued to be a social issue today, the similarities between the novel and the movie are so numerous and relate not just to the general theme, plot, names of characters and places, but more importantly, character traits and specific events and relationships in the lives of the characters, that cumulatively cannot be termed as ‘commonplace, unoriginal or consist of general idea. The obvious conclusion is that the film was based on the novel.

(d)    Some of these similarities were referred to in the statement of claim, in particular the following:

(i)               In the novel, an alcoholic and gambler father raped his own daughter and was pictured as irresponsible. Similarly, in the film, the father raped his own daughter.

(ii)             The main ‘bohsia’ character’s sexual scenes. In the novel, Anne Natasha, who was drunk at the time, awoke at 4 a.m. to discover that all of the ‘Mat rempit’ had had sexual relations with her. In the film, Tasha, a drug addict, had sexual relations with all of the ‘Mat rempit’ at a rented house.

(iii)            In the novel, Anne Natasha goes to a “tea dance” with the intention of drinking alcohol. Tasha goes to a disco in the film with the same intention of attempting to drink alcohol.

(iv)           In the novel, Anne Natasha is scolded and slapped by her parents for not going to school and returning home late. Anne Natasha had witnessed her mother exiting a hotel in Bukit Bintang with a man who was not her father. In the film, Tasha is evicted from her home by her own mother, who throws out her belongings while bringing home other men.

(v)            In the novel, the Bukit Bintang area is a popular meeting place for the ‘bohsia’ girls and their ‘Mat rempit’ friends. Dayabumi and the area behind the Federal Court building are two other options. Similarly, in the film, the ‘Mat rempit’ group got into a brawl in front of Lot 10 in the Bukit Bintang neighbourhood. The ‘Mat rempit’ and ‘bohsia’ meeting grounds are located near the Federal Court building on Dataran Merdeka.

(e)    Given the numerous and significant similarities between the novel and the film, the Court is not persuaded by the Defendants’ submission that the similarities pointed out are similarities in ideas, which are not protected by Section 7(2A) of the Copyright Act 1987 (Act 332).

(f)      Furthermore, the Court felt that the learned judge had placed undue reliance on irrelevant considerations, such as the 14-year gap between the publication of the novel in 1995 and the release of the film in 2009, and that the Plaintiff’s suit against the Defendants was only filed five years later, in 2014.

(g)    According to Section 18 of the Act 332, the duration of copyright protection is fifty years from the date of publication.

(h)    In addition, the Court disagreed with the learned judge’s conclusion that the Plaintiff failed to establish a causal link between the original work and the infringing work because there was no evidence on the sale of the novel, the number of copies sold, or whether the said novel is still available in the market 14 years later.

(i)       The Court affirmed that evidence of a causal connection can be established either directly or indirectly. In this case, the causal link is indirect because the original work was published and thus accessible to the public.

(j)       As a result, even if the novel was no longer in the market, it was presumably still available in libraries and bookstores.

2.     Whether the Plaintiff’s blogs on the internet, details as abovementioned, can be considered as defamatory.

(a)    The Defendants asserted that the Plaintiff’s blog on the internet, titled ‘Elias Hj Idris, Mendepani Masa Depan’ and dated 7 November 2014, with reference to ‘Pengarah Muda Filem Bakal disaman,’ is defamatory.

(b)    Given the Court’s finding that the Defendants had infringed on the Plaintiff’s copyright to his novel, the Plaintiff’s allegation published in his blogs that the Defendant copied his work is protected by the defence of justification.

Decision 1.     The Court allowed the Plaintiff’s appeal as well as the appeal against the finding of defamation and set aside the orders of the learned judge in respect of both the copyright action and defamation.
Key Take Away 1.     Pursuant to Section 7(3) of Act 332-

“A literary, musical or artistic work shall not be eligible for copyright unless:

(a) sufficient effort has been expended to make the work original in character, and

(b) the work has been written down, recorded or otherwise reduced to material form.”

2.     This is further explained in the case of Kiwi Brand (M) Sdn Bhd v Multiview Enterprises Sdn Bhd [1998] 6 MLJ 38 where the court held that the word ‘original’ that appears in Section 7(3)(a) of Act 332 does not mean that the work must be the expression of original or inventive thought but the originality which is required relates to the expression of the thought and must not be copied from another work.

3.     As a result, in order for the author to be entitled to copyright work protection, the author must first demonstrates that the work is original in accordance with Section 7(3) of the Act 332.

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