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In Megnaway Enterprise Sdn Bhd v Soon Lian Hock (sole proprietor of the firm Performance Audio & Car Accessories Enterprise) [2009] 3 MLJ 525 (“Megnaway Enterprise“), at paragraph 41, Low Hop Bing J (later JCA) referred to a number of authorities and summarised the elements for establishing a cause of action of copyright infringement:

“The essential elements constituting copyright infringement have been set out by Sir Rymond Evershed MR in Purefoy Engineering Co Ltd v Sykes Boxall & Co Ltd (1955) 72 RPC 89. Prof Dr Khaw Lake Tee adopted these elements in Copyright Law in Malaysia [1994] at pp 87 and 88 as follows:

For purposes of direct infringement, it must be established that:

(a) there is sufficient objective similarity between the original work or a substantial part thereof, and the infringing copy;

(b) there is a causal connection between the original work and the infringing copy, that is, the infringing copy must have been copied from the original work, whether directly or indirectly; and

(c) what has been infringed must constitute a Substantial Part of The Original Work.” (Emphasis ours)

Megnaway Enterprise was recently affirmed by the Federal Court in Mohd Syamsul bin Md Yusof & Ors v Elias bin Idris [2019] 4 MLJ 788 (“Mohd Syamsul“), at paragraph 26.

Ramly Ali FCJ, at paragraph 27 of Mohd Syamsul, remarked the following in relation to the establishment of the elements for the cause of action of copyright infringement:

“In order to effectively determine the above elements (particularly elements (a) and (c)), legal authorities point to the requirement that it is the duty of the court to examine and evaluate, on evidence, the distinct materials and features of both works in question. Only with such examination and evaluation, the court will be able to make a good comparison to determine the similarities and differences between the two works. Such examination and evaluation must be done on the evidence adduced in court, either in the form of oral testimonies or documents, but not merely on the statement of claim or pleadings (as the statement of claim and pleadings are not evidence, thus cannot establish any factual proof).” (Emphasis ours)

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