Nurul Hanani A.
Legal Associate
Some of you may have been eyeing a particular item, from a particular brand. Unfortunately, such an item is beyond your tax bracket. So, what choice do you have other than to resort to a cheaper alternative? (Fret not, I believe a lot of us are guilty of this). Some call these cheap alternatives as “dupes”. This is short for “duplicate”, or the rather unpleasant word – replicas.
While some argue that dupes are a form of homage or affordable alternatives, others (especially the big brands who are being duplicated!) may see them as potential threats to the intellectual property rights of the original creators.
In Malaysia, the Copyright Act 1987 provides for protection for various forms of creative works. While that is the case, the act does not make a mention of the term “duplicate”. Instead, it focuses on the protection of original works and the exclusive rights granted to the creators of those works.
So, the question is: are all dupes considered infringement?
- If the similarities are too many, so close and extensive that a person viewing the dupe might consider that it is likely the result of copyright, rather than coincidence. How do you determine this? By a direct comparison between the original work and the dupe. If a person looking at the dupe would think that it was the original work, then this is fulfilled.
- Then, if there are sufficient similarities, comes to the second consideration: is there a connection between the original work and the dupe? Are they in the same category of work? Do they have the same target audience?
- If they tick 2 of the above, then it leads to the conclusion that the dupe is indeed an infringement of copyright.
This is when the creator of the dupe would come in and defend their work by showing that it is an independent creation.
The issue of whether dupes infringe copyright in Malaysia is complex. While it is fine to take inspiration from others, there should be a line between outright copying and being inspired by a creation. Balancing the protection of creators’ rights with fostering creativity is crucial. Our Copyright Act 1987 embodies this.
As a creator, if you ever find your work being duplicated, you can sue the duplicator for damages (as compensation), injunctions (to stop them from duplicating further and to deliver the dupes) and more. Feel free to reach out if you’re in this situation.