Property owners should not be held responsible for tenants’ wrongdoings

PETALING JAYA: A group of associations have on Tuesday, June 29, opposed the government's proposed amendments to the Copyright Act 1987, under which it holds the landlords responsbile for tenants' infringements.

Associated Chinese Chambers of Commerce and Industry of Malaysia (ACCCIM) national council member Datuk Teo Chiang Kok said that under the New S 36 (2B), item (B) (d) Liability of the Owner of Premises Used for infringing Activities, the landlord has to police the usage of their property by the tenant, during a joint-press conference held on June 29.

“We cannot simply march into the premises to check on their activities because this will interfere with the Quiet Enjoyment of the demised premises,” he told reporters.

The joint-press conference was organised by ACCCIM, Real Estate and Housing Developers’ Association Malaysia (REDHA), Malaysian Association for Shopping and Highrise Complex Management (PPKM), Malaysia Retailers Association (MRA), Malaysia Retailer-Chains Association (MRCA), Building Management Association of Malaysia (BMAM) and International Real Estate Federation (FIABCI) Malaysian Chapter.  

“For example, how are you going to check all the CDs in a premise to see whether your tenant is selling only genuine products? We do not even have the skills to differentiate the replicas from the genuine ones,” said executive council member of REDHA, Datuk Eddy Chen Lok Loi.

“The policing works have to go back the party who enforces the law, as the landlords are not trained to do it,” he added.

Teo said the amendments are unreasonable from the point of enforcement of public law.

“The government must not and should not shift their roles in enforcement of laws onto such private individuals like the property owners,” he said.

According to the Act of Trespass prohibited by Section 7(2) of the Specific Relief Act 1950, the landlord is prevented from entering the Demised Premises and taking possession of the infringing materials.

“There must be due process of law to evict the tenant and recovery of vacant possession. The remedy of self-help does not exist in Malaysia,” Teo said.

Furthermore, he said there are many landlords, both local and foreign, who are property investors who engage professional property agents to manage their properties.

“To be vicariously held responsible for their tenants’ wrongdoings is most unfair and unjust.

“This imposition will be badly received by the investors, and will dampen property as an investment products,” Teo said, adding that landlords will be scared to rent out their properties.

“This will be detrimental and negate all the efforts by the government to make Malaysia a preferred destination for international property investment. In the present situation of drastic drop in the foreign direct investments (FDIs), any obstacles and uncertainties put in the path of the property investments will further reduce FDIs in property investment as well,” he said.

“Is the government and the related authorities ready to provide full indemnity if the landlords are required to trespass onto tenanted premises and business operations on mere suspicion of copyright infringement?” Teo questioned.

According to Teo, the associations had been trying to point out these problems to the government for three years now by sending memorandums to the Ministry of Domestic Trade.

“But it doesn’t bring any changes even though we had brought that matter in the dialogue where the minister attended,” he said.

“They told us that they will table the amendment in the parliament soon, which is something that really worries us,” he added.

Meanwhile, they also voiced out their dissatisfaction over the proposed New S 41(2), the liability of having in possession one copy of infringing material for commercial purpose.

It was claimed that the reduction from three copies to one copy has broaden the scope of enforcement and open up opportunities for abuse of power and corruption.

“The ordinary man do not have adequate knowledge to determine whether any material they have has infringed the law. Replicas are now so well-produced that there are indeed instances when even the experts were misled,” Teo said.

“It is not appropriate to punish the common man, but not the source and perpetrator of those in the business of infringing upon the copyright,” he added.

On the other hand, the association also proposed that Music Authors’ Copyright Protection (MACP) Sdn Bhd, Performers & Artistes Rights (Malaysia) Sdn Bhd (PRISM) and Public Performance Malaysia Sdn Bhd (PPM) to upload some information that included the agreements with the respective artistes or performers to enforce their rights as conferred by the Malaysia Copyright Act 1987 and disclosure of disbursements to the authors or owners of copyright on the internet, in order to ensure that no copyright materials were infringed.
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