Number of IP cases forces government to consider specialized court

Malaysia

The Malaysian government is considering the need for a specialized court to handle cases involving intellectual property. The move was triggered by the minister of domestic trade and consumer affairs, who is concerned about the increasing number of IP cases coming before the courts, as well as a backlog of cases awaiting resolution.

Under the present system, all civil cases involving IP matters are heard in the already overburdened commercial courts, and criminal prosecutions (eg, against counterfeiters) are heard before the lower session courts.

However, the lack of convictions has raised public concerns about the efficacy of the enforcement system. For instance, despite relentless efforts by the government to eradicate piracy, there has not been a single conviction of a software pirate under the Copyright Act. This has been attributed to a combination of (i) ill-prepared evidence, and (ii) a lack of resources available to public prosecutors compared to highly skilled defence lawyers.

Although setting up a specialized IP court may promote greater specialization among judges, giving them an increased understanding of IP law issues, it is questionable whether it would help to reduce the piracy rate. It may be that, upon establishment of the special court system, IP practitioners would enter into an arena where the rights of IP owners may be either fortified or diluted through the IP court's decisions.

Kherk Ying Chew and Alan Ng, Wong & Partners, Kuala Lumpur

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