OPTICAL DISCS ACT 2000

This Act shall come into operation on a date to be appointed by the Minister by notification in the Gazette, and the Minister may appoint different dates for different provisions of this Act.

Interpretation

any medium or device listed in Schedule 1; or

any other medium or device on which data may be stored in digital form and read by means of a laser, and includes any such medium or device manufactured for any purpose, whether or not any data readable by means of a laser or any other means has been stored on it;

“owner of copyright” means the owner of copyright within the meaning of the Copyright Act 1987;

“place” means any area on land or water and includes a building, structure or enclosure, whether movable or not;

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“prescribed” means prescribed by regulations made under this

Act;

“register” means the register kept by the Controller under this

Act;

“this Act” includes any regulation made under this Act.

For the purpose of this Act, a person is engaged in the manufacture of optical discs if he owns, directs, manages or otherwise has control of a business which undertakes the manufacture of optical discs.

The Controller shall, subject to the general direction and control of the Minister, perform the functions and duties imposed and may exercise the powers conferred upon him under this Act.

The Deputy Controllers, Assistant Controllers and other officers appointed under subsection (1) shall be under the direction and control of the Controller.

The Controller and the Deputy Controllers may perform all the functions and duties imposed and may exercise all the powers conferred upon an Assistant Controller under this Act.

A Deputy Controller may perform all the functions and duties imposed and may exercise all the powers conferred upon the Controller under this Act except the powers under Part III.

Notwithstanding subsection (5), the Controller may delegate to a Deputy Controller any of his powers under Part III, and when so delegated such power shall be exercised by the Deputy Controller under the control of and subject to such directions and restrictions as may be specified by the Controller.

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A delegation under subsection (6) may be revoked at any time by the Controller and shall not prevent the Controller from himself exercising the delegated powers.

All officers appointed under this section shall be deemed to be public servants within the meaning of the Penal Code [Act 574].

Where a person proposes to manufacture optical discs at more than one place, he may make one application for a licence in respect of all those places.

The Controller may, at any time after receiving the application under subsection (1) and before it is determined, by a written notice require the applicant to provide such additional documents or information as the Controller deems necessary.

Where any additional document or information required under subsection (3) is not provided by the applicant within the time specified in the notice or any extension thereof granted by the Controller, the application shall be deemed to be withdrawn and shall not be further proceeded with, but without prejudice to a fresh application being made by the applicant.

An application under this section may be withdrawn at any time before it is granted or refused.

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Grant or refusal of a licence

If the Controller grants a licence under subsection (1), he shall—

A licence shall be deemed to have not been granted if the fees required under paragraph (2)(a) are not paid within the prescribed period.

Where the Controller refuses to grant a licence, he shall immediately notify the applicant in writing of his refusal without assigning any reason for the refusal.

Where the Controller grants a licence in respect of the application made under subsection 6(2), the Controller shall issue a separate licence for each place of manufacture.

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Validity of licence

impose any new or additional conditions on the licence;

vary or revoke any condition imposed on the licence; or

vary or revoke any condition already varied under paragraph

.

Where the Controller proposes to take an action under subsection (1), he shall give the licensee—

After the expiry of the period of fourteen days, and after considering any representation made by the licensee, the Controller shall decide whether to impose, vary or revoke any condition under subsection (1) or to take no further action.

The Controller shall give the licensee a written notice of his decision under subsection (3).

Revocation of licence

the licensee has failed to comply with any obligation imposed upon him under this Act;

the licensee has contravened any of the conditions of the licence, or any provision of this Act, regardless of the fact that there has been no prosecution for an offence in respect of such contravention;

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the licensee has been convicted of an offence under this

Act;

the licensee or any person who is or is to be a director, manager, secretary or other similar officer of the licensee has, either in connection with the application for the licence, or at any time after the grant of the licence, provided false or misleading or inaccurate information to the Controller; or

the licensee has ceased to carry on the business of manufacturing optical discs.

Before revoking a licence, the Controller shall give the licensee a notice in writing of his intention to do so and require the licensee to show cause within fourteen days as to why the licence should not be revoked.

After the expiry of the period of fourteen days and after considering any representations made by the licensee, the Controller shall decide whether to revoke the licence or to take no further action.

The Controller shall give the licensee written notice of his decision under subsection (3).

The revocation of a licence shall take effect—

The surrender shall take effect on the date the Controller receives the licence and the notice under subsection (1) or where a later date is specified in the notice, on that later date.

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Effect of revocation, surrender or expiry of licence

A licensee who transfers his licence to another person without the approval of the Controller commits an offence.

The Controller may approve the transfer of the licence if—

An application for the transfer of a licence shall be made in writing to the Controller.

Renewal of licence

A licensee who contravenes subsection (1) commits an offence.

Register

The Controller shall make the register available for public inspection subject to such conditions as he thinks fit.

Maintenance of records

The records shall be—

A licensee shall submit the records and furnish other relevant documents and information as and when required by the Controller within such time as may be specified by the Controller, except where any trade secret would be disclosed if the document or information is so furnished.

A licensee who contravenes subsection (1), (2) or (3) commits an offence.

Appeal

The Minister may confirm, reverse or vary the decision of the Controller appealed against.

The decision of the Minister under subsection (2) shall be final.

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A licensee who contravenes subsection (1) commits an offence.

In this section, “marked” means to be marked in accordance with the standards prescribed under section 20.

Marking standards

Without limiting the generality of subsection (1), the Minister may prescribe—

forges a manufacturer’s code;

falsely applies to an optical disc a manufacturer’s code or any mark so resembling a manufacturer’s code as to be calculated to deceive;

makes any die, block, machine or other instrument for the purpose of forging, or which is capable of being used for forging, a manufacturer’s code;

disposes of or has in his possession any die, block, machine or other instrument for the purpose of forging a manufacturer’s code; or

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causes to be done anything referred to in paragraph (a),

, (c) or (d), commits an offence.

In any proceedings for an offence under subsection (1), it shall be a defence for the person charged to prove that he acted without intent to deceive or defraud.

The Controller may, before issuing a code of conduct under subsection (1), consult with such body representing the persons to whom the code of conduct will apply and other interested persons as he thinks fit.

The code of conduct issued by the Controller under subsection

shall be published in the Gazette.

Revocation, etc., of code of conduct

The Controller may, before revoking, amending or revising a code of conduct, consult with such body representing the persons to whom the code of conduct applies and other interested persons as he thinks fit.

The provisions of the code of conduct revoked, amended or revised by the Controller under subsection (1) shall be published in the Gazette.

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Civil penalty for non-compliance

Notwithstanding the provisions of any other written law, the fine payable under this section may, without prejudice to any other remedy or sanction, be recoverable as a civil debt.

Compliance with code of conduct a legal defence

if such person is a body corporate, to a fine not exceeding five hundred thousand ringgit, and for a second or subsequent offence to a fine not exceeding one million ringgit; or

if such person is not a body corporate, to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both, and for a second or subsequent offence to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding six years or both.

Where a person being a director, manager, secretary or other similar officer of a body corporate is guilty of an offence under subsection (1) by virtue of section 30, he shall on conviction be liable to the penalty provided for in paragraph (1)(b).

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Offences with respect to information

if such person is a body corporate, to a fine not exceeding five hundred thousand ringgit, and for a second or subsequent offence to a fine not exceeding one million ringgit; or

if such person is not a body corporate, to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both, and for a second or subsequent offence to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding six years or both.

Any person who—

Where a person being a director, manager, secretary or other similar officer of a body corporate is guilty of an offence under subsection (1) by virtue of section 30, he shall on conviction be liable to the penalty provided for in paragraph (1)(b).

Nothing in this section shall be construed as requiring a person to answer any question or to give any information if the answer or information would have a tendency to expose him to a criminal charge, penalty or forfeiture.

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Disappearance or destruction of article, etc., to be seized

Nothing in subsection (1) shall operate to prevent the disclosure of information where the disclosure is made—

Any body corporate which commits an offence under this

Act for which no penalty is expressly provided shall on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit, and for a second or subsequent offence it shall be liable to a fine not exceeding five hundred thousand ringgit.

Where a person being a director, manager, secretary or other similar officer of a body corporate is guilty of an offence under this Act by virtue of section 30, and no penalty is expressly provided for such offence, he shall be liable to the penalty provided for in subsection (1).

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Compounding of offences

An offer under subsection (1) may be made at any time after the offence has been committed, but before any prosecution for it has been instituted, and where the amount specified in the offer is not paid within the time specified in the offer or within such extended period as the Controller or a Deputy Controller or any person authorized in writing by the Controller may grant, prosecution for the offence may be instituted at any time thereafter against the person to whom the offer was made.

Where an offence has been compounded under subsection

—

Every Assistant Controller or police officer, when acting against any person under this Act, shall declare his office and shall on demand produce to the person against whom he is acting such authority card as the Controller may direct to be carried by such

Assistant Controller or as the Inspector General of Police may direct to be carried by such police officer.

Power of investigation

For the purposes of subsection (1), the Assistant Controller or police officer may issue orders to a licensee to further his investigation and secure compliance with this Act.

In addition to his powers under subsections (1) and (2), an

Assistant Controller or a police officer not below the rank of

Inspector investigating an offence under this Act may exercise all or any of the powers in relation to police investigation in seizable cases given by the Criminal Procedure Code [Act 593].

Additional powers

visit, enter, inspect and examine with or without notice any licensed premises at any reasonable hour;

require the production of record, books, accounts, computerized data or documents kept by the licensee and inspect, examine and copy any of them;

require the production of any identification document from any person in relation to any case or offence under this Act; or

make such inquiry as may be necessary to ascertain whether the provisions of this Act have been complied with.

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Search by warrant

An Assistant Controller or a police officer not below the rank of Inspector may, in the premises entered under subsection

, search and seize any article, optical disc, thing, book or document, including computerized data, which contain or is reasonably believed to contain information as to any offence suspected to have been committed and is likely to disclose evidence of the commission of any offence under this Act.

An Assistant Controller or a police officer not below the rank of Inspector conducting a search under subsection (1) may, if in his opinion it is reasonably necessary to do so for the purpose of investigating into the offence, search any person who is in or on such premises but no female person shall be searched except by another female person.

An Assistant Controller or a police officer not below the rank of Inspector entering any premises by virtue of this section may take with him such other persons and such equipment as may appear to him necessary.

An Assistant Controller or a police officer not below the rank of Inspector shall, on leaving any premises, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as he found them.

An Assistant Controller or a police officer not below the rank of Inspector making a search of a person under subsection

may seize, detain or take possession of any article, optical disc, thing, book or document found on such person for the purpose of the investigation being carried out by such officer.

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Where, by reason of its nature, size or amount, it is not practicable to remove any article, optical disc, thing, book or document, seized under this section, the seizing officer shall, by any means seal the article, optical disc, thing, book or document in the premises or container in which it is found.

A person who, without lawful authority, breaks, tampers with or damages the seal referred to in subsection (7) or removes any article, optical disc, thing, book or document under seal or attempts to do so commits an offence.

Search and seizure without warrant

Where the premises are unoccupied, the seizing officer shall whenever possible post a list of the things seized conspicuously on the premises.

Warrant admissible notwithstanding defects

In this section, “access” includes being provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of computerized data.

Power to require attendance of person acquainted with case

If any person refuses to attend as so required, the Assistant

Controller or police officer not below the rank of Inspector may report such refusal to a Magistrate who shall issue a summons to secure the attendance of such person as may be required by the order made under subsection (1).

Examination of person acquainted with case

The person examined under subsection (1) shall be legally bound to answer all questions relating to such case put to him by the Assistant Controller or police officer, but such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

A person making a statement under this section shall be legally bound to state the truth, whether or not such statement is made wholly or partly in answer to the questions.

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An Assistant Controller or a police officer not below the rank of Inspector examining a person under subsection (1) shall first inform that person of the provisions of subsections (2)

and (3).

A statement made by any person under this section, whether or not a caution has been administered to him under subsection 45(2) shall, whenever possible, be reduced into writing and signed by the person making it or affixed with his thumb print, as the case may be—

The statement referred to in subsection (1)—

Notwithstanding anything to the contrary contained in any written law, a person in respect of whom subsection (1) applies shall not be bound to answer any question relating to the case after a caution under subsection (2) has been administered to him.

Forfeiture of articles, etc.

The court trying any person accused of an offence under this Act may at the conclusion of the trial, whether he is convicted or not, order that the articles, optical discs, things, books or documents seized from that person be destroyed or, in the case of infringing copies, be delivered up to the first owner of the copyright in question, or his assignee or exclusive licensee, as the case may be.

Where there is no prosecution with regard to any article, optical disc, thing, book or document seized in exercise of any powers conferred under this Act, the article, optical disc, thing, book or document shall be taken and deemed to be forfeited at the expiration of one calendar month from the date it was seized unless a claim thereto is made before that date in the manner set out in subsections (4), (5) and (6).

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Any person asserting that he is the owner of any article, optical disc, thing, book or document seized under this Act and that the article, optical disc, thing, book or document is not liable to forfeiture may personally or by his agent authorized in writing by him give written notice to an Assistant Controller of his claim.

On receipt of a notice under subsection (4), the Assistant

Controller shall refer the notice to the Controller who may, after such enquiry as may be necessary, direct that such article, optical disc, thing, book or document be released or forfeited or refer the matter to the Court of a First Class Magistrate for decision.

The court to which the matter is referred shall issue a summons requiring the person asserting that he is the owner of the article, optical disc, thing, book or document and the person from whom it was seized to appear before the court and upon their appearance or default to appear, due service of the summons being proved, the court shall proceed to the examination of the matter, and on proof that an offence under this Act has been committed and that such article, optical disc, thing, book or document, was the subject matter or was used in the commission of such offence, shall order the article, optical disc, thing, book or document to be forfeited or may, in the absence of such proof, order the release of such article, optical disc, thing, book or document to the person entitled to it.

Any article, optical disc, thing, book or document forfeited or deemed to be forfeited shall be delivered to the Controller who shall dispose of it in a manner he deems fit.

Cost of holding article, etc., seized

If any book, document, record or paper which is in evidence or is liable to inspection in any civil or criminal proceedings contains any entry in which any informer is named or described or which might lead to his discovery, the court shall cause all such entries to be concealed from view or to be obliterated so far only as may be necessary to protect the informer from discovery.

If in a trial for any offence under this Act the court after full inquiry into the case believes that the informer wilfully made in his complaint a material statement which he knew or believed to be false or did not believe to be true, or if in any other proceeding the court is of the opinion that justice cannot be fully done between the parties to the proceeding without the discovery of the informer, it shall be lawful for the court to require the production of the original complaint, if in writing, and permit inquiry and require full disclosure concerning the informer.

Reward for information

The Minister may, at any time by order published in the

Gazette, revoke any order made under subsection (1) if he is satisfied that such exemption should no longer be granted.

Protection of officers