MALAYSIA
Since September 2012, entry into force in December 2012
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Signature of the WIPO Performances and Phonogram Treaty
WIPO Performances and Phonograms Treaty
Malaysia has ratified the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty.
Coverage Horizontal
MALAYSIA
Since May 1987, as amended in July 2012
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Copyright law with clear exceptions
Copyright Act of 1987
Malaysia has a clear regime of copyright exceptions that follows the fair dealing model, which enables the lawful use of copyrighted work by others without obtaining permission (Copyright Act of 1987). Arts. 9-13 list the exceptions including purposes of research, private study, criticism, review or the reporting of news or current events, among others.
Coverage Horizontal
MALAYSIA
Reported in 2017, and 2018
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Enforcement of copyright online
Lack of adequate enforcement of copyright online
Copyright is not adequately enforced online in Malaysia. It is reported that mobile device piracy is a problem in the country. Mobile phones, tablets, flash drives, and other mobile devices can either be pre-loaded with illegal content before being sold to customers or customers can directly download infringing content. However, it is reported that the rate of unlicensed software installation in the country was 51% in 2017 (below the 57% rate of the Asian Pacific countries), for an estimated commercial value of USD 598 million.
Coverage Horizontal
MALAYSIA
Since August 2006
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Participation in the Patent Cooperation Treaty
Patent Cooperation Treaty
Malaysia is a party to the Patent Cooperation Treaty (PCT). However, the country does not consider itself bound by Art. 59 related to disputes.
Coverage Horizontal
MALAYSIA
Since November 1986
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Practical or legal restrictions related to the application process for patents
Patents Act 1983
There is no discrimination towards foreign applicants. However, there are restrictions for national applicants wishing to apply for patents internationally. They must file in Malaysia initially before becoming eligible to apply for patents in other countries, two months subsequent the date of filing, assuming they are not notified by the Malaysian Patent Office.
Coverage Horizontal
Sources
- https://www.mirandah.com/patent-system/malaysia/
- http://ip-science.thomsonreuters.com/m/pdfs/dwpicovkinds/malaysia.pdf
- https://www.fpapatents.com/malaysia-filing-grant
- http://www.myipo.gov.my/wp-content/uploads/2016/09/PATENT-ACT-1983-ACT-291.pdf
- https://www.mirandah.com/patent-system/malaysia/
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MALAYSIA
Since September 2016, latest amendment in July 2019
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Commercial presence requirement for digital services providers
Companies Act 2016 No. 777
A foreign company may carry on business in Malaysia by either incorporating a local company or registering a branch in Malaysia.
Coverage Horizontal
MALAYSIA
Since February 1969
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Screening of investment and acquisitions
Ministerial Functions Act
Foreign investments in services, whether in fully liberalized or controlled sub-sectors, are subject to review and approval by ministries and agencies with jurisdiction over the relevant sectors. A key function of this review and approval process is to determine whether proposed investments meet the government's qualifications for the various incentives in place to promote economic development goals. The Ministerial Functions Act grants relevant ministries broad discretionary powers over the approval of investment projects. Investors in industries targeted by the Malaysian government can often negotiate favorable terms with the ministries or agencies responsible for regulating that industry. This can include assistance in navigating a complex web of regulations and policies, some of which can be waived on a case-by-case basis. Foreign investors in non-targeted industries tend to receive less government assistance in obtaining the necessary approvals from various regulatory bodies and therefore can face greater bureaucratic obstacles.
Coverage Telecommunications sector
MALAYSIA
Since September 1998, entry into force in April 1999, las amended in Januray 2006
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Maximum foreign equity share
Communications And Multimedia Commission Act 1998 [Act 588]
According to Art. 14 of the Communications And Multimedia Commission Act 1998 [Act 588], the Minister may make rules, to be published in the Gazette, in respect of agreements between licensees, and foreign network facilities providers and/or network service providers. It is reported that foreign equity restrictions are imposed by the different Ministries, rather than by a central body, and they can also impose equity restrictions as a condition to obtain a license. Regarding the telecom sector, 70% foreign participation is permitted in network facilities provider or network service provider license categories, although in certain instances Malaysia has allowed greater equity participation.
Coverage Telecommunications sector
Sources
- https://ustr.gov/sites/default/files/files/reports/2021/2021NTE.pdf
- https://www.wto.org/english/tratop_e/tpr_e/s292_e.pdf
- https://www.wipo.int/wipolex/en/text/228709
- http://www.oecd.org/daf/inv/investment-policy/Southeast-Asia-Investment-Policy-Perspectives-2014.pdf
- https://www.aseanbriefing.com/news/foreign-investment-restrictions-across-asean-an-overview-of-the-regions-negative-lists-part-three/
- https://openknowledge.worldbank.org/bitstream/handle/10986/33597/Malaysia-2019-Investment-Policy-and-Regulatory-Review.pdf?sequence=1&isAllowed=y
- https://www.state.gov/reports/2020-investment-climate-statements/malaysia/
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MALAYSIA
Since September 2016
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Requirement to engage in joint ventures to invest or operate
Companies Act 2016
The Companies Act 2016 prescribes the minimum number of directors in a company. Section 196(1) provides that a private company shall have a minimum of one director who ordinarily resides in Malaysia by having a principal place of residence in Malaysia (‘resident director’). For a public company, it shall have a minimum of two resident directors.
Coverage Horizontal
MALAYSIA
Reported in 2014
Pillar Public procurement of ICT goods and online services |
Sub-pillar Other limitations on foreign participation in public procurement
Restriction in public procurement
It is reported that the Multimedia Development Corporation (MDC) of Malaysia has publicly announced that bids from firms investing in the Multimedia Super Corridor receive priority consideration when the government awards major contracts associated with development of the corridor (i.e. flagship applications). In addition, in international tendering, domestic (bumiputera) suppliers benefit from a preferential treatment, consisting in a price bonus. For suppliers and services contracts between RM 100,000 (USD 23,500) and RM 15 million (USD 3.5 million), the margin of preference is between 2.5% and 10% and is inversely proportional to the value.
For local manufacturers producing goods locally, the margin is up to 10% for contracts valued below RM 10 million (USD 2.3 million) and up to 3% for contracts valued above RM 10 million. No preferences are provided for purchases exceeding RM 15 million. This practice seems to persist since 1995. Furthermore, it is reported that all individuals, companies or corporate bodies intending to participate in government procurement of works, supplies and services are required to be approved by and registered with the Ministry of Finance. Procurement also often goes through middlemen rather than directly with the governmental entity or is negotiated rather than tendered.
For local manufacturers producing goods locally, the margin is up to 10% for contracts valued below RM 10 million (USD 2.3 million) and up to 3% for contracts valued above RM 10 million. No preferences are provided for purchases exceeding RM 15 million. This practice seems to persist since 1995. Furthermore, it is reported that all individuals, companies or corporate bodies intending to participate in government procurement of works, supplies and services are required to be approved by and registered with the Ministry of Finance. Procurement also often goes through middlemen rather than directly with the governmental entity or is negotiated rather than tendered.
Coverage Horizontal
Sources
- https://ustr.gov/sites/default/files/2015%20NTE%20Combined.pdf
- https://trade.ec.europa.eu/access-to-markets/en/barriers/details?isSps=false&barrier_id=11404
- http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=TAD/TC/WP(2018)2/FINAL&docLanguage=En
- https://www.wto.org/english/tratop_e/tpr_e/s292_e.pdf
- https://ppp.treasury.gov.my/topik/fail/4/muat-turun
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MALAYSIA
N/A
Pillar Public procurement of ICT goods and online services |
Sub-pillar Signatory of the WTO Agreement on Government Procurement (GPA)
Lack of participation in the WTO Agreement on Government Procurement (GPA)
Malaysia is not a party to the World Trade Organization (WTO) Agreement on Government Procurement (GPA). However, the country has been an observer of the WTO GPA since 2012.
Coverage Horizontal
MALAYSIA
Reported in 2021
Pillar Public procurement of ICT goods and online services |
Sub-pillar Exclusion from public procurement
Restriction in public procurement
It is reported that international tendering is only allowed when goods and services are not available locally.
Coverage Horizontal
Sources
- https://ustr.gov/sites/default/files/2015%20NTE%20Combined.pdf
- https://trade.ec.europa.eu/access-to-markets/en/barriers/details?isSps=false&barrier_id=11404
- http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=TAD/TC/WP(2018)2/FINAL&docLanguage=En
- https://www.wto.org/english/tratop_e/tpr_e/s292_e.pdf
- https://ppp.treasury.gov.my/topik/fail/4/muat-turun
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MALAYSIA
Since March 1997
Since December 2015
Since December 2015
Pillar Tariffs and trade defence measures applied on ICT goods |
Sub-pillar Participation in the WTO Information Technology Agreement (ITA) and 2015 expansion (ITA II)
Information Technology Agreement (ITA)
ITA Expansion Agreement (ITA II)
ITA Expansion Agreement (ITA II)
Malaysia is a signatory of the 1996 WTO Information Technology Agreement (ITA) and its expansion. The ITA provides for participants to completely eliminate duties on IT products covered by the Agreement.
Coverage ICT goods
MALAYSIA
ITA signatory?
I
II
Pillar Tariffs and trade defence measures applied on ICT goods |
Sub-pillar Effective tariff rate to ICT goods (applied weighted average)
Effective tariff rate to ICT goods (applied weighted average)
1.44%
Coverage rate of zero-tariffs on ICT goods (%)
70%
Coverage: Digital goods
LAOS
N/A
Pillar Online sales and transactions |
Sub-pillar Adoption of UNCITRAL Model Law on Electronic Signature
Lack of adoption of UNCITRAL Model Law on Electronic Signatures
Laos has not adopted national legislation based on or influenced by the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Signatures. Yet, in 2020, Lao PDR enacted the Law on Electronic Signature Activities providing a legal framework for the management and the use of electronic signatures.
Coverage Horizontal