Intellectual Property is the next frontier

A brand like a football club is built from the ground up

When we turn 7 years old a few years back, my partner and I decided we need to have some semblance of future industries our legal firm should look at and break into. We choose two industries which branched out from law. One is Islamic finance, hence why I was in the the first part-time class of Certified Islamic Finance Professional in the International Center for Education for Islamic Finance in 2007. The other branch of law which we concentrate on is Intellectual Property. Which was why my partner took an LL.M course in Universiti Malaya in which one of the subject she specialised on was intellectual property. Needless to say, as both of us had graduated, I am the Islamic finance expert and she is the intellectual property expert in our firm.

Why do we think intellectual property is important? It is quite an impossible task to explain as Malaysia is so well-known to flout the intellectual property of movies and music that the movie studios in Hollywood realised they can't fight the intellectual property pirates and changed the way movies and music are released here. Yes, that is why we usually get movie premiere so early that the rest of the world is still waiting for the movie reel to arrive at their movie theaters. Intellectual property in Malaysia also suffers from the uncaring attitude of brand owners. Not many think spending some money to protect their brand is worthwhile. Some only do it when they get to know their intellectual property rights were infringed.

A car brand has the most things to protect in term of intellectual property

There are a lot of arguments about intellectual property is actually making life harder for those who produced certain products but didn't become part of the system like commodities-growers. However, if you want to break other markets, you cannot expect the same rules apply to you in any other country. We either adapt to it or you will be left behind. Registering you intellectual property in advance can even actually help small business prosper and even take down giants of intellectual property like what happened to McDonald twice in Asia. 

A camera brand well-known in history

The story of McDonald losing the name of McCafe in Singapore in a landmark case and the name of McCurry in Malaysia is well-known. Nowadays, you can see the name McCafe being used in most of McDonald's spin-off cafe within McDonald's stores worldwide. However, it was once owned by an unknown brand owner in Singapore.

A film studio which churn out movies and have a theme park is another

Looking back into Malaysia, it is important to point out that the Malaysian authority in registering the intellectual property in Malaysia has made things easy to register a brand. They are also quite helpful in doing so. Just check how easy for you to register a brand and to protect it at MyIPO website. And of course, my legal firm do offer intellectual property registration and protection. We have the team to help you register while you will be given the protection if your intellectual property rights ever being infringed. 

Of course, Malaysians, either as individual or as a corporate entity are breaking new grounds as we are known to produce artistes of varying degrees outside of Malaysia. I have found friends asking about who owns their work if they get paid for doing it and I have found those being sued for not knowing that they have infringed some intellectual property rights. I think education on IP is one missing link in Malaysia's attempt to be an intellectual property powerhouse. Maybe being one of the well-known 'pirates' country does not help our cause...

Malay Reserve vs. Bumiputra Unit (Property)

This is an excerpt of part of my second book or consider it as a sequel to my first book '40 QUESTIONS YOU SHOULD ASK YOUR LAWYERS BEFORE BUYING A RESIDENTIAL PROPERTY IN MALAYSIA' which is still to be published. It is an attempt by me to differentiate the meaning of Malay reserved property and bumiputra property or better known as bumiputra unit in housing development. As it is still a work in progress, to be proof-read and edited, due to my skepticism in my success in explaining these two terms without all the controversies, I am still open to criticism but please keep in mind of me trying to explain about the current situations with regards to the two terms than trying to give new meanings to the two issues.  Here goes :

A property which has been labeled as a Malay reserved property and a property which is known as a bumiputra property are two different types of properties. Each type of property can be transacted but there are restrictions on any transaction done on them. A whole lot of chapters have been devoted to the word ‘Malay reserved’ and ‘bumiputra’ but let us look at the differences of these types of properties according to the land law in force. A Malay reserved property is always marked with the word MALAY RESERVED on the individual title. Some called such individual title as the Red Grant or Geran Merah due to the red ink which is used to write those words.

As for any property which is known as bumiputra unit, there is rarely such label on the individual title of the property. In the usual case, the Sale and Purchase Agreement will determine whether the property is a bumiputra unit or not. In certain state, the label ‘Bumiputra lot’ can be found in the restriction-in-interest and in much rarer case, you can find the label ‘Bumiputra lot’ labeled much like as the case with Malay reserved property. The term bumiputra lot relates on the bumiputra quota set on the housing developer by the authority. In some cases, the quota is set for the whole development and requires the bumiputra ownership to be of certain percentage at any one time without any mention of it at all on the Sale and Purchase Agreement. That is why the control for any transaction of a bumiputra lot is in the hand of the housing developer which sell the property in the first place.

Who can transact a Malay reserved property? According to the Malaysian’s Federal Constitution, a Malay is defined in Article 160(2).  In that Article, there are two criteria of a Malay. The first criteria is for a Malay person to profess to be a Muslim, habitually speaks the Malay language, and adheres to Malay customs. Second, the person must have been either domiciled in the Federation or Singapore on Merdeka Day, or born in the Federation or Singapore before Merdeka Day, or born before Merdeka Day to parents whom one of them was born in the Federation or Singapore (collectively, the "Merdeka Day population") or is a descendent of a member of the Merdeka Day population. These are what defined Malay in the Malaysia’s Federal Constitution and is used to define the word ‘Malay Reserved’ on any individual title.

Here is the general rule on the transaction of Malay reserved property. A Malay reserved property can only be transacted between Malays. An owner of a Malay reserved property cannot sell it to a non-Malay or a foreigner. The signature on the Sale and Purchase Agreement can be witnessed by a lawyer but any document which is use at the land office for any transaction, such as Form 14A of the National Land Code which is use to transfer the property from one party to another, must be witnessed by a Registrar of Mineral and Land, the District Officer or Assistant District Officer of any land office. It does not has to be the officer of the land office where the property is situated but the signature of the transferor and transferee must be witnessed by either one of them.

As for bumiputra property, the restriction is imposed on anyone who is regarded as a bumiputra. Anyone who is regarded as a bumiputra is given special privileges and is reserved certain quotas on certain matters including property. They are even given a special discount when buying a property from a housing developer. There is no specific clause which define the word ‘bumiputra’ in the Malaysia Federal Constitution unlike the word ‘Malay’. However, in Article 153 of the Malaysia’s Federal Constitution, it is mentioned that there is a quota for Malays and natives of any states of Sabah and Sarawak. This has been used to define the word bumiputra which also relates to bumiputra lot in a housing development.

For bumiputra property, as it is a quota set on housing developers but is rarely written on the individual title for property sold with title, the housing developer will controls any sale to the general public and make sure the quota imposed is met. Usually, the amount of thirty percent of the total houses sold is set on the housing developer to sell to bumiputra buyers. A special price, which is usually set at seven percent discount, is usually given to any bumiputra buyers. When you buy a bumiputra unit from a housing developer, and get a bumiputra discount, your property is restricted from being sold to non-bumiputra. There are exceptions to the rule in certain cases. In the case where the property is not labeled as a bumiputra unit on any of its documents, either on the Sale and Purchase Agreement or on the individual title itself, a bumiputra owner can apply using a consent to transfer to transfer the property to a non-bumiputra buyer. If you bought a property without title where you must acquire consent from the housing developer of the property to sell the property, the housing developer may have to consider whether at that particular time whether the quota of the bumiputra units in the whole scheme is at the current percentage of the quota imposed on the housing developer initially by the authority.

Office We Apps : Easy as long as you have an internet access

Wouldn't you want to access documents anywhere you go? If you are tech-savvy, you may have been doing it since the Office Web Apps were launched middle of last year. However, it is only available officially in Malaysia on 3rd February 2011. Yesterday, 11.5.2011 to be exact, the official launch was done in Kuala Lumpur by Microsoft. To see what it is all about, you can go to this Microsoft link.

At the launch, we were given a preview (or more of a briefing) by Mark Ma, Head of Online of Microsoft Asia Pacific, of what we can do with Office Web Apps, if we haven't done it yet. We can actually use all the familiar Microsoft Office like Word, Excel, PowerPoint and OneNote application by accessing them through the web browser. There are limitation to what you can do but most of the features are there. 

In term of saving your work when you use these applications on the web, we were told, as Office Web Apps gives users the highest fidelity with files created and viewed in Microsoft Office, no matter which Office version the user uses, the file's formatting is preserved from the desktop to the Web App and back again. As part of Microsoft Windows Live service, Web Apps is also integrated with Hotmail and Windows Live SkyDrive which give users 25GB of free online storage. I wonder how the buying of Skype by Microsoft will be integrated into the dynamic of this Web Apps.

You can share documents with password-protected folders and give different permissions to different people. Those who open up a document sent by a user can open the link without opening up their Office applications on their PC. Co-authoring is also allowed so that multiple users can access and edit the work.

At the event, we heard how Mariana Hashim, a writer-producer and founder of Mariana Hashim Production, a mother of  five tell us how she uses Windows Web Apps to write, share her writings and ideas with colleagues or other collaborators, check her children homeworks while checking on her other works. There was also Shayanee Indra, the Managing Director of WS Securities, who uses Microsoft Office Excel as a time-sheet to check on her security guards among others.

As for me, as a lawyer, I can use this to check on works at the office when I am traveling, discuss new ideas with my colleagues and send my offices the work I have done while I am on the move. As I can access the documents on smartphones and tablets, I can also send instruction to edit something on a documents too.

Property Transaction in Malaysia - Part 1

 

One of the most common question that I am usually asked is how long does a property transaction takes. There is no straight answer to this question as the answer depends on a few factors :-

1) Who do you buy the property from? - If your answer is from a housing developer, then the answer can be found in the Housing Development (Control and Licensing) Act 1966. In this Act, it has been decided long ago when it came into force, a housing developer has 2 years to complete a property which has a title (called landed property once) and 3 years to complete a property without title (narrowed to strata property only once). However, if you buy a secondhand property from another person (which can be a company or an individual), the transaction can be more complicated and take a timeframe of 3 months to more than one year. It will further be complicated if the transaction involves auction property and the auctioneer is a financial institution;

2) Are you buying the property in cash or financing it with a housing loan? - When you buy from a developer, you will be billed according to how much has the property being built. If you can pay in cash, you can budget the time and the amount that you need to release according to the progress of the property being built. If you are taking a housing loan, what you have to worry is the amount that you have borrowed is released according to the billing, in which if the timeframe of 21 days is not followed, you may be charged with interest;

3) What type is your property? - Despite the belief all properties are created equal, that is rarely the case even if the property is situated within the same area. A landed property with an individual title is different from a landed property without title. A strata property with title is different from a landed property with title. A property with title, with a requirement for a consent to transfer, is different from a property with title, without a requirement for a consent to transfer. Each type has its idiosyncrasies and laws which govern how each type of property is transferred from one party to another;

4) Where is your property situated? - In Malaysia, as each states govern their own land law, it makes all the differences if your property is situated in Selangor or Kelantan. If your property has a requirement where you need to get a consent to transfer from the state government when you want to transfer from one party to another, it will take longer in one state than another. In Selangor, there was one time where each land office has a different application form and not all application form are created the same;

5) Who is the lawyer handling your case? - Last and not least, although many may not believe it, the choice of lawyer is important. As I always have and will always do, I advise them to check each and every lawyer they are or will be dealing with the Bar Council which has an updated website to the very day a lawyer is suspended or struck of the roll. However, as each service given by each lawyer or legal firm is subjective, you can only hope the lawyers recommended by the housing developers or that cousin who opened up his or her own legal firm can serve you in your property legal need. Especially if you are buying property in the secondary market or from an auction;

These are just guidelines but in my 12 years of practice, are true to a certain extent. Am trying to put this list into my book with more details.

Hope nobody is left behind in future Malaysia

I just came back from Mumbai, a city amazing in its culture and history. Not that India is far off from Malaysia. It gained its independence just 10 years before us in 1947. So, in terms of being ruled by its own people, they are nearly the same as Malaysia. However, although people like to think otherwise, economically, they are far ahead of us. More than a few richest people in the world are actually from India or of Indian origin. Here is one of the most expensive home (although it looks more like a high-rise building than a home) which is located in Mumbai. Owned by one Mr. Ambani, owner of Reliance group of India and the 4th richest man in India :

Let us not make an apple to apple comparison but let us look at the disparity between the rich and the poor there. Yes, what people said about Indian slum is true. You can see it everywhere. However, the most expensive real estate stretch in the world is also in Mumbai. Marine Drive is a 3 kilometer long coastal road full with colonial and art-deco building. Price of per square feet can be between RM1,500 to RM3,000. And that is just for a normal apartment. 5-star hotels and well-known business are there in Mumbai.

Malaysia now is in the threshold of moving forward to be a developed economy. A report by Asian Development Bank (ADB) says that Malaysia can be one of the 7 countries to kickstart the Asian Century. Being lumped with China, India, Thailand, Indonesia, Japan and South Korea, powerhouses in their own right (some I think are so advanced that we dwarf by comparison), I think we need to slow down a bit and look back. I think some in certain institutions should pause and think whether we have all the basis covered before rejoicing about being one of the seven countries.

As I was pointing out in a few of the links I posted in my legal firm Facebook page and my book Facebook page, just look at the articles in major online news site for the past few weeks. Some are saying good things about our credit outlook with bank loan growth being in tandem with economic growth. However, some are warning about uncurbed spending by the people especially with easy credit. I know our Central Bank is dishing out major changes to ensure people are not spending more than they can chew but some of these people are already living from foot to mouth.

As for housing (which comes back to what is happening in India), houses are getting ridiculously expensive and major town are growing farther and farther away from the main artery where people are working. How far should we move further away so that we can go to work and find that we have enough to pay for the basic necessity? Conversation that I had with people of Mumbai revolved around them just surviving there to ensure their parents/children living in their village to have a better life.

That First House Scheme is good but a house without furniture is or basic necessity is just like a 10' by 10' slum area in Mumbai. People will always strive to have a better life and what is life if you go around day in day out living just to put some food on the table for your family? I know government is working on it but let us also hope, there will be no one being left behind....