(4) For the purposes of this section and section 38—
| (a) | “action” includes a counter-claim, and reference to the plaintiff and to the defendant in an action shall be construed accordingly; and | |
| (b) | “court” means the appropriate High Court in Malaysia. |
(5) For the purposes of this section, owner of the copyright means the first owner or an assignee, as the case may be, of the relevant part of the copyright.
Proceedings in case of copyright subject to exclusive licence. 38. (1) This section shall have effect as to proceedings in the case of any copyright in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.
(2) Subject to this section, the exclusive licensee shall (except against the owner of the copyright) have the same rights of action, and be entitled to the same remedies, under section 37 as if the licence had been an assignment, and those rights and remedies shall be concurrent with the rights and remedies of the owner of the copyright under that section.
(3) Where an action is brought either by the owner of the copyright or by the exclusive licensee, and the action, in so far as it is brought under section 37, relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action under that section, the owner or licensee, as the case may be, shall not be entitled, except with the leave of the court, to proceed with the action, in so far as it is brought under that section and relates to that infringement, unless the other party is either joined as a plaintiff in the action or added as a defendant: but this subsection shall not affect the granting of an interlocutory injunction on the application of either of them.
(4) In any action brought by the exclusive licensee by virtue of this section, any defence which would have been available to a defendant in the action, if this