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Sunday 4 July 2010

Yuan flexibility not enough for China

What Are We To Do
By TAN SRI LIN SEE-YAN

Much to be anticipated on a gradual currency rise

An employee poses with Chinese yuan  notes inside a bank in Taipei   April 23, 2010. Now that China is staying true to its word and letting   the yuan trade a bit more freely, analysts and investors outside the   mainland may not be prepared for one potential outcome: a yuan drop.   REUTERS/Nicky Loh/Files
MY earlier column, Realities About China’s BOP Surpluses (StarBizWeek, April 10, 2010), concluded: “exclusive focus on China’s exchange rate policy is, I think, counter-productive. It will unlikely resolve the US’s persistent imbalance. However, as I see it, there is growing awareness in Beijing that greater exchange rate flexibility and a gradual yuan appreciation has to be an element of any credible package of policy measures for China to liberalise factor markets and remove cost distortions. This could transit over time to a full market economy. Any exchange rate adjustment has to be viewed in this context.”

Sure enough, the Peoples’ Bank of China (PBoC) announced on June 19 that it would allow greater flexibility for the yuan, thereby reverting to the flexibility it had enjoyed before the yuan was effectively re-pegged at around 6.83 per US dollar in mid-2008 to provide stability during the global crisis.

In the three years following an initial 2.1% revaluation of the yuan on July 21, 2005, the currency gained a further 19%. But in those first remaining months of 2005, the appreciation was only 8.6%.

Credibility requires serious action

China’s decision to allow flexibility back into the value of the yuan was greeted with “grudging optimism”.
Few think, and rightly so, the move will have a dramatic impact on rebalancing the global economy. Partly because of its limited size.

The yuan offshore forward market on the first trading day predicted an appreciation of just 2.3% by year-end; and 3% in 12 months. Based on an undervalued yuan estimated at between 25%-40%, this will take more than a decade to eliminate.

Partly because most regard any yuan adjustment as a helpful but not critical part of shifting consumer demand from the US to Asia.

Previous experience in 2005-2008 was accompanied by a soaring Chinese current surplus instead.
This was also the Japanese experience after the 1985 Plaza Accord, when Japan agreed to a major yen appreciation.

Stanford Prof R. McKinnon found little long-term change in Japan’s trade surplus with the US as a result. The lesson China has taken on board is that rapid swings in the exchange rate can be most damaging.
The PBoC has yet to release details of the new regime. But has hinted that

(i) its focus is to guide the yuan against a basket of currencies, in order to foster a genuine two-way movement between the yuan and the US dollar;

(ii) the “basis did not exist for a large-scale appreciation,” i.e. big exchange rate fluctuations “are not in China’s interest” and any movement in the yuan will be gradual;

(iii) flexibility to be in both directions, i.e. instil inter-play of two-way risks; and

(iv) make more use of existing trading-band from the yuan’s central parity rate.

In practice, the regime closely resembles a managed crawl. It is akin to the policy that let the yuan appreciate by some 21% against the US dollar until the financial panic hit in 2008.

Be that as it may, the expectation of a stronger yuan can only attract inflows of “hot money” betting on further yuan appreciation.

That is why the PBoC insisted that “it is not appropriate given China’s diversification of trade and investment that the yuan is fixed solely to one currency, as it won’t accurately reflect the real value of the yuan.”

Trading under the new regime

To forestall undue expectations, the PBoC’s weekend statement made clear that a big one-time revaluation was not on the cards.

Indeed, the band under which the yuan trades daily will not be widened beyond 0.5%.

In the short run, it’s wait-and-see how far and how fast the PBoC will allow the currency to appreciate.
On its first day of trading, the yuan rose to a new high against the US dollar, closing at 6.7976, up 0.42% from Friday’s (June 18) close of 6.8262.

It was the yuan’s strongest level since the currency was regularly traded.

The previous high was in July 2008, just before it was pegged to the US dollar at around 6.84 and kept there for the next two years to help stabilise its economy amid global recession.

To be sure, the yuan had since appreciated 3.8% so far this year on a trade weighted basis, thanks to a shrinking euro.

On its second day of trading, the yuan weakened, reflecting the PBoC’s message that the new regime doesn’t guarantee a one-way bet on its currency. It ended at 6.8136, down about 0.23% from Monday’s close.

Indeed, the markets got the message – two days of trading reinforced the PBoC’s goals to allow market trading to drive the exchange rate; and to move it up and down, mainly to deter speculation.

At this early stage, the PBoC is concerned – and rightly so – that the perception of yuan appreciation as a sure thing will trigger massive capital inflows (hot money) to the detriment of Beijing’s ability to maintain stability.

The PBoC’s most effective means of control has been setting daily the rate for the yuan (i.e. CPR or central parity rate) to start-off trading.

Given the yuan can only move 0.5% + CPR, overall yuan movement is not set by intra-day trades but by how the CPR moves from one day to the next.

This way, the PBoC seldom needs to intervene directly in the market.

On the second day of trading, the CPR was set at 6.7980 (almost where it closed on Monday), i.e. 0.42% stronger than Friday’s close. This fuelled expectation the PBoC won’t try to reverse Monday’s gains.

But early into trading, the yuan reversed and abruptly weakened, with heavy US dollar buying by banks at around 6.8000.

After a week of trading, the yuan closed stronger at 6.7922, up 0.5% from its close a week earlier.
By Wednesday (June 30), it closed up 0.65% at 6.7817. To be fair, when the PBoC said there would be no dramatic movements, it wasn’t kidding. But expectations are high.

President Obama anticipates the yuan is “…going to go up significantly.”

This expectation is being tempered by the IMF: “It will take time for the yuan to reach its normal market volume.”

Next developments will depend on the patience of the US if the evolving yuan revaluation proves all too gradual.

“Hot money”

The new regime has boosted Asian currency values. The South Korean won, Australia dollar, Thai baht and the ringgit felt the biggest impact.

Traders centred on these currencies, which they regard as proxies for China’s growth and its appetite for imports with a stronger yuan.

That in turn makes central banks in Thailand, Malaysia, Indonesia and South Korea feel more comfortable about letting their currencies strengthen.

It helps fight inflation because imported goods get cheaper, and reduces need to raise interest rates.
All over Asia, there is now greater tolerance for currency appreciation.

While attracting foreign capital is usually good, short-term inflows can cause bubbles in stocks and property. And, when they pull out at the first hint of trouble, panic usually takes over.

South Korea and Indonesia imposed new measures recently aimed at moderating their impact. China’s history of sharp and disruptive capital inflows during 2005-2008 offers an object lesson.

The yuan’s gradual strengthening (up 21% against US dollar from 2005-2008) coincided with huge gains in Asian stocks (Hang Seng China Enterprises Index traded in HK rose 319%). Hence, China’s concern over speculative risks complicating efforts to control money supply.

To deal with this, the PBoC promotes the idea the yuan-US dollar exchange rate is unpredictable, and can swing in both directions. Its management of the yuan in its first 10 days demonstrated this.
This should help mitigate hot money inflows.

NDFs

China’s SAFE (State Administration of Foreign Exchange) which manages its US$2.5 trillion in foreign reserves, is concerned that hot-money investors are exploiting pricing differentials between domestic forward markets and offshore NDFs (non-deliverable forwards) market.

But unlike South Korea, which recently imposed restrictions to reduce won volatility, SAFE opted to continue to monitor instead.

NDFs are derivative contracts traded among foreign investors that pay-out based on expectations on the value of the yuan against US dollar in the future.

Following the flexibility, 12-month NDFs moved sharply on Monday to a 3% rise of the yuan in the next year (compared with 1.8% on the prior Friday); 6-month forwards are up 1.3%.

Economists offer four reasons in believing hot money flows will be limited:

(i) a 3% appreciation is too slim to attract investors unable to attract leverage;
(ii) fears the Chinese economy may “cool” and the bubble property market is about to burst;
(iii) expectations on asset prices have since “cooled-down” – Shanghai stock market is already down 30% this year and housing sales are dropping sharply; and
(iv) a possible global double-dip recession.

Internationalisation of the yuan

Concomitantly, the PBoC separately confirmed plans to expand its trial programme to settle trade deals in yuan.

It’s part of a broader effort to modernise and internationalise its currency.

First started in July 2009, it encouraged companies in Shanghai and Guangzhou province to use the yuan instead when trading with Hong Kong, Macau and some foreign countries.

After a slow start, Tuesday’s announcement expanded the programme to 20 of China’s 31 provinces and now, all foreign countries can participate.

To date, the value of such yuan-based deals totalled only US$6.5bil, or less than 1% of China’s total foreign trade.

The obstacle has been reluctance of many companies to hold the yuan because of its limited use outside China.

This has to do with China’s reluctance to make the yuan fully convertible, a policy Beijing intends to hang on to.

Increased yuan flexibility can make it more attractive to hold, provided it leads to appreciation.
This programme offers Chinese exporters a way out of worries on currency risks since their costs are mainly in yuan.

Euro’s recent volatility heightened this concern. Europe is China’s biggest trading partner.

Despite the calmness of yuan trading under the new regime, the currency dispute in China has not gone away.
But so far, reactions have been positive. At home, opposition to even a 3.5% appreciation of the yuan remains strong, especially within China’s export lobby.

The warning shot has come subtly: “Water doesn’t boil if it is heated at 99°C. But it will boil if it is heated by one more degree.”

Internationally, it’s just more wait-and-see. Expect the initial euphoria to dissipate quickly as politics and reality set in.

I am now reminded of former Chinese Prime Minister Zhou Enlai’s response when asked 175 years after the fact, what he made of the French revolution.

He thought for a moment and then answered: “It is too soon to tell.”
I end as I began. The yuan revaluation is not China’s most critical problem today.

China has to embark also on other reforms, including re-designing macroeconomic policies that don’t over-emphasise growth, privatising state-owned enterprises and liberalising financial development, striking a better balance in income distribution, and aggressively promoting services sector development.

Such a comprehensive rebalancing exercise can be made to work, but will necessarily take time. For now, it’s steady as she goes.

·Former banker Dr Lin is a Harvard-educated economist and a British Chartered Scientist who now spends time writing, teaching and promoting the public interest. Feedback is most welcome at 

starbizweek@thestar.com.my


Watch out: yuan may fall as volatility picks up

By Lu Jianxin and Koh Gui Qing


SHANGHAI (Reuters) - Now that China is staying true to its word and letting the yuan trade a bit more freely, analysts and investors outside the mainland may not be prepared for one potential outcome: a yuan drop.

China is showing a determination to let the yuan be more volatile against the dollar within its daily 0.5 percent trading band and go with the market flow, contrary to some expectations for another steady rise as happened between 2005 and 2008.

That means there are no guarantees that the yuan will appreciate against the dollar over time, and Beijing is set to stick firmly to its position on yuan flexibility no matter how much it disappoints critics -- most prominently U.S. lawmakers.

The fundamentals arguing for substantial yuan appreciation have changed since the financial crisis: China is running smaller trade surpluses, and economists see the potential for the shrinking current account surpluses to turn into deficits in coming years.

As a result, the basis for steady but slow yuan appreciation versus the dollar is not as strong as five years ago -- one reason why Beijing keeps emphasising flexibility in its pushing forward the reform of its currency system.

"China's new yuan policy lays emphasis on a quick response to changes in economic and market conditions, with no preset levels for yuan appreciation either in the short term or long term," said Chen Lu, chief economist at Haitong Securities in Shanghai.

The People's Bank of China has matched its words with deeds by allowing greater yuan volatility since the June 19 announcement and subsequent clarification that flexibility still means that yuan moves must be gradual and controllable.

The yuan has moved in an average daily range of more than 100 pips since its depegging, far above the 50 pips that dealers say would allow banks to engage in proprietary trading intraday.

This compared with a daily movement of only a few pips during the two years when the currency was pegged to the dollar.

Banks are just starting to do more day-to-day speculation, adding to liquidity in the local spot market.
Before the depegging, the limited daily swings meant all trading was almost a pure reflection of supply and demand, with the PBOC keeping the market in check.

Realised volatility in dollar/yuan has jumped as spot has started swinging more sharply within the daily trading band on the official CFETS platform.

For a graphic on dollar/yuan and realised vol, click r.reuters.com/vyv45m

WATCH THE STATE-OWNED BANKS

The PBOC is apparently fostering two-way trade within the daily trading band for the spot yuan rate , trying to get banks and companies accustomed to greater volatility and to hedging currency risks.

But during the peak of speculation on yuan gains early last week, the PBOC used state banks to buy dollars in hefty chunks, effectively limiting the market's ability to short dollar/yuan -- especially since banks are not allowed to hold short positions overnight.

"Some big Chinese banks bought dollars in such large amounts that they could not have been acting on demand from clients or doing their own trading. They apparently did that on the PBOC's behalf," said a European bank dealer.

"Instead of being complacent about the latest yuan rise, investors may need to prepare for rainy days when the PBOC actually permits the yuan to depreciate against the dollar."

Dealers said the state banks scooped up dollars at a wide variety of levels, suggesting the authorities were not trying to defend the yuan at a certain level.

These mechanisms are a step back from direct intervention by the PBOC in trading, often employed in the post-revaluation phase of yuan appreciation from 2005 to 2008 and during the de facto dollar peg of the past two years.

Dealers also believe the PBOC may have also adopted a new formula for setting the mid-point, or its reference rate, for the daily trading band.

It appears it sets the mid-point using the yuan's close on the previous day plus overnight moves in the dollar index, making the mid-point market-oriented rather than an expression of the central bank's desires as before.
But traders expect the PBOC to keep the mid-point as a ready weapon for the PBOC for limiting any yuan moves during times of market volatility. The PBOC consults with banks but keeps the market in the dark as to how it sets the rate.

During the peg, the PBOC tweaked the mid-point by only one or two pips each day. Any trades happened far from the reference rate on a given day would have to be covered around the mid-point in subsequent days, discouraging moves far from the mid-point.

Since the depegging, the yuan has risen as much as 0.83 percent as the PBOC tolerated a rise to a post-revaluation high of 6.7700 against the dollar on Friday.

While the new regime has still disappointed critics in the United States, Chinese market players believe that Beijing will not make any further concessions and that new pressure from U.S. lawmakers -- some of whom believe the yuan is undervalued by as much as 40 percent -- would likely backfire.

The euro zone debt woes have cast doubt on the pace of China's recovery, the latest reminder how vulnerable the world's third-largest economy is to a global slowdown.

China's still low per person income also argues against sharp yuan appreciation, economists say, arguing that it is inappropriate to apply Western standards to the currency of a country whose GDP per person was only 8 percent of that of the United States last year.

"What China can do is to show that it's friendly, it's cooperative and it's willing to change in line with economic and market conditions," said a senior Chinese bank dealer in Beijing. "As China will adjust the yuan's value on a floating basis, yuan appreciation forecasts will become more or less a guessing game."

(Editing by Eric Burroughs)
(For more business news on Reuters India click in.reuters.com)





Saturday 3 July 2010

Blows against the American empire

So the US authorities don't like foreign spies in their midst or on their territory (Russian espionage ring, 2 July). Some of us are deeply troubled by the presence of the US spy base at Menwith Hill – in our midst and in beautiful Nidderdale. The base is celebrating 50 years of operations this year. Menwith Hill is the largest American spy base outside the US. It operates with no meaningful accountability or parliamentary and public scrutiny and is out of control of the UK government. They do what they like. It goes on mushrooming and relentlessly developing.

For Americans all round the world, 4 July is Independence Day, marking the historical event in 1776 when the US Declaration of Independence announced that the 13 American colonies, then at war with Great Britain, were now independent states and thus no longer a part of the British empire.

Menwith Hill celebrated Independence Day a week before. Maybe this was because traditionally at Menwith Hill we are there on 4 July with an alternative view. Once again we will be calling for independence from US military and foreign policy. However, we know that empires come and go. We hope that many people will join us tomorrow.

Lindis Percy

Campaign for the Accountability of American Bases

• I see Tony Blair is to be presented with a medal by former US president Bill Clinton for "bringing liberty" to people around the world (Iraq papers show Goldsmith warning to Blair, 1 July). I'm sure John and Linda Catt – now classed as "domestic extremists" thanks to Blair's raft of enabling acts – will join with the relatives of Iraq's million dead in wishing the man further success.

Michael Russell

Kyleakin, Isle of Skye
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Thursday 1 July 2010

Google says to 'abide by the Chinese law'

BEIJING - A company running Google's China website has pledged to "abide by the Chinese law" in a letter of application to renew Google's operation license, government sources told Xinhua Wednesday.

Guxiang Information Technology Co Ltd operator of Google.cn, had submitted an application to China's Ministry of Industry and Information Technology to renew its Internet Content Provider (ICP) license, permit to run websites in China, an official in charge of Internet administration, who declined to be identified, said.

The application was made "almost at the same time" Google's chief legal officer David Drummond wrote a blog post saying Google is committed "not to self censor," according to the official.

Guxiang had said it will "ensure the company will provide no law-breaking contents as stated in the 57th statement in China's regulations concerning telecommunications."

The 57th statement in China's regulations concerning telecommunications, which Guxiang promised to follow, stipulates that any organization or individual is prohibited from using the Internet to spread any content that attempts to subvert state power, undermine national security, infringe on national reputation and interests, or that incites ethnic hatred and secession, transmits pornography and violence."

Guxiang promised that all contents it provides are subject to supervision of government regulators, said the official.

The official said the license renewal application from Guxiang had come late, but related government agencies were using the time to go through procedures.

"A quick reply is expected soon," he said.

Editor:Xiong Qu |Source: Xinhua
 

Related stories


Malaysia's vision 2020 bankcrupt by 2019?

Idris Jala: M’sia must cut subsidies, debt by 2019 or risk bankruptcy 

By TEH ENG HOCK and SHAUN HO

KUALA LUMPUR: Malaysia will be bankrupt by 2019 if it does not cut subsidies and rein in borrowings, said Minister in the Prime Minister’s Department Datuk Seri Idris Jala on Thursday.

He said that Malaysia's debt would rise to 100 percent of GDP by 2019 from the current 54% if it did not cut subsidies.

“We do not want to be another Greece,” he said when officiating the Subsidy Lab Open Day here to receive feedback from the public on subsidies.

Some of the recommendations of the subsidy rationalisation lab:

- Reduction of gas subsidy, resulting in an increase in electricity tariffs. However, most households will not be affected as the move will only affect those consuming more than 200kWh.

- Toll rates to increase in mid-2010 as per concession agreement except for highways without alternative toll-free routes.

-Outpatient treatment at public hospitals to be increased from RM1 to RM3. In-patient treatment will also increase, depending on the wards (Class One, Two or Three), from between RM3 and RM80, to between RM6 to RM160.

-Text book loan scheme and tuition subsidy aid to be abolished. Students will also have to pay for public examination fees.

-Foreign students will pay full fees at public universities.

-Local undergraduates and postgraduates to pay more in student fees, ranging from RM300 to RM800.

Meanwhile, Bernama reported Idris as saying that Malaysia was likely to become an oil importer as early as next year at the current rate it was consuming petroleum,

Malaysians continue to be among the highest fuel consumers per capita in the world fuel consumption habits pattern which generally has remained relatively unchanged despite increased oil prices in 2008.

He also said that approximately 70% of the government's liquid petroleum gas (LPG) subsidy went to commercial concerns and not the intended households.

About 30% of the cooking oil subsidy was also abused, he said.

He said the government is proposing to phase out the petrol subsidy gradually in line with its move to strategically position Malaysia's economy on a stronger footing to realise the aspirations of Vision 2020, which is to achieve a developed, high-income nation status.

"Subsidies are an inaccurate representation of trade," Idris said when officiating the Subsidy Lab Open Day here to receive feedback from the public on subsidies.

"In addition, they pose a fiscal burden that emerging economies such as Malaysia should move away from. As such, we desperately need an exit strategy for subsidies, as they are unsustainable," he said.

"In order to save the country, we need to increase our GDP, Malaysians need to be aware we are giving the highest subsidies - 4.6 per cent of GDP even higher than Indonesia (2.7 per cent) & Philippines (0.2 per cent)," said Idris, who is also the Chief Executive Officer of the Performance Management and Delivery Unit (PEMANDU).

Malaysia is one of the most subsidised nations in the world. Its total subsidy of RM74 billion in 2009 is equivalent to RM12,900 per household.

This covers the areas of Social (RM42.8bil), Fuel (RM23.5bil), Infrastructure (RM4.6bil) and Food amounting to RM3.1bil.

"All savings to reduce these savings are intended to reduce our deficit and debt of RM103bil in five years," he said.

Meanwhile, studies by Bank Negara have shown that inflation will rise to four per cent (2011-2012) and three per cent post 2013.

Subsidies only result in market distortion and they drain the government of much needed funds that could be better used for more strategic and pressing development projects for the rakyat, Idris said.

"The time for subsidy rationalisation is now," he said.
"We are reviewing the possibility of introducing a floating price mechanism, mitigation measures and assistance needed to put in place."

"We do not want to end up like Greece with a total debt of EUR300 billion. Our deficit rose to record high of RM47 billion last year."

"If the government continues at the rate of 12 per cent per annum, Malaysia could go bankrupt in 2019 with total debts amounting to RM1,158 billion," he cautioned.

Related Stories:
RM103bil savings from subsidy reduction
Subsidy cuts to boost economy

Copyrights Infringement, Landlords to enforcer role?

Landlords ‘no’ to enforcer role

PETALING JAYA: Seven business and real estate associations are opposing the proposed amendments to the Copyright Act 1987 that holds landlords liable when their tenants use their property for intellectual property and copyright infringement activities.

They described the amendments, requiring landlords to police the usage of their premises or properties and to be held responsible for tenants’ wrongdoings, as “unfair, unreasonable, untenable and impractical”.

They also expressed fear that this would dampen the property rental market and discourage foreign and local investors from investing in the property market.

The seven are the Associated Chinese Chambers of Commerce and Industry (ACCCIM), Real Estate and Housing Developers’ Asso­ciation Malaysia (Rehda), Malaysian Asso­ciation for Shopping and Highrise Complex Management, Malaysia Retailers Association, Malaysia Retailer-Chains Associa­tion, Building Management Asso­ciation of Malaysia (BMAM) and International Real Estate Federation Malaysia Chapter.

“It is totally unreasonable from the point of enforcement of public law. The enforcement agencies must do their jobs. If they can’t solve them, they should not pass the buck to landlords. Landlords can’t be the police. They neither have firearms nor laws to protect themselves against danger,” said ACCCIM representative Datuk Teo Chiang Kok at a joint press conference here yesterday.

Former Rehda president Datuk Eddy Chen Lok Loi said the move would increase the cost of doing business as they have to train staff on enforcement and supervision.

BMAM secretary-general S. Venkateswaran said building managers’ responsibility was to ensure properties are in good condition.

“It’s not possible for them to conduct raids as they would require search warrants,” he said, adding that the move would be detrimental to investment initiatives by the government.

Protect the landlords

I REFER to the article on copyright infringement offences committed by tenants. Two weeks ago, there was also a front page article in The Star about problems caused by tenants and the price landlords are paying.
Being an estate agent, an industry player and as the immediate past president of the Malaysian Institute of Estate Agents, I join other associations and individuals who have objected to holding landlords responsible for copyright infringement offences committed by their tenants.

It is not only unfair but an injustice to hold landlords responsible and the fact that certain ministries or departments not heeding our calls or really understanding the issues, sends a cold message that bureaucracy takes precedence over facts and practices.

Estate agents represent a big majority of landlords in this country and today we feel that the landlords have got the wrong end of the rod. In all fairness, landlords spend a great amount of their savings to invest in property and in return help the property sector to grow and indirectly help drive the economy.

It would be real injustice if landlords are taken to task for the misdeeds of tenants.

The big question is are the landlords being protected?

If the tenants don’t pay electricity or water bills, the landlords have to pay, if the tenants don’t pay rental the landlords have to accept the losses, and evicting the tenant can take a long time as the eviction laws protect the tenants more, if the tenants damage the property the landlords have to pay for it, and now if one uses a pirated software or a pirated DVD the landlords will be charged.

While we enact laws, many times we understand the real issues and practices that result in poor enforcement. The authorities have surely overlooked the fact that in Malaysia, the laws to protect landlords and the laws to act against tenants are insufficient and lacking.

How can we hold landlords responsible for an action of a tenant? This goes against the very grain of fundamental rights and justice — and the guilty goes free.

The explanation that landlords must visit the premises regularly violates the agreement that they must allow the tenant “to peaceably enjoy the demised premises”. It is stated in all tenancy agreements that the tenant shall not do anything unlawful while renting the premises.

Now the authorities want landlords to search for pirated items, pirated software etc. It is a misguided fact that landlords should know their tenants.

This must be a case where the authorities have found a shortcut to solve their problems, forgetting that landlords are the very people that need to be protected.

If there is a situation of landlords colluding or collaborating with the tenant, then the landlords can be taken to task but not for merely renting their premises to an individual.

The entire real estate fraternity will bear evidence that landlords are poorly protected and we don’t need new legislation to hold them responsible for something they don’t have control or jurisdiction over. This is the case of turning landlords into enforcement officers.

K. SOMA SUNDRAM,
Kuala Lumpur.

"Don't punish landlords" as scapegoats
Unfair to make landlords liable for offences committed by tenants, say seven associations

by Alyaa Alhadjri

Datuk Teo Chiang Kok
PETALING JAYA (June 29, 2010):
Developers, retailers and building owners are against the proposal to amend the Copyright Act to make landlords liable for copyright infringement offences committed by their tenants.

"Landlords should not be held liable, nor should they be forced to play the role of law enforcement officers to police copyright infringement by their tenants," said Associated Chinese Chambers of Commerce and Industry of Malaysia (ACCCIM) president Datuk Teo Chiang Kok today.

"The amendments will unfairly include landlords of premises used for infringing activities -- instead of only focusing on the perpetrators," he said at a press conference where seven associations jointly issued a statement to oppose the proposed amendments.

The associations are ACCCIM, Real Estate and Housing Developers Association (Rehda), Malaysian Association for Shopping and Highrise Complex Management, the Malaysia Retailers Association (MRA), Malaysia Retailers-Chain Association, Building Management Association of Malaysia and International Real Estate Federation, Malaysian Chapter.

Domestic Trade, Cooperative and Consumerism Minister Datuk Seri Ismail Sabri Yaacob had last month announced the government's plan to amend Section 36(2b) and Section 41(2) of the act which pertain to ownership, distribution and sale of copyrighted material without licence.

Now, Section 36(2b) makes it is an offence for any person to import or distribute any article without licence or consent from the copyright owner. This includes pirated movies and music CDs, software and imitation branded goods.

Under the proposed amendment, the landlords will be made liable and a person found with just one infringed copy of copyright material whether for private or commercial use can be charged, instead of a minimum of three infringing copies as the law stands now.

Teo said that the relationship between landlord and tenant was governed by the common law principle that a landlord shall grant their tenant "quiet enjoyment of the premise". "With the proposed amendment, the landlord has to police the usage of the premise and effectively interferes with a fundamental aspect of the relationship with their tenants," he said.

He said that the amendments will not only affect landlords who own commercial premises, but also private property owners, who will be implicated if their tenants are caught infringing copyright laws.

He said that landlords were also exposed to financial liabilities when they took up the role of  "enforcement officers", as they might face legal action from their own tenants due to their inadequate knowledge of copyright laws.

"Law enforcement is the responsibility of the respective government agency and to impose on the landlord is an abdication of their role to private individuals," he said.

Datuk Seri
Ismail Sabri Yaacob
Rehda past president Datuk Eddy Chen Lok Loi said it was unfair for the government to "pass the buck" to the landlords and find a scapegoat for its lack of enforcement capabilities. He said for the landlords to train or employ "enforcement officers" just to curb copyright infringement in their premises, would increase their cost of doing business and indirectly deter foreign direct investments.

Chen's views were echoed by Malaysian Association for Shopping and Highrise Complex Management president Richard Chan. "It is unrealistic to expect developers or owners of retail outlets to personally visit and monitor every single unit in their building, to ensure that there is no items sold that infringes copyright laws," he said.

The associations said they have had several dialogues with the ministry since the proposal was mooted in 2007, but to date, the government had not heeded their views. "Every time revisions were made to the proposal, the content was still the same, with only the wordings changed," lamented Teo.

He said the government's stand was that "landlords should know their tenants" before entering into any agreement and should, therefore, be held responsible for any illegal activities conducted in their premises. -- theSun