Intellectual Property Code

Classes
The Intellectual Property Code splits works that may be copyrighted into 17 clas
ses, listed from A to Q. While all the classes listed are specifically for copyr
ighted material, trademarks and other forms of intellectual property, depending
on what it is, are covered as well. Patents do not have a category.
A: Literature (books, pamphlets, etc.)
B: Periodicals (newspapers, tabloids, magazines, etc.)
C: Public speeches and other public speaking works (speeches, lectures, sermons,
etc.)
D: Letters
E: Television or movie scripts, choreography, and entertainment in shows
F: Musical works (lyrics, songs, song arrangements, etc.)
G: Art products (drawings, paintings. sculptures, etc.)
H: Ornamental designs and other forms of applied art (not necessarily industrial
designs)
I: Geographical, topographical, architectural, and scientific works (maps, chart
s, plans, etc.)
J: Scientific and technical drawings
K: Photographs and cinematographic works made in a process similar to photograph
y
L: Audio-visual works and cinematographic works made in a process similar to mak
ing audio-visual works
M: Pictures used in advertising (includes logos)
N: Computer programs
O: Other works not covered in classes A-N of a literary, scholarly, scientific,
or artistic nature
P: Sound recordings
Q: Broadcasts

Duration of copyright
The Intellectual Property Code sets the following for the duration of copyright
protection of different works in the Philippines:
Literary works (classes A, B, C, D, E, F, G, I, J, M, N, and O): lifetime of the
author and for 50 years after his/her death.
Applied art (class H) : twenty-five years from the date of creation.
Photographs (class K): fifty years from publication (published) or from creation
(unpublished).
Audio-visual works (class L): fifty years from publication (published) or from t
he date of creation (unpublished).
Sound recordings (class P): fifty years from December 31of the year which the re
cording took place.
Broadcast recordings (class Q): twenty years from the date the broadcast took pl
ace.
Copyrights generally last 25 years for corporate works, which include product de
signs and logos.
The Intellectual Property Code also protects pending copyrights by providing aut
omatic copyrights, a move similar to automatic copyright provisions in United St
ates copyright law, as stated in the code since provisions in the code provide f
or automatic copyright once the work has been made.

Ownership of copyright
Philippine copyright law expressly gives copyright ownership to the copyright ho
lder. Since Philippine law permits automatic copyright, a copyright notice is n
ot needed. However, it is recommended that published works bear this notice:
Philippine Copyright (the year of copyright) by (copyright holder).

Legal action on copyright problems

The Intellectual Property Code gives the power of mediating copyright problems (
before, during, and after the copyright application process) to a bureau of the
Intellectual Property Office known as the Bureau of Legal Affairs, as covered by
Section 10 of the code. This body is empowered with the following functions:
Hear objections on items being applied for copyright
Address copyright violations where damages are no less than 200,000 pesos

Government copyright
Government copyright under Philippine copyright law is established in Section 17
6 and its subsections. Under the section, all official Philippine texts of a "le
gislative, administrative, or judicial nature" or any official translation of th
ose kinds of texts may not be copyrighted and are in the public domain. Aside fr
om government documents, no work of the Philippine government, as well as the wo
rks of government-owned and/or controlled corporations, can be copyrighted (imag
es, documents, and the like). However, prior approval is needed if a government
work will be used for making a profit (most notably the Philippine constitution.
There are exceptions to the rule: the author of any public speaking works may ha
ve the works compiled, published, and copyrighted, and the government is permitt
ed to receive and hold copyrights it received as a gift or assigned. However, su
ch copyrights may not be shortened or annulled without prior consent of the copy
right holder.

Composite copyright
There are no provisions in Philippine copyright law on the issue of composite co
pyrights. However, composite copyrights are permitted usually in the form of spl
it copyrights, where each part of a work is copyrighted (works best for audio-vi
sual works, sound recordings, and cinematographic works).

Fair use
Section 185 of the Intellectual Property Code provides for fair use of copyrigh
ted material (which is based largely or even entirely on the United States fair
use doctrine) provided the copyrighted work will be evaluated based on the follo
wing:
The purpose of the usage of the copyrighted material to be classified as fair us
e
The nature of the copyrighted work
The amount or portion of the copyrighted work being classified as fair use
The effect(s) the copyrighted materials has or have on the potential market and
the value the item has to enriching the item of which the copyrighted material i
s being classified as fair use
Even if a copyrighted work is unpublished, it can qualify as fair use under Phil
ippine copyright law.
MORAL RIGHTS

Moral rights, which can be exercised by any copyright holders (individuals, corp
orations, etc.), are enshrined in Chapter 10 of the Intellectual Property Code.
However, Section 193 of the code (which is also in Chapter 10), which also outli
nes a copyright holder's moral rights, makes these rights independent of economi
c rights outlined in Section 177 of the code.
Under Philippine copyright law, moral rights are relatively expansive on the beh
alf of the copyright holder, which are listed below:

Attribution
The right to be prominently displayed as the creator of the copyrighted material
, in any form practical to the work
The right to change or even withhold the work from circulation
Integrity of ownership
The right to object to any alteration detrimental to the name of the creator of
the material
The right to restraining the use of the creator's name in a work not of his maki
ng
Copyright holders are not allowed to be forced to create or publish his or her w
orks already published, as that could be classified as a breach of contract. How
ever, the copyright holder could also be held liable for breach of contract.

The Intellectual Property Code also permits the waiver of moral rights in most c
ases, but does not allow it if the following situations occur:
If the creator's name will be used to damage the reputation of another person
If the creator's name will be used to give credit to something he or she did not
make
Moral rights are automatically waived in collective works unless the copyright h
olders expressly reserve their moral rights.
Also, if no objections have been made during the time a copyright holder waives
his or her moral rights or even if moral rights were waived unconditionally, wor
ks altered or even destroyed would not constitute as a violation of moral rights
.
In the Philippines, the term of moral rights, unless they were waived, is the sa
me as the term of copyright of a literary work (lifetime plus 50 years). Violati
on of moral rights may also be contested as a violation of the Civil Code. Any d
amages collected under the Civil Code shall be given to the copyright holder, or
if the holder is already dead, be put in a trust account to be given to the cop
yright holder's heirs. If the heirs defaulted, the damages go to the government.

GIVE THE FOLLOWING PENALTIES FOR COPYRIGHT VIOLATIONS:

Issue cease and desist orders which have a fixed time where the copyright viola
tor must stop violating the copyright being infringed
Accept voluntary orders of compliance or discontinuance as ordered by the Direct
or of Legal Affairs which must consist of the following:
Assurance to comply with the intellectual property law violated
Assurance to refrain from unlawful activity on the case being investigated
Assurance to refund, replace, recall, or repair defective products
Assurance to reimburse the complainant (usually the copyright holder) of all cha
rges, fees, and payments related to the case
Seizure of the products that have been subject to infringement
Forfeiture of all paraphernalia and properties (whether real or personal) involv
ed with the infringement
Imposition of administrative of fines no less than 5,000 pesos but no more than
150,000 pesos. For every day of continued violation, a fine of 1,000 pesos is im
posed.
Cancellation of any document (permit, registration, etc.) attributed to the prod
uct at the discretion of the Director of Legal Affairs
Withholding of any document pending approval of the Bureau from the respondent (
the copyright violator)
Assessment of damages
Censorship of the product
Other penalties in line with Executive Order 983 (1983)
The power to implement this section
INTELLECTUAL PROPERTY

INTELLECTUAL CREATION
Intellectual Creation is the product of mental labor embodied in writing or some
other material form.
By intellectual creation (note: it is one of the original modes of acquiring own
ership), the ff. persons acquire ownership: (Art 721, NCC)
1. the author with regard to his literary, dramatic, historical, legal, philosop
hical, scientific or other work;
2. the composer, as to his musical composition;
3. the painter, sculptor or other artist, with respect to the product of his art
;
4. the scientist or technologist or any other person with regard to his discover
y or invention.

Nature of Ownership
Ownership before publication--exclusive
Ownership after publication--no more exclusive right except when work is registe
red before the IPO for a given period
4blue 95 Note: Mere circulation among close friends and associates however, is n
ot considered as publication.

Laws governing intellectual creation:

1. Spanish law on Intellectual property of 1879;
2. US Copyright Law (1898-1924);
3. Act 3134 Copyright Law (1924)
4. Decree on the Protection of Intellectual Property
5. Republic Act No. 8293 (Intellectual Property Code)
Treaties and Conventions
1. Berne Conventions (1951)
2. Protection of literary works (aka Brussels Act) Stockholm Act of 1967
3. Paris Act of 1971
4. Exchange Notes between RP and US, 1948 (based on the reciprocity provisions o
f Act 3134)
What is included in the term: Intellectual Property rights (Sec. 4, RA 8293)
* copyright and related rights
* trademarks and service marks
* geographic indications
* Industrial Designs
(any combination of lines or colors or nay three-dimensional form, whether or no
t associated with lines or colors and gives a special appearance to and can serv
e as pattern for an industrial product or handicraft
* Patents
* Layout designs (topographies0 of Integrated Circuits
* Protection of Undisclosed information
DIFFERENT BUREAUS
The IPO is headed by a director general
There are 6 Bureaus, each headed by a director:

1.Bureau of Patents: (Functions: search and examination of patent application an

d the grant of patents.
2.Bureau of trademarks: (Functions: search and examination of applications for t
he registration of marks of ownership and the issuance of the certificate of reg
istration)
3.Bureau of legal Affairs: (Functions: a. hear and decide opposition to the appl
ication for registration of marks, cancellation of trademarks, patents, industri
al designs, petitions for compulsory licensing of patents b. exercise original j
urisdiction in adm. Complaints for violation of laws involving intellectual prop
erty rights, provided that its jurisdiction is limited to complaints where the t
otal damages claimed are less the P200,000.00 Provided further, that availment o
f the provisional remedies may be granted in accordance with the Rules of Court.
4.Documentation, Information and Technology Transfer Bureau: (Functions: Provide
technical, advisory and other services relating to the licensing and promotion
of technology and carry out an efficient and effective program.

5.The Management Information Services and EDP Buruea. Conduct automation plannin
g, research, and development, testing and maintenance of systems, user consultat
ion, and provide management information support and service.
6.Administrative, Financial and Human resources Development Service Bureau Provi
de services relative to procurement and
allocation of supplies and equipment and comply with government regulatory requi
rements in the areas of performances appraisal, compensation and benefits, emplo
yment records and reports)

CONSTITUTIONAL PROVISION:
Art XIV, Sec 10. Science and technology are essential for national development a
nd progress. The State shall give priority to research and development, inventio
n, innovation, and their utilization; and to science and technology education, t
raning, and service. It shall support indigenous, appropriate and self-reliant s
cientific and technological capabilities and their application to the country s pr
oductive systems and national life.
Sec. 13. The State shall protect and secure the exclusive rights of scientist, i
nventors, artists, and other gifted citizens, to their intellectual property and
creation particularly when beneficial to people.
Sec. 14. The State shall foster the preservation, enrichment, and dynamic evolu
tion of a Filipino national culture, based on the principle of unity in diversit
y in a climate of artistic and intellectual expression.
Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shal
l conserve, promote, and popularize the nation s historical and cultural heritage
and resources, as well as artistic creations.

COPYRIGHT
Nature of copyright
* it is the exclusive right secured by law to an author or his assign to multipl
y and dispose of copies of an intellectual or artistic creation.
* It is an incorporeal right to print and publish, and exits independent of the
corporeal property of which it arises.
Note: the copyright is distinct from the property in the material or assignment
of the copyright shall not itself constitute a transfer or assignment of the sol
e copy or one of the several copies of the work imply transfer or assignment of
the copyright.
The objectives of copyrights are:
1. to encourage individuals to intellectual labor by assuring them of just rewar
ds
2. to secure the society of the largest benefit of their product.

Works not Protected:

Concepts, theories, speculations, abstracts of ideas however original they maybe
are no covered by the protection, because there is no monopoly of theories and
speculations of an author. He may transform these theories of ideas into intelle
ctual products as books, letters or any form of writing or illustration. These a
re exclusively his. But once caused to be published, his exclusive right over th
e same ceases, except when copyrighted. But the protection extends only in so fa
r as the form, language or style of the production are concerned and not the the
ories or the ideas themselves. So that when one copies the form, style and langu
age, there is infringement. It should be a copy of the original but similarity a
lone is not sufficient. What is important though is the copy is so near to the o
riginal as to give to every person seeing it the idea created by the original.

What may be copyrighted: Sec. 2, PD 49, Sec. 172. RA 8293

A.literary and artistic works (original intellectual creation)
books: periodicals/newspapers: lectures/dissertations; letters; dramatic and mus
ical compositions, drawings, painting, ornamental designs, photographic works, m
aps/plans/sketches; audiovisual/cinematographic works; pictorials/advertisement;
computer programs.
4blue 95 Note: the foregoing are protected by the sole fact of their creation, i
rrespective of their mode or form of expression, as well as of their content, qu
ality and purpose

b. Derivative Works ( these are actually alterations of literary or

artistic works)
-dramatizations, translations, adaptations, abridgment, arrangement
- collection of literary, scholarly or artistic works, and compilations of data
and other materials which are original by reason of the selection or coordinatio
n or arrangement of their contents.
4blue 95 Note: the foregoing are protected as new works provided that the new wo
rk shall not:
* affect the force of any subsisting copyright upon the original employed or any
part thereof;
* be construed to imply any right to such use of the original works; or
* secure to extend copyright in such original works.
Rights of a copyright owner:
The exclusive right to carry out, authorize or prevent the following acts:
-reproduction of the work or substantial portion of the work;
- dramatization, translation, adaptation, abridgment, arrangement or other trans
formation of the work;
- the first public distribution of the original and each copy of the work by sal
e or other forms of transfer of ownership;
- rental of the original or a copy of the work; or cinematographic work;
- public performance of the work;
- make any other use or disposition of the copyrighted work.
Note:
In addition to the right to publish granted by the author, the publisher shall h
ave a copyright consisting merely of the right or reproduction of the typographi
cal arrangement of the published edition of the work.

2006 mock bar: There is no infringement of copyright whenever a person s technical

drawing (copyrighted) was constructed into a speed boat since latter was an inv
ention subject of a patent. Specially so when the person who drew it did not a
pply for patent of the speed boat invented based on his copyrighted technical dr
awing .

4BLUE 95 notes: there is distinction between Copyright and Material Object or wo

rk such that the transfer of the former shall not itself constitute a transfer o
f the material object and vice versa.
Ownership of commissioned work belongs to the person who commissioned an artist
while the copyright thereto belong to the creator-artist unless there is writte
n stipulation to the contrary.
However, the person who commissioned owns the copyright and mural if the painter
is an employee of the former and the work is the result of the performance of a
regularly-assigned duties, unless there is an agreement to the contrary.

TRADEMARKS
Mark any visible sign capable of distinguishing the good or services of an enter
prise
Collective mark any visible sign capable of distinguishing the origin or common
characteristics including the quality of good or services of different enterpris
e which use the sign under the control of the registered owner of the collective
mark.
Trademark a name to identify goods, the function of which is to point distinctiv
ely either by its own meaning or association, to the origin or ownership of ware
s to which it is applied (see: Ang vs. Teodoro 74 Phil 50)
Service Mark - the name or designation identifying of distinguishing the servi
ce of an enterprise
mark are acquired thru registration made in accordance with the IPC.
The right to register a mark is based on ownership. Actual use in commerce or bu
siness is a prerequisite to the acquisition of the right of ownership over a tra
demark (Sterling Prod. Int l. v. Farbenfabriken Bayer 27 S 1214)
Objective of the law in protecting marks: to give their registered owners the fu
ll benefit accruing to them from the goodwill earned by them from the use of sai
d registered mark. A trademark is an incorporeal property right and like and oth
er right, it is to be protected from any illegal use by any person without the a
uthority of its owner.

What cannot be registered:

1. immoral, deceptive or scandalous matter; or those contrary to pubic order of
morality.
2. matter which may disparange or falsely suggest a connection with persons (liv
ing or dead), institutions, beliefs, or national symbols or bring them into cont
empt or disrepute.
3. flag, coat of arms or insigma of the Phils, or any of its political subdivisi
on or any foreign nation or any simulation thereof.
4. marks identical with registered mark belonging to a different proprietor.
5. marks confusingly similar to or constituting a translation of a mark which is
considered as well known internationally and in the Phil. Whether or not regist
ered in the Phil.
6. marks which are likely to mislead the public as in the nature, quality, chara
cteristics, geographical origin of goods or services.
The name Wellington being either geographical or a surname cannot be registered, a
nd hence one cannot prevent another from suing the same See: Heng & Dee v. Welli
ngton Dep t. Store 1-10-53
7. Signs that are generic for the goods or services that they seek to identify.
The form Vertene being descriptive of a whole genus of garden plants with fragrant
flowers, the use of the term cannot be denied to other traders using verbena ex
tract or oils in their won products, see: East Pacific v. Dir. 12-29-60
8. Signs or indications that have become customary or usual to designate the goo
ds or services in everyday language or in bona fide and established trade practi
ce.
9. color alone.
Priority Right
A person who previously applied for registration of the same mark in another cou
ntry which be treaty, convention, or law affords similar privileges to Filipino
citizens, shall be considered as filed as of the date of the filing of the forei
gn application. (But no registration of a mark in the Phil. Shall be granted unt
il such mark has been registered in the country of origin of the applicant)
The owner of registration granted under Sec. 131 (priority right) is not entitle
d to use for acts committed prior to the date on which his mark registered in th
e Phils.
Notwithstanding the foregoing, the owner of a well-known mark not registered in
the Phil. May against an identical or confusingly similar mark:
* oppose its registration
* Petition for cancellation of its registration
* Sue for unfair competition
* To avail of other remedies provided under the law (i.e. injunction)

Certificate of Registration prima facie evidence of:

* the validity of registration
* registrant s ownership of the mark and
* registrant s exclusive right to use the same in connection with the goods or ser
vices specified in the certificate
4blue 95 Note: Ownership of a trademark is not acquired by the mere fact of regi
stration alone. Registration does not perfect a trademark right. It merely creat
es a presumption of ownership and evidence may be presented to overcome the pres
umption. Prior use by one will controvert a claim of legal appropriation by subs
equent users. (Unno Comm l v. Gen. Military Corp. 120 s 804)
Duration: 10 years, renewable (10 years)

Rights Conferred:
1. Exclusive right to prevent al third parties from using identical or similar s
igns or containers where such use would result in a likelihood of confusion.
Presumption of likelihood of confusion use of identical sign of identical good o
r services.

2. The right shall extend to good and services which are not similar to those in
respect of which the mark is registered. Provided:
- the use of that mark in relation to those goods or services would indicate a c
onnection between those goods or services and the owner of the registered mark.
- the interests of the owner of the registered mark are likely to be damaged by
such use.

4blue 95 Note: registration does not confer on the owner the right the preclude
third partied from using bona fide their names, addresses, pseudonyms, a geograp
hical name, or exact destination, value, place or origin or time or production o
r is confined to the purposes of mere identification or information and cannot m
islead the public as to the source of the good or services.
Infringement of trademark, how determined:
Test of dominancy or similarity or identity
* size or color not conclusive
* duplication or imitation not necessary
Essential: Likelihood of confusion and or deception on the part of the buying pu
blic
Co Tiong v. director 95 P 1
 Lium Hoa v. director 100 P 217
Forbes v. Ang San To 40 P 272
Recero v. Embisan 2 S 598
Mead Johnson v. NVJ 2 S 768
Chuancho Soy v. Director 108 P 833
E. Spinner v. neuss Hesslein 54 P 224
Remedies:
* injunction
* Seizure and destruction of all necessary paraphernalia
* Damages, consisting in:
a. reasonable profit he complainant would have made had there been bo infringeme
nt
b. actual profit which the infringer made.
Damages:
Ang Sin Heng v. Wellington 92 P 448
Universal Rubber v. a 130 s 104
Ubeda v. Zialcita 13 P 11
Uy v. Santos 60 P 109
Compana Gen. V. alkhambra 30 P 503
Cancellation:
* abandonment
* when registration was secured thru fraud
* when the use of registered name is used to misrepresent the source of the good
* when the name has become a common descriptive name