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THE LAW ON COPYRIGHT

The Applicable Laws:


a. RA 8293 (1998)
b. The Berne Convention (1886);
Phil. accession (1951)
Erroneous decision:
- Malang v. Mc Cullough
G.R. No. L-19439
October 31, 1964
c. The Rome Convention (1971)

Definitions
a. author
b. no definition of Copyright
c. originality – means that the work owes its creation
to the author and this in turn means that the work
must not consist of actual copying. It is
independently created by the author. No large
measure of novelty is necessary. It is enough that
the author contributes something more than a
“merely trivial” variation, something recognizably
his own.
- sculptural works that realistically depict animals
are original.
- Norma Ribbon & Trimming v. Little: “Ribbon
flowers” do not possess originality having existed
since the 18th century.
Basic Principles

a. Works are protected by the sole fact of


their creation, irrespective of their mode or
form of expression as well as their
content, quality and purpose. (This is
referred to as the No Formality Rule)
b. Protection starts from the moment of
creation. (Registration is NOT a condition
for protection)

Basic Principles
c. Protection is on the EXPRESSION of the idea not the idea
itself.
• Joaquin v. Drilon, 302 SCRA 225
- The general concept or format of the dating game
show is not copyrightable. Only the audio visual
recording of each episode of Rhoda & Me are
covered by copyright
• Baker v. Selden (101 US 841)
- Copyright does not prohibit use of the
information taught and the forms included as
part of the work
• Pearl & Dean Inc. v. Shoemart et. Al
G.R. No. 148222, August 15, 2003
WORKS ENTITLED TO PROTECTION
a. Original works
• adaptations of classics

- Waldman v. Landoll
• periodicals and newspapers and other writings
- fabric designs, such as art work on sweaters are
“writings”
• lectures, sermons…. Prepared for oral delivery
• letters
• dramatic works, choreographic works or entertainment
in dumb shows
- dramatic works imply a story consisting of plot and
incident

WORKS ENTITLED TO PROTECTION


a. Original works
• musical works with or without words
- in case of musical composition with words, protective
elements will consist not only of the combination words
& music, but also the music alone & the words alone
- many popular songs bear some similarity to prior
songs… it has been held, although suggestive of old
works, it will still become original if the overall
impression is of a new work.
- originality in musical works must be found in either its
rhythm, harmony or melody. If its overall impression is of
a new work it is copyrightable.
WORKS ENTITLED TO PROTECTION
(CONTINUED)
a. Original works
• works of art; architectural plans
See: Sec. 186: a work of architecture shall include
the right to control the erection of the building which
reproduces the whole or a substantial part of the
work.
• works of artistic craftsmanship
- original ornamental designs, models of articles of
manufacture, includes three dimensional works:
dolls, toys, jewelry, figures unless nothing original is
added.
- “work of applied art: “an artistic creation with
utilitarian functions or incorporated in a useful
article. e.g. lamp bases using statuettes of human
figures.
MAZER v. STEIN 347 U.S. 201 (1954)

WORKS ENTITLED TO PROTECTION


(CONTINUED)
a. Original works
• Illustrations, maps, plans, sketches, charts
• drawings or plastic works of a scientific or technical
character
• photographs
Burrow-Giles Litographic Co. v. Sarony
- Photograph of Oscar Wilde exhibited originality
hence copyrightable.
• audio visual works
- Los Angeles New Service v. Frank Tullo: recording
of news worthy events in video tapes
• pictorial illustration
- the reproduction of a picture such as by
lithography, photo engraving or photography.
WORKS ENTITLED TO PROTECTION
(CONTINUED)
• Computer programs.
• Copyrightable expression in a computer program can
include all aspects that are not necessary to the basic
purpose/function of the program, but extends to copying
of the structure, sequence and organization of the program
and the look and feel of the user interface. Thus, the
methods of operation or computer menu command
hierarchy of Lotus 1-2-3 a spreadsheet program is not
copyrightable.
• Other literary scholarly artistic works

NOT COPYRIGHTABLE because of lack of ORIGINALITY


• Short expressions:
e.g. “You Got the Right One, uh-Hun”
(Takeall v. Pepsico)

WORKS ENTITLED TO PROTECTION (CONTINUED)

b. Derivative works
• In order a work to qualify as a derivative work it
must be independently copyrightable…. there must
be at least some substantial variation from the
underlying work, not merely trivial variation.
However by, definition, a derivative work is
substantially similar to the original work…. a license
is required to transform it to a derivative work!

Note: that its affectivity is only coterminous with the


original work.
WORKS ENTITLED TO PROTECTION (CONTINUED)
b. Derivative works
• Dramatization, translation, adaptation, abridgements etc.
- must be independently copyrightable. Woods et. al v. Bourne Co.
• Collection of literary, scholarly or artistic works and compilations of
data which are original by reason of their selection or coordination or
arrangement.
Notes:
Compilation of Data – Facts, as such, are not copyrightable but a
compilation of facts may be copyrightable if the author made choices as
to which facts to include, in what order to place them, and how to arrange
the collected data so that they may be used effectively by readers.
Example:
- Recipes
- Feist Publication v. Rural Tele Services Co.
- as a rule telephone directories are not
copyrightable
- use can valuation
- Information v. Mac Lean Hunter

Works not protected


a. Ideas, procedure, system, concept, principles
etc.; news of the day or mere items of press
information; official text of legislative,
administrative or legal nature;
• Joaquin v. Drilon
• Contry Kids v. Sheen:
The size, shape and medium of plaintiffs
paper dolls are not protectable vis-à-vis
defendants wooden dolls.
• Other Examples: the theme plot and stock
characters and settings in literary works;
individual colors and shapes in visual work
b. Works of the government.
Copyright or economic rights (Sec. 177)
Copyright or economic rights shall consist
of the exclusive right to carry out authorize
or prevent the following acts:
• Reproduction of the work or substantial
portion of the work;
- Reproduction means the making of
one (1) or more copies of a work or a
sound recording in any manner or form.
See: MAI Systems v. Peak Computer Inc.
- copying occurs when a computer
program is transferred from a permanent
storage device to a computer RAM.

Copyright or economic rights (Sec. 177)


(continued)
• Dramatization, translation, adaptation,
abridgement, arrangement or other
transformation of the work;
• The first public distribution of the original and
each copy of the work by sale or other forms of
transfer of ownership;
Playboy Enterprises Inc. v. George Frena et. al
(i) When is the distribution right
exhausted?
- after the first sale of a particular copy
(ii) Other economic rights are not
affected
Copyright or economic rights (Sec. 177)
(continued)
• Rental of the original or a copy of
an audiovisual or cinematographic
work, a work embodied in a sound
recording, a computer program, a
compilation of data and other
materials or a musical work in
graphic form, irrespective of the
ownership of the original or the
copy which is the subject of the
rental; (n)

Copyright or economic rights (Sec. 177)


(continued)
• Public display of the original or a copy of the work;
- Playboy Enterprises v. George Frena et. al
• Public performance of the work;
(i) non-audiovisual work
(ii) audiovisual work
(iii) sound recording
- listening to radio does not constitute
violation of the performers right.
20th Century v. Aiken
Copyright or economic rights (Sec. 177)
(continued)
• Other communication to the public of the work.
- Communication to the public means:
making available of the work to the public by wire or
wireless in such a way that members of the public
may access these works from a place or time
individually chosen by them.
- a CATV operators that erects an antenna to pick up
telecasts from area A then transmitting them by cable
to area B & C for a fee is essentially reproducing the
copyrighted to wider audience hence it is covered by
the author’s “other communication to the public”
right.
Filscap v. Philippine Home Cable
Court of Appeals, CA GR No. 81083, Feb. 27, 2009
Note: The law impliedly grants to the copyright owner the right of
importation therefore, parallel importation is not allowed.

Copyright ownership
a. Original works
b. Works of joint authorship
c. Works by employees
d. Commissioned works
• Ownership of the work belongs to the
person who commissioned the work,
but the Copyright to it belongs to the
creator.
e. Audiovisual works
f. Letters
g. Anonymous or pseudonymous works
Assignment of Copyright

• Sec. 181. Copyright is distinct from


the material object; transfer of one
does not include the other.

Limitations on Copyright
a. Recitation/ performance of a work if done
privately or for charitable/ religious
institution
• FILSCAP v. Tan, 148 SCRA 461
b. Quotations compatible with fair-use
provided source is named
• Habana v. Robles, 310 SCRA 511
“The similarity in style and the manner
the books were presented and the
identical examples cannot pass as
similarities merely because of technical
considerations.
Limitations on Copyright (continued)

c. Reproduction/ communication to the


public by mass media on current
political, economic etc. issues
provided source is named
d. Reproduction/ communication to the
public of articles on current events
by means of photography,
cinematography or broadcasting

Limitations on Copyright (continued)

e. The inclusion of a work by way of


illustration in a publication, broadcast,
other communication for teaching
purposes, provided source is named
f. Recording in educational institutions
of work included in a broadcast but
must be deleted after its first broadcast
and limited to film experts only
Limitations on Copyright (continuation)
g. The making of ephemeral (transitory or temporary)
recordings by a broadcasting organization by
means of its own facilities and for use in its own
broadcast
h. Use by government, National Library, educational
institutional institutions for public interest
NTC circular mandating all cable television &
broadcasting organizations “must-carry”
authorized broadcast organizations signals
constitutes a valid limitations under Sec. 184 (1) h
(ABS-CBN Broadcasting Corp. v. Philippine Multi-
Media System, Inc. et. Al, G.R. No. 175769-70,
January 9, 2009

Limitations on Copyright (continuation)


i. Public display not by means of a film,
slide, television image or on screen of
works that have been published, sold or
transferred to others
j. Use in judicial proceedings or for the
giving of professional advice by lawyers

Note : The foregoing shall be interpreted to allow use of


a work in a way which does not conflict with the normal
exploitation of the work and does not unreasonably
prejudice the right holder’s legitimate interest
Limitations
- The fair use of a copyrighted work for
criticism, comment, news reporting, teaching
including multiple copies for classroom use,
scholarship, research, and similar purposes is
not an infringement of copyright.
Decompilation, which is understood here to be
the reproduction of the code and translation of
the forms of the computer program to achieve
the inter operability of an independently
created program with other programs may also
constitute fair use; the factors to be
considered shall include:
a. The purpose and character of the use, including
whether such use is of a commercial nature or is
for a non-profit educational purpose;
b. The nature of the copyrighted work;

Limitations (continued)
c. The amount and substantiality of the
portion used in relation to the
copyrighted work as a whole; and
d. The effect of the use upon the potential
market for or value of the copyrighted
work.
• See: Sony Corp. v. Universal City
Studios Inc. 464 U.S. 417, Supreme
Court 984
• MGM v. Grokster 545 U.S. Supreme
Court, June 27, 2005
Other limitations to Copyright
a. Work of architecture
Includes the right to control the erection of any building
which reproduces the whole or substantial part of the work
b. Reproduction of published work
The reproduction of a single copy exclusively for private use
is allowed.
This shall not extend to the reproduction of:
• a work of architecture;
• an entire book or substantial part thereof;
• a musical work in graphic form;
• a compilation of data;
• a computer program except for only one back up copy.
c. Importation for personal purpose

Term of Copyright

• Life of the author +


fifty years after death
Moral Rights

a. Attribution of authorship
b. Publication right
c. Right to protect the integrity
of the work

Droite de Suite

In every sale subsequent to the


first sale or lease of an original
work of painting or sculpture or
manuscript of writer or
composition of the author or his
heirs is untilled to 5% of the
proceeds of the sale or lease
Term of Moral rights and Driote
de suite

• Same as copyright

NEIGHBORING RIGHTS
These are rights of:

• Performers in their performances


• Producers of Sound Recordings in their
sound recordings
• Broadcasting Organizations in their
radio & television programs
NEIGHBORING RIGHTS
Definitions
a. performers
b. sound Recording
• means the fixation of the sounds of a
performance or of other sounds, or
representation of sound, other than
in the form of fixation incorporated
in a cinematographic or other
audiovisual work;

Definitions (continued)
c. audiovisual work or fixation
• is a work that consists of a series of
related images which impart the
impression of motion, with or without
accompanying sounds, susceptible of
being made audible;
d. fixation
• means the embodiment of sounds, or of
the representations thereof, from which
they can be perceived, reproduced or
communicated through a device;
Definitions (continued)
e. producer of sound recording
• Responsible for the first fixation of sounds
of a performance or other sounds or
representation of sounds;
f. broadcasting
• means the transmission by wire-less means
for the public reception of sounds or of
images or of representations thereof; such
transmission by satellite is also
“broadcasting” where the means for
decrypting are provided to the public by the
broadcasting organization or with its
consent;

Definitions (continued)
g. “Communication to the public of a
performance or a sound recording”
• means the transmission to the public, by
any medium, otherwise than by
broadcasting, of sounds of a
performance or the representations of
sounds fixed in a sound recording. For
purposes of Section 209,
“communication to the public” includes
making the sounds or representations of
sounds fixed in a sound recording
audible to the public.
Economic Rights of Performers
Performers shall enjoy the following exclusive rights:
a. As regards their (live) performances, the
right of authorizing:
i. The broadcasting and other
communication to the public of their
performance (note: this refers to their live
performance).
ii. The fixation of their unfixed
performance.
b. The right of authorizing the direct or
indirect reproduction of their performance fixed in
sound recording, in any manner or form;

Economic Rights of Performers


(continued)
c. The right of authorizing the first
public DISTRIBUTION of the original and
copies of their performance fixed in the
sound recording through sale or other forms
of transfer of ownership;
d. The right of authorizing the
commercial RENTAL to the public of the
original and copies of their performance
fixed in sound recordings, even after the
distribution thereof by, or pursuant to the
authorization by the performer; and
Economic Rights of Performers
(continued)
e. The right of authorizing the MAKING
AVAILABLE TO THE PUBLIC of their
performances fixed in sound recordings, by
wire or wireless means, in such a way that
members of the public may access them
from a place and time individually chosen by
them;
f. Additional remuneration for
SUBSEQUENT COMMUNICATIONS OR
BROADCASTS – unless otherwise provided
in the contract, 5% of the compensation
received for first communication or
broadcast.

Moral rights of performers

Limitations
• Same as copyright (in so far
as they are applicable)
Rights of producers of sound recording
Producers of sound recordings shall enjoy the
following exclusive rights:
a. The right to authorize the direct or indirect
REPRODUCTION of their sound recordings, in any
manner or form;
b. The right to authorize the FIRST PUBLIC
DISTRIBUTION of the original and copies of their
sound recordings through sale or other forms of
transfer ownership; and
c. The right to authorize the commercial
RENTAL to the public of the original and copies of their
sound recording, even after distribution by them by or
pursuant to authorization by the producer

Limitations
• Same as in copyright (mutatis
mutandis)

Compulsory Licensing of Sound


Recordings
Single equitable remuneration to the
performers the producer of the sound
recording if a sound recording is used
for broadcasting or for other
communication to the public for profit.
RIGHTS OF BROADCASTING
ORGANIZATIONS
Broadcasting organizations shall enjoy the
exclusive right to carry out, authorize or prevent
any of the following acts:
a. The REBROADCASTING of their broadcast;
b. The RECORDING in any manner, including the
making of films or the use of video tape, of their broadcasts
for the purpose of communication to the public of television
broadcasts of the same;
c. The use of such records for FRESH
TRANSMISSIONS or for fresh recordings.
ABS-CBN Broadcasting Corp. v. Philippine
Multi-Media System, Inc. (PMSI) G.R. Nos. 17569-70,
January 19, 2009

TERM OF PROTECTION FOR


PERFORMERS, PRODUCERS AND
BROADCASTING ORGANIZATIONS
a. for performances not incorporated in
recordings, fifty (50) years from the end of the
year in which the performance took place;
b. for sound or image and sound recordings
and for performances incorporated therein, fifty
(50) years from the end of the year in which the
recording took place; and
c. in case of broadcasters, the term shall be
twenty (20) years from the date the broadcast
took place.
COPYRIGHT INFRINGEMENT
What constitutes copyright infringement?
• Columbia Pictures v. Court of Appeal 260,
SCRA 144
- To constitute infringement, it is not
necessary that the whole or even a large
portion of the work shall have been copied. If
so much is taken that the value of the original
is sensibly diminished, or the labors or the
original author are substantially and to an
injurious extent appropriated by another, that
is sufficient in point of law to constitute a
piracy;

COPYRIGHT INFRINGEMENT

Remedies
a. Judicial: Civil or Criminal
Jurisdiction : RTC (Commercial Courts)
b. Administrative: (Bureau of Legal
Affairs, IPO
and DTI
Regional Offices)
COPYRIGHT INFRINGEMENT
Other principles
• mere possession of infringing articles for
sale, distribution or exhibit punishable
• presumption of authorship
The natural person whose name is
indicated on a work is presumed to be the
author of the work
• Notice to the defendant that work is
copyrighted is not required but proof of
access to the work must be established

COPYRIGHT INFRINGEMENT
Essential Elements of Copyright Infringement:
• Defendant had access to the copyrighted
work
• The defendant’s work is substantially
similar to the copyrighted work
• The ordinary observer test
(Habana v. Robles)
COPYRIGHT INFRINGEMENT
Civil Remedies for Infringement
• injunction restraining infringement
• payments of actual, moral and exemplary
damages
• impounding of sales invoices, all articles and
their packaging during pendency of the action
• Destruction without compensation of all of
any article which may serve as evidence in
court proceedings

Criminal Penalties for Infringement of


Copyright
• First offense:
imprisonment : 1 year to 3 years
Fine : P50,000.00 to P150,000.00
• Second offense:
imprisonment : 3 years and 1 day to 6 years
Fine : P150,000.00 to P500,000.00
• Subsequent offense:
imprisonment : 6 years and 1 day to 9 years
Fine : P500,000.00 to P1,500,000.00

• In all cases, subsidiary imprisonment in cases of insolvency


COPYRIGHT INFRINGEMENT
Jurisdiction:
• RTC (Commercial Courts)
• Bureau of Legal Affairs, Intellectual
Property Office and DTI Regional
Offices

To obtain a search warrant in a criminal action


for infringement, is presentation of master tapes
of movies allegedly infringed necessary to
establish “ probable cause”?
a. 20th Century Fox v. Court of Appeal
164 SCRA 6555
b. Columbia Pictures v. Court of Appeals
260 SCRA 144

“The requirement for the presentation


of the master tapes of the copyrighted films for
the validity of the search warrants merely serve
as a guidepost in determining the existence of
probable cause….where there is doubt as toe
the true nexus of the master tapes and the
pirated copies.”
COPYRIGHT
1. A textbook in bookkeeping was published, claiming to
propose a less cumbersome and more logical arrangement
of recording data. Which one of the following is prohibited
by the copyright on the book?

Choose one answer.

! a. the use of the bookkeeping systems in the


accounting schools for teaching purposes

! b. the use of the recommended forms by


bookkeepers for the recordal of
data

! c. quotation of the short passages of the


book, naming the author as the
source

! d. photocopying of an entire chapter of the


book

COPYRIGHT
2. The author of a textbook entitled “College English of Today” (CET) sued the
author and publisher of Developing English Proficiency (DEP), a textbook for
English grammar, for copyright infringement. CET alleges that DEP copied
extensively CET’s style, manner and presentation and used examples that
are identical to those used by CET. DEP did not acknowledge at all that the
identical examples and the similarities in the style and manner of
presentation is sourced from CET. Will the action prosper?

Choose one answer.

! a. No, CET has no copyright on the rules on


English grammar

! b. No, what are taught in both CET and DEP


are sourced from foreign authors.

! c. Yes, because DEP did not comply with the


provision of law that in case of
quotations, the source and the
name of the author should be mentioned.

! d. No, because even assuming CET enjoys


copyright protection, DEP can
invoke the fair use limitation
because the copying is done for
teaching purposes
COPYRIGHT
3. Sony Corporation manufactures and sells videotape records (known as
betamax) which are capable of recording movies immediately at later time
(hometime shifting use) shown in television networks. The users also record
educational, religious or sports or current events which are not covered by
copyright. The movie producers who owned the copyright of the movie sued
Sony for contributory infringement. Will the action prosper?

Choose one answer.

! a. Yes, because it induces the unauthorized


reproduction of copyrighted
works

! b. Yes, because the sale of betamax is for commercial


purpose

! c. No, because the VTR or betamax is capable of


substantial non-infringing use, hence it
constitutes fair use

! d. Yes, because it will affect the potential market of the


movie producers

COPYRIGHT
4. Pearl and Dean manufactures advertising display units (light boxes) ---
printed posters sandwiched between plastic sheets and illuminated with
black lights --- sued shoemart for installing exact copies thereof in its
establishments. Shoemart once offered to lease the “light boxes”/ The
action was for infringement of copyright on the “light boxes”. Will the action
prosper?

Choose one answer.

! a. Yes, because Shoemart uses “light boxes” which are


identical to those designed by Pearl and
Dean

! b. Yes, because Shoemart is in bad faith since it knew


that the “light boxes”were conceptualized by
Pearl and Dean

! c. No, because the copyright of Pearl and Dean covers


only the technical drawings of the “light
boxes” and not the “light boxes” themselves

! d. Yes, because Shoemart took advantage of its dominant


position as a huge establishment to enrich itself at the
expense of small entrepreneurs
COPYRIGHT
5. You bought a textbook on Corporation Law written by Dean
Cesar Villanueva. Which of the following are you allowed to
do by the Copyright Law?

Choose one answer.

! a. to scan the book and store it in the hard


drive of your computer

! b. to copy and reproduce substantial


portions of the textbook for use in
your
thesis

! c. to summarize and make an outline of the


book

! d. to sell the book after you decide to take up


nursing

COPYRIGHT Source: WIPO


6. The music of a famous composer of the 18th century was performed by
an Australian pianist in a concert hall. The local radio station recorded
that concert with a view to transmitting it to the public without seeking
anyone’s permission. Is this action lawful?

Choose one answer.

! a. No, it is not. The heirs of the composer are alive and


entitled to remuneration

! b. Yes, it is. The radio company has only a limited


capacity to transmit the music and only within
one small area

! c. Yes, it is. The music was composed in the 18th


century and thus it is now in the public domain
and does not enjoy any kind of protection

! d. No, it is not. The radio company needs to seek the


permission of the pianist to record the concert
because she is still enjoying related rights
COPYRIGHT
7. Which of the following acts refers to the moral rights of the author:

Choose one answer.

! a. To object to the translation of the work

! b. To authorize distribution of copies of work

! c. To authorize the performance of the work

! d. To object to the work being distorted

! e. To object to photocopying of his/her work

! f. To authorize advertising of his/her work

Source: WIPO

COPYRIGHT Source: WIPO


8. Mr. Gil is a renowned author who has written more than 50 books. He does not
know how to use the Internet. One day, with the help of his son, by chance he
was able to access the website where an unknown company B was selling all his
books online via the Internet. Mr. Gill did not know what to do. He approaches
you for advice on what he should do regarding this matter. Does he have any
right regarding his works sold on the Internet?

Choose one answer.

! a. Mr. Gill has the right on his books sold via the Internet,
and Company B’s action should be considered as an
infringement

! b. Mr. Gill does not have any right on his books sold on the
Internet as the delivery mechanism is different

! c. Mr. Gill cannot prevent others from selling books on the


Internet since they are in the public domain

! d. Mr. Gill has only moral right on the book sold via the Internet,
but not the economic rights

! e. Mr. Gill’s rights are limited to the printed books, not


electronic ones, as he did not contribute to putting
COPYRIGHT
9. A group of students at Mixit High School started an internet based rap music
file sharing through their rap music website without asking permission from
right holders. The website was a success, with tens of millions of web hits
per day. The rap singers whose songs were exchanged through this website
saw their music sales soar by 20 per cent. Nevertheless, the music
producers of the labels got together and brought a legal action alleging that
the act of downloading music through this website constituted an illegal
activity and was tantamount to copyright infringement. They seek your
advice on the damages. Which statement is correct:

Choose one answer.

! a. The website does not infringes anyone’s rights since


the music sharing was only among students
which do not constitute the public

! b. The website was a good promotional tool for artists as


evidenced by the soaring sales and was therefore not a
copyright infringement

! c. Only the rap musicians can bring a legal action since


they were the true rights owners

! d. The rap musicians and music producers should be


awarded damages since only they have the
Source: WIPO
exclusive right to authorize the distribution of their
works

COPYRIGHT
10. Which of the following works cannot be protected under copyright:

Choose one answer.

! a. Musical compositions with words

! b. Musical compositions without words

! c. The conception of a novel

! d. An original work of poetry

! e. Computer programs

Source: WIPO