Porras, Thea P.

1590-17
5B Commercial Law Review
COPYRIGHTS
Copyright, defined;
Under the law, it is defined as an intangible, incorporeal right granted by statute
to the author or originator of certain literary or artistic productions, whereby he or she
is invested, for a specific period, with the sole and exclusive privilege of multiplying
copies of the same and publishing and selling them.1
It is a purely statutory right and may be obtained and enjoyed only with respect
to the subjects and by the persons, and on terms and conditions specified in the
statute. It can only cover the works falling within the statutory enumeration or
description.2
Characteristics of a copyright3
1. It is granted to the creator or originator of the copyrightable work. But being
a right, copyright can be assigned;
2. The object is original intellectual creation in the literary, artistic and scientific
domains;
3. It is not indefinite. The economic and moral rights are exclusive to the creator
or originator of the work during the term specified by law, except for the
moral right of attribution which is in perpetuity.
4. Being a statutory grant, the rights derived from such grant may only be
obtained and enjoyed with respect to the works and on the terms and
conditions, specified in the statute. The “works” must fall within the statutory
enumeration or description.
Copyrightable works
Works are protected by the sole fact of their creation, irrespective of their mode
or form of expression, as well as of their content, quality and purpose. 4
Classifications of protected works5
1. Original and literary works; and
2. Derivative works
Original Works6
Literary and artistic works are original intellectual creations in the literary and
artistic domain protected from the moment of their creation and shall include in
particular:
1
General Register: GR No 221372
Kensonic vs. Uni-Line Multi Resources, Inc., and Fernando Juan vs. Roberto
Juan, GR No. 221372, August 23, 2017
2
General Register: GR 148222
Pearl & Dean (Phil.) Inc vs. Shoemart Inc., GR No. 148222, August 15, 2003
3
Volume I, Nilo T. Divina, Divina on Commercial Law, A Comprehensive Guide, Page
306, 2021 Edition
4
General Register: GR No 165306
Manly Sportwear Manufacturing, Inc., vs Dadodette Enterprises and / or Hermes
Sports Center, GR No. 165306, September 20, 2005
5
Volume I, Nilo T. Divina, Divina on Commercial Law, A Comprehensive Guide, Page
307, 2021 Edition
6
Section 172 of Republic Act 8293 otherwise known as the Intellectual Property Code
 1. Book, pamphlets, articles and other writings;
2. Periodicals and newspapers;
3. Lectures, sermons, addresses, dissertations prepared for oral delivery, whether
or not reduced in writing or other material form;
4. Letters;
5. Dramatic or dramatico-musical compositions; choreographic works or
entertainment in dumb shows;
6. Musical compositions, with or without words;
7. Works of drawing, painting, architecture, sculpture, engraving, lithography or
other works of art; models or designs for works of art;
8. Original ornamental designs or models for articles of manufacture, whether or
not registrable as an industrial design, and other works of art;
9. Illustrations, maps, plan sketches, charts and three-dimensional works relative to
geography, topography, architecture or science;
10.Drawings or plastic works of a scientific or technical character;
11.Photographic works including works produced by a process analogous to
photography; lantern slides;
12.Audiovisual works and cinematographic works and works produced by a process
analogous to cinematography or any process for making audio-visual recordings;
13.Pictorial illustrations and advertisements;
14.Computer programs; and
15.Other literary, scholarly, scientific and artistic works
Doctrine of Conceptual Separability – Denicola Test
If design elements reflect a merger of aesthetic and functional considerations,
the artistic aspects of a work cannot be said to be conceptually separable from its
utilitarian aspects. Conversely, where design elements can be identified as reflecting the
designer’s artistic judgment exercised independently of functional influences, conceptual
separability exists.7
There is no copyright protection for works of applied art or industrial design
which have aesthetic or artistic features that cannot be identified separately from the
utilitarian aspects of the article. Functional components of useful articles, no matter
how artistically designed, have generally been denied copyright protection unless they
are separable from the useful article.8
Derivative Works
Derivative works are creations that are based on an existing work. Thus, the
series of the film “Harry Potter” is a derivative work based on the novel of the same
title. As song that is a “remake” of an old song is another example of derivative works.
The law provides that the following derivative works shall also be protected by
copyright: 9
1. Dramatizations, translations, adaptations, abridgments, arrangements, and
other alterations of literary or artistic works; and
2. Collections of literary, scholarly or artistic works, and compilations of data and
other materials which are original by reason of the selection or coordination
or arrangement of their contents.
7
Brandir International Inc., vs Cascade Pacific Lumber Co., No. 828, Docket 86-6260,
CA2, 1987, December 2, 1987
8
General Register: GR No. 161295
Ching vs Salinas, GR No. 161295, June 29, 2005
9
Ernesto C. Salao, Essentials of Intellectual Property Law, A Guidebook on Republic Act
No. 8293 as Amended and Related Laws, Page 282. 2019 Edition
Non-copyrightable Works
The following are considered as non-copyrightable works:10
1. Idea, procedure, system, method or operation, concept, principle, discovery or
mere data as such, even if they are expressed, explained, illustrated or
embodied in a work;
2. News of the day and other miscellaneous facts having the character of mere
items of press information;
3. Any official text of a legislative, administrative or legal nature, as well as any
official translation thereof;
4. Any work of the Government of the Philippines. However, prior approval of the
government agency or office wherein the work is created shall be necessary for
exploitation of such work for profit. Such agency or office may, among other
things, impose as a condition the payment of royalties;
5. Statutes, rules and regulations and speeches, lectures, sermons, addresses and
dissertations, pronounced, read or rendered in courts of justice, before
administrative agencies, in deliberative assemblies and in meetings of public
character.
Rights of the Copyright Owner
There are two classifications of rights derived from a copyright: 11
1. Economic rights – Copyright or economic rights shall consist of the exclusive
right to carry out, authorize or prevent the following acts;
a. Reproduction of the work or substantial portion of the work;
b. Dramatization, translation, adaptation, abridgment, arrangement or other
transformation of the work;
c. The first public distribution of the original and each copy of the work by
sale or other forms of transfer of ownership;
d. Rental of the original or a copy of an (i) audiovisual, or (ii)
cinematographic work; (iii) a work embedded in a sound recording, (iv) a
computer program, (v) a compilation of data and other materials, or (vi) a
musical work in graphic form, irrespective of the ownership of the original
or the copy which is the subject of the rental;
e. Public display of the original or a copy of the work;
f. Public performance of the work; and
g. Other communication to the public of the work.
2. Moral rights – The author of a work, shall, independently of the economic
rights or the grant of an assignment or license with respect to such right, have
the following moral rights:12
a. To require that the authorship of the works be attributed to him, in
particular, the right that his name, as far as practicable, be indicated in a
prominent way on the copies, and in connection with the public use of his
work;
b. To make any alterations of his work prior to, or to withhold it from
publication;
c. To object to any distortion, mutilation or other modification of, or other
derogatory action in relation to, his work which would be prejudicial to his
honor or reputation;
10
Volume I, Nilo T. Divina, Divina on Commercial Law, A Comprehensive Guide, Page
312, 2021 Edition
11
Section 177 of Republic Act 8293 otherwise known as the Intellectual Property Code
12
Volume I, Nilo T. Divina, Divina on Commercial Law, A Comprehensive Guide, Page
324, 2021 Edition
 d. To restrain the use of his name with respect to any work not of his own
creation or in a distorted version of his work.
Rules on Ownership of Copyright
Copyright ownership shall be governed by the following rules:
1. In case of original literary and artistic works, copyright shall belong to the author
of the work. 13
2. In the case of works of joint authorship, the co-authors shall be the original
owners of the copyright and in the absence of agreement, they shall be
governed by the rules on co-ownership. If, however, a work of joint authorship
consists of parts that can be used separately and the author of each part can be
identified, the author of each part shall be the original owner of the copyright in
the part that he has created;14
3. In the case of work created by an author during and in the course of his
employment, the copyright shall belong to:
a. The employee, if the creation of the object of copyright is not a part of his
regular duties even if the employee uses the time, facilities and materials
of the employer.
b. The employer, if the work is the result of the performance of his regularly-
assigned duties, unless there is an agreement, express or implied, to the
contrary.15
4. In the case of work commissioned by person other than an employer of the
author, and who pays for it, and the work is made in pursuance of the
commission, the person who so commissioned the work shall have ownership of
the work, but the copyright thereto shall remain with the creator, unless there is
a written stipulation to the contrary; 16
5. In case of audiovisual work, the copyright shall belong to the producer, the
author of the scenario, the composer of the music, the film director, and the
author of the work so adopted. However, subject to contrary or other stipulations
among the creators, the producer shall exercise the copyright to an extent
required for the exhibition of the work in any manner, except for the right to
collect performing license fees for the performance of musical compositions, with
or without words, which are incorporated into the work;17
6. In respect of letters, the copyright shall belong to the writer subject to the
provisions of Article 723 of the Civil Code. 18 The publishers shall be deemed to
represent the authors of articles and other writings published without the names
of the names of the authors or under pseudonyms, unless the contrary appears,
or the pseudonyms or adopted name leaves no doubt as to the author’s identity,
or if the author of the anonymous works discloses his identity. 19
Doctrine of Fair Use
Fair use is a “privilege to use the copyrighted material in a reasonable manner
without the consent of the copyright owner or as copying the theme or ideas rather
than their expression.” Fair use is an exception to the copyright owners monopoly of

13
Section 178.1 of Republic Act 8293 otherwise known as the Intellectual Property Code
14
Section 178.2 of Republic Act 8293 otherwise known as the Intellectual Property Code
15
Section 178.3 of Republic Act 8293 otherwise known as the Intellectual Property Code
16
Section 178.4 of Republic Act 8293 otherwise known as the Intellectual Property Code
17
Section 178.5 of Republic Act 8293 otherwise known as the Intellectual Property Code
18
Section 178.6 of Republic Act 8293 otherwise known as the Intellectual Property Code
19
Section 179 of Republic Act 8293 otherwise known as the Intellectual Property Code
the use of the work avoid stifling “the very creativity which that law is designment to
foster.”20
Under this doctrine, the fair use of a copyrighted work for: (1) Criticism and
comment, (2) News reporting, (3) Teaching, including multiple copies for classroom
use; and (4) Scholarship, research, and similar purposes is not and infringement of
copyright.
Copyright Infringement
Infringement of a copyright is a trespass on a private domain owned and
occupied by the owner of the copyright, and, therefore, protected by law, and
infringement of a copyright, or piracy, which is a synonymous term in this connection,
consists in the doing by any person, without the consent of the owner of the copyright,
of anything the sole rights to do which is conferred by statute on the owner of the
copyright.21
Elements of copyright infringement
For a claim of copyright infringement to prevail, the evidence on record must
demonstrate:
1. Ownership of a validly copyrighted material by the complainant; and
2. Infringement of the copyright by the respondent22

20
General Register No. 175769-70
ABS-CBN Broadcasting Corporation vs. Philippine Multi-Media System., Inc., et.,
GR No. 175769-70, January 19, 2009
21
General Register No. 175769-70
ABS-CBN Broadcasting Corporation vs. Philippine Multi-Media System., Inc., et.,
GR No. 175769-70, January 19, 2009
22
General Register: GR No. 161295
Ching vs Salinas, GR No. 161295, June 29, 2005