IT41-SIP (Social and Professional Issues)

PAMBAYANG DALUBHASAAN NG MARILAO

College of Computer Studies

I. INTRODUCTION
This module covers copyright and copyright
infringement related to software developed
by a programmer/ developer which can be
identified by the list of rules on copyright
Module 12 ownership.

II. OBJECTIVES
1. Identify the rules on copyright ownership
COPYRIGHT and apply it to applications/software
developed by programmers/developers
2. Investigate on the cited software copyright
issues provided in module
3. Discover the limitations of copyright by
identifying conditions provided by the law

III. LESSON PROPER

Copyright – the author’s legal ownership of his or her original intellectual creations in the literary and
artistic domains.

Ownership of Copyright
The pertinent provision of RA 8293 (Intellectual Property Code of the Philippines) provides:

Section 178. Rules on Copyright Ownership. – Copyright ownership shall be governed by the following
rules:
178.1 Subject to the provisions of this section, in the case of original literary and artistic work, copyright
shall belong to the author of the work;
178.2 In the case of works joint authorship, the co-authors shall be the original owners of the copyright
and in the absence of agreement, their rights shall be governed by the rules on co-ownership. If, however,
a work of joint ownership 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;
178.3 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 regular-assigned duties, unless there
is an agreement, express or implied, to the contrary.

If the employee was able to develop or design a patentable invention during the course of his
employment using the facilities and materials of his employer, who shall own the patent?
 IT41-SIP (Social and Professional Issues)
PAMBAYANG DALUBHASAAN NG MARILAO
College of Computer Studies

Section 30.2 Read:

In case the employee made the invention in the course of his employment contract, the patent shall belong
to:
(a) The employee, if the inventive activity 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 invention is the result of the performance of his regularly assigned duties, unless
there is an agreement, express or implied, to the contrary.

If a person commissioned a programmer to design a system for him where there is NO employer-
employee relationship, is the rule of copyright ownership the same?

 The rule is NOT the same. If there is an employer-employee relationship, the copyright and the
work both belongs to the employer, UNLESS there is an agreement, express or implied, to the
contrary.
 If there is no employer-employee relationship, the person who commissioned the work shall have
the ownership of the work, BUT the COPYRIGHT thereto shall remain with the creator, unless
there is a written stipulation to the contrary (Sec 178.4 RA 8293).
 Sec 3, Article XIII of the Philippine Constitution, the State shall promote the principle of shared
responsibility between workers and employers. Thus, the employees shall have a just share in
the fruits of production and the employer to reasonable returns of investments, and to expansion
and growth.
 In patent, the person who commissioned the work owns the patent, unless otherwise provided in
the contract.

Copyright as Distinguished from Material Object (film,tape, architectural drawing)

Section 181 of the IPC reads:

Section 181. Copyright and the Material Object. – The copyright is distinct from the property in the
material object subject to it. Consequently, the transfer or assignment of the copyright shall not itself
constitute a transfer of the material object. Nor shall transfer or assignment of the sole copy or of one or
several copies of the work imply transfer assignment of the copyright.

 To illustrate, suppose the TABAKO University commissioned Andrei to develop for them a
SCHEDULER SYSTEM which automatically generate a well efficient class schedules of the students
as well as the teaching loads of professors. After finishing the program, Andrei provided TABAKO
University an installer of the SCHEDULER SYSTEM. During the installation process, the license
agreement between Andrei and Tabako University shall appear which reads:
“This installer package of SCHEDULER SYSTEM is licensed only to TABAKO University. Any
unauthorized use of this package shall be subject to CRIMINAL PROSECUTIONS!”

 If the contract is silent as regards ownership of the copyright, Andrei, the author of the work shall
own the copyright. Andrei shall own the source code and may deprive Tabako any copy of the
code.
 IT41-SIP (Social and Professional Issues)
PAMBAYANG DALUBHASAAN NG MARILAO
College of Computer Studies
 Source code is the intellectual creation, the intellectual property which belongs to the
programmer.
 The installer which contains the software package of the SCHEDULER SYSTEM is the material
object as distinguished from the source code.

If the programmer owns the copyright of the code, does it mean Tabako cannot use the SCHEDULER
SYSTEM?
 Tabako can use the SCHEDULER SYSTEM because the IPC states that the person who
commissioned the work shall have the ownership of the work (Sec. 178.4, RA 8293).

Reproduction of a Computer Program

 The IPC allows the lawful owner the reproduction of one back-up copy of a computer program
without the authorization of the author of, or other owner of copyright. Provided, that the copy
or adaptation is necessary for:
(a) The use of the computer program in conjunction with a computer for the purpose, and
to the extent, for which the computer program has been obtained; and
(b) Archival purposes, and, for the replacement of the lawfully owned copy of the
computer program in the event that the lawfully obtained copy of the computer
program is lost, destroyed or rendered unusable.

Are Computer Programs Considered as Trade Secret?

 Trade Secret - is defined as a plan or process, or tool, mechanism or compound known only to its
owner and those of his employees to whom it is necessary to confide it.
o The definition also extends to a secret formula or process not patented, but known only
to certain individuals using it in compounding some article of the trade having a
commercial value.
o A trade secret may consist of any formula, pattern, device, or compilation of information
that:
(1) Is used in one’s business; and
(2) Gives the employer an opportunity to obtain an advantage over competitors
who do not possess the information
o Trade secrets are considered privileged matters which the rules of Court do not permit
disclosure.
 So, if the computer programs will be a trade secret, then it would have the effect of giving the
employer the right to restrain their programmers to reveal the code and use them outside.
 Generally, programs are NOT “trade secret”. However, this rule admits of an exception.
 On the contrary, if Andrei is an employee of Microsoft Corporation whose main task is to develop
and maintain programs for Microsoft, the source code shall be considered as a “trade secret”.
Only the Microsoft Corporation can improve its current software because it is the only person,
along with its employees, who have the source code of all Microsoft’s products.
 IT41-SIP (Social and Professional Issues)
PAMBAYANG DALUBHASAAN NG MARILAO
College of Computer Studies
What is Decompilation?
 The reproduction of the code and translation of the forms of the computer program to achieve
the inter-operability of an independently created computer program with other programs may
also constitute fair use.
 Decompilation is an example of Fair Use of Copyright Work which means doing so will not
constitute copyright infringement.
 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.

In determining whether the use made of a work in any particular case is 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 non-profit education purposes;
(b) The nature of the copyrighted work;
(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.

185.2 The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made
upon consideration of all the above factors.

Is the service provider automatically liable with the originator who uploaded a full copy of a copyrighted
song or movie?
 No. Since the service provider, like YouTube cannot be aware of the nature of materials uploaded
to it.
 However, if the service provider receives an advice that such material is copyrighted and should
be removed, but service provided failed to act, the latter will now be liable (Sec. 30 E-Commerce
Law).

Limitations on Copyright
The following acts shall not constitute infringement of copyright:

a. The recitation or performance of a work, once it has been lawfully made accessible to the public,
if (1)done privately and free of charge or (2)if made strictly for a charitable or religious institution
or society; (Sec. 10(1), P.D. No. 49)
b. The making of quotations from a published work if they are compatible with fair use and only to
the extent justified for the purpose, including quotations from newspaper articles and periodicals
in the form of press summaries: Provided, that the source and the name of the author, if
appearing on the work, are mentioned; (Sec. 11, third par., P.D. No. 49)
c. The reproduction or communication to the public by mass media of (1)articles on current political,
social, economic, scientific or religious topic, (2)lectures, addresses and other works of the same
nature, which are delivered in public if such use is for information purposes and has not been
expressly reserved: Provided, that the source is clearly indicated; (Sec. 11, P.D. No. 49)
 IT41-SIP (Social and Professional Issues)
PAMBAYANG DALUBHASAAN NG MARILAO
College of Computer Studies
d. The reproduction and communication to the public of literary, scientific or artistic works as part of
reports of current events by means of photography, cinematography or broadcasting to the extent
necessary for the purpose; (Sec. 12, P.D. No. 49)
e. The inclusion of a work in a publication, broadcast, or other communication to the public, sound
recording or film, if such inclusion is made by way of illustration for teaching purposes and is
compatible with fair use: Provided, that the source and of the name of the author, if appearing in
the work, are mentioned;
f. The recording made in schools, universities, or educational institutions of a work included in a
broadcast for the use of such schools, universities or educational institutions: Provided, that such
recording must be deleted within a reasonable period after they were first broadcast: Provided,
further, That such recording may not be made from audiovisual works which are part of the
general cinema repertoire of feature films except for brief excerpts of the work;
g. The making of ephemeral recordings by a broadcasting organization by means of its own facilities
and for use in its own broadcast;
h. The use made of a work by or under the direction or control of the Government, by the National
Library or by educational, scientific or professional institutions where such use is in the public
interest and is compatible with fair use;
i. The public performance or the communication to the public of a work, in a place where no
admission fee is charged in respect of such public performance or communication, by a club or
institution for charitable or educational purpose only, whose aim is not profit making, subject to
such other limitations as may be provided in the Regulations;
j. Public display of the original or a copy of the work not made by means of a film, slide, television
image or otherwise on screen or by means of any other device or process: Provided, That either
the work has been published, or, that the original or the copy displayed has been sold, given away
or otherwise transferred to another person by the author or his successor in title; and
k. Any use made of a work for the purpose of any judicial proceedings or for the giving of professional
advice by a legal practitioner.

IV. ASSESSMENT
 The link for the assessment will be provided in the LMS.

V. REFERENCES
 C. Laviña. Social, Ethical, Legal and Professional Issues in Computing, Mindshapers Co.,
Inc., 2015