COMPREHENSIVE LEGAL MEMORANDU6M

To: Atty. Golda Benjamin

From: Pia C. Sotto
Date: July 19, 2016
Re: Unauthorized display of copyrighted works and who will be liable

SUMMARY OF ASSIGNMENT:
As per our discussion on July 12, 2016, this legal memorandum will
comprehensively discuss the jurisprudence on unauthorized display of
copyrighted works and who will be liable.
ISSUE:
Whether or not those who display copyrighted works without proper
authorization will be held liable for copyright infringement
SHORT ANSWER:
Yes. Those who display copyrighted works without proper authorization and
permission from the copyright owner will be held liable for violating Article
XIV, Section 13 of the 1987 Constitution.
ANALYSIS/DISCUSSION:
Article XIV, Section 13 of the 1987 Constitution states that the State shall
protect and secure the exclusive rights of scientists, inventors, artists, and
other gifted citizens to their intellectual property and creations, particularly
when beneficial to the people, for such period as may be provided by law. 1
This is because the State recognizes that the intellectual and industrial
property of one is vital for the development of our state as a whole. Section 4
of RA 8923 otherwise known as the Intellectual Property Code of the
Philippines, states that copyright and related rights is one of the terms
that consist intellectual property rights. Under Chapter 5, Section 177 of
RA 8923, copyrights or economic rights shall consist of the exclusive right to
carry out, authorize or prevent 1) Reproduction of the work or substantial
portion of the work; 2) Dramatization, translation, adaptation, abridgment,
arrangement or other transformation of the work; 4) Rental of the original or
a copy of an audio visual 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;

Bernas, J. (2009). The 1987 Constitution of the Philippines: A Commentary (p. 1310). Manila. Rex
Publishing House.

5) Public display of the original or copy of the work; 6) Public performance of

the work; and 7) Other communication to the public of the work under
Section 5, P.D. No. 49.2
Unauthorized display could be defined as something that has been
published, copyrighted, or shown to the public without the consent of the
person owning the work. In this case, this person may be an author, artist,
inventor, scientist or other gifted citizens of the country. Unauthorized
display of works by a copyright owner constitutes copyright infringement.
Copyright infringement is punishable under Republic Act 8923,
otherwise known as the Intellectual Property Code of the
Philippines. In this Act, before an individual or a party who desire to
reproduce, adapt, republish, or display a copyrighted work, should first
obtain permission from the copyright owner.
In the case of Habana vs Felicidad Robles and Goodwill Trading Corp. Inc., it
defines what Infringement is. It states that, 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 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 right to do which is conferred by statute on the owner of
the copyright.3
In Santos vs Macculough Printing Company, the plaintiff filed for action for
damages after his artistic work was displayed without his knowledge and
authority.4 In this case, the plaintiff claimed that the respondent violated
Article 721, paragraph 3 and Article 722 of the Civil Code of the Philippines,
which states that by intellectual creation, the painter, sculptor, or other
artist, shall acquire ownership, with respect to the product of his art and that
the painter, sculptor or other artists shall have dominion over the product
of his art even before it is copyrighted.5
In the case of Sta. Maria vs La Concepcion College, the petitioner filed for
action against defendant after finding out that the books published by St.
Matthews (The publishing house owned by Sta. Maria) were being lifted and
incorporated by the responded without petitioners knowledge and consent.
Respondent claimed argued that the copyrighted work was in fair usage.
However, the Department of Legal Affairs of Intellectual Property Office
decided that, While the subject books are used for teaching purposes, the
respondent's acts are not considered limitations to copyright nor compatible
with fair use. Considering that the respondent sells the books, the use is
commercial in nature.6
______________________________________________________________________________________________________________________________________
_______________________

Chapter 5, Sections 4 and 177, RA 8923.

Habana vs Robles, G.R. No. 131522, July 19, 1999.

Santos vs Mcculough Printing Company, G.R. No. L-19439, October 31, 1964.
5
Art. 721 par. 3, Art. 722, FC
6
Sta. Maria vs La Concepcion College, IPV No. 10-2009-00009, October 9, 2009.
3
4

Also, the act of the respondent violated section 184.2 of RA 8923 because it
conflicted with the normal exploitation of the work and prejudiced the right
holders interest by reproducing complainant's books without the latters
authority and knowledge and also sold the book for commercial purposes,
without the consent of the petitioner. Furthermore, the respondent practically
copied or reproduced the complainant's books in their entirety. Lastly, the
respondent infringing acts in effect imposed an unfair competition against
the complainant.7
Section 185 of RA 8923 states that, Before a person could claim that he is
using the material/work/output of another in fair use, the four elements in
determining fair use should be present:1) The purpose and character of the
use, including whether such use is of a commercial nature or is for non-profit
educational purposes; 2) The nature of the copyrighted work; 3) The amount
and substantiality of the portion used in relation to the copyrighted work as
a whole; and 4) The effect of the use upon the potential market for or value
of the copyrighted work.8 In the case mentioned above, the respondents
failed to prove that the books they republish and re-printed are within the
elements of fair use, considering the fact that the respondent sold the books
and copied and reproduced the complainants books in their entirety.
However, not all copyright owners can claim copyright infringement
whenever they deem that their works were copied, displayed or publish
without their consent and knowledge. It is the Bureau of Legal Affairs under
the Intellectual Property Office, who will investigate and determine whether
or not there has been a violation of copyright. Under 177.2 of RA 8923,
among the economic rights comprising copyright is the exclusive right to
carry out, authorize or prevent translation of the work.9
In the incident that happened in 2012 which involved Senator Vicente Sotto,
he was accused of committing plagiarism and infringement after lifting parts
of his RH Bill speech from the blog of Sarah Pope. Sotto argued that his acts
constituted to fair acts since they were for Congress use. 10 This is one of
limitations which do not constitute copyright infringement. Even though
Section 172.2 of RA 8923 states that web blogs are copyright protected from
the moment of their creation, Senator Sotto is still exempted from the
liability of infringement because of the fact that he did not cause economic
harm to the blogger.
Under Republic Act 8923, it was not expressly stated who will be liable.
However, it is presumed that the person who violates the copyright or
exclusive rights of any person stated in Chapter 5, Section 177 of RA 8923
directly shall be liable and will be subject for penalty and damages against
the copyright owner. However, it is not only the direct infringer who may be
3

liable for copyright infringement. There can also be a secondary copyright

infringement liability. The U.S. Supreme Court states that they recognize two
forms of secondary copyright infringement liability: contributory and
vicarious.
______________________________________________________________________________
___________________________
Sec. 184.2, Art. 8923
Sec. 185, Art. 8923
9
Sec. 177.2, Art. 8923
10
Sotto
and
a
thing
or
two
about
copyright.
Retrieved
July
http://www.interaksyon.com/infotech/sotto-and-a-thing-or-two-about-copyright
7
8

18,

2016

from

Contributory liability happens when the secondary infringer with

knowledge of the infringing activity, induces, causes or materially
contributes to the infringing conduct of another. And vicarious liability is
when the person has the right and ability to supervise the infringing activity
and also has a direct financial interest in such activities. 11 An example of this
is when a photocopy centre re-produces the books by photocopying it,
without the consent of the copyright owner; it is considered a vicarious
liability because the infringer has a direct financial interest in the said
activity.
In Section 216.1 of RA 8923, it enumerates the liability of a person who is
infringing the right under the law. They shall be liable: 1) To an injunction
restraining such infringement; 2) Pay to the copyright proprietor or his
assigns or heirs such actual damages, including legal costs and other
expenses, as he may have incurred due to the infringement as well as the
profits the infringer may have made due to such infringement, and in proving
profits the plaintiff shall be required to prove sales only and the defendant
shall be required to prove every element of cost which he claims, or, in lieu
of actual damages and profits, such damages which to the court shall appear
to be just and shall not be regarded as penalty; 3) Deliver under oath, for
impounding during the pendency of the action, upon such terms and
conditions as the court may prescribe, sales invoices and other documents
evidencing sales, all articles and their packaging alleged to infringe a
copyright and implements for making them; 4) Deliver under oath for
destruction without any compensation all infringing copies or devices, as well
as all plates, molds, or other means for making such infringing copies as the
court may order; 5) Such other terms and conditions, including the payment
of moral and exemplary damages, which the court may deem proper, wise
and equitable and the destruction of infringing copies of the work even in the
event of acquittal in a criminal case. Lastly, 216.2 states that the Court shall
also have the power to order the seizure and impounding of any article which
may serve as evidence in the court proceedings.12
______________________________________________________________________________________________________________________________________
_______________________

Yeh, B. (2010). The Jurisprudence of Justice John Paul Stevens: Selected Opinions on Intellectual
Property Law [Powerpoint Slides]. Retrieved from https://fas.org/sgp/crs/misc/R41236.ppt
12
Sec. 216.1 and 216.2, RA 9823
11

CONCLUSION:
Those who display unauthorized display of copyrighted works will be held
liable for violating Article 14, Section 13 of the 1987 Constitution and
Republic Act 8923 otherwise known as the Intellectual Property Code of the
Philippines. In RA 8923, it is not expressly stated who are the persons liable.
However, in the U.S. Supreme Court, they recognize the fact that it is not
only the direct infringer who will be liable in violating the said provision of
the Constitution and the law of RA 8923, those who are deemed to be a
secondary infringer will also be subject for penalties and shall be compelled
to pay exclusive and moral damages of the offended copyright owner.
Therefore, before a person or a party may desire to copyright a work of a
person, they must first obtain permission from the owner itself in order to
avoid the consequence of violating the right of protecting the intellectual
property of a copyright owner.