Copyright Part I PDF

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INTELLECTUAL PROPERTY – those property rights which result from the physical rendered its literal terms ambiguous, the Copyright Act must be construed in light of this
manifestation of original thought. basic purpose. 7 [422 U.S. 151, 157]
Constitutional Basis of Intellectual Property Protection (Art. XIV, Sec. 13) Section 3. International Conventions and Reciprocity. - Any person who is a
The State shall protect and secure the exclusive rights of scientists, inventors, artists, and national or who is domiciled or has a real and effective industrial establishment in a
other gifted citizens to their intellectual property and creations, particularly when country which is a party to any convention, treaty or agreement relating to intellectual
beneficial to the people, for such period as may be provided by law. property rights or the repression of unfair competition, to which the Philippines is
also a party, or extends reciprocal rights to nationals of the Philippines by law, shall
*Intellectual property is therefore a means towards the end of making society benefit
be entitled to benefits to the extent necessary to give effect to any provision of such
from the creations of its men and women of talent and genius.
*The State is obligated to enact measures for the protection of IP rights since they are convention, treaty or reciprocal law, in addition to the rights to which any owner of an
constitutional protected. intellectual property right is otherwise entitled by this Act. (n)
Section 231. Reverse Reciprocity of Foreign Laws. - Any condition, restriction,

COVERAGE OF INTELLECTUAL PROPERTY RIGHTS
limitation, diminution, requirement, penalty or any similar burden imposed by the
law of a foreign country on a Philippine national seeking protection of intellectual
Section 4. Definitions. - 4.1. The term "intellectual property rights" consists of:
property rights in that country, shall reciprocally be enforceable upon nationals of
a) Copyright and Related Rights;
b) Trademarks and Service Marks; said country, within Philippine jurisdiction. (n)
c) Geographic Indications;
d) Industrial Designs; Remember (Sec. 3):
e) Patents; 1) National
f) Layout-Designs (Topographies) of Integrated Circuits; and 2) Domiciled
g) Protection of Undisclosed Information (n, TRIPS).
3) Has a real & effective industrial establishment
Section 2. Declaration of State Policy. - The State recognizes that an effective
MIRPURI V CA
intellectual and industrial property system is vital to the development of domestic and
creative activity, facilitates transfer of technology, attracts foreign investments, and
ensures market access for our products. It shall protect and secure the exclusive rights Foreign nationals are to be given the same treatment in each of the member countries as
of scientists, inventors, artists and other gifted citizens to their intellectual property that country makes available to its own citizens. Nationals of the various member nations are
and creations, particularly when beneficial to the people, for such periods as provided thus assured of a certain minimum of international protection of their industrial property.
in this Act.
PEARL & DEAN V SHOEMART
The use of intellectual property bears a social function. To this end, the State shall
promote the diffusion of knowledge and information for the promotion of national Obviously, there appeared to be some confusion regarding what ought or ought not to be
development and progress and the common good. xxx the proper subjects of copyrights, patents and trademarks. In the leading case of Kho vs.
[11]
Court of Appeals, we ruled that these three legal rights are completely distinct and
TWENTIETH CENTURY MUSIC CORP. VS. AIKEN separate from one another, and the protection afforded by one cannot be used
interchangeably to cover items or works that exclusively pertain to the others:
The immediate effect of our copyright law is to secure a fair return for an "author's" creative Trademark, copyright and patents are different intellectual property rights that cannot be
interchanged with one another. A trademark is any visible sign capable of distinguishing the
labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general
goods (trademark) or services (service mark) of an enterprise and shall include a stamped or
public good. "The sole interest of the United States and the primary object in conferring the
marked container of goods. In relation thereto, a trade name means the name or designation
monopoly," this Court has said, "lie in the general benefits derived by the public from the identifying or distinguishing an enterprise. Meanwhile, the scope of a copyright is confined to
labors of authors." Fox Film Corp. v. Doyal, 286 U.S. 123, 127 . See Kendall v. Winsor, 21 How. literary and artistic works which are original intellectual creations in the literary and artistic
322, 327-328; Grant v. Raymond, 6 Pet. 218, 241-242. When technological change has domain protected from the moment of their creation. Patentable inventions, on the other
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Property of RJ Martinez
II – LLB, University of San Carlos – College of Law based on IPR Syllabus AY2010-2011
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hand, refer to any technical solution of a problem in any field of human activity which is new, where the performance can be perceived without the need for communication within the
involves an inventive step and is industrially applicable. meaning of Subsection 171.3;
PEST MANAGEMENT ASSOCIATION V FERTILIZER AND PESTICIDE AUTHORITY PUBLISHED WORKS - means works, which, with the consent of the authors, are made
Intellectual Property Office available to the public by wire or wireless means in such a way that members of the public
may access these works from a place and time individually chosen by them: Provided, That
There is no encroachment upon the powers of the IPO granted under R.A. No. 8293, availability of such copies has been such, as to satisfy the reasonable requirements of the
otherwise known as the Intellectual Property Code of the Philippines. Section 5 thereof public, having regard to the nature of the work;
enumerates the functions of the IPO. Nowhere in said provision does it state nor can it be
inferred that the law intended the IPO to have the exclusive authority to protect or promote RENTAL - is the transfer of the possession of the original or a copy of a work or a sound
intellectual property rights in the Philippines. On the contrary, paragraph (g) of said Section recording for a limited period of time, for profit-making purposes;
even provides that the IPO shall "[c]oordinate with other government agencies and the Reproduction - is the making of one (1) or more copies of a work or a sound recording in any
private sector efforts to formulate and implement plans and policies to strengthen the manner or form (Sec. 41 (E), P.D. No. 49 a);
protection of intellectual property rights in the country." Clearly, R.A. No. 8293 recognizes
that efforts to fully protect intellectual property rights cannot be undertaken by the IPO WORK OF APPLIED ART - an artistic creation with utilitarian functions or incorporated in a
alone. Other agencies dealing with intellectual property rights are, therefore, not precluded useful article, whether made by hand or produced on an industrial scale
from issuing policies, guidelines and regulations to give protection to such right
172.2. Works are protected by the sole fact of their creation, irrespective of their mode
COPYRIGHT - system of legal protection an author enjoys of the form of or form of expression, as well as of their content, quality and purpose.
expression of ideas.
Work – original intellectual creations in the literary and artistic domain. (Sec. 172.1)
Section 171. Definitions. - For the purpose of this Act, the following terms have the
following meaning: Subsist from the moment of creation irrespective of their mode or form of expression, as
(selected) well as their content, quality and purpose.
o Critical is the point in time that creations is expressed in determinate
AUTHOR - the natural person who has created the work; form
No formality is required that the author be vested with the rights of copyright.
COLLECTIVE WORK - a work which has been created by two (2) or more natural persons at
the initiative and under the direction of another with the understanding that it will be Creation – presentation of new conception or idea in artistic embodiment.
disclosed by the latter under his own name and that contributing natural persons will not be
identified; Two Requirements:
1) ORIGINALITY
COMMUNICATION TO THE PUBLIC - means the making of a work available to the public by - Simply means that the work “owes its origin to the author”
wire or wireless means - The work is an independent creation of the author; must not be copied
- does not mean novelty or ingenuity, neither uniqueness nor creativity
PUBLIC PERFORMANCE - the recitation, playing, dancing, acting or otherwise performing the
work, either directly or by means of any device or process *it is enough that the author be able to prove that something in the work is due him that is
- in the case of an audiovisual work, the showing of its images in sequence and the making of more than merely trivial to be entitled to some form of copyright protection.
the sounds accompanying it audible
- in the case of a sound recording, making the recorded sounds audible at a place or at places 2) EXPRESSION
where persons outside the normal circle of a family and that family's closest social
acquaintances are or can be present, irrespective of whether they are or can be present at Section 175. Unprotected Subject Matter. - Notwithstanding the provisions of
the same place and at the same time, or at different places and/or at different times, and Sections 172 and 173, no protection shall extend, under this law, to any idea,
procedure, system, method or operation, concept, principle, discovery or mere data as
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such, even if they are expressed, explained, illustrated or embodied in a work; news of
the day and other miscellaneous facts having the character of mere items of press Section 173. Derivative Works. - 173.1. The following derivative works shall also be
information; or any official text of a legislative, administrative or legal nature, as well protected by copyright:
as any official translation thereof (n) (a) Dramatizations, translations, adaptations, abridgments, arrangements, and other
alterations of literary or artistic works; and
Copyright protection shall extend to expressions and not to an idea, procedure, system,
(b) Collections of literary, scholarly or artistic works, and compilations of data and
methods or operation, concept, principle, discovery or mere data as such. other materials which are original by reason of the selection or coordination or
arrangement of their contents.
WORKS PROTECTED
173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be
Section 172. Literary and Artistic Works. - 172.1. Literary and artistic works, protected as new works: Provided however, That such new work shall not affect the
hereinafter referred to as "works", are original intellectual creations in the literary and force of any subsisting copyright upon the original works employed or any part
artistic domain protected from the moment of their creation and shall include in thereof, or be construed to imply any right to such use of the original works, or to
particular: secure or extend copyright in such original works.
(a) Books, pamphlets, articles and other writings; Section 174. Published Edition of Work. - In addition to the right to publish granted
(b) Periodicals and newspapers; by the author, his heirs, or assigns, the publisher shall have a copyright consisting
merely of the right of reproduction of the typographical arrangement of the published
(c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or edition of the work. (n)
not reduced in writing or other material form;
(d) Letters; BOOKS, PAMPHLETS, ARTICLES & OTHER WRITINGS
- Does not matter if the books are published or not.
(e) Dramatic or dramatico-musical compositions; choreographic works or - Covered whether they be verbal or in numerical symbols.
entertainment in dumb shows;
(f) Musical compositions, with or without words; Composite Works – explicitly treated in Art. 173.1 as derivative works, are works that are
composed of and from pre-existing or different material.
(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or
e.g.: compilation (including anthologies and encyclopedias) – it would be the selection and
other works of art; models or designs for works of art;
arrangement of the existing material that constitutes the contribution of the editor, calling
(h) Original ornamental designs or models for articles of manufacture, whether or not on his labor and his skill.
registrable as an industrial design, and other works of applied art;
(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to PERIODICALS & NEWSPAPERS
geography, topography, architecture or science;
e.g.: a journal enjoys copyright protection without prejudice to the copyright or its absence
(j) Drawings or plastic works of a scientific or technical character; to the individual entries in the journal.
(k) Photographic works including works produced by a process analogous to
photography; lantern slides; News article, as a literary production, is entitled to copyright. The news itself is not.
(l) Audiovisual works and cinematographic works and works produced by a process
LECTURES, SERMONS, ADDRESSES, DISSERTATIONS PREPARED FOR ORAL DELIVERY, W.O.N.
analogous to cinematography or any process for making audio-visual recordings;
REDUCED IN WRITING OR OTHER MATERIAL FORM
(m) Pictorial illustrations and advertisements;
(n) Computer programs; and “Prepared for oral delivery” must be read in consonance with “whether or not reduced in
writing or other material form.” (consider impromptu speeches)
(o) Other literary, scholarly, scientific and artistic works.
Only the authors of speeches, lectures, sermons, addresses, dissertations have the right to
172.2. Works are protected by the sole fact of their creation, irrespective of their mode make collections of such works.
or form of expression, as well as of their content, quality and purpose.
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LETTERS ORIGINAL ORNAMENTAL DESIGNS OR MODELS FOR ARTICLES OF MANUFACTURE, W.O.N.
REGISTRABLE AS AN INDUSTRIAL DESIGN, AND OTHER WORKS OF APPLIED ART
See Art. 723, NCC
Work of Applied Art – artistic creation with utilitarian functions or incorporated in a useful
Letters will include e-mail because mode or medium is immaterial. article, whether made by hand or produced on an industrial scale.
Chat/SMS What copyright protects will not be the functionality or a device or a product, but the design
- if nothing more than conversation – no protection. thereof.
- If some “work is transmitted” – protected!
Copyright for a Useful Article
DRAMATIC OR DRAMATICO-MUSICAL COMPOSITIONS… Determine w.o.n. the work has an element that is “physically or conceptually identifiable as
separate from the utilitarian aspects of the article.”
Social dance steps and simple routine – excluded from protection. Copyright limited only to those elements which can be identified separately from the useful
A song which is written as part of a dramatic sketch remains within the dramatic-musical article as such.
category despite minimal dialogue and action (not to the next category).
ILLUSTRATIONS, MAPS, SKETCHES AND CHARTS…
MUSICAL COMPOSITIONS, WITH OR WITHOUT WORDS What is copyrightable in a map is the selection, arrangement, and presentation of the
When composition consists of melody and lyrics – both together enjoy copyright. component parts.
A musician who uses poems as lyrics for his own composition, even if he acknowledges that PHOTOGRAPHIC WORKS…
the lyrics originate from her, infringes on the MORAL (acknowledgment of authorship) and The selecting, arranging, and posing of the subject and background, the light and shade
ECONOMIC rights of the poet. arrangements all fulfill the requirement of originality.
Picture of a picture – not copyrightable.
WORKS OF DRAWING, PAINTING, ARCHITECTURE, SCULPTURE…OTHER WORKS OF ART;
MODELS OR DESIGNS FOR WORKS OF ART AUDIOVISUAL WORKS & CINEMATOGRAPHIC WORKS
Live telecasts – not protected under this heading.
Works covered in this category are either two dimensional or three dimensional. Soundtracks of movies – protected by the same copyright that protects the movie itself.
Computer games are copyrightable under this category.
For works to be protected under this category, it is required that they be works of art. It is
not required, however, that they possess particular artistic qualities, i.e., that they pass PICTORIAL ILLUSTRATIONS & ADS
certain aesthetic standards.
Includes:
Architecture pictorial matter and text alike.
Copyright owner has a right to control the erection of any building which reproduces the Greeting cards, picture postcards, prints & labels for merchandise
whole or a substantial part of the work either in its original form, or in any form recognizably
derived from the original. While a label may apply for a trademark, it must contain an appreciable amount of original
Once constructed – there is no more right to control reconstruction or rehabilitation. text or pictorial material to be copyrightable. A label must go beyond a mere trademark and
have some value as a composition.
When you buy a work of art and display you are entitled to display it publicly.
Except: films, slide, television image, or analogous process. COMPUTER PROGRAMS
- Since public display is exactly the source of economic advantage.
- set of instructions expressed in words, codes, schemes, or in any other form,
Reproduction of a work of art – must evidence some form of originality. which is capable when incorporated in a medium that the computer can read,
- Must be transformative of causing the computer to perform or achieve a particular task or result.
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Must be in computer-readable form. c) When author permits cinematographic adaptation, it is still the author who
Instructions alone, the different commands themselves, are ideas or procedures and as such determines further adaptation of the cinematographic work in to other forms.
are not copyrightable. But when fixed in a stable medium copyright hen attaches.
d) Authors of musical works, including lyricists may be divested by natl. legislation of
The input format for a programmed computer is the idea itself and therefore outside the exclusive right to determine sound recordings, provided they are equitably
copyright protection. remunerated.
Copyright protection extends to the instructions in the operating system computer program Works of Government – prior permission of the agency where work is created is required
as well as to the instructions in an application program. when exploited for profit [does not exclude imposition of royalties].
Reproduction by a lawful transferee of a computer program is permitted by law for the Statutes, Regulations – no prior authorization is required.
purpose of making a backup copy or even to adapt the program xxx.
Decisions of Courts, Tribunals – non-copyrightable; may be freely used or quoted.
OTHER LITERARY, SCHOLARLY, SCENTIFIC AND ARTISTIC WORK
Article 721, NCC
Catchall phrase meant to accommodate either present/future works that may not easily fit By intellectual creation, the following persons acquire ownership:
into the other categories. However, the rule of Ejusdem Generis must be observed. 1) The author with regard to his literary, dramatic, philosophical, scientific or other
work
DRAMATIZATIONS, TRANSLATIONS, ADAPTATIONS xxx & OTHER ALTERATIONS OF LITERARY 2) The composer, as to his musical composition
OR ARTISTIC WORKS. 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 discovery or
COLLECTIONS OF LITERARY, SCHOLARLY OR ARTISTIC WORKS AND COMPILATIONS OF DATA invention
& OTHER MATERIALS WHICH ARE ORIGINAL BY REASON OF THE SELECTION, COORDINATION,
OR ARRANGEMENT… COLUMBIA PICTURES V CA
Derivative Work – based upon one or more pre-existing works, such as a translation, musical xxx In fine, the supposed pronunciamento in said case regarding the necessity for the
arrangement, dramatization, fictionalization, motion picture version, sound recording, art presentation of the master tapes of the copyrighted films for the validity of search warrants
reproduction, abridgement, condensation, or any other form in which a work may be recast, should at most be understood to merely serve as a guidepost in determining the existence of
transformed, or adapted. probable cause in copyright infringement cases where there is doubt as to the true nexus
between the master tape and the printed copies. An objective and careful reading of the
What is protected is the original material put in by the “deriver”. [the transformative decision in said case could lead to no other conclusion than that said directive was hardly
element.] intended to be a sweeping and inflexible requirement in all or similar copyright infringement
cases. . .xxx
Use of the underlying work [original work] must be legal.
- No right can vest in an unlawful use of copyrighted material. xxx The essence of intellectual piracy should be essayed in conceptual terms in order to
underscore its gravity by an appropriate understanding thereof. Infringement of a copyright
Compilation v Derivative Work is a trespass on a private domain owned and occupied by the owner of the copyright, and,
The underlying material remains unchanged in the former while in the latter is essentially therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous
transformative. 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
Berne-Paris Convention [provisions relevant to derivative works]. owner of the copyright.[78]
a) Authors have the right to authorize adaptations, arrangements, and other A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in
alterations. such cases, did not know what works he was indirectly copying, or did not know whether or
b) Authors of literary works have the same tights over translations of their works as not he was infringing any copyright; he at least knew that what he was copying was not his,
they have over the original. and he copied at his peril. In determining the question of infringement, the amount of
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matter copied from the copyrighted work is an important consideration. To constitute creation.” It bears stressing that there is no copyright protection for works of applied art or
infringement, it is not necessary that the whole or even a large portion of the work shall have industrial design which have aesthetic or artistic features that cannot be identified separately
[36]
been copied. If so much is taken that the value of the original is sensibly diminished, or the from the utilitarian aspects of the article. Functional components of useful articles, no
labors of the original author are substantially and to an injurious extent appropriated by matter how artistically designed, have generally been denied copyright protection unless
[37]
another, that is sufficient in point of law to constitute a piracy.[79] The question of whether they are separable from the useful article.
there has been an actionable infringement of a literary, musical, or artistic work in motion In this case, the petitioner’s models are not works of applied art, nor artistic works. They are
pictures, radio or television being one of fact,[80] it should properly be determined during utility models, useful articles, albeit with no artistic design or value.
the trial. That is the stage calling for conclusive or preponderating evidence, and not the XXX XXX XXX XXX XXX XXX XXX XXX
summary proceeding for the issuance of a search warrant wherein both lower courts A utility model is a technical solution to a problem in any field of human activity which is new
erroneously require the master tapes.xxx and industrially applicable. It may be, or may relate to, a product, or process, or an
[40]
improvement of any of the aforesaid. Essentially, a utility model refers to an invention in
CHING V SALINAS the mechanical field. This is the reason why its object is sometimes described as a device or
[41]
useful object. A utility model varies from an invention, for which a patent for invention is,
[42]
Related to the provision is Section 171.10, which provides that a “work of applied art” is an likewise, available, on at least three aspects: first, the requisite of “inventive step” in a
artistic creation with utilitarian functions or incorporated in a useful article, whether made patent for invention is not required; second, the maximum term of protection is only seven
[43] [44]
by hand or produced on an industrial scale. years compared to a patent which is twenty years, both reckoned from the date of the
But, as gleaned from the specifications appended to the application for a copyright certificate application; and third, the provisions on utility model dispense with its substantive
[45]
filed by the petitioner, the said Leaf Spring Eye Bushing for Automobile is merely a utility examination and prefer for a less complicated system.
model described as comprising a generally cylindrical body having a co-axial bore that is Being plain automotive spare parts that must conform to the original structural design of the
centrally located and provided with a perpendicular flange on one of its ends and a cylindrical components they seek to replace, the Leaf Spring Eye Bushing and Vehicle Bearing Cushion
metal jacket surrounding the peripheral walls of said body, with the bushing made of plastic are not ornamental. They lack the decorative quality or value that must characterize
[31]
that is either polyvinyl chloride or polypropylene. Likewise, the Vehicle Bearing Cushion is authentic works of applied art. They are not even artistic creations with incidental utilitarian
illustrated as a bearing cushion comprising a generally semi-circular body having a central functions or works incorporated in a useful article. In actuality, the personal properties
hole to secure a conventional bearing and a plurality of ridges provided therefore, with said described in the search warrants are mechanical works, the principal function of which is
[32]
cushion bearing being made of the same plastic materials. Plainly, these are not literary or utility sans any aesthetic embellishment.
artistic works. They are not intellectual creations in the literary and artistic domain, or works Neither are we to regard the Leaf Spring Eye Bushing and Vehicle Bearing Cushion as
of applied art. They are certainly not ornamental designs or one having decorative quality or included in the catch-all phrase “other literary, scholarly, scientific and artistic works” in
value. Section 172.1(a) of R.A. No. 8293. Applying the principle of ejusdem generis which states
It bears stressing that the focus of copyright is the usefulness of the artistic design, and not that “where a statute describes things of a particular class or kind accompanied by words of a
[33]
its marketability. The central inquiry is whether the article is a work of art. Works for generic character, the generic word will usually be limited to things of a similar nature with
applied art include all original pictorials, graphics, and sculptural works that are intended to those particularly enumerated, unless there be something in the context of the state which
[46]
be or have been embodied in useful article regardless of factors such as mass production, would repel such inference,” the Leaf Spring Eye Bushing and Vehicle Bearing Cushion are
[34]
commercial exploitation, and the potential availability of design patent protection. not copyrightable, being not of the same kind and nature as the works enumerated in
As gleaned from the description of the models and their objectives, these articles are useful Section 172 of R.A. No. 8293.
articles which are defined as one having an intrinsic utilitarian function that is not merely to No copyright granted by law can be said to arise in favor of the petitioner despite the
portray the appearance of the article or to convey information. Indeed, while works of issuance of the certificates of copyright registration and the deposit of the Leaf Spring Eye
applied art, original intellectual, literary and artistic works are copyrightable, useful articles Bushing and Vehicle Bearing Cushion.
[35]
and works of industrial design are not. A useful article may be copyrightable only if and
only to the extent that such design incorporates pictorial, graphic, or sculptural features that LAKTAW V PAGLINAWAN
can be identified separately from, and are capable of existing independently of the utilitarian
aspects of the article. Such idea is very erroneous, especially in relation to the Law of Intellectual Property. Danvilla
We agree with the contention of the petitioner (citing Section 171.10 of R.A. No. 8293), that y Collado the author of the Law of January 10, 1879, on Intellectual Property, which was
the author’s intellectual creation, regardless of whether it is a creation with utilitarian discussed and approved in the Spanish Cortes, in his work entitled La Propiedad
functions or incorporated in a useful article produced on an industrial scale, is protected by Intelectual (page 362, 1st ed.) states with respect to dictionaries and in relation to article 7 of
copyright law. However, the law refers to a “work of applied art which is an artistic said law:
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The protection of the law cannot be denied to the author of a dictionary, for although words which is recognized by law, would be reduced, as Manresa says, to an insignificant thing, if he
are not the property of anybody, their definitions, the example that explain their sense, and should have no more right than that of selling his work.
the manner of expressing their different meanings, may constitute a special work. On this
point, the correctional court of the Seine held, on August 16, 1864, that a dictionary WORKS NOT PROTECTED
constitutes property, although some of the words therein are explained by mere definitions
expressed in a few lines and sanctioned by usage, provided that the greater part of the other Section 175. Unprotected Subject Matter. - Notwithstanding the provisions of
words contain new meanings; new meanings which evidently may only belonged to the first Sections 172 and 173, no protection shall extend, under this law, to any idea,
person who published them. procedure, system, method or operation, concept, principle, discovery or mere data as
Therefore, the plaintiff, Pedro Serrano, cannot be denied the legal protection which he seeks, such, even if they are expressed, explained, illustrated or embodied in a work; news of
and which is based on the fact that the dictionary published by him in 1889 is his property — the day and other miscellaneous facts having the character of mere items of press
said property right being recognized and having been granted by article 7, in connection with information; or any official text of a legislative, administrative or legal nature, as well
article 2, of said law — and on the further fact that said work was reproduced by the as any official translation thereof (n)
defendant without his permission.
In addition to what has been said, according to article 428 of the Civil Code, the author of a Section 176. Works of the Government. - 176.1. No copyright shall subsist in any
literary, scientific, or artistic work, has the right to exploit it and dispose thereof at will. In work of the Government of the Philippines. However, prior approval of the
relation to this right, there exists the exclusive right of the author, who is the absolute owner 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,
of his own work, to produce it, according to article 2 of the Law of January 10, 1879, and
impose as a condition the payment of royalties. No prior approval or conditions shall
consequently, nobody may reproduce it, without his permission, not even to annotate or add be required for the use of any purpose of statutes, rules and regulations, and speeches,
something to it, or to improve any edition thereof, according to article 7 of said law. lectures, sermons, addresses, and dissertations, pronounced, read or rendered in
Manresa, in his commentaries on article 429 of the Civil Code (vol. 3, p. 633, 3d ed.) says that courts of justice, before administrative agencies, in deliberative assemblies and in
the concrete statement of the right to literary properties is found in the legal doctrine meetings of public character.
according to which nobody may reproduce another person's work, without the consent of his
owner, or even to annotate or add something to it or to improve any edition thereof. And on 176.2. The author of speeches, lectures, sermons, addresses, and dissertations
page 616 of said volume, Manresa says the following: mentioned in the preceding paragraphs shall have the exclusive right of making a
He who writes a book, or carves a statue, or makes an invention, has the absolute right collection of his works. (n)
to reproduce or sell it, just as the owner of land has the absolute right to sell it or its
fruits. But while the owner of land, by selling it and its fruits, perhaps fully realizes all its 176.3. Notwithstanding the foregoing provisions, the Government is not precluded
economic value, by receiving its benefits and utilities, which are presented, for example, from receiving and holding copyrights transferred to it by assignment, bequest or
by the price, on the other hand the author of a book, statue or invention, does not reap otherwise; nor shall publication or republication by the Government in a public
document of any work in which copyright is subsisting be taken to cause any
all the benefits and advantages of his own property by disposing of it, for the most
abridgment or annulment of the copyright or to authorize any use or appropriation of
important form of realizing the economic advantages of a book, statue or invention,
such work without the consent of the copyright owner.
consists in the right to reproduce it in similar or like copies, everyone of which serves to
give to the person reproducing them all the conditions which the original requires in IDEA-EXPRESSION DICHOTOMY
order to give the author the full enjoyment thereof. If the author of a book, after its - Only the expression enjoys protection, the idea does not.
publication, cannot prevent its reproduction by any person who may want to reproduce
it, then the property right granted him is reduced to a very insignificant thing and the WORK OF THE GOVERNMENT OF THE PHILIPPINES - is a work created by an officer or
effort made in the production of the book is no way rewarded. employee of the Philippine Government or any of its subdivisions and instrumentalities,
Indeed the property right recognized and protected by the Law of January 10, 1879, on including government-owned or controlled corporations as a part of his regularly prescribed
Intellectual Property, would be illusory if, by reason of the fact that said law is no longer in official duties.
force as a consequence of the change of sovereignty in these Islands, the author of a work,
who has the exclusive right to reproduce it, could not prevent another person from so doing
without his consent, and could not enforce this right through the courts of justice in order to JOAQUIN V DRILON
prosecute the violator of this legal provision and the defrauder or usurper of his right, for he
could not obtain the full enjoyment of the book or other work, and his property right thereto, Petitioners assert that the format of Rhoda and Me is a product of ingenuity and skill and is
thus entitled to copyright protection. It is their position that the presentation of a point-by-
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point comparison of the formats of the two shows clearly demonstrates the nexus between copyright." And that is precisely the point. No doubt aware that its alleged original design
the shows and hence establishes the existence of probable cause for copyright would never pass the rigorous examination of a patent application, plaintiff-appellant fought
infringement. Such being the case, they did not have to produce the master tape. to foist a fraudulent monopoly on the public by conveniently resorting to a copyright
To begin with, the format of a show is not copyrightable. Section 2 of P.D. No. registration which merely employs a recordal system without the benefit of an in-depth
[10]
49, otherwise known as the DECREE ON INTELLECTUAL PROPERTY, enumerates the classes examination of novelty.
of work entitled to copyright protection, to wit:
This provision is substantially the same as §172 of the INTELLECTUAL PROPERTY CODE OF MULLER V TRIBOROUGH BRIDGE AUTHORITY (Cited in Pearl & Dean)
[11]
THE PHILIPPINES (R.A. No. 8293). The format or mechanics of a television show is not
included in the list of protected works in §2 of P.D. No. 49. For this reason, the protection In this case, Muller had obtained a copyright over an unpublished drawing entitled "Bridge
afforded by the law cannot be extended to cover them. Approach — the drawing showed a novel bridge approach to unsnarl traffic congestion." The
Copyright, in the strict sense of the term, is purely a statutory right. It is a new or defendant constructed a bridge approach which was alleged to be an infringement of the
independent right granted by the statute, and not simply a pre-existing right regulated by new design illustrated in plaintiff's drawings. In this case it was held that protection of the
the statute. Being a statutory grant, the rights are only such as the statute confers, and may drawing does not extend to the unauthorized duplication of the object drawn because
be obtained and enjoyed only with respect to the subjects and by the persons, and on terms copyright extends only to the description or expression of the object and not to the object
[12]
and conditions specified in the statute. itself. It does not prevent one from using the drawings to construct the object portrayed in
Since . . . copyright in published works is purely a statutory creation, a copyright may be the drawing.
[13]
obtained only for a work falling within the statutory enumeration or description.
Regardless of the historical viewpoint, it is authoritatively settled in the United States that COPYRIGHT OR ECONOMIC RIGHTS; OWNERSHIP
there is no copyright except that which is both created and secured by act of Congress . . .
[14]
. Section 177. Copyright or Economic Rights. - Subject to the provisions of Chapter
P.D. No. 49, §2, in enumerating what are subject to copyright, refers to finished works and VIII, copyright or economic rights shall consist of the exclusive right to carry out,
not to concepts. The copyright does not extend to an idea, procedure, process, system, authorize or prevent the following acts:
method of operation, concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work. xxx xxx xxx 177.1. Reproduction of the work or substantial portion of the work;
What then is the subject matter of petitioners’ copyright? This Court is of the opinion that 177.2. Dramatization, translation, adaptation, abridgment, arrangement or other
petitioner BJPI’s copyright covers audio-visual recordings of each episode of Rhoda and Me, transformation of the work;
as falling within the class of works mentioned in P.D. 49, §2(M), to wit:
177.3. The first public distribution of the original and each copy of the work by sale or
Cinematographic works and works produced by a process analogous to cinematography or other forms of transfer of ownership;
any process for making audio-visual recordings;
The copyright does not extend to the general concept or format of its dating game show. 177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a
Accordingly, by the very nature of the subject of petitioner BJPI’s copyright, the investigating work embodied in a sound recording, a computer program, a compilation of data and
prosecutor should have the opportunity to compare the videotapes of the two shows. 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)
BAKER V SELDEN (Cited in Pearl & Dean)
177.5. Public display of the original or a copy of the work;
In that case, Selden had obtained a copyright protection for a book entitled "Selden's 177.6. Public performance of the work; and
Condensed Ledger or Bookkeeping Simplified" which purported to explain a new system of
bookkeeping. Included as part of the book were blank forms and illustrations consisting of 177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a)
ruled lines and headings, specially designed for use in connection with the system explained Section 178. Rules on Copyright Ownership. - Copyright ownership shall be
in the work. These forms showed the entire operation of a day or a week or a month on a governed by the following rules:
single page, or on two pages following each other. The defendant Baker then produced forms
which were similar to the forms illustrated in Selden's copyrighted books. The Court held that 178.1 Subject to the provisions of this section, in the case of original literary and
artistic works, copyright shall belong to the author of the work;
exclusivity to the actual forms is not extended by a copyright. The reason was that "to grant a
monopoly in the underlying art when no examination of its novelty has ever been made 178.2. In the case of works of joint authorship, the co-authors shall be the original
would be a surprise and a fraud upon the public; that is the province of letters patent, not of owners of the copyright and in the absence of agreement, their rights shall be
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governed by the rules on co-ownership. If, however, a work of joint authorship Renting
consists of parts that can be used separately and the author of each part can be - Limited to cinematographic or audiovisual works
identified, the author of each part shall be the original owner of the copyright in the - To protect the producer
part that he has created; Rental – the transfer of the possession of the original or a copy of a work for a limited period
178.3. In the case of work created by an author during and in the course of his of time, for profit-making purposes.
employment, the copyright shall belong to:
(a) The employee, if the creation of the object of copyright is not a part of his regular Take note: renting is a right of the author/creator irrespective of the ownership of the
duties even if the employee uses the time, facilities and materials of the employer. original or the copy which is the subject of the rental.
(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. Public Performance – to perform in a place open to the public or at any place where a
178.4. In the case of a work commissioned by a person other than an employer of the substantial number of people outside of a normal circle of a family and its social
author and who pays for it and the work is made in pursuance of the commission, the acquaintances is gathered. [when only family – domestic]
person who so commissioned the work shall have ownership of the work, but the *may also involve transmitting the work to the public or a place as described above by means
copyright thereto shall remain with the creator, unless there is a written stipulation to of any device or process.
the contrary;
178.5. In the case of audiovisual work, the copyright shall belong to the producer, the COPYRIGHT OWNERSHIP
author of the scenario, the composer of the music, the film director, and the author of SINGLE CREATOR Creator, his heirs or assigns
the work so adapted. However, subject to contrary or other stipulations among the JOINT CREATOR Belongs to them jointly under the provisions
creators, the producer shall exercise the copyright to an extent required for the of joint ownership in NCC [when parts
exhibition of the work in any manner, except for the right to collect performing license contributed are identifiable and separable,
fees for the performance of musical compositions, with or without words, which are each shall enjoy copyright of his own
incorporated into the work; and contribution]
178.6. In respect of letters, the copyright shall belong to the writer subject to the EMPLYEE’S CREATION Part of Regular Duties – employer
provisions of Article 723 of the Civil Code. (Sec. 6, P.D. No. 49a) Not Part of Regular Duties –employee
COMMISSIONED WORK Ownership of the Work – commissioner
Section 179. Anonymous and Pseudonymous Works. - For purposes of this Act, the
Copyright – the author/creator
publishers shall be deemed to represent the authors of articles and other writings
published without the names of the authors or under pseudonyms, unless the CINEMATOGRAPHIC WORKS Producer
contrary appears, or the pseudonyms or adopted name leaves no doubt as to the PSEUDONYMOUS & ANONYMOUS WORKS Representative of the author [unless author
author's identity, or if the author of the anonymous works discloses his identity. (Sec. is indisputably known]
7, P.D. 49) COLLECTIVE WORKS Individual contributors do not lose their
Art. 723. Letters and other private communications in writing are owned by the copyrights to individual contributions.
person to whom they are addressed and delivered, but they cannot be published or
disseminated without the consent of the writer or his heirs. However, the court may FIL. SOC. V BENJAMIN TAN
authorize their publication or dissemination if the public good or the interest of
The word "perform" as used in the Act has been applied to "One who plays a musical
justice so requires. (n)
composition on a piano, thereby producing in the air sound waves which are heard as music
... and if the instrument he plays on is a piano plus a broadcasting apparatus, so that waves
Right to Reproduce – most elemental of the rights of a copyright owner.
are thrown out, not only upon the air, but upon the other, then also he is performing the
*a work is reproduced when its expression is copied or duplicated.
musical composition." (Buck, et al. v. Duncan, et al.; Same Jewell La Salle Realty Co., 32F. 2d.
Series 367).
Owner of the copyright controls the adaptation of the work.
In relation thereto, it has been held that "The playing of music in dine and dance
establishment which was paid for by the public in purchases of food and drink constituted
Right of First Public Distribution – only first public distribution because the moment the
"performance for profit" within a Copyright Law." (Buck, et al. v. Russon No. 4489 25 F. Supp.
copyright owner parts with the original or a copy thereof, it is the new owner of the original
317). Thus, it has been explained that while it is possible in such establishments for the
or the copy that has control over subsequent sales or transfers (incident of ownership).
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patrons to purchase their food and drinks and at the same time dance to the music of the the condition then Ambassador Neri would be the aggrieved party, and not the appellant. In
orchestra, the music is furnished and used by the orchestra for the purpose of inducing the the second place, if there was such a limited publication or prohibition, the same was not
public to patronize the establishment and pay for the entertainment in the purchase of food shown on the face of the design. When the purpose is a limited publication, but the effect is
and drinks. The defendant conducts his place of business for profit, and it is public; and the general publication, irrevocable rights thereupon become vested in the public, in
music is performed for profit (Ibid, p. 319). In a similar case, the Court ruled that "The consequence of which enforcement of the restriction becomes impossible (Nutt vs. National
Performance in a restaurant or hotel dining room, by persons employed by the proprietor, of Institute, 31 F [2d] 236). It has been held that the effect of offering for sale a dress, for
a copyrighted musical composition, for the entertainment of patrons, without charge for example manufactured in accordance with an original design which is not protected by either
admission to hear it, infringes the exclusive right of the owner of the copyright." (Herbert v. a copyright or a patent, is to divest the owner of his common law rights therein by virtue of
Shanley Co.; John Church Co. v. Hillard Hotel Co., et al., 242 U.S. 590-591). the publication of a 'copy' and thereafter anyone is free to copy the design or the dress
xxx xxx xxx xxx Consequently, it is beyond question that the playing and singing of the combo (Fashion Originators Guild of America v. Federal Trade Commission, 114 F [2d] 80). When
in defendant-appellee's restaurant constituted performance for profit contemplated by the Ambassador Neri distributed 800 copies of the design in controversy, the plaintiff lost control
Copyright Law. (Act 3134 amended by P.D. No. 49, as amended). xxx xxx xxx of his design and the necessary implication was that there had been a general publication,
Nevertheless, appellee cannot be said to have infringed upon the Copyright Law. Appellee's there having been no showing of a clear indication that a limited publication was intended.
allegation that the composers of the contested musical compositions waived their right in The author of a literary composition has a light to the first publication thereof. He has a right
favor of the general public when they allowed their intellectual creations to become property to determine whether it shall be published at all, and if published, when, where, by whom,
of the public domain before applying for the corresponding copyrights for the same (Brief for and in what form. This exclusive right is confined to the first publication. When once
Defendant-Appellee, pp. 14-15) is correct. published, it is dedicated to the public, and the author loses the exclusive right to control
subsequent publication by others, unless the work is placed under the protection of the
SANTOS V McCULLOUGH PRINTING copyright law. (See II Tolentino's Comments on the Civil Code, p. 433, citing Wright v. Eisle 83
N.Y. Supp. 887.)
Upon the basis of the facts stipulated, the lower court rendered judgment on December 1,
1961, the pertinent portions of which are recited below: TRANSFER OR ASSIGNMENT OF COPYRIGHT
As a general proposition, there can be no dispute that the artist acquires ownership of the
product of his art. At the time of its creation, he has the absolute dominion over it. To help Section 180. Rights of Assignee. - 180.1. The copyright may be assigned in whole or
the author protect his rights the copyright law was enacted. in part. Within the scope of the assignment, the assignee is entitled to all the rights
In intellectual creations, a distinction must be made between two classes of property rights; and remedies which the assignor had with respect to the copyright.
the fact of authorship and the right to publish and/or distribute copies of the creation. With 180.2. The copyright is not deemed assigned inter vivos in whole or in part unless
regard to the first, i.e. the fact of authorship, the artist cannot be divested of the same. In there is a written indication of such intention.
other words, he may sell the right to print hundred of his work yet the purchaser of said right 180.3. The submission of a literary, photographic or artistic work to a newspaper,
can never be the author of the creation. magazine or periodical for publication shall constitute only a license to make a single
It is the second right, i.e., the right to publish, republish, multiply and/or distribute copies of publication unless a greater right is expressly granted. If two (2) or more persons
jointly own a copyright or any part thereof, neither of the owners shall be entitled to
the intellectual creation which the state, through the enactment of the copyright law, seeks
grant licenses without the prior written consent of the other owner or owners. (Sec.
to protect. The author or his assigns or heirs may have the work copyrighted and once this is 15, P.D. No. 49a)
legally accomplished any infringement of the copyright will render the infringer liable to the
owner of the copyright. Section 181. Copyright and Material Object. - The copyright is distinct from the
xxx xxx xxx property in the material object subject to it. Consequently, the transfer or assignment
Since the name of the author appears in each of the alleged infringing copies of the of the copyright shall not itself constitute a transfer of the material object. Nor shall a
intellectual creation, the defendant may not be said to have pirated the work nor guilty of transfer or assignment of the sole copy or of one or several copies of the work imply
plagiarism Consequently, the complaint does not state a cause of action against the transfer or assignment of the copyright. (Sec. 16, P.D. No. 49)
defendant.
Section 182. Filing of Assignment or License. - An assignment or exclusive license
xxx xxx xxx We are not also prepared to accept the contention of appellant that the may be filed in duplicate with the National Library upon payment of the prescribed
publication of the design was a limited one, or that there was an understanding that only fee for registration in books and records kept for the purpose. Upon recording, a copy
Ambassador Neri should, have absolute right to use the same. In the first place, if such were of the instrument shall be returned to the sender with a notation of the fact of record.
Notice of the record shall be published in the IPO Gazette. (Sec. 19, P.D. No. 49a)
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whose aim is not profit making, subject to such other limitations as may be provided
Section 183. Designation of Society. - The copyright owners or their heirs may in the Regulations; (n)
designate a society of artists, writers or composers to enforce their economic rights
(j) Public display of the original or a copy of the work not made by means of a film,
and moral rights on their behalf. (Sec. 32, P.D. No. 49a)
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
LIMITATIONS OF COPYRIGHT copy displayed has been sold, given away or otherwise transferred to another person
by the author or his successor in title; and
Section 184. Limitations on Copyright. - 184.1. Notwithstanding the provisions of
Chapter V, the following acts shall not constitute infringement of copyright: (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.
(a) The recitation or performance of a work, once it has been lawfully made accessible
to the public, if done privately and free of charge or if made strictly for a charitable or 184.2. The provisions of this section shall be interpreted in such a way as to allow the
religious institution or society; (Sec. 10(1), P.D. No. 49) work to be used in a manner which does not conflict with the normal exploitation of
the work and does not unreasonably prejudice the right holder's legitimate interests.
(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 Section 185. Fair Use of a Copyrighted Work. - 185.1. The fair use of a copyrighted
newspaper articles and periodicals in the form of press summaries: Provided, That the work for criticism, comment, news reporting, teaching including multiple copies for
source and the name of the author, if appearing on the work, are mentioned; (Sec. 11, classroom use, scholarship, research, and similar purposes is not an infringement of
third par., P.D. No. 49) 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-
(c) The reproduction or communication to the public by mass media of articles on operability of an independently created computer program with other programs may
current political, social, economic, scientific or religious topic, lectures, addresses and also constitute fair use. In determining whether the use made of a work in any
other works of the same nature, which are delivered in public if such use is for particular case is fair use, the factors to be considered shall include:
information purposes and has not been expressly reserved: Provided, That the source (a) The purpose and character of the use, including whether such use is of a
is clearly indicated; (Sec. 11, P.D. No. 49) commercial nature or is for non-profit educational purposes;
(d) The reproduction and communication to the public of literary, scientific or artistic (b) The nature of the copyrighted work;
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) (c) The amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(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 (d) The effect of the use upon the potential market for or value of the copyrighted
teaching purposes and is compatible with fair use: Provided, That the source and of work.
the name of the author, if appearing in the work, are mentioned; 185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if
(f) The recording made in schools, universities, or educational institutions of a work such finding is made upon consideration of all the above factors.
included in a broadcast for the use of such schools, universities or educational Section 186. Work of Architecture. - Copyright in a work of architecture shall
institutions: Provided, That such recording must be deleted within a reasonable include the right to control the erection of any building which reproduces the whole or
period after they were first broadcast: Provided, further, That such recording may not a substantial part of the work either in its original form or in any form recognizably
be made from audiovisual works which are part of the general cinema repertoire of derived from the original: Provided, That the copyright in any such work shall not
feature films except for brief excerpts of the work; include the right to control the reconstruction or rehabilitation in the same style as
(g) The making of ephemeral recordings by a broadcasting organization by means of the original of a building to which that copyright relates. (n)
its own facilities and for use in its own broadcast; Section 187. Reproduction of Published Work. - 187.1. Notwithstanding the
(h) The use made of a work by or under the direction or control of the Government, by provision of Section 177, and subject to the provisions of Subsection 187.2, the private
the National Library or by educational, scientific or professional institutions where reproduction of a published work in a single copy, where the reproduction is made by
such use is in the public interest and is compatible with fair use; a natural person exclusively for research and private study, shall be permitted,
without the authorization of the owner of copyright in the work.
(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 187.2. The permission granted under Subsection 187.1 shall not extend to the
communication, by a club or institution for charitable or educational purpose only, reproduction of:
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(a) A work of architecture in the form of building or other construction; be destroyed in the event that continued possession of the copy of the computer
program ceases to be lawful.
(b) An entire book, or a substantial part thereof, or of a musical work in graphic form
by reprographic means;
189.3. This provision shall be without prejudice to the application of Section 185
(c) A compilation of data and other materials; whenever appropriate. (n)
(d) A computer program except as provided in Section 189; and Section 190. Importation for Personal Purposes. - 190.1. Notwithstanding the
provision of Subsection 177.6, but subject to the limitation under the Subsection
(e) Any work in cases where reproduction would unreasonably conflict with a normal 185.2, the importation of a copy of a work by an individual for his personal purposes
exploitation of the work or would otherwise unreasonably prejudice the legitimate shall be permitted without the authorization of the author of, or other owner of
interests of the author. (n) copyright in, the work under the following circumstances:
Section 188. Reprographic Reproduction by Libraries. - 188.1. Notwithstanding the (a) When copies of the work are not available in the Philippines and:
provisions of Subsection 177.6, any library or archive whose activities are not for (i) Not more than one (1) copy at one time is imported for strictly individual
profit may, without the authorization of the author of copyright owner, make a single use only; or
copy of the work by reprographic reproduction: (ii) The importation is by authority of and for the use of the Philippine
(a) Where the work by reason of its fragile character or rarity cannot be lent to user in Government; or
its original form; (iii) The importation, consisting of not more than three (3) such copies or
likenesses in any one invoice, is not for sale but for the use only of any
(b) Where the works are isolated articles contained in composite works or brief religious, charitable, or educational society or institution duly incorporated
portions of other published works and the reproduction is necessary to supply them, or registered, or is for the encouragement of the fine arts, or for any state
when this is considered expedient, to persons requesting their loan for purposes of school, college, university, or free public library in the Philippines.
research or study instead of lending the volumes or booklets which contain them; and
(b) When such copies form parts of libraries and personal baggage belonging to
(c) Where the making of such a copy is in order to preserve and, if necessary in the persons or families arriving from foreign countries and are not intended for sale:
event that it is lost, destroyed or rendered unusable, replace a copy, or to replace, in Provided, That such copies do not exceed three (3).
the permanent collection of another similar library or archive, a copy which has been
lost, destroyed or rendered unusable and copies are not available with the publisher. 190.2. Copies imported as allowed by this Section may not lawfully be used in any way
188.2. Notwithstanding the above provisions, it shall not be permissible to produce a to violate the rights of owner the copyright or annul or limit the protection secured by
volume of a work published in several volumes or to produce missing tomes or pages this Act, and such unlawful use shall be deemed an infringement and shall be
of magazines or similar works, unless the volume, tome or part is out of stock: punishable as such without prejudice to the proprietor's right of action.
Provided, That every library which, by law, is entitled to receive copies of a printed
work, shall be entitled, when special reasons so require, to reproduce a copy of a 190.3. Subject to the approval of the Secretary of Finance, the Commissioner of
published work which is considered necessary for the collection of the library but Customs is hereby empowered to make rules and regulations for preventing the
which is out of stock. (Sec. 13, P.D. 49a) importation of articles the importation of which is prohibited under this Section and
under treaties and conventions to which the Philippines may be a party and for
Section 189. Reproduction of Computer Program. - 189.1. Notwithstanding the seizing and condemning and disposing of the same in case they are discovered after
provisions of Section 177, the reproduction in one (1) back-up copy or adaptation of a they have been imported. (Sec. 30, P.D. No. 49)
computer program shall be permitted, without the authorization of the author of, or • Substantial reproduction does not require reproduction of the entire copyrighted work,
other owner of copyright in, a computer program, by the lawful owner of that
or even a large portion thereof.[if so much is taken that the value of the original is
computer program: Provided, That the copy or adaptation is necessary for:
(a) The use of the computer program in conjunction with a computer for the purpose, substantially diminished, or the labors of the original and to an injurious extent
and to the extent, for which the computer program has been obtained; and appropriated by another]
(b) Archival purposes, and, for the replacement of the lawfully owned copy of the • It is not the copying per se that is prohibited but the injurious effect to the author of the
computer program in the event that the lawfully obtained copy of the computer work.
program is lost, destroyed or rendered unusable.
Substantial Similarity
189.2. No copy or adaptation mentioned in this Section shall be used for any purpose
other than the ones determined in this Section, and any such copy or adaptation shall
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A point-by-point or detailed comparison of elements is unnecessary. Rather, it is the may be true. However, in this jurisdiction under Sec 184 of Republic Act 8293 it is provided
overall appearance or impression that establishes infringement. Trivial or minor changes that:
do not necessarily negate infringement. Limitations on Copyright. Notwithstanding the provisions of Chapter V, the following shall
not constitute infringement of copyright:
Unintentional Copying xxxx xxxx xxxx
The law does not proved “intent to infringe” as an element. So no matter the supposed (c) The making of quotations from a published work if they are compatible with fair use
lack of reason to infringe, the court may find that there has been copying or appropriation. and only to the extent justified for the purpose, including quotations from newspaper
*intent however may be relevant when dealing with fair use. But even if intent is supposedly articles and periodicals in the form of press summaries: Provided, That the source and
Fair but the actual appropriation is unfair, infringement may still be properly affirmed. the name of the author, if appearing on the work, are mentioned.
A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in
Fair Use – a privilege in others than the owner of the copyright to use the copyrighted such cases, did not know whether or not he was infringing any copyright; he at least knew
[30]
material in a reasonable manner without his consent, notwithstanding the monopoly granted that what he was copying was not his, and he copied at his peril.
to him by law. The next question to resolve is to what extent can copying be injurious to the author of the
book being copied. Is it enough that there are similarities in some sections of the books or
Criteria for Fair Use large segments of the books are the same?
1. Purpose & Character of the Use In the case at bar, there is no question that petitioners presented several pages of the books
2. Nature of the Copyrighted Work CET and DEP that more or less had the same contents. It may be correct that the books
3. Amount & Substantiality of the Portions Used being grammar books may contain materials similar as to some technical contents with other
4. Effect of the Use upon the Potential Market of the Copyrighted Work grammar books, such as the segment about the “Author Card”. However, the numerous
pages that the petitioners presented showing similarity in the style and the manner the
HABANA V ROBLES books were presented and the identical examples can not pass as similarities merely because
of technical consideration.
We believe that respondent Robles’ act of lifting from the book of petitioners substantial The respondents claim that their similarity in style can be attributed to the fact that both of
portions of discussions and examples, and her failure to acknowledge the same in her book is them were exposed to the APCAS syllabus and their respective academic experience,
an infringement of petitioners’ copyrights. teaching approach and methodology are almost identical because they were of the same
When is there a substantial reproduction of a book? It does not necessarily require that the background.
entire copyrighted work, or even a large portion of it, be copied. If so much is taken that the However, we believe that even if petitioners and respondent Robles were of the same
value of the original work is substantially diminished, there is an infringement of copyright background in terms of teaching experience and orientation, it is not an excuse for them to
[27] be identical even in examples contained in their books. The similarities in examples and
and to an injurious extent, the work is appropriated.
In determining the question of infringement, the amount of matter copied from the material contents are so obviously present in this case. How can similar/identical examples
copyrighted work is an important consideration. To constitute infringement, it is not not be considered as a mark of copying?
necessary that the whole or even a large portion of the work shall have been copied. If so Xxx xxx xxx xxx xxx xxx
much is taken that the value of the original is sensibly diminished, or the labors of the Hence, there is a clear case of appropriation of copyrighted work for her benefit that
original author are substantially and to an injurious extent appropriated by another, that is respondent Robles committed. Petitioners’ work as authors is the product of their long and
[28] assiduous research and for another to represent it as her own is injury enough. In
sufficient in point of law to constitute piracy.
The essence of intellectual piracy should be essayed in conceptual terms in order to copyrighting books the purpose is to give protection to the intellectual product of an
underscore its gravity by an appropriate understanding thereof. Infringement of a copyright author. This is precisely what the law on copyright protected, under Section 184.1
is a trespass on a private domain owned and occupied by the owner of the copyright, and, (b). Quotations from a published work if they are compatible with fair use and only to the
therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous extent justified by the purpose, including quotations from newspaper articles and periodicals
term in this connection, consists in the doing by any person, without the consent of the in the form of press summaries are allowed provided that the source and the name of the
owner of the copyright, of anything the sole right to do which is conferred by statute on the author, if appearing on the work, are mentioned.
[29] In the case at bar, the least that respondent Robles could have done was to acknowledge
owner of the copyright.
The respondents’ claim that the copied portions of the book CET are also found in foreign petitioners Habana et. al. as the source of the portions of DEP. The final product of an
books and other grammar books, and that the similarity between her style and that of author’s toil is her book. To allow another to copy the book without appropriate
petitioners can not be avoided since they come from the same background and orientation acknowledgment is injury enough
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Cir.2000) (stating that church that copied religious text for its members “unquestionably
A&M V NAPSTER profit[ed]” from the unauthorized “distribution and use of [the text] without having to
account to the copyright holder”); American Geophysical Union v. Texaco, Inc., 60 F.3d 913,
Plaintiffs must satisfy two requirements to present a prima facie case of direct infringement: 922 (2d Cir.1994) (finding that researchers at for-profit laboratory gained indirect economic
(1) they must show ownership of the allegedly infringed material and (2) they must advantage by photocopying copyrighted scholarly articles). Rather, repeated and
demonstrate that the alleged infringers violate at least one exclusive right granted to exploitative copying of copyrighted works, even if the copies are not offered for sale, may
copyright holders under 17 U.S.C. § constitute a commercial use. Direct economic benefit is not required to demonstrate a
4
commercial use.
xxx xxx xxx xxx xxx xxx xxx
The Nature of the Use 2.
Napster identifies three specific alleged fair uses: sampling, where users make temporary We find no error in the district court's conclusion. The district court determined that
copies of a work before purchasing; space-shifting, where users access a sound recording plaintiffs' “copyrighted musical compositions and sound recordings are creative in nature
through the Napster system that they already own in audio CD format; and permissive which cuts against a finding of fair use under the second factor.” xxx Works that are
distribution of recordings by both new and established artists. 107 (“[T]he fair use of a creative in nature are “closer to the core of intended copyright protection” than are more
copyrighted work is not an infringement of copyright.”). See 17 U.S.C. § Napster fact-based works.
contends that its users do not directly infringe plaintiffs' copyrights because the users are
engaged in fair use of the material. The Portion Used 3.
The district court concluded that Napster users are not fair users. 107, and then applied its xxx We note, however, that under certain circumstances, a court will conclude that a use is
reasoning to the alleged fair uses identified by Napster. The district court first conducted a fair even when the protected work is copied in its entirety. We agree. The district court
general analysis of Napster system uses under § 107. See 17 U.S.C. § These factors are: determined that Napster users engage in “wholesale copying” of copyrighted work because
(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the file transfer necessarily “involves copying the entirety of the copyrighted work.” Worldwide
“amount and substantiality of the portion used” in relation to the work as a whole; and (4) Church, 227 F.3d at 1118 (quoting Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d
the effect of the use upon the potential market for the work or the value of the work. 107, 1148, 1155 (9th Cir.1986)). “While ‘wholesale copying does not preclude fair use per se,’
which guide a court's fair use determination. The district court considered factors listed in copying an entire work ‘militates against a finding of fair use.’ ”
3
17 U.S.C. § We first address the court's overall fair use analysis. We agree.
Effect of Use on Market 4.
Purpose and Character of the Use 1. Harper “Fair use, when properly applied, is limited to copying by others which does not
In other words, this factor asks “whether and to what extent the new work is materially impair the marketability of the work which is copied.” & Campbell, 510 U.S. at
‘transformative.’ ” This factor focuses on whether the new work merely replaces the object 591 n. 21, 114 S.Ct. 1164. The proof required to demonstrate present or future market harm
of the original creation or instead adds a further purpose or different character. varies with the purpose and character of the use: “[T]he importance of this [fourth] factor
xxx Courts have been reluctant to find fair use when an original work is merely retransmitted will vary, not only with the amount of harm, but also with the relative strength of the
in a different medium. This conclusion is supportable. Napster, . The district court first showing on the other factors.” xxx
concluded that downloading MP3 files does not transform the copyrighted work. But if it is for a noncommercial purpose, the likelihood must be demonstrated. If the
The district court's findings are not clearly erroneous. Napster, . Id. The district court intended use is for commercial gain, that likelihood [of market harm] may be presumed. A
determined that Napster users engage in commercial use of the copyrighted materials largely challenge to a noncommercial use of a copyrighted work requires proof either that the
because (1) “a host user sending a file cannot be said to engage in a personal use when particular use is harmful, or that if it should become widespread, it would adversely affect
distributing that file to an anonymous requester” and (2) “Napster users get for free the potential market for the copyrighted work
something they would ordinarily have to buy.” A commercial use weighs against a finding xxx Addressing this factor, the district court concluded that Napster harms the market in “at
of fair use but is not conclusive on the issue. See Campbell, 510 U.S. at 584-85, 114 S.Ct. least” two ways: it reduces audio CD sales among college students and it “raises barriers to
1164. This “purpose and character” element also requires the district court to determine plaintiffs' entry into the market for the digital downloading of music.”
whether the allegedly infringing use is commercial or noncommercial.
Plaintiffs made such a showing before the district court. xxx In the record before us, REGISTRATION AND DEPOSIT WITH NATIONAL LIBRARY AND SUPREME
commercial use is demonstrated by a showing that repeated and exploitative unauthorized COURT LIBRARY
copies of copyrighted works were made to save the expense of purchasing authorized copies.
See Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110, 1118 (9th
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Section 191. Registration and Deposit with National Library and the Supreme 193.3. To object to any distortion, mutilation or other modification of, or other
Court Library. - After the first public dissemination of performance by authority of derogatory action in relation to, his work which would be prejudicial to his honor or
the copyright owner of a work falling under Subsections 172.1, 172.2 and 172.3 of this reputation; and
Act, there shall, for the purpose of completing the records of the National Library and
the Supreme Court Library, within three (3) weeks, be registered and deposited with 193.4. To restrain the use of his name with respect to any work not of his own creation
it, by personal delivery or by registered mail two (2) complete copies or reproductions or in a distorted version of his work. (Sec. 34, P.D. No. 49)
of the work in such form as the directors of said libraries may prescribe. A certificate
of deposit shall be issued for which the prescribed fee shall be collected and the Section 194. Breach of Contract. - An author cannot be compelled to perform his
copyright owner shall be exempt from making additional deposit of the works with contract to create a work or for the publication of his work already in existence.
the National Library and the Supreme Court Library under other laws. If, within three However, he may be held liable for damages for breach of such contract. (Sec. 35, P.D.
(3) weeks after receipt by the copyright owner of a written demand from the directors No. 49)
for such deposit, the required copies or reproductions are not delivered and the fee is
not paid, the copyright owner shall be liable to pay a fine equivalent to the required Section 195. Waiver of Moral Rights. - An author may waive his rights mentioned in
fee per month of delay and to pay to the National Library and the Supreme Court Section 193 by a written instrument, but no such waiver shall be valid where its effects
Library the amount of the retail price of the best edition of the work. Only the above is to permit another:
mentioned classes of work shall be accepted for deposit by the National Library and
the Supreme Court Library. 195.1. To use the name of the author, or the title of his work, or otherwise to make use
of his reputation with respect to any version or adaptation of his work which, because
Section 192. Notice of Copyright. - Each copy of a work published or offered for sale of alterations therein, would substantially tend to injure the literary or artistic
may contain a notice bearing the name of the copyright owner, and the year of its first reputation of another author; or
publication, and, in copies produced after the creator's death, the year of such death.
195.2. To use the name of the author with respect to a work he did not create. (Sec. 36,
Section 227. Ownership of Deposit and Instruments. - All copies deposited and P.D. No. 49)
instruments in writing filed with the National Library and the Supreme Court Library
in accordance with the provisions of this Act shall become the property of the Section 196. Contribution to Collective Work. - When an author contributes to a
Government. collective work, his right to have his contribution attributed to him is deemed waived
unless he expressly reserves it. (Sec. 37, P.D. No. 49)
Section 228. Public Records. - The section or division of the National Library and
the Supreme Court Library charged with receiving copies and instruments deposited Section 197. Editing, Arranging and Adaptation of Work. - In the absence of a
and with keeping records required under this Act and everything in it shall be opened contrary stipulation at the time an author licenses or permits another to use his work,
to public inspection. The Director of the National Library is empowered to issue such the necessary editing, arranging or adaptation of such work, for publication,
safeguards and regulations as may be necessary to implement this Section and other broadcast, use in a motion picture, dramatization, or mechanical or electrical
provisions of this Act. reproduction in accordance with the reasonable and customary standards or
requirements of the medium in which the work is to be used, shall not be deemed to
MORAL RIGHTS contravene the author's rights secured by this chapter. Nor shall complete destruction
of a work unconditionally transferred by the author be deemed to violate such rights.
Section 193. Scope of Moral Rights. - The author of a work shall, independently of (Sec. 38, P.D. No. 49)
the economic rights in Section 177 or the grant of an assignment or license with
respect to such right, have the right: Section 198. Term of Moral Rights. - 198.1. The rights of an author under this
chapter shall last during the lifetime of the author and for fifty (50) years after his
193.1. To require that the authorship of the works be attributed to him, in particular, death and shall not be assignable or subject to license. The person or persons to be
the right that his name, as far as practicable, be indicated in a prominent way on the charged with the posthumous enforcement of these rights shall be named in writing to
copies, and in connection with the public use of his work; be filed with the National Library. In default of such person or persons, such
enforcement shall devolve upon either the author's heirs, and in default of the heirs,
193.2. To make any alterations of his work prior to, or to withhold it from publication; the Director of the National Library.
198.2. For purposes of this Section, "Person" shall mean any individual, partnership,
corporation, association, or society. The Director of the National Library may
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prescribe reasonable fees to be charged for his services in the application of provisions 202.2. "Sound recording" means the fixation of the sounds of a performance or of
of this Section. (Sec. 39, P.D. No. 49) other sounds, or representation of sound, other than in the form of a fixation
incorporated in a cinematographic or other audiovisual work;
Section 199. Enforcement Remedies. - Violation of any of the rights conferred by
202.3. An "audiovisual work or fixation" is a work that consists of a series of related
this Chapter shall entitle those charged with their enforcement to the same rights and
images which impart the impression of motion, with or without accompanying
remedies available to a copyright owner. In addition, damages which may be availed
sounds, susceptible of being made visible and, where accompanied by sounds,
of under the Civil Code may also be recovered. Any damage recovered after the
susceptible of being made audible;
creator's death shall be held in trust for and remitted to his heirs, and in default of the
heirs, shall belong to the government. 202.4. "Fixation" means the embodiment of sounds, or of the representations thereof,
from which they can be perceived, reproduced or communicated through a device;
Section 226. Damages. - No damages may be recovered under this Act after four (4)
years from the time the cause of action arose. (Sec. 58, P.D. No. 49) 202. 5. "Producer of a sound recording" means the person, or the legal entity, who or
which takes the initiative and has the responsibility for the first fixation of the sounds
of a performance or other sounds, or the representation of sounds;
The conviction underlying these moral rights is the identification of the author with his
intellectual creation and therefore the dominion he has over it. 202.6. "Publication of a fixed performance or a sound recording" means the offering
of copies of the fixed performance or the sound recording to the public, with the
193.1 does not apply to contributors of collective works. consent of the right holder: Provided, That copies are offered to the public in
reasonable quality;
Moral rights are not assignable. 202.7. "Broadcasting" means the transmission by wireless means for the public
reception of sounds or of images or of representations thereof; such transmission by
RIGHTS TO PROCEED IN SUBSEQUENT TRANSFERS satellite is also "broadcasting" where the means for decrypting are provided to the
public by the broadcasting organization or with its consent;
Section 200. Sale or Lease of Work. - In every sale or lease of an original work of 202.8. "Broadcasting organization" shall include a natural person or a juridical entity
painting or sculpture or of the original manuscript of a writer or composer, duly authorized to engage in broadcasting; and
subsequent to the first disposition thereof by the author, the author or his heirs shall
have an inalienable right to participate in the gross proceeds of the sale or lease to the 202.9 "Communication to the public of a performance or a sound recording" means
extent of five percent (5%). This right shall exist during the lifetime of the author and the transmission to the public, by any medium, otherwise than by broadcasting, of
for fifty (50) years after his death. (Sec. 31, P.D. No. 49) 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
Section 201. Works Not Covered. - The provisions of this Chapter shall not apply to sounds or representations of sounds fixed in a sound recording audible to the public.
prints, etchings, engravings, works of applied art, or works of similar kind wherein the
author primarily derives gain from the proceeds of reproductions. (Sec. 33, P.D. No. Section 203. Scope of Performers' Rights. - Subject to the provisions of Section 212,
49) performers shall enjoy the following exclusive rights:
Droit de Suite – allows the artist to participate in the proceeds from the resale of the work. 203.1. As regards their performances, the right of authorizing:
(a) The broadcasting and other communication to the public of their performance;
and
RIGHTS OF PERFORMERS, PRODUCERS OF SOUND RECORDINGS AND (b) The fixation of their unfixed performance.
BROADCASTING ORGANIZATIONS
203.2. The right of authorizing the direct or indirect reproduction of their
Section 202. Definitions. - For the purpose of this Act, the following terms shall performances fixed in sound recordings, in any manner or form;
have the following meanings:
203.3. Subject to the provisions of Section 206, the right of authorizing the first public
202.1. "Performers" are actors, singers, musicians, dancers, and other persons who
distribution of the original and copies of their performance fixed in the sound
act, sing, declaim, play in, interpret, or otherwise perform literary and artistic work;
recording through sale or rental or other forms of transfer of ownership;
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203.4. The right of authorizing the commercial rental to the public of the original and 208.3. The right to authorize the commercial rental to the public of the original and
copies of their performances fixed in sound recordings, even after distribution of them copies of their sound recordings, even after distribution by them by or pursuant to
by, or pursuant to the authorization by the performer; and authorization by the producer. (Sec. 46, P.D. No. 49a)
203.5. The right of authorizing the making available to the public of their Section 209. Communication to the Public. - If a sound recording published for
performances fixed in sound recordings, by wire or wireless means, in such a way that commercial purposes, or a reproduction of such sound recording, is used directly for
members of the public may access them from a place and time individually chosen by broadcasting or for other communication to the public, or is publicly performed with
them. (Sec. 42, P.D. No. 49a) the intention of making and enhancing profit, a single equitable remuneration for the
performer or performers, and the producer of the sound recording shall be paid by the
Section 204. Moral Rights of Performers. - 204.1. Independently of a performer's user to both the performers and the producer, who, in the absence of any agreement
economic rights, the performer, shall, as regards his live aural performances or shall share equally. (Sec. 47, P.D. No. 49a)
performances fixed in sound recordings, have the right to claim to be identified as the
performer of his performances, except where the omission is dictated by the manner Section 210. Limitation of Right. - Sections 184 and 185 shall apply mutatis
of the use of the performance, and to object to any distortion, mutilation or other mutandis to the producer of sound recordings. (Sec. 48, P.D. No. 49a)
modification of his performances that would be prejudicial to his reputation.
204.2. The rights granted to a performer in accordance with Subsection 203.1 shall be
maintained and exercised fifty (50) years after his death, by his heirs, and in default of BROADCASTING ORGANIZATIONS
heirs, the government, where protection is claimed. (Sec. 43, P.D. No. 49) Section 211. Scope of Right. - Subject to the provisions of Section 212, broadcasting
organizations shall enjoy the exclusive right to carry out, authorize or prevent any of
Section 205. Limitation on Right. - 205.1. Subject to the provisions of Section 206, the following acts:
once the performer has authorized the broadcasting or fixation of his performance,
the provisions of Sections 203 shall have no further application. 211.1. The rebroadcasting of their broadcasts;
205.2. The provisions of Section 184 and Section 185 shall apply mutatis mutandis to
performers. (n) 211.2. 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
Section 206. Additional Remuneration for Subsequent Communications or broadcasts of the same; and
Broadcasts. - Unless otherwise provided in the contract, in every communication to
the public or broadcast of a performance subsequent to the first communication or 211.3. The use of such records for fresh transmissions or for fresh recording. (Sec. 52,
broadcast thereof by the broadcasting organization, the performer shall be entitled to P.D. No. 49)
an additional remuneration equivalent to at least five percent (5%) of the original
compensation he or she received for the first communication or broadcast. (n) Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply
where the acts referred to in those Sections are related to:
Section 207. Contract Terms. - Nothing in this Chapter shall be construed to
deprive performers of the right to agree by contracts on terms and conditions more 212.1. The use by a natural person exclusively for his own personal purposes;
favorable for them in respect of any use of their performance. (n)
212.2. Using short excerpts for reporting current events;
PRODUCERS OF SOUND RECORDINGS
Section 208. Scope of Right. - Subject to the provisions of Section 212, producers of 212.3. Use solely for the purpose of teaching or for scientific research; and
sound recordings shall enjoy the following exclusive rights:
212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec. 44,
208.1. The right to authorize the direct or indirect reproduction of their sound P.D. No. 49a)
recordings, in any manner or form; the placing of these reproductions in the market
and the right of rental or lending; TERM OF PROTECTION IN GENERAL
208.2. The right to authorize the first public distribution of the original and copies of Section 213. Term of Protection. - 213.1. Subject to the provisions of Subsections
their sound recordings through sale or rental or other forms of transferring 213.2 to 213.5, the copyright in works under Sections 172 and 173 shall be protected
ownership; and during the life of the author and for fifty (50) years after his death. This rule also
applies to posthumous works. (Sec. 21, first sentence, P.D. No. 49a)
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channels of commerce of imported goods that involve an infringement, immediately
213.2. In case of works of joint authorship, the economic rights shall be protected after customs clearance of such goods.
during the life of the last surviving author and for fifty (50) years after his death. (Sec.
(b) Pay to the copyright proprietor or his assigns or heirs such actual damages,
21, second sentence, P.D. No. 49)
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
213.3. In case of anonymous or pseudonymous works, the copyright shall be protected
infringement, and in proving profits the plaintiff shall be required to prove sales only
for fifty (50) years from the date on which the work was first lawfully published:
and the defendant shall be required to prove every element of cost which he claims,
Provided, That where, before the expiration of the said period, the author's identity is
or, in lieu of actual damages and profits, such damages which to the court shall appear
revealed or is no longer in doubt, the provisions of Subsections 213.1. and 213.2 shall
to be just and shall not be regarded as penalty.
apply, as the case may be: Provided, further, That such works if not published before
shall be protected for fifty (50) years counted from the making of the work. (Sec. 23, (c) Deliver under oath, for impounding during the pendency of the action, upon such
P.D. No. 49) 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
213.4. In case of works of applied art the protection shall be for a period of twenty-five implements for making them.
(25) years from the date of making. (Sec. 24(B), P.D. No. 49a)
(d) Deliver under oath for destruction without any compensation all infringing copies
213.5. In case of photographic works, the protection shall be for fifty (50) years from or devices, as well as all plates, molds, or other means for making such infringing
publication of the work and, if unpublished, fifty (50) years from the making. (Sec. copies as the court may order.
24(C), P.D. 49a) (e) 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
213.6. In case of audio-visual works including those produced by process analogous to infringing copies of the work even in the event of acquittal in a criminal case.
photography or any process for making audio-visual recordings, the term shall be fifty
(50) years from date of publication and, if unpublished, from the date of making. (Sec. 216.2. In an infringement action, the court shall also have the power to order the
24(C), P.D. No. 49a) seizure and impounding of any article which may serve as evidence in the court
proceedings. (Sec. 28, P.D. No. 49a)
Section 214. Calculation of Term. - The term of protection subsequent to the death
of the author provided in the preceding Section shall run from the date of his death or Section 217. Criminal Penalties. - 217.1. Any person infringing any right secured by
of publication, but such terms shall always be deemed to begin on the first day of provisions of Part IV of this Act or aiding or abetting such infringement shall be guilty
January of the year following the event which gave rise to them. (Sec. 25, P.D. No. 49) of a crime punishable by:
Section 215. Term of Protection for Performers, Producers and Broadcasting (a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty
Organizations. - 215.1. The rights granted to performers and producers of sound thousand pesos (P50,000) to One hundred fifty thousand pesos (P150,000) for the
recordings under this law shall expire: first offense.
(a) For performances not incorporated in recordings, fifty (50) years from the end of (b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging
the year in which the performance took place; and from One hundred fifty thousand pesos (P150,000) to Five hundred thousand pesos
(b) For sound or image and sound recordings and for performances incorporated (P500,000) for the second offense.
therein, fifty (50) years from the end of the year in which the recording took place.
(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging
215.2. In case of broadcasts, the term shall be twenty (20) years from the date the from five hundred thousand pesos (P500,000) to One million five hundred thousand
broadcast took place. The extended term shall be applied only to old works with pesos (P1,500,000) for the third and
subsisting protection under the prior law. (Sec. 55, P.D. No. 49a) subsequent offenses.
(d) In all cases, subsidiary imprisonment in cases of insolvency.
INFRINGEMENT
217.2. In determining the number of years of imprisonment and the amount of fine,
Section 216. Remedies for Infringement. - 216.1. Any person infringing a right the court shall consider the value of the infringing materials that the defendant has
protected under this law shall be liable: produced or manufactured and the damage that the copyright owner has suffered by
(a) To an injunction restraining such infringement. The court may also order the reason of the infringement.
defendant to desist from an infringement, among others, to prevent the entry into the
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217.3. Any person who at the time when copyright subsists in a work has in his 219.2. The person or body corporate whose name appears on a audio-visual work in
possession an article which he knows, or ought to know, to be an infringing copy of the usual manner shall, in the absence of proof to the contrary, be presumed to be the
the work for the purpose of: maker of said work. (n)
(a) Selling, letting for hire, or by way of trade offering or exposing for sale, or hire, the
Section 220. International Registration of Works. - A statement concerning a work,
article;
recorded in an international register in accordance with an international treaty to
which the Philippines is or may become a party, shall be construed as true until the
(b) Distributing the article for purpose of trade, or for any other purpose to an extent
contrary is proved except:
that will prejudice the rights of the copyright owner in the work; or
(c) Trade exhibit of the article in public, shall be guilty of an offense and shall be liable 220.1. Where the statement cannot be valid under this Act or any other law
on conviction to imprisonment and fine as above mentioned. (Sec. 29, P.D. No. 49a) concerning intellectual property.
Section 218. Affidavit Evidence. - 218.1. In an action under this Chapter, an affidavit 220.2. Where the statement is contradicted by another statement recorded in the
made before a notary public by or on behalf of the owner of the copyright in any work international register. (n)
or other subject matter and stating that:
(a) At the time specified therein, copyright subsisted in the work or other subject REMEDIES AVAILABLE
matter; UNDER SECTION 216 – by the Court
(b) He or the person named therein is the owner of the copyright; and
Injunction Restrain an infringement
Damages & Indemnity Actual damages including legal costs.
(c) The copy of the work or other subject matter annexed thereto is a true copy
Also moral and exemplary damages.
thereof, shall be admitted in evidence in any proceedings for an offense under this
Chapter and shall be prima facie proof of the matters therein stated until the contrary Impounding, Confiscation, Destruction Deliver all the effects used in
is proved, and the court before which such affidavit is produced shall assume that the infringement/
affidavit was made by or on behalf of the owner of the copyright. UNDER SECTION 10 – by the Bureau of Legal Affairs of IPO [not less than P200k]
Administrative Action Admin complaint in BLA
218.2. In an action under this Chapter:
Cease & Desist Order, Forfeiture or Seizure of offending products
(a) Copyright shall be presumed to subsist in the work or other subject matter to Paraphernalia Used
which the action relates if the defendant does not put in issue the question whether
copyright subsists in the work or other subject matter; and Administrative Fines P5k – P150k
CRIMINAL PROSECUTION
(b) Where the subsistence of the copyright is established, the plaintiff shall be
presumed to be the owner of the copyright if he claims to be the owner of the
copyright and the defendant does not put in issue the question of his ownership. MICROSOFT V HWANG
(c) Where the defendant, without good faith, puts in issue the questions of whether [39]
Section 5 of PD 49 (“Section 5”) enumerates the rights vested exclusively on the copyright
copyright subsists in a work or other subject matter to which the action relates, or the
owner. Contrary to the DOJ’s ruling, the gravamen of copyright infringement is not merely
ownership of copyright in such work or subject matter, thereby occasioning
unnecessary costs or delay in the proceedings, the court may direct that any costs to the unauthorized “manufacturing” of intellectual works but rather the unauthorized
the defendant in respect of the action shall not be allowed by him and that any costs performance of any of the acts covered by Section 5. Hence, any person who performs any of
occasioned by the defendant to other parties shall be paid by him to such other the acts under Section 5 without obtaining the copyright owner’s prior consent renders
[40] [41]
parties. (n) himself civilly and criminally liable for copyright infringement. We held in Columbia
[42]
Pictures, Inc. v. Court of Appeals:
Section 219. Presumption of Authorship. - 219.1. The natural person whose name is Infringement of a copyright is a trespass on a private domain owned and occupied by the
indicated on a work in the usual manner as the author shall, in the absence of proof to owner of the copyright, and, therefore, protected by law, and infringement of copyright, or
the contrary, be presumed to be the author of the work. This provision shall be piracy, which is a synonymous term in this connection, consists in the doing by any person,
applicable even if the name is a pseudonym, where the pseudonym leaves no doubt as without the consent of the owner of the copyright, of anything the sole right to do which is
to the identity of the author. conferred by statute on the owner of the copyright. (Emphasis supplied)
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Significantly, under Section 5(A), a copyright owner is vested with the exclusive right to copying or reproduction of Microsoft software and their manuals, or which contain, display
“copy, distribute, multiply, [and] sell” his intellectual works. or otherwise exhibit, without the authority of MICROSOFT CORPORATION, any and all
[43]
On the other hand, the elements of unfair competition under Article 189(1) of the Revised Microsoft trademarks and copyrights; and
Penal Code are: f) Documents relating to any passwords or protocols in order to access all computer hard
(a) That the offender gives his goods the general appearance of the goods of another drives, data bases and other information storage devices containing unauthorized Microsoft
[37]
manufacturer or dealer; software. (Emphasis supplied)
(b) That the general appearance is shown in the (1) goods themselves, or in the (2)
wrapping of their packages, or in the (3) device or words therein, or in (4) any other It is only required that a search warrant be specific as far as the circumstances will ordinarily
[38]
feature of their appearance[;] allow. The description of the property to be seized need not be technically accurate or
(c) That the offender offers to sell or sells those goods or gives other persons a chance or precise. The nature of the description should vary according to whether the identity of the
[39]
opportunity to do the same with a like purpose[; and] property or its character is a matter of concern. Measured against this standard we find
[44]
(d) That there is actual intent to deceive the public or defraud a competitor. that paragraph (e) is not a general warrant. The articles to be seized were not only
The element of intent to deceive may be inferred from the similarity of the goods or their sufficiently identified physically, they were also specifically identified by stating their relation
[45]
appearance. to the offense charged. Paragraph (e) specifically refers to those articles used or intended for
use in the illegal and unauthorized copying of petitioners’ software. This language meets the
[40]
MICROSOFT V MAXICORP test of specificity.
The cases cited by the Court of Appeals are inapplicable. In those cases, the Court found the
Maxicorp argues that the warrants issued against it are too broad in scope and lack the warrants too broad because of particular circumstances, not because of the mere use of the
specificity required with respect to the objects to be seized. After examining the wording of phrase “used or intended to be used.” In Columbia Pictures, Inc. v. Flores, the warrants
the warrants issued, the Court of Appeals ruled in favor of Maxicorp and reversed the RTC’s ordering the seizure of “television sets, video cassette recorders, rewinders and tape
Order thus: cleaners x x x” were found too broad since the defendant there was a licensed distributor of
[41]
Under the foregoing language, almost any item in the petitioner’s store can be seized on the video tapes. The mere presence of counterfeit video tapes in the defendant’s store does
ground that it is “used or intended to be used” in the illegal or unauthorized copying or not mean that the machines were used to produce the counterfeit tapes. The situation in
[35]
reproduction of the private respondents’ software and their manuals. this case is different. Maxicorp is not a licensed distributor of petitioners. In Bache & Co.
The Court of Appeals based its reversal on its perceived infirmity of paragraph (e) of the (Phil.), Inc., et al. v. Judge Ruiz, et al., the Court voided the warrants because they
search warrants the RTC issued. The appellate court found that similarly worded warrants, all authorized the seizure of records pertaining to “all business transactions” of the
[42] th
of which noticeably employ the phrase “used or intended to be used,” were previously held defendant. And in 20 Century Fox Film Corp. v. Court of Appeals, the Court quashed the
[36]
void by this Court. The disputed text of the search warrants in this case states: warrant because it merely gave a list of articles to be seized, aggravated by the fact that such
a) Complete or partially complete reproductions or copies of Microsoft software bearing appliances are “generally connected with the legitimate business of renting out betamax
[43]
the Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION contained tapes.”
in CD-ROMs, diskettes and hard disks; However, we find paragraph (c) of the search warrants lacking in particularity. Paragraph (c)
b) Complete or partially complete reproductions or copies of Microsoft instruction states:
manuals and/or literature bearing the Microsoft copyrights and/or trademarks owned by c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles,
MICROSOFT CORPORATION; advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by
c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles, MICROSOFT CORPORATION;
advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by The scope of this description is all-embracing since it covers property used for personal or
MICROSOFT CORPORATION; other purposes not related to copyright infringement or unfair competition. Moreover, the
d) Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and description covers property that Maxicorp may have bought legitimately from Microsoft or
all other books of accounts and documents used in the recording of the reproduction and/or its licensed distributors. Paragraph (c) simply calls for the seizure of all items bearing the
assembly, distribution and sales, and other transactions in connection with fake or Microsoft logo, whether legitimately possessed or not. Neither does it limit the seizure to
counterfeit products bearing the Microsoft copyrights and/or trademarks owned by products used in copyright infringement or unfair competition.
MICROSOFT CORPORATION; Still, no provision of law exists which requires that a warrant, partially defective in specifying
e) Computer hardware, including central processing units including hard disks, CD-ROM some items sought to be seized yet particular with respect to the other items, should be
drives, keyboards, monitor screens and diskettes, photocopying machines and other nullified as a whole. A partially defective warrant remains valid as to the items specifically
[44]
equipment or paraphernalia used or intended to be used in the illegal and unauthorized described in the warrant. A search warrant is severable, the items not sufficiently
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[45]
described may be cut off without destroying the whole warrant. The exclusionary rule It is noted that Chan revoked and terminated said contracts, along with others, on July 30,
found in Section 3(2) of Article III of the Constitution renders inadmissible in any proceeding 1997, or almost two years before petitioner Bayanihan wrote its sort of complaint/demand
all evidence obtained through unreasonable searches and seizure. Thus, all items seized letter dated December 7, 1999 regarding the recent "use/recording of the songs ‘Can We Just
under paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, should Stop and Talk A While' and ‘Afraid for Love to Fade,'" or almost three (3) years before
be returned to Maxicorp. petitioner filed its complaint on August 8, 2000, therein praying, inter alia, for injunctive
relief. By then, it would appear that petitioner had no more right that is protectable by
BAYANIHAN V BMG injunction.
xxx We have constantly reminded courts that there is no power, the exercise of which is POINTS OF ATTACHMENT OF RIGHTS
more delicate and requires greater caution, deliberation and sound discretion, or which is
more dangerous in a doubtful case, than the issuance of an injunction. A court should, as Section 221. Points of Attachment for Works under Sections 172 and 173. - 221.1.
much as possible, avoid issuing the writ which would effectively dispose of the main case The protection afforded by this Act to copyrightable works under Sections 172 and 173
without trial. shall apply to:
Here, nothing is more evident than the trial court's abiding awareness of the extremely (a) Works of authors who are nationals of, or have their habitual residence in, the
difficult balancing act it had to perform in dealing with petitioner's prayer for injunctive Philippines;
reliefs. Conscious, as evidently it is, of the fact that there is manifest abuse of discretion in
the issuance of an injunctive writ if the following requisites provided for by law are not (b) Audio-visual works the producer of which has his headquarters or habitual
present: (1) there must be a right in esse or the existence of a right to be protected; and (2) residence in the Philippines;
[5]
the act against which the injunction is to be directed is a violation of such right, the trial (c) Works of architecture erected in the Philippines or other artistic works
court threaded the correct path in denying petitioner's prayer therefor. For, such a writ incorporated in a building or other structure located in the Philippines;
[6]
should only be granted if a party is clearly entitled thereto.
(d) Works first published in the Philippines; and
Of course, while a clear showing of the right to an injunctive writ is necessary albeit its
[7]
existence need not be conclusively established, as the evidence required therefor need not (e) Works first published in another country but also published in the Philippines
be conclusive or complete, still, for an applicant, like petitioner Bayanihan, to be entitled to within thirty days, irrespective of the nationality or residence of the authors.
the writ, he is required to show that he has the ostensible right to the final relief prayed for
[8]
in its complaint. Here, the trial court did not find ample justifications for the issuance of the 221.2. The provisions of this Act shall also apply to works that are to be protected by
writ prayed for by petitioner. virtue of and in accordance with any international convention or other international
Unquestionably, respondent Chan, being undeniably the composer and author of the lyrics of agreement to which the Philippines is a party. (n)
the two (2) songs, is protected by the mere fact alone that he is the creator thereof,
Section 222. Points of Attachment for Performers. - The provisions of this Act on
conformably with Republic Act No. 8293, otherwise known as the Intellectual Property Code,
the protection of performers shall apply to:
Section 172.2 of which reads:
172.2. Works are protected by the sole fact of their creation, irrespective of their mode or 222.1. Performers who are nationals of the Philippines;
form of expression, as well as of their content, quality and purpose.
An examination of petitioner's verified complaint in light of the two (2) contracts sued upon 222.2. Performers who are not nationals of the Philippines but whose performances:
and the evidence it adduced during the hearing on the application for preliminary injunction, (a) Take place in the Philippines; or
yields not the existence of the requisite right protectable by the provisional relief but rather (b) Are incorporated in sound recordings that are protected under this Act; or
a lingering doubt on whether there is or there is no such right. xxx xxx xxx xxx (c) Which has not been fixed in sound recording but are carried by broadcast
xxx It would thus appear that the two (2) contracts expired on October 1, 1975 and March qualifying for protection under this Act. (n)
11, 1978, respectively, there being neither an allegation, much less proof, that petitioner
Bayanihan ever made use of the compositions within the two-year period agreed upon by Section 223. Points of Attachment for Sound Recordings. - The provisions of this
the parties. Act on the protection of sound recordings shall apply to:
Anent the copyrights obtained by petitioner on the basis of the selfsame two (2) contracts,
223.1. Sound recordings the producers of which are nationals of the Philippines; and
suffice it to say 'that such purported copyrights are not presumed to subsist in accordance
[10]
with Section 218[a] and [b], of the Intellectual Property Code, because respondent Chan 223.2. Sound recordings that were first published in the Philippines. (n)
had put in issue the existence thereof.
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Section 224. Points of Attachment for Broadcasts. - 224.1. The provisions of this
Act on the protection of broadcasts shall apply to:
(a) Broadcasts of broadcasting organizations the headquarters of which are situated in
the Philippines; and
(b) Broadcasts transmitted from transmitters situated in the Philippines.
224.2. The provisions of this Act shall also apply to performers who, and to producers
of sound recordings and broadcasting organizations which, are to be protected by
virtue of and in accordance with any international convention or other international
agreement to which the Philippines is a party. (n)
xxx xxx xxx END xxx xxx xxx
“Denny Crane…”
- Denny Crane
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