THE LAW ON COPYRIGHT

The Applicable Laws:

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

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

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

Basic Principles
c. Protection is on the EXPRESSION of the idea not the idea itself. Joaquin v. Drilon, 302 SCRA 225 The general concept or format of the dating game show is not copyrightable. Only the audio visual recording of each episode of Rhoda & Me are covered by copyright Copyright does not prohibit use of the information taught and the forms included as part of the work

Baker v. Selden (101 US 841) -

Pearl & Dean Inc. v. Shoemart et. Al G.R. No. 148222, August 15, 2003

WORKS ENTITLED TO PROTECTION

a. Original works adaptations of classics

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

WORKS ENTITLED TO PROTECTION

a. Original works musical works with or without words in case of musical composition with words, protective elements will consist not only of the combination words & music, but also the music alone & the words alone many popular songs bear some similarity to prior songs it has been held, although suggestive of old works, it will still become original if the overall impression is of a new work. originality in musical works must be found in either its rhythm, harmony or melody. If its overall impression is of a new work it is copyrightable.

WORKS ENTITLED TO PROTECTION (CONTINUED)

a. Original works works of art; architectural plans See: Sec. 186: a work of architecture shall include the right to control the erection of the building which reproduces the whole or a substantial part of the work. works of artistic craftsmanship - original ornamental designs, models of articles of manufacture, includes three dimensional works: dolls, toys, jewelry, figures unless nothing original is added. - work of applied art: an artistic creation with utilitarian functions or incorporated in a useful article. e.g. lamp bases using statuettes of human figures. MAZER v. STEIN 347 U.S. 201 (1954)

WORKS ENTITLED TO PROTECTION (CONTINUED)

a. Original works Illustrations, maps, plans, sketches, charts drawings or plastic works of a scientific or technical character photographs Burrow-Giles Litographic Co. v. Sarony - Photograph of Oscar Wilde exhibited originality hence copyrightable. audio visual works - Los Angeles New Service v. Frank Tullo: recording of news worthy events in video tapes pictorial illustration - the reproduction of a picture such as by lithography, photo engraving or photography.

WORKS ENTITLED TO PROTECTION (CONTINUED)

Computer programs. Copyrightable expression in a computer program can include all aspects that are not necessary to the basic purpose/function of the program, but extends to copying of the structure, sequence and organization of the program and the look and feel of the user interface. Thus, the methods of operation or computer menu command hierarchy of Lotus 1-2-3 a spreadsheet program is not copyrightable. Other literary scholarly artistic works NOT COPYRIGHTABLE because of lack of ORIGINALITY Short expressions: e.g. You Got the Right One, uh-Hun (Takeall v. Pepsico)

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

Note: that its affectivity is only coterminous with the original work.

WORKS ENTITLED TO PROTECTION (CONTINUED)

b. Derivative works Dramatization, translation, adaptation, abridgements etc. - must be independently copyrightable. Woods et. al v. Bourne Co. Collection of literary, scholarly or artistic works and compilations of data which are original by reason of their selection or coordination or arrangement.

Notes: Compilation of Data Facts, as such, are not copyrightable but a compilation of facts may be copyrightable if the author made choices as to which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. Example: copyrightable use can valuation Information v. Mac Lean Hunter Recipes Feist Publication v. Rural Tele Services Co. - as a rule telephone directories are not

Works not protected

a. Ideas, procedure, system, concept, principles etc.; news of the day or mere items of press information; official text of legislative, administrative or legal nature; Joaquin v. Drilon Contry Kids v. Sheen: The size, shape and medium of plaintiffs paper dolls are not protectable vis--vis defendants wooden dolls. Other Examples: the theme plot and stock characters and settings in literary works; individual colors and shapes in visual work

b. Works of the government.

Copyright or economic rights (Sec. 177)

Copyright or economic rights shall consist of the exclusive right to carry out authorize or prevent the following acts: Reproduction of the work or substantial portion of the work; Reproduction means the making of one (1) or more copies of a work or a sound recording in any manner or form.

See: MAI Systems v. Peak Computer Inc. - copying occurs when a computer program is transferred from a permanent storage device to a computer RAM.

Copyright or economic rights (Sec. 177) (continued)

Dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work;

The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; Playboy Enterprises Inc. v. George Frena et. al (i) When is the distribution right exhausted? - after the first sale of a particular copy (ii) Other economic rights are not affected

Copyright or economic rights (Sec. 177) (continued)

Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)

Copyright or economic rights (Sec. 177) (continued)

Public display of the original or a copy of the work; - Playboy Enterprises v. George Frena et. al Public performance of the work; (i) (ii) (iii) non-audiovisual work audiovisual work sound recording - listening to radio does not constitute violation of the performers right. 20th Century v. Aiken

Copyright or economic rights (Sec. 177) (continued)

Other communication to the public of the work. - Communication to the public means: making available of the work to the public by wire or wireless in such a way that members of the public may access these works from a place or time individually chosen by them. a CATV operators that erects an antenna to pick up telecasts from area A then transmitting them by cable to area B & C for a fee is essentially reproducing the copyrighted to wider audience hence it is covered by the authors other communication to the public right. Filscap v. Philippine Home Cable Court of Appeals, CA GR No. 81083, Feb. 27, 2009 Note: The law impliedly grants to the copyright owner the right of importation therefore, parallel importation is not allowed.

Copyright ownership
a. Original works b. Works of joint authorship c. Works by employees d. Commissioned works Ownership of the work belongs to the person who commissioned the work, but the Copyright to it belongs to the creator.

e. Audiovisual works f. Letters g. Anonymous or pseudonymous works

Assignment of Copyright
Sec. 181. Copyright is distinct from the material object; transfer of one does not include the other.

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

Limitations on Copyright (continued)

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

Limitations on Copyright (continued)

e. The inclusion of a work by way of illustration in a publication, broadcast, other communication for teaching purposes, provided source is named f. Recording in educational institutions of work included in a broadcast but must be deleted after its first broadcast and limited to film experts only

Limitations on Copyright (continuation)

g. The making of ephemeral (transitory or temporary) recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast h. Use by government, National Library, educational institutional institutions for public interest NTC circular mandating all cable television & broadcasting organizations must-carry authorized broadcast organizations signals constitutes a valid limitations under Sec. 184 (1) h (ABS-CBN Broadcasting Corp. v. Philippine MultiMedia System, Inc. et. Al, G.R. No. 175769-70, January 9, 2009

Limitations on Copyright (continuation)

i.

Public display not by means of a film, slide, television image or on screen of works that have been published, sold or transferred to others

j. Use in judicial proceedings or for the giving of professional advice by lawyers

Note : The foregoing shall be interpreted to allow use of a work in a way which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holders legitimate interest

Limitations
-

The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter operability of an independently created program with other programs may also constitute fair use; the factors to be considered shall include:

a. The purpose and character of the use, including whether such use is of a commercial nature or is for a non-profit educational purpose; b. The nature of the copyrighted work;

Limitations (continued)
c.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

d. The effect of the use upon the potential market for or value of the copyrighted work. See: Sony Corp. v. Universal City Studios Inc. 464 U.S. 417, Supreme Court 984 MGM v. Grokster 545 U.S. Supreme Court, June 27, 2005

Other limitations to Copyright

a. Work of architecture Includes the right to control the erection of any building which reproduces the whole or substantial part of the work b. Reproduction of published work The reproduction of a single copy exclusively for private use is allowed. This shall not extend to the reproduction of: a work of architecture; an entire book or substantial part thereof; a musical work in graphic form; a compilation of data; a computer program except for only one back up copy.

c. Importation for personal purpose

Term of Copyright

Life of the author + fifty years after death

Moral Rights

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

Droite de Suite
In every sale subsequent to the first sale or lease of an original work of painting or sculpture or manuscript of writer or composition of the author or his heirs is untilled to 5% of the proceeds of the sale or lease

Term of Moral rights and Driote de suite

Same as copyright

NEIGHBORING RIGHTS
These are rights of:
Performers in their performances Producers of Sound Recordings in their sound recordings Broadcasting Organizations in their radio & television programs

NEIGHBORING RIGHTS
Definitions
a. performers b. sound Recording means the fixation of the sounds of a performance or of other sounds, or representation of sound, other than in the form of fixation incorporated in a cinematographic or other audiovisual work;

Definitions (continued)
c. audiovisual work or fixation is a work that consists of a series of related images which impart the impression of motion, with or without accompanying sounds, susceptible of being made audible; d. fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;

Definitions (continued)
e. producer of sound recording Responsible for the first fixation of sounds of a performance or other sounds or representation of sounds; f. broadcasting means the transmission by wire-less means for the public reception of sounds or of images or of representations thereof; such transmission by satellite is also broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent;

Definitions (continued)
g. Communication to the public of a performance or a sound recording means the transmission to the public, by any medium, otherwise than by broadcasting, of sounds of a performance or the representations of sounds fixed in a sound recording. For purposes of Section 209, communication to the public includes making the sounds or representations of sounds fixed in a sound recording audible to the public.

Economic Rights of Performers

Performers shall enjoy the following exclusive rights: a. As regards their (live) performances, the right of authorizing: i. The broadcasting and other communication to the public of their performance (note: this refers to their live performance). ii. The fixation of their unfixed performance. b. The right of authorizing the direct or indirect reproduction of their performance fixed in sound recording, in any manner or form;

Economic Rights of Performers (continued)

c. The right of authorizing the first public DISTRIBUTION of the original and copies of their performance fixed in the sound recording through sale or other forms of transfer of ownership; d. The right of authorizing the commercial RENTAL to the public of the original and copies of their performance fixed in sound recordings, even after the distribution thereof by, or pursuant to the authorization by the performer; and

Economic Rights of Performers (continued)

e. The right of authorizing the MAKING AVAILABLE TO THE PUBLIC of their performances fixed in sound recordings, by wire or wireless means, in such a way that members of the public may access them from a place and time individually chosen by them; f. Additional remuneration for SUBSEQUENT COMMUNICATIONS OR BROADCASTS unless otherwise provided in the contract, 5% of the compensation received for first communication or broadcast.

Moral rights of performers Limitations

Same as copyright (in so far as they are applicable)

Rights of producers of sound recording

Producers of sound recordings shall enjoy the following exclusive rights: a. The right to authorize the direct or indirect REPRODUCTION of their sound recordings, in any manner or form; b. The right to authorize the FIRST PUBLIC DISTRIBUTION of the original and copies of their sound recordings through sale or other forms of transfer ownership; and c. The right to authorize the commercial RENTAL to the public of the original and copies of their sound recording, even after distribution by them by or pursuant to authorization by the producer

Limitations
Same as in copyright (mutatis mutandis)

Compulsory Licensing of Sound Recordings

Single equitable remuneration to the performers the producer of the sound recording if a sound recording is used for broadcasting or for other communication to the public for profit.

RIGHTS OF BROADCASTING ORGANIZATIONS

Broadcasting organizations shall enjoy the exclusive right to carry out, authorize or prevent any of the following acts:
a. The REBROADCASTING of their broadcast; b. The RECORDING in any manner, including the making of films or the use of video tape, of their broadcasts for the purpose of communication to the public of television broadcasts of the same; c. The use of such records for FRESH TRANSMISSIONS or for fresh recordings.

ABS-CBN Broadcasting Corp. v. Philippine Multi-Media System, Inc. (PMSI) G.R. Nos. 17569-70, January 19, 2009

TERM OF PROTECTION FOR PERFORMERS, PRODUCERS AND BROADCASTING ORGANIZATIONS

a. for performances not incorporated in recordings, fifty (50) years from the end of the year in which the performance took place; b. for sound or image and sound recordings and for performances incorporated therein, fifty (50) years from the end of the year in which the recording took place; and c. in case of broadcasters, the term shall be twenty (20) years from the date the broadcast took place.

COPYRIGHT INFRINGEMENT
What constitutes copyright infringement? Columbia Pictures v. Court of Appeal 260, SCRA 144 - To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors or the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute a piracy;

COPYRIGHT INFRINGEMENT
Remedies a. Judicial: Civil or Criminal (Bureau of Legal Affairs, IPO Jurisdiction : RTC (Commercial Courts) b. Administrative: and DTI Regional Offices)

COPYRIGHT INFRINGEMENT
Other principles mere possession of infringing articles for sale, distribution or exhibit punishable presumption of authorship The natural person whose name is indicated on a work is presumed to be the author of the work Notice to the defendant that work is copyrighted is not required but proof of access to the work must be established

COPYRIGHT INFRINGEMENT
Essential Elements of Copyright Infringement: Defendant had access to the copyrighted work The defendants work is substantially similar to the copyrighted work The ordinary observer test (Habana v. Robles)

COPYRIGHT INFRINGEMENT
Civil Remedies for Infringement injunction restraining infringement payments of actual, moral and exemplary damages impounding of sales invoices, all articles and their packaging during pendency of the action Destruction without compensation of all of any article which may serve as evidence in court proceedings

Criminal Penalties for Infringement of Copyright

First offense: imprisonment : Fine Second offense: imprisonment : Fine : Subsequent offense: imprisonment : Fine

1 year to 3 years P50,000.00 to P150,000.00 3 years and 1 day to 6 years P150,000.00 to P500,000.00 6 years and 1 day to 9 years P500,000.00 to P1,500,000.00

In all cases, subsidiary imprisonment in cases of insolvency

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

To obtain a search warrant in a criminal action for infringement, is presentation of master tapes of movies allegedly infringed necessary to establish probable cause? a. 20th Century Fox v. Court of Appeal

164 SCRA 6555 b. Columbia Pictures v. Court of Appeals 260 SCRA 144 The requirement for the presentation of the master tapes of the copyrighted films for the validity of the search warrants merely serve as a guidepost in determining the existence of probable cause.where there is doubt as toe the true nexus of the master tapes and the pirated copies.

COPYRIGHT
1. A textbook in bookkeeping was published, claiming to propose a less cumbersome and more logical arrangement of recording data. Which one of the following is prohibited by the copyright on the book? Choose one answer. ! a. the use of the bookkeeping systems in the accounting schools for teaching purposes the use of the recommended forms by bookkeepers for the recordal of quotation of the short passages of the book, naming the author as the

! data ! source !

b.

c.

d.

photocopying of an entire chapter of the book

COPYRIGHT
2. The author of a textbook entitled College English of Today (CET) sued the author and publisher of Developing English Proficiency (DEP), a textbook for English grammar, for copyright infringement. CET alleges that DEP copied extensively CETs style, manner and presentation and used examples that are identical to those used by CET. DEP did not acknowledge at all that the identical examples and the similarities in the style and manner of presentation is sourced from CET. Will the action prosper? Choose one answer. ! a. No, CET has no copyright on the rules on English grammar No, what are taught in both CET and DEP are sourced from foreign authors. Yes, because DEP did not comply with the provision of law that in case of the source and the should be mentioned. No, because even assuming CET enjoys copyright protection, DEP can fair use limitation done for

! !

b. c.

quotations, name of the author ! d.

invoke the because the copying is teaching purposes

COPYRIGHT
3. Sony Corporation manufactures and sells videotape records (known as betamax) which are capable of recording movies immediately at later time (hometime shifting use) shown in television networks. The users also record educational, religious or sports or current events which are not covered by copyright. The movie producers who owned the copyright of the movie sued Sony for contributory infringement. Will the action prosper? Choose one answer. ! works ! ! b. c. Yes, because the sale of betamax is for commercial purpose No, because the VTR or betamax is capable of substantial non-infringing use, hence it use Yes, because it will affect the potential market of the movie producers a. Yes, because it induces the unauthorized reproduction of copyrighted

constitutes fair ! d.

COPYRIGHT
4. Pearl and Dean manufactures advertising display units (light boxes) --printed posters sandwiched between plastic sheets and illuminated with black lights --- sued shoemart for installing exact copies thereof in its establishments. Shoemart once offered to lease the light boxes/ The action was for infringement of copyright on the light boxes. Will the action prosper? Choose one answer. ! Dean ! Pearl and ! c. b. Yes, because Shoemart is in bad faith since it knew that the light boxeswere conceptualized by Dean No, because the copyright of Pearl and Dean covers only the technical drawings of the light not the light boxes themselves Yes, because Shoemart took advantage of its dominant position as a huge establishment to enrich itself at the expense of small entrepreneurs a. Yes, because Shoemart uses light boxes which are identical to those designed by Pearl and

boxes and ! d.

COPYRIGHT
5. You bought a textbook on Corporation Law written by Dean Cesar Villanueva. Which of the following are you allowed to do by the Copyright Law? Choose one answer. ! a. to scan the book and store it in the hard drive of your computer to copy and reproduce substantial portions of the textbook for use in thesis ! c. to summarize and make an outline of the book to sell the book after you decide to take up nursing

! your

b.

d.

COPYRIGHT
6.

Source: WIPO

The music of a famous composer of the 18th century was performed by an Australian pianist in a concert hall. The local radio station recorded that concert with a view to transmitting it to the public without seeking anyones permission. Is this action lawful? Choose one answer. ! a. No, it is not. The heirs of the composer are alive and entitled to remuneration Yes, it is. The radio company has only a limited capacity to transmit the music and only within small area Yes, it is. The music was composed in the 18th century and thus it is now in the public domain does not enjoy any kind of protection No, it is not. The radio company needs to seek the permission of the pianist to record the concert because she is still enjoying related rights

! one ! and !

b.

c.

d.

COPYRIGHT
7. Which of the following acts refers to the moral rights of the author: Choose one answer. ! ! ! ! ! ! a. b. c. d. e. f. To object to the translation of the work To authorize distribution of copies of work To authorize the performance of the work To object to the work being distorted To object to photocopying of his/her work To authorize advertising of his/her work

Source: WIPO

COPYRIGHT
8.

Source: WIPO

Mr. Gil is a renowned author who has written more than 50 books. He does not know how to use the Internet. One day, with the help of his son, by chance he was able to access the website where an unknown company B was selling all his books online via the Internet. Mr. Gill did not know what to do. He approaches you for advice on what he should do regarding this matter. Does he have any right regarding his works sold on the Internet? Choose one answer. ! a. Mr. Gill has the right on his books sold via the Internet, and Company Bs action should be considered as an infringement Mr. Gill does not have any right on his books sold on the Internet as the delivery mechanism is different Mr. Gill cannot prevent others from selling books on the Internet since they are in the public domain Mr. Gill has only moral right on the book sold via the Internet, but not the economic rights Mr. Gills rights are limited to the printed books, not electronic ones, as he did not contribute to putting

b.

c.

d.

e.

COPYRIGHT
9.

A group of students at Mixit High School started an internet based rap music file sharing through their rap music website without asking permission from right holders. The website was a success, with tens of millions of web hits per day. The rap singers whose songs were exchanged through this website saw their music sales soar by 20 per cent. Nevertheless, the music producers of the labels got together and brought a legal action alleging that the act of downloading music through this website constituted an illegal activity and was tantamount to copyright infringement. They seek your advice on the damages. Which statement is correct: Choose one answer. ! which do ! b. a. The website does not infringes anyones rights since the music sharing was only among students not constitute the public The website was a good promotional tool for artists as evidenced by the soaring sales and was therefore not a copyright infringement Only the rap musicians can bring a legal action since they were the true rights owners The rap musicians and music producers should be awarded damages since only they have the right to authorize the distribution of their

c.

! exclusive Source: WIPO works

d.

COPYRIGHT
10. Which of the following works cannot be protected under copyright: Choose one answer. ! ! ! ! ! a. b. c. d. e. Musical compositions with words Musical compositions without words The conception of a novel An original work of poetry Computer programs

Source: WIPO