CHAPTER 8: COPYRIGHT PURPOSE The economic philosophy behind the clause empowering the Congress to grant patents and

copyright is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventions in the science and the arts. OBJECTIVE: To promote the progress of science and the arts. HOW? Congress may grant to authors the exclusive rights to the fruits of their respective works. An author who possesses unlimited copyright may preclude others from copying his creations for commercial purposes without permission. In short, Congress grants a reward to the authors in the form of control over the sale or personal commercial use of copies of their works. OBJECTIVE FURTHER EXPLAINED The primary objective is not to reward the labor of the authors but to promote the progress of science and the arts. It assures authors the right to their original expression, but also encourages others to build freely upon ideas and information conveyed by a work. This is also known as the idea/expression or fact/expression dichotomy. E.G. As to a compilation, only the compilers selection and arrangement may be protected; the raw facts may be copied at will. Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. Immediate effect: secures a fair return to an authors creative labor. Ultimate aim: to stimulate artistic creativity for the general public good.

CHAPTER 9: DEFINITION OF TERMS UNDER SECTION 171 OF THE IPC 1. AUTHOR the natural person who has created the work. 2. COLLECTIVE WORK created by two or more natural persons at the initiative and under the direction of another with the understanding that it will be disclosed by the latter under his own name and that the contributing natural persons will not be identified. 3. COMMUNICATION TO THE PUBLIC the making of a work 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. 4. PUBLIC LENDING transfer of possession of the original or a copy of a work or sound recording for a limited period, for non-profit purposes, by an institution the services of which are available to the public, such as public libraries or archives. 5. PUBLIC PERFORMANCE recitation, playing, dancing, acting or otherwise performing the work (other than audiovisual work), either directly or by means of

6.

7. 8. 9.

any device or process (in case of audiovisual work), the showing of its images in sequence and the making of the sounds accompanying it audible. In case of sound recording, making the recorded sounds audible at the place/s where persons outside the normal circle of a family and that familys closest social acquaintances are or can be present, irrespective of whether or not they can be present at the same place at the same time or at different places at different times, and where the performance can be perceived without the need for communication. PUBLISHED WORKS works made available to the public by wire or wireless means with the authors consent. Members of the public may access these works from a place and time individually chosen by them. Provided, that availability of the copies satisfies the reasonable requirements of the public, depending on the nature of the work. RENTAL transfer of the possession of the original or a copy of a work or a sound recording for a limited period of time, for profit-making purposes. WORK OF APPLIED ART artistic creation with utilitarian functions or incorporated in a useful article, whether made by hand or produced on an industrial scale. WORK OF THE GOVERNMENT OF THE PHILIPPINES created by an officer or employee of the Phil. Government or any of it subdivisions and instrumentalities, including GOCCs, as part of his regularly prescribed official duties.

Take note: PUBLIC LENDING is for non-profit-making purposes; RENTAL is for profitmaking purposes. FIXATION IN A TANGIBLE MEDIUM OF EXPRESSION To clarify, a copyright work is not a material thing but is the intellectual production of the author. However, it is conceded that a copyright (the right per se) may only arise once the thoughts are fixed in material form, i.e. the result of the act. This just merely shows that fixation is a condition precedent to the subsistence of copyright. Hence, to say that the work does not exists at all before fixation is a fallacy. When a work is perfect in its authors mind but has not yet reduced into material form, it has existence in a real sense, although he must take a further step in order to take his title. Hence, no copyright exists until the author causes it to be reduced into writing or material form, but once it has been so, he has a good cause of action in respect of unauthorized reproductions made after that moment. COMPETING CLAIMS INVOLVED IN COPYRIGHT The courts must occasionally subordinate the copyright holders interest in maximum financial return to the greater public interest in the development of art, science and industry. INTERPRETATION OF COPYRIGHT LAW The basic purposes of the law must be effectuated. Absurdity must be avoided.

CHAPTER 10: ORIGINAL WORKS

Sec. 172. Literary and Artistic Works. 172.1 Literary and artistic works, hereinafter referred to as "works", are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular: (a) Books, pamphlets, articles and other writings; (b) Periodicals and newspapers; (c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form; (d) Letters; (e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows; (f) Musical compositions, with or without words; (g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art; (h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art; (i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science; (j) Drawings or plastic works of a scientific or technical character; (k) Photographic works including works produced by a process analogous to photography; lantern slides; (l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings; (m) Pictorial illustrations and advertisements; (n) Computer programs; and (o) Other literary, scholarly, scientific and artistic works. 172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.

ORIGINAL WORKS These are works eligible for copyright protection. An original work means it must originate from him; the work must have its origin in the labor of the author. The work is protected irrespective of the quality thereof. It is also not necessary that it must pass a test of imaginativeness or inventiveness. Copyright does not protect mere ideas but only the form of expression of such ideas. NOVELTY IS NOT REQUIRED All that is needed to satisfy both the Constitution and the statute is that the author contributes something more than a merely trivial variation, something recognizably his own. The right to obtain copyright depends on the originality and not upon any standard of merit (wise or foolish, accurate or inaccurate) in the subject matter. If it commands the interest of the public, it has commercial value. And whether it has an aesthetic and educational value is largely a matter of taste. ORIGINALITY It is both a constitutional and statutory requirement for copyright protection. A work is original if: a) Independently created by the author b) Has some minimal degree of creativity

The requisite amount of creativity is relatively low. A slight amount is sufficient to invoke copyright protection. Take note: Originality is not novelty. A work resembling another is entitled to copyright so long as the similarities are not the result of illicit copying. Facts are not covered by copyright protection. However, they may be arranged or compiled in an original manner. The compilation warrants copyright protection. WORKS PROTECTED UNDER ARTICLE 2 OF THE BERNE CONVENTION Literary and artistic works, which shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as: 1) BOOKS, PAMPHLETS, ARTICLES AND OTHER WRITINGS It is the product of the mind, consisting of a series of verbal or numerical statements, not necessarily possessing aesthetic merit, capable of being expressed in writing. It does not require dancing or acting for its presentation. This is the biggest category, if not in numbers, by variety. Congress has declared these to include all forms of writing, printing, engraving, etching, by which ideas are given visible expression. Even if a work is identical to a prior work, it is considered original if it is not copied from the latter, but instead is the product of independent effort of the author. E.G. Articles in periodicals are subject to copyright. But the news itself cannot be copyrighted. Case Law: Adaptation of Classics as per ruling in Waldman Publishing Corp. v.

Landoll, Inc.

Facts: Waldman publishes a line of childrens books. The books are adaptations of literary works of public domain such as Oliver Twist, Black Beauty, etc. which are in the abbreviated version. The language is simple with illustration on every other page to draw the attention of children. To make this possible, Waldman contracted with writers and artists who are credited on the front cover of the books. A copyright notice on behalf of Waldman and its seller/distributor Playmore is placed on the cover of each book. Landoll, on the other hand, also publishes childrens books called First Illustrated Classics. They contain stories similar to those adapted by Waldman, as well as illustrations adapted from the stories. The Landoll books are not exact copies of Waldman books. However, the arrangement of the chapters and the texts are the closely the same. Even the events illustrated in the stories are the same. Waldman and Playmore applied in the court for preliminary injunction and a temporary restraining order which prohibited Landoll from publishing its book. The application was granted. Issue: a) Are Waldman books which are adaptations of literary works of public domain original works? b) Are the Landoll books similar enough with Waldman books so that the formers failure to credit the latter constitutes false designation of origin?

Held: a) Yes. The Waldman books are adaptations of classic novels and hence classified as derivative works. A derivative work is copyrightable if it is sufficiently original. It requires a distinguishable variation that is more than merely trivial. The books are original because the author selected which episodes should be included in the books, redrafted the text to cater to children, and used illustrations that gave originality. In this case, only the material added to the underlying work is protected by copyright. b) Yes. The court held that the similarities between the structure, texts, and illustrations of the books compel the inference that Landoll adaptations are copies of the Waldman adaptations, with minimal changes intended to disguise the copying. 2) PERIODICALS AND NEWSPAPERS News articles are copyrightable. But copyright protection is conferred only on those elements that were original to the author. Therefore, the information respecting current events is not the creation of the author. The court must determine whether the test is a story with a degree of originality, or just a simple account, arid and impersonal, of news and miscellaneous facts. 3) LECTURES, SERMONS, ADDRESSES, AND DISSERTATIONS PREPARED FOR ORAL DELIVERY Usually known as oral works. They are protected whether or not reduced in writing or other material form. If a work is not prepared for oral delivery, it cannot claim copyright protection. To be free: - It must have been delivered in public - The use must be for informatory purpose - The subject need not be news if the purpose is to allow the public to be informed of what the lecturer said. 4) LETTERS A fair and bona fide abridgement of an original work is not piracy of the copyright of the author. The abridgment must contain real, substantial, condensation of materials, and intellectual labor and judgment bestowed thereon; and not merely facile use of the scissors; or extracts of essential parts, constituting the chief value of the original work. Justice Story in Folsom v. March Case Law: J.D. Salingers Letters in Salinger v. Random House, Inc. The biographer who copies only facts incurs no risk of an injunction; he has not taken copyrighted material. And it is unlikely that the biographer will distort those facts by rendering them in words of his own choosing. The biographer has no inherent right to copy the accuracy or the vividness of the letter writers expression. Indeed, vividness of description is precisely an attribute of the authors expression that he is entitled to protect. What is protected is the manner of expression, the authors analysis or interpretation of events, the way he structures his material and marshals facts, his

choice of words and the emphasis he gives to particular developments. The ordinary phrase may enjoy no protection as such, but its use in sequence of expressive words does not cause the entire passage to lose protection. And though the ordinary phrase may be quoted without fear of infringement, a copier may not quote or paraphrase the sequence of creative expression that includes such a phrase. 5) DRAMATIC OR DRAMATICO-MUSICAL COMPOSITIONS; CHOREOGRAPHIC WORKS OR ENTERTAINMENT IN DUMB SHOWS a) Dramatico-musical works combination of drama and music. It differs from dramatic compositions in that, besides a plot, characters and acting, musical and/or vocal accompaniment is also present. b) Choreographic works/Pantomime it must contain original and expressive elements to be protected. It does not include conventional gestures or social dance steps and simple routines. These works may also contain protectable matter aside from movement, like physical attitudes, the configuration of the dancers bodies, or the placement of dancers on the stage. It must also be fixed in a tangible medium to be copyrightable, like a videotape or a motion picture film. c) Musical compositions, with or without words where the music and lyrics are composed by different authors, it is considered works of joint authorship which consist of parts that can be used separately. The author of each part shall be the original owner of the copyright in the part he has created. Under the Copyright Act, when music and lyrics are integrated in a single work, the copyright will protect against unauthorized use of the music alone, or of the words alone, or of a combination of music and words. With regard to originality, it has been held that although a musical theme may be suggestive of prior works, it will still be deemed original if the overall impression is of a new work. Determination of similarities involves a two-step analysis. First, there must be similarity of ideas via extrinsic analysis. Second, if there is substantial similarity in ideas, similarity of expression is evaluated intrinsically. 6 ) DRAWING, PAINTING, ARCHITECTURE, SCULPTURE It covers all artistic works whether in 2D or 3D, independent of their nature (figurative or abstract), and their intention (pure or commercial art). It does not include generic shapes. It also limits protection for the design of useful articles to those with separately identifiable features existing independently of its utilitarian aspects. a) Architectural plans are not useful articles because their only function is to portray the appearance of the article or convey information. They are copyrightable as pictorial, graphic, and sculptural works. b) Original ornamental designs or models for articles of manufacture it is considered as a work of applied art. It is an artistic creation with utilitarian functions or incorporated in a useful article, whether made by hand or produced on an industrial scale. Mazer v. Stein: If the sole intrinsic function of an article is its utility, the fact that it is unique and attractively shaped will not qualify as a work of art. However, if the shape of a utilitarian article incorporates features, such as artistic sculpture, carving, or pictorial representation, which can be identified

separately and are capable of existing independently as a work of art, such features will be eligible for registration. c) Useful articles in relation to letter (b) a pictorial, graphic, or sculptural feature incorporated in the design of a useful article is conceptually separable if it can stand on its own as a work of art as traditionally conceived, and if the useful article in which it is embodied would be equally useful without it. This is the test to determine the exclusion of protection for utilitarian purposes. 7) ILLUSTRATIONS, MAPS, PLANS, SKETCHES, CHARTS For a map to be copyrightable, its preparation must involve a modicum of creative work. A mere master map from various other maps from government sources, without original surveying, calculating, or investigating is not entitled to copyright protection, even though he spent considerable time in assembling it and no other map contains all the information to be found on his. Names of cities, streets, or other geographical items may be copied if such were the names by which such items are known. 8) ARTWORKS ON SWEATERS AS ORIGINAL WRITINGS Copyright works are protected irrespective of their method or means of expression. They are considered as writings for purposes of copyright law. Hence, artworks on fabrics and sweaters are copyrightable. 9) AUDIOVISUAL WORK This consists of a series of related images which impart the impression of motion, with or without accompanying sounds, susceptible of being made visible and, where accompanied by sounds, susceptible of being made audible. Elements: a) Images b) Images must be sequential; it must create an impression of motion c) It must be susceptible of being made visible and audible d) It must be intended to be shown by the use of machines or devices such as projectors, viewers or electronic equipment 10) PICTORIAL ILLUSTRATIONS A work may constitute a pictorial illustration merely by virtue of its being a picture although there is no accompanying text to be illustrated. Any work eligible for registration as a pictorial illustration could also obtain registration as a reproduction of a work of art. 11) ADVERTISING MATERIALS Pictures used for advertising purposes, if possessed of the least degree of originality or artistic merit, are the subjects of copyright. It is immaterial that the advertising matter is not offered for sale itself, but merely used to promote the sale of the articles listed in it. The copyright protection has also been extended to written advertisements. In the case of written advertisements, the protection shall only extend to those advertisements that speak the truth, and not to those that mislead and deceive the public. 12) PRINTS AND LABELS USED FOR ARTICLES OF MERCHANDISE

It is copyrightable under the general protection accorded to pictorial, graphic, and sculptural works. 13) PROTECTION OF TEXTUAL MATTER OF LABELS Prints or labels are protectable under the pictorial, graphic and sculptural works category. However, short phrases placed upon labels cannot claim protection if they do not aid or augment an accompanying pictorial illustration. If a label contains textual material consisting of more than a short phrase, but is such material is dictated by functional considerations such as listing of ingredients or contents, this shall be denied copyright protection. But if the listing contains original recipe, it shall be protectable despite its functional nature. 14) CARTOON CHARACTERS A character can take a life of its own and thus may be protected against copies in postures, settings, and attitudes far removed from any in the authors origina l depiction. They are much like literary characters. They will enjoy unauthorized exploitation of their personality and appearance. If a cartoon character also has a literary aspect, the combination of visual and literary elements will usually strengthen the characters protectable features. 15) COMPUTER PROGRAMS These shall be protected as literary works under the Berne Convention. It shall be copyrightable whether it is an application program or an operating system, whether embodied in paper, magnetic disk, tape, or semiconductor chip. 16) JUDICIAL OPINIONS The whole work of judges is free for publication to all, whether it is a declaration of unwritten law or an interpretation of a constitution or a statute. The question is one of public policy. 17) LAW REPORTS A reporter may have a copyright in a digest or synopsis of judicial decision and selection and arrangement of cases relating to a particular branch of law. 18) TEXTBOOK AND TREATISES There is protectable expression not only in the literal wording of a textbook or treatise, but also in its arrangement, style and manner of presentation. 19) NEWS STORIES, HISTORY, BIOGRAPHY These are not protected by copyright. Copyright only extends to the literal phrasing, authors original narrative style and arrangement of facts reported. The ordering of events shall not be protected if it follows the chronological order in which the incidents occurred. 20) ORIGINAL WORKS DERIVED FROM PUBLIC DOMAIN MATERIALS These works may be protected if the author, through his skill and effort, has contributed a distinguishable variation from the older works. The distinguishable variation must be substantial and not merely trivial.

21) ORIGINAL COMPILATION OF FACTS Under the originality standard, bare facts are never copyrightable because they do not owe their origin to an act of authorship. They may be freely copied. However, 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. The authors selection, coordination, and arrangement of facts are protected only if they were made independently and entail a minimal degree of creativity.

CHAPTER 11: DERIVATIVE WORKS

Sec. 173. Derivative Works. 173.1. The following derivative works shall also be protected by copyright: (a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and (b) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents. (Sec. 2, [P] and [Q], P. D. No. 49) 173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as a new works: Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works.(Sec. 8, P. D. 49; Art. 10, TRIPS)

DEFINITIONAL ELEMENTS First, the work must borrow original and expressive content from another work, Second, to qualify as a derivative work, the work must recast, transform, or adaptand not simply copythe work upon which it is based. SUBSTANTIALLY SIMILAR TO THE UNDERLYING WORK The new work must be so substantially similar to the underlying work that in the absence of a license, it would be a copyright infringement of the underlying work. RELATIONSHIP BETWEEN UNDERLYING COPYRIGHT AND DERIVATIVE WORK A derivative work is by definition substantially similar to the underlying work and would be a copyright infringement in the absence of a license. Thus, if the underlying work is in copyright, one who wishes to exploit the derivative work needs a copyright license from the owner of copyright in the underlying work/s. The aspects of a derivative work added by the derivative authors are that authors property, but the elements drawn from the pre-existing work remains on grant from the owner of the pre-existing work. DIFFERENT KINDS OF ADAPTATION 1. TRANSLATION This is the translation of a literary work into other languages or dialects, or to make any other version thereof. To be copyrightable as a new work, such translation of

works in the public domain must have the consent of the copyright proprietor. No special notice is also required. 2. CHANGE OF MEDIUM The work may still be original in the sense that he has employed skill and judgment in its production. The author produces the resemblance by means very different from those employed by the original author from whom he copies. Reproduction in the Same Medium there must be more than an exact reproduction to secure copyright. If the original was merely used as a model, then it is entitled to protection. 3. ADAPTATION 4. ABRIDGEMENTS OF LITERARY WORK Copyright may likewise exist in a genuine and just abridgement, for it is said than an abridgement may with great propriety be called a new book. The entire work must be preserved in its precise import and exact meaning, and then the act of abridgement is an exertion of the understanding, transforming a large work into a small compass, making it less expensive and more convenient both to the time and use of the reader. It requires the exercise of the mind, labor, skill and judgment are brought into play, and the result is not merely copying. COLLECTIVE WORK
Section 171.2. A "collective work" is 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 disclosed by the latter under his own name and that contributing natural persons will not be identified;

When an author contributes to a collective work, his right to have his contribution attributed to him is deemed waived. This must be connected with:
Section 180.3. The submission of a literary, photographic or artistic work to a newspaper, magazine or periodical for publication shall constitute only a license to make a single 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 grant licenses without the prior written consent of the other owner or owners.

When the required consent is granted, the necessary changes, reproduction, presentation, or expression shall not be deemed to contravene the authors rights. TABLE OF COMPARISON: WORK DERIVATIVE WORK It is one based on one or more pre-existing works in any form in which the work may be recast, transformed, or adapted. DERIVATIVE WORK, COMPILATION, and COLLECTIVE COMPILATION It is a work formed by the collection and assembling of pre-existing materials or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole COLLECTIVE WORK It is a compilation of contributions which would themselves be capable of copyright protection.

constitutes an original work of authorship. PUBLISHERS TYPOGRAPHICAL ARRANGEMENT

Sec. 174. Published Edition of Work. - In addition to the right to publish granted by the author, his heirs or assigns, the publisher shall have a copy right consisting merely of the right of reproduction of the typographical arrangement of the published edition of the work. (n)

The protection given to publishers of works of this class is of limited character and merely restricts the making by a photographic or similar process of a reproduction of the typographical arrangement of the edition.