Intellectual Property Notes
and resources, as well as artistic creations.
I. CONSTITUTIONAL PROVISIONS
Article XII SECTION 6. The use of property bears a social
function, and all economic agents shall contribute to the
common good. Individuals and private groups, including
corporations, cooperatives, and similar collective
organizations, shall have the right to own, establish, and
operate economic enterprises, subject to the duty of
the State to promote distributive justice and to
intervene when the common good so demands.
SECTION 14. The sustained development of a reservoir
of national talents consisting of Filipino scientists,
entrepreneurs, professionals, managers, high-level
technical manpower and skilled workers and craftsmen
in all fields shall be promoted by the State. The State
shall encourage appropriate technology and regulate its
transfer for the national benefit.
ARTICLE XIV SECTION 10. Science and technology are
essential for national development and progress. The
State shall give priority to research and development,
invention, innovation, and their utilization; and to
science and technology education, training, and
services. It shall support indigenous, appropriate, and
self-reliant scientific and technological capabilities, and
their application to the countrys productive systems
and national life.
SECTION 11. The Congress may provide for incentives,
including tax deductions, to encourage private
participation in programs of basic and applied scientific
research. Scholarships, grants-in-aid, or other forms of
incentives shall be provided to deserving science
students, researchers, scientists, inventors,
technologists, and specially gifted citizens.
SECTION 12. The State shall regulate the transfer and
promote the adaptation of technology from all sources
for the national benefit. It shall encourage the widest
participation of private groups, local governments, and
community-based organizations in the generation and
utilization of science and technology.
SECTION 13. The State shall protect and secure the
exclusive rights of scientists, inventors, artists, and other
gifted citizens to their intellectual property and
creations, particularly when beneficial to the people, for
such period as may be provided by law.
Arts and Culture
SECTION 14. The State shall foster the preservation,
enrichment, and dynamic evolution of a Filipino national
culture based on the principle of unity in diversity in a
climate of free artistic and intellectual expression.
SECTION 15. Arts and letters shall enjoy the patronage
of the State. The State shall conserve, promote, and
popularize the nations historical and cultural heritage
SECTION 16. All the countrys artistic and historic wealth
constitutes the cultural treasure of the nation and shall
be under the protection of the State which may regulate
its disposition.
SECTION 17. The State shall recognize, respect, and
protect the rights of indigenous cultural communities to
preserve and develop their cultures, traditions, and
institutions. It shall consider these rights in the
formulation of national plans and policies.
SECTION 18. (1) The State shall ensure equal access to
cultural opportunities through the educational system,
public or private cultural entities, scholarships, grants
and other incentives, and community cultural centers,
and other public venues.
(2) The State shall encourage and support researches
and studies on the arts and culture.
Tanada vs Angara 272 S 18
IIssue: WON the General Provisions and Basic Principles of
the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) intrudes on the power of
theSupreme Court to promulgate rules concerning
pleading, practice and procedures.
Suffice it to say that the reciprocity clause more
than justifies such intrusion, if any actually exists. In the
area of trade related aspects of intellectual property
rights (TRIPS, for brevity): Each Member shall accord to
the nationals of other Members treatment no less
favorable than that it accords to its own nationals with
regard to the protection of intellectual property:
a WTO Member is required to provide a rule of
disputable (not the words "in the absence of proof to
the contrary") presumption that a product shown to be
identical to one produced with the use of a patented
process shall be deemed to have been obtained by the
(illegal) use of the said patented process, (1) where such
product obtained by the patented product is new, or (2)
where there is "substantial likelihood that the identical
product was made with the use of the said patented
process but the owner of the patent could not
determine the exact process used in obtaining such
identical product. Hence, the "burden of proof"
contemplated by Article 34 should actually be
understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly
understood, actually refers to the "burden of evidence"
(burden of going forward) placed on the producer of the
identical (or fake)product to show that his product was
produced without the use of the patented process. The
foregoing notwithstanding, the patent owner still has
the "burden of proof" since, regardless of the
presumption provided under paragraph 1 of Article 34,
such owner still has to introduce evidence of the
existence of the alleged identical product, the fact that
it is "identical" to the genuine one produced by the
patented process and the fact of "newness" of the
genuine product or the fact of "substantial likelihood"
 that the identical product was made by the patented
process. Moreover, it should be noted that the
requirement of Article 34 to provide a disputable
presumption applies only if (1) the product obtained by
the patented process in NEW or (2) there is a substantial
likelihood that the identical product was made by the
process and the process owner has not been able
through reasonable effort to determine the process
used. Where either of these two provisos does not
obtain, members shall be free to determine the
appropriate method of implementing the provisions of
TRIPS within their own internal systems and processes.
F While the Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at the
same time, it recognizes the need for business exchange
with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises
only against foreign competition and trade practices
that are unfair. In other words, the Constitution did not
intend to pursue an isolationist policy. It did not shut
out foreign investments, goods and services in the
development of the Philippine economy. While the
Constitution does not encourage the unlimited entry of
foreign goods, services and investments into the
country, it does not prohibit them either. In fact, it
allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that is
unfair.
F There is hardly therefore any basis for the statement that
under the WTO, local industries and enterprises will all
be wiped out and that Filipinos will be deprived of
control of the economy. Quite the contrary, the weaker
situations of developing nations like the Philippines
have been taken into account; thus, there would be no
basis to say that in joining the WTO, the respondents
have gravely abused their discretion. True, they have
made a bold decision to steer the ship of state into the
yet uncharted sea of economic liberalization. But such
decision cannot be set aside on the ground of grave
abuse of discretion, simply because we disagree with it
or simply because we believe only in other economic
policies.
F Aside from envisioning a trade policy based on equality and
reciprocity, the fundamental law encourages industries
that are competitive in both domestic and foreign
markets, thereby demonstrating a clear policy against a
sheltered domestic trade environment, but one in favor
of the gradual development of robust industries that
can compete with the best in the foreign markets.
Indeed, Filipino managers and Filipino enterprises have
shown capability and tenacity to compete
internationally. And given a free trade environment,
Filipino entrepreneurs and managers in Hongkong have
demonstrated the Filipino capacity to grow and to
prosper against the best offered under a policy of laissez
faire.
F Petitioners aver that paragraph 1, Article 34 of the General
Provisions and Basic Principles of the Agreement on
Trade-Related Aspects of Intellectual Property Rights
(TRIPS) intrudes on the power of the Supreme Court to
promulgate rules concerning pleading, practice and
procedures.xxx By and large, the arguments adduced in
connection with our disposition of the third issue --
derogation of legislative power - will apply to this fourth
issue also. Suffice it to say that the reciprocity clause
more than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due
process and the concept of adversarial dispute
settlement inherent in our judicial system. So too, since
the Philippine is a signatory to most international
conventions on patents, trademarks and copyrights, the
adjustment in legislation and rules of procedure will not
be substantial
Hence, the burden of proof contemplated by Article 34
should actually be understood as the duty of the alleged
patent infringer to overthrow such presumption. Such
burden, properly understood, actually refers to the
burden of evidence (burden of going forward) placed
on the producer of the identical (or fake) product to
show that his product was produced without the use of
the patented process. The foregoing notwithstanding,
the patent owner still has the burden of proof since,
regardless of the presumption provided under
paragraph 1 of Article 34, such owner still has to
introduce evidence of the existence of the alleged
identical product, the fact that it is identical to the
genuine one produced by the patented process and the
fact of newness of the genuine product or the fact of
substantial likelihood that the identical product was
made by the patented process.
CIVIL CODE
Art. 520. A trade-mark or trade-name duly registered
in the proper government bureau or office is owned by
and pertains to the person, corporation, or firm
registering the same, subject to the provisions of
special laws. (n)
Art. 521. The goodwill of a business is property, and
may be transferred together with the right to use the
name under which the business is conducted. (n)
Art. 522. Trade-marks and trade-names are governed
by special laws.
Art. 712. Ownership is acquired by occupation and by
intellectual creation. Ownership and other real rights
over property are acquired and transmitted by law, by
donation, by estate and intestate succession, and in
consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.
Title II. - INTELLECTUAL CREATION
Art. 721. By intellectual creation, the following persons
acquire ownership:
(1) The author with regard to his literary,
dramatic, historical, legal, philosophical,
scientific or other work;
(2) The composer; as to his musical
composition;
 (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
invention. (n)
Art. 722. The author and the composer, mentioned in
Nos. 1 and 2 of the preceding article, shall have the
ownership of their creations even before the
publication of the same. Once their works are
published, their rights are governed by the Copyright
laws.
The painter, sculptor or other artist shall have
dominion over the product of his art even before it is
copyrighted.
Finally, we rule that the Court of Appeals correctly denied
The scientist or technologist has the ownership of his
discovery or invention even before it is patented. (n)
Art. 723. Letters and other private communications in
writing are owned by the 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 authorize their
publication or dissemination if the public good or the
interest of justice so requires. (n)
Art. 724. Special laws govern copyright and patent.
KHO v. COURT OF APPEALS, GR NO. 11578, MARCH 19,
2002; 379 SCRA
F Trademark, copyright and patents are different intellectual
property rights that cannot be interchanged with one
another.
F A trademark is any visible sign capable of distinguishing the
goods (trademark) or services (service mark) of an
enterprise and shall include a stamped or marked
container of goods. In relation thereto, a trade name
means the name or designation identifying or
distinguishing an enterprise.
F Meanwhile, the scope of a copyright is confined to literary
and artistic works which are original intellectual
creations in the literary and artistic domain protected
from the moment of their creation.
F Patentable inventions, on the other hand, refer to any
technical solution of a problem in any field of human
activity which is new, involves an inventive step and is
industrially applicable
F Issue: WON the copyright and patent over the name and
container of a beauty cream product would entitle the
registrant to the use and ownership over the same to
the exclusion of others.
No. Petitioner has no right to support her claim
for the exclusive use of the subject trade name and its
container.The name and container of a beauty cream
product are proper subjects of a trademark inasmuch
as the same falls squarely within its definition. In order
to be entitled to exclusively use the same in the sale of
the beauty cream product, the user must sufficiently
prove that she registered or used it before anybody
else did. The petitioners copyright and patent
registration of the name and container would not
guarantee her the right to the exclusive use of the same
for the reason that they are not appropriate subjects of
the said intellectual rights. Consequently, a preliminary
injunction order cannot be issued for the reason that
the petitioner has not proven that she has a clear right
over the said name and container to the exclusion of
others, not having proven that she has registered a
trademark thereto or used the same before anyone did.
The dispositive portion of said decision held
that the petitioner does not have trademark rights on
the name and container of the beauty cream
product. The said decision on the merits of the trial
court rendered the issuance of the writ of a preliminary
injunction moot and academic notwithstanding the fact
that the same has been appealed in the Court of
Appeals.
the petitioner s several motions for contempt of court.
There is nothing contemptuous about the
advertisements complained of which, as regards the
proceedings in CA-G.R. SP No. 27803 merely announced
in plain and straightforward language the promulgation
of the assailed Decision of the appellate court.
Moreover, pursuant to Section 4 of Rule 39 of the
Revised Rules of Civil Procedure, the said decision
nullifying the injunctive writ was immediately executory.
IPC
Sec. 241. Effectivity. - This Act shall take effect on 1
January 1998.
239.3. The provisions of this Act shall apply to works in
which copyright protection obtained prior to the
effectivity of this Act is subsisting: Provided, That the
application of this Act shall not result in the diminution
of such protection.
Sec. 236. Preservation of Existing Rights. - Nothing
herein shall adversely affect the rights on the
enforcement of rights in patents, utility models,
industrial designs, marks and works, acquired in good
faith prior to the effective date of this Act.
1. Definition of Copyright
Sec. 177. Copy or Economic Rights. - Subject to the
provisions of Chapter VIII, copyright or economic rights
shall consist of the exclusive right to carry out, authorize
or prevent the following acts:
177.1. Reproduction of the work or substantial portion
of the work;
177.2 Dramatization, translation, adaptation,
abridgment, arrangement or other transformation of
the work;
177.3. The first public distribution of the original and
each copy of the work by sale or other forms of transfer
of ownership;
177.4. 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)
177.5. Public display of the original or a copy of the
work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work
Rule 2, Copyright Safeguards and Regulations
Definition of Terms For the purpose of these Copyright
Safeguards and Regulations, the following terms are
herein defined: Author is the natural person who has
created the work; Collective work is 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; Communication to the
public or communicate to the public means 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; Computer program is a set of
instructions capable, when incorporated in machine-
readable medium, of causing a machine having
information-processing capabilities, to indicate,
perform, or achieve a particular function, task, or result;
Copyright is a right granted by statute to the author or
originator of literary, scholarly, scientific, or artistic
productions, including computer programs. A copyright
gives him the legal right to determine how the work is
used and to obtain economic benefits from the work.
For example, the owner of a copyright for a book or a
piece of software has the exclusive rights to use, copy,
distribute, and sell copies of the work, including later
editions or versions of the work. If another person
improperly uses material covered by a copyright, the
copyright owner can obtain legal relief; Copyright Office
refers to the Copyright Division of the National Library;
Copyright symbol is represented by ; Date of
Publication is the earliest date when a copy of the first
authorized edition of the work was placed on sale, sold,
distributed, or otherwise made available to the public,
by the copyright owner or his representative;
Decompilation means the reproduction of the code and
the translation of the forms of a computer program to
achieve the inter-operability of an independently-
created computer program with other programs;
Exhibition of an audiovisual work means any form of
exploitation of a work, including its distribution in
copies, its public performance, and its communication
to the public, including broadcast or rebroadcast, cable
retransmission, or satellite broadcast or transmission;
Fee refers to the amount prescribed by The National
Library for the issuance of a Certificate of Registration
and Deposit to claim copyright or for the filing of
assignment or license, or for such other services or
transactions as may be covered by these Copyright
Safeguards and Regulations; Performance symbol is
represented by p; Public lending is the transfer of
possession of the original or a copy of a work or
multimedia for a limited period, for non-profit purposes,
by an institution the services of which are available to
the public, such as a public library or archive; Public
performance is the recitation, playing, dancing, acting or
any performance of the work, either directly or by
means of any device or process; in the case of an
audiovisual work, the broadcast or showing of its
images in sequence and the making of the sounds
accompanying it audible; and in the case of a sound
recording, the making of the recorded sounds audible at
a place or at places where persons outside the normal
circle of a family and that familys closed social
acquaintances are or can be present, irrespective of
whether they are or can be present at the same place
and at the same time, or at different places and/or
different times, and where the performance can be
perceived without the need for communication within
the meaning of communication to the public defined
above; Published work means work which, with the
consent of the author, is made available to the public by
wire or wireless means in such a way that members of
the public may access the work from a place and time
individually chosen by them: Provided, That availability
of such copies has been such as to satisfy the
reasonable requirements of the public, having regard to
the nature of the work; Publisher is one who produces
and makes available for circulation or distribution the
published work; Rental is the transfer of the possession
of the original or a copy of a work or multimedia for a
limited period of time, for profit-making purposes;
Reproduction is the making of one (1) or more copies of
a work, including multimedia, in any manner or form. A
reprographic reproduction, as authorized under certain
circumstances by the IPC, does not include a digital or
machine-readable copy, but is limited to photography,
xerography and similar processes, resulting in a paper or
microform copy; Reprographic right is one exercisable
anywhere to reproduce or authorize the reproduction of
the work by means of any appliance or process capable
of producing multiple copies of the work in such a form
that the work may be perceived visually. Reprography
and other forms of reproduction require the permission
of the copyright holder; SAR shall refer to these
Copyright Safeguards and Regulations issued pursuant
to the IPC; SCL refers to the Library of the Supreme
Court of the Republic of the Philippines; TNL refers to
The National Library of the Republic of the Philippines;
TNL Director refers to the head of The National Library
of the Republic of the Philippines; Unpublished work
means work that has not been disseminated, circulated
or distributed to the public prior to its registration with
the Copyright Office; Work refers to any original work,
derivative work, performance of producers, sound
recording, or recording of broadcasting organizations.
Derivative work is work that is derived from another
work; Work of Applied Art is an 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 is
work created by an officer or employee of the Philippine
Government or any of its subdivisions and
instrumentalities, including government-owned or
controlled corporations, as part of his regularly
prescribed official duties.
Rule 11 Communication to the Public of Copyrighted
Works
SECTION 1. Communication to the Public of Copyrighted
Work. Communication to the public or
communicate to the public, also includes point-to-
point transmission of a work, including video on
demand, and providing access to an electronic retrieval
system, such as computer databases, servers, or similar
electronic storage devices. Broadcasting,
rebroadcasting, retransmission by cable, and broadcast
and retransmission by satellite are all acts of
communication to the public within the meaning of
the IPC.
Rule 12 First Public Distribution of Work SECTION 1.
First Public Distribution of Work. An exclusive right of
first distribution of work includes all acts involving
distribution, specifically including the first importation
of an original and each copy of the work into the
jurisdiction of the Republic of the Philippines.
2. STANDARD FOR COPYRIGHT PROTECTION
Sec. 172, IPC. 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.
ONG CHING KIAN vs CA
FACTS: He states that as holder of the Certificate of
Copyright Registration of the twin-dragon design, he has
the protection of P.D. No. 49.[10] Said law allows an
injunction in case of infringement. Petitioner asserts
that private respondent has no registered copyright and
merely relies on the trademark of his principal abroad,
which insofar as Philippine laws is concerned, cannot
prevail over the petitioners copyright.
Private respondent, for his part, avers that
petitioner has no clear right over the use of the
copyrighted wrapper since the PAGODA trademark and
label were first adopted and used and have been duly
registered by Ceroilfood Shandong not only in China but
in nearly 20 countries and regions worldwide. Petitioner
was not the original creator of the label, but merely
copied the design of Ceroilfood Shandong. Private
respondent presented copies of the certificates of
copyright registration in the name of Ceroilfood
Shandong issued by at least twenty countries and
regions worldwide which although unauthenticated are,
according to him, sufficient to provide a sampling of the
evidence needed in the determination of the grant of
preliminary injunction.[11] Private respondent alleges,
that the trademark PAGODA BRAND was registered in
China on October 31, 1979 [12] while the trademark
LUNGKOW VERMICELLI WITH TWO-DRAGON DEVICE
was registered on August 15, 1985
HELD; A person to be entitled to a copyright must be
the original creator of the work. He must have created it
by his own skill, labor and judgment without directly
copying or evasively imitating the work of another.
[14]
The grant of preliminary injunction in a case rests on
the sound discretion of the court with the caveat that it
should be made with extreme caution. [15] Its grant
depends chiefly on the extent of doubt on the validity of
the copyright, existence of infringement, and the
damages sustained by such infringement. [16] In our view,
the copies of the certificates of copyright registered in
the name of Ceroilfood Shandong sufficiently raise
reasonable doubt. With such a doubt, the preliminary
injunction is unavailing.[17] In Medina vs. City Sheriff,
Manila, 276 SCRA 133, 139 (1997), where the
complainants title was disputed, we held that injunction
was not proper.
 Sambar vs. Levi Strauss & Co./, GR No. 132604, ( March
6, 2002), 378 SCRA 364
F Did petitioner infringe on private respondents arcuate
design?
We find no reason to disturb the findings of the
Court of Appeals that Europress use of the arcuate
design was an infringement of the Levis design.
F Must we hold petitioner solidarily liable with CVS Garments
Industrial Corporation? Both the courts below found
that petitioner had a copyright over Europress arcuate
design and that he consented to the use of said design
by CVSGIC. We are bound by this finding, especially in
the absence of a showing that it was tainted with
arbitrariness or palpable error.[7] It must be stressed
that it was immaterial whether or not petitioner was
connected with CVSGIC. What is relevant is that
petitioner had a copyright over the design and that he
allowed the use of the same by CVSGIC.
F To be entitled to copyright, the thing being copyrighted must
be original, created by the author through his own skill,
labor and judgment, without directly copying or
evasively imitating the work of another. From the
foregoing discussion, it is clear that the matters raised
by petitioner in relation to the last issue are purely
factual, except the matter of nominal and temperate
damages. Petitioner claims that damages are not due
private respondents and his copyright should not be
cancelled because he had not infringed on Levis
trademark. Both the trial court and the Court of
Appeals found there was infringement. Thus, the
award of damages and cancellation of petitioners
copyright are appropriate. Award of damages is
clearly provided in Section 23 of the Trademark law,
while cancellation of petitioners copyright finds basis
on the fact that the design was a mere copy of that of
private respondents trademark. To be entitled to
copyright, the thing being copyrighted must be original,
created by the author through his own skill, labor and
judgment, without directly copying or evasively
imitating the work of another
F However, we agree with petitioner that it was error for the
Court of Appeals to affirm the award of nominal
damages combined with temperate damages by the
Regional Trial Court of Makati. What respondents are
entitled to is an award for temperate damages, not
nominal damages. For although the exact amount of
damage or loss can not be determined with reasonable
certainty, the fact that there was infringement means
they suffered losses for which they are entitled to
moderate damages. We find that the award of
P50,000.00 as temperate damages fair and reasonable,
considering the circumstances herein as well as the
global coverage and reputation of private respondents
Levi Strauss & Company and Levi Strauss (Phil.), Inc.
3. WHEN DOES COPYRIGHT VEST?
Santos vs. McCullough Printing Co., GR No. 19439,
October 31, 1964, 12 SCRA 321
F An intellectual creation should be copyrighted within the
periods provided by law, failure of which renders
such creation public property.
F For there to be a limited publications or prohibition, such
fact must appear on the face of the design. When the
purpose is a limited publication, but the effect is a
general publication, irrevocable rights thereon
become vested in the general public. Exclusive right of
owner to publish limited to first publication unless
copyrighted.-- The author of a literary composition has a
right to the first publication thereof. He has a right to
determine whether it shall be published at all, and if
published, when, where, by whom, and in what form.
This exclusive right is confined to the first publication.
Once 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 copyright law.
Filipino Society of Composers v. Tan, G.R. No. L-36402,
March 16, 1987, 148 SCRA 461
Music provided by a combo in a restaurant constitutes public
performance for profit within the meaning of the
Copyright Law.In the case at bar, it is admitted that the
patrons of the restaurant in question pay only for the
food and drinks and apparently not for listening to the
music. As found by the trial court, the music provided is
for the purpose of entertaining and amusing the
customers in order to make the establishment more
attractive and desirable. It will be noted that for the
playing and singing the musical compositions involved,
the combo was paid as independent contractors by the
appellant . It is therefore obvious that the expenses
entailed thereby are added to the overhead of the
restaurant which are either eventually charged in the
price of the food and drinks or to the overall total of
additional income produced by the bigger volume of
business which the entertainment was programmed to
attract. Consequently, it is beyond question that the
playing and singing of the combo in defendant-
appellee's restaurant constituted performance for
profit contemplated by the Copyright Law. (Act 3134
amended by P.D. No. 49, as amended).
If the general public has made use of the object sought to be
copyrighted within 30 days prior to the copyright
application, the law deems the object to have been
donated to the public domain and can no longer be
copyrighted as in the case of the songs at bar. The
Supreme Court has ruled that "Paragraph 33 of Patent
Office Administrative Order No. 3 (as amended, dated
September 18, 1947) entitled 'Rules of Practice in the
Philippines Patent Office relating to the Registration of
Copyright Claims' promulgated pursuant to Republic Act
165, provides among other things that an intellectual
creation should be copyrighted thirty (30) days after its
publication, if made in Manila, or within the (60) days if
made elsewhere, failure of which renders such creation
public property." (Santos v. McCullough Printing
Company, 12 SCRA 324-325 [1964]. Indeed, if the
general public has made use of the object sought to be
copyrighted for thirty (30) days prior to the copyright
application the law deems the object to have been
donated to the public domain and the same can no
longer be copyrighted.
A careful study of the records reveals that the song "Dahil Sa
Iyo" which was registered on April 20, 1956 (Brief for
Appellant, p. 10) became popular in radios, juke boxes,
etc. long before registration (TSN, May 28, 1968, pp. 3-
5; 25) while the song "The Nearness Of You" registered
on January 14, 1955 (Brief for Appellant, p. 10) had
become popular twenty five (25) years prior to 1968,
(the year of the hearing) or from 1943 (TSN, May 28,
1968, p. 27) and the songs "Sapagkat Ikaw Ay Akin" and
"Sapagkat Kami Ay Tao Lamang" both registered on July
10, 1966, appear to have been known and sang by the
witnesses as early as 1965 or three years before the
hearing in 1968. The testimonies of the witnesses at the
hearing of this case on this subject were unrebutted by
the appellant. (Ibid, pp. 28; 29 and 30). Under the
circumstances, it is clear that the musical compositions
in question had long become public property, and are
therefore beyond the protection of the Copyright Law.
Section 2., PD 49. The Rights granted by this
Decree shall, from the moment
of creation, subsist with respect to any of the
following classes of works:
(A) Books, including composite and encyclopedic works,
manuscripts, directories, and gazetteers;
(B) Periodicals, including pamphlets and newspapers;
(C) Lectures, sermons, addresses, dissertations prepared
for oral delivery;
(D) Letters;
(E) Dramatic or dramatico-musical compositions;
choreographic works and entertainments in dumb
shows, the acting form of which is fixed in writing or
otherwise;
(F) Musical compositions, with or without words;
(G) Works of drawing, painting, architecture, sculpture,
engraving, lithography, and other works of art; models
or designs for works of art;
(H) Reproductions of a work of art;
(I) Original ornamental designs or models for articles of
manufacture, whether or not patentable, and other
works of applied art;
(J) Maps, plans, sketches, and charts;
(K) Drawings, or plastic works of a scientific or technical
character;
(L) Photographic works and works produced by a
process analogous to photography; lantern slides;
(M) Cinematographic works and works produced by a
process analogous to cinematography or any process for
making audio-visual recordings;
(N) Computer programs;
(O) Prints, pictorial, illustration, advertising copies,
labels, tags, and box wraps;
(P) Dramatization, translations, adaptations,
abridgements, arrangements and other alterations of
literary, musical or artistic works or of works of the
Philippine Government as herein defined, which shall be
protected as provided in Section 8 of this Decree.
(Q) Collection of literary, scholarly, or artistic works or of
works referred to in Section 9 of this Decree which by
reason of the selection and arrangement of their
contents constitute intellectual creations, the same to
be protected as such in accordance with Section 8 of
this Decree.
(R) Other literary, scholarly, scientific and artistic works.
Sec. 172 and 172.2, IPC
Rule 7,CSR
Sec. 2. Effects of Registration and Deposit of Work.
The registration and deposit of the work is purely for
recording the date of registration and deposit of the
work and shall not be conclusive as to copyright
ownership or the term of copyrights or the rights of the
copyright owner, including neighboring rights.
SECTION 3. Effect of Non-Registration and Deposit. If,
within three (3) weeks after receipt by the copyright
owner of a written demand from TNL and/or SCL for the
deposit of a work listed in Rule 5 Sec. 4 of this SAR, the
required copies are not delivered and the fee for
registration and deposit is not paid, the copyright
owner, his assignee, or his agent shall be liable to pay a
fine equivalent to the required fee per month of delay
and to pay to TNL and SCL the amount of the retail price
of the best edition of the work. SECTION 4. Other Laws.
Upon issuance of a certificate of deposit, the
copyright owner shall be exempt from making
additional deposits of the work with TNL or the SCL
under other laws.
4. SCOPE OF COPYRIGHT
Sec. 172-172.2,IPC
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)
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.
Sec. 175. Unprotected Subject Matter. - Notwithstanding
the provisions of 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 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 information; or any
official text of a legislative, administrative or legal
nature, as well as any official translation thereof. (n)
Sec. 176. Works of the Government. -
176.1. No copyright shall subsist in any work of the
Government of the Philippines. However, prior approval
of the 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, impose as a condition the payment of royalties.
No prior approval or conditions shall be required for the
use of any purpose of statutes, rules and regulations,
and speeches, lectures, sermons, addresses, and
dissertations, pronounced, read or rendered in courts of
justice, before administrative agencies, in deliberative
assemblies and in meetings of public character. (Sec. 9,
First Par., P. D. No. 49)
176.2. The Author of speeches, lectures, sermons,
addresses, and dissertations mentioned in the
preceding paragraphs shall have the exclusive right of
making a collection of his works. (n)
176.3. Notwithstanding the foregoing provisions, the
Government is not precluded from receiving and
holding copyrights transferred to it by assignment,
bequest or otherwise; nor shall publication or
republication by the government in a public document
of any work in which copy right is subsisting be taken to
cause any abridgment or annulment of the copyright or
to authorize any use or appropriation of such work
without the consent of the copyright owners. (Sec. 9,
Third Par., P. D. No. 49)
FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE
SERVICE CO
F Copyright treats facts and factual compilations in a wholly
consistent manner. Facts, whether alone or as part of a
compilation, are not original and therefore may not be
copyrighted. A factual compilation is eligible for
copyright if it features an original selection or
arrangement of facts, but the copyright is limited to the
particular selection or arrangement. In no event may
copyright extend to the facts themselves.
To qualify for copyright protection, a work must be original
to the author, which means that the work was
independently created by the author, and it possesses
at least some minimal degree of creativity. A work may
be original even thought it closely resembles other
works so long as the similarity is fortuitous, not the
result of copying.
WON the names, addresses, and phone numbers in a
telephone directory able to be copyrighted.
No. Facts cannot be copyrighted, however
compilations of facts can generally be copyrighted.
To qualify for copyright protection, a work must
be original to the author, which means that the work
was independently created by the author, and it
possesses at least some minimal degree of creativity. A
work may be original even thought it closely resembles
other works so long as the similarity is fortuitous, not
the result of copying.
Facts are not original. The first person to find
and report a particular fact has not created the fact; he
has merely discovered its existence. Facts may not be
copyrighted and are part of the public domain available
to every person.
Factual compilations may possess the requisite
originality. The author chooses what facts to include, in
what order to place them, and how to arrange the
collected date so they may be effectively used by
readers. Thus, even a directory that contains no written
expression that could be protected, only facts, meets
the constitutional minimum for copyright protection if it
features an original selection or arrangement. But, even
though the format is original, the facts themselves do
not become original through association. The copyright
on a factual compilation is limited to formatting. The
copyright does not extend to the facts themselves.
To establish copyright infringement, two
elements must be proven: ownership of a valid
copyright and copying of constituent elements of the
work that are original. The first element is met in this
case because the directory contains some forward text.
As to the second element, the information contains
facts, which cannot be copyrighted. They existed before
being reported and would have continued to exist if a
telephone directory had never been published. There is
no originality in the formatting, so there is no
copyrightable expression. Thus, there is no copyright
infringement.
The primary objective of copyright is not to reward the labor
of authors, but "to promote the Progress of Science and
useful Arts."
Joaquin v. Drilon G.R No. 108946, 28 Jan 1999), 302
SCRA 225
The format of a show is not a copyrightable under Section 2
of P.D. 49--- To begin with, the format of a show is not
copyrightable. Section 2 of P.D. No. 49,[10] otherwise
known as the DECREE ON INTELLECTUAL PROPERTY,
enumerates the classes of work entitled to copyright
protection, to wit: Section 2. The rights granted by this
 Decree shall, from the moment of creation, subsist with
respect to any of the following classes of works:
(A) Books, including composite and cyclopedic works,
manuscripts, directories, and gazetteers;
(B) Periodicals, including pamphlets and newspapers;
(C) Lectures, sermons, addresses, dissertations prepared
for oral delivery;
(D) Letters;
(E) Dramatic or dramatico-musical compositions;
choreographic works and entertainments in dumb
shows, the acting form of which is fixed in writing or
otherwise;
(F) Musical compositions, with or without words;
(G) Works of drawing, painting, architecture, sculpture,
engraving, lithography, and other works of art; models
or designs for works of art;
(H) Reproductions of a work of art;
(I) Original ornamental designs or models for articles of
manufacture, whether or not patentable, and other
works of applied art;
(J) Maps, plans, sketches, and charts;
(K) Drawings or plastic works of a scientific or technical
character;
(L) Photographic works and works produced by a
process analogous to photography; lantern slides;
(M) Cinematographic works and works produced by a
process analogous to cinematography or any process for
making audio-visual recordings;
(N) Computer programs;
(O) Prints, pictorial illustrations advertising copies,
labels, tags, and box wraps;
(P) Dramatizations, translations, adaptations,
abridgements, arrangements and other alterations of
literary, musical or artistic works or of works of the
Philippine government as herein defined, which shall be
protected as provided in Section 8 of this Decree.
(Q) Collections of literary, scholarly, or artistic works or
of works referred to in Section 9 of this Decree which by
reason of the selection and arrangement of their
contents constitute intellectual creations, the same to
be protected as such in accordance with Section 8 of
this Decree.
(R) Other literary, scholarly, scientific and artistic works.
This provision is substantially the same as 172 of the
INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES
(R.A. No. 8293)
F 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 afforded by the law cannot
be extended to cover them.Copyright, in the strict sense
of the term, is purely a statutory right. It is a new or
independent right granted by the statute, and not
simply a pre-existing right regulated by the statute.
Being a statutory grant, the rights are only such as the
statute confers, and may be obtained and enjoyed only
with respect to the subjects and by the persons, and on
terms and conditions specified in the statute. Since . . .
copyright in published works is purely a statutory
creation, a copyright may be 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 there is
no copyright except that which is both created and
secured by act of Congress.
Copyright, in a strict sense, is purely a statutory right. P.D.
No. 49, 2, in enumerating what are subject to
copyright, refers to finished works and not to
concepts. The copyright does not extend to an idea,
procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form
in which it is described, explained, illustrated, or
embodied in such work. Thus, the new INTELLECTUAL
PROPERTY CODE OF THE PHILIPPINES provides: Sec.
175. Unprotected Subject Matter. - Notwithstanding the
provisions of 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 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 information; or any
official text of a legislative, administrative or legal
nature, as well as any official translation thereof.
The copyright does not extend to the general concept or
format of its dating game show. What then is the
subject matter of petitioners copyright? This Court is of
the opinion that petitioner BJPIs copyright covers
audio-visual recordings of each episode of Rhoda and
Me, as falling within the class of works mentioned in
P.D. 49, 2(M), to wit: Cinematographic works and
works produced by a process analogous to
cinematography or any process for making audio-visual
recordings; The copyright does not extend to the
general concept or format of its dating game show.
Accordingly, by the very nature of the subject of
petitioner BJPIs copyright, the investigating prosecutor
should have the opportunity to compare the videotapes
of the two shows.
Mere description by words of the general format of the two
dating game shows is insufficient; the presentation of
the master videotape in evidence was indispensable to
the determination of the existence of probable cause.
As aptly observed by respondent Secretary of Justice: A
television show includes more than mere words can
describe because it involves a whole spectrum of visuals
and effects, video and audio, such that no similarity or
dissimilarity may be found by merely describing the
general copyright/format of both dating game shows.
5. WHO OWNS COPYRIGHT?
OWNERSHIP OF COPYRIGHT
Sec. 178. Rules on Copyright Ownership. - Copyright
ownership shall be governed by the following rules:
178.1. Subject to the provisions of this section, in the
case of original literary and artistic works, copyright
shall belong to the author of the work;
178.2. In the case of works of joint authorship, the co-
authors shall be the original owners of the copyright
and in the absence of agreement, their rights shall be
governed by the rules on co-ownership. If, however, a
work of joint authorship consists of parts that can be
used separately and the author of each part can be
identified, the author of each part shall be the original
owner of the copyright in the part that he has created;
178.3. In the case of work created by an author during
and in the course of his employment, the copyright shall
belong to:
(a) The employee, if the creation of the object of
copyright is not a part of his regular duties even if the
employee uses the time, facilities and materials of the
employer.
(b) The employer, if the work is the result of the
performance of his regularly-assigned duties, unless
there is an agreement, express or implied, to the
contrary.
178.4. In the case of a work-commissioned by a person
other than an employer of the author and who pays for
it and the work is made in pursuance of the
commission, the person who so commissioned the work
shall have ownership of work, but the copyright thereto
shall remain with the creator, unless there is a written
stipulation to the contrary;
178.5. In the case of audiovisual work, the copyright
shall belong to the producer, the author of the scenario,
the composer of the music, the film director, and the
author of the work so adapted. However, subject to
contrary or other stipulations among the creators, the
producers shall exercise the copyright to an extent
required for the exhibition of the work in any manner,
except for the right to collect performing license fees for
the performance of musical compositions, with or
without words, which are incorporated into the work;
and
178.6. In respect of letters, the copyright shall belong to
the writer subject to the provisions of Article 723 of the
Civil Code. (Sec. 6, P. D. No. 49a)
Sec. 179. Anonymous and Pseudonymous Works. - For
purposes of this Act, the 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 contrary appears, or the
pseudonyms or adopted name leaves no doubts as to
the authors identity, or if the author of the anonymous
works discloses his identity. (Sec. 7, P. D. 49)
Sec. 174, IPC
Art. 722., CC. The author and the composer, mentioned
in Nos. 1 and 2 of the preceding article, shall have the
ownership of their creations even before the
publication of the same. Once their works are
published, their rights are governed by the Copyright
laws.
The painter, sculptor or other artist shall have
dominion over the product of his art even before it is
copyrighted.
The scientist or technologist has the ownership of his
discovery or invention even before it is patented. (n)
Art. 723. Letters and other private communications in
writing are owned by the 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 authorize their
publication or dissemination if the public good or the
interest of justice so requires.
Art. 520, CC. A trade-mark or trade-name duly
registered in the proper government bureau or office is
owned by and pertains to the person, corporation, or
firm registering the same, subject to the provisions of
special laws.
6. DURATION OF COPYRIGHT
Sec. 213. Term of Protection. - 213.1. Subject to the
provisions of Subsections 213.2 to 213.5, the copyright
in works under Sections 172 and 173 shall be protected
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)
213.2. In case of works of joint authorship, the
economic rights shall be protected during the life of the
last surviving author and for fifty (50) years after his
death. (Sec. 21, Second Sentence, P.D. No. 49)
213.3. In case of anonymous or pseudonymous works,
the copyright shall be protected for fifty (50) years from
the date on which the work was first lawfully
published: Provided, That where, before the expiration
of the said period, the author's identity is revealed or is
no longer in doubt, the provisions of Subsections 213.1
and 213.2 shall 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, P. D. No. 49)
213.4. In case of works of applied art the protection
shall be for a period of twenty-five (25) years from the
date of making. (Sec. 24(B), P. D. No. 49a)
213.5. In case of photographic works, the protection
shall be for fifty (50) years from publication of the work
and, if unpublished, fifty (50) years from the
making. (Sec. 24(C), P. D. 49a)
213.6. In case of audio-visual works including those
produced by process analogous to 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. 24(C), P. D.
No. 49a)
Sec. 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
of publication, but such terms shall always be deemed
to begin on the first day of January of the year following
the event which gave rise to them. (Sec. 25, P. D. No. 49)
7. Limitations on Copyright
Sec. 176. Works of the Government. -
176.1. No copyright shall subsist in any work of the
Government of the Philippines. However, prior approval
of the 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, impose as a condition the payment of royalties.
No prior approval or conditions shall be required for the
use of any purpose of statutes, rules and regulations,
and speeches, lectures, sermons, addresses, and
dissertations, pronounced, read or rendered in courts of
justice, before administrative agencies, in deliberative
assemblies and in meetings of public character. (Sec. 9,
First Par., P. D. No. 49)
176.2. The Author of speeches, lectures, sermons,
addresses, and dissertations mentioned in the
preceding paragraphs shall have the exclusive right of
making a collection of his works. (n)
176.3. Notwithstanding the foregoing provisions, the
Government is not precluded from receiving and
holding copyrights transferred to it by assignment,
bequest or otherwise; nor shall publication or
republication by the government in a public document
of any work in which copy right is subsisting be taken to
cause any abridgment or annulment of the copyright or
to authorize any use or appropriation of such work
without the consent of the copyright owners. (Sec. 9,
Third Par., P. D. No. 49)
171.11. A "work of the Government of the Philippines" is
a work created by an officer or employee of the
Philippine Government or any of its subdivisions and
instrumentalities, including government-owned or
controlled corporations as part of his regularly
prescribed official duties.
SEC. 11., RA 10372. Section 184.1. of Republic Act No.
8293 is hereby amended to read as follows:
SEC. 184. Limitations on Copyright. x x x
(1) The reproduction or distribution of published
articles or materials in a specialized format exclusively
for the use of the blind, visually- and reading-impaired
persons: Provided, That such copies and distribution
shall be made on a nonprofit basis and shall indicate the
copyright owner and the date of the original
publication.
184.2., RA 8293. The provisions of this section shall be
interpreted in such a way as to allow the 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
interest.
SEC. 12., RA 10372. Section 185.1. of Republic Act No.
8293 is hereby to read as follows:
SEC. 185. Fair Use of a Copyrighted Work. 185.1. The
fair use of a copyrighted work for criticism, comment,
news reporting, teaching including limited number of
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
a computer program to achieve the interoperability of
an independently created computer program with other
programs may also constitute fair use under the criteria
established by this section, to the extent that
decompilation is done for the purpose of obtaining the
information necessary to achieve such interoperability.
185.2, RA 8293 The fact that a work is unpublished shall
not by itself bar a finding of fair use if such finding is
made upon consideration of all the above factors.
Sec.186. RA 8293. Work of Architecture. - Copyright in a
work of architecture shall include the right to control
the erection of any building which reproduces the
whole or a substantial part of the work either in its
original form or in any form recognizably derived from
the original; Provided, That the copyright in any such
work shall not include the right to control the
reconstruction or rehabilitation in the same style as the
original of a building to which the copyright relates.
Sec.187. RA 8293.
Reproduction of Published Work. -
187.1. Notwithstanding the provision of Section 177,
and subject to the provisions of Subsection 187.2, the
private reproduction of a published work in a single
copy, where the reproduction is made by a natural
person exclusively for research and private study, shall
be permitted, without the authorization of the owner of
copyright in the work.
187.2. The permission granted under Subsection 187.1
shall not extend to the reproduction of:
(a) A work of architecture in form of building or other
construction;
(b) An entire book, or a substantial past thereof, or of a
musical work in which graphics form by reprographic
means;
(c) A compilation of data and other materials;
(d) A computer program except as provided in Section
189; and
(e) Any work in cases where reproduction would
unreasonably conflict with a normal exploitation of the
work or would otherwise unreasonably prejudice the
legitimate interests of the author.
SEC. 13. Section 188.1 of Republic Act No. 8293 is
hereby amended to read as follows:
SEC. 188. Reprographic Reproduction by Libraries.
188.1. Notwithstanding the provisions of Subsection
177.1., any library or achieve whose activities are not
for profit may, without the authorization of the
copyright owner, make a limited number of copies of
the work, as may be necessary for such institutions to
fulfill their mandate, by reprographic reproduction:
x x x(a) Where the work by reason of its fragile
character or rarity cannot be lent to user in its original
form;
(b) Where the works are isolated articles contained in
composite works or brief portions of other published
works and the reproduction is necessary to supply
them; when this is considered expedient, to person
requesting their loan for purposes of research or study
instead of lending the volumes or booklets which
contain them; and
(c) Where the making of such limited copies is in order
to preserve and, if necessary in the event that it is lost,
destroyed or rendered unusable, replace a copy, or to
replace, in 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.
Sec. 189. Reproduction of Computer Program. -
189.1. Notwithstanding the provisions of Section 177,
the reproduction in one (1) back-up copy or adaptation
of a computer program shall be permitted, without the
authorization of the author of, or other owner of
copyright in, a computer program, by the lawful owner
of that 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, and to the extent, for
which the computer program has been obtained; and
(b) Archival purposes, and, for the replacement of the
lawfully owned copy of the computer program in the
event that the lawfully obtained copy of the computer
program is lost, destroyed or rendered unusable.
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 be destroyed in the event that
continued possession of the copy of the computer
program ceases to be lawful.
189.3. This provision shall be without prejudice to the
application of Section 185 whenever appropriate.
SEC. 14. Sections 190.1. and 190.2. of Republic Act No.
8293 are deleted in their entirety.
SEC. 15. Section 190.3. of Republic Act No 8293 is
hereby renumbered and amended as the sole provision
under Section 190 to read as follows:
SEC. 190. Importation and Exportation of Infringing
Materials. Subject to the approval of the Secretary of
Finance, the Commissioner of Customs is hereby
empowered to make rules and regulations for
preventing the importation of infringing articles
prohibited under Part IV of this Act and under relevant
treaties and conventions to which the Philippines may
be a party and for seizing and condemning and
disposing of the same in case they are discovered after
they have been imported or before they are exported.
(Sec. 30, P.D. No. 49)
Rule 14 Limitations on Copyright SECTION 1. Public
Performance or Communication to the Public of Work
by Non-Profit Institution. The public performance or
the communication to the public of a work, in a place
where no admission fee is charged in respect of such
public performance or communication, by a club or
institution for charitable or educational purposes only,
whose aim is not profit-making, shall not constitute
infringement of copyright, if: (a) The works are limited
to non-dramatic literary works and non-copyrighted
musical compositions, and do not include audiovisual
works or computer programs; (b) The clubs or
institutions to which this subsection applies are limited
to those organized exclusively for charitable or
educational purposes; and if the following conditions
are satisfied: (i) No fee or compensation is paid to any
performers, promoters or organizers of the public
performance; (ii) There is no direct or indirect admission
charge to the place where the performance occurs; and
(iii) Admission to the performance is restricted to
persons who are, and for at least the preceding thirty
days have been, members in good standing of the club
or the institution for whose charitable or education
purposes the performance is being carried out. SECTION
2. Use in Judicial Proceedings or by Legal Practitioners.
Without prejudice to other exceptions to protection,
the use of copyrighted works as provided in the IPC for
the giving of professional advise by a legal practitioner
is limited to those uses directly connected to the
rendering of legal advice with respect to such works, or
to individuals, institutions, events or circumstances to
which the creation of exploitation of such works are
directly related. This exception does not apply to the
exercise of exclusive rights of copyright owners in legal
research materials, legal-related computer software,
legal-related online material, or the other works utilized
in the practice of law on a regular basis. SECTION 3.
Uses Compatible with Fair Use. To determine
whether use of a copyrighted work is compatible with
fair use, the criteria set forth in Sec. 185 of the IPC shall
be applied. SECTION 4. Fair Use and Decompilation of
Computer Software. An act of decompilation of
software may qualify for analysis under the fair use
provisions if it meets all of the criteria set out in the IPC,
viz: (a) It consist only of the reproduction of code and
translation of the forms of a computer program; (b) The
reproduction and translation are indispensable to obtain
information, such that information can be obtained in
no other way than through decompilation; (c) The
information is necessary in order to achieve
interoperability (i.e., interoperability cannot be achieved
without obtaining the information and without using
decompilation to obtain it); and (d) The interoperability
that is sought is between the decompiled program and
an independently created computer program (i.e., a
computer program that was created prior to and
without reference to the decompilation). If the above
criteria are satisfied, then the fair use factors set forth in
the IPC can be applied in order to decide whether or not
the decompilation, in the particular circumstances
involved, constitutes a fair use. The fact that a use is
decompilation (as defined by the statutory criteria)
creates no presumption that the use is fair. SECTION 5.
Effect on Value of the Work. The effect of the use
upon the value of the copyrighted work shall also
constitute a limitation on fair use of works, particularly
whenever their reproduction will affect their usefulness,
reliability, and validity such as psychological tests and
others of similar nature. Reproduction of these works
shall, therefore, need prior authority of the copyright
owner. SECTION 6. Reproduction or Communication to
the Public by Mass Media of Articles, Lecture, etc.
The reproduction or communication to the public by
mass media of articles, such as those publish in
newspapers or periodicals on current political, social,
economic, scientific, or religious topics, as well as
 lectures, addresses, and other works of the same
nature, which are delivered in public, shall not
constitute infringement of copyright if such use is for
information purposes and has not been expressly
reserved: Provided, that the source is clearly indicated
and that the use of the work should not unreasonably
prejudice the right holders legitimate interests.
CASES:
Filipino Society of Composers v. Tan, G.R. No. L-36402,
March 16, 1987, 148 SCRA 461
F Music provided by a combo in a restaurant constitutes public
performance for profit within the meaning of the
Copyright Law.In the case at bar, it is admitted that the
patrons of the restaurant in question pay only for the
food and drinks and apparently not for listening to the
music. As found by the trial court, the music provided is
for the purpose of entertaining and amusing the
customers in order to make the establishment more
attractive and desirable. It will be noted that for the
playing and singing the musical compositions involved,
the combo was paid as independent contractors by the
appellant . It is therefore obvious that the expenses
entailed thereby are added to the overhead of the
restaurant which are either eventually charged in the
price of the food and drinks or to the overall total of
additional income produced by the bigger volume of
business which the entertainment was programmed to
attract. Consequently, it is beyond question that the
playing and singing of the combo in defendant-
appellee's restaurant constituted performance for
profit contemplated by the Copyright Law. (Act 3134
amended by P.D. No. 49, as amended).
F If the general public has made use of the object sought to be
copyrighted within 30 days prior to the copyright
application, the law deems the object to have been
donated to the public domain and can no longer be
copyrighted as in the case of the songs at bar. The
Supreme Court has ruled that "Paragraph 33 of Patent
Office Administrative Order No. 3 (as amended, dated
September 18, 1947) entitled 'Rules of Practice in the
Philippines Patent Office relating to the Registration of
Copyright Claims' promulgated pursuant to Republic Act
165, provides among other things that an intellectual
creation should be copyrighted thirty (30) days after its
publication, if made in Manila, or within the (60) days if
made elsewhere, failure of which renders such creation
public property." (Santos v. McCullough Printing
Company, 12 SCRA 324-325 [1964]. Indeed, if the
general public has made use of the object sought to be
copyrighted for thirty (30) days prior to the copyright
application the law deems the object to have been
donated to the public domain and the same can no
longer be copyrighted.
F A careful study of the records reveals that the song "Dahil Sa
Iyo" which was registered on April 20, 1956 (Brief for
Appellant, p. 10) became popular in radios, juke boxes,
etc. long before registration (TSN, May 28, 1968, pp. 3-
5; 25) while the song "The Nearness Of You" registered
on January 14, 1955 (Brief for Appellant, p. 10) had
become popular twenty five (25) years prior to 1968,
(the year of the hearing) or from 1943 (TSN, May 28,
1968, p. 27) and the songs "Sapagkat Ikaw Ay Akin" and
"Sapagkat Kami Ay Tao Lamang" both registered on July
10, 1966, appear to have been known and sang by the
witnesses as early as 1965 or three years before the
hearing in 1968. The testimonies of the witnesses at the
hearing of this case on this subject were unrebutted by
the appellant. (Ibid, pp. 28; 29 and 30). Under the
circumstances, it is clear that the musical compositions
in question had long become public property, and are
therefore beyond the protection of the Copyright Law.
IN THE MATTER OF THE CHARGES A.M. No. 10-
7-17-SC
OF PLAGIARISM, ETC., AGAINST
ASSOCIATE JUSTICE MARIANO C.
DEL CASTILLO.10-12-10
In the Matter of the Charges of Plagiarism, etc. against
Associate Justice Mariano C. Del Castillo.
A.M. No. 10-7-17-SC
October 12, 2010
Facts:
An administrative disciplinary case was filed
against Supreme Court Justice Mariano C. Del Rosario
for plagiarism charges on the Isabelita C. Vinuya, et al.
v. Executive Secretary decision. Promulgated on April 28,
2010, the Vinuya Decision was dismissed with 13
Justices of this Court agreeing to the ruling.
The counsels for petitioners Vinuya, et al., Attys.
Harry Roque and Rommel Bagares, filed a Supplemental
Motion for Reconsideration on July 19, 2010 raising the
plagiarism allegedly committed by Justice del Castillo for
using the works of three foreign legal authors. Three
sources from foreign legal authors, an article published
in 2009 in the Yale Law Journal of International Law, a
book published by the Cambridge University Press in
2005, and an article published in the Case Western
Reserve Journal of International Law, were twisted and
used without proper attribution and made to look that
these sources support the judgements arguments in
dismissing their petition when in fact, these sources
even make a firm case for the Petitions claims.
Justice del Castillo wrote and distributed a letter
dated July 22, 2010 to the members of this Court as a
reply to this accusation. This letter was referred to the
Ethics and Ethical Standards Committee on July 27, 2010
which scheduled it as an administrative matter. Attys.
Roque and Bagares were required to comment on this
letter. After the parties memoranda, the committee
submitted its findings and recommendation to the
Court.
Issue:
Whether or not Justice del Castillo is guilty of
the plagiarism case.

Held:
The Court resolved to dismiss the plagiarism
charges against Justice del Castillo in a decision
dated October 12, 2010. The attributions were
accidentally deleted and were present in the original
drafts of Justice del Castillo. Malicious intent was viewed
as an essential element, as plagiarism is essentially a
form of fraud where intent to deceive is
inherent. Plagiarism as defined in Blacks Dictionary of
Law, the deliberate and knowing presentation of
another persons original ideas or creative expressions
as ones own. The Court declared that plagiarism
presupposes intent and a deliberate, conscious effort to
steal anothers work and pass it off as ones own.
Justice del Castillo never intended to claim as the
original author of the passages.
The Court, thus, declared that only errors [of
judges] tainted with fraud, corruption, or malice are
subject of disciplinary action and these were not
present in Justice del Castillos case; the failure was not
attended by any malicious intent not to attribute the
lifted passages to the foreign authors.
This case presents two issues:
1. Whether or not, in writing the opinion for the Court
in the Vinuya case, Justice Del Castillo plagiarized the
published works of authors Tams, Criddle-Descent, and
Ellis.
2. Whether or not Justice Del Castillo twisted the works
of these authors to make it appear that such works
supported the Courts position in the Vinuya decision.
RULING:
At its most basic, plagiarism means the theft of
another persons language, thoughts, or ideas. To
plagiarize, as it is commonly understood according to
Webster, is to take (ideas, writings, etc.) from (another)
and pass them off as ones own.[8] The passing off of the
work of another as ones own is thus an indispensable
element of plagiarism.
In the matter of the charges of plagiarism
against associate justice Castillo, 02-08-2011
But the Courts decision in the present case does not set
aside such norm. The decision makes this clear, thus:
To paraphrase Bast and Samuels, while the academic
publishing model is based on the originality of the
writers thesis, the judicial system is based on the
doctrine of stare decisis, which encourages courts to
cite historical legal data, precedents, and related studies
in their decisions. The judge is not expected to produce
original scholarship in every respect. The strength of a
decision lies in the soundness and general acceptance of
the precedents and long held legal opinions it draws
from.[4]
Original scholarship is highly valued in the academe and
rightly so. A college thesis, for instance, should contain
dissertations embodying results of original research,
substantiating a specific view.[5] This must be so since
the writing is intended to earn for the student an
academic degree, honor, or distinction. He earns no
credit nor deserves it who takes the research of others,
copies their dissertations, and proclaims these as his
own. There should be no question that a cheat deserves
neither reward nor sympathy.
But the policy adopted by schools of disregarding the
element of malicious intent found in dictionaries is
evidently more in the nature of establishing what
evidence is sufficient to prove the commission of such
dishonest conduct than in rewriting the meaning of
plagiarism. Since it would be easy enough for a student
to plead ignorance or lack of malice even as he has
copied the work of others, certain schools have adopted
the policy of treating the mere presence of such copied
work in his paper sufficient objective evidence of
plagiarism. Surely, however, if on its face the students
work shows as a whole that he has but committed an
obvious mistake or a clerical error in one of hundreds of
citations in his thesis, the school will not be so
unreasonable as to cancel his diploma.
In contrast, decisions of courts are not written to earn
merit, accolade, or prize as an original piece of work or
art. Deciding disputes is a service rendered by the
government for the public good. Judges issue decisions
to resolve everyday conflicts involving people of flesh
and blood who ache for speedy justice or juridical
beings which have rights and obligations in law that
need to be protected. The interest of society in written
decisions is not that they are originally crafted but that
they are fair and correct in the context of the particular
disputes involved. Justice, not originality, form, and
style, is the object of every decision of a court of law.
There is a basic reason for individual judges of whatever
level of courts, including the Supreme Court, not to use
original or unique language when reinstating the laws
involved in the cases they decide. Their duty is to apply
the laws as these are written. But laws include, under
the doctrine of stare decisis, judicial interpretations of
such laws as are applied to specific situations. Under
this doctrine, Courts are to stand by precedent and not
to disturb settled point. Once the Court has laid down
a principle of law as applicable to a certain state of facts,
it will adhere to that principle, and apply it to all future
cases, where facts are substantially the same; regardless
of whether the parties or property are the same.[6]
And because judicial precedents are not always clearly
delineated, they are quite often entangled in apparent
inconsistencies or even in contradictions, prompting
experts in the law to build up regarding such matters a
large body of commentaries or annotations that, in
themselves, often become part of legal writings upon
which lawyers and judges draw materials for their
theories or solutions in particular cases. And, because of
the need to be precise and correct, judges and
practitioners alike, by practice and tradition, usually lift
passages from such precedents and writings, at times
omitting, without malicious intent, attributions to the
originators.
Is this dishonest? No. Duncan Webb, writing for the
International Bar Association puts it succinctly. When
practicing lawyers (which include judges) write about
the law, they effectively place their ideas, their
language, and their work in the public domain, to be
affirmed, adopted, criticized, or rejected. Being in the
public domain, other lawyers can thus freely use these
without fear of committing some wrong or incurring
some liability. Thus:
The tendency to copy in law is readily explicable. In law
accuracy of words is everything. Legal disputes often
centre round the way in which obligations have been
expressed in legal documents and how the facts of the
real world fit the meaning of the words in which the
obligation is contained. This, in conjunction with the
risk-aversion of lawyers means that refuge will often be
sought in articulations that have been tried and tested.
In a sense therefore the community of lawyers have
together contributed to this body of knowledge,
language, and expression which is common property
and may be utilized, developed and bettered by anyone.
[7]
The implicit right of judges to use legal materials
regarded as belonging to the public domain is not
unique to the Philippines. As Joyce C. George, whom
Justice Maria Lourdes Sereno cites in her dissenting
opinion, observed in her Judicial Opinion Writing
Handbook:
A judge writing to resolve a dispute, whether trial or
appellate, is exempted from a charge of plagiarism even
if ideas, words or phrases from a law review article,
novel thoughts published in a legal periodical or
language from a partys brief are used without giving
attribution. Thus judges are free to use whatever
sources they deem appropriate to resolve the matter
before them, without fear of reprisal. This exemption
applies to judicial writings intended to decide cases for
two reasons: the judge is not writing a literary work and,
more importantly, the purpose of the writing is to
resolve a dispute. As a result, judges adjudicating cases
are not subject to a claim of legal plagiarism.[8]
If the Court were to inquire into the issue of plagiarism
respecting its past decisions from the time of Chief
Justice Cayetano S. Arellano to the present, it is likely to
discover that it has not on occasion acknowledged the
originators of passages and views found in its decisions.
These omissions are true for many of the decisions that
have been penned and are being penned daily by
magistrates from the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional
Trial Courts nationwide and with them, the municipal
trial courts and other first level courts. Never in the
judiciarys more than 100 years of history has the lack of
attribution been regarded and demeaned as plagiarism.
This is not to say that the magistrates of our courts are
mere copycats. They are not. Their decisions analyze the
often conflicting facts of each case and sort out the
relevant from the irrelevant. They identify and
formulate the issue or issues that need to be resolved
and evaluate each of the laws, rulings, principles, or
authorities that the parties to the case invoke. The
decisions then draw their apt conclusions regarding
whether or not such laws, rulings, principles, or
authorities apply to the particular cases before the
Court. These efforts, reduced in writing, are the product
of the judges creativity. It is hereactually the
substance of their decisionsthat their genius,
originality, and honest labor can be found, of which they
should be proud.
In Vinuya, Justice Del Castillo examined and summarized
the facts as seen by the opposing sides in a way that no
one has ever done. He identified and formulated the
core of the issues that the parties raised. And when he
had done this, he discussed the state of the law relevant
to their resolution. It was here that he drew materials
from various sources, including the three foreign
authors cited in the charges against him. He compared
the divergent views these present as they developed in
history. He then explained why the Court must reject
some views in light of the peculiar facts of the case and
applied those that suit such facts. Finally, he drew from
his discussions of the facts and the law the right solution
to the dispute in the case. On the whole, his work was
original. He had but done an honest work.
The Court will not, therefore, consistent with
established practice in the Philippines and elsewhere,
dare permit the filing of actions to annul the decisions
promulgated by its judges or expose them to charges of
plagiarism for honest work done.
This rule should apply to practicing lawyers as well.
Counsels for the petitioners, like all lawyers handling
cases before courts and administrative tribunals, cannot
object to this. Although as a rule they receive
compensation for every pleading or paper they file in
court or for every opinion they render to clients, lawyers
also need to strive for technical accuracy in their
writings. They should not be exposed to charges of
plagiarism in what they write so long as they do not
depart, as officers of the court, from the objective of
assisting the Court in the administration of justice.
As Duncan Webb said:
In presenting legal argument most lawyers will have
recourse to either previous decisions of the courts,
frequently lifting whole sections of a judges words to
lend weight to a particular point either with or without
attribution. The words of scholars are also sometimes
given weight, depending on reputation. Some
encyclopaedic works are given particular authority. In
England this place is given to Halsburys Laws of England
which is widely considered authoritative. A lawyer can
do little better than to frame an argument or claim to fit
with the articulation of the law in Halsburys. While in
many cases the very purpose of the citation is to claim
the authority of the author, this is not always the case.
Frequently commentary or dicta of lesser standing will
be adopted by legal authors, largely without attribution.
The converse point is that originality in the law is viewed
with skepticism. It is only the arrogant fool or the truly
gifted who will depart entirely from the established
template and reformulate an existing idea in the belief
that in doing so they will improve it. While over time
incremental changes occur, the wholesale abandonment
of established expression is generally considered
foolhardy.[9]
as it finally appeared in the Vinuya decision still showed
on their face that the lifted ideas did not belong to
Justice Del Castillo but to others. He did not pass them
off as his own.
With our ruling, the Court need not dwell long on
petitioners allegations that Justice Del Castillo had also
committed plagiarism in writing for the Court his
decision in another case, Ang Ladlad v. Commission on
Elections.[10] Petitioners are nit-picking. Upon close
examination and as Justice Del Castillo amply
demonstrated in his comment to the motion for
reconsideration, he in fact made attributions to
passages in such decision that he borrowed from his
sources although they at times suffered in formatting
lapses.
Considering its above ruling, the Court sees no point in
further passing upon the motion of the Integrated Bar
of the Philippines for leave to file and admit motion for
reconsideration-in-intervention dated January 5, 2011
and Dr. Peter Payoyos claim of other instances of
alleged plagiarism in the Vinuya decision.
ACCORDINGLY, the Court DENIES petitioners motion for
reconsideration for lack of merit.

The Court probably should not have entertained at all

the charges of plagiarism against Justice Del Castillo,
coming from the losing party. But it is a case of first SO ORDERED.
impression and petitioners, joined by some faculty
members of the University of the Philippines school of
law, have unfairly maligned him with the charges of
plagiarism, twisting of cited materials, and gross neglect
for failing to attribute lifted passages from three foreign
authors. These charges as already stated are false,
applying the meaning of plagiarism as the world in
general knows it.

True, Justice Del Castillo failed to attribute to the foreign

authors materials that he lifted from their works and
used in writing the decision for the Court in the Vinuya
case. But, as the Court said, the evidence as found by its
Ethics Committee shows that the attribution to these
authors appeared in the beginning drafts of the
decision. Unfortunately, as testified to by a highly
qualified and experienced court-employed researcher,
she accidentally deleted the same at the time she was
cleaning up the final draft. The Court believed her since,
among other reasons, she had no motive for omitting
the attribution. The foreign authors concerned, like the
dozens of other sources she cited in her research, had
high reputations in international law.

Notably, those foreign authors expressly attributed the

controversial passages found in their works to earlier
writings by others. The authors concerned were not
themselves the originators. As it happened, although
the ponencia of Justice Del Castillo accidentally deleted
the attribution to them, there remained in the final draft
of the decision attributions of the same passages to the
earlier writings from which those authors borrowed
their ideas in the first place. In short, with the remaining
attributions after the erroneous clean-up, the passages