Copyright Notes
Copyright Notes
Copyright Notes
COLLEGE OF LAW
COPYRIGHT LECTURE NOTES
I.
Concept Intellectual property Intellectual property (IP) refers to
creations of the mind: inventions, literary and artistic works, and symbols,
names,
images,
and
designs
used
in
commerce.
[WIPO,
http://www.wipo.int/about-ip/en/]
Intellectual Property Rights - property rights which result from the physical
manifestation of original thought (Ballentine's Legal Dictionary, 3rd edition)
Classification of Intellectual Property Rights:
a.) Copyright Copyright is the legal protection extended to the owner
of
the
rights
in
an
original
work.
[IPO
http://www.ipophil.gov.ph/index.php/copyright/about-ownership-andrights]
A property right in an original work of authorship (such as a literary,
musical, artistic, photographic, or film work) fixed in any tangible medium
of expression, giving the holder the exclusive right to reproduce, adapt,
distribute, perform and display the work [Blacks Law Dictionary, 7 th
edition Abridged]
The scope of copyright is confined to literary or artistic works which are
original intellectual creations in the literary and artistic domain protected
from the moment of their intellectual creation [Elidad Kho vs Court of
Appeals]
b.)Trademarks "any visible sign capable of distinguishing goods or
services [Sec. 121.1, R.A. 8293]
A "trademark" is defined under R.A. 166, the Trademark Law, as including
"any word, name, symbol, emblem, sign or device or any combination
thereof adopted and used by a manufacturer or merchant to identify his
goods and distinguish them from those manufactured, sold or dealt in by
others [Mirpuri vs CA, G.R. No. 114508. November 19, 1999]
c.) Patents - A patent is an exclusive right granted for an invention,
which is a product or a process that provides, in general, a new way of
doing something, or offers a new technical solution to a problem. In order
to be patentable, the invention must fulfil certain conditions[WIPO
http://www.wipo.int/patentscope/en/patents]
Patentable inventions - 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 [ Elidad Kho vs Court of Appeals]
II. ORGANIZATIONAL STRUCTURE OF THE INTELLECTUAL PROPERTY
OFFICE
Read: Sec. 1 to 19 of R.A. 8293 as amended by R.A. 10372
7 Bureaus in the IPO:
a.)The Bureau of Patents; b.)The Bureau of Trademarks; c.)The Bureau of
Legal Affairs; d.) The Documentation, Information and Technology Transfer
Bureau; e)The Management Information System and EDP Bureau; f) The
Administrative, Financial and Personnel Services, g.) Bureau of Copyright
(added under R.A. 10372)
III. SOURCES OF COPYRIGHT/IP LAWS:
a.)Constitution (Article XIV, Sec. 13 of the Constitution)
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2.) Ching vs. Salinas, G.R. No. 161295, June 29, 2005
-utility model vs copyright
3.) LAKTAW VS PAGLINAWAN 44 PHIL 855 (1918)
subject: Spanish -Tagalog Dictionary
- "nobody may reproduce another person's work, without
the consent of his owner, or even to annotate or add
something to it or to improve any edition thereof"
E. What is NOT protected nor a subject of copyright? Sec. 175
1.ideas
2. procedure, system, method, operation,
4.concept, principle, discovery or mere data as such, even if they are
expressed, explained, illustrated or embodied in a work;
5. news of the day and other miscellaneous facts having the character
of mere items of press information;
6. or any official text of a legislative, administrative or legal nature, as
well as any official
translation thereof
7. works of the government (sec 178)
CASES: - Joaquin, Jr. vs. Drilon, 302 SCRA 225 (1999)
Legal issue: Whether or not a format of a game show is copyrightable
F. Exclusive rights of a copyright owner/holder
Economic Rights vs Moral Rights
Economic rights - Sec. 177
xxx copyright or economic rights shall consist of the exclusive right to
carry out, authorize or prevent the following acts:
1. Reproduction of the work or substantial portion of the work;
2. Dramatization, translation, adaptation, abridgment, arrangement or
other transformation of the work;
3. The first public distribution of the original and each copy of the work
by sale or other forms of transfer of ownership;
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;
5. Public display of the original or a copy of the work;
6. Public performance of the work; and
7. Other communication to the public of the work
CASES:
- Pearl & Dean Inc. vs. Shoemart Inc., G.R. No. 148222, August
15, 2003
subject: light box
differentiate copyright vs patents, utility models
Old doctrines
-Filipino Society of Composers vs. Tan, 148 SCRA 461 (1987)
: "it is beyond question that the playing and singing of the
combo in defendantappellee's restaurant constituted performance
for profit contemplated by the
Copyright Law."
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take note :unfortunately in this case the S.C. ruled that the song "Dahil
sa Iyo" had long become public property. The ruling is not applicable
under our current
laws.
-Maglalang Santos vs., McCullough Printing, 12 SCRA 321
(1964)
:requirement of previous registration not applicable under the
new laws (R.A.8293)
Moral rights Sec. 193
1. Right of Attribution - right to be recognized as author of a literary
work - To require that the authorship of the works be attributed to him,
in particular, the right that his name, as far as practicable, be indicated
in a prominent
way on the copies, and in connection with the
public use of his work;
2. Right to Alteration - right to make alterations of his work prior to
publication or
to withhold it from publication.
3. Right to Integrity - right to object to distortion, mutilation or other
modification
of his literary or artistic work, or other derogatory actions
which would prejudice his honor or reputation
4. Right to prohibit the use of his name - this applies to work not
of his own creation or to a distorted version of his work.
G. Limitations to the exercise of copyright
Read: Sec. 184 and 185
What is not considered copyright infringement? Some examples:
1. Performance or recitation of a work if done privately or for religious or
charitable purposes
2. making some quotations of a published work provided that the source and
name of the author is acknowledged.
3.
dissemination of information to the public through newspapers,
magazines, t.v. broadcasts etc.
4. Fair use as defined under Sec. 185
-a legal doctrine that provides that portions of copyrighted materials
may be used without permission of the copyright owner provided the
use is fair and reasonable, does not substantially impair the value of
the materials, and does not curtail the profits reasonably expected by
the owner [http://www.merriam-webster.com]
"Fair use" can be simply defined as a limited and legally sanctioned
use of a copyrighted work even without the authors consent or
permission provided that the use falls under the allowed use under
Sec. 185
-
(d) The effect of the use upon the potential market for or value of the
copyrighted work (must not have an injurious effect)
CASES: - Habana vs. Robles G.R. No. 131522, July 19, 1999
: "respondent Robles act of lifting from the book of petitioners
substantial portions of discussions and examples, and her failure to
acknowledge the same in her book is an infringement of petitioners
copyright"
H. Ownership
General Rule: copyright is owned by the creator of the literary or artistic
work
Exceptions:
a. IF AUTHOR/ARTIST IS AN EMPLOYEE
Sec. 178.3
EMPLOYER OWNS COPYRIGHT:
If copyrightable work is part of his regular duties as employee
EMPLOYEE OWNS COPYRIGHT:
If the intellectual creation is NOT part of employee's regular duties
even if it was created during company time
b. IF AUTHOR/ARTIST WAS COMMISSIONED BY THIRD PERSON
- Sec. 178.4
The created work itself shall belong to the person who commissioned
it; however the artist/author retains the copyright thereto unless there
is a contrary stipulation.
c. audiovisual work (e.g. movies)
-the copyright shall belong to the producer, scriptwriter, composer (for
music), film
director, and original author (in case of literary work
adapted to audiovisual media)
Producer shall be the one who will mainly exercise the right in order to
exhibit the audio visual work.
d. letters (Article 723 of the Civil Code)
COPYRIGHT RETAINED BY THE AUTHOR but the actual letter itself
is owned by
the addressee if the letter is delivered.
I. ASSIGNMENT of rights to copyright
**** Read the case of Jerome Siegel and Joe Shuster the creators of
superman.
I.1 Rights of an Assignee Sec. 180
I.2. Factors to be considered in assignment of copyright:
a. copyright rights can be assigned in whole or in part. (Sec. 180)
b. assignment of copyright is separate from the actual object.
(Sec. 181)
-assignment of copyright does not necessarily mean assignment of the
actual object
c. assignment must be in writing (Sec. 180.2)
d. deed of assignment or exclusive license may (not mandatory) be
filed in duplicate with the National Library upon payment of the prescribed
fee. (Sec. 182)
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c.) The right to authorize the commercial rental to the public of the
original and
copies of their sound recordings, even after distribution by
them by or pursuant to authorization by the producer Sec. 208.3
N. BROADCASTER'S RIGHTS
-e.g. TV stations, radio stations
RIGHTS OF BROADCASTERS: broadcasters have the right to authorize
or prevent the following acts:
1. rebroadcasting of their broadcasts Sec. 211.1
2. the recording in any manner, including the making of films or the
use of video tape, of their
broadcasts for the purpose of
communication to the public of television broadcasts of the same;
211.2
3. the use of such records for fresh transmissions or for fresh recording
Sec. 211.3
O. TERM OF PROTECTION FOR BROADCASTERS
- 20 years from the date the broadcast took place (Sec. 215.2)
P. LIMITATIONS TO THE RIGHTS OF PERFORMERS, PRODUCERS,
BROADCASTERS
-subject to the same limitations as provided under Sec. 184 and Sec. 185
(Fair Use), and Sec. 212
"Section 212.Limitations on Rights. - Sections 203, 208 and 209 shall
not apply where the acts referred to in those Sections are related to:
212.1.
The use by a natural person exclusively for his own
personal purposes;
212.2.
Using short excerpts for reporting current events;
212.3.
Use solely for the purpose of teaching or for scientific
research; and
212.4.
Fair use of the broadcast subject to the conditions under
Section 185."
CASES TO READ:
-ABS-CBN vs. Phil. Multi-Media System Inc., G.R. No. 175769-70, Jan.
19, 2009
: NTC's "must carry rule"
V. COPYRIGHT INFRINGEMENT
Concept: the unauthorized use of a copyrighted material.
Examples of copyright infringement commonly committed in the modern
world:
photocopying a whole textbook; making and selling illegal copies of DVDs or
computer programs; downloading and uploading illegal mp3s and movies;
posting photos of other people in your facebook (exception if you were the
one who took the pictures with the consent of the person); uploading
YouTube covers of yourself singing a song you did NOT compose;
CASES:
1.)Microsoft Corp. vs. Hwang, G.R. No. 147043, June 21, 2005
citing the Columbia case:
" Infringement of a copyright is a trespass on a private domain owned
and occupied by the owner of the copyright, and, therefore, protected by
law, and infringement of copyright, or piracy, which is a synonymous term in
this connection, consists in the doing by any person, without the consent of
the owner of the copyright, of anything the sole right to do which is conferred
by statute on the owner of the copyright."
2.)Microsoft Corp. vs. Maxicorp Inc., 438 SCRA 224
A. REMEDIES FOR COPYRIGHT INFRINGEMENT UNDER R.A. 8293
"Section 216. Remedies for Infringement. - 216.1. Any person infringing a
right protected under this law shall be liable:
(a)
To an injunction restraining such infringement. The court
may also order the defendant to desist from an infringement,
among others, to prevent the entry into the channels of
commerce of imported goods that involve an infringement,
immediately after customs clearance of such goods.
(b)
Pay to the copyright proprietor or his assigns or heirs such
actual damages, including legal costs and other expenses, as he
may have incurred due to the infringement as well as the profits
the infringer may have made due to such infringement, and in
proving profits the plaintiff shall be required to prove sales only
and the defendant shall be required to prove every element of
cost which he claims, or, in lieu of actual damages and profits,
such damages which to the court shall appear to be just and
shall not be regarded as penalty.
(c)
Deliver under oath, for impounding during the pendency of
the action, upon such terms and conditions as the court may
prescribe, sales invoices and other documents evidencing sales,
all articles and their packaging alleged to infringe a copyright
and implements for making them.
(d)
Deliver under oath for destruction without any
compensation all infringing copies or devices, as well as all
plates, molds, or other means for making such infringing copies
as the court may order.
(e)
Such other terms and conditions, including the payment of
moral and exemplary damages, which the court may deem
proper, wise and equitable and the destruction of infringing
copies of the work even in the event of acquittal in a criminal
case
CASES: - Habana vs. Robles, 310 SCRA 522 (1999)
Columbia Pictures Inc. vs. CA, supra
B. CRIMINAL PENALTY:
Section 217.Criminal Penalties. - 217.1. Any person infringing any right
secured by provisions of Part IV of this Act or aiding or abetting such
infringement shall be guilty of a crime punishable by:
(a)
Imprisonment of one (1) year to three (3) years plus a fine
ranging from Fifty thousand pesos (P50,000) to One hundred fifty
thousand pesos (P150,000) for the first offense.
(b)
Imprisonment of three (3) years and one (1) day to six (6) years
plus a fine ranging from One hundred fifty thousand pesos (P150,000)
to Five hundred thousand pesos (P500,000) for the second offense.
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(c)
Imprisonment of six (6) years and one (1) day to nine (9) years
plus a fine ranging from five hundred thousand pesos (P500,000) to
One million five hundred thousand pesos (P1,500,000) for the third and
subsequent offenses.
(d)
In all cases, subsidiary imprisonment in cases of insolvency.
C. JURISDICTION - RTC
Samson vs. Daway, G.R. Nos. 160054-55, 21 July 2004
D. RECOVERY OF DAMAGES - PRESCRIPTIVE PERIOD: 4 YEARS FROM
THE TIME THE CAUSE OF ACTION AROSE (SEC. 226)
E. SCOPE OF APPLICATION:
1.) The protection afforded by this R.A. 8293 to copyrightable works
under Sections 172 [Literary Artistic Works] and 173 [Derivative Works]
shall apply to: [Sec 221]
(a)
Works of authors who are nationals of, or have their habitual
residence in, the Philippines;
(b)
Audio-visual works the producer of which has his headquarters or
habitual residence in the Philippines;
(c)
Works of architecture erected in the Philippines or other artistic
works incorporated in a building or other structure located in the
Philippines;
(d)
Works first published in the Philippines; and
(e)
Works first published in another country but also published in the
Philippines within thirty days, irrespective of the nationality or
residence of the authors.
(f) citizens of countries which are members of international
conventions or other international agreement to which the Philippines
is a party (Sec. 221.2) e.g. Berne Convention
2.) The provisions of this Act on the protection of performers shall
apply to [Sec. 222]
a.)
Performers who are nationals of the Philippines;
b.)
Performers who are not nationals of the Philippines but whose
performances:
b.1 Take place in the Philippines; or
b.2 Are incorporated in sound recordings that are protected
under this
Act; or
b.3 Which has not been fixed in sound recording but are
carried by
broadcast qualifying for protection under this Act.
b.4
performers are citizens of countries which are members
of
international
conventions or other international
agreements to which the
Philippines is a party e.g. ROME
CONVENTION
3.) The provisions of this Act on the protection of sound recordings
shall apply to[Sec. 223]
a.)
Sound recordings the producers of which are nationals of the
Philippines;
and
b)
Sound recordings that were first published in the Philippines.
c.)
producers of countries which are members of international
conventions or
other international agreements to which the
Philippines is a party
e.g. ROME CONVENTION
4.) The provisions of this Act on the protection of broadcasts shall
apply to: [Sec. 224]
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D.
SPECIAL
PENAL
LAWS
RELATED
TO
COPYRIGHT
INFRINGEMENT:
1.) REPUBLIC ACT 9239 - AN ACT REGULATING OPTICAL MEDIA,
REORGANIZING FOR THIS PURPOSE
THE
VIDEOGRAM
REGULATORY
BOARD, PROVIDING
PENALTIES THEREFORE,
AND
FOR
OTHER
PURPOSES
2.)REPUBLIC ACT 10088 -ANTI CAMCORDING ACT
3.)R.A. 10175 - CYBERCRIME PREVENTION ACT
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