DISCLAIMER: This article is for academic purposes only, as a requirement for the subject Technology and the Law AUSL Summer 2015.
As we all know, writers, musicians, artists and the like, put hard work, dedication, time and effort, not to mention countless failures and rejection, just to perfect their craft. Imagine a world without protection to their works. Every work they make can be used and utilized by another without their consent. Others may even derive profit from them. All their hard work may be put to waste because they may not even be acknowledged and recognized for their work. A world without these rights is a world without their works. The lack of protection will discourage the advancement and creation of literary and artistic works.
The state recognizes this need and the vital role of intellectual creation in our society and through the enactment of Republic Act 8293 or the Intellectual Property Code, it aims to strengthen intellectual creation and encourage derivative works and literary and artistic creations.
Intellectual creation is one of the modes of acquiring ownership, as provided in the Civil Code. It is where the creations or products of one’s mind or intellect such as writings, musical compositions, artistic creations, discoveries, and inventions become his exclusive property, giving him the right to authorize or refuse the publication or production of such creations or products.
On the other hand, intellectual property refers to the totality of all the rights which the law recognizes in favor of the author, composer, painter, artist, scientist, or any other person with respect to the creations or product of his intellect, and consists of principally, in his right to authorize or refuse the publication or production of such creations or products.[i]
This intellectual property rights includes copyrights, trademarks, patents, lay-out design, geographical indications, protection of undisclosed information.
Nowadays, aside from the traditional means of creation, authors have also been using the internet as a medium to share their creations to the public.
This paper will focus on the scope and limitation of copyright under Philippine law and jurisprudence, in relation to works on the internet. However, the Intellectual Property Code does not distinguish the medium used by the author. Therefore, the provisions of the Code applies also to works on the internet.
Copyright as defined in Kho vs. Court of Appeals[ii], is the right over literary and artistic works which are original intellectual creations in the literary and artistic domain protected from the moment of creation.
Even before the author or composer has published the work, he is already the owner of the creation. However, to protect his right, he must ask for a copyright if he intends the work to be published. Unless the copyright is obtained, the ownership by him will be lost. Mere circulation among close friends and associates is not considered publication.[iii]
Copyright is one of the intellectual properties. It 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 the 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.[iv]
Copyright symbol is represented by ©.
Copyright is conferred from the moment of creation. The work is deemed created if something original is expressed in a fixed manner. The author, the composer, the painter, the sculptor or other artists, the scientists and the inventors acquire ownership over their works from the moment of their creation even before the same are published, copyrighted or patented. Being the owner thereof, the creator has absolute control over his work and he may do anything with it as he pleases, including the right to share it with others. He also enjoys the exclusive right to its publication but this exclusive right is limited only to the ﬁrst publication. Unless placed under the protection of the Copyright Law, once published, the work is dedicated to the public, and the author loses the exclusive right to control subsequent publications by others.[v]
Through copyright, the state confers rights to creators and inventors of such product or creation as well as the publisher if he shall be different from such creator.
One of the rights granted is economic rights, which consists of the exclusive right to carry out, authorize or prevent reproduction of the work or substantial portion of the work; dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work; first public distribution of the original and each copy of the work; rental of the original or a copy of an audio-visual or cinematographic work; public display of the original or a copy of the work; public performance of the work; and other communication to the public of the work.[vi]
Moral rights of the creator of the copyrighted product is also recognized. It requires that the authorship of the works be attributed to him, in a prominent way on the copies, and with the public use of the work; make alterations of his work prior to, or to withhold it from publication; object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and retrain the use of his name with respect to any work not of his creation or in a distorted version of his work.[vii]
Whenever the publisher is different from the author or the creator, they are also given specific rights under the Intellectual Property Code. This includes the right to publish granted by the author, his heirs, or assigns; the publisher shall have a copyright consisting merely of the right of reproduction of the typographical arrangement of the published edition of the work[viii]; if submitted to a newspaper, magazine and the like, the right to publish once materials sent by a writer, a photographer, an artist to a periodical or newspaper publisher, but such writer or artist retains his copyright on the piece.[ix]
Intellectual Property Law and Intellectual Property Office
To facilitate in recognizing and enforcing rights of creators of literary and artistic works, the Republic Act 8293 was enacted otherwise known as the Intellectual Property Code.
Pursuant to the enactment of Intellectual Property Code, the Intellectual Property Office was created. It is the lead agency tasked with the registration and conflict resolution with regard to intellectual property rights, which includes copyright and related rights, trademarks and service marks, geographic indications, industrial designs, patents, layout-design (topographies) of integrated circuits, and protection of undisclosed information.
The term “copyright,” though famous among artists and authors, are not easily understood by the layman. Though some may know what it means, people are not that aware of the scope of copyright in the Philippines.
Creations and products that can be conferred with copyright are generally classified into 2. These are Literary and Artistic Works as well as Derivative Works,
Literary and Artistic Works include (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. Works are also 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.[x]
The other class of copyrightable object is the derivate works. According to Section 173.1 of the Intellectual Property Code, derivative work includes (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.
Not all those who claim to have created a literary, artistic or derivative work may be afforded copyright. It must be defined in accordance to the intent of the framers of the Intellectual Property Code, which also stated those objects which are not copyrightable.
Section 175 states that unprotected works includes 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 if mere items of press formation are also not copyrightable as well as any official text of a legislative, administrative or legal nature as well as any official translation thereof.
Any work of the government of the Philippines may not be copyrighted. 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 statuses, 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 charter.[xi]
Those works that are proper subjects of trademark cannot come under the protection of copyright.
The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. “Fair Use” means that a copyrighted work may be used by people other than the author as long as it is within the provisions of the law. Decompilation, which is understood to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include: (a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (b) The nature of the copyrighted work; (c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) The effect of the use upon the potential market for or value of the copyrighted work.[xii] 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.
Copyright Infringement Cases
In Habana vs. Robles[xiii], the Supreme Court ruled that if so much is taken that the value of the original work is substantially diminished, there is an infringement of copyright and to an injurious extent, the work is appropriated. Jurisprudence also stated that to constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied.
It bears stressing that the focus of copyright is the usefulness of the artistic design, and not its marketability. The central inquiry is whether the article is a work of art. Works for applied art include all original pictorials, graphics, and sculptural works that are intended to be or have been embodied in useful article regardless of factors such as mass production, commercial exploitation, and the potential availability of design patent protection. While works of applied art, original intellectual, literary and artistic works are copyrightable, useful articles and works of industrial design are not. A useful article may be copyrightable only if and only to the extent that such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article.[xiv]
Copyright, in the strict sense of the term, is purely a statutory right. Being a mere statutory grant, the rights are limited to what the statute confers. It may be obtained and enjoyed only with respect to the subjects and by the persons, and on terms and conditions specified in the statute. Accordingly, it can cover only the works falling within the statutory enumeration or description. 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.
In cases of infringement, since the copyright owner is protected by the law, he can enforce his right through injunction to prevent infringement, action for damages, and criminal case for infringement.
There have already been numerous copyright infringement cases in the Philippines related to the internet and media, some of which are:
The first time that a case on copyright infringement on the internet was initiated was in 2008 when photographer Anton Sheker filed a case against Manila Bulletin for allegedly infringing on his copyright by downloading photos from his personal blog without her permission.[xv]
In 2010, ABS-CBN filed a P127 million copyright infringement case against Willie Revillame, WilProductions Inc., and ABC5 (now TV5) citing Section 172.2(1) of the Intellectual Property Code. The network alleged that they were the legal owner of the copyright over every one of the Wowowee episodes and that Revillame’s new show Willing Willie deliberately imitated the former show to steal the goodwill that Wowowee has built. [xvi]
The Court of Appeals ruled in favor of GMA Network in a copyright infringement case against ABS-CBN in 2010 with regard to Angelo dela Cruz’s homecoming video. ABS-CBN claimed that GMA stole their live feed, which was actually taken from Reuters Television Service, where GMA had a subscription contract for videos.[xvii]
La Concepcion College Bulacan was ordered by the Intellectual Property Office (IPO) to pay author and publisher Raymund Sta, Maria Catabijan P608,450 as damages for copyright infringement. Catabijan submitted pieces of evidence to the IPO, which found the school guilty of copying his workbooks and selling reproductions to its students. La Concepcion College was also ordered to cease from publishing, selling, and distributing the books that contained the copied materials.[xviii]
Limitations of Copyright
Rights conferred to owners of copyright is not absolute and is coupled with certain limitations.
There are different rules to consider as to ownership of a copyrightable work. Certain rules can assign the copyright to another person regardless of your authorship of such work.
Whenever there is only one creator, it is he, his heirs or assigns who owns the copyright. An assignee is a person to whom an author may assign copyright in whole or in part. The assignee is entitled to all the rights and remedies which the assignor has with respect to the copyright. Therefore, with regard to literary, dramatic, historical, legal, philosophical, scientific or other work, it is the author who owns the copyright. With regard to musical composition, it is the composer. With regard to product of art, it is the painter, sculptor, or other artist. With regard to discovery or invention, it is the scientist or technologist.[xix]
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.[xx]
Whenever a creation is produced or created jointly, co-authors shall be the original owners of the copyright and in the absence of agreement, their rights shall be governed by the rules of co-ownership except when their work consists of parts that can be used separately and the author of each part can be identified. In that case, the author of each part shall be the original owner of the copyright in the part that he has created.
With regard to audio-visual work, the producer owns the copyright for purposes of exhibition but for all other purposes, the producer, the author of the scenario, the composer, the film director, the photographic director and the author of the work are the owners.
In cases where the work is commissioned, the person commissioning owns the work however, the ownership of copyright remains with the creator unless there is a written stipulation to the contrary.
If the creation is produced during the course of an employment and it is the result of regular functions or duties of the employee, it is the employer who owns the copyright.
In cases where the author is unknown, the publisher is the presumed representative of the author.[xxi]
Ownership can be considered as a limitation because these rules, such as that of the employer-employee, may discourage persons from the creation of their work worthy of copyright.
Another limitation would be the duration of copyright protection. The duration depends on the kind of copyrightable work involved.
In cases of literary artistic works and derivative works, only during the lifetime of the creator and fifty years after his death. When a creation is jointly created, the economic rights shall be protected during the life of the last surviving author and for fifty years after the death of the last surviving author. Whenever the author is unknown, till the end of fifty years, following the date of their first publication. The fifty years commences from January 1 following the date of publication. In cases of work of applied art of an artistic creation with utilitarian functions or incorporated in a useful article, whether by made by hand or produced on an industrial scale, twenty-five years. For photographic works, fifty years from the publication of the work, or from making, if unpublished. The same term is given to audio-visual works produced by photography or analogous process. In cases of broadcasts, twenty years from the day of broadcast.[xxii]
An amendment to the Intellectual Property Code by Republic Act 10372, now protects the right of attribution during the lifetime of the author and in perpetuity.
Acts not Infringement
Another limitation to copyright would be those under Section 184, which enumerates the acts which do not constitute infringement of copyright. The Intellectual Property Code allows 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 interests. These includes (a) recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society; (b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned; (c) The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated; (d) The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose; (e) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned; (f) The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work; (g) The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast; (h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use; (i) The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations; (j) Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that the original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and (k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.
With the enumeration under Section 184, it is to be understood that an author cannot exclude everybody else from the use of his/her work. Reproduction of work can be in such a way as not to constitute infringement of the copyright. The author cannot deprive the public from using his/her work if it be within the ambit of what is allowed by law.
The Intellectual Property Code aims to encourage artists to develop and share their work to others. People should see the law as a vessel to transport ideas into reality. Authors should be encouraged and supported in their craft in order for the public to also benefit from the hard work and dedication they put into their work. As authors, awareness of the scope and limitations of copyright provided by law is a must. These rules will serve as a path of light to know the rights attributable to authors and to be able to get the acknowledgment, compensation and recognition they deserve.
The medium in which a copyrightable work is posted, published or creation does not qualify its protection. Works on the internet are to be regarded on the same level as those published or created on other means or methods.
[i] De Leon, Hector. Comments and Cases on Property. Rex Book Store. 2006, p. 594.
[ii] G.R. No. 115758, March 19, 2002.
[iii] Paras, Edgardo. Civil Code of the Philippines Annotated. Rex Book Store. 2008, p. 796.
[v] Santos v. McCullough Printing Co., 12 SCRA 321 (1964); Filipino Society of Composers, Authors and Publishers, Inc. v. Tan, 148 SCRA 461 (1987).
[vi] Republic Act No. 8293 (1997) Sec. 177.
[vii] Republic Act No. 8293 (1997) Sec. 193.
[viii] Republic Act No. 8293 (1997) Sec. 174.
[ix] Republic Act No. 8293 (1997) Sec. 180.
[x] Republic Act No. 8293 (1997) Sec. 172.1,172.2.
[xi] Republic Act No. 8293 (1997) Sec. 175.
[xii] Republic Act No. 8293 (1997) Sec. 185.
[xiii] G.R. No. 131522, July 19, 1999.
[xiv] Ching vs. Salinas, Sr. G.R. No. 161295. June 29, 2005.
[xviii] http://newsbytes.ph/2014/11/08/bulacan-school-ordered-to-pay-p608450-for-copyright-infringement. Accessed July 19, 2015.
[xix] Civil Code, Art. 721.
[xx] Civil Code, Art. 723.
[xxi] Intellectual Property Code, RA 8293. Section 178, 179.
[xxii] Intellectual Property Code, RA 8293. Section 213, 214.