! IP IN GENERAL 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. 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. UNDERSTANDING COPYRIGHT AND RELATED RIGHTS WIPO (World Intellectual Property Organization) Intellectual property refers broadly to the creations of the human mind. Intellectual property rights protect the interests of creators by giving them property rights over their creations. Subject matter protected by intellectual property rights: literary, artistic and scientific works; performances of performing artists, phonograms, and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks, service marks, and commercial names and designations; protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. The property is not in those copies but in the information or knowledge reflected in them. 2 MAIN REASONS (Protect intellectual property) 1. give statutory expression to the moral and economic rights of creators in their creations and to the rights of the public in accessing those creations 2. promote creativity, and the dissemination and application of its results, and to encourage fair trade, which would contribute to economic and social development. 2 BRANCHES OF ONTELLECTUAL PROPERTY INDUSTRIAL PROPERTY COPYRIGHT These include patents to protect inventions, and industrial designs, which are aesthetic creations determining the appearance of industrial products. Industrial property also covers trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, as well as geographical indications, and protection against unfair competition. Relates to artistic creations, such as books, music, paintings and sculptures, films and technology- based works such as computer programs and electronic databases. It thus underlines the fact, recognized in most laws, that the author has certain specific rights in his creation which only he can exercise (such as the right to prevent a distorted reproduction). Other rights (such as the right to make copies) can be exercised by other persons, for example, a publisher who has obtained a license from the author Inventions - protection of inventions under patent law does not require that the invention be represented in a physical embodiment. There must be an official notification that a specific, fully described invention is the property of a specific owner for a fixed number of years; in other words, the protected invention must be disclosed publicly in an official register.
Copyright law protects only the form of expression of ideas, not the ideas themselves. The creativity protected by copyright law is creativity in the choice and arrangement of words, musical notes, colors and shapes. So copyright law protects the owner of property rights against those who copy or otherwise take and use the form in which the original work was expressed by the author. Eg. Computer programs (not on the list) Multimedia productions
LIP: Session 1 2 2 TYPES OF RIGHTS: I. Economic rights allow the rights owner to derive financial reward from the use of his works by others. The rights owner of a work can prohibit or authorize: its reproduction in various forms, such as printed publications or sound recordings; the distribution of copies; its public performance; its broadcasting or other communication to the public; its translation into other languages; its adaptation, such as a novel into a screenplay. CONTROL: 1. Reproduction ALTHOUGH: Certain forms of reproduction of a work are exceptions to the general rule, because they do not require the authorization of the rights owner. These exceptions are known as limitations on rights
2. Distribution 3. Rental 4. Importation Appropriate balance between the rights of the author to control the integrity of the work by authorizing modifications, and the rights of users to make changes which seem to be part of a normal use of works in digital format. II. Moral rights allow the author to take certain actions to preserve the personal link between himself and the work. The Berne Convention (Article 6bbis) requires Member countries to grant to authors: (i) the right to claim authorship of the work, (sometimes called the right of paternity); and (ii) the right to object to any distortion or modification of the work, or other derogatory action in relation to the work, which would be prejudicial to the authors honor or reputation, (sometimes called the right of integrity). - Requires them to be independent of the authors economic rights, and to remain with the author even after he has transferred his economic rights LIMITATIONS ON RIGHTS 1. CERTAIN CATEGORIES OF WORK: - works are excluded from protection if they are not fixed in tangible form. - a work of choreography
2. PARTICULAR ACTS OF EXPLOITATIONS - Be carried out without authorization. - There are two basic types of limitations in this category: (a) free use, which carries no obligation to compensate the rights owner for the use of the work without authorization; and i. quoting from a protected work, provided that the source of the quotation and the name of the author is mentioned, and that the extent of the quotation is compatible with fair practice; ii. use of works by way of illustration for teaching purposes; and iii. use of works for the purpose of news reporting. " Member States may provide for free reproduction in special cases where the acts do not conflict with normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. " fair use or fair dealing. This allows use of works without the authorization of the rights owner, taking into account factors such as the nature and purpose of the use, including whether it is for commercial purposes; the nature of the work used; the amount of the work used in relation to the work as a whole; and the likely effect of the use on the potential commercial value of the work.
(b) non-voluntary licenses, which do require that compensation be paid to the rights owner for non- authorized exploitation " created in circumstances where a new technology for the dissemination of works to the public had emerged, and where the national legislator feared that rights owners would prevent the development of the new technology by refusing to authorize use of works DURATION OF COPYRIGHT Copyright does not continue indefinitely. The law provides for a period of time during which the rights of the copyright owner exist. The period or duration of copyright begins from the moment when the work has been created, or, under some national laws, when it has been expressed in a tangible form. It continues, in general, until some time after the death of the author. The purpose of this provision in the law is to enable the authors successors to benefit economically from exploitation of the work after the authors death. EG: 70 or 50 years after death of the author. OWNERSHIP, EXERCISE AND TRANSFER OF COPYRIGHT - When a work is created by an author who is employed for the purpose of creating that work, then the employer, not the author, is the owner of the copyright in the work. - Authors may sell the rights to their works to individuals or companies best able to market the works, in return for payment. - Royalties payment - Transfers of copyright may take one of two forms: assignments and licenses. a. ASSIGNMENT - f all rights are assigned, the person to whom the rights were assigned becomes the new owner of copyright b. LICENSING - owner of the copyright retains ownership but authorizes a third party to carry out certain acts covered by his economic rights, generally for a specific period of time and for a specific purpose. (Not carry out economic rights) - A rights owner may also abandon the exercise of the rights, wholly or partially. ENFORCEMENT OF RIGHTS 1. The first concerns advances in the technological means for creation and use (both authorized and unauthorized) of protected material. Digital technology in particular makes it LIP: Session 1 3 easy to transmit and make perfect copies of any information existing in digital form, including copyright-protected works. 2. The second factor is the increasing economic importance in the realm of international trade of the movement of goods and services protected by intellectual property rights. They may be divided into the following categories: conservatory or provisional measures; civil remedies; criminal sanctions; measures to be taken at the border; and measures, remedies and sanctions against abuses in respect of technical devices. Conservatory or provisional measures have two purposes: 1. first, to prevent infringements from occurring, in particular to prevent the entry of infringing goods into the channels of commerce, including entry of imported goods after clearance by customs; and 2. second, to preserve relevant evidence in regard to an alleged infringement. Civil remedies compensate the rights owner for economic injury suffered because of the infringement, usually in the form of pecuniary damages, and create an effective deterrent to further infringement. - This is often in the form of a judicial order to destroy the infringing goods and the materials which have been predominantly used for producing them Criminal sanctions are intended to punish those who willfully commit acts of piracy on a commercial scale and, as in the case of civil remedies, to deter further infringement. Border measures allow the rights owner to request that customs authorities suspend the release into circulation of goods that are suspected of infringing copyright. This is intended to give the rights owner a reasonable time to commence judicial proceedings against the suspected infringer, without the risk that the alleged infringing goods will disappear into circulation after customs clearance. The rights owner must (a) satisfy the customs authorities that there is prima facie evidence of infringement, (b) provide a detailed description of the goods so that they can be recognized and (c) provide a security to indemnify the importer, the owner of the goods, and the customs authorities in case the goods turn out to be non-infringing. - However, it is technically possible to manufacture devices to circumvent such copy-protection and encryption systems. The enforcement provisions are intended to prevent the manufacture, importation and distribution of such devices RELATED RIGHTS The law of related rights deems that the productions which result from the activities of such persons and entities merit legal protection in themselves, as they are related to the protection of works of authorship under copyright Related rights have been granted to three categories of beneficiaries: 1. Performers - heir creative intervention is necessary to give life to 2. Producers of phonograms and - recognized because their creative, financial and organizational resources are necessary to make sound recordings available to the public in the form of commercial phonograms; and because of their legitimate interest in having the legal resources to take action against unauthorized uses 3. Broadcasting organizations - because of their role in making works available to the public, and in light of their justified interest in controlling the transmission and retransmission of their broadcasts. TREATIES The first organized international response to the need for legal protection of the three categories of related rights beneficiaries was the conclusion, in 1961 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) WIPO Performances and Phonograms Treaty (WPPT), which was adopted in 1996, together with the WCT. Work on a new, separate treaty on the rights of broadcasters continues at WIPO. The duration of protection of related rights under the Rome Convention is 20 years from the end of the year (a) that the recording is made, in the case of phonograms and performances included in phonograms; or (b) that the performance took place, in the case of performances not incorporated in phonograms; or (c) that the broadcast took place, for broadcasts. In the TRIPS Agreement and the WPPT, however, the rights of performers and producers of phonograms are to be protected for 50 years from the date of the fixation or the performance. Under the TRIPS Agreement, the rights of broadcasting organizations are to be protected for 20 years from the date of the broadcast. Thus many national laws which protect related rights grant a longer term than the minimum contained in the Rome Convention. The largely unwritten and unrecorded cultural expression of many developing countries, generally known as folklore or traditional cultural expressions, may be protected under related rights as performances, since it is often through the intervention of performers that they are communicated to the public. By providing related rights protection, developing countries may also provide a means for protection of the vast, ancient and invaluable cultural expression, which is the essence of what distinguishes each culture. ROLE OF WIPO Dedicated to promoting creativity and innovation by ensuring that the rights of creators and owners of intellectual property are protected worldwide, and that inventors and authors are thus recognized and rewarded for their ingenuity. WIPO administers the following international treaties on copyright and related rights: Berne Convention for the Protection of Literary and Artistic Works Brussels Convention Relating to the Distribution of Program- Carrying Signals Transmitted by Satellite Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations WIPO Copyright Treaty (WCT) WIPO Performances and Phonograms Treaty (WPPT) WIPO also provides an Arbitration and Mediation Center, which offers services for the resolution of international commercial disputes between private parties involving intellectual property. LIP: Session 1 4 RA 8293 INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES Sec. 4. Definitions.- 4.1. The term "intellectual property rights" consists of: [a] Copyright and Related Rights; [b] Trademarks and Service Marks; [c] Geographic Indications; [d] Industrial Designs; [e] Patents; [f] Layout-Designs (Topographies) of Integrated Circuits; and [g] Protection of Undisclosed Information 4.2. The term "technology transfer arrangements" refers to contracts or agreements involving the transfer of systematic knowledge for the manufacture of a product, the application of a process, or rendering of a service including management contracts; and the transfer, assignment or licensing of all forms of intellectual property rights, including licensing of computer software except computer software developed for mass market. 4.3. The term "Office" refers to the Intellectual Property Office created by this Act. 4.4 The term "IPO Gazette" refers to the gazette published by the Office under this Act. CASES: ELIDAD C. KHO, doing business under the name and style of KEC COSMETICS LABORATORY, petitioner, v. HON. COURT OF APPEALS, SUMMERVILLE GENERAL MERCHANDISING and COMPANY, and ANG TIAM CRAY, respondents. G.R. No. 115758 March 19, 2002 FACTS: - Kho filed a complaint for injunction and damages with a prayer for the issuance of a writ of preliminary injunction - petitioners complaint alleges that petitioner, doing business under the name and style of KEC Cosmetics Laboratory, is the registered owner of the copyrights Chin Chun Su and Oval Facial Cream Container/Case, as shown by Certificates of Copyright Registration No. 0-1358 and No. 0-3678 - she also has patent rights on Chin Chun Su & Device and Chin Chun Su for medicated cream after purchasing the same from Quintin Cheng, the registered owner thereof in the Supplemental Register of the Philippine Patent Office - respondent Summerville advertised and sold petitioners cream products under the brand name Chin Chun Su, in similar containers that petitioner uses, thereby misleading the public, and resulting in the decline in the petitioners business sales and income; and, that the respondents should be enjoined from allegedly infringing on the copyrights and patents of the petitioner . - respondents, on the other hand, alleged as their defense that Summerville is the exclusive and authorized importer, re-packer and distributor of Chin Chun Su products manufactured by Shun Yi Factory of Taiwan - to distribute and market Chin Chun Su products in the Philippines had already been terminated by the said Taiwanese Manufacturing Company. - TRIAL COURT GRANTED PRELIMINARY INJUNCTION - RECONSIDERATION OF RESPONDENTS WAS DENIED - CERTIORARI WITH CA ISSUE: Whether 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. HELD: SC RULED IN FAVOR OF RESPONDENTS Sec 1, Rule 58: This is the reason why we have ruled that it must be shown that the invasion of the right sought to be protected is material and substantial, that the right of complainant is clear and unmistakable, and, that there is an urgent and paramount necessity for the writ to prevent serious damage Trademark, copyright and patents are different intellectual property rights that cannot be interchanged with one another. 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. Trade name means the name or designation identifying or distinguishing an enterprise. 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. 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. - 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. JESSIE G. CHING, petitioner, vs. WILLIAM M. SALINAS, SR., WILLIAM M. SALINAS, JR., JOSEPHINE L. SALINAS, JENNIFER Y. SALINAS, ALONTO SOLAIMAN SALLE, JOHN ERIC I. SALINAS, NOEL M. YABUT (Board of Directors and Officers of WILAWARE PRODUCT CORPORATION), respondents. G.R. No. 161295 LIP: Session 1 5 June 29, 2005 FACTS: - Jessie G. Ching is the owner and general manager of Jeshicris Manufacturing Co., the maker and manufacturer of a Utility Model, described as "Leaf Spring Eye Bushing for Automobile" made up of plastic. - Ching and Joseph Yu were issued by the National Library Certificates of Copyright Registration and Deposit of the said work described therein as "Leaf Spring Eye Bushing for Automobile." 4
- Ching requested the National Bureau of Investigation (NBI) for police/investigative assistance for the apprehension and prosecution of illegal manufacturers, producers and/or distributors of the works - NBI filed applications for search warrants in the RTC of Manila against William Salinas, Sr. and the officers and members of the Board of Directors of Wilaware Product Corporation - RTC GRANTED THE APPLICATION OF SEARCH WARRANT (Violation of RA 8293 Secs 177.1 and 177.3) - ITEMS WERE SEIZED - The respondents averred that the works covered by the certificates issued by the National Library are not artistic in nature; they are considered automotive spare parts and pertain to technology. They aver that the models are not original, and as such are the proper subject of a patent, not copyright. - petitioner stated that a search warrant is merely a judicial process designed by the Rules of Court in anticipation of a criminal case. Until his copyright was nullified in a proper proceeding, he enjoys rights of a registered owner/holder thereof. - The trial court issued an Order
granting the motion, and quashed the search warrant on its finding that there was no probable cause for its issuance. o Work covered by the certificates issued to the petitioner pertained to solutions to technical problems, not literary and artistic as provided in Article 172 of the Intellectual Property Code. - PETITIONER FILED FOR CERTIORARI IN THE CA o He insisted that his works are covered by Sections 172.1 and 172.2 of the Intellectual Property Code. o The petitioner averred that the copyright certificates are prima facie evidence of its validity - CA rendered judgment dismissing the petition on its finding that the RTC did not commit any grave abuse of its discretion - The petitioner is praying for the reinstatement of the search warrants issued, but subsequently quashed, for the offense of Violation of Class Designation of Copyrightable Works under Section 177.1 in relation to Section 177.3 of Republic Act 8293, when the objects subject of the same, are patently not copyrightable - PETITIONERS CONTENTION: contending that the revocation of his copyright certificates should be raised in a direct action and not in a search warrant proceeding. - PETITIONERS CLAIMS: o He claims that R.A. No. 8293, otherwise known as the Intellectual Property Code of the Philippines, which took effect on January 1, 1998, provides in no uncertain terms that copyright protection automatically attaches to a work by the sole fact of its creation, irrespective of its mode or form of expression, as well as of its content, quality or purpose. 15 The law gives a non-inclusive definition of "work" as referring to original intellectual o Notwithstanding the classification of the works as either literary and/or artistic, the said law, likewise, encompasses works which may have a bearing on the utility aspect to which the petitioners utility designs were classified. o The law does not provide that the intended use or use in industry of an article eligible for patent bars or invalidates its registration under the Law on Copyright. o He has in his favor the benefit of the presumption that his copyright is valid; hence, the burden of overturning this presumption is on the alleged infringers, the respondents herein. - RESPONDENT AVERRED: o work of the petitioner is essentially a technical solution to the problem of wear and tear in automobiles, the substitution of materials, i.e., from rubber to plastic matter of polyvinyl chloride, an oil resistant soft texture plastic material strong enough to endure pressure brought about by the vibration of the counter bearing and thus brings bushings. Such work, the respondents assert, is the subject of copyright under Section 172.1 of R.A. No. 8293. o a technical solution in any field of human activity which is novel may be the subject of a patent, and not of a copyright. o that no copyright is said to exist if a party categorically questions its existence and legality.
ISSUE: whether the petitioners utility models are copyrightable and, if so, whether he is the owner of a copyright over the said models HELD: PETITION HAS NO MERIT. It is worthy to state that the works protected under the Law on Copyright are: literary or artistic works (Sec. 172) and derivative works (Sec. 173). The Leaf Spring Eye Bushing and Vehicle Bearing Cushion fall on neither classification. Accordingly, if, in the first place, the item subject of the petition is not entitled to be protected by the law on copyright, how can there be any violation? It bears stressing that upon the filing of the application for search warrant, the RTC was duty-bound to determine whether probable cause existed, in accordance with Section 4, Rule 126 of the Rules of Criminal Procedure. The RTC is mandated under the Constitution and Rules of Criminal Procedure to determine probable cause. The court cannot abdicate its constitutional obligation by refusing to determine whether an offense has been committed. 20 The absence of probable cause will cause the outright nullification of the search warrant. For the RTC to determine whether the crime for infringement under R.A. No. 8293 as alleged in an application is committed, the petitioner- applicant was burdened to prove that (a) respondents Jessie Ching and Joseph Yu were the owners of copyrighted material; and (b) the copyrighted material was being copied and distributed by the respondents. Thus, the ownership of a valid copyright is essential. Ownership of copyrighted material is shown by proof of originality and copyrightability. By originality is meant that the material was not copied, and evidences at least minimal creativity; that it was independently created by the author and that it possesses at least same minimal degree of creativity. 23 Copying is shown by proof of access to copyrighted material and substantial similarity between the two works. 24 The applicant must thus demonstrate the existence and the validity of his copyright because in the absence of copyright protection, even original creation may be freely copied. 25
The petitioner cannot seek relief from the RTC based on his claim that LIP: Session 1 6 he was the copyright owner over the utility models and, at the same time, repudiate the courts jurisdiction to ascertain the validity of his claim without running afoul to the doctrine of estoppel. A copyright certificate provides prima facie evidence of originality which is one element of copyright validity. It constitutes prima facie evidence of both validity and ownership 27 and the validity of the facts stated in the certificate. 28 The presumption of validity to a certificate of copyright registration merely orders the burden of proof. The applicant should not ordinarily be forced, in the first instance, to prove all the multiple facts that underline the validity of the copyright unless the respondent, effectively challenging them, shifts the burden of doing so to the applicant Section 218.2 of R.A. No. 8293 provides: 218.2. In an action under this Chapter: (a) Copyright shall be presumed to subsist in the work or other subject matter to which the action relates if the defendant does not put in issue the question whether copyright subsists in the work or other subject matter; and (b) Where the subsistence of the copyright is established, the plaintiff shall be presumed to be the owner of the copyright if he claims to be the owner of the copyright and the defendant does not put in issue the question of his ownership. A certificate of registration creates no rebuttable presumption of copyright validity where other evidence in the record casts doubt on the question. In such a case, validity will not be presumed. 30
But, as gleaned from the specifications appended to the application for a copyright certificate filed by the petitioner, the said Leaf Spring Eye Bushing for Automobile is merely a utility model described as comprising a generally cylindrical body having a co-axial bore that is centrally located and provided with a perpendicular flange on one of its ends and a cylindrical metal jacket surrounding the peripheral walls of said body, with the bushing made of plastic that is either polyvinyl chloride or polypropylene. 31 L ikewise, the Vehicle Bearing Cushion is illustrated as a bearing cushion comprising a generally semi-circular body having a central hole to secure a conventional bearing and a plurality of ridges provided therefore, with said cushion bearing being made of the same plastic materials. 32 Plainly, these are not literary or artistic works. They are certainly not ornamental designs or one having decorative quality or value. 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. It bears stressing that there is no copyright protection for works of applied art or industrial design which have aesthetic or artistic features that cannot be identified separately from the utilitarian aspects of the article. 36 Functional components of useful articles, no matter how artistically designed, have generally been denied copyright protection unless they are separable from the useful article. LEAF SPRING EYE BUSHING FOR AUTOMOBILE Known bushings inserted to leaf-spring eye to hold leaf-springs of automobile are made of hard rubber. These rubber bushings after a time, upon subjecting them to so much or intermittent pressure would eventually wore (sic) out that would cause the wobbling of the leaf spring. VEHICLE BEARING CUSHION Another object of this utility model is to provide a vehicle bearing cushion made of polyvinyl chloride, an oil resistant soft texture plastic material which causes cushion to the propellers center bearing, yet strong enough to endure pressure brought about by the vibration of the center bearing. A utility model varies from an invention, for which a patent for invention is, likewise, available, on at least three aspects: 1. first, the requisite of "inventive step"
in a patent for invention is not required; 2. second, the maximum term of protection is only seven years
compared to a patent which is twenty years,
both reckoned from the date of the application; and 3. third, the provisions on utility model dispense with its substantive examination 45 and prefer for a less complicated system. Being plain automotive spare parts that must conform to the original structural design of the components they seek to replace, the Leaf Spring Eye Bushing and Vehicle Bearing Cushion are not ornamental. 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 it. 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. Accordingly, it can cover only the works falling within the statutory enumeration or description. 1987 CONSTITUTION Article 12, 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. The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law. Article 14, 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 country's productive systems and national life. SEC 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. SEC 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation's historical and cultural heritage and resources, as well as artistic creations. SEC 16. All the country's 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. LIP: Session 1 7 IP CODE: Sec. 2. Declaration of State Policy. - The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It 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 periods as provided in this Act. The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good. It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines. REPUBLIC ACT NO. 10055 AN ACT PROVIDING THE FRAMEWORK AND SUPPORT SYSTEM FOR THE OWNERSHIP, MANAGEMENT, USE, AND COMMERCIALIZATION OF INTELLECTUAL PROPERTY GENERATED FROM RESEARCH AND DEVELOPMENT FUNDED BY GOVERNMENT AND FOR OTHER PURPOSES "Philippine Technology Transfer Act of 2009". OBJECTIVE: This Act aims to promote and facilitate the transfer, dissemination, and effective use, management, and commercialization of intellectual property, technology and knowledge resulting from R&D funded by the government for the benefit of national economy and taxpayers. DEFINITIONS: (a) "Intellectual Property (IP)" is the term used to describe intangible assets resulting from the creative work of an individual or organization. IP also refers to creations of the mind, such as inventions, literary and artistic works, and symbols, names, images and designs used in commerce. (b)"Intellectual Property Rights (IPRs)" refer to those rights recognized and protected in Republic Act No. 8293, otherwise known as the "Intellectual Property Code of the Philippines". (c)"Potential IPRs" refer to intellectual property, or the products of creation and research that form the subject matter of IPRs, but which are not yet protected by the statutory grant of IP rights. (d)"Protection of IPs" refers to the statutory grant of rights upon which the basis of enforcing the right rests, such as issuance of patents; registration of utility models, industrial designs, and trademarks or availment of protection of undisclosed information and other rights as may be provided by law. "Protected IPs", therefore may refer to issued or pending patents; registered utility models, industrial designs and trademarks. (e)"IP Code" refers to Republic Act No. 8293, otherwise known as the "Intellectual Property Code of the Philippines". (f)"Intellectual Property Rights Management" refers to the principles, mechanisms and processes involved in the identification, assessment, protection, utilization and enjoyment of intellectual property rights. (g)"Government Funding Agency (GFA)" refers to any government agency or instrumentality, or government-owned and/or -controlled corporation that provides research grants and other technical and material support, from government appropriations and resources and those sourced from government-managed Official Development Assistance (ODA) funds. (h)"Parent Agency" refers to the Department or agency, which exercises the power of control or supervision over the GFAs, RDIs or RDI acting as the GFA itself. In general, where multiple GFAs are involved, the department or agency, which has the largest financial contribution, shall be deemed as the parent agency, except as may otherwise be specifically provided by this Act. (i)"Research and Development Institute or Institution (RDI)" refers to a public or private organization, association, partnership, joint venture, higher education institution or corporation that performs R&D activities and is duly registered and/or licensed to do business in the Philippines, or otherwise with legal personality in the Philippines. In the case of private RDIs, they shall be owned solely by the citizens of the Philippines or corporations or associations at least sixty per centum (60%) of the capital of which is owned by such citizens. This does not include RDIs covered by international bilateral or multilateral agreements. (j)"Research Funding Agreement" refers to a contract entered into by and among the GFA and other funding agencies and the RDI. It governs ownership of IP, duties and responsibilities of GFAs and RDIs, technology disclosure, exclusivity of the license, use for commercialization, establishment of spin-off firms, technologies for research use, and sharing of income and benefits from technology commercialization. (k)"Research Agreement" refers to a contract entered into by RDIs and researchers, including the agreements between the RDI and collaborating RDIs. (l)"Researcher" refers to a natural person who is engaged by the RDI by employment or other contract, to conduct research with or for the RDI. (m)"Spin-off firm or company" refers to a juridical entity that is an independent business technology taker with a separate legal personality from the GFA, RDI and researcher created through the initiative of the researcher-employee who generated the technology. (n)"Technology" refers to knowledge and know-how, skills, products, processes, and/or practices. (o)"Technology transfer" refers to the process by which one party systematically transfers to another party the knowledge for the manufacture of a product, the application of a process, or rendering of a service, which may involve the transfer, assignment or licensing of IPRs. (p)"Commercialization" refers to the process of deriving income or profit from a technology, such as the creation of a spin-off company, or through licensing, or the sale of the technology and/or IPRs. (q)"Revenue" refers to all monetary and non-monetary benefits derived as a result of the development, production, transfer, use and/or commercialization of IPRs, including income from assignments and royalties from licenses. (r)"Research and Development (R&U)" refers to creative work undertaken on a systematic basis in order to increase the stock of knowledge, including knowledge of man, culture and society, and to use this stock of knowledge to devise new applications. LIP: Session 1 8 COVERAGE: (a)All R&D activities carried out on behalf and for the interest of the Philippine government by RDIs receiving grants directly from the GFAs: (b)All intellectual property rights derived from R&D activities funded by government; (c)All government agencies that fund R&D activities as well as provide financial, technical or material support to such R&D activities; and (d)All institutions that implement government funded R&D. INTELLECTUAL PROPERTY OWNERSHIP: Section 6. Ownership of Intellectual Property and Intellectual Property Rights. - The ownership of IPs and IPRs shall be governed by the following: (a)In recognition of the fact that RDIs are in a better position to identify the potential for economic utilization of IPs and IPRs subject to their possession of the right skills and management capability, the ownership of IPs and IPRs derived and generated from research funded by the GFA, whether such funding is in whole or in part, shall, in general, be vested in the RDI that actually performed the research, except in any of the following circumstances: (1)When the RDI has entered into a public, written agreement sharing, limiting, waiving or assigning its ownership of the IPs or IPRs generated from its research in favor of the GFA: Provided, That the same may only be voluntarily executed by the RDI to protect public interest, and in particular involves national security, nutrition, health, or the development of other vital sectors; (2)In case of failure of the RDI to disclose potential IPRs to the GFA, whereupon the GFA shall assume the rights to the potential IPR; (3)In case of failure of the RDI to initiate the protection of potential IPRs within a reasonable time from confidential disclosure to the GFA, which shall in no case exceed three (3) months from public disclosure, whereupon the GFA shall assume the rights to the potential IPR; and (4)In case the RDI ceases to become a Filipino corporation as defined in Article I, Section 4(i) of this Act. (b)In case of collaborative research where two (2) or more RDIs conducted the research funded by the GFA, the RDIs shall own the IPRs jointly or as otherwise stipulated in the research agreement between them: Provided, That any research agreement between RDIs and other funding entities shall be made with the full knowledge of the GFA: Provided, further, That the agreement shall strictly be in accordance with the provisions of this Act. (c)Nothing in this Article shall modify, amend, derogate or prejudice IPs that will be owned by employees of the RDIs under the IP Code and other existing laws. Section 8. Rights and Responsibilities of the RDIs. - The following are the rights and responsibilities of the RDIs that availed of research funds from GFAs: (a)Identify, protect, and manage the IPs generated from R&D funded by the GFA and pursue commercial exploitation diligently as a required performance stipulated in the research funding agreement and as allowed by this Act and other applicable laws. (b)Provide a means for addressing any shortfall of its performance in utilizing and commercializing the IP; (c)Notify the GFA within a reasonable time of all I PR applications, licenses and assignments made. (d)Report annually to the GFA on the progress of IP and/or IPR commercialization efforts and of all agreements entered and licenses granted; Section 23. Administrative, Criminal or Civil Liability. - The failure of the GFA or RDI to fulfill its responsibilities under this Act, or the violation of any provision by any person, natural or juridical, shall subject the person involved to appropriate administrative, criminal, or civil liability, under applicable laws. Section 27. Applicability to Intellectual Property Created Under Existing Laws. - The provisions of this Act shall likewise apply to intellectual property created under existing laws, including, among others, Republic Act No. 9168 or the "Philippine Plant Variety Protection Act of 2002". TODAYS CHALLENGE: PROTECTING COPYRIGHT IN THE INTERNET NUMERIANO F. RODRIGUEZ, JR 2013
INTERNET international network of interconnected computers. - Worldwide human communication.
WHAT ARE COPYRIGHT RELATED RIGHTS AND WHY ARE THEY IMPORTANT?
COPYRIGHT bundle of rights of authors or creators over their literary and artistic works
RELATED NEIGHBORING RIGHTS rights granted to or recognized in favor of performing artists with respect to their performances
- Legal concepts and instruments - Major means to establish ownership of inventions and creative ideas
BEGINNING OF COPYRIGHT PROTECTION: A MEANS TO AN END - Original need to protect copyright - Should the authors ownership of his works be protected over the general public interest to access them? OR should the public interest prevail over the private right of the authors? - Monopoly of authors is neither unlimited nor primarily designed to provide a special private benefit - Grant which an important public purpose may be achieved - Copyright act must be construed in light of this basic purpose
COPYRIGHT LIMITATIONS - Period during which enjoyment and exploitation are exclusively reserved to their authors or creators - Lifetime of author PLUS 50 years after his death - Some countries: lifetime PLUS 70 years after his death
BALANCING PRIVATE RIGHT v. PUBLIC INTEREST - Profit from their work is merely a SECONDARY CONSIDERATION - Designed to move authors to harness their talents to create - PRIMARY OBJECT: Lapse of said monopoly, works become part of the public domain freely accessible by the public LIP: Session 1 9 - BUT: to effectively motivate the creativity of authors, special reward must be real and really protected.
INTERNET: BANE OR BOON TO COPYRIGHT AND RELATED RIGHTS - Made available in internet without the authorization of the creators - INTERNET, worlds biggest copy machine - Whether the law provides legal protection in the internet? - Copyright law apply to DIGITAL WORKDS
HOW SERIOUS IS THE PROBLEM O COPYRIGHT INFRINGEMENT ON THE INTERNET? - IIPA: 23.76% worldwide Internet traffic is copyright infringing (2011) - Eg: online piracy, book and journal publishers are plagued by sites, counterfeit business software products - ARROYO: Fighting piracy is gihting poverty because it enables Filipino excellence and enterprise to rise in the global arena, expanding opportunities and jobs along the way. It promotes local talent and creativity.
WIPO INTERNET TREATIES? 1. WIPO Copyright Treaty 2. WIPO Performances and Phonograms Treaty
Technological protection measures technolofgies used to control access to copyright content, prevent users from copying protected content. EG: a. Cryptography b. Passwords c. Digital signatures d. Copy control e. Serial copy management f. Digital taping devises
PHILIPPINES LEGAL FRAMEWORK TO PROTECT COPYRIGHT AND RELATED RIGHTS
1. IP CODE 1998 2. PD 49, before IP Code 3. OPTICAL MEDIA LAW RA 9239 response to the clamor of the copyright-based industries in the PH (proliferation of CDs, VCDs, DVDs) 4. Anti-camcording law 2010 5. Electronic Commerce Act of 2009 promote the universal use of electronic transaction in the government and general public a. Penalizes hacking and piracy b. Hacking unauthorized access in a computer system or server to corrupt, alter or steal dommunication devices without knowledge and consent of the owner c. Piracy unauthorized reproduction, dissemination, distribution, importation, use, removal, making available to the public, works protected or copyrighted works 6. RA 10372 COPYRIGHT AMENDMENTS TO THE IP CODE (2013)
QUESTION: Does it meet the challenges of effectively protecting copyright in the Internet?
a. Articles 11 and 12 of WCT and b. Articles 18 and 19 of WPPT
1. Liability of internet service providers VICARIOUS LIABILITY: a. Having notice of an infringement by another person and exercising right and ability to control the former b. Benefits from the infringements Sec 216 of the IP Code principle of landlord liability in identifying persons who commit infringement
ISP NOT LIABLE IF: a. No actual knowledge of activity b. Not aware of facts c. Upon obtaining facts, acts expeditiously to remove or disable access to the material d. Do not receive financial benefit e. Notification of claimed infringement, responds
2. Definition and scope of TPMs technological measure a. Any technology, device or component that in the normal course of its operation, controls access to a protected work, or any rights related to copyright. 3. Implementation of the TPMs and RMIs by the Copyright Amendments a. Infringer liable for actual damages i. Circumvents effective technological measure ii. Reasonable grounds to know that it will induce the infringement iii. Alters any electronic rights management from a copy of a work b. Option of copyright owner, statutory damages i. Not less than P50K c. P10K infringer was not aware and had no reason to believe that his acts constitute infringement of copyright
OMISSIONS, FOLLOWING QUESTIONS ARISE: 1. After proving the damages, may the court award double damages in case where defendant distribute, import works knowing that electronic right management information has been removed without authority? 2. In case infringer proves that he was not aware, may the court impose double damages? 3. Are these acts to be considered an aggravating circumstance?
ADEQUATE LEGAL PROTECTION AND EFFECTIVE LEGAL REMEDIES legal machinery that is able to produce, protection.
CONCLUSION:
- IP Code, far from perfect - Amendments seek to bring PH Law to the doorstep of the digital age - WIPO came into force in the PH Oct 4, 2002 - New problems are emerging - Find answers and solutions.
- oOo -
! COPYRIGHT: WHAT WORKS ARE PROTECTED; WHAT WORKS ARE NOT
IP CODE:
CHAPTER II - ORIGINAL WORKS
Sec. 172. Literary and Artistic Works. - 172.1 Literary and artistic works, hereinafter referred to as "works", are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular: (a) Books, pamphlets, articles and other writings; (b) Periodicals and newspapers; (c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form; (d) Letters; LIP: Session 1 10 (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. (Sec. 2, P. D. No. 49a)
Chapter III DERIVATIVE WORKS
Sec. 173. Derivative Works. - 173.1. The following derivative works shall also be protected by copyright: (a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and (b) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents. (Sec. 2, [P] and [Q], P. D. No. 49) 173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as a new works:
Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. (Sec. 8, P. D. 49; Art. 10, TRIPS)
Sec. 174. Published Edition of Work. - In addition to the right to publish granted by the author, his heirs or assigns, the publisher shall have a copy right consisting merely of the right of reproduction of the typographical arrangement of the published edition of the work. (n)
Chapter IV WORKS NOT PROTECTED
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)
CASES: FRANCISCO G. JOAQUIN, JR., and BJ PRODUCTIONS, INC., petitioners, vs. HONORABLE FRANKLIN DRILON, GABRIEL ZOSA, WILLIAM ESPOSO, FELIPE MEDINA, JR., and CASEY FRANCISCO, respondents. G.R. No. 108946 January 28, 1999 FACTS: - Petitioner BJ Productions, Inc. (BJPI) is the holder/grantee of Certificate of Copyright No. M922, dated January 28, 1971, of Rhoda and Me, a dating game show aired from 1970 to 1977. - petitioner BJPI submitted to the National Library an addendum to its certificate of copyright specifying the show's format and style of presentation. - while watching television, petitioner Francisco Joaquin, Jr., president of BJPI, saw on RPN Channel 9 an episode of It's a Date, which was produced by IXL Productions, Inc - he wrote a letter to private respondent Gabriel M. Zosa, president and general manager of IXL, informing Zosa that BJPI had a copyright to Rhoda and Me and demanding that IXL discontinue airing It's a Date. - Zosa apologized to petitioner Joaquin and requested a meeting to discuss a possible settlement. - Zosa sought to register IXL's copyright to the first episode of It's a Date for which it was issued by the National Library a certificate of copyright - an information for violation of P.D. No. 49 was filed against private respondent Zosa - respondent Zosa sought a review of the resolution of the Assistant City Prosecutor before the Department of Justice. - DENIED BY SOJ - HENCE THIS PETITION - Both public and private respondents maintain that petitioners failed to establish the existence of probable cause due to their failure to present the copyrighted master videotape of Rhoda and Me. They contend that petitioner BJPI's copyright covers only a specific episode of Rhoda and Me and that the formats or concepts of dating game shows are not covered by copyright protection under P.D. No. 49. - SOJ: o The essence of copyright infringement is the LIP: Session 1 11 copying, in whole or in part, of copyrightable materials as defined and enumerated in Section 2 of PD. No. 49. Apart from the manner in which it is actually expressed, however, the idea of a dating game show is, in the opinion of this Office, a non- copyrightable material. Ideas, concepts, formats, or schemes in their abstract form clearly do not fall within the class of works or materials susceptible of copyright registration as provided in PD. No. 49. - the substance of the television productions complainant's "RHODA AND ME" and Zosa's "IT'S A DATE" is that two matches are made between a male and a female, both single, and the two couples are treated to a night or two of dining and/or dancing at the expense of the show. The major concepts of both shows is the same. Any difference appear mere variations of the major concepts. - Petitioners assert that the format of Rhoda and Me is a product of ingenuity and skill and is thus entitled to copyright protection. It is their position that the presentation of a point-by-point comparison of the formats of the two shows clearly demonstrates the nexus between the shows and hence establishes the existence of probable cause for copyright infringement. Such being the case, they did not have to produce the master tape.
ISSUE: Whether format of a show is copyrightable? HELD: NO. Sec 2, PD 49 - 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. - 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 BJPI's 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. FILIPINO SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, INC., plaintiff-appellant, vs. BENJAMIN TAN, defendant-appellee. G.R. No. L-36402 March 16, 1987 FACTS: - Plaintiff-appellant is a non-profit association of authors, composers and publishers duly organized under the Corporation Law of the Philippines and registered with the Securities and Exchange Commission. Said association is the owner of certain musical compositions among which are the songs entitled: "Dahil Sa Iyo", "Sapagkat Ikaw Ay Akin," "Sapagkat Kami Ay Tao Lamang" and "The Nearness Of You." - On the other hand, defendant-appellee is the operator of a restaurant known as "Alex Soda Foundation and Restaurant" where a combo with professional singers, hired to play and sing musical compositions to entertain and amuse customers therein, were playing and singing the above-mentioned compositions without any license or permission from the appellant to play or sing the same. Accordingly, appellant demanded from the appellee payment of the necessary license fee for the playing and singing of aforesaid compositions but the demand was ignored. - appellant filed a complaint with the lower court for infringement of copyright against defendant-appellee for allowing the playing in defendant-appellee's restaurant of said songs copyrighted in the name of the former. - ANSWER: mere singing and playing of songs and popular tunes even if they are copyrighted do not constitute an infringement - LC: Dismissed the complaint ISSUE: Whether or not the playing and signing of musical compositions which have been copyrighted under the provisions of the Copyright Law (Act 3134) inside the establishment of the defendant- appellee constitute a public performance for profit within the meaning and contemplation of the Copyright Law of the Philippines; and assuming that there were indeed public performances for profit, whether or not appellee can be held liable therefor. HELD: Petition is DEVOID of merit. PETITIONER ANCHORS: Section 3(c) of the Copyright Law which provides: SEC. 3. The proprietor of a copyright or his heirs or assigns shall have the exclusive right: xxx xxx xxx (c) To exhibit, perform, represent, produce, or reproduce the copyrighted work in any manner or by any method whatever for profit or otherwise; if not reproduced in copies for sale, to sell any manuscripts or any record whatsoever thereof; We concede that indeed there were "public performances for profit. " The word "perform" as used in the Act has been applied to "One who plays a musical composition on a piano, thereby producing in the air sound waves which are heard as music ... and if the instrument he plays on is a piano plus a broadcasting apparatus, so that waves are thrown out, not only upon the air, but upon the other, then also he is performing the musical composition." - If the rights under the copyright are infringed only by a performance where money is taken at the door, they are very imperfectly protected. Performances not different in kind from those of the defendants could be given that might compete with and even destroy the success of the monopoly that the law intends the plaintiffs to have. It is enough to say that there is no need to construe the statute so narrowly. - The defendants' performances are not eleemosynary. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order is not important. LIP: Session 1 12 It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere. - The object is a repast in surroundings that to people having limited power of conversation or disliking the rival noise, give a luxurious pleasure not to be had from eating a silent meal. If music did not pay, it would be given up. If it pays, it pays out of the public's pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough - 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. - appellee cannot be said to have infringed upon the Copyright Law. Appellee's allegation that the composers of the contested musical compositions waived their right in favor of the general public when they allowed their intellectual creations to become property of the public domain before applying for the corresponding copyrights for the same - 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.