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© 2018, Marco Polo E. Cunanan

All Rights Reserved.
LAWS ON COPYRIGHT

Atty. Marco Polo E. Cunanan

Lecturer, Copyright and Intellectual Property Law
Tarlac State University School of Law

APPLICABLE LAWS DEFINITION OF COPYRIGHT

1. Republic Act No. 8293 (Intellectual • The rights that creators

Property Code) have over their literary
2. Republic Act No. 10372 (Amendments on and artistic works.
IPC)
• It is a legal concept that
gives the creator of an
original work exclusive
rights to it, usually for a
limited period of time.

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OTHER IPR: TRADEMARK AND PATENT DOCTRINE OF AUTOMATIC PROTECTION

Trademark • Works are protected by the

1. It is a visible sign sole fact of their
2. It is capable of distinguishing the goods creation, irrespective of
(trademark) or services (service mark) of an their mode or form of
enterprise expression, as well as of
their content, quality and
purpose.
Patent
• Exclusive right granted for an invention which is
new, involves an inventive step and is
industrially applicable.

COPYRIGHT DISTINCT FROM MATERIAL OBJECT NOT REQUIRED FOR COPYRIGHT PROTECTION

• The transfer of the work or • Novelty

even the only copy thereof
o The work need not be new, but it
shall not itself constitute
transfer of copyright. must be original.
o Original means “coming from
someone as the author.”

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NOT REQUIRED FOR COPYRIGHT PROTECTION NOT REQUIRED FOR COPYRIGHT PROTECTION
Intent to be Original
• Intent to be Original
o A copyist's bad eyesight or defective
musculature, or a shock caused by a
clap of thunder, may yield sufficiently
distinguishable variations. Having hit
upon such a variation unintentionally,
the "author" may adopt it as his and
copyright it. (Alfred Bell v. Catalda Fine
Arts)

Source: coolcopyright.com

NOT REQUIRED FOR COPYRIGHT PROTECTION

CREATION OF WORKS
• Principle of Aesthetic Neutrality
o The quality or artistic character of both
• Protected are “original intellectual
the plaintiff’s work and the defendant’s creations in the literary and artistic
work are said to be irrelevant. domain protected from the moment of
their creation.” (IPC)
• Requirements:
1. Originality
2. Expression

Photo Source: Wikipedia, SurfExcel

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EXPRESSION EXPRESSION

• When an idea is expressed or fixed in some

tangible medium.
• Not limited to sense of touch.
• Messenger chat considered a “work?”

Source: http://uufsd.org/sandmandala/

CREATIVITY REQUIRED?

• YES.
• A work must possess “at least some
minimal degree of creativity.” The
requisite level of creativity is extremely low;
even a slight amount will suffice. (Feist
Publications v. Rural Telephone)

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COPYRIGHTABLE WORKS
1. Books, pamphlets, articles and other writings;
2. Periodicals and newspapers;
3. Lectures, sermons, addresses, dissertations
prepared for oral delivery, whether or not reduced
in writing or other material form;
4. Letters;
5. Dramatic or dramatico-musical compositions;
choreographic works or entertainment in dumb
shows;
6. Musical compositions, with or without words;
7. Works of drawing, painting, architecture,
sculpture, engraving, lithography or other works
of art; models or designs for works of art;
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COPYRIGHTABLE AND NON-
COPYRIGHTABLE WORKS
COPYRIGHTABLE WORKS
8. Original ornamental designs or models for articles of
manufacture, whether or not registrable as an industrial
design, and other works of applied art;
9. Illustrations, maps, plans, sketches, charts and three-
dimensional works relative to geography, topography,
architecture or science;
10. Drawings or plastic works of a scientific or technical
character;
11. Photographic works including works produced by a process
analogous to photography; lantern slides;
12. Audiovisual works and cinematographic works and works
produced by a process analogous to cinematography or any
process for making audio-visual recordings;
13. Pictorial illustrations and advertisements;
14. Computer programs; and
15. Other literary, scholarly, scientific and artistic works.
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BOOKS, PAMPHLETS, ARTICLES AND OTHER WRITINGS

• Publication not required for protection.

• The literary and artistic content, story (fiction),
factual compilations (not facts), selections and
arrangements are all protected by copyright.
• Is a website’s privacy policy and terms of service
protected by copyright?
• YES. They are covered under the category “other
writings.”

Photo source:
www.legalsportsreport.com

• If article appears in a journal, both works enjoy

distinct copyright protection.
• Reminder:
• The submission of a literary, photographic or artistic
PERIODICALS AND NEWSPAPERS work to a newspaper, magazine or periodical for
publication shall constitute only a license to make
• News article is protected, the news a single publication unless a greater right is
expressly granted. (IPC)
itself is not.

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LECTURES, SERMONS, SPEECHES LETTERS

• Protected whether reduced in writing or not. • Letter is owned by the receiver.

• Impromptu speech is protected. • Copyright over the content of the letter
remains to the author.
• Query: Chat and SMS messages protected
by copyright?

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DRAMATICO-MUSICAL COMPOSITIONS MUSICAL COMPOSITIONS

• Operas, plays, musicals • When the composition consists of melody

• Choreography (except and lyrics, both together enjoy copyright.
social dance steps e.g. • Lyrics alone will be dealt with as a literary
swing, cha-cha, boogie) work.
• Dumb shows (silent • What if X uses Y’s poem as lyrics in his
movies, pantomimes) song, infringement?
Photo source: Wikipedia

DRAWING, PAINTING, SCULPTURE DRAWING, PAINTING, SCULPTURE

• It is only required that they • Who owns the copyright?

be works of art.
• It is not required that they
possess specific artistic or
creative qualities.

Photo source: jdhillberry.com

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APPLIED ART APPLIED ART: CHING V. SALINAS

• A "work of applied art" is an artistic creation with • Leaf Spring Eye Bushing for Automobiles are Utility
utilitarian functions or incorporated in a useful article, Models and not Applied Art.
whether made by hand or produced on an industrial
scale (IPC)

Photo source: CopyrightX Photo source: CopyrightX

ILLUSTRATIONS, MAPS, SKETCHES ILLUSTRATIONS, MAPS, SKETCHES

• Protected anent maps: the selection, arrangement

and presentation of the component parts.
• Drawing of body parts, cells, cell-structures, atoms and
atomic configurations found in medical books are
copyrightable.

Photo source: Library of Congress

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CHARACTERS PHOTOGRAPHIC, AUDIOVISUAL WORKS AND

ADVERTISEMENTS
• Fictional characters enjoy
separate copyright protection • Photos and movies: The selecting, arranging and
independent to the novel or a posing of the subject and background, the light and
movie in which it appears. shade arrangements all fulfill the requirement of
• Not all fictional characters originality.
enjoy protection • Advertisements: Protected whether for commercial or
non-commercial use

Source: Glowroad.com

COMPUTER PROGRAMS COMPUTER PROGRAMS

• Copyright and NOT patent protection

(unless computer-related invention)
• Even source code of a software is
protected.
• Subject to limitations on decompilation
and fair use

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DERIVATIVE WORKS DERIVATIVE WORKS

• Works that are based upon one or more pre-existing

works.
• Dramatizations, translations, adaptations,
abridgments, arrangements, and other alterations
of literary or artistic works. (IPC)
• 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. (IPC)

Source: TheNewsGeeks.com

DERIVATIVE WORKS NON-COPYRIGHTABLE WORKS

• Permission of the author of the underlying work is
REQUIRED.
• Absent said consent, the derivative work is
unlawful thus without copyright protection.
• Different if only facts were copied and used in the
derivative work.
• Use of copyrighted work in a derivative work does
not confer copyright over underlying work
1. Idea, procedure, system, method or operation,
concept, principle, discovery or mere data
2. News of the day
3. Official government texts from the three branches
of the government

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JOAQUIN V. DRILON: FORMAT OF A SHOW

 Alleged similarities in format:

1. Unmarried participant
2. Searcher asks a question, to be answered by each
of the searchees
3. Searcher speculates and selection is made by

 HELD: Non-copyrightable!
COPYRIGHT OWNERSHIP

SINGLE AUTHOR JOINT CREATION

• Copyright is owned by the author, his heirs
or assigns.
• General rule: If two or more authors, then they
are co-owners of the copyright.
• Exception: If a work of joint authorship consists of
parts that can be used separately and the author
of each part can be identified, then each author
owns copyright on his part.

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EMPLOYEE’S CREATION COMMISSIONED WORK

• If work is created as part of employee’s regular • Ownership of the work: PERSON WHO
duties, then EMPLOYER. COMMISSIONED.
• If work is created NOT as part of employee’s • Copyright over the work: AUTHOR/CREATOR.
regular duties, then EMPLOYEE. • Exception: WRITTEN agreement to the contrary.
• What if employee used the time, facilities and materials of the
employer?
• Tip for employers: Define properly the duties and
responsibilities of employees

ANONYMOUS AND PSEUDONYMOUS WORKS

• PUBLISHERS own the

copyright.
• UNLESS:
1. The pseudonyms or adopted name
leaves no doubt as to the author’s
identity.
2. The author of the anonymous works
discloses his identity.
RIGHTS OF COPYRIGHT OWNER
Source: Goodreads.com

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RIGHTS OF COPYRIGHT OWNER
1. Economic rights
2. Moral rights
RIGHT OF REPRODUCTION
• Reproduction is the making of one (1) or
more copies, temporary or permanent,
in whole or in part, of a work or a sound
recording in any manner or form.
• Copies reproduced must be substantial.
• Apply the substantial reproduction ruling
in Habana v. Robles case.
• Three factors: COPYING, COPIES, and
IMPROPER APPROPRIATION
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ECONOMIC RIGHTS
1. Right of reproduction
2. Right to dramatization and adaptation
3. Right to first public distribution
4. Right to rental
5. Right to public display
6. Right to public performance
RIGHT OF REPRODUCTION: COPYING
• Independent creation is a valid defense.
• Forms:
1. Mechanical reproduction
2. Subconscious copying (not yet in Philippine
jurisprudence)
3. Replicating in different medium
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RIGHT OF REPRODUCTION: IMPROPER APPROPRIATION IOWA STATE V. AMERICAN BROADCASTING COMPANY

• Subject matter: 28-minute short
• Ways to prove: biography film of Dan Gable, a
1. Comprehensive copying champion wrestler in 1972
Olympics.
2. Fragmented literal similarity • ABC used:
1. Seven to twelve seconds of
Champion were shown on ABC's pre-
olympic telecast on August 25, 1972;
2. 2½ minutes were used as part of an
ABC report on Gable before his first
Olympic wrestling match on August
27; and
3. Eight seconds were telecast in
connection with Gable's appearance on
ABC's Superstars program in February Source: Amazon
1974

RIGHT TO DRAMATIZATION AND ADAPTATION RIGHT TO FIRST PUBLIC DISTRIBUTION

• Consistent with the rules on derivative
work.
• Possible defense: Infringing work based on
facts or works part of public domain
• First public distribution: sale or any
mode or transfer of the work
• New owner has control over subsequent
sale or transfer of the work or copy
obtained.
• Apply rule on separability of copyright and
work.

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RIGHT TO RENTAL RIGHT TO PUBLIC DISPLAY

• Rental is the transfer of the possession of
the original or a copy of a work or a sound
recording for a limited period of time, for
profit-making purposes. (IPC)
• Covered works: Cinematographic or
audiovisual works, sound recordings,
computer programs and compilation of data
• Right exists irrespective of the ownership
of the original or the copy which is the
subject of the rental
• It is the right of the copyright owner to
display or show the work or an image
thereof to the public
• Covered works: Literary, pictorial,
graphic, sculptural and individual images
of a motion picture
• Display of work in schools, lodges, offices
are covered.

RIGHT TO PUBLIC PERFORMANCE

• It is to perform a work at a place open to

the public or at any place where a
substantial number of persons outside
of a normal circle of a family and its
social acquaintances is gathered.
• Film viewing of a movie in a class valid?

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MORAL RIGHTS
1. Right of attribution
2. Right of alteration
3. Right to object
4. Right to restrain use of name
RIGHT OF ATTRIBUTION
• Collective work: a work which has been
created by two (2) or more natural persons
at the initiative and under the direction of
another with the understanding that it will
be disclosed by the latter under his own
name and that contributing natural
persons will not be identified (IPC)
• Right of attribution of true author is
deemed waived.
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RIGHT OF ATTRIBUTION
• The right that the author’s name, as far as
practicable, be indicated in a prominent
way on the copies, and in connection with
the public use of his work.
• It is a perpetual right.
RIGHT OF ALTERATION
• Right to make any alterations of his work
prior to, or to withhold it from publication.
• Authors cannot be compelled to create or
publish a work.
• Query: What if an employee refuses to
create or perform a “work”?
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RIGHT TO OBJECT
• 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.
• Balance this right with parody (protected
work)
WAIVER OF MORAL RIGHTS
• General rule: Waivable, in writing.
• Exceptions:
1. If it tends to injure the literary or artistic
reputation of the author.
2. Use the name of the author with respect to a
work he did not create.
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RIGHT TO RESTRAIN USE OF NAME
• Right to restrain the use of his name with
respect to any work not of his own
creation or in a distorted version of his
work.
NATURE OF REGISTRATION
• Registration and deposit is not a condition
of copyright protection. (IPC)
• Copyright certificates are only prima
facie evidence of validity and ownership.
• No copyright accrues despite issuance of
certificates of registration and deposit.
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NOTICE REQUIREMENT

• Each copy of a work may contain a notice bearing:

a) Name of the copyright owner
b) Year of its first publication

c) In copies produced after the creator’s death, the

year of such death

Source: askedwell2017.blogspot.com

TERM OF PROTECTION

Lifetime of author + 50 years after

Single known author death

Lifetime of last surviving author + 50

Joint authorship years after his death

IF REMAINED UNKNOWN and WORK

PUBLISHED: 50 years from date of first
lawful publication

TERM OF PROTECTION IF REMAINED UNKNOWN and WORK

Anonymous or Pseudonymous works NOT PUBLISHED: 50 years from date of
making

IF IDENTITY REVEALED OR NO
DOUBT: Lifetime + 50 years after death

25 years from date of making

Works of applied art

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TERM OF PROTECTION TERM OF PROTECTION

IF PUBLISHED: 50 years from date of • The term of protection subsequent to the death of
publication
Photographic works and the author shall run from the date of his death or
Audio-visual works IF NOT PUBLISHED: 50 years from date of publication, but such terms shall always be
of making
deemed to begin on the first day of January of
Performances not 50 years from the END of the year in which the year following the event which gave rise to
incorporated in sound the performance took place. them. (IPC)
recordings
Sound or image and sound 50 years from the end of the year in which
recordings and for the recording took place.
performances incorporated
therein
20 years from the date of broadcast took
place
Broadcast

QUOTATIONS FROM A PUBLISHED WORK

 Requisites:
a) Making of quotations from a published work
b) Must be compatible with FAIR USE
c) Only to the extent justified for the purpose
d) Source and name of author are mentioned

LIMITATIONS ON COPYRIGHT

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REPORTS ON LITERARY, SCIENTIFIC INCLUSION OF WORK FOR TEACHING

OR ARTISTIC WORKS PURPOSES

 Requisites
a) Literary, scientific or artistic works were made
part of reports of current events
b) By means of photography, cinematography or
broadcasting
c) To the extent necessary for the purpose
 Requisites
a) Inclusion of work in publication, broadcast
sound recording or film
b) For teaching purposes
c) It must be compatible with FAIR USE
d) Source and name of author are mentioned

USE BY GOVERNMENT, NATIONAL PUBLIC PERFORMANCE FOR

LIBRARY AND INSTITUTIONS EDUCATIONAL OR CHARITABLE
 Requisites
PURPOSE
a) The use of work made by or under the control of  Requisites
Government, National Library or educational, a) Public performance or communication to public
scientific or professional institutions of a work
b) Use is for public interest b) In a place where no admission fee is charged
c) Use is compatible with fair use c) By a club or institution for charitable or
educational purpose only
d) Must NOT be for profit making

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PUBLIC DISPLAY OF PUBLISHED, SOLD REPRODUCTION OR DISTRIBUTION OF

ARTICLES IN SPECIALIZED FORMATS FOR
OR TRANSFERRED WORK
THE BLIND AND VISUALLY IMPAIRED
 Requisites PERSONS
a) Public display of the original or copy of the work  Requisites
b) Work must be published, sold, given away, or a) Reproduction or distribution of PUBLISHED
transferred by the AUTHOR or his articles in specialized format
SUCCESSOR IN TITLE
b) Exclusively for the use of the blind, visually and
c) Excludes film, television image or any similar reading impaired persons
work
c) For nonprofit purpose
d) The copyright owner and date of original
publication shall be indicated
o New provision under RA 10372

FAIR USE DOCTRINE FAIR USE DOCTRINE

 The fair use of a copyrighted work for criticism,  Four factors
comment, news reporting, teaching including a) Purpose of use
limited number of copies for classroom use, b) Nature of work
scholarship, research, and similar purposes is not c) Amount of copying
an infringement of copyright. (IPC) d) Impact on potential market
 RA 10372 changed “multiple copies” to “limited o None is determinative; case-to-case basis
number of copies.”
2. Non-profit purpose
REPROGRAPHIC REPRODUCTION BY 3. Make limited number of copies
LIBRARIES 4. Only as necessary to fulfill their mandate

 Reproduction even without consent of author: 5. Only as to the instances allowed by law

1. By library or archive

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REPROGRAPHIC REPRODUCTION BY
LIBRARIES
 When reprographic reproduction allowed:
1. Fragile or rare works
2. Isolated articles in composite works
3. As preservation or replacement copies (RA 10372
allowed “limited copies” instead of “single copy”)
REPRODUCTION OF COMPUTER PROGRAM
 Reproduction even without consent of author:
1. Only one (1) copy is allowed
2. By the lawful owner of the computer program
3. Purpose:
a) Use of the software so requires

b) For archival or replacement purpose

o Rule when volume is out of stock: Every library
which, by law, is entitled to receive copies of a printed
work, shall be entitled, when special reasons so
require, to reproduce a copy of a published work
which is considered necessary for the collection
of the library but which is out of stock. (IPC)

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COPYRIGHT INFRINGEMENT
PLAGIARISM
 The theft of another persons language, thoughts, or
ideas.
 The passing off of the work of another as ones
and used in the manuals of Respondents, either verbatim
or with modification; while from the book of Jensen-
Chenoweth, 52 sentences and figures were likewise
taken and used in Respondents' manuals.
Respondents were dismissed. The Supreme Court held
the dismissal VALID.
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WHO MAY BE LIABLE
1. One who commits infringement
2. One who benefits from the infringing act,
provided:
a) He has been notified of infringing activity; and
b) He has the right and ability to control the
activities of the infringer
3. One who knowingly induces, causes, or
materially contributes to the infringing act
own is thus an indispensable element of plagiarism
 Plagiarism presupposes intent and a deliberate,
conscious effort to steal another’s work and pass it
off as ones own. (Justice Del Castillo case)
REMEDIES
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THE END
REMEDIES
1. Criminal case for infringement
2. Administrative case
3. Cancellation of the registration

4. Injunction

5. Actual damages, statutory damages, moral

damages, exemplary damages
6. Impoundment

7. Destruction

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