Annexes Of Summer Reviewer

Annex A - CLASSES OF MERCHANTS Foreign Merchants To be a merchant in the Philippines, foreign individuals are: 1. Subject to the laws of their country with respect to their capacity to contract 2. Subject to the provisions of the Code of Commerce as regard the creation of their establishments in Philippine territory, their mercantile operations and the jurisdiction of the Philippine courts

To be a merchant in the Philippines, foreign corporations need a license from the Securities and Exchange Commission, as a general rule. The above-mentioned provisions shall be understood to be without prejudice to what, in particular cases, may be established by treaties or agreements with other powers. (Art. 15, Code of Commerce)

Filipino Merchants To be a Filipino merchant, an individual must have: 1. Legal capacity to engage in commerce 2. Habitually engage himself therein 3. Be 18 years of age (RA 6809) 4. Not subject to the authority of the father or the mother not to marital authority 5. Free disposition of his property (Art. 1 and Art. 4, Code of Commerce) A Filipino corporation or association, to be a merchant, must be: 1. Commercial or industrial companies 2. Created in accordance with existing legislation 3. With legal capacity to engage in commerce and; 4. Habitually engaged therein.

Annex B – RULE ON COMMERCIAL REGISTRIES

1. Where to register

2. Registration: Optional or mandatory

Individual merchants In Metro Manila: Bureau Domestic Trade

of

In the provinces: Register of Deeds Optional

Juridical Persons Securities and Exchange Commission

Shipowners Bureau of Coast Guard at the various points of entry in the Philippines

Compulsory

Compulsory – for those with gross tonnage of 3 tons

Partnerships with a capital of 3,000 pesos or more or where the contributions consists of real properties is compulsory. (Article 1772, Civil Code) QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

3. Effect of Failure to Register

Individual merchant cannot: 1. request the inscription of any document in the mercantile registry nor 2. take advantage of its effects (Article 18, Code of Commerce)

Corporations: Failure to register the articles of incorporation will not create the corporation. Partnerships: Failure to register does not affect the existence of the juridical personality, whether or not it has a capital of 3,000 pesos or more or real estate properties in contributions by the

more than a

Issuance of Certificate of Philippine registry 1. compulsory - if vessel is more than 15 tons gross 2. optional – if vessel is 15 tons gross or less

partners. Annex C – COMPARISON OF JOINT ACCOUNT AND COMMERCIAL PARTNERSHIP

1. Common name 2. Common fund 3. Juridical personality 4. Liability of partners to third persons 5. Management

Joint Account None None None Only the ostensible partner is liable.

Commercial Partnership Exists Exists Exists All general partners are liable to third persons.

Account is managed by the ostensible partner alone.

All partners participate in the management, unless they agree to have a managing partner.

Annex D – COMMON TYPES OF LETTERS OF CREDIT 1. Irrevocable vs. Revocable

Revocable - can be cancelled or amended at any time before payment; it is intended to serve as a means of arranging payment but not as a guarantee of payment.

2. Confirmed vs. Unconfirmed

Irrevocable – obligates the issuing bank to honor drafts drawn in compliance with the credit and can be neither cancelled nor modified without the consent of all parties, including in particular the beneficiary/exporter. Confirmed – Both the drawer bank and the drawee bank are obligated to honor drafts in compliance with the credit.

3. Revolving vs. Non-Revolving

Unconfirmed – is the obligation only of the issuing bank. Revolving – is one that is valid for several transactions over a given period of time such as a week or a month. Most revolving letters of credit are issued in revocable form.

4. Cumulative vs. Non-Cumulative

Non-revolving – is one that is valid for one transaction only. Cumulative – is one wherein the undrawn amounts carry over to the future periods.

Non-cumulative – is one wherein any amount not used by the beneficiary during the specified period may not be drawn against in a later period. 5. Standby Letter A security arrangement for the performance of certain obligations. It can be drawn against only if another QuickTime™ and a d) decompressor transaction is not performed. It may be issued in lieu of a performance bond. of Credit TIFFare(Uncompresse business needed to see this picture.

6. Back to Back Letter of Credit

They cannot be controverted into contracts of guaranty because banks are not allowed to enter into contracts of guaranty or surety except in certain instances. This class of letters of credit are primary obligations, not accessory contracts. (Insular Bank of Asia vs. IAC et.al, G.R. No. 74834, November 17, 1988) A credit with identical documentary requirements and covering the same merchandise as another letter of credit, except for a difference in the price of the merchandise as shown by the invoice and the draft. The second letter can be negotiated only after the first is negotiated.

Annex E – OTHER LIABILITIES OF A WAREHOUSEMAN Situations Failure to mark a receipt intended to be non-negotiable as “non-negotiable” Failure to take up and cancel a negotiable receipt (i.e. one the negotiation of which would transfer the right to the possession of the goods) when goods are delivered Failure to take up and cancel a negotiable receipt or to place upon it a statement of what goods have been delivered, when goods are partly delivered Altered receipts

Effects A holder of a receipt who acquired the same for value supposing it to be negotiable may treat such receipt as imposing upon the warehouseman the same liabilities he would have incurred had the receipt been negotiable. Note: The ‘holder’ cannot be the original holder because, as the depositor, he is presumed to know whether he is getting a negotiable or a non-negotiable receipt. The warehouseman shall be liable for failure to deliver goods to anyone who purchases for value in good faith the receipt, whether or not purchaser acquired title to the receipt before or after the delivery of goods by the warehouseman. He shall be also guilty in such case of a crime punishable by fine, imprisonment or both. Exception: Warehouseman is not liable where the goods: 1. have been lawfully sold to satisfy the warehouseman’s lien 2. have been lawfully sold or disposed of because of their perishable or hazardous nature.

The warehouseman shall be liable for failure to deliver goods to anyone who purchases for value in good faith the receipt, whether or not purchaser acquired title to the receipt before or after the delivery of goods by the warehouseman. He shall be also guilty in such case of a crime punishable by fine, imprisonment or both.

Exception: Warehouseman is not liable where the goods: 1. have been lawfully sold to satisfy the warehouseman’s lien 2. have been lawfully sold or disposed of because of their perishable or hazardous nature. 1. Where alteration is immaterial – warehouseman shall be liable according to the terms of the receipts as originally issued. 2. Where alteration is authorized – warehouseman shall be liable according to the terms of the receipts as altered. QuickTime™ and a 3. TIFF (Uncompressed) decompressor Where the alteration is unauthorized but without fraudulent intent – warehouseman shall be liable are needed to see this picture. according to the terms of the receipts as they were before the alteration 4. Where the alteration is material and with fraudulent intent – warehouseman shall be liable according to the terms of the receipts as originally issued even: a. To a purchaser of a receipt for value without notice of the alteration b. To a person who made the alteration and c. To any person who took it with notice of the alteration. Note: Such material and fraudulent alteration shall excuse the warehouseman from any other liability to the said persons. Non-existence or General Rule: Warehouseman liable to the holder of a receipt for damages. misdescription of Exceptions: No such liability if the goods are described in the receipt merely –

goods

Situations Commingled goods

Issuing receipts for goods not received Issuing receipts containing false statements Issuing duplicate receipts not so marked Issuing receipts for the warehouseman’s goods which do not state the fact that goods are owned by him (the warehouseman), solely or jointly or in common with others. Delivery of goods without obtaining negotiable receipt

a. By a statement of marks or labels upon them or upon the packages containing them b. By a statement that the goods are of a certain kind or that the packages containing the goods contain goods of a certain kind or by words of similar import Effects Warehouseman shall be liable severally to each depositor for the care and re-delivery of the depositor’s share of the mass of commingled goods to the same extent and under the same circumstances as if the goods had been kept separate. Warehouseman shall be guilty of a crime punishable by fine or imprisonment, or by both. Warehouseman shall be guilty of a crime punishable by fine or imprisonment, or by both.

General Rule: Warehouseman shall be guilty of a crime punishable by fine or imprisonment, or by both. Exception: In case of a lost or destroyed receipt after proceedings as provided for in Sec. 14 Warehouseman shall be guilty of a crime punishable by fine or imprisonment, or by both.

Warehouseman shall be guilty of a crime punishable by fine or imprisonment, or by both.

Note: Liability for the aforementioned acts is not limited to the warehouseman only but may extend to any officer, agent or servant of the warehouseman. Annex F – NEGOTIABLE INSTRUMENTS vs. NEGOTIABLE DOCUMENTS OF TITLE

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Negotiable Instruments

Negotiable Documents of Title

Have requisites of Sec. 1 of the NIL Have right of recourse against intermediate parties who are secondarily liable Holder in due course may have rights better than transferor Subject is money Instrument itself is property of value

does not contain requisites of Sec. 1 of NIL no secondary liability of intermediate parties

transferee merely steps into the shoes of the transferor subject is goods instrument is merely evidence of title; thing of value are the goods mentioned in the document

Annex G – NEGOTIABLE INSTRUMENTS VS. NON-NEGOTIABLE INSTRUMENTS Negotiable Instruments Contains all the requisites of Sec. 1 of the NIL Transferred by negotiation Holder in due course may have better rights than transferor Prior parties warrant payment Transferee has right of recourse against intermediate parties

Non-negotiable Instruments Does not contain all the requisites of Sec. 1 of the NIL Transferred by assignment Transferee acquires rights only of his transferor Prior parties merely warrant legality of title QuickTime™ and a has no right of TIFFTransferee (Uncompressed) decompressor are needed to see this picture. recourse

Annex H – REMEDIES OF THE TRUE AND ACTUAL INVENTOR Section 68. If a person, who was deprived of the patent, without his consent or through the fraud is declared by final court order or decision to be the true and actual inventor, the court shall: 1. Order for his substitution as patentee or

Section 67. The person having the right to the patent, pursuant to Section 68, may, within three (3) months after the decision has become final: 1. Prosecute the application as his own application in place of the applicant;

2. At the option of the true inventor, cancel the patent and 3. Award actual and other damages in his favor, if warranted by the circumstances.

(Section 69) Publication of the Court Order in Sections 67 and 68 must be made in the 1. IPO Gazette, 2. Within three (3) months from the date such order or decision became final and executory and 3. Shall be recorded in the register of the Office.

2. File a new patent application in respect of the same invention; 3. Request that the application be refused; or 4. Seek the cancellation of the patent, if one has already been issued. The new patent application in this section shall also comply with the requirement of the unity of invention rule. (Section 70) Time to file Action in Court – Actions in Sections 67 and 68 must be filed within one (1) year from the date of the publication of the application and the refusal to grant patent by the Director, respectively.

Annex I – REMEDIES OF A PATENT OWNER AGAINST INFRINGEMENT CIVIL ACTION FOR INFRINGEMENT WHO MAY FILE – 1. Any patentee 2. Anyone possessing any right, title or interest in and to the patented invention whose rights have been infringed

CRIMINAL ACTION FOR REPETITION OF INFRINGEMENT WHAT - Infringement is repeated

Be CIVILLY LIABLE for: 1. damages sustained thereby – if inadequate or cannot be readily ascertained with reasonable certainty, the court may award by way of damages a sum equivalent to reasonsable royalty. Court, according to the circumstances of the case, may award damages in a sum above the amount found as actual damages sustained, provided it does not exceed three (3) times the amount of such actual damages. 2. attorney’s fees and other expenses of litigation

WHEN – After the finality of the judgment of the court against the infringer

COURT may – 1. upon petition of the aforementioned, order an injunction for the protection of the rights of a patentee or anyone possessing any right, title or interest in and to the patented inventions whose rights have been QuickTime™ and a infringed TIFF (Uncompressed) decompressor are needed to see this picture. 2. in its discretion, order that the infringing goods, materials and implements predominantly used in the infringement be disposed of outside the channels of commerce or destroyed, without compensation.

WITHOUT prejudice to the institution of a civil action for damages

WHO MAY BE HELD LIABLE – The infringer or by anyone in connivance with him

Be CRIMINALLY LIABLE therefore, and upon conviction, shall: 1. suffer imprisonment for the period of not less than six (6) months but not more than three (3) years and/or 2. fine not less than One hundred thousand pesos (P100,000) but not more than Three hundred thousand pesos (P300,000), at the discretion of the court.

PRESCRIPTION – Crime shall prescribe in three (3) years from the date of the commission of the crime

Annex J – PROHIBITED CLAUSES AND MANDATORY CLAUSES IN A VOLUNTARY LICENSING CONTRACT PROHIBITED CLAUSES - Except in cases under Section 91, the following provisions shall be deemed prima facie to have an adverse effect on competition and trade:

MANDATORY CLAUSES – The following provsions shall be included in a voluntary license contract

1. those which impose upon the licensee the obligation to acquire them from a specific source capital goods, intermediate products, raw materials and other technologies, or of permanently employing personnel indicated by the licensor; 2. those pursuant to which the licensor reserves the right to fix the sale or resale prices of products manufactured on the basis of the license; 3. those that contain restrictions regarding the volume and structure of production; 4. those that prohibit the use of competitive technologies in a nonexclusive technology transfer agreement; 5. those that establish a full or partial purchase option in favor of the licensor; 6. those that obligate the licensee to transfer for free to the licensor the inventions or improvements that may be obtained through the use of the licensed technology; 7. those that require payment of royalties to the owners of patents for patents which are not used; 8. those that prohibit the licensee to export the licensed product unless justified for the protection of the legitimate interest of licensor such as exports to countries where exclusive licenses to manufacture and/or distribute the licensed products have already been granted; 9. those which restrict the use of the technology supplied after the expiration of the technology transfer arrangement, except in cases of early termination of the TTA due to reasons attributable to the licensee. 10. those which require the payment for patents and other industrial property rights after their expiration, termination arrangement; 11. those which require that the TTA recipient shall not contest the validity of any of the patents of the technology supplier; 12. those which restrict the research and development activities of the licensee designed to absorb and adapt the transferred technology to local conditions or to initiate research development programs in connection with new products, processes or equipment; 13. those which prevent the licensee from adapting the imported technology to local conditions, or introducing innovation to it, as long as and a it does not impair the QuickTime™ quality standards prescribed by the licensor; TIFF (Uncompressed) decompressor are needed to see this picture. 14. those which exempt the licensor for liability for non-fulfillment of his responsibilities under the TTA and/or liability arising from third party suits brought about by the use of the licensed product or the licensed technology and 15. other clauses with equivalent effects

1. That the laws of the Philippines shall govern the interpretation of the same and in the event of litigation, the venue shall be the proper court in the place where the licensee has its principal office; 2. Continued access to improvement in techniques and processes related to the technology shall be made available during the period of the TTA; 3. In the event the technology transfer arrangement shall provide for arbitration, the Procedure for Arbitration of the Arbitration Law of the Philippines or the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) or the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) shall apply and the venue of arbitration shall be the Philippines or any neutral country; and 4. Philippine taxes on all payments relating to TTA shall be borne by the licensor.

Annex K - GROUNDS FOR THE GRANT OF COMPULSORY LICENSE PUBLIC INTEREST

GROUNDS TO PREVENT ABUSE OF THE EXCLUSIVE RIGHTS OF THE PATENTEE

GROUNDS BASED ON INTERDEPENDENCE OF PATENTS

1. National emergency or other circumstances of extreme urgency 2. Where the public interest in particular national security, nutrition, health or the development of other vital sectors of the national economy as determined by the appropriate agency of the government, so requires

1. Where judicial or administrative body has determined that the manner of exploitation by the owner of the patent is anticompetitive 2. In case of non-commercial use of the patent without satisfactory reason 3. If the patented invention is not being worked in the Philippines on a commercial scale provided that the importation of the patented article shall constitute working of the patent (the petition for compulsory license based on this ground may not be filed before the expiration of four (4) years from the date of the filing of the application or three (3) years from the date of the patent whichever expires last)

If the invention protected by a patent (second patent) within the country cannot be worked without infringing another patent (first patent) granted on prior application, a compulsory license may be granted to the owner of the second patent if: first, if the second patent involves an important technical advance of considerable economic significance; second, the owner of the first patent shall be entitled to a cross license of the second patent and third, the use of the first patent shall be co-assignable except with the assignment of the second patent.

Annex L – GROUNDS FOR REFUSAL OF TRADEMARK REGISTRATION ABSOLUTE GROUNDS FOR REFUSAL The examiner checks if the mark can distinguish the goods and services of one person from those of another. It must not: 1. Be a generic term for the goods or services specified in the application; 2. Designate the quality, quantity, value, geographic origin or other characteristics of the goods; 3. Become a customary sign in everyday language or in a bona fide and established trade practice; 4. Consist of shapes that may be necessitated by technical factors or by QuickTime™ and a the nature of or the intrinsic value of the goods or services; TIFF (Uncompressed) decompressor are needed to see this picture. 5. Consist of color alone; and 6. Be contrary to public order or morality.

RELATIVE GROUNDS FOR REFUSAL The examiner also checks if the mark does not violate the rights of others. It must not: 1. Consist the flag or coat-of-arms of other insignia of the Philippines or of any other foreign nation; 2. Consist of a name, portrait or signature identifying a living individual or the name, signature of a deceased president of the Philippines during the life of his widow (written waivers are allowed to obtain their registration); 3. Be identical with or nearly resembles a prior registered mark or a mark with an earlier filing date with respect of the same or closely related goods or services as to likely deceive or confuse the customers regarding the source or origin of the goods or services; 4. Be identical with or confusingly similar to an internationally well-known mark, whether or not registered in the Philippines; provided that: a. If it is not registered in the Philippines, it can be a basis to refuse the registration of a mark only if the goods or services specified in the application are identical or similar to those in respect of which the internationally wellknown mark is known or used in the Philippines; and b. If it registered in the Philippines, it can be a basis to refuse the registration of a mark even if the goods or services specified in the application are not identical or similar with those in respect of which the internationally well-

known mark is registered in the Philippines.

Annex M – TRADEMARK INFRINGEMENT vs. UNFAIR COMPETITION

What Is? Bad faith/intent necessary? Registration of the trademark required?

TRADEMARK INFRINGEMENT Unauthorized use of a trademark No.

UNFAIR COMPETITION Passing off of one’s product for another based on general appearance Intent to deceive/fraudulent intent is essential.

Prior registration is required.

Registration is not necessary.

Annex N – CIVIL, CRIMINAL AND ADMINISTRATIVE REMEDIES AGAINST TRADEMARK INFRINGEMENT ADMINISTRATIVE If the amount of the damages claimed is not less than to seek redress against the infringer by filing an administrative action against the infringer with the BLA. The questions that the BLA will have to resolve are also the same as in the civil action for infringement as discussed above. The registrant may likewise ask the BLA for an order directing the infringer to immediately stop the manufacture and sale of the infringing goods while the administrative case is being heard. The BLA may, like the courts, in case of a finding that infringement has been committed, direct the infringer to pay the registrant damages and to permanently stop from using the infringing mark. QuickTime™ and a In addition, the BLA may impose a fine which TIFFalso (Uncompressed) decompressor are needed to see this picture. the infringer will pay to the government.

CIVIL To quickly prevent the infringer from causing damage to his business, the owner of a registered mark may, at the early stage of the trial of the case, ask the court to issue a preliminary injunction. The court usually grants this request if the case for infringement is strong.

CRIMINAL The first step is to carry out an investigation of the operations of the infringer to determine: 1. The identity of the manufacturer or its affiliates; where he manufactures the infringing goods; and 2. His marketing network.

In case of a finding that there is an infringement, the court will require the defendant to pay damages to the owner of the mark (provided the defendant is shown to have had notice of the registration of the mark, which is presumed if “R” within a circle is appended to the mark) and stop him from permanently using the infringing mark.

The next step is to apply with the court for the issuance of an order to search the places where the infringement is being carried out and to seize the infringing goods. The judge, after a hearing, issues the search and seizure warrants only if there is “probable cause” that infringement has been committed. The police or the National Bureau of Investigation (NBI) will conduct the raid and the infringing goods seized will be placed under custody of the court.Thereafter, a complaint will be filed with the State Prosecutor who will hold a hearing and, on the basis of evidence presented, decide whether to charge the alleged infringer of the crime of trademark or service mark infringement. If he decides affirmatively,inappropriate “information” is filed with the court. A warrant of arrest will then be issued. The requirements to establish infringement in a criminal action are the same as those in the civil except that in the criminal action, the infringement must be shown to have been committed deliberately.

The requirements to establish an infringement are: 1. The mark infringed is registered with the BT, and 2. The defendant is using an identical or similar sign which is likely to deceive or confuse consumers that the goods of the infringer are the products of the registrant. A presentation of the goods or labels using the registered mark and the goods or labels bearing the infringing mark may be necessary.

The criminal penalty for trademark infringements claimed consists of imprisonment from two (2) years to five (5) years and a fine ranging from 50,000.00 to 200,000.00.

Annex O – CAUSES OF ACTION IN TRADEMARK INFRINGEMENT CAUSES OF ACTION 1. Trademark Infringement 2. Unfair Competition 3. Trademark Dilution – lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of: (1) competition between the owner of the famous work and other parties or (2) likelihood of confusion, mistake or deception. To be eligible for protection from dilution, there has to be a finding that: a. trademark sought to be protected is famous and distinctive b. use by respondent began after the petitioner’s mark became famous c. subsequent use defames petitioners’ mark

REMEDIES 1. Civil Actions 2. Criminal Actions 3. Administrative – if value involved exceeds 200k, file it in the IPO but if less than 200K, file it in DTI.

RELIEFS 1. Injunction 2. Damages 3. Destruction

Annex P – ORIGINAL WORKS LITERARY or ARTISTIC WORKS

EXPLANATIONS 1. original intellectual creations 2. in the literary & artistic domains 3. protected from the moment of their creation QuickTime™ and a 1. books, pamphlets, articles In order to prove infringement, must show: (1) defendant: had access to the copyrighted work TIFF (Uncompressed) decompressor are needed to see this picture. (2) substantial similarity between the two works and other writings (BPA) 2. periodicals and newspapers Do not apply sweat of the brow approach. If can’t avail of this: think unfair competition. 3. lectures, sermons, addresses, Must be for Oral delivery. dissertations (LADS) prepared To be free, Use justified by informatory purpose. for oral deliver (regardless of whether its reduced to writing or any material form or not) 4. letters Expressive content = subject of copyright Æ unpublished letters: protected from fair use copying 5. dramatic or dramatico-musical Must consist of a plot and incident and characters. compositions, choreographic Do not include social dance steps & simple routines.

works or entertainment in dumb shows 6. musical compositions (with or without works)

7. works of drawing, painting, architecture, sculpture, engraving, lithography (DAPSEL) or other works of art, models or designs (MD) for works of art 8. orig ornamental designs/models (OODM) for articles of manufacture (WON registrable as an industrial design and other works of applied art) 9. illustrations, maps, plans, sketches, charts (PIMS-C) and 3-dimensional works relative to geography, topography, architecture or science (GATS) 10. drawings or plastic works of a scientific/technical character 11. photographic works (including works of process of analogous character and lantern slides) 12, AV works/cinematographic works (and works produced analogous process) 13. pictorial illustrations/ads

Elements of originality: melody, rhythm, and harmony (RHM) Protects: artistic whole of music and words alone or music alone; 2-4 bars constitute protectible expression Similarity of (1) ideas: objective (2) expression: impact to a reasonable person

Works of applied art – (example: animal styled duffle bags) 1. artistic creation with utilitarian functions or incorporated in a useful article 2. whether made by hand or produced on an industrial scale

Must have an indicum of creativity.

Whether in print or negative form. Including filmstrips, slide films and individual slides Precludes any other unauthorized copying by photocopying, drawing or whatever.

1. images 2. give the impression of motion 3. susceptible of being made visible or audible thru machines or devices Even without text, pictorial illustrations still protected. Ads: protected whether written or visual QuickTime™ and a TIFF (Uncompressed) decompressProtected or 14. computer programs whether source or object code are needed to see this picture. 15.Other literary, artistic, scholarly and scientific works (LASS)

Annex Q – INTERNATIONAL CONVENTIONS GOVERNING COPYRIGHT BERNE CONVENTION

ROME CONVENTION

GATT- TRIPS AGREEMENT

WCT (Copyright Treaty) and WPPT (Performers and

To establish uniform copyright regimes. 3 Core Principles: 1. National Treatment 2. Automatic Protection 3. Independence of Protection

To establish such regimes for performers, phonogram producers and broadcasting orgs. Phils: acceded in 1984 Effect: creating or extending copyright protection to Neighboring Rights

Fundamental Principles: 1. Minimum Standard 2. National Treatment 3. Most Favoured Nation (FIPA) immediately and unconditionally Features: 1. Compliance w/ Berne and Rome 2. Protect computer programs/databases 3. Period of protection: proposed other than lifetime of author 4. Limitations: normal exploitation and unreasonably prejudice

Phonograms Treaty) Rights Management Information 1. work 2. identify author of the work or copyright owner 3. t&c of conditions of work 4. #s and codes: relevant Fixation – 1. embodiment of sounds or images 2. capable of being received, perceived, or communicated Point of Comparison for WCT & WPPT: 1. storage of works in digital sys 2. transmission in digital networks 3. technological measures of protection 4. statutory protection 5. remedies limitations: normal exploitation and unreasonably prejudice

Annex R – DERIVATIVE WORKS QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

DERIVATIVE WORKS – shall also be protected by copyright 1. Dramatizations, translations, adaptations, arrangements, abridgments and other alterations of literary works 2. Collections of literary, scholarly or artistic works (LAS) and compilations of data & other material (which original coz of their selection, coordination or arrangement of their contents) MANNER OF PROTECTION – 1. as new works 2. new work – shall not affect

PUBLISHERS RIGHTS: as to PUBLISHED NEW EDITION OF WORK 1. right to publish (as granted by authors, heirs, or assigns) 2. right of reproduction: typographical arrangement of the published edition of the work PROHIBITS: reproducing by photographic or similar process of reproduction of the typographical arrangement. REQS: 1. must be substantially similar to the orig work (such that absent

a. force of any subsisting copyright upon orig. works or any part thereof b. be construed to imply any right to use of the orig works c. to secure/extend copyright in orig works

license, its infringement) – borrow orig and expressive content from orig work 2. must recast, transform or adapt (RAT) work ABRIDGE: is to shorten but the essence and import is still there CHANGE OF MEDIUM or LANGUAGE: accounts as derivative

Annex S – COPYRIGHT OR ECONOMIC RIGHTS ECONOMIC RIGHTS 1. reproduction of work or substantial portion thereof 2. dramatization, translation, adaptation, abridgment, arrangement or transformation of work 3. first public distribution of orig or each copy (by sale or other modes of transferring ownership)

EXPLANATIONS 5 EXCLUSIVE RIGHTS: (1) reproduce, (2) distribute, (3) perform, (4) display, and (5) prepare derivative works based upon copyrighted works (RDPDD) Reqs for SUBSTANTIAL VARIATION 1. work: must borrow original & expressive content from another work 2. work: recast, adopt or transform in any manner the original FIRST SALE DOCTRINE – 1. Copyright holder has the exclusive right to control the first public distribution of the original and each copy of the work 2. by sale or other forms of transfer of ownership 3. But this right is exhausted – after such first sale or transfer of ownership (only exhausts DISTRIBUTION RIGHT) IN EFFECT: the OWNER of the LAWFULLY ACQUIRED orig or copies of the work: may dispose of em in any manner w/o any liability to the copyright proprietor

4. rental (irrespective of ownership of orig and copy subject of rental) 5. public display of orig/copy of work 6. public performance of work for profit 7. Other communication to the public of the work.

Public display – seen by substantial number of persons outside of the normal circle of family and social acquiantances Does copyright owner have right to stop import? YES, NEGATIVE RIGHT.

QuickTime™ and a TIFF (Uncompressed) decompressor Annex T – OWNERSHIP OF COPYRIGHT are needed to see this picture.

ORIGINAL LITERARY & ARTISTIC WORKS = Author of the work

WORK created by an author DURING & IN THE COURSE OF HIS EMPLOYMENT

JOINT AUTHORSHIP = orig owners of the copyright 1. absent agreement, governed by rules on coownership

Copyright belongs to Employee if = 1. creation: not part of his regular duties 2. even if he used time,

WORK commissioned by person OTHER than employer WORK belongs to one who commissioned COPYRIGHT belongs to the creator (unless written contrary stipulation) LETTERS = writer (subject to Art 723

Audio Visual WORKS = copyright owned by: 1. producer 2. author of scenario 3. composer of the music 4. film director 5. photographic director AND 6. author of the work adapted.

2. if parts can be used separately and author of each part be identified = author of each part shall be orig owner for purposes of copyright Æ SHARE IN BENEFITS & CHARGES – proportional to their interest (contrary stipulation is VOID)

facilities and materials of employer (MTF)

of Civil Code)

Copyright belongs to Employer if = work is a result of performance of his regularlyassigned duties (unless contrary agreement, express or implied)

ANONYMOUS/PSEUDONYMOUS WORKS = publishers unless: 1. contrary appears 2. pseudonyms/adopted name: leave no doubt as to author’s identity 3. author of anonymous works: discloses his identity - anonymous: no name of natural person; - pseudonymous: use of fictitious name

AUTOMATIC VESTING between employer and employee of copyright is prohibited Æ allowed vesting AFTER creation

Annex U – TERM OF PROTECTION Artistic/Literary works 1. Protected during the life of the author. 2. Protected for 50 years after his death.

Joint authorship Economic rights – protected during lifetime of last surviving author and for 50 years after his death

- applies to posthumous works

Anonymous or Pseudonymous works 1. Protected for 50 years from date which work is lawfully published 2. Where before expiration of period, author’s identity is out, 50 year rule applies 3. If not published, protected for 50 years from the making of work

Applied Art works

Photographic works

AV works

Protected for 25 years from the making.

Published: 50 from publishing

years

Published: 50 years from publishing

CALCULATION OF TERM for the period after the death of the author: always deemed to begin on the 1st day of January of the year after the death.

Unpublished: 50 years from making

Unpublished: 50 years from making

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Annex V – REMEDIES AGAINST INFRINGEMENT CRIMINAL 1. Hardest to prove: proof beyond reasonable doubt 2. Immediate relief: needed by seizure of the means of the production so that even if the case goes on for 10K years, he can’t manufacture japex 3. Most expensive: you pay for TM

CIVIL 1. file: when you have to prove substantial copying (when case is not 100% copying) and when you think they’ll put up the fair use defense 2. takes so long to get an injunction so if you want immediate action, don’t file civil.

ADMINISTRATIVE 1. file this: only when case is against retailers and you don’t expect to get substantial damages. Delivery under oath – can be done even in civil cases, so no need to get seizure in civil cases.

investigators, lawyers, fiscals to DOJ 4. Pay for storage or else evidence will be lost

Jurisdiction: 200K above – Intellectual Property Office below 200K – DTI’s Bureau of Trade Regulation & Consumer Protection

Proof of: Actual damages – sales receipts Sourcing of goods – get the big cats

Annex W – DEPOSIT AND NOTICE REQUIREMENTS After the 1st public dissemination by authority of copyright owner of: 1. books, pamphlets, articles and other writings 2. periodicals and newspapers 3. lectures, sermons, addresses, dissertations prepared for oral delivery (LADS) whether reduced in writing or other material form 4. letters

1. give (2) complete copies or reproductions of such works: such form as directors of libraries may prescribe 2. by registered mail/personal delivery 3. w/in 3 weeks after dissemination 4. for the purpose of completing records of National Lib and SC CERTIFICATE OF DEPOSIT – 1. prescribed fee collected 2. exempt from making addt’l deposit under other laws IF w/in 3 weeks after receipt of written demand for such deposit, such are not delivered nor fees paid Æ liable to pay FINE (equiv. to required fee per month of delay and pay price of the best edition of the work to National Lib AND SC. NOTICE OF COPYRIGHT: contain (1) name of copyright owner, (2) year of 1st publication, and for copies produced after testator’s death, (3) year of such death.

Annex X – NOTICE REQUIREMENTS

Loss/damag e apparent Loss/damag e not apparent Damage of baggage Damage of goods Delay

COGSA Protest at time of receipt of goods Protest within 3 days from delivery

Code of Commerce protest at time of receipt of goods Protest within 24 hours after receipt

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

Warsaw Convention

protest within 3 days from receipt within 7 days from receipt within 21 days from receipt