The Law On Copyright

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The Law on Copyright

Changes under the IP Code relating to copopyright In summary form, to be discussed in greater detail later, the salient features of the Intellectual Property Intellectual Property Code are as follows: The law deleted the deposit and notice requirements under the Decree, which were inconsistent with the Berne Convention prohibition against any formality requirement as a condition for copyright protection. 

 The law clarified that copyright includes not just author’s right of exploitation of the work but also the negative right to prevent the unauthorized exploitation of the works.  The law incorporated the basic concept that works shall be protected by the sole fact of their creation and irrespective of their mode of expression, as well as of their content, quality or purpose. On the other hand, the law reaffirmed the basic principle that no protection shall extend to any idea, procedure, system, method or operation, discovery, concept or mere data. The law confirmed that protection is extended to databases that are original by reason of the selection or coordination of arrangement of their contents. There is growing consensus implemented by the TRIPS Agreement that protection should extend to all collections of pre-existing works, materials or other data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. 

The law made it clear that “other communication to the public of the works” is included among the economic rights comprising copyright which by definition includes “broadcast and re-broadcast” of works. 

The Intellectual Property Code recognized the new concept of “rental or public lending,” which under the TRIPS Agreement should be included among the economic rights of the copyright owner. 

 The law deleted the provisions of the Decree on translation of works. In lieu of a provision on translation and reproduction of protected works, the law provided for a possible availment by the Philippines of the special provisions regarding developing countries, including provisions for licenses granted by competent authorities.  The law contained new provisions on limitations on copyright and explicitly provided that the specific acts shall not be considered infringement of copyright. The exercise of these authorized limitations on copyright is subject to the condition that their exercise will not unreasonably prejudice the right holder’s legitimate interests or conflict with the normal exploitation of the works. The law recognized that the reproduction of computer programs may

be permissible under specific limitations mentioned therein. New Rights Created under the WIPO Copyright Treaty The WIPO Copyright Treaty, in both its provisions and the supplemental Agreed Statement1 established several norms about applying copyright law in the digital environment. They include:  copyright owners should have an exclusive right to control the making of copies of their works in digital form;  copyright owners should have an exclusive right to control the communication of their works to the public;  countries can continue to apply existing exceptions and limitations, such as fair use, as appropriate in the digital environment, and can even create new exceptions and limitations appropriate to the digital environment;

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available at www.wipo.org/treaties/

 merely providing facilities for the communication of works should not be a basis for infringement liability. WIPO Copyright Treaty Preserved Fair Use Rights On the other hand, while the Treaty itself did not specifically use the words “fair use,” the Agreed Statement states that “it is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws” which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise ”new exceptions and limitations that are appropriate in the digital network environment. It is also understood that Article 10(2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention.Purpose of Copyright

The economic philosophy behind the clause empowering Congress to grant patents and copyright is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventions in the ‘science and the arts. 

Primary Objective of Copyright

The primary objective of copyright is not to reward the labor of authors, but to promote the progress of science and useful arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. 

Balancing of Competing Claims in Copyright

The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must

ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. 

Fixation in a Tangible Medium of Expression

A copyright work is not a material thing but is the intellectual production of the author. We may concede that no copyright will arise unless and until the thoughts are fixed in a material form, for that is the result of the Act. A work acquires copyright either by first publication in a suitable country, or by virtue of the national status or residents of the author at the time of publication or, it unpublished, at the time when it was made, that is, reduced to writing or other material form. That, however, merely shows that fixation is a condition precedent to the subsistence of copyright. 

Competing Claims Involved In Copyright

The Supreme Court has stated that the copyright law, like the patent statutes, makes reward to the owner a secondary consideration. To serve the constitutional purpose, courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder's interest in maximum financial return to the greater public interest in the development of art, science and industry. Original Works under the IP Code - Even if a work is completely identical to a prior work, it may be considered original if it is not copied from the prior work but is rather the product of an independent effort by the author. 

Section 172 enumerates literary and artistic works as original intellectual creations in the literary and artistic domain protected from the moment of their creation, which shall include in particular: 

(a)Books, pamphlets, articles and other writings;

Biggest category, if not in numbers, by variety : novels, news, poems, recitations, short stories whether fictional or not, pamphlets, treatises

or handbooks on philosophy, history and all other natural or physical science, almanacs, year books, programmes, guides 

(b) Periodicals and newspapers;

A contribution to a newspaper, notwithstanding that it may convey news, may be admitted to copyright under the provisions of the Copyright Act that ‘all the writings of an author,’ mentioning those appearing in periodicals, including newspapers, may be copyrighted. But news as such is not the subject of copyright.  (c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form; If a work had not been prepared for oral delivery, it could not claim copyright protection under this classification. Therefore, formats, outlines, brochures synopses, or general descriptions of radio and television programs were not registrable under this section since they are not, as such, to be orally presented.

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(d) Letters;

Case: Jerome D. Salinger a/k/a J. D. Salinger v. Random House, Inc. and Ian Hamilton, Court of Appeals for the Second Circuit, 811 F.2d 90, January 29, 1987  (e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows; Section 172.1 (e) covers dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows. This is a matter of pieces for the theatre and, if they have a musical accompaniment of operas grand and light, operettas, musical comedies, etc. Like other forms of copyrightable works, pantomimes and choreographic works must contain some original and expressive

elements to be protected. As a consequence, not all combinations of gesture, expression and movement will constitute protectible subject matter. 

(f) Musical compositions, with or without words;

One court has suggested that ‘originality of rhythm is a rarity, if not an impossibility, and at least one other court seems to have agreed that originality may be found in the rhythm alone. However, one court has recognized copyrightable originality in rhythmic annotations and another found the necessary originality in fingering, dynamic marks, tempo indications, slurs and phrasing.  (g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art; The Act provides that accompanying music combines with the dramatic work into a single work of authorship. Dramatic works include theatrical plays, screenplays, works of musical theater and operas. Pantomimes and choreographic works were only protected to the extent that they were "dramatic compositions."  (h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art;  Illustrations, maps, plans, sketches, charts and threedimensional 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;

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(n) Computer programs; and

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(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. 

Originality in Copyright

Originality is both a constitutional and statutory requirement for copyright protection. A work is original if it is (1) independently created by the author, and (2) possesses some minimal degree of creativity. The requisite level of creativity is relatively low and even a slight amount is sufficient to invoke copyright protections. Case: Waldman Publishing Corp. v. Landoll, Inc. Waldman Publishing Corp. and Playmore Inc. v.s, Landoll, Inc., United States Court of Appeals for the Second Circuit, December 27, 1994 

Works of Artistic Craftsmanship

Section 172.1 (h) covers original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art. Since articles of manufacture must of necessity have functional value, the subject matter of copyright in this class of work is not the utilitarian function of the article, which is not subject to copyright, but the ornamental or aesthetic appearance of the article. Case: Pivot Point Intern., Inc. v. Charlene Products, Inc. 372 F.3d 913, C.A.7 (Ill.),2004, June 25, 2004

Case: Mazer v. Stein, 347 U.S. 201 (1954) 

Original Works Derived From Public Domain Materials

A work may be protected by copyright even though it is based on something already in the public domain if the author, through his skill and effort, has contributed a distinguishable variation from the older works. However, a "distinguishable variation" must be substantial and not merely trivial. Case: Norma Ribbon & Trimming vs. Little, United States Court of Appeals, Fifth Circuit., No. 94-60389., April 27, 1995.

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Original Compilation of Facts

Under the originality standard, bare facts are never copyrightable "because facts do not owe their origin to an act of authorship." A compilation of facts, however, may be copyrightable if the author made choices as to "which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers." Case: Hodge E. Mason and Hodge vs. Montgomery Data, Inc., United States Court of Appeals, Fifth Circuit, No. 91-2305. Hodge E. Mason and Hodge Mason Maps, Inc. vs.Montgomery Data, Inc., et al. July 28, 1992. 

Computer Programs

Computer programs are protected under Section 172.1 (n). Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971). 

Judicial Opinions

The literary productions of judges acting in their official capacity as judges are not the subject of copyright. This doctrine extends to

whatever work they perform in their capacity as judges, and consequently applies to their statements of cases and to the syllabi or head notes prepared by them in their official capacity, as well as to their opinions and decisions themselves. The question is one of public policy. 

Law Reports

The fact that the opinions of judges rendered in litigation before them, and the syllabi and the statements of cases prepared by judges in pursuance of their judicial duties, are not copyrightable, does not imply that one cannot, with respect to other non-copyrightable matters, obtain a copyright upon volumes containing the reports of judicial decisions. 

News Stories, History, Biography

Copyright extends not only to the literal phrasing employed in news stories and historical or biographical works, but also to the author’s original narrative style and arrangement of facts reported. However, incidents that would be protected if fictional will not be protected if they are factual, and even the author’s ordering of incidents will not be protected if it follows the chronological order in which the incidents occurred. Derivative Works Section 173 of the Intellectual Property Code enumerates derivative works, which shall also be protected by copyright, which include: (a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works. (b) Collections of literary, scholarly or artistic works, and compilations of data and other material which are original by reason of the selection and coordination or arrangement of their contents.

 A Derivative Work is substantially similar to the Underlying Work To be a derivative work, the new work must be more than merely "inspired by" a prior work. A derivative work must take more than merely unprotectable ideas or concepts from the underlying work. To constitute a derivative work, the new work must be so "substantially similar" to the underlying work that in the absence of a license, it would be a copyright infringement of the underlying work. Case: Waldman Pub. Corp. v. Landoll, Inc. 43 F.3d 775, C.A.2 (N.Y.),1994. December 22, 1994 

Adaptation of Old Play

Copyright may be secured in the adaptation of a play which is itself common property. 

Abridgements of Literary Work

Copyright may likewise exist in a genuine and just abridgment, for it is said that an abridgment may with great propriety be called a new book, and therefore is an original literary work. Derivative Works of the Visual Arts In applying the requirement that a protectable work of visual art, such as a figurine or fabric design, embody a distinguishable, nontrivial variation over the work on which it is based, courts generally deny protection to minor applications that consumers would ordinarily overlook, but grant protection to alterations that change the work's actual appearance to consumers. 

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Derivative Musical Works

Courts universally recognize that the limits of the musical vocabulary constrain original and expressive contributions in musical

composition. In the context of derivative musical compositions, this constraint has produced a somewhat higher standard of distinguishable, nontrivial variation than is applied other forms of derivative works. Case: Campbell v. Acuff-Rose Music, Inc., 10 U.S. 569, 579, 114 S. Ct. 1164, 1171, 127 L. Ed. 2d 500, 22 Media L. Rep. (BNA) 1353, 29 U.S.P.Q.2d (BNA) 1961 (1994) Case: Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q.2d (BNA) 1225 (11th Cir. 2001) Case: Bill Graham Archives, LLC. v. Dorling Kindersley Ltd., 75 U.S.P.Q.2d (BNA) 1192, 2005 WL 1137878 (S.D. N.Y. 2005) Case: New York Times Co., Inc. vs. Tasini, 533 U.S. 483, 121 S. Ct. 2381, 150 L. Ed. 2d 500, 29 Media L. Rep. (BNA) 1865, 59 U.S.P.Q.2d (BNA) 1001, 5 A.L.R. Fed. 2d 623 (2001 Case: Faulkner v. National Geographic Enterprises Inc., 409 F.3d 26, 33 Media L. Rep. (BNA) 1385, 73 U.S.P.Q.2d (BNA) 1980 (2d Cir. 2005. 

Collective Works

Under Section 171.2 of the Intellectual Property Code, a collective work is 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. Section 196 states that when an author contributes to a collective work, his right to have his contribution attributed to him is deemed waived unless he expressly reserves it. 

Compilation of Works without License

So long as the pre-existing work remains out of the public domain, its use is infringing if one who employs the work does not have a valid license or assignment for use of the pre-existing work. Established doctrine prevents unauthorized copying or other infringing use of the

underlying work or any part of that work contained in the derivative product so long as the underlying work itself remains copyrighted. 

Uncopyrightable Subject Matter

Section 175 provides that, 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. Works of the Government Under Section 176.1 of the Intellectual Property Code, 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 for 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. Rules on Copyright Ownership Under Section 178, copyright ownership shall be governed by the following rules: Subject to the provisions of this section, in the case of original literary and artistic works, copyright shall belong to the author of the work,2 who is defined is the natural person who has created the work.3 

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Section 178.1, Intellectual Property Code Section 171.1, Intellectual Property Code

In case of works of joint authorship, the co-authors shall be the original owners of the copyright and in the absence of agreement, their right shall be governed by the rules on co-ownership. If, however, a work of joint authorship consists of parts that can be used separately and the author of each part can be identified, the author of each part shall be the original owner of the copyright in the part that he has created.4 

 In respect of work created by an author during and in the course of his employment, the copyright shall belong to:  The employee, if the creation of the object of copyright is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer. The employer, if the work is the work is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary.5 

In respect of a work commissioned by a person other than the employer of the creator and who pays for it and the work is made in pursuance of the commission, the person who so commissioned the work shall have ownership of the work, but the copyright thereto shall remain with the creator, unless there is a written stipulation to the contrary.6 

In respect of audiovisual work, the copyright shall belong to the producer, the author of the scenario, the composer of the music, the film director, the photographic director, and the author of the work adapted. However, subject to contrary or other stipulation among the creators, the producer shall exercise the copyright to an extent required for the exhibition of the work in any manner, except for the right to collect performing license fees for the musical compositions, with or without words, which may be incorporated into the work.7 

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Section 178.2, Intellectual Property Code Section 178.3 (a) and (b), Intellectual Property Code 6 Section 178.4, Intellectual Property Code 7 Section 178.5, Intellectual Property Code 5

In respect of letters, the copyright shall belong to the writer subject to the provisions of Article 723 of the Civil Code, which provides that 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 withsout 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. 

Case: Tests of Joint Authorship Erickson v. Trinity Theatre, Inc. 13 F.3d 1061, C.A.7 (Ill.),1994, January 06, 1994 There are two tests for determining whether a work is the result of joint authorship: the first is called the “de minimis test” propounded by Professor Nimmer and the other is the “copyrightable matter” test propounded by Professor Goldstein. The “copyrightable matter test” appeared to be favored by the courts. Works of Joint Authorship Section 178.2 provides in case of works of joint authorship, the coauthors shall be the original owners of the copyright and in the absence of agreement, their right shall be governed by the rules on coownership. If, however, a work of joint authorship consists of parts that can be used separately and the author of each part can be identified, the author of each part shall be the original owner of the copyright in the part that he has created. Case: TMTV, Corp. v. Mass Productions, Inc. 345 F.Supp.2d 196, D.Puerto Rico,2004. Nov 24, 2004 Rules on Co-Ownership  Section 178.2 recognizes that in case of works of joint authorship, the co-authors shall be the original owners of the copyright. Unless they agree on a different rules to govern their rights, the rules on co-ownership shall be applied.

 If, however, a work of joint authorship consists of parts that can be used separately and the author of each part can be identified, the author of each part shall be the original owner of the copyright in the part that he has created.  An infringement claim can be brought only against one who violates "the exclusive rights of the copyright owner," and an owner does not have rights exclusive of a co-owner's, so an infringement claim cannot lie against a co-owner  Copyright ownership ordinarily vests in the author of the work. As a general rule, the author is the party who actually creates the work. There is, however, an allowance for "works made for hire." If the work is made for hire, the owner is the employer or other person for whom the work was prepared. Under the "work-for-hire doctrine," an employer owns the copyright on a product prepared by an employee within the scope of his or her employment, absent a written agreement to the contrary. 

Case: Montgomery v. Alcoa, Inc., 11 Fed. Appx. 471 (6th Cir. 2001). Anonymous and Pseudonymous Works Under Section 179, for purposes of the Act, the publishers shall be deemed to represent the authors of articles and other writings published without the names of the authors or under pseudonyms, unless the contrary appears, or the pseudonyms or adopted name leaves no doubt as to the author’s identity. 

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Copyright or Economic Rights

Sec. 177. Copyright or Economic Rights. - Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

177.1. Reproduction of the work or substantial portion of the work;  The reproduction right is seen as the bedrock of copyright and is fundamental to the concept of ownership of a copyright. The right inheres in each of the eight statutory categories of works of authorship, 'Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced

177.2 Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;  The Act grants the copyright owner the exclusive right "to prepare derivative works based upon the copyrighted work." The right is also frequently termed the right of adaptation. A 'derivative work' is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment

177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;  The exclusive right of public distribution is the right to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.  Unlike the other rights of copyright, the distribution right is infringed merely by a transfer of copies of the work, whether those copies are lawfully or unlawfully made.

Case: First Sale Doctrine; Quality King Distributors, Inc., Petitioner v. L'anza Research International, Inc., No. 961470, March 9, 1998 177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)

 In compliance with the TRIPS Agreement 8, covers situations where the copyright proprietor continues to have rental rights to the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental.

177.5. Public display of the original or a copy of the work;  To 'display' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images consequentially. The definition of "publicly" in connection with display is identical to the definition of "publicly" in connection with performance.  Display covers any showing of a "copy" of the work, either directly or by means of a film, slide, television image or any other device or process. However, in order for there to be copyright infringement, the display must be public.

177.6. Public performance of the work; and  Performance is undertaken either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible."  Case: Filipino Society of Composers, Authors and Publishers, Inc. vs. Tan, 148 SCRA 461

177.7. Other communication to the public of the work (Sec. 5, P. D. No. 49a) 

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copyright may be assigned in whole or in part

Article II Rental Rights. In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works. A Member shall be excepted from this obligation in respect of cinematographic works unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title. In respect of computer programs this obligation does not apply to rental where the program itself is not the essential object of the rental.

 exclusive rights encompassed by copyright may be transferred separately or assigned individually as the copyright proprietor sees fit  author of a novel may assign the right of reproduction of the novel separately from the right of adaptation of the novel to a screenplay, or its translation to other languages.  transfer or assignment must, however, be clear from the written instrument In cases of assignment, the assignee of the particular right has standing to sue for the infringement of the particular right assigned to him. 

 Section 180.3 provides that the submission of a literary, photographic or artistic work to a newspaper, magazine or periodical for publication shall constitute only a license to make a single publication unless a greater right is expressly granted. 

Sec. 184. Limitations on Copyright

184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:  the recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society; (Sec. 10(1), P. D. No. 49) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned; (Sec. 11, Third Par., P. D. No. 49) 

The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, 

which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated; (Sec. 11, P. D. No. 49)  The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose; (Sec. 12, P. D. No. 49) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned; 

The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work; 

 The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;  The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use;  The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations; (n)

 Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and  Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner. 184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder's legitimate interest. 

Scope of Moral Rights

Section 193 provides that the author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right.  To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;  To make any alterations of his work prior to, or to withhold it from publication;  To 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;  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 

Note: The rights spring from a belief that an artist in the process

of creation injects his spirit into the work and that the artist's

personality, as well as the integrity of the work should therefore be protected and preserved. Breach of Contract

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Under Section 194 confers upon the author the moral right to decline to perform his contract to create a work or to publish his work already in existence. Although he cannot be sued for compulsory performance of his undertaking, he may be held liable for damages for breach of such contract. 

 The author’s right under Section 194 is ancillary to his moral right under Article 193.2 to withhold his work from publication.  Term of Moral Rights: Section 198 provides that the rights of a creator under this chapter shall last during the lifetime of the creator and for fifty (50) years after his death and shall not be assignable or subject to license.

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Fair Use of a Copyrighted Work

Section 185.1 provides that the fair use of a copyrighted work for criticism, comment, news reporting, teaching, including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:  The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; 

The nature of the copyrighted work;

 The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

 The effect of the use upon the potential market for or value of the copyrighted work. Section 185.2 states that the fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Case: Luther R. Campbell Aka Luke Skywalker vs. Acuff-Rose Music, Inc., United States Court of Appeals for the Sixth Circuit, March 7, 1994 Case: Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381, C.A.6 (Mich.),1996. November 08, 1996 Case: American Geophysical Union v. Texaco Inc. 60 F.3d 913, C.A.2 (N.Y.),1994. October 28, 1994 

Optical Media Act

The Optical Media Act (Republic Act No. 9239) aims to curb widespread piracy in optical media in the Philippines through a revamp of the implementing government agency, introduction of licensing requirements, use of identity codes in optical media, and criminal prosecution for engaging in prohibited activities.9 

 The Philippine Congress enacted the Act in answer to the calls from local and foreign copyright-holders for better regulation and control of optical media that are being used for digital piracy. Prior to the Act, the manufacturing and distribution of optical media was virtually unregulated. While videograms were subject to regulation by the Videogram Regulatory Board (VRB), the primary function of the VRB was classification of videograms, and the manufacturing and distribution of software and audio casettes and CDs was largely unsupervised by any government agency.  The Act seeks to remedy this situation by regulating the manufacture, mastering, replication, importation and exportation of optical and magnetic media. 9

Section 2, R.A. 9239

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Copyright Online

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The Right of Reproduction

The reproduction right of the Copyright Act arguably is implicated by each reproduction of a work in computer memory, whether the work is reproduced to or resides in a central server or a user' s personal computer. A few cases now have held that software embodied in either random access memory (RAM), hard disk drives, or other digital storage media are copies in the copyright sense, notwithstanding, in the case of RAM, the volatile nature of that storage medium. These decisions- at least with respect to RAM storage- appear inconsistent with the House Report on the 1976 Act, which stated that " the definition of ' fixation' would exclude from the concept purely evanescent or transient reproductions such as those... captured momentarily in the ' memory' of a computer." Digital Millennium Copyright Act (the DMCA), the Computer Maintenance Competition Assurance Act, expressly exempts from infringement liability ephemeral copies created in connection with the maintenance and repair of computer systems, but only if the copies are destroyed after the maintenance and repair are completed. The DMCA also exempts certain ephemeral copies created by online service providers as part of an " automatic technical process." Again, there is no implication that ephemeral copies would otherwise be infringing. In the case of computer programs, reproductions in long-term digital storage of other types of works would constitute copies or phonorecords. One decision suggests, however, that an e-book might not infringe the copyright of a traditional printed book because users interact with e-books differently. Where the digital embodiment is sufficiently permanent to permit the perception, reproduction or other communication of the work, in accordance with the Copyright Act definition of " copies," then the copying would violate the author' s exclusive reproduction right unless authorized or unless subject to one of the limitations embodied in Sections 107 through 120 of the Copyright Act. Where, however, the copying is entirely passive, and the copies are made at the direction of a service provider' s users, the service provider may not be liable. The Copyright Act' s definitions of " copies" and " phonorecords" may also encompass digitally compressed or encrypted versions of digitized works of

authorship, as such versions can be " perceived, reproduced or otherwise communicated... with the aid of a machine or device," at least in the hands of those possessing the requisite decrypting software or keys. 

The Right of Preparation of Derivative Works

A work does not become a derivative work simply because it has been digitized or, once digitized, encrypted or compressed. Such techniques are essentially techniques of copying. If, however, the process of digitization involves the addition of creative and expressive content to the work, a separately copyrightable derivative work may result. Mere digitization of the notes and other composed elements of musical works would be copying, rather than creation of a derivative work. When computer music enthusiasts and professional musicians employ technologies such as MIDI that permit them to add creative elements of their own relating to the expressive playback of the work, the result is a sound recording that is derivative of the underlying musical work. One court has held that the digital manipulation of a photograph may result in the creation of a derivative work if " substantial use" is made of the original. Derivative works may also be created by the removal of copyrightable expression from the original. Absent fair use, the creation of such derivative works would violate the right of adaptation 

The Right of Public Distribution

The statutory right of public distribution of copies or phonorecords would, on its face, seem to permit the electronic transmission of a work without that specific right being violated. Such transmissions might not be considered " distributions" because no material objects constituting phonorecords or copies are sold, leased or otherwise subject to a change of possession. Certainly the practice in the broadcasting and cable industries has been to treat broadcasts and cable transmissions as if they were not distributions. Public distribution is not as clear, however, in the case of online transmissions resulting in creation of a copy by the receiving computer. Accordingly, it has been thought that courts could well rule that a transmission is a distribution whenever it has the effect of a distribution (e.g., foreseeably results in a copy being possessed, in a sale transaction, by a member of the public). In New York Times Co. v. Tasini, the Supreme Court apparently equated an electronic transmission with a public distribution. The Court stated that selling copies of " articles through the NEXIS Database" constituted distribution of

copies " to the public by sale," albeit without analyzing how the defendants were distributing physical copies. The plaintiffs in Frank Music Corp. v. CompuServe Inc. alleged that the downloading of files of data embodying sound recordings from the defendant' s online information service constituted public distribution of the underlying musical compositions.The settlement of that action established a scheme by which third party forum managers who operate the interest areas of the defendant' s service could obtain licenses for such downloading as if it were public distribution and subject to the mechanical royalties and statutory license under US law. The Working Group on Intellectual Property Rights of the United States Information Infrastructure Task Force recommended the amendment of Section 106(3) of the Copyright Act to provide that the public distribution right would be violated by certain unauthorized electronic transmissions. The White Paper and its proponents have argued that there is no reason to treat works distributed electronically to the public differently from works distributed in physical copies. Under the proposal of the White Paper, transmissions would implicate the distribution right only if made to the public, and such distributions would be subject to the limitation of the first sale doctrine, to the extent it is applicable in an online environment. 

The First Sale Doctrine and Electronic Transmissions

The controversial copyright issues in the online environment is whether and how the first sale doctrine, which limits the public distribution right, applies to copies that are transmitted electronically, or are created as a result of such transmissions. During an electronic transmission, no material copy of a work changes hands; thus, Section 109 of the Copyright Act, which pertains to the sale or disposal of " the possession of [a] copy or phonorecord" would appear inapposite to an online distribution. To the extent a new copy is created on a recipient' s computer, for example, as a result of an unauthorized transmission, the first sale doctrine itself would not be a defense to that infringement of the reproduction right by the transmitting party. It has been proposed that the first sale doctrine should apply to transmissions creating a copy in the recipient' s computer if the transmitting party deletes the copy from which the transmission was made. In such a case only one copy of the work would be extant at the end of the transmission-cum-deletion, an outcome akin to that when a physical copy of the work is transferred in a conventional first sale transaction. The Copyright Office released its report. It also refrained from recommending to Congress that the first sale doctrine be extended to electronic distributions.

According to the Copyright Office, (1) there was " no convincing evidence of present-day problems," (2) the analogy to the circulation of physical goods was not compelling, (3) " forward-and-delete" technology is not available, (4) expanding Section 109 would encourage infringement of the reproduction right, and (5) it was unaware of any consumer expectations of being able to transfer downloaded material. 

MP3 and Other Digital Music Distribution on the Internet

The online marketplace for digital distribution of sound recordings has exploded, with many thousands of music files being downloaded every day from MP3.com and other similar Web sites and traded on college campuses and elsewhere. Although many of these files are made available with the permission of the copyright owner, including sites maintained by artists, many others are posted on the Internet without proper authorization. The recording industry and movie studios have objected strenuously to these activities because they threaten the royalties earned through more conventional distribution channels.