Parts of Lecture Notes of marichulambino on Copyright ©marichulambino
Notes of marichulambino:
“Fair use” or using a material for academic and non-commercial purposes (including purposes of news reporting, review, criticism, commentary, etc.) or for purposes of classroom discussion, shall be allowed for “snippets” or small parts of the work, or quotations from the work, but shall not extend to the copying of the entire book or the entire work or a substantial part of the work (See Sec. 187.2 of the Intellectual Property Code). What constitutes “substantial” part of the work or what constitutes copying a “substantial” part of the work has not been conclusively defined. Some commentators contend that more than fifty per cent of the work is substantial. (As stated, however, this has not been defined).
During the pandemic: Inspired by the lecture-narrative of U.P. LL.M International Intellectual Law Prof. Susan D. Villanueva on fair use, course packs, and remote learning during the pandemic, blog admin handling faculty theorized in an unpublished paper the following: In the global public emergency created by the pandemic where libraries, classrooms, and schoolhouses were physically shut down and students were also in lockdown, national organizations of librarians and educators in many countries worldwide re-theorized by practice and in position papers the “fair use” doctrine in order to be able to deliver educational materials via electronic means to their students. Blog admin handling faculty theorized that pertinent provisions of the Berne Convention can be used to cover “fair use” during a public emergency — but at some point thereafter it would be good or ideal to have applicable IRRs from the local regulatory bodies or a set of legal reforms in the national level using the paradigm of copyright distributive justice framework.
PERTINENT PROVISIONS OF THE INTELLECTUAL PROPERTY CODE
Part Four of the Intellectual Property Code
The Law on Copyright
CHAPTER I
PRELIMINARY PROVISIONS
SEC. 171. Definitions
For the purpose of this Act, the following terms have the following meaning:
171.1. “Author” is the natural person who has created the work;
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CHAPTER II
ORIGINAL WORKS
SEC. 172. Literary and Artistic Works
172.1 Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations
in the literary and artistic domain protected from the moment of their creation and shall include in
particular:
(a) Books, pamphlets, articles and other writings;
(b) Periodicals and newspapers;
(c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced
in writing or other material form;
(d) Letters;
(e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb
shows;
(f) Musical compositions, with or without words;
(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of
art; models or designs for works of art;
(h) Original ornamental designs or models for articles of manufacture, whether or not registrable
as an industrial design, and other works of applied art;
(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography,
topography, architecture or science;
(j) Drawings or plastic works of a scientific or technical character;
(k) Photographic works including works produced by a process analogous to photography; lantern
slides;
(l) Audiovisual works and cinematographic works and works produced by a process analogous to
cinematography or any process for making audio-visual recordings;
(m) Pictorial illustrations and advertisements;
(n) Computer programs; and
(o) Other literary, scholarly, scientific and artistic works.
172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of
expression, as well as of their content, quality and purpose. (Sec. 2, P.D. No. 49a
Chapter III
DERIVATIVE WORKS
SEC. 173. Derivative Works
173.1. The following derivative works shall also be protected by copyright:
(a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations
of literary or artistic works; and
(b) Collections of literary, scholarly or artistic works, and compilations of data and other materials
which are original by reason of the selection or coordination or arrangement of their contents. (Sec. 2, [P]
and [Q], P.D. No. 49)
173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as a
new works: Provided however, That such new work shall not affect the force of any subsisting copyright
upon the original works employed or any part thereof, or be construed to imply any right to such use of
the original works, or to secure or extend copyright in such original works. (Sec. 8, P.D. 49; Art. 10,
TRIPS)
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CHAPTER IV
WORKS NOT PROTECTED
SEC. 175. Unprotected Subject Matter
Notwithstanding the provisions of Section 172 and 173, no protection shall extend, under this law, to
any idea, procedure, system method or operation, concept, principle, discovery or mere data as such,
even if they are expressed, explained, illustrated or embodied in a work; news of the day and other
miscellaneous facts having the character of mere items of press information; or any official text of a
legislative, administrative or legal nature, as well as any official translation thereof. (n)
SEC. 176. Works of the Government
176.1. No copyright shall subsist in any work of the Government of the Philippines. However, prior
approval of the government agency or office wherein the work is created shall be necessary for
exploitation of such work for profit. Such agency or office may, among other things, impose as a condition
the payment of royalties. No prior approval or conditions shall be required for the use of any purpose of
statutes, rules and regulations, and speeches, lectures, sermons, addresses, and dissertations,
pronounced, read or rendered in courts of justice, before administrative agencies, in deliberative
assemblies and in meetings of public character. (Sec. 9, first par., P.D. No. 49)
176.2. The Author of speeches, lectures, sermons, addresses, and dissertations mentioned in the
preceding paragraphs shall have the exclusive right of making a collection of his works. (n)
176.3. Notwithstanding the foregoing provisions, the Government is not precluded from receiving and
holding copyrights transferred to it by assignment, bequest or otherwise; nor shall publication or
republication by the government in a public document of any work in which copy right is subsisting be
taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of
such work without the consent of the copyright owners. (Sec. 9, third par., P.D. No. 49
CHAPTER V
COPYRIGHT OR ECONOMIC RIGHTS
SEC. 177. Copy 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;
177.2 Dramatization, translation, adaptation, abridgment, arrangement or other transformation of
the work;
177.3. The first public distribution of the original and each copy of the work by sale or other forms of
transfer of ownership;
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)
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work (Sec. 5, P.D. No. 49a)
CHAPTER VI
OWNERSHIP OF COPYRIGHT
SEC. 178. Rules on Copyright Ownership
Copyright ownership shall be governed by the following rules:
178.1. 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;
178.2. In the case of works of joint authorship, the co-authors shall be the original owners of the
copyright and in the absence of agreement, their rights 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;
178.3. In the case of work created by an author during and in the course of his employment, the
copyright shall belong to:
(a) 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.
(b) The employer, if the work is the result of the performance of his regularly-assigned duties,
unless there is an agreement, express or implied, to the contrary.
178.4. In the case of a work-commissioned by a person other than an employer of the author 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 work, but the copyright thereto shall remain with the creator, unless
there is a written stipulation to the contrary;
178.5. In the case of audiovisual work, the copyright shall belong to the producer, the author of the
scenario, the composer of the music, the film director, and the author of the work so adapted. However,
subject to contrary or other stipulations among the creators, the producers 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 performance of musical compositions, with or without words, which are incorporated
into the work; and
178.6. In respect of letters, the copyright shall belong to the writer subject to the provisions of Article
723 of the Civil Code. (Sec. 6, P.D. No. 49a)
SEC. 179. Anonymous and Pseudonymous Works
For purposes of this 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 doubts as to the author’s identity, or if the author of the
anonymous works discloses his identity. (Sec. 7, P.D. 49)
FAIR USE
187.2. The permission granted under Subsection 187.1 shall not extend to the reproduction of:
(a) A work of architecture in form of building or other construction;
(b) An entire book, or a substantial past thereof, or of a musical work in which graphics form by
reprographic means;
(c) A compilation of data and other materials;
(d) A computer program except as provided in Section 189; and
(e) Any work in cases where reproduction would unreasonably conflict with a normal exploitation
of the work or would otherwise unreasonably prejudice the legitimate interests of the author.(n)
SEC. 187. Reproduction of Published Work
187.1. Notwithstanding the provision of Section 177, and subject to the provisions of Subsection
187.2, the private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work.
187.2. The permission granted under Subsection 187.1 shall not extend to the reproduction of:
(a) A work of architecture in form of building or other construction;
(b) An entire book, or a substantial past thereof, or of a musical work in which graphics form by
reprographic means;
(c) A compilation of data and other materials;
(d) A computer program except as provided in Section 189; and
(e) Any work in cases where reproduction would unreasonably conflict with a normal exploitation
of the work or would otherwise unreasonably prejudice the legitimate interests of the author.(n)
CHAPTER VIII
LIMITATIONS ON COPYRIGHT
SEC. 184. Limitations on Copyright
184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute
infringement of copyright:
(a) 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)
(b) The making of quotations from a published work if they are compatible with fair use and only
to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the
form of press summaries: Provided, That the source and the name of the author, if appearing on the work,
are mentioned; (Sec. 11, third par., P.D. No. 49)
(c) The reproduction or communication to the public by mass media of articles on current political,
social, economic, scientific or religious topic, lectures, addresses and other works of the same nature,
which are delivered in public if such use is for information purposes and has not been expressly reserved:
Provided, That the source is clearly indicated; (Sec. 11, P.D. No. 49)
(d) The reproduction and communication to the public of literary, scientific or artistic works as
part of reports of current events by means of photography, cinematography or broadcasting to the extent
necessary for the purpose; (Sec. 12, P.D. No. 49)
(e) The inclusion of a work in a publication, broadcast, or other communication to the public,
sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is
compatible with fair use: Provided, That the source and of the name of the author, if appearing in the
work, are mentioned;
(f) The recording made in schools, universities, or educational institutions of a work included in a
broadcast for the use of such schools, universities or educational institutions: Provided, That such
recording must be deleted within a reasonable period after they were first broadcast: Provided, further,
That such recording may not be made from audiovisual works which are part of the general cinema
repertoire of feature films except for brief excerpts of the work;
(g) The making of ephemeral recordings by a broadcasting organization by means of its own
facilities and for use in its own broadcast;
(h) The use made of a work by or under the direction or control of the Government, by the
National Library or by educational, scientific or professional institutions where such use is in the public
interest and is compatible with fair use;
(i) The public performance or the communication to the public of a work, in a place where no
admission fee is charged in respect of such public performance or communication, by a club or institution
for charitable or educational purpose only, whose aim is not profit making, subject to such other
limitations as may be provided in the Regulations; (n)
(j) Public display of the original or a copy of the work not made by means of a film, slide,
television image or otherwise on screen or by means of any other device or process: Provided, That either
the work has been published, or, that original or the copy displayed has been sold, given away or
otherwise transferred to another person by the author or his successor in title; and
(k) Any use made of a work for the purpose of any judicial proceedings or for the giving of
professional advice by a legal practitioner.
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.
SEC. 185. Fair Use of a Copyrighted Work
185.1. 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:
(a) The purpose and character of the use, including whether such use is of a commercial nature or
is for non-profit education purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work.
185.2 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
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