INTELLECTUAL

PROPERTY LAW
COPYRIGHT
ATTY. MARY GRACE M. NGO
PUBLISHER’S RIGHTS

 1. The right to publish granted by the author, his heirs, or

assigns;
 2. The publisher shall have a copyright consisting merely of
the right of reproduction of the typographical arrangement
of the published edition of the work;
 3. the right to publish once the materials sent by writer,
photographer, an artist to a periodical or newspaper
publisher, if submitted to a newspaper, magazine and the
like, but such writer or artist retains his copyright on the
piece;
PERFORMER’S RIGHTS

 1. PERFORMANCE: BROADCSATING and other

communication to the public of their performance; and
fixation of their unfixed performance;
 2. Direct or indirect reproduction of their performance
fixed sound recordings or audiovisual works or fixations in
any manner or form;
 3. the first public distribution of the original and copies of
their performance fixed in sound recordings or audiovisual
works or fixations through sale or rental of other forms of
transfer of ownership;
PERFORMER’S RIGHTS

 4. Commercial rental to the public of the original

or copies of their performances fixed in sound
recordings or audiovisual works or fixation, even
after distribution of them pursuant to the
authorization by the performer;
 5. making available to the public of their
performances fixed in sound recordings or
audiovisual works or fixations by wire or wireless
means;
PERFORMER’S RIGHTS ( MORAL RIGHTS)

 1. THE RIGHT TO BE IDENTIFIED AS THE

PERFORMER OF HIS PERFORMANCES
 Exception: omission is dictated by the manner
of the use of the performance and to object to
any distortion, mutilation or other
modification of his performances that would be
prejudicial to his reputation;
INFRINGEMENT

 copyright infringement (at times referred to as piracy) is

the use of works protected by copyright law without
permission for a usage where such permission is required,
thereby infringing certain exclusive rights granted to the
copyright holder, such as the right to reproduce,
distribute, display or perform the protected work, or to
make derivative work.
INFRINGEMENT

 When there is piracy or substantial reproduction. If so

much is taken that the value of the original work is
substantially diminished or the labors of the original
author are substantially and to an injurious extent
appropriated by another. ( Habana vs Robles, GR No.
131552, July 19, 1999)
INFRINGEMENT

 Any person who possess an article which he knows, or

ought to know to be infringing copy of the work for the
purpose of :
a. Selling, letting for hire, or by way of trade offering or
exposing for sale, or hire the article;
b. Distributing the article for purpose of trade, or for any
other purpose to an extent that will prejudice the rights
of the copyright owner in the work;
c. Trade exhibit of the article in public;
Who can be liable for infringement?

 1. One who directly commits an infringement;

 2. Benefits from the infringing activity of another person
who commits an infringement if the person benefiting has
been given notice of the infringing activity and has the
right and ability to control the activities of the other
person;
 3. With knowledge of infringing activity, induces, causes
or materially contributes to the infringing conduct of
another;
Penalties for Infringement


1. First Offense: 1 year to 3 years plus a fine
ranging from 50,000 to 150,000;
 2. Second Offense: 3 years and 1 day to 6 years
plus fine ranging from 150,000 to P500,000;
 3. Third and all subsequent offenses: 6 years and
1 day to 9 years plus fine ranging from 500,000 to
1.5 M;
 All with subsidiary imprisonment in case of
insolvency;
Penalties for Infringement

 The penalties indicated in the previous slide is subject to

Section 217 .2 of Ra 8293, is determined subject to the
Court assessment of the value of the infringing materials
that the defendant has produced or manufactured and
the damage that the copyright owner has suffered by
reason of the infringement;
Penalties for Infringement
 Provided: that the previous penalties are the maximum
penalties when infringement is committed by :
 1. The circumvention of effective technological measures;
 2. The removal or alteration of any electronic rights
management information from a copy of a work, sound
recording, or fixation of a performance, by a person,
knowingly, and without authority;
 3. The distribution, broadcast, or communication to the
public of works or copies of works, by a person without
authority, knowing that electronic rights management
information has been removed or altered without
authority
Effective Technological Measures
 Technological Measures means any technology, device or component
that, in the normal course of its operation, restricts acts in respect of
a work, performance or sound recording, which are not authorized by
the authors, performers, or producers of sound recording concerned or
permitted by law;
 Its circumvention does not by itself constitute infringement but may
increase the penalty that such infringement is first established.
 Example:
 Jailbreaking or rooting is not by itself illegal; but only increased
penalty if it was used in infringing copyright.
 Jail breaking (ios) and rooting (android) or unlocking is the process
of removing the vendor imposed limitations of tbalets, mobile
devices and other electronic gadgets;
REMEDIES FOR INFRINGEMENT

 1. Injunction to prevent infringement;

( seizure and destruction of the infringing
items without compensation or can be used as
an evidence in Court)
 2.Action for damages which should be filed
within four years;
( moral and exemplary damages)
 3. Criminal case;
REMEDIES FOR INFRINGEMENT

 Action for damages which should be filed

within four years;
 Damages is determined by the proof
alleged by the plaintiff regarding sales
made by defendant of the infringing work
minus whatever costs the defendant may
be able to prove and appreciated by the
Court;
REMEDIES FOR INFRINGEMENT
 STATUTORY DAMAGES IN LIEU OF ACTUAL DAMAGES;
 However, before final judgment is rendered, copyright owner may elect to
recover instead of actual damages and profits, an award of statutory damages
for all infringements in an action in a sun equivalent to the filing fee of the
infringement action but not less than P50,000;
 But Court may consider the following factors in awarding statutory damages:
 1. Nature and purpose of the infringement act;
 2. The flagrancy of the infringement;
 3. Whether the defendant acted with bad faith;
 4. The need for deterrence;
 5. Any loss that that plaintiff has suffered or likely to suffer by reason of the
infringement;
 6. Any benefits shown to have accrued to the defendant by reason of the
infringement;
MITIGATING CIRCUMSTANCE IN CASE OF
INFRINGEMENT
 In case the infringer is not aware and had no reason to believe that
his acts constitutes an infringement of copyright, the court in its
discretion may reduce the award of statutory damages of sum not less
than 10,000;
 Provided: that the amount of damages to be awarded shall be
doubled against any person who:
 A. Circumvents effective technological measures;
 B. Having reasonable grounds to know that it will induce, enable,
facilitate or conceal infringement, remove or alter any electronic
rights management information from a copy work without authority
knowing that electronic rights management information has been
removed or altered without authority;
JURISDICTION OF COPYRIGHT CASES
 Director General exercises original jurisdiction to resolve
disputes relating to the terms of license involving the
author’s right to public performance or other
communication of his work;
 His decision shall be appealable to the Secretary of Trade
and Industry;
 Without prejudice to the above-provision, actions under
Ra 8293 an Ra 10372 shall be cognizable by the courts
with appropriate jurisdiction under the existing law.
 BP 129, RTC’s designated as Special Commercial Courts
can hear and try cases involving Copyright infringement
Presumption of Authorship
 The natural person whose name is indicated on a work in
the usual manner as the author shall, in the absence of
proof to the contrary, be presumed to be the author of
the work.
 The person or body corporate whose name appears on an
audio visual work in the usual manner, in the absence of
proof to the contrary, be presumed to be the maker of the
work;
 This provision is applicable even if the name is a
pseudonym, where the pseudonym leaves no doubt as to
the identity of the author;
ACTS WHICH DO NOT INFRINGE
COPYRIGHT
 1. RECITATION OR PERFORMANCE OF A WORK, either made accessible
to the public, privately done, free of charge or strictly for charitable
or religious institution;
 2. Making quotations from a published work, which is compatible with
fair use, extent is justified by the purpose, source and name of the
author appearing on work must be mentioned;
 3. reproduction or communication to the public by the mass media of
articles on current political, social, economic, scientific or religious
topic, lectures, addresses or works, delivered in public for
information purposes not expressly reserved and source is already
indicated;
ACTS WHICH DO NOT INFRINGE
COPYRIGHT
 4. Reproduction or communication to the public of literary, scientific
or artistic works as part of reports of current events either through
broadcasting photography, cinematography or broadcasting;
 5. Inclusion of work in a publication, broadcast or other
communication to the public, sound recording or film for teaching
purposes , source, name and author appearing on work must be
mentioned;
 6.Recording made in schools, universities or educational institutions
of a work included in a broadcast for the use of such schools,
universities or education institutions which must be deleted within a
reasonable period and can be used only in general cinema for brief
excerpts of the work;
ACTS WHICH DO NOT INFRINGE
COPYRIGHT
 7. Making ephemeral recordings by broadcasting organizations
through its own facilities for its own broadcast;
 8. Use made of a work by or under the direction or control of
the Government for public interest compatible with fair use;
 9. Public performance or the communication to the public of a
work in a place where no admission fee is chare, for charitable
or educational purpose only and the aim is not-profit making;
 10. Public display of the original or copy of the work not made
by means of film, slide, television image sold, given away or
transferred to another person by the author or his successors;
ACTS WHICH DO NOT INFRINGE
COPYRIGHT
 11.Any use made of a work for the purpose of any judicial
proceedings or for the giving of professional advice by a legal
practitioner;
 12. Single copy reproduction of a published work by natural person
exclusively for research and private study ( even without
authorization of the owner)
 13.reproduction by non-profit libraries of :
 Fragile works;
 Isolated articles in composite works;
 Brief portions of published work
 To preserve or replace copy that is lost, destroyed or rendered
non-usable;
 14. One-back up copy of computer program;
ACTS WHICH DO NOT INFRINGE
COPYRIGHT
 15. Decompilation
may also constitute fair use because it is done for the
purpose of obtaining the information necessary to achieve
interoperability;
-It is the act of reproduction of the code and
translation of the forms of a computer program to achieve
the interoperability of an independently created computer
program with other programs;
ACTS WHICH DO NOT INFRINGE
COPYRIGHT
 16. Importation for personal use:
The importation of a copy of work by an
individual for his personal purposes shall be
permitted without the authorization of the
author of, or other owner of copyright.
ACTS WHICH DO NOT INFRINGE
COPYRIGHT
 FAIR USE
 It is a privilege to use the copyrighted material in a
reasonable manner without the consent of the
copyright owner or as copying the theme or ideas
rather than their expression; ( ABS-CBN vs Gozon March
11, 2015)
 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. (Sec 185,
IPC)
FACTORS TO CONSIDER IN DETERMINING
WHETHER USE IF FAIR OR NOT
 1. Purpose and character of the use;
 2. Nature of the copyrighted work;
 3.Amount and substantiality of the portions used;
and
 4.Effect of use upon the potential market of the
copyrighted work;
FACTORS TO CONSIDER IN DETERMINING
WHETHER USE IF FAIR OR NOT
 1. Purpose and character of the use;

It must be for criticism, news reporting, teaching

including multiple copies for the classroom use, scholarship,
research, and similar purposes.
Its important view is to promote creativity and encourage
creation of works.
FACTORS TO CONSIDER IN DETERMINING
WHETHER USE IF FAIR OR NOT
 1. Purpose and character of the use;

 TRANSFORMATIVE TEST
Test determining whether the copy of
the work adds “ new expression, meaning
or message to transform into something
else”
FACTORS TO CONSIDER IN DETERMINING
WHETHER USE IF FAIR OR NOT
1. Purpose and character of the use;

META-USE
For the kind that does not
necessarily transform the work but
only changes the purpose of the
work;
FACTORS TO CONSIDER IN DETERMINING
WHETHER USE IF FAIR OR NOT
 2. Nature of the copyrighted work;
This is significant in deciding the use is fair or not;
-If the nature of the work is more factual than creative,
then fair use will be weighed;

3. Amount of Substantiality of the portion used:

An exact reproduction of a copyrighted work, compared to
a small portion of it can result in the conclusion that its use is
not fair;
FACTORS TO CONSIDER IN DETERMINING
WHETHER USE IF FAIR OR NOT
 4.Effect of the use on the copyrighted
work’s market;

If the court finds that the use had or will

have a negative impact on the
copyrighted work’s market, then the use
is deemed unfair;
Is there an infringement if the is a
reproduction or distribution of published
articles in a specialized format for the
blinds?
 None provided it is with indication of the
original owner and of the date of the
original publication and it is exclusively for
the use of the blind, visually and reading
impaired persons on a non-profit basis.
POINT OF ATTACHMENT FOR
COPYRIGHTABLE WORKS:
 1. Authors are nationals of or have their habitual residence in the
Philippines;
 2. Audio-visual works, the producer of which has his headquarters or
habitual residence in the Philippines;
 3. Works of architecture erected in the Philippines, incorporated or
located in the Philippines;
 4. Works first published in the Philippines;
 5. Works published in another country but also published in the
Philippines within 30 days, irrespective of the nationality or residence
of authors;
POINT OF ATTACHMENT OF
PERFORMERS:
 1. PERFORMERS who are nationals of the Philippines;
 2. Performers who are not nationals of the Philippines but
whose performance:
 A. take place in the Philippines;
 B. Are incorporated in sound recordings that are
protected under this Act;
 C. Which has not been fixed in sound recording but are
carried by broadcast qualifying for protection under this
Act;
POINT OF ATTACHMENT OF SOUND
RECORDINGS:
 1.The producers of which are nationals of
the Philippines;
 2. Such sound recording were first
published in the Philippines;
POINT OF ATTACHMENT FOR
BROADCAST:
 1.Broadcast or Broadcast Organizations’
headquarters are located in the Philippines;
 2.Broadcasts transmitted from transmitters
situated in the Philippines;
 3. Subject to International Protection by
virtue of International Agreements.
( Reciprocity Rule)