IV.

The Rights of Copyright

It is Chapter V, Section 177 of the new law that governs the exclusive rights of copyright.

1. Reproduction of the work of a substantial portion of the wok (177.1) a) What is broadly called in other jurisdictions the right to reproduce is specified in this provision. The right to reproduce is taken to be the most elemental of the rights of a copyright owner. As a matter of legal consequence, the very same acts that constitute reproduction, when done by one other than the owner of copyright, and not otherwise authorized by law, constitute infringement. b) A work is reproduced when its expression is copied or duplicated. Thus, when an entire article is computer-scanned, stored in the hard-disk of a computer or in some other medium, (floppy disk or a compact disk), there is reproduction. These days to cater to the blind, several best-sellers have been recorded on cassettes. Although, the reproduction be of a kind different from the original material, the statutory definition still categories it as a reproduction. c) For infringement to occur, however, it must be work or a substantial portion thereof itself that is reproduced illegally. Thus where a T.V. commercial makes use of one line from a song, or a writer borrows a beautiful phrase from a novel, there will be no infringement. When, however, the entire work or a substantial part thereof is reproduced, there is infringement. d) The contract between a copyright owner and a publisher has for its subject matter the rights to reproduce and also, frequently, the right to distribute. It can therefore be said, with good reason, that the essence of a publication contract is the right to make copies of a work (WIPO, 213). In this connection, the Philippine Law Dictionary defines a royalty as a duty or compensation paid to the owner of a patent or a copyright for the use of it or article manufacture, used, sold or the like. e) Article, 9 (1) of the Berne-Paris Convention protects this right on the level of international law. Significantly, authors of musical works are not explicitly mentioned. Rather Article 11, (1) rather grants the authors of dramatic, dramatico-musical and musical works the exclusive right of authorizing the public performance of their works by any means or process and any communication to the public of the performance of their works.

2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work. (177.2) a) It is clear that the owner of copyright controls the adaptation of the work. Castrillo has just produced a beautiful piece of sculpture with Bonifacio as its theme near the Manila City Hall. A diorama version would be a transformation that the law places within the control of Castrillo. b) It is always a possible defense in an infringement suit for the defendant to deny that the adaptation was base on a copyrighted work and to insist rather that his version is obtained from some work or fact in the public domain. c) A commentary on an article, or a song inspired by a book, are not infringements. Neither is it an infringement to alter some of the words in the lyrics of a song or in a play. d) Article 12 of the Berne-Paris Convention guarantees authors of literary or artistic works exclusive right of authorizing adaptations, arrangements and other alterations of their works. Article 14, 1 recognizes their exclusive right to authorize cinematographic adaptation and reproduction of the works of literary and artistic authors. Article 14, 2 is interesting: It provides that when a work is adapted from cinematographic production whish in turn is adapted from a literary or an artistic work, the author of the literary or the artistic work controls the adaptation based on the cinematographic production without prejudice to the rights of the author of cinematographic production. Exactly how this is to be dealt with in the practice of copyright law is not clear. X writes a book entitled Sherwins Pilgrimage. Y produces a movie based on the book, which is then titled Wandering. Z writes a stage play script-given the title The Long Road based on Wandering. The treaty give X authority over The Long Road, without prejudice to whatever rights Y may also have arising from the use of his cinematographic production. Evidently, several problems of overlapping if not conflicting claims are conceivable. e) When an author, however, authorized a publisher to publish his work, or a broadcasting organization to broadcast it a move producer to show it, or a scriptwriter to dramatize it, the author, even without explicit authorization, impliedly grants authorization for the editing, arrangement or adaptation of the work in order to rendered it suitable to the medium for which authorization has been given. (Sec.197) There can still be infringement in this regard, however, as where it can be shown that the editing work done or the adaptation did more than fit the creation to the medium, or when the adaptation or transformation alters the creation in an appreciable manner as to make it a different work.

3. The first public distribution of the original and each copy of the work by sales or other forms of transfer of ownership (177.3) a) Section 177.1 had to do the right to reproduce. This subparagraph has to do with the right to the first public distribution of the original and of each copy of the work by sale or other forms of transfer of ownership. Why first, public distribution of the original, or each copy? Certainly, the right to distribute to the public by sale (or by any other mode of transfer) the original or a copy of the work is part of the economic rights of copyright. In fact, it is what renders copyright in large measure rewarding and allows it be the incentive that the Constitution intends it to be. The moment, however, the copyright owner has parted with the original or a copy thereof, it is the new owner of the original or the copy that has control over subsequent sales or transfers, for this is one of the incidents of ownership. By qualifying the right of the copyright holder to first, public distribution, the law recognizes no further right over subsequent transfers. b) Is the right provided by this sub-paragraph relevant to pictorial, graphic and sculptural works? A basic rule of statutory construction is to go by the plain language of the statue, and it is rather plain that the provision does not specify which works. It should be noted though that Sec. 200 reserves to the creator of an original work of painting or sculpture, or to the author or compose relative to an original manuscript, an inalienable right to participate in the gross proceeds of the sale or lease of such object to the extent of five percent (5%). c) If I were to compose a song, this sub-paragraph reserves to me the right to render it in public, whether for profit or not. Performance includes reading literary work aloud, singing or playing music, dancing a ballet or other choreographic work, and acting out a dramatic work or pantomime. Unlike American and British statues, however, that make it clear that the prohibited acts are public performances, there is no such modifier in the cited sub-paragraph. However, it is clear from Section 10, paragraphs 1 and 2 that the performances, productions or reproductions and representation referred to in Section 5 are public performances, since recitations or performances, as well as reproductions, when private and for personal use, are not within the prohibited acts.

4. Rental of the original copy of a copy of an audio visual 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 f the original or the copy which is the subject of the rental. (177.4) a) This is a new provision, but it has precedents in foreign law. Under the law of the United Kingdom, one exception to the provision that it is only the act of putting

copies into circulation for the first time that is restricted has to do with the renting to copies of films to the public. In short, the renting of copies of films is itself a restricted act and is covered by copyright. Under the Philippine law, this peculiar provision is limited in applicability to cinematographic or audiovisual works, sound recordings or computer programs. The rationale for this novel provision is not too difficult to divine: The firm-producer (as well as the producer of audio visual works) undertakes these projects most of the time with the end in view of deriving profit by renting out copies of these works to the publ. The new provision is therefore a protection of the producers expectation. Precisely because the rental of such works is restricted act, the copyright owner may also stipulate that no rental take place, or that there be further fees for rentals. b) Rental is defined as the transfer of the possession of the original or a copy of a work for a limited period of time, for profit-making purposes. (Sec. 171.8) Where a work or a copy thereof is lent for private viewing, there is technically, no rental. Of course, as English law very wisely suggests, there is also rental where the lending takes place in the course of a business as part of services or amenities for which payment is made. c) Such current crazes as Video CDs that allow a CD player to be hooked to a TV screen that provides a visual image at the same time that the music is played is one of the musical works in graphic form that covered by this provision. d) The phrase irrespective of the ownership of the original or the copy which is the subject of the rental should be paid attention to. Whether or not the original itself or the copy has been sold or otherwise transferred does not in any way detract from the control the copyright owner of a cinematographic, audiovisual, sound recording, computer program or graphic musical work enjoys in regard to the rental thereof. If Mother Lily therefore is the copyright owner of a film Lantang Lily, and she sells the film to Manoling Morato to rent his purchased copy (or original) to Erap, for that would still be one of the rights under the copyright of Mother Lily.

5. Public display of the original or a copy of the work. (Sec. 177.5) a) The right, according to Boorstyn, applies to literary, musical, dramatic, pantomime and choreographic works, pictorial, graphic and sculptural works, and the individual images of a motion picture or other audiovisual works. It includes the right of the copyright owner to display or show the work or an image of it to the public. b) In case of a motion or picture or of an audiovisual work, to display is to show individual images non-sequentially. c) If one of Peck Pinons works would catch the fancy of a school president who also dabbles in the arts, would it be infringement for such a president to display the

purchased work in the lobby of his school-which would obviously be public display? If this were the case, purchasing works of art would not make much sense, for such works are usually purchased not only for the delectation of their owners, but also to be displayed to others. Fortunately, Sec. 184.3, j stipulates as one of the limitations of copyright the display of a piece of sculpture, a painting, an engraving, an etching, or even a literary or a musical work, provided that the work displayed has been sold, given away or transferred to another person by the author or his successor in title. d) The display of a work in clubs, lodges, factories, and schools not covered by the exception discussed in the preceding paragraph would be public display and would constitute an infringement of copyright. On the contrary, a display to an individuals social acquaintances or at routine meetings of businesses and governmental personnel would not be public.

6. Public performance of the work. (Sec. 177.6) a) What constitutes public performance? (1) To perform it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. The opposite of a public performance is performance in a domestic or a quasi-domestic situation. Where only the family or the household is involved, the performance is domestic. When members of ones group of friends or co-workers is involved, there will be reason to hold the situation quasi-domestic. (2) To transmit or otherwise communicate a performance of the work to a place specified above or to the public, by means of any device or proves, whether the members of the public capable of receiving the performance receive it in the same time or at different times. (3) The presence of guests is no material. Also when a song is played on the radio or on television, even if received by members of the public in the privacy of their homes and even if the potential recipients constitute only a segment of the public, there is public performance. b) American law distinguishes between the performance of a cinematographic work and its display. There is performance when a segment of the production is shown, i.e., a series of scenes. If however, the showing is not sequential, then there is display and not performance. There is no room for such a distinction under our laws, it seems, for to exhibit and to perform are treated in one single provision and are therefore treated alike. c) Article 11 of the Berne-Paris (1971) Convention provides for authors of dramatic, dramatico-musical and musical works the exclusive right of authorizing the

public performance of their works, by any means or process and any communication to the public of the performance of their works. It is important that the treaty distinguishes between-and makes different provisions for-the public performance or their works and the communication of the performance to the public. Authorization for the first is no necessarily authorization for the second. d) Article 11 bis of the same treaty grants to authors of literary and artistic works the exclusive right of authorizing the broadcasting of their works or other communication thereof to the public by any other means of wireless diffusion [I]; a rebroadcast of their broadcast work [II]; the communication by loudspeaker or any analogous instrument. [III] The fact that a soliloquy has already been broadcast is no defense to a charge of infringement by rebroadcast, since the latter remains within the exclusive control of the copyright owner of the soliloquy. e) Article 11 ter is likewise of moment: The authors of literary works enjoy the exclusive right of authorizing the public recitation of their works (I), any communication of the recitation of their works to the public (II), and the same rights over translations of their works. (III) Let us say that President Gloria Macapagal-Arroyo writes an essay entitled Noraesque. It is translated by Nora Aunor herself into Ang Pagiging Nora. Whether or not Ms. Aunor-or anyone else authorized by her-may recite the work And Pagiging Nora in public depends on President Gloria MacapagalArroyo, and even when already publicly read, whether or not the public recitation may be telecast on Lihim ng Gabistill depends on President Gloria Macapagal-Arroyo. f) As regards public performances, there is the limitation contained in Sec. 184.1, i that allows the performance or the communication to the public or a work in a place where no admission fee is charged, as long as such a performance or communication is by a club or institution for charitable or educational purpose, whose aim is not profit-making.

7. Is there such a thing as the right to destroy the copyrighted work? Recalling that the purpose of the monopolies conceded by copyright and patent laws is to provide the incentive to the creation and ingenuity, it is difficult to see how the right to destroy would be included within the right to dispose of the work consistent with the laws of the land. But the right to destroy has been recognized as one of the concomitants of ownership. Paradoxically then, it does appear to be the persuasion of the law that one of the ways of encouraging literary and artistic genius as well as useful inventions is to confer on the creators, at least for a limited period, the very right to destroy the contribution itself. At any rate, there is no reason to fear that a greater number of artists will be inclined to destroy their works. The jura abutendi et disponendi therefore would be included in this paragraph.