Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Laws Repealed:
Intellectual Property
Refers to creations of the mind; inventions, literary and artistic works, and
symbols, names, images, and designs used in commerce. It means legal
rights which result from intellectual activity in the industrial, scientific,
literary, and artistic fields. World Intellectual Property Organization
Intellectual Property Handbook, 2004
Works under Non-patentable Inventions are also not protected by law. (Sec.
22)
Industrial designs
Patents
Geographic Indications
Copyright
Sec. 4
Industrial Design
Trademark
Patent Inventions
Geographic Indication
Undisclosed Information
Art 39 Trips
The Philippines upon becoming a member of the WTO has adhered to the
Trade Related Aspects of Intellectual Property (TRIPS) which provides
that protection of afforder to the member-state (with respect to intellectual
property) must be extended to nationals of other member-states.
Most-Favored Nation Principle
Whatever favor, allowance, consideration, privilege, or immunity a memberstate grants the nationals of another country is immediately and
unconditionally accorded to the nationals of other member-states. (Art. 4
TRIPS)
What is to be protected?
Copyright
which shall consist of the exclusive right to carry out, authorize or prevent the
acts listed in Sec. 177
A bundle of rights e.g. JK Rowling can sell various rights like right to publish
(Scholastic), right to make a movie from her story (Warner), right to make
toys from characters (e.g., Mattel)
A negative right since it prevents you from enjoying and/or deriving benefit
Facts alone are not protected but if it is arranged in an original manner, then
it is covered. (i.e. databases)
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.
See also
Public lending
Public performance
Published works
Rental
Reproduction
Sec. 177. Copyright or economic rights shall consist of the exclusive right to
carry out, authorize or prevent the following acts:
3. The first public distribution of the original and each copy of the work
by sale or other forms of transfer of ownership;
Q. If you buy a book then after reading it, you sell it to another, infringement?
Sec. 177. Copyright or economic rights shall consist of the exclusive right to
carry out, authorize or prevent the following acts:
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;
Rental Stores need a license to rent out works.
Sec. 177. Copyright or economic rights shall consist of the exclusive right to
carry out, authorize or prevent the following acts:
5. Public display of the original or a copy of the work;
6. Public performance of the work; and
7. Other communication to the public of the work;
NOTE: 171.6. "Public performance," in the case of a work other than an
audiovisual work, is the recitation, playing, dancing, acting or otherwise
performing the work, either directly or by means of any device or process; in
the case of an audiovisual work, the showing of its images in sequence and
the making of the sounds accompanying it audible;
In the case of a sound recording, making the recorded sounds audible at a
place or at places where persons outside the normal circle of a family and
that familys closest social acquaintances are or can be present, irrespective
of whether they are or can be present at the same place and at the same
time, or at different places and/or at different times, and where the
performance can be perceived without the need for communication.
Q. No TV in barrio, you buy TV, subscribe from Home and charge people to
watch it. Violation?
A. Yes, It falls under public performance, same rule for broadcast.
TV
point to multipoint vs. point to point (since only subscriber can
receive)
Q. Is there broadcast?
A. Yes, there is broadcast. Public performance and communication to the
public is included. There is no distinction as to TV or cable.
Website with copyrighted material point to point, protection includes
broadcast and communicating to the public so you have protection
Internet there is assumed right to transmit material in internet unless made
very clear that there are restrictions
E-Commerce Act you can enter into internet contract by clicking I
agree in buttons
Therefore: if you click I agree that I will not violate copyright and still
violate copyright, two causes of action against you: 1) breach of
contract and 2) copyright infringement
(AVO Notes)
Is copyright owner given right to prevent importation of the article?
A. Parallel import in patent, the right to limit importation is clearly given.
But it is not clear in copyright law.
IP Code provides in Sec. 190.
the importation of a copy of a work by an individual for his personal
purposes shall be permitted without the authorization of the author of,
or other owner of copyright in, the work under the circumstances
provided (see Codal:
(a) When copies of the work are not available in the Philippines
and:
b)
When such copies form parts of libraries and personal
baggage belonging to persons or families arriving from foreign
countries and are not intended for sale. (not more than three)
Works protected by a Copyright
Literary and Artistic Works which are original intellectual creations in the
literary and artistic domain protected from the moment of their creation
See Article 172 IPL
When does protection begin?
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.
See Article 172.2 IPL
The thing should be tangible for it to come under copyright protection.
(Hence, mere idea like E=mc2 is not copyrightable.)
If written, if recorded, then copyrightable. If not recorded, there is no
protection because it is not in a tangible form.
Q. Are functional objects copyrightable? E.g. Figurine Lamps
A. Test = if thing is more artistic than functional. Here, figurine lamp is more
artistic so it is copyrightable. But Magw heels would not be copyrightable
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 education purposes;
The nature of the copyrighted work;
Published/unpublished
Factual/fictional
defense of fair use has more chance in unpublished work than a
published work. However, there is little chance for the defense of an
unpublished creative work to hold since in fictional work, there is more
creative input than factual work.
The amount and substantiality of the portion used in relation to the
copyrighted work as a whole
If portion copied is heart of the work
The effect of the use upon the potential market for or value of the
copyrighted work.
Test is both the present and future market
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.
Fair use always involves a balancing of interests of the copyright owner and
the public.
The copyright owner has the right to exploit his work vs. the public has
the right to information and the right to share this information.
Crossing the line is infringement.
NOTE: When you raise fair use as a defense, you admit the facts in the
complaint. Therefore:
1.)
Plaintiff will no longer have to prove the facts, the trial now centers on
whether or not there was fair use.
2.)
It would be an inconsistent defense if you allege fair use and you
allege that you were not the one doing the infringing.
Q. Chris Lim copies substantial portions of a book of a UP professor on IP,
then he gives it out to students and anyone who wants a copy. Infringement?
A. Yes. The fact that it is for free does not necessarily mean it is fair use.
Q. If the IP Code were amended to read, So long as copyrighted material is
used in school, it is fair use. Would this be constitutional?
Maybe not. It would be undue deprivation of property. It would also
remove all incentive to create, write law books for instance or develop
computer programs for school usage.
Q. When Chris Lim says, I copied large portions of Atty. Xs work, is this a
valid defense?
A. No. It may serve to limit liability, but if substantial portions of the work is
copied, attribution will not protect you. Protection only exists when excerpts
are used.
Note: Traditional copyright is easier to protect than digital copyright. (AVO
Notes)
Copyright a body of rights so you can assign some of these rights to other
people (note, only Economic Rights are assignable. Moral Rights are not
assignable/alienable.)
Assignment has to be in writing.
NOTE: When I give a copy to a publication for publication, when there is no
agreement between the parties, I retain the copyright and it extends only to
one publication.
Second reprints are not allowed, without permission.
Licenses can be free or for a fee.
COLUMBIA PICTURES vs. CA G.R. No. 110318. August 28, 1996
JOAQUIN vs. DRILON G.R. No. 108946. January 28, 1999
HABANA vs. ROBLES G.R. No. 131522. July 19, 1999
BAYANIHAN MUSIC vs. BMG G.R. No. 166337. March 7, 2005
Manly SpORTWEAR vs. DADOETTE G.R. No. 165306 September 20, 2005
ABS-CBN vs. Philippine Multi-Medi System. G.R. Nos. 175769-70 January 19,
2009