Tuesday, December 14, 2010

COPYRIGHT

Source:  IPOPHIL Philippines
WHAT IS COPYRIGHT?

Copyright is the legal protection extended to the owner of the rights in an original work.

“Original work” refers to every production in the literary, scientific and artistic domain. Among the literary and artistic works enumerated in the IP Code includes books and other writings, musical works, films, paintings and other works, and computer programs.

Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as their content, quality and purpose. Thus, it does not matter if, in the eyes of some critics, a certain work has little artistic value. So long as it has been independently created and has a minimum of creativity, the same enjoys copyright protection.


WHAT ARE THE WORKS COVERED BY COPYRIGHT PROTECTION UNDER THE INTELLECTUAL PROPERTY CODE?

Section 172 of the IP Code lists the works covered by copyright protection from the moment of their creation, namely:
  1. (a) Books, pamphlets, articles and other writings
  2. (b) Periodicals and newspapers
  3. (c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form
  4. (d) Letters
  5. (e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows
  6. (f) Musical compositions, with or without words
  7. (g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other work of art; models or designs for works of art
  8. (h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art
  9. (i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science
  10. (j) Drawings or plastic works of a scientific or technical character
  11. (k) Photographic works including works produced by a process analogous to photography; lantern slides
  12. (l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings
  13. (m) Pictorial illustrations and advertisements
  14. (n) Computer programs
  15. (o) Other literary, scholarly, scientific and artistic works.


WHAT ARE THE TWO TYPES OF RIGHTS UNDER COPYRIGHT?


  • There are two types of rights under copyright: (1) economic rights, so-called because they enable the creator to obtain remuneration from the exploitation of his works by third parties, and (2) moral rights, which makes it possible for the creator to undertake measures to maintain and protect the personal connection between himself and the work.
  • Economic rights include:
    • Reproduction
      • Transformation First public distribution
      • Rental
      • Public display
      • Public performance
      • Other communication to the public of the work.
    • Moral rights include:
      • Right of Attribution
      • Right of Alteration
      • Right of Integrity (object to any prejudicial distortion)
      • Right to restrain use of his name.
        • Exception to the moral rights
          • 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. 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.
          • In the absence of a contrary stipulation at the time an author licenses or permits another to use his work, the necessary editing, arranging or adaptation of such work, for publication, broadcast, use in a motion picture, dramatization, or mechanical or electrical reproduction in accordance with the reasonable and customary standards or requirements of the medium in which the work is to be used, shall not be deemed to contravene the author's rights secured by this chapter. Nor shall complete destruction of a work unconditionally transferred by the author be deemed to violate such rights.
    • Resale right: In every sale or lease of an original work of painting or sculpture or of the original manuscript of a writer or composer, subsequent to the first disposition thereof by the author, the author or his heirs shall have an inalienable right to participate in the gross proceeds of the sale or lease to the extent of five percent (5%). This right shall exist during the lifetime of the author and for fifty (50) years after his death.
Related rights
  • Authors create works to disseminate them to as large an audience as possible. Obviously, they cannot do the dissemination by themselves. They need the help of persons or entities who contribute substantial creative, technical or organizational skill in the process of making the works available to the public  and whose interests ought to be protected to encourage them to continue with their work. Hence, their rights are referred to as “related rights” or “neighboring rights” since they are related to or are neighboring on the author’s copyright.
  • Thus, we have the related rights of: (a) performers; (b) producers of sound recordings; and (c) broadcasting organizations.

Copyright ownership
  • Generally, the natural person who created the literary and artistic work owns the copyright to the same.
  • For work created during or in the course of employment (works for hire):
    • Employee -  if the work is not part of his regular duties, even if he used the time, facilities and materials of the employer;
    • Employer - if the work is the result of the performance of his regularly assigned duties, unless there is an express or implied agreement to the contrary.
  • For commissioned works: the person who commissioned the work owns the work but the copyright thereto remains with the creator, unless there is a written agreement to the contrary.
  • For audiovisual works: the producer, the author of the scenario, the composer of the music, the film director, and the author of the work so adapted.

WHAT IS THE TERM OF PROTECTION OF COPYRIGHT?
  • In general, the term of protection of copyright for original and derivative works is the life of the author plus fifty (50) years after his death. The Code specifies the terms of protection for the different types of works.
  • In calculating the term of protection, the term of protection subsequent to the death of the author shall run from the date of his death or of publication, but such terms shall always be deemed to begin on the first day of January of the year following the event which gave rise to them (i.e. death, publication, making).

WHAT ARE THE LIMITATIONS ON COPYRIGHT AND FAIR USE?
  • Copyright protection is not intended to give the copyright owner absolute control over all possible exploitation of his work. The law provides for limitations (“statutory fair uses”) on the economic rights of authors comprising of acts which do not constitute copyright infringement even if done without the consent of the copyright holder, such as:
    • 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;
    • 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;
    • 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;
    • 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;
    • 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.
  • These limitations, however, should 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.
  • The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes are 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 education 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.
  • Aside from the provisions on the limitations on copyright and on fair use, the law allows the following reproductions:
  • 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.
  • any library or archive whose activities are not for profit may, without the authorization of the author of copyright owner, make a single copy of the work by reprographic reproduction:
    1. (a) Where the work by reason of its fragile character or rarity cannot be lent to user in its original form;
    2. (b) Where the works are isolated articles contained in composite works or brief portions of other published works and the reproduction is necessary to supply them; when this is considered expedient, to person requesting their loan for purposes of research or study instead of lending the volumes or booklets which contain them; and
    3. (c) Where the making of such a copy is in order to preserve and, if necessary in the event that it is lost, destroyed or rendered unusable, replace a copy, or to replace, in the permanent collection of another similar library or archive, a copy which has been lost, destroyed or rendered unusable and copies are not available with the publisher.
  • the reproduction in one (1) back-up copy or adaptation of a computer program shall be permitted, without the authorization of the author of, or other owner of copyright in, a computer program, by the lawful owner of that computer program: Provided, That the copy or adaptation is necessary for:
    1. (a) The use of the computer program in conjunction with a computer for the purpose, and to the extent, for which the computer program has been obtained; and
    2. (b) Archival purposes, and, for the replacement of the lawfully owned copy of the computer program in the event that the lawfully obtained copy of the computer program is lost, destroyed or rendered unusable.

WHAT CONSTITUTES INFRINGEMENT?
  • Under the IP Code
    • Copyright infringement consists in infringing any right secured or protected under the Code. It may also consist in aiding or abetting such infringement. The law also provides for the liability of a person who at the time when copyright subsists in a work has in his possession an article which he knows, or ought to know, to be an infringing copy of the work for the purpose of:
      • Selling or letting for hire, or by way of trade offering or exposing for sale or hire, the article;
      • Distributing the article for the purpose of trade, or for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or
      • Trade exhibit of the article in public.
WHAT ARE THE REQUIREMENTS FOR COPYRIGHT REGISTRATION?
  • The owner of the copyright may file an application for a certificate of registration and deposit of copies or reproduction of the works or works personally or via registered mail with the Copyright Division of the National Library and the Supreme Court Library. The application must contain the following:
    1. A duly accomplished form in duplicate for each work, provided, that a separate application is submitted for each number of a periodical containing a notice of copyright.
    2. A support document evidencing ownership of the copyright, the manner of its acquisition if the claimant is not the original author translator, or editor, and where and in what establishment the work was made, performed, printed, or produced, and the date of its completion and publication.
    3. Receipt showing payment of the registration fee if the application is filed personally, or by postal money order if the application is filed by registered mail.
    4. Documentary stamps in the correct amount, which shall be affixed to the registration and deposit certificate.
    5. Two (2) complete copies or reproduction of the work or replica or picture
    6. Two (2) printed copies with the copyright notice printed in front or at the back of the title page or on any conspicuous space for a non-book material, if the work is a published work.
    7. If the work is in a musical work, two (2) copies of the originalwork, in the form of a music sheet, in cassette, optical disk, or multimedia.
    8. A technical description of the design, if the work is an original ornamental design.
    9. Two (2) duplicate originals or certified true copies of the deed of assignment.

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