R.A. 8293 IP CODE ------ THE LAW ON COPYRIGHT

Chapter I PRELIMINARY PROVISIONS

Sec. 171. Definitions. - For the purpose of this Act, the following terms have the fol-lowing meaning:

171.1. "Author" is the natural person who has created the work;

171.2. 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;

171.3. "Communication to the public" or "communicate to the public" means the making of a work available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them;

171.4. A "computer" is an electronic or similar device having information-processing capabilities, and a "computer program" is a set of instructions expressed in words, codes, schemes or in any other form, which is capable when incorporated in a medium that the computer can read, or causing the computer to perform or achieve a particular task or result;

171.5. "Public lending" is the transfer of possession of the original or a copy of a work or sound recording for a limited period, for non-profit purposes, by an institution the services of which are available to the public, such as pub-lic library or archive;

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; and, 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 family’s closest social acquain-tances 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 within the meaning of Subsection 171.3;

171.7. "Published works" means works, which, with the consent of the au-thors, are made available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them: Provided, That availability of such copies has been such, as to satisfy the reasonable requirements of the public, hav-ing regard to the nature of the work;

171.8. "Rental" is the transfer of the possession of the original or a copy of a work or a sound recording for a limited period of time, for profit-making purposes;

171.9. "Reproduction" is the making of one (1) or more copies of a work or a sound recording in any manner or form (Sec. 41 [E], P.D. No. 49a);

171.10. A "work of applied art" is an artistic creation with utilitarian functions or incorporated in a useful article, whether made by hand or produced on an industrial scale;

171.11. A "work of the Government of the Philippines" is a work created by an officer or employee of the Philippine Government or any of its subdivi -sions and instrumentalities, including government-owned or controlled cor-porations as part of his regularly prescribed official duties.

CHAPTER II ORIGINAL WORKS

Sec. 172. Literary and Artistic Works. -172.1 Literary and artistic works, hereinafter referred to as "works", are orig-inal 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, lithog-

raphy 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 au-dio-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)

Sec. 174. Published Edition of Work. - In addition to the right to publish granted by the author, his heirs or assigns, the publisher shall have a copy right consisting merely of the right of reproduction of the typographical arrangement of the pub-lished edition of the work. (n)

Chapter IV WORKS NOT PROTECTED

Sec. 175. Unprotected Subject Matter. - Notwithstanding the provisions of Sections 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 con-dition the payment of royalties. No prior approval or conditions shall be re-quired 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 de-

liberative 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 disser-tations 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 pre-cluded from receiving and holding copyrights transferred to it by assign-ment, bequest or otherwise; nor shall publication or republication by the government in a public document of any work in which copy right is subsist-ing 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, autho-rize 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 compi-lation of data and other materials or a musical work in graphic form, irre-spective 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 liter-ary 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 au-thor of each part can be identified, the author of each part shall be the origi-nal 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 regu-larly-assigned duties, unless there is an agreement, express or im-plied, to the contrary.

178.4. In the case of a work-commissioned by a person other than an em-ployer 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 pro-ducer, the author of the scenario, the composer of the music, the film direc-tor, 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 pseudo-nyms, 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 anony-mous works discloses his identity. (Sec. 7, P. D. 49)

CHAPTER VII TRANSFER OR ASSIGNMENT OF COPYRIGHT

Sec. 180. Rights of Assignee. -

180.1. The copyright may be assigned in whole or in part. Within the scope of the assignment, the assignee is entitled to all the rights and remedies which the assignor had with respect to the copyright.

180.2. The copyright is not deemed assigned inter vivos in whole or in part unless there is a written indication of such intention.

180.3. The submission of a literary, photographic or artistic work to a news-paper, magazine or periodical for publication shall constitute only a license to make a single publication unless a greater right is expressly granted. If two (2) or more persons jointly own a copyright or any part thereof, neither of the owners shall be entitled to grant licenses without the prior written consent of the other owner or owners. (Sec. 15, P. D. No. 49a)

Sec. 181. Copyright and Material Object. - The copyright is distinct from the prop-erty in the material object subject to it. Consequently, the transfer or assignment of the copyright shall not itself constitute a transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several copies of the work im-ply transfer or assignment of the copyright. (Sec. 16, P. D. No. 49)

Sec. 182. Filing of Assignment of License. - An assignment or exclusive license may be filed in duplicate with the National Library upon payment of the prescribed fee for registration in books and records kept for the purpose. Upon recording, a copy of the instrument shall be, returned to the sender with a notation of the fact of record. Notice of the record shall be published in the IPO Gazette. (Sec. 19, P. D. No. 49a)

Sec. 183. Designation of Society. - The copyright owners or their heirs may desig-nate a society of artists, writers or composers to enforce their economic rights and moral rights on their behalf. (Sec. 32, P. D. No. 49a)

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 au-thor, 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 ar-ticles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are de-livered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indi-cated; (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 pho-tography, 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 communi-cation 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 ap-pearing 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, universi -ties or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Pro-vided, 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 nor-mal 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 re-porting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decom-pilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-oper-ability 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.

Sec. 186. Work of Architecture. - Copyright in a work of architecture shall include the right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably de-rived from the original; Provided, That the copyright in any such work shall not in-clude the right to control the reconstruction or rehabilitation in the same style as the original of a building to which the copyright relates. (n)

Sec. 187. Reproduction of Published Work. -

187.1. Notwithstanding the provision of Section 177, and subject to the pro-visions of Subsection 187.2, the private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclu-sively for research and private study, shall be permitted, without the autho-rization 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 unreason-ably prejudice the legitimate interests of the author. (n)

Sec. 188. Reprographic Reproduction by Libraries. -

188.1. Notwithstanding the provisions of Subsection 177.6, any library or ar-chive 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:

(a) Where the work by reason of its fragile character or rarity cannot be lent to user in its original form;

(b) Where the works are isolated articles contained in composite works or brief portions of other published works and the reproduction is neces-sary to supply them; when this is considered expedient, to person re-questing their loan for purposes of research or study instead of lending the volumes or booklets which contain them; and

(c) Where the making of such a copy is in order to preserve and, if neces-sary in the event that it is lost, destroyed or rendered unusable, re-place a copy, or to replace, in the permanent collection of another sim-ilar library or archive, a copy which has been lost, destroyed or ren-dered unusable and copies are not available with the publisher.

188.2. Notwithstanding the above provisions, it shall not be permissible to produce a volume of a work published in several volumes or to produce missing tomes or pages of magazines or similar works, unless the volume, tome or part is out of stock; Provided, That every library which, by law, is entitled to receive copies of a printed work, shall be entitled, when special reasons so require, to reproduce a copy of a published work which is con-sidered necessary for the collection of the library but which is out of stock. (Sec. 13, P. D. 49a)

Sec. 189. Reproduction of Computer Program. -

189.1. Notwithstanding the provisions of Section 177, the reproduction in one (1) back-up copy or adaptation of a computer program shall be permit-ted, without the authorization of the author of, or other owner of copyright in, a computer program, by the lawful owner of that computer program: Pro-vided, That the copy or adaptation is necessary for:

(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

(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.

189.2. No copy or adaptation mentioned in this Section shall be used for any purpose other than the ones determined in this Section, and any such copy or adaptation shall be destroyed in the event that continued posses-sion of the copy of the computer program ceases to be lawful.

189.3. This provision shall be without prejudice to the application of Section 185 whenever appropriate. (n)

Sec. 190. Importation for Personal Purposes. -

190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the au-thorization of the author of, or other owner of copyright in, the work under the following circumstances:

(a) When copies of the work are not available in the Philippines and:1. Not more than one (1) copy at one time is imported for strictly in-

dividual use only; or 2. The importation is by authority of and for the use of the Philippine

Government; or 3. The importation, consisting of not more than three (3) such copies

or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institu-tion duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.

(b) When such copies form parts of libraries and personal baggage be-longing to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed three (3).

190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the pro-prietor’s right of action.

190.3. Subject to the approval of the Secretary of Finance, the Commis-sioner of Customs is hereby empowered to make rules and regulations for preventing the importation of articles the importation of which is prohibited under this Section and under treaties and conventions to which the Philip-pines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported. (Sec. 30, P. D. No. 49)

CHAPTER IX DEPOSIT AND NOTICE

Sec. 191. Registration and Deposit with National Library and the Supreme Court Li-brary.- After the first public dissemination of performance by authority of the copy-right owner of a work falling under Subsections 172.1, 172.2 and 172.3 of this Act, there shall, for the purpose of completing the records of the National Library and the Supreme Court Library, within three (3) weeks, be registered and deposited with it, by personal delivery or by registered mail, two (2) complete copies or repro-ductions of the work in such form as the directors of said libraries may prescribe. A certificate of deposit shall be issued for which the prescribed fee shall be collected and the copyright owner shall be exempt from making additional deposit of the

works with the National Library and the Supreme Court Library under other laws. If, within three (3) weeks after receipt by the copyright owner of a written demand from the directors for such deposit, the required copies or reproductions are not de-livered and the fee is not paid, the copyright owner shall be liable to pay a fine equivalent to the required fee per month of delay and to pay to the National Library and the Supreme Court Library the amount of the retail price of the best edition of the work. Only the above mentioned classes of work shall be accepted for deposit by the National Library and the Supreme Court Library. (Sec. 26, P. D. No. 49a)

Sec. 192. Notice of Copyright. - Each copy of a work published or offered for sale may contain a notice bearing the name of the copyright owner, and the year of its first publication, and, in copies produced after the creator’s death, the year of such death. (Sec. 27, P. D. No. 49a)

Chapter X MORAL RIGHTS

Sec. 193. Scope of Moral Rights. - The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with re-spect to such right, have the right:

193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;

193.2. To make any alterations of his work prior to, or to withhold it from publication;

193.3. To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and

193.4. To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. (Sec. 34, P. D. No. 49)

Sec. 194. Breach of Contract. - An author cannot be compelled to perform his con-tract to create a work or for the publication of his work already in existence. How-ever, he may be held liable for damages for breach of such contract. (Sec. 35, P. D. No. 49)

Sec. 195. Waiver of Moral Rights. - An author may waive his rights mentioned in Section 193 by a written instrument, but no such waiver shall be valid where its ef-fects is to permit another:

195.1. To use the name of the author, or the title of his work, or otherwise to make use of his reputation with respect to any version or adaptation of his work which, because of alterations therein, would substantially tend to in-jure the literary or artistic reputation of another author; or

195.2. To use the name of the author with respect to a work he did not cre-ate. (Sec. 36, P. D. No. 49)

Sec. 196. Contribution to Collective Work. - When an author contributes to a collec-tive work, his right to have his contribution attributed to him is deemed waived un-less he expressly reserves it. (Sec. 37. P. D. No. 49)

Sec. 197. Editing, Arranging and Adaptation of Work. - 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 au-thor's rights secured by this chapter. Nor shall complete destruction of a work un-conditionally transferred by the author be deemed to violate such rights. (Sec. 38, P. D. No. 49)

Sec. 198. Term of Moral Rights. -

198.1. The rights of an author under this chapter shall last during the life-time of the author and for fifty (50) years after his death and shall not be as-signable or subject to license. The person or persons to be charged with the posthumous enforcement of these rights shall be named in writing to be filed with the National Library. In default of such person or persons, such enforcement shall devolve upon either the author's heirs, and in default of the heirs, the Director of the National Library.

198.2. For purposes of this Section, "Person" shall mean any individual, partnership, corporation, association, or society. The Director of the Na-tional Library may prescribe reasonable fees to be charged for his services in the application of provisions of this Section. (Sec. 39, P. D. No. 49)

Sec. 199. Enforcement Remedies. - Violation of any of the rights conferred by this Chapter shall entitle those charged with their enforcement to the same rights and remedies available to a copyright owner. In addition, damages which may be availed of under the Civil Code may also be recovered. Any damage recovered af-ter the creator's death shall be held in trust for and remitted to his heirs, and in de -fault of the heirs, shall belong to the government. (Sec. 40, P. D. No. 49)

Chapter XI RIGHTS TO PROCEEDS IN SUBSEQUENT TRANSFERS

Sec. 200. Sale or Lease of Work. - In every sale or lease of an original work of painting or sculpture or of the original manuscript of a writer or composer, subse-quent 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. (Sec. 31, P. D. No. 49)

Sec. 201. Works Not Covered. - The provisions of this Chapter shall not apply to prints, etchings, engravings, works of applied art, or works of similar kind wherein the author primarily derives gain from the proceeds of reproductions. (Sec. 33, P. D. No. 49)

Chapter XII RIGHTS OF PERFORMERS, PRODUCERS OF SOUNDS RECORDINGS AND BROADCASTING ORGANIZATIONS

Sec. 202. Definitions.- For the purpose of this Act, the following terms shall have the following meanings:

202.1. "Performers" are actors, singers, musicians, dancers, and other per-sons who act, sing, declaim, play in, interpret, or otherwise perform literary and artistic work;

202.2. "Sound recording" means the fixation of the sounds of a performance or of other sounds, or representation of sound, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;

202.3. An "audiovisual work or fixation" is a work that consists of a series of related images which impart the impression of motion, with or without ac-companying sounds, susceptible of being made visible and, where accom-panied by sounds, susceptible of being made audible;

202.4. "Fixation" means the embodiment of sounds, or of the representa-tions thereof, from which they can be perceived, reproduced or communi-cated through a device;

202.5. "Producer of a sound recording" means the person, or the legal en-tity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representa-tion of sounds;

202.6. "Publication of a fixed performance or a sound recording" means the offering of copies of the fixed performance or the sound recording to the public, with the consent of the right holder: Provided, That copies are of-fered to the public in reasonable quality;

202.7. "Broadcasting" means the transmission by wireless means for the public reception of sounds or of images or of representations thereof; such

transmission by satellite is also "broadcasting" where the means for de-crypting are provided to the public by the broadcasting organization or with its consent;

202.8. "Broadcasting organization" shall include a natural person or a juridi-cal entity duly authorized to engage in broadcasting; and

202.9. "Communication to the public of a performance or a sound record-ing" means the transmission to the public, by any medium, otherwise than by broadcasting, of sounds of a performance or the representations of sounds fixed in a sound recording. For purposes of Section 209, "communi-cation to the public" includes making the sounds or representations of sounds fixed in a sound recording audible to the public.

Sec. 203. Scope of Performers' Rights. - Subject to the provisions of Section 212, performers shall enjoy the following exclusive rights:

203.1. As regards their performances, the right of authorizing:(a) The broadcasting and other communication to the public of their per-

formance; and(b) The fixation of their unfixed performance.

203.2. The right of authorizing the direct or indirect reproduction of their per-formances fixed in sound recordings, in any manner or form;

203.3. Subject to the provisions of Section 206, the right of authorizing the first public distribution of the original and copies of their performance fixed in the sound recording through sale or rental or other forms of transfer of ownership;

203.4. The right of authorizing the commercial rental to the public of the original and copies of their performances fixed in sound recordings, even after distribution of them by, or pursuant to the authorization by the per-former; and

203.5. The right of authorizing the making available to the public of their performances fixed in sound recordings, by wire or wireless means, in such a way that members of the public may access them from a place and time individually chosen by them. (Sec. 42, P. D. No. 49a)

Sec. 204. Moral Rights of Performers. -

204.1. Independently of a performer's economic rights, the performer, shall, as regards his live aural performances or performances fixed in sound recordings, have the right to claim to be identified as the performer of his performances, except where the 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.

204.2. The rights granted to a performer in accordance with Subsection 203.1 shall be maintained and exercised fifty (50) years after his death, by his heirs, and in default of heirs, the government, where protection is claimed. (Sec. 43, P. D. no. 49)

Sec. 205. Limitation on Right.-

205.1. Subject to the provisions of Section 206, once the performer has au-thorized the broadcasting or fixation of his performance, the provisions of Sections 203 shall have no further application.

205.2. The provisions of Section 184 and Section 185 shall apply mutatis mutandis to performers. (n)

Sec. 206. Additional Remuneration for Subsequent Communications or Broad-casts. - Unless otherwise provided in the contract, in every communication to the public or broadcast of a performance subsequent to the first communication or broadcast thereof by the broadcasting organization, the performer shall be entitled to an additional remuneration equivalent to at least five percent (5%) of the original compensation he or she received for the first communication or broadcast. (n)

Sec. 207. Contract Terms. - Nothing in this Chapter shall be construed to deprive performers of the right to agree by contracts on terms and conditions more favor-able for them in respect of any use of their performance. (n)

Chapter XIII PRODUCERS OF SOUND RECORDINGS

Sec. 208. Scope of Right. - Subject to the provisions of Section 212, producers of sound recordings shall enjoy the following exclusive rights:

208.1. The right to authorize the direct or indirect reproduction of their sound recordings, in any manner or form; the placing of these reproductions in the market and the right of rental or lending;

208.2. The right to authorize the first public distribution of the original and copies of their sound recordings through sale or rental or other forms of transferring ownership; and

208.3. The right to authorize the commercial rental to the public of the origi-nal and copies of their sound recordings, even after distribution by them by or pursuant to authorization by the producer. (Sec. 46, P. D. No. 49a)

Sec. 209. Communication to the Public. - If a sound recording published for com-mercial purposes, or a reproduction of such sound recording, is used directly for broadcasting or for other communication to the public, or is publicly performed with the intention of making and enhancing profit, a single equitable remuneration for the performer or performers, and the producer of the sound recording shall be paid

by the user to both the performers and the producer, who, in the absence of any agreement shall share equally. (Sec. 47, P. D. No. 49a)

Sec. 210. Limitation of Right. - Sections 184 and 185 shall apply mutatis mutandis to the producer of sound recordings. (Sec. 48, P. D. No. 49a)

Chapter XIV BROADCASTING ORGANIZATIONS

Sec. 211. Scope of Right. - Subject to the provisions of Section 212, broadcasting organizations shall enjoy the exclusive right to carry out, authorize or prevent any of the following acts:

211.1. The rebroadcasting of their broadcasts;

211.2. The recording in any manner, including the making of films or the use of video tape, of their broadcasts for the purpose of communication to the public of television broadcasts of the same; and

211.3. The use of such records for fresh transmissions or for fresh record-ing. (Sec. 52, P. D. No. 49)

Chapter XV LIMITATIONS ON PROTECTION

Sec. 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where the acts referred to in those Sections are related to:

212.1. The use by a natural person exclusively for his own personal pur-poses;

212.2. Using short excerpts for reporting current events;

212.3. Use solely for the purpose of teaching or for scientific research; and

212.4. Fair use of the broadcast subject to the conditions under section 185. (Sec. 44, P. D. No. 49a)

Chapter XVI

TERM OF PROTECTION

Sec. 213. Term of Protection. -

213.1. Subject to the provisions of Subsections 213.2 to 213.5, the copy-right in works under Sections 172 and 173 shall be protected during the life of the author and for fifty (50 years after his death. This rule also applies to posthumous works. (Sec. 21, First Sentence, P. D. No. 49a)

213.2. In case of works of joint authorship, the economic rights shall be pro-tected during the life of the last surviving author and for fifty (50) years after his death. (Sec. 21, Second Sentence, P.D. No. 49)

213.3. In case of anonymous or pseudonymous works, the copyright shall be protected for fifty (50) years from the date on which the work was first lawfully published: Provided, That where, before the expiration of the said period, the author's identity is revealed or is no longer in doubt, the provi -sions of Subsections 213.1 and 213.2 shall apply, as the case may be: Pro-vided, further, That such works if not published before shall be protected for fifty (50) years counted from the making of the work. (Sec. 23, P. D. No. 49)

213.4. In case of works of applied art the protection shall be for a period of twenty-five (25) years from the date of making. (Sec. 24(B), P. D. No. 49a)

213.5. In case of photographic works, the protection shall be for fifty (50) years from publication of the work and, if unpublished, fifty (50) years from the making. (Sec. 24(C), P. D. 49a)

213.6. In case of audio-visual works including those produced by process analogous to photography or any process for making audio-visual record-ings, the term shall be fifty (50) years from date of publication and, if unpub-lished, from the date of making. (Sec. 24(C), P. D. No. 49a)

Sec. 214. Calculation of Term. - The term of protection subsequent to the death of the author provided in the preceding Section 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. (Sec. 25, P. D. No. 49)

Sec. 215. Term of Protection for Performers, Producers and Broadcasting Organi-zations.-

215.1. The rights granted to performers and producers of sound recordings under this law shall expire:

(a) For performances not incorporated in recordings, fifty (50) years from the end of the year in which the performance took place; and

(b) For sound or image and sound recordings and for performances incor-porated therein, fifty (50) years from the end of the year in which the recording took place.

215.2. In case of broadcasts, the term shall be twenty (20) years from the date the broadcast took place. The extended term shall be applied only to old works with subsisting protection under the prior law. (Sec. 55, P. D. No. 49a)

Chapter XVII INFRINGEMENT

Sec. 216. Remedies for Infringement. -

216.1. Any person infringing a right protected under this law shall be liable:(a) To an injunction restraining such infringement. The court may also or-

der the defendant to desist from an infringement, among others, to prevent the entry into the channels of commerce of imported goods that involve an infringement, immediately after customs clearance of such goods.

(b) Pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to the infringement as well as the profits the infringer may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be re-quired to prove every element of cost which he claims, or, in lieu of ac-tual damages and profits, such damages which to the court shall ap-pear to be just and shall not be regarded as penalty.

(c) Deliver under oath, for impounding during the pendency of the action, upon such terms and conditions as the court may prescribe, sales in-voices and other documents evidencing sales, all articles and their packaging alleged to infringe a copyright and implements for making them.

(d) Deliver under oath for destruction without any compensation all infring-ing copies or devices, as well as all plates, molds, or other means for making such infringing copies as the court may order.

(e) Such other terms and conditions, including the payment of moral and exemplary damages, which the court may deem proper, wise and eq-uitable and the destruction of infringing copies of the work even in the event of acquittal in a criminal case.

216. 2. In an infringement action, the court shall also have the power to or-der the seizure and impounding of any article which may serve as evidence in the court proceedings. (Sec. 28, P. D. No. 49a)

Sec. 217. Criminal Penalties. -

217.1. Any person infringing any right secured by provisions of Part IV of this Act or aiding or abetting such infringement shall be guilty of a crime punishable by:

(a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand pesos (P50,000) to One hundred fifty thousand pesos (P150,000) for the first offense.

(b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from One hundred fifty thousand pesos (P150,000) to Five hundred thousand pesos (P500,000) for the second offense.

(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from Five hundred thousand pesos (P500,000) to One million five hundred thousand pesos (P1,500,000) for the third and subsequent offenses.

(d) In all cases, subsidiary imprisonment in cases of insolvency.

217.2. In determining the number of years of imprisonment and the amount of fine, the court shall consider the value of the infringing materials that the defendant has produced or manufactured and the damage that the copy-right owner has suffered by reason of the infringement.

217.3. Any 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 in-fringing 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; or

(c) Trade exhibit of the article in public, shall be guilty of an offense and shall be liable on conviction to imprisonment and fine as above men-tioned. (Sec. 29, P. D. No. 49a)

Sec. 218. Affidavit Evidence. -

218.1. In an action under this Chapter, an affidavit made before a notary public by or on behalf of the owner of the copyright in any work or other subject matter and stating that:

(a) At the time specified therein, copyright subsisted in the work or other subject matter;

(b) He or the person named therein is the owner of the copyright; and(c) The copy of the work or other subject matter annexed thereto is a true

copy thereof, shall be admitted in evidence in any proceedings for an offense under this Chapter and shall be prima facie proof of the mat-ters therein stated until the contrary is proved, and the court before which such affidavit is produced shall assume that the affidavit was made by or on behalf of the owner of the copyright.

218.2. In an action under this Chapter.(a) Copyright shall be presumed to subsist in the work or other subject

matter to which the action relates if the defendant does not put in is-sue the question whether copyright subsists in the work or other sub-ject matter; and

(b) Where the subsistence of the copyright is established, the plaintiff shall be presumed to be the owner of the copyright if he claims to be the owner of the copyright and the defendant does not put in issue the question of his ownership.

(c) Where the defendant, without good faith, puts in issue the questions of whether copyright subsists in a work or other subject matter to which the action relates, or the ownership of copyright in such work or sub-ject matter, thereby occasioning unnecessary costs or delay in the proceedings, the court may direct that any costs to the defendant in

respect of the action shall not be allowed by him and that any costs occasioned by the defendant to other parties shall be paid by him to such other parties. (n)

Sec. 219. Presumption of Authorship. -

219.1. 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 pre-sumed to be the author of the work. This provision shall be applicable even if the name is a pseudonym, where the pseudonym leaves no doubt as to the identity of the author.

219.2. The person or body, corporate whose name appears on an audio-visual work in the usual manner shall, in the absence of proof to the con-trary, be presumed to be the maker of said work. (n)

Sec. 220. International Registration of Works. - A statement concerning a work, recorded in an international register in accordance with an international treaty to which the Philippines is or may become a party, shall be construed as true until the contrary is proved except:

220.1. Where the statement cannot be valid under this Act or any other law concerning intellectual property.

220.2. Where the statement is contradicted by another statement recorded in the international register. (n)

Chapter XVIII SCOPE OF APPLICATION

Sec. 221. Points of Attachment for Works under Sections 172 and 173. -

221.1. The protection afforded by this Act to copyrightable works under Sections 172 and 173 shall apply to:

(a) Works of authors who are nationals of, or have their habitual resi-dence in the Philippines;

(b) Audio-visual works the producer of which has his headquarters or ha-bitual residence in the Philippines;

(c) Works of architecture erected in the Philippines or other artistic works incorporated in a building or other structure located in the Philippines;

(d) Works first published in the Philippines; and(e) Works first published in another country but also published in the

Philippines within thirty days, irrespective of the nationality or resi-dence of the authors.

221.2. The provisions of this Act shall also apply to works that are to be pro-tected by virtue of and in accordance with any international convention or other international agreement to which the Philippines is a party. (n)

Sec. 222. Points of Attachment for Performers. - The provisions of this Act on the protection of performers shall apply to:

222.1. Performers who are nationals of the Philippines;

222.2. Performers who are not nationals of the Philippines but whose per-formances:

(a) Take place in the Philippines; or(b) Are incorporated in sound recordings that are protected under this Act;

or(c) Which has not been fixed in sound recording but are carried by broad-

cast qualifying for protection under this Act. (n)

Sec. 223. Points of Attachment for Sound Recordings. - The provisions of this Act on the protection of sound recordings shall apply to:

223.1. sound recordings the producers of which are nationals of the Philip-pines; and

223.2. Sound recordings that were first published in the Philippines. (n)

Sec. 224. Points of Attachment for Broadcasts. -

224.1. The provisions of this Act on the protection of broadcasts shall apply to:

(a) Broadcasts of broadcasting organizations the headquarters of which are situated in the Philippines; and

(b) Broadcasts transmitted from transmitters situated in the Philippines.224.2. The provisions of this Act shall also apply to performers who, and to producers of sound recordings and broadcasting organizations which, are to be protected by virtue of and in accordance with any international con-vention or other international agreement to which the Philippines is a party. (n)

Chapter XIX INSTITUTION OF ACTIONS

Sec. 225. Jurisdiction. - Without prejudice to the provisions of Subsection 7.1(c), actions under this Act shall be cognizable by the courts with appropriate jurisdiction under existing law. (Sec. 57, P. D. No. 49a)

Sec. 226. Damages. - No damages may be recovered under this Act after four (4) years from the time the cause of action arose. (Sec. 58, P. D. No. 49)

Chapter XX MISCELLANEOUS PROVISIONS

Sec. 227. Ownership of Deposit and Instruments. - All copies deposited and instru-ments in writing filed with the National Library and the Supreme Court Library in ac-cordance with the provisions of this Act shall become the property of the Govern-ment. (Sec. 60, P. D. No. 49)

Sec. 228. Public Records. - The section or division of the National Library and the Supreme Court Library charged with receiving copies and instruments deposited and with keeping records required under this Act and everything in it shall be opened to public inspection. The Director of the National Library is empowered to issue such safeguards and regulations as may be necessary to implement this Section and other provisions of this Act. (Sec. 61, P. D. No. 49)

Sec. 229. Copyright Division Fees. - The Copyright Section of the National Library shall be classified as a Division upon the effectivity of this Act. The National Library shall have the power to collect, for the discharge of its services under this Act, such fees as may be promulgated by it from time to time subject to the approval of the Department Head. (Sec. 62, P. D. 49a)

REPUBLIC ACT NO. 10372

AN ACT AMENDING CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8293, OTHERWISE KNOWN AS THE "INTELLECTUAL PROPERTY CODE OF THE

PHILIPPINES", AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Section 1. Section 6 of Republic Act No. 8293, otherwise known as the "Intellectual Property Code of the Philippines", is hereby amended to read as follows:

"SEC. 6. The Organizational Structure of the IPO. x x x

"6.2. the Office shall be divided into seven (7) Bureaus, each of which shall be headed by a Director and assisted by an Assistant Director. These Bureaus are:

"x x x

"(f) the Administrative, Financial and Personnel Services Bureau; and

"(g) the Bureau of Copyright and Other Related Rights."

Section 2. Section 7 of Republic Act No. 8293 is hereby amended to read as fol -lows:

"SEC. 7. The Director General and Deputies Director General.

"x x x

"(b) Exercise exclusive appellate jurisdiction over all decisions rendered by the Di-rector of Legal Affairs, the Director of Patents, the Director of Trademarks, the Di-rector of Copyright and Other Related Rights, and the Director of the Documenta-tion, Information and Technology Transfer Bureau. the decisions of the Director General in the exercise of his appellate jurisdiction in respect of the decisions of the Director of Patents, the Director of Trademarks and the Director of Copyright and Other Related Rights shall be appealable to the Court of Appeals in accor-dance with the Rules of Court; and those in respect of the decisions of the Director of the Documentation, Information and Technology Transfer Bureau shall be ap-pealable to the Secretary of Trade and Industry;

"(c) Undertake enforcement functions supported by concerned agencies such as the Philippine National Police, the National Bureau of Investigation, the Bureau of Customs, the Optical Media Board, and the local government units, among others;

"(d) Conduct visits during reasonable hours to establishments and businesses en-gaging in activities violating intellectual property rights and provisions of this Act based on report, information or complaint received by the office; and

"(e) Such other functions in furtherance of protecting IP rights and objectives of this Act."

Section 3. A new Section 9A is hereby inserted after Section 9 of Republic Act No. 8293, to read as follows:

"SEC. 9A. The Bureau of Copyright and Other Related Rights. the Bureau of Copy-right and Other Related Rights shall have the following functions:

"9A.1. Exercise original jurisdiction to resolve disputes relating to the terms of a li-cense involving the author's right to public performance or other communication of his work;

"9A.2. Accept, review and decide on applications for the accreditation of collective management organizations or similar entities;

"9A.3. Conduct studies and researches in the field of copyright and related rights; and

"9A.4. Provide other copyright and related rights service and charge reasonable fees therefor."

Section 4. Section 171.3. of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 171. Definitions. x x x

"171.3. Communication to the public or communicate to the public means any com-munication to the public, including broadcasting, rebroadcasting, retransmitting by cable, broadcasting and retransmitting by satellite, and includes the making of a work available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them;"

Section 5. Section 171.9. of Republic Act No. 8293 is hereby amended to read as follows:

"171.9. Reproduction is the making of one (1) or more copies, temporary or perma-nent, in whole or in part, of a work or a sound recording in any manner or form without prejudice to the provisions of Section 185 of this Act (Sec. 41[E], P.D. No. 49a);"

Section 6. There shall be two new subsections to be added at the end of Section 171.11. to be known as 171.12. and 171.13., both to read as follows:

"171.12. Technological measure means any technology, device or component that, in the normal course of its operation, restricts acts in respect of a work, perfor-mance or sound recording, which are not authorized by the authors, performers or producers of sound recordings concerned or permitted by law;

"171.13. Rights management information means information which identifies the work, sound recording or performance; the author of the work, producer of the sound recording or performer of the performance; the owner of any right in the work, sound recording or performance; or information about the terms and condi-tions of the use of the work, sound recording or performance; and any number or code that represent such information, when any of these items is attached to a copy of the work, sound recording or fixation of performance or appears in conjunc-tion with the communication to the public of a work, sound recording or perfor-mance."

Section 7. the Chapter Title of Chapter VII, Part IV, the Law on Copyright, is hereby amended to read as follows:

"CHAPTER VII

TRANSFER, ASSIGNMENT AND LICENSING OF COPYRIGHT"

Section 8. Section 180 of Republic Act No. 8293 is hereby amended to read as fol-lows:

"SEC. 180. Rights of Assignee or Licensee. 180.1. the copyright may be assigned or licensed in whole or in part. Within the scope of the assignment or license, the

assignee or licensee is entitled to all the rights and remedies which the assignor or licensor had with respect to the copyright.

"180.2. the copyright is not deemed assigned or licensed inter vivos, in whole or in part, unless there is a written indication of such intention.

"x x x

"180.4. Any exclusivity in the economic rights in a work may be exclusively li-censed. Within the scope of the exclusive license, the licensee is entitled to all the rights and remedies which the licensor had with respect to the copyright.

"180.5. the copyright owner has the right to regular statements of accounts from the assignee or the licensee with regard to assigned or licensed work."

Section 9. Section 181 of Republic Act No. 8293 is hereby amended to read as fol-lows:

"SEC. 181. Copyright and Material Object. the copyright is distinct from the prop-erty in the material object subject to it. Consequently, the transfer, assignment or li-censing of the copyright shall not itself constitute a transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several copies of the work imply transfer, assignment or licensing of the copyright. (Sec. 16, P.D. No. 49)"

Section 10. Section 183 of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 183. Designation of Society. the owners of copyright and related rights or their heirs may designate a society of artists, writers, composers and other right-holders to collectively manage their economic or moral rights on their behalf. For the said societies to enforce the rights of their members, they shall first secure the necessary accreditation from the Intellectual Property Office. (Sec. 32, P.D. No. 49a)"

Section 11. Section 184.1. of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 184. Limitations on Copyright. x x x

"(1) the reproduction or distribution of published articles or materials in a special-ized format exclusively for the use of the blind, visually- and reading-impaired per-sons: Provided, That such copies and distribution shall be made on a nonprofit ba-sis and shall indicate the copyright owner and the date of the original publication."

Section 12. Section 185.1. of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 185. Fair Use of a Copyrighted Work. 185.1. the fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of copies for classroom use, scholarship, research, and similar purposes is not an in-fringement of copyright. Decompilation, which is understood here to be the repro-duction of the code and translation of the forms of a computer program to achieve the interoperability of an independently created computer program with other pro-grams may also constitute fair use under the criteria established by this section, to the extent that such decompilation is done for the purpose of obtaining the informa-tion necessary to achieve such interoperability.

"x x x."

Section 13. Section 188.1. of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 188. Reprographic Reproduction by Libraries. 188.1. Notwithstanding the provisions of Subsection 177.1., any library or archive whose activities are not for profit may, without the authorization of the author or copyright owner, make a lim-ited number of copies of the work, as may be necessary for such institutions to ful -fill their mandate, by reprographic reproduction:

"x x x

"(c) Where the making of such limited copies is in order to preserve and, if neces-sary 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."

Section 14. Sections 190.1. and 190.2. of Republic Act No. 8293 are deleted in their entirety.

Section 15. Section 190.3. of Republic Act No. 8293 is hereby renumbered and amended as the sole provision under Section 190 to read as follows:

"SEC 190. Importation and Exportation of Infringing Materials. Subject to the ap-proval of the Secretary of Finance, the Commissioner of Customs is hereby em-powered to make rules and regulations for preventing the importation or exporta-tion of infringing articles prohibited under Part IV of this Act and under relevant treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported or before they are exported. (Sec. 30, P.D. No. 49)"

Section 16. Section 191 of Republic Act No. 8293 is hereby amended to read as follows:

"SEC 191. Deposit and Notice of Deposit with the National Library and the Supreme Court Library. At any time during the subsistence of the copyright, the

owner of the copyright or of any exclusive right in the work may, for the purpose of completing the records of the National Library and the Supreme Court Library, reg-ister and deposit with them, by personal delivery or by registered mail, two (2) com-plete copies or reproductions of the work in such form as the Directors of the said libraries may prescribe in accordance with regulations: Provided, That only works in the field of law shall be deposited with the Supreme Court Library. Such registra-tion and deposit is not a condition of copyright protection."

Section 17. Section 198 of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 198. Term of Moral Rights. 198.1. the right of an author under Section 193.1. shall last during the lifetime of the author and in perpetuity after his death while the rights under Sections 193.2. 193.3. and 193.4. shall be coterminous with the eco-nomic rights, the moral rights shall not be assignable or subject to license. the per-son or persons to be charged with the posthumous enforcement of these rights shall be named in a written instrument which shall be filed with the National Library. In default of such person or persons, such enforcement shall devolve upon either the author's heirs, and in default of the heirs, the Director of the National Library."

Section 18. Section 203 of Republic Act No. 8293 is hereby amended to read as follows;

"x x x

"203.2. the right of authorizing the direct or indirect reproduction of their perfor-mances fixed in sound recordings or audiovisual works or fixations in any manner or form;

"203.3. Subject to the provisions of Section 206, the right of authorizing 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;

"203.4. the right of authorizing the commercial rental to the public of the original and copies of their performances fixed in sound recordings or audiovisual works or fixations, even after distribution of them by, or pursuant to the authorization by the performer; and

"203.5. the right of authorizing the making available to the public of their perfor-mances fixed in sound recordings or audiovisual works or fixations, by wire or wire-less means, in such a way that members of the public may access them from a place and time individually chosen by them. (Sec. 42, P.D. No. 49A)."

Section 19. Section 204.1. of Republic Act No. 8293 is hereby amended to read as follows;

"204.1. Independently of a performer's economic rights, the performer shall, as re-gards his live aural performances or performances fixed in sound recordings or in audiovisual works or fixations, have the right to claim to be identified as the per-former of his performances, except where the 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."

Section 20. Section 208 of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 208. Scope of Right. x x x

"208.4. the right to authorize the making available to the public of their sound recordings in such a way that members of the public may access the sound record-ing from a place and at a time individually chosen or selected by them, as well as other transmissions of a sound recording with like effect."

Section 21. Section 212 of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 212. Limitations on Rights. the provisions of Chapter VIII shall apply mutatis mutandis to the rights of performers, producers of sound recordings and broadcast-ing organizations."

Section 22. Section 216 of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 216. Infringement. A person infringes a right protected under this Act when one:

"(a) Directly commits an infringement;

"(b) Benefits from the infringing activity of another person who commits an infringe-ment 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;

"(c) With knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.

"216.1. Remedies for Infringement. Any person infringing a right protected under this law shall be liable:

"x x x

"(b) To pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to the in-fringement as well as the profits the infringer may have made due to such infringe-ment, and in proving profits the plaintiff shall be required to prove sales only and

the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall ap-pear to be just and shall not be regarded as penalty: Provided, That the amount of damages to be awarded shall be doubled against any person who:

"(i) Circumvents effective technological measures; or

"(ii) Having reasonable grounds to know that it will induce, enable, facilitate or con-ceal the infringement, remove or alter any electronic rights management informa-tion from a copy of a work, sound recording, or fixation of a performance, or distrib-ute, import for distribution, broadcast, or communicate to the public works or copies of works without authority, knowing that electronic rights management information has been removed or altered without authority.

"x x x

"The copyright owner may elect, at any time before final judgment is rendered, to recover instead of actual damages and profits, an award of statutory damages for all infringements involved in an action in a sum equivalent to the filing fee of the in -fringement action but not less than Fifty thousand pesos (Php50,000.00). In award-ing statutory damages, the court may consider the following factors:

"(1) the nature and purpose of the infringing act;

"(2) the flagrancy of the infringement;

"(3) Whether the defendant acted in bad faith;

"(4) the need for deterrence;

"(5) Any loss that the plaintiff has suffered or is likely to suffer by reason of the in -fringement; and

"(6) Any benefit shown to have accrued to the defendant by reason of the infringe-ment.

"In case the infringer was not aware and had no reason to believe that his acts con-stitute an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not more than Ten thousand pesos (Ph-p10,000.00): Provided, That the amount of damages to be awarded shall be dou-bled against any person who:

"(i) Circumvents effective technological measures; or

"(ii) Having reasonable grounds to know that it will induce, enable, facilitate or con-ceal the infringement, remove or alter any electronic rights management informa-tion from a copy of a work, sound recording, or fixation of a performance, or distrib-ute, import for distribution, broadcast, or communicate to the public works or copies

of works without authority, knowing that electronic rights management information has been removed or altered without authority.

"x x x

"216.2. In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings, in accordance with the rules on search and seizure involving viola-tions of intellectual property rights issued by the Supreme Court. (Sec. 28, P.D. No. 49a)

"The foregoing shall not preclude an independent suit for relief by the injured party by way of damages, injunction, accounts or otherwise."

Section 23. Section 217.2. of Republic Act No. 8293 hereby amended to read as follows:

"217.2. In determining the number of years of imprisonment and the amount of fine, the court shall consider 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: Provided, That the respective maximum penalty stated in Section 217.1. (a), (b) and (c) herein for the first, second, third and subse-quent offense, shall be imposed when the infringement is committed by:

"(a) the circumvention of effective technological measures;

"(b) 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, know-ingly and without authority; or

"(c) the distribution, importation for 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 au-thority."

Section 24. Section 218.1. of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 218. Affidavit Evidence. x x x

"(c) the copy of the work or other subject matter annexed thereto is a true copy thereof.

"The affidavit shall be admitted in evidence in any proceedings under this Chapter and shall be prima facie proof of the matters therein stated until the contrary is proved, and the court before which such affidavit is produced shall assume that the affidavit was made by or on behalf of the owner of the copyright."

Section 25. A new Section 220A shall be inserted after Section 220.2. of Republic Act No. 8293 to read as follows:

"SEC. 220A. Disclosure of Information. Where any article or its packaging or an im-plement for making it is seized or detained under a valid search and seizure under this Act is, or is reasonably suspected to be, by an authorized enforcement officer, in violation of this Act, the said officer, shall, wherever reasonably practicable, no-tify the owner of the copyright in question or his authorized agent of the seizure or detention, as the case may be."

Section 26. Section 226 of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 226. Damages. No damages may be recovered under this Act after the lapse of four (4) years from the time the cause of action arose. (Sec. 58, P.D. No. 49)."

Section 27. Chapter XX of Republic Act No. 8293 is hereby amended by adding a new section at the end thereof to be denominated as Section 230, to read as fol-lows:

"SEC. 230. Adoption of Intellectual Property (IP) Policies. Schools and universities shall adopt intellectual property policies that would govern the use and creation of intellectual property with the purpose of safeguarding the intellectual creations of the learning institution and its employees, and adopting locally-established industry practice fair use guidelines. These policies may be developed in relation to licens-ing agreements entered into by the learning institution with a collective licensing or-ganization."

Section 28. Section 230 of Republic Act No. 8293 is hereby renumbered as Section 231, and all succeeding sections of the same Act are hereby renumbered accord-ingly.

Section 29. Implementing Rules and Regulations. Within one hundred eighty (180) days from the effectivity of this Act, the Intellectual Property Office, in consultation with the National Book Development Board, the National Library, the Supreme Court Library and other relevant agencies, shall promulgate the rules and regula-tions necessary to effectively implement the provisions of this Act.

Section 30. Repealing Clause. All laws, decrees, executive orders, issuances or regulations inconsistent with the provisions of this Act are hereby revised or amended accordingly.

Section 31. Separability Clause. If any part of this Act is declared unconstitutional or invalid, such parts or provisions thereof not so declared shall remain valid and subsisting.

Section 32. Effectivity Clause. This Act shall take effect fifteen (15) days after its publication in at least two (2) newspapers of general circulation.

CASE DIGESTS:

[G.R. No. 110318. August 28, 1996.] COLUMBIA PICTURES, INC., ORION PICTURES CORPORA-TION, PARAMOUNT PICTURES CORPORATION, TWENTIETH CENTURY FOX FILM CORPORATION, UNITED ARTISTS COR-PORATION, UNIVERSAL CITY STUDIOS, INC., THE WALT DIS-NEY COMPANY, and WARNER BROTHERS, INC., petitioners, vs. COURT OF APPEALS, SUNSHINE HOME VIDEO, INC. and DANILO A. PELINDARIO, respondents.

Petitioner’s claim:

-Petitioners, thru counsel lodged a formal complaint with the Na-tional Bureau of Investigation for violation of PD No. 49, as amended, and sought its assistance in their anti-film piracy drive. Acting on such request, NBI Senior Agent Lauro C. Reyes applied for a search warrant with the court a quo against Sunshine seeking the seizure, among others, of pirated video tapes of copyrighted films all of which were enumerated in a list attached to the applica-tion; and, television sets, video cassettes and/or laser disc record-ings equipment and other machines and paraphernalia used or in-tended to be used in the unlawful exhibition, showing, reproduction, sale, lease or disposition of videograms tapes in the premises.-According to petitioners, after complying with what the law then re-quired, the lower court determined that there was probable cause for the issuance of a search warrant. It is further argued that any search warrant so issued in accordance with all applicable legal re-quirements is valid, for the lower court could not possibly have been expected to apply, as the basis for a finding of probable cause for the issuance of a search warrant in copyright infringement cases in-volving videograms, a pronouncement which was not existent at the time of such determination.

Respondent’s claim:Private respondents predictably argue in support of the ruling of the Court of Appeals sustaining the quashal of the search warrant by

the lower court on the strength of that 20th Century Fox ruling which, they claim, goes into the very essence of probable cause. At the time of the issuance of the search warrant involved here, al-though the 20th Century Fox case had not yet been decided, Sec-tion 2, Article III of the Constitution and Section 3, Rule 126 of the 1985 Rules on Criminal Procedure embodied the prevailing and governing law on the matter. The ruling in 20th Century Fox was merely an application of the law on probable cause. Hence, they posit that there was no law that was retrospectively applied, since the law had been there all along. To refrain from applying the 20th Century Fox ruling, which had supervened as a doctrine promul-gated at the time of the resolution of private respondents' motion for reconsideration seeking the quashal of the search warrant for failure of the trial court to require presentation of the master tapes prior to the issuance of the search warrant, would have constituted grave abuse of discretion.

S.C. Ruling:There is merit in petitioners' impassioned and well-founded argu-mentation. In fine, the supposed pronunciamento in said case re-garding the necessity for the presentation of the master tapes of the copyrighted films for the validity of search warrants should at most be understood to merely serve as a guidepost in determining the ex-istence of probable cause in copyright infringement cases where there is doubt as to the true nexus between the master tape and the pirated copies. An objective and careful reading of the decision in said case could lead to no other conclusion than that said directive was hardly intended to be a sweeping and inflexible requirement in all or similar copyright infringement cases. Judicial dicta should al-ways be construed within the factual matrix of their parturition, oth-erwise a careless interpretation thereof could unfairly fault the writer with the vice of overstatement and the reader with the fallacy of un-due generalization.It is evidently incorrect to suggest, as the ruling in 20th Century Fox may appear to do, that in copyright infringement cases, the presen-tation of master tapes of the copyrighted films is always necessary to meet the requirement of probable cause and that, in the absence thereof, there can be no finding of probable cause for the issuance of a search warrant.

Case title: JESSIE G. CHING vs. WILLIAM M. SALINAS, SR., WILLIAM M. SALINAS, JR., JOSEPHINE L. SALINAS, JENNIFER Y. SALINAS, ALONTO SO-LAIMAN SALLE, JOHN ERIC I. SALINAS, NOEL M. YABUT (Board of Directors and Officers of WILAWARE PRODUCT CORPORATION)

Petitioner’s claim: Ching and Joseph Yu were issued by the National Library Certifi-cates of Copyright Registration and Deposit of the work described therein as “Leaf Spring Eye Bushing for Automobile.” Ching requested the National Bureau of In-vestigation (NBI) for police/investigative assistance for the apprehension and pros-ecution of illegal manufacturers, producers and/or distributors of the works.As such, inventory items were seized from Salinas for violating the provisions of ra 8293. He claims that R.A. No. 8293, otherwise known as the Intellectual Property Code of the Philippines provides in no uncertain terms that copyright protection au-tomatically attaches to a work by the sole fact of its creation, irrespective of its mode or form of expression, as well as of its content, quality or purpose. The law gives a non-inclusive definition of “work” as referring to original intellectual cre-ations in the literary and artistic domain protected from the moment of their cre-ation; and includes original ornamental designs or models for articles of manufac-ture, whether or not registrable as an industrial design and other works of applied art under Section 172.1(h) of R.A. No. 8293.

As such, the petitioner insists, notwithstanding the classification of the works as ei-ther literary and/or artistic, the said law, likewise, encompasses works which may have a bearing on the utility aspect to which the petitioner’s utility designs were classified. Moreover, according to the petitioner, what the Copyright Law protects is the author’s intellectual creation, regardless of whether it is one with utilitarian functions or incorporated in a useful article produced on an industrial scale.

The petitioner also maintains that the law does not provide that the intended use or use in industry of an article eligible for patent bars or invalidates its registration un-der the Law on Copyright. The test of protection for the aesthetic is not beauty and utility, but art for the copyright and invention of original and ornamental design for design patents.[16] In like manner, the fact that his utility designs or models for arti-cles of manufacture have been expressed in the field of automotive parts, or based on something already in the public domain does not automatically remove them from the protection of the Law on Copyright.

Respomdent’s claim: The respondents averred that the works covered by the cer-tificates issued by the National Library are not artistic in nature; they are consid-ered automotive spare parts and pertain to technology. They aver that the models are not original, and as such are the proper subject of a patent, not copyright.re -spondents aver that the work of the petitioner is essentially a technical solution to the problem of wear and tear in automobiles, the substitution of materials, i.e., from

rubber to plastic matter of polyvinyl chloride, an oil resistant soft texture plastic ma-terial strong enough to endure pressure brought about by the vibration of the counter bearing and thus brings bushings. Such work, the respondents assert, is the subject of copyright under Section 172.1 of R.A. No. 8293. The respondents posit that a technical solution in any field of human activity which is novel may be the subject of a patent, and not of a copyright. They insist that the certificates is-sued by the National Library are only certifications that, at a point in time, a certain work was deposited in the said office. Furthermore, the registration of copyrights does not provide for automatic protection. Citing Section 218.2(b) of R.A. No. 8293, the respondents aver that no copyright is said to exist if a party categorically questions its existence and legality. Moreover, under Section 2, Rule 7 of the Im-plementing Rules of R.A. No. 8293, the registration and deposit of work is not con-clusive as to copyright outlay or the time of copyright or the right of the copyright owner. The respondents maintain that a copyright exists only when the work is covered by the protection of R.A. No. 8293.

Issue/s: Whether or not copyright granted by law can be said to arise in favor of the petitioner despite the issuance of the certificates of copyright registration and the deposit of the Leaf Spring Eye Bushing and Vehicle Bearing Cushion

Ruling: No. as gleaned from the specifications appended to the application for a copyright certificate filed by the petitioner, the said Leaf Spring Eye Bushing for Au-tomobile is merely a utility model.These are not literary or artistic works. They are not intellectual creations in the literary and artistic domain, or works of applied art. They are certainly not ornamental designs or one having decorative quality or value. It bears stressing that the focus of copyright is the usefulness of the artistic design, and not its marketability. The central inquiry is whether the article is a work of art.[33] Works for applied art include all original pictorials, graphics, and sculp-tural works that are intended to be or have been embodied in useful article regard-less of factors such as mass production, commercial exploitation, and the potential availability of design patent protection.[34]

As gleaned from the description of the models and their objectives, these articles are useful articles which are defined as one having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Indeed, while works of applied art, original intellectual, literary and artistic works are copyrightable, useful articles and works of industrial design are not.[35] A use-ful article may be copyrightable only if and only to the extent that such design incor-porates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of the utilitarian aspects of the arti-cle.

We agree with the contention of the petitioner (citing Section 171.10 of R.A. No. 8293), that the author’s intellectual creation, regardless of whether it is a creation with utilitarian functions or incorporated in a useful article produced on an industrial scale, is protected by copyright law. However, the law refers to a “work of applied art which is an artistic creation.” It bears stressing that there is no copyright protec-tion for works of applied art or industrial design which have aesthetic or artistic fea-tures that cannot be identified separately from the utilitarian aspects of the article.[36] Functional components of useful articles, no matter how artistically designed, have generally been denied copyright protection unless they are separable from the useful article.[37]

In this case, the petitioner’s models are not works of applied art, nor artistic works. They are utility models, useful articles, albeit with no artistic design or value.

Case Digest_Francisco Joaquin Jr vs Franklin Drilon GR No. 108946, January 28,1999Facts:

Petitioner BJ Productions Inc is the holder/grantee of Certificate of CopyrightNo. M922 of Rhoda and Me, a dating game show aired from 1970 to 1977.On June 28, 1973, petitioner BJPI submitted to the National Library an addendum to its

certificate of copyright specifying the show’s format and style of presentation.

On July

14, 1991 while watching television, petitioner saw on RPN Channel 9 an episode of It’s

a Date, which was produced by IXL Productions Inc. On July 18, 1991, he wrote a letterto private respondent Gabriel M. Zosa, president and general manager of IXL, informingZosa that BJPI had a copyright to Rhoda and Me and demanding that IXL discontinue

airing It’s a Date.

Private respondent apologized to petitioner and requested a meeting to discuss a

possible settlement. IXL, however, continued airing It’s a Date, prompting petitioner

Joaquin to send a second letter in which he reiterated his demand and warned that ifIXL did not comply, he would endorse the matter to his attorneys for proper legal action.

Meanwhile, private respondent sought to register IXL’s copyright to the first episode of It’s a Date for which it was issued by the National Library a certificate of copyright on

August 14, 1991.Upon complaint of petitioners, an information for violation of PD No. 49 was filed againstprivate respondent Zosa together with certain officers of RPN Channel 9. However,private respondent Zosa sought a review of the resolu-tion of the Assistant CityProsecutor before the Department of Justice.On August 12, 1992, respondent Secretary of Justice Franklin Drilon reversed the

Assistant City Prosecutor’s findings and directed him to move for the dismissal of the

case against private respondents. Petitioner filed a motion for reconsideration but hismotion was denied by respondent Secretary of Justice. Hence, this petition.

Issue:

Whether or not public respondent committed grave abuse of discretion when hein-voked non-presentation of the master tape as being fatal to the existence of proba-blecause to prove infringement, despite the fact that private respondents never raised thesame as controverted issue; and whether or not public respondent com-mitted graveabuse of discretion when he arrogated unto himself the determination of what iscopyrightable.

Held:

The petition is denied. In fine, the supposed pronunciamento in said caseregarding the necessity for the presentation of the master tapes of the copyrighted filmsfor the validity of search warrants should at most be understood to merely serve as aguidepost in determining the existence of probable cause in copyright infringe-mentcases where there is doubt as to the true nexus between the master tape and thepirated copies. An objective and careful reading of the decision in said case could leadto no other conclusion than that said directive was hardly intended to be a sweepingand inflexible requirement in all or similar copyright infringement cases.-Copyright in the strict sense of the term is purely a statutory right. It is a new orindependent right granted by the statute and not simply a pre-existing right regu-lated bythe statute. Since copyright in published work is purely a statutory creation, a copyrightmay be obtained only for a work falling within the statutory enumeration or description.P.D. No. 49, section 2, in enumerating what are subject to copyright, refers to finishedworks and not to concepts. The copyright does not extend to an idea, procedure,process, system, method of operation, concept, principle or discov-

ery regardless of theform in which it is described, explained, illustrated, or embod-ied in such work.

8. G.R. No. 108946. January 28, 1999.] FRANCISCO G. JOAQUIN, JR., and BJ PRODUCTIONS, INC., petitioners, vs. HONORABLE FRANKLIN DRILON, GABRIEL ZOSA, WILLIAM ESPOSO, FELIPE MEDINA, JR., and CASEY FRANCISCO, respondents.

Petitioner’s Claim:

Petitioner BJ Productions, Inc. (BJPI) is the holder/grantee of Certifi-cate of Copyright No. M922, dated January 28, 1971, of Rhoda and Me, a dating game show aired from 1970 to 1977 claims that there is an infringement on the copyright of the show "RHODA AND ME" both in content and in the execution of the video presentation are established because respondent's "IT'S A DATE" is practically an exact copy of complainant's "RHODA AND ME" because of sub-stantial similarities. As may [be] gleaned from the evidence on record, the substance of the television productions complainant's "RHODA AND ME" and Zosa's "IT'S A DATE" is that two matches are made between a male and a female, both single, and the two couples are treated to a night or two of dining and/or dancing at the expense of the show. The major concepts of both shows is the same. Any difference appear mere variations of the minor concepts.

Respondent’s Claim:

Both public and private respondents maintain that petitioners failed to establish the existence of probable cause due to their failure to present the copyrighted master videotape of Rhoda and Me. They contend that petitioner BJPI's copyright covers only a specific episode of Rhoda and Me and that the formats or concepts of dating game shows are not covered by copyright protection under P.D. No. 49.

Issue: Whether the format and mechanics of a TV show may be subject of a copyright.

S.C. Ruling:

To begin with the format of a show is not copyrightable. Section 2 of P.D. No. 49, otherwise known as the DECREE ON INTELLECTUAL PROPERTY, enumerates the classes of work entitled to copyright protection, does not include the format or mechanics of a television show. For this reason, the protection afforded by the law cannot be extended to cover them. The copyright does not extend to an idea, procedure, process, system, method of operation, concept, princi-ple, or discovery, regardless of the form in which it is described, ex-plained, illustrated, or embodied in such work.

1. G.R. No. L-36402. March 16, 1987.]FILIPINO SOCIETY OF COMPOSERS, AUTHORS AND PUB-LISHERS, INC., plaintiff-appellant, vs. BENJAMIN TAN, defen-dant-appellee.

Plaintiff-appellant:*is the owner of certain musical compositions among which are the songs entitled: "Dahil Sa Iyo", "Sapagkat Ikaw Ay Akin," "Sapagkat Kami Ay Tao Lamang" and "The Nearness Of You."*filed a complaint with the lower court for infringement of copyright against defendant-appellee for allowing the playing in defendant-ap-pellee's restaurant of said songs copyrighted in the name of the for-mer.

Defendant-appellee, *countered that the complaint states no cause of action. While not denying the playing of said copyrighted compositions in his estab-lishment, appellee maintains that the mere singing and playing of songs and popular tunes even if they are copyrighted do not consti-tute an infringement under the provisions of Section 3 of the Copy-right Law.

ISSUE: whether or not the playing and signing of musical composi-tions which have been copyrighted under the provisions of the Copyright Law (Act 3134) inside the establishment of the defendant-appellee constitute a public performance for profit within the mean-ing and contemplation of the Copyright Law of the Philippines; and assuming that there were indeed public performances for profit, whether or not appellee can be held liable therefor.

Held: NO. It has been held that "The playing of music in dine and dance establishment which was paid for by the public in purchases of food and drink constituted "performance for profit" within a Copy-right Law." Thus, it has been explained that while it is possible in such establishments for the patrons to purchase their food and drinks and at the same time dance to the music of the orchestra, the music is furnished and used by the orchestra for the purpose of in-ducing the public to patronize the establishment and pay for the en-tertainment in the purchase of food and drinks. The defendant con-ducts his place of business for profit, and it is public; and the music is performed for profit.

Nevertheless, appellee cannot be said to have infringed upon the Copyright Law. Appellee's allegation that the composers of the con-tested musical compositions waived their right in favor of the gen-eral public when they allowed their intellectual creations to become property of the public domain before applying for the corresponding copyrights for the same is correct.

The Supreme Court has ruled that "Paragraph 33 of Patent Office Administrative Order No. 3 (as amended, dated September 18, 1947) entitled 'Rules of Practice in the Philippines Patent Office re-lating to the Registration of Copyright Claims' promulgated pursuant to Republic Act 165, provides among other things that an intellectual creation should be copyrighted thirty (30) days after its publication, if made in Manila, or within the (60) days if made elsewhere, failure of which renders such creation public property." Indeed, if the general public has made use of the object sought to be copyrighted for thirty (30) days prior to the copyright application the law deems the object to have been donated to the public domain and the same can no longer be copyrighted.Under the circumstances, it is clear that the musical compositions in question had long become public property, and are therefore beyond the protection of the Copyright Law.

Malang Santos v. McCullough Printing GR L-19439 Oct. 31, 1964

Re: Unauthorized use, adoption and appropriation by the com-pany of Santos’ intellectual creation/artistic design for a Christmas Card.

· Santos/Malang designed a Christmas Card for the exclu-sive use of Ambassador Neri.

· Such card carries Santo’s pen name – MALANG

· The following year, the company which was the publisher of the Christmas Card, displayed the design and offered the same for sale, without the consent of Santos, their contention are as follows:

(1) the design does not contain clear notice that it belonged to Santos; and

(2) the design has been published but does not contain a no-tice of copyright.

· The TC rendered a decision against Santos.

Ruling: Malang is not entitled to protection.

Ratio:

· No registration has been made. An intellectual creation should be copyrighted 30 days after its publication, if made in Manila, or within 60 days if made elsewhere, otherwise, the same shall become public property; and

· Creation was not a limited one. For there to be a limited publication/prohibition, such fact must appear on the face of the design. When the purpose is a limited publication, but the effect is a general publication, irrevocable rights thereon be-come vested in the general public.

Case Digest_Pacita Habana v Felicidad Robles, GR No. 131522, July 19, 1999Facts:Petitioner are authors and copyright owners of duly issued certificates ofcopyright registration covering their published works, produced through their combinedresources and efforts, entitled College English for Today, Books 1 and 2, and Work-bookfor College Freshman English, Series 1.Respondent Rob-les and Goodwill Trading Co., Inc are the author/publisher and-distributor/seller of another published work entitled Develop-ing English proficiency,books 1 and 2 (1985 edition) which book was covered by copyrights issued to them.In the course of revising their published works, petitioners scouted and looked aroundvarious bookstores to check on other textbooks dealing with the same subject matter.By chance they came upon the book of respondent Robles and upon perusal of said-book they were surprised to see that the book was strikingly similar to the contents,scheme of presentation, illustrations and illustrative examples in their own book, CET.After an item-ized examination and comparison of the two books, petitioners found thatseveral pages of the respondent’s book are similar, if notall together a copy ofpetitioners’ book, which is a case of plagiarism and copyright infringement.Petitioners then made demands for damages against respon-dents and also demandedthat they cease and desist from fur-ther selling and distributing to the general public theinfringed copies of respondent Robles’ works.However, respondents ignored the demands, hence, petition-ers filed with the RTC acomplaint for Infringement and/or un-fair competition with damages against privaterespondents.Re-spondent Robles was impleaded in the suit because she au-thored and directlycommitted the acts of infringement com-plained of, while respondent Goodwill wasimpleaded as the publisher and joint c-owner of the copyright certificates of reg-istrationcovering the two books authored and caused to be published by respondent Robleswith obvious connivance with one another.Robles filed a motion for a bill of particulars which

the trial court approved. Petitionerscomplied with the desired particularization, and furnished respondent Robles thespecific portions inclusive of pages and lines of the published and copyrighted books ofthe petitioners which were transposed, lifted, copied, and plagiarized and/or otherwisefound their way into respondent’s book.After the trial on the merits, the trial court rendered its judg-ment in favor of therespondent. The petitioners filed their no-tice of appeal with the trial court. The CArendered its decision in favor of respondents Robles and Goodwill. Hence, this peti-tion.Issue:Whether or not there was copyright infringementHeld:The petition is granted. In cases of infringement, copying alone is not what isprohibited. The copying must produce an injuri-ous effect. Here, the injury consists inthat respondent Robles lifted from petitioners’ book materials what were the result of thelatter’s research work and compila-tion and misrepresented them as her own. Shecirculated the book DEP for commercial use and did not acknowledge petitioners as her-source.Hence, there is a clear case of appropriation of copy-righted work for her benefit thatrespondent Robles committed. Petitioners’work as authors is the product of their longand assiduous re-search and for another to represent it as her own is injury enough. In copyrighting books the purpose is to give protection to the in-tellectual product of anauthor. This is precisely what the law on copyright protected, under Section 184.1 (b).Quotations from a published work if they are compatible with fair use and only to theextent justified by the purpose, including quotations from newspaper articles andperiodicals in the form of press summaries are allowed provided that the source and thename of the author, if appearing on the work, are mentioned.In the case at bar, the least that respondent Robles could have done was toacknowledge petitioners Habana et. al. as the source of the portions of DEP. The final

product of an author’s toil is her book. To allow another to copy the book withoutappropriate acknowledgment is injury enough.

5. G.R. No. 131522. July 19, 1999.]PACITA I. HABANA, ALICIA L. CINCO and JOVITA N. FER-NANDO, petitioners, vs. FELICIDAD C. ROBLES and GOOD-WILL TRADING CO., INC., respondents.

 Petitioner’s contention: In the complaint, petitioners alleged that in 1985, respondent Felicidad C. Robles being substantially familiar with the contents of petitioners' works, and without securing their permission, lifted, copied, plagiarized and/or transposed certain por-tions of their book CET. The textual contents and illustrations of CET were literally reproduced in the book DEP. The plagiarism, in-corporation and reproduction of particular portions of the book CET in the book DEP, without the authority or consent of petitioners, and the misrepresentations of respondent Robles that the same was her original work and concept adversely affected and substantially di-minished the sale of the petitioners' book and caused them actual damages by way of unrealized income.

Respondent’s Contention: On November 28, 1988, respondent Rob-les filed her answer , and denied the allegations of plagiarism and copying that petitioners claimed. Respondent stressed that (1) the book DEP is the product of her independent researches, studies and experiences, and was not a copy of any existing valid copy-righted book; (2) DEP followed the scope and sequence or syllabus which are common to all English grammar writers as recommended by the Association of Philippine Colleges of Arts and Sciences (AP-CAS), so any similarity between the respondents book and that of the petitioners was due to the orientation of the authors to both works and standards and syllabus; and (3) the similarities may be due to the authors' exercise of the "right to fair use of copyrighted materials, as guides."

Respondent interposed a counterclaim for damages on the ground that bad faith and malice attended the filing of the complaint, be-cause petitioner Habana was professionally jealous and the book DEP replaced CET as the official textbook of the graduate studies department of the Far Eastern University.

ISSUE: (1) whether or not, despite the apparent textual, thematic and sequential similarity between DEP and CET, respondents commit-ted no copyright infringement; (2) whether or not there was animus furandi on the part of respondent when they refused to withdraw the copies of CET from the market despite notice to withdraw the same; and (3) whether or not respondent Robles abused a writer's right to fair use, in violation of Section 11 of Presidential Decree No. 49

RULING:

We believe that respondent Robles' act of lifting from the book of petitioners substantial portions of discussions and examples, and her failure to acknowledge the same in her book is an infringement of petitioners' copyrights.

When is there a substantial reproduction of a book? It does not nec-essarily require that the entire copyrighted work, or even a large portion of it, be copied. If so much is taken that the value of the orig-inal work is substantially diminished, there is an infringement of copyright and to an injurious extent, the work is appropriated.

In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appro-priated by another, that is sufficient in point of law to constitute piracy.

The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its gravity by an appropriate under-standing thereof. Infringement of a copyright is a trespass on a pri-vate domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright.

In the case at bar, there is no question that petitioners presented several pages of the books CET and DEP that more or less had the same contents. It may be correct that the books being grammar

books may contain materials similar as to some technical contents with other grammar books, such as the segment about the "Author Card". However, the numerous pages that the petitioners presented showing similarity in the style and the manner the books were pre-sented and the identical examples can not pass as similarities merely because of technical consideration.

The respondents claim that their similarity in style can be attributed to the fact that both of them were exposed to the APCAS syllabus and their respective academic experience, teaching approach and methodology are almost identical because they were of the same background.

However, we believe that even if petitioners and respondent Robles were of the same background in terms of teaching experience and orientation, it is not an excuse for them to be identical even in exam-ples contained in their books. The similarities in examples and ma-terial contents are so obviously present in this case. How can simi-lar/identical examples not be considered as a mark of copying?

We consider as an indicia of guilt or wrongdoing the act of respon-dent Robles of pulling out from Goodwill bookstores the book DEP upon learning of petitioners' complaint while pharisaically denying petitioners' demand. It was further noted that when the book DEP was re-issued as a revised version, all the pages cited by petitioners to contain portion of their book College English for Today were elim-inated.

In cases of infringement, copying alone is not what is prohibited. The copying must produce an "injurious effect". Here, the injury con-sists in that respondent Robles lifted from petitioners' book materi-als that were the result of the latter's research work and compilation and misrepresented them as her own. She circulated the book DEP for commercial use did not acknowledged petitioners as her source.

Hence, there is a clear case of appropriation of copyrighted work for her benefit that respondent Robles committed. Petitioners' work as authors is the product of their long and assiduous research and for another to represent it as her own is injury enough. In copyrighting books the purpose is to give protection to the intellectual product of an author. This is precisely what the law on copyright protected, un-der Section 184.1 (b). Quotations from a published work if they are compatible with fair use and only to the extent justified by the pur-

pose, including quotations from newspaper articles and periodicals in the form of press summaries are allowed provided that the source and the name of the author, if appearing on the work, are men-tioned.

ABS-CBN Broadcasting Corporation v Philippine Multi-Media Sys-tem, Inc. G.R. Nos. 175769-70, January 19, 2009

Facts:Philippine Multi-Media System, Inc. (PMSI), operator of Dream Broadcsating System, delivers a digital direct-to-home (DTH) televi-sion satellite to its subscribers all over the Philippines, was granted a legislative franchise under Republic Act 8630 and was given a Provisional Authority by the National Telecommunications Commis-sion (NTC) to install, operate and maintain a nationwide DTH satel-lite service. When it commenced operations, it offered as part of its program line-up, together with other paid premium program chan-nels, ABS-CBN Channels 2 and 23, NBN, Channel 4, ABC, Channel 5, GMA, Channel 7, RPN, Channel 9, and IBC, Channel 13, pur-suant to Memorandum Circular 4-08-88 which mandated all cable television system operators, operating within the Grade “A” and “B” CONTOURS to carry out the television signals of the authorized television broadcast stations.

ABS-CBN Broadcasting Corporation (ABS-CBN), a licensed televi-sion and radio broadcasting network, demanded PMSI to cease and desist from “rebroadcasting” Channels 2 and 23. In its reply, PMSI contended that the “rebroadcasting” was in accordance with the au-thority granted by NTC under its obligations under NTC MC 4-08-88.

Negotiations were ensued between the parties in an effort to reach a settlement; however, the same was terminated by ABS-CBN al-legedly due to PMSI’s inability to ensure the prevention of illegal “re-transmission” and further “rebroadcast” of its signals, as well as the adverse effect of the rebroadcasts on the business operations of its regional television stations.

ABS-CBN filed with the Intellectual Property Rights Office (IPO) a complaint for “Violation of Laws Involving Property Rights, with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction” alleging that PMSI’s unauthorized re-broadcasting of Channels 2 and 23 infringed on its broadcasting rights and copyright. The TRO was granted by the Bureau of Legal Affairs (BLA) of IPO. PMSI, pursuant to the TRO, suspended the re-transmission of PMSI of Channels 2 and 23 and likewise filed a peti-tion for certiorari with the Court of Appeals. The Court of Appeals granted the petition of PMSI and reversed the decision of the BLA. ABS-CBN filed its appeal however it was dismissed by the Court of Appeals. Furthermore, ABS-CBN’s motion for reconsideration was denied.

Issue:1. Whether or not PMSI violated the Laws on Property Rights.2. Whether or not the issuance MC 4-08-88 by the NTC is a valid exercise of the police power of the State.

Held:1. NO. PMSI did not violate the Laws on Property Rights because it is not engaged in rebroadcasting Channels 2 and 23. Rebroadcast-ing has been defined as “the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.” It is also “the transmission by wireless means for the public reception of sounds or of images or of representations thereof; such transmission by satellite is also ‘broadcasting’ where the means for decrypting are provided to the public by the broad-casting organization or with its consent.” PMSI is only engaged in the carrying of signals of ABS-CBN coming from ABS-CBN and transmitting signals. PMSI is not the origin nor does it claim to be the origin of the programs broadcasted by the ABS-CBN. PMSI did not make and transmit on its own but merely carried the existing sig-nals of the ABS-CBN. When PMSI subscribers view ABS-CBN’s programs in Channels 2 and 23, they know that the origin thereof was the ABS-CBN.

The nature of broadcasting is to scatter the signals in its widest area of coverage as possible. On this score, it may be said that making

public means that accessibility is undiscriminating as long as it is within the range of the transmitter and equipment of the broad-caster. That the medium through which the PMSI carries the ABS-CBN’s signal, that is via satellite, does not diminish the fact that it operates and functions as a cable television. It remains that the PMSI’s transmission of signals via its DTH satellite television ser-vice cannot be considered within the purview of broadcasting.

Furthermore, there is no rebroadcasting on the part of the PMSI of the ABS-CBM’s programs on Channels 2 and 23, as defined under the Rome Convention, which defines rebroadcasting as “the simul-taneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.” ABS-CBN creates and transmits its own signals; PMSI merely carries such signals which the viewers receive in its unaltered form. PMSI does not pro-duce, select, or determine the programs to be shown in Channels 2 and 23. Likewise, it does not pass itself off as the origin or author of such programs. Insofar as Channels 2 and 23 are concerned, PMSI merely retransmits the same in accordance with Memorandum Cir-cular 04-08-88. With regard to its premium channels, it buys the channels from content providers and transmits on an as-is basis to its viewers. Clearly, PMSI does not perform the functions of a broadcasting organization; thus, it cannot be said that it is engaged in rebroadcasting Channels 2 and 23.

Therefore, the retransmission of ABS-CBN’s signals by PMSI – which functions essentially as a cable television – does not consti-tute rebroadcasting in violation of the former’s intellectual property rights under the IP Code.

2. YES. The law on copyright is not absolute. The carriage of ABS-CBN’s signals by virtue of the must-carry rule in Memorandum Cir-cular No. 04-08-88 is under the direction and control of the govern-ment though the NTC which is vested with exclusive jurisdiction to supervise, regulate and control telecommunications and broadcast services/facilities in the Philippines. The imposition of the must-carry rule is within the NTC’s power to promulgate rules and regulations, as public safety and interest may require, to encourage a larger and more effective use of communications, radio and television broad-

casting facilities, and to maintain effective competition among pri-vate entities in these activities whenever the Commission finds it reasonably feasible.

The “Must-Carry Rule” is in consonance with the principles and ob-jectives underlying Executive Order No. 436, to wit:

The Filipino people must be given wider access to more sources of news, information, education, sports event and entertainment pro-grams other than those provided for by mass media and afforded television programs to attain a well informed, well-versed and cultur-ally refined citizenry and enhance their socio-economic growth.

Moreover, radio and television waves are mere franchised which may be reasonably burdened with some form of public service. It is a privilege subject, among other things, to amendment by Congress in accordance with the constitutional provision that “any such fran-chise or right granted . . . shall be subject to amendment, alteration or repeal by the Congress when the common good so requires.”

The must carry rule is a valid exercise of the police power of the State. It favors both broadcasting organizations and the public. It prevents cable television companies from excluding broadcasting organization especially in those places not reached by signal. Also, the rule prevents cable television companies from depriving viewers in far-flung areas the enjoyment of programs available to city view-ers. In fact, this Office finds the rule more burdensome on the part of the cable television companies. The latter carries the television signals and shoulders the costs without any recourse of charging. On the other hand, the signals that are carried by cable television companies are dispersed and scattered by the television stations and anybody with a television set is free to pick them up.

3. [G.R. No. 76193. November 9, 1989.] UNITED FEATURE SYNDICATE, INC., petitioner, vs. MUNSING-WEAR CREATION MANUFACTURING COMPANY, respondent.

Petitioner’s claim:

Petitioner is asking for the cancellation of the registration of trade-mark CHARLIE BROWN (Registration No. SR. 4224) in the name of respondent MUNSINGWEAR, alleging that petitioner is damaged by the registration of the trademark CHARLIE BROWN of T-Shirts un-der Class 25 with the Registration No. SR-4224 dated September 12, 1979 in the name of Munsingwear Creation Manufacturing Co., Inc., on the following grounds: (1) that respondent was not entitled to the registration of the mark CHARLIE BROWN, & DEVICE at the time of application for registration; (2) that CHARLIE BROWN is a character creation or a pictorial illustration, the copyright to which is exclusively owned worldwide by the petitioner; (3) that as the owner of the pictorial illustration CHARLIE BROWN, petitioner has since 1950 and continuously up to the present, used and reproduced the same to the exclusion of others; (4) that the respondent-registrant has no bona fide use of the trademark in commerce in the Philip-pines prior to its application for registration.Respondent’s claim:-It uses, the trademark "CHARLIE BROWN" & "DEVICE" on chil-dren's wear such as T-shirts, undershirts, sweaters, brief and san-dos, in class 25; whereas "CHARLIE BROWN" is used only by peti-tioner as character, in a pictorial illustration used in a comic strip ap-pearing in newspapers and magazines. It has no trademark signifi-cance and therefore respondent-registrant's use of "CHARLIE BROWN" & "DEVICE" is not in conflict with the petitioner's use of "CHARLIE BROWN" -Relied on the ruling on October 2, 1984 in which the Director of the Philippine Patent Office rendered a decision in this case holding that a copyright registration like that of the name and likeness of CHAR-LIE BROWN may not provide a cause of action for the cancellation of a trademark registration.

Issue:WHETHER THE RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO EXCESS OF JURISDICTION WHEN BY DISMISSING THE AP-PEAL TO IT FROM THE DECISION OF THE DIRECTOR OF PATENTS, IT KNOWINGLY DISREGARDED ITS OWN DECISION IN AC-GR. SP. NO. 0342, WHICH WAS AFFIRMED BY THIS HON-ORABLE SUPREME COURT TO THE EFFECT THAT A COPY-RIGHTED CHARACTER MAY NOT BE APPROPRIATED AS A

TRADEMARK BY ANOTHER UNDER PRESIDENTIAL DECREE NO. 49.

S.C. Ruling:

The petitioner is impressed with merit.

Since the name "CHARLIE BROWN" and its pictorial representation were covered by a copyright registration way back in 1950 the same are entitled to protection under PD No. 49, otherwise known as the "Decree on Intellectual Property".

Aside from its copyright registration, petitioner is also the owner of several trademark registrations and application for the name and likeness of "CHARLIE BROWN" which is the duly registered trade-mark and copyright of petitioner United Feature Syndicate Inc. as early as 1957 and additionally also as TV SPECIALS featuring the "PEANUTS" characters "CHARLIE BROWN”.

It is undeniable from the records that petitioner is the actual owner of said trademark due to its prior registration with the Patent's Of-fice.

G.R. Nos. L-76649-51. August 19, 1988.]

20TH CENTURY FOX FILM CORPORATION, petitioner, vs. COURT OF APPEALS, EDUARDO M. BARRETO, RAUL SAG-ULLO and FORTUNE LEDESMA, respondents.

Petitioner’s claim:

The petitioner maintains that the lower court issued the questioned search warrants after finding the existence of a probable cause jus-tifying their issuance. According to the petitioner, the lower court ar-rived at this conclusion on the basis of the depositions of applicant NBI's two witnesses which were taken through searching questions and answers by the lower court.

Respondent’s claim:

The respondent posits that the three questioned search warrants against the private respondents should be lifeted on the ground that

it acted on the application for the issuance of the said search war-rants and granted it on the misrepresentations of applicant NBI and its witnesses that infringement of copyright or a piracy of a particular film have been committed.

They also maintained that the presentation of the master tapes of the copyrighted films from which the pirated films were allegedly copied, was necessary for the validity of search warrants against those who have in their possession the pirated films. The peti-tioner's argument to the effect that the presentation of the master tapes at the time of application may not be necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause exists to justify the issuance of the search warrants is not meritorious.

S.C. Ruling:

The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly copied, was necessary for the validity of search warrants against those who have in their posses-sion the pirated films. The petitioner's argument to the effect that the presentation of the master tapes at the time of application may not be necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause exists to justify the issuance of the search warrants is not meritorious. The court cannot presume that duplicate or copied tapes were necessarily re-produced from master tapes that it owns.

The application for search warrants was directed against video tape outlets which allegedly were engaged in the unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49. The essence of a copyright infringement is the similarity or at least substantial similarity of the purported pirated works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to compare them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be established to satisfy the requirements of probable cause.