Copyright and Its Limitations

COPYRIGHT and its LIMITATIONS

Any original work of authorship is subject to copyright protection in the moment that it is fixed in any tangible medium of expression.

Copyright is defined as a form of protection provided for original works of authorship, including literary, dramatic, musical, graphic, and audio-visuals creations.[i] It means the right to copy, but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright law secures for the creator of a creative effort the exclusive right to control who can make copies, or make works derived from the original work.

Section 177 of the Intellectual Property Law provides

Section 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, authorize or prevent the following acts:[ii]

            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 audio-visual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental;

            177.5 Public display of the original or a copy of the work;

            177.6 Public performance of the work; and

            177.8 Other communication to the public of the work

            In accordance with the above-mentioned section, the author(s) or original owner(s) of the enumerated work(s) may authorize, limit or prevent person(s) from such usage. Anything that would go beyond the authority granted or given by the author may constitute Copyright Infringement.

Copyright Infringement occurs when someone other than the copyright holder copies the “expression” of the work. [iii] It can occur even if someone does not copy a work exactly ̶ it occurs if the infringing work is “substantially similar” to the copyrighted work.

An owner of a copyright owns a bundle of rights. Each of these rights can be sold or assigned separately. These rights include:

Right to Reproduce the Work. This is the right to reproduce, copy, duplicate r transcribe the work in any fixed form. Copyright infringement would occur if someone other than the copyright owner made a copy of the work and resold it.

Right to Derivative Works. This is the right to modify the work to create a new work. A new work that is based upon an existing work is a derivative work.

Right to Distribution.This is simply the right to distribute the work to the public by sale, rental, lease or lending.

Public Display Right.This is the right to show a copy of the work directly to the public by hanging up a copy of the work in a public place, displaying it on website, putting it on film or transmitting it to the public in any other way. Copyright infringement occurs if someone other than the copyright holder offers a work for public display.

Public Performance Right.This is the right to recite, play, dance, act, or show the work at a public place or to transmit it to the public.

Section 185 of the Intellectual Property Law provides

Section 185. Fair Use of Copyrighted Work –

185.1 The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve their inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

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 factor.

            The Fair Use Doctrine permits the reproduction of copyrighted material for a limited purpose of teaching, reviewing, literary criticism and the like. Without fair use, books and movies could not be reviewed and colleges and high schools would not be able to study.        

IMPORATION OF COPYRIGHTED WORKS

Section 190 of the said law states

Section 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 authorization 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:

            (i) No more than 1 copy at one time is imported for strictly individual use only; or

            (ii) The importation is by authority of and for the use of the Philippine Government;

            (iii) The importation, consisting of not more than 3 such copies or likeness in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution 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 belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed 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 proprietor’s right of action.

Presently, these 2 sections are completely deleted and herein section is simplified to importation and exportation of materials. With the deletion of said sections, Are importation of books, DVDs, and CDs from abroad still allowed? The amendments to the Intellectual Property Code have removed the original limitation of 3 copies when bringing legitimately acquired copies of copyrighted material into the country. Only the importation of pirated or infringed material is illegal. As long as they were legally purchased, a person can bring as many copies as he wants, subject to Customs Regulations.

The amendments simply tell us that in effect goods entering the jurisdiction of the Philippines, whether or not applied for commercial ends, have to be laid pertinent customs duties and tariffs.

Furthermore, Section 3 of the Intellectual Property Law provides

Section 3. International Conventions and Reciprocity –

 

Any person who is a national or who is domiciled in a country which is a party to any convention,

treaty, or agreement relating to intellectual property rights or the repression of unfair competition to which the Philippines is also a party, or extends reciprocal rights to nationals of the Philippines by law, shall be entitled to benefits to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of an intellectual property right is otherwise entitled by this Act.

 

            As to the treaty, convention and agreement, a national of country shall be allowed or permitted on the importation of works provided it is agreed upon by our country and the county of the national. Moreover, a national which is  party to any treaties under intellectual property rights which the Philippines is also a party shall be entitled to benefits to the extent necessary to give effect of such convention or reciprocal law.

Thus, when in the treaty or agreement of the Philippines and other country, importation of books or works is allowed, it shall be allowed or permitted here in our country despite amendments thereo.

 

END NOTES:

[i]http://www.supportgoogle.com

[ii] Chapter V, Copyright or Economic Rights, Intellectual Property Code of the Philippines

[iii]  http://www.clickandcopyright.com

ARELLANO LAW SECRET FILES: A VICTIM’S VIEWPOINT

INTRODUCTION

            As time goes by, various creations and inventions came into existence and consequently became part of our daily lives.  Modernization has given us the power to transform our environment, extend our life span, create vast and interconnected societies, and even explore the stars.[i] The technologies have made this possible ̶ from the simplest wooden plow to the most advanced personal computer ̶  have also helped bring about fundamental economic and social change.

            Just as the steam engine, the railroad, and the telephone created dramatic shift in the way people lived, the digital information technology developed in the past few decades has transformed our world at a pace that conceals all innovations before it. But with each wave of innovation comes a new set of challenges ̶ social, economic, and policy issues surrounding the information technology.[ii]

            With the advancement of every country in technology, crimes and unethical acts are also modernized together with time. Some of the illegal acts that one may commit today with the use of the internet are internet libel, illegal access to other’s account without consent, tactics on online advertisements for commission of crime, and so forth.

            As to the foregoing, the government provides various laws for the protection of every individual from the violation of such, these are: Data Privacy Act, Rules on Electronic Evidence, E-Commerce Law, and Cybercrime Law. In consideration with the afore-mentioned laws, liabilities of the service provider, administrator, and the author, must be considered and taken regard.

            Our professor in Technology and the Law require us to make a blog regarding the Legal implication as to the Arellano Law Secret Files. The latter is a facebook page which permits not only the students but also OUTSIDERS to read, make a comment, or express on something without revealing their true identity or name or in short by using an alias. 

In the PERSPECTIVE OF: SERVICE PROVIDER

            Cybercrime Law defines Service provider as any public or private entity that provides to users of its service the ability to communicate by means of a computer system; and any other entity that processes or stores computer data on behalf of such communication service or users of such service. [iii]

            As to the assigned topic, Facebook is the service provider for it provides communication service to facebook users. Facebook is a social networking site that connects people with friends and others who work, study and live around them. It assists facebook users to posts status or share or express their feelings or opinion, uploads photos, or sometimes gives warning to the public in case the need arise. Facebook gives users freedom of speech for it does not totally control the contents of any user’s post or status. Moreover, as a service provider, Facebook has NO AUTHORITY to modify or alter the content of the electronic data message or electronic document received.[iv]

            As to the Arellano Law Secret Files, Facebook has nothing to do with it for it only assists the administrator(s) or likers or followers. It merely enables the administrator or initiator to create a page. It cannot or does not control the administrator or followers or any of the posts of the followers. Facebook’s only task on the “Arellano Law Secret Files” page is whether the terms and conditions are being complied with, and no other.

            Section 30 of Republic Act No. 8792 or the E-Commerce Law provides the extent of liability of a service provider which states

Sec 30….Except as otherwise provided in this Section, no person or party shall be subject to any civil or criminal liability in respect of the electronic data message or electronic document for which the person or party acting as a service provider as defined in Section 5 merely provides if such liability is founded on…

….i. The service provider does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of such materials is unlawful or infringes any rights subsisting in or in relation to such material;

….ii. The service provider does not knowingly receive a financial benefit directly attributable to the unlawful or infringing activity; and

….iii. The service provider does not directly commit any infringement or other unlawful act ad does not induce or cause another person or party to commit any infringement or other unlawful act and/or does not benefit financially from the infringing activity or unlawful act or another person or party

Service provider can only be held liable if it appears that it has actual knowledge or is aware of the facts or circumstances with regards to the infringement or unlawful act in relation to the material or when the party receive any financial benefit from the infringing activity. Consequently, nothing in the foregoing provision provides that Facebook as a service provider is liable for any of the offensive or unlawful posts of its users. Hence, with regards to the creation and posts of any person (liker, follower or outsider) Facebook is NOT LIABLE or CANNOT be SUED.

In the PERSPECTIVE OF: INITIATOR or ADMINISTRATOR

            In layman’s term, administrator is a person who controls the use of something or a person whose job is to manage a company school, or other organization.[v] A facebook administrator is a person who creates, manages or controls a page and encourages interaction between readers and visitors. As a facebook administrator he has the right to provide privacy policies and has the right to remove any infringing or offensive posts by any person posting in his page.

            Accordingly, Section 168 of the Intellectual Property Law states that a person who has identified in the mind of the public the goods he manufactures or deals in, his business or services from those of others, whether or not a registered mark is employed, has a property right in the goodwill of the said goods, business or services so identified, which will be protected in the same manner as other party rights.[vi] On the other hand, Goodwill is defined as the primary intangible asset of a company, generally comprised of reputation, contact networks, intellectual property, and branding. [vii] Consequently, Arellano Law as an educational institution whose name or mark is known by the public has a property right in the goodwill of said institution.

            Arellano Law Secret Files is a facebook page, primarily created for the Arellano Law Students, to help them express their sentiments, read and hear their suggestions regarding improvements in the community, posts complaints about their professors, and the like. It predominantly serves as the alter-ego of the students to aid them sharing and conveying their thoughts and opinions regarding administration of the school and of the professors.

            Will the administrator of the page be liable for incorporating the term Arellano Law without the school administrator’s consent?

            Incorporating the term Arellano Law with the facebook page might bring confusion to the public, especially to the outsiders. At a glance, people would believe that the page is created by the school administrator for there is the term Arellano Law or the school authorized a person to use their name to be incorporated therein. Hence, a case may be filed against the administrator of the Arellano Law Secret Files page by the owner of the educational institution. As the page became public and open for outsiders, any posts of the students regarding the school administrator is visible and exposed. Similarly, not all the posts of the students are in the positive side; hence, negative feedbacks might not only harm the reputation of the school but also might affect the credibility of the school. Negative feedbacks might bring a decrease to the number of students who is willing to study in Arellano ̶ business transactions would greatly be affected.

            Furthermore, the administrator of the page may be held liable especially to those posts of unknown contributors that are foul and offensive. Being the administrator, he or she has the control over the posts of every contributor; he has the option to remove or allow any posts. Consequently, as observed in the page, the administrator allows posts that are offensive or injurious. There are posts that are very personal and confidential which the administrator actually allows such to be posted.

In the PERSPECTIVE of the: CONTRIBUTOR

            Contributor in the Arellano Law Secret Files page cannot directly be held liable. Why? Contributor’s name is anonymous. Person(s) directly affected with any of the posts may be hurt but cannot do something with the posts; Contributor cannot be identified and be known.

MY STAND IN THE ARELLANO LAW SECRET FILES

            Outspokenly, I’ve been a victim or became a topic of various posts in Arellano Law Secret Files. I was hurt not because it was all true but because I can’t do something… Several posts were libelous and offensive but I can’t do something…I don’t have any idea how can I detect or know who are those persons saying things against me and behind my back.

            At first, I am not bothered being a hot topic in the page for my name was encrypted and there are lots of students having the same name or nickname.

I tried so hard to disregard all the posts against me.

            But as days gone by, posts about me became offensive and libelous, and my name was not anymore encrypted ̶ it was revealed. As a consequence, I’ve been a topic in the library, canteen or even outside the school. I heard lots of students talking about me and judging me. I was hurt but all I can do that time was to cry and pray.  I felt really violated.

            Until now, I am blaming the administrator for not removing posts that are offensive.. for not encrypting my name..for bringing me so much pain and too much distraction…and for the anonymity of the persons posting….and lastly for creating and devising such page..

            Truly, there is an internet libel as to my case BUT how can I sue a person without knowing who he or she is?

Section 4 (c)(4) of Republic Act No. 10175, also known as Cybercrime Law provides

(4) Libel..- The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

            The said provision states that it shall be considered as Cybercrime offenses and be punishable under this Act.

            This may be used in my case but the law does not cover or mention any means or method if the person who posted the libelous material is unknown.

Furthermore, Section 5 of the same law provides that any person who wilfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.[viii] Hence, this provision covers the administrator for he gave aid to the commission of the libelous material. However, nothing in the law provides a punishment or penalty for an unknown contributor.

CONCLUSION

             Summarily, there is NO LAW which provides for a penalty or punishment of an unknown contributor and the law does not cover libelous materials committed by an unknown person.

            Lawmakers should amend the Cybercrime Law as to provide a means or method to help persons trace or detect libelous materials of an unknown person.

ENDNOTES:

[i] http://www.microsoft.com/issue/essays/2002/02-04wef.mspx.

[ii] Ibid.

[iii] Section 30, Republic Act No. 10175, An Act Defining Cybercrime, Providing For the Prevention, Investigation, Suppression and Imposition of the Penalties Therefor and For Other Purpose, also known as “Cybercrime Prevention Act of 2012.”

[iv] Ibid..Sec 5(f).

[v] Merriam-Webster Dictionary.

[vi] Section 168, Republic Act No. 8293, An Act Prescribing The Intellectual Property Code and Establishing the Intellectual Property Office, Providing For Its Powers and Functions, And For Other Purposes, also known as “Intellectual Property Code of the Philippines.”

[vii] Black’s Law Dictionary Free Online Legal Dictionary 2nd Edition.

[viii] Section 5, Republic Act No. 10175.