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