Bar review note copyright, plagiarism, fair use

Posted on September 22, 2010by Orlando Roncesvalles

Plagiarism is wholly intolerable in the practice of law. Matthew Mirow at LexisNexis.

Mirows point seems to be that its because its dishonest. I believe this to be a bit
simplistic. It must be because without authority or source, you end up confusing the
court or the parties.
What is copyright?

As defined in the Philippine constitution, it is the exclusive right of an author to

his work.

Conventionally, it is a property right in an original work fixed in any tangible

medium of expression, giving the holder the exclusive right to reproduce, adapt,
distribute, perform, and display the work. Blacks.

WIPO defines it as a system of legal protection enjoyed by an author of the

form of expression of ideas.

Copyright is a negative right because it is a right to stop others from doing

something.

It is not explicitly defined in RA 8293, the special law that governs copyright in
the Philippines.
What is a work?
It is an original intellectual creation in the literary and artistic domain. It is protected
from the moment of creation. Examples: books, periodicals, speeches, letters, plays,
musical compositions, paintings, sculptures, photographic works, computer programs,
etc. It includes characters in books and comic strips.
What is creation?
It is verifiable expression of the intellectual product in a tangible medium of
expression. Based on interpretation of Art. 9, par. 2 of the TRIPS of GATT 94.
What is meant by original?
It means that the work is original to the author, i.e., he does not copy it from another. It
means that the creation involves intellectual effort.

What are not subject to copyright?

The following are not protected by copyright: DN.IPP.GP

Mere data or facts

News of the day

Ideas and concepts (textbook knowledge is not subject to copyright; but the
manner of presenting textbook knowledge is copyrightable)

Principles

Procedure and methods of operation

Work of government

Works read or rendered in courts, and before deliberative assemblies and in

meetings of public character

Works already in the public domain (either by nature, such as works of

government; or because copyright protection has lapsed)

Trade marks, because marks are not a work, and there is a wrong called trade
mark infringement
When does work enter the public domain?
Work becomes public domain when the term or duration of copyright ends.
What is the term or duration of copyright?
In the Philippines,

generally, lifetime of the author + 50 years

for joint creation, 50 years from the death of the last surviving co-creator

for anonymous or pseudonymous work, 50 years from first publication

for applied art, 25 years from creation

for photography and audio-visual work, 50 years from publication or creation

The rules may differ in other jurisdictions.

What is copyright infringement?
It is the violation of the economic or moral rights of the copyright owner.
What are the economic rights of the copyright owner?
The economic rights of the copyright owner: ( 177) RDD.RDP.CA

to reproduce the whole or a substantial portion of the work

to make derivative works such as: dramatization, translation, adaptation,

abridgement, arrangement, or other transformation of the work

public distribution of the original and each copy of the work by sale or other
forms of transfer of ownership

rental of the original copy of a copy of an a-v or cinematographic work, work in a

sound recording, computer program, compilation of data, musical work in graphic form,
irrespective of the ownership of the original or the copy which is the subject of the rental

public display of the original or a copy of the work

public performance of the work

other communication to the public of the work

in the case of works of architecture, 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 derived from the original ( 186).
What are the moral rights of the copyright owner?
The moral rights of the copyright owner are: 193. [APDU]

right to attribution of authorship

to alter prior to, or withhold, publication

to object to any distortion of the work that would prejudice his reputation

to restrain use of ones name with a work not his own or with a distortion of his
work
Distinguish between economic and moral rights?

Economic rights are assignable, whereas moral rights are not, though they are
waivable. (A ghost-writer waives his right to attribution, but he assigns for
consideration the copyright to his work in favor of the purported author.)

Economic rights generally refer to the creators exclusive right to reproduce,

adapt, perform, or display; moral rights generally refer to the creators claim to

authorship, such as his right to be attributed as the author or his right to prevent any
distortion of his work that is prejudicial to his reputation.

Economic rights are covered in 177; moral rights, 193.

What are the rights of a ghost-writer? See the answer to the preceding question.
What is plagiarism? Is it copyright infringement?
Plagiarism is the act of appropriating the literary composition of another, or parts
or passages of his writings, or the ideas or language of the same, and passing them off as
the product of ones own mind. To be liable for plagiarism it is not necessary to exactly
duplicate anothers work, it being sufficient if unfair use of such work is made by lifting
of substantial portion thereof (Blacks; see discussion of fair use below).
Plagiarism is in short the passing off of anothers work as ones own. Since it is a
violation of the moral right of a copyright owner to attribution (of authorship),
plagiarism is copyright infringement. If the plagiarist exercises the economic rights of
the copyright owner, the former is likewise guilty of infringement. However, the true
author may assign his copyright or waive his right to attribution.
What are the remedies in a copyright infringement case? PECPA

preventive, such as injunction or impoundment of the offending material

evidentiary, when court orders the delivery of documents

compensatory, as in damages

punitive, as in a criminal action or when infringing copies are destroyed w/o

compensation

administrative action, for damages of P200,000 or higher, under the jurisdiction

of the Bureau of Legal Affairs (BLA) of the IPO. 10. Administrative action requires
substantial evidence (lower than preponderance of evidence in civil actions).

criminal penalties are based on whether there is single or repeat offenses

(example: first offense is punishable by 1-3 years of imprisonment and P50-150K of
fine)

Is mens rea (evil intent) required for civil action for damages? For criminal liability?
RA 8293 is silent on this question. In civil action, the settled rule is that mens rea is not
required. In criminal actions, the balance of authoritative opinion is that criminal
liability requires intent to gain commercial advantage (Rosenberg, Aquino). In other
words, in criminal action, the offense of infringement should be treated as malum in se.
What is the fair use doctrine? How does it apply to material used in class?
Certain activities are called fair use, and do not constitute copyright infringement.
These are:

criticism, commentary, and news reports

use for instructional purposes ( 185.1)

But determination of fair use is subject to the following criteria: PNSA

purpose and character of the use (non-profit, non-commercial, or for public

commentary is generally fair use)

nature of the copyrighted work (where nature is informational, fair use is more
likely to be found)

amount and substantiality of the portions used relative to the work of plaintiff,
and also to that of defendant (if the portions used are not substantial, it is fair use)

adverse effect on the potential market of the copyrighted work (this is the main
criterion; even if an act is not fair use under the first criteria, it can become fair use if
there is no significant adverse effect on the aggrieved party)
Thus, limited copying of portions of a book for classroom use would be fair use, but
wholesale copying of the entire book would not be fair use.