Karissa Faye Tolentino September 18, 2010

COPYRIGHT WORKSHOP

1. Blackjack created a musical composition sometime in 1998 which he failed to

register with the National Library but which became very popular in the year
2000 that it has been copied by other composers, one of which is Mr. White Ace.
Considering that Blackjack did not register his composition with the National
Library, can he sue Mr. White Ace for infringement of copy right? If no, why not?
If so, what legal steps should he take to prove the existence of his copyright?

Answer:

Yes. Blackjack can sue White Ace for infringement of copyright even though he
was not able to register it with the National Library. Under Section 172 of the IP Code,
copyright protection started from the moment of creation of the work. Registration is
not a prerequisite in order for a work to be protected by copyright. While the IP code
requires copies or reproductions of copyrighted works to be deposited with the
National Library, within 3 weeks from the date of public dissemination or
performance, the same is only for completion of library records.

Blackjack should file a complaint to the Bureau of Legal Affairs for infringement
of his copyright. He should present 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 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.

2. Diana and Piolo are famous personalities in showbusiness who kept their love
affair secret. They use a special instant messaging service which allows them to
see one another's typing on their own screen as each letter key is pressed. When
Greg, the controller of the service facility, found out their identities, he kept a
copy of all the messages Diana and Piolo sent each other and published them. Is
Greg liable for copyright infringement? Reason briefly.
Karissa Faye Tolentino September 18, 2010

Answer:

Yes, Greg is liable for copyright infringement. Under Section 172.1[d] and Section
172.2[d]of the Intellectual Property Code, the instant messages of Diana and Piolo
constitutes “letters” which are “protected by the sole fact of their creation irrespective
of their mode or form of expression, as well as their content, quality, and purpose.”
For copyright to exist, it must be found in a tangible medium, usually in written form,
which is fulfilled by the instant messages. Under the Electronic Commerce Act,
whenever the law requires certain contracts or acts to be in writing to be valid and
enforceable, then such requirement is deemed fulfilled when they are in the form of an
electronic document. The instant messages are deemed to be in writing under the
Electronic Commerce Act for they are in digital form or constitute electronic
documents.
Karissa Faye Tolentino September 18, 2010

LAW 213 WORKSHOP

1. Eloise, an accomplished writer, was hired by Petong to write a bi-monthly

newspaper column for Diario de Manila, a newly-established newspaper of which
Petong was the editor-in-chief. Eloise was to be paid P1,000 for each column that
was published. In the course of two months, Eloise submitted three columns
which, after some slight editing, were printed in the newspaper. However, Diario
de Manila proved unprofitable and closed only after two months. Due to the
minimal amounts involved, Eloise chose not to pursue any claim for payment
from the newspaper, which was owned by New Media Enterprises.

Three years later, Eloise was planning to publish an anthology of her works, and
wanted to include the three columns that appeared in the Diario de Manila in
her anthology. She asks for your legal advice:

a) Does Eloise have to secure authorization from New Media Enterprises to be

able to publish her Diario de Manila columns in her own anthology? Explain
fully. (4%)

b) Assume that the New Media Enterprises plans to publish Eloise’s columns in
its own anthology entitled, “The Best of Diario de Manila”. Eloise wants to
prevent the publication of her columns in that anthology since she was never
paid by the newspaper. Name one irrefutable legal argument Eloise could cite to
enjoin New Media Enterprises from including her columns in its anthology.

Answer:

1. Yes, Eloise has to secure authorization from New Media Enterprise.

In case of a work by an author during and in the course of his employment, the
copyright shall belong to the employer, if the work is the result of his regular duties,
even if the employee uses the time, facilities and materials of the employer.

Eloise created the works in question during the course of her employment with New
Media Enterprises. She was specifically hired by Petong to write a bimonthly column,
the said works are the result of her regular duties.
Thus, being a mere employee, Eloise is not the owner of the copyright and must
therefore secure the authority of the real owner before she can publish the works in
her own anthology.

2. Although copyright over the works belong to the employer, the author of the work
shall, independently of the economic rights, have moral rights in her works.
Eloise can invoke her moral rights in her works. This includes the right to make
alterations to her work prior to, or withhold it from publication. Eloise as the true
author continues to hold moral rights in her works, regardless of the fact that New
Media Enterprises owns the economic rights thereto.
Karissa Faye Tolentino September 18, 2010

Thus, she may enjoin New Media Enterprises from publishing her columns by
invoking her moral rights as author.

2. In 1999, Mocha Warm, an American musician, had a hit rap single called
Warm Warm Honey which he himself composed and performed. The single was
produced by a California record company, Galactic Records. Many noticed that
some passages from Warm Warm Honey sounded eerily similar to parts of Under
Hassle, a 1978 hit song by the British rock band Majesty. A copyright
infringement suit was filed in the United States against Mocha Warm by Majesty.
It was later settled out of court, with Majesty receiving attribution as co-author
of Warm Warm Honey as well as a share in the royalties. By 2002, Mocha Warm
was nearing bankruptcy and he sold his economic rights over Warm Warm Honey
to Galactic Records for $10,000 In 2008, Planet Films a Filipino movie
producing company, commissioned DJ Chef Jean, a Filipino musician, to
produce an original re-mix of Warm Warm Honey for use in one of its latest films,
Astig!. DJ Chef Jean remixed Warm Warm Honey with salsa beat and
interspersed as well a recital of a poetic stanza by John Blake, a 17th century
Scottish poet. DJ Chef Jean died shortly after submitting the remixed Warm
Warm Honey to Planet Films. Prior to the release of Astig!, Mocha Warm learns
of the remixed Warm Warm Honey and demands that he be publicity identified
as the author of the remixed song in all the CD covers and publicity releases of
Planet Films.

1. Who are the parties or entities entitled to be credited as author of the remixed
Warm Warm Honey? Reason out your answer. (3%)

2. Who are the particular parties or entities who exercise copyright over the
remixed Warm Warm Honey? Explain. (3%)

ANSWER:
1. The parties or entities entitled to be credited as author of the remixed Warm Warm
Honey are the following:

 Mocha Warm, because as author, he has the moral right of attribution, which
exists independently of any grant of an assignment or license with respect to his
economic rights
 Majesty, because as co-author, it is one of the original owners of the copyright
and as such has the right to be credited as author
 DJ Chef Jean, because as an author commissioned to produce a derivative
work, he enjoys all the rights of a copyright holder as though it were a new work,
without prejudice to any subsisting copyright over the original works

2. The parties or entities who exercise copyright over the remixed Warm Warm Honey
are the following:
Karissa Faye Tolentino September 18, 2010

 DJ Chef Jean, as producer, for purposes of exhibition, and also as author

commissioned to produce a derivative work, he also exercises copyright over the work
for all other purposes.
 Galactic Records, as owner of a subsisting copyright over the original work
 Majesty, as author of the original work
Karissa Faye Tolentino September 18, 2010

LAW ON COPYRIGHT

REVIEW QUESTIONS:

1. What are the scope of copyright?

Copyright or economic rights shall consist of the exclusive right to carry out,
authorize or prevent the following acts:

1. Reproduction of the work or substantial portion of the work;

2. Dramatization, translation, adaptation, abridgment, arrangement or other

transformation of the work;

3. The first public distribution of the original and each copy of the work by sale or
other forms of transfer of ownership;

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 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;

5. Public display of the original or a copy of the work;

6. Public performance of the work; and

7. Other communication to the public of the work.

2. What are the scope of moral right?

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 respect to such
right, have the right:

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;

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

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

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.
Karissa Faye Tolentino September 18, 2010

3. Is registration necessary in order to protect copyright?

No. The rights conferred by the Intellectual Property Office insofar as copyright is
concerned subsist from the moment of creation. Under Philippine law, no
formality is required that the author be vested with the rights of copyright.

Copyright exist by operation of law from the moment of creation. Second,

registration of copyright is not required by the Intellectual Property Code. Third,
the most that the National Library can do is record a fact – the fact that copyright
exists.

4. What are the limitations of copyright?

Limitations on Copyright. - 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;

(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 author, if appearing on the work, are mentioned;

(c) The reproduction or communication to the public by mass media of articles on

current political, social, economic, scientific or religious topic, lectures, addresses
and other works of the same nature, which are delivered in public if such use is for
information purposes and has not been expressly reserved: Provided, That the
source is clearly indicated;

(d) The reproduction and communication to the public of literary, scientific or

artistic works as part of reports of current events by means of photography,
cinematography or broadcasting to the extent necessary for the purpose;

(e) The inclusion of a work in a publication, broadcast, or other communication to

the public, sound recording or film, if such inclusion is made by way of illustration
for teaching purposes and is compatible with fair use: Provided, That the source
and of the name of the author, if appearing in the work, are mentioned;

(f) The recording made in schools, universities, or educational institutions of a

work included in a broadcast for the use of such schools, universities or
educational institutions: Provided, That such recording must be deleted within a
reasonable period after they were first broadcast: Provided, further, That such
Karissa Faye Tolentino September 18, 2010

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;

(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 the 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.

5. What is the term copyright?

Term of Protection. - 213.1. Subject to the provisions of Subsections 213.2 to 213.5,

the copyright 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.

213.2. In case of works of joint authorship, the economic rights shall be protected
during the life of the last surviving author and for fifty (50) years after his death.

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 provisions of Subsections
213.1. and 213.2 shall apply, as the case may be: Provided, further, That such
works if not published before shall be protected for fifty (50) years counted from the
making of the work.

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.
Karissa Faye Tolentino September 18, 2010

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.

213.6. In case of audio-visual works including those produced by process

analogous to photography or any process for making audio-visual recordings, the
term shall be fifty (50) years from date of publication and, if unpublished, from the
date of making.
Karissa Faye Tolentino September 18, 2010

Search Warrants and IPR

Review Questions:

1. What are the requisites for the validity of search warrants?

Requisites for issuing search warrant. — A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized. (Sec. 3, Rule 126 of the Rules
of Court )

2. What is probable cause in relation to search warrants?

Probable cause is the existence of such facts and circumstances which could
lead a reasonably discreet and prudent man to believe that an offense has been
committed and that the item(s), article(s) or object(s) sought in connection with
said offense or subject to seizure and destruction by law is in the place to be
searched.

3. What are the duties of the judge before a search warrant is issued?

The judge determining probable cause must do so only after personally

examining under oath the complainant and his witnesses. The oath required
must refer to "the truth of the facts within the personal knowledge of the
petitioner or his witnesses, because the purpose thereof is to convince the
committing magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause." The applicant must
have personal knowledge of the circumstances. "Reliable information" is
insufficient. Mere affidavits are not enough, and the judge must depose in
writing the complainant and his witnesses.