KNOTES #BestBarEver; Personal Notes, Use at your own Discretion.

1
INTELLECTUAL PROPERTY LAW
5. Patents
- AKA Patentable invention
A. Concepts and de nitions - technical solution of a problem in any field of human activity
Intellectual property: refers to the creations of the mind which is new, involves an inventive step and is industrially
(inventions, literary and artistic works, and symbols, names, applicable.
images, and designs used in commerce) - product, process, or improvement of any.
- the legal rights which results from intellectual activities in the - Elements:
industrial, scientific, literary and artistic fields. a. Technical Solution
b. Problem in any field of human activity
Basis in the Constitution c. it must be new, novel, involves an inventive step
– Art. 14, Sec. 13: The State shall protect and secure the exclusive d. Industrially applicable
rights of scientist, inventors, artists, and other gifted citizens to
their intellectual property and creations, particularly when 6. Integrated Circuit
beneficial to the people, for such as may be provided by the law. - product, in its final form or an intermediate form
- intended to perform an electronic function
Intellectual Property Rights - an example is a laptop
a. It is property
b. Creations of the human mind or intellectual 7. Layout Design
- 3D Disposition of integrated Circuits
c. Intangible asset- vs. Object/Embodiment

d. Intellectual property rights

8. Protection of undisclosed Information
Elements:
i. Exclusive rights to do or prohibit
a. Secret
ii. May be assigned or licensed to others
b. Has commercial value
iii. May be infringed
c. Subject to reasonable steps under the circumstances, by the
person lawfully in control of the information, to keep it a secret.
Two Categories of Intellectual Property - it is in relation to commercial activity
a. Industrial Property
– inventions (patents), trademarks, industrial designs, and International Regime of IP Rights
geographic indications of source
- business, commerce related
a. Berne Convention
- Protection of Literary and Artistic Works 1971
- intends to use it in business
- 3 basic principles:
i. National Treatment: Local must treat the foreign the
b. Copyright same
– literary and artistic works (novels, poems and plays, films ii. Automatic Protection: if there is a work created in the
musical works, drawings, paintings, photographs and sculptures, PH, no need for registration and within the members of
architectural designs. the Convention
- Rights relating to copyright: performing artist in their iii. Independence of Protection: protection granted in the
performance, producers of phonograms in their recordings, and PH may not be the same, depending on the subject
those of broadcasters in their radio and television programs. matter.
- it is protected at the moment of creation. - Minimum Standards of Protection

Basis: b. Paris Convention on the Protection of Industrial

Sec. 13, Art. XIV, 1987 PH Constitution: obligation of the State to
protect the intellectual rights.
Property (1967)
- including patents, trademarks, industrial designs, utility models,
- Condition: beneficial to the people for such period – refer to the
service marks, trade names, geographical indications, and the
law protecting the right (primarily: Intellectual Property Code)
repression of unfair competition
Art. 427 of the NCC: ownership may be exercised over things or
- Basic principles:
rights
i. National Treatment
ii. Right of priority (date of filing): You can use the date of filing
Art. 712 of the NCC: sources of the right: Intellectual creation is a
here in the PH when filing abroad, the date will retroact.
mode of ownership. When you create something, you have the
right for it to be protected.
iii. Common Rules (Minimum Standards)
SEC 2 of RA 8293: Carrying out the State Policy. “The use of
intellectual property bears a social function” – requires balance, c. Patent Cooperation Treaty
public benefits. - Similar Madrid System in filing
- A PCT Application has the effect of automatically designating all
Contracting State bound by the PCT on the international filing date,
B. Kinds of intellectual property rights as if a national patent application had been filed with the national
- Sec. 4 RA No. 8293 patent office of that member State.
1. Copyright and Related Rights:
- Related Rights: in relation to copyrights - Advantages:
- Exists over original and derivative a. Brings the world within reach
- protected from the moment of their creation (automatic) b. Provides a strong basis – through ISR – for patenting decisions
- must primarily relate to literary and artistic domain c. Postpones (by 18 months) the major costs associated with
international patent protection.
2. Trademarks and Service Marks:
- Visible sign capable of distinguishing the goods (trademark) or d. Madrid Protocol
services (service mark) of an enterprise and shall include a (can be a question to the bar)
stamped or marked container of goods. - Filing system siya, filing date is important
- Non-traditional marks, recognized in other jurisdiction, are not - Filing one application with the International Bureau (though the
recognized in the PH as we only recognize VISIBLE sign. office of the home country)
- in 1 language (English, French or Spanish)
3. Geographic Indication - and paying one set of fees
- originating in the territory of a Member of the Agreement (TRIPS
- Includes: maintenance, renewals, amendments and assignments.
agreement) or a region or locality in that territory, where a given
quality, reputation, or other characteristic of the good is essentially
attributable to its geographic origin.
- There has to be some link between the product and the
originating territory
- the territory dictates the quality, reputation or other characteristic
of the product.

4. Industrial Design
- Composition of lines or colors or any 3D form
- Composition or form gives a special appearance to and can serve
as pattern for an industrial product or handicraft
- it must be new or original

(c) Rigor, 2021

fi

KNOTES #BestBarEver; Personal Notes, Use at your own Discretion. 2
- The Code was enacted to strengthen the intellectual and
industrial property system in the Philippines as mandated by the
- Application through National or Regional IP Office (some
country’s accession to the Agreement Establishing the World Trade
jurisdictions have their own IP System – European Community, one
Organization.
application lang)
- The WTO is a common institutional framework for the conduct of
- Formality Examination by WIPO: did you pay fees, logo, etc.
trade relations among its members in matters related to the
- Substantive examination by Office of the designated country
multilateral and plurilateral trade agreements annexed to the WTO
- Contracting Party (Local Application)
Agreement. The WTO framework ensures a "single undertaking
approach" to the administration and operation of all agreements
LOCAL APPLICATION:
and arrangements attached to the WTO Agreement.

B. Three aspects of intellectual property

Date of Registration is 30 days immediately pag walang nag

oppose (publication in the E-Gaezette), it will be registered, pay
fees. The day will retroact to the day when there was no
opposition.

CASE: IPAP vs ES. 2016 A. Asset: treat it as an ordinary tangible property

- 2012, PH acceded to the Madrid Protocol through mere - Disposable, leasable, part of inheritance.
ratification by the President
- the IPAP petition the SC to declare it unconstitutional on the B. Rights
ground that it was in the nature of the treaty and the accession - There are set of rights available
had not been approved by the Congress. - This will be the basis of enforcement
- SC: IPAP has no locus standi because they do not have real right
that will be affected; Under the law the DFA has the discretion to C. Policy Tool
determine if the agreement is in the nature of an executive - how you protect and enforce will also determine your economic
agreement or treaty, and if the protocol need or need not go to environment.
Senate.
- SC: The accession was not in conflict with the IP Code. The - There are important because in an IP Case you have to know in
application when it reached the PH, it was examined. what context will you address the IP Case.

e. TRIPs Agreement C. Fundamental Principles

- Trade-Related aspects of Intellectual Property Agreement or
a. Principle of Territoriality
TRIPs (WTO)
- Constitution it states that protection must be provided for by the
- Annex C to the General Agreement on Tariffs and Trade or GATT
law and the application of the law is limited to the jurisdiction
enacting that law
- Basic Principles:
- If the IP is not registered in the PH, it will not be registered
i. National Treatment
abroad, vice-versa.
ii. Most-Favored-Nation Treatment: member state cannot
discriminate among other member state
b. IPR is a private right
- if there is a violation of IPR, you need the complaint, testimony of
- 3 Main Sets of Provisions
the owner of the IP because s/he is competent to tell the court
i. Minimum Standards: Berne – Plus and Paris – Plus
ii. Enforcement: Inaudita Altera Parte (Without the other party
c. For every IPR, the law grants the rightholder a set of exclusive
being heard); border enforcement
rights
iii. Dispute Settlement: WTO Procedures
d. IPR is not absolute, it is subject to limitations
f. The Marrakesh Treaty to Facilitate Access to
Published Works for Persons who are Blind, Visual e. Principle of good faith applies
Impaired and Persons with Print Disability
f. IPR is distinct from the material object
- Book Famine Crisis
- Incorporeal right is distinct from the property right, ownership in
- Problem: Copyright infringement, there is a lack of legal fair use
one does not necessarily vest ownership in the other.
for: local production and distribution of books in accessible
- Example the painting is different from the copyright of the
formats; cross-border distribution of books in accessible formats to
painting.
institutions and individuals.
- Transfer or assignment of the IP does not necessarily constitute a
- Objective: clear humanitarian and social justice
conveyance of the thing.
- Treaty allows for copyright exceptions to facilitate the creation of
accessible versions of books and other copyrighted works for
visually impaired persons.
- it only applies to books
Copyright
- copy of a work in an alternative matter or form: feasibly and General Principle
comfortably: large print, braille, and audio information. - It is a purely statutory right, the rights are limited to what the
statute confers.
CASE: Mirpuri vs CA - It can only cover the works falling within the statutory
enumeration or description
- Intellectual and industrial property rights cases are not simple
- Refers to finished works it does not extend to idea, procedure,
property cases. Trademarks deal with the psychological function of
process, system, method of operation, concept, principle, or
symbols and the effect of these symbols on the public at large.
discover, regardless of the form in which it is described, explained,
Trademarks play a significant role in communication, commerce
illustrated, or embodied in such work.
and trade, and serve valuable and interrelated business functions,
- Confined to literary and artistic works which are original
both nationally and internationally. For this reason, all agreements
intellectual creations in the literary and artistic domain protected
concerning industrial property, like those on trademarks and
from the moment of their creation
tradenames, are intimately connected with economic development.
- Extended to the creator should ensure his attainment of some
76 Industrial property encourages investments in new ideas and
form of personal satisfaction and economic reward
inventions and stimulates creative efforts for the satisfaction of
- He must be the original creator of the work: entitled to the right.
human needs. They speed up transfer of technology and
He must not be directly copying or evasively imitating the work of
industrialization, and thereby bring about social and economic
another. (Original intellectual creations in the literary and artistic
progress.
domain protected from the moment of their creation)
- The Intellectual Property Code of the Philippines declares that "an
effective intellectual and industrial property system is vital to the
development of domestic and creative activity, facilitates transfer Basic Principles
of technology, it attracts foreign investments, and ensures market a. Protected from the moment of creation
access for our products." b. Deposit and notice in national library of the Philippines

(c) Rigor, 2021

KNOTES #BestBarEver; Personal Notes, Use at your own Discretion. 3
- Within 3 weeks from first public dissemination of performance by - Functional components of useful articles, no matter how artistically designed,
have generally been denied copyright protection unless they are separable from
authority, by authority of the owner of the original work, for the
the useful article.
purpose of completing the records of the National Library and the - RE-READ PEARL AND DEAN VS SHOEMART
SC Library be registered and deposited with it. 2 complete copies
or reproduction. - Copyright also protects Derivative works
- This will be the best evidence of original work, but this is only - This will be protected as new work as long as it will not affect the
highly advisable force of any subsisting copyright upon the original works employed
- No formalities required (automatic protection). It must be an or any part thereof, or be construed to imply any right to use of the
artistic or literary work (Expression vs. Functional or Technical original works, or to secure or extend copyright in such original
Work [pag dito, patent]), and original (personal involvement or works
creativity).
(Sec. 173):
Unprotected Subject Matter (a) Dramatizations, translations, adaptations, abridgments, arrangements, and
other alterations of literary or artistic works; and
Section 175: (b) Collections of literary, scholarly or artistic works, and compilations of data and
a. Any idea, procedure, system, method or operation, concept, other materials which are original by reason of the selection or coordination or
principle, discovery or mere data as such, even if they are arrangement of their contents. (Sec. 2, (P) and (Q), P.D. No. 49)
expressed, explained, illustrated or embodied in a work;
- u have an idea, the idea is something cannot be exclusively - Compilation of Data must be of original work to be copyrightable.
owned nor protected by copyright. If idea is already expressed, the
expression becomes copyrightable (example is painting, nakikita
mo na, di na siya idea) Set of Rights for Copyright
a. Copy or Economic Rights of the owner of the work:
b. News of the day and other miscellaneous facts having the 177.1. Reproduction of the work or substantial portion of the work;
character of mere items of press information; or 177.2. Dramatization, translation, adaptation, abridgment, arrangement or other
- Because anybody can write about a certain incident or news, but transformation of the work;
once already written it is copyrightable. 177.3. The first public distribution of the original (first sale doctrine) 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,
c. any official text of a legislative, administrative or legal in nature, a work embodied in a sound recording, a computer program, a compilation of data
as well as any official translation thereof. 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; (n)
177.5. Public display of the original or a copy of the work;
Section 176 177.6. Public performance of the work; and
a. Works of the Government 177.7. Other communication to the public of the work. (Sec. 5, P.D. No. 49a)
- Government can own copyright if the same is donated, sold or
assigned to the government office. Duration of Economic Rights
- If you’re going to exploit government work for profit, you must
ask the consent of the involved office/agency. But if the works of Literary and Artistic Works, Life of author + 50 years
government is a result of public deliberation or public character in derivative works after his death
nature, no prior approval is needed.
- The author of speeches, lectures, sermons, addresses, and Joint Authorship Life of the last surviving
dissertations shall have the exclusive right of making a collection of author + 50 years after his
his works. death
- Not because a certain copyrightable work is incorporated in the
work of government mean is no longer protected by copyright. Anonymous or 50 years from date it is first
Pseudonymous Works lawfully published. If before
expiration of period, identity
Copyright as distinct from Material Object is revealed or no longer in
GR: Copyright is distinct from the property in the material object doubt, the rule on literary
subject to it. The transfer or assignment of the copyright shall not and joint authorship applies
itself constitute a transfer of the material object. Nor shall a
transfer or assignment of the sole copy or of one or several copies Work of Applied Art 25 years from date of
of the work imply transfer or assignment of the copyright. making

XPN: Work of architecture: it include the right to control the Photographic works; If Published, 50 years from
erection of any building which reproduces the whole or a Audiovisual publication
substantial part of the work either in its original form or in any Unpublished – 50 years from
form recognizably derived from the original. Provided that the making
copyright in any such work shall not include the right to control the
reconstruction or rehabilitation in the same style as the original of Performance not 50 years from end of the
a building to which that copyright relates. incorporated in recordings year in which performance
- it includes the right to control the erection of the building. took place

Sound recordings and 50 years from end of the

Original Works performances year in which recording took
SEC. 172: - Not inclusive
SECTION 172. Literary and Artistic Works. 172.1. Literary and artistic works,
place
hereinafter referred to as “works”, are original intellectual creations in the literary
- Counting starts from date of death or publication but the term
and artistic domain protected from the moment of their creation and shall include
in particular: begins from January 1 following the event.

(a) Books, pamphlets, articles and other writings;

(b) Periodicals and newspapers;
Exhaustion of Rights
(c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether a. National Exhaustion
or not reduced in writing or other material form; b. Regional Exhaustion
(d) Letters; c. International Exhaustion
(e) Dramatic or dramatico-musical compositions; choreographic works or
entertainment in dumb shows;
(f) Musical compositions, with or without words; CASE: Kirtsaeng vs john wiley & sons, inc
(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or - The first sale doctrine: notwithstanding the provisions of each
other works of art; models or designs for works of art;
(h) Original ornamental designs or models for articles of manufacture, whether or
106(3) the section that grants the owner exclusive distribution
not registrable as an industrial design, and other works of applied art; rights, the owner of a particular copy or phonorecord lawfully made
(i) Illustrations, maps, plans, sketches, charts and three-dimensional works under this tittle is entitled, without the authority of the copyright
relative to geography, topography, architecture or science; owner, to sell or otherwise dispose of the possession of that copy
(j) Drawings or plastic works of a scientific or technical character;
(k) Photographic works including works produced by a process analogous to
or phono record.
photography; lantern slides; - SC: Exhausted na yon right nila John Wiley because it is already
(l) Audiovisual works and cinematographic works and works produced by a process made in the public.
analogous to cinematography or any process for making audio-visual recordings;
(m) Pictorial illustrations and advertisements;
(n) Computer programs; and
- Usually asked in the Bar
- This is not patentable, but protected by copyright
- Software applications or computer acts

(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)

- Only the expression of an idea is protected by copyright, not the idea itself.

(c) Rigor, 2021

 KNOTES #BestBarEver; Personal Notes, Use at your own Discretion. 4
separately and the author of each part can be identified, the author
of each part shall be the original owner of the copyright in the part
that he has created;

3. Works created by an author during and in course of his

employment, the copyright shall belong to:
a. if the creation is not part of his regular duties even if
the employee uses the time, facilities and materials of the
employer – the employee owns.
b. If work is the result of his regular duties, it belongs to
the employer unless there’s a stipulation.

4. Work commissioned by a person other than an employer of the

author and pays for it and the work is made in pursuance of the
commission, the person who so commissioned the work shall have
- Reproduction: can refer to one or two copies, temporary or ownership of the work, but the copyright shall remain with the
permanent, in whole in or in part. creator, unless there’s a written stipulation to the contrary.

5. Audiovisual work, the copyright shall belong to the producer, the

B. Moral Rights author of the scenario, the composer of the music, the film
SECTION 193. Scope of Moral Rights. The author of a work shall, independently
of the economic rights in director, and the author of the work so adapted. However, subject
Section 177 or the grant of an assignment or license with respect to such right, to contrary or other stipulations among the creators, the producer
have the right: shall exercise the copyright to an extent required for the exhibition
of the work in any manner, except for the right to collect
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 performing license fees for the performance of musical
prominent way on the copies, and in connection with the public use of his work; compositions, with or without words, which are incorporated into
193.2. To make any alterations of his work prior to, or to withhold it from the work; and
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 6. In respect of letters, the copyright shall belong to the writer
reputation; and subject to the provisions of Article 723 of the Civil Code. (Sec. 6,
193.4. To restrain the use of his name with respect to any work not of his own P.D. No. 49a)
creation or in a distorted version of his work. (Sec. 34, P.D. No. 49)
- Art. 723 of the Civil Code
- 1987 Constitution, Art. 3, Sec. 3
- Right of Attribution; right to be recognize. Refer to the author
- Letter belongs to the recipient, the copyright belongs to the write
when used.
of the letter.
- This is also right of integrity. This is a link between the author
and the work
Anonymous and Pseudonym Works
– publishers shall be deemed to represent the authors of the
Waiver of Moral Rights articles unless the writer is identified.
SECTION 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
effects is to permit another: Presumption of Ownership
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
1. Natural person whose name is indicated on a work in the usual
which, because of alterations therein, would substantially tend to injure the literary manner, in the absence of proof, be presumed to be author of the
or artistic reputation of another author; or work.
195.2. To use the name of the author with respect to a work he did not create. 2. Person or body corporate whose name appears on a audio-visual
(Sec. 36, P.D. No. 49)
work in the usual manner shall, in the absence of proof to the
contrary be presumed to be the maker of said work.
- Breach of Contract: an author cannot be compelled to perform his
contract to create a work or for the publication of his work already
in existence. However, he may be held liable for damages for Neighboring or Related Rights
breach of such contract. - They are not the creator but they are the person/people
- An example is when you commissioned someone to write a book responsible for recording and/or broadcasting
for you, and the writer refused to publish or withheld the book 1. Performers’ Rights
after its completion, the person who asked for the commission can Sec. 203: right to authorizing:
ask for damage he CANNOT ask for specific performance. a. The broadcasting and other communications to the public of their performances;
and
b. Fixation of their unfixed performances
- When an author contributes to a collective work, his right to have
his contribution attributed to him is deemed waived unless he 03.2. The right of authorizing the direct or indirect reproduction of their
expressly reserves it. performances fixed in sound recordings, in any manner or form;
- Editing, Arranging and Adaptation of Work. In the absence of a 203.3. Subject to the provisions of Section 206, the right of authorizing the first
contrary stipulation at the time an author licenses or permits public distribution of the original and copies of their performance fixed in the
another to use his work, the necessary editing, arranging or sound recording through sale or rental or other forms of transfer of ownership;
adaptation of such work, for publication, broadcast, use in a motion
203.4. The right of authorizing the commercial rental to the public of the original
picture, dramatization, or mechanical or electrical reproduction in and copies of their performances fixed in sound recordings, even after distribution
accordance with the reasonable and customary standards or of them by, or pursuant to the authorization by the performer; and
requirements of the medium in which the work is to be used, shall
not be deemed to contravene the author’s rights secured by this 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
chapter. Nor shall complete destruction of a work unconditionally that members of the public may access them from a place and time individually
transferred by the author be deemed to violate such rights. chosen by them. (Sec. 42, P.D. No. 49a)
- Editing is needed for necessity
SECTION 204. Moral Rights of Performers. 204.1. Independently of a performer’s
economic rights, the performer, shall, as regards his live aural performances or
Subsequent Transfer performances fixed in sound recordings, have the right to claim to be identified as
- this right shall exist during the lifetime of the author for 50 years 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
after his death: droit de suite
or other modification of his performances that would be prejudicial to his
reputation.
- 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 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
composer, subsequent to the first disposition thereof by the author,
in default of heirs, the government, where protection is claimed. (Sec. 43, P.D. No.
the author or his heirs shall have an inalienable right to participate 49)
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 SECTION 205. Limitation on Right. 205.1. Subject to the provisions of Section
206, once the performer has authorized the broadcasting or fixation of his
and for fifty (50) years after his death.
performance, the provisions of Sections 203 shall have no further application.
- Exception: not apply to prints, etchings, engravings, works of
applied art, or works of similar kind wherein the author primarily 205.2. The provisions of Section 184 and Section 185 shall apply mutatis mutandis
derives gain from the proceeds of reproductions. to performers. (n)

SECTION 206. Additional Remuneration for Subsequent Communications or

Ownership and Presumption of Ownership Broadcasts. Unless otherwise provided in the contract, in every communication to
1. Original and artistic works, copyright shall belong to the author the public or broadcast of a performance subsequent to the first communication or
broadcast thereof by the broadcasting organization, the performer shall be entitled
of the work; to an additional remuneration equivalent to at least five percent (5%) of the
2. Works of joint authorship, the co-authors shall be the original original compensation he or she received for the first communication or broadcast.
owners of the copyright and in the absence of agreement, their (n)
rights shall be governed by the rules on co-ownership. If, however,
a work of joint authorship consists of parts that can be used

(c) Rigor, 2021

‑
‑
‑

KNOTES #BestBarEver; Personal Notes, Use at your own Discretion. 5
SECTION 207. Contract Terms. Nothing in this Chapter shall be construed to (b) The making of quotations from a published work if they are compatible with
deprive performers of the right to agree by contracts on terms and conditions fair use and only to the extent justified for the purpose, including quotations from
more favorable for them in respect of any use of their performance. (n) 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;
(Sec. 11, third par., P.D. No. 49)
2. Producers of Sound Recordings
- They only have economic rights (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
SECTION 208. Scope of Right. Subject to the provisions of Section 212,
information purposes and has not been expressly reserved: Provided, That the
producers of sound recordings shall enjoy the following exclusive rights:
source is clearly indicated; (Sec. 11, P.D. No. 49)
208.1. The right to authorize the direct or indirect reproduction of their sound
(d) The reproduction and communication to the public of literary, scientific or
recordings, in any manner or form; the placing of these reproductions in the
artistic works as part of reports of current events by means of photography,
market and the right of rental or lending;
cinematography or broadcasting to the extent necessary for the purpose; (Sec. 12,
P.D. No. 49)
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
(e) The inclusion of a work in a publication, broadcast, or other communication to
ownership; and
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
208.3. The right to authorize the commercial rental to the public of the original
and the name of the author, if appearing in the work, are mentioned;
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)
CASE: Rappler vs andres bautista
SECTION 209. Communication to the Public. If a sound recording published for
- The SC recognized the right of Rappler to live stream the 2015
commercial purposes, or a reproduction of such sound recording, is used directly
for broadcasting or for other communication to the public, or is publicly performed Philippine Presidential debate covered by broadcasting companies
with the intention of making and enhancing profit, a single equitable remuneration subject to certain clarifications
for the performer or performers, and the producer of the sound recording shall be - Broadcasting cannot alter, must broadcast as is.
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) (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
SECTION 210. Limitation of Right. Sections 184 and 185 shall apply mutatis educational institutions: Provided, That such recording must be deleted within a
mutandis to the producer of sound recordings. (Sec. 48, P.D. No. 49a) reasonable period after they were first broadcast: Provided, 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;
3. Broadcasting Organizations
- They only have economic rights (g) The making of ephemeral recordings by a broadcasting organization by means
SECTION 211. Scope of Right. Subject to the provisions of Section 212, of its own facilities and for use in its own broadcast;
broadcasting organizations shall enjoy the exclusive right to carry out, authorize or
prevent any of the following acts: (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
211.1. The rebroadcasting of their broadcasts; institutions where such use is in the public interest and is compatible with fair use;

211.2. The recording in any manner, including the making of films or the use of (i) The public performance or the communication to the public of a work, in a place
video tape, of their broadcasts for the purpose of communication to the public of where no admission fee is charged in respect of such public performance or
television broadcasts of the same; and 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
211.3. The use of such records for fresh transmissions or for fresh recording. (Sec. provided in the Regulations; (n)
52, P.D. No. 49)
(j) Public display of the original or a copy of the work not made by means of a film,
CASE: ABS-CBN Broadcasting corporation vs ph multimedia system 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
- Retransmission is not rebroadcasting the copy displayed has been sold, given away or otherwise transferred to another
- Rebroadcasting is the simultaneous broadcasting by one person by the author or his successor in title; and
broadcasting organization of the broadcast of another broadcasting
(k) Any use made of a work for the purpose of any judicial proceedings or for the
organization. giving of professional advice by a legal practitioner.

(i) The reproduction or distribution of published articles or materials in a

specialized format exclusively for the use of the bind, visually and reading-
impaired persons: Provided, that such copies and distribution shall be made on a
nonprofit basis and shall indicate the copyright owner and the date of the original
publication.

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 normal
exploitation of the work and does not unreasonably prejudice the right holder’s
legitimate interests.

Plagiarism
- Theft of another person’s language, thoughts, or ideas. To
plagiarize, is to take from another and pass them off as one’s own.
The passing off of the work of another as one’s own is thus an
indispensable element of plagiarism.
- This presupposes intent and a deliberate, conscious effort to steal
another’s work and pass it off as one’s own.

SECTION 185. Fair Use of a 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 the 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:
(a) The purpose and character of the use, including whether
such use is of a commercial nature or is for non-profit educational
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.

Fair Use: privilege to use the copyright material in a reasonable

manner without the consent of the copyright owner or as a copying
Term of Moral Rights the theme or ideas rather than their expression. No question of fair
- Shall last during the lifetime of the author or unfair use arises however, if no copying is proved to begin with.
This is inconsonance with the principle that there can be no
Limitations (memorize) infringement if there was no copying. It is only where some form of
Sec. 184 copying has been shown that it becomes necessary to determine
184.1. Notwithstanding the provisions of Chapter V, the following acts shall not whether it has been carried to an “unfair”, that is, illegal, extent.
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)

(c) Rigor, 2021

‑
‑
‑
‑

 KNOTES #BestBarEver; Personal Notes, Use at your own Discretion. 6
CASE: ABS – CBN Corp vs Gozon (read the case digest in the PPT) Af davit Evidence
- Infringement under the IPC is malum prohibitum. Copyright is a - This will create presumption on the ownership of the work.
statutory creation
- GR: acts punished under a special law are malum prohibitum.
Malice or criminal intent is completely immaterial
- Good faith, lack of knowledge of the copyright, or lack of intent to
infringe is not a defense against copyright infringement. Copyright,
however, is subject to the rules of fair use and will be judged on a
case-to-case basis.

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.
Copyright Infringement
a. Directly commits infringement
b. Benefits from the infringing activity of another person who
commits an infringement if the person benefitting 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.

ELEMENTS:
a. Ownership of a valid copyright. (Affidavit Evidence)
b. Exercise of any of the exclusive right in section 177
c. Without the Consent of the copyright owner; unless: Fair Use.

CASE: Sanrio Company ltd vs lim

- there is no infringement.
- Petitioner failed to prove that respondent knew that the
merchandise he sold was counterfeit.
- Evidence on record showed that respondent bought his
merchandise from legitimate sources, as shown by official receipts
from authorized resellers

CASE: Habana vs robles

- Copying alone is not prohibited, the copying must produce an
injurious effect.

Fair Use Exceptions (Possible Qs)

- Fair use for criticism, comment, news reporting, teaching
including limited multiple number of copies for classroom use,
scholarship, research and similar purposes

FACTORS TO BE CONSIDERED IN DETERMING FAIR USE

a. Purpose and character of the use
b. Nature of the copyrighted work
c. Amount & substantiality of the portion used in relation to the
copyrighted work as a while; and
d. Effect of the use upon the potential market for or value of the
copyrighted work.

Who is liable for infringement?

a. directly commits an infringement
b. Benefits from the activity if the person has been given notice of
the infringing activity and has the right and ability to control the
activities of other person;
c. With knowledge of infringing activity, induces, causes or
materially contributes to the infringing conduct of another

Q: Is hacking a copyright infringement?

A: if you copy the contents, you area liable for copyright
infringement.

Remedies for Infringement

Read Section 216
a. Injunction
b. Pay damages
c. Delivery for impounding or destruction, it will also be done
despite the event of acquittal in a criminal case.

Technological Measure
- Any technology, device or component that, in the normal course
of its operation, restricts acts in respect of a work, performance or
sound recording, which are not authorized by the authors,
performers or producers of sound recordings concerned or
permitted by law.

Rights Management Information

- 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 conditions 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
conjunction with the communication to the public of a work, sound
recording or performance.

(c) Rigor, 2021

fi