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Title II
INTELLECTUAL CREATION
(Arts. 721-724)
1. Define intellectual creation and intellectual property.

ANS: Intellectual creation is a mode of acquisition by virtue of

which the author acquires intellectual property or ownership over
the products of his intellect, with the consequent power to
authorize or refuse publication or production of such products.
Intellectual property, on the other hand, may be defined as the
universality of all the rights which the law recognizes in the
author over the creations or products of his intellect and consists,
fundamentally, in the power to authorize or refuse the publication
or production of such creations or products. (2 Castan 343-344J

2. Who are the persons who may acquire ownership by

intellectual creation?

ANS: By intellectual creation, the following persons acquire

ownership:
(1) The author, with regard to his literary, dramatic, historical,
legal, philosophical, scientific or other work;
(2) The composer, as to his musical composition;
(3) The painter, sculptor, or other artist, with respect to the
product of his art;
(4) The scientist or technologist or any other person with
regard to his discovery or invention. (Art. 721, NCC.)
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3. (a) Suppose that the creation or product has not yet
been copyrighted or patented, can the author, composer,
artist or scientist be considered as the owner of such
creation or product?
(b) A, a famous short story writer, wrote a short story and
kept the manuscript in his drawer. X stole the manuscript
and published the short story without the knowledge and
permission of A. A sued X for damages alleging complete
publication of the story without his permission. X admits
the originality and literary value of the story, its
authorship by A and the fact that it was published without
A’s permission, but counters with the defense that A has
not secured a copyright of the short story under our
Copyright Law (Act No. 3134). Will A’s action prosper?
Reason. (1971)

ANS: (a) Yes, the author, composer, artist or scientist can be

considered as the owner of his creation or product even before it
has been copyrighted or patented. This is explicitly stated in Art.
722 of the NCC. This is also confirmed by, now to Republic Act
No. 8293 (The Intellectual Property Code of the Philippines) which
repealed P.D. No. 49 (Decree on Intellectual Property).
(Presidential Decree No. 49.)
(b) A’s action will prosper. While it is very true that A has not yet
secured a copyright of the short story under our Copyright Law,
nevertheless, under our NCC (Arts. 721 and 722.), the author
with regard to his literary, dramatic, historical, legal,
philosophical, scientific or other work shall have the ownership of
his creation even before the publication of the same. This right of
ownership is protected by the law and this can be implemented
by means of a proper action for damages. Of course, Art. 722 of
the NCC expressly provides that once the work is published, the
right of the author is governed by the Copyright Law, but then
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this presupposes that the publication should have been made by
the author himself and not by another without any authority
whatsoever.

4. Who owns a letter or any other private communication?

ANS: According to Art. 723 of the NCC, “Letters and other private
communications in writing are owned by the persons to whom
they are addressed and delivered, but they cannot be published
or disseminated without the consent of the writer or his heirs.
However, the court may authorize their publication or
dissemination if the public good or the interest of justice so
requires.” From this provision, there is a clear implication that as
far as the intellectual property is concerned, a dual ownership is
recognized by our law; in other words, although the letter itself is
owned by the addressee, the writer retains a right of ownership
over its contents. (See also Sec. 178.6 of RA. No. 8293.)

5. Independently of the economic rights conferred by R.A.

No. 8293, otherwise known as the Intellectual Property
Code, in Sec. 177 or the grant of an assignment or license
with respect to any of such rights, what are the four (4)
moral rights of the author of a work?

ANS: The four (4) moral rights of the author of a work are:
(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;
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(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, (Sec.
193, R.A. No. 8293.)

6. Are the above rights waivable?

ANS: An author may waive his rights mentioned in Sec. 193 of

R.A. No. 8293 by a written instrument, but no such waiver shall
be valid where its effects is to permit another:
(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 which, because of alterations
therein, would substantially tend to injure the literary or artistic
reputation of another author; or
(2) To use the name of the author with respect to a work he did
not create. (Sec. 195, R.A. No. 8293.)

7. A, a famous author, entered into a contract with X

Publishing Co. for the publication of a book which he had
just written. Subsequently, he changed his mind. He does
not want the book to be published. Can the publishing
company compel him to comply with his contract? Explain.

ANS: The publishing company cannot compel A to comply with his

contract. This is clear from Sec. 194 of R.A. No. 8293, which
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declares that 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 breach of such a contract.
8. When an author contributes to a collective work, like a
newspaper or an encyclopedia, has he the right to have his
contribution attributed to him?
ANS: No, he does not have the right to have his contribution
attributed to him unless he expressly reserves it. Sec. 196 of R.A.
No. 8293 expressly states that he is deemed to have waived his
right unless he expressly reserves it.

9. Are the moral rights of an author which are protected by

the Law on Intellectual Property prescriptible?

ANS: According to the law itself, such rights shall last during the
lifetime of the author and for 50 years after his death and shall
not be assignable or subject to license. The person or persons to
be charged with the posthumous enforcement of these rights
shall be named in writing to be filed with the National Library. In
default of such person or persons, such enforcement shall
devolve upon either the author’s heirs, and in default of the heirs,
the Director of the National Library. (Sec. 198, RA. No. 8293J

Title III
DONATION
(Arts. 725-773)
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1. Define donation as a mode of acquiring ownership and
give its requisites.

ANS: Donation is an act of liberality whereby a person disposes

gratuitously of a thing or right in favor of another, who accepts it.
(Art 725, NCC.)
When a person gives to another a thing or right on account of the
latter’s merits or of the services rendered by him to the donor,
provided they do not constitute a demandable debt, or when the
gift imposes upon the donee a burden which is less than the
value of the thing given, there is also a donation, (Art. 726,
NCC.)
Its requisites are:
(1) Decrease or reduction of the patrimony of the donor;
(2) Increase of the patrimony of the donee ; and
(3) Animus donandi or the intent to make a donation. (See 4
Castan 163-164.)

2. Give and define the different kinds of donations.

ANS: Donations may be classified in the following ways:

A. As to their effectivity:
(1) Donations inter vivos, or those which take effect
independently of the donor’s death.
This class of donations may, in turn, be subdivided into the
following:
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(a) Simple donations, or acts of pure liberality whereby a person
disposes gratuitously of a thing or right in favor of another, who
accepts it. (Art. 725, NCC.)
(b) Remunerative donations, or those which a person gives to
another on account of the services rendered by the latter to the
former, provided that they do not constitute a demandable debt.
(Art. 726, NCC.)
(c) Conditional donations, or those where the donor imposes
upon the donee a burden or charge which is less than the value
of the thing given. (Art. 726, NCC.)
(d) Onerous donations, or those which a person gives to another
in consideration of demandable debts. (Art. 733, NCC.)
(2) Donations mortis causa, or those which are effective upon the
donor’s death and must therefore be governed by the rules of
testamentary succession. (Art. 728, NCC.)

B. As to their perfection or extinguishment:

(1) Pure donations, or those which are immediately demandable.
(2) Donations with a condition, or those whose effectivity are
subordinated to the fulfillment or non-fulfillment of a future and
uncertain fact or event.
(3) Donations with a term, or those whose effectivity or
extinguishment is subject to the expiration of a term or period.

3. Can a person donate a property which is not owned by

him?
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ANS: A donation would not be legally feasible if the donor has
neither ownership nor real right that he can transmit to the
donee.
A donation, under Art. 712, NCC in relation to Art. 725, NCC is
also a mode of acquiring and transmitting ownership and other
real rights by an act of liberality whereby a person disposes
gratuitously that ownership or real right in favor of another who
accepts it. It would be an inefficacious process if the donor would
have nothing to convey at the time it is made. (Hemedes vs. CA,
et al., G.R. No. 107132, October 8, 1999; R & B Insurance Corp.
vs. CA, et al., G.R. No. 108472, October 8,1999.)

4. Classify the following donations, stating your reasons

for the classification:
(a) I hereby donate to “A” mortis causa a parcel of land
(here follows the description) on the condition that this
donation shall be deemed revoked if he fails to build a
house on the land worth at least P50,000.00 within two
(2) years from date hereof.
(b) In consideration of the services rendered to me for
which he refused to accept my remuneration, I hereby
donate to “A” the following parcel of land (description
followed).
(c) I hereby donate to “A” the following parcels of land
(description follows) with the obligation on his part to
defray the expenses for my subsistence during my lifetime,
and the burial expenses after my death. (1984)

ANS: (a) This donation is a conditional donation inter vivos.

It is clear that the donor in the instant case has imposed upon
the donee a burden or charge whose value is less than the value
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of the thing given. According to the NCC, such a donation inter
vivos is conditional. True, the donor designated the donation as a
donation mortis causa, but this is not controlling. It merely
indicates when the delivery to the donee shall be effected. The
condition imposed by the donor, on the other hand, indicates that
the donation is immediately operative. Hence, it is inter vivos in
character. The same is also true with the specification that the
donation will be deemed revoked if the donee does not comply
with the condition. This indicates that the donation is inter vivos
in character.

(b) This donation is clearly a remuneratory donation inter

vivos because it is given by a person to another on account of
the services rendered by the latter to the former which do not
constitute demandable debts. According to the NCC, such a
donation is a remuneratory donation inter vivos.

(c) 1st Answer: This donation is an onerous donation inter

vivos. The obligation of the donee to defray the expenses for the
donor’s subsistence during his entire lifetime and the burial
expenses indicates that such obligation is the consideration for
the donation and vice versa. The properties donated are the
consideration for the obligation.