COPYRIGHT

Module 9

Copyright Infringement To make matters worse, if the journalist promised confidentiality to a

source but then discloses the source’s identity without consent, he could be liable for breach of
contract. Contracts do not have to be in writing, so a verbal promise can count as a promise.

A copyright holder who thinks infringement has occurred needs to prove:

(1) that the infringing work is substantially similar to their copyrighted work, and
(2) the defendant had access to the copyrighted work.

SIMILAR WORK
Showing that the work is substantially similar is usually easy. In cases of direct
copies, it is clearly the same.
In the case of similar works, how similar are the works?

Do the two works simply express the same ideas or discuss the same basic
facts (in which case, there is no infringement, as ideas and facts are not
protected), or are there protectable elements that are copies in the second work,
such as the use of characters, specific language or other copyrightable
similarities?

The more similarities or the more important the significant similarities are, the
more likely a court will find it to be an infringement.

ACCESS TO THE COPYRIGHTED WORK

The copyright holder must also prove that the other party had
access to the original work because copyright law does not
require works to be unique.

Two people can create similar works, such as each taking a photo
of the same item, and neither is an infringement as long as each
was created individually without copying the other.

The plaintiff will have to show that the similar work was not
created simply by coincidence.
Under what conditions can one use copyrighted material?
To make matters worse, if the journalist promised confidentiality to a source but then discloses
the source’s identity without consent, he could be liable for breach of contract. Contracts do
not have to be in writing, so a verbal promise can count as a promise.

In general, material created by another may be used if any one of the

following applies:

1. Material is not copyrightable (previously discussed).

2. Copyright has expired (previously discussed).
3. The user gets permission or a license.
4. The use of the material is permitted under Creative Commons or
similar alternative to copyright law.
5. The use qualifies as a fair use.
6. Some other exception or defense applies. (See Intellectual Property
Code of the Philippines.)

LICENSE
To make matters worse, if the journalist promised confidentiality to a source but then discloses
the source’s identity without consent, he could be liable for breach of contract. Contracts do
not have to be in writing, so a verbal promise can count as a promise.

An author can choose to license the work.

Licensing means that the owner of the copyright retains

ownership but authorizes a third party to carry out certain acts
covered by his economic rights, generally for a specific
period and for a specific purpose.

For example, the author of a novel may grant a publisher a

license to publish copies of the novel. At the same time, the
novelist can license a film producer to make a film based on
the novel.

The user must determine who the copyright holder is. It may be an
individual, a group, a corporation, or some other entity, and it is possible
that the rights have been transferred, either in whole or in part.
Once one finds the copyright holder, the parties must negotiate the
terms of the agreement.

Agreement should be in writing. License agreements should be clear on

all terms because ambiguities may lead to lawsuits.

FAIR USE
Copyright will not be infringed if there is “fair use” of a work.

Fair use is for purposes such as, but not limited to,
“criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or
research.”

To determine whether a use is fair, the 4 factors that would be balanced are:
1. The purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes. But this is not the only
determinative factor.

Any use can be fair if it is “transformative,” meaning that the use adds something to
the original in such a way as to make the new use distinct.

Did the unlicensed use "transform" the material taken from the copyrighted work by
using it for a different purpose than that of the original, or did it just repeat the work
for the same intent and value as the original? (Source: Code of Best Practices in Fair
Use for Online Video)

This is often done by adding comment or criticism or by incorporating the original

work as merely a small example in a larger work that illustrates some other point (as
is often the case with teaching).

2. The nature of the original copyrighted work.

First, was the original work published or not?

Unpublished works are generally entitled to greater protection than

published works simply because copyright law grants the creator the
right to control first publication.
Second, was the work primarily factual or fictional/creative?

Facts cannot be copyrighted, but creative elements can be.

Third factor that would be considered:

3. The amount and substantiality of the portion used in relation to the

original copyrighted work as a whole.

In general, the more of the original work that is used, the more likely a
court will find it to be an infringement, but there is no fixed amount that
is fair or not.

10 seconds or less from an audio recording, or a copy of 3 paragraphs

or less from a book may still be considered infringement.

Small amounts can still constitute an infringement, and the use of a

whole work can still be fair, depending on the other factors involved.

Fourth factor that would be considered:

4. The effect of the use upon the potential market for or value of the
copyrighted work.

This factor goes to the heart of the policy underlying copyright law:
Does the use compete with the original, or interfere with the copyright
holder’s ability to profit from his work? (Ex. reader/buyer won’t buy the
book because the most interesting parts of the book are quoted and
posted online for free without permission from copyright holder. Such
quotation/posting would most likely be considered unfair use.)
Uses that supplant the original in the marketplace are unlikely to be fair.

Not fair use to copy entire thing just because a person works for a non-profit or
is acting without profit motive, or if the intent is to educate people about some
issue.

If the use competes with the original, it may still be an infringement.

 Generally, a use is a fair use if you are commenting directly upon the other work.
(book review)

Incidental uses are usually protected as fair use.

Parody
A parody is a work that ridicules another, usually well-known work, by
imitating it in a comic way. Judges understand that, by its nature, parody
demands some taking from the original work being parodied. Unlike other
forms of fair use, a fairly extensive use of the original work is permitted in a
parody in order to “conjure up” the original.

(Source: https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/)

A parody is a form of criticism.

Nonetheless, every attempt at a parody is not created equally, and in each
instance the particular parody would need to undergo the four factor fair use
analysis to determine whether it constitutes a fair use. For example, an
attempted parody of a song that borrows too much of the original composition
and lyrics, and as a result sounds too much like the original, is less likely to
qualify as a fair use.

Videos
Mashups, remixes, subs, and online parodies partake of an ancient tradition: the recycling of
old
culture to make new.

We as a society give limited property rights to creators, to reward them for producing culture;
at the
same time, we give other creators the chance to use that same copyrighted material without
permission or payment, in some circumstances. Without the second half of the bargain, we
could
all lose important new cultural work just because one person is arbitrary or greedy.

1. Commenting on or critiquing of copyrighted material

2. Using copyrighted material for illustration or example
3. Capturing copyrighted material incidentally or accidentally
4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an
experience, an
 event, or a cultural phenomenon
5. Copying, restoring, and recirculating a work or part of a work for purposes of
launching a discussion
6. Quoting in order to recombine elements to make a new work that depends for its
meaning on (often
unlikely) relationships between the elements

LIMITATIONS ON COPYRIGHT

Sec. 184 of Intellectual Property Code -

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 (ex.

quotations from newspaper articles and periodicals in the form of
press summaries)
-if they are compatible with fair use and only to the extent
justified for the purpose,

- 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 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 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.

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

specialized format exclusively for the use of the blind, 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.

Sec. 216. Infringement. – A person infringes a right protected under this Act
when one:

(a) Directly commits an infringement;

(b) Benefits from the infringing activity of another person who commits an
infringement if the person benefiting 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.

CRIMINAL PENALTIES

217.1. Any person infringing any right secured by provisions of

Part IV of this Act or aiding or abetting such infringement shall
be guilty of a crime punishable by:

(a) Imprisonment of 1-3 years + P50k - P150K for first offence

(b) Imprisonment of 3 years and 1 day - 1 day to 6 years +

P150k -P500k fine for the second offense.

(c) Imprisonment of 6 years and 1 day to 9 years + P500k -

P1.5M fine for the third and subsequent offenses.

(d) In all cases, subsidiary imprisonment in cases of

insolvency.

FILSCAP
Filipino Society of Composers, Authors and Publishers

- oversees licensing application of entities who want

to use the music created by artists and composers.
Through this organization, you can get the popular music you want for
whatever commercial purpose you need.

From Intellectual Property Code:

Sec. 183. Designation of Society. The owners of copyright and related
rights or their heirs may designate a society of artists, writers,
composers, and other right-holders to collectively manage their
economic or moral rights on their behalf. For the said societies to
enforce the rights on their members, they shall be first secure the
necessary accreditation from the Intellectual Property Office. (Sec. 32.
P.D No. 49a)
FILSCAP is responsible for protecting around 20 million foreign and local songs from
being exploited by numerous parties. If you’re going to use copyrighted music for the
following reasons, then you have to approach the group:
• Online content.
• Concerts and events
• Bars, clubs, lounges, and KTVs
• Mall and retail
• Hotel, casino, and resorts
• Restaurants and cafes
• Spas, gyms, salons, and clinics
• Dance schools and studios
• Amusement areas
• Music on-hold.
• Transport
• Hospitals
• Cinemas
• Radios
• Cable TVs
• Terrestrial TVs

MORAL RIGHTS

“Moral Rights” under the Intellectual Property Code is not concerned

with ‘morality’ in the traditional sense of that word.

Copyright is largely concerned with the economic rights of creators, or

the rights that usually have economic consequences: the right to copy,
the right to perform in public etc.

In contrast, the moral rights recognise the connection between a creator

and his or her work. They are concerned with whether the creator has
been properly linked with the work and whether the work has been
treated with dignity (or at least not in a derogatory way). These only
affect the creator’s ability to make money from the work indirectly.

SECTION 193. 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:

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
prominent way on the copies, and in connection with the public use of his work;

193.2. To make any alterations of his work prior to, or to withhold it from
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 reputation; and [Ex. changing a painting to make it obscene will
damage the reputation of the painter and violate his moral rights.]

193.4. 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. 34, P.D. No. 49)

Term of Moral Rights. –

The right of an author under Section 193.1 (right of attribution) shall last during the
lifetime of the author and in perpetuity after his death.
The rights under Section 193.2. 193.3 and 193.4 shall be coterminous with the
economics rights.

[193.2. To make any alterations of his work prior to, or to withhold it from 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 reputation; and [Ex. changing a painting to make it obscene will damage the
reputation of the painter and violate his moral rights.].

193.4. 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. 34, P.D. No. 49)]

The moral rights 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 a written instrument which shall 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.
To make matters worse, if the journalist promised confidentiality to a source but then discloses
the source’s identity without consent, he could be liable for breach of contract. Contracts do
not have to be in writing, so a verbal promise can count as a promise.

- means the theft of another person's language, thoughts, or ideas.

- principle: credit should be given where it is due

- is the "deliberate and knowing presentation of another person's original

ideas or creative expressions as one's own."

- presupposes intent and a deliberate, conscious effort to steal another's

work and pass it off as one's own.

- If negligence, or good faith/honest mistake can be established, there

can be no finding of plagiarism.

Copyright Infringement v Plagiarism

To make matters worse, if the journalist promised confidentiality to a source but then discloses
the source’s identity without consent, he could be liable for breach of contract. Contracts do
not have to be in writing, so a verbal promise can count as a promise.
Copyright is a legal issue involving the use of material, and plagiarism is an
issue involving proper credit.

For example, if a student quotes a paragraph from a book for a paper he is

writing, and he fails to note the source of the material, he has engaged in
plagiarism (taking another’s material without properly crediting it), but not
copyright infringement (because it would probably be a fair use).

If one cuts-and-pastes an entire article from the New York Times and posts it on
a blog, noting that the article came from the New York Times, one has infringed
the Times’s copyright (because it is probably not a fair use), but has not
plagiarized (because the origin was properly credited).
However, if someone took that article and tried to pass it off as his own material,
then he would have both infringed the copyright and plagiarized. That person
could be sued for copyright infringement, and plagiarism.
Question: Is Plagiarism a crime under Philippine laws?
Answer: Plagiarism per se, does not in itself result in a criminal violation,
unless it also constitutes copyright infringement.

Plagiarism is punishable as a crime if it was committed with deliberate intent

and amounts to copyright infringement under the Intellectual Property Code
(IPC).

If copyright infringement was committed, the violator can be held liable under
the IPC; in addition, he/she can also be held liable under

(1) Republic Act No. 10175 (the "Cybercrime Prevention Act" of 2012), if
the plagiarism was committed through an information and communications
technology network or facility like the internet, and/or

(2) Republic Act No. 8792 ("E-Commerce Act”), if the plagiarism takes the
form of "online piracy" as described in Section 33 (b) of the law.