FREQUENTLY ASKED QUESTIONS ON COPYRIGHTS
What is a copyright?
A copyright is the legal right given to authors and owners of artistic and literary works.
Should copyright be registered?
Copyright protection is obtained automatically upon the creation of copyrightable work. However, there are advantages to registering one’s copyright. Being an official public record, copyright registration easily establishes one’s ownership over a copyright. As such, a copyright registration helps facilitate transactions involving the ownership and transfer of the copyright such as sale, assignment and licensing. Moreover, in an action involving copyright infringement, the copyright registration is evidence that copyright subsists in the work and that the public is notified thereof.
How is copyright registered?
The owner of the copyright may file an application for issuance of certificate of registration and deposit of copies or reproduction of the works with the Copyright Division of the National Library and the Supreme Court Library. This may also be done through the Bureau of Copyright and Related Rights of the Intellectual Property Office.
What are the requirements for copyright registration and deposit?
The requirements for copyright registration in the Philippines are as follows:
(a) Duly accomplished registration and deposit form
(b) Document evidencing ownership of the copyright or the manner of its acquisition usually in the form of an affidavit
(c) Document evidencing identity of the applicant
i. If the applicant is a natural person, either one current identification document issued by an official agency bearing the photograph and signature of the individual; or oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of any two credible witnesses neither of two whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification.
ii. If the applicant is a juridical person, a certificate of registration issued by the Securities and Exchange Commission or Department of Trade and Industry.
(d) Special Power of Attorney, Corporate Secretary’s Certificate or Board Resolution
(e) Payment of filing fee
(f) Two (2) original copies of the work covered by copyright
What rights are included in copyright?
Copyright includes both economic rights and moral rights.
Economic rights consist of the exclusive right to carry out, authorize and prevent
(a) reproduction of the work or substantial portion of the work;
(b) dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work;
(c) the first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
(d) 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;
(e) public display of the original or a copy of the work;
(f) public performance of the work; and
(g) other communications to the public of the work (Sec. 177, IP Code)
On the other hand, moral rights include the following rights:
(a) to require the authorship of the works be attributed to the author, 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;
(b) to make any alterations of his work prior to, or to withhold it from publication;
(c) to object to any distortion, mutilation or modification of or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and
(d) 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, IP Code)
What works can be protected by copyright?
Both original and derivative works are protected under copyright law. Original works are intellectual creations in the literary and artistic domain includes but are limited to (a) books, pamphlets, articles and other writings; (b) periodicals and newspapers; (c) lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form; (d) letters; (e) dramatic or dramatic-musical compositions; choreographic works or entertainment in dumb shows;(f) musical compositions, with or without words; (g) works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art; (h) original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art; (i) illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science; (j) drawings or plastic works of a scientific or technical character; (k) photographic works including works produced by a process analogous to photography; lantern slides; (l) audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings; (m) pictorial illustrations and advertisements; (n) computer programs; and (o) other literary, scholarly, scientific and artistic works (Sec. 172, IP Code).
Derivative works, on the other hand, include (a) dramatizations, translations, adaptations, abridgements, arrangements, and other alterations of literary music work; and (b) collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents (Sec. 173, IP Code).
What works are not protected by copyright?
No copyright protection extends to any idea, procedure, system method or operation, concept or principle, discovery or mere data, news, miscellaneous facts, or any official text of a legislative, administrative or legal nature including official translations thereof (Sec. 175, IP Code).
Who owns the copyright?
Copyright of original literary and artistic works shall belong to the author of the work (Sec 178.1, IP Code).
In case of works of joint authorship, the co-authors shall be the original owners of the copyright and in absence of agreement, their rights shall be governed by the rules on co-ownership. If, however, a work of joint authorship consists of parts that can be used 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 (Sec. 178.2, IP Code).
If a work is created by an author in the course of his employment, the copyright shall belong to the employee, if the creation of the object of copyright is not part of his regular duties even if the employee uses the time, facilities and materials of the employer. On the other hand, if the work is the result of the performance of his regularly-assigned duties, copyright shall belong to the employer, unless there is an agreement to the contrary that is express or implied (Sec. 178.3, IP Code).
In case of audiovisual work, the copyright shall belong to the producer, the author of the scenario, the composer of the music, the film director, and the author of the work so adapted. However, subject to the contrary or other stipulations among the creators, the producers shall exercise the copyright to an extent required for the exhibition of the work in any manner, except for the right to collect performing license fees for the performance of musical compositions, with or without words, which are incorporated into the work (Sec. 178.5, IP Code).
In case of letters, the copyright shall belong to the writer and may not be published or disseminated without the consent of the writer or his heirs. Ownership of the letters and other private communications in writing belong to person to whom they are addressed and delivered (Sec. 178.6, IP Code in relation to Article 723 of the Civil Code).
How long does copyright protection last?
Generally, copyright protection lasts during the life of the author and for fifty (50) years after his death (Sec 213.1, IP Code). 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 (Sec 213.2 IP Code). 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, copyright protection shall last during the life of the author and for fifty (50) years after his death or in case 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; Provided further, that such works if not published before, shall be protected for fifty (50) years counted from making of the work (Sec 213.3, IP Code).
In case of works of applied art, the protection shall be for a period twenty-five (25) years from the date it was made (Sec. 213.4, IP Code).
In case of photographic works and audio visual works including those produced by process analogous to photography or any process for making audio-visual recordings, protection shall be for fifty (50) years from publication of the work and if unpublished, fifty (50) years from the making (Sec 213.5 and 213.6, IP Code).
In case of sound recordings, rights granted by the Intellectual Property Code to performers and producers of sound recordings expire after the lapse of fifty (50) years from the end of the year in which the performance took place; and in cases of sound or image and sound recordings and for performances incorporated therein, fifty (50) years from the end of the year in which the recording took place (Sec 215.1, IP Code).
In case of broadcasts, the term shall be twenty (20) years from the date the broadcast took place (Sec 215.2, IP Code).
What is the term for moral rights?
The right of the author to require that authorship of the works be attributed to him shall last during his lifetime and in perpetuity after his death. The moral rights to make alterations of this work prior to, or to withhold it from publication; to object to any distortion, mutilation or other modification of, or other derogatory action in relation to his work which will be prejudicial to his honor and reputation and the moral right 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 shall be coterminous with the economic rights (Sec. 198.1, as amended by R.A. 10372),
What acts are considered infringement of copyright?
Any violation of the economic and moral rights provided by the Intellectual Property Code is considered copyright infringement.
A person who at the time when copyright subsists in a work has in his possession an article which he knows, or ought to know, to be an infringing copy of the work for the purpose of (a) selling or letting for hire, or by way of trade offering or exposing for sale or hire, the article; (b) distributing the article for the purpose of trade, or for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or (c) trade exhibit of the article in public is liable for copyright infringement (Sec. 217.3, IP Code).
What are the remedies available to the owner for copyright infringement?
The copyright owner may request the courts to issue an injunction order restraining the acts of infringement, ordering the violator to desist from the infringement and preventing the importation of infringing goods.
The courts may also require the impounding of sales invoices, other documents evidencing sales, all infringing articles and their packaging and implements for making them and require the destruction of the infringing items.
The infringer may also be ordered to pay the copyright owner actual damages, including legal costs and expenses arising from the infringement, as well as the profits. The amount of damages is doubled against any person who circumvents effective technical measures or having reasonable grounds to know that it will induce, enable, facilitate or conceal the infringement, remove or alter any electronic rights management information from a copy of a work, sound recording, or fixation of a performance, or distribute, import for distribution, broadcast or communicate to the public works or copies of works without authority, knowing that electronic rights management information has been removed or altered without authority.
The copyright owner may elect, at any time before final judgement is rendered, to recover instead of actual damages and profits, an award of statutory damages for all infringements involved in an action. In awarding statutory damages, the court may consider the: (1) nature and purpose of the infringing act; (2) flagrancy of the infringement; (3) whether the defendant acted in bad faith; (4) need for deterrence; (5) any loss that the plaintiff has suffered or is likely to suffer by reason of the infringement; and (6) any benefit shown to have accrued to the defendant by reason of the infringement (Sec. 216.1, IP Code as amended by R.A. 10372).
In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings (Sec. 216.2, IP Code).
What are the criminal penalties for copyright infringement?
Any person found guilty of copyright infringement shall be punished by imprisonment of one (1) year to (3) years plus a fine ranging from Fifty Thousand (Php 50,000) to One Hundred Fifty Thousand Pesos (Php 150,000.00) for the first offense, imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from One Hundred Fifty Thousand Pesos (Php 150,000.00) to Five Hundred Thousand Pesos (Php 500,000) for the second offense and imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from Five Hundred Thousand Pesos (Php 500,000) to One Million Five Hundred Thousand Pesos (Php 1,500,000.00) for the third and subsequent offenses. Subsidiary imprisonment in cases of insolvency may be imposed (Sec. 217.1, IP Code).
What are the limitations on copyright?
The following acts shall not constitute infringement of copyright:
(a) 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) 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) 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) 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) 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) 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) Making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;
(h) 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) 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) Reproduction or distribution of published articles 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. 184.1, IP Code as amended by R.A. 1037)
What acts are considered fair use of copyrighted work?
Fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood to be the reproduction of the code and translation of the forms of a computer program to achieve the interoperability of an independently created computer program with other programs, may also constitute fair use, to the extent that such decompilation is done for the purpose of obtaining the information necessary to achieve such interoperability.
In determining whether the use made of a work in any particular case constitutes fair use, the factors to be considered may include:
(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education 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 (Sec. 185, IP Code).