Group 3

Members:

Bato, Mohammad Sowaib L.

Belangdal, Victorino

Chaves, Consuelo G.

Lagcao, Florence

Mapandi Farhanna B.

Macauyag –Gandamra Ralyn

Pacuribot, Jemima G.

Pangilinan, Ana Clarisa R.

Roa, Honney

Talon, Sittie Nashiba D.

Vallejo-Gambe (mag ask pko sa fullname ni sweet)

Case 1: Tylor Swift withdraw her music from spotify because she was not paid royalties and for some reason that managing director does not paid much during trial period.they used to not paid the artist during trial period and screening. Downloading the music.

Is an artist entitled to royalties from the screening of his work.

What are the rights that attached to a copyright?

Case 2: Is the teachers’ lecture protected under the copy law. if I tell you not to record my lecture but you record it anyway what is the strict provision of the law. How are my rights violated.

When rights are conferred?

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. 172.2)

Rights conferred by copyright:

1. Copyright or Economic rights (Sec. 177);2. Moral Rights (Sec. 193);3. Right to participate in the gross proceeds of the sale or lease of the

original work or droit de suite (Sec. 200)

A. COPYRIGHT or ECONOMIC RIGHTS – is the exclusive right to carry out, authorize and prevent anything that has to do with the work.

The following are the prevented acts:

1. Reproduction of the work or substantial portion of the work;-A work is reproduced when its expression is copied or

duplicated.

5 EXCLUSIVE RIGHTS: (1) reproduce, (2) distribute, (3) perform, (4) display, and (5) prepare derivative works based upon copyrighted

works

2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;

Article 12 of the Berne –Paris Convention guarantees authors of literary or artistic works the exclusive right of authorizing adaptations, arrangements and other alterations of their works.

Requisites for SUBSTANTIAL VARIATION1. work: must borrow original & expressive content from another

work2. work: recast, adopt or transform in any manner the original

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

FIRST SALE DOCTRINE –1. Copyright holder has the exclusive right to control the first

public distribution of the original and each copy of the work2. by sale or other forms of transfer of ownership3. But this right is exhausted – after such first sale or transfer of ownership (only exhausts DISTRIBUTION RIGHT)

IN EFFECT: the OWNER of the LAWFULLY ACQUIRED origal or copies of the work: may dispose of em in any manner w/o any liability to the copyright proprietor.

4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental;

Rental –transfer of the possession of the original or a copy of a work for a limited period of time, for profit –making purposes. (Sec 171.8)

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

Public display – seen by substantial number of persons outside of the normal circle of family and social acquaintances

6. Public performance of the work; and

Public Performance:a. To perform it in a place open to the public or at any

place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. (Boofstyn, 107)

Does copyright owner have right to stop import? YES, NEGATIVE RIGHT.

7. To transmit or otherwise communicate a performance of the work to a place specified above or to the public, by means of any device or processes, whether the members of the public capable of receiving the performance receive it in the same place or in separate places and at the same time or at different times. (Boofstyn, 107)

8. Other communication to the public of the work (Sec. 177)

9. Assignment of the copyright and/ or the material object in whole or in part.

Economic rights allows the owner to derive financial reward from the use of his works by others (WIPO, Understanding Copyright and Related Rights, p.9).

B. MORAL RIGHTS - Rights granted to the owner of a copyright, independent of his economic (copyright) rights and of any assignment or license.

Nature of the moral rights.These are personal rights independent from the economic rights. Being a personal right, it can only be given to a natural person. Hence, even if he has licensed or assigned his economic rights, he continues to enjoy the above‐mentioned moral rights. (Amador, Intellectual Property Fundamentals, 2007)

Moral rights of a copyright:

1. Rights of Paternity –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;(Sec. 193.1)

2. To make any alterations of his work prior to, or to withhold it from publication; ;(Sec. 193.2)

3. Rights of integrity –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; (Sec. 193.3) 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. 193.4)

a. The rights are distinct from economic rights and remain with the author even after he has transferred or assigned to anther “other rights of copyright” (WIPO, 215).

b. Moral rights allow the author to take certain actions to preserve the personal link between himself and the work (WIPO, Understanding Copyright and Related Rights, p.9).

EXCEPTIONS TO THE MORAL RIGHTS

1. Absent special contract at the time creator licenses/permits another to use his work, the following are deemed NOT to contravene creator’s moral rights, provided they are done in accordance w/ reasonable customary standards or requisites of the medium:

a. Editingb. Arrangingc. Adaptationd. Dramatizatione. Mechanical and electrical reproduction

2. Complete destruction of work unconditionally transferred by creator.

WAIVER OF MORAL RIGHTS

General Rule: Moral rights can be waived in writing, expressly so stating such waiver.

Exceptions: Even if writing, waiver is still not valid if:

a. use the name of author, title of his work, or his reputation w/ respect to any version/adaptation of his work, which because of alterations, substantially tend to injure literary/artistic reputation ofanother author

b. use name of author in a work that he did NOT create

TERM OF MORAL RIGHTS - during the lifetime of the author and fifty (50) years after the death of the author.1. Post-humous enforcers shall be named in writing to be filed in the National Library.2. Moral rights are not assignable or subject to license. [Sec. 198, RA 8293]3. Damages can be recovered under the Civil Code for violation of moral rights.4. It provides the same rights and remedies as a copyright owner.

If creator contributes work to a collective work, the general rule is that he has waived his right of attribution unless the creator expressly reserved such right.

Collective work means there is an agreement whereby the authors bound themselves not to be identified with the work.

C. Rights to Proceeds in Subsequent Transfers (Droit de Suite or Follow Up Rights)

In every sale or lease of an original work of painting or sculpture or of the original manuscript of a writer or composer, subsequent to the first disposition thereof by the author, the author or his heirs shall have an inalienable right to participate in the gross proceeds of the sale or lease to the extent of five percent (5%).[Sec. 200, RA 8293]

Works not Covered: Prints, etchings, engravings, works of applied art, or works of similar kind wherein the author primarily derives gain from the proceeds of reproductions. [Sec. 201, RA 8293]

First Sale Doctrine:

After the first sale of the lawfully made copy of the copyrighted work, anyone who is the owner of that copy can sell or dispose of that copy in any way without any liability for copyright infringement. The first sale of an authorized copy of the work exhausts the author‘s right to control distribution of copies. [US Jurisprudence; UP Law 2011 Reviewer]

In the case of Tylor Swift, her rights to proceeds in subsequent transfers (Droit de Suite or Follow Up Rights) is violated. In order to invoke this right the following requisites must be present:

1. Sale or lease of the work;2. Original work;3. Painting or sculpture, or manuscript; and4. Subsequent to the first disposition by the author.

In the case at bar, there is trial screening and sale of her music, the music is her original work, she compose the music and there is subsequent distribution through spotify after first disposition of her music. The requisites of Droit de Suite is present in the case at bar. Therefore, she has an inalienable right to receive to the extent of five percent 5% of the gross proceeds of sale or lease of her work. Her withdrawal from spotify is justified.

Case No. 2:

WORKS THAT CAN BE PROTECTED BY COPYRIGHT

A. Original WorksB. Derivative Works

WORKS shall be protected:(a) by the sole fact of their creation, not registration(b) irrespective of their mode or form of expression, content, quality

and purpose

A. Original Works

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

In order to prove infringement, must show: (1) defendant: had access to the copyrighted work(2) substantial similarity between the two works

-it matters not whether the works are published or not, whether they be in verbal or numerical symbol.(Intellectual Property Law, Comments and Annotations, Aquino, 2006)

(b) Periodicals and newspapers;

Do not apply sweat of the brow approach. If can’t avail of this: think unfair competition.

-the journal of the Integrated Bar of the Philippines, as a journal, enjoys copyright protection.(ibid)

A writer, artist or photograph who submits a work to a newspaper or periodical editor for publication thereby licenses such editor to publish the work only once unless more ample provision is otherwise made. While the work may then belong to the newspaper or the periodical, copyright is not comprehensively transferred by license for a single publication.(by virtue of Sec. 188.3)

A pure news report no longer finds protection under the new law, But a column or published comment will. When newspapers and periodicals include works enjoying independent copyrights, the works so included continue enjoying the rights for duration proper to the.

(c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;

Must be for Oral delivery.To be free, Use justified by informatory purpose.

(d) Letters;Expressive content = subject of copyrightunpublished letters: protected from fair use copying

“Letters and other private communications in writing are owned by the person to whom they are addressed or delivered, but they

cannot be published or disseminated without the consent of the writer of his heirs. (Art. 723, NCC)

The physical object –the letter –is owned by the addressee to whom the letter is sent; but copyright thereto is enjoyed by the sender.

(e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;

Must consist of a plot and incident and characters.Do not include social dance steps & simple routines.

Examples: Plays, operas, ballets, musicals, etc.

(f) Musical compositions, with or without words;

Elements of originality: melody, rhythm, and harmony Protects: artistic whole of music and words alone or music alone; 2-4 bars constitute protectible expressionSimilarity of (1) ideas: objective(2) expression: impact to a reasonable person

(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;

Works of applied art – (example: animal styled duffle bags)1. artistic creation with utilitarian functions or incorporated in a

useful article2. whether made by hand or produced on an industrial scale

(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science;

Must have an indicum of creativity.

What is copyrightable in a map is the selection, arrangement and presentation of the component parts. (intellectual Property Law, Comments and Annotations, 2006)

(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;

Whether in print or negative form.Including filmstrips, slide films and individual slidesPrecludes any other unauthorized copying by photocopying, drawing or whatever.

(l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;

1. images2. give the impression of motion3. susceptible of being made visible or audible thru machines or devices

(m) Pictorial illustrations and advertisements;

Even without text, pictorial illustrations still protected.Ads: protected whether written or visual

(n) Computer programs; and

Protected whether source or object code

Computer programs –is a set of instructions expressed in words, codes, schemes or in any other form, which is capable, if incorporated in a medium that the computer can read, of causing the computer to perform or achieve a particular task or result.(Sec.171.4)

(o) Other literary, scholarly, scientific and artistic works.

B. Derivative Works

1. Dramatizations, translations, adaptations, abridgements, arrangements, and other alterations of literary or artistic

works;

2. 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)

Note: Derivative Works shall be protected as new works, provided that such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. (Sec. 173.2, IPC)

Limitations on Copyright

Doctrine of Fair Use The fair use of copyrighted work for criticism, news reporting, teaching (including multiple copies for classroom use), research and similar purposes is not an infringement of copyright.

A privilege, in persons other than the owner of the copyright, to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner by the copyright. It is meant to balance the monopolies enjoyed by the copyright owner with the interests of the public and of society.

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. [Sec 185.2, RA 8293]

Factors to consider in determining Fair Use

1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work [Sec. 185.1, RA 8293; [Harper & Row v. Nation Enterprise, 471 US 539, 105 S.Ct. 2218, 85 L.Ed.2d 588]

The following shall NOT constitute infringement of copyright:

a. Recitation or performance of a work once it has been made accessible to the public if (1) privately done AND free of charge OR (2) strictly for a charitable or religious institution; [Sec. 184.1(a), RA 8293]

b. Making of quotations from a published work: (i) compatible with fair use, (ii) extent is justified by the purpose, (iii) source and name of the author, appearing on work, must be mentioned; [Sec. 184.1(b), RA 8293]

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, delivered in public: (i) for information purposes, (ii) not expressly reserved, and (iii) source is already indicated; [Sec. 184.1(c), RA 8293]

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; [Sec. 184.1(d), RA 8293]

e. Inclusion of a work in a publication, broadcast or other communication to the public, sound recording or film if made by way of illustration for teaching purposes compatible with fair use and the source and the name of the author appearing on work, must be mentioned; [Sec. 184.1(e), RA 8293]

f. Recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of schools, universities or educational institutions. Such recording must be deleted within a reasonable period; such recording may not be made from audio-visual works which are part of the general cinema, repertoire of feature films except of brief excerpts of the work; [Sec. 184.1(f), RA 8293]

g. Making of ephemeral recordings; (i) by a broadcasting organization, (ii) by means of its work or facilities, (iii) for use in its own broadcast; [Sec. 184.1(g), RA 8293]

h. Use made of a work by or under the direction or control of the government for public interest compatible with fair use; [Sec. 184.1(h), RA 8293]

i. Public performance or the communication to the public of a work in a place where no admission fee is charged by a club on institution for charitable or educational purpose only and the aim is not profit-making; [Sec. 184.1(i), RA 8293]

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 either the work has been published, sold, given away, or transferred to another

Copyright infringement

Infringement of Copyright and Related Rights means any violation of the rights under the Intellectual Property Code and/or the applicable Intellectual Property Law, including the act of any person who at the time when copyright subsists in a work has in his possession an article which he known, or ought to know, to be an infringing copy of the work for the purpose of:

a. Selling, letting for hire, or by way of trade offering or exposing for sale, or hire, the article

b. Distributing the article for 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. [Sec. 1(l), Rule 1, Rules and Regulations on Administrative Complaints for Violation of Laws involving Intellectual Property Rights]