Bar Q and A #46

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1.) What intellectual property rights are protected by the copyright?

Copyright protects copyright or economic rights which consist of the exclusive right to carry out, authorize, or prevent the following:

a. reproduction of the work or substantial portion of the work;
b. dramatization, translation, adaptation, abridgment, 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 communication to the public of the work. (Sec. 177, Intellectual Property Code)

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2.) TRUE or FALSE. News reports are not copyrightable.

True, news reports are not subject to copyright by express provision of the law. It is the expression of the news that is copyrightable.

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3.) Diana and Piolo are famous personalities in show business who kept their love affair secret. They use a special instant messaging service which allows them to see one another’s typing on their own screen as each letter key is pressed. When Greg, the controller of the service facility, found out their identities, he kept a copy of all the messages Diana and Piolo sent each other and published them. Is Greg liable for copyright infringement? Reason briefly.

YES. The messages which Diana and Pablo sent each other fall under the category of letters as provided in Sec. 172.1.d which provides that literary and artistic works, hereinafter referred to as “works,” are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular, among others, letters. Infringement of such consist in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright. Reproduction and first public distribution of the work are economic rights of the authors of the work. Such cannot be done by the person not the author of the work. In this instance, Greg is not the owner of the messages. He merely copied it without the consent of the authors thereof and subsequently published the same in violation of the latter’s economic rights.

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4.) Felix copyrighted the oil painting showing the oath taking of Pres. C. Aquino and Vice-President S. Laurel after the EDSA revolution. Val engaged an artist to paint the same scene for use as picture postcards. Val then started sending the picture postcards to his friends abroad. Is there a violation of Felix’s copyright? Reasons.

While Felix can have a copyright on his own painting which is expressive of his own artistic interpretation of the event he has portrayed, the scene or the event itself however, is not susceptible to exclusive ownership.

Accordingly, there would be no violation of Felix’s copyright if another painter were to do the similar work.

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5.) Solid Investment House commissioned Mon Blanco and his son Steve, both noted artists, to paint a mural for the Main Lobby of the new building of Solid for a contract price of P2M. a. Who owns the mural? Explain. b. Who owns the copyright of the mural? Explain.

a. The mural is owned by Solid. It commissioned the work and paid Mon and Steve Blanco P2M for the mural.

b. Even though Solid owns the mural, the copyright of the mural is jointly owned by Mon and Steve, unless there is a written stipulation to the contrary (Sec. 178.4, IPC).

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6.) BR and CT are noted artists whose paintings are highly prized by collectors. Dr. DL commissioned them to paint a mural at the main lobby of his new hospital for children. Both agreed to collaborate on the project for a total fee of 2 million Pesos to be equally divided between them. It was also agreed that Dr. DL had to provide all the materials for the painting and pay for the wages of technicians and laborers needed for the work on the project. Assume that the project is completed and both BR and CT are fully paid the amount of P2M as artists' fee by DL. Under the law on intellectual property, who will own the mural? Who will own the copyright in the mural? Why? Explain.

According to Sec. 178.4 of the IPC, when the work is commissioned by a person other than an employer of the author, the owner of the work shall be the one who commissioned the work, but the copyright of the work shall be owned by the person who is responsible for its creation, unless there is a written stipulation to the contrary. Hence, DL owns the mural while both BR and CT jointly own the copyright thereto. This is so because the mural was commissioned by DL and a consideration was paid to BR and CT in exchange thereof.

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7.) Eloise, an accomplished writer, was hired by Petong to write a bimonthly newspaper column for Diario de Manila, a newly- established newspaper of which Petong was the Editor-in-chief. Eloise was to be paid P1,000.00 for each column that was published. In the course of two months, Eloise submitted three columns which, after some slight editing, were printed in the newspaper. However, Diario de Manila proved unprofitable and closed only after two months. Due to the minimal amounts involved, Eloise chose not to pursue any claim for payment from the newspaper, which was owned by New Media Enterprises. Three years later, Eloise was planning to publish an anthology of her works, and wanted to include the three columns that appeared in the Diario de Manila in her anthology. She asks for your legal advice: a. Does Eloise have to secure authorization from New Media Enterprises to be able to publish Diario de Manila columns in her own anthology? Explain fully. b. Assume that New Media Enterprises plans to publish Eloise’s columns in its own anthology entitled, “The best of Diario de Manila.” Eloise wants to prevent the publication of her columns in that anthology since she was never paid by the newspaper. Name one irrefutable legal argument Eloise could cite to enjoin New Media Enterprises from including her columns in its anthology.

a. NO. In the case of a work commissioned by a person other than an employer of the author and who pays for it and the work is made in pursuance of the commission, the person who so commissioned the work shall have ownership of work, but the copyright thereto shall remain with the creator, unless there is a written statement to the contrary. (Sec 178.4, IPL) Thus, though Diario de Manila commissioned the work, it cannot be considered as its owner because it did not pay Eloise. Ownership and copyright still belong to Eloise. Authorization is no longer needed to publish Diario de Manila in her anthology because Eloise has moral and economic rights over her works.

b. The fact that Eloise was not paid, ownership over her work, published in the newspaper, did not vest upon the latter. She retains full moral and economic rights over it.

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8.) In 1999, Mocha Warm, an American musician, had a hit rap single called Warm Warm Honey which he himself composed and performed. The single was produced by a California record company, Galactic Records. Many noticed that some passages from Warm Warm Honey sounded eerily similar to parts of Under Hassle, a 1978 hit song by the British rock band Majesty. A copyright infringement suit was filed in the United States against Mocha Warm by Majesty. It was later settled out of court, with Majesty receiving attribution as co- author of Warm Warm Honey as well as share in the royalties. By 2002, Mocha Warm was nearing bankruptcy and he sold his economic rights over Warm Warm Honey to Galactic Records for $10,000. In 2008, Planet Films, a Filipino movie producing company, commissioned DJ Chef Jean, a Filipino musician, to produce an original re-mix of Warm Warm Honey for use in one of its latest films, Astig!. DJ Chef Jean remixed Warm Warm Honey with a salsa beat, and interspersed as well a recital of a poetic stanza by John Blake, a 17th century Scottish poet. DJ Chef Jean died shortly after submitting the remixed Warm Warm Honey to Planet Films. Prior to the release of Astig!, Mocha Warm learns of the remixed Warm Warm Honey and demands that he be publicly identified as the author of the remixed song in all the CD covers and publicity releases of Planet Films. a. Who are the parties or entities entitled to be credited as author of the remixed Warm Warm Honey? Reason out your answers. b. Who are the particular parties or entities who exercise copyright over the remixed Warm Warm Honey? Explain.

a. Mocha Warm, Majesty and Chef Jean are entitled to be credited as authors of the remixed Warm Warm Honey, because it is their joint work. Mocha Warm retained his moral right to be credited as an author of the remixed Warm Warm Honey despite the sale of his economic rights to Galactic Records, because his moral rights exist independently of his economic rights. John Blake cannot be credited for the use of his work because copyright extends only during the lifetime of the author and 50 years after his death.

b. The copyright over the remixed Warm Warm Honey belongs to Galactic records, Majesty, and Chef Jean. The copyright of Mocha Warm belongs to Galactic Records, because he assigned it to Galactic Records. Majesty also has a copyright, because it is a co- author. The copyright of Chef Jean belongs to him even if his work was commissioned by Planet Firm, because the copyright remained with him.

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9.) Rudy is a fine arts student in a university. He stays in a boarding house with Bernie as his roommate. During his free time, Rudy would paint and leave his finished works lying around the boarding house. One day, Rudy saw one of his works -an abstract painting entitled Manila Traffic Jam - on display at the university cafeteria. The cafeteria operator said he purchased the painting from Bernie who represented himself as its painter and owner. Rudy and the cafeteria operator immediately confronted Bernie. While admitting that he did not do the painting, Bernie claimed ownership of its copyright since he had already registered it in his name with the National Library as provided in the Intellectual Property Code. Who owns the copyright to the painting? Explain.

Rudy owns the copyright to the painting because he was one who actually created it (Sec. 178.1 of the IPC). His rights existed from the moment of its creation. (Sec. 172; Unilever Philippines (PRC) v. CA, 498 SCRA 334, 2006)

The registration of the painting by Bernie with the National Library did not confer copyright upon him. The registration is merely for the purpose of completing the records of the National Library. (Section 191)

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10.) X copyrighted a scientific research paper consisting of 50 pages dealing with the Tasadays. Y wrote a 100-page review of X’s paper criticizing X’s findings and dismissing X’s story as a hoax. Y’s review literally reproduced 90% of X’s paper. Can X sue Y for infringement of his copyright?

The Copyright Law provides that to an extent compatible with fair practice and justified by scientific, critical, informatory or educational purpose, it is permissible to make quotations or excerpts from a work already made accessible to the public. Such quotations may be utilized in their original form or in translation. Viewed from the foregoing, a review by another that “literally reproduced 90%” of the research work done by X may no longer be considered as fair play, and X can sue Y for the violation of the copyright.

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