Sir, I am so sorry for posting this late. Better late than never as they say and I must admit, I was comforted by, “see you all in the corridor.”
Last week, it was unfortunate that I had to miss classes to attend and host a wedding of a very close family friend. It was a hard decision to make but I chose to go home to my home province and take the opportunity to visit my dad as well who is undergoing dialysis.
If someone miss classes in Technology and the Law class under Atty. Berne Guerrero, it is hard to catch up because he can discuss so much in one meeting so I am anxious to start this blog as I am not sure if I understood very well what I have to write. Anyway, here it goes..
We discussed about libel, which later was correlated to the topic of copyright. If an artist paints a mural and we take a picture of it as a background, is there infringement? If we see a painting and take a picture beside it and reproduce a copy, is there infringement? My answer is on the negative.
First, let me provide the law as stated in the Intellectual Property Code of the Philippines particularly in:
Sec. 184. Limitations on Copyright. -
• 184.1. Notwithstanding the provisions of Chapter V, 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; (Sec. 10(1), P. D. No. 49)
◦ (b) The 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; (Sec. 11, Third Par., P. D. No. 49)
◦ (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; (Sec. 11, P. D. No. 49)
◦ (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; (Sec. 12, P. D. No. 49)
◦ (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; (n)
◦ (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.
• 184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder's legitimate interest.
Sec. 185. Fair Use of a Copyrighted Work. -
• 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall 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.
185.2 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.
I invoke Sec.184(d), as my basis and Sec.185 on Fair Use of a Copyrighted Work. The only thing I see that can create infringement is when a person takes photos of these paintings and claims it to be their own creation. The provision of the IP Code as hereunder provided would tell us that infringement will only take place if a copyrighted work would be exhibited as the infringer's work and subsequently the latter is being benefited by it by profiting from the said work. Section 216 of the IP Code provides:
Sec. 216. Remedies for Infringement. -
- 216.1. Any person infringing a right protected under this law shall be liable:
- (a) To an injunction restraining such infringement. The court may also order the defendant to desist from an infringement, among others, to prevent the entry into the channels of commerce of imported goods that involve an infringement, immediately after customs clearance of such goods.
- (b) Pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to the infringement as well as the profits the infringer may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall appear to be just and shall not be regarded as penalty.
- (c) Deliver under oath, for impounding during the pendency of the action, upon such terms and conditions as the court may prescribe, sales invoices and other documents evidencing sales, all articles and their packaging alleged to infringe a copyright and implements for making them.
- (d) Deliver under oath for destruction without any compensation all infringing copies or devices, as well as all plates, molds, or other means for making such infringing copies as the court may order.
- (e) Such other terms and conditions, including the payment of moral and exemplary damages, which the court may deem proper, wise and equitable and the destruction of infringing copies of the work even in the event of acquittal in a criminal case.
216. 2. 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.
As provided above, the remedies for infringement would involve restraint on the part if the infringer to continue profiting from the work. Also sales invoice has been repeated in the said provision which would only mean that the work must have been sold by the infringer. In the case at hand, there is no disposition involved but merely a reproduction of the mural.
Lastly, I would like to point out that once a copyrighted material has been released to the public, it redounds to public ownership in that the public has an interest now to the said work of art and no person can be subjected to the penalties of infringement because after the first disposition for profit of said work of art, subject to limitations as provided by law, the said person may use the said work. As my final note, there is no need in the case at bar of citing the author of the mural. Some works of Art is very famous that there is no need to put a caption as to who is the painter of it such as the works of Leonardo da Vinci, Juan Luna and many more.
Hence, I submit that there is no infringement in the case at hand.
