THE FUTURE OF COPYRIGHT LAW IN THE PHILIPPINES

The Philippines rank low in innovative activities compared to other countries. Why? Some argued that this inevitably results from unaddressed challenges facing us, such as lack of governmental support and private sector participation, low investment levels, lack of qualified leaders and lack of technological transfer and commercialization. Authors agreed that, “a country’s growth and development depends to a great extent on its capacity to innovate, that is the ability to create and to utilized new and existing knowledge in novel and useful ways. Innovation is among the key indicators of a country’s competitiveness. I am in the position that our law with respect to innovation is indeed great. In fact, our laws are better than the best. Our real problem: We really don’t know the law! We pretend that we don’t know the law. And worst, we don’t want to know the law. Let me distinguish the different intellectual right that is being protected by our current law.Trademark, copyright and patents are different intellectual property rights that cannot be interchanged with one another. A trademark is any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods. Trademark is not merely a symbol of origin and goodwill; it is often the most effective agent for the actual creation and protection of goodwill. It imprints upon the public mind an anonymous and impersonal guaranty of satisfaction, creating a desire for further satisfaction. In other words, the mark actually sells the goods.28 [Schechter, supra. Trademarks have become products in their own right, valued as status symbols and indicators of the preferences and aspirations of those who use them,the mark has become the "silent salesman,".[1]In relation thereto, a trade name means the name or designation identifying or distinguishing an enterprise. Meanwhile, the scope of a copyright is confined to literary and artistic works which are original intellectual creations in the literary and artistic domain protected from the moment of their creation. Patentable inventions, on the other hand, refer to any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable[2].

There are the basic principles of our copyright law which supports my claim.  First, copyright, in the strict sense of the term, is purely a statutory right.  It is a new or independent right granted by the statute, and not simply a pre-existing right regulated by it.  Being a statutory grant, the rights are only such as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by the persons, and on terms and conditions specified in the statute.  Accordingly, it can cover only the works falling within the statutory enumeration or description.[3] Secondly, Copyright is vested from the moment of creation. This means that upon its creation, our law steps in and protects the work without any formalities. Thirdly, the protection extends only to the expression of an idea and not the idea itself. Thus, in case of Joaquin Jr. vs. Drillon[4], the court ruled that, the format or mechanics of a TV show is not copyrightable as copyright does not extends to ideas, procedures, processes, systems, methods of operation, concepts, principles of discoveries regardless of the form in which they are described, explained and illustrated. Lastly, the copyright is distinct from the property in material object subject to it.

AS A STATUTORY RIGHT: Being a mere statutory grant, rights are limited to what it confers. It may be obtained and enjoyed only with respect to the subjects and the persons and on terms and condition specified in the statute.  The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good.  It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines. “Intellectual property rights” have furthermore been defined under Section 4 of the Code to consist of: a) Copyright and Related Rights; b) Trademarks and Service Marks; c)    Geographic Indications; d) IndustrialDesigns; e) Patents; f) Layout-Designs (Topographies) of Integrated Circuits; and g)Protection of Undisclosed Information.[5] As the policy stands now, the State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided by law. These are the rights statutorily protected, to wit   (A) Books, including composite and cyclopedic works, manuscripts, directories, and gazetteers;  (B) Periodicals, including pamphlets and newspapers; (C) Lectures, sermons, addresses, dissertations prepared for oral delivery   (D) Letters;  (E) Dramatic or dramatico-musical compositions; choreographic works and entertainments in dumb shows, the acting form of which is fixed in writing or otherwise    (F) Musical compositions, with or without words;    (G) Works of drawing, painting, architecture, sculpture, engraving, lithography, and other works of art; models or designs for works of art;   (H) Reproductions of a work of art; (I) Original ornamental designs or models for articles of manufacture, whether or not patentable, and other works of applied art;   (J) Maps, plans, sketches, and charts; (K) Drawings or plastic works of a scientific or technical character;    (L) Photographic works and works produced by a process analogous to photography; lantern slides; (M) Cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;   (N) Computer programs; (O) Prints, pictorial illustrations advertising copies, labels, tags, and box wraps;    (P) Dramatizations, translations, adaptations, abridgements, arrangements and other alterations of literary, musical or artistic works or of works of the Philippine government as herein defined, which shall be protected as provided in Section 8 of this Decree.(Q) Collections of literary, scholarly, or artistic works or of works referred to in Section 9 of this Decree which by reason of the selection and arrangement of their contents constitute intellectual creations, the same to be protected as such in accordance with Section 8 of this Decree   (R) Other literary, scholarly, scientific and artistic works.

AS AUTOMATICALLY PROTECTED: Copyright is vests from the very moment of its creation. This is what we call the Principle of Automatic Protection. Under the Berne Convention, the enjoyment and exercise of copyright, including moral rights shall not be the subject of any formality. But before it can be protected, a person availing the said right must be its owner of the creation thereof. Thus in a case Chuan vs. CA[6], the Supreme court it ruled that a person to be entitled to a copyright must be the original creator of the work. He must have created it by his own skill, labor and judgment without directly copying or evasively imitating the work of another. Consequently, the grant of preliminary injunction in a case rests on the sound discretion of the court with the caveat that it should be made with extreme caution. Its grant depends chiefly on the extent of doubt on the validity of the copyright, existence of infringement, and the damages sustained by such infringement. In our view, the copies of the certificates of copyright registered in the name of Ceroilfood Shandong sufficiently raise reasonable doubt. With such a doubt, the preliminary injunction is unavailing.The prayer for a writ of preliminary injunction to prohibit Tan from using the cellophane wrapper with two-dragon device is denied, but the finding of the respondent appellate court that Ong’s copyrighted wrapper is a copy of that of Ceroilfood Shandong is SET ASIDE for being premature.

AS A UNIQUE CREATION: In the oft-cited case of Baker vs. Selden[7] wherein, the plaintiff held the copyright of a book which expounded on a new accounting system he had developed. The publication illustrated blank forms of ledgers utilized in such a system. The defendant reproduced forms similar to those illustrated in the plaintiff’s copyrighted book. The US Supreme Court ruled that: There is no doubt that a work on the subject of book-keeping, though only explanatory of well-known systems, may be the subject of a copyright; but, then, it is claimed only as a book. But there is a clear distinction between the books, as such, and the art, which it is, intended to illustrate. The mere statement of the proposition is so evident that it requires hardly any argument to support it. The same distinction may be predicated of every other art as well as that of bookkeeping. A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs or watches or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective, would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein. The copyright of the book, if not pirated from other works, would be valid without regard to the novelty or want of novelty of its subject matter. The novelty of the art or thing described or explained has nothing to do with the validity of the copyright. To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters patent, not of copyright. The claim to an invention of discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained; and a patent from the government can only secure it. In other words only the expression of an idea is protected by copyright, not the idea itself.  The implication of this attribute is that a second inventor is not restrain nor prohibited to express themselves, and not bother by the idea presented by the first inventor. The law on copyright therefore promotes a healthy environment for future inventors that they are still free at some extent to contribute in their own respective fields.

PROTECTS THE EXPRESSION: Protection extends only to the expression of an idea not the idea itself.What are the subjects therefore that this law protects?  Copyright, refers to finished works and not to concepts. The copyright does not extend to an idea, procedure, process, and system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work[8].What then is the subject matter of petitioners’ copyright? This Court is of the opinion that petitioner BJPI’s copyright covers audio-visual recordings of each episode of Rhoda and Me, as falling within the class of works mentioned in P.D. 49, §2(M), to wit:  Cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings. The copyright does not extend to the general concept or format of its dating game show. Accordingly, by the very nature of the subject of petitioner BJPI’s copyright, the investigating prosecutor should have the opportunity to compare the videotapes of the two shows.Mere description by words of the general format of the two dating game shows is insufficient; the presentation of the master videotape in evidence was indispensable to the determination of the existence of probable cause. As aptly observed by respondent Secretary of Justice:  A television show includes more than mere words can describe because it involves a whole spectrum of visuals and effects, video and audio, such that no similarity or dissimilarity may be found by merely describing the general copyright/format of both dating game shows.

These four principles which are embodied in our law on copyright symbolize perfection. It is not our law that is the problem. I believe we are the problem of this law. If only we learn to understanding it wholeheartedly, and its proper perspective, I believe that the law is still applicable in many years to come…

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[1]PRIBHDAS J. MIRPURI, petitioner, vs. COURT OF APPEALS, DIRECTOR OF PATENTS and the BARBIZON CORPORATION, respondents., G.R. No. 114508, 1999 Nov 19,

[2] ELIDAD C. KHO, doing business under the name and style of KEC COSMETICS LABORATORY, petitioner, vs. HON. COURT OF APPEALS, SUMMERVILLE GENERAL MERCHANDISING and COMPANY, and ANG TIAM CHAY, respondents., G.R. No. 115758, 2002 Mar 19, 2nd Division)

[3]  G.R. No. 148222, 15 August 2003, 409 SCRA 231.

[4]302 SCRA 225 [1999]

[5] COCA-COLA BOTTLERS, PHILS., INC. (CCBPI), Naga Plant, Petitioner, versus QUINTIN J. GOMEZ, a.k.a. “KIT” GOMEZ and DANILO E. GALICIA, a.k.a. “DANNY GALICIA,” Respondents., G.R. No. 154491, 2008 Nov 14,

[6]  G.R. No. 130360  August 21, 2001

[7]101 US 102-105 [1879].

[8]FRANCISCO G. JOAQUIN, JR., and BJ PRODUCTIONS, INC., petitioners, vs. FRANKLIN DRILON, GABRIEL ZOSA, WILLIAM ESPOSO, FELIPE MEDINA, JR., and CASEY FRANCISCO, respondents., G.R. No. 108946, 1999