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…
[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