The Mangling of Rights in Philippine Broadcasting

BROADCASTING DEFINED

Broadcasting is defined in the Philippine IP Code as the transmission by wireless means for the public reception of sounds or of images or of representations thereof; such transmission by satellite is also "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent; (IP Code, Section 202.7)

Under this setup, the broadcaster has the exclusive right to carry out, authorize or prevent any of the following acts:

1. The rebroadcasting of their broadcasts
2. The recording in any manner, including the making of films or the use of video tape, of their broadcasts for the purpose of communication to the public of television broadcasts of the same; and
3. The use of such records for fresh transmissions or for fresh recording. (IP Code, Section 211)

THE CURIOUS CASE OF ABS-CBN v. PMSI

In 2009, the Supreme Court decided on a case called ABS-CBN Broadcasting Corp. v. Philippine Multimedia System, Inc., G.R. Nos. 175769-70 and I found it to be a disturbing read.

In this case, ABS-CBN, a Philippine broadcaster sued the company, Philippine Multimedia System, Inc. (PMSI) that ran Dream Satellite TV for making ABS-CBN channels available to its subscribers without permission.

ABS-CBN won the case at the Bureau of Legal Affairs (BLA) of the Intellectual Property Office (IPO) and was able to acquire a temporary restraining order against Dream Satellite TV.

The case would be appealed to the Director General, reversed the ruling that would later be affirmed by the Court of Appeals (CA) and the Supreme Court (SC).

Ultimately, the court decided that PMSI may ignore the intellectual property rights of ABS-CBN because PMSI's legislative franchise (Republic Act No. 8630) and a Memorandum Circular mandated it to carry local channels, including those owned by ABS-CBN. (Although the law never expressly exempted PMSI from acquiring licenses from the broadcasters)

WORST STATEMENT EVER

I can't believe I read this paragraph from the case:

Relevantly, PMSI’s carriage of Channels 2 and 23 is material in arriving at the ratings and audience share of ABS-CBN and its programs. These ratings help commercial advertisers and producers decide whether to buy airtime from the network. Thus, the must-carry rule is actually advantageous to the broadcasting networks because it provides them with increased viewership which attracts commercial advertisers and producers.

Like asking a musician to play for free in front of a bar’s paying customers because it’s good for exposure… familiar?

PUBLIC WELFARE IS GREATER THAN PROPERTY RIGHTS, BUT...

Indeed, I must agree with the observation of the court that “… the welfare of the people must not be sacrificed in the pursuit of profit.”

After all, the Philippine Constitution makes it clear that:

The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. (1987 Constitution, Article XII, Section 6)

BUT it is also true that the State has the responsibility of providing just compensation if and when it decides to use or take private property for a public purpose. Taking the intellectual property of ABS-CBN and handing it over to Dream Satellite TV as part of their business without a license is nothing short of a violation of the Constitutional right to due process:

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. (1987 Constitution, Article III, Section 1)

COPYRIGHT AND RELATED RIGHTS OF OTHER PERSONS AFFECTED

In every broadcast, there are numerous copyrights attached to the content, belonging to different persons. Copyright belongs to the writers who wrote the scripts, the designers of the program, the graphic artists, writers of the music, the filmmakers, the photographers and videographers, the set and costume designers and all those creative persons who were involved in creating the content. 

Similarly, there are also related rights that belong to the producers and performers of the sound recordings used for the TV programs. 

Any observer must remember that the simple act of making the content available to the public without the consent of the creators is a violation of copyright law and the rights of many individuals and organizations.

SUPREME COURT SHOULD HAVES...

The court might have arrived at a more instructive and precise decision if it took the following steps:

1. Ruled on the constitutionality of the ‘must-carry’ rule of PMSI’s legislative franchise and the related Memorandum Order (which would have shown that the rule was confiscatory and in violation of the due process); 
2. Done a fair use analysis in favor of the copyright holders (PMSI’s use would have failed the fair use test); 
3. Examined the legislative franchise of ABS-CBN and see if it has the obligation to provide its content to satellite TV providers without a license. (Upon examination of R.A. 7966, there is no such obligation); and
4. Harmonized the IP Code with PMSI’s legislative franchise instead of presuming that the latter was an exception to the former.

A DECISION BAD FOR BUSINESS

There was simply a misunderstanding of copyright and related rights and their role in business. We are now left with a situation of self-discrimination where Filipino broadcast organizations are not paid for the use of their content by cable and satellite TV providers while foreign broadcasters are properly paid for theirs. 

Copyright and related rights over broadcasts have fallen off the balance in this country. I think with better IP education for judges, business organizations and lawmakers, it would still be possible to salvage this situation for better times.

Every Teacher's Problem - Are Textbooks Protected by Copyright?

The short answer is ‘Yes’.

Under our Intellectual Property Code, books are protected as literary works:

SEC. 172. Literary and Artistic Works. – 172.1. 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 

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

xxx 

In any case, we must not assume that an entire book is original and therefore protected by copyright. We need to understand that only the original elements of a textbook are protected by copyright.

For example, any book on arithmetic will teach the reader about addition, subtraction, multiplication and division in the same way. This cannot change because the rules of basic math are practically permanent. These fixed lessons and rules may be considered part of the public domain because they have existed for as long as math itself and their originality has expired long ago.

Comparison of books in a copyright infringement case with the IP Office. (newsbytes.ph)

The original contribution of the author consists of the unique word problems, comments, insights, the book cover design, illustrations, photographs and any part of the book that may be considered original.

I remember a client some years ago who was accused of copyright infringement of an English textbook. I examined the older textbook and the updated version she wrote and found out that there was nothing to be worried about. The examples and illustrations were starkly different. The outline of the new book was similar to the old one but only because it was part of the specific guidelines set by the Department of Education. 

Schools and universities must also be careful when issuing work books they wish to sell as originals. There needs to be a regular department audit of the content of all these books to ensure that copyright infringement is avoided. 

How costly can this mistake be? Just last year, a school in Bulacan had to pay over half a million pesos in damages for copyright infringement. (Read the story here: Bulacan school ordered to pay P608,450 for copyright infringement)

A teacher cannot simply take pages from different sources and compile them all together into a single lesson plan or work book. The school or university will have to enter into a licensing agreement with the collecting society for authors and book publishers in order prevent itself from violating copyright laws. (Read more about collective licensing here: FILCOLS and the Collective Management of Copyright for Books in the Philippines)

In the case of law textbooks, all the statutes, cases and government issuances are considered unprotected material and thus belong to the public domain. The only parts that are protected by copyright are the personal commentaries, examples, illustrations, artwork, photographs and all parts that may be factually claimed as original by the author.

All in all, textbooks can be quite tricky because one needs to separate common knowledge and teaching methods from original work. Infringement in these cases will be less obvious and will require a page-by-page analysis in order to demonstrate that there was copying without permission.

Knowledge may be common but insight should be original.

Who Owns Your Wedding Photos?

Photography by Imagine Nation. Copyright 2014.

My wife and I got married last December and since that exhausting but enlightening experience, we have been exploring opportunities in the billion peso wedding industry in the Philippines.

What fascinated me personally was the photography business and how little people know about the implications of copyright law on their work.

The Philippine Intellectual Property Code (IP Code) has this to say about commissioned works:

178.4. 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 the work, but the copyright thereto shall remain with the creator, unless there is a written stipulation to the contrary.

Even after paying a small fortune for your wedding photos and videos, the couple has to understand that you may own the CDs, the printouts and the files provided for you, but copyright is generally retained by the photographer.

This general rule, however, may be changed in the contract.

Photography and editing by M.R. Dy. Copyright 2014-2015.

So what exactly does it mean when a photographer owns copyright?

It means that, without the authorization of the photographer, the client cannot publish the photos in any medium (including the Internet), display the photos in a public space, make copies of the photos, print them, or in any way communicate them to the public whether the use is commercial or not.

In addition, the photographer must always be acknowledged as the author unless he or she instructs otherwise.

Although, in practice, I have never met a wedding photographer who would prevent a client from making copies or publishing their wedding photos, it's good to know that photographers do have a high level of protection in our intellectual property law as creators of original artistic works.

So how long does copyright over photographs last?

IP Code reads: 

213.5. In case of photographic works, the protection shall be for fifty (50) years from publication of the work and, if unpublished, fifty (50) years from the making.

This period is much shorter than the 'lifetime + 50 years' rule but it should be long enough to provide some level of protection. 

Still, I think our lawmakers need to review this and rationalize if there really is a significant difference between photography and other works of art. 

I honestly see no such difference.

Intellectual Property Rights in the Bangsamoro

Trivia: Did you know that intellectual property rights are mentioned in the Draft Bill Creating the Bangsamoro sub-state in Mindanao?

According Article V of the bill, intellectual property rights are categorized as one of the reserved powers of the Central Philippine Government. They found it wise to leave the management of this highly technical matter to the national government. 

This means that you won't be hearing of a Bangsamoro Intellectual Property Office in the near future. 

Nonetheless, I do hope the IPO sets up a regional office for the Bangsamoro because if and when the region is created, we should expect a whole lot of new businesses to come in.

When there is peace, there is greater room for art, beauty, discovery and exploration.

Copyright Infringement v. Plagiarism

People often mistake Copyright Infringement with Plagiarism because, on the surface, they often deal with the same thing -- improper copying. 

They are different, however, in that Copyright Infringement is a legal concept that delves more on property and ownership while Plagiarism is an academic and ethical concept, which deals with dishonesty and poor scholarship. 

Both concepts may intersect, but they may also exist apart from each other.

Here's a cheat sheet to help you all out with the two concepts:

Quick, What is a Trademark?

CREATIVE STATE - Does the Government have Copyright?

A client from last week raised several questions about government copyright. Working as the head of the publications unit of a government office and was worried about how Philippine copyright law would affect her work.

This is a deeper analysis of what I explained to her during our consultation, which I hope will be of use to other government institutions. With better IP education, I know government offices will be able to create better contracts and maximize benefits from the use their creative work.

DEFINITION

The Intellectual Property Code of the Philippines (IP Code, R.A. 8293) defines Work of the Government of the Philippines as a

work created by an officer or employee of the Philippine Government or any of its subdivisions and instrumentalities, including government-owned or -controlled corporations as a part of his regularly prescribed official duties. (Section 171.11) 

This definition requires two things: 

1. The creator of the work has to be a government employee or officer; and 

2. The work is created as part of one’s official duties.

When these two conditions above are met, the work automatically becomes unprotected work under Section 176, which reads:  

SEC. 176. Works of the Government. – 176.1. No copyright shall subsist in any work of the Government of the Philippines. However, prior approval of the government agency or office wherein the work is created shall be necessary for exploitation of such work for profit. Such agency or office may, among other things, impose as a condition the payment of royalties. No prior approval or conditions shall be required for the use for any purpose of statutes, rules and regulations, and speeches, lectures, sermons, addresses, and dissertations, pronounced, read or rendered in courts of justice, before administrative agencies, in deliberative assemblies and in meetings of public character.   

176.2. The author of speeches, lectures, sermons, addresses, and dissertations mentioned in the preceding paragraphs shall have the exclusive right of making a collection of his works.    

176.3. Notwithstanding the foregoing provisions, the Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest or otherwise; nor shall publication or republication by the Government in a public document of any work in which copyright is subsisting be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such work without the consent of the copyright owner. 

EXCEPTIONS

So, from cross-referencing the provisions above, it would be safe to say that the general rule is that the Philippine Government cannot acquire copyright by creating original works. 

Having said this, there are some exceptions to the ‘no government copyright rule’: 

1. If the creator of the work is merely a consultant working under a government contract, copyright will arise from his or her original creations. 

e.g. If the Civil Service Commission engages a research team from the University of Sto. Tomas to do a study on ‘The Negative Effects of Social Media on Productivity in Government’, the research team will gain copyright by creation, even if the study is initiated by government. 

2. If the creator does original creative work outside his or her official duties, he or she has copyright over the work. 

e.g. Supposing one is an attorney who works for a politician and the former has the habit of taking photos of his boss’s public activities with his phone camera. The attorney, not being employed as a photographer, gains copyright over his photos by original creation. 

3. The government may acquire copyright from third persons, through assignment, donation and even succession (if the government is the sole heir). In fact, when a government agency hires consultants, the terms of the contract will dictate who shall own the copyright. It may be retained by the consultant or assigned to the government agency. Thus, the government may acquire copyright by other modes, even if may not do so by original creation. 

e.g. If the National Commission for Culture and the Arts (NCCA) conducts an visual arts competition, it may impose a condition that the artists execute a contract assigning copyright to NCCA as a condition for their participation. NCCA will thus acquire copyright by assignment. 

PUBLIC RIGHTS v. PRIVATE RIGHTS

So what is consequence of having a government that generally does not have copyright over its works? 

The answer depends on the kind of government work you are dealing with. Even without copyright, the law affords less-than-copyright protections in certain situations. The term ‘unprotected works’ is actually a misnomer. Take note of the following situations you find yourself in: 

1. In the case of statutes, rules and regulations, the public is free to use them for any purpose. 

2. In the case of speeches, lectures, sermons, addresses, and dissertations, pronounced, read or rendered in courts of justice, before administrative agencies, in deliberative assemblies and in meetings of public character the public is free to use them for any purpose except to make a collection or compilation of works from a particular author because that right exclusively belongs to that author. 

3. In the case of other works not included above, prior approval from the government is required before any person can use them for profit. As a condition for such approval, the government may require the payment of royalties. 

Copyright in government can be quite complicated in the Philippines especially when most agencies are not well informed about how to manage their intellectual property. Schools and universities come up with research material regularly. Government radio and TV stations generate content everyday. In the natural course of business, government agencies create incredible volumes of original and derivative material all the time. 

Perhaps things could be easier if the  law simply granted copyright to the government like in other States. Then again, our lawmakers may have observed that there is a public interest angle in keeping some government works in the public domain. As taxpayers, we collectively own many of the public works created and they should be shared to and by the public without being slowed down by copyright claims. 

As in every other case, one must balance intellectual property rights with public interest.