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.