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IPL 134 Copyright Part 2


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Parody and Fair Uses


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"Oh, Pretty Woman" -

by Roy Orbison and William Dees

Pretty Woman, walking down the street, Pretty

Woman, the kind I like to meet,

Pretty Woman, I don't believe you, you're not the

truth,

No one could look as good as you

Mercy

Pretty Woman, won't you pardon me, Pretty Woman, I

couldn't help but see,

Pretty Woman, that you look as lovely as can be , Are

you lonely just like me?

Pretty Woman, stop a while, Pretty Woman, talk a

while,

Pretty Woman, give your smile to me, Pretty Woman,

yeah, yeah, yeah

Pretty Woman, look my way, Pretty Woman, say you'll

stay with me

'Cause I need you, I'll treat you right, Come to me

baby, Be mine tonight

Pretty Woman, don't walk on by, Pretty Woman, don't

make me cry,

Pretty Woman, don't walk away, Hey, O.K.

If that's the way it must be, O.K., I guess I'll go home

now it's late

There'll be tomorrow night, but wait!

What do I seeIs she walking back to me?

Yeah she's walkin back to me!

"Pretty Woman" -

as Recorded by 2 Live Crew

Pretty Woman, walking down the street, Pretty

Woman, girl you look so sweet,

Pretty Woman, you bring me down to that knee,

Pretty Woman, you make me wanna beg please,

Oh, Pretty Woman

Big hairy woman, you need to shave that stuff, Big

hairy woman, you know I bet it's tough

Big hairy woman, all that hair ain't legit, 'Cause you

look like Cousin It

Big hairy woman

Bald headed woman, girl your hair won't grow, Baldheaded woman, you got a teeny weeny afro

Bald headed woman, you know your hair could look

nice, Bald headed woman, first you got to roll it with

rice

Bald headed woman here, let me get this hunk of biz

for ya, Ya know what I'm saying, you look better

than Rice a Roni

Oh, Bald headed woman

Big hairy woman, come on in, And don't forget your

bald headed friend

Hey Pretty Woman, let the boys

Jump in

Two timin' woman, girl you know it ain't right, Two

timin' woman, you's out with my boy last nightTwo timin' woman, that takes a load off my mind,


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It is uncontested here that 2 Live Crew's song would be

an infringement of Acuff-Rose's rights in "Oh, Pretty

Woman," under the Copyright Act of 1976, but for a

finding of fair use through parody. From the infancy of

copyright protection, some opportunity for fair use of

copyrighted materials has been thought necessary to

fulfill copyright's very purpose, "to promote the Progressof Science and useful Arts." For as Justice Story

explained, "in truth, in literature, in science and in art,

there are, and can be, few, if any, things, which in an

abstract sense, are strictly new and original throughout.Every book in literature, science and art, borrows, and

must necessarily borrow, and use much which was well

known and used before."


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The task is not to be simplified with bright-line rules,

for the statute, like the doctrine it recognizes, calls for

case-by-case analysis. The text employs the terms"including" and "such as" in the preamble paragraph

to indicate the "illustrative and not limitative" function

of the examples given, which thus provide only general

guidance about the sorts of copying that courts andCongress most commonly had found to be fair uses.

Nor may the four statutory factors be treated in

isolation, one from another. All are to be explored, and

the results weighed together, in light of the purposes of

copyright.


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[P]arody has an obvious claim to transformative

value, as Acuff-Rose itself does not deny. Like lessostensibly humorous forms of criticism, it can provide

social benefit, by shedding light on an earlier work,

and, in the process, creating a new one.

For the purposes of copyright law, the nub of the

definitions, and the heart of any parodist's claim to

quote from existing material, is the use of some

elements of a prior author's composition to create anew one that, at least in part, comments on that

author's works.


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If, on the contrary, the commentary has no criticalbearing on the substance or style of the original

composition, which the alleged infringer merely uses to

get attention or to avoid the drudgery in working up

something fresh, the claim to fairness in borrowingfrom another's work diminishes accordingly (if it does

not vanish), and other factors, like the extent of its

commerciality, loom larger.


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The threshold question when fair use is raised in

defense of parody is whether a parodic character mayreasonably be perceived. Whether, going beyond that,

parody is in good taste or bad does not and should not

matter to fair use. As Justice Holmes explained, "it

would be a dangerous undertaking for personstrained only to the law to constitute themselves final

judges of the worth of a work, outside of the

narrowest and most obvious limits. At the one

extreme, some works of genius would be sure to miss

appreciation. Their very novelty would make them

repulsive until the public had learned the new

language in which their author spoke.".


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1. Commercial or nonprofit educational purpose of a

work

The mere fact that a use is educational and not forprofit does not insulate it from a finding of

infringement, any more than the commercial

character of a use bars a finding of fairness.

The "fact that a publication was commercial asopposed to nonprofit is a separate factor that tends

to weigh against a finding of fair use." But that is

all, and the fact that even the force of that

tendency will vary with the context is a further

reason against elevating commerciality to hard

presumptive significance.


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3. The amount and substantiality of the portion used in

relation to the copyrighted work as a whole

The extent of permissible copying varies with thepurpose and character of the use. See Sony,

(reproduction of entire work "does not have its

ordinary effect of militating against a finding of fair

use" as to home videotaping of television programs);Harper & Row, ("Even substantial quotations might

qualify as fair use in a review of a published work or a

news account of a speech" but not in a scoop of a soon-

to-be-published memoir). The facts bearing on thisfactor will also tend to address the fourth, by revealing

the degree to which the parody may serve as a market

substitute for the original or potentially licensed

derivatives.


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Parody's humor, or in any event its comment,

necessarily springs from recognizable allusion to itsobject through distorted imitation. Its art lies in the

tension between a known original and its parodic twin.

When parody takes aim at a particular original work,

the parody must be able to "conjure up" at least

enough of that original to make the object of its critical

wit recognizable. What makes for this recognition is

quotation of the original's most distinctive or

memorable features, which the parodist can be sure

the audience will know.


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Once enough has been taken to assure identification,

how much more is reasonable will depend, say, on the

extent to which the song's overriding purpose and

character is to parody the original or, in contrast, the

likelihood that the parody may serve as a market

substitute for the original. But using some

characteristic features cannot be avoided. We think

the Court of Appeals correctly suggested that "no

more was taken than necessary," but just for that

reason, we fail to see how the copying can be excessivein relation to its parodic purpose, even if the portion

taken is the original's "heart."


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4. The effect of the use upon the potential market for

or value of the copyrighted work

It requires courts to consider not only the extent of

market harm caused by the particular actions of the

alleged infringer, but also "whether unrestricted andwidespread conduct of the sort engaged in by the

defendant would result in a substantially adverse

impact on the potential market" for the original. The

enquiry "must take account not only of harm to theoriginal, but also of harm to the market for derivative

works.".


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We do not, of course, suggest that a parody may not

harm the market at all, but when a lethal parody, likea scathing theater review, kills demand for the

original, it does not produce a harm cognizable under

the Copyright Act. Because "parody may quite

legitimately aim at garroting the original, destroying it

commercially as well as artistically," the role of the

courts is to distinguish between "biting criticism that

merely suppresses demand and copyright infringementwhich usurps it.


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2 Live Crew's song comprises not only parody but

also rap music, and the derivative market for rap

music is a proper focus of enquiry. Evidence ofsubstantial harm to it would weigh against a finding

of fair use, because the licensing of derivatives is an

important economic incentive to the creation of

originals. (copyright owner has rights to derivativeworks). Of course, the only harm to derivatives that

need concern us, as discussed above, is the harm of

market substitution. The fact that a parody may

impair the market for derivative uses by the veryeffectiveness of its critical commentary is no more

relevant under copyright than the like threat to the

original market.


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Th S d Ci it i Alt i i d it b t ti


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The Second Circuit in Altai summarized its abstraction-

filtration-comparison test as follows: In ascertaining

substantial similarity under this approach, a court would

first break down the allegedly infringed program into its

constituent structural parts. Then, by examining each of

these parts for such things as incorporated ideas, expression

that is necessarily incidental to those ideas, and elements

that are taken from the public domain, a court would then

be able to sift out all non-protectable material. Left with a

kernel, or possible kernels, of creative expression after

following this process of elimination, the court's last step

would be to compare this material with the structure of an

allegedly infringing program. The result of this comparison

will determine whether the protectable elements of the

programs at issue are substantially similar so as to warrant

a finding of infringement. Brian E. Bateman Vs. Mnemonics, Inc. United StatesCourt of Appeals, Eleventh Circuit, March 22, 1996.


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Suntrust Bank, as Trustee of the

Stephen Mitchell Vs. Houghton MifflinCompany,USCA, 11th Circuit, October 10, 2001

Gone With the Wind vs. The Wind Done Gone

SunTrust claims that TWDG "(1) explicitly refers to

[GWTW] in its foreword; (2) copies core characters,

character traits, and relationships from [GWTW]; (3)

copies and summarizes famous scenes and other

elements of the plot from [GWTW]; and (4) copies

verbatim dialogues and descriptions from [GWTW]."


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Parody of Literary Work


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Alice Randall, the author of TWDG, claims that her

novel is a critique of GWTW's depiction of slavery

and the Civil-War era American South. To this end,

she appropriated the characters, plot and major

scenes from GWTW into the first half of TWDG

It is clear that the goal of the

Statute of Anne was to encourage creativity and

ensure that the public would have free access to

information by putting an end to "the continued useof copyright as a device of censorship."


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The Copyright Clause and the First Amendment,

(11) while intuitively in conflict, (12) were drafted to

work together to prevent censorship; copyright laws

were enacted in part to prevent private censorshipand the First Amendment was enacted to prevent

public censorship.


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On the copyright side, economic encouragement forcreators must be preserved and the privacy of

unpublished works recognized. Freedom of speech,

on the other hand, requires the preservation of a

meaningful public or democratic dialogue, as well asthe uses of speech as a safety valve against violent

acts, and as an end in itself."


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Copyright assures authors the right to their original

expression, but encourages others to build freely upon

the ideas and information conveyed by the work."

First Amendment privileges are also preserved

through the doctrine of fair use.

Whether a preliminary injunction was properly

granted against an alleged infringer who, relying

largely on the doctrine of fair use, made use ofanother's copyright for comment and criticism.


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SunTrust is not entitled to relief in the form of a

preliminary injunction unless it has proved each of the

following four elements: "(1) a substantial likelihood

of success on the merits, (2) a substantial threat of

irreparable injury if the injunction were not granted,

(3) that the threatened injury to the plaintiff

outweighs the harm an injunction may cause the

defendant, and (4) that granting the injunction would

not disserve the public interest."

There must be prima facie showing of copyright

infringement


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SunTrust's ownership of a valid copyright in GWTW

is not disputedBut did TWDG appropriate copyright-protected

expression from GWTW?

1] Is there "substantial similarity" between the two

works such that "an average lay observer wouldrecognize the alleged copy as having been

appropriated from the copyrighted work."

Our own review of the two works reveals substantial

use of GWTW. TWDG appropriates numerous

characters, settings, and plot twists from GWTW.


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Randall's appropriation of elements of GWTW in

TWDG may nevertheless not constitute infringement

of SunTrust's copyright if the taking is protected asa "fair use or as a parody

Parody needs to mimic an original to make its

point, and so has some claim to use the creation of itsvictim's imagination

Houghton Mifflin's fair-use defense of parody, like

any other claim of fair use, must be evaluated inlight of the factors set out in 107 and the

constitutional purposes of copyright law


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We will treat a work as a parody if its aim is to

comment upon or criticize a prior work by

appropriating elements of the original in creating a

new artistic, as opposed to scholarly or journalistic,

work.

Under this definition, the parodic character of

TWDG is clear. TW DG is not a general commentaryupon the Civil-War-era American South, but a

specific criticism of and rejoinder to the depiction of

slavery and the relationships between blacks and

whites in GWTW. The fact that Randall chose toconvey her criticisms of GWTW through a work of

fiction, which she contends is a more powerful vehicle

for her message than a scholarly article, does not, in

and of itself, deprive TWDG of fair-use protection.


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1. Purpose and Character of the Work

TWDG's for-profit status is strongly overshadowed

and outweighed in view of its highly transformativeuse of GWTW's copyrighted elements. TWDG is

more than an abstract, pure fictional work. It is

principally and purposefully a critical statement that

seeks to rebut and destroy the perspective,judgments,and mythology of GWTW. Randall's

literary goal is to explode the romantic, idealized

portrait of the antebellum South during and after the

Civil War.


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3. Amount and Substantiality of the Portion Used

When parody takes aim at a particular original work,

the parody must be able to 'conjure up' at least

enough of that original to make the object of its

critical

wit recognizable."There are numerous instances in which TWDG

appropriates e lements of GWTW and then

transforms them for the purpose of commentary.

TWDG uses several of GWTW's most famous lines,but vests them with a completely new significance.


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"Parody frequently needs to be more than a fleetingevocation of an original in order to make its humorous

point. . . . [E]ven more extensive use [than necessary to

conjure up the original] would still be fair use,

provided the parody builds upon the original,

using the original as a known element of modern

culture and contributing something new for humorous

effect or commentary."


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4. Effect on the Market Value of the Original

TWDGs effect on the market for or value of

SunTrust's copyright in GWTW, including the

potential harm it may cause to the market for

derivative works based on GWTW.SunTrust proffered evidence in the district courtof the

value of its copyright in GWTW. Several derivative

works of GWTW have been authorized, including the

famous movie of the same name and a book titledScarlett: The Sequel.


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Suntrust fails to demonstrate that TWDG wouldsupplantdemand for SunTrust's licensed derivatives.

we conclude, based on the current record, that

SunTrust's evidence falls far short of establishing

that TWDG or others like it will act as marketsubstitutes for GWTW

or will significantly harm its derivatives.

TWDG is entitled to a fair-use defense.


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Prejudicial Issue: Infringement vs. Cancellation

Wilson Ong Ching Klan Chung et. al. vs. China

National Cereals Oil and Foodstuffs Import and

Export Corp., et. al., JR., G.R. No. 131502. June 8,

2000

Facts:

1. On September 16, 1993, WO filed a complaint withthe Manila RTC for Infringement of Copyright with

injunction Lorenzo Tan for using WOs using

copyrighted cellophane wrapper with the two-

dragons designed label, covered by a Certificate ofCopyright Registration in his name.

2. On January 5, 1994, respondents filed a petition

with the QC RTC for annulment of WOs


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Certificate of Copyright Registration.

3. Respondents in the infringement case moved to

dismiss the complaint on the ground that it isdependent upon the outcome of the cancellation of

copyright case.

Held:

1. Though the quest of petitioner and privaterespondents in the two cases are aimed towards

different ends the first to uphold the validity and

effectiveness of the same copyright, the second is

merely a consequence of the first, the realmatter in controversy can be fully determined and

resolved before the Quezon City court, and would


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render the Manila case a surplusage and also

constitutes multiplicity of suits and dismissible on that

ground, although such dismissal should be consideredas without prejudice to the continuance of the

proceedings before the Quezon City court.

2. The Quezon City court and the Manila court have

concurrent jurisdiction over the case. However, whenthe Quezon City court acquired jurisdiction over the

case, it excluded all other courts of concurrent

jurisdiction from therefore, devoid of jurisdiction over

the complaint filed resulting in the herein assaileddecision which must perforce be declared null and


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void. To hold otherwise would be to risk instances

where courts of concurrent jurisdiction might have

conflicting orders.

How should the case be decided under the IP Code?

Sec. 151.2. Notwithstanding the foregoingprovisions, the court or the administrative agency

vested with jurisdiction to hear and adjudicate any

action to enforce the rights to a registered mark shall

likewise exercise jurisdiction to determine whether

the registration of said mark may be cancelled in

accordance with this Act. The filing of a suit to


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enforce the registered mark with the proper court or

agency shall exclude any other court or agency fromassuming jurisdiction over a subsequently filed

petition to cancel the same mark. On the other hand,

the earlier filing of petition to cancel the mark with

the Bureau of Legal Affairs shall not constitute a

prejudicial question that must be resolved before an

action to enforce the rights to same registered mark

may be decided. (Sec. 17, R.A. No. 166a)


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CAVEAT

1. The Wilson Ong case involves enforcement ofcopyright vs. cancellation of copyright

registration.

2. Sec. 151.2 applies only to enforcement of

trademarks and cancellation of trademarkregistration.

3. There is no provision similar to Sec. 151.2 in Part

IV, The Law on Copyright


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Other Forms of Copyright

Infringement


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Question: A, B, C, D, E & F are members of the Side

X Band. Jamming together, A and B created the

music while C composed the lyrics. D and E sang the

composition.Who owns/own the copyright to the musical

composition?

Ownership of Copyright


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Section 178.2.In the case of works of joint authorship,

the co-authors shall be the original owners of the

copyright and in the absence of agreement, theirrights shall be governed by the rules on co-ownership.

If, however, a work of joint authorship consists of

parts that can be used separately and the author of

each part can be identified, the author of each partshall be the original owner of the copyright in the part

that he has created;

A&B are joint authors of the music while C is the

author of the lyrics, which are separable from the

music. D & E, who simply are mere performers

under Section 202.1 of the IP Code.


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Question: A, who studied computer programming,

and working as an associate in XYZ Firm, created a

software application to keep track of his cases and

deadlines, his appointments, the time he is spending

on them.When the partners learned about it, they decided to

use it for the Firm but A claimed that the copyright in

the software application belongs to him.


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Section 178.3. In the case of work created by an

author during and in the course of his employment, the

copyright shall belong to:

(a) The employee, if the creation of the object of

copyright is not a part of his regular duties even if the

employee uses the time, facilities and materials of theemployer.

(b) The employer, if the work is the result of the

performance of his regularly-assigned duties, unless

there is an agreement, express or implied, to thecontrary.


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Question: A and B asked C, a photographer, to take

their photograph. C liked the outcome and decided to

use it as a part of an advertisement of his photo shop,

which he published in the newspaper. A & B sued C

for copyright infringement.

Will the action prosper?


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Section 178.4. In the case of a work commissionedby 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 thecopyright thereto shall remain with the creator, unless

there is a written stipulation to the contrary;

Limitations on Copyright


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Limitations on Copyright

Question: David Brown, a renowned US painter,

conducted an exhibit of his works at the CulturalCenter. Henry Diaz, a reporter of ABC, took a

lengthy video footage of the art works exhibited with

running commentary on the artists and his works,

which the station aired.

David Brown was irked by some of Henrys

comments about the artworks and sued Henry and

ABC for reproducing his exhibit and artworks onvideo without his consent.



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Question: 1995

Solid Investment House commissioned Mon Blancoand his son Steve, both noted artists, to paint a mural

for the Main Lobby of the new building of Solid for a

contract price of P2 Million.

Who owns the mural?

Who owns the copyright of the mural?


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Answer:

1. Solid owns the mural. Solid was the one who

commissioned the artists to do the work and paid

for the work in the sum of P2 Million.

2. Unless there is a stipulation to the contrary in thecontract, the copyright shall belong in joint

ownership to Solid and Mon Blanco and his son

Steve.


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SECTION 184. Limitations on Copyright. - 184.1.

Notwithstanding the provisions of Chapter V, the following

acts shall not constitute infringement of copyright:

* * *

(d) The reproduction and communication to the public of

literary, scientific or artistic works as part of reports ofcurrent events by means of photography, cinematography or

broadcasting to the extent necessary for the purpose; (Sec. 12,

P.D. No. 49)


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Question: The UP offered a distance educationprogram through Channel 4 in which the published

textbooks of professors on various academic subjects

were read and aired on TV as part of the program.

The professors-authors claimed that UP did not gettheir consent for the use of their works and sued UP

and Channel 4 for infringement.



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SECTION 184. Limitations on Copyright. - 184.1.Notwithstanding the provisions of Chapter V, the

following acts shall not constitute infringement of

copyright:

(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 sourceand of the name of the author, if appearing in the

work, are mentioned;


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What is direct infringement?

Direct infringement is the violation of an authorscopyright committed by any person who himself

carries out any of the acts in violation of the authors

economic rights under Section 177 of the IP Code.

What is contributory infringement?

Contributory infringement is a violation of an

authors right committed by one who, with knowledgeof the infringing activity, induces, causes or

materially contributes to the infringing conduct of

another.

Q ti DEF C I t t S i P id


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Question: DEF Co., an Internet Service Provider

with around 3,000 subscribers, received a demand

letter from ABC Recording Co., that some of the

websites on the DEFs servers created by the

subscribers contain unauthorized copies of sound

recordings of ABCs artists. These recordings are

downloaded by the other subscribers of DEF. ABCasked DEF to disconnect these subscribers.

DEF refused on the ground that it was not

responsible for the recordings uploaded by its

subscribers.

Is the claimed defense valid?


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Answer:

Although the subscribers who uploaded and/or

downloaded the unauthorized recording are

themselves liable for direct infringement, the mere fact

that DEF had no participation in the uploading of the

recordings does not relieve it of liability for

contributory infringement.


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When DEF received notice of infringement by itssubscribers from ABC Co. and refused to disconnect

them from the service, DEF became liable for

contributory infringement. After knowledge of the

infringing activity, DEF induced and materiallycontributed to the infringing conduct of its

subscribers.


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Digital Copying is Piracy

1. Software

2. Audiovisual Works

3. Musical Works

TRIPS Agreement requires imposition of criminal penalties for

piracy on a commercial scale. Section 217 imposescriminal penalties for commercial piracy the value of

infringing materials that the defendant has produced or

manufactured.

Columbia Pictures Entertainment Inc vs CA G R No 111267


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Columbia Pictures Entertainment, Inc. vs. CA, G.R.No. 111267,

Sept. 20, 1996

Issue: Master Tapes as Evidence

It is evidently incorrect to suggest, as the ruling in 2othCentury Fox may appear to do, that in copyright infringement

cases, the presentation of master tapes of the copyright films is

always necessary to meet the requirement of probable cause for

the issuance of a search warrant. It is true that such master

tapes are object evidence, with the merit that in this class of

evidence the ascertainment of the controverted fact is made

through demonstration involving the direct use of the senses of

the presiding magistrate. Such auxiliary procedure, however,

does not rule out the use of testimonial or documentaryevidence, depositions, admissions or other classes of evidence

tending to prove the factum probandum, especially where the

production in court of object evidence will result in delay


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Copyright Infringement and Peer-to-Peer

Sharing Networks


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Metro-Goldwyn-Mayer Studios, Inc., et al., vs.

Grokster, Ltd., et al. CV 01-08541-SVW andJerry Lieber, et al., vs. Consumer

Empowerment CV 01-09923-VW


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I. Operation of the Software

A. Exchange of digital media via

peer to peer transfer network

B. The software distributed by the defendants were

initially powered by FastTrack networking technology

C. Streamcast now employs the Gnutella technology and

distributes its own software (known as the Morpheus)


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II. Whether the defendants Grokster and Streamcast are

liable for contributory and vicarious copyright infringement

A. Direct Infringement

i. Secondary liability does not exist in the

absence of direct infringement

ii. Secondary liability does not exist in the

absence of direct infringement


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B. Contributory Infringement

One is liable for contributory infringement if withknowledge of the infringing activity, he induces or

causes or materially contributes to the infringing conduct of

another.

Elements:

i. Knowledge

Generic knowledge of an infringing activityis insufficient to warrant liability based on mere sale of

vcrs. (Sony Corp. of American vs. Universal City Studios,

Inc. 464 U.S. 417, 104 S. CT. 774 [1984])


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When users search for and initiate transfers of files


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using the Grokster client, no information is transmitted

to or through computers owned or controlled by Grokster.

b. Streamcast

Uses open source (not proprietary) Gnutella peer

to peer platform by which the user connects by

contacting another user found in the public directories

who is already connected to the network.

Does not itself operate any of these directories or

compensate the operators.


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Search requests are passed on from user to user until a

match is found or the request expires.

When a user selects a file, the transfer is initiated directly

between the two users.

c. Analysis

Participation in the infringement must be substantial.

The defendants distribute and support software, the users ofwhich can and do choose to employ it for both lawful and

unlawful ends.

Liability for contributory infringement does not lie


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Liability for contributory infringement does not lie

merely because peer to peer file sharing technology may be

used to infringe plaintiffs copyrights.

C. Vicarious Infringement

Extends liability for copyright infringement to cases in

which a defendant has a right and ability to supervise the

infringing activity and also has a direct financial interest in

such activities.

Does not need knowledge of the infringement

Elements:


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Elements:

i. Financial benefit

Exists where the availability of the infringing material acts as a

draw for customers.

ii. Defendants right and ability to supervise infringing

conduct

The doctrine of vicarious infringement does not contemplate

liability based upon the fact that a product could be made such

that it is less susceptible to unlawful use, where no control overthe user or the product exists.


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Grokster and Streamcast are not liable for

contributory infringement or for vicariousinfringement

The downloaders are liable for their direct

infringement of copyright protected materials


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Piracy Under Electronic Commerce Act

Section 33 (b) of E-Commerce Act penalizes the -


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Section 33 (b) of E-Commerce Act penalizes the -

"unauthorized copying, reproduction, dissemination,

distribution, importation, use, removal, alteration,

substitution, modification, storage, uploading,

downloading, communication, making available to the

public, or broadcasting of protected material, electronic

signature or copyrighted works including legally protected

sound recordings or phonograms or information material

on protected works"

when these acts are committed through "the use of

telecommunication networks," including the Internet,

when they "infringe intellectual property rights"

Piracy or Counterfeiting


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Piracy or Counterfeiting

1] the acts that are prohibited --- copying, reproduction,

dissemination, distribution, importation, use, removal,

alteration, substitution, modification, storage, uploading,

downloading, communication, making available to the

public, or broadcasting

2] the objects of protection --protected material,

electronic signature or copyrighted works including

legally protected sound recordings or phonograms or

information material on protected works

3] the means for their commission through the use of

telecommunication networks, such as, but not limited to,the Internet

4] damage caused -- in a manner that infringes intellectual

property rights

What Copyright Limitations Were Preserved


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What Copyright Limitations Were Preserved

1- Treaty is silent on "fair use" but Agreed Statementsays that parties may:

a- "carry forward and appropriately extend into the

digital environment limitations and exceptions in their

national laws"

b- create "new exceptions and limitations that are

appropriate in the digital network environment," par. 8,

Agreed Statement

However, anti-piracy provision does not explicitly

recognize fair use or create new exceptions and limitations,

including Section 184 on uses of the works for

informational educational, scientific or professional

purposes.


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Section 33 (b) also criminalizes Importation of Genuine

Copies of the Works

1- importers of genuine copies of the copyrighted worksthrough the Internet, without the consent of the copyright

owners, are considered criminal infringers since they usurp

the author's right of importation of genuine copies of his

work2- restricts our own access to legitimately available

information, even in the absence of any treaty obligation

imposing this burden on us and even in the absence of any

prejudice to the authors and publishers

How a Fair Balancing of Rights Could Have Been Achieved


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How a Fair Balancing of Rights Could Have Been Achieved

Section 33 (b) Subject to the same limitations to copyright

and to fair uses of copyright works under Section 184 to

190 of the Intellectual Property Code, piracy or the

unauthorized exercise of any of the copyright owner's

exclusive rights through the use of telecommunication

networks, where such acts are committed on a commercial

scale or for purposes of trade or business shall be punished

by a minimum fine of one hundred thousand pesos

(P100,000.00) and a maximum commensurate to the

damage incurred and a mandatory imprisonment of six (6)months to three (3) years;

Electronic Commerce Act


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Service Providers

Provisions on Service Providers

Under Section 30 (a) there is no liability in the

absence of privity

Under Section 30 (b) in the absence of knowledge,

profit or direct participation in the infringing

activity or dissemination of the defamatorymaterial, there is no liability on the part of the

service provider

copyright p2

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