More on Copyrights

We've already taken up this article. Now let's move to other important aspects of copyrights.

Copyright protection covers original intellectual creations; originality doesn't mean novelty. What it means is that the author has contributed something that he can uniquely call his own. And it begins the moment the work is created. The author, however, can't prevent others from building upon his work -that would be a hindrance to the development of ideas.

Originality doesn't necessarily refer to work "by the sweat of one's brow," since uniqueness and effort are not the same thing. Effort requires the degree of skill in one's work, while uniqueness refers to the giving of form to an idea. Ergo, the author harnesses his powers of creativity. So arranging things in numerical or alphabetical order isn't new, and neither is a catchphrase unless it contains something unique, like the song "Supercalifragilisticexpialidocious" in the Walt Disney "Mary Poppins" film. In 1965 the songwriters Gloria Parker and Barney Young sued Disney, claiming that the title of the song infringed on their own work. The case was dismissed, partly because Disney proved that the word "Supercalifragilisticexpialidocious" existed with variations before 1949.

The first paragraph of the first article on copyrights already has taken up what copyright covers. There is another group of works, known as "derivative works," that also enjoys copyright protection. They consist of the following:

1.) Dramatizations, translations, adaptations, etc. or other alterations of literary/artistic works (note, however that the author can restrain unauthorized use of his work)

2.) Collections of literary, scholarly or artistic works, data, etc. by their arrangement (read: the way they are compiled)

What Can't be Copyrighted

1.) Works of the Philippines government

2.) Official texts that are legislative, administrative or legal in nature -including translations (but not annotations)

3.) News articles and items of press info (but not film coverage)

4.) Any idea, system, method, discovery, concept, data, etc. even recorded in any way

Note: although articles of a utilitarian nature can't be copyrighted, if the aesthetics can be separated from the article then the aesthetic parts can be copyrighted. This is known as an applied work of art.

First Sale Doctrine

The holder of a copyright can control the first distribution (sale) of his work, such as setting the sales price. He can't, however, control the distribution of subsequent sales. So if his publisher sells his books to another company at his price but that other company sells them at another price, he can't complain.

The first sale doctrine, however, doesn't apply to digital works because they don't have a tangible medium. The buyer buys only the right to use. If, however, a digital work is converted into tangible media (like a movie recorded on a DVD, for example,) then the first sale doctrine will apply.

Limitations on Copyright

Below is a list of acts that do not constitute copyright infringement:

1.) Private performance of the work

2.) Quoting from published works, as long as they're compatible with fair use (see Fair Use Doctrine)

3.) Reproduction/communication to the public (movies, TV, radio, etc.)

4.) Teaching purposes

5.) Ephemeral recordings (archives) by broadcasting companies

6.) Use by government, educational, scientific, or professional institution as long as it's in the public interest and compatible with fair use

7.) Free public performance for charitable/educational purposes

8.) Public display if the work was published or if the original copy on display was sold or transferred by the author

9.) Use in a judicial proceeding of for a legal practitioner giving professional advice

Fair Use Doctrine

There are 4 factors that must be considered to judge whether or not the fair use requirement has been fulfilled. All 4 must be present:

1.) Purpose and character of the use

If the use is transformative (education, translation, derivative, etc.) it's compatible with fair use. If the use is for profit, then it's less likely for fair use.

2.) Nature of the copyrighted work

If the copyrighted work is substantially creative and original, its use won't be considered fair use. This is why fictional works, because of their higher degree of creativity, enjoy greater copyright protection that factual ones.

3.) Amount and substantiality of the used portion

Substantial doesn't necessarily mean copying verbatim or voluminous. It could also mean copying the significant portions of the work.

4.) Target market

Who is the target audience? To whom is the work addressed? If the copied matter poses a threat to the target market of the copyrighted work, then it's not consistent with fair use. This is the most important of all 4 factors. Even if the first three don't indicate fair use, if this last one does, then the verdict is it's fair use.

To illustrate, ever since the "Harry Potter" novels came off the press unauthorized sequels, imitations and pirated works emerged. The author and her publishers have taken legal actions to protect their copyrights.

Joint Authorship

In the case of joint authors, there are 2 tests which are used to determine if all the authors in question are entitled to the copyright or if some of them are, or if just one is entitled. The first is Nimmers' de minimis test. This isn't used in the US and the Philippines because its only criteria is that each author should contribute more than a line or word to the work.

The second is Goldstein's copyrightability test. Under this test, an author will not be entitled to the copyright unless he contributes an original idea or expression that is copyrightable. Simply contributing a plot will not suffice.

Registration

As mentioned earlier, a copyright takes effect the moment the moment the work is created. Registration, therefore, isn't necessary. However, it does serve as a warning against possible infringers. It constitutes prima facie evidence that the work is copyrighted.

Simply deposit 2 copies at the National Library and the library of the Supreme Court within 3 weeks from the publication/performance of the work. A certificate of deposit will be issued and a fee will be paid. If you don't deposit, you'll have to pay a fine.