Bar review note – copyright, plagiarism, fair use

“Plagiarism is wholly intolerable in the practice of law.” – Matthew Mirow at Lexis-Nexis.

Mirow’s point seems to be that it’s because it’s dishonest.  I believe this to be a bit simplistic.  It must be because without authority or source, you end up confusing the court or the parties.

What is copyright?

–         As defined in the Philippine constitution, it is the exclusive right of an author to his work.

–         Conventionally, it is a property right in an original work fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. Black’s.

–         WIPO defines it as a system of legal protection enjoyed by an author of the form of expression of ideas.

–         Copyright is a negative right because it is a right to stop others from doing something.

–         It is not explicitly defined in RA 8293, the special law that governs copyright in the Philippines.

What is a “work”?

It is an original intellectual creation in the literary and artistic domain.  It is protected from the moment of creation.  Examples: books, periodicals, speeches, letters, plays, musical compositions, paintings, sculptures, photographic works, computer programs, etc.  It includes characters in books and comic strips.

What is “creation”?

It is “verifiable expression of the intellectual product” in a “tangible medium of expression.” Based on interpretation of Art. 9, par. 2 of the TRIPS of GATT 94.

What is meant by “original”?

It means that the work is original to the author, i.e., he does not copy it from another.  It means that the creation involves intellectual effort.

What are not subject to copyright?

The following are not protected by copyright:  DN.IPP.GP

–         Mere data or facts

–         News of the day

–         Ideas and concepts (textbook knowledge is not subject to copyright; but the manner of presenting textbook knowledge is copyrightable)

–         Principles

–         Procedure and methods of operation

–         Work of government

–         Works read or rendered in courts, and before deliberative assemblies and in meetings of public character

–         Works already in the public domain (either by nature, such as works of government; or because copyright protection has lapsed)

–         Trade marks, because marks are not a “work,” and there is a wrong called trade mark infringement

When does work enter the public domain?

Work becomes public domain when the term or duration of copyright ends.

What is the term or duration of copyright?

In the Philippines,

–         generally, lifetime of the author + 50 years

–         for joint creation, 50 years from the death of the last surviving co-creator

–         for anonymous or pseudonymous work, 50 years from first publication

–         for applied art, 25 years from creation

–         for photography and audio-visual work, 50 years from publication or creation

The rules may differ in other jurisdictions.

What is copyright infringement?

It is the violation of the economic or moral rights of the copyright owner.

What are the economic rights of the copyright owner?

The economic rights of the copyright owner: (§ 177) RDD.RDP.CA

–         to reproduce the whole or a substantial portion of the work

–         to make derivative works such as: dramatization, translation, adaptation, abridgement, arrangement, or other transformation of the work

–         public distribution of the original and each copy of the work by sale or other forms of transfer of ownership

–         rental of the original copy of a copy of an a-v or cinematographic work, work in a sound recording, computer program, compilation of data, musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental

–         public display of the original or a copy of the work

–         public performance of the work

–         other communication to the public of the work

–         in the case of works of architecture, to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original (§ 186).

What are the moral rights of the copyright owner?

The moral rights of the copyright owner are:  § 193.  [APDU]

–         right to attribution of authorship

–         to alter prior to, or withhold, publication

–         to object to any distortion of the work that would prejudice his reputation

–         to restrain use of one’s name with a work not his own or with a distortion of his work

Distinguish between economic and moral rights?

–         Economic rights are assignable, whereas moral rights are not, though they are waivable.  (A ghost-writer waives his right to attribution, but he assigns for consideration the copyright to his work in favor of the purported author.)

–         Economic rights generally refer to the creator’s exclusive right to reproduce, adapt, perform, or display; moral rights generally refer to the creator’s claim to authorship, such as his right to be attributed as the author or his right to prevent any distortion of his work that is prejudicial to his reputation.

–         Economic rights are covered in § 177; moral rights, § 193.

What are the rights of a ghost-writer? See the answer to the preceding question.

What is plagiarism?  Is it copyright infringement?

Plagiarism is the act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of one’s own mind. To be liable for plagiarism it is not necessary to exactly duplicate another’s work, it being sufficient if unfair use of such work is made by lifting of substantial portion thereof  (Black’s; see discussion of fair use below).

Plagiarism is in short the passing off of another’s work as one’s own. Since it is a violation of the moral right of a copyright owner to attribution (of authorship), plagiarism is copyright infringement.  If the plagiarist exercises the economic rights of the copyright owner, the former is likewise guilty of infringement.  However, the true author may assign his copyright or waive his right to attribution.

What are the remedies in a copyright infringement case? PECPA

–         preventive, such as injunction or impoundment of the offending material

–         evidentiary, when court orders the delivery of  documents

–         compensatory, as in damages

–         punitive, as in a criminal action or when infringing copies are destroyed w/o compensation

–         administrative action, for damages of P200,000 or higher, under the jurisdiction of the Bureau of Legal Affairs (BLA) of the IPO. § 10.  Administrative action requires substantial evidence (lower than preponderance of evidence in civil actions).

–         criminal penalties are based on whether there is single or repeat offenses (example: first offense is punishable by 1-3 years of imprisonment and P50-150K of fine)

Is mens rea (“evil intent”) required for civil action for damages? For criminal liability?

RA 8293 is silent on this question.  In civil action, the settled rule is that mens rea is not required.  In criminal actions, the balance of authoritative opinion is that criminal liability requires intent to gain commercial advantage (Rosenberg, Aquino).  In other words, in criminal action, the offense of infringement should be treated as malum in se. 

What is the fair use doctrine?  How does it apply to material used in class?

Certain activities are called “fair use,” and do not constitute copyright infringement.  These are:

–         criticism, commentary, and news reports

–         use for instructional purposes (§ 185.1)

But determination of fair use is subject to the following criteria: PNSA

–         purpose and character of the use (non-profit, non-commercial, or for public commentary is generally fair use)

–         nature of the copyrighted work (where nature is informational, fair use is more likely to be found)

–         amount and substantiality of the portions used – relative to the work of plaintiff, and also to that of defendant (if the portions used are not substantial, it is fair use)

–         adverse effect on the potential market of the copyrighted work (this is the main criterion; even if an act is not fair use under the first criteria, it can become fair use if there is no significant adverse effect on the aggrieved party)

Thus, limited copying of portions of a book for classroom use would be fair use, but wholesale copying of the entire book would not be fair use.

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One thought on “Bar review note – copyright, plagiarism, fair use

  1. The question may arise – Can fair use be a defense against a charge of plagiarism? It would seem that the answer is in the negative, unless one can imagine a situation where plagiarism does not affect the market for the work plagiarized. For example, if I were to plagiarize the writings of a little-known author who doesn’t want to make money, my act seems to fall under the fair use doctrine. But once discovered, I expose myself to ridicule.

    Perhaps the ensuing embarrassment is punishment enough. Perhaps..

    Like

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