Copyright issues for authors

-presentation delivered by sir (note: not among the ppt given by sir)
Creations: Protected by IP rights
*Copyrights: expression
*Trademarks: names
*Patents: Ideas
Items of expression
*literary
*Dramatic
*Musical works
1. Etc…
-if created as part of original expression is eligible for copyright protection if in tangible form (recorded…)
Copyrights does not protect ideas, but of the author's expression of that idea
-ideas may be copied, but not the expression (or else, copyright infringement)
-when protection starts: as soon as expressed (from moment of creation, no need for formality)
-purpose: promotion of science and useful arts
-limited protection period though: subject to limited periods of exclusivity on the part of the author; once the term expires, whatever the author may have created would lapse into the public domain and may be enjoyed by all w/o fear of being sued for copyright infringement
Rights of author in copyright
2. Reproduction
3. Dramatization, translation, transformation
4. Creation of derivative works
5. Distribution
6. Public display and performance
7. Right of rental for certain classes of works
-if infringement of these rights: liable for copyright infringement
-who considered to have these rights: creator of work/ someone to whom the creator assigned the copyright
e.g. writer assigns the right to a movie producer, movie producer pays the writer
Work for hire doctrine (copyright/patents): if you are employed for the purpose of creating something for your employer, anything you would create as the employee of the company belongs to the employer. If the duties given to you is outside your task, it's possible that copyright would belong to you (even if it was ordered to be done by you by your employer).
Test: WON you are a mere employee for hire or somebody who, by operation of law, is considered an author
e.g. You are making computer games, w/o the knowledge of your employer (not your job to do the computer games): you would have the right to copyright, not your employer
-but the employer may have action against you for not doing your job, you're doing another thing when you're supposed to be working!!! Breach of labor contract
What can be copyrighted?
*original expression
*independently created by the author
*not copied from any other source
--if merely copied, no protection, may be sued for copyright infringement
*Independent creation
Can copyright:
• Literary works
• Musical works - even if it doesn't sound good, and you’re the only one enjoying it
• 2d and 3d art
• Audiovisual
• Computer software
Cannot copyright
• Ideas - cannot be monopolized by just one person
• Lists
• Facts
• System or method of operation - in the IP code
• Concept or principle
• Titles, slogans - e.g. movie titles, slogans
• Scenes a' faire -- expressions that flow naturally from an idea and are but one of a limited number of ways of expressing the idea
Are web materials copyright protected?
-they may be eligible for copyright protected…
• text of web pages
• Photographs
• Email messages
• Usenet messages
• Sound files
• Graphic files
• Exe programs
• Computer program listings
• News stories
• Software
• Novels
• screenplays
-there might be some risk that may arise if these materials are used (and assuming they are also original) without license
INDEPENDENT CREATION
-material is created by author himself w/o copying it from any other source
-does not lose copyright protection even if similar to a prior work AS LONG AS IT IS THE AUTHOR'S ORIGINAL WORK (similarity does not mean that there's copyright infringement; it is possible that there may be 2 works similar, but it may still be considered that each are copyrightable
ORIGINAL and DERIVATIVE WORKS
ORIGINAL: protected from moment of creation
DERIVATIVE: also protected ONLY WHEN the 2nd author (Derivative author) obtained license from the original author - or else not protected: 2nd author is an infringer
Why protected:  creation calls for intellectual effort
e.g. you liked a work so much, you translated it in some way. Would this entitle you to a copyright? NO! Unless you have been creating your own work with a license from the original author
Parodies: derivative author creates a work based on an earlier work w/o a license may be infringing the earlier work if his output is a tranformative work that meets the fair use factors
Pretty woman parody: Campbell v. Acuff-Rose Music Inc: fair use doctrine
…Luke Skywalker (a.k.a. Luther Campbell) - sir: typical infringer
...court held in the case that to determine WON there was infringement, determine if there's a fair use doctrine in Parody: and here, there's some leeway in borrowing somebody else's work, especially if there's a parody
4 factors considered:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
-Transformative value: give somebody else the opportunity to transform some work that somebody else created before
-no infringement: not just copy, it's a rap song totally different
*if, on the contrary, the commentary has no critical bearing 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 borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger
*The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. [n.16] Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use. As Justice Holmes explained, "[i]t would be a dangerous undertaking for persons trained 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."
1. Commercial or non-profit educational purpose of a work
the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness
fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use." 471 U. S., at 562. 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. 
2. Nature of the copyrighted work
-here: song
This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied... We agree with both the District Court and the Court of Appeals that the Orbison original's creative expression for public dissemination falls within the core of the copyright's protective purposes. This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
we recognize that the extent of permissible copying varies with the purpose 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("[E]ven 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 this factor 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.
-the amount that you copy depends on the purpose for which you are copying
-the work of the original singer was not disparage-able. The second song did not amount as a substitute for the original in the market
 Parody's humor, or in any event its comment, necessarily springs from recognizable allusion to its object 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. See, e. g., Elsmere Music, 623 F. 2d, at 253, n. 1; Fisherv. Dees, 794 F. 2d, at 438-439. 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. 
-in this case: same about a hooker/prostitute
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," 972 F. 2d, at 1438, but just for that reason, we fail to see how the copying can be excessive in relation to its parodic purpose, even if the portion taken is the original's "heart."
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 and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market" for the original. Nimmer § 13.05[A][4], p. 13-102.61 (footnote omitted); accord Harper & Row, 471 U. S., at 569; Senate Report, p. 65; Folsom v. Marsh, 9 F. Cas., at 349. The enquiry "must take account not only of harm to the original but also of harm to the market for derivative works." Harper & Row,supra, at 568.
We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a 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 aswell as artistically," B. Kaplan, An Unhurried View of Copyright 69 (1967), the role of the courts is to distinguish between "[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it." Fisher v. Dees, 794 F. 2d, at 438.
-copyright's goal is to protect creativity!
HELD: escape liability
 2 Live Crew's song comprises not only parody but also rap music, and the derivative market forrap music is a proper focus of enquiry, see Harper & Row, 471 U. S., at 568; Nimmer § 13.05[B]. Evidence of substantial harm to it would weigh against a finding of fair use, [n.23] because the licensing of derivatives is an important economic incentive to the creation of originals. See 17 U.S.C. § 106(2) (copyright owner has rights to derivative works). 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 very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.

Sir's website: http://www.benedict.com/
SEGA v. ACCOLADE case
- Genesis is not an open system, and in order for a game to work on the system, the game has to know the proprietary interface component of Sega's Genesis system, particularly the password that needs to be incorporated on any video game cartridge played on the Genesis system.
-The only way that Accolade could determine the password was by de-compiling the object code of one of Sega video games to produce a translation of the source code. As a necessary step in this reverse engineering procedure, Accolade had to copy the Sega object code. Sega sued Accolade for copyright infringement based on the copying of the object code.  (reverse engineering)
-Accolade argued that its copying was a fair use as allowed by the Copyright Act. Section 107 allows copies of a copyrighted work to be made for purposes such as criticism, comment, or research.
H: Because Accolade needed to copy and disassemble Sega's copyrighted video game to obtain the necessary interface requirements, the court held that where reverse engineering copies a work as the only way to access the ideas and the functional elements of the work, such copying is a fair use if a legitimate reason for the use exists. The court thus held that a copyright in a work cannot protect un-copyrightable ideas and functional elements with that work.
Suntrust Bank, as Trustee of the Stephen Mitchell Vs. Houghton Mifflin Company,USCA, 11th Circuit, October 10, 2001
Gone With the Wind vs. The Wind Done Gone
-a basta, TWDG acknowledges that it was from Gone with the wind, as a critique of GWTW's depiction of slavery and the Civil-War era
-in GWTW, the slaves and their owners were depicted as cordial with each other. However, Alice Randall made research on what really happened and found out that it was not the case. That is why she made TWDG
Is there "substantial similarity" between the two works such that "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work."
-no infringement if it's a parody, which really intends to mimic the original to make its point
-fair use defense of parody: must be evaluated using the 4 factors….
-when parody: when its aim is to comment upon r criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic work.
-TWDG: using a novel to convey the criticism is more powerful vehicle than a scholarly article!
4 factors
1. Purpose and character of the work
-there's a profit purpose but this has a highly "transformative" use of the copyrighted elements
2. Nature of the copyrighted work
-GWTW undoubtedly entitled to greatest degree of protection (in accordance with the hierarchy of copyright protection, vs. derivative works or factual compilations)
3. Amount and substantiality of the Portion used…
-parody must be able to "conjure up" at least enough of that original to make the object of its critical wit recognizable
-transformative: uses lines from GWTW but uses them w/ a completely new significance
-still fair use even if more extensive use than necessary to conjure up the original: provided parody builds upon the original…
4. Effect on market value of original
-to commercialized GWTW, they were granting derivative licenses to promote it
-SC: sun trust however fails to demonstrate that TWGB would create harm to the sales of GWTW
H: TWGB entitled to fair-use defense
WILSON ONG CHING KLAN CHUNG V. NATIONAL CEREALS OIL AND FOODSTUFFS IMPORT AND EXPORT
-"Ganyan mga kaso natin…mga bihon…" - sir amado
F:
-infringement of copyright on the cellophane wrapper w/ 2 dragons design
-Respondend filed countersuit for cancellation of the copyright; moved to dismiss: the outcome would depend on the copyright cancellation case
H: countersuit prevails
However, if this be under IPL Code: Sec 17, RA no. 166a: the case, whatever it is, should be decided by only 1 entity - the court which acquired jurisdiction over it - all the issues that may be involves should be decided before that court - prevent multiplicity of suits
OTHER FORMS of copyright infringement:
-see examples in Sir's powerpoint presentation: Copyright_P2.ppt
*In a band, a & b compose the music, c does the lyrics. In case of joint authors (Sec178.2): the author of each part that can be separately  and identifiable used shall be the original owner of the copyright in the part that he has created - if cannot be separated, rules of co-ownership would be used
*work for hire doctrine: R178.3 a & b: it it's not part of his regular duties but uses the facilities and materials of the employer or if the work is regularly assigned as his duties and the work is a result of such job
*A & B models, C photographer. C used the photos as advertisement. A & B sued C for copyright infringement. H: C is the author, so not copyright infringement - R 178.4 - on commissioned work (the artist owns the copyright but the one who commissioned the work owns the output)
SEC. 178. Rules on Copyright Ownership
       Copyright ownership shall be governed by the following rules:
       178.1. Subject to the provisions of this section, in the case of original literary and artistic works, copyright shall belong to the author of the work;
       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, their rights 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 part shall be the original owner of the copyright in the part that he has created;
       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 the employer. 
            (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 the contrary.
       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 work, but the copyright thereto shall remain with the creator, unless there is a written stipulation to the contrary;
       178.5. In the case of audiovisual work, the copyright shall belong to the producer, the author of the scenario, the composer of the music, the film director, and the author of the work so adapted. However, subject to contrary or other stipulations among the creators, the producers shall exercise the copyright to an extent required for the exhibition of the work in any manner, except for the right to collect performing license fees for the performance of musical compositions, with or without words, which are incorporated into the work; and
       178.6. In respect of letters, the copyright shall belong to the writer subject to the provisions of Article 723 of the Civil Code. (Sec. 6, P.D. No. 49a)
SEC. 179. Anonymous and Pseudonymous Works
       For purposes of this Act, the publishers shall be deemed to represent the authors of articles and other writings published without the names of the authors or under pseudonyms, unless the contrary appears, or the pseudonyms or adopted name leaves no doubts as to the author’s identity, or if the author of the anonymous works discloses his identity. (Sec. 7, P.D. 49)
Pasted from <http://www.ipophil.gov.ph/IPCode/CopyrightsCh6.htm>
Limitations on Copyright
E.g. art exhibit with news coverage (through video)  on commentary - on limitation of copyright - criticisms - Section 184.d
*Blanco father and son were commissioned to paint a mural in the lobby of Solid for P2M.
1. Who owns the mural?
2. Who owns the copyright of the mural?
-it would depend on the contract between them
But answer in the reviewer:
1. Solid owns it.
2. GR: Blanco father and son owns the copyright, unless there's a stipulation to the contrary
5. UP Professor's works were read and aired on the tv as part of a distance learning program. They sued, saying that their consents were not got: Not a copyright infringement: Section 184.e: allowed, provided that the source is mentioned
*TRADEMARK EXAM: FEBRUARY - midterms - 25%
*Copyright and patents: Combined - essays - 30%
-objective exams
-true or false
-essays