How to Spot Copyright Infringement

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Published — February 20, 2019

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

Read also: A Guide on Copyright Law

While our laws on the protection of tangible properties are clear and easily realized, when it comes to protecting intangible property, particularly works created under the realm of intellectual property law, the rights and reliefs for its protection are more difficult to be realized (learn more). Thus, in order to easily get a grasp on the rights and reliefs on the Law on Copyright, this article will give its readers a glimpse on how to detect copyright infringement under the established laws and case precedents.

Currently, reports (read more) are piling up that some people are joining the hype of streaming or even downloading television series or dramas and movies illegally uploaded online, whether it be local, Asian, or Western shows. Aside from televised series or movies, music, pictures and electronic books (eBooks) are also illegally uploaded and are available for public consumption. Most of these published works online have descriptions or notes from the uploader. One of the most common descriptions or notes is, “No copyright infringement intended”, but is there really no copyright infringement?

The truth of the matter is that, there is Copyright Infringement. Elaborately, to ascertain whether or not there is Copyright Infringement, it is important to define Infringement and its essential elements.Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright.  A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such cases, did not know what works he was indirectly copying, or did not know whether or not he was infringing any copyright; he at least knew that what he was copying was not his, and he copied at his peril. In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute a piracy (Columbia Pictures, Inc et al vs Court of Appeals, et al; G.R. No. 110318 August 28, 1996).

In the case of Feist Publications, Inc. v. Rural Telephone Service Company (499 U.S. 340; 111 S.Ct. 1282, 1991), the Supreme Court said that to establish copyright infringement, two elements must be proven: (a) Ownership of a valid copyright and (b) Copying of constituent elements of the work that are original.

The gravamen of copyright infringement is not merely the unauthorized “manufacturing” of intellectual works but rather the unauthorized performance of any of the acts covered by Section 177. Hence, any person who performs any of the acts under Section 177 without obtaining the copyright owner’s prior consent renders himself civilly and criminally liable for copyright infringement (NBI-Microsoft Corporation vs. Hwang 460 SCRA 428, June 21, 2005). Moreover, Section 539 of PD 49, now Section 177 of Republic Act. No 8293 (RA No. 8293), enumerates the rights vested exclusively on the copyright owner. Said provision provides:

“Copyright or Economic Rights. – Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;

177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental;

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work.;”

An expert on Commercial Law, Atty. Timoteo Aquino in adding explanation to Section 177.1 of RA No 8293: Reproduction of the work or a substantial portion of the work, a work is reproduced when its expression is copied or duplicated. Thus, when an entire article is computer-scanned, stored in the hard-disk of a computer or in some other medium such as the internet, there is reproduction.

           The current technological advances in the Philippines which includes the internet and its availability to all people around the world can move the economy faster and increase the country’s growth (learn more). However, while the accessibility of the internet has proven benefits to our economy, it also became a tool in disseminating copyright infringing products or works. Thus, it is important to be knowledgeable on the current Laws on Copyright Protection in order to avoid and spot copyright infringement. Besides, acts constituting copyright infringement are not left without punishment. Under Section 217, copyright infringement is punishable by the following:

“217.1. Any person infringing any right secured by provisions of Part IV of this Act or aiding or abetting such infringement shall be guilty of a crime punishable by:

a. Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand pesos (P50,000) to One hundred fifty thousand pesos (P150,000) for the first offense.

b. Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from One hundred fifty thousand pesos

(P150,000) to Five hundred thousand pesos (P500,000) for the second offense.

c. Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from Five hundred thousand pesos (P500,000) to One million five hundred thousand pesos (P1,500,000) for the third and subsequent offenses.”

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OTHER SOURCES:

1. Soriano-Dionisio, Rowena L, Copycat No More: A Legal Framework Extending Copyright Protection to Famous Movie Lines by Celebrities, 60 ATENEO L.J. 1071, 2016
2. Corrales, Nestor, 3 arrested for illegally streaming local TV shows movies, The Philippine Inquirer, August 01, 2015, https://technology.inquirer.net/43438/3-arrested-for-illegally-streaming-local-tv-shows-movies, Last Accessed: February 12, 2019
3. Panaligan, Rey, Publisher awarded P24.7 M in damages for copyright infringement, December 10, 2017, https://news.mb.com.ph/2017/12/10/publisher-awarded-p24-7-m-in-damages-for-copyright-infringement/, Last Accessed: February 12, 2019
4. Santos, Matikas, Internet can boost economy, The Philippine Inquirer, June 19, 2012, https://technology.inquirer.net/12343/internet-can-boost-economy-%E2%80%93-networking-firm, Last Accessed: February 12, 2019

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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