COPYRIGHT AND RELATED LAWS:

EFFECTS ON LIBRARY SERVICE IN THE PHILIPPINES

Vyva Victoria M. Aguirre, LL.M., M.L.S.
ABSTRACT
The Philippine Librarianship Act acknowledges that the State recognizes the
essential role of librarianship as a profession in developing the intellectual capacity of the
citizenry thus making library service a regular component for national development
This provision of law emphasizes the role of librarians and library service in national
development through development of the intellectual capacity of the Filipino people. t
also emphasizes the duty of librarians and library service to collect! organize and
disseminate information necessary for national development. "hen intellectual property
rights became a global issue! the #hilippine government revised the rules on copyright to
conform to international standards. Subse$uently! related laws were passed in order to
meet the demands of technology and its effects on intellectual property rights.
"hile welcoming the developments in the field! a ma%ority of librarians in the
#hilippines view copyright and related laws as a sort of bane on library service and the
scholarship that it is supposed to promote! as well as on the people&s right to access
information. This perception stems from the inade$uacies of such factors as library
budgets and the inability of most scholars to ac$uire e'pensive books! digital or
otherwise. ronically! copyright and related laws were also designed for national
development. The #hilippine (onstitution itself secures to scientists! inventors and artists
e'clusive rights to their intellectual creations particularly when beneficial to the people.
This paper will e'plore the provisions of the copyright law as embodied in the
#hilippine ntellectual #roperty (ode! and the relevant provisions of the )*(ommerce
+aw and the ,ptical -edia +aw. t will attempt to discover whether these laws and their
strict implementation indeed negatively affected literacy! scholarship and research. t will
also attempt to dissect the fair use doctrine especially as applied in the #hilippines. t is
hoped that the discussion will succeed in correcting certain misconceptions about
copyright and in adopting measures to ensure compliance with what is legally re$uired
while taking into account the needs of scholarship and information dissemination for
national development.
Introduction.
#hilippine law recognizes the essential role of librarianship as a profession in
developing the intellectual capacity of the citizenry thus making library service a regular
component for national development /Rep. Act No. 924, art. !, sec.20 This conte't
finds a fitting background for a study on intellectual property rights in the country. n
accordance with the above $uoted provision of the Philippine Librarianship Act!
librarians are mandated to contribute to the development of the intellectual capacity of
the Filipino people. This is the most important reason for the grant of professional status
for librarianship in the #hilippines.
+ibrarianship is a service*oriented profession. The commodity that it services is
information. nformation is a vital component of national development. Therefore!
librarians must perform their role as information providers in a way that encourages
intellectual growth. t is! however! true that a tension e'ists in this country between this
need to satisfy the general public&s right to access sources of knowledge and the
limitations imposed by the copyright law and other related laws such as the "#$o%%erce
la& and the 'ptical Me(ia la&.
The #hilippine librarians& apprehensions about these laws stem largely from a lack
of understanding of how they operate. 1s a result! librarians tend to swing towards either
of two e'tremes. towards a strict interpretation and implementation of the rules! thus
hampering service! or towards complete disregard of them! bordering on irresponsibility
that can open them to charges of copyright violation.
ronically! the reason invoked for intellectual property rights is also development.
1ccording to the #hilippine (onstitution! the purpose of intellectual property protection
is to secure scientists&! inventors& and artists& e'clusive rights to their intellectual
creations! particularly when beneficial to the people. /Art.)!V, sec.*+0 This seems to
imply that scientists&! inventors& and artists& e'clusive rights to their creation will
eventually benefit the public because it is this e'clusivity of benefits! especially the
economic kind! that will encourage them to keep on creating and granting access to their
creations. t is thus necessary! as (hristine 2orgman suggests! to find the proper balance
between the citizen&s right for the broadest possible access to information and the rights
of creators or information to be compensated for their work. /2orgman! 34440
This paper will discuss how laws on creator&s rights affect library service in the
#hilippines. t will also show how certain efforts to protect intellectual property rights in
the digital environment can affect library service.
Philiin! Co"ri#ht L$%.
The creator&s right of ownership over his5her creation is protected under the
#hilippine (ivil (ode. 1ccording to the (ivil (ode! ownership is ac$uired either by
occupation 6or7 by intellectual creation. /Art.,*20 2y intellectual creation! the
following persons ac$uire ownership.
/80 The author with regard to his literary! dramatic! historical! legal!
philosophical! scientific or other work9
/30 The composer! as to his musical composition9
/:0 The painter! sculptor! or other artist with respect to the product of his
art9
/;0 The scientist or technologist or any other person with regard to his
discovery or invention. /(ivil (ode! art. <380
The (ivil (ode further states that copyright shall be governed by special laws.
/Art.,240 The relevant law in the #hilippines is #art = of Republic Act No. -29+! also
known as the !ntellectual Property $o(e o. the Philippines /hereafter referred to as the !P
$o(e0. Section 8<3.8 of the !P $o(e enumerates fifteen /8>0 items that fall under the
category intellectual creations in the literary and artistic domain. ?nder the law!
protection is accorded by the sole fact of cr!$tion and not by registration with the
copyright office. To $uote sec. 8<3.3 of the !P $o(e!
3
"orks are protected by the sole fact of creation! irrespective of their mode
or form of e'pression! as well as of their content! $uality and purpose.
/formerly sec.2 o. P/ No. 49a0
(opyright is defined in the #hilippine +egal )ncyclopedia /Sibal! 8@AB0 as an
intangible! incorporeal right granted by statute to the author or originator of certain
literary or artistic productions whereby he is invested! for a limited period! with the sole
and e'clusive privilege of multiplying copies of the same and publishing and selling
them. (opyright! therefore! is the right to own and e'ploit one&s creation. 1s owner! the
copyright holder en%oys almost absolute rights over the thing owned! including the right
to dispose and even to destroy. n practice! the original owner! the creator! transfers
copyright to a publisher or distributor.
1s an ob%ect of ownership! copyright is also sub%ect to certain limitations. For
instance! in the same manner that some things are beyond the commerce of men! ideas!
concepts! principles! discoveries or mere data as such! even if e'pressed! are beyond the
protection of copyright laws. Section 8<> of the (ode further e'cludes the following from
copyright protection. procedure! system! method or operation! news of the day and other
miscellaneous facts having the character of mere items of press information! and official
te'ts of legislative! administrative or legal nature! including official translations thereof.
,n the other hand! when ideas and data are presented in a particular manner! the
manner of e'pression! the author&s analysis or interpretation of events! the way he
structures his material and marshals facts! his choice of words and the emphasis he gives
to particular developments are sub%ect to protection. /Salinger vs. Ran(o% 0ouse, -**
12( 920
R!#i&tr$tion $nd d!o&it.
n the #hilippines! there is a general misconception that the work must first be
registered with the copyright office before it can be protected. #erhaps! this
misconception arises from the e'istence of a provision in the !P $o(e re$uiring
registration and deposit of two /30 copies of the work with the Cational +ibrary and the
Supreme (ourt library. Section 8@8 of the !P $o(e provides.
Registration an( /eposit &ith the National Library an( the Supre%e
$ourt Library.D1fter the first public dissemination or performance by
authority of the copyright owner of a work falling under subsections
8<3.8! 8<3.3 and 8<3.: of this 1ct! there shall! for the purpose of
completing the records of the Cational +ibrary and the Supreme (ourt
+ibrary! within three /:0 weeks! be registered and deposited with it! by
personal delivery or by registered mail! two /30 copies or reproductions of
the work in such form as the directors of said libraries may prescribe
The rest of this section refers to the imposition of fines for non*registration and
non*deposit after notice from the directors of the two libraries mentioned. Eowever! a
careful reading of the above*$uoted portion of the provision would show that registration
:
and deposit are re$uired only after the first public dissemination or performance of the
work. Furthermore! the purpose given is not to accord copyright which! according to sec.
8<3! attaches from the moment of creation! but to complete the records of the Cational
+ibrary and the Supreme (ourt +ibrary. ,ne can! nevertheless! assume that this deposit
re$uirement is also necessary for the purpose of preserving the country&s cultural! legal
and scientific heritage.
t is interesting to note that the former #hilippine copyright law distinguished
between registration and non*registration in the following manner. if a law is not
registered with the copyright office! the copyright owner can only demand that
infringement be terminated and the infringing copies confiscated and destroyed but
cannot demand compensation for damages. This distinction has been removed from the
new law.
E'clu&i(! Ri#ht& $nd th! Doctrin! o) F$ir *&! in th! Philiin! Cont!'t.
(opyright consists in certain e'clusive rights! namely! the right to publish! to
reproduce! and to first sale. n the #hilippines! the biggest problem that librarians face is
the e'clusive right of reproduction. Fortunately! this is not absolute. Through the court*
developed doctrine of fair use! the general public is given the right to reproduce a work
sub%ect to specific limitations. ?nder #hilippine law! fair use of a work for criticism!
comment! news reporting! teaching! including multiple copies for classroom use!
scholarship! research and similar purposes does not infringe copyright. /Sec. *-3.*, !P
$o(e0
Fair use has no e'act definition under the law. Eowever! authorities have agreed
on the following criteria enumerated in sec. 8A>.8 of the (ode.
/a0 the purpose and character of the use! including whether such use is of a
commercial nature or is for non*profit educational purposes9
/b0 the nature of the copyrighted work9
/c0 the amount and substantiality of the portion used in relation to the copyrighted
work as a whole9 and
/d0 the effect of the use upon the potential market for or value of the copyrighted
work.
Traditionally! fair use is more easily accepted when the purpose of copying is
educational in character and purpose than when it is commercial or for profit. t does not
mean! however! that all copying for educational or classroom purposes is fair use. The
#hilippines has not had any case brought before the courts to challenge fair use in this
conte't. To illustrate the point! we must draw on 1merican court decisions. n Princeton
4niversity vs. Michigan /ocu%ent Service, !nc. /unreported! 8@@30! the ?.S. (ourt did
not consider photocopying of materials for compilation in course packs as fair use
because photocopying was done by a commercial vendor. ,n the other hand! in another
case! the ?.S. (ourt tended towards the more fundamental aim of protecting the progress
of science and the arts. n 5illia%s vs. 5il6ins $o. 74-, 12( *+438 it gave the opinion
that medical science would be seriously hurt if library photocopying was stopped.
;
Li+r$r" Photoco"in# $& F$ir *&!.
n the #hilippines! the !P $o(e laid down some rules for library photocopying.
?nder sec. 8AA.8 any library or archive whose activities are not for profit may! without
the authorization of the author or copyright owner! make a single copy of the work by
reprographic reproduction in the following circumstances.
/a0 where the work cannot be lent to users in its original form because of its
fragile character or rarity9
/b0 where the works are isolated articles in composite works or brief portions of
other published works and it is more e'pedient to reproduce and lend them!
instead of the whole volume or book! for purposes of study or research9 and
/c0 where the purpose for making the copy is in order to preserve it! or! if the
work has been lost! destroyed or rendered unusable! in which case the library
can borrow another copy and reproduce this to replace the lost or destroyed
copy! provided that copies are no longer available with the publisher.
?nder this above*$uoted rule! #hilippine libraries are only allowed to make a
single copy and! in the case of replacement volumes! only when the book is no longer
available with the publisher. +ibraries are not allowed to photocopy a volume of a work
belonging to a multi*volume series or to reproduce missing tomes or pages of magazines
or similar works unless these are out of stock. -oreover! if the library is entitled by law
to receive copies of printed works! it may reproduce copies of these works should it fail
to receive them and should they be out of stock. /Sec.*--.20
Section 8A<.8 of the (ode allows private reproduction of a published work in a
single copy! where the reproduction is made by a natural person e'clusively for research
and private study. Eowever! the following are not covered by this general permission.
/a0 a work of architecture in the form of a building or other construction!
/b0 an entire book! or a substantial part thereof! or of a musical work in
graphic form by reprographic means!
/c0 a compilation of data and other materials!
/d0 a computer program! e'cept as provided for in sec. 8A@! and
/e0 any other work in cases where reproduction would unreasonably
conflict with the normal e'ploitation of the work or would otherwise
unreasonably pre%udice the legitimate interests of the author.
The e'ception in sec.8A@ for computer programs refers to a single backup copy of
a software that the library has lawfully ac$uired. "ith respect to reasonable copying of
a substantial part as well as normal e'ploitation and unreasonable pre%udice to the
legitimate interests of the author! the criteria laid down for the fair use doctrine should
be our guide.
These rules do not and cannot cover all circumstances of photocopying. 1
problem often faced by librarians in the #hilippines is determining whether or not they
can be accused of abetting violations of copyright law and other related laws already
mentioned.
>
In)rin#!,!nt o) co"ri#ht.
n the #hilippines! infringement of copyright is punishable under sections 38B*38<
of the !ntellectual Property $o(e. The liability is not only civil /where the infringer only
pays damages0 but also criminal /where he or she can also land in %ail0. Eere lies the
tension e'perienced by #hilippine librarians between their duty to optimize access to
information and strict adherence to the law on copyright. +ibrarians in the #hilippines
are often troubled by the possibility of finding themselves impleaded as co*defendant in
copyright infringement cases! with good reason.
n addition to possible civil and criminal liability! librarians are also bound by the
ethical rules of the profession. The ALA $o(e o. "thics /8@@>0 provides! in its statement
of principles! that the members of the 1ssociation recognize and respect intellectual
property rights. /#rinciple =0 This provision was not replicated in the #hilippine $o(e
o. "thics .or Librarians /*9920. Eowever! this obligation can be subsumed in the general
provision for respect for the supreme authority of the state as e'pressed through its laws
and implemented by its agencies. /Art.!, sec.*0 t is also included in the rule en%oining
librarians to refrain from doing acts contrary to laws! morals! customs and public
interest. /Art.!!, sec.40 Since protection of copyright is part of the laws of the land! it
becomes an ethical issue for librarians.
Co"ri#ht $nd Li+r$r" S!r(ic! in th! Di#it$l En(iron,!nt.
The situation threatens to become even more comple' with respect to non*print
sources. n the #hilippines! the "lectronic $o%%erce Act /Rep. Act No. -,92, 22220
penalizes piracy or 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 signatures or copyrighted works including legally protected
sound recordings or phonograms or information material on protected works! through the
use of telecommunication networks such as! but not limited to! the internet! in a manner
that infringes intellectual property rights /Sec. ++, par. b0 The #hilippine legislature
also passed Republic Act No. 92+9! otherwise known as the 'ptical Me(ia Act o. 222+.
This 1ct penalizes with fine and imprisonment the mastering! manufacture! replication!
importation or e'portation of optical media without the necessary licenses from the
,ptical -edia 2oard! and the mastering! manufacture or replication of any intellectual
property in optical media intended for commercial profit or pecuniary gain without
authority or consent of the owner. /Sec.*9, par. a0
The passage of these two laws was made necessary by the demands of the digital
world. The emergence of the digital environment has become a ma%or copyright problem
because of the ease with which works on*line can be copied and reproduced. n reaction!
the ?.S. (ongress passed a law called the /igital Millenniu% $opyright Act //M$A, *,9
A.L.R. 1e(. +*90 that gives copyright owners the right to control access to technologically
protected works. n a sense! this goes beyond copyright because instead of relying on the
B
sanctions against copyright violation the copyright owner simply employs technological
self*help measures to prevent unauthorized access and copying. =iolation consists in
trying to circumvent the technological barrier that controls such matters as terms of
payment and limitations on the number of copies one can make! among others. The
barrier can also tie use of the work to a certain technology.
(onsidering that the digital age has removed territorial barriers! laws of this kind
affect library services all over the world! including and especially in countries like the
#hilippines where most libraries e'ist with subsistence*level budgets. Fan +. 2urk /344:0
is of the opinion that this 1merican law has negative implications. 1irst! it has created a
new rightDthe technologically protected e'clusive right of accessDthat is $uite different
from copyright. Secon(! it ignores the e'ception of fair use! normally found in most
copyright laws. 9hir(! it renders obsolete the traditional and statutory classification of
copyrightable and non*copyrightable creations. Ceedless to say! these implications will
have a negative effect on the $uality of library service.
9he technologically protecte( e:clusive right o. access.
The technologically protected e'clusive right of access affects the libraries&
budgets considerably. "hen the work is available only in its digital form and distributed
only by digital transmission! and access to the work is tied up to a certain technology!
libraries will have to ac$uire the proper computer with the proper technology to access
this work. -oreover! unlike ac$uisition of a hard copy of a book which happens only
once! access to network services is usually only for a limited period and must be
periodically renewed. Genewal of subscription can mean an increase in subscription
price. Some services can also re$uire additional costs each time they are accessed and
these costs can be passed on to library users! thus further increasing the cost of education
and research.
1air use e:ception.
1s earlier mentioned! the fair use doctrine has been codified in the #hilippine law
on copyright. Fespite this! access to technologically protected work can be limited by
certain technical controls applied by the publisher or author so that libraries and their
users can no longer make copies even for classroom use! educational and research
purposes! and other uses traditionally e'empt from the copyright holders& e'clusive right
of reproduction.
5or6s not sub;ect to copyright.
deas! concepts! principles! discoveries! mere data as such! official te'ts of
legislative! administrative or legal nature! and other works that are normally not capable
of being protected under the copyright law can receive protection by limiting access to
them technologically. 1 very important e'ample of the deprivation that such an event
would cause is the capacity to limit access to official te'ts of a legislative! administrative
or legal nature.
<
<overn%ent Publications an( '..icial 9e:ts.
+ibraries in the #hilippines benefit much from the fact that official te'ts of laws!
%urisprudence! administrative rules and regulations may be obtained at no cost or merely
at cost from the respective government agencies although the !P $o(e allows the
publishing government agency to impose the payment of royalties when the use is
commercial or for profit. /Sec.*,.*0 Eowever! because government agencies are often
beset by financial problems! laws and court decisions! often come in the form of
compilations produced by commercial publishers who are usually more efficient and
more up to date in bringing these documents to the public. ?nderstandably! these
publishers and producers of print and electronic legal sources demand copyright
protection to ensure not only return of investment but also profit. Sec.8<:.8! par. /b0 of
the !P $o(e protects compilations of data and other materials which are original by
reason of the selection or coordination or arrangement of their contents. n this situation!
the free nature of official te'ts of laws and %urisprudence becomes merely theoretical!
especially if libraries and their readers are forced to access these te'ts only from paid
network services.
Conclu&ion.
This state of affairs between copyright and library service is not uni$ue to the
#hilippines. 1n 1merican author! Gichard ). Gubin /34440! in fact asks the following
$uestions. To what e'tent does the creator of a work have the right to control its
dissemination following publicationH f the library&s mission is to promote the
dissemination of information to all users to fulfill its democratic mission! then is it not
ethically bound to disseminate as much information as possibleH are not librarians
ethically obligated to test the bounds of others& control over the dissemination of
informationH
f this is an issue in the most developed country in the world! with more reason is
it an issue in the #hilippine conte't. The cost of print and non*print sources of
information and knowledge have risen over the years and the citizenry&s capacity to
afford this cost has gone down considerably. n conse$uence! photocopying service
centers have mushroomed in and around school and university premises. -ost libraries
also house photocopying facilities for use of their readers.
n a study made by Felicitas de la Gosa for her masters thesis on copyright law
awareness and compliance in university libraries in -anila /34440! respondent librarians
reported encountering the following problems.
/80 students& re$uests for reproduction of te'tbooks to avoid purchase of
e'pensive original copies 6B4I of respondents7!
/30 re$uests to photocopy portions of theses without the author&s permission
6>>.8I of respondents7! and
/:0 re$uests to photocopy entire books by researchers from other institutions
6;AI7.
A
The small number of librarians who responded to the survey limited these
findings. The real situation may even be worse. The more significant items in the study
are the reasons given for the problems encountered! namely! lack of affordable books in
bookstores! difficulty in getting in touch with theses writers! and the unavailability of
books in the local bookstores and libraries. The first and the third reasons are obviously
related to the high cost of books.
To Gubin&s $uestions! we may therefore add. Eow can our professors with their
low incomes afford to buy all the books and subscribe to all the %ournals that they need
not only for their teaching but also for their research interestsH Eow can our students
afford the sameH )ven if they can afford to buy one te'tbook! should their reading be
limited to a single book per sub%ectH s this not limiting their educationH 2eyond the
classroom! must the scholar&s ability to properly appreciate and build on previous
academic work be constrained by restricting access to this workH 1s professionals who
are ethically bound to obey the law and ethically bound to fulfill their role in the
educational process! #hilippine librarians are forced to stand in the middle of these two
e$ually important obligations and e'perience being pulled towards one or the other. t is
not an easy task. t needs a lot of discernment and common sense.
References:
2orgman! (hristine +. From Jutenberg to the Jlobal nformation nfrastructure. K
(ambridge! -ass. . -T #ress! 3444.
2urk! Fan +. Anticircu%vention Misuse! ?(+1 +aw Gev. /Lune 344:0
Fe la Gosa! Felicitas J. (opyright +aw 1wareness and (ompliance in Selected
?niversity +ibraries in -etro -anila. K Special #roblem /-aster of +ibrary Science!
?niversity of the #hilippines0. K Muezon (ity . 3444.
#hilippine +egal )ncyclopedia 5 Lose 1gaton G. Sibal. K Muezon (ity . (entral +awbook
#ub.! 8@AB.
Gubin! Gichard ). Foundations of +ibrary and nformation Science. K Cew Nork . Ceal*
Schuman #ub.! 3444.
@