INFRINGEMENT OF COPYRIGHT

Factors to consider in determining whether there is infringement or not

If it contains the core thesis of the work or constitutes the unique contribution that makes the work original (DISTINCTIVE PART OF THE WORK) If the USER enriches himself at the authors expense If the author is dependent on other sources & the originality is minimal If the two works heavily compete in the same market

THERE MUST BE SUBSTANTIAL SIMILARITY The unlawful reproduction, distribution, or adaptation of a work, though stored on the hard disk of a computer, would be infringement.

MORAL RIGHTS & ECONOMIC RIGHTS Moral Rights

Moral rights are distinct from economic rights and the transfer or alienation of economic rights does not affect moral rights. The transfer of economic rights does not allow the transferee to attribute authorship to himself or to authorize a bastardization of the work. Moral rights which under the regime of PD 49 were perpetual and imprescriptible, now have a term of a lifetime of the author and fifty years thereafter.

Collective Work & Joint Work

A collective work is a work which has been created by two or more natural persons at the initiative and under the direction of another with the understanding that it will be disclosed by the latter under his name and that contributing natural persons will not be identified. The distinction between a collective work and a joint work: In a collective work, the elements remain unintegrated and disparate. In a joint work, the separate elements merge into a unified whole (Goldstein 788-789).

RESALE RIGHTS
Coverage of the rights- covers only original works of painting or sculpture, and to original manuscripts of writers or composers. It attaches a premium to the material object that which was touched by the very creators hand. The right itself- the creator or his heirs have a 5% of the gross proceeds of the sale or lease of the works. Duration of the rights- exists during the lifetime of the creator and for 50 years after his death Exclusion from the right- where a work of art is primarily to be reproduced no resale rights attach.

THE OWNERSHIP OF COPYRIGHT Single creator

- The creator, his heirs and assigns owns the copyright

Joint creation
- When the works is produced by 2 or more persons, the copyright belongs to them

Employees creation
- If the work is created not as part of the regularly assigned duties of an employee, even if it should be created during and in the course of employment, copyright belongs to the employee, otherwise it belongs to the employer.

Commissioned work
- Ownership of the work is in the person commissioning; - Ownership of copyright is jointly in the person commissioning and in the commissioned creator.

Cinematographic works
- The producer exercises copyright for purposes of exhibition and for showing the film.

Pseudonymous and anonymous works

- Publisher shall be presumed to be the representative of the author

Collective works
- Individual authors do not lose their copyrights to the individual contributions, provided these remains distinct and in some measure separable. - Editor, however, enjoys the copyright in the collection itself.

REMEDIES AVAILABLE AGAINST INFRINGEMENT Section 216

Injunction, damages and indemnity, impounding, confiscation and destruction Administrative action (limited to complaints where the total damages claimed are not less than 200K); Cease and desist order, forfeiture of paraphernalia used in committing the offense; Administrative fine 1st offense: 1-3 yrs imprisonment + 50-150K fine nd 2 offense: 3-6 yrs + 150-500K fine rd 3 offense: 6-9 yrs + 500K-1M fine

Section 10 (this section defines the power and the authority of the bureau of legal affairs of the IPO)

Criminal prosecution

Jurisdiction of courts
Present rule: RTC (Samson v Daway, GR No. 160054-55, July 21, 2004)