INTRODUCTION: Ever
read of the story of how a student once wrote his bar reviewer questions as submitted
requirement for his IPL Class? In one of
his questions he wrote something like how Pedro tried to put up a carinderia
business in front of his house and decided to call it COOKING NG INA MO, and how his neighbor Juan living across the street kinda felt somethin’ different everytime he wakes up
in the morning and sees it so he decided to compete with Pedro’s business and put up
his own and called it COOKING NG INA MO RIN. Question, was there trademark infringement? (Lol) Well guess what? Were not gonna delve
into that. I’ve written my own as requirement for my own IPL back subject class (darn). Here are 10 scenarios I've written to address 10 legal situations in Intellectual Property Law. Don't worry, I’ve
decided to write something decent.
1.
Q. Horse and Hound
Philippines, a locally licensed British publication that publishes articles on
horse sports like Equestrianism, Polo, Steeplechase Races as well as article
features on hunting sports like famous breeds of hunting dogs published a
submitted article by a young dog lover named Remington Policarpio an 8th
grade student of the Philippine Science High School on an annual canine
competition held in London. His article entitled “UNDERDOGS TAKES THE LEAD: The Blood Hounds
Takes Unexpected Front Row as the Best Hunting Dog this Year flanking the
Retrievers” was chosen as one of the
best articles that will carry their May issue.
Having no knowledge and not being aware of his rights on copyright
ownership, Remington read a first copy of the issue with his published work and his name
on it and was elated and felt already compensated by the magazine’s effort of publishing his article. Eventually getting
good reviews on the article and the magazine itself, the publication decided to
republish Remington’s article on its next quarter British issue and on its
local Christmas issue. Is Remington’s
rights being violated?
A. Yes.
The submission of a literary work to a newspaper, magazine or periodical
for publication shall constitute only a license to make a single publication.
Unless a greater right is expressly granted.
In this case there was absence of an expressly granted greater right to
republish said article signed between Remington and the Magazine.
Moreover, Remington being a high school
student unaware of his rights getting elated by the mere site of the
attributions on his name shouldn’t have been took advantage of and exploited
and instead should have been oriented and informed by the publication itself of
the boy’s rights.
2.
Q. Neil a top
student of quantum physics designed a computer program called DOTA (Detailing
Oversized Tractors thru Automation). The program was a concept software aimed
at redesigning construction equipments for the top 5 local construction
companies. In other words, he was commissioned by a consortium to try to
reinvent the wheel in furtherance of steel science. He managed to come up with a prototype
of what he called CraneDozer, a combination of a crane and a bulldozer
built as one. The consortium thought it
was a marvelous idea, and so they took the prototype work and the code and the
blueprint and immediately called for a press release. In the press conference
the companies CEOs were interviewed as saying that the equipment shall be
produced as soon as possible. In the same interview they were asked if they
would publish a formula book for furtherance of steel and construction science.
They said yes, they would publish a book attributed to the 5 companies
dedicated for furtherance of the steel industry. Neil saw everything on TV and quickly hired
his lawyer friend. If you are the lawyer and Neil’s friend what would you do?
A. I
will file a case for infringement of copyright.
Obviously there is absence of an employer-employee relationship between
my client and the consortium. In such case, a work commissioned by a person
other than an employer who pays for it
and work is made in pursuance of the commission, the person who commissioned
the work shall have ownership of work, but the copyright thereto pursuant to
Chapter VI of the Law on Copyright of
the Intellectual Property Code shall remain with the creator. Unless there is a
written stipulation to the contrary. Well assuming as you see that my client is
highly intelligent and wouldn’t have called for my service had there no need, then
it is highly probable there is absence of such stipulation.
3.
Q. Raven and Janella
co-authored a book on Physical Education entitled “How to Win A Triathlon
Competition Through Core Exercises” Since
Raven is a Fitness First competent trainer /coach he had come up with a
complete series of core exercises for the book. And since Janella is a
publicist she merely shared her inputs on well balanced diet and nutrition she
had learned from the internet and took care of the publishing work herself. The book was published and both were earning
royalties 50/50 as co-authors. Raven
eventually pursued full ownership of the work saying he conceptualized and
wrote around 90% of the literary work.
Is Raven’s contention correct? To
whom really does the copyright ownership belong?
A. In the case of work 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, the book 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.
4.
Q. Devin Restituto
a sophomore college student and a school organ staff member , writer and contributor
wrote a translation/adaptation of a famous poem and literary work by a Filipino
author Jose Garcia Villa. He was always usually heard opining in class by his
English teachers that Jose Garcia Villa is his favorite author. He was even
found using Doveglion as his pen-name, codename or even callsign when playing
DOTA with his friends. In his submitted article he almost copy-pasted the whole
original copyrighted Jose Garcia Villa article and interposed his own translations
between each paragraphs. He was confronted by the school paper editor telling
him that it was a copyrighted work and that he’s certainly treading on certain legal
grounds. What do you think?
A. Devin’s
kind of work maybe unoriginal perse if we base our perspective plainly on the
original author’s rights, but on the contrary little do we know that inevitably
there is another right being created where the new work can be considered diminishingly
original as a whole. His work falls under what we call Derivative Work.
Derivative works are alterations of original literary and artistic works. His
inputs on his translations together with the original work are considered original
intellectual creations deserving of a separate and independent copyright protection.
5.
Q. Anne
Guevarra is a veteran journalist and TV
reporter. Her latest assignment was to
work closely and extract information on a weekly basis with the Bureau of
Fisheries its programs for the local fisherfolks of Candijay, Bohol. The reason why Anne took the assignment is
that it was special for her. She took up Marine Biology in college and because
of scarcity of jobs in her field of work
during her graduation she opted trying out for audition as TV reporter in one of the local networks of which she
passed instantly. Now she couldn’t
believe she is faced with the two things she both love. In one of
her private interviews with the Director of the bureau, she asked for a
copy of all the species of all kinds of
fish found in and endemic in our Philippine waters. Thinking he was giving
public information a favor, the Director gladly obliged handing her a folder of
said data complete with corresponding pictures. As soon as Anne reached Manila ports she
compiled all the data, came up with a manuscript and talked with National
Bookstore for publication in her name. Did
Anne violate any copyright laws? Was
the right of the Bureau of Fisheries infringed?
A. Yes
and No. Our copyright law states that
‘No copyright shall subsist in any work of the Government of the Philippines
“ Therefore what Anne took from the
Bureau of the Fisheries is a non-copyrighted article meaning no copyright
exist and so no copyright therefore is
infringed. Instead what she secured is
government property of which it was
handed to her by her asking in the tenor that it is an information made
available and ready any time the public needs it. Her non-disclosure however of her intention to
publicize in a book under her name and exploitation of the government work
given to her for profit may be subject to injunction. Unless such agency or
office among other things such as giving proper attributions eventually be
informed after the publication as to impose the condition of payment of
royalties.
6.
Q. Odette is a
ballerina. She is a associated with a 10 member
guild of a young exemplary professional ballerinas called Prima Rosa. Together the guild came up with a concept of a new ballet
production called “The Sleep of Endymia” where in they conceptualized the story and new
ballet movements of their own each one contributing to the repertoire. Odette was seldom present in the
conceptualization and therefore contributed a minimal portion. Yet she
however atleast handed her inputs though written suggestions. Soon
the production took its stage and the performance and applause were superb. Comes the throwing of flowers and
acknowledgements and at Odette’s
surprise her name was mentioned merely as a performer and not as co-author of the
production. At the backstage she
confronted the chairperson of the guild questioning why she wasn’t given proper
attributions. The chairperson explained her contributions were minimal and the
fact that she wasn’t always around when her opinion is needed sent an impression to
the whole guild that she wasn’t interested to be part of the contributors. Odette defended that she is a part of the
group, and therefore she has every moral right to be mentioned as part of its group
work. Is Odette’s contention valid?
A. No. When
an author contributes to a collective work, his or her moral right to have his
contributions attributed to him or her is deemed waived unless he expressly
reserves it. The group must have taken
her chronic absence and minimal contributions as disinterest to the accolades
and attributions and so the impressions they took is that all she merely wanted
was to be part of the physical production.
7.
Q. Prof. Straider Valdez is an English
Composition and Literature instructor teaching in one of the exclusive schools
in Manila. In most of his lectures he uses the quotes, poetry and literary
works of famous local and foreign authors and writers and in one particular
series of lecture he uses the works of his favorite author Ernest Hemingway
extensively. In fact he published a compilation of his works as lecture workbooks entitled “Work Book on the
Composition and Brevity of the Works of Famous Authors –by Straider E. Valdez” and sold them to his class for a minimal fee.
The School Ethics Department had found
out about his style of educating his students and was called for to validate
his stand. In the meeting he was asked
whether he realizes that he was already infringing on copyright laws of such
authors. He explained carefully that
what he is doing is but fair and practical. And that he in no way was
infringing on any subsisting copyrights of any literary works whether local or
foreign since he was merely operating on the world wide principle of Fair
Use. Is the professor’s contention tenable?
A. Yes. As
stated in Sec. 185 of the Copyright Law, the fair use of a copyrighted work,
criticism, news reporting, teaching including multiple copies for classroom
use, scholarship, research and similar purposes is not an infringement of
copyright. Moreover, he gave attributions as to the source and the name of the
authors as what is expected of an individual availing of such fair use.
8.
Q. Angel is an
accomplished lecturer in the field of Human Behavior and in one of her
dissertation on “The Rationale On The 16 Alarming Behaviors On Social
Media” incepting her findings on a
Freudan principle, she planned on having her work publicly disseminated and
published and eventually copyrighted and she was surprised her work became best
seller. She registered her work with the
National Library yet had not either personally
or by registered mail delivered 2 complete copies as copyright requirement, yet paid the prescribed fee for the
certificate of deposit. The reason for the delay are the numerous lectures she
is obliged to conduct. Three weeks have
passed since she received a demand letter from the copyright office as notice
of deposit of her works, but she however changed her mind thinking the
copyright might be too early since she is still in a continued process of developing
the concept thinking there could be more
findings should she wait a little longer as she continue formulating her
lectures. She had registered, paid the
fee and yet had not deposited her work. Did she loose her copyright process?
A. No.
The copyright owner shall be merely liable to pay a fine equivalent to the
required fee per month of delay and to pay the National Library and the Supreme
Court Library the amount of the retail price of the best edition of the work.
9.
Q. Patrick’s Cologne Inc. came to the Philippines in 1973.
During the 1980s, they had huge marketing campaign so they became known in the
Philippines. Pat-Rick’s Cologne Inc. was
a large well known perfumery
product in the provinces. In 1980,
Patrick’s Cologne Inc. filed a trademark
infringement case. It was proven that some people actually think Pat-Rick’s
Cologne is affiliated with Patrick’s Cologne Inc. and was creating confusion. Decide on the
case.
A. Pat-Rick’s Cologne
Inc. Trademark protects goodwill.
Patrick’s Cologne’s goodwill was established in 1980. Pat-Rick’s Cologne was
already established in Philippines even before Patrick’s Cologne became known
because of its marketing campaign.
10.
Q. Anthony was an
excellent professional blog writer. His blog existed since 2001 and he even
availed himself of a domain name for it. Yet he never uses his real name but he
uses the pseudonym Bluerose in all his writings. In September of 2003 he fell
in love. She wooed a very lovely elegant girl named Serene. He would drive his car next to her parked car
leaving a blue rose on her windshield and disappearing leaving the girl romantically thrilled yet full of questions every time she reaches her
car after class. In one occasion he left a note where only a blog address and
his codename were mysteriously written. She found the blog and fell in-love with
the author’s mysterious name and his brilliant mind. Eventually
they met and felt even more in-love. They got married and had kids. They built
a happy home. 2015, Anthony died of an
accident leaving his wife and two kids. In
a sheer effort to recall and relive their first meeting Serene kept coming back
to Anthony’s blog. Couldn’t help but smiling and all teary eyed she went
through all his posts from the very beginning and read it carefully. She got an
idea, she thought of publishing all his writings from 2001 up to 2015 in one
book entitled “Quiet Thoughts of The Bluerose”
She contacted Anvil to do it for her and Anvil knowing her unique love
story and the excellent worth of her
husband’s writing saw something worth publishing. Only there’s one catch. She
remembered Anthony saying before he died that if ever he would
publish a book, the world will never see a trace of his real name but only his penname Bluerose. Serene undeniably
showing a mutual love for the name since her college windshield days gave in to
her husband’s wish. The book was published without Anthony’s real name. Since
there are no authors as tangible as a real given name, who would represent the
author Bluerose on feature write-ups and public dissemination and accolades and
receiving royalties? If Serene decides
to disclose Anthony’s identity, what do you think will happen? What are the
posthumous rights of Anthony?
(Dang! I could be a fu-kin’ romantic novelist I swear)
A. Pursuant
to Sec. 179 of the Copyright Law of the Intellectual Property Code of the
Philippines, the publishers shall be deemed to represent the authors of
articles and other writings published without the names of the authors or under
pseudonym. There is however an
exception stating that unless the contrary appears, or the pseudonyms or
adopted name leaves no doubt as to the author’s identity. That exception
however is not applicable in this case, since Anthony’s real name had never
even been public in character. He was never a celebrity nor have published any
book using his real name, nor have been known publicly as the writer of the
Bluerose blog. He has kept his name secret behind his own pseudonym for years
where only his wife and their close friends knew about.
Should Serene decides
to disclose Anthony’s identity then, the publisher Anvil shall step back or
take a back seat in representing the author’s work yet still support in favor of the author’s
wife.
In posthumous terms
whether economic or moral rights, the
heirs of the author has all rights, economically to receive royalties from
reproduction and public distribution, and morally to receive accolades and
attributions for the author’s works from the very day of the copyright through
the author’s lifetime and 50 years after
his death. The person or persons to be charged with the posthumous enforcement
of these moral rights of attributions and accolades shall be named in writing
to be filed with the National Library. In default of such person or persons,
such enforcement shall devolve upon either the author’s heir’s and in default
of the heirs, the Director of the National Library.
In view of this case,
the wife of the posthumous author Serene shall take charge.
