The blog and understanding how works are shared herein

This provides an introduction to this website, its collection of articles and documents, and how they are shared.


I. The Blog
    A. How it started
    B. Content transition
    C. Host transition
II. Content and its default protection
    A. What I do not purport to own
    B. What I claim, and its basis
    C. What rights are exercised by a copyright owner
    D. The period of exercising such rights
    E. Remedies and penalties for infringement
    F. Reason for the protection under law
III. Shared under Creative Commons BY-NC-SA 3.0 PH license
    A. Why I share my work
    B. Details of the permission provided under the license terms
    C. If you need additional permission


I. The Blog

A. How it started

In 2002, when I was a freshman in law school, I started the website berneguerrero.com (The domain name was acquired in such manner due to lack of immediate idea of how to call the website). Most of the contents of the website then were original texts of case assigned in law school (The .doc files for each of the assigned cases per syllabus page were compressed as a .zip file, and links to those uploaded .zip files were provided therein). The reason why the website was initiated was to ensure that my blockmates would be able to get copies of the cases assigned. It later became imperative for me to do so due, on the part of my blockmates, to difficulty of having the case texts reproduced (through the school’s business center) and due, on my part, to the experience of receiving repeated bounced emails from those who have been amiss in opening their email accounts (at the time when most emails had 5 MB storage capacity, unlike now). Since the website was public, eventually, the site’s audience was not confined to my law school blockmates.

B. Content transition

In 2007, after I passed the bar, I started including some of law school notes in said website, under Creative Commons Attribution-NonCommercial-ShareAlike 3.0 license, after some friends from lower years requested soft copies of some of the work I made, since they were only able to procure second generation photocopies of the notes. Indeed, it would have been a waste if such notes would have been confined and stored in my laptop’s hard disk, as these materials no longer had relevance in personal endeavors. It was only last year where the materials were compiled as PDF files, to respond to those who utilize tablet PCs, and after discovering that somebody compiled some of my posts in my website in PDF and posted the same under her own account in Scribd.com, without attribution and license conditions.

C. Host transition

Considering the costs of maintaining the website (updating WordPress, plugins; monthly hosting and annual domain name renewal payments; among others), and after my subscriptions lapsed, I have resorted, lately, to the convenience of having my content available as a WordPress.com blog.

I hope to include other works in this blog, in the future, besides those which may relate to the legal academe.

II. Content and its default protection

A. What I do not purport to own

I don’t purport to own ideas herein. Section 175 of Republic Act 8293 provides:

… no protection shall extend, under this law, to any idea, procedure, system, method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts having the character of mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof.

I don’t claim ownership over the computer program(s), through which this blog becomes available to the public; over the theme, through which this blog is presented; nor multimedia uploaded by others; since I am not the author of the same.

B. What I claim, and its basis

I own the copyright of the works that I create. Under Sections 172 and 173 of RA 8293:

172.1 Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular:

  1. Books, pamphlets, articles and other writings;
  2. Periodicals and newspapers;
  3. Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;
  4. Letters;
  5. Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;
  6. Musical compositions, with or without words;
  7. Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art;
  8. Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art;
  9. Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science;
  10. Drawings or plastic works of a scientific or technical character;
  11. Photographic works including works produced by a process analogous to photography; lantern slides;
  12. Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;
  13. Pictorial illustrations and advertisements;
  14. Computer programs; and
  15. Other literary, scholarly, scientific and artistic works.

172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.

173.1. The following derivative works shall also be protected by copyright:

  1. Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and
  2. Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.

173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as new works: Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works.

C. What rights are exercised by a copyright owner

The copyright owner, such as I, owns the copyright or economic rights of the work. Section 177, RA 8293 provides:

… [C]opyright 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.”

Unless the law, specifically under Chapter VIII of the Title on Copyright, [1] provides for the allowance for someone to perform any of the acts provided above without the explicit permission of the copyright owner, no one, except the copyright owner, is entitled to perform any of such enumerated acts.

On the other hand, being simultaneously the author of copyrighted work, the author exercises the following rights:

Section 193. Scope of Moral Rights. – The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right:

193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;
193.2. To make any alterations of his work prior to, or to withhold it from publication;
193.3. To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and
193.4. To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work.

None of these moral rights are waived. [2]

Nevertheless, I am not a performer, producer of sound recording, nor a broadcasting organization so as to merit the exercise of neighboring rights under Chapters XII to XV of the copyright title of RA 8293. [3]

D. The period of exercising such rights

Specific to economic rights, the terms of copyright protection, provided by law under Section 213 of RA 8293, are as follows:

213.1. Subject to the provisions of Subsections 213.2 to 213.5, the copyright in works under Sections 172 and 173 shall be protected during the life of the author and for fifty (50) years after his death. This rule also applies to posthumous works.

213.2. In case of works of joint authorship, the economic rights shall be protected during the life of the last surviving author and for fifty (50) years after his death.

213.3. In case of anonymous or pseudonymous works, the copyright shall be protected for fifty (50) years from the date on which the work was first lawfully published: Provided, That where, before the expiration of the said period, the author’s identity is revealed or is no longer in doubt, the provisions of Subsections 213.1. and 213.2 shall apply, as the case may be: Provided, further, That such works if not published before shall be protected for fifty (50) years counted from the making of the work.

213.4. In case of works of applied art the protection shall be for a period of twenty-five (25) years from the date of making.

213.5. In case of photographic works, the protection shall be for fifty (50) years from publication of the work and, if unpublished, fifty (50) years from the making.

213.6. In case of audio-visual works including those produced by process analogous to photography or any process for making audio-visual recordings, the term shall be fifty (50) years from date of publication and, if unpublished, from the date of making.

Section 214. Calculation of Term. – The term of protection subsequent to the death of the author provided in the preceding Section shall run from the date of his death or of publication, but such terms shall always be deemed to begin on the first day of January of the year following the event which gave rise to them.

As to moral rights, the term of protection thereof is covered by Section 198 of RA 8293, to wit:

Section 198. Term of Moral Rights. – 198.1. The rights of an author under this chapter shall last during the lifetime of the author and for fifty (50) years after his death and shall not be assignable or subject to license. The person or persons to be charged with the posthumous enforcement of these rights 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 heirs, and in default of the heirs, the Director of the National Library.

198.2. For purposes of this Section, “Person” shall mean any individual, partnership, corporation, association, or society. The Director of the National Library may prescribe reasonable fees to be charged for his services in the application of provisions of this Section.

E. Remedies and penalties for infringement

If one violates any of the rights of those entitled to protection under the law, copyright infringement occurs.

Section 216 provides for the remedies available to the copyright owner, to wit:

Section 216. Remedies for Infringement. – 216.1. Any person infringing a right protected under this law shall be liable:

(a) To an injunction restraining such infringement. The court may also order the defendant to desist from an infringement, among others, to prevent the entry into the channels of commerce of imported goods that involve an infringement, immediately after customs clearance of such goods.
(b) Pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to the infringement as well as the profits the infringer may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall appear to be just and shall not be regarded as penalty.
(c) Deliver under oath, for impounding during the pendency of the action, upon such terms and conditions as the court may prescribe, sales invoices and other documents evidencing sales, all articles and their packaging alleged to infringe a copyright and implements for making them.
(d) Deliver under oath for destruction without any compensation all infringing copies or devices, as well as all plates, molds, or other means for making such infringing copies as the court may order.
(e) Such other terms and conditions, including the payment of moral and exemplary damages, which the court may deem proper, wise and equitable and the destruction of infringing copies of the work even in the event of acquittal in a criminal case.

216.2. In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings.

The above remedies are similarly available to the author in the enforcement of his moral rights, pursuant to Section 199 of Article 199, to wit:

Section 199. Enforcement Remedies. – Violation of any of the rights conferred by this Chapter shall entitle those charged with their enforcement to the same rights and remedies available to a copyright owner. In addition, damages which may be availed of under the Civil Code may also be recovered. Any damage recovered after the creator’s death shall be held in trust for and remitted to his heirs, and in default of the heirs, shall belong to the government.

In addition, Section 217, RA 8293, provides for the criminal penalties that may be imposed against a copyright infringer, to wit:

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.
(d) In all cases, subsidiary imprisonment in cases of insolvency.

217.2. In determining the number of years of imprisonment and the amount of fine, the court shall consider the value of the infringing materials that the defendant has produced or manufactured and the damage that the copyright owner has suffered by reason of the infringement.

217.3. Any person who at the time when copyright subsists in a work has in his possession an article which he knows, or ought to know, to be an infringing copy of the work for the purpose of:

(a) Selling, letting for hire, or by way of trade offering or exposing for sale, or hire, the article;
(b) Distributing the article for purpose of trade, or for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or
(c) Trade exhibit of the article in public, shall be guilty of an offense and shall be liable on conviction to imprisonment and fine as above mentioned.

The availability of the work in an electronic form, especially in the Internet, does not remove the copyright attached to the work. Section 33 (b) of Republic Act 8792, in addition to the criminal penalties imposed under Section 217 of RA 8293, provides:

Piracy or the unauthorized copying, reproduction, dissemination, or distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recording 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 shall be punished by a minimum fine of One Hundred Thousand pesos (P 100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years.

F. Reason for the protection under law

The protection under law, especially under RA 8293 and RA 8792, emanates from the mandate in Section 13, Article XIV of the 1987 Constitution, which provides:

The State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.

III. Shared under Creative Commons BY-NC-SA 3.0 PH license

A. Why I share my work

Under ordinary circumstances, if one who is conscious of one’s legal obligation of the appropriate usage of my works, then my permission would have to be sought every time, especially if the law does not provide for allowance. I don’t want to deal with that. It would be tedious on my part though to approve each and every request for redistribution, if such would be the case. Imagine the number of requests, collating from the statistics of and actual inquiries in my previous website, such as “May I attach your work and send it to members of my email group?” “Can I download your PDFs and share them to my friends through the use of thumbdrives?” “Can I store multiple copies of your work in the various gadgets that I have?” and the like. Life is too short for me to be tied down responding to emails and blog comments seeking basic permissions, and for you to wait for my permission before you can redistribute non-commercially.

I am inclined to share these works, under certain terms. It would keep information flowing to those who need it, allow certain freedom to certain individuals, and encourage these individuals to respect rights and law in light of owner-initiated allowance on the use of the work (Unless of course, by your own acts, this would be a mistaken assumption).

Non-exclusive licensing does not provide any additional requirements on my part under Section 182, RA 8293. Considering the limitations that would be experienced in combining possibly incompatible-licensed materials (else where license are customized, depending on source) into one single work; my law school notes, articles, and possible images herein are licensed under Creative Commons Attribution Non-Commercial Share-Alike (CC BY-NC-SA) 3.0 Philippine license. This would allow derivative works, from various sources, licensed under CC BY, CC BY-NC, and CC BY-NC-SA where the derivative work, possibly made by you, would be licensed as CC BY-NC-SA.

B. Details of the permission provided under the license terms

The terms are provided in the Creative Commons website, in human-readable manner , and even in a lawyer-readable manner .

Simply said, you are given a non-exclusive license to (1) reproduce, distribute, perform, display, communicate and Share the Work for NonCommercial purposes, and (2) create, reproduce, distribute, perform, display, communicate and Share Adaptations for NonCommercial purposes, but only to the extent Licensor can grant such permission and the use is otherwise restricted by copyright or other rights.

C. If you need additional permission

Only if your intended usage would be more than what has been granted you under that license, do you need to ask explicit permission from me. You can email me at gmail. The terms thereon would have to be negotiated then.

Don’t you love legal sharing?


Endnotes

[1] Chapter VIII of the Copyright title of RA 8293 provides:

CHAPTER VIII
LIMITATIONS ON COPYRIGHT

Section 184. Limitations on Copyright. – 184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:

(a) The recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society;

(b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned;

(c) The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated;

(d) The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose;

(e) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned;

(f) The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work;

(g) The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;

(h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use;

(i) The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations;

(j) Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that the original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and

(k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.

184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder’s legitimate interests.

Section 185. Fair Use of a Copyrighted Work. – 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(b) The nature of the copyrighted work;

(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(d) The effect of the use upon the potential market for or value of the copyrighted work.

185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Section 186. Work of Architecture. – Copyright in a work of architecture shall include the right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original: Provided, That the copyright in any such work shall not include the right to control the reconstruction or rehabilitation in the same style as the original of a building to which that copyright relates.

Section 187. Reproduction of Published Work. – 187.1. Notwithstanding the provision of Section 177, and subject to the provisions of Subsection 187.2, the private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work.

187.2. The permission granted under Subsection 187.1 shall not extend to the reproduction of:

(a) A work of architecture in the form of building or other construction;

(b) An entire book, or a substantial part thereof, or of a musical work in graphic form by reprographic means;

(c) A compilation of data and other materials;

(d) A computer program except as provided in Section 189; and

(e) Any work in cases where reproduction would unreasonably conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author.

Section 188. Reprographic Reproduction by Libraries. – 188.1. Notwithstanding the provisions of Subsection 177.6, any library or archive whose activities are not for profit may, without the authorization of the author of copyright owner, make a single copy of the work by reprographic reproduction:

(a) Where the work by reason of its fragile character or rarity cannot be lent to user in its original form;

(b) Where the works are isolated articles contained in composite works or brief portions of other published works and the reproduction is necessary to supply them, when this is considered expedient, to persons requesting their loan for purposes of research or study instead of lending the volumes or booklets which contain them; and

(c) Where the making of such a copy is in order to preserve and, if necessary in the event that it is lost, destroyed or rendered unusable, replace a copy, or to replace, in the permanent collection of another similar library or archive, a copy which has been lost, destroyed or rendered unusable and copies are not available with the publisher.

188.2. Notwithstanding the above provisions, it shall not be permissible to produce a volume of a work published in several volumes or to produce missing tomes or pages of magazines or similar works, unless the volume, tome or part is out of stock: Provided, That every library which, by law, is entitled to receive copies of a printed work, shall be entitled, when special reasons so require, to reproduce a copy of a published work which is considered necessary for the collection of the library but which is out of stock.

Section 189. Reproduction of Computer Program. – 189.1. Notwithstanding the provisions of Section 177, the reproduction in one (1) back-up copy or adaptation of a computer program shall be permitted, without the authorization of the author of, or other owner of copyright in, a computer program, by the lawful owner of that computer program: Provided, That the copy or adaptation is necessary for:

(a) The use of the computer program in conjunction with a computer for the purpose, and to the extent, for which the computer program has been obtained; and

(b) Archival purposes, and, for the replacement of the lawfully owned copy of the computer program in the event that the lawfully obtained copy of the computer program is lost, destroyed or rendered unusable.

189.2. No copy or adaptation mentioned in this Section shall be used for any purpose other than the ones determined in this Section, and any such copy or adaptation shall be destroyed in the event that continued possession of the copy of the computer program ceases to be lawful.

189.3. This provision shall be without prejudice to the application of Section 185 whenever appropriate.

Section 190. Importation for Personal Purposes. – 190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances:

(a) When copies of the work are not available in the Philippines and:

(i) Not more than one (1) copy at one time is imported for strictly individual use only; or
(ii) The importation is by authority of and for the use of the Philippine Government; or
(iii) The importation, consisting of not more than three (3) such copies or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.

(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed three (3).

190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor’s right of action.

190.3. Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation of articles the importation of which is prohibited under this Section and under treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported.

[2] Section 195 of RA 8293 provides:

Section 195. Waiver of Moral Rights. – An author may waive his rights mentioned in Section 193 by a written instrument, but no such waiver shall be valid where its effects is to permit another:

195.1. To use the name of the author, or the title of his work, or otherwise to make use of his reputation with respect to any version or adaptation of his work which, because of alterations therein, would substantially tend to injure the literary or artistic reputation of another author; or

195.2. To use the name of the author with respect to a work he did not create.

[3] Chapters XII to XV of the Copyright title of RA 8293 provide:

CHAPTER XII
RIGHTS OF PERFORMERS, PRODUCERS OF SOUNDS RECORDINGS AND BROADCASTING ORGANIZATIONS

Section 202. Definitions. – For the purpose of this Act, the following terms shall have the following meanings:

202.1. “Performers” are actors, singers, musicians, dancers, and other persons who act, sing, declaim, play in, interpret, or otherwise perform literary and artistic work;
202.2. “Sound recording” means the fixation of the sounds of a performance or of other sounds, or representation of sound, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;
202.3. An “audiovisual work or fixation” is a work that consists of a series of related images which impart the impression of motion, with or without accompanying sounds, susceptible of being made visible and, where accompanied by sounds, susceptible of being made audible;
202.4. “Fixation” means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;
202.5. “Producer of a sound recording” means the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representation of sounds;
202.6. “Publication of a fixed performance or a sound recording” means the offering of copies of the fixed performance or the sound recording to the public, with the consent of the right holder: Provided, That copies are offered to the public in reasonable quality;
202.7. “Broadcasting” means the transmission by wireless means for the public reception of sounds or of images or of representations thereof; such transmission by satellite is also “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent;
202.8. “Broadcasting organization” shall include a natural person or a juridical entity duly authorized to engage in broadcasting; and
202.9 “Communication to the public of a performance or a sound recording” means the transmission to the public, by any medium, otherwise than by broadcasting, of sounds of a performance or the representations of sounds fixed in a sound recording. For purposes of Section 209, “communication to the public” includes making the sounds or representations of sounds fixed in a sound recording audible to the public.

Section 203. Scope of Performers’ Rights. – Subject to the provisions of Section 212, performers shall enjoy the following exclusive rights:

203.1. As regards their performances, the right of authorizing:

(a) The broadcasting and other communication to the public of their performance; and
(b) The fixation of their unfixed performance.

203.2. The right of authorizing the direct or indirect reproduction of their performances fixed in sound recordings, in any manner or form;
203.3. Subject to the provisions of Section 206, the right of authorizing the first public distribution of the original and copies of their performance fixed in the sound recording through sale or rental or other forms of transfer of ownership;
203.4. The right of authorizing the commercial rental to the public of the original and copies of their performances fixed in sound recordings, even after distribution of them by, or pursuant to the authorization by the performer; and
203.5. The right of authorizing the making available to the public of their performances fixed in sound recordings, by wire or wireless means, in such a way that members of the public may access them from a place and time individually chosen by them.

Section 204. Moral Rights of Performers. – 204.1. Independently of a performer’s economic rights, the performer, shall, as regards his live aural performances or performances fixed in sound recordings, have the right to claim to be identified as the performer of his performances, except where the omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.

204.2. The rights granted to a performer in accordance with Subsection 203.1 shall be maintained and exercised fifty (50) years after his death, by his heirs, and in default of heirs, the government, where protection is claimed.

Section 205. Limitation on Right. – 205.1. Subject to the provisions of Section 206, once the performer has authorized the broadcasting or fixation of his performance, the provisions of Sections 203 shall have no further application.

205.2. The provisions of Section 184 and Section 185 shall apply mutatis mutandis to performers.

Section 206. Additional Remuneration for Subsequent Communications or Broadcasts. – Unless otherwise provided in the contract, in every communication to the public or broadcast of a performance subsequent to the first communication or broadcast thereof by the broadcasting organization, the performer shall be entitled to an additional remuneration equivalent to at least five percent (5%) of the original compensation he or she received for the first communication or broadcast.

Section 207. Contract Terms. – Nothing in this Chapter shall be construed to deprive performers of the right to agree by contracts on terms and conditions more favorable for them in respect of any use of their performance.

CHAPTER XIII
PRODUCERS OF SOUND RECORDINGS

Section 208. Scope of Right. – Subject to the provisions of Section 212, producers of sound recordings shall enjoy the following exclusive rights:

208.1. The right to authorize the direct or indirect reproduction of their sound recordings, in any manner or form; the placing of these reproductions in the market and the right of rental or lending;
208.2. The right to authorize the first public distribution of the original and copies of their sound recordings through sale or rental or other forms of transferring ownership; and
208.3. The right to authorize the commercial rental to the public of the original and copies of their sound recordings, even after distribution by them by or pursuant to authorization by the producer.

Section 209. Communication to the Public. – If a sound recording published for commercial purposes, or a reproduction of such sound recording, is used directly for broadcasting or for other communication to the public, or is publicly performed with the intention of making and enhancing profit, a single equitable remuneration for the performer or performers, and the producer of the sound recording shall be paid by the user to both the performers and the producer, who, in the absence of any agreement shall share equally.

Section 210. Limitation of Right. – Sections 184 and 185 shall apply mutatis mutandis to the producer of sound recordings.

CHAPTER XIV
BROADCASTING ORGANIZATIONS

Section 211. Scope of Right. – Subject to the provisions of Section 212, broadcasting organizations shall enjoy the exclusive right to carry out, authorize or prevent any of the following acts:

211.1. The rebroadcasting of their broadcasts;
211.2. The recording in any manner, including the making of films or the use of video tape, of their broadcasts for the purpose of communication to the public of television broadcasts of the same; and
211.3. The use of such records for fresh transmissions or for fresh recording.

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. – Sections 203, 208 and 209 shall not apply where the acts referred to in those Sections are related to:

212.1. The use by a natural person exclusively for his own personal purposes;
212.2. Using short excerpts for reporting current events;
212.3. Use solely for the purpose of teaching or for scientific research; and
212.4. Fair use of the broadcast subject to the conditions under Section 185.


Last updated: 20 November 2012

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