Copyright Basics and Case Stories
Can you copy and be happy?
Friends, today, I will share some cases but I won’t give you your usual case digests. As promised, I will deliver a “5-minute bar story”. You can read these stories while having coffee. But rest assured that you will get your daily dose of knowledge that sticks.
Every year, one or two Intellectual Property (IP) questions are asked in the Philippine bar exam. Most of them are questions related to “copying” IP creations be it copyright, patents, or trademarks.
In 2013, a case on copyright confronted us upfront. Having a good background in IP, the question was basic for me. My eyes gleamed when I read it and my fingers started scribbling even before my brain can dictate the answer.
I was confident and wished for more IP questions. But I learned later on that others found the same question a bit tricky.
Here is the question:
Who Owns The Copyright to the Painting?
Rudy is a fine arts student in a university. He stays in a boarding house with Bernie as his roommate. During his free time, Rudy would paint and leave his finished works lying around the boarding house. One day, Rudy saw one of his works -an abstract painting entitled Manila Traffic Jam -- on display at the university cafeteria. The cafeteria operator said he purchased the painting from Bernie who represented himself as its painter and owner.
Rudy and the cafeteria operator immediately confronted Bernie. While admitting that he did not do the painting, Bernie claimed ownership of its copyright since he had already registered it in his name with the National Library as provided in the Intellectual Property Code.
Who owns the copyright to the painting? Explain. (8%)
Here you will decide on who has a better right, the one who holds a registration or the unassuming creator?
Even a layman can make a good guess on this. Our view of justice and morality dictates that Rudy, the artist, owns the painting and he has a better right over it. But in the bar exam, we can’t argue using only common sense and morality. We have to support our answer based on what the law says.
The question can be answered by very basic concepts on copyright. Sec. 178 of IP Code of the Philippines states that in the case of original literary and artistic works, copyright shall belong to the author. Then Sec. 172 states that “works” are protected from the moment of their creation. Therefore, Rudy has copyright to the art work the moment he painted it.
The registration of Bernie with the national library did not in any way confer to him the ownership of the painting. Since works are protected from the moment of creation, copyright registration is not required under the law for works to be protected.
According to Sec. 191 of the same Code, the registration and deposit of “works” is for the purpose of completing the records of the National Library.
Hence, in this case, Rudy owns the copyright to the painting.
TV Shows With the Same Format
But what if the case is like this:
TV Station A is airing a dating show wherein unmarried participants are matched based on their answers to certain questions. TV Station A has a certificate of copyright over the format and style of presentation of the show.
After 20 years, TV Station B started airing a show with a different name but with the same format of matching males and females through their answers to questions set in the show.
Will a case against TV Station B for copyright infringement prosper? Can TV Station A exclusively own and preclude others from producing shows with the same format?
If we will apply what we did in the first case above, it seems that justice and equity dictate that, yes, TV Station A should be protected on the format of the show and no one should produce a similar show because it is their concept. The original idea came from them. But here lies the tricky part.
While it may seem that it is just fair that TV Station A who conceptualized the show format should be rewarded for its concept or idea, the law says otherwise. Please be extra careful especially when the words "concept" or "idea" shows in copyright questions.
Mere ideas and concepts are included in the list of unprotected subject matter under Sec. 175 of the IP Code. Remember another basic rule on copyright:
Ideas are not protected. It is the expression of the idea or the finished work that is protected.
In our hypothetical case above, the concept of the show is not protected, what is protected is the expression of the concept which is embodied on the actual show itself.
I now notice that we have similar show formats in the Philippines like the "Kwarta o Kahon" (money or box) "Pera o Bayong" (money or basket) and "Pera o Kahon" (money or box) where the contestants have to choose between cash offered and the mysterious content of the box or basket.
A Supreme Court Decided Case
The decision stating that copyright does not extend to the general concept of a TV show was given by the Supreme Court of the Philipines in 1999 in the case of Joaquin et al. vs. Drilon et al., G.R. No. 108946.
In that case, BJ Productions, Inc. (BJPI) owns a certificate of copyright over the dating game show "Rhoda and Me". They had the certificate in 1971 and submitted an addendum to their copyright deposit to include the show's format and style of presentation. The show was aired from 1970 to 1977.
In 1993, IXL Productions produced the show "It's A Date" which carries the same major concept of having unmarried participants of the opposite gender as searcher and searchee being matched for compatibility through questions and answers.
BJPI sued IXL for violation of P.D. No. 29 or Decree on Intellectual Property. They pleaded with the court that the show format is a product of their skill and ingenuity such that it is just proper that they be afforded copyright protection. They guided the court in seeing the connection between the two shows through point by point comparison of their formats.
There is indeed a substantial similarity of the formats. Any differences are mere variations of the major concepts. But the court didn't resolve the case in BJPI's favor.
According to the Court, the format of a TV show is not copyrightable. It is not included in the enumeration of copyrightable subject matter under Sec. 2 of P.D. No. 49 whose provision is substantially the same as Sec. 172 of the IP Code.
The enumerations of what are copyrightable include finished works and not merely ideas. In the case discussed, what is copyrighted is the audio-visual recording of Rhoda and Me. BJPI should have submitted the master videotape for a comparison of the two shows, but it failed.
As stated by the Secretary of Justice in the case:
"A television show includes more than mere words can describe because it involves a whole spectrum of visuals and effects, video and audio, such that no similarity or dissimilarity may be found by merely describing the general copyright/format of both dating game shows."
You have 3 copyright basics to remember for today:
1. Works are protected from the moment of creation ;
2. Copyright registration is not mandatory under the law for artistic and literary works. Works are deposited with the National Library for the purposes of completing their records; and
2. Mere ideas are not protected. It is the expression of ideas or the finished that are subject to copyright.
So, can you copy and be happy? What has been copied? Is it the idea or the expression of the idea?
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