Philippines

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? Yes
RA 8293 s.213.1
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? No
The IP Code does not provide compulsory licensing in copyright.
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? In part
Freedom of speech and expression and similar rights are constitutionally protected. The IP Code also declares as State policy to promote the diffusion of knowledge and information, but there is no provision subjecting exercise of copyright to human rights compliance.
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? No
Compilations of data and other materials are protected by copyright.
RA 8293 s.173.1(b)
Are rights holders prohibited from excluding user rights under copyright law? No
Is computer software excluded from the scope of patentable subject matter? Yes
RA 8293 s.22.2, Revised IRR (Rule 202.(e))

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? Yes
It is unclear whether this provision is as broad as the US fair use right, as it speaks of "criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes", before setting out the balancing criteria.
RA 8293 s. 185
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? No
Copyright covers adaptation or other transformation of works.
RA 8293 s.177.2
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? In part
Private reproduction in a single copy is allowed for research and private study only. This permission does not extend to work of architecture, an entire book or substantial part of it, musical works in which graphics form by reprographic means, compilations of data and other materials, computer programs except for one back-up copy or adaptation, and other cases where reproduction would be prejudicial to the author’s interest.
RA 8293 ss.187.1, 187.2, 189.1, 189.2
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? Yes
As long as it is done privately and free of charge or strictly for charity.
RA 8293 s.184.1(a)
For EducationMay students copy works for private research or study? In part
Fair use for teaching including multiple copies for classroom use, scholarship and research is not an infringement, but factors determining fair use include the amount and substantiality of the portion used and effect on potential market for or value of the work. Only one copy for research and private study is allowed, but not an entire book or substantial part of it.
RA 8293 ss.185.1, 187.1, 187.2(b)
Does any such research and study provision cover distance and online education? No
There is no specific mention of distance or online education, though presumably fair use for study and research can be invoked.
RA 8293 s.187.2(b)
May translations of works be made for educational purposes? In part
Copyright covers translation of the work, though fair use may be invoked.
RA 8293 ss.177.2, 185.1
May educators copy works for use in the classroom? In part
Limitations on copyright include the use made of a work by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use.
RA 8293 s. 184.1h
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? Yes
Fair use provision in the IP Code include decompilation for interoperability of computer programs.
RA 8293 s.185.1
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? In part
The E-commerce Act states that no civil or criminal liability shall be imposed on a service provider if it just provides access, provided that it is unaware of the infringement, does not knowingly receive any financial gain from the infringement, and does not directly commit or induce any infringement.
RA 8792 s.30
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? Yes
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? No
RA 8293 s.177.2
Is the incidental inclusion of a work in other material permitted? In part
Only as part of news reports through photography, film or broadcast; and for teaching purposes, with acknowledgement.
RA 8293 s.184.1(d), (e)
Is there are copyright exception for parody or satire? In part
There is no specific mention of satire in the limitations on copyright though fair use provision includes criticism and comment.
RA 8293 s.185.1
By the pressIs there a copyright exception for the news of the day? Yes
The source must be clearly indicated.
RA 8293 ss.184.1(c), (d), 185.1
May copyright material be reproduced for the purposes of review and criticism? Yes
RA 8293 s.185.1
May quotations be used for any purpose? Yes
The source and name of author must be mentioned.
RA 8293 s.184.1(b)
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? In part
Only a single copy for preservation, for lending isolated articles or portions in volumes for study or research, and for replacement.
RA 8293 s.188.1
May librarians copy works for users for the purpose of research or study? In part
Only for articles in composite works or brief portions of published works - for expediency of lending.
RA 8293 s.188.1(b)
Are libraries allowed to make preservation or archive copies of materials in their collections? Yes
But not missing volumes of works published in several volumes, or tomes or pages of magazines, etc., unless they are out of stock.
RA 8293 s.188.2
Can lending libraries operate without incurring public lending rights fees to copyright owners?
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? No
There is no provision for adaptation for persons with disabilities in the limitations on copyright.
In public affairsAre laws excluded from copyright? Yes
RA 8293 s.176.1
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? Yes
But prior approval is required for exploitation of such works for profit, and payment of royalties may be imposed.
RA 8293 s.176.1
Are the results of publicly funded research required to be published under an open access licence? No

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? No
There is no provision on releasing a work to the public domain before copyright expiration.
Can public domain works be used without the need for any payment or registration of the use?
Does the law make special provision for the legal use of orphaned works? No
There is no provision on orphaned works.
Is parallel importation of copyright works permitted? In part
Importation is subject to limitations, and that such imported copies do not exceed three (3).
RA 8293 s.190.1
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? No
Are there national programmes or policies that specify or promote the use of open document formats? No

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? Under the IP Code, imprisonment of 9 years and a fine of PhP1.5 million (RA 8293 s.217.1(c)); Under the E-commerce Act, maximum fine is commensurate to damage incurred and 3 years imprisonment (for piracy through telecommunications networks such as the internet) (RA 8792 s.33(b)); Under the Optical Media Act, 6 years imprisonment and PhP1.5 million (for mastering, manufacture and replication of copyrighted works in optical media) (RA 9239 s.19a.3)
What is the maximum penalty for copyright infringement for a corporation? Same as above
Is innocent infringement of IP treated differently by the law? No
Provisions on remedies for infringement and criminal penalties do not distinguish personal from commercial use.
RA 8293 s.217.1
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? In part
There is no provision in the IP Code specifically covering TPM devices.
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? In part
There is no provision in the IP Code specifically covering TPM devices. The Optical Media Act exempts optical disc writers and similar devices used in PCs not for commercial purposes from being considered as manufacturing equipment, which it regulates.
RA 9239 s.3f
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? No
There is no such provision.
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds?
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? Yes
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
Criminal penalties are not limited to large-scale counterfeiting. Any person infringing any right under the copyright law shall be criminally liable.
RA 8293 s.217.1
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? No
Is there provision to penalise the wrongful allegation of copyright infringement? No
Is there provision to penalise the obstruction of consumers' exercise of user rights?
Does the patent system allow for pre-grant opposition? No
Though after publication of the application, any person may present observations in writing concerning the patentability of the invention.

Recent or upcoming changes

A Philippine Anti-Counterfeiting and Piracy Summit was held in October 2011. It was organized by the National Committee on Intellectual Property Rights (NCIPR), the World Intellectual Property Organization (WIPO), the US State Department, the IPR Business Partnership, and the International Trademark Association (INTA).

As a result of the Summit, a 2012-2016 Philippine Action Plan on IPR Protection and Enforcement was submitted to the Office of the President. There has also been heightened enforcement of IPR laws and increased involvement of other government agencies, resulting in unprecendented seizure of goods. The government has also took steps in expediting IPR cases and reducing its backlog of case by revising the Special Rules on IP Litigation in October 2011.

The Philippines has again sought for its removal from the United States Trade Representative (USTR) watch list of intellectual property rights violators. The government cited the above efforts that supposedly advance IP rights in the Philippines.

Aside from releasing a revised implementing rules and regulations on patents in April 2011, the Intellectual Property Office of the Philippines also spearheaded the preparation of the Copyright Bills to implement the WIPO Internet Treaties (House Bill 3841, Senate Bills SB 2431, 2487, and 2628). Part of these provisions is the creation of a Bureau of Copyright, which will provide copyright support services at the IP office. If approved, the Bureau shall focus on literary and artistic works and its derivatives as well as address issues or disputes on copyrights.

Summary of position

Part IV of the Intellectual Property Code of the Philippines deals with copyright; the law is based in part on US copyright law and the Berne Convention. It imposes stiffer penalties for infringement than previous laws mandated. The law provides for fair use, the criteria of which are similar to the US fair use doctrine. However, the exceptions for educational purposes and libraries are limited and the law has no provisions for distance education and the disabled. Further, unlike for patents, the law does not provide compulsory licensing in copyright and therefore exposes consumers to monopolistic exploitation by copyright holders. A big cause for concern is the fact that penalties under the law do not distinguish between individual and corporate infringements, and both are liable for criminal sanctions.

The Philippines is currently on ordinary watch list under the US 301 Watch List. It had been on priority watch list for five consecutive years (2001-2005) before being placed on the lower level since 2006. Despite enforcement activities (raids, seizures) of various government agencies, US IPR lobby groups are dissatisfied, citing proliferation of digital piracy including mobile device piracy and internet downloads, pay TV piracy, movie piracy, book piracy, among others. Photocopying of books in university areas is condemned for undermining publishers' interests.

In 2009, the country has been subjected to an Out of Cycle Review by the USTR regarding the state of IPR in the Philippines as the US still had concerns on IP law and enforcement. In its 2011 submission to the USTR, the Philippine government highlighted the unprecedented increase in confiscated fake goods since 2005, which from January-December 2011 alone totaled P8.4 billion. It also pointed out implementation of IP measures by 29 universities and the country's heading of the ASEAN Working Group on Intellectual Property Cooperation. The government also reported a heightened campaign on piracy as a result of various seminars, conferences and training workshops for public prosecutors, law enforcement agents, port police, and airport security personnel, etc.

High costs of proprietary software, music and film CDs, and educational materials such as textbooks, journals and other reference books, coupled with widespread poverty and unemployment provide the context for such ubiquitous piracy. A feasible recourse for the Filipino consumers is the promotion of free and open source software and materials, but the government refuses to give any incentive for the production and distribution of such as it maintains a policy of letting the market decide on the use of proprietary against open source software.

In its effort to please the US, the Philippine government fails to consider consumer and public welfare as it focuses only on protecting copyright holders and getting out of the US 301 Watch List. It is clear that the copyright law needs to be reviewed and the interests of Filipino consumers be given more attention to ensure fairness. But beyond this, the country also has to address intersecting social, economic, and technological problems that impact on the people’s access to knowledge.

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