The Guidelines of Statutory Fair Use in the Philippine Intellectual Property Code

by Ryan Daniele Y. Uy

On 4 March 2024, the Bureau of Copyright and Related Rights (BCRR) of the Intellectual Property Office of the Philippines released the “Guidelines on Statutory Fair Use in the Intellectual Property Code” to clarify the rules on copyright limitations and the concept of fair use under the Intellectual Property Code (Republic Act No. 8293 or the IP Code).

The Guidelines outlines the necessary elements for the application of various statutory fair use provisions and provides helpful illustrative examples. These elements are mainly drawn from the 1886 Berne Convention, which is an international agreement governing the protection of original works with certain limitations and exceptions. Many of the copyright exceptions enumerated in the IP Code and the Guidelines mirror those found in the Berne Convention.

The fair use exception under the IP Code refers to the permitted use of copyrighted materials for purposes such as commentary, criticism, news reporting, teaching, scholarship, research, or other similar purposes even without the permission of the copyright owner.[1]

Section 185 of the IP Code covers the “general principle of fair use,” where it is necessary to consider the four factors below to determine if a particular use of copyrighted material qualifies for fair use:

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

(b) The nature of the copyrighted work;

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

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

Meanwhile, Sections 184, 186, 187, 188, and 189 refer to “statutory fair use” and do not require the application of the four factors above. The exceptions are Sections 184.1 (b), 184.1 (e), and 184.1 (h) of the IP Code. When it comes to these sub-provisions, the four factors must be applied alongside the specific conditions or elements required for each.

Statutory Fair Use Provisions

Below is a summary of the elements of the statutory fair use provisions, which is the main highlight of the Guidelines.

1.     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 is non-copyright infringing.[2]

a.     A work lawfully made accessible to the public refers to publication with the consent of the author as defined by Section 171.7 of the IP Code.[3] “The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting or literary or artistic works, the exhibition of a work of art and the construction of a work of architecture” does not constitute publication.[4]

b.     “Free of charge" does not refer to the performer's lack of payment, but rather to the absence of fees charged or collected from guests for witnessing the performance.[5]

c.      A charitable or religious institution or society is a registered non-stock non-profit corporation where income is not distributed as dividends to members, trustees, or officers, and any profit earned is used only to advance its purpose.[6]

d.     Example of application of this copyright exemption: To raise awareness about children's literacy, a charitable institution held a public reading of Filipino short stories at a school. Parents donated to support the organization but not as a payment for witnessing the performance.[7]

2.     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 is non-copyright infringing.[8]

a.     The work must both be reproduced and communicated to the public.

b.     Current events mean important political or social events that are happening in the world now.[9]

c.      The report need not be made by members of mass media.[10]

d.     Broadcasting is deemed to include vlogging.[11]

e.     Example of application of this copyright exemption: A political blogger is at a campaign rally. She photographs the rally and posts it on her blog with her commentary. In the background, part of a famous graffiti mural on a street wall is visible.[12]

3.     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 is non-copyright infringing.[13]

a.     Recordings shall include both audiovisual and sound recordings.[14]

b.     Recordings produced with school equipment or facilities, regardless of location, are deemed as recordings made on school premises.[15]

c.      The recording must be made by either (1) a school employee, (2) an enrolled student, or (3) a person duly authorized by the school.[16]

d.     The recording must be used exclusively for educational purposes by the school.[17]

e.     The reasonable period should not exceed one academic year and the use of the recording shall only be to the extent necessary to achieve its educational purpose.[18]

f.      Example of application of this copyright exemption: A music school teacher recorded a live performance by a classical pianist on the school premises to show her students during the academic year.[19]

4.     The 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 is non-copyright infringing.[20]

a.     A public display means a display at a in a public space or where a substantial number of people who are not just family or friends are present. The work is considered displayed in public where anyone can see it regardless of any admission fee and with minimal restrictions.[21]

b.     The display must be a physical and actual display of the work. It cannot be audiovisual or online.[22]

c.      Example of application of this copyright exemption: A painter sold one of his paintings to a business tycoon, who later allowed it to be displayed at the City Gallery in Makati as part of an exhibit showcasing the works of contemporary Filipino painters.[23]

As for the next set of rules to be discussed, these are also considered statutory fair use provisions, but the four factors (purpose, nature, substantiality, and economic effect) of the general principle of fair use must be applied alongside the specific conditions or elements of these provisions:

1.     The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose is non-copyright infringing.[24]

a.     Published works are works which, with the consent of the author, are made available to the public by wire or wireless means in such a way that members of the public may access these works from a time and place individually chosen by them; Provided, that availability of such copies have been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work.[25]

b.     The source and the name of the author must be mentioned, if this appears in the work quoted.[26]

c.      Example of application of this copyright exemption: A professor quotes passages from Stephen King's books to critique his writing style, giving credit to King as the author and listing each book as the source of the quotations.[27]

2.     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.[28]

a.     Teaching includes teaching at all levels in both private and public educational institutions. Purposes such as for mere scientific or personal research or comment or criticism are not included.

b.     The source and the name of the author must be mentioned, if this appears in the copyrighted work.[29]

c.      Example of application of this copyright exemption: A professor at the Conservatory of Music publishes a book on music theory that includes various musical compositions to explain different aspects of music theory, with proper acknowledgment of all sources and composers.[30]

Interpretation of the Provisions of Section 184 of the IP Code

In order to apply the statutory fair use exemptions enumerated in the various subsections of Section 184 of the IP Code, the use of the work must not conflict with the normal exploitation of the work nor unreasonably harm the copyright holder’s legitimate interests.[31] This aligns with the Berne Convention, with the aim to prevent excessive copyright limitations that could deprive copyright holders of potential income or cause them disproportionate harm.[32]

Remarks

While acknowledging the practical value of the Guidelines, the BCRR acknowledges that it may not address every ambiguity that may be encountered in practice. Consequently, BCRR Director Emerson Cuyo’s advice is to seek permission from the copyright owner whenever there is uncertainty about the applicability of a copyright exception.[33] Nonetheless, the Guidelines certainly enhances understanding of when the use of copyrighted material qualifies as fair use, thereby promoting adherence to copyright laws and protecting copyright holders.

[1] Republic Act No. 8293 (1998), §185.

[2] §184.1 (a).

[3] Guidelines on Statutory Fair Use in the Intellectual Property Code, page 4.

[4] Berne Convention for the Protection of Literary and Artistic Works, Article 3, paragraph (3).

[5] Guidelines on Statutory Fair Use in the Intellectual Property Code, page 5.

[6] Id., page 6.

[7] Id.

[8] Republic Act No. 8293 (1998), §184.1 (c).

[9] Guidelines on Statutory Fair Use in the Intellectual Property Code, page 12.

[10] Id., page 13.

[11] Id.

[12] Id., page 14.

[13] Republic Act No. 8293 (1998), §184.1 (d).

[14] Art. 10(2) of the Berne Convention as amended by the Stockholm Act of 1967.

[15] Guidelines on Statutory Fair Use in the Intellectual Property Code, page 16.

[16] Id., page 16.

[17] Id.

[18] Id., page 17.

[19] Id., page 18.

[20] Id., page 27.

[21] Id., page 28.

[22] Id., page 29.

[23] Id.

[24] Republic Act 8293, §184.1 (b).

[25] §171.7.

[26] Guidelines on Statutory Fair Use in the Intellectual Property Code, page 35.

[27] Id.

[28] Republic Act 8293, §184.1 (d).

[29] Guidelines on Statutory Fair Use in the Intellectual Property Code, page 35.

[30] Id.

[31] Republic Act 8293, §184.2.

[32] Hugenholtz, P. Bernt; Okediji, Ruth, Conceiving an International Instrument on Limitations and Exceptions to Copyright. Amsterdam Law School Research Paper, March 7, 2012.

[33] Hannah Dione Lucero, IPOPHL releases statutory fair use guidelines to clarify rules on copyright exceptions, Intellectual Property Office of the Philippines Website, at https://www.ipophil.gov.ph/news/ipophl-releases-statutory-fair-use-guidelines-to-clarify-rules-on-copyright-exceptions/(last visited July 11, 2024).

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views and opinions of the Firm or any of its partners. This article shall not be construed as official legal advice from the Firm.