IPL Finals Copyright and Patent (AY 09-10)

8/9/2019 IPL Finals Copyright and Patent (AY 09-10)

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COPYRIGHT & PATENT FINAL EXAMS

IPL 134

PROF. VICENTE B. AMADOR

DATE RELEASED: MARCH 10, 2010

The Non-Graduating Students may have from March 15, 2010 to April 15, 2010 tosubmit their Exam papers.

1. Which one of the following pairs of persons are joint authors? (20%)

A. A FACULTY MEMBER COMES UP WITH AN IDEA FOR A WEB PAGEAND A GRADUATE STUDENT DESIGNS THE PAGE BASED ON THEFACULTY MEMBER'S IDEA.B. A FACULTY MEMBER AND ONE OF HER STUDENTS ORALLY AGREE

THAT THEY WILL COLLABORATE ON AN INTERACTIVE ONLINETUTORIAL. ONE AUTHORS A POWERPOINT PRESENTATION AND THE

OTHER WRITES THE CODE TO CONVERT THE POWERPOINTPRESENTATION TO AN INTERACTIVE ONLINE TUTORIAL.C. A FACULTY MEMBER AND A PHOTOGRAPHER DISCUSSCOLLABORATION, AGREEING ON WHAT EACH WILL CONTRIBUTE(TEXTUAL CONTENT AND PHOTOGRAPHS, RESPECTIVELY) AND WHATRIGHTS EACH EXPECTS TO HAVE IN THE FINISHED WORK, EXPLICITLYCONCLUDING THAT THEY BOTH INTEND TO BE JOINT AUTHORS OF THEENTIRE TUTORIAL WHEN IT IS FINISHED.

ANSWER: C

There are two tests to determine whether or not an author qualifies as a jointauthor: the De Minimis Testand the Copyrightable Matter test. The Copyrightable

matter test, however, is favored more by the courts. According to the copyrightablematter test, a person is a joint author if his contribution is not a mere idea and hisoutput is in itself copyrightable. The author must supply more than mere directionor ideas. He must actually create the work, translate an idea into a fixed, tangibleexpression entitled to copyright protection.1

To determine whether there is a joint work of joint authors, the US court in theErickson v. Trinity Theater Case2 imposed the following additional guidelines: (1)each author must intend their respective contributions to be contribution to unitarywhole; and (2) collaborators are not joint authors unless they intended to be jointauthors when work was created. Collaboration alone is insufficient to create a jointwork.

In the situations given above, only letter c presents a case of joint authors. In thefirst situation, only the student would be entitled to own the copyright of the webpage.

1VICENTE AMADOR, INTELLECTUAL PROPERTY FUNDAMENTALS p.3372 Erickson v. Trinity Theatre, Inc. 13 F.3d 1061 (1994), as cited in Amador, pp. 336-338


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2OIL SPILL RECOVERY SYSTEM (50%)

Charisse Mae Villamejor Mendoza Copyright and Patent Final

Exam

The webpage may be considered a protected work under Section 172.1(n) as acomputer program. A computer program is a set of instructions expressed in words,codes, schemes or in any other form, which is capable, when incorporated in amedium that the computer can read, of causing the computer to perform aparticular task or result.3 A web page, on the other hand, is a document on theworld wide web written in HTML (hypertext markup language) translated by the web

browser of each computer4. As a web page can be read in a computer (through theweb Browser) and can cause the computer to perform a particular task or result, itmay be considered protected as an original intellectual creation protected from themoment of their creation. However, the faculty members idea is not copyrightableunder Section 175 of the IP Code5. Copyright assures authors the right to theiroriginal expression, but encourages others to build freely upon the ideas andinformation conveyed by a work.6

As to letter B, individually, the faculty member and the student would be entitledcopyright protection for their work: The faculty member for her power pointpresentation (protected under 172.1 (c)) and the student for the code to convert thepower point presentation into an interactive online tutorial (protected under Section

172.1(n)). However, as was mentioned above, mere collaboration is insufficient toconstitute a joint work, absent any showing that the faculty member and thestudent intended the code and the power point presentation to be part of a unitarywhole and that they intended to be joint authors. There is no showing that theiragreement to collaborate on an interactive online tutorial would entail the creationof the power point presentation and the code to convert the said presentation intoan interactive online tutorial.

Thus, only letter c presents a joint authorship situation. Both the textual contentand the photographs are independently protected under Section 172.1 (a) and (k)respectively. Further, in this case, it has been established that the photographerand the faculty member intended that they would both contribute to a unitary work

and that from the start, they had intended to be joint authors. Thus, both of themwould be considered joint authors.

2. Which of the following employers successfully acquire copyright from

the author of the described software? (20%)

A. THE AUTHOR IS AN EMPLOYEE WHOSE JOB RESPONSIBILITIESINCLUDE COMPUTER PROGRAMMING. HE CREATES A PROGRAM TOCONVERT POWER POINT PRESENTATIONS TO INTERACTIVE ONLINETUTORIALS.B. THE AUTHOR IS HIRED TO WRITE A PROGRAM TO CONVERT POWERPOINT PRESENTATIONS TO INTERACTIVE ONLINE TUTORIALS. HE

3 INTELL. PROP. CODE, 171.44www.techterms.com, at http://www.techterms.com/definition/webpage (last visited at April 7, 2010)5 INTELL. PROP. CODE, 175. Unprotected Subject Matter. Notwithstanding the provisions of sections 172 and 173,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 ofthe day and other miscellaneous facts having the character of mere items of press information; or any official textof a legislative, administrative or legal nature, as well as any official translation thereof (n)6 AMADOR, supra note 1, at 235
http://www.techterms.com/http://www.techterms.com/http://www.techterms.com/definition/webpagehttp://www.techterms.com/http://www.techterms.com/definition/webpage


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SIGNS A CONTRACT, BUT IT DOES NOT MENTION COPYRIGHT ORWORK-FOR-HIRE.

ANSWER: A

Both situations present works-for-hire relationships. However, only the first situationconfers copyright to the employer.

According to Section 178.3, if the employee creates an object of copyright which isnot part of his regular duties, even if he used the facilities and materials of theemployer the employee would own the copyright. If however, the work is a result ofthe performance of his regularly-assigned duties, the employer would own thecopyright, unless there is an express or implied agreement to the contrary. In thiscase, the author is an employee whose job responsibilities include computerprogramming and he created a program to convert power point presentations tointeractive online tutorials. There is no showing that the employer and the author-employee agreed that the author-employee would own the computer programs hehas created. Clearly, in this case, the employer of the author would own the

copyright.

The second situation, however, may fall under Section 178.4 wherein the author ishired by a person other than his employer and is paid for a work made in pursuanceof the commission. In this case, the general rule is that the work would be owned bythe person who commissioned it but the copyright would remain with the creatorunless there is a stipulation to the contrary. The stipulation providing theconferment of copyright to the person who commissioned the work must be madebefore the work commissioned is made7. In this case, the contract entered by theauthor and the person who hired him does not mention copyright or work-for-hire.

Therefore, the general rule would apply, i.e. the author would own the copyright andthus, the employer would not be able to successfully acquire it.

3. If you want to make of another's original work and it is not covered by

any of the provisions of Sect ion 184, may your action sti ll be

considered a fair use and can it be analyzed using the Four Factor Fair

Use Test? (20%)

ANSWER: YES

Section 184 of the IP Code expressly provides instances which shall not constitutecopyright infringement. These instances are deemed to be statutory fair uses8 whichno longer need to be subjected to the analysis under the fair use factors in Section185.

If an action, however, does not fall into any of the classification provided in Section184, then Section 185 would apply. Section 185 provides the four factor fair usetest, which are as follows:

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

7 See Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410 (7th Cir. 1992).8 AMADOR, supra note 1, at 388


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(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.

The four fair use factors are to be weighted together, in light of the purposes ofcopyright, and the primary objective of copyright is not to reward the labor ofauthors, but to promote the progress of Science and Useful Arts.9

Copyright protection has never accorded the copyright owner complete control overall possible uses of his work.10 Once an act is considered to have passed the fourfactor test, it is an excusable use of a copyrighted work under fair use and may notbe treated as copyright infringement.

4. True/False:

A FACULTY MEMBER CANNOT BE SUED INDIVIDUALLY EVEN IF HIS OR

HER ACTIONS IN USING SOMEONE ELSE'S WORK INFRINGE ANOTHER'SRIGHTS BECAUSE THE FACULTY MEMBER IS JUST AN EMPLOYEE DOINGHIS OR HER JOB. (20%)

FALSE. THE FACULTY MEMBER CAN BE SUED INDIVIDUALLY.

As a faculty member, it is his or her job to teach and guide students, prepare

materials for his or her classes, and other duties that may come with being a faculty

member. Nowhere would it be ones job to infringe on anothers rights. It can never

be his regularly-assigned duties.

The faculty member, as the natural person whose name would most likely beindicated in the work which is allegedly infringing, would be presumed to be the

author of the work.11 It is he who directly infringed the rights of the copyright owner.

Direct infringement is committed by any person who himself carries out any of acts

in violation of the authors economic rights under Section 177, their moral rights

and droit de suite under Chapters X and XI, as well as the rights of performers,

producers of sound recordings and broadcasting organizations under Chapters XII,

XIII and XIV.12

As a matter of defense, the faculty member may allege that he is merely an

employee of the university and as such, he does not own the copyright to the

infringing work. This proposition is based on Section 178 of the Intellectual PropertyCode on Rules on Copyright Ownership. However, for this argument to be used, i.e.

9 AMADOR, supra note 1, at 402.10 AMADOR, supra note 1, at 40111 INTELL. PROP. CODE, 219.1 provides: 219.1. The natural person whose name is indicated on a work in the usualmanner as the author shall, in the absence of proof to the contrary, be presumed to be the author of the work. Thisprovision shall be applicable even if the name is a pseudonym, where the pseudonym leaves no doubt as to theidentity of the author.12 AMADOR, supra note 1, at 450.


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for the university (as his employer) to be the author or owner of the infringing work,

the said work must be part of the faculty members regularly assigned duties. Thus,

the faculty member must first show that it is within his duties as an employee of the

university to make the work which allegedly infringed the rights of a copyright

owner. This, however, does not affect the right of the plaintiff to sue solely the

faculty member.

If the university aided or abetted the infringement done by the faculty member, it

could be held liable for contributory infringement under Section 217.113. As a

contributory infringer, it must be shown that the university, while having knowledge

of the infringing activity, induced, caused or materially contributed to the infringing

conduct of the faculty member14, or authorized the faculty member, without the

copyright owners consent, to commit any violation of the owners exclusive rights.

However, even if it be successfully shown that the university is indeed a

contributory infringer, the action may still survive even if the faculty is the only one

sued because the university is merely a necessary party and not an indispensableone. An indispensable party is a party in interest without whom no final

determination can be had of an action15 while a necessary party is one who ought to

be joined as a party if complete relief is to be accorded as to those already parties,

or for a complete determination or settlement of the claim subject of the action16.

The non-inclusion of a necessary party does not prevent the court from proceeding

in the action, and the judgment rendered therein shall be without prejudice to the

rights of such necessary party17. Further, all persons subject to liability for copyright

infringement are jointly and severally liable. The plaintiff need only sue one such

infringer if the plaintiff deems it appropriate.18 Thus, even if the faculty member is

sued individually, the action may still be pursued by the injured party.

5. True/False:

A FACULTY MEMBER WHO FAILS TO FOLLOW UNIVERSITY POLICY ONFAIR USE OF COPYRIGHTED MATERIALS UNDER SECTION 185 SHOULDNEVERTHELESS BE FULLY INDEMNIFIED IF HIS OR HER ACTIONSRESULT IN A LAWSUIT NAMING THE FACULTY MEMBER AS ADEFENDANT. (20%)

FALSE.

The situation proposes the following:a. That the faculty member is an employee of the university;

b. That part of the faculty members regularly assigned duties is to makeoutputs which are entitled to copyright protection;

13INTELL. PROP. CODE, 217.1. Any person infringing any right secured by provisions of Part IV of this Act or aiding orabetting such infringementshall be guilty of a crime(emphasis provided)14 Encyclopedia Britannica vs. Crooks 58 F.Supp.1247.15 RULESOF COURT, Rule 3, 7.16 RULESOF COURT, Rule 3, 8.17Id., Rule 3, 9.18 Columbia Broadcasting System, Inc. vs. Scorpio Music Distributors, Inc., 569 F. Supp. 47, (E.D. Pa. 1983).


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c. That there is no agreement between the faculty member and the universityas to the ownership of the copyright of the works made by the facultymember, and thus the copyright of the entire faculty members works belongto the university;

d. That the university has a policy which is based on Section 185 of the IP Code;e. That the faculty member did an act which should have been protected under

Section 185 of the IP Code;f. That the said act, however, violated Section 185 of the IP Code;g. That the faculty member is now being sued for the infringement; andh. That the faculty member would want to be indemnified for any legal costs he

would undertake for the litigation of the copyright infringement

In this case, the infringing faculty member himself is being sued. The facultymember may file a third-party claim against the university for indemnity ofwhatever he has to pay to the victim of the infringement, and only if found bythe court to be entitled to such indemnity would the faculty member beallowed to receive indemnity for the amount he has paid to the victim ofthe infringement.

However, the faculty member may not, at all, be entitled to any indemnity in thissituation. First, it may be presumed that the university policy which is a mererepetition of Section 185 of the IP Code was imposed as a guideline for thecopyrightable works that may be produced by the employees of the university.Section 185 provides that a copyrightable work may be used for teaching includingmultiple copies for classroom use, scholarship, research, and similar purposes, andsuch use would be excused even if it would constitute a copyright infringementprovided it would qualify under the fair use test. The university may thus assert asits defense the existence of the university policy to avoid any liability.

Second, although it may be within his assigned duties to make an output which iscopyrightable, it cannot be said that it is also within his assigned duties to make anoutput which infringes on the copyright rights of another an act which ispunishable by law. Contracting parties may only establish such stipulations that arenot contrary to law.19

ESSAY QUESTION(20%): Koko and Loco

PMI IS A NON-PROFIT ASSOCIATION FOR PROJECT MANAGEMENT PROFESSIONALS(PMPS). PMI FIRST OFFERED A PMP CERTIFICATION EXAM IN 1984 AND FIRSTPUBLISHED A WORK ENTITLED PROJECT MANAGEMENT BODY OF KNOWLEDGE IN1987. IN 1996, PMI PUBLISHED A SUPERSEDING COPYRIGHTED WORK ENTITLEDGUIDE TO THE PROJECT MANAGEMENT BODY OF KNOWLEDGE, REFERRED TO AS

THE PMBOK.

PMI'S PMP EXAM HAS BEEN BASED UPON THE PMBOK DURING THE PERIODRELEVANT TO THE DISPUTE. THE PMBOKS INTRODUCTORY STATEMENT OFPURPOSE SUGGESTS THAT IT SERVES AS A DESK REFERENCE WORK FOR

19 CIVIL CODE, art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions asthey may deem convenient, provided they are not contrary to law, morals, good customs, public order, or publicpolicy


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PRACTICING PROJECT MANAGERS AS WELL AS A CONSISTENT STRUCTURE FORPMI'S CERTIFICATION OF PMPS.

PMI CERTIFICATION HAS COME TO BE VIEWED AS AN IMPORTANT CREDENTIAL,CREATING A MARKET FOR TEXTBOOKS AND COURSES THAT PREPARE ASPIRINGPMPS TO PASS THE PMI EXAM. PMI WEBSITE MATERIALS SUGGEST THAT PMI,

COLLEGES AND UNIVERSITIES, AND NUMEROUS PRIVATE VENDORS HAVEENTERED THIS MARKET. BECAUSE PMI BASES THE PMP EXAM ON THE PMBOK, ACOMPREHENSIVE REFERENCE WORK, IT IS HARD TO IMAGINE THAT A VENDORCOULD DEVISE A SUCCESSFUL COURSE TEACHING STUDENTS TO PASS THE PMPEXAM WITHOUT USING-OR PLAGIARIZING-THE PMBOK. IN THIS REGARD, PMI'SCOPYRIGHT NOTICE IN THE FRONT OF THE PMBOK ADVISES:

ALL RIGHTS RESERVED. PERMISSION TO REPUBLISH IN FULL IS GRANTED FREELY.NO PART OF THIS WORK MAY BE REPRODUCED OR TRANSMITTED IN ANY FORMWITHOUT PRIOR WRITTEN PERMISSION OF THE PUBLISHER.

KOKO IS AN EXPERT IN THE FIELD OF PROJECT MANAGEMENT WHO OFFERS TEST

PREPARATION COURSES AND MATERIALS TO TEACH STUDENTS TO PASS THEPMP EXAM. KOKO WROTE AND COPYRIGHTED PMP EXAM PREP. THE BOOKBEGINS WITH MATERIALS SPECIFICALLY FOCUSED ON PASSING THE PMP EXAM

THAT HAVE NO COUNTERPARTS IN THE PMBOK. SUBSEQUENT SECTIONS, WHICHARE ENTITLED THE MATERIALS AND TAKE UP 150 OF THE WORK'S 165 PAGES,

TRACK THE PMBOK 'S ORGANIZATION OF THE PROJECT MANAGEMENTKNOWLEDGE AREAS AND REPRODUCE OR CONDENSE THE MATERIALSPRESENTED IN THE PMBOK.

LOCO OFFERS A VARIETY OF EXAM PREPARATION AND PROFESSIONAL TRAININGCOURSES. LOCO RETAINED ERIC NIELSEN TO DEVELOP THE SUBSTANTIVECONTENT FOR A PMP EXAM PREPARATION COURSE. LOCO BEGAN OFFERING THE

FOUR-DAY COURSE IN SEPTEMBER 2001, USING THE PMBOK AS THE PRIMARYREFERENCE AND ALSO DISTRIBUTING TO STUDENTS LOOSE-LEAF MATERIALSCALLED THE CANDIDATE NOTETAKER. KOKO SOON LEARNED OF THESIGNIFICANT SIMILARITIES BETWEEN LOCOS CANDIDATE NOTETAKER ANDKOKOS PMP EXAM PREP. KOKO COMPARED THE TWO WORKS AND INFORMEDLOCO THAT HE HAD REVISED KOKOS COURSE MATERIALS TO REMOVE WHATKOKO BELIEVED TO BE THE INFRINGING CONTENT. KOKO FILED THIS LAWSUIT.NIELSEN TESTIFIED THAT HE USED KOKOS PMP EXAM PREP AND OTHERREFERENCE WORKS IN PREPARING THE LOCO COURSE MATERIALS AND SAMPLE

TEST QUESTIONS.

1. WHAT ARE THE ESSENTIAL ELEMENTS OF A COPYRIGHT

INFRINGEMENT CLAIM? DEFINE AND EXPLAIN THE EXCLUSIVE RIGHTSOF AN AUTHOR UNDER THE IP CODE.

FOR THEIR TO BE AN INFRINGEMENT, THE PLAINTIFF SHOULD BE ENTITLED

TO COPYRIGHT PROTECTION AND THAT HIS RIGHT UNDER THE IP

CODE HAS BEEN VIOLATED.


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Infringement of a copyright is a trespass on a private domain owned and occupied

by the owner of the copyright, and, therefore, protected by law, and infringement of

copyright, or piracy, which is a synonymous term in this connection, consists in the

doing by any person, without the consent of the owner of the copyright, of anything

the sole right to do which is conferred by statute on the owner of the copyright.20

Thus, it may be said that for there to be a copyright infringement, the followingshould be present:

(1) There should be a work protected under the IP Code;(2)That the plaintiff is the owner of the copyright; and(3) The defendant has exercised the rights exclusive to the copyright owner,

without the copyright owners consent or authorization.

Discussion of the Elements of Copyright Infringement

As for the first element, works eligible for copyright protection are, as a rule, alloriginal intellectual creations. To be protected by copyright law, an authors workmust be original. This means that the works must originate from him; they musthave their origins in the labor of the author.21 This would include original works andderivative works.

As for the second element, the IP Code provides for rules on ownership of copyright.Thus, the plaintiff may be the author of the work, a co-owner, an employer, aproducer, or any other person as provided in the Code. Further, the author of thework is presumed to be the owner of the work.22 The author must supply more thanmere direction or ideas. He must actually create the work, translate an idea into afixed, tangible expression entitled to copyright protection.23

For the last element, the IP Code provides that for a person to be liable for theremedies provided and for criminal actions for copyright infringement, there shouldbe an infringement of a right protected under the code. These rights would includeexclusive rights and moral rights. Each right requires particular facts to beestablished before a cause of action may arise.

Exclusive Rights

There are five exclusive rights attached to copyrighted works as contained in

various acts under Section 17724. These are termed exclusive rights because it

20 NBI-Microsoft Corporation & Lotus Development Corp. vs. Hwang, et al. G.R. No. 147043 June 21, 200521 AMADOR, supra note 1, at 244.22 INTELL. PROP. CODE, 219.123 AMADOR, supra note 1, at 33724 INTELL. PROP. CODE, 177. Copyright or Economic RightsSubject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carryout, 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 ofownership;


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requires the authorization of the copyright owner before the said rights may be

exercised by any other individual.25 These rights are as follows:

(1) The right to reproduce;

(2)The right to prepare derivative works based upon the copyrighted works;

(3) The right to distribute;

(4)The right to perform; and

(5)The right to display26

The right of reproduction is seen as the bedrock of copyright and is

fundamental to the concept of ownership of a copyright.27 Its essence is creating

any tangible object which duplicates or embodies the work.28"Reproduction" is

defined as the making of one (1) or more copies of a work or a sound recording in

any manner or form.

29

Copies are material objects, other than phonerecords, inwhich a work is fixed by any method now known or later developed, and from which

the work can be perceived, reproduced, or otherwise communicated, either directly

or with the aid of a machine or device. A phone record, on the other hand, includes

the material object in which sounds, other than those accompanying the motion

picture or other audiovisual work, are first fixed. The reproduction of a work in a

copy or phonerecord need not be an exact replica of the original in order to infringe

the reproduction right. Substantial similarity is all that is required.30 For this right to

be infringed, the plaintiff must show that he owns the valid copyright of the

allegedly infringed work and that the accused infringer copied the claimants work31.

These elements may also be proved for the infringement of the other exclusive

rights, the right of reproduction being the bedrock of copyright.

The right to derivation, also termed the right of adaptation, is the right to

alter the original work and thereby create a new work with sufficient originality to

qualify for separate copyright protection. Under this right, the author has the right

to prevent unauthorized translations, musical arrangements, dramatizations,

177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a soundrecording, 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; (n)177.5. Public display of the original or a copy of the work;177.6. Public performance of the work; and177.7. Other communication to the public of the work.25 AMADOR, supra note 1, at 444.26 AMADOR, supra note 1, at 442.27AMADOR, supra note 1, at 356.28AMADOR, supra note 1, at 448.29 INTELL. PROP. CODE, 171.930AMADOR, supra note 1, at 356.31 Dan Brown and Random House, Inc. et al. v. Lewis Perdue, No. 05-4840-CV, U.S.C.A., 2nd Circuit, 2006


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fictionalizations, motion picture versions, sound recordings, art reproductions, and

other similar transformations.32

The right of distribution is the right to distribute copies or phonerecords of

the copyrighted work to the public by sale or other transfer of ownership, or by

rental, lease, or lending.

33

The right is limited to distributions to the public. Thisoccurs when the distribution is to more than a selected group of people or the

distribution is for more than a limited purpose, without prohibition on further

reproduction, distribution or sale.34 Unlike the other exclusive rights, distribution

right is infringed merely by a transfer of copies of the work, whether those copies

are lawfully or unlawfully made. Note, however, that the said right only pertains to

the first public distribution of the original and each copy of the work. This right is

exhausted after such first sale or transfer of ownership, provided the possessor

lawfully acquired the original or copies of the work.35

The right of public performance inheres in works of authorship other than

pictorial, graphic and sculptural works and architectural works.36

There are severaltypes of public performances. In the case of a work other than an audiovisual work,

it is the recitation, playing, dancing, acting or otherwise performing the work, either

directly or by means of any device or process. In the case of an audiovisual work, it

is the showing of its images in sequence and the making of the sounds

accompanying it audible. In the case of a sound recording, it is the making the

recorded sounds audible at a place or at places where persons outside the normal

circle of a family and that family's closest social acquaintances are or can be

present, irrespective of whether they are or can be present at the same place and

at the same time, or at different places and/or at different times, and where the

performance can be perceived without the need for communication.37 To

communicate the work to the public means to make it available to the public by

wire or wireless means in such a way that members of the public may access these

works from a place and time individually chosen by them.38

Lastly, the right of public display involves two aspects: the display of the

copy of the work and its display made to the public. To display a work means to

show a tangible work or copy of it, either directly or by means of a film, slide,

television image, or any other device or process or, in the case of a motion picture

or other audiovisual work, to show individual images consequently. To display

publicly is similar to the performance of a copyrighted work publicly.39 A public

32AMADOR, supra note 1, at 448-449.33 National Car Rental Sys., Inc. v. Computer Assocs. Intl, Inc., 991 F.2d 426 (8th Cir. Minn.1993) as cited in AMADOR,supra note 1, at 44934 AMADOR, supra note 1, at 357.35 AMADOR, supra note 1, at 360-61.36 AMADOR, supra note 1, at 357.37 INTELL. PROP. CODE, 171.638Id., 171.339 AMADOR, supra note 1, at 358.


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display is generally accepted to mean a display at a place open to the public or

where a substantial number of persons outside the normal circle of the family and

its social acquaintances is gathered.40 Given the nature of the right, the work

protected must be of a type that can be visually perceived, or in the case of

audiovisual works, viewed and heard.41

2. WHAT ARE THE TWO BASIC CATEGORIES OF COPYRIGHT-PROTECTED WORKS AND HOW ARE THEY DIFFERENTIATED FROM EACHOTHER?

THE TWO BASIC CATEGORIES OF COPYRIGHT-PROTECTED WORK ARE

ORIGINAL AND DERIVATIVE WORKS.

Original works are the items enumerated in Section 172 of the IP Code, although thelist is not exclusive but merely illustrative.42 For a work to be original, it should beindependently created by the author and possesses some minimal degree ofcreativity.43 The author must contribute something more than a merely trivialvariation, something recognizably his own.44

Derivative works, on the other hand, are enumerated in Section 173 of the IP Code.These are works based on another pre-existing work. These include dramatizations,translations, adaptations, abridgments, arrangements, and other alterations ofliterary or artistic works and collections of literary, scholarly or artistic works, andcompilations of data and other materials which are original by reason of theselection or coordination or arrangement of their contents.45 These works areentitled to protection as original works since their creation calls for intellectualeffort.46 Note, however, that the copyright extends only to the material contributedby the author of the derivative work, as distinguished from the pre-existing materialemployed in the work, and does not imply any exclusive right in the pre-existingmaterial. The copyright in such work is independent of and does not affect or

enlarge the scope, duration, ownership or substance of, any copyright protection inthe pre-existing material.47

Compared to original works, derivative works borrow original and expressivecontent from another work and the newer work recasts, transforms or adapts andnot simply copy the work upon which it is based.48 There must be at least somesubstantial variation from the underlying work and not merely a trivial variation. 49

However, since a derivative work is by definition substantially similar to theunderlying work and would be a copyright infringement in the absence of a license,

40

AMADOR, supra note 1, at 362.41AMADOR, supra note 1, at 450.42 AMADOR, supra a note 1, at 244.43 Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)44 AMADOR, supra note 1, at 24445 INTELL. PROP. CODE, 173.1, Intellectual Property Code.46 AMADOR, supra note 1, at 293.47 AMADOR, supra note 1, at 299.48 AMADOR, supra note 1, at 294.49 David Woods, et al. v. Bourne Co., (2nd Cir. 1995)


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one who wishes to exploit the derivative work needs a copyright license from theowner of the copyright of the underlying work or works.50

3. IF YOU ARE THE COUNSEL OF KOKO, HOW WILL YOU PROVE THECHARGE OF COPYRIGHT INFRINGEMENT AGAINST LOCO?

FOR THERE TO BE A COPYRIGHT INFRINGEMENT, IT SHOULD FIRST BE

ESTABLISHED THAT THE KOKO IS THE OWNER OF THE PMP EXAM

PREP, THAT THE SAID WORK IS PROTECTED UNDER THE IP CODE,

AND THAT LOCO VIOLATED KOKOS EXCLUSIVE RIGHTS AS THE

COPYRIGHT OWNER.

There is no contest that Koko acquired copyright for the PMP Exam prep. He wrote

the said work and acquired copyright for it.

PMP Exam Prep is protected under the Intellectual Property

Code

The PMP Exam Prep is protected under the IP Code as a derivative work. A

derivative work is one based on one or more pre-existing works in any form in which

the work may be recast, transformed, or adapted.51 It includes collections of

scholarly works and compilations of data and other materials which are original by

reason of the selection or coordination or arrangement of their contents.52

Kokos PMP Exam Prep may be said to be based on PMBOK, an already pre-existing

work. It consists of two parts, both of which are entitled to copyright protection. The

first part begins with materials specifically focused on passing the PMP Exam which

have no counterparts in the PMBOK. As the copyright protects the original elements

contributed by the author of the derivative work, the first part is an original work ofKoko which is definitely entitled to copyright protection.

The second part, The Materials, tracks the PMBOKs organization of the project

management knowledge areas and reproduces or condenses the materials

presented in the PMBOK. The condensing of the PMBOK materials may constitute

an abridgement of PMBOK, the result of which is a derivative work protected under

the IP Code. The reproduction of materials of the PMBOK, if not condensed, may

constitute a compilation of data which is protected as a derivative work under the IP

Code because of the labor and skill employed in selecting and arranging the

existing parts of PMBOK to constitute the newer work the PMP Exam Prep.

Loco infringed Kokos exclusive rights by copying the latters

PMP Exam Prep

50 Stewart v. Abend, 495 U.S. 207(1990).51 AMADOR, supra note 1, at 303.52 INTELL. PROP. CODE, 173.1(b)


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Exam

After establishing that the PMP Exam Prep is a work protected under the IP Code, it

is now necessary to establish that Loco infringed Kokos exclusive rights, specifically

that of derivation or adaption. To prove copyright infringement, Koko has to show

that his work was actually copied, either through direct evidence of copying or by

proving access and substantial similarity between the works, and that the copying

made by Loco amounts to improper appropriation by demonstrating that thesubstantial similarities relate to protectable material. 53

In this case, Loco hired Eric Nielsen to develop the substantive content for a PMP

Exam Preparation Course. When Koko compared his PMP Exam Prep and Locos

Candidate Notetaker which Nielsen helped prepare, significant similarities were

found. Nielsen testified that he used Kokos PMP Exam Prep in preparing Locos

course materials and sample test questions. Thus, Nielsens admission that the PMP

Exam Prep was used in preparing the Candidate Notetaker is direct evidence of

Locos copying Kokos PMP Exam Prep.

Granted Nielsens admission is not enough to constitute direct evidence to establishthat Loco copied the PMP Exam Prep of Koko, Koko could resort to proving access

and substantial similarity. Loco has access to Kokos PMP Exam Prep if he had

reasonable opportunity to view or to copy the said work. This could be established

by proving a particular chain of events to establish a link between the Kokos work

and Locos access to that work, or by proving that Kokos PMP Exam Prep has been

widely disseminated.54

As was said in the PMI website, the PMI Certification exam was viewed as an

important credential in the field of project management which created a market for

textbooks and courses that prepare aspiring PMPs to pass the PMI Exam. Among

these materials is Kokos Exam Prep, thus, it can be said that the plaintiffs materialis widely disseminated. Loco has reasonable opportunity to access the PMP Exam

Prep, it being easily available to him.

If this be not enough, it can be established through a particular chain of events that

Loco had access to copy the contents of the PMP Exam Prep made by Koko. First,

the PMP Exam Prep is made available to people in the field of project management.

Second, Nielsen was hired by Loco to make the Candidate Notetaker. Third, Nielsen

admitted that he had possession of the PMP Exam Prep on which he based the

substantial content of the infringing material. Lastly, when the Candidate Notetaker

and PMP Exam Prep were compared, there were significant similarities. Through this

chain of events, it can be established that Loco did have reasonable access to

Kokos PMP Exam Prep.

53 Aaron Basha Corp. vs. Four Seasons Greetings, LLC, 403 F.3d 958 (S.D.N.Y.2000), as cited in AMADOR, supranote 1, at 45554 See 4 MELVILLE NIMMER & DAVID NIMMER, NIMMERON COPYRIGHT, 13.02[A], at 13-20-13-21; 2 Paul Goldstein, Copyright:Principles, Law,and Practice 8.3.1.1., at 90-91 (1989).


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Exam

As to the second element of substantial similarity, the ultimate test is the ordinary

observer test which determines whether an ordinary lay observer would consider

the works substantially similar,55 or to rephrase, whether the similarity in works

would lead the average observer to recognize the alleged copy as having been

appropriated from plaintiffs work.56 In cases where the work is directed to a

particular audience, the test is whether an observer within this intended audiencewould recognize the appropriation57. In this case, the PMP Exam Prep and the

Candidate Notetaker are both intended to cater to the field of project management.

When Koko compared the two works, significant similarities were found. Thus, it

may be said that the Candidate Notetaker is substantially similar to the PMP Exam

Prep and thus, the Candidate Notetaker is an infringing work which violates the

exclusive right of Koko as to his PMP Exam Prep.

4. IF YOU ARE THE COUNSEL OF LOCO, HOW WILL YOU DEFEND HIMAGAINST THE CLAIM OF COPYRIGHT INFRINGEMENT?

TO DEFEND AGAINST THE CLAIM OF COPYRIGHT INFRINGEMENT, LOCOCOULD ASSERT THE FOLLOWING DEFENSES: (1) THAT THE PMP EXAM

PREP WAS NOT ENTITLED TO COPYRIGHT PROTECTION; AND (2)

THERE IS NO INFRINGEMENT OF KOKOS COPYRIGHT, SPECIFICALLY

THROUGH COPYING.

PMP Exam Prep is not protected under the Intellectual

Property Code

As to the first defense, PMP Exam Prep is not entitled to copyright protection since it

is neither an original work nor an authorized derivative work. Neither is it protected

under Fair Use and even if it is protected, the protection extended to the PMP ExamPrep is limited.

For a work to be original, the work must originate from the author and must have

their origins in the labor of the author.58 The work must not be copied from a prior

work but is rather the product of an independent effort by the author59. In this case,

the PMP Exam Prep is substantially copied from the Guide to the Project

Management Body of Knowledge (referred to as PMBOK), the official guidebook of

the PMI. Out of the 165 pages of the PMP Exam Prep, 150 pages were taken from

the PMBOK. As PMBOK is easily accessible to Koko, it can be said that it is Koko in

fact who is the infringer in this case, and thus he cannot go to court to pray for a

relief with unclean hands.

55 AMADOR, supra note 1, at 446.56 M. ELAINE BUCCIERI, Cause of Action for Copyright Infringement Under The Federal Copyright Act of 1976, CAUSESOFACTION SECOND SERIES, DATABASE updated October 2005, as cited in AMADOR, supra note 1, at 447.57 United States v. Norquay, 905 F2d1157 (CA8 Minn 1990).58 AMADOR, supra note 1, at 244.59 NIMMER, supra note 54, Sec. 2.01[A] (citing Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090 (2dCir.1977))


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Exam

Further, Koko cannot claim that his PMP Exam Prep is a derivative work entitled to

protection under the IP Code. PMIs copyright notice stated that although the work

could be republished freely, written permission should first be acquired from PMI.

Thus, it is essential for Koko to sufficiently prove that he had acquired the written

permission of PMI before he used parts of it for his PMP Exam Pep. A derivative work

is by definition substantially similar to the underlying work and would be a copyrightinfringement in the absence of a license. Thus, if the underlying work is in

copyright, one who wishes to exploit the derivative work needs a copyright license

from the owner of copyright in the underlying work or works.60

Granted that the PMP Exam Pep contains parts which are products of Kokos

independent effort, only these parts and not those derived from the PMBOK

without PMIs consent would be entitled to protection. The aspects of a derivative

work added by the derivative authors are that authors property, but the elements

drawn from the pre-existing work remains on grant from the owner of the pre-

existing work.61 Thus, only when Koko is able to prove that Loco copied the parts of

the PMP Exam Prep that were not taken from PMBOK would Loco be liable forcopyright infringement.

Koko failed to prove that Loco copied his work

As to the second defense, Koko failed to prove that Loco copied parts of PMP Exam

Prep. Firstly, as was argued earlier, the PMP Exam Pep was not entitled to protection

as it was an infringement of an earlier pre-existing work the PMBOK. Thus, the

only parts that may be infringed by Loco are those which Koko did not infringe from

PMBOK. Since Koko failed to show such copying, his action for infringement must

fail.

Second, granting for the sake of argument that PMP Exam is a protected work under

the IP Code, Koko also failed to show that Loco copied parts of the PMP Exam Prep

in his Candidate Notetaker. To prove that there was infringement through copying,

Koko should present direct evidence or in its absence, circumstantial evidence, to

show that there was copying.

As for direct evidence, Koko was presenting the testimony of Nielsen as an

admission that Loco copied his PMP Exam Prep. However, Nielsen only testified that

he used Kokos PMP Exam Prep and other reference works in preparing Locos

course materials and sample test questions. He did not specify which parts he

copied from the PMP Exam Prep and from the other materials. Considering that thePMP Exam Prep was also taken from the PMBOK, it is also possible that whatever

parts Loco allegedly copied may be actually from the PMBOK and not from the PMP

Exam Prep. Thus, the testimony of Nielsen may only be used as a circumstantial

evidence but not a direct evidence of the fact of copying.

60AMADOR, supra note 1 at 298-299.61 MCCARTHY, DESKENCLYCLOPEDIAOF INTELLECTUAL PROPERTY 92, (1991), citing Stewart vs. Abend, 14 USPQ (2d.1614), as citedin AMADOR, supra note 1, at 299.


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Exam

As for the circumstantial evidence, the commonly used test is the reasonable

access and substantial similarity test. For Koko to prove access, he must prove that

Loco had a reasonable opportunity to view or to copy plaintiffs work. Access to

copyrighted work may not be inferred through mere speculation or conjecture;

plaintiff must present evidence establishing that it was reasonably possible for the

defendant to view plaintiffs work.62

To prove substantial similarity on the otherhand, Koko must prove that an ordinary lay person would consider the Candidate

Notetaker as having been copied from the PMP Exam Prep. However, in this case,

although it may be said that Loco had access to the PMP Exam Prep through

Nielsen, Koko did not show an ordinary lay persons perspective as to whether the

Candidate Notetaker was sufficiently copied from the PMP Exam Prep. It only

presented Kokos own testimony stating that he compared the works and found

significant similarities. No other proof was given to the courts as to which parts

were taken from the PMP Exam Prep, no other testimonial evidence were presented.

The mere self-serving testimony of Koko is not enough to prove that Loco copied

PMP Exam Preps work.

As the PMP Exam Prep is not a protected work under our intellectual rights law and

since Koko failed to sufficiently prove that Loco copied from Kokos PMP Exam Prep

to prepare its Candidate Notetaker, then Kokos action must necessarily fail.

5. IF YOU ARE THE JUDGE ASSIGNED TO THE CASE, HOW WILL YOUDECIDE IT?

I WOULD DECIDE IN FAVOR OF LOCO AND DISMISS THE CASE.

First, Koko did not sufficiently prove that its PMP Exam Prep was a work entitled to

copyright protection. Koko admitted that parts of the PMP Exam Prep were copiedfrom the PMBOK and not a result of his independent labor, and thus, is not an

original work as protected under the IP Code. Although it may qualify as a derivative

work, Koko failed to show that he acquired written permission from the PMI to

reproduce parts of it so it is an infringement of a pre-existing copyrighted work, and

thus is not entitled to any protection.

It may be argued by Koko that his use of the PMBOK would be justified through the

defense of fair use. However, nowhere under Section 184 of the IP Code would this

situation be classified under fair use. So is the case under Section 185, as the use of

Koko of the PMBOK fails to qualify as fair use under the four factor test. Under the

four factor test, the use made of PMBOK should be tested based on the following:

1. The purpose and character of the use

2. The nature of the copyrighted work

62 Murray Hill Publications, Inc. vs. Twentieth Century Fox Film Corp., 361 F.3d 312 (6th Cir.2004), as cited inAMADOR, supra note 1, at 445


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Exam

3. The amount and substantiality of the portion used in relation to the

copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the

copyrighted work

The fourth factor, though not conclusive, is the single most important element of

fair use. This is generally demonstrated by a showing that the purpose or character

of the use was commercial. 63 Koko would only succeed in this argument when the

use of PMBOK filled a market niche that the copyright owner simply had no interest

in occupying and when Koko could prove that PMI cannot profit from the said

market.64 This is not the case in this situation, with Koko and PMI both in the market

niche of potential project management professionals who would want to pass the

PMI Exam. Thus, there is cognizable harm to PMIs economic interests when Kokos

PMP Exam Prep could serve as a market substitute for PMIs PMBOK.

Second, Koko failed to prove that there was copying on the part of Loco. He failed to

present sufficient evidence to establish his claim. His mere self-serving assertions

that after comparing the PMP Exam Prep with the Candidate Notetaker he noted

significant similarities is not enough to meet the substantial similarity test which

requires that he presents an average observer to recognize that the Candidate

Notetaker was appropriated from the PMP Exam Prep. The testimony of Nielsen only

proves that Loco had access to the PMP Exam Prep but without proving the fact of

copying, Koko would not have any cause of action against Loco.

Lastly, as Kokos claim should fail because even if there was indeed copying, he

failed to prove that the parts copied were those which he did not derive without

authority from PMI. Copyright infringement occurs only if one copies protectedelements of a copyrighted work; in other works, the portion of the copyrighted work

that is copied must satisfy the requirement of originality.65

ESSAY QUESTION ( 20%): Copying of Industrial Design

WANG DO MOTOR COMPANY OF SOUTH KOREA MANUFACTURES GENERALPURPOSE DIESEL ENGINES THAT IT EXPORTS TO THE PHILIPPINES. ITS LOCALDISTRIBUTOR DISCOVERED THAT A LOCAL COMPANY ANG TIBAY ENGINES CORP.COPIED THE APPEARANCE OF THE WANG DO GENERAL PURPOSE ENGINES ANDSOLD THEM TO INDUSTRIAL COMPANIES.

WANG DO INFORMED ITS PHILIPPINE COUNSEL OF THIS FACT AND ASKED HIM TO

PROSECUTE ANG TIBAY ENGINES CORP. FOR COPYRIGHT INFRINGEMENT. ITSCOUNSEL DECIDED TO FILE A NOTICE OF COPYRIGHT IN THE NAME OF WANG DOWITH THE NATIONAL LIBRARY AND FILLED UP ALL THE DETAILS REQUIRED IN

THE FORM. HE SUBMITTED AND ATTACHED TO THE COPYRIGHT FORM THEPROMOTIONAL MATERIALS AND LEAFLETS THAT CARRY IMAGES OF THE WANG

63 AMADOR, supra note 1, at 40364 American Geophysical Union vs. Texaco Inc., U.S.C.A. (2nd Cir.1994).65 Mitek Holdings, Inc., vs. Arce Engineering Company, U.S.C.A. (11th Cir. 1996).


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Exam

DO GENERAL ENGINES. HE SUBSEQUENTLY FILED A COPYRIGHT INFRINGEMENTCOMPLAINT BASED ON ANG TIBAY ENGINE CORP.S COPYRIGHT OF THE ENGINESDEPICTED IN THE LEAFLETS.

DID ANG TIBAY ENGINE CORP. COMMIT COPYRIGHT INFRINGEMENTWHEN IT MANUFACTURED AND SOLD GENERAL PURPOSE ENGINES

THAT LOOK LIKE WANG DOS GENERAL PURPOSE ENGINES? JUSTIFY YOUR ANSWER ON THE BASIS OF LEGAL PRINCIPLES AND/ORSTATUTORY PROVISIONS.

ANSWER: NO

To establish copyright infringement, a party must show (1) that he holds a validcopyright, and (2) that the other party has engaged in unauthorized copying. 66 Thusit is essential to first determine whether the design of Wang Dos General PurposeEngine is entitled to copyright protection and then determine if Wang Do couldacquire copyright protection for the same. If that is the case, then the determinationof whether Ang Tibay infringed on Wang Do's rights should ensue.

Wang Dos General Purpose Engine is not entitled to

Copyright

The IP Code provides under Section 172.1(h) that it protects original ornamental

designs or models for articles of manufacture, whether or not registrable as an

industrial design, and other works of applied art. This provision protects works of

applied art. At first glance, the design of the general purpose engine seems to be

protected under this provision of law. The ornamental or aesthetic appearance of an

article, in this case, the general purpose engine, is supposed to be protected and

not the utilitarian function of the article which is not subject to copyright. The fact

alone that a work is a useful article does not disqualify it from copyright

protection.67

However, a work of applied art is defined as an artistic creation with utilitarian

functions or incorporated in a useful article, whether made by hand or produced on

an industrial scale.68 The central inquiry is whether the article is a work of art.69

Works for applied art include all original pictorials, graphics, and sculptural works

that are intended to be or have been embodied in useful article regardless of

factors such as mass production, commercial exploitation, and the potential

availability of design patent protection.70 Wang Do failed to show how the

appearance of its general purpose engine is a work of art which was merelyembodied in the same engine which primarily serves industrial purposes.

66 Bateman v. Mnemonics, Inc., 79 F.3d 153267 AMADOR, supra note 1, at 271.68 INTELL. PROP. CODE, 171.1069 Pivot Port International, Inc. v. Charlene Products, Inc., 372 F.2d 913 (2004).70 Gay Toys, Inc. v. Buddy L. Corporation, 703 F.2d 970 (1983).


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Exam

Instead of being a work of applied art, Wang Dos general purpose engine may

instead be classified as merely a useful article. A useful article is one which has an

intrinsic utilitarian function that is not merely to portray the appearance of the

article or to convey information. It is copyrightable only if it would pass the

conceptual separability test, that is, a useful article is protected only if and only to

the extent that such design incorporates pictorial, graphic, or sculptural featuresthat can be identified separately from, and are capable of existing independently of

the utilitarian aspects of the article.71

Wang Do did not attempt to show how the appearance of its general purpose

engine can be separated as a work of art, instead of merely serving a functional

purpose. If the aesthetic or artistic features of Wang Dos general purpose engine

cannot be separated from its utilitarian aspect, then it cannot be entitled to

copyright protection. Functional components of useful articles, no matter how

artistically designed, have generally been denied copyright protection unless they

are separable from the useful article.72

There is no copyright infringement

As Wang Dos general purpose engine is not entitled to copyright protection, he

may not now invoke that he has exclusive rights as a copyright holder rights which

stems from the ownership of a valid copyright.

Granting, for the sake of argument, that Wang Do was able to prove that the

aesthetic aspects of its general purpose engine can stand on its own and is entirely

separable from its function as an engine, did Wang Do sufficiently establish that

Ang Tibay copied the designs of their general purpose engines to warrant a finding

of copyright infringement?

To prove infringement through copying, Wang Do should present direct evidence. In

the absence of direct evidence, Wang Do should show circumstantial evidence

establishing that Ang Tibay had access to the designs of the general purpose

engines and that the designs of the engines sold by Ang Tibay are substantially

similar to that of Wang Do.73

ACCESS

For Wang Do to prove access, it must prove that Ang Tibay had a reasonable

opportunity to view or to copy the plaintiffs work. Access to copyrighted work may

not be inferred through mere speculation or conjecture; plaintiff must present

evidence establishing that it was reasonably possible for the defendant to view

plaintiffs work. 74 In this case, Wang Do merely relied on the finding of its local

71 Pivot Port International, Inc. v. Charlene Products, Inc., supra.72 Norris Industries, Inc. v. ITT Corporation, 696 F.2d 918 (1983)73 Aaron Basha Corp. vs. Four Seasons Greetings as cited in Amador, supra74 Murray Hill Publications, Inc. vs. Twentieth Century Fox Film Corp., as cited in Amador, supra.


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Exam

distributor that Ang Tibay manufactured engines which looked like Wang Dos

engines. Wang Do, however, did not attempt to show evidence establishing how

Ang Tibay had access to the said design.

Wang Do may argue that Ang Tibay had access to its designs through the notice of

copyright made by its counsel before the National Library. The counsel filled up allthe details required in the form and submitted and attached to the copyright form

the promotional materials and leaflets that carry images of the Wang Do general

purpose engines.

The IP Code75 provides that copies of works under the subsections in Section 172, or

reproductions of the said works as may be prescribed, may be registered and

deposited with the National Library and the Supreme Court Library. After the

prescribed fee shall be paid and collected, a certificate of deposit shall be issued.

The IP Code amends the old Copyright Act when it makes the deposit and

registration with the National Library and the Supreme Court Library merely

permissive, and as such, is not a prerequisite to the grant of exclusive rights. This isin accordance with the Berne Convention, as adopted in Section 172.1 of the IP

Code, which requires that literary and artistic works be protected from the moment

of their creation. The deposit and registration requirement is merely for the purpose

of completing the records of the National Library and the Supreme Court Library.76

With that said, Wang Dos argument must fail. First, Ang Tibay had already

manufactured its own engines allegedly copied from Wang Dos even before the

said deposit was made. Second, the purpose of that deposit was merely for the

completion of the records of the National Library and the Supreme Court Library.

There was even no showing that Wang Do completed the said requirement, as no

certificate of deposit was said to be issued. Granting that Wang Do did indeedacquire the said certificate, the said certificate would only evidence compliance with

the deposit requirement which would exempt Wang Do from making additional

deposit of works under other laws.77 Wang Do could have at least attempted to

acquire a certificate of registration from the Intellectual Property Office, which is

admissible in an infringement action as prima facie evidence of the validity of the

copyright and of the acts stated in the certificate78.

SUBSTANTIAL SIMILARITY

As for substantial similarity, Wang Do must prove that an ordinary lay person would

consider the general purpose engines of Ang Tibay to be copied from Wang Dosengine. Possibly, when the local distributors of Wang Do reported to it that the

design of its engines was copied, they had a glance of Ang Tibays allegedly copied

engine. However, no point of similarity was pointed out by Wang Do to show that

75 INTELL. PROP. CODE, 19176 AMADOR, supra note 1, at 427.77 AMADOR, supra note 1, at 429.78 Durnham Industries, Inc. v. Tomy Corporation, 630 F.2d 905 (1980).


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Exam

indeed, Ang Tibay copied their engine design. No other evidence was shown to

establish that Ang Tibays engines were substantially similar, if not entirely the

same, as Wang Dos engines. Hence, Wang Dos action must fail.

Wang Do may attempt to sue based on patent infringement

Although the design of Wang Dos general purpose engine is not entitled to

copyright protection, it may however be a patentable under industrial designs.

However, copyright and patent rights are completely distinct and separate from one

another, and the protection afforded by one cannot be used interchangeably to

cover items or works that exclusively pertain to the others.79 Thus, Wang Do may

opt to instead file an action for patent infringement and not one for copyright

infringement.

ASSUME THAT INSTEAD OF LEAFLETS DEPICTING THE WANG DOGENERAL PURPOSE ENGINES, ITS COUNSEL INSTEAD FILED TECHNICALDRAWINGS OF THE ENGINES AND ATTACHED THEM TO THE COPYRIGHT

FORM, AND PROVED THAT THAT ANG TIBAY ENGINE CORP.PHOTOCOPIED THE DRAWINGS FROM THE RECORDS OF THE NATIONALLIBRARY, WOULD THERE BE A BASIS TO CLAIM THAT THERE ISCOPYRIGHT INFRINGEMENT OF THE DRAWINGS BY USING THEM TOMANUFACTURE IDENTICAL-LOOKING GENERAL PURPOSE ENGINES?

NO.

It must be noted that Ang Tibay manufactured its own engines BEFORE Wang Dos

counsel deposited and registered the design of its general purpose engine with the

National Library. The access test to determine whether the defendant copied the

design of the plaintiff must necessarily refer to access before the act of copying, notafter the act of the alleged copying. Thus, even if Wang Do would be able to prove

that Ang Tibay did photocopy the technical drawings of the engines from the

National Library, this would have no bearing since Ang Tibay already had an engine

which they released to the public. How could an alleged infringer copy a design and

make an item out of that design if he has not even seen it yet?

Assuming that Wang Dos counsel deposited the said drawings with the National

Library even before Ang Tibay manufactured its own line of machines, and Wang Do

is able to establish that Ang Tibay photocopied the said drawings from which it

reproduced a substantially similar engine, would Wang Dos claim succeed?

The answer is still no. For a copyright claim to succeed, the plaintiff must be able to

establish ownership of a valid copyright.80 A valid copyright would entitle the

determination of whether the work sought to be protected is so protected under the

states copyright laws.

79 Kho vs. Court of Appeals, G.R. No. 115758, 19 March 2002, 379 SCRA 410.80 Feist Publications, Inc. v. Rural Telephone Service Company, supra


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Exam

Technical drawings may be argued as protected as an original ornamental design

for articles of manufacture and other applied art under Section 172.1(h). However,

as was said earlier, the cemtral inquiry is whether the article is a work of art. The

technical drawing may be copyrightable only if it would pass the conceptual

separability test, that is, if and only to the extent that such design incorporates

pictorial, graphic, or sculptural features that can be identified separately from, andare capable of existing independently of the utilitarian aspects of the article.81

Absent a showing that the technical drawings incorporates parts which can exist

independently as art from the utilitarian functions of the engine, the said technical

drawing is not entitled to copyright protection.

The technical drawings may also be argued to be protected under Section 172.1(j)

as drawings of a technical character but is there infringement on the part of Ang

Tibay when it manufactured engines allegedly copying the design of Wang Do?

Copyright, in the strict sense of the term, is purely a statutory right. Being a mere

statutory grant, the rights are limited to what the statute confers. It may beobtained and enjoyed only with respect to the subjects and by the persons, and on

terms and conditions specified in the statute.82 Accordingly, it can cover only the

works falling within the statutory enumeration or description.83

Nowhere in the enumeration of economic rights nor in the enumeration of moral

rights would Wang Do have a claim to limit the manufacturing of Ang Tibay of an

engine based on the copyrighted technical design. When a drawing is technical and

depicts a utilitarian object, a copyright over the drawings like will not extend to the

actual object.84 As was held in Pearl & Dean, Inc. vs. Shoemart, Inc.85, the copyright

protection would extend only to the technical drawings under Setion 172.1(j) but

not to the actual article that may be produced from the said technical drawing, as ageneral purpose engine is not a literary or artistic piece which could be copyrighted

under the copyright law. Also, the copyright is distinct from the property in the

material object subject to it86. Thus, even if Ang Tibay manufactured an engine

based on the design created by Wang Do, Wang Dos protection would be limited

only to the protection of that technical design but not to the creation of an engine

based on the specifications of that work.

x---------------------------------------------------------------------------------------------x

ESSAY QUESTION ( 20%):QUESTION 3: Get Off vs. 100 Miles

BRIDGEPORT MUSIC, INC., WESTBOUND RECORDS, INC., ET. AL. VS. DIMENSIONFILMS ET. AL INVOLVED A COPYRIGHT INFRINGEMENT COMPLAINT ARISING OUT

81 Pivot Port International, Inc. v. Charlene Products, Inc., supra82 18 C.J.S. 161.83 Joaquin vs. Drilon, 302 SCRA 225 [1999].84See Baker vs. Selden (101 U.S. 841 (1879); Muller vs. Triborough Bridge Authority [43 F. Supp. 298 (S.D.N.Y.1942)];Imperial Homes Corp. v. Lamont, 458 F. 2d 895 and Scholtz Homes, Inc. v. Maddox, 379 F. 2d 8485Supra.86 INTELL. PROP. CODE, 181.


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Exam

OF THE USE OF A SAMPLE FROM THE COMPOSITION AND SOUND RECORDING"GET OFF YOUR ASS AND JAM" ("GET OFF") IN THE RAP SONG "100 MILES ANDRUNNIN' " ("100 MILES"), WHICH WAS INCLUDED IN THE SOUND TRACK OF THEMOVIE I GOT THE HOOK UP (HOOK UP ).

THE RECORDING "GET OFF" OPENS WITH A THREE-NOTE COMBINATION SOLO

GUITAR "RIFF" THAT LASTS FOUR SECONDS. ACCORDING TO ONE OF PLAINTIFFS'EXPERTS, RANDY KLING, THE RECORDING "100 MILES" CONTAINS A SAMPLEFROM THAT GUITAR SOLO. SPECIFICALLY, A TWO-SECOND SAMPLE FROM THEGUITAR SOLO WAS COPIED, THE PITCH WAS LOWERED, AND THE COPIED PIECEWAS "LOOPED" AND EXTENDED TO 16 BEATS. KLING STATES THAT THIS SAMPLEAPPEARS IN THE SOUND RECORDING "100 MILES" IN FIVE PLACES; SPECIFICALLY,AT 0:49, 1:52, 2:29, 3:20 AND 3:46. BY THE DISTRICT COURT'S ESTIMATION,EACH LOOPED SEGMENT LASTED APPROXIMATELY 7 SECONDS. AS FOR THESEGMENT COPIED FROM "GET OFF," THE DISTRICT COURT DESCRIBED IT ASFOLLOWS:

THE PORTION OF THE SONG AT ISSUE HERE IS AN ARPEGGIATED CHORD--THAT

IS, THREE NOTES THAT, IF STRUCK TOGETHER, COMPRISE A CHORD BUTINSTEAD ARE PLAYED ONE AT A TIME IN VERY QUICK SUCCESSION--THAT ISREPEATED SEVERAL TIMES AT THE OPENING OF "GET OFF." THE ARPEGGIATEDCHORD IS PLAYED ON AN UNACCOMPANIED ELECTRIC GUITAR. THE RAPIDITY OF

THE NOTES AND THE WAY THEY ARE PLAYED PRODUCE A HIGH-PITCHED,WHIRLING SOUND THAT CAPTURES THE LISTENER'S ATTENTION AND CREATESANTICIPATION OF WHAT IS TO FOLLOW.

1. WHAT ARE THE ELEMENTS OF ORIGINALITY IN A MUSICALCOMPOSITION?

A MUSICAL COMPOSITION IS MADE UP OF RHYTHM, HARMONY AND

MELODY. THUS, ORIGINALITY IN A WORK MAY EXIST IF FOUND IN ONE

OF THESE ELEMENTS.

Nimmer provides a helpful discussion on the said topic based on various cases

decided in the United States.

Rhythm has been defined as the aspect of music comprising all the elements (as

accent, meter, and tempo) that relate to forward movement87. The courts are not

consistent in finding originality based on rhythm alone. Originality of rhythm is a

rarity, if not an impossibility. However, some courts found copyrightable originality

in rhythmic annotations, fingering, dynamic marks, tempo indications, slurs and

phrasing.

87 Meriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary/rhythm (Last visited April14, 2010).
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Harmony, on the other hand, refers to the structure of music with respect to the

composition and progression of chords.88 It is the blending of tones89. Courts have

hesitated to find the necessary originality in harmony and most have found that, in

itself, harmony cannot be the subject of copyright.

Finally, melody is the arrangement of notes and tones. It is in this arrangement orsuccession of musical notes which serves as the fingerprints of composition and

which establishes the compositions identity90. Melody is thus the usual source of

originality in musical compositions.91

However, as music is not capable of ready classification into only five or six

constituent elements, and is comprised of a large array of elements, some

combinations are held protectable by copyright. Some courts upheld the finding of

substantial similarity based on the combination of five otherwise uprotectable

elements: (1) the title hook phrase (including the lyric, rhythm, and pitch); (2) the

shifted cadence; (3) the instrumental figures; (4) the verse/chorus relationship; and

(5) the fade ending. Other courts have taken account of additional components ofmusical compositions, including melody, harmony, rhythm, pitch, tempo, phrasing,

structure, chord progressions, and lyrics. In addition, commentators have opined

that timbre, tone, spatial organization, consonance, dissonance, accents, note

choice, combinations, interplay of instruments, basslines, and new technological

sounds can all be elements of a musical composition.92

2. IS THERE ACTIONABLE COPYRIGHT INFRINGEMENT COMPLAINTFROM THE USE OF A SAMPLE FROM THE COMPOSITION AND SOUNDRECORDING "GET OFF YOUR ASS AND JAM" ("GET OFF") IN THE RAPSONG "100 MILES AND RUNNIN' " ("100 MILES")?

YES. THE RAP SONG 100 MILES AND RUNNIN VIOLATED THE RIGHT OF

THE PRODUCER TO REPRODUCTION OF THE SOUND RECORDING.

Sound recordings and their underlying musical compositions are separate workswith their own distinct copyrights.93 Musical compositions are protected underSection 172.1(f), with or without words. On the other hand, the rights of theproducers to the sound recordings are found in Section 208. It is thus necessary todistinguish the rights of the composer of the song and the producer and qualify theact of infringement present in this situation.

The work involved here is an arpeggiated chord: three notes that, if struck together,

comprise a chord but instead are played one at a time in very quick succession. Thesaid chord is repeated several times at the opening of "Get Off" and played on an

88Merriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary/harmony (Last visited April14, 2010).89 Northern Music Corp. v. King Record Distributing Co., 105 F. Supp. 393, 399 (S.D.N.Y. 1952)90 Northern Music Corp. v. King Record Distributing Co., supra.91 NIMMER, supra note 54, at 2-57, 2-5892 Swirstky vs. Carrey, 376 F.3d 841, CA.9 (Cal.), 2004, July 12, 2004, as cited in AMADOR, supra note 1, at 26193 Bridgeport Music, Inc. vs. Still N The Water Publg , 540 U.S. 948 (2003).
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unaccompanied electric guitar. The rapidity of the notes and the way they areplayed produce a high-pitched, whirling sound that captures the listener's attentionand creates anticipation of what is to follow.

For there to be copyright infringement of the said sample, initial determination ofownership of a valid copyright and the infringement of the copyright owners

protected rights should be made. In this case, the musical composer and theproducer of the sound record are each presumed to be have validly acquiredcopyright for the musical composition and the sound recording, respectively, aseach are entitled to protection under the IP Code.

With regards the rights violated, the composer may argue that his right toderivation or reproduction was violated. The producer, on the other hand, wouldargue that his right to authorize reproduction of the sound recording was violated.

The determination of whether there was a violation of the rights of each wouldrequire a separate discussion for each rights.

There is no violation of the composers right to derivation orreproduction

In the field of popular songs, many, if not most compositions bear some similarity toprior songs. However, apart from and in addition to the fact that originality merelyrequires independent effort and novelty, it has been held that although a musicaltheme may be suggestive of prior works, it will still be deemed original if the overallimpression is of a new work.94

To determine if the composers of 100 Miles and Running (100 Miles) did infringeportion of Get Off, the same test of access and substantial similarity could beapplied.

With regards access, Get Off was already released to the market and may beargued to be reasonably accessible to the composers of 100 miles. As forsubstantial similarity however, evidence of similarity may be found through proof ofidentical or similar: (1) patterns and grouping of notes and musical phrases, (2)melodies, (3) metric structure, (4) harmony, (5) unexpected departures from thenormal metric structure, and (6) particularly intricate measures or sections.Compositions should be examined for similarities in both musical and lyricalstructure. 95

To determine substantial similarity, similarity of ideas must first be analyzedextrinsically, focusing on the objective similarities in the details of the works. Ifthere is substantial similarity in ideas, similarity of expression is evaluated using anintrinsic test depending on the response of the ordinary reasonable person to theforms of expression.96 Two works are substantially similar where `the ordinaryobserver, unless he set out to detect the disparities, would be disposed to overlook

94 NIMMER, supra note 54, 2.05[D], pp.2-57, 2-58, as cited in AMADOR, supra note 1, at 258.95 AMADOR, supra note 1, at 447.96 Derrick D. Moore vs. Columbia Pictures Industries, Inc. 972 F.2d 939 (8th Cir.1992), as cited in AMADOR, supranote 1, at 259.


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them, and regard [the] aesthetic appeal [of the two works] as the same.97 Thisshould be related to the de minimis infringement which provides that a use is deminimis only if the average audience would not recognize the appropriation.98 Suchkind of infringement is not actionable, as an unauthorized use of a copyrighted workmust be significant enough to constitute infringement.99 Even where the fact ofcopying is conceded, no legal consequences will follow from that fact unless the

copying is substantial.100

Here, the sample allegedly taken was a two-second sample, with pitch lowered,then looped and extended to 16 beats. However, if both songs are played andcompared before an average audience, an entirely different and distinguishablesound would be heard. The alleged appropriation by 100 Miles is not at allrecognizable. The overall impression of audience to 100 Miles is that of a newwork, and thus, it would be deemed an original creation of its composers.

The vocabulary available for musical composition is far less rich and enables far lessinvention than do the sources of literature, drama and the visual arts. Melodicinvention is confined not only to the number of notes in the musical scale, but also

by the need to create the graceful, memorable tune and, if the melody is to besung, by the range of the human voice. One consequence of these limitations is thatthe originality requirement will bar protection for musical works more commonlythan it does other classes of works.101 Thus, the action of the musical composers forcopyright infringement must necessarily fail.

There is, however, a violation of the rights of the producer of

the sound recording.

Sound recording is defined as the fixation of the sounds of a performance or ofother sounds, or representation of sound, other than in the form of a fixationincorporated in a cinematographic or other audiovisual work.102 Fixation, on theother hand, means the means the fixation of the sounds of a performance or ofother sounds, or representation of sound, other than in the form of a fixationincorporated in a cinematographic or other audiovisual work.103

The producers of sound recordings, subject to fair use, are granted the right toauthorize the direct or indirect reproduction of their sound recordings, in anymanner or form, and in placing these reproductions in the market.104 In determiningwhether the right of the producer to reproduction of the sound recordings wasbreached, the only issue is whether the actual sound recording has been usedwithout authorization. Substantial similarity is not an issue.105

97 Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)98 Fisher v. Dees, 794 F.2d 432 (9th Cir.1986)99 See Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 74-75 (2d Cir.1997).100 See Laureyssens v. Idea Group, Inc., 964 F.2d 131, 140 (2d Cir.1992); NIMMER, supra note 54, 13.03[A], at 13-30.2.101 AMADOR, supra note 1, at 259.102 INTELL. PROP. CODE, 202.2,.103Id., 202.4.104Id., s 208.1 and 210


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In this situation, the mere use of the composers of 100 Miles of the soundrecording, without proof of authorization from the producer of Get Off, constitutesan infringement of the right of the producer. The alteration made by the composersof 100 Miles to the sound recording is of no matter, as the law clearly providesthat reproduction in any manner or form requires authorization from the producer.

3. SINCE THE SAMPLE WAS ALSO USED IN THE SOUNDTRACK OF THEMOVIE I GOT THE HOOK UP (HOOK UP), IS THE MOVIE EQUALLYINFRINGING?

YES. THE MOVIE ALSO INFRINGED THE PRODUCERS RIGHT TO THE SOUND

RECORDING UNDER SECTION 208 OF THE IP CODE.

The infringing song 100 Miles was included in the sound track of the movie I Got

the Hook Up (Hook Up). Similarly, there is no proof that the producers of the

movie acquired authorization from the producer of the sound recording of Get Off

to reproduce the sound in the movie. As the only issue in infringement of rights of

producers of sound recordings is whether the actual sound recording has been usedwithout authorization, and there being no showing that the producers acquired such

authorization, the producers are deemed to have infringed the rights of the

producers and are thus liable for copyright infringement.

x----------------------------------------------------------------------------------------------x

Essay Question ( 20%): Courseware materials

A FACULTY MEMBER HAS BEGUN WORK ON MULTI-MEDIA COURSEWAREMATERIALS SHE PLANS TO USE WITH HER STUDENTS FOR GEOLOGY 401. SHEMADE ARRANGEMENTS WITH THE TECHNICAL SUPPORT TEAM AND OBTAINED APHP50, 000 GRANT FROM THE UNIVERSITY TO HELP FUND HER PROJECT. SHEPLANS TO HIRE A GRADUATE STUDENT TO DO PROGRAMMING FOR HER. HERBROTHER-IN-LAW A COMMERCIAL ARTIST HAS AGREED TO DO 11 GRAPHICILLUSTRATIONS FOR HER.

1. WHO AMONG THE PERSONS MENTIONED ABOVE WILL OWN THECOURSEWARE MATERIALS AND WHY?

THE MULTI-MEDIA COURSEWARE MATERIAL ITSELFIS OWNED BY THE

FACULTY MEMBER. (DISCUSSION AS TO THE OWNERSHIP OF THE

COPYRIGHT TO THIS WORK IS MADE IN THE NEXT QUESTION)

With the advent technological advances, distance education has grown dramaticallyin volume and importance.106 This led to the development of multi-media

105 Bradley C. Rosen, Esq., 22 Causes of Action 12 (2d ed. 2003), as cited in Bridgeport Music, Inc. v. DimensionFilms, 383 F.3d 390 (6th Cir. 2004) in fn 6.106 JEREMY ROWE, Who Owns Multimedia Courseware - Faculty or the Institution?: A Critical Issue in Development andDelivery of Technology-Based Education, available athttp://74.125.153.132/search?q=cache:KU82AVHde5YJ:www.public.asu.edu/~jeremy/jxrownershipcause.html+copyright+fair+use+multi-media+courseware&hl=tl&gl=ph&strip=1 (last visited April 14, 2010).
http://74.125.153.132/search?q=cache:KU82AVHde5YJ:www.public.asu.edu/~jeremy/jxrownershipcause.html+copyright+fair+use+multi-media+courseware&hl=tl&gl=ph&strip=1http://74.125.153.132/search?q=cache:KU82AVHde5YJ:www.public.asu.edu/~jeremy/jxrownershipcause.html+copyright+fair+use+multi-media+courseware&hl=tl&gl=ph&strip=1http://74.125.153.132/search?q=cache:KU82AVHde5YJ:www.public.asu.edu/~jeremy/jxrownershipcause.html+copyright+fair+use+multi-media+courseware&hl=tl&gl=ph&strip=1http://74.125.153.132/search?q=cache:KU82AVHde5YJ:www.public.asu.edu/~jeremy/jxrownershipcause.html+copyright+fair+use+multi-media+courseware&hl=tl&gl=ph&strip=1http://74.125.153.132/search?q=cache:KU82AVHde5YJ:www.public.asu.edu/~jeremy/jxrownershipcause.html+copyright+fair+use+multi-media+courseware&hl=tl&gl=ph&strip=1http://74.125.153.132/search?q=cache:KU82AVHde5YJ:www.public.asu.edu/~jeremy/jxrownershipcause.html+copyright+fair+use+multi-media+courseware&hl=tl&gl=ph&strip=1http://74.125.153.132/search?q=cache:KU82AVHde5YJ:www.public.asu.edu/~jeremy/jxrownershipcause.html+copyright+fair+use+multi-media+courseware&hl=tl&gl=ph&strip=1


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courseware which incorporates several copyrightable materials into one package.Thus, the question arises as to who owns the courseware materials.

In this situation, several persons have made the courseware material possible. Thefaculty member would contribute the textual content, the graduate student woulddevelop the courseware, the brother-in-law would do graphic illustrations for the

faculty member, the university given the faculty member funds to do the same, andarrangements were already made with a technical support team. However, only thefaculty member would own the materials.

The materials constituting the courseware material may be divided into two parts:those which he contributes himself and those which he asks other persons to do. Asto the parts which the faculty member contributes to the courseware, it may besafely presumed that it would be her original creations, and thus these contributionsbelong to the faculty member as author of the same.

As to the second classification, it may be considered a commissioned work underSection 178.4. The faculty member is not the employer of either the graduate

student or the brother-in-law, and the faculty member may be presumed to bepaying for the services of the two. In instances of commissioned work, the personwho commissioned the work shall have ownership of the work, but the copyrightthereto shall remain with the creator, unless there is a written stipulation to thecontrary. Thus, it may be apparent that the faculty member would have ownershipover the work (the multi-media courseware) but the ownership as to the copyrightof the said work is a different matter, and such discussion is more proper under thesucceeding question.

2. WILL THEY BE CONSIDERED AUTHORS ONLY OF THEIR RESPECTIVECONTRIBUTIONS OR CO-AUTHORS OF THE COURSEWARE ON GEOLOGY301?

Only with their respective contributions.

The Copyrightable matter test, favored more by the courts, could be used todetermine whether the contributors to the courseware are joint authors. A person isa joint author if his contribution is not a mere idea and his output is in itselfcopyrightable.107

Who would be considered the joint authors here? The faculty member is potentiallya joint author, as the textual content that he would be contributing may beprotected as pamphlets, articles and other writings108 or as oral works which were

merely reduced to writing

109

. The graduate student who made the courseware couldhave the courseware protected as a computer program110. The brother in law couldbe considered a joint author for the graphic illustrations which are protected under

107 AMADOR, supra note 1, at 337108 INTELL. PROP. CODE, 172.1(a)109Id., 172.1 (c)110 INTELL. PROP. CODE, 172.1(n).


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the classification of works of drawing, painting, architecture, sculpture, engraving,lithography or other works of art.111

The university is not an author as the mere provision of funds for the multi-mediacourseware is not in itself copyrightable. It may be an author, provided that theother authors were under its employment or were commissio

IPL Finals Copyright and Patent (AY 09-10)

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