By Dennis Gorecho
The “fair use” doctrine allows for the limited use of copyrighted material without permission from the copyright holder for specific purposes.
Copyright infringement is a trespass on a private domain owned by the owner of the copyright and protected by law.
Copyright infringement occurs when someone performs an act that is the exclusive right of the copyright holder, without obtaining the copyright holder’s permission. It involves using copyrighted material in an unauthorized way. (Columbia Pictures Inc. vs. Court of Appeals, 329 Phil. 875, 926).
But copyright protection is not intended to give the copyright owner absolute control over all possible exploitation of his work.
The Intellectual Property Code (RA 8293), under Section 185, provides for limitations (“statutory fair uses”) on the economic rights of authors comprising of acts which do not constitute copyright infringement even if done without the consent of the copyright holder.
Fair use is an exception to the copyright owner’s monopoly of the use of the work to avoid stifling “the very creativity which that law is designed to foster.”
Fair use is determined by looking at four factors: (1) the purpose and character of the use, including whether it is for profit or non-profit educational purposes; (2) the nature of the work; (3) how much of the work is used; and (4) the effect of the use on the value of the work.
In his separate opinion in COSAC, Inc. vs. Filipino Society of Composers/FILSCAP (GR 222537, February 28, 2023), my UP Law professor and Supreme Court Senior Associate Justice Marvic Leonen cited an earlier case of ABS-CBN vs. Gozon, et al. (GR 195956, March 11, 2015) that expounded the four-factor test to determine fair use:
First, the purpose and character of the use of the copyrighted material must fall under those listed in Section 185, thus: “criticism, comment, news reporting, teaching including multiple copies for classroom, use, scholarship, research, and similar purposes.”
The purpose and character requirement is important in view of copyright’s goal to promote creativity and encourage creation of works. Hence, commercial use of the copyrighted work can be weighed against fair use.
The “transformative test” is whether the copy of the work adds “new expression, meaning or message” to transform it into something else.
Second, the nature of the copyrighted work is significant in deciding whether its use was fair. If the nature of the work is more factual than creative, then fair use will be weighed in favor of the user.
Third, the amount and substantiality of the portion used is important to determine whether usage falls under fair use. An exact reproduction of a copyrighted work, compared to a small portion of it, can result in the conclusion that its use is not fair. There may also be cases where, though the entirety of the copyrighted work is used without consent, its purpose determines that the usage is still fair.
Lastly, the effect of the use on the copyrighted work’s market is also weighed for or against the user. If the use had or will have a negative impact on the copyrighted work’s market, then the use is deemed unfair.
The Supreme Court used “fair use” in determining there was no copyright infringement in the recent case of FILSCAP vs. Wolfpac Communications Inc. (February 25, 2025, GR 184661) as it ruled that ringtone before buying it does not violate copyright laws. Wolfpac used it to provide potential consumers with the means to make an informed choice whether or not to download the songs.
Fair use was not allowed as defense in the cases involving restaurants: Cosac vs. FILSCAP, Icebergs vs. FILSCAP (GR 256091, April 12, 2023), and Filscap vs. Anrey (GR 233918, August 9, 2022). FILSCAP failed to receive the benefit of license fees from the restaurants, which publicly performed without license or authority the subject copyrighted works for the benefit of its customers and to enhance its profit. This commercial use is beyond the normal exploitation of the copyright holder’s creative work. But where the benefits are merely complementary or incidental, fair use may properly be considered.
The SC disregarded “fair use” in Habana vs. Robles (GR 131522, July 19, 1999) involving books. Quotations from a published work if they are compatible with fair use and only to the extent justified by the purpose are allowed provided that the source and the name of the author, if appearing on the work, are mentioned.
In March 2024, the IP Office of the Philippines released its fair use guidelines to provide clarity and guidance to Filipino creatives, educators and innovators in fostering a deeper understanding of IP rights.
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Atty. Dennis R. Gorecho is the junior partner who heads the Seafarers’ Division of the Sapalo Velez Bundang Bulilan Law Offices. For comments, e-mail info@sapalovelez.com, or call 0917-5025808./WDJ