clicking here - Atty. Dominador Buhain

President, PEPA and REX Book Store, Inc.
(Seminar-Workshop on Operating a Reproduction Rights Organization,September 5, 2005,
SEAMEO-Innotech, Diliman, Quezon City)
Admittedly, we do not have accurate facts and figure on the effects of photocopying
in the book industry. Allow me however, to share to you some experiences we have been
encountering in my company, REX Book Store, Inc. ( RBSI) to fight piracy.
Sometime in July, 2005, RBSI conducted routine surveillance at the photocopy
centers located in Mendiola St., Manila. We were able to chance-upon the owner of a copy
center in the act of photocopying books printed and published by RBSI. We spoke and
explained to the owner that the act of photocopying said books is illegal and that he can be
held criminally liable. The man, for his part, understood the consequences of his action and
therefore voluntarily agreed to surrender the illegally reproduced books to our company. It
was learned that said person has a pending case for Copyright Infringement before the
Office of the City Prosecutor of Manila.
A similar incident happened in Cagayan de Oro wherein the owner of a university
representative has conducted surveillance and test-buy operations in their bookstore.
Sometime in 2004 we filed an application before the Regional Trial Court of Manila
a search against one company for photocopying lawbooks published by RBSI in
violation of RA 8293. Following the application, the operatives of NBI carried out the raid of
the business establishment which has resulted in the confiscation of unlawfully reproduced
There was an instance when we received an information that a former employee of
RBSI is in possession of negatives (flat) of the book “Philippine Constitution”
informant revealed that said former employee is looking for a financier for the printing of
said book. The informant further said that the person is willing to sell the negatives (flats)
in the amount of P200,000.00.
After several meetings with the informant, it was agreed tht an entrapment
operation be carried out to recover the negatives. Our representative posted himself as the
buyer together with the operatives of the CIDG. During the said entrapment, two
suspicious-looking females arrived at the scene carrying a bag which prompted our
representative to approach them and ask for the negatives. In the presence of the CIDH,
the two ladies surrendered the negatives and divulged the mastermind of the illegal
scheme .
On December
2, 2003, RBSI together with agents
from the NBI Intellectual
Property Rights Division (NBI-IPRD) applied for and was issued a search for violation of
RA 8293 before the Regional Trial Court Branch 24. On the same day, the operatives of
the NBI-IPRD conducted a raid at the aforesaid stalls. Seized from them were assorted
infringed copies of the books Basic Mathematics for College Students and Developmental
Reading Skill for College Students.
Initial information from RBSI Davao revealed that some educational institutions are
engaged in the sale of infringed copies of our books entitled General Psychology with
Values Development Lessons and Basic Mathematics for College Students.
RBSI representative and the NBI operatives conducted confirmatory test-buy which
yielded positive result. Later, NBI filed an application for search warrant against the owner
of the bookstore operating inside the university.
RTC Judge of Davao City issued search warrants. On the same day, operatives of
the NBI served the aforesaid search warrants which again yielded positive result. Seized
from the suspects are the following:
729 pieces of General Psychology
4 pieces Basic Mathematics for College Students
9 pieces The Law on Negotiable instruments
9 pieces Textbook on Agrarian Reform
Todate, the university has been ordering books from us amounting to P1,000,000.00.
There was likewise a time when our Company sought the assistance of GMA-7 in
our effort to increase public awareness on the ill-effects of book piracy. The segment
producer and a cameraman proceeded to suspects’ stalls purposely to conduct test-buy
of books . Our representative was able to buy illegally reproduced books and the full
transaction was recorded with the aid of the surveillance camera.
With the help of the CIDG and Police Anti-Fraud and Commercial Crimes DivisionCriminal Investigation and Detection Group (AFCCD-CIDG)
simultaneous raids were
conducted at the aforesaid stalls . Seized from them were several copying machines and
assorted illegally reproduced books.
At this juncture, allow me to say a few words about copyright in general as well as
possible recommendations as PEPA President and Chairman of the Legislative Affairs
Today, considering your knowledge on publishing, printing, writing and other aspect
of publication, allow me to focus on the challenges facing the implementation of the
Philippine Copyright Law and some recommendations that could be discussed during the
round table discussions or group sessions.
Along this line, allow me to lay down the premises as follows:
The 1987 Philippine Constitution is replete with provisions respecting copyright, to
Section 13, Article XIV which states that:
“The State shall protect and secure the exclusive rights of scientist,
inventors, artists, and other gifted citizens to their intellectual property and
creations, particularly when beneficial to the people, for such period as may
be provided by law”.
Also Section 10 of the same Article provides that:
“Science and Technology are essential for national development and
progress. The State shall give priority to research and development,
invention, innovation, and their utilization; and to science and technology,
education, training, and service. It shall support indigenous, appropriate, and
self-reliant scientific and technological capabilities, and their application to
the country’s productive systems and national life.”
To preserve the nation’s historical and cultural heritage and resources, the highest
law of the land mandates that:
“Arts and letters shall enjoy the patronage of the State. The State
shall conserve, promote, and popularize the nation’s historical and cultural
heritage and resources, as well as artistic creations.” (Section 15, Article
And finally, to protect the country’s historic wealth, Section 16 of Article XIV says
“All the country’s artistic and historic wealth constitutes the cultural
treasure of the nation and shall be under the protection of the State which
may regulate its disposition.”
To show that our country is serious in protecting intellectual creations, the mother
land is a signatory or party to the following international agreements:
(1) The Universal Copyright Convention
(2) The Geneva Phonograms Convention is the Convention for the Protection of
Producers Phonograms Against Unauthorized Duplication of Their Phonograms,
concluded at Geneva Switzerland on October 29, 1971.
(3) The Berne Convention, which is the Convention for the Protection of Literary
and Artistic Work signed at Berne, Switzerland on September 9, 1886.
(4) The World Trade Organization (WTO) Agreement.
(5) The WIPO Copyright Treaty is concluded at Geneva, Switzerland on December
20, 1996.
(6) The WIPO Performance and Phonograms Treaty is also concluded at Geneva,
Switzerland on December 20, 1996.
On June 6, 1997, Congress passed R.A. No. 8293, otherwise known as the
Intellectual Property Code of the Philippines. The law took effect on January 1, 1998 and
provides in no uncertain terms that copyright protection automatically attaches to a work by
the sole fact of its creation, irrespective of its mode or form of expression, as well as of its
content, quality or purpose.
The new Code created the Intellectual Property Office and updated cum repealed
the provisions of R.A. Nos. 165 and 166, P.D. Nos. 49 and 285 and their amendments.
Of particular interest to us is Part IV of the Code from Sections 171 to 210 dealing
on copyright.
It bears emphasis that copyright is distinct and separate from trademarks or
patents. As ruled by the Supreme Court in the cases of Kho v. Court of Appeals, G.R. No.
115758, 19 March 2002 and Pearl and Dean (Phil), Inc. v. Shoemart Incorpoarted
G.R. No. 148222, 15 August 2003, wherein the highest tribunal ruled that “these 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 work that exclusively
pertains to the others” The SC expounded further, thus:
“Trademark, copyright and patents are different intellectual property
rights that cannot be interchanged with one another. A trademark is any
visible sign capable of distinguishing the goods (trademark) or service
(service mark) of an enterprise and shall include a stamped or marked
container of goods. In relation thereto, a trade name means the name or
designation identifying or distinguishing an enterprise. Meanwhile, the
scope of a copyright is confined to literary and artistic works which are
original intellectual creations in the literary and artistic domain
protected from the moment of their creation. Patentable inventions, on
the other hand, refer to any technical solution of a problem in any field of
human activity which is new, involves an inventive step and is industrially
applicable.” (Underscoring supplied)
In the leading case of Joaquin, Jr. v. Drilon, G.R. No. 108946, 28 January 1999,
the Court explained the concept of copyright registration and its deposit with the National
Library when it ruled that:
Copyright, in the strict sense of the term, is purely a statutory
right. It is a new or independent right granted by the statute, and not simply
a pre-existing right regulated by it. Being a statutory grant, the rights are only
such as the statute confers, and may be obtained and enjoyed only with
respect to the subjects and by the persons, and on terms and conditions
specified in the statute. Accordingly, it can cover only the works falling within
the statutory enumeration or description.
And based on the ruling of the Supreme Court in the recent case of Ching v.
Salinas, June 29, 2005, citing US jurisprudence the following are now basic
principles on copyright:
a) Ownership of copyrighted material is shown by proof of originality and
copyrightability. By originality is meant that the material was not copied,
and evidence at least minimal creativity; that it was independently
created by the author and that it possesses at least same minimal
degree if creativity.
b) Copying is shown by proof of access to copyrighted material and
substantial similarity between the two works; and
c) The applicant of copyrighted material must thus demonstrate the
existence and the validity of his copyright because in the absence of
copyright protection, even original creation may be freely copied.
It must be noted that inspite and despite of the laws and jurisprudence there
are various challenges as regards the implementation of the Copyright Law.
Foremost of these challenges are the infringement of copyrighted materials
and the illegal reproduction of copyrighted books and printed materials through
photocopying, duplicating and printing materials. These illegal activities not only
deprive the authors and publishers of the economic benefits in form of royalties and
revenues but also affect the literacy of the country and citizenry. Rampant illegal
reproduction of copyrighted materials is a dis-incentive that could prevent the
sharing of knowledge and progress of thought.
Along this line, I believe the matter should be address through the concerted
effort of authors, writers, publishers, printers and other stakeholders to be
spearheaded by the Philippine Reproduction Rights Organization (PRRO) by
(1) Filing a test case against leading universities and entities who
encourage and even suggested the photocopying of the copyrighted
materials in contravention and in complete disregard of the concept of
“fair use”;
(2) To support and initiate the filing of a remedial legislation that could
provide mechanism in reproducing prescribed books and penalizing
rampant and illegal reproduction of copyrighted books.
As regards on the proposed legislation, as President of PEPA and Chairman of the
Legislative and International Affairs Committee, I took the liberty of drafting a bill on the
matter for your consideration and further improvement during your group sessions or
Another challenge is the country’s membership with the ASEAN and other
organization. It must be stressed that in Europe, member-states of the European Economic
Council have a Copyright Directive for all member-states. The directive provides for the
establishment of an internal market and the institution of a system ensuring that
competition in the internal market is not distorted.
In this regard, we should look into the possibility of the harmonization of the laws of
the ASEAN countries on copyright and related rights. It should be emphasized that a
harmonized legal framework on copyrights, through increased legal certainty and while
providing for a high level of protection of intellectual property, will foster substantial
investment in creativity and innovation, including network infrastructure, and lead in turn to
growth and increased competitiveness of ASEAN industry, both in the area of content
provision and information technology and more generally across a wide range of industrial
and cultural sectors. This will safeguard employment and encourage new job creation.
Without harmonization of laws, may result in significant differences in protection
and thereby in restrictions on the free movement of services and products incorporating, or
based on, intellectual property, leading to a refragmentation of the market and legislative
inconsistency. The impact of such legislative differences and uncertainties will become
more significant with further development of the information society, which has already
greatly increased transborder exploitation of intellectual property. This development will
and should further increase. Significant legal differences and uncertainties in protection
may hinder economies of scale for new products and services containing copyright and
related rights.
Any harmonization of copyright and related rights must take as a basis a high level
of protection, since such rights are crucial to intellectual creation. Their protection helps to
ensure the maintenance and development of creativity in the interest of authors,
performers, producers, consumers, culture, industry and the public at large.
As a final remark, it is my wish that the cited challenges could be addressed by the
participants of this historical gathering.
Maraming Salamat Po.