Everyone of us at some point in time have taken a picture together with our family, friends or some other people with a public statue in our backgrounds - in Monumento a shrine for our great hero Andres Bonifacio, or to Luneta - a picture with Dr. Jose Rizal with the guards there who wont move. We do this, or I have done this to have a memory of that time and place , that i have been there. But now through our technological advances specially the internet, this pictures which will not only be seen within our picture books at home but also within our accounts in facebook, twitter etc. In recent years i have not even thought about this matter, however a last week our professor in law school posted a question is there any violation of copyright regarding the matter.? are we layman violating the law when we took these pictures with these public statues or billboards for that matter as our backgrounds. A layman will answer this definitely in the negative. But allow me to give my insight regarding this issue as a law student in which my opinion would somehow has law backing it up.
A statue within our jurisdiction is a copyright-able creation - protected from the moment of its creation. As Sec. 172 (g) of R.A. 8293 provides that xxx works of drawing, painting, architecture, sculpture, engraving etc xxx are copyright-able. Henceforht the term sculptures does indedd includes statue may they be public or private. Now we must distinguish who are the owners of this statue, we delimit our discussion only to those statue that are seen publicly or available for the public. More likely than not this statues were made by the government or other private individuals and donated it to our government. In relation to that they have commissioned artists/sculptors to made these items.
The next logical question would be, who is the owner of the statue itself. The law is clear in this matter in relation to Sec. 178.4 of R.A. 8293 which provided that "in the case of a work commissioned by a person other than an employer of the author and who pays for it and the work is made in pursuance of the commission, the person who so commissioned the work shall have the ownership of work, but the copyright thereto shall remain with the creator unless there is written stipulation to the contrary. The law provides that the statue itself belong to the one who commissioned the work, however the copyright belongs to the creator.
In these regard knowing that the copyright belongs to the creator we can now ask are we as layman's who are taking theses pictures and posting it in our internet accounts are in violation of the copyright of the creator of the work. In order to answer these we must know what are the rights of a copyright holder, again R.A. 8293 is clear of this matter, the law provides for 2 rights the economic one and the so called moral right, but for the purposes of our discussion we focus in the economic rights of a copyright holder which are:
1. reproduction of the work or substantial portion of the work
2. dramatization, translation, adaptation, abridgment, or other transformation of the work
3. the first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership
4. Rental of the original work or a copy of an audio-visual or cinematographic work, a work embodied in a sound recording, 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
5. public display of the original or a copy of the work
6. public performance of the work
7. other communication to the public.
In answering our question of culpability, we must discuss each of this seven rights belonging exclusively to the creator.
In the first right in relation to the reproduction of the work, when we took these pictures are we reproducing the work, in my opinion we are not. When we took theses pictures all we have done is another creation with only the statue as our background. Is it necessary to first ask permission to the creator to take picture of his work? No it would be preposterous to do that. Again we are not reproducing the creation , we are not making a replica of the thing, we dont know how to make a scuplture all he have done is to take picture of the thing, are we in violation . my answer would be in the negative.
In relation to the 2nd right, it is clear that there is no infringement
In the 3rd right again there is no question there, there is no violation.
Again in the 4th right i can see no conflict.
In relation to the 5th and 7th right , there lies in the intricacies on whether or not there is violation.
The public display of the thing and other communication to the public of the work. Internet would be considered as a communication to the public, but are we in violation of the right of the creator. My answer would be again in the negative. In taking these pictures and posting them in our internet accounts we are not displaying the statue or communicating the statue itself.,but we have created a new creation. The statue and the pictures are 2 different creations and must be treated as such. They are 2 different entities with different dynamics to each. The other a statue and the other a photograph.
discalimer : I am not a law practitioner, just a lowly law student expressing his views
discalimer : I am not a law practitioner, just a lowly law student expressing his views
