PHILIPPINES Trends and Developments Contributed by: Katrina Doble, Danielle Francesca San Pedro and Edward King Chua, Villaraza & Angangco
In determining whether the use of a work in a particular circumstance constitutes fair use, the following factors shall be considered: • the purpose and character of the use, includ - ing whether it is of a commercial nature or for non-profit educational purposes; • the nature of the copyrighted work; • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and • the effect of the use upon the potential mar - ket or value of the copyrighted work. The four factors are better explained by the Phil - ippine Supreme Court in the case of ABS-CBN Corporation v Felipe Gozon, et. al., GR. No. 195956, 11 March 2015, to wit: “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 cop - ies 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 crea - tion of works. Hence, commercial use of the copyrighted work can be weighed against fair use. “The ‘transformative test’ is generally used in reviewing the purpose and character of the usage of the copyrighted work. This court must look into whether the copy of the work adds ‘new expression, meaning or message’ to transform it into something else. ‘Meta-use’ [the kind of use that does not necessarily transform the original work by adding expression, meaning or mes - sage, but only changes the purpose of the work] can also occur without necessarily transforming the copyrighted work used.
“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 reproduc - tion 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. For example, a parody using a substantial amount of copyrighted work may be permissible as fair use as opposed to a copy of a work produced purely for economic gain. “Lastly, the effect of the use on the copyrighted work’s market is also weighed for or against the user. If this court finds that the use had or will have a negative impact on the copyrighted work’s market, then the use is deemed unfair.” The first factor questions whether the work is used for criticism, comment, news reporting, teaching (including a limited number of copies for classroom use), scholarship, research and similar purposes, or if the use is transformative. Transformative use refers to use that adds some - thing new – expression, meaning, message, pur - pose or character – to the original, rather than merely duplicating it. Fair use is thus inapplica - ble if the new work merely supplants the object of the original work and is commercial in nature. The second factor questions the nature of the original work – whether it is more factual than creative. If the work is more factual, fair use will be weighed in favour of the user.
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