PHILIPPINES Trends and Developments Contributed by: Katrina Doble, Danielle Francesca San Pedro and Edward King Chua, Villaraza & Angangco
The third factor looks at how much of the pro - tected work is used and/or whether a substantial portion of it was used. In one case, the Philip - pine Supreme Court held that substantial repro - duction (of a book) does not require that the entire work be copied, or even a large portion of it: “If so much is taken that the value of the original work is substantially diminished, there is an infringement of copyright and to an injuri - ous extent, the work is appropriated” (Habana v Robles, G.R. No. 131522, 19 July 1999). How - ever, ABS-CBN v Gozon (supra) adds that it may still be deemed fair use even if a substantial por - tion of the protected work is used, depending on the purpose of the usage. Thus, if the entire work is copied but is hinged on a different function compared to the original, there can be fair use. An analysis of substantiality is essentially related to the first factor. The last factor looks into whether the unauthor - ised use of the protected work would prejudice the owner’s own use of their work. If it will nega - tively impact or directly compete in the owner’s own market, the use will be deemed unfair. Fair use proponents hinge their argument pri - marily on the first factor – specifically, the trans - formative test. They claim that using copyrighted materials as datasets for machine learning does not actually replicate the copyrighted material as is. Rather, the machines merely “learn” the style, pattern or structure of such works to generate completely new works. Essentially, they argue that such use is transformative, which is within the ambit of the general fair use principle. On the other hand, critics assert that such use is infringing because the copyrighted works were used without consent. Under the fair use doctrine, critics emphasise that AI-generated works often fail the first factor – the purpose
and character of the use – because they are not sufficiently transformative, merely recreat - ing or imitating the original works. Hence, crit - ics view works generated by AI applications as mere derivatives of the original works. Deriva - tive works are works that include elements of an original work, adapting the same into a new form or medium. The second factor, the nature of the original work, also weighs against fair use since creative works receive stronger protection. In addition, under the third factor, AI often uses substantial and identifiable portions of the original works. Finally, for the fourth factor, critics argue that AI outputs can directly compete with the original works, potentially harming their economic value. Thus, they contend that such uses align more with derivative works than transformative fair use. The IPOPHL’s stance on generative AI-created works While the IPOPHL has yet to issue specific guidelines for the use of generative AI in rela - tion to copyright protection, it has taken steps to address this imminent if not extant challenge. Recently, IPOPHL Director General Rowel Bar - ba, speaking at the 2nd Philippine International Copyright Summit on 21 October 2024, high - lighted the complexities surrounding AI in the creative industries, such as determining author - ship, originality and proper attribution to soft - ware developers and trainers. Recognising the need for clear guidance on the application of Philippine copyright laws to generative AI-cre - ated work, Director General Barba announced the IPOPHL’s plans to release guidelines that will ensure that copyright protection remains applicable and relevant amidst technological advancements.
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