Tesalona, Michelle Anne: The Dynamics of Economic and Moral Rights to Political and Commercial Jingle and/or Advertisements

“A man may die, nations may rise and fall, but an idea lives on.” — John F. Kennedy

INTRODUCTION

Music, ad campaign and jingle are like stimulus, it arouses and incites the mind of every person who hears it to react to whatever the lyrics suggest. It brings a subliminal message, the kind that the more we hear it the best chance it will stick and play endlessly in our mind. Then and now, they have always been a powerful psychological tool. They are designed to infiltrate your memory and stay there for years, oftentimes it just pops up from nowhere.

Studies of the effects of music on the brain have found that music with a strong emotional connection to the listener is hard to put out of mind. There was this study which discovered that nowadays, marketers prefers to license pop songs for advertising instead of commissioning original jingles. This is because It turns out that some pop songs contain EARWORMS – as James Kellaris, a marketing professor at the University of Cincinnati coined the phenomenon that it is as something that hooks the listeners to the jingle leading to greater product recall. [1]

But more important than the music is the person who brought the music to life, the artist whose ingenuity and creativity transforms idea into a work. The artist and their work goes hand in hand, one cannot exist without the other. Now if a pop song created by the artist will be used as a jingle to advertise a specific brand or a particular person, who then has the right over the same? What if there are two persons who are claiming ownership over the work, who holds the better right? To ramify the issue, let us try to answer the following questions using the Copyright Law under the Intellectual Property Code to clear up the matter at hand and be guided to the better understanding of the rights extended to the artist.

This paper will highlight the Rights of each and every person implicated in the creation of a jingle, from the time words are put in to compose the song, to the time when the whole song is completed and is launched, up to the point when the same is used as a means to advertise a product or a person.

STATEMENT OF THE PROBLEM

What is a work and is a musical composition considered under the law a work? When is it copyrightable under our present law? Who are the owners of the work? How is copyright transferred or assigned? What are the rights protected and what can be waived? When derivatives of original exist?

DISCUSSION

By the advent of the Copyrights law enshrined under the Intellectual Property Code, the Authors’ right protected by law has been well set-out and defined. It has been created to shield author/owner from any infringing act of others towards his property.

Copyright is the form of Intellectual Property that dominates the advertising industry. Generally and literally, Copyright means the “right to copy,” and it covers original literary and artistic works as well as the derivatives. Protection, under the law, is provided to the author of an original work, granting an exclusive “right to copy.” Only with the author’s consent can copies or performances of the work be made, unless it is allowed by law under the concept of “fair use”. It essentially means for non-commercial use and in limited form. Considering the creative inputs needed from conceptualization up to production to bring into being a commercial or an advertisement, confusion can indeed arise over who owns what, when, and more important, how much is the intangible asset of each person worth. Under the Intellectual Property Code there are provisions that states who owns a copyright, including the rights of corporations or entities employing creators of copyright, the economic and moral rights of copyright owners and under what circumstances are these rights violated. [2]

A. Work/Creation is a property

Let us first define what work means under the law. Under section 172 of the Intellectual property code literary and artistic works are:

Sec. 172. Literary and Artistic Works. –

172.1 Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular:

(a) Books, pamphlets, articles and other writings;

(b) Periodicals and newspapers;

(c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;

(d) Letters;

(e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;

(f) Musical compositions, with or without words;

(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art;

(h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art;

(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science;

(j) Drawings or plastic works of a scientific or technical character;

(k) Photographic works including works produced by a process analogous to photography; lantern slides;

(l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;

(m) Pictorial illustrations and advertisements;

(n) Computer programs; and

(o) Other literary, scholarly, scientific and artistic works.

172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. (Sec. 2, P. D. No. 49a) [3]

The law also recognizes creations based on the original works which in themselves are considered by law as new work because it was crafted and produced from the ingenuity and vision of its author, it is coined as Derivative works, common example are soundtrack of a movie or compilation of rock songs and the like. Sec 173 of the Intellectual Property Code provides:

Sec. 173. Derivative Works. –

173.1. The following derivative works shall also be protected by copyright:

(a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and

(b) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.

173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as a new works: Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. [4]

Based from the foregoing provisions of law, a musical composition is therefore considered as a work and is protected from the moment of their creation. Such right is also guarded under Article III, Section 1 of the Philippine Constitution which provides that : “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. “ [5] Works are considered as a personal property, an intangible one to which can find shield in case of misuse under the law.

B. Who is the owner? Author? Of the work.

Sec. 178. Rules on Copyright Ownership. – Copyright ownership shall be governed by the following rules:

178.1. Subject to the provisions of this section, in the case of original literary and artistic works, copyright shall belong to the author of the work;

178.2. In the case of works of joint authorship, the co-authors shall be the original owners of the copyright and in the absence of agreement; their rights shall be governed by the rules on co-ownership. If, however, a work of joint authorship consists of parts that can be used separately and the author of each part can be identified, the author of each part shall be the original owner of the copyright in the part that he has created;

178.3. In the case of work created by an author during and in the course of his employment, the copyright shall belong to:

(a) The employee, if the creation of the object of copyright is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer.

(b) The employer, if the work is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary.

178.4. 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 ownership of work, but the copyright thereto shall remain with the creator, unless there is a written stipulation to the contrary;

178.5. In the case of audiovisual work, the copyright shall belong to the producer, the author of the scenario, the composer of the music, the film director, and the author of the work so adapted. However, subject to contrary or other stipulations among the creators, the producers shall exercise the copyright to an extent required for the exhibition of the work in any manner, except for the right to collect performing license fees for the performance of musical compositions, with or without words, which are incorporated into the work; and

178.6. In respect of letters, the copyright shall belong to the writer subject to the provisions of Article 723 of the Civil Code. (Sec. 6, P. D. No. 49a) [6]

As a rule the first person who creates the work is considered as the author and is the first owner of said work. Joint authorship exists when two or more persons collaborated and the contribution of each author is not distinct from that of the other.

In cases where a work was created by an employee, and such was created in the course of employment, the employer is first owner of the copyright in the work, subject to any agreement to the contrary.

Thus, if a person commissioned a third party to create a work for him, he will not own the copyright on it as a result unless such was validly assigned to him by the author. Examples of such commissioned work are those of website designers, printers, photographers etc., the author of the work, will own the work. [7]

C. How is copyright transferred or assigned

Sec. 180. Rights of Assignee. –

180.1. The copyright may be assigned in whole or in part. Within the scope of the assignment, the assignee is entitled to all the rights and remedies which the assignor had with respect to the copyright.

180.2. The copyright is not deemed assigned inter vivos in whole or in part unless there is a written indication of such intention.

180.3. The submission of a literary, photographic or artistic work to a newspaper, magazine or periodical for publication shall constitute only a license to make a single publication unless a greater right is expressly granted. If two (2) or more persons jointly own a copyright or any part thereof, neither of the owners shall be entitled to grant licenses without the prior written consent of the other owner or owners. (Sec. 15, P. D. No. 49a)

Sec. 181. Copyright and Material Object. – The copyright is distinct from the property in the material object subject to it. Consequently, the transfer or assignment of the copyright shall not itself constitute a transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several copies of the work imply transfer or assignment of the copyright. (Sec. 16, P. D. No. 49) [8]

In cases where a copyright owner desires to exploit the work covered by the copyright commercially, like when a composition will be released in the market, what composers usually do is transfer one or more of their rights to a person or entity making them in-charge of the publicity of the work, thus making that person or entity responsible for distributing and selling the same out to the community.

Limitations are usually set out whenever copyright is to be transferred by one person to another. Like when an author transfers his rights to a recording company. Usually, terms as to the use are established.

A transfer of rights to copyright is usually either an assignment or a license. An assignment of the right to copyright is similar to the sale of personal property. A right over the property is sold by the original owner to a third party, thereafter he can no longer exercise control over how the third party uses those rights already sold.

If the copyright owner wants to maintain its ownership of the rights involved, an agreement called a license is proper so as to allow a third party to exercise some or all of those rights without apprehension of a copyright infringement suit.

Where the owner of the copyright desires to preserve some ownership over the rights, or wants to exercise continuing control over how the third party uses the said right, a license will be preferred over an assignment of rights.

D. What are the rights protected? What can be waived?

Economic and Moral rights are two different rights that can be owned by a single person or maybe owned by two distinct and different individual.
Under the Intellectual Property Code there are two types of rights granted to copyright owner, they are the economic and moral rights. Economic rights let the owner derive financial reward from the use and exploitation of his work; while, Moral rights epitomize the relationship between the author and his work. The rights are the following:

Sec. 177. Copy or Economic Rights. – Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

177.1. Reproduction of the work or substantial portion of the work;

177.2 Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;

177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual 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; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work (Sec. 5, P. D. No. 49a) [9]

The purpose of the law in granting Economic Rights is to uphold that – copyright protections is there to encourage the innovation, creativity and ingenuity by protecting what is lawfully the property of the creator because of his intelligence and labor. The economic right is thus concerned with harmonizing the rights of creators with market access.

In case copyright to the work has been assigned to another person by term which has been explicitly agreed upon by the parties, the right to exploit the work belongs to the assignee.

Copyright as seen as a property right, can generate economic incentives for authors. They have the exclusive rights to control them. By making use of these rights, copyright owners, if they are fortunate, earn income and profits.

Since rights over copyrights have expiration, copyright should be used efficiently to the advantage of the author. Creativity is inherent in every human; the right granted by law should be seen as something personal rather than just being a means to economical gain.

Sec. 193. Scope of Moral Rights. – The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right:

193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;

193.2. To make any alterations of his work prior to, or to withhold it from publication;

193.3. To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and

193.4. To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. (Sec. 34, P. D. No. 49) [10]

Sec. 195. Waiver of Moral Rights. – An author may waive his rights mentioned in Section 193 by a written instrument, but no such waiver shall be valid where its effects is to permit another: 195.1. To use the name of the author, or the title of his work, or otherwise to make use of his reputation with respect to any version or adaptation of his work which, because of alterations therein, would substantially tend to injure the literary or artistic reputation of another author; or 195.2. To use the name of the author with respect to a work he did not create. (Sec. 36, P. D. No. 49) [11]

The concept of an artist having moral rights rests on the assumption that a work of art is a special kind of production, unlike ordinary property.

Moral rights are the rights of an artist to maintain the integrity of their work and to receive full and proper attribution to it. Moral rights is often limited to the right of attribution, right of integrity, and right to prevent the derogation or destruction of works. The concept of Moral rights is intended to protect an individual’s personality, such as the right to one’s own identity, reputation, and privacy since the work is an extension of the artist where bond between an artist’s personality and his or her creative product exist. [12]

The Intellectual Property Code protects the Moral Rights of the authors. The law ensures the artist’s right to the continued physical integrity of his or her work, even after it is sold and likewise grants artists the right to have their names associated with their work and only their work, and to prevent their names from being associated with their work should it be distorted, mutilated, or modified by someone else.

Although said moral rights are protected by law and are inalienable – they cannot be signed away but there are some which can be also be waived legally under the law.

E. When derivatives of original exist

Copyright in the derivative work, given that there is a considerable or noteworthy distinction from the original work, is copyrightable it’s in own. The author will own the copyright to the new creation. It is important that the derivative work must itself be an original work in order to be copyrightable. Trivial modification that does not considerably change the original would not qualify.

The creation of the derivative work gives no right to the original work being adapted if a copyright in the original work remains unchanged. The duration of copyright will not and cannot be extended by creating a derivative work. [13]

Liability for copyright infringement for a derivative work only takes place if it represents a significant portion of the earlier protected work. Noteworthy and important likeness to the earlier work constitutes illegal derivative. The law is explicit that copyright in a work belongs only to the owner and only he has the right to authorize another to create a new version of his work. Hence, if by the direct provision of law a “work” is deemed protected from the moment of its creation, it is but proper to say that an unauthorized derivative work is illegal from the moment someone else creates it. The act of creation is infringement and the purpose of its creation is immaterial.

However there is a doctrine called “de minimis”, which states that if only a minimal amount of the original work which is already a copyrighted material is used without the permission of the owner to create a derivative work, then there’s no infringement, as long as the original work is not compromised or prejudiced. [14]

CONCLUSION

To sum it all up, the Intellectual Property Code gives a premium to the brilliant mind of every individual who wish to share their work to the public. There is a moving power of the economical and moral rights of the author/owner that stands out as most vital more than anything.

Yes, such right can be transferred and assigned to another, yet the law sets out the legalities of how assignment can be made and what can be and cannot be assigned. Only economic rights can be assigned, but the moral right of the author can never be assigned without an express waiver from the author himself.

Why economic and moral rights of the author is the moving moral and should be considered in every commercial and political advertisement, is because what is being sent out as a tool to sell to any person or client is a masterpiece. Each idea is a unique piece and is often times the origin, that which is being disregarded, overlooked or ignored. It will clearly be unfair if recognition of his contribution will not be properly attributed to him. It is akin to stealing one’s property, our law on intellectual property provides for rules on how talent can be preserved and be recognized properly.

While economic rights can be bought and sold, and are associated to the work as a commodity, moral rights are viewed as something intrinsically possessed by the author of the works because of his “genius.” [15]


Endnotes

[1] http://money.howstuffworks.com/commercial-jingle2.htm

[2] http://money.howstuffworks.com/commercial-jingle2.htm

[3] Republic Act No. 8293, Sec. 172

[4] Republic Act No. 8293, Sec. 173

[5] Philippine Constitution, Article III Sec. 1

[6] Republic Act No. 8293, Sec. 178

[7] http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/1326-mc-Make-sure-you-assign-copyright.htm

[8] Republic Act No. 8293, Sec. 180

[9] Republic Act No. 8293, Sec. 177

[10] Republic Act No. 8293, Sec. 193

[11] Republic Act No. 8293, Sec. 195

[12] http://www.arsny.com/other.html

[13] https://secure-b.copyrightservice.co.uk/copyright/p22_derivative_works.en.htm

[14] http://www.funnystrange.com/copyright/derivative.htm

[15] http://filer.case.edu/ijd3/authorship/economic.html

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