Tolentino, Paolo Carlo: Public Domain Works – The Government’s Role in Securing Public Use Thereof

SY 2008-2009, First Semester


I. Introduction

When something is by its nature available for use and consumption without any limitation, precondition and qualification, it begs the question of whether such free and unqualified use includes that type or way of use which restricts the continued availability and free use of that thing. If such kind of use is considered as still a valid use of that thing then, necessarily, that same use will cause the thing to be one day no longer a thing open for free use, every part of it will be restricted already. Conversely, if the same kind of restrictive use is not allowed and not considered among the valid uses of that thing, it raises a doubt on whether such thing is indeed for for free and unqualified use. These propositions sum up the issue on public domain works relative to the government’s role in securing the free use thereof to the public.

A. The Government

In The 1987 Constitution of the Republic of the Philippines: A Commentary, Fr. Bernas cited the definition given in the case of Bacani vs. NACOCO in that the government is “that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.” The government is that element of a state which acts on behalf of the people as the sovereign and through the mandate of which said government was constituted. It is the entity through which the aspirations of the people are realized. The exercise of the powers of the state, which is an abstract being, and the multitude of social, economic, political concerns of such state, are done and given life through the government and the persons running the same, called the administration.

On the other hand, under Executive Order 292 or the Administrative Code of 1987, the nature as well as the scope of the government of the Republic of the Philippines is provided, thus:

“Government of the Republic of the Philippines” refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government

From the foregoing definition it is clear that the government is an entity which exercises functions of governance throughout the country. This exercise is made through the various arms such as local government units, instrumentalities, departments and agencies. These latter bodies serve to meet and address directly the problems and needs of the citizenry which the national branches of the government, executive, Congress and judiciary, can no longer efficiently handle. These government entities are defined in the same Administrative Code as:

(4) “Agency of the Government” refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporations, or a local government or a distinct unit therein.

(5) “National agency” refers to a unit of the National Government.

(6) “Local agency” refers to a local government or a distinct unit therein.

(7) “Department” refers to an executive department created by law. For purposes of Book IV, this shall include any instrumentality, as herein defined, having or assigned the rank of a department, regardless of its name or designation.

(8) “Bureau” refers to any principal subdivision or unit of any department. For purposes of Book IV, this shall include any principal subdivision or unit of any instrumentality given or assigned the rank of a bureau, regardless of actual name or designation, as in the case of department-wide regional offices.

(9) “Office” refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation.

(10) “Instrumentality” refers to any agency of the National Government, not integrated within the department framework vested within special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations.

(11) “Regulatory agency” refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interests of private persons, the principal powers of which are exercised by a collective body, such as a commission, board or council.

These government bodies serve various functions and roles aimed at catering to the needs of the citizenry and the nation. This important and all-encompassing task of the government includes almost every facet of human life and society. The role played by the government and the variety of issues it addresses everyday escapes the its recognized inherent powers of taxation, eminent domain and police powers. These issues range from the local, as with barangay disputes, to national, in the case of agrarian reform, to international, as exemplified by foreign relations. It also covers private concerns and public matters, religious and political, social and commercial.

In all these instances, the government acts through the medium of law, in all its forms – the Constitution, legislative enactments, Executive Orders, implementing regulations, decrees, issuances, local ordinances and others. Indeed the government is a government of law and not of men. Its actions find basis in the law, so as to prevent arbitrariness and ensure that its acts are within the confines of what is legal, just and beneficial to the citizenry and the state.

II. Concept of Copyright

Among the areas regulated by the government or subject of the reach of the laws is copyright as a specie of ownership of private property. “Copyright is a legal concept, enacted by governments, giving the creator of an original work of authorship exclusive rights to control its distribution, usually for 70 years after the author’s death, after which the work enters the public domain. Generally, it is “the right to copy”, but usually provides the author with other rights as well, such as the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other, related rights. It is an intellectual property form (like the patent, the trademark, and the trade secret) applicable to any expressible form of an idea or information that is substantive and discrete. Copyright was initially conceived as a way for governments in Europe to restrict printing; the contemporary intent of copyright is to promote the creation of new works by giving authors control of and profit from them.” (Wikipedia, the free encyclopedia)

Under Philippine setting, aside from pertinent provisions in the New Civil Code and the Revised Penal Code as regards property ownership and specified offenses, the principal law governing copyright is the Intellectual Property Code, enacted under Republic Act 8293 on June 6, 1997. On Part IV of the said law, on the Law on Copyright, the works that may be covered by copyright protection are enumerated under the two general classifications of original works and derivative works. Sections 172 and 173 provide thus:

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.

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.

Copyright is intended to protect intellectual creations as above-enumerated, and serves to accord recognition of the source and ownership of the intellectual expression. This protection attaches from the moment such original or derivative work is created, with violation of the economic and moral rights of the creator or author subject to punishment or penalty of the law as a copyright infringement. Clearly, the law, and the government overseeing the implementation of the law, treats the matter of copyright and the use of works included therein as an important socio-economic area that necessitates regulation and protection.

III. Public Domain Works

As the source of these creations and intellectual expressions are natural persons, there inevitably arises a question or confusion regarding such works created by the government itself through its officer. Specifically, if these officers acted in their capacity as government’s representatives, then the work done cannot be subject of copyright since the same protection is not extended to the works of the government, these being considered as subsumed under the general classification of properties of public domain or property for free and open public use. This issue is a complex matter involving an interplay of the concepts and principles on public dominion and ownership, private appropriation and property rights, and governmental administrative and regulatory roles and functions.

A. Public Dominion

Public dominion is not a novel concept. Under the 1987 Constitution, as well as previous constitutions and laws, the regalian doctrine is well-recognized. Specifically, under Article 12, Section 2 of the 1987 Constitution it is provided that:

All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

From the forgoing provision, it is clearly set forth as a matter of constitutional precept that every land and resources is owned by the state. “Any person therefore claiming ownership of a portion of the public domain must be able to show title from the state according to any recognized modes of acquisition of title” (Fr. Bernas citing Lee Hong Hok v. David, 48 SCRA 372)

On the other hand, the New Civil Code has the following provisions:

Art. 419. Property is either of public dominion or of private ownership.

Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth.

Art. 421. All other property of the State, which is not of the character stated in the preceding article, is patrimonial property.

Art. 422. Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State.

Art. 423. The property of provinces, cities, and municipalities is divided into property for public use and patrimonial property.

Art. 424. Property for public use, in the provinces, cities, and municipalities, consist of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities, or municipalities.

All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws.

Art. 425. Property of private ownership, besides the patrimonial property of the State, provinces, cities, and municipalities, consists of all property belonging to private persons, either individually or collectively.

“Public dominion does not carry the idea of ownership, property of public dominion is not owned by the State but pertains to the State, which as territorial sovereign exercises certain juridical prerogatives over such property. The ownership of such property, which has the special characteristics of a collective ownership for the general use and enjoyment, by virtue of their application to the satisfaction of collective needs, is in the social group, whether national, provincial or municipal. Their purpose is not to serve the State as a juridical person, but the citizens, they are intended for the common and public welfare, and so they cannot be the object of appropriation, either by the State or by private persons. The relation of the State to this property arises from the fact that the State is the juridical representative of the social group, and as such it takes care of them, preserves them and regulates their use for the general welfare” (Tolentino, Arturo citing Manresa 66-69)

And so goes the well-established doctrine and the related principles that public domain properties are beyond the commerce of men, cannot be appropriated, and is open for free, unlimited and public use and enjoyment, subject only to reasonable limitations as the law may impose.

B. Public Dominion in Relation to Intellectual Property

Considered in relation to the concept of intellectual property, particularly on those subject of copyright, public dominion may be easily viewed as giving such copyright or property ownership the same general and public nature not susceptible of private appropriation and always open for public use. This gives rise then to the concept of public domain works, or original intellectual creations in the literary and artistic domain whose authorship is that of the government. While it may not be in the same plane and should not be strictly understood in the sense of properties of public dominion as provided for in the 1987 Constitution, the New Civil Code and other laws, public domain works however have similar public, or general use characteristics as the aforesaid public properties.

“The public domain is a range of abstract materials – commonly referred to as intellectual property – which are not owned or controlled by anyone. The term indicates that these materials are therefore “public property”, and available for anyone to use for any purpose. The public domain can be defined in contrast to several forms of intellectual property; the public domain in contrast to copyrighted works is different from the public domain in contrast to trademarks or patented works. Furthermore, the laws of various countries define the scope of the public domain differently, making it necessary to specify which jurisdiction’s public domain is being discussed.

The public domain is most often discussed in contrast to works whose use is restricted by copyright. Under modern law, most original works of art, literature, music, etc. are covered by copyright from the time of their creation for a limited period of time (which varies by country). When the copyright expires, the work enters the public domain.” (wikipedia, the free encyclopedia)

C. Works Not Protected

In the Philippines, The Law on Copyright treats the matter in Chapter IV, Works not Protected, thus:

Sec. 175. Unprotected Subject Matter. – Notwithstanding the provisions of Sections 172 and 173, no protection shall extend, under this law, to any idea, procedure, system method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts having the character of mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof.

Sec. 176. Works of the Government. –

176.1. No copyright shall subsist in any work of the Government of the Philippines. However, prior approval of the government agency or office wherein the work is created shall be necessary for exploitation of such work for profit. Such agency or office may, among other things, impose as a condition the payment of royalties. No prior approval or conditions shall be required for the use of any purpose of statutes, rules and regulations, and speeches, lectures, sermons, addresses, and dissertations, pronounced, read or rendered in courts of justice, before administrative agencies, in deliberative assemblies and in meetings of public character.

176.2. The Author of speeches, lectures, sermons, addresses, and dissertations mentioned in the preceding paragraphs shall have the exclusive right of making a collection of his works.

176.3. Notwithstanding the foregoing provisions, the Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest or otherwise; nor shall publication or republication by the government in a public document of any work in which copy right is subsisting be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such work without the consent of the copyright owners.

As provided in the said law therefore, copyright protection does not extend to official text of a legislative, administrative or legal nature, as well as any official translation thereof, which the law considers as an unprotected subject matter. Also, on the works of the government, it is expressly mandated that no copyright shall subsist therefor, and only when the use thereof is intended for profit is it required that prior approval of the government agency or office wherein the work is created shall be necessary. Consequently, all the other uses to which the work of the government may be subjected to, not involving use for profit, may be legally done. These uses applicable to both the unprotected subject matter, or official text of a legislative, administrative or legal nature, as well as any official translation thereof, and works of the government, are embraced under the provisions of the law touching on the economic rights of an author. Simply put, these uses may be done by a person to public domain works even if the latter is not the author of such work. This is the practical effect of non-recognition of copyright on the works of the government and pertinent unprotected subject matter.

Section 177 enumerates the economic rights of an author, to wit:

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;

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.

With the above enumeration of acts or uses which pertain exclusively to an author not given or extended to public domain works, the public may as a result subject such works to various uses without incurring any liability for infringement. The only qualification is if the use is for the purpose of obtaining profit, in which case the law requires prior approval of the concerned government agency. In this sense therefore public domain works partake of properties of public dominion which are open for general and public use.

These public domain works include laws, enacted either by Congress or the executive department through rules and regulations issued by administrative bodies in the implementation of said laws. Also, issuances, decrees, orders, memoranda and policies issued by the President may be deemed within the coverage of these works. On the part of the judicial department, Supreme Court decisions and resolutions, Rules and policies are considered as related works. All these are subsumed under the classification of official text of a legislative, administrative or legal nature, as well as any official translation thereof as an unprotected subject matter.

IV. Practices Affecting the Use or Access to Public Domain Works

A. Publication

Article 2 of the New Civil Code provides that “ laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. In Tañada vs. Tuvera, 146 SCRA 446, the Supreme Court held that “. . . Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the content of the laws.

This publication requirement of laws and regulations, as well as the existence of internet websites of government agencies publishing various materials, is the means by which public domain materials make its way to general consciousness, and more importantly, through which these are made available to the public for their information. In the light of the copyright questions on the works of the government, these mediums may be considered to be the means public domain works are made open and free for public use and consumption.

B. Derivative Works on Public Domain Materials

Once these materials are available for public use, necessarily anyone can access the same, as should be ordinarily expected and consistent with the purpose of publication. However, in the case of persons who access these public domain works and extend beyond the object of mere obtaining information, that is, performing compilations of said works or arranging them or altering or explaining them, there arises a situation in which thereafter said public domain works are converted to derivative works for which copyright may now subsist. The net effect of this copyright on a previously public work is that the author of the alteration, compilation or arrangement can exclusively appropriate for himself the economic rights pertaining to an author as such, and therefore can practically exclude anyone and subject the continued availability of the work to all the limitations the law allows such author for his work by virtue of the copyright thereon.

These derivative works include legal compilation of jurisprudence or Supreme Court decisions, and Rules issued pursuant to its authority. Also. Some works would publish a compilation or arrangement of laws concerning a particular subject or of general reference. Still others create websites and publish therein public domain works under the remark “all rights reserved”. These and similar practices constitute use of public domain materials which limit access to and use of the public of such works on the ground that, upon their creation, copyright attaches as derivative works.

V. Role of the Government in Ensuring Free Access to and Use of Public Domain Works

As already mentioned, Section 176 of the Law on Copyright mandates that prior approval of the government agency or office wherein the work is created shall be necessary for exploitation of such work for profit. Considering that the derivative works which limit the use of public domain materials are most often done and published for economic gain and benefit of the author of such work, the important role of the government as provided in said Section 176 becomes more pronounced. Such prior approval may be likened to a regulation which the government under its inherent police power may undoubtedly impose.

“Police power rests upon public necessity and upon the right of the state and of the public to self-protection. For this reason, its scope expands and contracts with changing needs. The numerous attempts which have been made to limit by definition the scope of the police power are only interesting as illustrations of its rapid extension within comparatively recent years to points heretofore deemed entirely within the field of private liberty and property rights”. (Fr. Bernas citing US vs. Toribio, 15 Phil 85 and Calalang vs. Williams 70 Phil 726)

Under the foregoing principle, the government may regulate access to and use of public domain materials which are harmful or detrimental to the interest of the general public. These ill effects are illustrated in the limitation on the use of public domain materials caused by copyright, specifically that the public may not thereafter use, access and obtain information on said works once they are compiled, arranged or altered without the consent of the subsequent author. As these materials involve matters of public and general interest, published as they are for the information of the citizenry, these practices and uses should be curbed to protect the interest of the government and the people.

VI. CONCLUSION AND RECOMMENDATION

As contained in express provisions of the law itself, the Law on Copyright, various literary and artistic works and intellectual creations whose authorship is that of the government are considered works not protected by copyright law. As such, these works, called public domain works, are open to general and public use. Among the uses to which public domain works are subjected to however are those which serve to limit free use and access to such works. These are derivative works which may be protected by copyright, and for which reason the very purpose of the publication of such public domain works, which is public information, is seriously impaired and defeated.

However, the same express provisions of the law which declares work of the government as unprotected mandates that if the use of public domain works is intended for profit, it must be with prior approval of the governmental agency who created the work. The law itself thus provided for the limitation on an otherwise seemingly uncontrolled possibility and trend of restrictive use of public domain works. On this basis the government can act to regulate and eliminate the hazards posed by such restrictive use, consistent with its inherent police power and in the pursuit of upholding and protecting the general welfare and public interest.


References

  • The 1987 Constitution of the Republic of the Philippines: A Commentary, Joaquin G. Bernas, S.J.
  • Administrative Code of 1987
  • Wikipedia, the Free Encyclopedia, en.wikipedia.org/wiki/Copyright
  • Intellectual Property Code of the Philippines
  • 1987 Constitution of the Republic of the Philippines
  • Lee Hong Hok v. David, 48 SCRA 372
  • Republic Act 386, Civil Code of the Philippines
  • Commentaries and Jurisprudence on the Civil Code of the Philippines, Arturo M. Tolentino
  • Tañada vs. Tuvera, 146 SCRA 446
  • US vs. Toribio, 15 Phil 85
  • Calalang vs. Williams 70 Phil 726.
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