Copy Rights and Intellectual Property

under
Atty. Jonathan Perez

I. First Batch of Cases for CRIP

1. Tañada v. Angara
272 SCRA 18
 Intellectual Property Rights (TRIPS Agreement)

FACTS: On April 15, 1994, the Philippine Government represented by its Secretary of the
Department of Trade and Industry signed the Final Act binding the Philippine Government to
submit to its respective competent authorities the WTO (World Trade Organization) Agreements
to seek approval for such. On December 14, 1994, Resolution No. 97 was adopted by the
Philippine Senate to ratify the WTO Agreement.

This is a petition assailing the constitutionality of the WTO agreement as it violates Sec 19, Article
II, providing for the development of a self reliant and independent national economy, and Sections
10 and 12, Article XII, providing for the “Filipino first” policy.

ISSUE: Whether or not the Resolution No. 97 ratifying the WTO Agreement is unconstitutional

HELD: The Supreme Court ruled the Resolution No. 97 is not unconstitutional. While the
constitution mandates a bias in favor of Filipino goods, services, labor and enterprises, at the
same time, it recognizes the need for business exchange with the rest of the world on the bases
of equality and reciprocity and limits protection of Filipino interests only against foreign
competition and trade practices that are unfair. In other words, the Constitution did not intend to
pursue an isolationalist policy. Furthermore, the constitutional policy of a “self-reliant and
independent national economy” does not necessarily rule out the entry of foreign investments,
goods and services. It contemplates neither “economic seclusion” nor “mendicancy in the
international community.”

The Senate, after deliberation and voting, gave its consent to the WTO Agreement thereby
making it “a part of the law of the land”. The Supreme Court gave due respect to an equal
department in government. It presumes its actions as regular and done in good faith unless there
is convincing proof and persuasive agreements to the contrary. As a result, the ratification of the
WTO Agreement limits or restricts the absoluteness of sovereignty. A treaty engagement is not a
mere obligation but creates a legally binding obligation on the parties. A state which has
contracted valid international obligations is bound to make its legislations such modifications as
may be necessary to ensure the fulfillment of the obligations undertaken

2. Pearl and Dean v. Shoemart (2 issues)

409 SCRA 231
 Differences between copyrights, trademarks and patent
 Non-Copyrightable Works (Sec. 175 of IP Code)

1|CRIP DP under Atty. Perez

Facts: Pearl and Dean Inc. (P&D) is a corporation engaged in manufacture of advertising display
units. These units utilize specially printed posters sandwiched between plastic sheets and
illuminated with back lights. Pearl and Dean was able to secure a Certificate of Copyright
Registration dated January 20, 1981 over these illuminated display units. The advertising light
boxes were marketed under the trademark Poster Ads. In 1985 P&D entered into a contract with
Shoemart Inc. (SMI) to install advertising units in North Edsa, Cubao and Makati branches.
However, it was rescinded subsequently by SMI.

Based on reports that exact copies of advertising display units are used by SMI in its branches,
P&D confirmed through its own investigation that such was the case and North Edsa Marketing
Inc., through its marketing arm, Prime Spots Marketing Services, was set up primarily to sell
advertising space in lighted display units located in SMIs different branches. Pearl and Dean
noted that NEMI is a sister company of SMI.

Arguing that it has copyright over the advertising display units, P&D filed before the RTC
of Makati an action for infringement of trademark and copyright, unfair competition and damages
against SMI. The RTC ruled in favor of P&D. However, on appeal to the CA it was reversed.

Issue: If the engineering or technical drawings of an advertising display unit (light box) are granted
copyright protection (copyright certificate of registration) by the National Library, is the light box
depicted in such engineering drawings ipso facto also protected by such copyright?

Ruling: No. The controversy in this case is caused by the confusion between “Copyrights”,
“Trademarks” and “Patent”. In the leading case of Kho vs. Court of Appeals, we ruled that these
three legal rights are completely distinct and separate from one another, and the protection
afforded by one cannot be used interchangeably to cover items or works that exclusively pertain
to the others:

Trademark, copyright and patents are different intellectual property rights that cannot be
interchanged with one another. A trademark is any visible sign capable of distinguishing the goods
(trademark) or services (service mark) of an enterprise and shall include a stamped or marked
container of goods. In relation thereto, a trade name means the name or designation identifying
or distinguishing an enterprise. Meanwhile, the scope of a copyright is confined to literary and
artistic works which are original intellectual creations in the literary and artistic domain protected
from the moment of their creation. Patentable inventions, on the other hand, refer to any technical
solution of a problem in any field of human activity which is new, involves an inventive step and
is industrially applicable.

P&D secured its copyright under the classification class O work. This being so, petitioners
copyright protection extended only to the technical drawings and not to the light box itself because
the latter was not at all in the category of prints, pictorial illustrations, advertising copies, labels,
tags and box wraps. Stated otherwise, even as we find that P & D indeed owned a valid copyright,
the same could have referred only to the technical drawings within the category of pictorial
illustrations. It could not have possibly stretched out to include the underlying light box. The
decision of the CA is affirmed in toto.

2|CRIP DP under Atty. Perez

3. Kho v. Court of Appeals
G.R. 115758 (March 1, 2002)
 Differences between copyrights, trademarks and patent

FACTS: Elidad Kho is the owner of KEC Cosmetics Laboratory and she was also the holder of
copyrights over Chin Chun Su and its Oval Facial Cream Container/Case. She also bought the
patent rights over the Chin Chun Su & Device and Chin Chun Su for medicated cream from one
Quintin Cheng, who was the assignee of Shun Yi Factory – a Taiwanese factory actually
manufacturing Chin Chun Su products.

Kho filed a petition for injunction against Summerville General Merchandising and Company to
enjoin the latter from advertising and selling Chin Chun Su products, in similar containers as that
of Kho, for this is misleading the public and causing Kho to lose income; the petition is also to
enjoin Summerville from infringing upon Kho’s copyrights.

Summerville in their defense alleged that they are the exclusive and authorized importer, re-
packer and distributor of Chin Chun Su products; that Shun Yi even authorized Summerville to
register its trade name Chin Chun Su Medicated Cream with the Philippine Patent Office; that
Quintin Cheng, from whom Kho acquired her patent rights, had been terminated (her services) by
Shun Yi.

ISSUE: Whether or not Kho has the exclusive right to use the trade name and its container.

HELD: No. Kho has no right to support her claim for the exclusive use of the subject trade name
and its container. The name and container of a beauty cream product are proper subjects of a
trademark (not copyright like what she registered for) inasmuch as the same falls squarely within
its definition. In order to be entitled to exclusively use the same in the sale of the beauty cream
product, the user must sufficiently prove that she registered or used it before anybody else did.
Kho’s copyright and patent registration of the name and container would not guarantee her the
right to the exclusive use of the same for the reason that they are not appropriate subjects of the
said intellectual rights. Consequently, a preliminary injunction order cannot be issued for the
reason that the petitioner has not proven that she has a clear right over the said name and
container to the exclusion of others, not having proven that she has registered a trademark thereto
or used the same before anyone did.

4. Air Philippines v. Pennswell, Inc.

G.R. No. 172835 (Dec. 13,2007)
 Other Intellectual Property Rights

FACTS: Air Philippines Corporation is a domestic corporation engaged in the business of air
transportation services. On the other hand, Pennswell, Inc. was organized to engage in the
business of manufacturing and selling industrial chemicals, solvents, and special lubricants.
According to Air Philippines, Pennswell’s products, namely Excellent Rust Corrosion, Connector
Grease, Electric Strength Protective Coating, and Anti-Seize Compound, are identical with its
Anti-Friction Fluid, Contact Grease, Thixohtropic Grease, and Dry Lubricant,

3|CRIP DP under Atty. Perez

respectively. Petitioner asseverated that had respondent been forthright about the identical
character of the products, it would not have purchased the items complained of. During the
pendency of the trial, petitioner filed a Motion to Compel respondent to give a detailed list of the
ingredients and chemical components of the following products, to wit: (a) Contact Grease and
Connector Grease; (b) Thixohtropic Grease and Di-Electric Strength Protective Coating; and (c)
Dry Lubricant and Anti-Seize Compound. Respondent sought reconsideration of the foregoing
Order, contending that it cannot be compelled to disclose the chemical components sought
because the matter is confidential. It argued that what petitioner endeavored to inquire upon
constituted a trade secret which respondent cannot be forced to divulge. Respondent maintained
that its products are specialized lubricants, and if their components were revealed, its business
competitors may easily imitate and market the same types of products, in violation of its
proprietary rights and to its serious damage and prejudice.

ISSUE: WHETHER OR NOT CHEMICAL COMPONENTS OR INGREDIENTS OF

RESPONDENTS PRODUCTS ARE TRADE SECRETS OR INDUSTRIAL SECRETS THAT ARE
NOT SUBJECT TO COMPULSORY DISCLOSURE.

HELD: A trade secret is defined as a plan or process, tool, mechanism or compound known only
to its owner and those of his employees to whom it is necessary to confide it. The definition also
extends to a secret formula or process not patented, but known only to certain individuals using
it in compounding some article of trade having a commercial value. A trade secret may consist of
any formula, pattern, device, or compilation of information that: (1) is used in one's business; and
(2) gives the employer an opportunity to obtain an advantage over competitors who do not
possess the information. Generally, a trade secret is a process or device intended for continuous
use in the operation of the business, for example, a machine or formula, but can be a price list or
catalogue or specialized customer list. It is indubitable that trade secrets constitute proprietary
rights. The inventor, discoverer, or possessor of a trade secret or similar innovation has rights
therein which may be treated as property, and ordinarily an injunction will be granted to prevent
the disclosure of the trade secret by one who obtained the information "in confidence" or through
a "confidential relationship." American jurisprudence has utilized the following factors to
determine if an information is a trade secret, to wit:
(1) the extent to which the information is known outside of the employer's business;
(2) the extent to which the information is known by employees and others involved in the
business;
(3) the extent of measures taken by the employer to guard the secrecy of the information;
(4) the value of the information to the employer and to competitors;
(5) the amount of effort or money expended by the company in
(6) developing the information; and
(7) the extent to which the information could be easily or readily obtained through an
independent source.

The chemical composition, formulation, and ingredients of respondents special lubricants are
trade secrets within the contemplation of the law. Respondent was established to engage in the
business of general manufacturing and selling of, and to deal in, distribute, sell or otherwise
dispose of goods, wares, merchandise, products, including but not limited to industrial chemicals,
solvents, lubricants, acids, alkalies, salts, paints, oils, varnishes, colors, pigments and similar
preparations, among others. It is unmistakable to our minds that the manufacture and production
of respondents products proceed from a formulation of a secret list of ingredients. In the creation
of its lubricants, respondent expended efforts, skills, research, and resources. What it had
achieved by virtue of its investments may not be wrested from respondent on the mere pretext
that it is necessary for petitioners defense against a collection for a sum of money. By and large,

4|CRIP DP under Atty. Perez

the value of the information to respondent is crystal clear. The ingredients constitute the very
fabric of respondents production and business. No doubt, the information is also valuable to
respondents competitors. To compel its disclosure is to cripple respondents business, and to
place it at an undue disadvantage. If the chemical composition of respondents lubricants are
opened to public scrutiny, it will stand to lose the backbone on which its business is founded.

That trade secrets are of a privileged nature is beyond quibble. The protection that this jurisdiction
affords to trade secrets is evident in our laws. The Interim Rules of Procedure on Government
Rehabilitation, effective 15 December 2000, which applies to: (1) petitions for rehabilitation filed
by corporations, partnerships, and associations pursuant to Presidential Decree No. 902-A, as
amended; and (2) cases for rehabilitation transferred from the Securities and Exchange
Commission to the RTCs pursuant to Republic Act No. 8799, otherwise known as The Securities
Regulation Code, expressly provides that the court may issue an order to protect trade secrets or
other confidential research, development, or commercial information belonging to the
debtor. Moreover, the Securities Regulation Code is explicit that the Securities and Exchange
Commission is not required or authorized to require the revelation of trade secrets or processes
in any application, report or document filed with the Commission. This confidentiality is made
paramount as a limitation to the right of any member of the general public, upon request, to have
access to all information filed with the Commission.

Republic Act No. 6969, or the Toxic Substances and Hazardous and Nuclear Wastes Control Act
of 1990, enacted to implement the policy of the state to regulate, restrict or prohibit the
importation, manufacture, processing, sale, distribution, use and disposal of chemical substances
and mixtures that present unreasonable risk and/or injury to health or the environment, also
contains a provision that limits the right of the public to have access to records, reports or
information concerning chemical substances and mixtures including safety data submitted and
data on emission or discharge into the environment, if the matter is confidential such that it would
divulge trade secrets, production or sales figures; or methods, production or processes unique to
such manufacturer, processor or distributor; or would otherwise tend to affect adversely the
competitive position of such manufacturer, processor or distributor.

Clearly, in accordance with our statutory laws, this Court has declared that intellectual and
industrial property rights cases are not simple property cases. Without limiting such industrial
property rights to trademarks and trade names, this Court has ruled that all agreements
concerning intellectual property are intimately connected with economic development. The
protection of industrial property encourages investments in new ideas and inventions and
stimulates creative efforts for the satisfaction of human needs. It speeds up transfer of technology
and industrialization, and thereby bring about social and economic progress. Verily, the protection
of industrial secrets is inextricably linked to the advancement of our economy and fosters healthy
competition in trade.

5. ABS-CBN v. Phil Multimedia

GR NO. 175769-70
 Basic principles, sec. 171,172.2, 175 and 181

FACTS: ABS-CBN is engaged in television and radio broadcasting through wireless and satellite
means while Philippine Multi-Media Systems Inc. (“PMSI” for brevity), the operator of
DreamBroadcasting System provides direct-to-home (DTH) television viasatellite to its
subscribers all over the Philippines.

5|CRIP DP under Atty. Perez

PMSI was granted legislative franchise under RA 8630 to install, operate and maintain a
nationwide DTH satellite service and is obligated under by NTC Memorandum Circular No. 4-08-
88, Section 6.2 of which requires all cable television system operators operating in a community
within Grade “A” or “B” contours to carry the television signals of the authorized television
broadcast stations (“must-carry rule”).

ABS-CBN filed a complaint with Intellectual Property Office (IPO) for violation of laws involving
property rights. It alleged that PMSI’s unauthorized rebroadcasting of Channels 2 and 23 infringed
on its broadcasting rights and copyright and that the NTC circular only covers cable television
system operators and not DTH satellitetelevision operators. Moreover, NTC Circular 4-08-88
violates Sec. 9 of Art. III of the Constitution because it allows the taking of property for public use
without payment of just compensation.

PMSI argued that its rebroadcasting of Channels 2 and 23 is sanctioned by Memorandum Circular
No. 04-08-88; that the must-carry rule under the Memorandum Circular is a valid exercise of police
power.

IPO and Court of Appeals ruled in favor of PMSI.

ISSUE: Whether or not petitioner’s broadcasting rights and copyright are infringed.

HELD: No. The Director-General of the IPO correctly found that PMSI is not engaged in
rebroadcasting and thus cannot be considered to have infringed ABS-CBN’s broadcasting rights
and copyright.

Section 202.7 of the IP Code defines broadcasting as “the transmission by wireless means for
the public reception of sounds or of images or of representations thereof; such transmission by
satellite is also ‘broadcasting’ where the means for decrypting are provided to the public by the
broadcasting organization or with its consent.” On the other hand, rebroadcasting as defined in
Article 3(g) of the International Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations, otherwise known as the 1961 Rome Convention,
of which the Republic of the Philippines is a signatory, is “the simultaneous broadcasting by one
broadcasting organization of the broadcast of another broadcasting organization.” The Working
Paper prepared by the Secretariat of the Standing Committee on Copyright and Related Rights
defines broadcasting organizations as “entities that take the financial and editorial responsibility
for the selection and arrangement of, and investment in, the transmitted content.” Evidently, PMSI
would not qualify as a broadcasting organization because it does not have the aforementioned
responsibilities imposed upon broadcasting organizations, such as ABS-CBN.

ABS-CBN creates and transmits its own signals; PMSI merely carries such signals which the
viewers receive in its unaltered form. PMSI does not produce, select, or determine the programs
to be shown in Channels 2 and 23. Likewise, it does not pass itself off as the origin or author of
such programs. Insofar as Channels 2 and 23 are concerned, PMSI merely retransmits the same
in accordance with Memorandum Circular 04-08-88. With regard to its premium channels, it buys
the channels from content providers and transmits on an as-is basis to its viewers. Clearly, PMSI

6|CRIP DP under Atty. Perez

does not perform the functions of a broadcasting organization; thus, it cannot be said that it is
engaged in rebroadcasting Channels 2 and 23.

6. Star Athletica v. Varsity Brands

580 US ___(2017)
 Basic principles, sec. 171,172.2, 175 and 181

FACTS: The case stems to a copyright infringement action filed by Varsity Brands against Star
Athletica, charging Star with marketing cheerleading uniforms substantially similar to designs
copyrighted by Varsity. Star argued that Varsity’s copyrights were invalid because the designs
are for non-copyrightable useful articles and the pictorial, graphic or sculptural elements of
Varsity’s designs were not physically or conceptually separable from the uniforms. The district
court entered a summary judgment in favor of Star but this decision was vacated and remanded
by the U.S. Court of Appeals for the Sixth Circuit in August 2015. The opinion handed down by
the 6th Cir. entered a summary judgment victory in favor of Varsity, finding that the graphic
features of Varsity’s designs are more like fabric designs than dress designs and are thus are
protectable subject matter under the Copyright Act.

In January 2016, Star Athletica petitioned the Supreme Court for a writ of certiorari to appeal the
case, reasoning that SCOTUS must grant an appeal to resolve the conflict between Circuit Courts
resulting in 10 different separability tests and further arguing that the test developed by 6th Circuit
was inferior to other tests.

ISSUE: Whether or not a "pictorial, graphic, or sculptural feature" incorporated into a useful
article is eligible for copyright protection.

HELD: A feature incorporated into the design of a useful article is eligible for copyright protection
only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from
the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—
either on its own or fixed in some other tangible medium of expression—if it were imagined
separately from the useful article into which it is incorporated. That test is satisfied here.

“Pictorial” and “graphic” denote two-dimensional features such as pictures, paintings, or

drawings. Thus, by providing protection for “pictorial, graphical, and sculptural works”
incorporated into the “design of a useful article,” necessarily contemplates that such a design
can include two dimensional features. This Court will not adjudicate in the first instance the
Government’s distinct argument against applying separability analysis, which was neither raised
below nor advanced here by any party.

Section 101’s separate-identification requirement is met if the decision maker is able to look at
the useful article and spot some two or three-dimensional element that appears to have pictorial,
graphic, or sculptural qualities. To satisfy the independent-existence requirement, the feature
must be able to exist as its own pictorial, graphic, or sculptural work once it is imagined apart
from the useful article. If the feature could not exist as a pictorial, graphic, or sculptural work on
its own, it is simply one of the article’s utilitarian aspects. And to qualify as a pictorial, graphic, or
sculptural work on its own, the feature cannot be a useful article or “an article that is normally a

7|CRIP DP under Atty. Perez

part of a useful article,” Neither could one claim a copyright in a useful article by creating a replica
of it in another medium.

The statute as a whole confirms this interpretation. Section 101, which protects art first fixed in
the medium of a useful article, is essentially the mirror image of (a), which protects art first fixed
in a medium other than a useful article and subsequently applied to a useful article. Together,
these provisions make clear that copyright protection extends to pictorial, graphic, and sculptural
works regardless of whether they were created as freestanding art or as features of useful
articles.

This interpretation is also consistent with the Copyright Act’s history. In Mazer, a case decided
under the 1909 Copyright Act, the Court held that respondents owned a copyright in a statuette
created for use as a lamp base. In so holding, the Court approved a Copyright Office regulation
extending protection to works of art that might also serve a useful purpose and held that it was
irrelevant to the copyright inquiry whether the statuette was initially created as a freestanding
sculpture or as a lamp base. Soon after, the Copyright Office enacted a regulation implementing
Mazer’s holding that anticipated the language of section101, thereby introducing the modern
separability test to copyright law. Congress essentially lifted the language from those post-Mazer
regulations and placed it in §101 of the 1976

Applying the proper test here, the surface decorations on the cheerleading
uniforms are separable and therefore eligible for copyright protection. First, the
decorations can be identified as features having pictorial, graphic, or sculptural qualities.
Second, if those decorations were separated from the uniforms and applied in another
medium, they would qualify as two-dimensional works of art under sec.101. Imaginatively
removing the decorations from the uniforms and applying them in another medium also
would not replicate the uniform itself.

7. Feist Publications v. Rural Telephone Services (2 issues)

499 US 340 (1991)
 Copyrightable Works (Original Works-Sec. 172 and 218 of IP Code)
 Non-Copyrightable Works (Sec. 175 of IP Code)

*Lengthy but worth reading. 

FACTS: Rural Telephone Service Company (Rural) is a certified public utility that provides
telephone service to several communities in northwest Kansas. Accordingly, as a condition of its
monopoly franchise, Rural publishes a typical telephone directory, consisting of white pages and
yellow pages. The white pages list in alphabetical order the names of Rural's subscribers, together
with their towns and telephone numbers. The yellow pages list Rural's business subscribers
alphabetically by category and feature classified advertisement. Rural distributes its directory free
of charge to its subscribers, but earns revenue by selling yellow pages advertisements.

Feist Publications, Inc.,(Fiest) is a publishing company that specializes in area-wide telephone

directories. The Feist directory that is the subject of this litigation covers 11 different telephone

8|CRIP DP under Atty. Perez

service. Like Rural's directory, Feist's is distributed free of charge and includes both white pages
and yellow pages.

As the sole provider of telephone service in its service area, Rural obtains subscriber information
quite easily. Feist is not a telephone company, and therefore lacks independent access to any
subscriber information. To obtain white pages listings, Feist approached each of the telephone
companies operating and offered to pay for the right to use its white pages listings.

Rural refused to license its listings to Feist. Unable to license Rural's white pages listings, Feist
used them without Rural's consent. There were fictitious listings that Rural had inserted into its
directory to detect copying.

Rural sued for copyright infringement taking the position that Feist, in compiling its own directory,
could not use the information contained in Rural's white pages. Rural asserted that Feist's
employees were obliged to travel door-to-door or conduct a telephone survey to discover the
same information for themselves. Feist responded that such efforts were economically impractical
and, in any event, unnecessary because the information copied was beyond the scope of
copyright protection. The District Court granted summary judgment to Rural, explaining that
"courts have consistently held that telephone directories are copyrightable"

Rural wisely concedes this point, that "facts and discoveries, of course, are not themselves
subject to copyright protection. At the same time, however, alleged that it is beyond dispute that
compilations of facts are within the subject matter of copyright.

ISSUE: Whether or not telephone directory white pages is covered by the copy right protection?

HELD: The key to resolving the tension lies in understanding why facts are not copyrightable.
The sine qua non of copyright is originality. To qualify for copyright protection, a work must be
original to the author. Originality does not signify novelty; a work may be original even though it
closely resembles other works so long as the similarity is fortuitous, not the result of copying. To
illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither
work is novel, yet both are original and, hence, copyrightable.

It is this bedrock principle of copyright that mandates the law's seemingly disparate treatment of
facts and factual compilations. "No one may claim originality as to facts." This is because facts do
not owe their origin to an act of authorship. The distinction is one between creation and discovery:
the first person to find and report a particular fact has not created the fact; he or she has merely
discovered its existence. To borrow from Burrow-Giles, one who discovers a fact is not its
"maker" or "originator." "The discoverer merely finds and records." Census-takers, for example,
do not "create" the population figures that emerge from their efforts; in a sense, they copy these
figures from the world around them. Census data therefore do not trigger copyright because these
data are not "original" in the constitutional sense. The same is true of all facts -- scientific,
historical, biographical, and news of the day. "They may not be copyrighted and are part of the
public domain available to every person."

This protection is subject to an important limitation. The mere fact that a work is copyrighted does
not mean that every element of the work may be protected. Originality remains the sine qua non

9|CRIP DP under Atty. Perez

of copyright; accordingly, copyright protection may extend only to those components of a work
that are original to the author. Thus, if the compilation author clothes facts with an original
collocation of words, he or she may be able to claim a copyright in this written expression. Others
may copy the underlying facts from the publication, but not the precise words used to present
them. Where the compilation author adds no written expression but rather lets the facts speak for
themselves, the expressive element is more elusive. The only conceivable expression is the
manner in which the compiler has selected and arranged the facts. Thus, if the selection and
arrangement are original, these elements of the work are eligible for copyright protection. No
matter how original the format, however, the facts themselves do not become original through
association.

Most courts construed the 1909 Act correctly, But some courts misunderstood the statute and
developed the theory known as “sweat of the brow.”

The “sweat of the brow” doctrine had numerous flaws, the most glaring being that it extended
copyright protection in a compilation beyond selection and arrangement -- the compiler's original
contributions -- to the facts themselves. Under the doctrine, the only defense to infringement was
independent creation. A subsequent compiler was “not entitled to take one word of information
previously published,” but rather had to “independently work out the matter for himself, so as to
arrive at the same result from the same common sources of information.” “Sweat of the brow”
courts thereby eschewed the most fundamental axiom of copyright law -- that no one may
copyright facts or ideas.

“The two fundamental criteria of copyright protection [are] originality and fixation in tangible
form. The Congress enacted law to ensure that the mistake “sweat of the brow” will never repeat,
thus determined that, collections of facts are not copyrightable per se. The statute identifies three
distinct elements and requires each to be met for a work to qualify as a copyrightable compilation:
(1) the collection and assembly of pre-existing material, facts, or data; (2) the selection,
coordination, or arrangement of those materials; and (3) the creation, by virtue of the
particular selection, coordination, or arrangement, of an “original” work of authorship.
“This tripartite conjunctive structure is self-evident, and should be assumed to 'accurately express
the legislative purpose.'”

There is no doubt that Feist took from the white pages of Rural's directory a substantial amount
of factual information. At a minimum, Feist copied the names, towns, and telephone numbers of
1,309 of Rural's subscribers. Not all copying, however, is copyright infringement. To establish
infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original.

The selection, coordination, and arrangement of Rural's white pages do not satisfy the minimum
constitutional standards for copyright protection. Rural's white pages are entirely typical. Persons
desiring telephone service in Rural's service area fill out an application and Rural issues them a
telephone number. In preparing its white pages, Rural simply takes the data provided by its
subscribers and lists it alphabetically by surname. The end product is a garden-variety white
pages directory, devoid of even the slightest trace of creativity.

10 | C R I P D P u n d e r A t t y . P e r e z
We conclude that the names, towns, and telephone numbers copied by Feist were not original to
Rural and therefore were not protected by the copyright in Rural's combined white and yellow
pages directory. Rural's white pages, limited to basic subscriber information and arranged
alphabetically, fall short of the mark.

8. ABS-CBN v. Felipe Gozon

GR No. 195956 (March 11, 2015)
 Copyrightable Works (Original Works-Sec. 172 and 218 of IP Code)
 Doctrine of Fair Use (Sec. 185 of IP Code)

(Pending Submission)

9. Filipino Society of Composers v. Benjamin Tan

148 SCRA 461
 Copyrightable Works (Original Works-Sec. 172 and 218 of IP Code)

Nature of the case: It is an appeal assailing the decision of Court of First Instance (CFI) of Manila
that dismissed plaintiff’s complaint. CA finds the complaint as a pure question of law and certified
the same to the Supreme Court.

FACTS:

 Plaintiff-appellant, FSCAPI, is a non-profit association of authors, composers and

publishers duly organized under the Corporation Law of the Philippines and registered
with the Securities and Exchange Commission.
 FSCAPI owns "Dahil Sa Iyo", "Sapagkat Ikaw Ay Akin," "Sapagkat Kami Ay Tao Lamang"
and "The Nearness Of You."
 Benjamin Tan, defendant-appellee is the operator of a restaurant known as "Alex Soda
Foundation and Restaurant".
 Tan hired professional singers to play the earlier said compositions while customers dine
in his restaurant.
 Plaintiff FSCAPI demanded payment of license fee from Tan for playing the said
songs/compositions.
 November 7, 1967, appellant filed a complaint for INFRINGEMENT OF COPYRIGHT to
CFI Manila when Benjamin Tan ignored the demand for fees.
 CFI (RTC) Ruling
o DISMISSED THE COMPLAINT
 CA
o Found the complaint as pure question of law

ISSUE:

1. Whether or not (WON) the playing and signing of musical compositions which have been
copyrighted under the provisions of the Copyright Law (Act 3134) inside the establishment
of the defendant-appellee constitute a public performance for profit; and
2. WON Benjamin Tan can be held liable if public performance for profit exists therefor.

HELD:

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 1. No. The customers only pay for food and drinks and the music is only used to
induce customers to dine.

Appellant FSCAPI using Sec. 3 does NOT hold water.

Section 3(c) of the Copyright Law which provides: The proprietor of a copyright or his
heirs or assigns shall have the exclusive right:

xxx xxx xxx

(c) To exhibit, perform, represent, produce, or reproduce the copyrighted work in any
manner or by any method whatever for profit or otherwise; if not reproduced in copies for
sale, to sell any manuscripts or any record whatsoever thereof;

xxx xxx xxx

2. No. The compositions are deemed donated to the public.

The Supreme Court has ruled that "Paragraph 33 of Patent Office Administrative Order
No. 3 (as amended, dated September 18, 1947) entitled 'Rules of Practice in the
Philippines Patent Office relating to the Registration of Copyright Claims' promulgated
pursuant to Republic Act 165, provides among other things that an intellectual creation
should be copyrighted thirty (30) days after its publication, if made in Manila, or
within the (60) days if made elsewhere, failure of which renders such creation public
property." (Santos v. McCullough Printing Company, 12 SCRA 324-325 [1964]. Indeed,
if the general public has made use of the object sought to be copyrighted for thirty (30)
days prior to the copyright application the law deems the object to have been donated
to the public domain and the same can no longer be copyrighted.

10. Unilever Philippines (PRC) v. CA

Gr. No. 119280 (Aug. 2, 2006)
 Copyrightable Works (Original Works-Sec. 172 and 218 of IP Code)

11. Manly v. Dadodette

GR No. 165306 (Sep. 20, 2006)
 Copyrightable Works (Original Works-Sec. 172 and 218 of IP Code)

FACTS: On March 17, 2003 a search warrant was issued by the RTC of Quezon City against
Dadodette Enterprises for possession of goods which copyright belonged to Manly Sportswear.
Dadodette thereafter moved to quash and annul the search warrant contending that the same
was invalid since the requisites for its issuance have not been complied with. They insisted that
the sporting goods manufactured by and/or registered in the name of Manly Sportswear are
ordinary and common hence, not among the classes of work protected under Section 172 of RA
8293. On June 10, 2003, the trial court granted the motion to quash and declared the search
warrant null and void based on its finding that the copyrighted products of Manly do not appear
to be original creations and were being manufactured and distributed by different companies
locally and abroad under various brands, and therefore unqualified for protection under Section

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172 of RA 8293. An appeal was filed with the CA but it affirmed the RTC’s quashal of the search
warrant.

ISSUE: WON the certificate of registration issued to Manly Sportswear carries with it the
presumption of validity and originality hence, protected under Sec. 172 of RA 8293.

HELD: The copyright certificates issued in favor of Manly Sportswear constitute merely prima
facie evidence of validity and ownership. However, no presumption of validity is created where
other evidence exist that may cast doubt on the copyright validity. Hence, where there is
sufficient proof that the copyrighted products are not original creations but are readily available
in the market under various brands, as in this case, validity and originality will not be presumed
and the trial court may properly quash the issued warrant for lack of probable cause.

Besides, no copyright accrues in favor of Manly Sportswear despite issuance of the certificates
of registration and deposit, pursuant to Section 2, Rule 7 of the Copyrights Safeguards and
Regulations which states, “Sec. 2 Effects of Registration and Deposit of Work. The registration
and deposit of the work is purely for recording the date of registration and deposit of the work
and shall not be conclusive as to copyright ownership or the term of the copyrights or the rights
of the copyright owner, including neighboring rights.”

At most, the certificates of registration and deposit issued by the National Library and the
Supreme Court Library serve merely as a notice of recording and registration of the work but do
not confer any right or title upon the registered copyright owner or automatically put his work
under the protective mantle of the copyright law. It is not a conclusive proof of copyright
ownership. As it is, non-registration and deposit of the work within the prescribed period only
makes the copyright owner liable to pay a fine.

The petition was denied.

12. Baker v. Selden

101 U.S. 99 (1879)
 Non-Copyrightable Works (Sec. 175 of IP Code)

13. Joaquin v. Drilon

302 SCRA 225 (1999)
 Non-Copyrightable Works (Sec. 175 of IP Code)

FACTS: On June 28, 1973, petitioner BJPI submitted to the National Library an addendum to its
certificate of copyright specifying the shows format and style of presentation.
On July 14, 1991, while watching television, petitioner Francisco Joaquin, Jr., president of BJPI,
saw on RPN Channel 9 an episode of Its a Date, which was produced by IXL Productions, Inc.
(IXL). On July 18, 1991, he wrote a letter to private respondent Gabriel M. Zosa, president and
general manager of IXL, informing Zosa that BJPI had a copyright to Rhoda and Me and
demanding that IXL discontinue airing Its a Date.
In a letter, dated July 19, 1991, private respondent Zosa apologized to petitioner Joaquin and
requested a meeting to discuss a possible settlement. IXL, however, continued airing Its a Date,
prompting petitioner Joaquin to send a second letter on July 25, 1991 in which he reiterated his

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demand and warned that, if IXL did not comply, he would endorse the matter to his attorneys for
proper legal action.
Meanwhile, private respondent Zosa sought to register IXLs copyright to the first episode of Its a
Date for which it was issued by the National Library a certificate of copyright on August 14, 1991.
Upon complaint of petitioners, an information for violation of P.D. No. 49 was filed against private
respondent Zosa together with certain officers of RPN Channel 9, namely, William Esposo, Felipe
Medina, and Casey Francisco, in the Regional Trial Court of Quezon City where it was docketed
as Criminal Case No. 92-27854 and assigned to Branch 104 thereof. However, private respondent
Zosa sought a review of the resolution of the Assistant City Prosecutor before the Department of
Justice.
On August 12, 1992, respondent Secretary of Justice Franklin M. Drilon reversed the Assistant
City Prosecutors findings and directed him to move for the dismissal of the case against private
respondents.
Petitioners claim that their failure to submit the copyrighted master videotape of the television
show Rhoda and Me was not raised in issue by private respondents during the preliminary
investigation and, therefore, it was error for the Secretary of Justice to reverse the investigating
prosecutors finding of probable cause on this ground.
ISSUE: WHETHER THE FORMAT OR MECHANICS OF A SHOW IS ENTITLED TO
COPYRIGHT PROTECTION.

RULING: To begin with, the format of a show is not copyrightable. Section 2 of P.D. No.
49, otherwise known as the DECREE ON INTELLECTUAL PROPERTY, enumerates the
classes of work entitled to copyright protection, to wit:

Section 2. The rights granted by this Decree shall, from the moment of creation, subsist with
respect to any of the following classes of works:

(A) Books, including composite and cyclopedic works, manuscripts, directories, and gazetteers;

(B) Periodicals, including pamphlets and newspapers;

(C) Lectures, sermons, addresses, dissertations prepared for oral delivery;

(D) Letters;

(E) Dramatic or dramatico-musical compositions; choreographic works and entertainments in

dumb shows, the acting form of which is fixed in writing or otherwise;

(F) Musical compositions, with or without words;

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

(H) Reproductions of a work of art;

(I) Original ornamental designs or models for articles of manufacture, whether or not patentable,
and other works of applied art;

14 | C R I P D P u n d e r A t t y . P e r e z
(J) Maps, plans, sketches, and charts;

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

(L) Photographic works and works produced by a process analogous to photography; lantern
slides;

(M) Cinematographic works and works produced by a process analogous to cinematography or

any process for making audio-visual recordings;

(N) Computer programs;

(O) Prints, pictorial illustrations advertising copies, labels, tags, and box wraps;

(P) Dramatizations, translations, adaptations, abridgements, arrangements and other alterations

of literary, musical or artistic works or of works of the Philippine government as herein defined,
which shall be protected as provided in Section 8 of this Decree.

(Q) Collections of literary, scholarly, or artistic works or of works referred to in Section 9 of this
Decree which by reason of the selection and arrangement of their contents constitute
intellectual creations, the same to be protected as such in accordance with Section 8 of this
Decree.

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

This provision is substantially the same as 172 of the INTELLECTUAL PROPERTY CODE
OF THE PHILIPPINES (R.A. No. 8293). The format or mechanics of a television show is not
included in the list of protected works in 2 of P.D. No. 49. For this reason, the protection afforded
by the law cannot be extended to cover them.

Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent
right granted by the statute, and not simply a pre-existing right regulated by the statute. Being a
statutory grant, the rights are only such as the statute confers, and may be obtained and
enjoyed only with respect to the subjects and by the persons, and on terms and conditions
specified in the statute.

Since copyright in published works is purely a statutory creation, a copyright may be obtained
only for a work falling within the statutory enumeration or description.

Regardless of the historical viewpoint, it is authoritatively settled in the United States that there
is no copyright except that which is both created and secured by act of Congress.

The new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides:

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

15 | C R I P D P u n d e r A t t y . P e r e z
 items of press information; or any official text of a legislative, administrative or legal
nature, as well as any official translation thereof.
What then is the subject matter of petitioners copyright? This Court is of the opinion that
petitioner BJPIs copyright covers audio-visual recordings of each episode of Rhoda and Me, as
falling within the class of works mentioned in P.D. 49, 2(M), to wit:

 Cinematographic works and works produced by a process analogous to cinematography

or any process for making audio-visual recordings;

The copyright does not extend to the general concept or format of its dating game show.
Accordingly, by the very nature of the subject of petitioner BJPIs copyright, the investigating
prosecutor should have the opportunity to compare the videotapes of the two shows
14. Ching v. Salinas
G.R. No. 161295 (June 29 2005) 462 SCRA 241
 Non-Copyrightable Works (Sec. 175 of IP Code)

FACTS: Petitioner Ching is a maker and manufacturer of a utility model, Leaf Spring Eye
Bushing for Automobile, for which he holds certificates of copyright registration. Petitioner’s
request to the NBI to apprehend and prosecute illegal manufacturers of his work led to the
issuance of search warrants against respondent Salinas, alleged to be reproducing and
distributing said models in violation of the IP Code. Respondent moved to quash the warrants
on the ground that petitioner’s work is not artistic in nature and is a proper subject of a patent,
not copyright. Petitioner insists that the IP Code protects a work from the moment of its creation
regardless of its nature or purpose. The trial court quashed the warrants. Petitioner argues that
the copyright certificates over the model are prima facie evidence of its validity. CA affirmed the
trial court’s decision.

ISSUES: (1) Whether or not petitioner’s model is an artistic work subject to copyright protection.

(2) Whether or not petitioner is entitled to copyright protection on the basis of the certificates of
registration issued to it.

HELD: (1) NO. As gleaned from the specifications appended to the application for a copyright
certificate filed by the petitioner, the said Leaf Spring Eye Bushing for Automobile and Vehicle
Bearing Cushion are merely utility models. As gleaned from the description of the models and
their objectives, these articles are useful articles which are defined as one having an intrinsic
utilitarian function that is not merely to portray the appearance of the article or to convey
information. Plainly, these are not literary or artistic works. They are not intellectual creations in
the literary and artistic domain, or works of applied art. They are certainly not ornamental
designs or one having decorative quality or value. Indeed, while works of applied art, original
intellectual, literary and artistic works are copyrightable, useful articles and works of industrial
design are not. A useful article may be copyrightable only if and only to the extent that such
design incorporates pictorial, graphic, or sculptural features that can be identified separately
from, and are capable of existing independently of the utilitarian aspects of the article. In this
case, the bushing and cushion are not works of art. They are, as the petitioner himself admitted,
utility models which may be the subject of a patent.

16 | C R I P D P u n d e r A t t y . P e r e z
(2) NO. No copyright granted by law can be said to arise in favor of the petitioner despite the
issuance of the certificates of copyright registration and the deposit of the Leaf Spring Eye
Bushing and Vehicle Bearing Cushion. Indeed, in Joaquin, Jr. v.Drilon and Pearl & Dean (Phil.),
Incorporated v. Shoemart, Incorporated, the Court ruled that:

Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent
right granted by the statute, and not simply a pre-existing right regulated by it. Being a statutory
grant, the rights are only such as the statute confers, and may be obtained and enjoyed only
with respect to the subjects and by the persons, and on terms and conditions specified in the
statute. Accordingly, it can cover only the works falling within the statutory enumeration or
description.

Ownership of copyrighted material is shown by proof of originality and copyright ability. To

discharge his burden, the applicant may present the certificate of registration covering the work
or, in its absence, other evidence. A copyright certificate provides prima facie evidence of
originality which is one element of copyright validity. It constitutes prima facie evidence of both
validity and ownership and the validity of the facts stated in the certificate.

15. Olano et. al. v. Lim Eng Co.

G.R. No. 195835 (April 20, 2016)
 Non-Copyrightable Works (Sec. 175 of IP Code)

16. Kirtsaeng v. John Wiley & Sons

568 US (No. 11-697, March 19,2013)
 Rights of Copy Owner (177 of IP Code)

FACTS: The “exclusive rights” that a copyright owner has “to distribute copies . . . of [a] copyrighted
work,” are qualified by the application of several limitations, including the “first sale” doctrine, which
provides that “the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled,
without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy
or phonorecord,” Importing a copy made abroad without the copyright owner’s permission is an
infringement. In Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U. S. 135, 145, this Court
held that §602(a)(1)’s reference to §106(3) incorporates the §§107 through 122 limitations, including
§109’s “first sale” doctrine. However, the copy in Quality King was initially manufactured in the United
States and then sent abroad and sold. Respondent, John Wiley & Sons, Inc., an academic textbook
publisher, often assigns to its wholly owned foreign subsidiary (Wiley Asia) rights to publish, print, and sell
foreign editions of Wiley’s English language textbooks abroad. Wiley Asia’s books state that they are not
to be taken (without permission) into the United States. When petitioner Kirtsaeng moved from Thailand
to the United States to study mathematics, he asked friends and family to buy foreign edition English-
language textbooks in Thai book shops, where they sold at low prices, and to mail them to him in the
United States. He then sold the books, reimbursed his family and friends, and kept the profit. Wiley filed
suit, claiming that Kirtsaeng’s unauthorized importation and resale of its books was an infringement of
Wiley’s exclusive right to distribute and import prohibition. Kirtsaeng replied that because his books were
“lawfully made” and acquired legitimately, “first sale” doctrine permitted importation and resale without

17 | C R I P D P u n d e r A t t y . P e r e z
Wiley’s further permission. The District Court held that Kirtsaeng could not assert this defense because
the doctrine does not apply to goods manufactured abroad. The jury then found that Kirtsaeng had
willfully infringed Wiley’s American copyrights and assessed damages. The Second Circuit affirmed,
concluding that it was “lawfully made under this title” language indicated that the “first sale” doctrine
does not apply to copies of American copyrighted works manufactured abroad.

ISSUE: Whether or not the “First Sale” doctrine applies to copies of a copyrighted work lawfully made
abroad?

HELD: YES! (a) Wiley reads “lawfully made under this title” to impose a geographical limitation that
prevents doctrine from applying to Wiley Asia’s books. Kirtsaeng, however, reads the phrase as imposing
the non-geographical limitation made “in accordance with” or “in compliance with” the Copyright Act,
which would permit the doctrine to apply to copies manufactured abroad with the copyright owner’s
permission. Section 109(a)’s language, its context, and the “first sale” doctrine’s common-law history
favor Kirtsaeng’s reading.

(1) Section 109(a) says nothing about geography. “Under” can logically mean “in accordance with.”
And a nongeographical interpretation provides each word in the phrase “lawfully made under this
title” with a distinct purpose: “lawfully made” suggests an effort to distinguish copies that were
made lawfully from those that were not, and “under this title” sets forth the standard of
“lawful[ness]” (i.e., the U. S. Copyright Act). This simple reading promotes the traditional
copyright objective of combatting piracy and makes word-byword linguistic sense. In contrast, the
geographical interpretation bristles with linguistic difficulties. Wiley first reads “under” to mean
“in conformance with the Copyright Act where the Copyright Act is applicable.” Wiley then argues
that the Act “is applicable” only in the United States. However, neither “under” nor any other
word in “lawfully made under this title” means “where.” Nor can a geographical limitation be read
into the word “applicable.” The fact that the Act does not instantly protect an American copyright
holder from unauthorized piracy taking place abroad does not mean the Act is inapplicable to
copies made abroad. Indeed, §602(a)(2) makes foreign-printed pirated copies subject to the
Copyright Act. And §104 says that works “subject to protection” include unpublished works
“without regard to the [author’s] nationality or domicile,” and works “first published” in any of
the nearly 180 nations that have signed a copyright treaty with the United States.
(2) Both historical and contemporary statutory context indicate that Congress did not have
geography in mind when writing the present version of §109(a). xxx
(3) xxx The common-law “first sale” doctrine, which has an impeccable historic pedigree, makes no
geographical distinctions. xxx
(4) xxx Reliance on the “first sale” doctrine is also deeply embedded in the practices of booksellers,
libraries, museums, and retailers, who have long relied on its protection. And the fact that harm
has proved limited so far may simply reflect the reluctance of copyright holders to assert
geographically based resale rights. Thus, the practical problems described by petitioner and his
amici are too serious, extensive, and likely to come about to be dismissed as insignificant—
particularly in light of the ever-growing importance of foreign trade to America. Several additional

18 | C R I P D P u n d e r A t t y . P e r e z
 arguments that Wiley and the dissent make in support of a geographical interpretation are
unpersuasive.

17. Sony Corp. of America v. Universal City Studios Inc.

464 US 417 (1984)
 Doctrine of Fair Use (Sec. 185 of IP Code)

18. Harper & Row v. Nation Enters

471 U.S. 539 (1985)
 Doctrine of Fair Use (Sec. 185 of IP Code)

Nature of the case:

A certiorari on the decision of the Second Circuit holding that the Nation’s act was sanctioned as
a “fair use”.

FACTS:
 February 1977, former President Gerald R. Ford contracted with petitioners to publish
his yet unwritten memoirs.
 The memoirs included significant hitherto unpublished material re:
o the Watergate crisis
o pardon of President Nixon
o reflections on the said period of history
o the morality and personalities involved
 Two years later, upon nearing completion of the said project, petitioners negotiated a
prepublication agreement with Time in exchange for the right to excerpt 7, 500 words of
the NIXON PARDON.
o Time agreed to pay $12, 500 in advance
o Another $12, 500 at publication
 The consideration in the agreement is EXCLUSIVITY.
 2 to 3 weeks before the Time article’s scheduled release, an UNIDENTIFIED person
brought a copy of the Ford manuscript to Victor Navasky, editor of THE NATION.
o It is a political commentary magazine
o Mr. Navasky knew that his possession of the manuscript was unauthorized
o Navasky made news and in advance of the publication of the Ford book
composed of 2, 250-word article released in April 3, 1979
 Time cancelled its product and refused to pay the remaining $12, 500.
 Petitioners brought suit in the District Court of New York alleging
o Conversion
o Tortious interference with contract
o Violations of the Copyright Act
 Lower Court decision
o Rejected the argument of The Nation on Fair Use since the “A Time to Heal” was
already protected by copyright
o Awarded actual damages of $12, 500
 Court of Appeals for the Second Circuit REVERSED the lower court.
o The copyright attaches to expression
o Copyright not attached to FACTS or ideas

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ISSUE: Whether or not (WON) The Nation was entitled to Fair Use hence did not violate
Copyrights

HELD: No. The Supreme Court agreed with CA that copyright is intended to increase and not
to impede the harvest of knowledge BUT
 Copyright Act also fosters original works that provide the seed and substance of this
harvest.
 The rights conferred by copyright are designed to assure contributors to the store of
knowledge a fair return of their labours.
 To determine Fair Use, Section 107 provides:
1. The purpose and character of the use
2. The nature of the copyrighted work
3. The substantiality of the portion used in relation to the copyrighted work as a
whole
4. The effect on the potential market for or value of the copyrighted work
 The purpose of The Nation intervened on the Right of First Publication.
 It damaged the marketability of the copyrighted work.

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