The Public Domain and Fair Use

In order for a work to be deemed protectable by copyright law, an author’s work must be original in that he must have created it by his own skill, labor and judgment. Here, originality does not mean complete novelty or ingenuity, neither uniqueness nor creativity. On the other hand, a work is original, and therefore copyrightable, if it (a) is independently created by the author, and (b) possesses some minimal degree of creativity. (Feist Publications vs. Rural Te. Serv. Co.)

The Intellectual Property Code of the Philippines embodies the Doctrine of Fair Use. This doctrine permits a secondary use that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing incentives for creativity. The question, then, to be asked in such a case, is whether the use, in borrowing the protected expression of the original work, does so for purposes that advance the interests sought to be promoted by the copyright law. The determination of such issue revolves around four statutory factors, which are to be weighed together, in light of the purposes of copyright. (Amador, 2007) These factors are (a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (d) the effect of the use upon the potential market value of the copyrighted work.

With the increasing development of information technology and the proliferation of information in the public domain, one may ask how will a “work” be protected by copyright when it is based on something already available in the public domain, i.e. the Internet? A work may be protected by copyright even though it is based on something already in the public domain if the author, through his skill and effort, has contributed a distinguishable variation from older works.