SUGGESTED ANSWERS TO THE2020/21 BAR EXAMINATIONS INCOMMERCIAL LAW | Question No. 14
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A professor teaching Intellectual Property Law distributed photocopies taken from a book written by another expert to a class of 15 law students. Excerpts shown in the photocopies were meant to be for discussion and criticism in one of the class sessions.
Is this a violation of the law on Copyright? Explain briefly.
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SUGGESTED ANSWER:
No, there is no violation of the law on copyright. Fair use is a privilege to use the copyrighted material in a reasonable manner without the consent of the copyright owner.
The fair use of a copyrighted work for criticism, comment and teaching, including multiple copies for classroom use, is a limitation on copyright (Section 185, Intellectual Property Code). First, only excerpts were copied and distributed - not entire chapters or sections of the work. Second, the copied excerpts were used in a non-commercial and non-profit manner. Third, the excerpts copied are not likely to affect the actual and potential market for the work. If at all, the students may end up purchasing the entire work.
Of course, if the excerpts constitute the “heart of the work” then the most important factor in fair use fails, and the use infringes upon the copyright of the author (Harper & Row v. Nation Enterprises, 471 U.S. 539).
Also, the facts do not describe the nature of the work that was copied. If the excerpts contained quotes of the Intellectual Property Code or other statutes, then there is no violation because works of the government are not protected by copyright.
ALTERNATIVE ANSWER:
There is a violation of the law on copyright. There are four factors to determine if there was fair use of a copyrighted work: a) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; 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 for or value of the copyrighted work. In this case, photocopying 15 copies of excerpts of the book, while meant for teaching purposes, is not compatible with fair use. This is also true if the excerpts constitute the “heart of the work” such that the students will no longer feel the need to purchase the work (Harper & Row v. Nation Enterprises, 471 U.S. 539). Finally, the number of reproduced copies is substantial and will have a negative impact on the book’s market or value.
Code: S.A 2020/21 B.E COMMERCIAL LAW | Question #14
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