Lost media, View on the 3rd, and the Philippine law on copyright and fair use

There is no fixed definition of “lost media”. However, two definitions provided by forum users of the Lost Media Wiki, “a community effort to track down lost or hard to find media” (Source: LMW home page).

The first definition is by user babydogpaste (Source):

The unreleased media is lost to the general public, they can’t view it. The lost media is lost to everyone, no one can view it.

The second definition is by virtualboi, in response to the first definition (Source):

The pure definition the site (The Lost Media Wiki) goes by is “media that isn’t available to the general public”.

There is no movement or endeavor to track down lost media in the Philippines. Rather, what is happening is the reverse. Jojo Bailon, on his page View on the 3rd, makes available media that may fall under the definitions of “lost media” stated above.

Efforts however to make lost media available to the public, however, legally faces obstacles, at least in the Philippine setting. Under both Presidential Decree No. 49 (Sec. 6; signed November 14, 1972, whether or not said Marcos-era decree has been published and thus effective is not clear) and Republic Act No. 8293 or the Intellectual Property Code (Sec. 178; effective January 1, 1998), copyright belongs to the author of the work, not to the person who recorded them (ex. video) or who owns a physical copy (ex. book). Section 181 of the IP Code states:

The copyright is distinct from the property in the material object subject to it. Consequently, the transfer or assignment of the copyright shall not itself constitute a transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several copies of the work imply transfer or assignment of the copyright.

Making available lost media to the public does not fall under any of the limitations to copyright under Section 184, as amended by Republic Act No. 10372. However, fair use may be invoked. Section 185, as amended, states:

185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of a computer program to achieve the interoperability of an independently created computer program with other programs may also constitute fair use under the criteria established by this section, to the extent that such decompilation is done for the purpose of obtaining the information necessary to achieve such interoperability.

In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(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.

185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

It may be argued that “similar purposes” may include “preservation and availability of lost media”, based on the principle of ejusdem generis.

Making available lost media to the public may be argued to be not for a commercial purpose. Those who make available such lost media do not usually derive profit from such endeavor. There is no evidence of the effect of making available lost media upon the potential market for or value of the copyrighted work.

The Supreme Court, speaking through Justice Leonen, discussed fair use in ABS-CBN vs. Gozon [G.R. No. 195956, 11 March 2015]. The pertinent portion reads (with footnotes preserved):

This court defined fair use as “a privilege to use the copyrighted material in a reasonable manner without the consent of the copyright owner or as copying the theme or ideas rather than their expression.”115Fair use is an exception to the copyright owner’s monopoly of the use of the work to avoid stifling “the very creativity which that law is designed to foster.”116

Determining fair use requires application of the four-factor test. Section 185 of the Intellectual Property Code lists four (4) factors to determine if there was fair use of a copyrighted work:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

First, the purpose and character of the use of the copyrighted material must fall under those listed in Section 185, thus: “criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes.”117 The purpose and character requirement is important in view of copyright’s goal to promote creativity and encourage creation of works. Hence, commercial use of the copyrighted work can be weighed against fair use.

The “transformative test” is generally used in reviewing the purpose and character of the usage of the copyrighted work.118 This court must look into whether the copy of the work adds “new expression, meaning or message” to transform it into something else.119 “Meta-use” can also occur without necessarily transforming the copyrighted work used.120

Second, the nature of the copyrighted work is significant in deciding whether its use was fair. If the nature of the work is more factual than creative, then fair use will be weighed in favor of the user.

Third, the amount and substantiality of the portion used is important to determine whether usage falls under fair use. An exact reproduction of a copyrighted work, compared to a small portion of it, can result in the conclusion that its use is not fair. There may also be cases where, though the entirety of the copyrighted work is used without consent, its purpose determines that the usage is still fair.121 For example, a parody using a substantial amount of copyrighted work may be permissible as fair use as opposed to a copy of a work produced purely for economic gain.

Lastly, the effect of the use on the copyrighted work’s market is also weighed for or against the user. If this court finds that the use had or will have a negative impact on the copyrighted work’s market, then the use is deemed unfair.

The structure and nature of broadcasting as a business requires assigned values for each second of broadcast or airtime. In most cases, broadcasting organizations generate revenue through sale of time or timeslots to advertisers, which, in turn, is based on market share: 122

Once a news broadcast has been transmitted, the broadcast becomes relatively worthless to the station. In the case of the aerial broadcasters, advertising sales generate most of the profits derived from news reports. Advertising rates are, in turn, governed by market share. Market share is determined by the number of people watching a show at any particular time, relative to total viewers at that time. News is by nature time-limited, and so re-broadcasts are generally of little worth because they draw few viewers. Newscasts compete for market share by presenting their news in an appealing format that will capture a loyal audience. Hence, the primary reason for copyrighting newscasts by broadcasters would seem to be to prevent competing stations from rebroadcasting current news from the station with the best coverage of a particular news item, thus misappropriating a portion of the market share.

Of course, in the real world there are exceptions to this perfect economic view.  However, there are also many caveats with these exceptions. A common exception is that some stations rebroadcast the news of others. The caveat is that generally, the two stations are not competing for market share. CNN, for example, often makes news stories available to local broadcasters. First, the local broadcaster is often not affiliated with a network (hence its need for more comprehensive programming), confining any possible competition to a small geographical area. Second, the local broadcaster is not in competition with CNN. Individuals who do not have cable TV (or a satellite dish with decoder) cannot receive CNN; therefore there is no competition. . . . Third, CNN sells the right of rebroadcast to the local stations. Ted Turner, owner of CNN, does not have First Amendment freedom of access argument foremost on his mind. (Else he would give everyone free cable TV so everyone could get CNN.) He is in the business for a profit. Giving away resources does not a profit make.123 (Emphasis supplied)

The high value afforded to limited time periods is also seen in other media. In social media site Instagram, users are allowed to post up to only 15 seconds of video.124 In short-video sharing website Vine,125 users are allowed a shorter period of six (6) seconds per post. The mobile application 1 Second Everyday takes it further by capturing and stitching one (1) second of video footage taken daily over a span of a certain period.126


115Habana v. Robles, 369 Phil. 764 (1999) [Per J. Pardo, First Division], citing 18 AM JUR 2D §109, in turn citing Toksvig v. Bruce Pub.  Co.,  (CA7 Wis)  181  F2d 664 [1950]; Bradbury v. Columbia Broadcasting System, Inc., (CA9 Cal) 287 F2d 478, cert den 368 US 801, 7 L ed 2d 15, 82 S Ct 19 [1961]; Shipman v. R.K.O. Radio Pictures, Inc., (CA2 NY) 100 F2d 533 [1938].

116See Matthew D. Bunker, TRANSFORMING THE NEWS: COPYRIGHT AND FAIR USE IN NEWS-RELATED CONTEXTS, 52 J. COPYRIGHT SOC’Y U.S.A. 309, 311 (2004-2005), citing Iowa St. Univ. Research Found., Inc. v. Am. Broad. Cos., 621 F.2d 57, 60 (2d Cir. 1980). The four factors are similarly codified under the United States Copyright Act of 1976, sec. 107:

§ 107 . Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106 A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such  as criticism, comment,  news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a Finding of fair use if such finding is made upon consideration of all the above factors.

117 Rep. Act No. 8293 (1997), sec. 185.

118See Matthew D. Bunker, Transforming The News: Copyright And Fair Use In News-Related Contexts, 52 J. COPYRIGHT SOCY U.S.A. 309, 311 (2004-2005).

119 Id., citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

120 Id. at 317, citing Nunez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000) and Psihoyos v. National Examiner, 49 U.S.P.Q.2d 1766 (S.D. N.Y. 1998).  Bunker proposes the term “meta-use” for the kind of use that does not necessarily transform the original work by adding expression, meaning, or message, but only changes the purpose of the work. “[Psihoyos] distinguished between using the photograph to ‘show what it depict[ed]’ versus commenting upon the photograph in some way.   Certainly the Nunez use was for purposes of commentary on the photos – the photos had engendered significant controversy, and the news article reported on that controversy.  Thus, the Nunez use was what we might refer to as a ‘meta-use’ of the photos that went beyond simply using a photograph to illustrate a news story – as in Psihoyos – and instead consisted of a news story about the photographs themselves, or at least public reaction to them.”

121See Matthew D. Bunker, Transforming The News: Copyright And Fair Use In News-Related Contexts, 52 J. COPYRIGHT SOC’Y U.S.A. 309, 314 (2004-2005), citing Nunez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000).

122See John J. McGowan, Competition, Regulation, and Performance In Television Broadcasting, 1967 WASH. U. L. Q. 499 (1967), and William T. Kelley, How Television Stations Price Their Service, 11 J. BROAD. 313(1966-1967).

123 See Michael W. Baird, Copyrighting Newscasts: An argument for an Open Market, 3 Fordham Ent. Media & Intell. Prop. L.F. 481, pp. 518-519. The author of the article argues that “news broadcasts [should be taken] out of the realm of copyright entirely, creating instead a separate ‘rebroadcast right‘ for factual works of a time-limited nature. . . [in that] [s]uch a right would allow the taping of newscasts, but protect the source of broadcasters’ incomes, i.e., the advertising revenues from the original broadcast.” In essence, the author recognizes broadcasting organizations’ right to rebroadcast, which we defined earlier as a related or neighboring right of copyright.

124See Instagram, available at (last visited on 8 February 2015).

125See Vine, available at (last accessed on 8 February 2015).

126See 1  Second Everyday, available at (last accessed on 8 February 2015).

This post is subject to revision as new information arises. Information is offered as-is and with no guarantees made.

Advertisements