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  • Secondary Liability for Copyright Infringement

    Can an educational institution be held liable for rampant acts of indiscriminate photocopying of copyrighted materials within its campus? What if the machines used for the infringing acts are owned by an entity that merely rents campus space? Can an educational institution be held liable for allowing students to use infringing copies within the classroom?

    To help answer these questions, let me share some ideas I got from a presentation of Tom Sydnor during the Copyright Seminar of the Global Intellectual Property Academy of the U.S. Patent and Trademark Office. The Seminar was held at Alexandria, Virginia on 15-18 August 2006. Sydnor spoke of secondary liability for infringement primarily in the context of “peer-to-peer filesharing” programs like those of Napster and Grokster.

    “Under U.S. law, courts often create or evolve secondary liability rules,” which describe “the circumstances in which it is just to hold one individual accountable for the actions of another.” The evolution of these rules has produced “two major doctrines,” namely, “contributory liability and vicarious liability.”

    In contributory liability, “the defendant knows or has reason to know of infringement, and induces, causes or materially contributes to the infringing conduct of another.” In my opinion, a teacher falls in this category whenever he or she lends a textbook to the students with explicit or implicit instructions to simply secure for themselves reproductions of the textbook for classroom use. A teacher especially in tertiary education knows or should know that such an action would encourage infringement by the students.

    According to section 217.1 of the Intellectual Property Code (IPC) of the Philippines (RA 8293), one is “guilty of a crime” not only for infringing intellectual property rights but also for “aiding or abetting such infringement.” This “aiding or abetting” phrase provides our IP stakeholders with a basis for promoting, applying, and testing the concept of contributory liability. Perhaps associations of publishers and authors collectively should issue in a formal way this recommendation to educational institutions: start protecting your institutions from contributory liability by formulating, promoting, and implementing school rules that prohibit copyright infringement and the use of infringing copies by teachers and students.

    An amendment to the IPC proposed by House Bills 322 (Rep. Imee Marcos) and 3308 (Rep. Joey Salceda) will strengthen the concept of contributory liability. The Bills propose to add to section 216 of the IPC the clause that a person infringes also when he or she “enables or induces infringement by another person in which the person enabling or inducing the infringement has or reasonably should have knowledge of it and materially contributes to it.”

    There is another clause in the Bills which proposes that a person infringes when he or she “benefits financially from the infringing activity of another person who commits infringement, if the person benefiting has the right and ability to control the activities of the other person.” If this amendment were enacted, the IPC would have clearly accepted the concept of “vicarious liability.”

    In the United States, vicarious liability has been applied to department store owners and flea market operators who gave space to vendors who sold infringing goods. The owners and operators either received a percentage of the sales of the infringing goods or benefited from the increase in customers owing to the attraction of the infringing goods. If our IPC would accept vicarious liability, then an educational institution would have to be wary about renewing the contract of a photocopying entity that engages in copyright infringement even if it merely rents space within the campus.

    The problem of rampant illegal photocopying cannot be addressed by the government alone. There should be a united front from all sectors to protect IP creations and make the Philippines join the top ranks of nations who respect and enforce copyright. For sure, our country wants to be a major player in the global knowledge economy.

    We urge our legislators to amend the IPC in order to specify and strengthen the basis for secondary liability. We urge the publishers and authors to organize themselves better so they can do the following: lobby for the necessary amendments to the IPC, initiate and pursue a dialogue with school administrators on copyright protection, and if necessary, dare to test the concept of secondary liability.

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