THE PROGRAMMER’S

SOURCE CODE AND THE

INTELLECTUAL
PROPETY LAW
Reproduction of Computer Program
In reproduction of a computer program this is
only the lawful of the owner who if authorized by
law to make a back-up copy of his/her licensed
copy of the software. The lawful owner is the one
who acquired the product form the authorized
distributor of the product.
No matter how much we take good care of our CD’s which
contain software (computer program), it may incur defects and
may be subject to a hardware failure. For this reason, The IPC
allows the lawful owner the reproduction of one back-up copy
of a computer program without the authorization of the author
of, or other owner of copyright:

a)The use of the computer program in conjunction with a

computer for the purpose, and to the extent, for which the
computer program has been obtained; and

b)Archival purposes, and, for the replacement of the lawfully

owned copy of the computer program in the event that the
lawfully obtained copy of the computer program lost ,
destroyed or rendered unusable.
 Are Computer Programs Considered as the
Trade Secret?

Let us first defined what a trade secret is.

A trade secret is defined as a plan or a process, tool, mechanism or compound known on to it’s owner and those of his employees to whom it is necessary to confide it . It is also extend 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:
Is used in one’s business
Gives the employer an opportunity to obtain an advantage over competitors who do not possess the information.
So, if computer programs will be considered a “trade
secret”, then it would have the effect of giving the employer
the right to restrain their programmers to reveal the code and
use them outside.

But in general programs are “NOT TRADE SECRET” .

However, this rule admits of an exception.

To illustrate: Last May 2011 while taking my halo-halo at

RAZON’s, one of the customre’s asked one of the service
crew , “kakaiba ang lasa ng gatas niyo ah. Anong gatas ang
ginagamit niyo?” To that , the service crew responded, “
sorry po ma’am hindi po kami allowed sabihin...”
In the illustration , the above secrets have a direct relation with
respect to the nature of Razon’s business. However, the source of the
code of the system cannot, by any stretch of imagination be
considered as a “trade secret.”
The reason is very abvious. It is only because the source of the
program will NOT give Razon an opportunity to obtain an advantage
over it’s competitor’s who do not possesses the information. Neither
the revelation of the program could affect the business of Razon.
But, in contrary, if Andrei is an employee of Microsoft Corporation
whose main task is to develop and maintain programs for Microsoft,
the source code shall be considered as “ trade secret.” Only Microsoft
Corporation can improve it’s current software because it is the only
person, along with it’s employees, who have the source code of all
Microsoft’s products. If the source code will be illegally revealed to
other’s , the exclusivity of the source will be lost and hence, will
adversely affect the business of Microsoft.
What is Decompilation ?
It is the reproduction of the code and translation of
the forms of the computer program to achieve the
inter-operability of an independently created
computer program with other programs may also
constitute fair use.

Decompilation is an example of a Fair Use of

Copyright Work which means doing so will not
constitute copyright infringement.
 Fair use of Copyrighted Materials
In determining whether the use made of a work in any particular
case is fair use, the factors to be considered shall include
(Sec. 185, RA 8293):
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
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.

And in summary, if we analyze the four factors, if the economic rights of a copyright owner will be adversely affected, the use of a
copyrighted materials materials is not fair, and will constitute copyright infringement.
 Limitations on Copyright
Limitations of copyright refer to specific
conditions under which copyrighted works can
be used without the need to seek permission
from the holder. These include situations
like fair use, educational purposes, news
reporting, and research, among others.
 The following acts shall not constitute infringement of
copyright:

a) The recitation or performance of a work, once it has been

lawfully made accessible to the public , if done privately and
free of charge or if made strictly for a charitable or religious
institution or society; (Sec. 10(1), P.D. No.49)

b) The making of quotations from published work if they are

compatible with fair use and only to the extent justified for
the purpose, including quotations from newspaper articles
and periodicals in the form of press summaries: Provided ,
that the source and the name of the author , if appearing on
the work, are mentioned; (Sec. 11, third par ., P.D. No. 49)
c) The reproduction or communication to the public by
mass media of articles on current political , social,
economic, scientific or religious topic, lectures, addresses,
and other works of the same nature, which are delivered in
public if such use is for information purposes and has not
been expressly reserved: Provided, that the source is
clearly indicated; (Sec. 11, P.D. No. 49)

d) The reproduction and communication to the public of

literary, scientific or artistic works as part of reports of
current events by means of photography, cinematography
or broadcasting to the extent necessary for the purpose;
(Sec. 12, P.D. No. 49)
 e)The inclusion of a work in a publication , broadcast, or other
communication to the public, sound recording of film, if such
inclusion is made by way of illustration for teaching purposes
and is compatible with fair use: Provided, that the sorce and of
the name of the author, if appering in the work, are mentioned;

f) The recording made in schools, universities, or educational

institutions of a work included in a broadcast for the use of such
schools, universities or educational institutions: Provided, that such
recording must be deleted within a reasonable period after they were
first broadcast: Provided, further, that such recording may not be
made from audiovisual works which are part of the general cinema
repertoire of feature films except for the brief excerpts of the work;
 g) The making of ephemeral recordings by a broadcasting
fforganization by means of its own facilities and for use in its own
broadcast;

h) The use made of a work by or under the direction or control of

the Government , by the National Library or by educational ,
scientific or professional institutions where such use is in public
interest and is compatible with fair use;

i) The public performance or the communication to the public of

a work, in a place where no admission fee is charged in respect of
such public performance or communication, by a club or
institutions for charitable or educational purpose only, whose aim
is not profit making, subject to such other limitations as may be
provided in the regulations;(n)
j) Public display of the original or a copy of the work
not made by means of a film, slide, television image or
otherwise on screen or by means of any other device or
process: Provided, that either the work has been sold,
given away or otherwise transferred to another person
by the author or his successor in title; and

k) Any use made of a work for the purpose of any

judicial proceedings or for the giving of professional
advice by legal practitioner.
 Copyright Infringement and
Plagiarism Distinguished
The Habana case held that copyright infringement
is synonymous with the term piracy. However, the
decision contains no discussions about the
difference between plagiarism and copyright
infringement. At this point, it would be best if we
distinguish plagiarism from copyright infringement.
 What is Plagiarism?
Plagiarism is the use of another's work, words, or ideas without
attribution. The word “plagiarism” comes from the Latin word
for “kidnapper” and is considered a form of theft, a breach of
honesty in the academic community.

What is Copyright Infringement?

As a general matter, copyright infringement occurs when a
copyrighted work is reproduced, distributed, performed,
publicly displayed, or made into a derivative work without the
permission of the copyright owner.
Can the Plagiarist Escape Liability if
he is in Good Faith?
NO, because if good faith is a valid excuse, no one can be
proven guilty of plagiarism for the simple excuse “ I was
not aware that he is the original author of that work...”

The purpose of REVIEW OF RELATED LITERATURES is

for the researcher to know what has been said and what has
been done about a particular subject of the research. 
“...Plagiarism is identified not through the
intent buth through the act itself. The objective
act of falsely attributing to one’s self what is
not one’s work, whether intentional or out of
neglect, is sufficient to conclude that
plagiarism has occured. Students who plead
ignorance or appeal to lack of malice are not
excused.”
The Supreme Court Resolution on Plagiarism
According to the SC, there is no commonly-used dictionary in
the world that embraces in the meaning of plagiarism errors in
attribution by mere accident or in good faith. Certain
educational institutions of course assume different norms in its
application. For instance, the Loyola Schools Code of
Academic Integrity ordains that “plagiarism is identified not
through intent but through the act itself”. The objective act of
falsely attributing to one’s self what is not one’s work, whether
intentional or out of neglect, is sufficient to conclude that
plagiarism has occured. Students who plead ignorance or
appeal to lack of malice are not excused.
 The Author and the Financer of
his work
The main objective of registering our intellectual
creation is to avail of the protection of the State so
that the creator of the worrk can have exclusive
rights over his work. There is no provision in the
intellectual property code that the State has the
obligation to finance the exploitation of the work of
the author.
Thus, if A was able to design the first
electronic car in the Philippines but was not
capable of producing enough electronic cars,
A cannot compel the government to finance
his work.

On the contrary, suppose the government

finances the inventor and/ or inventor’s work,
it will be accused of using the people’s money
for the benefit of a particular person, group or
corporation.