IP Views

“#Sinotto: Copyright over Translations”
September 12, 2012
By : Jasmine Solivas-Dayacap

Did Senator Tito Sotto III commit actionable infringement of Robert F. Kennedy’s copyright over the Day of Affirmation Address when the senator translated portions of the speech and used the same in his Turno En Contra? There is basis to argue that there was no actionable infringement committed. Atty. Hector A. Villacorta’s favorite defense of “public domain” may fit the bill this time around, because it appears that under the copyright laws of the United States, Mr. Kennedy’s Day of Affirmation Address is in the public domain. [See: http://www.jfklibrary.org/Asset-Viewer/oS_BHcFynUepnkv95-EnSg.aspx] This is most likely because Mr. Kennedy’s Address is considered a work of the U.S. government. In 1966, Mr. Kennedy, then a U.S. Senator, travelled to South Africa upon invitation to speak by the National Union of South African Students (NUSAS), an anti-apartheid organization. On 6 June 1966 at the University of Cape Town, South Africa, Mr. Kennedy delivered his “Day of Affirmation Address,” also dubbed “A Tiny Ripple of Hope.” Arguably one of the finest speeches ever delivered in the history of civilization, it is also available for public consumption as an unprotected work of the U.S. government which lies in the public domain.

In the Philippine jurisdiction, subject to certain conditions, no copyright subsists in any work of the Government of the Philippines. You may use without liability Mr. Sotto’s works as a statesman. But under our copyright law, Mr. Sotto has the exclusive right of making a collection of his speeches, lectures, sermons, addresses, and dissertations—so, for those planning to make a compilation of Mr. Sotto’s eloquent speeches, you will need to obtain license from Mr. Sotto first.

But for purposes of academic discussion, assuming the speech is not in the public domain, what are the arguments for and against the accusation that Mr. Sotto committed copyright infringement for translating an English work into Tagalog without permission from the author?

For easy reference, below is a matrix showing the portions of Mr. Sotto’s speech and the portions of Mr. Kennedy’s speech that were translated by Mr. Sotto:  

Copyright is a bundle of rights consisting of economic rights and moral rights. Among the economic rights comprising copyright is the exclusive right to carry out, authorize or prevent the dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work. [Section 177.2, IP Code] In short, the copyright owner has the exclusive right to make a derivative work based on his original work. The derivative work itself may be protected by copyright, but the creation of the derivative should never prejudice the economic and moral rights of the original author over his original work.

If Mr. Kennedy’s speech was not in the public domain, Mr. Sotto appears to have infringed upon Mr. Kennedy’s right to make a derivative work when he translated portions of the work from English to Filipino, without Mr. Kennedy’s consent.

Apart from economic rights, certain moral rights are also part of the bundle of rights subsumed under copyright. Among these moral rights is what is often called the “attribution” right, which is the right to require that the authorship of the works be attributed to the author thereof. [Section 193.1, IP Code] Mr. Kennedy’s right of attribution appears to have been infringed by Mr. Sotto when the latter claimed that his words of his speech were his own. Technically, the words could not have truly been his own, as per his own admission, he translated Mr. Kennedy’s words in Filipino.

From the foregoing, Mr. Sotto appears to have in fact infringed upon Mr. Kennedy’s copyright, but is this actionable infringement?

Under prevailing jurisprudence in the United States, if Mr. Kennedy were to charge Mr. Sotto with copyright infringement, he would have to prove the following elements: (1) ownership of valid copyright, and (2) copying or appropriation of constituent elements of the work that are original. [Feist Publication, Inc. vs. Rural Telephone Service Co., 499 U.S. 340 (1991)]

With regard to the first element, as earlier mentioned, Mr. Kennedy does not appear to enjoy copyright protection over his Day of Affirmation Address, for this belongs to the public domain. But for purposes of discussion, let us assume that Mr. Kennedy is able to prove that he owns a valid copyright. Mr. Kennedy must now prove the second element, i.e., copying or appropriation of constituent elements of the work that are original.

To be actionable, the copying or appropriation must be substantial and what must have been copied are the original or copyrightable elements of Mr. Kennedy’s work. Put another way, there must be substantial similarity between the infringing work and the protected elements of original work.

There is dearth of guidance in Philippine jurisprudence of copyright infringement, but in Habana vs. Robles, our Supreme Court held, viz:

When is there a substantial reproduction of a book? It does not necessarily require that the entire copyrighted work, or even a large portion of it, be copied. If so much is taken that the value of the original work is substantially diminished, there is an infringement of copyright and to an injurious extent, the work is appropriated.

In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute piracy.

The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its gravity by an appropriate understanding thereof. Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright. [Habana v. Pacita, G.R. No. 131522, 19 July 1999].

Our Supreme Court’s ratiocinations on substantial similarity are echoed by United States courts. Some courts have ruled that substantial similarity “requires that the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component concerns the copying of expression, rather than ideas, a distinction that often turns on the level of abstraction at which the works are compared. The quantitative component generally concerns the amount of the copyrighted work that is copied, a consideration that is especially pertinent to exact copying.” [Ringgold v. Black Entertainment Television Inc., et al., 126 F.3d 70 (2d. Cir 1997)] Some courts have likewise adopted the “fragmented literal similarity” put forth by Professors Melville B. Nimmer & David Nimmer. According to the latter, the defendant sometimes copies only a portion of an entire work, but does so verbatim. Such “fragmented literal similarity” may warrant a finding of substantial similarity if the fragmented copy is important to the copyrighted work, and of sufficient quantity. [see Palmer v. Braun, 287 F.3d 1325 (11th Cir. 2002)]

The entire Day of Affirmation Address consists of 4,023 words, and Mr. Sotto appropriated and translated a few sentences, consisting of 117 words. It is possible that those 117 words of Mr. Kennedy, while truly beautiful and powerful, might not be deemed as adequately important to the speech as a whole, or of sufficient quantity. It is arguable whether so much of the Day of Affirmation Address has been appropriated by Mr. Sotto such as to substantially diminish the value of the original work or to an injurious extent. Thus, Mr. Sotto could argue that such de minimis appropriation of Mr. Kennedy’s speech is insufficient to constitute substantial similarity to support his defense that there was no actionable copyright infringement. Mr. Kennedy, on the other hand, could argue that the portion of his speech that Mr. Sotto appropriated is the very heart of the entire speech and thus most important to the entire work. He could add that the portion is the most iconic and recognizable of the phrases in the entire speech, and Mr. Sotto appropriated the same in toto and to an injurious extent. Mr. Kennedy could thus argue that there is substantial similarity as to warrant actionable infringement on the basis of fragmented literal similarity.

Another defense to copyright infringement is fair use. Fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. The following factors are considered in determining whether any use is deemed fair use: (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 for or value of the copyrighted work. [Section 183, IP Code.]

Mr. Sotto could thus argue that (1) his appropriation and translation of Mr. Kennedy’s work is not for a commercial purpose, (2) Mr. Kennedy’s work is a speech that is political in nature, (3) the amount and substantiality of the portion of Mr. Kennedy’s work that Mr. Sotto used, in relation to the copyrighted work as a whole, were de minimis, and (4) Mr. Sotto’s appropriation of the work will not prejudice the potential market for or value of Mr. Kennedy’s work. However, he must also prove that he used Mr. Kennedy’s words for criticism, comment, news reporting, teaching, scholarship, research, and similar purposes, as contemplated by the fair use defense.

These are some of the arguments for and against the accusation that Mr. Sotto committed copyright infringement for translating an English work into Tagalog.

In summary, considering that the Day of Affirmation Address appears to be in the public domain and that its author enjoys no copyright over the speech, Mr. Sotto has not committed any actionable copyright infringement. Even if we assume that there was valid copyright to the speech, Mr. Sotto would be entitled to assert the defense of fair use, considering that the use of Mr. Kennedy’s words was within the context of legislative proceedings. It could very well be argued that there was no diminution in the value of the speech; in fact, the controversy may have drawn more people to seek out and read the entire original text of one of the finest speeches ever delivered in history.

This article in no way discusses whether Mr. Sotto is guilty of plagiarism or intellectual dishonesty—matters that are more ethical or moral in nature. Those matters are not bound by technicalities of law and jurisprudence. Plagiarism and intellectual dishonesty may be more relevant to the voting public’s forbearance for competence, morals and integrity in their public officials. Mr. Sotto had indeed claimed that his speech was his own even when he knowingly translated from English to Tagalog some third party’s words. Whether such actions make Mr. Sotto undeserving of his title as a Philippine statesman will probably be decided in another forum—perhaps, as Sarah Pope suggested, when Mr. Sotto is up for re-election.

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