Copyright or Copywrong?

Josemaria Carlo F. Magsino

Within just two months, the way we lived our lives has immensely changed. Essentially everything is now done within the confines of one’s home, be it work, exercise, or hobbies. For the privileged, the daily routine includes time for binge-watching different series, movies, or vlogs. As of late, foreign series and movies have been circulating and made available on different on-line streaming platforms. Understandably, not all viewers will be able to fully comprehend what foreign actors and actresses are saying. Unless one is a polyglot, a viewer would necessarily have to rely on subtitles or “subs” for them to fully appreciate a particular show.

Subtitles are the text version of characters’ dialogs, written in a specific language (e.g., English, Filipino, etc.), and are usually displayed at the bottom part of a video screen. Interestingly, these subs may or may not have been prepared by the producers or owners of the videos on which they are used. Subs prepared by other parties, such as “fansubs,” are not commissioned by the video producers or owners, making them the subject of several legal disputes in various jurisdictions.

In 2017, a Swedish court ruled against citing that its distribution of subtitles constituted copyright infringement. The defense claimed that subtitles were creative works which are separate from the movies themselves. They argued that movies were composed of both video and audio; and that the subtitles were merely supplementary. Founder Eugene Archy claimed that the subtitles were “creative works in their own right.” Unfortunately, the court found otherwise and ruled that the subtitles were part of the movies themselves and thus, the unauthorized distribution of subtitles resulted in infringement.

Meanwhile in the Netherlands, “fansubbing” has been declared illegal. The Dutch court ruled that subtitles may be distributed only with the consent of the copyright holder. Otherwise, the distribution will constitute copyright infringement. In Australia, certain groups from the entertainment industry sought a court injunction ordering certain internet service providers to block websites offering copyrighted material, including those which distribute “fansubs.”

Consistently in all these disputes, subtitles were subject to copyright infringement cases. Would this be the case under Philippine law? To date, there has been no case involving the issue of whether or not the creation and distribution of subtitles and fansubs constitutes infringement.

Under Philippine law, copyright infringement refers to the violation of any of the economic or moral rights to which a copyright holder is entitled. Under Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines (IP Code), a copyright holder has the exclusive right to carry-out, authorize, or prevent, among others, the reproduction of the work; the dramatization, translation, or other transformation of the work; and other communications of the work to the public.

Will the creation and subsequent distribution of subtitles result in the reproduction, dramatization, translation or other communication of a “work” to the public and thus give rise to copyright infringement? It seems that the matter is arguable either way.

On the one hand, subtitles may very well be considered as a translation and communication of a “work”, i.e., the movie, to the public. The subtitles translate the dialogue into a particular language and its inclusion in the movie, even as a mere text, results in a form of communication to the public.

The defense’s argument in the case that subtitles are separate works seems to be the basis for a viable contrary argument. It may be said that subtitles are treated as separate works from the movies and may even be considered as copyrightable material in themselves. Hence, the creation and distribution of these subtitles do not refer to the reproduction, dramatization, translation or other communication of a “work.”

Under the IP Code, copyright protection pertains to either original literary and artistic works and to some derivative works. While literary and artistic works refer to intellectual creations in the literary and artistic domain protected from the moment of creation, derivative works are those which are either: dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.

The subtitles may be considered as the translator’s (sometimes termed as a “subber”) own creative work and would necessarily require a separate creative process for their conception — while the dialogue’s direct English translation is “it’s better to be safe than sorry,” the subber may instead use the idiom “look before you leap.” The subtitles may also be considered as an original compilation by reason of the selection or coordination or arrangement of the words chosen by the subber. As a form of derivative work, a subtitle may be considered as an entirely separate work placing its creation and distribution beyond the ambit of copyright infringement.

Until such time that these issues and arguments are raised in an actual case in court, we can only surmise on the legality or illegality of the creation and distribution of these non-commissioned subtitles or fansubs. In the meantime, enjoy binge-watching responsibly and always keep safe and healthy!

This article is for general informational and educational purposes only and not offered as, and does not constitute, legal advice or legal opinion.

Josemaria Carlo F. Magsino is an Associate of the Intellectual Property Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).

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