Digital technologies have democratized the ability to create and re-create the culture around us. With the advancement of technologies, citizens have found a medium to express themselves that allow them to speak to a larger audience than ever before. Popularity is at the click of your fingers. Everyone could be an artist by mere posting of their performance online, in a platform like YouTube. Boyce Avenue, for instance, started their career by posting an online music video which spread across the world. Look at them now. They are not amateurs anymore; they are earning a lot from song revivals. People love their cover versions. It sounds good. Creativity is good.
But in as much as we want to encourage creativity, our law limits it. We do not have absolute right to create. It is regulated. We can only create and share so much. Why? Because creativity has to respect other rights too, particularly property rights. Our law protects the “original” creator. This is where Intellectual Property Laws come in the picture.
THE ORIGINAL LAWS
The creator’s right of ownership over his/her creation is protected under the Philippine Civil Code. According to the Civil Code, “ownership is acquired either by occupation or by intellectual creation.” (Art.712 of NCC) “By intellectual creation, the following persons acquire ownership:
1. The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work;
2. The composer, as to his musical composition;
3. The painter, sculptor, or other artist with respect to the product of his art;
4. The scientist or technologist or any other person with regard to his discovery or invention” (Civil Code, art. 721)
The Civil Code further states that “copyright shall be governed by special laws”. (Art.724) The relevant law in the Philippines is Part IV of Republic Act No. 8293, also known as the Intellectual Property Code of the Philippines. This law is based on the US copyright law and the principles of the Berne Convention for the protection of literary and artistic works.
Our copyright law does not require that a literary or artistic work be registered or that a notice of copyright be indicated in order to become entitled to copyright protection. It is enough that an original work be created since, under the law, copyright vests from the moment of creation. Our Supreme Court in the case of Kho vs. Court of Appeals (GR No. 115758, 19 March 2002) defined the proper subject of copyright protection, that is, works which are original intellectual creations in the literary and artistic domain, and held that the name and container of a beauty product are not copyrightable, but are proper subjects of trademark. In another case, in Joaquin Jr. vs. Drilon (GR No. 108946, 28 January 1999), the issue of which is whether or not the format of a television show, i.e., a dating game, is a proper subject of copyright. The Supreme Court held that copyright does not extend to an idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is embodied. The Court further ruled that copyright does not extend to the general concept or format of a dating game show. A format of a television show is not included in the enumeration of the classes of work entitled to copyright protection. Section 172 of RA 8293 enumerated the classes of works protected by copyright which include among others, literature (books, pamphlets, etc.), television and movie scripts, choreography, musical works (lyrics, song arrangements), advertisements and products, and art (drawing, painting and sculpture). These works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as their content, quality and purpose (Section 172.2). Derivative works are considered as new works and are therefore protected as much. This include 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 (Section 173).
Copyright grants the author of the work the legal right to determine how or whether the work will be reproduced, distributed, displayed, or performed, as well as the right to produce derivative works based on the original. Copyright law allows portions of a copyrighted work to be used without the author’s permission for specific purposes. This is referred to as “fair use.” Fair use allows for portions, or in some cases the entirety, of copyrighted works to be used for purposes such as for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research and other similar purposes (Section 185).
When intellectual property rights became a global issue, the Philippine government revised the rules on copyright to conform to international standards. Subsequently, related laws were passed in order to meet the demands of technology and its effects on intellectual property rights. President Benigno Aquino signed Republic Act 10372, an act amending certain provisions of RA 8293, on February 28, 2013. The amended intellectual property law created another office of IPO, the Bureau of Copyright and Other Related Rights, which would exercise original jurisdiction to resolve disputes relating to the terms of a license involving the author’s right to public performance or other communication of his work; accept, review and decide on applications for the accreditation of collective management organizations or similar entities; conduct studies and researches in the field of copyright and related rights; and provide other copyright and related rights service and charge reasonable fees therefore (Section 3 of RA 10372).
Two new subsections were added at the end of Section 171.11 to be known as 171.12 and 171.13, to include the definitions of ‘Technological measure’ and Right Management Information.
The most controversial in the amendment in relation to copyright is the deletion in their entirety of Sections 190.1 and 190.2 which allows importation of a copy of a work by an individual for his personal use without the authorization of the author of, or other owner of copyright in under the following conditions:
(a) When copies of the work are not available in the Philippines and:
(i) Not more than one (1) copy at one time is imported for strictly individual use only; or
(ii) The importation is by authority of and for the use of the Philippine Government; or
(iii) The importation, consisting of not more than three (3) such copies or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.
(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, that such copies do not exceed three (3).
This deletion is interpreted by some critics as a clear intent to disallow importation to the Philippines a copyrighted work, even if it is for personal use. The Board of IPL clarifies that this is not the intention of the law. They argued that by deleting these provisions under the amendment, there is no longer any limit to the number of copies that can be imported. The deletion of Sections 190.1 and 190.2 in fact allows for religious, charitable, or educational institutions to import more copies, for as long as they are not infringing or pirated copies, so that more Filipino students in the country may use such works. Section 190.3 was retained, even expanded to include exportation. It expands the power of the Commissioner of Customs in preventing infringement of copyright covering imported as well as exported works.
Some other provisions include the strengthening the campaign against illegal downloading of music via internet (Section 5 of RA 10372). It mandated special copyright considerations for the blind or for visually-and-reading impaired persons when reproduction is made in a specialized format and distributed for free (Section 11 of RA 10372). It removed the restriction on non-profit libraries by allowing them to make unlimited copies rather that just one copy of a published work (Section 13). It expands the rights of producers of sound recording to include authority to permit or restrict public access of such works, from a place and at a time individually chosen or selected by them (Section 20). It inserted after Section 220.2 of Republic Act No. 8293 the provision of disclosure of information to notify the owner of the copyright in question or his authorized agent of the seizure or detention to give him the option to take appropriate actions to enforce his own rights (Section 25). It added a new section mandating schools and universities to adopt intellectual property policies that would govern the use and creation of intellectual property with the purpose of safeguarding the intellectual creations of the learning institution and its employees, and adopting locally-established industry practice fair use guidelines (Section 27).
“EVERYTHING IS A REMIX”
Harvard Professor Lawrence Lessig in his speech in a conference discussed how our culture is changing our expression and creativity. He illustrated that remixes is a time-honoured tradition for call and response – that there is a creative call that asked for a culture to respond and invite people to share through technologies. He pointed out that there is a need for a copyright reform in order to align it with the technological developments. He proposed to deregulate amateur remixes. The law must leave amateur creativity free from regulation. Where the creativity is an amateur remix, the law should leave it alone. He further contends that the law should give up its obsession with the “copy” and focus instead on the uses of the copyrighted work in connection to the economic incentive that the copyright law was intended to promote. He challenges everyone as to what right we have to stop citizen’s creativity or what right do we have to discourage it.
CHANGE MAY NOT BE WHAT WE WANT, BUT IT IS WHAT WE NEED!
With the updated law, copyright regulation has been stricter than the old law. By the deletion of the provision of Sections 190.1 and 190.2 which allows the importation of a copy of a work by an individual for his personal purposes even without the permission of the author or other owner of copyright in the work provided it complies with certain conditions, connotes that balikbayans cannot now bring copies of copyrighted materials for personal use at all. The Board of IPO says that they enable Filipinos and foreigners to bring to the country unlimited copyrighted materials, so long as it falls under the fair use exceptions. Thus, any unauthorized copy may no longer be imported under any circumstances save only under Section 185 on fair use. It removes bringing home copies for personal use unless it falls under the fair use exceptions. Fair use means that it has to be for religious, charitable, or educational purposes; personal use is prohibited. Talk about fairness huh??!
The retention of Section 190.3 gives so much power to the Commissioner of Customs to make rules and regulations for preventing the importation of articles and for seizing and condemning and disposing of the same in case they are discovered after they have been imported. This gives the Commissioner the authority to seize any infringing materials and worst to arrest persons who brought the infringing materials even without a warrant. Imagine yourself going home to your country and in the airport you were held up because one of your ‘pasalubongs’ is allegedly an infringement of a copyrighted work. It would be inconvenient and annoying! The amendment would likely depict airport inconvenience to travellers brought about by the possible differences of interpretations of law enforcers.
As Professor Lessig pointed out, all around us are the consequences of the most significant technological and hence cultural, revolution in generations. Music, for instance. This industry has been changing to cope up with the face of our new culture. Cover songs are a hit nowadays. Sing someone else’s song, upload it in YouTube and boom you have a career! But relate it to our copyright law; is it legal to sing someone else’s song? Wouldn’t that be a form of “copying”? Cover song, although not expressly mentioned in the amended intellectual property law seems to fall in the catch all provision of “any form’’. But what if you compile and arrange popular songs in a single song? This is popularly known as the Mash Up. Is this compilation considered a new song that would fall under derivative work and is therefore protected by copyright law? The mash up transforms the works and under our law, transformation of the work gives the copyright owner to prevent such as part of his economic rights to it. Thus, Mash Up, if not license is a violation of copyright law. I have seen it online. People do mash up of songs, together with their pictures playing on it. They even give it to their love one’s as a gift. It has been one of the means of expressing someone’s feelings. Proposals are done by playing their love songs with their pictures on it. Those creations narrate a story. It shows “history” of a relationship. Should we really regulate these creations? Should we discourage expression of one’s feeling through this means? What right do we have to stop people from sharing their thoughts and feelings through social media?
As every form of freedom of expression, it is not absolute. It has to give way too to other rights, such as property rights of the original creator. It doesn’t mean that property right take precedence over the freedom of expression. The premise is that the manner of expressing such freedom must be fair and reasonable. We need to draw a line as to what is allowed to copy. In doing such, we need to take into account the use of such copy. If such copy is use commercially, then such must be restricted. Non-commercial use cannot be prevented, except if it tends to degrade the work of the copyright holder.
Indeed, the real issue that has to be addressed here is the extent of protection given to original “creators”. What harm could it be if we create for the love of it, not for the love of money? I agree that amateur creations must be encouraged, not criminalized. If the work is created for the fun of it, why penalized it? It’s a different scenario if the work was re-created for profit in which case the economic right of the original creator to profit has been violated.
The provisions outlined in our copyright law had been so worded broadly and goes beyond the comprehension of an ordinary citizens, thus difficult to relate to everyday life. It blinds ordinary citizens to its impact and gravity to their everyday actions. Citizens where hardly aware they are infringing another’s right. Through social media, we post and share almost everything. Peer-to-peer sharing is the enemy of copyright. People are “stealing” other’s work through sharing. The copyright regulation makes it difficult for a wide range of creativity that any free society would allow to exist, legally. We live in a democratic country. We hear music revivals everywhere. Even movies are being reproduced, giving it a new twist, as performed by the most popular artists of our time. People are increasingly creating something new out of the old. Through sharing, we belong to a community. Through sharing, we know what’s happening on the other side of the world. This is where we get informed and involved. Why restrain people from being connected with others?
Aside from the issue of sharing, we have the issue of downloading. TV series, music, movies and even e-books are now free via torrent and kindle. Although there are regulations for downloading copyrighted materials, it is difficult to suppress, especially in the Philippines. We hardy had the means and resources to monitor illegal downloading. People love things that are free. Let’s face it. We Filipinos love cheap stuffs. We would rather buy pirated CDs which we can throw out after watching or copying it than buying an expensive original copy. It’s just so practical. Unless you are an artist yourself, you do not take into consideration the labor that has been put up in making that film or song. That’s the reality. Piracy is everywhere. Piracy is practicality. This justifies a strict enforcement of the intellectual property law. It has to be regulated or else no one would invest in these arts. The works of the artist has to be protected, in as much as everyone’s creativity must be. In this digital age where everything is available online, limitless downloads could be afforded and sharing is like breathing, we need to set ground rules. But such rules must not be broad to brush aside people’s freedom of expression. Copyright reforms in our country should be dynamic and evolving. It should keep up with the changing times. Intellectual property laws must be aligned with State’s policy to protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people. These laws must not only protect the owners of the original works, but must also encourage creativity.
WE ARE ALL ACCOUNTABLE
In the ideal world, information, music and other artistic and literary forms of expression must flow freely and be enjoyed by the rest of the world. But that is not how the world works. We live in a real world where rights have to be protected. We are part of a community where everyone has to take responsibility and accountability, either as copyright owner, user or enforcer. We are a star in our own. Even if we belong to different points of views, we should respect each other’s right to encourage the flow of artistic expression for the greater good. There is a star in each of us and we must protect it.
In the Philippines, we only have a handful of Supreme Court decisions that deals with copyright. We may have good laws, but the problem lies in the enforcement of these laws. To put it bluntly, we have amended a good law, which in fact has seldom been, or worst never been implemented. I hope that the lawmaker would look at it once again and provide a law that would strike a balance between the rights of copyright holders and people of new generations – that the implementation would neither restrict people’s creativity nor violates owner’s right.
“When we copy, we justify; when others copy, we vilify” – Steve Jobs