From Buenos Aires to Manila:Reforming Philippine Copyright Law with A Global Model

By Mark Anthony N. Manuel

I. Introduction: Stories We Know But Don’t See

II. Copyright Protection in the Philippines

III. The Lecture: Prof. Lessig’s View of Copyright

IV. Role of Copyright in the Philippines

V. Fair Use and the Global Trend in Copyright Protection

VI. Recommendation: The Path that Philippine Copyright Law Must Take

VII. Creative Commons: The Future of Copyright

 

I. INTRODUCTION: STORIES WE KNOW BUT CAN’T SEE

John is a prolific writer. His readers regard his works as a dose of fun and his stories as a font of inspiration. However, John has already decided that he would stop writing as he could not provide any more for the growing needs of his family. This is because his works are being copied and sold without his permission, thus depriving him of what is due to him.

Meanwhile, Make Believe Productions is a Filipino-owned film creator. It produces quality movies that breathe souls and nurture the hearts. Unfortunately, the company is already bankrupt and is soon to die by natural death. The management says that they cannot cope up any longer to heavy financial losses due to film piracy.

Mary is another casualty but not because of pecuniary consideration. She is a magnificent painter. Her paintings have a life of their own – beautiful, moving, exceptional. Regrettably, she feels sad that imitations of her masterpieces are being distributed without her consent. She just can’t see her works of art without her name on them. Thus, she says that she will not paint anymore.

We cannot imagine a nation without art, literature and motion pictures. We cannot afford to see a country without geniuses like John, Make Believe and Mary. The world will be such a boring, lackluster, lifeless place if that happens. [1]

Copyright laws are enacted to ensure that that boring world would not come into realty. They are created to make sure that the world would not run dry of creative ideas.

But as discussed in the 2013 Creative Commons Global Summit in Buenos Aires, the world of copyright is at a testing stage. There is now a growing conflict between the right of the people to share ideas and the right of authors to protect their rights within the bounds allowed by law.

 

II. COPYRIGHT PROTECTION IN THE PHILIPPINES

Copyright protection allows the free flow of ideas so that people will have access to original and innovative works that they can use to better themselves. It ensures humanity that writers and artists alike will not hoard ideas that are essential for national interest.

Recognizing this fact, it is mandated by no less than our Constitution that “the State shall 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, for such period as may be provided by law.”[2]

Consequently, Congress enacted Republic Act 8293 where it is explained that “the State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products.”[3]

In the landmark case of Habana vs. Robles[4], the High Court said that “infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright…”

We should not even look farther as the Ten Commandments provide “Thou shalt not steal.”

It is then apparent that copyright infringement is not only against the laws of man, but against the laws of God as well for it is a form of stealing. It is even worse than robbery of tangible things because it is done in private without the author knowing the commission of the crime.

.

III. THE LECTURE: PROF. LESSIG’S VIEW OF COPYRIGHT

Professor Lawrence Lessig, a Roy L. Furman Professor of Law at Harvard Law School, and one of Creative Commons’ founders and current Board members, presented a keynote at this year’s Creative Commons Summit held in Buenos Aires, Argentina last August.[5]

For the last decade, Lessig has been one of the leading advocates for a more open copyright system worldwide and a popular public face of Creative Commons.[6]

Professor Lessig said that there is a global call for the people to share their ideas electronically to add to cultural development.[7] Gone are the days when people just sit in the corner and wait for opportunities outside their homes to experience works of arts and literature. Today, Lessig said, technology has created a truly interactive world where people can experience cultural tours and intellectual interactions using the tips of fingers.[8]

Lessig explained that this kind of culture makes people feel empowered, entitled, and obligated to participate in the creation and recreation of their own cultures. He added that this makes possible the efficient consumption of creative works and efficient, at least amateur, production of creative works as it facilitates speaking, listening as well as reading and writing. It encourages a “read-write culture” and pushes against a “read-only culture” where people passively wait for creations to come their ways.[9]

However, Lessig was quick to add that the global trend is experiencing a trouble as it is being blocked by companies who use their money, influence and power to put the growing opportunity for cultural “mixing” to a standstill.[10]

These companies, in the guise of copyright protection, advocate an unreasonable strict rule of protection for copyright to the point that it would be fear rather than respect that would govern copyright protection. However, this kind of “defense” is problematic as the ultimate goal of copyright law is not to promote commercial exploitations but to encourage creative expressions.

IV. FAIR USE AND THE GLOBAL TRENDS IN COPYRIGHT PROTECTION

Prof. Lessig said that there is a thin line that separates copyright protection from valid use and distribution of creative works. This thin line is called “fair use.”

Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports.[11]

Lessig said that big companies are trying to tear down the right offered by the “fair use” principle by threatening internet users and sharers with lawsuits and expensive copyright litigations. He said that because of apprehension, these people simply surrender their fair use rights granted to them by law.

The Harvard Law professor furthered that this should not be the case, noting that people must argue against interpretations of copyright that could stifle innovation and discourse online.[12]

The same doctrine of fair use is incorporated in our own statutes. Section 184 and 185 of Republic Act 8293, the Intellectual Property Code of the Philippines, provides limitations on copyright in the form of fair use.

These acts which are allowed under the law include private and free-of-charge performance for a charitable or religious institution or society, and making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose.[13]

However, it is opined that the American model of the principle of fair use is quite different from that of the Philippines.

Prof. Susan Villanueva, a professor on Intellectual Property Law in the University of the Philippines College of Law, said that there are differences in the wording adopted by the IP Code vis-à-vis US jurisprudence.

Section 185.2 for instance, is a significant departure from the leading case of Harper and Row [Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)] which set the boundaries of fair use in the United States.[14]

Nonetheless, although there may be difference, the author believes that the fair use principle in Philippine IP Law is not far removed from the principle in US Jurisprudence.  The purpose of the principle in both territories is just the same – that is to provide a vehicle for people to re-create and re-invent creative works for the benefit of the public. In fact the amendments introduced by Republic Act 10372 demonstrate the efforts of the legislature to lean towards the United States Jurisprudence.

For instance, the term “multiple copies for classroom use” in the former RA 8293 has already been eliminated and has been substituted by the world “limited.” The “multiple copies for classroom use”  in some states in the US has been eliminated as well from their statute books. This is an indication of the Philippine law reflecting, or can we say copying, the US model.

This only lends proof to the fact that there is now a growing global concern on how fair use in copyright law must be treated, and that the Philippines is one of the countries that is recognizing this paradigm shift. Perhaps, our own lawmakers in the Philippines are getting the idea that our copyright law must adopt with the advent of technology and the culture of “sharing and mixing.”

V. ROLE OF COPYRIGHT IN THE PHILIPPINES

It is safe to say that in the Philippines the protection of copyright is not only for the benefit of the creative minds, but is essentially for the protection of the country as a whole.

Let us take for example the long term effect of copyright violation to the film and music industries and to the country in general. Millions of pesos in government revenues are lost every year from film and song piracy. This means fewer social projects, fewer classrooms, and fewer concrete roads. Not to mention the fact that films and music bear a cultural and social significance. To add, people who heavily rely on these industries to feed their families may lose their jobs because of piracy.

Disrespect for copyright poses danger to a country. Without respect for copyright, a state will soon be a land of feeble and dull citizens.

What is even frightening is that the nation is set into extinction once this occurs. For how could you expect people to throw the products of their imaginations that can pump up the economy open for public consumption if it would be easy for thieves to rob them of the fruits of their mental labor?

If we fail to protect the ideas of our people, we would also fail to encourage healthier idea sharing and discourse. This is scary – really, really scary.

However, a copyright law that leans toward the advantage of profit-generating companies also poses a hazard. As Professor Lessig said, the future of creative works does not dwell solely on original creations but on the ability of people to create “mixed” cultures from original creations. If the country limits itself from original creation, it would soon find itself miles away from countries that are able to cope up with the trend of “mixed cultures.”

Therefore, the government must make sure that there is a balance between the right of the original creator and of so called “mixers.”

VI. RECOMMENDATION: THE PATH THAT PHILIPPINE COPYRIGHT LAW MUST TAKE

With the dawn of the internet, it becomes harder and harder for the State to follow the mandate of the fundamental law of the land. Stealing ideas is just a matter of clicks – as easy as “copy and paste.” In just a few seconds, a stealer can use the original work as if he owns it. He can share it through social networks as if he was the one who laboriously thought about it. He can even print it out and pass it as a school project or part of his dissertation.

There are laws that forbid other to use and distribute copyrighted works without the author’s consent, but these are not enough as the government has little, if any, control on how its people behave.

Copyright owners in the Philippines are not left with any recourse as a bundle of laws, rules and regulations have been promulgated for their protection. However, the fact remains that unless people would respect the copyrights of their neighbors, the optimum potentials of these ideas would remain to be elusive.

Therefore, copyright laws must be centered not on punishment but on the promotion of respect to copyright. This is perhaps one of the setbacks in Philippine copyright law.

The author submits that an “iron-fist approach” in copyright administration will not work in the Philippines. Considering the upbringing of Filipinos, they cannot just be silenced by any threat or intimidation. What the author suggests is to devise a copyright regulation that is based on “respect” and a deeper understanding of the social, economic and cultural significance of copyright protection. This can be done by formulating self-regulating rules on property that inculcate a value of “respect to others’ property.” This is not easy with the status quo because people consider copyright as a mere “joke.” They do not see that copyright, just like any other right over tangible things, is a property right that cannot be stolen without the consent of the owner.

VII. CREATIVE COMMONS: THE FUTURE OF COPYRIGHT

Prof. Lessig kept on mentioning Creative Commons in his entire speech.[15] Creative Commons is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools. Creative Commons licenses are not an alternative to copyright. They work alongside copyright and enable you to modify your copyright terms to best suit your needs.[16]

It may sound crazy, but the author believes that a “CC-based regulation” should be adopted in Philippine copyright law as an alternative to a rather strict, business-oriented copyright rules in the country.

As the author sees it, there are several loopholes in the copyright system in the Philippines that can be solved by the ideas presented by Creative Commons. With the status quo, the government is burdened in choosing which side it would give more importance to – the economic impact of possible infringement or the social significance of idea sharing. This dilemma may virtually be gone with a CC-based approach as the copyright user would be given a wider spectrum of options for his copyright protection. He may choose whether to share his works as it is, or whether he would allow economic exploitation of his work, or whether he would be happy just seeing his name attached to his work. By this, the government and the law enforcers would not anymore be in the dark what to prioritize in case of reported copyright violations.

(Disclaimer: This article is written for academic purposes only. The views expressed by the author are that of a non-lawyer. They should not be treated as legal advise or legal opinion.)


[1] Lifted from the author’s essay “Only Respect” that won the Grand Prize in the 2013 National Essay Writing Competition sponsored by the Intellectual Property Office of the Philippines (IPO-Phil), the United States Embassy in Manila and the Korean Copyright Commission as part of the celebration of the World Intellectual Property Day 2013.

[2] Section 13, Article XIV, 1987 Constitution

[3] Paragraph 1, Section 2, RA 8293

[4] G.R. No. 131522, July 19, 1999

[5] Coates, Jessica. Lawrence Lessig to keynote CC Global Summit, last assessed 4:39 AM, 10/17/2013, available at http://wiki.creativecommons.org/Global_Summit_2013/Slideshows_and_notes

[6] Coates, supra

[7] Lessig, Lawrence. (2013/08/30). Conferencia de Lawrence Lessig: “Leyes que limitan la creatividad”. Retrieved from  http://www.youtube.com/watch?v=RIV1UE_RZ-c

[8] Lessig, supra

[9] Lessig, supra

[10] Lessig, supra

[11] Unites States Copyright Office, Can I Use Someone Else’s Work? Retrieved from http://www.copyright.gov/help/faq/faq-fairuse.html

[12] The Center for Internet and the Society. Lawrence Lessig. Last retrieved on 2013/17/10 at http://cyberlaw.stanford.edu/about/people/lawrence-lessig

[13] Section 184.  Republic Act 8293

Section 184. Limitations on Copyright. – 184.1. Notwithstanding the provisions of Chapter V, 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 a 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 or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing 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 brief excerpts of the work;

(g)           The making of ephemeral recordings by a broadcasting organization 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 the 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 institution 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 published, or, that the original or the copy displayed 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 a legal practitioner.

[14] San Juan, Brian. The Doctrine of Fair Use and the Use of Copyrighted Materials in the Internet. 2013/28/11. Retrieved at http://lawandict.blogspot.com/2009/11/doctrine-of-fair-use-and-use-of.html

[15] Lessig, supra

[16] What is Creative Commons. Last retrieved on 2013/17/10 at http://creativecommons.org/about

 

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