“ Picasso had a saying, good artists copy, great artists steal.
We have been shameless in stealing great ideas “
–Steve Jobs, 1994
( Interview about the creation of the Apple Macintosh )
“I will spend my last dying breath if I need to,
and I will spend every penny of Apple’s $40
billion in the bank, to right this wrong,
I’m going to destroy Android, because it’s
a stolen product. I’m willing to go thermonuclear war on this.”
–Steve Jobs, 2010
( Reaction to HTC’s 2010 Introduction of an Android phone that share the many features of the IPhone- Lifted from Steve Jobs Biography)
Steve Jobs’ statements on two separate occasions seems to justify the claim of the documentary entitled , “Everything is a Remix: Part IV “ when it claimed, “When we copy, we justify; when others copy, we vilify . It provides a rather interesting comparison of the evolution of man and social evolution as we know it today. This social evolution gave birth to the concept of Intellectual Property. It narrated that men came from the Last Universal Common Ancestor (LUCA) also known as the genes in our body and through the process of evolution, these genes copied, transformed and survived. It explains that culture evolves in a similar way; but instead of genes, memes, defined by Merriam Webster dictionary as an idea , behaviour , style or usage that spreads from person to person within a culture; through social evolution, are copied, transformed and combined. Unfortunately, it further adds, these expressed ideas are regarded by our system of law, which hardly acknowledges the derivative of creativity, as distinct lots with boundaries.
Watching the traffic lights change color while waiting for my turn to cross the street the other day, I could not help but be reminded of the proposed amendments to the Intellectual Property Code of the Philippines. It was mentioned in class weeks ago that it is only awaiting the signature of the President and I even remember hearing from our professor in Intellectual Property that if and when PNOY signs it into law, we should be afraid, more so, be very afraid of the would be changes. I had wondered if it had been given a green light or if the President had decided to give it a yellow status still.
Just today, I learned from the website of GMA Network that RA 10372 has been signed into law on February 28, 2013 after Palace claimed days before that PNoy was still closely studying the amendments. The same was transmitted to Director General Ricardo Blancaflor of the Intellectual Property Office on March 4, 2013.
Copyright is not expressly defined in our laws . Only pertinent terms have been defined under Section 171 of RA 8293. In the book of Funa, copyright is defined as a branch of that part of the law which deals with the rights of intellectual creators. The law protecting copyright is very strict since it endeavours to afford protection. More often than not ,the legalities of the provisions go beyond the comprehension of an ordinary citizen , making it difficult to relate them to everyday life, more so realize the gravity and impact of man’s unconscious actions in relation to infringement of another’s right.
History tells us that the Law on Copyright began upon the refusal of Parliament to renew the Licensing Act in 1695, paving the way for the presentation to the House of Commons of a bill which later became known as the Statute of Anne (1710) with a title that read “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.” This is recognized as the first Copyright Law.
In the article entitled “International Copyright Summaries” by Kenneth Crews, it was noted that there are many differences with respect to the standards of copyrightability among nations. Germany is said to have high standard of originality while United Kingdom is regarded to have very low standard. The article further notes that the basic structure of copyright law in over 140 countries is shaped by the requirements of the Berne Convention which specifies that “Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.
An issue we all seem to relate to is piracy. I headed to Makati Cinema Square and decided to conduct a social experiment. I asked several pirated CD or DVD patronizers why they resort to buying fake over original and I got answers along this bend, “ Why buy something way expensive if you will only watch it or listen to it once ? Highly impractical and waste of money.” Some even argued that pirated DVDs allow them to enjoy many movies without having to spend a lot . Oh yes, we Filipinos love cheap stuff, the cheaper the better and even better if we get it free. We brush aside the labor that went into the making of the songs and the films and other artistic works of art because we argue that our everyday struggles are just too much to still care about the people in the upper part of the pyramid. The justification lies along the argument of practicality. At least that’s how I see it based on the interviews I made .
In recent months, news agencies have announced that through the efforts of the local government and the Optical Media Board ( OMB) , the streets of Quiapo and Makati Cinema Square have been dropped from the notorious markets list in selling pirated CDs and DVDs. But who are we kidding ? One only need to walk in Makati Cinema Square to realize that behind the clothes being sold are boxes and boxes of pirated discs for sale. The quantity has not changed, only the strategy has changed since they now employ people who follow customers around while whispering, “ Ma’am/Sir, DVD ?” Unfortunately, we seemed to have alreadembraced a culture of piracy.
For a non expert, it is easy to make stipulations as to why copyright is such a big issue for the government and copyright owners. For authors and copyright owners however, such a culture of mere practicality has no place in society, and such unauthorized copy and use of artistic and literary materials which are products of their genius mean millions of money down the drain. Under the amended law, the Intellectual Property Office explained that the secondary liability of mall owners arises when the latter benefits from the infringing activity, have been given notice of the infringing activity and the grace period to address the complaint and had the right and activity to control the tenant.
There have also been claims that piracy funds terrorism although these claims have remained unsubstantiated. But copyright infringement is beyond buying fake discs. Years ago, Barbara Streisand fans complained about Salbakuta destroying the sentimental impact of the song “Evergreen” by incorporating lines of the song in the chorus of their song “Stupid Love”. The reason behind copyright protection however is further than sentimental reasons.
In a fast paced and technologically advanced world, everything seems to be available at one’s fingertips. As potential markets expand, the expansion allows greater opportunity for abuse, whether we know it or not. For a lucky few , the internet is a stage and everything but a feared dungeon. Take the case of cover songs for instance where the likes of Charise Pempengco , Justin Bieber and the random girl at the mall got their instant fame. The formula seems easy, sing someone else’s song, upload it on YouTube and make people notice. Seems harmless right ? But since we are on the subject of copyright protection, it must be asked; “ Is it even legal to sing someone else’s song ?”
Section 172 of RA 8293 requires the element of originality to enjoy copyright protection. Section 172.1 (f) expressly includes musical compositions with or without words as among the works which need to be original. Given this requirement, cover songs , cover versions or what we popularly call in the Philippines as revivals become violative of the copyright law precisely because they are copied.
Another type of music which is changing the face of the music industry is Mash Up. Typically used to pump up the energy in bars, a mash up music as defined in Wikipedia is the blending of pre recorded songs by seamless overlay of vocal tracks. Sometimes, as much as ten songs are incorporated to make a single track making the original songs impossible to recognize. One may ask , “ If the original songs become unrecognizable and are merely used as raw materials for someone else’s creative work, how would it destroy or copy the original to the extent that it prejudices the owner of the original ? “
The basis of the argument in favor of copyright protection in this case is that though making the original appear unrecognizable, mash ups transform the works and under our laws, particularly in Section 177.2, the dramatization, translation, adaptation, abridgement, arrangement, or other transformation of the work gives the copyright owner reason to prevent the change based on his economic rights. The solution for individuals who want to use samples of work is to license.
A famous case on copyright infringement would be Pirate Bay, the largest torrent hosting website on the internet whose moderators faced trial in Sweden after media firms like Sony and Warner Brothers sued them for promoting other people’s infringement of copyright laws. In their defense, Frederik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmsioppi and Carl Lundstrom argued that they are digital libertarians and that they cannot be prosecuted for copyright theft because the content is not hosted on their servers. The defendants were thereafter found guilty and sentenced to a year in jail and a $3.6 million fine.
Not very far behind is the issue of downloading. I personally believe the rules must have some flexibility with regard to this. The fair use doctrine is actually a very welcome part of the copyright law, until the amendments that is.
Let us examine fair use from around the world.
Fair Use as defined in the book of Funa is a privilege in other than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner by the copyright. It’s earliest use is said to have been recorded in the case of Lawrence vs. Dana where the term was first coined.
Fair Use in Section 107 of the United States Copyright law considers four instances where reproduction of work may be considered fair. These are
1.The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2.The nature of the copyrighted work
3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4.The effect of the use upon the potential market for, or value of, the copyrighted work
In Canada, fair use is replaced by fair dealing. The fair deal clause under Section 29 of the Canadian Copyright Act allows use of copyright material for purposes of criticism, research and private study provided it is done in a fair way.
The Supreme Court of Canada considers these six factors:
The purpose of the dealing (research, private study, criticism, review)
The amount of the dealing (whole work versus a chapter, a table or a quote)
The character of the dealing (single copies are more fair than multiples)
Alternatives to the dealing (Links or licenses available)
Nature of the work (limits how much to use through institutional policy)
The effect of the dealing on the original work (loss of $$$, reputati on to the creator)
In the Philippines, the Doctrine of Fair use is enunciated in Section 185 where copyrighted work for criticism, comment, news reporting, teaching, scholarship research is not considered infringement of copyright.
Determination of Fair Use must consider the following factors :
(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education 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
(d) The effect of the use upon the potential market for or value of the copyrighted work.
The amendment related to fair use , although more recent, appears to me as more backward than the old law I find acceptable.
Section 185.1 of RA 8293 provides that the fair use of a copyrighted work for criticism, comment, news reporting , teaching, including multiplecopies for classroom use , scholarship, research and similar purposes is not infringement of copyright. Under the amended law, multiple has been replaced with the word limited. The lack of further explanation as to this limit scares me because it does not support intellectual advancement in the modern times. Most areas in the Philippines do not have access to schools, teachers and books. Far flung areas rely on volunteers or teachers to the barrios who more often than not cannot as well afford to buy books to distribute to students. This is where technology should come handy. But if downloading songs or books that these instructors or volunteers can carry with them and distribute to students carries with it a limit ans ultimately a violation and a sanction even for classroom use, what more will these students learn ?
Copyright is synonymous to protection and laws around the world change from time to time through amendments to further provide security to those who are entitled to protection. I think this is the very same reason behindthe passage of what is now called as Republic Act 10372 amending certain provisions of the Intellectual Property Code of the Philippines.
The signing of the bill into law was not well received . Moderators of the popular website Democracy.Net.Ph for instance issued a statement expressing disappointment over the new law which they consider flawed, against the exercise of constitutional rights and biased against stakeholders.
In RA 8293, Section 190.1 permits importation for personal use without obtaining authorization from the author or copyright owner provided it does not exceed three copies. Such liberality however is justified under 190.2 where the law reiterated that such allowance may not be used to violate the rights of the copyright owner or limit the protection secured by the act . RA 10372 is being frowned upon for the deletion of the above mentioned sections. In an article by journalist and political blog writer Raissa Robles, it was claimed that the amendments to the Intellectual Property Code especially in relation to the above cited sections erased the right of Filipinos to bring home music, movies and books from abroad.
In response, the Intellectual Property Office argued that contrary to the claim of Ms. Robles, the IP Code amendment actually gives Filipinos better access to copyrighted works from abroad since the deletion of said sections mean there is no longer a limit to the number of copies that can be imported. The IPO is arguing based on the benefit of International Exhaustion which is explained in the very same article
Another arguable point is the implied warrantless searches and seizures under Section 7(d) of the amended law which reads as follows.
“SEC. 7. The Director General and Deputies Director General. –
“(d) Conduct visits during reasonable hours to establishments and businesses engaging in activities violating intellectual property rights and provisions of this Act based on report, information or complaint received by the office
University of the Philippines College of Law Professor JJ Disini expressed concern regarding this extended power of the IPO arguing that in the absence of the need to secure warrants, it appears that victims of Intellectual Property rights violations are given more rights than the victims of heinous crimes. In addition, at sight it also appears to me that Section 7.1 (d) contradicts Article 3 Section 2 of the Philippine Constitution which reads :
Sec. 2. The right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature shall be inviolable and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce , and particularly describing the place to be searched and the persons or things to be seized.
The amended law also seems to be headed towards expansion and not merely extension of protection. Before the amendment, moral rights are protected during the lifetime of the author and fifty years after his death. In the amended law, particularly Section 198.1 thereof, moral rights shall last during the lifetime of the author and in perpetuity after his death. The extension of copyright protection defeats the very purpose of Intellectual Property which is to allow the public to enjoy use of the thing formerly subjected to copyright protection after it has entered public domain. This access is believed by many to encourage innovation. While the IP law seeks to reward the creator of the work by granting him exclusive rights while alive, extending the term of protection long after he is dead, more so in perpetuity, does not in any way remain consistent with rewarding creativity nor giving necessary compensation. The law , by the time the work enters public domain, has already afforded the copyright owner ample time to exclusive enjoyment of his right to the exclusion of others.
We have varied reactions about the passing of the amended law but rules are rules and while we hope for more appropriate ones as we voice out our oppositions, we need to recognize theirsupposed value to society and to give our fair share to proper adherence and implementation. The rules of copyright from around the world all seem to funnel down to very basic solutions. The most important is to determine if it falls under the doctrine of fair use.
The website desktop-documentaries.com provides ways and means to stay out of copyright related problems when doing a film. These, according to the site author includes creation of all your own content, use of content in the public domain and use of content made available under a Creative Commons License. In case one still needs the work of others to achieve the films desired substance, one needs to abide by a legal checklist composed of getting permissions and clearances, checking for facts and fairness and making certain all ownership.
In light of recent developments in the field of Intellectual Property, it is just proper to ask, does RA 8293 as amended provide the necessary reforms to balance the ever so capitalist copyright law as we know it ?
I try to bring out my own psychological weighing scale. Much like Boy Abunda’s magic mirror, I venture into introspection and analyze the impact of the amended law to my life.
Will the reforms result to opportunistic legislation , trampling on constitutional rights and defeat of the very purpose of the law. At the moment, it appears to me that it will.
Do we need copyright reform ? To me, the answer is a resounding yes.
To be fair, I would like to think that perhaps this too were in the minds of the proponents of the amendments. Not everything about the amended law is unworthy of applause. One provision I particularly find acceptable is Sec. 184 of the amended law which reads:
Sec. 184. Limitations on Copyright
” The reproduction or distribution of published articles or materials in a specialized format exclusively for the use of the blind, visually and reading impaired persons: Provided, That such copies and distribution shall be made on a nonprofit basis and shall indicate the copyright owner and the date of the original publication.
Sadly, the amendments , in an effort to keep up with the changing times , got lost in diverging roads and took the road most taken, swift, fast, but nonetheless understudied. Should further changes be undertaken in the future ? Yes. I hope our lawmakers can sit down and carefully concoct a win win recipe balancing both the interest of the copyright owners and the people atlarge.
In an ideal world, information , music and other artistic and literary forms of expression should flow freely and be enjoyed by the rest of the world. After all, the urge to share is very natural. But that is not how the world operates. We live in the real world where rights have to be protected and where equilibrium remains elusive. At the end of the day, it all boils down to the need to recognize responsibility and accept accountability for our actions whether or not we are the copyright owner, the copyright user or the law enforcement agency. In my point of view, further copyright reforms will have to reaffirm the very purpose for the country’s intellectual property law which is to encourage the flow of artistic expression and useful inventions for the common good.
With the election season in full swing, it is with a heavy heart that I voice out my observation that the padrino system has devoured the integrity of how our legislators enact laws; where the I watch your back you watch mine mentality where the interest of the investors are highly protected is undeniable. Stakeholders seemingly become synonymous to stockholders.
I am not against the copyright law. I am actually for its noble goal of giving credit and protection where due. I hope better legislation can reverberate this goal and make it happen.
I am a small voice in Juan’s huge universe of complicated rules but I hope that Step Juan (one), my baby step towards my participation in better policymaking can soon echo the sentiments of the ordinary Juans in this country.
The Historical Law and Economics of the First Copyright Act
Intellectual Property Law ( 2012 Edition ) by Dennis B. Funa