Copyright: right to copy? Take, Remix and Share

Copy to Imitate

 

“Always think that in any area of the arts, you get maybe ten percent of people who are creative, original… and the rest are generally following on, copying.” That’s what Hugo Hopper said. I do not know how did he arrived at the percentage but it seems there are few people that have creative minds. Somehow I believe that imitation is the highest form of flattery. You may not praise a work verbally but show it by overt imitations of someone or something. When you hear a feel good song over the radio and you find it very pleasing, you tend to search for that song and listen to it all over again until you’ve memorized its lyrics. When you hear that song again, you try to emulate everything to the point of making a video of yourself singing the song as if you were the artist originally performing and uploading it in Youtube.

Imitate and copy are synonymous. Imitate means “to make or do something the same way as (something else) to do the same thing as (someone).”[1] Trying to simulate what has been presented or portrayed is imitation. Why is there a need to imitate/copy? For starters, it is a natural occurrence like in the case of a toddler or a child by observing the actions and hearing the words uttered by those surrounding him.  Such things are absorbed and processed by the child shows his/her development which is crucial to his/her growth. One might say purely for fun; just like the spoofs of advertisements we watch in the longest running gag show on Philippine TV, Bubble Gang.  Others may be appreciating what they perceived to be as one of a kind that is too good to be ignored like the numerous renditions of the phenomenal hit by Freddie Aguilar’s “Anak” or the world-wide hit “Gangnam Style.  It may be for profit like the pirated movies peddled in streets for a few pesos. The most compelling reason to copy is necessity. For example, you want to have a copy of a particular news article in the broadsheet, all you need is to use the photocopying machine and reproduce it at your pleasure. Whatever may be the purpose for copying, it is an avenue of introducing creativity that is innate in everyone. Sometimes, the copied/imitated work is better than the previous one. This is due to various enhancements employed that the copycat might add to enhance the presentation.

However, copying, in general, has a negative connotation. During examinations and quizzes in school, students who failed to prepare thoroughly often resort to using your hidden talent of being a “matalinaw” by glancing over and copying a seatmate’s answers, an act of cheating which will merit a grave offense that may result to suspension or worse, expulsion from the school. Even outside the realm of education, copying is apparently also prevalent. News has spread quickly like wildfire about a speech of a politician lifted from a blog site without attributing the blogger. The alleged plagiarism became a talk of the town which was even worse since it was allegedly committed by a public official, whom should be of utmost integrity. All that was needed was a little citation of the author and there will be no such debacle on the issue. In our digital age, it is so much easy to copy. The information as presented in the web can be accessed with ease at the tip of our fingertips. Once the needed information is obtained, just a right click or a Ctrl+C will do to copy an entire article found in a particular website. The worst part of it is presenting the copied work as your own which certainly violates the author’s intellectual property rights. Even online pirates have upgraded their knowledge in this field. It has been widespread and as reported, resulted in losses amounting to millions. That is why many laws such as intellectual property laws and other rules and regulations have been created to safeguard this inherent right. If not for the abuses in connection with the use of works by other people, there must have been no use with such laws if not minimize the strict implementation therefore erasing the stigma of copying as a negative act. Copying/Imitating need not be all that bad. It is certainly a way of sharing something what might actually be of interest to others. Such may induce the creativity that might have been missing that led to Hugo Hopper stating the abovementioned quote. Such perception will always be instilled if we will not practice what is called creativity. Being creative does not mean that you have to conceptualize a new work or creation. It may be in the form of modifying an existing form. But caution must be exercised in altering an existing work because attribution might be forgotten as it is the right of the creator to be recognized. Copying indeed has its fair share of positive and negative meanings. As long as the purpose for copying is for the greater good, there is nothing to worry about. The law protects those who protect themselves.

 

The Philippine Intellectual Property Law

 

Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.[2] IP is a product of the mind, therefore it is an original work, an original work that is ought to be protected by law. The Philippine Constitution recognizes that an effective intellectual and industrial property system is vital to the development of creative activity. To this end, it enjoins the State to protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creation.[3]  There are several laws in the Philippines that deal with Intellectual property. Section 712 of R.A. 386 otherwise known as the New Civil Code of the Philippines provides that ownership is acquired by occupation and intellectual creation. Although the New Civil Code does not define what ownership is, the distinguished Civil Law expert, the late Justice J.B.L. Reyes gave a more acceptable definition of ownership at least, in our jurisdiction. He defined ownership as “an independent right of exclusive enjoyment and control of the thing for the purpose of deriving therefrom all advantages required by the reasonable needs of the owner and the promotion of the general welfare but subject to the restrictions imposed by aw and the rights of others.[4] Ownership of an intellectual creation such as copyright entails rights and privileges subject only to such restrictions as imposed by law. The Civil Code also enumerates several rights in the exercise of ownership such as the right to enjoy, right to dispose, right to recover possession, right to exclude, right to accession and many more. There is also the Optical Media Act which protects music, movies, computer programs, and video games. But the most important law that deals with intellectual property is Republic Act 8293 otherwise known as an “Act prescribing the Intellectual Property Code and establishing the Intellectual Property Office, providing for its powers and functions, and for other purposes” was passed on June 6, 1997 with the primary purpose of developing domestic and creative activity which facilitates transfer of technology, attracts foreign investments, and ensures market access for our products and protection of the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people.[5] Part I discusses the powers and functions of the Intellectual Property Office now known as the Intellectual Property Office-Philippines; Part II deals with the law on Patents; Part III on Trademarks, Service Marks and Trade names; Part IV on Copyright and the last part is the Final Provisions. In this discussion, we will focus only on the law on copyright since this is the field of intellectual property that is accessible to all of us. Copyright may be defined as a form of intellectual property which protects the rights of authors and creators of literary and artistic works. It refers to the main act in which, in respect of literary and artistic creation, may be made only by the author or with his authorization. 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.[6] According to the law on copyright, there are two (2) works that are protected; original and derivative works. Under original works, there are literary and artistic works enumerated under the law[7]  and works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.[8] Derivative works on the other hand are also enumerated under Sec. 173.1[9] These original and derivative works are protected from the moment of their creation. The author is granted Economic Rights which refer to the rights of the author or copyright owner to derive financial reward from the use of his works by others[10] and Moral Rights which are the rights of the author to claim authorship of the work and the right to restrain the use of his name with respect to any work not of his own creation or a distorted version of his work.

These rights emanate from the exercise of ownership by the author, subject to the limitations to copyright and fair use, which are enshrined in the Code. Speaking of Fair Use, it is defined as any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. [11] In other words, fair use is a defense (or a convenient excuse) against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement. Section 185.1 of the Philippine copyright law enumerates the factors wherein the copying or imitating a copyrighted material may be allowed as fair use.[12] Fair use is the counterpart on the economic and moral rights of the author. It allows us, end users to practically benefit from the other side of the fence. If there are no limitations to copyright, then we will all be liable for infringement at some point in time. This balances the interests of the creator and the public who will benefit from such creation. For example, The Copyright law allows the private reproduction of a published work such as a book in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work.[13] However, it does not apply to the entire book or a substantial portion thereof. The common practice of students of having a book reproduced and bounded to look like the genuine one aka as “Book-alike” to avoid purchase have increasingly becoming common nowadays. Libraries are allowed to reproduce a single copy of a work without the author’s authorization is allowed under Article 188.[14] With the recent amendments to the IP law,[15] the right of a person to utilize a copyright material will not result to infringement as long as long as the same is for personal use and not for commercial purposes. Even the term “jailbreak” has been answered by the amendatory law as not illegal if not accompanied by downloading pirated material. Various innovations due to the changing times have forced us to quickly adapt so that we will not be swept by the waves of change. Who would have thought during the deliberations on the then IP bill in Congress that its coverage will encompass even those digital apps that we are currently using today.

Creative Commons: The Reform

 

Creative Commons (CC) is a non-profit organization that enables the sharing and use of creativity and knowledge through free legal tools.[16] CC provides free, easy-to-use copyright licenses in a simple, standardized way to give the public permission to share and use your creative work — on conditions of the end-user’s choice. CC licenses do not replace copyright but are based on it. This enables the user to modify copyright terms that suits the user’s need. The organization believes that creativity and expression are vital elements in the society. The evolution of information and communication has rapidly become more and more accessible to us. It made possible for people to exchange information with just a click of the mouse. However, because of the complexities and infirmities of our legal and social system, creativity and expression are not often realized therefore hampered. We cannot at all times ask permission to the author/creator if we want to copy their created work. CC envisions a world where there are no borders when it comes to access to information that is vital to the evolution of the world; to adapt to the ever changing situations that needs to be coped up to. CC provides infrastructure consisting of a set of copyright licenses and tools that create a balance inside the traditional “all rights reserved” setting that copyright law creates.[17] It is an idea that releases itself from the rigidness of the policies enforced by copyright laws. We cannot go anywhere if we are still tied up with the past wherein we are just spoon-fed by loads of information and that’s it. It is a one-way avenue of communication; the traditional way. The traditional way is NOT the way now. It does not allow its intended users to think. The change is rapidly happening and there is no other means of sharing the information than to provide a medium that CC is offering. Lawrence Lessig, one of the CC founders, termed the change, “call and response”. It is the two-way mode of information dissemination which empowers those who are “called” to make a response. Take the example of Psy, the Korean superstar who gained world-wide fame due to his hit single “Gangnam style. Because of the funny beats and odd choreography it gained popularity especially in Youtube wherein the music video has generated ore than 25 million views. Due to its increasing popularity, people have began making their own versions of the song and uploaded it also in Youtube. Those actions might call the attention of Psy and the recording companies and file a suit for copyright infringement. But they did not resort to such action. Instead, they took advantage of it as a way to market the song. The best part is that they do not have to pay anything for such advertising strategy. That is what CC is trying to impart to us. It changes the outlook of copyright in real life. Before, this was not the case. We were told to sit and watch or listen to whatever that might be presented to us. This will only restrict us to a limited capacity; we are not allowed to participate to a “cultural evolution.” It is fortunate that a group such as CC is aware of this and is insanely promoting that evolution. By encouraging more creativity not only to professionals but also to amateurs, we will see more sharing with a sense. Creators are confined nowadays primarily because of money, profit; that is the problem. Not everyone is willing to impart with their intellectual creations just because they want to share it, but because they want to gain from it. This practice must be discouraged in order to harness the full potential of creators. It should be creators create for the love of work! Although it is possible that creativity MAY fuel one’s creativity but it should not be utilized as the only motivation for coming up with such a creation that will promote culture. Copyright laws should not constrict the way we should share. Let us be generous on what we have so that the creativity will overflow. Working for money confines our talents; let us get out of our boxes and share. We need to share more, “legally.” Does it mean that the law must change? The law must bend to the demands of the times? I think so. We have the freedom to access legal information. There should be a universal understanding among nations that the right to share is important. Just because we live in different laws does not mean we cannot stand up to be united as one for the enhancement of our culture as human beings.  We must take, remix and share. The right to remix, the right what is due for us. Remix means to mix again.[18] We need more people to push for this kind of change in mindset wherein we institute reforms that will enable the law to adapt to share legally. That is why CC has provided licenses which will empower the “commons” in the society. Those who does not have the power to create but only the power to share what others create. The CC copyright licenses and tools forge a balance inside the traditional “all rights reserved” setting that copyright law creates. Our tools give everyone from individual creators to large companies and institutions a simple, standardized way to grant copyright permissions to their creative work.[19] Those who use the CC licenses are called “licensors” who use the tools that CC provided and they still retain the copyright while allowing others to copy, distribute and share their work. The CC licenses does not deviate from what copyright law provides as it values attribution by incorporating the preposition “By”. From “all rights reserved”, you make it “some rights reserved”. You must attribute the work in the manner specified by the author or licensor.  “It’s actually a movement that allows creators to decide how much of their information can be made public, and gives them an opportunity to make it more available than what the copyright legislation outlines.[20] Lessig enumerates three things that will help promote remix: practice, defend and embarrass those who resist the change. Practice is easy because internet is everywhere. May it be the traditional PC, laptop, netbook, tablet computers and smartphones. There are also sites which encourage sharing such as social media networking sites such as Facebook, Twitter. The practice becomes a habit and the habit becomes an addiction. You have to defend your rights as well. Exercise your fair use of the materials for your own good because the law protects you. Like Lessig, who received threats of legal action because of his “alleged” violation of copyright law, we, as consumers must also asset our rights by not being intimidated by such notices. Such according again to Lessig, is an absurd situation. We must fight back that absurd trend. It’s a good thing there are people like Lessig who is willing to stand up to what is right against those who abuse their copyright by restricting freedom of expression. Such abuse must be stopped. Embarrassment must be for those people who use the copyright to power-trip. They must be held responsible for their actions. This is like teaching the artist’s lawyers to behave accordingly. These three changes must go hand in hand to experience the change that CC wants to happen. These reforms were highlighted by the shelving of the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA). These laws will certainly break the internet. It will break the future. These pieces of legislation must not be tolerated as they trample on our basic rights, freedom and culture. Truly, the power of the internet will change how the future of humanity will be shaped. Through the World Wide Web, the voices of millions have overpowered and will overpower any attempt to repress our right to take what is good, remix it and share what is right.

 

Conclusion

 

Interaction is the key to success in everything that we do. Civilizations have flourished through interaction among them to establish bilateral relations such as trade, policies, research and values and culture. It is an admirable trait that is preserved during our times. Each and every one of us should have a positive effect on one another. Just because there are laws which protect rights, it does not mean that these laws must be used to take advantage of others. We must respect each other’s rights to have universal access to information, information that may give us profit, might entertain us, educate us or save our lives. Information is power. It should be harnessed so that creative minds may awake their long slumber. Monetary reward must not be the sole consideration for the introduction of new things. No one should have the monopoly of knowledge and information; we must be the repositories of information. It is our moral duty to share what we know without any consideration whatsoever. Organizations such as Creative Commons is a prime example that we can achieve what is previously impossible. That the conventional way of learning is confined in a box, CC developed an idea to think out of the box, retool it with attribution and share it to the world so that everyone will experience the beauty of innovation by using creativity. This coincides with CC’s vision of nothing less than realizing the full potential of the Internet — universal access to research and education, full participation in culture — to drive a new era of development, growth, and productivity.[21] Internet must be controlled by us and not the other way around. Open licensing is the way to go. It is already on-going. We, Filipinos must do our part by encouraging more to participate in this revolutionary concept. Sharing is not stealing; sharing is everything. This is democracy at work. Our voices must be heard, our rights must be exercised and our freedoms must be observed. It is fortunate that in our country we have brave and strong people who are willing to sacrifice for the sake of the common good. Freedom of expression is a basic human right because it enables us to communicate and express opinions. The copyright law may somehow curtail that right but to enforce such right it must be for a lawful purpose. But nonetheless it should serve as a guiding principle that everyone must their part in ensuring a better world is at hand with information available to all.

 

 

 

 


[4] Property by Elmer T. Rabuya

[5] Sec. 2 of RA 8293

[7] Sec. 172.1(a) Books, pamphlets, articles and other writings; (b) Periodicals and newspapers; (c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form; (d) Letters; (e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows; (f) Musical compositions, with or without words; (g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art; (h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art; (i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science; (j) Drawings or plastic works of a scientific or technical character; (k) Photographic works including works produced by a process analogous to photography; lantern slides; (l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings; (m) Pictorial illustrations and advertisements; (n) Computer programs; and (o) Other literary, scholarly, scientific and artistic works.

[8] Sec 172.2 RA 8293

[9] (a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and (b) 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.

[10] Reproduction of the work or substantial portion of the work; Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; Public display of the original or a copy of the work; Public performance of the work; and Other communication to the public of the work.

[12] The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and The effect of the use upon the potential market for or value of the copyrighted work.

[13] Section 187.1

[14] Where the work by reason of its fragile character or rarity cannot be lent to user in its original form; Where the works are isolated articles contained in composite works or brief portions of other published works and the reproduction is necessary to supply them, when this is considered expedient, to persons requesting their loan for purposes of research or study instead of lending the volumes or booklets which contain them; and Where the making of such a copy is in order to preserve and, if necessary in the event that it is lost, destroyed or rendered unusable, replace a copy, or to replace, in the permanent collection of another similar library or archive, a copy which has been lost, destroyed or rendered unusable and copies are not available with the publisher.

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