“We live in an age of remix. Creativity and culture have always drawn from previous works, but with the Internet and digital technologies, the creative re-use of works has been taken to a whole new level. More people are able to edit and share a greater range of works than ever before.”
–Digitale Gesellschaft e. V., Right2Remix.org.
The above is the nucleus of the copyright reform advocacy waged in the 2013 Creative Commons Global Summit last August 21-24, 2013, which was held in Buenos Aires, Argentina. Creative Commons (CC) is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.[i]
The Summit brought together the affiliates of CC from different parts of the globe. The participants discussed strategies to strengthen Creative CC and its worldwide community; the latest developments in the commons movement worldwide; and showcase local and international projects that use CC licenses. Topics covered were the implementation of open policies in areas such as government, education, culture, business, science, data and more, as well as related topics such as free software, license development, collecting societies and copyright advocacy.[ii]
Lessig’s “Right to Remix” Copyright Reform
Harvard Law Professor and founder of CC, Lawrence Lessig discussed the laws that limit creativity. In his presentation, he highlighted the Culture of “Remix” and how this is deregulated or threatened by existence of copyright laws. He defined Remix as the time-honored tradition of Call and Response. He explained that copyright is the call, an invitation to creativity; and Remix is the response of re-creating and sharing.
He postulated that the right to expression is harnessed by the advent of digital technologies such as YouTube, Facebook, including PC, among others. With these advances, the culture to respond increases, thereby demanding laws to adapt to the way culture is changing. He proposed copyright reforms granting the right to remix to enable people to share more legally.He stated that although different countries have different copyright laws, creativity is a globally shared culture. If reforms happen, the world will be under one right to remix.
He acknowledged the initiatives undertaken by Right2Remix.org in Europe. Said organization calls for reforms in the European Copyright Directive that would contribute to a more lively and dynamic remix culture.[iii] The organization in its Manifesto stated that “We live in an age of remix. Creativity and culture have always drawn from previous works, but with the Internet and digital technologies, the creative re-use of works has been taken to a whole new level. More people are able to edit and share a greater range of works than ever before. More than ever, it has become clear that “everything is a remix!”
The organization believes that “the right to remix has become a fundamental requirement for freedom of expression and free speech in a digital society.” With this, Right2Remix.Org proposes modifications to the EU Copyright Directivewhich grants three (3) creative rights namely: a) the transformative usage rights; b) remix rights with lump-sum compensation; and c) remix commercialize rights. The first right pertains to the right to change the works during usage and to publish the results. The second right is the right to create remixes of existing works. Lastly, the right to commercialize remixes, in exchange for appropriate compensation.[iv]
Lessig averred that CC licenses are not the solutionsto uphold the right to remixbut real legal reforms.As stated in the CC’s Policy Statement in Copyright Reform[v], “CC licenses are a patch, not a fix, for the problems of the copyright system. They apply only to works whose creators make a conscious decision to affirmatively license the right for the public to exercise exclusive rights that the law automatically grants to them. The success of open licensing demonstrates the benefits that sharing and remixing can bring to individuals and society as a whole. However, CC operates within the frame of copyright law, and as a practical matter, only a small fraction of copyrighted works will ever be covered by our licenses.”
Furthermore, Lessig stressed that neither the doctrine of fair useis a remedy. Fair use, according to him, puts copyright on a defensive position and obligates the person using the copyright to “justify his control”.
He called the attention of the law practitioners to advocate the right to remix. He also challenged them to practice and defend the said right; exercise the same for the love of sharing rather than for the love of money.
Copyright Laws in the Philippines
Copyright emanated from the right to freedom of expression which is encrypted in Article III, Section 4 of the 1987 Constitution which states that “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances”.In the same vein, Article XIV Section 13 thereof provides 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. With thesemandates,Republic Act 7293 otherwise known as the Intellectual Property Code (IPC) was enacted.
The IPC recognizes that the effective intellectual and industrial property system are vital to the development of domestic and creative activity, facilitate transfer of technology, attract foreign investment, and ensure market access for our products.[vi] The provisions of the IPC protecting copyright are partly based on the United States copyright law and the principles of the Berne Convention for the Protection of Literary and Artistic Works.
Under the IPC, works subject of copyright 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.[vii]These works may be classified as original and derivative. Original works include those enumerated in Section 172 of the IPC [viii] while derivative works are those works enumerated in Section 173.1 [ix] of said Act.
IPC also grants copyright owners economic and moral rights. Economic rights include the exclusive right to carry out, authorize, or prevent 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.[x] Moral rights on the other hand, include right to attribution–to require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work; to make any alterations of his work prior to, or to withhold it from publication; to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation;and to restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work.[xi]
The term of the economic rights shall be during the lifetime of the author and for fifty (50) years after his death. The moral rights of an author shall alsobe coterminous with the economic rights except that of the right to attribution, which shall beduring the lifetime of the author and in perpetuity after his death.[xii]
IPC and amended by RA 10372 also provides remedies and penalties in case of copyright infringement.[xiii] It also provides for limitations on copyright. Limitations include the widely-recognized doctrine of fair use, which states that use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Said doctrine applies to decompilation, which is the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs.[xiv] Section 184 of the IPC, as amended by RA 10372 also provides for other limitations to wit:
a) 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.
b) 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;
c) 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;
d) 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
e) 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;
f) 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;
g) 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;
h) The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;
i) 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;
j) 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)
k) 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
l) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.
In conjunction with the IPC, the Optical Media Act (RA 9239) and Anti-Camcording Law (RA 10088) were also enacted. RA 9239 protects the copyright of music, movies, computer programs, and video games. It created the Optical Media Board which regulates the mastering, manufacturing, importation and exportation of optical media products and manufacturing materials as part of ensuring the protection and promotion of intellectual property rights.[xv]
RA 10088 on the other hand prohibits and penalizes unauthorized use, possession, and control, with the intent or attempt to use audiovisual recording devices to transmit or make a copy of any performance in an exhibition facility of cinematographic film or other audiovisual work. Likewise, cam-cording activities declared for private or domestic purposes is now also punishable by law as are aiding, abetting, or conniving in such acts.
The Friction between Right to Freedom of Expression and Right to Copyright
The tug-of-war between the right to freedom of expression and the right to property derived from copyright was intensified by the rapid technological developments especially the internet. Said development makes possible the deployment of free expression and culture of sharing beyond borders and light-years fast.
The freedom of expression is fundamental to the diversity of cultural expression and creativity. However, it has beenviewed by copyright owners as a disturbance to their exclusive proprietary interests. A presumption of harm is particularly troublesome in cases involving transformative uses of existing works, such as parodies, remixes, and mash-ups. This is for the reason that free expression and free speech interests of creative users are at stake and transformative use cases often raise plausible non-infringement defenses.[xvi]
In foreign jurisdiction, the tension between copyright laws and the right to freedom of expression however was eased in the 2013 case of Ashby Donald et. al. v France.[xvii] In this case, the European Court of Human Rights held that copyright does not automatically defy freedom of expression. Said Court had clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention.[xviii] However, such interference must be in accordance with the three conditions enshrined in the second paragraph of Article 10 of the Convention.[xix] This means that a conviction or any other judicial decision based on copyright law, restricting a person’s or an organization’s freedom of expression, must be pertinently motivated as being necessary in a democratic society, apart from being prescribed by law and pursuing a legitimate aim.[xx]
In this case, Applicants Ashby Donald et. al. are fashion photographers. They were convicted in France for copyright infringement following the publication of pictures on the Internet site Viewfinder. The photos were taken at fashion shows in Paris in 2003 and published without the permission of the fashion houses. The three fashion photographers were ordered by the Court of Appeal of Paris to pay fines and an award of damages to the French design clothing Federation and five fashion houses. In its judgment of 5 February 2008 the Supreme Court (Court de Cassation) dismissed the applicants’ argumentation based on Article 10 of the Convention and on Article 122-9 of the French Copyright Act. The Supreme Court was of the opinion that the Court of Appeal had sufficiently justified its decision, as the applicants could not rely on an exception in French copyright law, allowing the reproduction, representation or public communication of works exclusively for news reporting and information purposes.[xxi]
Conversely, in our jurisdiction, it seems that property right, especially copyright is not regarded as an exception to the exercise of right to freedom of expression. The Supreme Court consistently held in various cases that while the Constitution commands that freedom of expression shall not be abridged, it ruled to carved out to the said tenet and defined exceptions thereto out of necessity. SC held that expression may be subject to prior restraint, only to four categories of expression, namely: pornography, advocacy of imminent lawless action, danger to national security, and false or misleading advertisement.[xxii]
The Right to Remix in the context of Copyright Laws in the Philippines
Remixes take the form of derivative works under the IPC. Derivative works are new and original products that include aspects of already copyrighted works. Thus, the enumerations provided in Section 173.1.
Amendments of the IPC, specifically the provisions on copyright show that the Philippines is not ready to the “right to remix” reform of copyright laws.Contrariwise, the very recent amendments introduced by RA 10372 further provided additional remedies in cases where copyright is infringed. While the amendments added few limitations on copyright, protection of the same was however expanded. The highest law, explicitly provided protection against exclusive rights to artists and other gifted citizens to their intellectual property and creations. The author opines that after such period as may be provided by law for copyright protection, the right to remix arises as the works are already considered property of public domain or when the copyright owner waives his right to the same.
The mechanisms of releasing copyright have developed. Some of those mostly noted include the above mentioned Creat$ive Commons and the GNU.“GNU” is a recursive acronym for “GNU’s Not Unix!” It is a free software launched as early as 1984, which allows its users freedom to run, copy, distribute, study, change and improve the software.[xxiii] These mechanisms enable one to modify and provide certain limits on their copyright. Modifying copyright in the instance of the owner is valid under the law since copyright, like any other right, may be waived save for the exceptions on moral rights under the IPC.
It is the considered view of the author that these mechanisms, especially in the Philippine milieu, are sufficient to sustain the right to remix. The Philippines needs fully-functioning copyright laws, which balance the interests of the public and their right to freedom of expression amidst advancement of knowledge and technology with the interests of copyright owners in being compensated for uses of their works and deterring infringers from the harm of commercializing and appropriations of their works. The call of Lessig’s “Right to Remix” copyright reform, in this jurisdiction, may be untimely.
To end this piece, enforcement of copyright is not just about money. This is why the IPC grants the copyright owner not just economic rights but also moral rights. More importantly, enforcement of this right is not an interference of the right to exercise freedom of expression. It is but a conduit in exercising the same.
[ii] Creative Commons Global Summit 2013 , Retrieved last 15 October 2013 from https://creativecommons.net/civicrm/event/info?reset=1&id=9
[vi] Sec. 2, RA 8293
[vii] Sec. 172.2, IPC
[viii] Sec. 172. Books, pamphlets, articles and other writings;
a) Periodicals and newspapers;
b) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;
d) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;
e) Musical compositions, with or without words;
f) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art;
g) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art;
h) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science;
i) Drawings or plastic works of a scientific or technical character;
j) Photographic works including works produced by a process analogous to photography; lantern slides;
k) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;
l) Pictorial illustrations and advertisements;
m) Computer programs; and
n) Other literary, scholarly, scientific and artistic works.
[ix] Sec. 173.1 Derivative Works. – 173.1. The following derivative works shall also be protected by copyright:
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.
[x] Sec. 177, IPC)
[xi]Sec. 193, IPC)
[xii]Sec. 198, IPC, as amended by RA 10372
[xiii]“216.1. Remedies for Infringement. – Any person infringing a right protected under this law shall be liable:
“(b) To pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to infringement as well as the profits the infringer may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall appear to be just and shall not be regarded as penalty: Provided, That the amount of damages to be awarded shall be doubled against any person who:
“(i) Circumvents effective technological measures; or
“(ii) Having reasonable grounds to know that it will include, enable, facilitate or conceal the infringement, remove or alter any electronic rights management information from a copy of a work, sound recording, or fixation of a performance, or distribute, import for distribution, broadcast, or communicate to the public works or copies of works without authority, knowing that electronic rights management information has been removed or altered without authority.
“The copyright owner may elect, at any time before final judgment is rendered, to recover instead of actual damages and profits, an award of statutory damages for all infringements involved in an action in a sum equivalent to the filing fee of the infringement action but not less than Fifty thousand pesos (Php50,000.00). In awarding statutory damages, the court may consider the following factors:
“(1) The nature and purpose of the infringing act;
“(2) The flagrancy of the infringement;
“(3) Whether the defendant acted in bad faith;
“(4) The need for deterrence;
“(5) Any loss that the plaintiff has suffered or is likely to suffer by reason of the infringement; and
“(6) Any benefit shown to have accrued to the defendant by reason of the infringement.
“In case the infringer was not aware and had no reason to believe that his acts constitute an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not more than Ten thousand pesos (Php10,000.00): Provided, that the amount of damages to be awarded shall be doubled against any person who:
“(i) Circumvents effective technological measures;
“(ii) Having reasonable grounds to know that it will induce, enable, facilitate or conceal the infringement, remove or alter any electronic rights management information from a copy of a work, sound recording, or fixation of a performance, or distribute, import for distribution, broadcast, or communicate to the public works or copies of works without authority, knowing that electronic rights management information has been removed or altered without authority.
“216.2. In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings, in accordance with the rules on search and seizure involving violations of intellectual property rights issued by the Supreme Court. (Sec. 28, P.D. No. 49a)
“The foregoing shall not preclude an independent suit for relief by the injured party by way of damages, injunction, accounts or otherwise.”
[xiv] Sec. 185, IPC
[xv] Optical Media Board, Retrieved last 16 October 2013 from http://www.dbm.gov.ph/wp-content/OPCCB/OPIF2011/OEO/OMB.pdf
[xvi] Balancing the Right to Freedom of Expression and Intellectual Property Protection in the Digital Age, Retrieved last 15 October 2013 from www.article19.org/data/files/medialibrary/3716/13-04-25-share-BACKGROUND-PAPER.pdf
[xvii] 10 January 2013, case of Ashby Donald and others v. France, Appl. nr. 36769/08
[xviii] European Convention of Human Rights , Retrieved last 16 October 2013 from http://www.echr.coe.int/Documents/Convention_ENG.pdf
[xix] Article 2.Par 2, European convention on Human Rights.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
[xx] ECtHR (5th section), 10 January 2013, case of Ashby Donald and others v. France, Appl. nr. 36769/08
[xxi] Copyright vs Freedom of Expression Judgment (2013) Retrieved last 16 October 2013 from http://echrblog.blogspot.com/2013/01 /copyright-vs-freedom-of-expression.html
[xxii] Chavez vs. Gonzales, G.R No. 168338, February 15, 2008