The Scope and Limitations of Copyright as per Philippine Law and Jurisprudence, In Relation to Works in the Internet
Copyright in the Philippines is increasingly becoming relevant as the Filipino people are becoming aware of Copyright Laws in the Philippines. For the past few years, several laws have been passed to protect right-holders of copyright. In fact, due to the passing of several laws, the Philippines has been removed from the Special 301 Watch List published by the United States Trade Representative.[i] This piece will analyze the scope and limitation of the Copyright in the Philippines in relation to works in the internet. It will show that the scope of copyright in the Philippines is wide since there the laws of the Philippines needs to be updated and modernized to suite the current digital age. The scope of Copyright in the Philippines is currently subject of endless debates. This paper shall enumerate the limitations of Republic Act No. 8293, as amended by Republic Act No. 10372. However, it shall also talk about the implications of the limitations of the Copyright laws of the Philippines and how it affects the education of students. The Copyright Laws of the Philippines should be given leniency towards students when it comes to copyrighted educational materials as to further enhance their learning capacity. This paper shall also discuss how copyright should be strengthened in the field of music in the internet.
What is Copyright?
Copyright according to Black’s Law Dictionary is simply the right to copy or a property right in an original work of authorship including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, architectural works, motion pictures, sound recordings and other audiovisual works fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.[ii] According to the World Intellectual Property Organization, copyright is a term used to describe the rights that creators have over their literary and artistic works.[iii]
In the Philippines copyright extends to original works and derivative works. Original works are creations in the literary and artistic domain which is protected from the moment of their creation. This includes but not limited to books, pamphlets, newspapers, lectures, letters, compositions, drawings, paintings, architecture, maps, photographs, audiovisual work, advertisements, computer programs and any other literary, scholarly, scientific and artistic works. These are protected by its creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.[iv]
Derivative works on the other hand include dramatizations, translations and other alterations of literary or artistic works, and collections of literary, scholarly or artistic works. These are all enumerated in Section 173 of Republic Act No. 8293. In general, Republic Act No. 8293 has a catch all phrase which protects all other literary, scholarly, scientific and artistic works. [v]
What are the rights included in Copyright?
The creators of work protected by copyright in the Philippines have economic and moral rights. Economic rights include the right to carry out, authorize or prevent the reproduction, transformation, distribution, rental, public display, public performance and communication to the public of the work. [vi]
Copyright fosters human creativity and innovation. Copyright gives the artist, authors and creators incentives to create new work and improve their craft which in turn enhances the results. Better copyright laws paves the way to more investments because investors would feel protected because the enforcement of their rights are easily available. This in turn enhances the enjoyment of our own culture and provides for a more diverse form of entertainment in the country.[vii]
With the rise of the internet and its increasing improvement, copyright issues likewise increases. The moment of creation of a copyrighted work becomes blurred. One may wonder whether posting of an artistic work in the internet creates new “work” since it is created in a different medium? The Copyright Law of the Philippines is silent on this matter.
It can be argued that a work that is uploaded in the internet should be considered new work because under Administrative Matter No. 01-7-01-SC or the Rules on Electronic Evidence an electronic document is equivalent to an original document under the Best Evidence Rule.[viii] An electronic document refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.[ix] In the definition itself of an electronic document, a painting which was captured by a camera and subsequently uploaded in Facebook is recorded and therefore creates a right which tells the world that the artist created such piece of work. The painting has a different copyright while the picture also has its own copyright. The picture may however be considered as a derivative work of the painting if that was the intention of the artist. This raises concern as to the subjectivity of what is to be considered as “Art”.
What should be considered as art? So is it possible that even a picture of a single person in a white background be considered as art? Who determines what is art and what is not? It seems that the law on Copyright is silent on this matter. This creates numerous arguments and debates regarding what should be considered as art. Since Copyright is created at the moment of creation who determines at that instance whether or not it is truly copyrightable or not. Even a large canvass with the color blue painted on it is deemed to be considered as art and is sold for millions of dollars in the world of art. Whether or not one has a copyright over a creation will always be subject to different argumentation.
Art is subjective which can end in an endless debate. However, what is concerning with the Copyright Law of the Philippines is whether or not it is in accordance with the Constitution. The Constitution provides that the State shall give priority to education, science and technology, art, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.[x] Art and culture should promote total human liberation. How is it possible to be totally liberated in creating art when there is a copyright law? Indeed copyright will encourage more artists to create more work without fear of it being infringed and in turn enhance culture and even help the economy. However the question to be answered is whether copyright helps the education system in the Philippines. It is submitted that it does not.
If the Philippines would really like to give priority to education, students should not be deprived access to educational materials especially in the internet because of the fear of infringing the authors’ rights. The Copyright Law of the Philippines as amended, provides for the the private reproduction of a published work in a single copy for research and private study provided it is not the entire book or a substantial part thereof.[xi] This defeats the purpose of learning. How is it possible for a child to only read one chapter of a required book? This is not what the Constitution provided for when it stated that the State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.[xii]
The copyright law does not help education system of the Philippines because it renders it incomplete and inadequate to the needs of the people and society as required in the Constitution.[xiii] Furthermore, the Constitution likewise provides that academic freedom shall be enjoyed in all institutions of higher learning.[xiv] Education should be the priority of the Philippines. Students should not be burdened with the idea of copyright. This only hampers the students learning.
The Copyright Law seems to be inadequate in the field of education since it is of primary concern that students should have access to educational materials without being burdened by expensive prices. There are children who are lacking financially but have a strong desire to learn which should not be hampered by the law on Copyright.
Some may argue however, that the concept of fair use may be used for reproducing copyrighted books. This is not possible because a published book or literary writing may only be used for research purposes. The fair use of copyrighted work may only be used for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes.[xv] The law is vague when it uses the term “and similar purposes”. This term only refers to the similar purposes of comment, news reporting, research, etc. This does not include for school use.
It is also important to note that schools and universities are now obligated to adopt intellectual property policies that would govern the use and creation of intellectual property with the purpose of protecting the creations of the learning institution and its employees, and adopting locally-established industry practice fair use guidelines.[xvi] What is prioritized now is not the education of the students but it is now more concerned toward the protection of intellectual creations of the learning institution and its employees.[xvii]
Another question that should be pondered upon is whether libraries are allowed to create a repository of books and literary materials in the internet? Would it be allowed under the Law on Copyright? Will Section 188 of Republic Act No. 8293 still apply in the internet? The answer seems to be in the positive. In fact the law is silent on the matter. The law allows the reprographic reproduction for research and study and must not be reproduced for direct or indirect commercial advantage. Therefore if these requirements are met the creation of an online library may be viable and perhaps even more advantageous to the Filipino people.
Therefore the Copyright Law should be given more lenience when it comes to educational materials in the internet. Such leniency would only work to enhance the education of Filipino students and in turn improve the Philippine economy.
How are works in the internet controlled? The World Intellectual Property Organization administers the “internet treaties” or the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). These treaties prevents unauthorized access to creative works in the internet.[xviii]
The WCT is a special agreement under the Berne Convention that deals with the protection of works and the rights of authors in a digital environment.[xix] The Treaty however only protects two types of copyright, computer programs[xx] and compilation of data[xxi].
Compilations of data or other materials may be in any form provided that the selections constitute intellectual creations. This provides that even compilations of books or articles can be copyrightable according to WCT. The material itself is not copyrightable but the arrangement is copyrightable. This begs the question whether an arrangement of articles is artistic?
According to Richard Saul Wurman in his book Information Architects there are only six ways to arrange data. Data can be arranged either by location, alphabet, time, number, category or hierarchy.[xxii] Therefore is there really any creativity behind such an arrangement? If one were to copy the same arrangement, would it be a violation of copyright? This question is yet to be answered.
The WPPT on the other hand deals with the rights of performers and producers of phonograms.[xxiii] The Treaty provides for the National Legislation of the contracting parties to provide for limitations which do not conflict with the normal exploitation of the performance or phonogram and do not unreasonably prejudice the legitimate interest of the performer or of the producer of the phonogram.[xxiv] Therefore, the Philippine Congress may enact laws which should exempt families from the low income bracket to acquire books which are reproductions without it being a financial burden. It is still possible to protect the authors rights and at the same time share knowledge and information to the public. In fact this is iterated in the Constitution in Section 24, Article II of the 1987 Constitution, when it provides that the State recognizes the vital role of communication and information in nation-building. Recognition should be accompanied by action. Information should be made available to all without the need to be burdened financially.
Another issue that is important to note in Copyright of internet works is the concept of importation. Importation for personal purposes is only allowed when the copies of the work are not available in the Philippines and only one copy is imported for strict individual use only.[xxv] This idea becomes complicated if the artistic work is uploaded to the internet. The Philippine Law on Copyright does not mention anything about works being posted in the internet. The law is lacking in this area.
The limitations on copyright as enumerated in Section 184 of Republic Act No. 8293, as amended by Republic Act No. 10372 is clear on the matter. However, if such limitations are applied in the internet would it still be a limitation to copyright or be a violation of the copyright law?
If there is a situation where a performance of a work, which was lawfully made accessible to the public, was performed online by a stranger for a charitable and religious institution or society, will there be a violation of copyright? In this scenario it seems that there is no violation of copyright. However, if it was performed privately and free of charge and was subsequently videotaped and later was posted online, is there a violation? It seems that the copyright owner has the right to prevent the communication to the public of the work under his economic rights.[xxvi]
Will the changing of one word in a song prevent one from copyright infringement? No it would be considered as a derivative work which still requires permission from the owner of the copyright of the song. This is interesting to note because there are several copyright infringement in the internet. There are numerous videos and music in the internet which infringing on the rights of the artists. It has become a trend to create a cover of a song and post it on youtube. There are several cover songs which are posted in youtube. Even playing a song which is protected by copyright as background music is infringing on copyright. Uploading of an instrumental of a copyrighted song is infringement. Even posting the lyrics of a song in a website is infringement.[xxvii]
In the Philippines, music or musical compositions would fall under original works under Section 172.1(f) of Republic Act No. 8293, as amended by Republic Act No. 10372. This consists of music composition, with or without words. The copyright of music in the internet raises several questions on jurisdiction. It seems that the there is no international law which governs the jurisdiction of copyright in the internet. There are only numerous domestic laws which are applied within their respective territories.[xxviii] Raquel Xalabarder wrote in conclusion to her paper entitled “Copyright: Choice of Law and Jurisdiction in a Digital Age”, that the tradition criteria used to allocate jurisdiction and choice of law for copyright are ill-fitted to respond to the needs of copyright infringement on the internet.[xxix]
With the ever growing data in the internet, artists and writers have developed a system wherein knowledge is not restricted by copyright. It is important to take notice of the fact that people are becoming aware of the situation created by copyright wherein in stalls and even halts the creative mind and even learning.
Creative Commons is a non-profit organization that enables the sharing and use of creativity and knowledge through free legal tools.[xxx] This organization is meant to give different types of licenses for the public to use their work under certain requirements. Such a system improves and enhances learning without violating an artist or writers copyright.
It is quite ironic to state that copyright is not conducive to learning when in fact in the past, protection of music and art were not strictly enforced which encouraged people to copy and violate copyright in order to create their own works. Although copyright is detrimental to the education of the youth in the Phlippines, music and other forms of art on the other should be protected and enforced. In the past it seemed that singers and musical artists did not make any money. It seemed that musicians in the Philippines were only available because of their true love for music. The lenient enforcement of copyright in music in the Philippines paved the way to the creation of good music. There was a boom of creativity in the music scene because artists wanted to collaborate with each other for the love of music. However, it seemed that there was no money in music. This type of system is slowly changing with several laws being passed which aids in the enforcement of copyrighted material.
This is clearly seen with rise of several Collective Management Organizations (CMO) in the Philippines. This rise of CMOs in the Philippines is paving the way for artists to become more inclined to create music. According to the World Intellectual Property Organization, a collective management is the exercise of copyright and related rights by organizations acting in the interest and on behalf of the owners of rights.[xxxi] The list of copyright collection societies or also CMOs in the Philippines are Filipinas Copyright Licensing Society (FILCOLS), Filipino Society of Composers, Authors and Publishers (FILSCAP), Filipino Visual Arts and Design Rights Organization (FILVADRO), and Performing Rights Society of the Philippines (PRSP).
These societies are available because of the amendment to Republic Act No. 8293. Republic Act No. 10372 designates society of artists, writers, composers and other right-holders to collectively manage their economic or moral rights on their behalf. This however is subject to accreditation from the Intellectual Property Office.[xxxii] The minimum requirements of a CMO are that it must be a non-stock, non-profit corporation, membership is composed of right-holders belonging to the sector whose rights shall be managed, there should be at least 16 hours of training on copyright or any related topics relevant to the particular sector obtained from IPOPHL, and lastly there must be managerial and administrative capability of enforcing the rights of its members.[xxxiii]
Special 301 Report
The current situation of Philippine Copyright is closely being monitored by the United States Trade Representative. This office publishes annually which identifies countries with inadequate and ineffective laws or measures for the protection of IP rights. This list is called the Special 301 Watch List. This list is important because it shows how copyright affects the trade of one country to another. It has been reported that on April 28, 2014, the Philippines has been removed from the list because of the enactment of several significant laws to enhance the protection and enforcement of intellectual property rights. [xxxiv] The International Intellectual Property Alliance (IIPA) also contributes to the list and gives its own recommendation. For the year 2014, the IIPA praised the Philippine government for the sustained and effective anti-piracy activities around the country.[xxxv]
The Special 301 Report also mentions that book piracy decreased. The IIPA recommends that the E-Commerce Act should be modernized. It also stated that internet piracy is becoming more prevalent.[xxxvi] Perhaps this is partly because enforcement of copyright infringement in the internet is difficult. In fact the laws presently are silent on the matter.
Future of Copyright
What is to be expected in the future for artists, authors and all right-holders of copyright? There is a proposed senate bill introduced by Senator Miriam Defensor-Santiago entitled “Establishing a Magna Carta for Philippine Internet Freedom, Cybercrime Prevention and Law Enforcement, Cyberdefense, and National Cybersecurity. This law should further strengthen the law on Copyright and create standard to follow when it involves copyright in relation to works in the internet.
Winston Churchill once said, “Without tradition, art is a flock of sheep without a shepherd. Without innovation it is a corpse.” The Philippines is a sheep slowly becoming a corpse and the shepherd is at present helpless. The Philippine Law on Copyright is a virus to art. However, a virus is not necessarily deadly. It can even strengthen the immune system like the flu shot. However, it should be regulated. This example is particularly relevant to the current conditions of our educational system. The following of tradition which is to abide by the Copyright laws should be used to strengthen the education system of the Philippines and not hinder students from knowledge. It is imperative that leniency should be given toward the reproduction of published works more specifically works that aide in education. It should be noted however, that such leniency should be given to the detriment of the creator of the work. However, this paper was intended to encourage writers of academic and educational books to share their work to those who do not have the means to spend in order to further improve the education of the Philippines. This piece is not intended to remove the rights of writers but encourage them to think less about the financial gain from creating books but instead to focus on the improvement of the educational system in the Philippines.
Musicians on the other hand should be more vigilant and they should enforce their rights so as to encourage more musicians to create music. It is imperative that the rights of musicians and musical composers and the like to avail themselves of their rights under the Copyright Law of the Philippines or Republic Act No. 8293, as amended by Republic Act 10372.
The Philippines is full of talented artists and full of idealistic youths which should be nurtured to further enhance the educational system and the entertainment scene of the country. Copyright laws should be strengthened when it comes to music in the internet while weakened when it comes to educational materials in the internet.
[i] Hechanova, Editha, Philippines: Removal from the USTR 301 List, June 2, 2014, available at http://www.managingip.com/Article/3347607/Philippines-Removal-from-the-USTR-301-list.html (last accessed July 20, 2015)
[ii] Garner, Bryan A., Editor in Chief, Black’s Law Dictionary, Eighth Edition
[iv] Section 172.1 and Section 172.2 of Republic Act No. 8293, as amended by Republic Act No. 10372
[v] Section 173 of Republic Act No. 8293, as amended by Republic Act No. 10372
[vi] Section 177 of Republic Act No. 8293, as amended by Republic Act No. 10372
[vii] World Intellectual Property Organisation, What is Intellectual Property, Page 20, available at http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf (last accessed July 20, 2015).
[viii] Rule 4, Section 1 of Administrative Matter No. 01-7-01-SC
[ix] Rule 2, Section 1(h) of Administrative Matter No. 01-7-01-SC
[x] Section 17, Article II of the 1987 Constitution
[xi] Section 187 of Republic Act No. 8293, as amended by Republic Act No. 10372
[xii] Section 13, Article II of the 1987 Constitution
[xiii] Section 2(1), Article XIV of the 1987 Constitution
[xiv] Section 5(2), Article XIV of the 1987 Constitution
[xv] Section 185 of Republic Act No. 8293, as amended by Republic Act No. 10372
[xvi] Section 230 of Republic Act No. 8293, as amended by Republic Act No. 10372
[xvii] Peria, Elpidio, Philippine Copyright Law Amendments Disadvantageous to Ordinary Users, Students and Researchers. Posted on February 16, 2013, available at https://bitsinbits.wordpress.com/2013/02/16/philippine-copyright-law-amendments-disadvantageous-to-ordinary-users-students-and-researchers/ (last accessed July 20, 2015)
[xviii] World Intellectual Property Organization, What is Intellectual Property, Page 20, available at http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf (last accessed July 20, 2015).
[xix] World Intellectual Property Organization, Summary of the WIPO Copyright Treaty (WCT) (1996), available at http://www.wipo.int/treaties/en/ip/wct/summary_wct.html (last accessed July 20, 2015)
[xx] Article 4 of WIPO Copyright Treaty
[xxi] Article 5 of WIPO Copyright Treaty
[xxii] Stim, Rich. Types of Databases Eligible for Copyright Protection, available at http://www.nolo.com/legal-encyclopedia/types-databases-eligible-copyright-protection.html (last accessed July 20, 2015)
[xxiii] WIPO Performances and Phonograms Treaty
[xxiv] Article 16 of WIPO Performances and Phonograms Treaty
[xxv] Section 190 of Republic Act No. 8293, as amended by Republic Act No. 10372
[xxvi] Section 177 of Republic Act No. 8293, as amended by Republic Act No. 10372
[xxvii] Longzijun, Music, Copyright, and Youtube: Fair Use, Public Domain and DMCA, available at https://longzijun.wordpress.com/2012/01/18/music-public-domain-and-copyright/#copyright (last accessed July 20, 1015)
[xxviii] Xalabarder, Raquel, Copyright: Choice of Law and Jurisdiction in the Digital Age, August 26, 2010, available at http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1067&context=annlsurvey (last accessed July 20, 2015)
[xxix] Xalabarder, Raquel, Copyright: Choice of Law and Jurisdiction in the Digital Age, August 26, 2010, page 18, available at http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1067&context=annlsurvey (last accessed July 20, 2015)
[xxxii] Section 183 of Republic Act 8293, as amended by Republic Act No. 10372
[xxxiii] Section 1, Rule II of Office Order No. 13-173 of the Intellectual Property Office of the Philippines
[xxxiv] Hechanova, Editha, Philippines: Removal from the USTR 301 List, June 2, 2014, available at http://www.managingip.com/Article/3347607/Philippines-Removal-from-the-USTR-301-list.html (last accessed July 20, 2015)
[xxxv] International Intellectual Property Alliance, 2014 Special 301 Report on Copyright Protection and Enforcement available at http://www.iipa.com/rbc/2014/2014SPEC301PHILIPPINES.PDF (last accessed July 20, 2015)
[xxxvi] International Intellectual Property Alliance, 2014 Special 301 Report on Copyright Protection and Enforcement available at http://www.iipa.com/rbc/2014/2014SPEC301PHILIPPINES.PDF (last accessed July 20, 2015)