SHARE MORE AND CONNECT TO THE CHANGING CULTURE

Intellectual Creations in Modern Times – An Introduction

Intellectual creations showcase one’s ingenuity. It is a mechanism which allows an individual to put across their beliefs, feelings and thoughts through literary works, music and other artistic works.  The constant development of new inventions and the creation of intellectual properties encourage the society to be more innovative and adapted to the modern world of technology. Thus, it is no wonder that existing laws around the world are specifically formulated to acknowledge and safeguard the property rights of the authors, inventors, writers, artists and other intellectual property owners.

Regrettably, the existence of information and communication technologies makes way to the invasion of some property rights of intellectual property owners. Nowadays, intellectual creations are use and reproduce without proper authority and attribution to its creators. File-sharing, downloads, piracy and distribution of works to the public are a lot easier with the advantage of the technologies.  Piracy is everywhere.

Undeniably, we are in a struggle between protecting the property rights of the creators while encouraging distribution and use of the intellectual creations by adopting a law appropriate to the existence of modern technology. Today, we are also facing a question, if indeed, the current copyright laws and regulations also limit the cultural development of a society.

 

Intellectual Property rights granted under Local Laws –Civil Code, Intellectual Property Code and E-commerce Act

One mode of acquiring ownership under Book III Article 712 of the New Civil Code is by intellectual creation. Creator’s entitlement to ownership elevates the need to protect their rights against any unlawful attacks.

With the creation of Republic Act No.8293 or Intellectual Property Code of the Philippines, copyright laws are structured in a way to fully protect the interest and acknowledge both the economic and moral rights of a copyright owner. Under Section 177 copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;

177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;

177.4. Rental of the original or a copy of an (1)audiovisual or (2)cinematographic work, a (3)work embodied in a sound recording, a (4)computer program, a (5)compilation of data and other materials or a (6)musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work.

Moreover, “Communication to the public” or “communicate to the public” has been defined under Section 171.3 as the making of a work available to the public by wire or wireless means in such a way that members of the public may access these works from a place and time individually chosen by them. Clearly, the law mandates that the authority to distribute to the public the copyrighted works accrues to the owner and permission and/or waiver is required before any third person can perform such communication to the public.

The inserted provision even anticipates the capacity of transmission through the use of technology, thus, prohibiting both communications by wire or wireless means. Reproduction of work of third parties without the grant of authority by the owner is also clearly prohibited. This right enables the creator to control the distribution of copies of his work. Another important provision granting copyright owner’s rights is Section 193 of the Intellectual Property Code. This provision provides the scope of moral rights of a creator. It states that:

193.1. 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;

It is important to note that under Section 193.1, the centrality of an author’s moral rights is the right to attribution which is described as the right of the author to be acknowledged as the creator of his work. The law would like to guarantee appropriate recognition to one’s creative work in order inspire and encourage other people. Also included in Section 193 of the Intellectual Property Code is the right of the author to prevent any distortion or misrepresentation of his work. The legislators acknowledge the fact that as a writer, artist, and publisher, or simply as creator, it is important to maintain their integrity and/or credibility in order to constantly provide and protect their impact on the society. The quality of a work is often based on the integrity of the creator. Thus, any action that will substantially affect the author’s work is clearly prohibited and the right to modify or change the portion of his work lies to its creator.

However, there are certain limitations imposed to the rights of copyright owners. Fair use has been introduced as one of the limitations on copyright. Section 185.1 enumerated the factors consider in determining fair use which include:

a.) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational 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.

Generally, fair use is accepted when copying is for educational purposes such as teaching, when it is use of criticism and/or news reporting, and other purposes which does not constitute copyright infringement and not for any commercial purposes. The rationale on the limitations as outlined under Section 184 and 185 is to avoid prejudice to the right holder’s legitimate interests and to control the exploitation of the creator’s work.

Special Laws are also enacted in order to penalize prohibited acts performed through the aid of technologies. Under the Sec 33(b) of the E-Commerce Act of 2000 or Republic Act No.8792, it penalizes piracy or the unauthorized copying, reproduction, dissemination, distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communicating, making available to the public, or broadcasting of legally protected sound through the use of telecommunication networks, such as, but not limited to, the Internet, infringes intellectual property rights. This provision serves as an extended protection to intellectual property owners against any form of infringement of their rights.

The easy access to the internet and availability of several information and technology devices increases the vulnerability of protection against unwarranted attacks. Hence, it is essential to enact a law which will not just prohibits an act but will realistically balance the interests of the copyright owner and the campaign for continuous development of modern technology.

Effect of Copyright Laws on Cultural Right

Cultural right as a human right entitles a person to express and share the identity, religion, values and beliefs of the community where he belongs. Since the perspective of human right tackles the existence, nature, status and characteristics of a human, therefore, it is but important to develop, recognize and share one’s culture as it continuously transforms and evolve through the years.

Because of the strong belief of the importance of the culture, Article 1 of the UNESCO Principles on International Cultural Co-operation states that:

1.   Each culture has a dignity and value which must be respected and preserved.

2.   Every people has the right and the duty to develop its culture.

3.   In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind.

Therefore, cultural development can be achieved through interactions between individuals and understanding between different communities. The diversity of one’s culture is developing in the manner it can be influenced by the forces surrounding it.

In the era of technology, there are myriad ways to define one’s culture.  Some cultures are shown through literary works, theater performances, artworks, music, film production and other similar works. However, since laws and regulations are imposed upon the use and exploitation upon intellectual creations, some commentators believed that copyright laws restraint the cultural development. It is argued that interactions between communities and diversity of one’s culture is pre-empted because a person’s action is being limited in terms of uploading, downloading, file sharing or making an adaptation of copyrighted works as a tool to promote one’s culture.

 

Creative Commons as a “possible” solution: From “ALL rights reserved” to “SOME rights reserved”

Creative Commons is a nonprofit organization that makes available free legal tools by promoting the use of CC licenses on copyrighted works. CC licenses make possible the constant sharing and discovery of intellectual creations. It provides a leeway to the copyright owners to make their creations available to the public by sharing some of their rights to the public while reserving other rights to them. The use of CC licenses and buttons easily converses to the public the basic permission for the use of licensed works. Copyright owners who would want to use CC licenses on their works can easily access and download the buttons to communicate to the public the authorization granted to them.

All CC licenses embrace attribution as its vital component in pursuance to the well-recognized and protected right of the copyright owner, the moral right. Meaning, whatever license the creator will adapt, it is required that appropriate attribution must be given to the author of the work. The beauty behind CC licenses lies with the fact that a copyright owner may freely choose his preference in terms of file sharing to the public. Creative Commons licenses offer originators a range of selections between holding all rights and renouncing all rights, a mechanism they named as “Some Rights Reserved.”

Six types of Creative Commons licenses are attribution (BY) to the original creator and licensor (where those are different) when the content is used and shared. Some licensors choose the BY license, which conditions reuse only on that condition. The other five licenses combine BY with one or more of three additional conditions: NonCommercial (NC), which prohibits commercial use of the work; NoDerivatives (ND), which permits reuse provided the work is not modified; and if modifications are allowed, ShareAlike (SA), which requires modified works be released under the same license.

Creative common licenses do not aim to limit, exclude, and provide rights and obligation as guaranteed under a country’s copyright law. It merely provides an option available to the copyright owner under his own preference in terms and conditions. CC licenses are all free-of-charge and therefore, cost effective especially to those individuals who do not have the means to finance licenses costs.

Also, the fact that Creative Commons is a global organization; it attained the status of a recognized and well-respected institution.

Remix and Piracy

“Remix” is defined as the practice by which others take that [mix] and re-express it. Lessig defines it as a call and response. The existence of technology advancement amplifies the development of remix culture. Artists, who are basically dominated by amateurs, display their interest to take, remix and share the content of the original works while adding up a unique approach to the work. They are challenged with the idea of presenting their creativity by applying their knowledge and culture as an ingredient to their material.

However, some individuals considered remix as a form of copyright infringement because this practice injured the protected interest of the creators against their right to modify or alter their work. Although remix culture encourages writers or artists to promote a new dimension of creativity it simultaneously harm the protected legal right of a creator under the existing copyright law. On the other end, many also argued that the copyright laws must provide an allowance to promote the right to mashup and remix material because through these works amateur creators are given the opportunity to display their creativity and culture which is essential to the development, not only of the individual, but the community as a whole.

However, remix must not be compared parallel to piracy. While remix creates a new dimension of artistry in an original work of another person, piracy is only a practice of unauthorized reproduction or unauthorized use of the creations of another person with the sole purpose of earning from such practice. Both practices may be a variety of file sharing but their purpose is so much diverse from the other. Is the purpose of the action a definitive way to determine whether or not there’s copyright infringement within the context of copyright laws? The broad description of unauthorized use of copyrighted works, which will injure the protected right of a creator, says so.

 

Conclusion on the matter

It is inarguable that, as owners, property rights must be guaranteed on the creator’s works. The most important matter to note is that right to attribution must be warranted to the authors of the work for the simple reason that their ownership on intellectual creations must be respected and is recognized under the New Civil Code. The law is clear on the matter that ownership is acquired by intellectual creation. Thus, ownership must be acknowledged because along side with this is an entitlement to certain rights.

However, it is important to point out that the existing copyright laws do not clearly outline the governing rules in a way to connect to the changing culture. The Intellectual Property Code has no clear-cut definition of fair use. The code only outlines the factors in determining it. Most of the time fair use is abused, as a defense and/or argument, by both parties.

The Intellectual Property Code also provides provision recognizing moral and economic rights. Undeniably, the legislature formulated these provisions in order to encourage artists, writers, inventors and other creators to be more innovative in exchange for a greater economic return on the use of their works. However, I also agree with the aim of Creative Commons to provide legal tools and use features of CC licenses to immediately convey to the public the limitations on the use of copyrighted works. What is essential is to provide a better notice to the public on their limitations. The principles and policy drafted in CC licenses will enable to provide better choices to creators on what rights they want to reserve. Our copyright laws must be formulated in a way to balance the interests of the creators and at the same time encourage to share more in order to develop our culture. It is important that the right to attribution must be observed.

Lastly, the campaign of to provide leeway on prohibitions on copyright laws to promote remix culture must be recognized. As pointed out, an individual is identified on his culture. The context of human right is basically about existence, nature and characteristic of a person. Human development must be the totality of a person. All rights must be respected. Hence, the call for the need to revise copyright laws does not seek the reduction of rights but a guideline to balancing-of-interests to allow copyright laws to connect to the changing culture.

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Sources:

 

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