I. Introduction
II. The Creative Commons Global Summit 2013
III. Sharing Creativity and Information in the Realm of Copyright Law
IV. Conclusion
I. INTRODUCTION
Republic Act No. 8293 or otherwise known as the Intellectual Property Code of the
Creativity is defined as the tendency to generate or recognize
ideas, alternatives, or possibilities that may be useful in solving problems,
communicating with others, and entertaining ourselves and others. People are motivated to be creative because of
the need for novel, varied, and complex stimulation; need to communicate ideas and values; and the need to
solve problems. It is also an act, idea, or product that changes an existing
domain, or that transforms an existing domain into a new one. What counts is
whether the novelty he or she produces is accepted for inclusion in the domain.[ii]
In order to be creative, you need to be able to view things in
new ways or from a different perspective. Among other things, you need to be
able to generate new possibilities or new alternatives. Tests of creativity
measure not only the number of alternatives that people can generate but the
uniqueness of those alternatives. the ability to generate alternatives or to
see things uniquely does not occur by change; it is linked to other, more
fundamental qualities of thinking, such as flexibility, tolerance of ambiguity
or unpredictability, and the enjoyment of things heretofore unknown.[iii]
Information, in its most
restricted technical sense, is a sequence of symbols that can be interpreted as a message.
Information can be recorded as signs,
or transmitted as signals.
Information is any kind of event that
affects the state of a dynamic
system that can interpret the
information. Conceptually, information is the message (utterance or expression) being conveyed. Therefore, in a general
sense, information is "Knowledge
communicated or received concerning a particular fact or circumstance",
or rather, information is an answer to a question. Information cannot be predicted and
resolves uncertainty. The uncertainty of an event is measured by its
probability of occurrence and is inversely proportional to that. The more
uncertain an event, the more information is required to resolve uncertainty of
that event.[iv]
Copyright or economic rights shall consist of the exclusive
right to carry out, authorize or prevent the acts enumerated in Section 177 of
the Intellectual Property Code of the Philippines[v].
On the otherhand, moral rights or the grant of an assignment or license with
respect to such right, have the right as enumerated in Section 193 of the same
code[vi].
Fair use is the non-competive right to use of copyrighted
material without giving the author the right to compensation or to sue for
infringement of copyright. Witht the
growing use of copy machines, teachers and businesses copy articles, pages of
textx, charts and excerpts for classroom use, advice to employees or to assist
in research without violating the copyright. For example, Professor Elmer
Smedley makes 100 copies of a photograph from Time magazine of starving
Somalians to illustrate to his students the deprivations in Africa (which is
fair use), but then Smedley publishes a book Africa on the Brink, and uses the
photograph in a chapter on starvation (not fair use), and is responsible to the
photographer for a royalty[vii].
Sharing one’s creativity according Professor Lessig is a time
honored tradition to RESPONSE to a CALL or STIMULUS. Especially so in this
world of digital technology, the culture to response to a call or stimulus is increasing
and as fast as one could imagine. In this culture of “Call and Response”, violations
of copyright laws is inevitable. We are
motivated by our desire to share our creativity to the fullest extent without
being aware that we are already violating laws on copyright. We have the
tendecy to share illegally because we tend to share our creativity. We are expected to share more but certain
laws on copyright constraint us to share less. We are encouraged to create a
movement to build a culture to free and liberate us from the bondage of
insensibility to our innate right to share our creativity and create a platform
of global and universal law to share more without violating the laws. It is a call that will challenge everyone all
over the world to gave global recogniton to defend against crazy lawyers and to
those who consider creativity as something they need to curtail.
The digital information world is a world of REMIX. In the manifesto of the right to remix
organization website. it states 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 whle new level. More people are able to edit
and share a greater range of works that even before. More than ever, it has
become clear that “everything is a remix”[viii].
It is in this context and perspective that issues on the
curtailment of freedom of expression that is guaranteed by no less than the
supreme law of the land, of freedom to fully express ourselves subject of
course to certain restrictions and limitations by laws, or of freedom to share our creativity and
innovativeness to the whole world vis-à-vis the laws on copyright that this so
called “freedom” and “right” tends to violate is a very interesting and
debatable topic that was extensive discussed by an able and competent Professor
who acted as the lead resource person in the recently concluded international
summit on creative commons.
II.
THE CREATIVE COMMMONS GLOBAL SUMMIT 2013
In August 2013 in Buenos
Aires , Argentina Harvard
Law School
and Director of the Edmond J. Safra Center for
Ethics at Harvard
University
In the aforementioned summit, Professor Lessig discussed that
people around the world have this sense of culture to share but sharing
illegally or against the law, sharing too little because of the restrictions
and limitations imposed by copyright law.
People from all walks of life response to a call or stimulus. When someone see a video or hear a music
video, he responses to it by uploading videos or music videos that are already
customized, modified, revised and in another form that reflects his sense of
creativity and according to how he feels, The time honored tradition of
response to a call or by creating a remix of what he has seen or heard.
Different versions or interpretations come up from one and the same
source. People are inspired to response
differently according to his uniqueness, creativity, innovativeness, and
culture. Accordingly, the culture to response to certain call is increasing in
the world of digital technology in the sense that is quite fast and readily
available to share the result of one’s creativity or innovativeness. However, as Professor Lessig pointed out,
people tend to share the product of his creativity or innovativeness in
violation of certain laws on copyright and rights of other people. Thus, according to him, we share a little
even though we are expected to share more because of issues on copyright.
Ideas on how copyright can be improved is a big challenge to
all the people around the word. This is
a global issue and global concern since culture is changing, we need to change
our laws on copyright to balance the response to call or stimulus and adopt to
culture of the time. To balance the remix of the works of others without
violating their rights also. Ours is culture that is constantly changing
especially so in this digital world where youtube, facebook, and similar
plaforms are commonly used by almost everyone.
In the world of Digital Information, we can share globally
because of the so called TCP/IP of Information Technology. We share Remix or
modifications or transformation of someone’s creation. In essence, sometimes
the law tells not to do this. But
according to Professor Lessig, what right do we have to stop others from
sharing his creativity. What right do we
have to stop them from sharin their labor of love rather than love for money.
They are just motivated by their sense of creativity.
In addition, there is this so called “fair use”. Section 185
of the Intellectual Property Law provides that fair 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.
Decompilation, which is understood here to be 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 may also constitute
fair use. In determining whether the use
made of a work in any particular case is
fair use, the factors enumerated in Section 185.1 are to be considered.[ix]
In general, Creative Commons is a great way to let other
remix your works. Creative Commons,
however, cannot fully compensate for a legalized right to remix, for several
reasons: The pood of works available for remix would be limited to Creative
Commons-licensed works. And despite the number of Creative Common-licensed
works continuously growing, this still only represent a tiny fraction of all
available works, many creators who are members of collecting societies, like
the German GEMA, for instance, are not allowed to publish individual works and
under Creative Commons license and a core characteristics of remix culture is
the transformation and creative usage of mainstream cultural artifacts- these
in particular are usually not released unders a Creative Common license[x].
Creative Commons is a nonprofit organization that enables the sharing and
use of creativity and knowledge through free legal tools. The free, easy-to-use
copyright licenses provide a simple, standardized way to give the public
permission to share and use your creative work — on conditions of your choice.
CC licenses let you easily change your copyright terms from the default of “all
rights reserved” to “some rights reserved.”
Creative Commons licenses are not an alternative to copyright. They work
alongside copyright and enable you to modify your copyright terms to best suit
your needs[xi].
Professor Lessig proposes there ways to suppot remix. First, practice
remix, thus upholding the right to remix. Second, defend the practice of
remix and ensure that the
extreme penalties are meted out to equally abusive companies and pirates. Third,
embarrass those who resist the practice of remix.
Professor Lessig likewise discussed the need to have a global
laws that could be adopted universally to protect people of the right to share
their creativity and the right to share information which may resolve our fight
to corruption. Their should be
modifications on existing copyright laws to balance the sense of creativity and
the need to share information against the violation of other’s right. The need
to modify laws so that the Remix of original works is not put to a stop as this
form of remix is also a product of one’s creativity that he wants to share to
the whole world. There should be “free
culture movement” and the realization
that “sharing is not stealing” to a certain extent. The battle of those who
fight for this movement, should be our battle too. And their victory against
this curtailment of freedom is also our victory.
III. Sharing Creativity and Information in the Realm of
Copyright Law
The Law on Copyright
as provided for in the Intellectual Property Code of the Philippines, provides express enumerations of subject matter which
are not protected by the said code, to wit Section 175 provides that Notwithstanding
the provisions of Sections 172 and 173, no protection shall extend, under this
law, to any idea, procedure, system, method or operation, concept, principle,
discovery or mere data as such, even if they are expressed, explained,
illustrated or embodied in a work; news of the day and other miscellaneous
facts having the character of mere items of press information; or any official
text of a legislative, administrative or legal nature, as well as any official
translation thereof[xii].
Further, the
same code provides unders Section 184[xiii], the Limitations on
Copyright. In addition, the fair use under Section 185 are also expressly
enumerated[xiv].
Creativity as earlier defined is the
tendency to generate or recognize ideas, alternatives, or possibilities that
may be useful in solving problems, communicating with others, and entertaining
ourselves and others. People are
motivated to be creative because of the need for novel, varied, and complex
stimulation; need to communicate ideas
and values; and the need to solve problems. It is also an act, idea, or product
that changes an existing domain, or that transforms an existing domain into a
new one. What counts is whether the novelty he or she produces is accepted for
inclusion in the domain. With this broad definition of Creativity.
After having discussed what are the
exceptions, limitations of copyright law and the acts which constitute fair
use, we can now discuss Creativity in the realm of Intellectual Property Code.
As pointed out in the above mentioned summit, sharing and expression of one’s
creativity to the digital information world often results to violation of
copyright. Thus, people from all walks of life often shares creativity with the
inclusion of remix and sharing of information resulted to sharing less since we
are being constrained by copyright.
There were already some moves to change or modify the copyright laws to
include the remix or transformation and re-use of previous works into a
different forms and style as part of the protected subject matter of
copyright.
It is thus very clear that sharing
creativity and information are regulated by copyright law. It is well within
the realm of copyright law that ensure that sharing as such is not violative of
the provisions of the law as well as the rights of others. Considering that
Creativity is with the realm of the copyright law, we are proposing certain
amendments our existing laws in order to encourage sharing of creativity and
information as this promotes freedom of expression and a culture of
sharing. As long as what is being
shared is not contrary to morals, good
custom, public order and public policy, one should not be curtailed of his
freedom to re-create and remix as a
result of his creativity or innovativeness.
We only response to a call or stimulus in
accordance to how we feel and how we are expected to do. There are certain
violations that we may encounter form time to time but we should he wary of the
fact that our freedom is not an absolute one for our freedom ends when we start
to violate the rights of others and the rule of law.
IV. CONCLUSION
The
freedom of expression is an essential element of democracy and human
rights. It is fundamental to the democratic process, to good governance
and to exposing corruption and human rights violations. It may
legitimately be restricted only in certain prescribed circumstances[xv].
In
recommeding possible modifications to our existing laws, the author of this
blog would like to propose the same modifications that the Digitale Gesellschaft e. V. proposes to be introduced in the
European and National Copyright Law as published in their website. Accordingly, the right to remix as a
combination of three creative rights[xvi]:
-
The right to change works during usage and to publish the results. (Transformative
usage right(s) with lump-sum compensation, e.g.background music in mobile phone
videos)
- The right to create and to publish remixes of existing works. (Remix right(s) with lump-sum compensation, e.g. fake trailer for a TV series)
- Te right to commercialise remixes, in exchange for appropriate compensation.Remix commercialization right(s) subject to compulsory licensing, e.g. selling music mash-ups on iTunes)
If you want to give people the right to share, use, and even build upon a
work you’ve created, you should consider publishing it under a Creative Commons
license. CC gives you flexibility (for example, you can choose to allow only
non-commercial uses) and protects the people who use your work, so they don’t
have to worry about copyright infringement, as long as they abide by the
conditions you have specified.
If you’re looking for content that you can freely and legally use, there is
a giant pool of CC-licensed creativity available to you. There are hundreds of
millions of works — from songs and videos to scientific and academic material —
available to the public for free and legal use under the terms of our copyright
licenses, with more being contributed every day.
Creative Commons believes that as revolutionary a concept
as open licensing is, licenses alone won’t achieve our goal of a more inclusive
internet and greater access to knowledge and culture[xvii].
To
end, I would like to reiterate what Professor Lessig had shared in the summit
that Sharing one’s creativity is a time honored tradition to RESPONSE to a CALL
or STIMULUS. In this culture of “Call and Response”, violations of copyright
laws is inevitable. We are expected to
share more but certain laws on copyright constraint us to share less. We are
encouraged to create a movement to build a culture to free and liberate us from
the bondage of insensibility to our innate right to share our creativity and
create a platform of global and universal law to share more without violating
the laws. Our existing laws on copyright
must be revisited to adopt to the ever changing needs of the information
society. We should learn to balance our
freedom against the rights of someone and the laws currently in place. Global recognition of the need to change
copyright laws and the need for a forum like the recently concluded summit on
Creative Commons are very positive indications that people from all walks life
bind together for a common cause, for the common good and for the common rule
of law.
(Disclaimer: This article is written for academic purposes
only. The views expressed by the author are that of a non-lawyer. They should
not be treated as legal advise or legal opinion.)
[i] RA No. 8293 Section 2 – The State
recognizes that an effective intellectual and industrial property system is
vital to the development of domestic and creative activity, facilitates
transfer of technology, attracts foreign investments,and ensures market access
for our products. It 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 periods as provided in this Act.
The use of intellectual property
bears a social function. To this end,the State shall promote the diffusion of
knowledge and information for the promotion of national development and
progress and the common good.
It is also the policy of the
State to streamline administrative procedures of registering patents,
trademarks and copyright, to liberalize the registraion on the transfer of
technology, and to enhance the enforcement of intellectual property rights in
the Philippines.
[iv] http://en.wikipedia.org/wiki/Information
Chapter VIII oF Intellectual Property Code of the
Philippines
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 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; (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.
[vi] Section 193.. Scope of Moral Rights. — The
author of a work shall, independently of the economic rights in Section 177 or
the grant of an assignment or license with respect to such right, have the
right:
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;
193.2. To make any alterations of his work prior to, or to
withhold it from publication;
193.3. 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
193.4. 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. (Sec. 34,
P.D. No.49)
In determining whether the use made of a
work in any particular case is fair use, the factors to be considered shall
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.
185.2. The fact that a work is unpublished
shall not by itself bar a finding of fair use if such finding is made upon
consideration of all the above
[xii]Section 175. Unprotected Subject Matter. — Notwithstanding
the provisions of Sections 172 and 173, no protection shall extend, under this
law, to any idea, procedure, system, method or operation, concept, principle,
discovery or mere data as such, even if they are expressed, explained,
illustrated or embodied in a work; news of the day and other miscellaneous
facts having the character of mere items of press information; or any official
text of a legislative, administrative or legal nature, as well as any official
translation thereof. (n)
184.1. Notwithstanding the provisions
of Chapter V, the following acts shall not constitute infringement of
copyright:
a. 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; (Sec. 10(1), P.D. No. 49)
b. 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; (Sec. 11, third par., P.D.
No. 49)
c. 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; (Sec. 11, P.D. No.
49)
d. 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; (Sec. 12, P.D. No. 49) e. 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; f. 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;
g. The making of ephemeral recordings
by a broadcasting organization by means of its own facilities and for use in
its own broadcast; 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;
i. 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) j. 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
k. Any use made of a work for the
purpose of any judicial proceedings or for the giving of professional advice by
a legal practitioner.
185.1. The fair 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. Decompilation, which is
understood here to be 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 may also constitute fair use. In
determining whether the use made of a work in any particular case is fair use,
the factors to be considered shall 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.
185.2. The fact that a work is
unpublished shall not by itself bar a finding of fair use if such finding is
made upon consideration of all the above factors.
[xvi] http://www.wikileaks-forum.com/world-wide-web/567/right-to-remix-initiative-for-a-european-copyright-reform/22364/
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