The
Role of Copyright
If we were to summarize the raison d'être of
copyright law, it would be thus, “the encouragement of learning”[i]. The first copyright act in the United Kingdom
(UK), the Statute of Anne of 1710 was, in fact, subtitled “An Act for the
Encouragement of Learning, by vesting the Copies of Printed Books in the
Authors”[ii]. It is not, as would appear at first
blush, simply the protection of the “expression” of an author or creator of an
original work. These expressions are
being protected precisely to give authors and creators the freedom incentive to
create and to share their knowledge and ideas in tangible form without the fear
of other people taking credit for and profiting from them. So, therefore, while protecting the rights of
ownership, copyright also serves a social function. It is in this context that the role and the
future of copyright laws must be appreciated.
Intimately connected
with the creation of knowledge is the concept of “authorship”. The amount of time, energy, money, and
thought that goes into a “work” or “creation” cannot be lightly brushed
aside. And as an attribute of ownership,
the right of control over these works/creations naturally is vested upon their authors/creators.
In this regard, copyright law has provided
authors/creators with the mechanisms for the protection of such right and for
redress for its infringement. Such
works/creations are also rightfully considered as investments and copyright law
has, thus, given authors/creators the opportunity to capitalize on these
investments.
Back in the days
when there was yet no copyright laws, the likes of Shakespeare had to resort to
ingenious ways to keep their works from the public while also making a profit
out of such works. It was common
practice for Shakespeare and his contemporaries to furnish their actors only
with the scripts for their own characters while the full text of the play stays
with the writer. This is to “make
unauthorized performances and publishing the full text more difficult”[iii].
Imagine living in a
world like Shakespeare’s; a world where the Spielbergs and Ricky Lees of the
world would have to keep their works from the public to protect their income. Who would bother writing and publishing the
Harry Potter series or The Hunger Games when there was hardly a way to profit
from it? Luckily for us, the writers of
the 1700s fought and lobbied for the right to “retain the value of their ideas”
[iv] and
won.
But beyond the rights
of the individual authors and creators is the bigger body of knowledge that the
copyright law seeks to enrich. Without
the protection that this branch of the law affords, not only will authors and
creators be hard-pressed for an incentive to share their work they will also
have to actively keep it from the public if only to ensure a return on their
investment.
Dialogues and
discourse are the foundation of knowledge.
It is a beautiful irony that we grow in wisdom by sharing and by sharing
we create wisdom. As abovementioned, copyright
laws came into existence because of the need to encourage learning and the
growth of information. It was devised to
encourage the sharing of information; as a means to encourage authors and
creators to share their works to the public.
Therefore, it would seem that protecting the authors’ rights is
necessary to achieve the end sought which is the growth of information. It cannot be denied that some “create” for
the love of their craft but it is equally true that many of the very best of
these creations require a significant amount of investment. And without such protection it is very likely
that we will end up killing the goose that lays the golden eggs.
It
is, thus, essential to strike a balance between ensuring a fair reward for
authors/creators for their works/creations and an “open discussion of ideas”[v] failing
which will render nugatory the very foundation of its existence.
Fair
Use
Thus, if we were to imagine the balancing act that
lawmakers have to deal with in copyright, we will have on the one end of the
balance the bundle of rights belonging to the copyright owner and fair use (or
fair dealing in the UK) on the other end; “creator and user”. Fair use is the mechanism which allows the
sharing of knowledge.
Fair use is one of the most significant limitations
on copyright. What uses or scenarios
would come under the concept of “fair use” varies in different jurisdictions
but generally it is the principle that allows certain “uses” of copyrighted
work without securing permission or compensating the owner of the copyright[vi].
Direction
taken by other countries
To continue being relevant, copyright law must, of
necessity, evolve with the “changes in technology and social attitudes”[vii]. The ease by which media content and
information are shared, downloaded, stored, and replicated have given the issue
of copyright a different dimension. The
advancements in technology have upset the delicate balance of intellectual
property and information freedom and different jurisdictions have reacted in
different ways.
The
Digital Millennium Copyright Act (DMCA) of the U.S., enacted in 1998, contains
a “safe harbor” provision, which shields “online service providers from most
forms of liability for the infringing acts of their users, provided that the
service providers comply with certain requirements after becoming aware of such
acts”[viii]. Under the said provision a service provider
shall not be held liable for any infringement if “it has neither ‘actual
knowledge’ of infringement by its users nor awareness of ‘facts or
circumstances from which infringing activity is apparent’”[ix]. In a recent decision, the U.S. Court of
Appeals for the Second Circuit has ruled that in order to make service providers
liable for the infringing acts of its users, awareness of a “specific
infringing activity” is an essential element, and even then they can only be
held liable if it fails to “expeditiously” remove the infringing material[x].
As
to the importation of copyrighted material for personal use, countries like the
U.S., Australia, and the U.K. have all
taken to provide for this exception under their respective copyright laws
albeit under specific and narrow cases.
Direction
taken by the Philippines
On this side of the world, legislators have taken a
different approach to copyright law amendments.
The bicameral bill which seeks to amend certain provisions of R.A. 8293,
otherwise known as “The Intellectual Property Code of the Philippines” (Note: as of posting, President Benigno
Aquino III signed Republic Act 10372 into law on the amendments to the IP Code
amidst controversies on some of its provisions) has the following
controversial features:
1.
Under
Sec. 2 of said bill, the Intellectual Property Office (IPO), through its
Director-General, shall have visitorial powers over “establishments and
businesses engaging in activities violating intellectual property rights and
provisions [of this act] based on
report, information, or complaint received by the office” (Emphasis
supplied).
2. Under Sec. 5, it adds another
dimension to the definition of “reproduction”. Under this expanded definition, any
making of one (1) or more copies of a work, even if only temporary is already “reproduction” which, if unauthorized by
the creator/author constitutes infringement of copyright.
3. Sec. 14 deletes in its entirety the Secs. 190.1 and 190.2 on importation
for personal purposes.
4.
Sec.
22 extends the liability for
infringing acts to any person who “[b]enefits from the infringing activity of
another person xxx if the person
benefiting has been given notice of the infringing activity and has the
right and ability to control the activities of the other person” (Emphasis
supplied).
The
“visitorial power” granted under Sec. 2 of the bicameral bill is symptomatic of
the general direction that this Congress has been taking in addressing the
issues of today. The direction
undertaken by this bill is clearly leaning towards more government control and
less due process and right to privacy; this despite the clear Constitutional
mandate against unreasonable searches and seizures.
The
bicameral bill (Note: R.A. 10732)
has also expanded the coverage of the term “reproduction” as an infringing act
to include even the mere making of temporary copies. So, therefore, while under the current state
of the Philippine IP Law, the mere “use” of pirated software, for as long as
you are not making copies of said software, is not in itself an infringing
act. However, once this amendment
becomes law, even simply “running” a piece of software on your computer, which
act creates a temporary copy in the computer’s memory, is already an infringing
act[xi].
Equally
controversial as the above amendments is the deletion of the provision on “personal
use”. While under the current regime
allowances are given for the importation of copies of copyrighted works for
personal use, and the law sets out the qualifications and specific instances covered
under “importation for personal use”, the amendments to the IP Code, if they do
become effective, shall remove our rights to bring home copyrighted materials
even if strictly for personal use only.
As abovementioned, the practice in other countries is to provide for a
“personal use” exception under their copyright laws, under specific and narrow
cases. This proposed amendment is a
complete deviation from the international standard and practice because the
“personal use” exception is deleted entirely.
Thus, the explanation given by the Intellectual Property Office
Director-General Ric Blancaflor, that the deletion was actually intended to
broaden the rights under “personal use” because the deleted provision actually
limited such right, finds no legal support even in international practice. It is argued that without the provision on
“Importation for Personal Use”, the amended IP Code will actually allow the
importation for personal use beyond that previously allowed by the law. However, as pointed out by some camps without
this provision on the “personal use” exception, importation of copyrighted
works, even if for personal use, will cease to have a legal leg to stand
on. It is a statutory right given to
users and a limitation upon the rights of copyright owners; absent this
provision, the law in effect disallows the importation of copyrighted materials
without prior authorization of the copyright owner under any and all
circumstances.
To
assuage consumers’ fears, the argument posed by the Intellectual Property
Office is that the said office actually has a good relationship with the Bureau
of Customs; hence, “there can be no misinterpretation of the real intention of
the amendment”[xii]. This argument must fail because by completely
deleting the provisions on “personal use” there is simply nothing to interpret
or to misinterpret for that matter.
Another
controversial amendment is the provision extending liability for an infringing
act to anyone who benefits from said act and “who has been given notice of the
infringing activity and has the right and ability to control the activities of
the other person”. Liability attaches as
soon as said person becomes aware of the infringing act. If this amendment becomes effective, a computer-shop
owner who receives payment for use of their facilities, will incur liability
for the infringing acts of its customers as soon as said owner is notified of
the infringing act[xiii]. There is, thus, “no opportunity to remedy the
situation”[xiv].
As discussed above, the Digital
Millennium Copyright Act (DMCA) of the U.S. with its “safe harbor” provision,
at least allows such third parties the remedy of removing the infringing
material to escape liability. This makes
more sense as in such a scenario what is in effect being penalized is the
failure or omission to remove the infringing material after due notice.
Quo vadis?
It
would appear from the discussion above that the direction intended for
copyright law in the Philippines is towards substantially limiting the public’s
access to copyrighted work while strengthening the mechanism for the protection
of the rights of copyright owners. While
the protection of authors’/creators’ rights are desirable enough this cannot be
pursued at the expense of the growth of knowledge and the public’s
access to information.
We
turn our attention back to the historical roots of copyright law. As earlier mentioned, copyright laws came
into being as a means to encourage learning.
The rights belonging to the copyright owner are “property rights” as a necessary
incident of their ownership of the original work. Copyright law was, thus, put in place not to
establish such rights but for the double purpose of establishing a mechanism
for the protection of such rights thereby encouraging copyright owners to “create”
and “share” their work to the public.
Without such laws, we go back to the days of old when authors and
creators devised ways to monopolize access to their works so as to maximize its
economic value. Such a state of affairs
would effectively prevent the sharing of knowledge, discourse, and ultimately
learning.
Thus, the desired
effect is, in reality, the growth of knowledge through free use and access to
information. Even our 1987 Constitution recognizes the role
of copyright, thus, in Sec. 13, Art. XIV, it provides:
Section
13. 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.
(Emphasis supplied)
So,
therefore, I submit that in substantially limiting the public’s use of and
access to copyrighted works is to lose sight of the very objective of copyright
law. It cannot be said that the
protection of copyright is an end in itself.
It is only the means by which we encourage discourse and the sharing of
information.
Our
legislators will do well to remember that “copyright laws are based on [the]
expectation that, by creating these property rights, we will encourage the creation
of new artistic and literary works”[xv]. Thus, whatever amendments will be introduced
in the future should be in view of such purpose.
Back to the Past
To continue down the
road the abovementioned bicameral bill is looking to take will result to a negation
not only of the raison d'être of copyright law but also nullify whatever gains
we have achieved in information technology.
While the rest of
the world continues with its path of globalization and the continued
development of the internet as the information gateway, I submit that the
Philippines would be in a better position if it were to align its laws with
these developments. As the world becomes
more interconnected the response is hardly to restrain the same. Otherwise, such laws may stifle ingenuity and
undermine whatever strides we have achieved in technological development.
[i] Parry, Roger. The Changing Role of Copyright.Web. 4
March 2013. http://copyright-debate.co.uk/?p=159
[ii]History
of Copyright.Web.
5 March 2013.
http://www.copyrightsandwrongs.nen.gov.uk/ipr-and-copyright/history-of-copyright
[iii]Supra.
[iv]Id.
[v]Id.
[vi]Regents of the University of
Minnesota.Understanding Fair Use.Web.
5 March 2013. https://www.lib.umn.edu/copyright/fairuse
[vii]Supra.
[viii]Covington & Burling LLP.Significant Developments in U.S. and
European Copyright Law 2012.Web. 5 March 2013. http://www.cov.com/files/FirmService/00db8d97-278e-47d2-937d-865859233f2f/Presentation/ceFirmServiceBrochure/Significant%20Developments%20in%20U.S.%20and%20European%20Copyright%20Law%202012.pdf
[ix]Ibid
[x]Ibid
[xi]Dimacali, TJ. New IP law allows warrantless searches,
'erases' right to personal use. GMA News. 14 February 2013. Web. 5 March
2013.
http://www.gmanetwork.com/news/story/294998/scitech/technology/new-ip-law-allows-warrantless-searches-erases-right-to-personal-use\
[xii]Ibid.
[xiii]Ibid.
[xiv]Ibid.
[xv] Sprigman, Christopher. Copyright and the Rule of Reason. Web. 6
March 2013. http://jthtl.org/content/articles/V7I2/JTHTLv7i2_Sprigman.PDF
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