FIFTY SHADES OF GREED: A Discourse on Our Copyright Law

 

The Best Things in Life are Free! This is a moto seemingly inculcated and deeply rooted in our Filipino values and culture. What could be better than those freely offered and enjoyed without obligation or reciprocation on your part? Have you tried the free ride bus of Ang Dating Daan, went to Luneta Park on valentines day, parked in a parking lot without parking fee, ask relief goods, find a chair in a mall without the for customers only or do not seat sign, get a free ticket for a concert or even just to redeem a free and limited promo t-shirt? All of these have one thing in common, it attracts people – and the market industry knows it. Have you tried to look at your favorite shampoo, shop for grocery items, choose a post paid plan for your phone, buy yourself a shirt, or observe any of your market transactions? The key word for a best buy are the capital letters FREE. The more freebies they offer, the most likely you are to give in. In all things in terms of economic wisdom, this is the most basic principle that most people, if not all, would gladly adopt. The attitude of Filipinos on haggling for the best buy reflects our desire to as much as possible pay less for more because we are concerned in increasing our individual properties. Ladies and gentle men, the issues that are faced by our Copyright Law nowadays are but carved primarily by this attitude. This article is a response to the clamor for an effective Copyright Law in the Philippines that would strike a balance between Copyright Owners and Consumers. Although no prescription is advised, as the author is not a doctor, nor is he a legislator to propose a bill amending our present Copyright Law, the author for unknown reason is compelled to trace the bone of contention to pave way for a better Copyright Reform.

Rooting it out

Copyright, also known as Author’s Right relates to artistic creations, such as books, music, paintings and sculptures, films and technology-based works such as computer programs and electronic databases.[1] This is a concept of British origin brought about as a reaction to printers’ monopolies at the beginning of the 18th century. Charles II of England was concerned by the unregulated copying of books and passed the Licensing of the Press Act 1662 by Act of Parliament.[2] Then came Statutes of Anne, Paris Convention, Berne Convention and the creation of World Intellectual Property Organization which enhanced Intellectual Property and Copyright Laws and pave way to recognition and protection of individual rights to intellectual properties and expressions. The idea of Copyright and Intellectual Property is a product of Capitalism which recognizes and upheld individual rights and properties. To state otherwise, the concept of Copyright is basically all about money vis property. In the Philippines, we have Republic Act 8293 otherwise known as the Intellectual Property Code of the Philippines as the law primarily governing Philippine copyrights. Section 2 of RA 8293 provides in part that “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 ensure market access for our products xxxx” – money talks again. Basically, the facade of copyright laws is all about money matters, but it also upholds a deeper essence that is the protection of expression. These are the two ingredients that make up the right of a copyright owner. A copyright owner under RA 8293 is vested with Economic Right under Section 177 of said law and Moral Right under Section 193 of the same law. Economic Rights consists of the exclusive right to authorize or prevent (177.1) Reproduction of work or substantial portion thereto; (177.2) its transformation; (177.3) distribution or transfer; (177.4) Rental; (177.5) Public display; (177.6) Public performance; and (177.7) other performance to the public of the work. Simply put, the economic rights of the copyright owner covers all economic transactions and endeavors of his work which is basically premised on his right to property of his work and therefore the accessory right to its fruits and accessions. Moral Rights, on the other hand, is consist of the right to (193.1) Authorship and attribution of the work to the copyright owner; (193.2) Make alterations or withhold its publication; (193.3) Object any derogatory actions against his work which are prejudicial to his honor or reputation; and (193.4) Restrain the use of his name for works not of his creation or in a distorted version of his work. Again, this right is rooted to the property right of the creator to use and abuse his creation, to possess title thereto and facilitate its transfer. These two rights however are not absolute. Section 184 of RA 8293 provides for the limitations on copyright which in sum are “interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder’s legitimate interest” (184.2). Section 185 further allows any use without copyright owner’s consent as long as it constitutes Fair Use – still premised on subsection 184.2. Furthermore, copyright law protects only the form of expression of ideas but NOT the ideas themselves. So that this recently published article vis blog, although may reflect the same ideas of several scholars and writers may not necessarily infringe the works of the latter if the manner and form of expressing these ideas are wholly or substantially different and apart. This could very well be premised on the fact that everything is under the sun. Ideas are but products or adaptations of other ideas which, if mixed with some other ideas, would create a wholly different or an innovation of the old idea. Take for instance Aristotle’s principle on Thesis, Anti-thesis and Synthesis. It is basically the clash of ideas that bring about a new or improved form of idea – yet with the intervention of another’s idea. So do we have to ask permission to use other’s idea in order to create another idea? Possibility and development wise, NO. So, what is being battled and enforced by copyright owners under our copyright laws? Is it their thymotic sense of pride to be recognized and attributed for their work or is it quit a simple battle for individual property right? Based on the abovementioned provisions of RA 8293, the answer is both yet the prevailing factor is still money vis property talk. Copyright owners are but the deserving beneficiaries of any considerations which may be derived by virtue of their creations. It is basically money that makes the world go round in terms of copyright industry – that’s why its birthplace is capitalism. Yet, another factor adds to the equation – CONSUMERS. Again, section 2 of RA 8293 on Declaration of Policy states that “the industrial property system is vital to the development of domestic and creative activity xxxx and promote defusion of knowledge an information for the promotion of national development and progress and the common good”. Said industrial property system is not complete without the consumers, for no defusion of knowledge nor information may take place without the attendance of people who would absorb or patronize the same. But the law does not simply require that consumers should only eat the food of wisdom courtesy of authors and artists, for like any other restaurants, it comes for a price. The declaration of policy simply tells us the ideal aspect of the law but not quiet all – should we blame it to semantics then? If we interpret the law as a whole, it can be inferred that it is for the national development and progress that we protect the individual property rights of copyright owners, because they are the key to national progress and development – an investment of the country. However, a consumer too has his/her own property rights, so that if he/she patronizes a book of a copyright owner, the latter’s work in relation to the form in which it was expressed becomes the possession of the former – in this case, the book. If the consumer now exercises a right of ownership over the book, legally, he/she has all the rights appertaining to an owner to the extent of the property purchased – but the same of course is not absolute. RA 8293, among other laws, prescribes for the limitations of the use of said work to the extent that it does not prejudice the right holder’s legitimate interest (184.2) – in this case, those appertaining to the economic and moral rights of the copyright owner. In this point of view, if one should keep a score, both the copyright owner and consumer are at par with one another to the point that each has vested and limited rights under the law (economic rights for the former; and right to fair use for the latter). However, the interplay of culture sets a smoky reaction. Anyone could assume the shoe of either consumer or copyright owner, yet the attitude observed in playing each role is intended for a wholly different avowal. As a consumer, you would most likely haggle for less the selling price, yet as the copyright owner you would want your price to be as high as possible – thereby creating a double standard. However, you should not be shocked my dear Filipino friend because this is but consistent with our attitude of paying less for more and more for less. This very attitude is what complicates our copyright law, but this article is not intended to sermon for social change. Classical political thinkers don’t argue much on culture but uses culture as a vehicle for legal framework. To state otherwise, this attitude operates as the land on which our copyright laws should be planted. The protection and regulation afforded by our copyright laws should be based primarily on this attitude. This is not to say that our legislatures are unaware of this, however, awareness alone is none sense. Our copyright laws should reflect the balance of rights between consumers and copyright owners, and to constantly tip the scale in case one out ways the other. Piracy of books, DVDs, Music, computer programs, games – to name a few, are but consequences of our natural tendencies to increase our individual properties either for a lesser period or for a lesser cost. To root it out, what is happening at present in the copyright industry is but the consequence of the government’s inaction by failing to constantly balance the natural tendency and attitude of a consumer and copyright owner before even defining and limiting their rights under this matter. This is vital because the basis of regulation is the protection of one’s right from the abusive exercise of a right of another.[3] Since copyright law is basically about enforcement and protection of individual property rights, abuse usually occur when either consumer or copyright owner over claim their individual property rights to the expense of the other.

Comparing Seeds

 

            In the international perspective, a man is still a man. Hence, a Filipino should not be ashamed nor boast his unique expression of greediness and frugality via paying less for more because all humans are created greedy – at least since capitalism and individual property rights were introduced. We all have tendencies and desires to increase our individual properties only that, our level of patience in terms of period of accumulating wealth varies. There are at least 50 Shades of Greed that are at our disposal as humans, so why feel unique for your greed when all of us have it. In the international arena, copyright laws of different States struggle basically because of constant clash between individual properties of copyright owners and consumers. Piracy for example is still rampant internationally – so don’t think Quiapo is its primary manufacturer. The development of technology carries with it other ways and forms of infringement. To name a few; the e-books, itunes or youtube are the primary challenge against copyright laws. If you ask whether our law (RA 8293) covers the following cyber transactions, the answer is a question. Is there itunes, ipad, or youtube on 1998 (the date when RA 8293 became effective)? It’s pretty obvious is it? The thing is, its not that easy to enact a law to include these matters in the cyberspace – even other States are struggling for a better copyright law. Different States employ various brands of copyright laws which are reflections of continuous struggle to balance consumer and copyright owner’s interests. In China for example, they have no equivalent to the doctrine of fair use but copyright law enforcement is lax – that explains the dvds. Protection under the copyright law also is quite limited. For example, recording of live sports broadcasts is not considered an infringement. Furthermore, no criminal liability is imposed in case of infringement when no monetary benefit is received. In contrast, US copyright law is much strict from enforcement to imposition of penalties. Criminal liability accrues even when no monetary benefit is derived from the infringing material. However, registration for copyright purposes is material in US since it evidence the enforcement of a protected right – in contrast to China who does not distinguish nor exercise preference between registered and unregistered work. These are few of the key brands of copyright laws which, by themselves, are reflections of subjective nature of the copyright industry. States adopt copyright policies based on the prevailing environment of the country. Different States face different problems in their respective copyright laws, but not all conflicts are results of the clashing interests of copyright owners and consumers. Few of the puzzles are attributable to other duties and priorities of a State. China for example limits the copyrighted materials crossing their border in order to protect its own local industry. However, this policy is of no consequence. Due to the scarce availability of foreign copyrighted materials, a local consumer has two options; (1) fly abroad and buy the desired copyrighted work, e.g. book/DVD or (2) look for a local copy that is not copyrighted.  Of the two choices, the latter is much applicable to most consumers in terms of economic status – this situation is also true in the Philippines. Of the above situations and State’s response thereof, Philippines as a State could always chose what method would be used to address its copyright problems. Would it adopt a strict but formal process of US or the laxity of China? Both have their pros and cons, either way, it is for us to find the one that fits.  

The Rotten Plant

 

             At present, our RA 8293 is viewed as outdated and in need for retouch. An amendment of RA 8293 is being proposed which would add teeth to the law. Among others, the bill ought to increase the power of Intellectual Property Office especially in the conduct of warrantless searches and seizures – this particular idea was received bitterly. Scholars criticized the bill as granting more rights than heinous crime victims. But with our present copyright law, copyright owners are at apparent loss. The limited scope of said law and its failure to cope up with technological developments limit the level of protection which may be afforded under our copyright laws. On the other hand, enforceability is another thing. A singer or producer for example is almost certainly sure that 8 out of 10 Filipinos has unauthorized downloads of his song, but enforcing his right under said law is quite impossible without breaking into the privacy of another. An author on the other hand could be at a serious loss due to the availability of book alikes, yet the gravaman could always argue his way out under the fair use doctrine or for his right to use and abuse the same. However, not everything that is the result of infringement is always against the copyright owner. Unauthorized upload of a live performance to youtube for example, although unauthorized publicity is still a publicity – and publicity is beneficial for a celebrity. In short, it is only the economic aspect vis right of the copyright owner that is being infringed. With regard to Moral Right, all that is attributable to the author vis owner is not affected – plagiarism aside. Illegal downloads of music, books, and even recording of live performances does not affect nor separate the work from its owner. In short, the battlefield is only set for a purely economic matter vis the right to the fruits of the copyright work. In this case, if no monetary benefit is derived out of infringement, would it be proper to impose a penalty? Civilly, damages are but proper due to the loss of income or any fruits which properly appertain to the person who should properly receive the same. Criminally, Section 217 of the law pertains to infringement for monetary consideration such as but not limited to sale or trade. But a person in possession of an infringed material, although not maintaining the same for purposes of sale or trade may be put to prison by aiding or abetting – this is without prejudice to other laws penalizing the same act. However, it is noteworthy that the protection granted by law to copyright owners is to be interpreted as a form of incentive since the latter are vehicle for industrial development and diffusion of knowledge and information. Too much focus on the economic right of the copyright owner is futile to the society since a capitalist world has always the tendency to encourage accumulation of individual wealth in so far as it is legal without necessarily being just. In particular, a producer who invests for his talent is driven to lay the hen as many golden eggs as possible. To state otherwise, a side of our copyright industry is being used as purely for income generating purposes and crossing out its public purpose. This is not however the whole story – consumers have their own brand of abuse and greed. But we cannot close our eyes to the fact that copyright owners have their share of blame too. A capitalist society is structured in a way that goods and commodities are distributed based on individual’s economic means. Branded shirts for example are worn only by those who can afford them but that doesn’t mean that the poor are left naked. However, quality and luxury wise, them who are economically capable enjoy most of the pleasures, comforts and developments that the society can offer. For an individual in the upper and middle tier of the society, a P200.00 song album or P400.00 DVD is a reasonable price of commodity. However, most in our society are not that capable yet, these things should reach them in order to fulfill the public purpose of the law.

Planting a New

Our present copyright law is separated from the real world. Without further elaborating on technical matters, protection afforded to copyright owners are toothless bastard in their eyes, yet for consumers, provisions of the law are threatening and confusing if one dwells into their possible implications and analogous interpretations. The absence of a clear and inadvertent provision of the law permits different possibilities and a bunch of arguments. When the law shut its mouth, other will talk on its behalf. The matter on copyright law is very much confusing nowadays unlike before when men view society in tribes. The presence of a globalized society permits international trades of copyrightable items but without a uniform law governing them – in the sense that States varies in policies and level of enforcements. However, a standard of copyright law should be based mainly on moderation of greed between its parties. Copyright owners for example should be granted protection under the condition that they’d register and that prices shall not be unconscionable and that the period of protection should be shorter in order to constantly monitor its circulation and relevance. Limited copies of the work should be distributed immediately after registration in public libraries or facilities for the public who cannot afford them. It is only when the government should take the copyright industry as vested with public interest that the consumers would have no other reason but to comply. Taking seriously this matter is vital in the sense that consumers and copyright owners would not continuously battle and keep scores as to who of them are deriving most benefit. Piracy is an industry that also requires consumers. Satisfy the consumers and cross out reasons for them not to patronize piracy, then no pirate industry will live. If piracy could not be avoided, why not regulate them and issue involuntary sub copyrights to them as legal agents of the real copyright owner and impose tax on them subject to limitations on production. Part of the tax may be given to copyright owners. Since the form of expression of idea is what is protected, let those pirated copies of inferior quality be registered since they are made in inferior form subject to the abovementioned condition. Absurd it may be but this is the only thing that our copyright law should operate based on the real idea from which it was made. Again, it is noteworthy that copyright law took its roots as a reaction from printer’s monopolies. Hence, it is in this case that the government should always be kept on guard – avoiding the copyright law to be used as a vehicle for monopoly. To satisfy the greed of both consumer and copyright owner, the State should feed both of them in equal share and check in constant whether one should take the food of the other not because it legally belong to the other, but because by so doing, the other is left with starving.                


[1] Copyright in Historical Perspective, p. 136-137, Patterson, 1968, VanderbiltUniv. Press. Copyrighthistory.com. Retrieved 2013-03-9.

[2] Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing.. p. 13. ISBN 978-1-84542-282-0

[3] see Article 19 of the New Civil Code

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One Response to FIFTY SHADES OF GREED: A Discourse on Our Copyright Law

  1. Pingback: Abucejo, Vincent Tito | AUSL Tech & Law

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