Too Many Walls/A Whole New World: Of IP Law Reform

A popular 80s song lamented of too many walls put between the singer and a love interest. The lyrics to this song encapsulate my reaction regarding IP Law Reform in the Philippines- there are too many walls between the end-user and copyrighted material, and such restrictions render Constitutional mandates nugatory, stifling intellectual creation rather than stimulating it, to the detriment of national development. And these laws were introduced as we enter A Whole New World- a “remix culture,” as stated by Prof. Lawrence Lessig, wherein consumers of media also feel entitled to create.

To comprehend the so-called “reforms” to Philippine Intellectual Property Law, we must understand the following:

  1. What is Intellectual Property Law?
  2. What is “copyright” and how is it significant?
  3. What significant amendments were introduced by RA 10372?
  4. What are emerging global trends or areas of concern in IP law?
  5. How do these reforms affect me as a consumer and creator of intellectual property?

 

I will close by giving my stand on how I think IP should develop in the Philippines.

 

On Intellectual Property Law

 

Intellectual property (IP) refers to any creation or product of the human mind or intellect. It can be an invention, an original design, a practical application of a good idea, a mark of ownership such as trademark, or literary and artistic works, among other things.[1] It is interesting to note that the term “intellectual property rights” is defined in Section 4[2] of RA 8293 by enumeration. By reading Article 721 of the Civil Code of the Philippines,[3] it can be gleaned that there are two dimensions to IP in Philippine law- the definition of IP rights in the Intellectual Property Code, and who owns such IP rights in the Civil Code. IP is divided into two categories:  Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.

 

On Copyright

 

The WIPO defined copyright as a legal term used to describe the rights that creators have over their literary and artistic works.[4] Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.[5] With respect to copyright, Philippine law further differentiates between original and derivative works. Original works are defined in Part IV, Chapter II of the IP Code, and is defined thus: “Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations in the literary and artistic domain protected from the moment of their creation,” and an enumeration in Section 172 thereof. Derivative works, on the other hand, are defined in Section 173 of the IP Code, and include, by enumeration, dramatizations, translations, adaptations and the like, and also collections of literary, scholarly or artistic works, compilations of data, and other similar materials. To illustrate, an original work would be a fictional narrative in English about massive robots were built by humans to fight hand-to-hand with larger than life mutations from the sea. Derivative work would be a movie based on the said fictional narrative. Also, a dubbed-in-Filipino movie translation is a derivative work. Often, copyrights are intertwined with other intellectual property rights. In the said example, the likeness of the giant robot may be trademarked or copyrighted separately. What is the significance of a copyright, or even broadly, intellectual property rights for that matter?

The Constitution provides that 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.[6] It also provides that The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression.[7] IP is so important that the framers of the Constitution deemed it fit to enshrine statutory protection over intellectual property in the nation’s organic law. It can thus be seen that aside from protecting the rights of inventors, artists, and other owners of intellectual property, the law deems that such grant of protection must be for the benefit of the people. Copyright initially was conceived as a way for government to restrict printing; the contemporary intent of copyright is to promote the creation of new works by giving authors control of and profit from them.[8] In other words, the reason for the State’s grant of protection to creators of copyrightable material is to ensure profitability, so that creators continue creating material and adding to the greater body of intellectual creation, thereby enriching culture in the process.

 

On RA 10372 and changes it introduced

 

On February 28, 2013, Pres. Aquino signed into law RA 10372, an amendatory act to the Intellectual Property Code of the Philippines. In the sponsorship speech of Sen. Manny Villar endorsing amendments to the IP Code, he cited the case of Freddie Aguilar, composer of the very popular song “Anak.” Aguilar reportedly assigned all his rights to a music publisher, who now earns royalties for the song’s exploitation by third parties. In June 2001, Aguilar was arrested and charged for copyright infringement for the song that he himself composed and popularized. Sen. Villar also referred to the experience of National Artist Levi Celerio, who wrote over 4,000 songs, including Ang Pasko ay Sumapit, Ikaw, Bakya Mo Neneng, among others. Despite the thousands of musical compositions he wrote which should have earned millions in royalties, he died poor. [9] The ratio legis of the amendatory acts seem to be consistent with the overall intent of copyright law- to give protection to content creators, and thereby entice them to create more. The new law made significant changes to the IPO, creating a new sub-agency and adding powers to the IPO, new definitions in an attempt to “keep up with the times,” and lastly-but most importantly- limitations on what can be legally done with copyrighted material. Let us briefly examine key reforms introduced by the amendatory law.

First, the new law created a new bureau under the Intellectual Property Office, a Bureau of Copyright and Other Related Rights, to specifically own adjudicatory and administrative functions over copyrights.[10] The new law also granted additional powers to the Director General, specifically visitorial powers, [11] allowing visits to be made to establishments suspected of violating the IP Code during reasonable hours of business based on report, information, or complaint, whereas there was none in the old Code.

Second, definitions were added. The terms “communication to the public,”[12] and “reproduction,”[13]  were given technical definitions. Significantly, the term “technological measure,”[14] is defined as “any technology, device or component that, in the normal course of its operation, restricts acts in respect of a work, performance or sound recording, which are not authorized by the authors, performers or producers of sound recordings concerned or permitted by law.” The term “rights management information,”[15] defined as “information which identifies the work, sound recording or performance; the author of the work, producer of the sound recording or performer of the performance; the owner of any right in the work, sound recording or performance; or information about the terms and conditions of the use of the work, sound recording or performance; and any number or code that represent such information, when any of these items is attached to a copy of the work, sound recording or fixation of performance or appears in conjunction with the communication to the public of a work, sound recording or performance.” is also introduced, thereby giving a digital rights management aspect to Philippine IP law.

Third, and certainly the most important, is the implementation of new restrictions on what can be legally done with copyrighted material.

RA 10372 most glaringly removed Section 190.1 and 190.2 of the IP Code[16], which allows the importation of copies of works, which allowed limited personal importation of copyrighted material not otherwise available locally. In place of the express provision in the old IP Code, the Commissioner of Customs is now given the power to make rules and regulations for preventing import and export of infringing articles.

The term of moral rights has also been changed. In the old IP Code, the term is pegged at lifetime of author and fifty (50) years after death.[17] In the amendatory law, the moral right is lengthened to in perpetuity after death, with posthumous enforcers of moral rights to be named and filed with the National Library.[18]

The concept of “fair use” was also impacted. The old law provided 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, 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.[19] The amendatory law retained the first part of fair use, but delimited the concept of decompilation as thus: “Decompilation, which is understood here to be the reproduction of the code and translation of the forms of a computer program to achieve the interoperability of an independently created computer program with other programs may also constitute fair use under the criteria established by this section, to the extent that such decompilation is done for the purpose of obtaining the information necessary to achieve such interoperability

An additional limitation was provided for in the new law. Circumvention of technological measures is now an aggravating penalty to penal sanctions in the IP Code.[20]

 

Global Trends in IP and Copyright

 

There was a rumor (now disputed) that Bruce Willis wanted to sue Apple[21] because based on the terms and conditions of music purchases from iTunes, the digital music collection cannot be passed on to heirs as part of the estate. Whether this is true or not is of no moment- such is evidence that there is increasing dissatisfaction among consumers of IP with respect to how IP laws are crafted the world over. In this gap between what consumers want and what capitalists who own and manage IP want, there exists Creative Commons and other similar movements such as copyleft.[22]

CC, as it is commonly (and fondly) known, is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools. This September of 2013, CC held its bi-annual meeting for its global community of supporters. Lawrence Lessig, a professor of law at Harvard and a staunch digital rights advocate, delivered the keynote speech. His keynote message centered on the following messages:

  1. We are no longer in the age of content consumption; instead we are in the age of “remix culture” wherein consumers of media feel entitled to create. Nowhere is this remix culture more embodied than in the internet, where “Minecraft” versions of music videos are uploaded to Youtube and “internet memes” are generated wherein humorous text is superimposed on images by random internet users;
  2. The paradigm of copyright as we currently have it in statutes around the world is not responsive to the “remix culture.” This can be seen in the notification-threats of Youtube to take down uploaded videos that are reported to have copyright-infringing content even if there is a strong response that such use is within the concept of “fair use,” as well as frivolous law suits such as that initiated by TAFKAP against a mother who uploaded on Youtube a video of her baby dancing to TAFKAP’s music; and lastly,
  3. Creative Commons is not the solution, but it will- and does- play a role in addressing this gap between the law and the present reality.

 

Et tu?

 

As a consumer of content, the amendments to the law are detrimental. The law has taken away my right to bring into the country a personal copy of copyrighted material not otherwise available. Jailbreaking an iDevice can now be considered a breach of a technological measure, and can be used as an aggravating circumstance against me. Under the old law, if I am an writer, and I would like to translate to a local dialect material that is already part of public domain, or in other words, material whose term of moral rights have already expired, I can readily do so as long as I indicate who the author was in the original work. This would have been part of derivative work. Under the new law, moral rights no longer expire, and I would need to secure permission from the enforcers of moral rights of the original work before I can translate it. If I am a business owner of a technology-dependent company, I will have the permanent risk of the Director of the IPO enforcing a visitorial inspection of my premises, which would restrict what I can and cannot do with my software. These are the limitations I now have to contend with. These limitations now severely restrict what I can do under fair use.

However, if I am a creator of content, the new amendments are a positive development. It now means that I can secure the future of my offspring just by simply devising legal instruments that govern how my work can be exploited, even after death. It now means that I can restrict which entities are licensed to bring into the country my work, and together we can dictate at what price such material will be sold. If I am a software creator, I can built in a code that would track exactly who purchased my software, and track which copies are counterfeit or are installed in violation of the terms and conditions of the software license, allowing me to simply draft an affidavit and point out to the Director General of the IPO which corporations are violating my IP rights, and punish them to the full extent of the law if they defeated technological measures I built into the software. Is this how the State wishes to develop Intellectual Property?

 

Conclusion

 

Exposure to knowledge- that protected by intellectual property law- is like being taken for a magic carpet ride, seeing a shining, shimmering, splendid new world, over, sideways and under, exposing a new fantastic point of view. But will a magic carpet ride be fun if there are so many restrictions to what can and cannot be done?

Isaac Newton once said “If I have seen further it is by standing on the shoulders of giants.”

The giants he referred to, are the intellectual property of his forebears. The state should create laws that are intended to both protect the creator of intellectual property, while at the same time, acknowledging that we are in the age of the “remix culture” to prevent abuse by consumers. Only then can intellectual property take creators and consumers on a magic carpet ride.

 

 


[2] The term “intellectual property rights” consists of: a) Copyright and Related Rights; b)    Trademarks and Service Marks; c)  Geographic Indications; d)      Industrial Designs; e) Patents; f) Layout-Designs (Topographies) of Integrated Circuits; and g) Protection of Undisclosed Information (n, TRIPS).

[3] Article 721. By intellectual creation, the following persons acquire ownership:

(1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work;

(2) The composer; as to his musical composition;

(3) The painter, sculptor, or other artist, with respect to the product of his art;

(4) The scientist or technologist or any other person with regard to his discovery or invention. (n)

[6] Section 13, Article XIV of the 1987 Constitution

[7] Section 14, Article XIV of the 1987 Constitution

[10] Section 3, Republic Act No. 10372.

[11] Section 2, RA 10372, subsequently Section 7,(b) to (e) of the IP Code

[12] Section 4, RA 10372, subsequently Section 171.3 of the IP Code

[13] Section 5, RA 10372, subsequently Section 181.9 of the IP Code

[14] Section 6, RA 10372, subsequently Section 171.12 of the IP Code

[15] Section 6, RA 10372, subsequently Section 171.13 of the IP Code

[16] Section 14, RA 10372.

[17] Section 198, IP Code.

[18] Section 17, RA 10372 amending Section 198 of the IP Code

[19] Section 185, IP Code

[20] Section 23, RA 10372, amending Section 217.2 of the IP Code

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One thought on “Too Many Walls/A Whole New World: Of IP Law Reform

  1. Pingback: Students’ Take: Contacts viz RA 10173 | Berne Guerrero

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