CURRENT INNOVATION CONCERNS
Elpidio V. Peria
25 January 2014
On January 17, 1984, the US Supreme Court in a 5-4 decision, delivered a ruling in Sony Corporation of America v. Universal City Studios which upheld the right of owners of videotape recorders to use such equipment to record TV shows that they may not have the time to watch which they can watch later at their leisure.
A Pinoy teen-ager who’s an avid fan of Youtube nowadays may wonder how such overseas ruling over an archaic technology as the videotape recorder would still have relevance today, especially so in the Philippines.
To answer why on earth that US case will have some bearing in the Philippines, it’s because in Philippine law practice and jurisprudence, US Supreme Court decisions properly cited and under relevant factual circumstances, have persuasive effect on Philippine Supreme Court justices, to a certain extent. This US ruling thefore, just in case a Pinoy teen-ager may be sued for excessive downloading of internet material, may be used as a defense so he or she may not be held liable.
What was that case all about and how is it still relevant today in the light of recent internet technologies?
The case is about the gadget then called Betamax, a video recorder and player that uses a cassette that gets inserted in a special receptacle in the gadget and that cassette may either play a pre-recorded material, usually a movie, and sometimes records what is being played on the accompanying TV set. That format of the Betamax, called the Betamax tape, was eventually eclipsed by a much-larger cassette called VHS, but that can be another subject of a separate blog post later.
In my highschool days, I remember having such a player in our house where we go to a video rental shop close to a bakery and to rent and watch at home movies such as Mad Max, Brooke Shields’ coming-of-age movie, etc.
Sony, the famous Japanese company that popularized the first portable audio player called Walkman, also another must-have gadget in those days, sold this video recorder gadget in the US and was sued in a district court in the US by Universal City Studios, a Hollywood company, for enabling infringement of movies or TV shows done by people at their homes who possess the Betamax gadget and recorded shows they would like to see later at their own chosen time.
What was involved here was time-shifting, described by Jerry Liu in Vanderbilt Journal of Enterntainment Law and Practice (at http://ssrn.com/abstract=1869349) as “the practice of taping a television program to view it once at a later time. Time-shifting enables viewers to see programs they otherwise would miss because they are not at home, are occupied with other tasks or are viewing a program on another station at the time of the broadcast that they desire to watch.”
The Japanese company prevailed at the district court but the University City Studios promptly appealed the case, which reversed the findings of the district court. Thus, Sony had no choice but to elevate the case to the US Supreme Court.
In a 5-4 ruling, US Supreme Court Justice John Paul Stevens held that : one, “home time-shifting is fair use”; and two, “The Betamax is, therefore, capable of substantial noninfringing uses. Sony‘s sale of such equipment to the general public does not constitute contributory infringement of respondents’ copyrights.”
Pinoy internet downloaders should be thankful for this ruling because home time-shifting is similar to what is usually done by those who download material from the internet these days, and they view what they downloaded at their own leisure time, and, similar to what was practiced in the time of Betamax, it can be argued that this is fair use, a key copyright law principle that enables users not to seek permission anymore from copyright holders, for as long as it is within the bounds set by the Philippine Intellectual Property Code chapter on copyright as fair use. This enables the practice to continue and exempts the doer of these things from allegations of infringement of copyright.
Another reason Pinoy internet downloaders should be thankful for is that the “substantial non-infringing uses” principle can be applied on the gadget that facilitates this act of copying. In 1984, that gadget is Betamax, in 2014, that gadget can be a tablet or a smartphone. Thus, if it can be shown that the gadget has other substantial non-infringing uses, which may range from being a camera, a slate one writes some notes on, a calculator, a template where one can draw figures, etc., then the use of such gadget is not contributory infringement, a principle which does not require that a person actually do the infringing act (the act of violating the rights of copyright holders) but is doing something that actually leads to the same thing.
While those are the reasons that should be celebrated for this US Supreme Court ruling, the passage of the Philippine Intellectual Property Code amendments last year when it was signed into law by Pnoy into Republic Act 10372 is a cause for worry, since the right to fair use, which is a general principle, has now been limited by the law, such that before one can make “multiple” copies of a copyrighted material, now one can only make such “limited” copies. To what extent this “limited” means depends on the implementing rules set by the Philippine Intellectual Property Office. This can mean that one may only have a “limited” number of copies that one can keep and maintain it is still fair use, and this, if contested, will be determined after a tedious and troublesome litigation.
The other worry is that the principle of contributory infringement has now been entrenched statutorily, meaning, such principle which is only a case law principle is now made into a text of a law, which is now an amendment of art. 216 of the Philippine Intellectual Property Code, and it reads:
A person infringes a right protected under this Act when one : (c)with knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.
This erases the notion of contributory infringement since it equates these acts that are considered contributory infringement as similar to the act of infringement itself. The act of infringement as such and the act which constitutes contributory infringement should be two different violations under the copyright chapter of the Philippine Intellectual Property Code.
The wording of the law on what was supposedly contributory infringement is so broad it may also mean that possession of a gadget that can have an ability to copy and one tells the person that one can download material because of this gadget one already committed the crime of actual infringement.
Of course, all this, for now, is idle speculation for some, though it should also be seen as fair warning of how much we should make ourselves aware of our rights in this era of the internet, so that we can be free of these potential hassles such as allegations of copyright infringement by the holders of copyright.