CURRENT INNOVATION CONCERNS
Elpidio V. Peria
26 July 2014
The Biodiversity, Innovation, Trade and Society (BITS) Policy Center, Inc., a policy research and advisory think-tank based in General Santos City recently held its first Copyright Fair Use Clinic last 23 July 2014 in General Santos City attended by college publication writers, students and lecturers from identified colleges and universities in the City.
One of the students from Mindanao State University-Gen. Santos City said that they gratified they are having this kind of activity for the first time and it is only now that they have encountered the issue of copyright and fair use.
The activity was organized by BITS Policy Center, Inc to raise the awareness of the students, writers and teachers to the changes wrought by Republic Act 10372, the amendments to the Intellectual Property Code of the Philippines and the main presentation made by lawyer Elpidio V. Peria, the head of the Center, delved on the concept of intellectual property and continued on to the basic principles relating to copyright protection and how it attaches to any creative work and the basic economic and moral rights attached to it. After this, the bulk of the presentation delved on how the right to fair use of students, researchers and ordinary copyright users are diminished by RA 10372.
Fair use was explained as an exemption that applies to all of a copyright owner’s monopoly rights, including the owner’s right to control adaptation, distribution and performance and as written by Patricia Aufderheide and Peter Jaszi in their book “Reclaiming Fair Use – How to Put Balance Back in Copyright” (2011) are actually of two kinds:
• one- your right to do with copyrighted material what you will for personal purposes
• two – when you reuse copyrighted material in the process of making something else
In the process of reusing copyright, what was emphasized so that the resulting work will not be considered an infringement of copyright is the attempt of the artist or writer to transform the work but eventually, the participants were advised to consider the following factors in determining whether the resulting work is fair use or is an infringement of copyright, from http://library.northeastern.edu/sites/default/files/public/wysiwyg/u-473/2012/fourfactors.jpg , accessed 21 July 2014.
a) PURPOSE of the use, if it’s commercial it is considered infringement, but fair use if the use is for critical, educational and non-profit purpose;
b) NATURE of the source work, if the source is published and is more factual, then it is fair use than if the work to be copied from is unpublished and is more “creative”’
c) AMOUNT and SUBSTANTIALITY of the source work, if the amount copied is proportionately large and consists of the “heart of the work”, then it is considered an infringement and not fair use, than if the amount of work copied is minimal and consists mainly of the peripheral elements of the work;
d) EFFECT ON THE POTENTIAL MARKET for the work, if then resulting work using fair use will have no effect on the market of the work, then there is no infringement.
The main presentation delved on the seven ways how the Filipino’s right to fair use is diminished by the amendments to the Philippine Intellectual Property Code or Republic Act 10372
1) Users of copyrighted material are now only entitled to “limited” number of copies, instead of the previous right to “multiple” copies – the shift in the use of a single word from “multiple” to “limited” subtly shifts the power to determine how many copies one can have from a copyrighted work from the user to the copyright owner which in itself is a significant reduction in the power of the user since the user will now depend on how many copies are allowed to be copied by the copyright owner; the beauty of fair use, to recall what Peter Jaszi and Patricia Aufderheide said in their book is that this is determined by the user, without need to get the permission of the copyright holder; now it cannot be done anymore
2) The Intellectual Property Office of the Philippines (IPOPHIL) has not yet released the implementing rules and regulations on what these “limited” number of copies would be – the law set one hundred eight days (180) days within which the implementing agency, IPOPHIL, in consultation with other sectors and other government agencies will clarify what this “limited” means, but over a year after the law was passed, the regulations are not yet there; the students may not yet be aware of it, but their days where they can freely photocopy books for their school use, are numbered;
3) Schools and universities shall adopt IP policies that would govern the use and creation of IP– the problem with this mandate of the law is that there are many schools and universities all over the country, both private and public. This will mean that there will be a decentralized system of intellectual property (IP) policy where it could be anything from restrictive to liberal in approach and given most schools are not even aware what IP is, this is a clear recipe for chaos favoring those who are organized, the copyright holders;
4) These IP policies that will be adopted has the purpose of safeguarding the intellectual creations of the learning institution and its employees – the only question to ask here is : where are the students on which the school is supposed to be instructing? the school then will not bother with the students who will have to pay higher Xerox fees and higher costs of their books, this is clear;
5) These IP policies will adopt locally-established industry practice fair use guidelines – fair use is for the users, who usually are the ordinary unorganized throng who have no means to protect their rights systematically, why then should these guidelines be based on industry practice? This will only entrench what the industry will want which usually is contrary to the concerns of the copyright user;
6) These policies may be developed in relation to licensing agreements entered into by the learning institution with a collective management organization – these collective management organizations will have as its priority how it can collect from the use of the copyrighted material, they will not be bothered with the right of ordinary copyright users;
7) The right of an author 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 shall last in perpetuity after his death. (extension of the moral right of the author) – the perpetual moral right of the author means the heirs of the author will continue to exert the power to make demands on how the work will be presented including the public use of the work; public use can also relate to fair use which may then be subjected to limitations, which of course, for now we may not be aware of but will know many years into the future after the creator or author has died.
The students in the open forum asked all sorts of questions, some of which related to a Tagalog translation of 50 Shades of Grey which was seen to be alright, for as long as the translator has sought permission from the original author of the book; another student asked about reporting on a powerpoint, how may one avoid being accused of copyright infringement and the response was that for as long as the student cited the reference or the source where the material being shown is coming from, then there should be no problem in such a case; other questions relate to the taking of pictures of a person in a compromising position or one is from a tribal community and the subject is wearing clothing that is not acceptable to the tribal community, if the subject objects to the picture taken, can that objection be taken into account? The issue is not really about intellectual property or copyright-related, but more about privacy for the one in the compromising position and cultural respect for the subject who comes from a tribal community.
Over-all, the students were content with the discussions held which satisfied their curiosity about the subject. They will further reflect on the discussions and contact BITS Policy Center later for follow-up efforts.