CURRENT INNOVATION CONCERNS
Elpidio V. Peria
19 February 2017
from : http://noah.dost.gov.ph
Lost in the bunong-braso (arm-wrestling) of a debate between the DOST and Project NOAH scientists on what should happen to the weather data generated by the project is the discussion of fair use, a key principle of our law on copyright that should have been clarified at the outset by the DOST when it brandished its data sharing policy that somehow reiterated the DOST’s imprimatur on any form of sharing of the data, which according to a news report, enables the DOST to “restrict the release of proprietary data (and) maintain confidentiality of proprietary Information.”
That same news report noted that this stance is borne about by DOST’s Data Sharing Policy that is spelled out in DOST Administrative Order No. 003, series of 2015.
Examining closely the said policy, the policy can be said to have an amnesia on, or it has clearly overlooked, the public or the general data user’s right to fair use, a key principle of copyright law that is mandated by our Intellectual Property Code, or Republic Act 8293, as amended.
What is fair use and is it the same as free use ?
Fair use, as explained by Patricia Aufderheide and Peter Jaszi in their book Reclaiming Fair Use : How to Put Balance Back in Copyright (2011, University of Chicago), is an exemption that applies to all of a copyright owner’s monopoly rights, including the owner’s right to control adaptation, distribution and performance.
Aufderheide and Jaszi also said that there are actually two kinds of fair use, one is your right to do with copyrighted material what you will for personal purposes and another is when you reuse copyrighted material in the process of making something else.
Fair use is the same as free use, if what we mean by free use is a situation where the copyright owner cannot ask for money in exchange for the invocation of said right, as it is the law on copyright itself that gives the public such right.
But fair use has certain limits so it is not exactly the same in operational terms as free use, like unfettered use or use without any conditions.
In fact, the current Philippine Intellectual Property Code provision on fair use which is in sec. 185.1, the ability to get “multiple” copies of any copyrighted material for classroom use, scholarship, research and similar purposes has now been restricted to “limited”, though it is not clear if there are guidelines already on what the word “limited” means. Perhaps this is what is meant by the DOST Administrative Order on the restrictions that it may impose on the sharing of data from researches funded by the DOST.
For the NOAH scientists and their supporters who argue for open data or open access to the data generated by Project NOAH, they would be on firmer legal ground even if they invoke former President Noynoy Aquino’s open data executive order, if they also cite the provisions of the Philippine Intellectual Property Code on fair use in sec. 185, including other statutory fair uses there enumerated in sec. 184 which serve as clear limitations on the right of DOST to assert its “proprietary rights” over the data generated by Project NOAH.
To reiterate, in the Data Sharing Policy of the DOST, the words “fair use” don’t appear at all in any of its provisions, which may be the reason why there is this debate whether DOST-funded data, like the weather data of Project NOAH, should be freely made available to the public or not.
This amnesia or oversight seems to have been due to the invocation by the Data Sharing Policy of a law, the Technology Transfer Act or Republic Act 10055, which, while it is a laudable law that gives an incentive to our government scientists to become co-owners of the intellectual property generated by their publicly-funded research, has not clearly spelled out the kinds of intellectual property exceptions that may be invoked by the public, to balance the privileges being given out by the law to the government scientist.
The Technology Transfer Act does not clarify or even spell out what are those intellectual property that may be covered by the Technology Transfer Act and therein lies the cause of future heartaches of the public and even the government scientists which the law is supposed to help.
Richard Stallman, the father of the free software movement asserted that the term “intellectual property” is a confusing mirage, and is at best a catch-all to lump together disparate laws. Nonlawyers who hear one term applied to these various laws tend to assume they are based on a common principle and function similarly.
This is not actually the case, Stallman emphasizes, as the laws usually lumped together as intellectual property – patents, copyrights, and trademarks, for example – originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.
While the Technology Transfer Act may have some merit in putting forward some restrictions, this would best apply to patents, but to apply that same principle of putting restrictions to copyright may actually be an overreach of the law since, in the first place, if you look at sec. 176 of the Intellectual Property Code, it is there clearly stated : “No copyright shall subsist in any work of the Government of the Philippines” and it states in the second sentence a qualifier, which says that “prior approval of the government or office wherein the work is created shall be necessary for exploitation of such work for profit.” Perhaps that is what the DOST’s Data Sharing Policy meant to say, when it wants to restrict access to Project NOAH’s weather data, but that should have been spelled out clearly so as not to confuse the researchers who may want to access the data.
To conclude, the public’s access to Project NOAH’s weather data, which is a matter of application of our existing law on copyright found in the Intellectual Property Code, is guaranteed, being a work of the government, no copyright can be asserted over it though the government, in this case, the DOST, may restrict or require its prior approval if the exploitation of the data is for profit. If the DOST insists it has some proprietary right over it which in a sense is its copyright, then the public or those who may want to do research on the data should assert their right to fair use over it, fair use being a general exception to copyright which is provided to the public by the law itself, in secs. 184 and 185, of the Intellectual Property Code.