CURRENT INNOVATION CONCERNS
Elpidio V. Peria
28 June 2017
What was initially thought of as an enchanting work of art by artist Ferdinand Cacnio of UP’s “Lady Oblation” has just turned into a brawl on social media, pitting the supporters of the work against those who question the effort of the artist. We don’t want to contribute to the aggravation of the parties here as we hope to clarify what is the law that may be relevant to this situation, aware that this is merely one of many legal opinions on the issue that will eventually sprout, with the caveat that if push comes to shove and this goes to litigation, only the Philippine Supreme Court, as it should be, will have the last say on this matter.
We will approach this by directly answering some of the questions that may be lurking in the subconscious of all those who may be inclined to take sides on this issue :
1) Is it plagiarism?
This is the word that has been bandied about among those who attack the artist and those who claim otherwise, but if we ask Judge Richard A. Posner, a well-known US jurist sitting in the US Seventh Circuit Court of Appeals and a senior lecturer at the University of Chicago Law School, in his book, what else should it be named but The Little Book of Plagiarism, he admits the word is difficult to define. He cited the usual dictionary definition of the word which is “literary theft”, but that definition is incomplete because there can be plagiarism of music, pictures or ideas as well as of verbal matter. The definition is also inaccurate as there can be plagiarism without theft, and it is imprecise, because it is unclear what should count as “theft” when one is not taking anything away from someone but simply making a copy. Plagiarism is different from copyright infringement as there is considerable overlap among them.
For him, it is better to confine the meaning of the word to “nonconsensual fraudulent copying.” Ultimately, for Judge Posner, there is no legal wrong named “plagiarism” though it can become the basis of a lawsuit if it infringes copyright or breaks the contract between author and publisher. For our own intellectual integrity, when we proceed further discussing this, let us take the cue from Judge Posner and perhaps agree to call what Cacnio did as “creative imitation” via sheer coincidence.
2) What law applies here?
The artwork being done by a Filipino and apparently done here in the Philippines, the law on copyright, that species of intellectual property law dealing with creative works, Republic Act 8293, or the Intellectual Property Code, apply in this case.
3) Who has the burden of proving there is copyright infringement in this case?
Philippine laws on copyright, embedded in Republic Act 8293, is a special law, but with criminal penalties. Those who may allege copyright infringement is engaging in a criminal proceeding, thus the burden is on the side asserting there was copyright infringement, which may be the artist from whose work in the Netherlands the UP Lady Oblation was purportedly copied, or any of her supporters.
4) Can such Dutch artist, living abroad, enforce her copyright, on the Filipino artist, in the Philippines?
A requirement in Philippine law, to be able to sue for copyright infringement, is that one must have a valid copyright. In a recent case of Sison Olaño, et.al v. Lim Eng Co, G.R No. 195835, March 14, 2016, for a claim of copyright infringement to prevail, the evidence on record must demonstrate: (1) ownership of a validly copyrighted material by the complainant; and (2) infringement of the copyright by the respondent.
In another Supreme Court case, Ching v. Salinas, Sr. (500 Phil 628, 639 ), ownership of copyrighted material is shown by proof of originality and copyrightability. By originality is meant that the material was not copied, and evidences at least minimal creativity; that it was independently created by the author and that it possesses at least same minimal degree of creativity. Copying is shown by proof of access to copyrighted material and substantial similarity between the two works. The applicant must thus demonstrate the existence and the validity of his copyright because in the absence of copyright protection, even original creation may be freely copied.
The question here is, does the Dutch artist have a copyright over her work ? Assuming she has such copyright which we should presume is granted to her under her law, which is Dutch, the more important question is : can such rights arising from a foreign law be enforced here in the Philippines? The answer will have to be no, since intellectual property laws are territorial in application, meaning they can only be asserted and enforced in the country where is it issued.
Questions on what or how International law may apply should proceed with an inquiry whether both Philippines and the Netherlands have ratified the Berne Convention for the Protection of Literary and Artistic Works, the relevant international treaty on copyright, and since the main parts of this Convention is also made part of the TRIPS Agreement of the World Trade Organization or WTO, then, perhaps, if the plaintiff is determined, her country will take this up under the dispute settlement process of the WTO. This is a far-fetched thing so we should leave it at that.
5) What does this say about the bigger question concerning creativity and the creative process, are we really that free to create things and be inspired by what has come to our senses, without acknowledging them and claiming it as our work?
As free and capable individuals, we should be able to create any work that should suit our desires, but Judge Posner in his book that we have cited noted the rise of a cult of personality in this era of modernity where each of us think that our contribution to society is unique and so deserves public recognition, which is clouded by plagiarism. He did not condemn it though, which was not his style, but proceeded merely to find ways where such tendency does not go overboard and is tempered by existing laws and norms, including the existing laws on copyright.
The law on copyright was intended to balance the right of the creator and that of the public since, after a certain period of time, all creative works pass into what is called the “public domain”, a different concept from what natural resources advocates are pushing, but it consists all creative works whose copyright has expired and are thus free for others to use or appropriate for their works of creation.
How then should we resolve this? ABS-CBN has helpfully posted a report of other “Levitating Ladies”, which we would encourage the detractors and supporters of UP’s “Lady Oblation” to examine. We have seen those other ladies and if we may be allowed to hazard an opinion, Cacnio’s work has that mystical quality absent in all similar floating sculptures be it in the Netherlands, the UK or the US. For whatever it is worth, let us instead congratulate him for what he has done, it seems his work will become eventually famous, this kind of controversy is a good way to introduce these kinds of work that will not only enhance the prominence of the work but will encourage more people to examine the work closely and take their obligatory selfies with it, which is what we will do if we happen to pass by UP Diliman once we get there sometime.
There’s another thing we would say that this controversy has become reflective of our modern or is it post-modern sensibilities, no one seemed to have been bothered that the lady is naked and has taken that for granted. That is one advance we should also applaud.