Canicula, Beverly: Fair Use in the Digital Age

SY 2008-2009, First Semester


Abstract

This paper intends to delineate some issues involved in the present implementation of Copyright Law, specifically as to its global application of the Fair Use Doctrine, which appears to be an archaic matter in view of the possibilities brought by technological advances; and to propose specific points on how to go about some safe harbors with regard to “fair use” so as not to infringe copyright laws, a subject to which Philippine Legislature may well consider modifying, if there would be great need for it, in order to adapt to the inevitable technological advances brought by the present digital age – the democratization of information in a global scale.

Introduction

“There is only one way in which a person acquires a new idea:  by the combination or association of two or more ideas he already has into a new juxtaposition in such a manner as to discover a relationship among them of which he was not previously aware.” 
– Francis A. Cartier

Copyright is a legal concept enacted by governments which owes its origin during the advent of the ancient printing press. This gives the creator of an original work of authorship exclusive rights to control its distribution. It is more commonly known as “the right to copy”. [1]

The Intellectual Property Code of the Philippines (Republic Act No. 8293) embodies the Philippine copyright law, which took effect on January 1, 1998. The law is partly based on United States copyright law and the principles of the Berne Convention for the Protection of Literary and Artistic Works. Unlike many other copyright laws, Philippine copyright laws also protect patents, trademarks, and other forms of intellectual property. [2]

Due to the intricacy brought by technology, which paved the dawn to the present Digital Age, copyright infringements became an inevitable reality. Regulation became a complex undertaking. Whether such imposes danger to each and everybody’s intellectual property rights is a fact that should be properly addressed, if not appropriately determined.

The Fair Use Doctrine is an avenue of escape when it comes to issues regarding copyright infringement. Specifically, Sec. 185 of R.A. No. 8293 enshrines the said doctrine which provides as follows:

Sec. 185. Fair Use of Copyrighted Work. –

185.1. The 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, which is understood here to be 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. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(b) The nature of the copyrighted work;

(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(d) The effect of the use upon the potential market for or value of the copyrighted work.

185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

In line with all of the aforementioned, it would be noteworthy to cite some materials which are available in the internet. Those which can be accessed, copied and (of course) remixed. These are as follows:

  1. Print materials, which covers a very wide range (blogs, essays, newsletters, poems, books, etc.);
  2. Pictures/Images;
  3. Sounds/Recordings;
  4. Movie clips; and
  5. Animation

As many professionals, and those who claim to be knowledgeable in the field of Copyright Law, have tried their best to ascertain or sort their way through the murky advent of multimedia and network arenas, the debate over what can and cannot be used, or done for that matter, have skyrocketed and sprouted a lot even more of confusion. The concept of Copyright is ambivalent in itself – an enunciation of “you can use” and “you cannot use”. [3]

The idea of restriction is yet in violation of the principle of freedom to access information and to use any such acquired thoughts to form a new one. This is Copyright Law – specifically in the notion of Philippine Copyright Law.

The Four Tests of Fair Use

The courts’ goal in matching copyright law to existing developments and capabilities, brought about by new technology, is to strike a balance between stimulating artistic creativity through the limited monopoly provided by copyright and providing “broad public availability of literature, music and the other arts”. [4] The said balance is governed by the four tests of the Fair Use Doctrine.

The gist of the four tests of the doctrine is as follows:

  1. the purpose and character of the use, including whether such use is of a commercial nature of is for nonprofit educational purposes;
  2. the nature of the copyright work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for value of the copyrighted work.
  5. The U.S. Supreme Court has ruled on the applicability of the Fair Use Doctrine in circumstances wherein the rigid observance of the copyright statute would result to the stifling of creativity which the very same law is designed to foster and propagate.

    Pamela R. O’Brien, in her research entitled, “Judicial Response: A Safe Harbour in the ‘Fair Use’ Doctrine” has enunciated the four tests and likewise have enumerated a string of U.S. Supreme Court rulings related to the application of the said matter. Of note, is the application of the said doctrine to the predecessor of digital technology, the Betamax Video Cassette Recorder (VCR) in the case of Sony Corporation of America v. Universal City Studios, Inc. [464 US 417, 430 (1984)]. The issue in the case is the contributory copyright infringement of television programs’ copyrights, wherein it was clarified that the doctrine of fair use is an equitable rule of reason – all four statutory factors must be balance against one another. A subsequent case, involving musical parody [Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994)], caused a reversal to the trend among the lower courts and has underscored ramifications for multimedia. It stated that commercial uses were presumptively barred from employing the fair use doctrine as a defense.

    Significantly, the fair use doctrine is not intended to be exhaustive or to single out any particular use as a just implement. As to the first test, “purpose and character use”, which pertains to the inquiry of whether the work is for commercial or non-commercial (educational/religious) purposes, the transformative element is of importance. It has been a requirement that there must be transformation in both character and purpose so as to comply with the mentioned test.

    The second test, “nature of copyrighted work”, centers on the content of the material, whether the work is factual or non-factual. The application of this test is said to be counterintuitive because of the implication which renders the idea that the law denies protection in order to encourage dissemination. In a ruling rendered by the US Supreme Court, it stressed that “the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy”. With this kind of notion, it seemed that copyright renders the least protection for factual works and the most protection for works of fiction. It could therefore be gleaned, with this contention, that it has been the policy of copyright law to promote creative works by giving it copyright protection.

    “Amount and substantiality of the portion used”, pertains to the third test. This is basically looking into the amount of the original used in the new work. Evidently, if the whole original has been utilized, this goes against the doctrine of fair use. The Court then looks into how much of the work has been used and how much has been taken. Taking it literally, a large borrowing may constitute an outright infringement, but then, taking note of the second consideration, which speaks of the substantiality of the work, even a small borrowing could then lead to infringement.

    The fourth test, which incorporates the three other aforementioned, is the “impact of use on the market of the original”. This is the effect of the overall appreciation of the three other tests. Mechanisms for obtaining permission and for paying royalties for the use of the original material now come into the picture. It is a sort of paying deference to the first impression or prior idea which spawned inspiration to come up with a new one.

    Considering all of the stated tests, its explanation may give an impression that everything about fair use is just a simple enterprise. The digital age, however, complicates the simplicity by paving way for an avenue through the commencement of the web, or more commonly known as the ‘internet’ – the information superhighway – where impressions of ideas take on the fast lane. This fast lane takes copyright law seemingly for granted. Not at all a total disregard, maybe more on the confidence that regulation would engender an impossible mission because keeping an eye with streaks of information, considering the vast and wide ranges of sources, would be like expecting an unattainable ubiquitous presence to keep an eye on everything. The law then becomes a useless warning in this case – a tiger without the ability to impose his scary roar or his formidable existence.

    The Idea

    The mold, philosophically speaking, is an idea. Copyright Law does not protect ideas. What it intends to protect are the expressions of such ideas. In this sense, the mold, being an expression of an idea is protected. As aptly put by John Perry Barlow in his article, “The Economy of Ideas”, the bottle is protected, not the wine. With the dawn of the digital age, digital technology is detaching information from the physical plane, where property law of all sorts has always found definition. With the advent of digitization, it is now possible to replace all previous information storage forms with one metabottle – the complex and highly liquid patterns of ones and zeros. [5]

    Barlow, in his taxonomy of ideas, emphasized that information is an activity, a life form and a relationship. Freed of its containers, information is not a thing but something that happens in the field of interaction between minds or objects of other pieces of information. This very concept perfectly describes the metabottle (web/internet) – a medium where numerous chunks of information thrive and are made accessible anytime with just a simple click of the mouse.

    Agreeing with this concept of idea, how then can intellectual property be enforced in the absence of the old containers [6]? Could it be that the present appreciation of intellectual property rights is amiss? Is it something that has to be unlearned? For one thing, it is definitely something that should be regarded in view of the present digital age.

    Copying and its Safe Harbors

    An incidental copying to disk involved in the viewing of part or all of an electronic publication is fair dealing.[7] In an article published by the Joint Information Systems Committee and Publishers Association regarding guidelines for fair dealing in the electronic environment, it enumerated and explained ways of copying information, through the internet, which is within the boundaries of fair use. Among the ways discussed are as follows:

    1. Viewing on screen;
    2. Printing unto paper;
    3. Copying unto disk – part of an electronic publication;
    4. Copying unto disk – part of an electronic publication;
    5. Transmission to enable printing – all of an electronic document;
    6. Transmission for permanent storage – part of a publication coursepacks;
    7. Transmission for permanent storage – all of a publication; and
    8. Posting on a network.
    9. Publication in the web is likened to publication in print media. Any incidental copying to disk in the viewing of part or all of an electronic publication is said to constitute fair dealing. [8] This is exemplified with the operations of some coputer softwares (e.g. web browsers) which copies electronic documents in the user’s hard disk. Such kind of operation is necessary, however, it should be noted that there should be no intent to store the copy permanently for such an act to be considered as fair dealing. [9]

      Printing unto paper, one copy of part of an electronic publication is fair dealing. Likewise, copying unto disk part of an electronic publication for local storage (either in a portable medium or in a fixed one which is made available to one user at a time) is also fair dealing. On the other hand, copying unto disk all of an electronic document is not fair dealing. The purposeful copying unto disk of the entirety of an electronic publication, this time, is copyright infringement. The necessary permission or licensing is therefore required. Nevertheless, incidental copying (emphasis supplied by the author), as explained earlier when it comes to operations of some computer softwares is fair dealing.

      Transmission to enable printing which means transmitting for the purpose of printing out a single paper and transient copying on network equipment, which was used to transfer the electronic document is another act of fair dealing. This is nonetheless subject to technical constraints so as to ensure that permanent copies of which are duly deleted. On the contrary, transmission to enable printing of all of an electronic publication is another story. This is not fair dealing even if there is only an interim electronic storage to facilitate printing. Like the above-discussed printing of the whole electronic publication, proper permission and procurement of the necessary license is also required for this kind of action.

      In addition to the idea of transmission, permanent storage through such a process, of part of a publication (coursepacks) is allowed and is considered as fair dealing. However, retransmission of such information is not. To allow retransmission can result to the de facto introduction of electronic coursepacks.[10] Such distribution, which involves systematic copying is not fair dealing. Site licenses are, this time, recommended. Similar to this is the transmission for permanent storage of the whole electronic publication. This also constitutes unfair dealing. This is regardless of the purpose of permanent local storage, reading on screen and printing for individual request – whether or not retransmission is involved. Such is an outright infringement.

      Posting on a network or on the web of all of an electronic document is equally an act which is not fair dealing because this has a much wider purpose compared to the creation of a single copy for purposes of research or private study.

      In view of all of the foregoing, there are recommended principles to consider in order to create safe harbors and one of which is to fill up library forms with proper acceptance of specific provision regarding the nature of use with the requested pieces of information. Another is the use of electronic water marking. An additional suggestion is the transient and disk cache copies of copyright materials, which necessitates the automatic clearing out of caches after a certain period of time.

      It should be noted that transient copies of allowable electronic transaction is not an altogether breach of copyright. Deletion would only take place when such transient copies are no longer required for the purpose of which the permissible electronic transaction was made. With this, production of copies of the transient copies is an undertaking which also amounts to a breach of the fair dealing principle.

      As to the copying of images, for it to constitute fair dealing, the image must be made incidental to the textual material – that such image, which may be drawings, photographs or any other types of the same kind, must necessarily support the text and not the contrary.

      Adaptations of copyrighted work in aid of the disabled or handicapped, such as conversion of textual works into Braille, audio or large font size, so long as such conversions comprise only of a part and not of the whole copyright material, is fair dealing. The moment that a desire to convert the entire material into forms already mentioned is already an infringement. This may seem like a selfish provision of law, but with these kinds of adaptation the usual permission from the copyright owner is required.

      Of consideration is in the case of databases, which is any collection of materials or data that is organized in a systematic manner. If databases comprise of original creative efforts, then such comes within the ambit of copyright protection. The usual ground for fair dealing applies.

      Beset with the intricate restrictions in enabling copyright protection, it seems like someone may well consider himself a monopoly of certain knowledgeable fields. Information will then be limited as to its use. Propagation of bits and pieces of it may well be stupidity knowing that in time, it will nevertheless form into a whole from which a new piece will be given birth. If acknowledgement is the only thing which is important, for which the law provides the necessary protection, then why restrict the acclamation? For all intents and purposes the source will always and will be the source – succeeding ones will likewise be future sources. The first mold would always be the first, succeeding molds are improvements of the first.

      Conclusion

      There are two sides of the coin, as there are two reactions to the paradox that copyright has engendered in the present digital age. One advocates the elimination of it and the other sees the need to strengthen the hand of copyright owners. [11] It has been said that copyright is the regulatory authority for the market place of ideas. Specifically, it provides ground rules for the sole purpose of creating a healthy competition in the economic arena. Aside from the given economic protection of a certain individual or entity, the real purpose of the said law is to foster further ideas and further innovation from diverse sources.

      Copyright law basically came into existence mainly because someone felt the need for it. And because Congress also felt the need to enforce and to create a statute out of that need, it therefore came into existence. That is not something to frown upon. A grateful gesture should warrant the initiative – it’s a manifestation and result of a genius. Evaluating the circumstances that complicate life, such came into being because of the ever growing need to create needs. A problem that leads to another – a never ending challenge. The solution is to stop and think things over. Evaluate the needs from those merely created to cause never ending problematical necessities. Copyright is something that should be appreciated as a solution to a problem. Initially, there was a need for it and that need remains to be solved by the very same law. Could copyright be disregarded just because of a medium that provides a difficulty in regulation? That would be in a sense, literally and not legally speaking, tantamount to not fair dealing. A demand for a need, needless to say, is an unnecessary act when there is a provided and existing solution. All that there is to do is to appreciate it and use it as to its purpose. Unnecessary modification of a good law brings into the picture the moral lesson of George Orwell’s novel entitled, “Animal Farm”. The film elucidates an unnecessary clamor for amendments. It may well be a copyrighted fable with a lesson that may also well serve the never-ending debate over copyright concerns in the digital age. Like this material which is a product of research and reliance to similar copyrighted works, and may well be an expression which inevitably be a subject of copyright protection, the very idea of converting this one to zeroes and ones by posting on the web is not at all alarming. The aim of an author is to write, a lyricists to write lyrics, a musical composer to compose rhythms, a poet to write poems, a film maker to collaborate creative efforts to create a film – all these became necessary because of the presence of the audience (e.g. readers, listeners, viewers, etc.), which varies depending on the which social plane or level of knowledge they specifically belong. The digital age opens the gates for a wider reach of that audience. This is a breakthrough that should be applauded. Copyright should benefit from this avenue and not make the avenue a problem for copyright.

      As much as knowledge runs free in the electronic medium and expressions of it abound, access should not be restricted but should be made available (this is free advertisement and a way of getting the needed publicity). This is not at all copyright infringement when something is made available and accessible. The idea is always bound to be transferred, appreciated, modified and performed. A locked-up expression of an idea is a useless piece of copyright material. Restriction is imposed because of gainful business – it’s all about figures and how to have a lot of zeroes and commas to altogether fit in a chain of digits. This creates an impression that access to a particular thing or idea is not for free. This is business and not at all a copyright concern. Copyright, in plain and simple terms, means somebody owns it and that it can not be legally claimed (the very same thing) as one’s property other than the one who created it. Fair use in the very same vein provides that a benefit from an original work should not be unrightfully be attributed to someone who does not own the intellectual property. In the digital age, the fair use concept of copyright becomes an international concern. In the presence of the goodwill of all nations who have signed treatises regarding intellectual property, the problem is not that very much alarming. There is a solution to the problem. Sometimes, the problem is not using the available right solution or by missing it completely because of too much fuss about amendments – if only to suit an advantage. So what is there in the digital age with copyright and its fair use? Only everything to (personally and economically) gain.


      Endnotes

      [1] “Copyright”. GNU License. http://en.wikipedia.org/wiki/Copyright , 22 October 2008.

      [2] “Philippine Copyright Law”. GNU License. http://en.wikipedia.org/wiki/ , 22 October 2008.

      [3] Stacey Carpenter. “Fair Use in Multimedia: Digital Age Copyright”. Emory University © January/February 1996. http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1005&context=law_pubs .23 July 2008

      [4] Pamela R. O’Brien. “Judicial Response: A Safe Harbour to the ‘Fair Use’ Doctrine”. © 1998. http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1998020201.html . 23 July 2008.

      [5] John Perry Barlow. “The Economy of Ideas”. © 1993-2004 The Condé Nast Publication, Inc and © 1994-2003 Wired Digital, Inc. http://www.wired.com/wired/archive/2.03/economy.ideas.html . 23 July 2008

      [6] Ibid.

      [7] Joint Information Systems Committee and the Publishers Association. “Guidelines for Fair Dealing in an Electronic Environment”. © 1998. http://www.ukoln.ac.uk/services/elib/papers/pa/fair/intro.html . 23 July 2008.

      [8] Ibid.

      [9] Ibid.

      [10] Ibid.

      [11] Charles C. Mann. “Who Will Own Your Next Good Idea?”. © 1998 by The Atlantic Monthly Company. http://www.theatlantic.com/issues/98sep/copy.htm . 23 July 2008

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