Cruz, Eric: Law made Ambiguous or Obsolete by Technology

SY 2008-2009, First Semester


INTRODUCTION

Society profits by the creations of its men and women of letters and of science. The State encourages the intellectual endeavors of men and women of talent by bestowing on them certain exclusive rights for limited periods so that there may be added motive for the creation of literary, artistic, scientific, and technological works beneficial to society. Creative work is to be encourage and rewarded but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and other arts. The immediate effect of our copyright law is to secure a fair return for an author’s creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.

To restate, the primary objective of copyright is not to reward the labor of authors, but to promote the progress o science and useful arts. To this end, copyright assures authors their right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler’s selection and arrangement may be protected; raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.

One of the recognized rights of the author is to exclusive right to carry out, authorize or prevent the first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership. However, as already stated the author’s rights must necessarily give way to the avowed purpose of the law recognizing such rights. In line with such limitations, the law recognizes fair use of the work as a valid limitation and made as a criterion in determining whether importation, which is clearly related to the above-mentioned right to first public distribution, is covered by such limitation. What would then be the extent of such particular right of the author considering possible abuses of fair use-limitation? It is a settled rule that the copyright protection is limited only within the State that grants it unless by treaty stipulations the State is bound to recognize within its territory rights of an author whose is a national of a State signatory to the treaty.

Relevantly, the progress in almost every aspect of technology, including those related to subject matter of copyright should have prompted the promulgation of laws or their amendments or modification not only to deal with such developments but likewise to anticipate further improvements or new technologies related thereto.

STATEMENT OF THE ISSUE

The scope of this particular work is limited to the study of Section 190 of Republic Act No. 293, otherwise known as the Intellectual Property Code of the Philippines and the related provisions thereon necessary to its understanding and taken in the light of the current state of technology as well as those existing at the time of its promulgation.

To be dealt with is the question whether the aforesaid provision is limited to certain type of literary and artistic works or is it applicable to every class of copyrightable works. Statutory definitions of words used by the statute bearing on the understanding and appreciation of the provision will be considered and definitions from other sources on terms not defined in the statute will be supplied.

And finally, the query as to in what form of copyright the provision relates to will be dealt with in view of the right of the author involved and its concomitant limitation and criterion laid by the law.

DISCUSSION

As to what kind or class of copyrightable work or works may be the subject of importation referred to in Section 190 of Republic Act No. 293, otherwise known as the Intellectual Property Code of the Philippines.

In view of the fact that Section 190 of Republic Act No. 293 is under consideration, quotation of its pertinent portion bearing upon the subject is proper, to wit;

“Section 190. Importation for Personal Purposes. – 190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other
owner of copyright in, the work under the following circumstances:

(a) When copies of the work are not available in the Philippines and:

(i) Not more than one (1) copy at one time is imported for strictly individual use only; or

(ii) The importation is by authority of and for the use of the Philippine Government; or

(iii) The importation, consisting of not more than three (3) such copies or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.

(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed three (3).

190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor’s right of action.”

It would be necessary to understand what kinds of works the provision relates as almost every class of copyrightable work may be the subject of importation. The enumeration of copyright works under Section 172 of the Intellectual Property Code closely tracks the language of the Berne Convention, Article 2 of which provides that “ the term ‘literary and artistic works shall include every production in the literary, scientific ad artistic domain, whatever maybe the mode and form of expression, such as books, pamphlets and other writings, etc.” The Convention thus asserts the principle of an all-embracing protection for the benefit of al productions in the literary, scientific and artistic domain, and, in a second assertion lays down that the mode or form of expression in no way affects its protection. In fact a work may be made known to the public in any way, oral or written. The method employed to make the work known is immaterial. It is generally agreed that the value or merit of the work, essentially a subjective value judgment, is also of no account. The same is true of the work’s purpose: it may be produced for purely educational purpose or with merely utilitarian or commercial aim, without this making any difference to the protection it enjoys. [1]

From the foregoing, it can be said that the coverage copyright protection is so extensive as it covers every aspect of original creative endeavor. However, it must be remembered that since the provision under consideration relates to importation it is not only the class of copyrightable works that must be considered but likewise prohibited importations under existing laws in our jurisdiction.

It is conceded that the provision must apply to all classes of copyrightable works since the intention really is to, without prejudicing the interests of the author, the owner of a lawfully-acquired copy of the work be able to carry, which in the first case he already owns the physical object, his copy wherever if allowed for his personal use. This must be qualified by the fact that not all works may, under our laws, be the subject of importation even if prior authorization is obtained from the owner of the copyright. The Tariff and Customs Code prohibits some articles which may be in the form of copyrighted works from being imported into the Philippines such as immoral, obscene or insidious articles and those prohibited under special laws.

The query as to in what form of copyrightable works the provision relates to in connection to the right of the author involved and its concomitant limitation and criterion laid by the law.

Copyright is a legal concept, enacted by governments, giving the creator of an original work of authorship exclusive rights to it, usually for a limited time, after which the work enters the public domain. Generally, it is “the right to copy”, but usually provides the author with other rights as well, such as the
right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other, related rights. It is an intellectual property form (like the patent, the trademark, and the trade secret) applicable to any expressible form of an idea or information that is substantive and discrete.

Copyright was initially conceived as a way for governments in Europe to restrict printing; the contemporary intent of copyright is to promote the creation of new works by giving authors control of and profit from them. Copyright has been internationally standardized, lasting between fifty to a hundred years from the author’s death, or a finite period for anonymous or corporate authorship; some jurisdictions have required formalities to establishing copyright, most recognize copyright in any completed work, without formal registration. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.

Most jurisdictions recognize copyright limitations, allowing “fair” exceptions to the author’s exclusivity of copyright, and giving users certain rights. The development of the Internet, digital media, computer network technologies, such as peer-to-peer filesharing, have prompted reinterpretation of these exceptions, introduced new difficulties in enforcing copyright, and inspired additional challenges to copyright law’s philosophic basis. Simultaneously, businesses with great economic dependence upon copyright have advocated the extension and expansion of their copy rights, and sought additional legal and technological enforcement.

In all countries where the Berne Convention standards apply, copyright is automatic, and need not be obtained through official registration with any government office. Once an idea has been reduced to tangible form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape, or a computer file), the copyright holder is entitled to enforce his or her exclusive rights. However, while registration isn’t needed to exercise copyright, in jurisdictions where the laws provide for registration, it serves as prima facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney’s fees. The phrase “exclusive right” means that only the copyright holder is free to exercise those rights, and others are prohibited from using the work without the holders permission. Copyright is sometimes called a “negative right”, as it serves to prohibit certain people (e.g., readers, viewers, or listeners, and primarily publishers and would be publishers) from doing something they would otherwise be able to do, rather than permitting people (e.g., authors) to do something they would otherwise be unable to do. In this way it is similar to the unregistered design right in English law and European law. The rights of the copyright holder also permit him/her to not use or exploit their copyright, for some or all of the term.

There is, however, a critique which rejects this assertion as being based on a philosophical interpretation of copyright law that is not universally shared. There is also debate on whether copyright should be considered a property right or a moral right. Many argue that copyright does not exist merely to restrict third parties from publishing ideas and information, and that defining copyright purely as a negative right is incompatible with the public policy objective of encouraging authors to create new works and enrich the public domain. [3]

Proceeding now to the subject provision, its silence or perhaps obsolescence proceeds from the fact that the available technology furnishes the users of works wide variety of mediums with which to copy, store and reproduced copyrighted works. Does the law intends to regulate the importation of a work in its printed form such as books and the like or does it cover other forms of storing its contents like a cd or other forms of hardware.

People have always copied things. In the past, most items of value were physical objects. Patent law and economies of scale meant that small scale copying of physical objects was usually uneconomic, and large-scale copying (if it infringed) was stoppable using policemen and courts. Today, things of value are increasingly less tangible: often they are just bits and bytes or can be accurately represented as bits and bytes. The widespread deployment of packet-switched networks and the huge advances in computers and codec-technologies has made it feasible (and indeed attractive) to deliver such digital works over the Internet. This presents great opportunities and great challenges. The opportunity is low-cost delivery of personalized, desirable high-quality content. The challenge is that such content can be distributed illegally. Copyright law governs the legality of copying and distribution of such valuable data, but copyright protection is increasingly strained in a world of programmable computers and high-speed networks. For example, consider the staggering burst of creativity by authors of computer programs that are designed to share audio files. This was first popularized by Napster, but today several popular applications and services offer similar capabilities. CD-writers have become mainstream, and DVD-writers may well follow suit. Hence, even in the absence of network connectivity, the opportunity for low-cost, large-scale file sharing exists. [4]

The unlawful downloading of copyrighted material and sharing of recorded music over the internet in the form of MP3 and other audio files is more prominent now than since before the advent of the internet or the invention of MP3, even after the demise of Napster and a series of infringement suits brought by the American recording industry. Sharing copied music is legal in many countries, such as Canada, and parts of Europe, provided that this information is neither advertised, nor that the songs be sold. Bootleg recordings are musical recordings that have not been officially released by the artist or their associated management or production companies. They may consist of demos, outtakes or other studio material, or of illicit recordings of live performances. Music enthusiasts may use the term “bootleg” to differentiate these otherwise unavailable recordings from “pirated” copies of commercially released material, but these recordings are still covered by copyright despite their lack of formal release, and their distribution is still against the law. The illegal use of text content is a form of copyright infringement as well. [5]

Consider now the implication of this factor to the operation and interpretation of Section 190 of the Intellectual Property Code. If the Legislature has considered that at the rate technology is developing, the law would eventually be obsolete a few years after its effectivity or the law conscious of this fact did
not intended the provision to cover such form or medium. In the latter situation, the provision would only apply then to copies of a work not susceptible to being transformed into bits and bytes. Relevantly, computer programs are copyrightable works and of course necessarily by their nature they are in the form of bits and bytes. What would be the treatment of this class then? Also the Intellectual Property Code under Section 171.9 defined “reproduction” as the making of one (1) or more copies of a work or a sound recording in any manner or form. The implication would then be that in case a book was scanned and softcopy be stored in an appropriate device, the process or act then would constitute reproduction. A work is reproduced when its expression is copied or duplicated. Thus when an entire article is computer-scanned, stored in the hard-disk of a computer or in some other medium, there is reproduction. These days to cater to the blind, several best-sellers have been recorded on cassettes. Although reproduction be of a kind different from the original material, the statutory definition still categorizes it as a reproduction. This is particularly applicable with respect to voluminous class of works wherein bringing the hardcopy in case of travel would cause inconvenience. Consider further that a copy means that which comes so near to the original as to give every person seeing it the idea created by the original. [6] A copy flash on the computer screen will have no difference in substance to the copy of the same material in the book form, therefore such form would apparently be covered by the permitted importation.

A related topic is the right of exhaustion and as applied to copyright it raises the question: When an author has made his work available by lawful channels in one country, has he done so only for the country, for the entire region or for the world? Obviously, the answer to his question determines what rights he may still have left to control the sale and re-sale. Section 190 provides the laws for the importation of works and allows importation by an individual for individual use, or as part of his personal luggage, but no more. Clearly then the regime of national exhaustion, as there would be no point in restricting importations the moment protected works have been made available to the public anywhere in the world. [7]

Section 190.1 refers to Section 177.6, which deals with the right of public performance of the work for profit. This reference appears to be erroneous. Since Section 190.1 refers to permitted importations of copyright works, which is a form of public distribution of the works, it is submitted that the correct reference should have been Section 177.3, which refers to the first public distribution of the original and each copy of the work by sale, or other forms of transfer of ownership. It also refers to Section 185.2 which provides that 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 factors therein provided, to wit;

  1. The purpose of the usage of the copyrighted material to be classified as fair use
  2. The nature of the copyrighted work
  3. The amount or portion of the copyrighted work being classified as fair use
  4. The effect(s) the copyrighted materials has or have on the potential market and the value the item has to enriching the item of which the copyrighted material is being classified as fair use.

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work. Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute will have to be resolved by courts or arbitration. If it’s not a fair use, then you are infringing upon the rights of the copyright owner and may be liable for damages. The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate. [8]

Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors in resolving fair use disputes, which are discussed in detail below. It’s important to understand that these factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict.

It should be stressed that Section 190.1 should not be considered as an implied recognition of the right of importation, which is arguably a part of the right of first public distribution. Under this theory, a foreign author who has lawfully published his work in his home country and, therefore deemed to have exhausted his right of first public distribution, does not exhaust such right in all other countries, where he retains his right of first public distribution until he has lawfully authorized the publication of his work in those other countries. While he situation contemplated by Section 190.1 covers an importation, it should be clarified that the situation is not exactly an exception to the right of first public distribution and, therefore, not an implied recognition of the right of importation. The text is clear that since Section 190.1 speaks of importation for “private use”, the importation cannot in any event be considered an infringement of the right of first “public distribution”. Apart from this reason, the TRIPS Agreement itself, which the Intellectual Property Code seeks to implement, does not recognized any right of importation with respect to copyright works and explicitly states that nothing in this Agreement shall be use to address the issue of the exhaustion of intellectual property rights (Article 6, TRIPS Agreement). It is further submitted that even an implied right of importation will defeat the principal purpose of copyright protection to disseminate information since it effectively confers upon the author the right to determine when the copyright users in countries other than that f first publication should have access his work. There is no sense in conferring such right upon the author since even in the case of unauthorized importation of lawfully published copies, he will get his due reward in the form of royalties. [9]

Although the law considers the instance in Section 190.1 as an exception only to the author’s right of first public distribution, his other rights under the Intellectual Property Code and binding treaties remain unaffected. Consequently, if the copy of a lawfully-imported work is used to violate any other rights of the author in relation to the subject matter of the imported work remedies under the Code will lie against the infringer.

CONCLUSION

It is submitted that the provisions of Section 190 of the Intellectual Property Code applies to every class of copyright works express in whatever form provided, however, that the same does not belong to those prohibited articles not allowed to be imported into the Philippines. The qualification is by reason that copyright protection attaches from the moment of creation irrespective of their mode or form of their expression, as well as of their content, quality and purpose; that is permitted importations are limited to those allowed by law.

As to the form which the permitted importation relates to, it is submitted that it applies to all forms be it printed materials such books and pamphlets or in the form of bits and bytes such as computer programs. The permitted importation should cover every copyrighted works in the form that the work is usually reproduced, i.e. usual form that it is sold/distributed to the market.

The law, in order not to attribute obsolescence, should be understood as to cover only copy of works in their usual and ordinary form as to enable authorities to regulate importation and should be deemed not to cover copies of work such as copy of a scanned book stored in some portable device.

Likewise, there is no reason to include those that can be transferred through the Internet as during the time of the enactment of the Intellectual Property Code such technology is already available. One would rather resort to internet transfer than be inconvenience by bringing with you during travel printed copy of a work.


Endnotes

[1] Amador, Vicente p. 85, Copyright under the Intellectual Property Code, 1998 ed.

[2] http://en.wikipedia.org/wiki/Copyrights(Accessed: September 08, 2008, 10 a.m.)

[3] http://en.wikipedia.org/wiki/Copyrights(Accessed: September 08, 2008, 10 a.m.)

[4] http://www.bearcave.com/misl/misl_tech/msdrm/darknet.htm (Accessed: 21 October 2008, 2:30 p.m.)

[5] http://en.wikipedia.org/wiki/Copyright_infringement (Accessed: 21 October 2008, 2:40 p.m.)

[6] Moreno, Federico, Philippine Law Dictionary, 3rd ed. 1998 citing Abiva vs. Weinbrenner, 62 O.G. 3787

[7] Aquino, Ranhilio p. 68-69, Intellectual Property Law, 2006 ed.

[8] http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html#5

[9] Amador, Vicente p. 558-559, Copyright Under the Intellectual Property Code, 1998 ed.

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