» “I love you, brother” » Posted by BerneGuerrero      

The talents of others can radiate through the utilization of another’s work. Discussions on creativity, sometimes, can be dampened by serious considerations on legal matters involving copyright, enforcement of such, and appropriate licensing. Coming from a legal background, I would, even in the temptation to advocate strongly on issues on licensing, rather pause to share certain developments involving a proprietary work of a Filipino circulated as part of pop culture.

Renaldo Lapuz auditioned during the 7th season of the US talent show “American Idol,” at Dallas, Texas, by singing his composition “We’re Brothers Forever.” He also sang during the show’s Finale on 21 May 2008.

Renaldo Lapuz’ website reports of a “We’re Brothers Forever Remix contest,” determining therein the “Best Renaldo Remix in the Entire WORLD.”

Remixes of the song “We’re Brothers Forever” can be found liberally over the Internet, including those by JustinB, and the one determined by the Lapuz site as the best one, that of The Brotherhood. My personal favorites, however, include those by Eliot Bronson and Alina.

It would have been implied that some form of licensing has been involved in the said contest. At present though, I am unsure what the terms of such would have been.1

Congratulations, Mr. Lapuz! Kudos also to those who made brilliant remixes of the catchy, albeit raw, composition. I am immensely entertained.

  1. The lack of specific stipulations sometimes prevents me from participating in certain endeavors — not music but graphic arts for example — so as to avoid [re]experiencing the depreciation of an initial genial collaboration in case un-altruistic interests would develop into primordial concerns. [↩]
» Posted in Pop Culture on May 23, 2008.         » Leave a Comment

» Is Creative Commons anti-copyright? » Posted by BerneGuerrero      

Is Creative Commons anti-copyright? It is a question that is normally proffered, considering the rationale of Creative Commons licenses departs from strict control of copyright rights and leans toward the legal sharing, reuse, and remixing of copyrighted works. The reality of the matter is that Creative Commons cannot be anti-copyright — in the context towards the negation of the protection of rights under Copyright laws.

Creative Commons licensing does not try to wrestle from the copyright owner the rights thereof so as to allow the sharing of copyrighted works to the public. What Creative Commons licensing provides is an avenue for the copyright owner to allow sharing of his copyrighted works to the public through standardized forms of permission, attached to the work itself so as to release the copyright owner from individually granting licenses to those who would request permissions, if he/she desires so. Clearly then, one has to be the copyright owner to validly license (which is non-exclusive licensing) a work to others using Creative Commons licenses.

Copyright laws provide provisions tackling exclusive licensing and assignments of copyright. Permission requirements are implied in their provisions and the common mode is explicit permission requests from the copyright owner. Copyright laws, however, are silent as to the mechanism for a copyright owner to grant permissions as embedded in the work itself. The usual resort, on this point, is for the copyright owner, who is willing to share his/her work in such a manner, would muster a few sentences as to his intent, which could prove to be vague when the meaning of such stipulations become in focus, especially if the manner of the use of such work becomes contentious. Alternative licensing provides for lawyer-drafted instruments that could embody the allowance and limitations in the use of such work to flesh out such intent.

The unported/generic Creative Commons licenses use the terminologies and the tenor of copyright treaties (such as the Berne Convention for the Protection of Literary and Artistic Works [as amended on September 28, 1979], the Rome Convention of 1961, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996 and the Universal Copyright Convention [as revised on July 24, 1971]) in their stipulations. The Philippine ported licenses use the terminologies and tenor of the Philippine Intellectual Property Code (Republic Act 8293) and the Civil Code of the Philippines (Republic Act 386). If Creative Commons is anti-copyright, it would negate the efficacy of its licenses.

To share, reuse and remix legally; one has to observe the law.

» Posted in Creative Commons on April 2, 2008.         » 4 Comments

» Creative Commons icons and the protection of works » Posted by BerneGuerrero      

There is a mistaken notion that Creative Commons icons (such as the one on the right sidebar) provides for the positive act to protect copyrighted works.

The truth of the matter is that copyright laws protect the copyrighted work. Section 172.2 of Republic Act 8293 or the Intellectual Property Code of the Philippines provides that “Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.” By the fact of creation, works created are ipso facto protected by copyright laws. Registration, as required by Section 191 thereof1 merely provides for the best evidence as to the right of one person over a work (and, of course, avoids the penalties, if any, imposed as a result of non-compliance of Section 191).

Providing a Creative Commons license on one’s website or one’s work would indicate that the owner of the site or of the work is allowing any person, who would come across the website or work, permission to use the work according to the terms the owner has specified. Contrary to expectations towards consolidating one’s copyright (”All Rights Reserved”), it actually indicates permission in sharing but with “Some Rights Reserved.”

Nevertheless, it would be similarly erroneous to claim that Creative Commons licensing does not protect the copyright of works. Since the work is merely licensed (non-exclusively) and not dedicated as part of public domain, certain rights of the license under copyright law remain intact. The parameters of which rights are not waived are provided in the conditions imposed in the Creative Commons license. Further, since the license serves as a contract according to the Philippine-ported licenses (or in the terminology of the Unported license and other jurisdictional license: “to the extent this license may be considered to be a contract,”), besides the benefits of protection based on the copyright law, it shares the benefit of protection based on the laws on contracts.

Endnotes

  1. Section 191. Registration and Deposit with National Library and the Supreme Court Library. - After the first public dissemination of performance by authority of the copyright owner of a work falling under Subsections 172.1, 172.2 and 172.3 of this Act, there shall, for the purpose of completing the records of the National Library and the Supreme Court Library, within three (3) weeks, be registered and deposited with it, by personal delivery or by registered mail two (2) complete copies or reproductions of the work in such form as the directors of said libraries may prescribe. A certificate of deposit shall be issued for which the prescribed fee shall be collected and the copyright owner shall be exempt from making additional deposit of the works with the National Library and the Supreme Court Library under other laws. If, within three (3) weeks after receipt by the copyright owner of a written demand from the directors for such deposit, the required copies or reproductions are not delivered and the fee is not paid, the copyright owner shall be liable to pay a fine equivalent to the required fee per month of delay and to pay to the National Library and the Supreme Court Library the amount of the retail price of the best edition of the work. Only the above mentioned classes of work shall be accepted for deposit by the National Library and the Supreme Court Library. [↩]
» Posted in Creative Commons on March 22, 2008.         » Leave a Comment

» Unported viz Philippine ported license » Posted by BerneGuerrero      

Eugene Villa posted an inquiry, to wit: “Are the ported licenses the same thing as the unported licenses but only reinterpreted for the Philippine legal system or are they two completely different licenses?” on “Why use Creative Commons Philippine licenses?” The follow up questions provide that “[S]uppose I license a piece of creative work under the unported CC-BY-SA-3.0 license[, d]oes this mean that I have also licensed it under the Philippine CC-BY-SA-3.0 ported license when the work is used in the Philippines? Or do I have to specifically say that I also license it under the Philippine license for my intended licensing use to be enforced in the Philippines?“

I could answer the first question in an imperfect analogy of “twins.” Are they same? It would be a yes and a no. On the other hand, I could answer the subsequent question with another question such as “Why not shift to a CC BY-SA 3.0 Philippines license instead of maintaining the Unported one?” But then again, it would not help anyone for me to provide such simplistic answers, as they would not answer the question “Why?”

Let’s have again an overview of Creative Commons Unported/Generic licenses. Creative Commons Unported/Generic licenses are jurisdiction-agnostic. They do not mention any particular jurisdiction’s laws or statutes or contain any sort of choice-of-law provision. The licenses (before version 3.0) are based on the U.S. Copyright Act in many respects. The version 3.0 licenses, on the other hand, utilizes the terminologies of the Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979), the Rome Convention of 1961, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996 and the Universal Copyright Convention (as revised on July 24, 1971), and contains stipulations are generally made, and which may or may not necessarily applicable according to a certain jurisdiction’s law. Although there is no reason to believe that the licenses would not function in legal systems across the world, it is at least conceivable that some aspects of Creative Commons licenses will not align perfectly to a particular jurisdiction’s laws.1

Due to the reality articulated in the immediately preceding sentence above, Creative Commons embarked on an internalization project, which includes a porting process, to ensure that Creative Commons licenses are enforceable in specific jurisdictions, as well as globally. It has been proffered that the Unported licenses serve two purposes. One, the unported licenses may be the actual licenses used by any licensor (copyright owner) around the world, especially if their jurisdiction has not released any jurisdictionally ported licenses yet, as what was the case in the Philippines prior to 15 December 2007. On the other hand, the unported licenses may also serve as a template for Creative Commons jurisdictional affiliates to develop jurisdictionally specific (ported) licenses which are consistent and compliant with the terminologies and mechanics of that specific jurisdiction’s laws, as what the Philippine affiliates did. Needless to say, the porting process involved a conscious balance between (1) maintaining the context of the generic licenses (especially as to matters of permissions and limitations in the legal code) so that the resulting jurisdictional licenses may interoperate with the unported licenses and other jurisdictional licenses, and (2) the proper alignment of the stipulations according to the jurisdiction’s laws to ensure their enforceability in said jurisdiction and elsewhere through treaty obligations. Creating a jurisdictionally ported license does not negate the applicability of the unported license in that jurisdiction.

Answering the questions

For the purpose of clarity and distinction, it might be convenient to paraphrase the first question into “Are the ported licenses (including the Philippine ported one) identical (or same) to the unported/generic license?“; the answer of which is no. On the other hand, “Are the ported licenses (including the Philippine ported one) equivalent or similar (or same) to the unported/generic license?” The answer is yes. The licenses are not the same, in the context that they are not identical. Porting the Creative Commons license according to Philippine laws did not merely require a translation of the terms of the unported licenses to be consistent with the terminologies of Philippine copyright law, nor involved a mere translation of the unported licenses in a local Philippine language. The end results of a mere translation would have been identical licenses, and a better understanding of the unported licenses but without necessarily approximating a perfect alignment of the licenses to a particular jurisdiction’s laws so as to ensure its full enforceability, which is a drawback in the practical sense of licensing. The ultimate aim is to allow the full enforcement of the licenses with the least difficulty in explaining the stipulations. On the other hand, licenses are the same, in the context that they are equivalent. The Philippine-ported Creative Commons license, are equivalent to the unported licenses and other jurisdictional licenses (following the balance in the porting process as stated above). Authors of works licensed under CC BY-SA 3.0 Unported can be enforced in the Philippines, although there may be a need to substantiate the applicability of a stipulation or the meaning of a certain terminology if such are not aligned with Philippine laws. The CC BY-SA 3.0 Philippines can provide clues as to the applicability of the unported stipulation(s) and the meanings of terminologies found in the unported license. This answers a subsequent paraphrased question, “Suppose I license a work under CC BY-SA 3.0 Unported, can I enforced the same in the Philippines, even if I have not license it under a CC BY-SA 3.0 Philippines license?“l the answer of which is yes.

Expounding the subsequent questions still, it can be paraphrased into “Suppose I license a work under CC BY-SA 3.0 Unported, do I need to licensed it concurrently as CC BY-SA 3.0 Philippines?” The answer is no. Multiple licensing under equivalent terms may be awkward for the licensor. The licensor usually licenses his work globally, and he might find it tedious to license his work with the latest unported license, the Philippine-ported license, and forty-three (43) other jurisdictional licenses (and counting) to ensure enforceability in each and every jurisdiction. Further, it might be confusing for the licensee to abide to multiple licenses especially if there are nuances in the chosen concurrent licenses and the licensee may, in the end, choose a concurrent license beneficial to him (and perhaps prejudicial to the licensor) in any claims against his use of such work. I think the other solution is to license it according to the terms of a jurisdictional license (to peg the jurisdictional laws in which one claims his right over the work and right to transact with another in such a manner), like the Philippine-ported one, and rely upon the mechanics of copyright law and treaty obligations to enforce one’s right in most jurisdictions. Again, there is no mandatory obligation to use jurisdictionally ported licenses in lieu of unported or generic ones, although if the jurisdiction — in which the licensor belongs in — has already ported the licenses according to the jurisdiction’s laws, a shift towards jurisdictionally ported license is recommended.

On the other hand, “Suppose I license a work under CC BY-SA 3.0 Unported, did I, in effect, licensed it under the precise terms of CC BY-SA 3.0 Philippines (since CC BY-SA 3.0 Philippines is available), if the work is used and the rights in the license are to be enforced in the Philippines?” The answer is no. Corollarily, “Can I use the terms of the CC BY-SA 3.0 Philippines as the real terms of the license when enforcing CC BY-SA 3.0 Unported in the Philippines? The answer is no. The terms of the unported licenses and the Philippine-ported licenses are not identical. The licensee can only be bound by the specific terms in which he has agreed on. Since inevitably there would be doubts as to the proper terminology and applicability of certain stipulations of the licenses, which are not aligned to a specific jurisdictional law, doubts may inure to the benefit of the licensee, especially if the licensor is not allowed by the court to clarify the context of the parties’ intent in agreeing to the license in question. Hence, to the paraphrased question “Can I use the terms of the CC BY-SA 3.0 Philippines to explain the terms of the CC BY-SA 3.0 Unported according to the context of Philippine law? “; the answer is a qualified yes, i.e. if parol evidence can be presented as an exception to the best evidence rule under Philippine Rules of Court.2

Endnotes

  1. With reference to texts found in http://creativecommons.org/international/ [↩]
  2. See Section 9 of Rule 130, http://www.supremecourt.gov.ph/rulesofcourt/RULES%20OF%20COURT.htm#rule_130. [↩]
» Posted in Creative Commons on March 22, 2008.         » 1 Comment

» Who/what protects you in CC license violations? » Posted by BerneGuerrero      

Jim provided the following inquiries and comment. “If a Creative Commons License is violated here in the Philippines, who gets to represent the holder of that license? The Philippines is not exactly known for respecting intellectual property. What’s there to assure individuals or groups who publishes under the Creative Commons that they will get protection for their work?” at the Philippine Internet Review website, as per comments on the article “Philippine Commons Empowers Content Creators”.

Any violation of any intellectual property rights, whether “All Rights Reserved” or “Some Rights Reserved,” are pursued through the usual methods provided by law (RA 8293), with due regard to international treaties if the violation is transnational. A copyright owner (as well as work licensor under Creative Commons [as he/she in fact is a copyright owner]) is usually represented by his/her own counsel of choice to enforce his claim through legal means, including resort to the courts. If there would be questions to the interpretations of the Creative Commons licenses here in the Philippines, the Creative Commons affiliates here can collaborate with the attending counsel or the court itself (as amici curiae), as to this particular aspect.

The law on intellectual property and the law on contract provide for the mechanism for the protection of the work and the licensor’s intent, respectively. Upon practical deduction, however, even if these laws are in place, these do not ensure that there would be no instance of violations of such laws or of anyone’s rights. The laws merely provide for the protection for the above, and the reliefs in case of violations thereof.

Significantly, the introduction of Web 2.0 technologies has diffused the options in the creation and publication of works. This development provides awareness on intellectual property issues since the masses, as alternative content providers, now consider the repercussions involving the use of their own works by others. Alternative licensing, like Creative Commons licensing, provides an additional dynamics in the interplay of alternative and mainstream content providers — suppletorily increasing the awareness on intellectual property as well on contracts themselves.

I would assume that the comment regarding “[t]he Philippines is not exactly known for respecting intellectual property” is non-exclusive conclusion since such could be similarly proffered against other jurisdictions; and would touch on a vein of truth similar to a sweeping statement that “the Philippine government is not exactly known for respecting international contracts and agreements.” Nevertheless, I believe that such statements should not be self-defeating conclusions but that avenues and alternatives be made available to depart from such situations. Fostering a culture of respect is primordial, and we [in Creative Commons Philippines] could contribute to such in our own way, i.e. through alternative licensing. We hope that [anyone] can also offer possible solutions to cultivate such culture.

» Posted in Creative Commons on March 18, 2008.         » Leave a Comment

» The term “license” » Posted by BerneGuerrero      

The term “license” provides a minor confusion in the Philippines when one talks about Creative Commons licenses, in light of the attached meaning of “license” in ordinary legal dealings.

CC License != permit

When one talks about licenses in the Philippines, the first thing that comes to mind would be government permits. Since one needs a license to pursue a regulated profession, a license to pursue business, a license to drive on Philippine roads, and so on; one has to go to the government to procure a license before one can pursue a particular regulated task. In case the government is not involved in the dispensation of certain licenses, the power of a certain non-governmental organizations is sometimes recognized to provide for the same. Particularly significant, for example, is the license necessary to mark certain food packages to be Halal compliant, as provided by the Office on Muslim Affairs.

It is not unusual thus to be confronted with a question, about Creative Commons licenses, made in the following fashion: “Where do I register so that I can use Creative Commons licenses?”

CC License = Your permission

The licenses of Creative Commons are more in the nature of written permissions, rather than in the nature of formal permits. No one is required to register with Creative Commons to use Creative Commons licenses (including their visual buttons and links) to mark shared works. Creative Commons licenses are provided by Creative Commons — as standardized permission documents which are human, lawyer, and machine-readable — to enable people who are willing to share their works to the community towards the “Some Rights Reserved” direction (as against locking them under “All Rights Reserved,” and short of fully dedicating them into the public domain).1

Significantly, thus, the distinction lies in the central actor in permits and permissions. Empowerment cascades in permissions.

CC PH license = contract between licensor and licensee

The Philippine-ported Creative Commons licenses are treated as contracts2 unlike in the unported license, which admits that its applicability relies on “To the extent this license may be considered to be a contract.” The reason for the exclusion of this clause in the Creative Commons Philippine-ported license was the fact that the Philippines follows civil law rather than common law. Supreme Court decisions do not extend the law but merely form part of the legal system of the Philippines3 Further, there are only five sources of obligations in the Philippines: law, contract, quasi-contract, delict and quasi-delict. The obligations of the licensee, in complying with the license, cannot attach unless the document is deemed to be a contract.

  1. The Creative Commons website provides, in part, that “Creative Commons provides free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry. You can use CC to change your copyright terms from ‘All Rights Reserved’ to ‘Some Rights Reserved.’ We’re a nonprofit organization. Everything we do — including the software we create — is free.” [↩]
  2. Subsection “The Creative Commons Philippine-ported licenses” in Why use Creative Commons Philippine licenses? [↩]
  3. Article 8, Republic Act 386 (Civil Code of the Philippines) provides that “Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.” [↩]
» Posted in Creative Commons on March 17, 2008.         » 2 Comments

» The path towards Creative Commons Philippine licenses, and why use them? » Posted by BerneGuerrero      

Creative Commons and Creative Commons licenses

When the initial Creative Commons licenses (version 1.0) were introduced in December 2002, the licenses were based on United States (US) copyright law. These licenses, although based on US copyright law were referred to as “generic” inasmuch as they do not specify a specific jurisdiction or governing law that would apply in the interpretation of the licenses. By the end of 2003, Creative Commons embarked in the internationalization of the licenses, by porting the generic licenses according to the applicable laws in different jurisdictions around the world.1 Considering the feedbacks that were gathered after the release of version 1.0, version 2.0 was released (Some of the changes were: Attribution becomes standard; the Link-back attribution was clarified, the Synch rights was similarly clarified, and other music-specific rights were likewise clarified; Warranties were left to licensors; and emphasis was made on Share-Alike, i.e. that it is Share Alike Across Borders; and that BY-SA and BY-NC-SA are not compatible.) on May 2004. Version 2.5 was released on June 2005, to provide a modification in the attribution clause.

Considering that the generic licenses are based on US copyright law, and in light of an internationalization process, there was a quandary as to the status of the “generic” licenses. The solution was to convert the “generic” licenses as the United States ported licenses; while the “generic” licenses have to be recrafted to utilize the language of the international intellectual property / copyright conventions or treaties. Version 3.0 “Unported” (departing from the term “generic”), which was released on February 2007, relied upon the language of the Berne Convention for the Protection of Literary and Artistic Works, Rome Convention of 1961, the WIPO Copyright Treaty of 1996 , the WIPO Performances and Phonograms Treaty of 1996, and the Universal Copyright Convention.2

Creative Commons Philippines

Creative Commons Philippines (CC-PH) began on 2 March 2005 with the signing of the iCommons MOU and the designation of Atty. Jaime N. Soriano, CPA, MNSA, as Legal Project Lead. The Arellano University School of Law, where he sits as Executive Director of the e-Law Center, is the lead public institution. The first draft of the cc-ph license, as part of the porting process, was officially submitted to Creative Commons International on 27 April 2005 and appeared on or about 27 May 2005 on-line at the Creative Commons website as a project jurisdiction. The Philippines participated in the 1st iCommons Summit in Harvard Law School in June 2005. Since then, it has also collaborated with Atty. JJ Disini and Atty. Rissa Ofilada of the College of Law (Internet & Society Program) of the University of the Philippines, in elation to the porting process. For a year, the legal project lead has pre-occupied himself with the public discussion of the first draft of the cc-ph license and the propagation of the rationale and the working principles behind Creative Commons before the legal community and some groups of artists in the country.3 When the unported version 3.0 was released, and since version 3.0 revision was substantial,4 the Philippine porting process was reinitiated by late March 2007. The ported Creative Commons Philippine licenses were made consistent to the provisions of the Philippine Intellectual Property Code (Republic Act 8293) and the Civil Code of the Philippines (Republic Act 386). The result was the Philippine ported licenses, which became live on 15 December 2007 and which were publicly launched on 14 January 2008.

The Creative Commons Philippine-ported licenses

The effect of the porting process was to make the terminologies found in the “unported” or generic version consistent with the terminologies of the Philippine law so as to make the license, which is to be treated as a contract (This was made to remove any doubt as to the nature of the document to assure its enforceability; since there being only five sources of obligations here in the Philippines: law, contract, quasi-contract, delict and quasi-delict. The licenses, considering their true nature, are not laws or government regulation that could lose jurisdiction outside the Philippine territory.), enforceable in Philippine courts, especially in case the licensor’s rights are violated by non-compliance of the terms of the license by the license user or licensee. If the unported or generic licenses are the ones used, they remain to be enforced in the Philippines as the Philippines is a signatory of the treaties in which the licenses are based, but one has to explain the correlation of the terminology found in the unported licenses with the terminologies found under the Philippine Intellectual Property Code. Further, there may be other stipulations in the unported licenses, which are taken too broadly to allow the unported licenses to serve as templates for various jurisdictions to port and create their jurisdictional licenses, and which may not have the desired applicability in the Philippines as they are not recognized, or differently appreciated, under Philippine laws (The list of changes are outlined in http://itlawjournal.arellanolaw.net/2008/01/14/ported-license-modifications/). Notwithstanding certain adjustments in the stipulations in the jurisdictional licenses, due care was made to make the jurisdictional licenses consistent with the unported licenses (and hence, also other jurisdictional licenses), so as not to depart from the intent and effect of the stipulations provided therein.

Why use Creative Commons Philippine licenses? For those who have used generic/unported Creative Commons licenses or are geared towards adopting Creative Commons licenses in the near future, seamless enforceability is one. I hope you find more with the explanations above.

  1. Garlick, Mia. “Creative Commons Version 3.0 licenses explained — A brief explanation” [↩]
  2. Ibid. [↩]
  3. http://soriano-ph.com/wp-content/uploads/2006/08/CC-Philippines%202006%20Report%20to%20the%202nd%20Creative%20Commons%20Summit.pdf [↩]
  4. Definitions, moral rights provision, and clarification of the collecting society schemes [↩]
» Posted in Creative Commons on February 1, 2008.         » 5 Comments

» Copyright and Creative Commons » Posted by BerneGuerrero      

Copyrighted works

Works are created from the sole fact of their creation.1 Works can either be original2 or derivative.3 An author/owner of the copyright has economic4 and moral rights5 under the law. Use of works, whether original or derivative, are subject to the explicit permission of the owner of the copyrighted work; or in accordance with the exceptions provided by the law6 7 8 9 10 11 12

Users of copyrighted works

The scenario comes along when certain persons, who would like to follow the rules, and who need to incorporate the work of another (images, videos, audios, text), or distribute the work in its totality so as not to dilute the context of the work (especially if it is not available in local libraries), for examples, which would now go beyond the allowance provided to them under the law. The obvious solution here is to ask explicit permission from the owner. One hopes, of course, that the contact information of the owner is available alongside his work. If not, what are potential user’s options here?

Let’s flag this as “potential demand.”

Creator-owners of copyrighted works

Corollary to this is the scenarios when the author/owner of the work would want to have more time creating works rather than time answering queries whether his work can be used by another. What if he/she is very willing to share his/her works with others — similar to an author/owner of the work relies upon the sharing culture to make himself/herself known — not to the point of waiving all control of his work (as when one dedicates his work to the public domain), but within certain limitations in the use thereof? Then, he should state the permission granted in clear terms, preferably attached to the work so that people need not to contact him for every substantial use of his work but only when the use would still go beyond the limitations he would set for the use of the public at large. The personal drafting of the terms could be quite difficult for some, as the intent cannot be captured by the proper words.13 The resulting query to this would be whether the author/owner would need a lawyer to draft the full license agreement, or if there could be another option.

Let’s flag this as “potential supply.”

Licenses as relevant to the dynamics between creators and end-users

What is missing between the above “potential demand” and the above “potential supply” is the permission, given simultaneous with the availability of the work, to allow a match. One’s apparent options in this manner were to draft the license oneself; or to have the license drafted by a lawyer on one’s account. Still, there is the third option of using alternative licensing tools, like Creative Commons licenses,14 Design Science License,15 Free Art License,16 Free Music Public License,17 Open Content License,18 Open Music License,19 Open Publication License,20 and GNU Free Documentation License,21 among others. These licenses provide clear terms as to right grants and limitations in the use of the works; although some licenses are more extensive in their terms than others.

For the author/owner, what is important in choosing which license to use depends upon its proximity to one’s intent on how his/her work should be shared. The six main Creative Commons licenses — Attribution (BY), Attribution-ShareAlike (BY-SA), Attribution-NonCommercial (BY-NC), Attribution-NoDerivatives (BY-ND), Attribution-NonCommercial-ShareAlike (BY-NC-SA), and Attribution-NonCommercial-NoDerivative (BY-NC-ND) — for example, currently under Version 3.0, provide ways to encapsulate, else approximate, a spectrum of intents.

Connecting the interests on demand and supply could foster a sharing culture — a counterweight to restrictions provided by status quo — which brings about interesting results in light of the dynamics of such polarized concerns. This, of course, does not place in disrepute those who would rather maintain the totality of their rights under copyright law. Sharing is voluntary; and people should not be compelled to share, even in the face of a righteous cause. Sharing is good, but non-sharing per se need not lean unnecessarily towards the other side of the spectrum. Harnessing one’s creativity and benefiting from it is good; only that sharing one’s creativity to benefit the common good could be better. We can only so persuade.

In fine, alternative licensing provides an option between strict copyright law and the ultra-liberality of public domain dedication. Alternative licensing also competes positively against the emerging option of light enforcement of copyright law, since the former explicitly empowers people to allow information and creativity to cascade to end-users without a sword of Damocles hanging about when one needs to use a work beyond the purview of fair use.

Read more about Creative Commons, visit http://creativecommons.org> You can also download the First Quarter 2008 issue of the Philippine IT Law Journal, which features Creative Commons.

  1. Section 172.2 of Republic Act 8293 or the Intellectual Property Code of the Philippines provides “Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.” [↩]
  2. Section 172.1 enumerates “Works” (original) as “Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular: (a) Books, pamphlets, articles and other writings; (b) Periodicals and newspapers; (c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form; (d) Letters; (e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows; (f) Musical compositions, with or without words; (g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art; (h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art; (i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science; (j) Drawings or plastic works of a scientific or technical character; (k) Photographic works including works produced by a process analogous to photography; lantern slides; (l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings; (m) Pictorial illustrations and advertisements; (n) Computer programs; and (o) Other literary, scholarly, scientific and artistic works.” [↩]
  3. Section 173.1 enumerates “derivative works,” as: “The following derivative works shall also be protected by copyright: (a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and (b) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.” Section 173.2 provides a caveat, though, in the creation of derivative works, that is “The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as new works: Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works.” [↩]
  4. Economic rights, which are subject to the applicability of the provisions on the Chapter on “Limitations on Copyright,” are enumerated in Section 177 of Republic Act 8293, that is: “Copyright or Economic Rights. - Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts: (177.1.) Reproduction of the work or substantial portion of the work; (177.2.) Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; (177.3.) The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; (177.4.) Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (177.5.) Public display of the original or a copy of the work; (177.6.) Public performance of the work; and (177.7.) Other communication to the public of the work.” [↩]
  5. Moral rights are enumerated in Section 193 of Republic Act 8293, that is: “Scope of Moral Rights. - The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right: (193.1.) 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; (193.2.) To make any alterations of his work prior to, or to withhold it from publication; (193.3.) To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and (193.4.) To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work.” These moral rights can be waived, with exceptions as provided by Section 195 of the same, such that “Waiver of Moral Rights. - An author may waive his rights mentioned in Section 193 by a written instrument, but no such waiver shall be valid where its effects is to permit another: (195.1.) To use the name of the author, or the title of his work, or otherwise to make use of his reputation with respect to any version or adaptation of his work which, because of alterations therein, would substantially tend to injure the literary or artistic reputation of another author; or (195.2.) To use the name of the author with respect to a work he did not create.” [↩]
  6. Section 184 of Republic Act 8293 enumerates acts which will not constitute infringement of copyright, even if one considers the economic rights of the owner, to wit: “Limitations on Copyright. - 184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright: (a) The recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society; (b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned; (c) The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated; (d) The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose; (e) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned; (f) The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work; (g) The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast; (h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use; (i) The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations; (j) Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that the original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and (k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.” The proper interpretation of said section is provided in Section 184.2, to wit: “184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder’s legitimate interests.” [↩]
  7. Section 185 of the same law provides for the “Fair Use of a Copyrighted Work,” to wit: “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.” This allowance also covers unpublished works, as provided by Section 185.2, to wit: “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.” [↩]
  8. Specifically, on “Works of Architecture, certain rights are outlined, if they are included or excluded to copyright, to wit: “Section 186. Work of Architecture. - Copyright in a work of architecture shall include the right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original: Provided, That the copyright in any such work shall not include the right to control the reconstruction or rehabilitation in the same style as the original of a building to which that copyright relates.” [↩]
  9. Certain allowance in the “Reproduction of Published Work” is provided under Section 187.1, to wit: “Notwithstanding the provision of Section 177, and subject to the provisions of Subsection 187.2, the private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work.” However, such permission is limited by Section 187.2, which provides that “187.2. The permission granted under Subsection 187.1 shall not extend to the reproduction of: (a) A work of architecture in the form of building or other construction; (b) An entire book, or a substantial part thereof, or of a musical work in graphic form by reprographic means; (c) A compilation of data and other materials; (d) A computer program except as provided in Section 189; and (e) Any work in cases where reproduction would unreasonably conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author.” [↩]
  10. As to Reprographic Reproduction by Libraries, Section 188.1 provides that “188.1. Notwithstanding the provisions of Subsection 177.6, any library or archive whose activities are not for profit may, without the authorization of the author of copyright owner, make a single copy of the work by reprographic reproduction: (a) Where the work by reason of its fragile character or rarity cannot be lent to user in its original form; (b) Where the works are isolated articles contained in composite works or brief portions of other published works and the reproduction is necessary to supply them, when this is considered expedient, to persons requesting their loan for purposes of research or study instead of lending the volumes or booklets which contain them; and (c) Where the making of such a copy is in order to preserve and, if necessary in the event that it is lost, destroyed or rendered unusable, replace a copy, or to replace, in the permanent collection of another similar library or archive, a copy which has been lost, destroyed or rendered unusable and copies are not available with the publisher.” This permission is limited, however, by Section 188.2, which provides “188.2. Notwithstanding the above provisions, it shall not be permissible to produce a volume of a work published in several volumes or to produce missing tomes or pages of magazines or similar works, unless the volume, tome or part is out of stock: Provided, That every library which, by law, is entitled to receive copies of a printed work, shall be entitled, when special reasons so require, to reproduce a copy of a published work which is considered necessary for the collection of the library but which is out of stock. [↩]
  11. As to “Reproduction of Computer Program,” Section 189.1 provides that “189.1. Notwithstanding the provisions of Section 177, the reproduction in one (1) back-up copy or adaptation of a computer program shall be permitted, without the authorization of the author of, or other owner of copyright in, a computer program, by the lawful owner of that computer program: Provided, That the copy or adaptation is necessary for: (a) The use of the computer program in conjunction with a computer for the purpose, and to the extent, for which the computer program has been obtained; and (b) Archival purposes, and, for the replacement of the lawfully owned copy of the computer program in the event that the lawfully obtained copy of the computer program is lost, destroyed or rendered unusable.” The permission is only provided for the above purpose, and no other, as made clear by Section 189.2, to wit: “189.2. No copy or adaptation mentioned in this Section shall be used for any purpose other than the ones determined in this Section, and any such copy or adaptation shall be destroyed in the event that continued possession of the copy of the computer program ceases to be lawful.” Nevertheless, fair use remains to be recognized, as provided by Section 189.3: “189.3. This provision shall be without prejudice to the application of Section 185 whenever appropriate.” [↩]
  12. Lastly, since — in the context of promulgation of the law, and separate from the impact of the Internet — the first display, distribution, or other communication to the public, is given to the copyright owner in every jurisdiction such work would be introduced; certain permission is given for the importation of works, not yet available to the public in the Philippines, in Section 190 (Importation for Personal Purposes). Section 190.1 provides that “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; and (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). The permission is strictly limited, as reiterated in Section 190.2, to wit: “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.” Since this involves customs and tariffs issues, Section 190.3 provides that “190.3. Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation of articles the importation of which is prohibited under this Section and under treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported.” [↩]
  13. For when one says “you can download the work,” it does not mean “you can print the work,” or “you can distribute the work yourself”; or when he/she says “you can use the work,” this could mean a full spectrum from incorporation of a work to another work, to modifying the work itself. [↩]
  14. http://creativecommons.org/about/license/ [↩]
  15. http://www.gnu.org/licenses/dsl.html [↩]
  16. http://artlibre.org/licence/lalgb.html [↩]
  17. http://www.fmpl.org/ [↩]
  18. http://opencontent.org/opl.shtml [↩]
  19. http://openmusic.linuxtag.org/showitem.php?item=209 [↩]
  20. http://opencontent.org/openpub/ [↩]
  21. http://www.gnu.org/licenses/fdl.html [↩]
» Posted in Creative Commons on January 29, 2008.         » Leave a Comment

» Setting up a collaborative project for OpenContent » Posted by BerneGuerrero      

Collaborative projects for open content are very much encouraged for the development of resources for the dissemination of information and increased access to knowledge.

Setting up one could be easy if there are a lot of like-minded people contributing in such project, and who are agreeable to its general purpose or intent. Having a growing number of contributors, however, in the long run would provide certain challenges inasmuch as contributors would have different shades of liberality in the manner the content, in which they contributed on, would be utilized. Discord in the specifics might occur.

The parameters are quite important to determine on the onset, since some contributors might be very liberal in their perspective in the utilization of such content, such in allowing proprietary entities to make profit out of content and allow the greatest possibility for the content’s distribution; while others are more much keen in ensuring a sharing culture, such that they could allow proprietary entities to make profit and modify the content as long as the said entities should also share under the same parameters for its own derivative work; while others might be a little reserved in allowing the content they have contributed on to be commercially exploited by proprietary entities, whether such content has been modified or has been distributed as is.

Truly, contributors might have agreed on the general framework and principle, but for the whole time silent about what to do with the work when it is completed (something like, “let’s cross the bridge when we get there”).

Without being obnoxious, I have to repeat that the parameters have to be determined from the start, else there may be danger that the content’s distribution might be prevented by lack of consensus in the manner the work will be allowed to be used. For when decisions have to be made, how could consensus be reached? Will the organizer’s intent be paramount, ignoring dissents from certain contributors? In this regard, should the work remove all contributions made by those who dissent, and replace said contributions so as to allow the distribution of the work? On the other hand, if it is taken to vote, will a real consensus be had from the inputs from contributors, when a lot of these would not participate, being passive thereon, in reaching the decision? Will there even be any quorum when votes are actually gathered? If not, what happens?

As they say, in any agreement, the devil is in the details.

If the direction and the terms are clear from the start, a potential contributor is aware what would be the parameters for the work created. He/she can choose not to contribute, if he is not agreeable with the terms. He can find a parallel alternative project in which he may agree in contributing. Would it be grand to find initiatives blossoming all around, some pursued perhaps in a different approach but similarly oriented to the same goal that we espouse? Yes, there could be temptation to be populist, but would how far can that be sustained?

» Posted in OpenContent on January 29, 2008.         » Leave a Comment

» FOSS boom » Posted by BerneGuerrero      

I am elated by news about the growing reception and utilization of Free Open Source Software (FOSS) in the Philippines. I read the latest one (although someone has relayed to me that this has been old news) at ComputerWorld, entitled “23,000 Linux PCs forge education revolution in Philippines”.

Perusing the last paragraph of the article, which provides that “”If Linux and open source wants to take hold in the education market it must deliver course material for high schools and elementary schools,” there seems to be a necessarily link for collaboration by FOSS techies and layman educators to bring that aspect into its successful conclusion.

» Posted in FOSS on January 29, 2008.         » Leave a Comment

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