Commons-Talk

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 law^{6 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 [↩]

January 29th, 2008 | Category: Creative Commons | Subscribe to comments | Leave a comment | Trackback URL