Of Criminals and Creators: My Take on the Idea of a Freer and More Creative Internet via Less Restrictive Copyright Laws

 

            I love Youtube. I am even breaking my personal rule against speaking in superlatives in declaring that it is, in my biased opinion, the greatest website ever made. It is better than Facebook, or any social media in existence. It is better than Reddit, or any internet community there is. It is even better, I believe, than Wikipedia in terms of how much information it can give to the usual data consumer. While lately there have been no shortage of stupid videos and equally mindless commenters, especially in that part of Youtube that I frequently consume (gaming channels), nevertheless, there is no doubt that the amount of creativity that is exhibited by even the most ridiculous of channels that I subscribe to is outstanding. This may mostly be attributed to the content creator’s innate ability of creating entertaining material and also to the ease of use of most if not all of the latest gadgets and computers necessary to foster creativity. It may also be partly because of the accessibility of previously created material that may be used to compliment or form part of the new work — previously created material that is, from its very creation, protected by copyright laws not only of our country,[1] but of most of the jurisdictions in this modern world.[2]

 

Youtube videos and Philippine copyright law

            Now you may ask: “what kind of videos are you  talking about?” or “where in Youtube can I find videos that are informative or that teach useful life skills while at the same time using copyrighted material?” Well, first of all, let me just say that you are not Youtube-ing enough if you think that all that are uploaded in the site are videos of cats playing “Bohemian Rhapsody” on a piano, or of a perky, overly enthused elevator operator, and other similar videos. Second, like I said, there are a lot of helpful channels or channels that spread great ideas that use copyrighted material though inadvertence. And finally, simply attributing authorship of a song or an excerpt of a video or a photograph to its creator is not enough; authority to publish the creation should first be obtained.

            A little disclaimer though before I say anything that I may regret in the future: my citation of examples in this article is never meant to attack the credibility of or impute the commission of a crime against the channels cited. On the contrary, by the end of this article it should be clear that what I am doing is that I’m actually defending their side (though they never asked for it) based on the thesis that what they are doing should not be illegal anymore in this day and age by reason of, and I agree with Prof. Lessig here, “common sense.[3]

            One prime example is the blogilates channel,[4] a video blog series created by fitness expert Cassie Ho showcasing many Pilates workouts and other combinations of physical exercises. What makes Cassie’s videos unique from other popular workout vlogs (a video blog) like that of Mike Chang’s[5] or FitnessBlender’s[6] is that she does her workouts based on the beats of the most popular pop songs of our time. Here’s one of her most popular workout videos[7], the workout being done in tune to one of the most popular songs lately: Carly Rae Japsen’s “Call Me Maybe”. Here’s another one[8]: An earlier workout focusing on the abdominal and other core muscles, with Daft Punk’s “Harder, Better, Faster, Stronger” and two other songs playing in the background. The idea and presentation of the workout videos are quite good, probably leading to her channel being one of the most popular exercise channels on Youtube with over 800,000 subscribers and with some videos garnering up to almost 3 million views. The videos are easily relatable since most people do not workout using music from underground bands or indie bands whose music are relatively less accessible than your typical pop music heard on the radio. Regardless, popular as these videos are, it seems that from the perspective of Philippine Laws (If, hypothetically, our laws apply to the case) the videos infringe copyright.

            Let us go a little local. There is this rather popular blog founded by chef and restaurateur Erwan Heusaff, where the articles cover different topics centered on food; food that are, from the blog’s banner, “sometimes healthy, sometimes fatty.” He compliments the articles and topics published in The Fat Kid Inside[9] (the blog’s title) with well-made cooking videos uploaded on Youtube showcasing how a recipe closely tied to the particular topic is executed. Most of the time though, the videos, especially the older ones, are presented with a song playing in the background. The selection is superbly made and the music is quite adept at conveying the relaxed atmosphere of the kitchen where the video is set. Still, the songs playing in the background are copyrighted material and, barring any situation I am ignorant about, like if the song is a part of a creative commons license, this means the right of owner is protected from unauthorized expression. And if enforcement of the right is sought, a case with a factual background not much different from the pending California case Lenz v. Universal Music Corporation may erupt.

            I am guessing that even with just this two I have made my point clear in stating that there are videos in Youtube that not only show high levels of creativity but also very educational, insightful and helpful to the typical interested viewer. The next question that can be asked then is how I arrived at the opinion that these videos violate copyright laws.

            Under the Philippine Intellectual Property Code, a copyright protects original literary and artistic works from the moment the work is created.[10] “Musical compositions, with or without words” are included in the term “literary and artistic works.[11]” One of the “economic rights” enjoyed by the copyright owner is the “exclusive right to carry out, authorize or prevent: xxx 177.5. Public display of the original or a copy of the work.[12]” Now, the rights conferred by law to the copyright owner are by no means absolute. The exercise of these rights is limited by the same law that grants them. There is a whole chapter dedicated to limitations on the copyright and this includes the often used doctrine of “fair use,” and other rules meant to define what does not constitute copyright infringement. But the PIPC does not expressly define what acts or omissions constitute copyright infringement, unlike the law on patents[13], trademarks and service marks[14] defined and protected by the same Republic Act. From the law, however, it can be easily inferred that copyright infringement is committed simply by the exercise of a right exclusive to the copyright owner beyond the limitations of the law.

            Careful examination of the limitations set by law will allow one to make many different conclusions as to whether there is infringement or not with each video published in the format I have described in the two examples above. But my opinion stands that while the authors of the video respect the “moral right[15]” of the copyright owner to have the work attributed to him, the same is not the only requirement so as to not commit copyright infringement. Authority or permission to “display the original or a copy of the work” must first be given by the owner of the copyright to the one who incorporates the work into the video he publishes on Youtube in order for the video to not infringe the right of the copyright owner. However simple that requirement may sound on paper, it is logistically impossible for the copyright owner to grant each and every one of the Youtube users who seek to include the copyrighted music in their video a license to do such act. The easiest solution done by the Youtube users, possibly in order to continuously enjoy creative freedom without sacrificing the promptness of their uploads, is to do away with the licensing altogether thinking that the copyright owner will not be able to see the infringement and exercise his rights. This now becomes problematic because the law on copyright in this case becomes less of a preventive law (that is, it prevents the commission of copyright infringement) and becomes remedial in a sense in that it turns into a mere basis to curtail the creativity of vloggers after the publication of the video with threats of expensive and lengthy litigation, pitting them against, more often than not, a corporate giant.

 

Enter Larry Lessig

            I first came across the ideas of Professor Lessig during one of my many Youtube binges. A few years ago, I discovered TED,[16] a Youtube channel associated with the website[17] whose banner, “Ideas Worth Spreading,” summarizes clearly their purpose in making the speeches they feature available to the widest audience possible. I discovered TED when I read an article featuring a speech[18] about how implementing the game features of the popular online role-playing game World of Warcraft into everyday life would make for a better learning and living experience for everyone. One[19] of TED’s videos on Youtube is a speech by Professor Lessig entitled:  Laws That Choke Creativity. In this speech he tells the story of one John Philip Sousa who in 1906 complained that the invention of a “talking machine” (the radio) saying that it will ruin the artistic development in the United States at that time because young people will no long sing and would only listen to other people singing. Lessig claims that Mr. Sousa was kind of correct in what he pointed out since the pre-internet culture of the past century was what he called a “read only culture,” as opposed to a “read-write culture” before the “talking machines” were invented. Prof. Lessig likened in a way the emergence of more published user generated content through the internet to going back to the times when young people would sing their own songs before the radio was popular. He talked about how “common sense” was made the basis of changing the rules on the exercise of property rights over land when the aircraft was invented and became widely used. He mentioned “amateur culture” or the culture “where people produce for the love of that they’re doing and not for the money” and how the same is prevalent in the way the youth express themselves through remixes of popular works; works that are copyright protected. He made a comment on how the law has yet to implement “common sense” in order to change copyright laws so that the amateur culture will flourish without threat of legal sanctions. This eye-opening speech was uploaded into Youtube way back in 2007.

            Just a few weeks ago, I finally got to watch another uploaded video[20] of a speech delivered by Prof. Lessig. This one was referred to our class by our Technology and the Law professor who attended the very same conference where the speech was delivered. The title of the speech: “Leyes que limitan la creatividad.” Now, know very little Spanish but that to me sounds a lot like “laws that limit creativity.” Once I started to listen to the speech however, I quickly realized that I was right, that Prof. Lessig is, in essence, explaining the same ideas he was trying to convey more than half a decade ago. He even made reference to the TED speech I was talking about above. Listening to the speech made me a bit concerned at how, after this much time, very little ground was gained by his and the other advocates’ side in this war of attrition. Their side even suffered some casualties (quite literally) but it was not for nothing. The defeat of SOPA is significant and it showed that the “netizens” do have a collective voice and that they are determined to fight for change, and boy do I believe copyright law needs to be changed.

 

The need for reform

            Copyright and all intellectual property rights are supposed to foster creativity and inventiveness. Section 2 of R.A. 8292, as amended states:

“Section 2. Declaration of State Policy. – The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act.

The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good.

It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines. (n)”

IP rights, I think (and is clear from the above quoted law), is based on the simple theory that the financial rewards from getting exclusive rights over something you created or thought about is a great incentive to create more good stuff or even better stuff than before. Some studies show, however, that this theory is actually a fallacy.

            From the “extensive” amount of research I did (read: I googled some key words), I found a very interesting video that showed how the theory I mentioned above is debunked…by science! The video[21] basically gives a few scientific studies as proof that financial rewards don’t always lead to more creative people. The video showcases a speech delivered by Daniel Pink, Author of “Drive,” a book which tackles the subject of motivation and how it is not as simple as it seems (FYI: I haven’t read it, sorry, but I may in the future, who knows), and compliments the speech with a series of drawings on a white board illustrating Pink’s points in a way that is easier to grasp (again, such creativity!). In the video, Pink mentions some studies that tell us that while cash is a good motivator when it comes to repetitive work, it does not have the same effect in the case of creative work. Pink explains that studies have shown (and at the same time baffled economists) that when it comes to highly cognitive and creative work, there are other types of rewards more satisfying than cash. He then reports that the same studies showed that cash is even bad for creativity; that the pressure to make something happen is actually bad for creativity; and that this is where non-cash rewards become more effective. He used mastery of the work (i.e. just making things in order to improve on making those things), autonomy in the workplace, and even social significance of the work being done as examples of these non-cash rewards.

            Clearly, these studies support Professor Lessig’s advocacy to reform the copyright system. Even in a world where creative commons licenses exist, there is still room for improvement. While the right to have the work attributed to the author should never be abolished, the scope of fair use can be still be enlarged; the limitations on copyright can still be increased; heck even the period of the protection, in my opinion, should be shortened (think about it, why should an author enjoy exclusivity benefits from the grave for 50 more years after his death). Think about it, the creative channels I have mentioned above were ballsy enough to disregard copyright law, and look at what resulted from this disregard. More of those informative, helpful, artistic, and most importantly FREE videos are appreciated. And surely, more of those videos will come when people are no longer afraid to express what they want without laws shackling their creativity. When money does not move people to create, the logic behind IP rights cannot stand. When copyright and other IP rights do not serve its purpose, the rules should change. It is that simple; it is just “Common sense.”


[1] Republic Act No. 8292, as amended, otherwise known as the Intellectual Property Code of the Philippines.

[2] Signatory countries to the Berne Convention for the Protection of Literary and Artistic Works (1886), the Universal Copyright Convention (1952), the Universal Copyright Convention (1971), the TRIPS (1994), and the WIPO Copyright Treaty (1996).

[3] Larry Lessig: Laws that choke creativity. November 15, 2007.  Youtube. http://www.youtube.com/watch?v=7Q25-S7jzgs. Accessed: 9/23/2013

[4] blogilates. Youtube channel. http://www.youtube.com/user/blogilates?feature=watch. Accessed: 9/23/2013

[5] Mike Chang’s Six Pack Shortcuts. Youtube channel. http://www.youtube.com/user/sixpackshortcuts. Accessed: 9/23/2013.

[6] FitnessBlender. Youtube channel. http://www.youtube.com/channel/UCiP6wD_tYlYLYh3agzbByWQ. Accessed: 9/23/2013.

[7] Call Me Maybe Mighty Squat Challenge. April 16, 2012. Youtube. http://www.youtube.com/watch?v=xDpB8pWEjhk&list=TLvLIUNODb8ieen4sPhU8bTGRXrmWcEdYk. Accessed: 9/23/2013.

[8] POP Pilates: Intense Ab Workout! (Full 10 min). August 9, 2010. Youtube. http://www.youtube.com/watch?v=od0j4aNDGKM&list=TLyLSoLZ1GWlIyB7XCXF-6t3WPljjW0ikR. Accessed: 9/23/2013.

[9] The Fat Kid Insidehttp://thefatkidinside.com. Accessed: 9/23/2013

[10] Section 172. R.A. No. 8292, as amended.

[11] Section 172, par. (f), R.A. No. 8292, as amended.

[12] Section 177. R.A. No. 8292, as amended.

[13] Section 76, R.A. No. 8292, as amended.

[14] Section 155, R.A. No. 8292, as amended.

[15] Section 193, R.A. No. 8292, as amended.

[16] TED. Youtube channel. http://www.youtube.com/user/TEDtalksDirector?feature=watch. Accessed: 9/26/2013

[17] TED: Ideas Worth Spreading. http://www.ted.com/. Accessed: 9/26/2013

[18] Jane McGonigal: Gaming can make a better world. Mar 17, 2010. Youtube. http://www.youtube.com/watch?v=dE1DuBesGYM. Accessed: 9/26/2013

[19] Ibid. at 3.

[20] Conferencia de Lawrence Lessig: “Leyes que limitan la creatividad” (part 1). August 30, 2013. Youtube. http://www.youtube.com/watch?v=RIV1UE_RZ-c&list=WL1F40C0C514993A5D. Accessed: 9/26/2013

[21] RSA Animate – Drive: The surprising truth about what motivates us. April 1, 2010. Youtube. http://www.youtube.com/watch?v=u6XAPnuFjJc. Accessed: 9/26/2013.

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