COPYRIGHT AND RELATED LAWS:EFFECTS ON LIBRARY SERVICE IN THE PHILIPPINES

Vyva Victoria M. Aguirre, LL.M., M.L.S.

ABSTRACT

The Philippine Librarianship Act acknowledges that “the State recognizes the essential role of librarianship as a profession in developing the intellectual capacity of the citizenry thus making library service a regular component for national development…” This provision of law emphasizes the role of librarians and library service in national development through development of the intellectual capacity of the Filipino people. It also emphasizes the duty of librarians and library service to collect, organize and disseminate information necessary for national development. When intellectual property rights became a global issue, the Philippine government revised the rules on copyright to conform to international standards. Subsequently, related laws were passed in order to meet the demands of technology and its effects on intellectual property rights.

While welcoming the developments in the field, a majority of librarians in the Philippines view copyright and related laws as a sort of bane on library service and the scholarship that it is supposed to promote, as well as on the people’s right to access information. This perception stems from the inadequacies of such factors as library budgets and the inability of most scholars to acquire expensive books, digital or otherwise. Ironically, copyright and related laws were also designed for national development. The Philippine Constitution itself secures to scientists, inventors and artists exclusive rights to their intellectual creations “particularly when beneficial to the people.”

This paper will explore the provisions of the copyright law as embodied in the Philippine Intellectual Property Code, and the relevant provisions of the E-Commerce Law and the Optical Media Law. It will attempt to discover whether these laws and their strict implementation indeed negatively affected literacy, scholarship and research. It will also attempt to dissect the “fair use” doctrine especially as applied in the Philippines. It is hoped that the discussion will succeed in correcting certain misconceptions about copyright and in adopting measures to ensure compliance with what is legally required while taking into account the needs of scholarship and information dissemination for national development.

Introduction:

Philippine law “recognizes the essential role of librarianship as a profession in developing the intellectual capacity of the citizenry thus making library service a regular component for national development…” (Rep. Act No. 9246, art. I, sec.2) This context finds a fitting background for a study on intellectual property rights in the country. In accordance with the above quoted provision of the Philippine Librarianship Act, librarians are mandated to contribute to the development of the intellectual capacity of the Filipino people. This is the most important reason for the grant of professional status for librarianship in the Philippines.

Librarianship is a service-oriented profession. The “commodity” that it services is information. Information is a vital component of national development. Therefore, librarians must perform their role as information providers in a way that encourages intellectual growth. It is, however, true that a tension exists in this country between this

need to satisfy the general public’s right to access sources of knowledge and the limitations imposed by the copyright law and other related laws such as the E-Commerce law and the Optical Media law.

The Philippine librarians’ apprehensions about these laws stem largely from a lack of understanding of how they operate. As a result, librarians tend to swing towards either of two extremes: towards a strict interpretation and implementation of the rules, thus hampering service, or towards complete disregard of them, bordering on irresponsibility that can open them to charges of copyright violation.

Ironically, the reason invoked for intellectual property rights is also development. According to the Philippine Constitution, the purpose of intellectual property protection is to secure scientists’, inventors’ and artists’ exclusive rights to their intellectual creations, particularly when beneficial to the people. (Art.XIV, sec.13) This seems to imply that scientists’, inventors’ and artists’ exclusive rights to their creation will eventually benefit the public because it is this exclusivity of benefits, especially the economic kind, that will encourage them to keep on creating and granting access to their creations. It is thus necessary, as Christine Borgman suggests, to find the proper balance between the citizen’s right “for the broadest possible access to information and the rights of creators or information to be compensated for their work.” (Borgman, 2000)

This paper will discuss how laws on creator’s rights affect library service in the Philippines. It will also show how certain efforts to protect intellectual property rights in the digital environment can affect library service.

Philippine Copyright Law:

The creator’s right of ownership over his/her creation is protected under the Philippine Civil Code. According to the Civil Code, “ownership is acquired either by occupation [or] by intellectual creation.” (Art.712) “By intellectual creation, the following persons acquire ownership:

(1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work;

(2) The composer, as to his musical composition;(3) The painter, sculptor, or other artist with respect to the product of his

art;(4) The scientist or technologist or any other person with regard to his

discovery or invention.” (Civil Code, art. 721)

The Civil Code further states that “copyright shall be governed by special laws”. (Art.724) The relevant law in the Philippines is Part IV of Republic Act No. 8293, also known as the Intellectual Property Code of the Philippines (hereafter referred to as the IP Code). Section 172.1 of the IP Code enumerates fifteen (15) items that fall under the category “intellectual creations in the literary and artistic domain.” Under the law, protection is accorded by the sole fact of creation and not by registration with the copyright office. To quote sec. 172.2 of the IP Code,

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Works are protected by the sole fact of creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. (formerly sec.2 of PD No. 49a)

Copyright is defined in the Philippine Legal Encyclopedia (Sibal, 1986) as an “intangible, incorporeal right granted by statute to the author or originator of certain literary or artistic productions whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.” Copyright, therefore, is the right to own and exploit one’s creation. As owner, the copyright holder enjoys almost absolute rights over the thing owned, including the right to dispose and even to destroy. In practice, the original owner, the creator, transfers copyright to a publisher or distributor.

As an object of ownership, copyright is also subject to certain limitations. For instance, in the same manner that some things are beyond the commerce of men, ideas, concepts, principles, discoveries or mere data as such, even if expressed, are beyond the protection of copyright laws. Section 175 of the Code further excludes the following from copyright protection: procedure, system, method or operation, news of the day and other miscellaneous facts having the character of mere items of press information, and official texts of legislative, administrative or legal nature, including official translations thereof.

On the other hand, when ideas and data are presented in a particular manner, “the manner of expression, the author’s analysis or interpretation of events, the way he structures his material and marshals facts, his choice of words and the emphasis he gives to particular developments” are subject to protection. (Salinger vs. Random House, 811 F2d 90)

Registration and deposit:

In the Philippines, there is a general misconception that the work must first be registered with the copyright office before it can be protected. Perhaps, this misconception arises from the existence of a provision in the IP Code requiring registration and deposit of two (2) copies of the work with the National Library and the Supreme Court library. Section 191 of the IP Code provides:

Registration and Deposit with the National Library and the Supreme Court Library.—After the first public dissemination or 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) copies or reproductions of the work in such form as the directors of said libraries may prescribe…

The rest of this section refers to the imposition of fines for non-registration and non-deposit after notice from the directors of the two libraries mentioned. However, a

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careful reading of the above-quoted portion of the provision would show that registration and deposit are required only after the first public dissemination or performance of the work. Furthermore, the purpose given is not to accord copyright which, according to sec. 172, attaches from the moment of creation, but to complete the records of the National Library and the Supreme Court Library. One can, nevertheless, assume that this deposit requirement is also necessary for the purpose of preserving the country’s cultural, legal and scientific heritage.

It is interesting to note that the former Philippine copyright law distinguished between registration and non-registration in the following manner: if a law is not registered with the copyright office, the copyright owner can only demand that infringement be terminated and the infringing copies confiscated and destroyed but cannot demand compensation for damages. This distinction has been removed from the new law.

Exclusive Rights and the Doctrine of Fair Use in the Philippine Context:

Copyright consists in certain exclusive rights, namely, the right to publish, to reproduce, and to first sale. In the Philippines, the biggest problem that librarians face is the exclusive right of reproduction. Fortunately, this is not absolute. Through the court-developed doctrine of “fair use”, the general public is given the right to reproduce a work subject to specific limitations. Under Philippine law, fair use of a work for criticism, comment, news reporting, teaching, including multiple copies for classroom use, scholarship, research and similar purposes does not infringe copyright. (Sec. 185.1, IP Code)

Fair use has no exact definition under the law. However, authorities have agreed on the following criteria enumerated in sec. 185.1 of the Code:

(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.

Traditionally, fair use is more easily accepted when the purpose of copying is educational in character and purpose than when it is commercial or for profit. It does not mean, however, that all copying for educational or classroom purposes is fair use. The Philippines has not had any case brought before the courts to challenge fair use in this context. To illustrate the point, we must draw on American court decisions. In Princeton University vs. Michigan Document Service, Inc. (unreported, 1992), the U.S. Court did not consider photocopying of materials for compilation in course packs as fair use because photocopying was done by a commercial vendor. On the other hand, in another case, the U.S. Court tended towards the more fundamental aim of protecting the progress

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of science and the arts. In Williams vs. Wilkins Co. (487 F2d 1345) it gave the opinion that medical science would be seriously hurt if library photocopying was stopped.

Library Photocopying as Fair Use:

In the Philippines, the IP Code laid down some rules for library photocopying. Under sec. 188.1 “any library or archive whose activities are not for profit may, without the authorization of the author or copyright owner, make a single copy of the work by reprographic reproduction” in the following circumstances:

(a) where the work cannot be lent to users in its original form because of its fragile character or rarity;

(b) where the works are isolated articles in composite works or brief portions of other published works and it is more expedient to reproduce and lend them, instead of the whole volume or book, for purposes of study or research; and

(c) where the purpose for making the copy is in order to preserve it, or, if the work has been lost, destroyed or rendered unusable, in which case the library can borrow another copy and reproduce this to replace the lost or destroyed copy, provided that copies are no longer available with the publisher.

Under this above-quoted rule, Philippine libraries are only allowed to make a single copy and, in the case of replacement volumes, only when the book is no longer available with the publisher. Libraries are not allowed to photocopy a volume of a work belonging to a multi-volume series or to reproduce missing tomes or pages of magazines or similar works unless these are out of stock. Moreover, if the library is entitled by law to receive copies of printed works, it may reproduce copies of these works should it fail to receive them and should they be out of stock. (Sec.188.2)

Section 187.1 of the Code allows “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.” However, the following are not covered by this general permission:

(a) a work of architecture in the form of a 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 for in sec. 189, and(e) any other work in cases where reproduction would unreasonably

conflict with the normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author.

The exception in sec.189 for computer programs refers to a single backup copy of a software that the library has lawfully acquired. With respect to “reasonable copying of a substantial part” as well as “normal exploitation” and “unreasonable prejudice to the legitimate interests of the author”, the criteria laid down for the fair use doctrine should be our guide.

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These rules do not and cannot cover all circumstances of photocopying. A problem often faced by librarians in the Philippines is determining whether or not they can be accused of abetting violations of copyright law and other related laws already mentioned.

Infringement of copyright:

In the Philippines, infringement of copyright is punishable under sections 216-217 of the Intellectual Property Code. The liability is not only civil (where the infringer only pays damages) but also criminal (where he or she can also land in jail). Here lies the tension experienced by Philippine librarians between their duty to optimize access to information and strict adherence to the law on copyright. Librarians in the Philippines are often troubled by the possibility of finding themselves impleaded as co-defendant in copyright infringement cases, with good reason.

In addition to possible civil and criminal liability, librarians are also bound by the ethical rules of the profession. The ALA Code of Ethics (1995) provides, in its statement of principles, that the members of the Association “recognize and respect intellectual property rights.” (Principle IV) This provision was not replicated in the Philippine Code of Ethics for Librarians (1992). However, this obligation can be subsumed in the general provision for respect for the “supreme authority of the state as expressed through its laws and implemented by its agencies.” (Art.I, sec.1) It is also included in the rule enjoining librarians to “refrain from doing acts contrary to laws, morals, customs and public interest.” (Art.II, sec.4) Since protection of copyright is part of the laws of the land, it becomes an ethical issue for librarians.

Copyright and Library Service in the Digital Environment:

The situation threatens to become even more complex with respect to non-print sources. In the Philippines, the Electronic Commerce Act (Rep. Act No. 8792, 2000) penalizes “piracy or the unauthorized copying, reproduction, dissemination, distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signatures or copyrighted works including legally protected sound recordings or phonograms or information material on protected works, through the use of telecommunication networks such as, but not limited to, the internet, in a manner that infringes intellectual property rights…” (Sec. 33, par. b) The Philippine legislature also passed Republic Act No. 9239, otherwise known as the Optical Media Act of 2003. This Act penalizes with fine and imprisonment the mastering, manufacture, replication, importation or exportation of optical media without the necessary licenses from the Optical Media Board, and the mastering, manufacture or replication of any intellectual property in optical media intended for commercial profit or pecuniary gain without authority or consent of the owner. (Sec.19, par. a)

The passage of these two laws was made necessary by the demands of the digital world. The emergence of the digital environment has become a major copyright problem

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because of the ease with which works on-line can be copied and reproduced. In reaction, the U.S. Congress passed a law called the Digital Millennium Copyright Act (DMCA, 179 A.L.R. Fed. 319) that gives copyright owners the right to control access to technologically protected works. In a sense, this goes beyond copyright because instead of relying on the sanctions against copyright violation the copyright owner simply employs technological self-help measures to prevent unauthorized access and copying. Violation consists in trying to circumvent the technological barrier that controls such matters as terms of payment and limitations on the number of copies one can make, among others. The barrier can also tie use of the work to a certain technology.

Considering that the digital age has removed territorial barriers, laws of this kind affect library services all over the world, including and especially in countries like the Philippines where most libraries exist with subsistence-level budgets. Dan L. Burk (2003) is of the opinion that this American law has negative implications: First, it has created a new right—the technologically protected exclusive right of access—that is quite different from copyright. Second, it ignores the exception of fair use, normally found in most copyright laws. Third, it renders obsolete the traditional and statutory classification of copyrightable and non-copyrightable creations. Needless to say, these implications will have a negative effect on the quality of library service.

The technologically protected exclusive right of access:

The technologically protected exclusive right of access affects the libraries’ budgets considerably. When the work is available only in its digital form and distributed only by digital transmission, and access to the work is tied up to a certain technology, libraries will have to acquire the proper computer with the proper technology to access this work. Moreover, unlike acquisition of a hard copy of a book which happens only once, access to network services is usually only for a limited period and must be periodically renewed. Renewal of subscription can mean an increase in subscription price. Some services can also require additional costs each time they are accessed and these costs can be passed on to library users, thus further increasing the cost of education and research.

Fair use exception:

As earlier mentioned, the fair use doctrine has been codified in the Philippine law on copyright. Despite this, access to technologically protected work can be limited by certain technical controls applied by the publisher or author so that libraries and their users can no longer make copies even for classroom use, educational and research purposes, and other uses traditionally exempt from the copyright holders’ exclusive right of reproduction.

Works not subject to copyright:

Ideas, concepts, principles, discoveries, mere data as such, official texts of legislative, administrative or legal nature, and other works that are normally not capable

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of being protected under the copyright law can receive protection by limiting access to them technologically. A very important example of the deprivation that such an event would cause is the capacity to limit access to official texts of a legislative, administrative or legal nature.

Government Publications and Official Texts:

Libraries in the Philippines benefit much from the fact that official texts of laws, jurisprudence, administrative rules and regulations may be obtained at no cost or merely at cost from the respective government agencies although the IP Code allows the publishing government agency to impose the payment of royalties when the use is commercial or for profit. (Sec.176.1) However, because government agencies are often beset by financial problems, laws and court decisions, often come in the form of compilations produced by commercial publishers who are usually more efficient and more up to date in bringing these documents to the public. Understandably, these publishers and producers of print and electronic legal sources demand copyright protection to ensure not only return of investment but also profit. Sec.173.1, par. (b) of the IP Code protects “compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.” In this situation, the free nature of official texts of laws and jurisprudence becomes merely theoretical, especially if libraries and their readers are forced to access these texts only from paid network services.

Conclusion:

This state of affairs between copyright and library service is not unique to the Philippines. An American author, Richard E. Rubin (2000), in fact asks the following questions: “To what extent does the creator of a work have the right to control its dissemination following publication? … If the library’s mission is to promote the dissemination of information to all users to fulfill its democratic mission, then is it not ethically bound to disseminate as much information as possible? … are not librarians ethically obligated to test the bounds of others’ control over the dissemination of information?”

If this is an issue in the most developed country in the world, with more reason is it an issue in the Philippine context. The cost of print and non-print sources of information and knowledge have risen over the years and the citizenry’s capacity to afford this cost has gone down considerably. In consequence, photocopying service centers have mushroomed in and around school and university premises. Most libraries also house photocopying facilities for use of their readers.

In a study made by Felicitas de la Rosa for her masters thesis on copyright law awareness and compliance in university libraries in Manila (2000), respondent librarians reported encountering the following problems:

(1) students’ requests for reproduction of textbooks to avoid purchase of expensive original copies [60% of respondents],

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(2) requests to photocopy portions of theses without the author’s permission [55.1% of respondents], and

(3) requests to photocopy entire books by researchers from other institutions [48%].

The small number of librarians who responded to the survey limited these findings. The real situation may even be worse. The more significant items in the study are the reasons given for the problems encountered, namely, lack of affordable books in bookstores, difficulty in getting in touch with theses writers, and the unavailability of books in the local bookstores and libraries. The first and the third reasons are obviously related to the high cost of books.

To Rubin’s questions, we may therefore add: How can our professors with their low incomes afford to buy all the books and subscribe to all the journals that they need not only for their teaching but also for their research interests? How can our students afford the same? Even if they can afford to buy one textbook, should their reading be limited to a single book per subject? Is this not limiting their education? Beyond the classroom, must the scholar’s ability to properly appreciate and build on previous academic work be constrained by restricting access to this work? As professionals who are ethically bound to obey the law and ethically bound to fulfill their role in the educational process, Philippine librarians are forced to stand in the middle of these two equally important obligations and experience being pulled towards one or the other. It is not an easy task. It needs a lot of discernment and common sense.

References:

Borgman, Christine L. From Gutenberg to the Global Information Infrastructure. – Cambridge, Mass. : MIT Press, 2000.

Burk, Dan L. Anticircumvention Misuse, UCLA Law Rev. (June 2003)De la Rosa, Felicitas G. Copyright Law Awareness and Compliance in Selected

University Libraries in Metro Manila. – Special Problem (Master of Library Science, University of the Philippines). – Quezon City : 2000.

Philippine Legal Encyclopedia / Jose Agaton R. Sibal. – Quezon City : Central Lawbook Pub., 1986.

Rubin, Richard E. Foundations of Library and Information Science. – New York : Neal-Schuman Pub., 2000.

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