Right to Remix

Remix: Pinoy Style

 

            The most violated law in the Philippines is not the Law on anti-graft and corruption, nor the National Internal Revenue Code or any other tax laws, but the Republic Act 8293, as amended, otherwise known as the Intellectual Property Code. Surprisingly, prosecution for violation of the Intellectual Property Code is probably the least in number of cases filed as compared to the other codified laws. This can be attributed not only to the expensive cost of litigating a Intellectual Property cases or the minimal damage to the offended party, but primarily because of the inability to procure sufficient evidence to build a strong case. Indeed, it is frustrating to see that more Filipinos would prefer to download copyrighted works and violate the law, than to obtain intellectual property by legal means like buying the original or paying for the proper rentals of the copyrighted works. Unfortunately, Piracy is no longer popularly committed in the high seas but it is most popularly committed in Greenhills, Divisoria, Quiapo,  and Cainta. Despite the rampant violation of the Intellectual Property Law, it is undisputed the Filipinos are also masters of intellectual property creation, majority of them are now experts in localizing, transforming and or remixing Foreign songs, movies, or other forms of media. In this particular field, most of the Filipinos would rather express their thoughts, feelings, and arguments by incorporating their ideas and original expression, through the use of popular songs, videos, marks and other copyrighted works, rather than express the same through the composition of original musical melodies or other background video. In other words, piracy is not the only popular intellectual property phenomenon in the Philippines; Remix is also regarded as one of the top viral phenomenon in the country.  In the Philippines, in so far as Intellectual Property is concern, there is a mix of a Yin and Yang, black and white, dark and light, creation and destruction, and as Professor Lawrence Lessig, member of the faculty of Harvard Law and founder of Creative Commons, calls it, passive, consumption-based read-only culture and an active, creative read/write culture. The popular works of Psy, a Korean singer, such as the Gangnam style and Gentlemen was lifted and remix in a different version by Pinoys, and in the process created a version with a blend of Filipino culture and tradition.  Remix in the Philippines is no longer a tool of entertainment and past time for Filipinos, but it is rapidly evolving as an effective methodology of expression.

            The cultural expression and public opinion by way of remix in the Philippines is massively growing, most of the notable works and remix are the different versions of youtube video of the “Amalayer Scandal”, ‘“I was not informed” video, “Its more fun in the Philiipines”, and the “Senora Santibanez” videos and pictures. However, the right of remix is not yet protected nor recognize under the Intellectual Property Code. Nowhere in the Intellectual Property Code can the word “remix” be found. As a matter of fact, most Intellectual Property Law experts and practitioners consider remix as a form of intellectual property infringement rather than a creation. In the Creative Commons Global Summit 2013, held in Buenos Aires, Argentina, Professor Lawrence Lessig proposes the recognition of the Universal human right of Right of Remix. A closer look to the Philippine Intellectual Property Law will reveal that the closest similar right to remix is the right of derivative works. Thus, the questions arise as to whether, it is now the proper time to introduce and recognize the right of remix in the Philippine Legal system.

            In introducing the right of remix in the Philippines, there are major questions that must be answered in order to determine whether it is proper for the country to adopt this new concept of remix into the intellectual property law. First, what would the right of remix include and who owns the right to remix ? Second, is the recognition of right to remix urgent and important enough for it to be adopted ? Third, what other rights are affected by the exercise of the right to remix ? Last, is it practicable to adopt the right to remix in the Philippines ? The proposal involves the allowance of the right to remix without the consent of the original owner of the work, where the remix was derived.

Definition and scope of right to remix

            There is no legal definition of the remix yet in the Philippine Law. However, Eduardo Navas define Remix in his work Regressive and Reflexive Mashups in Sampling Culture, 2010 Revision. According to Navas, Remix can be defined as a global activity consisting of the creative and efficient exchange of information made possible by digital technologies.[1]  In the website of right2remix.org, Remix is defined as that the original work is still recognizable as such within a derivative work. Remix culture refers to the fact that remix practices that transform works during usage have become ubiquitous in the digital society.[2] The right to remix involves the change of version by adding a different kind of style whether as to the lyrics of the song, the scene and coverage of the video, or to the difference in the manner of presentation, but involves the transformation to a same kind of form. As distinguished from Derivative works, remix covers the same form, such as transformation of music to music but with different version, a video to another video but possessing different actors, background or speech. Derivative works under the intellectual Property code as 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.[3]  Derivative is Coming from another; taken from something preceding; secondary; that which has not its origin in itself, but owes its existence to something foregoing.[4] Anything obtained or deduced from another The concept of remix deals with original expression through the use of one’s own labor, skill and capital. Remix is not as simple as copying and dragging everything to a different view, it encompasses a result of different nature, different approach, introduction of several cultural concepts from an original work, thereby creating a work, which is totally different from the original. An example will be the use of the background music of songs transformed to a different beat and different lyrics, which originally covers a love song and was now turned to an instructional musical composition of teaching basic safety tips in survival in the jungle. Clearly, in the example, the same melody or the background is playing but the expression is different, the expression covers different function, different purpose, and different idea, which resulted to a whole new original work, entirely different from the original song.

 

Importance and Urgency of Right to Remix

            One of the most fundamental human right is the freedom of expression, it is one of those inherent human rights, which are now guaranteed and protected by the constitution. Remix is a form of expression, as an intellectual creation, it is a mode of delivering and making known to the others the expression of a person. It is imperative that the right of remix be introduced in the Philippines, considering the number of Filipinos, who uploaded their own version of remix of different music videos, songs, and other forms of media. As a tool of expression, the right to remix now elevates to a liberty right, which is protected by the Philippine Constitution. The right to liberty is define as Freedom from all restraints except such as are justly imposed by law[5]. The liberty rights also includes the power of the will to follow the dictates of its unrestricted choice, and to direct the external acts of the individual without restraint, coercion, or control from other persons.[6] As a liberty right, it requires a paramount protection as mandated by the constitution and not a strict restriction. As a high and important right, the right to remix should now be recognized and should be allowed to free the Filipinos to exercise this liberty right as a mode of their expression.

           

            The right to remix is an avenue of cultural expression, which warrants utmost protection and consideration to completely enrich the Philippine Culture and arts. In different works of pinoy in remixing, some of American music videos are converted to a different environment, scenario, actors, lines, but with same background music. This form of remix introduces the Philippine version of the music video which resulted to a new and original work. Another example of a copyrighted work, which was remix by a Filipino was the famous clip of the Japanese anime, “Doraemon”, in the youtube clip, the publisher wastedkidd0, used a taglish version and different set of images, showing Philippine tradition and practices. [7] Expression of culture is one the importance of remixing, by way of remixing, famous works are converted to different versions adopted by new artists by changing some elements to introduce another culture in it. It is a well settled fact, that one of the treasures of the country of Philippines, is its culture, and nothing more can be satisfying but to see how it is expressed in creative ways by the use of remix.  The importance of cultural expression was also adopted by the United Nations Educational, Scientific and Cultural Organization, it adopted Universal Declaration on Cultural Diversity of 2001 which provides Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof. [8] Moreover, the core objective of the convention are(a) to protect and promote the diversity of cultural expressions; (b) to create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner;  (c) to encourage dialogue among cultures with a view to ensuring wider and balanced cultural exchanges in the world in favour of intercultural respect and a culture of peace;  (d) to foster interculturality in order to develop cultural interaction in the spirit of building bridges among peoples;  (e) to promote respect for the diversity of cultural expressions and raise awareness of its value at the local, national and international levels;  (f) to reaffirm the importance of the link between culture and development for all countries, particularly for developing countries, and to support actions undertaken nationally and internationally to secure recognition of the true value of this link;  (g) to give recognition to the distinctive nature of cultural activities, goods and services as vehicles of identity, values and meaning;  (h) to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory;  (i) to strengthen international cooperation and solidarity in a spirit of partnership with a view, in particular, to enhancing the capacities of developing countries in order to protect and promote the diversity of cultural expressions. [9]

            The twin importance of right to remix, as a liberty right and as a means of cultural expression, in this modern age of technology, the adoption of the right to remix is necessary and proper.

 

Other rights affected by Right to remix

 

            Many express the view that allowing remix will open the flood gates to infringement and plagiarism, for those who argue the same, alleged that remix is a merely a form of copying and it violates the economic rights and moral rights of the owner of the original work. Basically, the economic rights of copyright owners under the Philippine law deals with the use of the work, publication, distribution, and transformation. Under the law, 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; (n) 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.[10]

 

The moral rights involve the attribution of the original works to its creator. 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[11]. However, remixing is different from copyright infringement and plagiarism and it does not in any way infringe upon the economic and moral rights of the original owner. Plagiarism is the act of appropriating the literary composition of another, or parts or pas sages of his writings, or the ideas or language of the same, and passing them off as the product of one’s own mind. To be liable for “plagiarism” it is not necessary to exactly duplicate another’s literary work, it being sufficient if unfair use of such work is made by lifting of substantial portion thereof, but even an exact counter-part of another’s work does not constitute “plagiarism” if such counterpart was arrived at independently.[12] Remix involves originality because it is a product of one’s own skill, labor, idea and expression. Under the Philippine law, to be original means it must be created by the author through his own skill, labor and judgment, without directly copying or evasively imitating the work of another. [13] The word “original’’ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of “literary work’’, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work — that it should originate from the author.[14] Remixing involves innovative ideas which introduce one’s own expression and in the process it creates a different original version.  In the case of Macmillian vs Cooper[15], it was stated that  “It is observed that it is the product of the labour, skill, and capital of one man which must not be appropriated by another, not the elements, the raw material, if we may use the expression, upon which the labour and skill and capital of the first have been expended.  To secure copyright for the product it is necessary that labor, capital, and skill be employed sufficiently to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material.”

 

            The right to remix without the consent of the owner should be allowed as long as there is proper attribution of the original work to the original creator.

 

Practicality of the Right to Remix

 

            It is highly practical to allow the right to remix in the Philippines in the current set up with the advent of high technology, where the distribution of work can be as fast as the lightning, then so is the right of remix be properly be recognized and protected under the laws of the Phlippines.

 

 

 

           

 


[3] Section 173 of RA 8293

[4] Blacks Law dictionary 4th edition page 606

[5] Ex parte Kreutzer, 187 Wis. 463, 204 N.W.

595, 604.

[6] Booth v. Illinois, 22 S.Ct. 425, 184 U.S. 425,

46 L.Ed. 623; Munn v. Illinois, 94 U.S. 142, 24 L.Ed. 77;

People v. Warden of City Prison, 51 N.E. 1006, 157 N.Y.

116, 43 L.R.A. 264, 68 Am.St.Rep. 763.

[7] See the clip http://www.youtube.com/watch?v=RG3iJ7TrT98&feature=youtu.be, published December 13, 2012, by wastedkidd0.

[8] Article 2 – Guiding principles of Universal Declaration on Cultural Diversity of 2001

 

[9] Article 1 of Universal Declaration on Cultural Diversity of 2001,

[10] Section 177 of RA 8293

[11] Section 193 of the Intellectual Property Code.

[12] Blacks Law Dictionary 4th edition page 1384

[13] Sambar vs Levi Strauss 378 Scra 364

[14] University of London Press Ltd vs University Tutorial Press ltd. 1916

[15] Macmillian vs Cooper 40  TLR 186 1983

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