A CULTURE OF CREATIVITY AND SHARING

18 Oct

 

 THE CONFERENCE AND CREATIVE COMMONS

 

 

Last August 21 to 24, lawyers, advocates and friends, from different part of the world gathered together in Buenos Aires, Argentina for Creative Commons Global Summit 2013.  Attendees met in support to the advocacy of Creative Commons which is to help humans in sharing their knowledge and creativity to the world. One of the speakers in attendance was Atty. Lawrence Lessig. He is one of the founding board members of Creative Commons. By the way, Creative Commons is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.[i] As found in their website, “Creative Commons helps you share your knowledge and creativity with the world. Creative Commons develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.”[ii] To learn more about the organization, go to http://creativecommons.org/.

 

Atty. Lawrence Lessig discussed about making our local culture and knowledge accessible to the world. As observed by the speaker, people today used to share; well, that’s good since what Creative Commons intends, and I hope what everyone hoped for,  is that people of the world share; but the sad part is, it’s not yet enough as we share less; or to state it more accurately we share less legally. So in a sense, we are in the practice of sharing, but in sharing more of what’s illegal while we share less what’s legal. With the advent of technological advances in communication, it is easy to share. Everyone seems to be familiar with social medias – Facebook, Instagram and the likes, or YouTube, the last being specifically mentioned by the speaker. Come to think of it, cultural and knowledge sharing should not have been a problem in this current age. As explained by the speaker, we are on the practice or culture of Remix – a sort of Call and Response. Someone will post his original work and some people will respond. One of the best examples of a response is parody. Seems every culture is fond of spoofing or imitating what they just saw or heard. Whatever be the purpose, people are having fun with it. Parody then is a form of recreativity, a creativity since it makes a new creation by deriving from an earlier work. By imitating, there is sharing of culture, of knowledge; there is the call, and this is the response; from prior idea comes new idea. The response being a new creation, a new concept; indeed, there is creativity through derivation. Culture and knowledge sharing should not be a problem; with the invention of IP, the interconnection of machines through wire or through space, sharing then is technically possible; but legally, it seems to be where the problem is. Sharing and creativity should have been too easy if not for such cultural policy which limits such sharing and creativity – limiting creativity in the sense that cultural policy restricts recreating, altering, deriving, or making good use of prior creation. So as stated, because of these restraints we do share less legally, so we resort to share it illegally. People crave for knowledge, for entertainment, for understanding, for attention; people tend to create and share their ideas, their feelings, and their experiences. And although the technology is there, means and ways are available, the right people and ideas are working together, still creativity and sharing seems to be in its nascent form as there are these laws which limit recreativity as these laws limit sharing, thereby limiting creativity in general. Some of the best examples of these laws which limit sharing are those concerning copyright. We do not mean that copyright is wrong, we have to accept that everyone has certain rights which are equal or may even be superior and are placed higher in the hierarchy of rights. But subjected to such abuse and lust for money or material wealth, copyright tends to impair the cultural development, restricts the free flow of ideas; holds back creativity, prevents sharing. What the speaker is suggesting is that copyright laws should be improved. Laws should be made to encourage sharing, so that people are encouraged to share more legally and be freed from threats of suits and harassment by copyright owners. Copyright laws need to deregulate culture. Deregulate in the sense that culture should be allowed to prosper freely, generally unrestraint. Here, Creative Commons comes to play, but Creative Commons is not the final solution, it may only facilitate the start of the change; it may only prepare creators, artists, the gifted, to recognize and to usher in a new norm. The real solution is in the actual laws to be enacted, new laws recognizing and encouraging the shift to a new culture, a culture where people can choose what matters the most. But with the current situation, there are these laws which limit creativity and sharing.

 

LAWS LIMITING CREATIVITY AND SHARING

 As mentioned, there are these laws which limit creativity. In the Philippines, we have this Intellectual Property Code of the Philippines.  At first glance, this law intends to encourage creativity and sharing. Section 2 of the Code starts with the statement mentioning “development of domestic and creative activity,” stating further that an effective intellectual and industrial property system “facilitates transfer of technology”, and the latter part declares that “the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good.”  Though the intent of the law is to promote creativity and sharing, the law also recognizes the right of the creators – scientist, inventors, artists, and other gifted citizens – their right to enjoy the fruits of their labor and intellect. The Intellectual Property Code, in encouraging creativity, guarantees some rights to the creators; that for some time, for a fixed period of time, creators have the exclusive right to their creations. But after lapse of time or of the period set by law, their creations will form part of the public domain and will be available to the public, freely accessible to any interested persons. These exclusive rights may be assigned to another, for whatever reason the creator may deemed beneficial to him. But said exclusive rights, aside from the owner’s voluntary waiving of his right, may be subjected to what we call the “fair use” wherein any person will not need the approval or consent or permission of the right owner under certain conditions. And so creators definitely have certain rights as already expressly provided for by the Code. Observers claim for certain rights too, under the “fair use” clause or under some other source of right. Being an exception to the exclusive right of the owner of creative work, “fair use” is being interpreted in different ways. For the creators, it should be interpreted in a very restrictive way; but as for these observers, it should be interpreted in the most liberal way, they seek for much allowance than restriction. The law provides which practices are covered by this “fair use.” But to encourage more creativity, fair use should be expanded; this is what the proponents or advocates are suggesting, that copyright laws should be changed as to allow free flow or exchange and transfer of knowledge. But for now, this is our law. The law may be stagnant for a while, but we continue to evolve; there’s a lot of activities going on; so many new things to discover, so many new acts to perform; there’s a need for laws to cope up.  Being social beings, creators and observers are linked and their lives are intertwined. And as to be expected, when there is interaction, issue may arise, conflicts will be inevitable; and when two rights collide, the common question will only be “which right prevails?”

 

RIGHT VS. RIGHT

 

It is said that right to freedom of expression is almost an absolute right. I said “almost” because we all know or most of us will accept that there is almost no absolute right in this world. Again, I said “almost” because if you’re going to ask the opinion of some constitutionalists, they would tell you that “no right is absolute, except, the right to belief”, that’s the only right which no one can take away from you, for logically, no one can interfere on what you believe in as it is impossible really, excluding any reference to the supernatural, to even know what one is thinking or is believing deep down in his mind. One may lie and may even say what you want to hear, by force, intimidation, threat or whatever, but it does not in any way change what he actually believed in. The catch is that, although you have the absolute right to your belief, it ends there; meaning, you can believe whatever you want, but putting those beliefs into action is entirely a different thing. I guess I’m not losing track of the topic. Going back to the topic, the right of freedom of expression is a natural right embodied in our Constitution under Article III titled “Bill of Rights” and specifically found in Section 4 which states that “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.” Even if this right is not written in the Constitution, the Philippines, adopting the generally accepted principles of international law, recognizes such right. In fact, all natural rights need not be in the Constitution or in any written instrument as they are inherent, vested from the very moment of birth; the Constitution did not create those rights, those rights are written not as a grant but as a reminder that such rights are recognized and to put emphasis that such rights are protected.

 

What does the right to freedom of expression have to do with the topic? Well, it may not be obvious at first but copyright may in a way collide with the right to freedom of expression. As an example, the speaker cited the case of a kid dancing to the tune of a song composed or performed by The Artist Formerly Known as Prince, Prince for short. The mother, delighted by the performance of her child, captured the scene and uploaded the video in YouTube. Prince, by his own volition or just being persuaded by his lawyers, sued the mother claiming that there was copyright infringement or violation. The mother can claim that the child just response to the music, the child just dance and bounce to the tune of the music without knowing who the performer was, or whose work was it, or may not even care what it is; the child may have done it anyway regardless on whose work was it, whether it is just another song or maybe just a simple noise, who knows? Prince or his lawyers claimed that the work is under the protection of the law. The case was decided in favour of the mother. But regardless of the outcome of the case earlier mentioned, this scenario is expected to be a common thing; only slight changes in the set of facts, different actors, maybe the same laws involved, and there you have a new case. The speaker mentioned that copyright infringement or violation cases are very expensive. And so, the respondent is always under threat of costly litigation. This is in a way a restraint to make a response to a certain call. In the view of the speaker, this should not be the case. Fair use should not be on the defensive and so the speaker is suggesting that the right to remix should be recognized as a general right. He introduced three steps to do it. He encourages everyone to 1) engage in the practice of remix; 2) defend the practice; and 3) embarrass those that hinder the practice of remix. Remix is in a way an expression, albeit a derived one; but still being an expression, remix should be recognized and protected.

 

The right to freedom of expression is not exclusively to be used in the defense of the people doing the remix, it is also a right which the original creators can invoke. But as between creator and imitators, imitators will likely invoke their right to the freedom expression while the creator will invoke their intellectual property right. The rights of the creators are expressly provided for by the copyright or intellectual property laws. Generally, being the creator of the work, the creators are entitled to the moral and commercial proceeds of their creation. The advocates of remix and/or of free use lamented that the monetary profits seem to be what drives this creativity. People make creative works to have money. Creators are primary motivated by money. In the way this article goes, seems I am on the verge on admitting that copyright laws are not good laws; that they don’t serve the purpose for which they are enacted; that such laws give wrong motivation for creativity. But for me, not really, regardless of what the motivations of these people, you can’t deny that they have certain rights. And not to forget, aside from their commercial rights, they have these moral rights which in most cases are the most violated one. When one copies the work of another and being passed as the original work of one who copied, isn’t it clear violation of the creator’s right? The lack of attribution is a violation of his moral right. What add to the damage is that the one who copied gained monetary gains from such copying, impairing the commercial right of the owner directly or indirectly. One should not be allowed to gain from something he had not worked for, except when given to him out of liberality.

 

 MY THOUGHTS ON THE RIGHT TO THE FREEDOM OF EXPRESSION

 As a recognition to the right to freedom of expression, we used to hear quotes like “everyone is entitled to one’s opinion”, “it’s my opinion, there can never be a wrong opinion”, “I agree to disagree” and other catchy phrases stressing that such right exists. But personally, I am really irritated with those statements. I hate hearing people invoking their right to freedom of expression. (Before anyone gets mad at me, I am invoking my right to freedom of expression. If anyone gets mad at me, then he or she is agreeing with me in a way. But why am I now invoking it? Isn’t it ironic? Hahaha. I did not say that every individual is not entitled to one’s opinion, what I am trying to say is when a certain right is abused, or is used not in an appropriate occasion, it becomes irritating. Hahaha.)

 

As I have said, I am really irritated with people invoking their right to expression. Said right is not absolute. Yes, it is a natural right; the Constitution need not guarantee it. But why am I irritated? I believe that not everyone should be invoking such right every time he acts or speaks. I am not concern much of what others do, under this topic I am more concern on what other says. They say “action speaks louder than words” but at the same time they say “pen is mightier than sword;” sensible quotes but seems to argue for the opposite side, which one prevails? I just wish I would have some spare time to expound on it later. But definitely, everything has its proper application, and may not be appropriate in any other time. But back to the topic, I believe that only those persons who speak something which makes sense can invoke such right. When I say “which makes sense” it is not in the context that said statements are correct, or morally upright, after all, who has the monopoly of knowing what is right and what is wrong, of what is the absolute truth and what is just falsehood? I said “which makes sense;” I mean that as long as you have bases, whether your bases are correct or not, it doesn’t matter. What is important is that the listener will understand where you are coming from for saying such thing. People learn from interacting with another; even interaction with unanimated objects tends to teach us something; what more an interaction with a fellow sapient being. So what I really mean is that, in expressing one’s opinion, there’s should be a sense of responsibility that even though you may not really know the truth, you are helping in finding the truth, not the real truth, but perhaps, some kind of truth (in evidence, we have such thing as legal truth which may lead to conviction.) As social being, we should be responsible with every act and statement we do or say.  In whatever we do or say, there is some rippling effect, and so only responsible people should be allowed to invoke such right; “with great power comes great responsibility” they say; an exercise of a right is power in itself and should be exercised with great deal of caution and accountability. I may want to discuss more, but this is just to emphasize that rights are not absolute and therefore, an exercise of one’s right needs to end when it hinders the exercise of an equal or a higher right. To invoke a right, one should be prepared to accept the consequences; I am not saying that the grant of right corresponds to an imposition of a burden; after all no one should suffer from an exercise of one’s right. But as I have said, others have their rights too, and it may happen that to exercise one’s right may affect the exercise of other’s right.

 

 MY THOUGHTS ON INTELLECTUAL PROPERTY RIGHT

 As already mentioned earlier, the Intellectual Property Code of the Philippine is the main source of the rights given to creators. For a certain period of time, the creators have the exclusive rights on their creation. But after such period, such rights are no longer demandable. But there are certain rights which survive even after the death of the creators and these rights are usually are moral rights. Although rights can be waived, there are particular rights which cannot be waived. This applies also to certain moral rights of the creators under our Philippine law. The only problem we know so far is whether the “fair use” as embodied in our laws fair enough or whether it can be expanded a little more. Although the law seems clear on the matter, there may still be some confusion and there might be a need to have a clear delineation of what constitutes fair use and what constitutes infringement or violation. We cannot find fault in a creator who feels that his right is violated. Attribution is the least we can do. And as to his other rights, it is but logical that one should benefit from his own works; after all it’s his work; it may not have come to existence without such creator and so the first to benefit from it should naturally be him. As to how long he have exclusive rights to such creation of his is a matter left to the wisdom of our legislators. But then again, at least, innocent use of such creation, whether with the permission or consent of the creator, should be allowed. Fair use already provided that, but still, the law could have given more. Definitely, we don’t want to be in the position like the mother who uploaded the video of her child, being harassed by suits and threats just because of our own liberal interpretation of the law and of our right; although this may not be a valid defense since our own Civil Code states that “ignorance of the law excuses no one,” but at times, this is not an actual case of ignorance of the law, it’s just that sometimes a  provision of the law can be interpreted in such a way that it can be construed either way, and we cannot fault anyone for interpreting the law in their favour; for the definitely laws are made for the benefit of the people, and so somehow, any person will try to interpret the law being applied to themselves, and naturally interpret the law liberally to their favour. Add to the fact that we don’t expect that our legislators had considered everything when they deliberated and enacted the law. With the changing times, what may be application today may not be applicable in the future. That’s why, we cannot fault anyone, as long as there’s no malice or pretention of ignorance, or deliberate attempt to circumvent the law. Laws may be obsolete or may become irrelevant,  that’s the reason why we have permanent seats in our government for these legislators; they are there to enact laws in consideration of the changing times and conditions. Even when the Congress was abolished or inexistent during the regimes of Presidents Ferdinand Marcos and Corazon Aquino, still the legislative power is not relinquished, but was only exercised by the same person exercising the executive power.

  

THE CONCLUSION

 I totally agree with the speaker when he said that there should be a cultural policy which encourages creativity, which encourages more creation motivated not only by money. As already been said and given emphasis, these can only be achieved by positive laws enacted by the duly constituted legislative body of every state since sharing now cross territorial borders, it is imperative that local laws should be in harmony with the local laws of other nations. Creative Commons already laid down the foundation on how to make a culture – a culture where everyone participated in creating, innovating, in sharing, in calling and reacting or responding to a call without fear of reprisal from those who felt that their right are violated. The licenses that Creative Commons should serve as a baseline or standard on how to give permission to share and use creative works. As admitted, “Creative Commons licenses are not an alternative to copyright. They work alongside copyright and enable you to modify your copyright terms to best suit your needs.”[iii] I am not saying that the role of Creative Commons ends there; but for now, this is only how far it can lead us, citizens of the world need to act, to preserve the culture and to make it better.

 

I have nothing against those creators, but I also feel that really there is somehow a need to revisit the rights conferred to them by law. I can attribute much of the litigation, which deemed the practice of remix or appreciation of earlier work or the exercise of freedom of expression in a very perilous situation, is but an issue with the interpretation of law, but sometimes it may be motivated by ill intent, probably driven by opportunity to get more out of the transgression of other, if transgression really there is. And as also stated by the speaker, what may have been saddening is that some lawyers are the one who instigated that such actions are pursued before the court. Actually, here in the Philippines, we feel that the implementation of the law is not that stringent, these issues seemed to be a big deal. But when we heard a suit is filed concerning intellectual property right infringement, it makes us conscious to know what really are our rights as consumer or innocent person appreciating works of others, and what are our rights ascreators also. Sometimes, this kind of suits brings fear and the feeling of guilt that probably we too are liable for such transgression.

 

I am not pushing or supporting any move on taking away the rights of these creators; I only support the move that such limitations are expressly defined and that the exercise of rights are not abused. If there really exists an impairment of others rights, we have procedures for that; we just don’t want that invocation of such remedies as provided for be used to intimidate innocent people. This will also prevent expensive but senseless suits. For one thing, these creators should have also realized that probably, the supposed original works of theirs are but a derived work whether they are aware of it or not. Seems that everything in this world is but a repeat of what’s already been there in the past. It’s like all the colors you can imagine are already created and defined, they are just there ready to be rediscovered; they are there to be recombined to make a new shade. I am not saying that we cannot invent new things, but definitely you will need the already existing things to come up with something new – a product of remix. On the other hand, the right to freedom of expression should not be abused either. Creators have their own rights, and the least we can do is to make attribution, as a sign of respect to these creators. All the things which abound us are gifts of nature or a product of our collective effort to make a change for the betterment of our race. Sometimes, what we just need is to share.

 

To summarize, I am not siding with anyone, rights should be invoked at the proper occasion in the appropriate time. If it’s for the common good of the human race, let’s not hinder creativity and sharing for money or malice.   

 

 


[iii]  http://creativecommons.org/about

 

Other References:

The lecture of Atty. Lawrence Lessig during the Creative Commons Global Summit 2013

The 1987 Philippine Constitution

The New Civil Code of the Philippines

Intellectual Property Code of the Philippines

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