DOWNLOADING COPYRIGHTED WORKS AND COPYRIGHT INFRINGEMENT

Downloading Copyrighted Works and Copyright Infringement

Copyright law protects the value of creative work. It is against the law the law to not only make unauthorized copies but also to both upload and download copyrighted works without the permission of the copyright owner because it is as if you are taking something of value from the owner without his or her permission. Any said act may subject the doer to civil and criminal liability. In the United States, the courts have consistently ruled that many peer-to-peer (P2P) programs and other unauthorized uploading and downloading inherently amount to copyright infringement and therefore constitute a crime. It amounts to stealing since it violates the copyright owner’s distribution right and, as a result, constitutes copyright infringement.

Early this year, reports about a plan to pass a bill to stop (or at least reduce) online piracy in our country (Philippines) began to catch not only the attention of the copyright owners who are expected to be protected but also the society in general. The proposal was to adopt a bill somewhat similar to SOPA (Stop Online Piracy Act) or PIPA (Protect IP Act) and to help protect copyright owners from having their content being pirated by others.

Several actions had been taken to remedy online policy:

In New Zealand, for example, a report last July stated that internet piracy in the said country have halved since the introduction of the controversial “three strikes” rule where fines of up to NZ$15,000 will be issued to illegal downloaders caught three times;

In Europe, Anti-Counterfeiting Trade Agreement (ACTA) was signed. According to an online article of BBC, ACTA is an international treaty aiming to standardize copyright protection measures. It seeks to curb trade of counterfeit physical goods, including copyrighted material online. Possible imprisonment and fines may be issued to violators of the said agreement. However, ACTA was attacked by several issues which have affected its ratification by other joining countries. It has been said to have adversely affect fundamental rights including freedom of expression and privacy, and endanger access to medicines in developing countries. It has been said to create a culture of surveillance and suspicion. It has also been said to limit the freedom of countries – like India and Africa who cannot afford to pay for patented HIV drugs – to determine their own medical choices since said agreement treats a generic drug just as a counterfeited drug. These issues, however, were addressed by Commissioner De Gucht at his speech the European Parliament in the Workshop on the Anti-Counterfeiting Trade Agreement on March 1, 2012. He assured that ACTA is not an attack on the liberties of the people but rather a defence of their livelihoods; that it will not censor the internet and not mandate the monitoring or controls on people’s emails, blogs or file-sharing activities; that it will not impose any restrictions on trade in generic medicines. In another online source (http://ec.europa.eu/trade/tackling-unfair-trade/acta) , it mentioned that ACTA does not contain any provision that provide for the cutting of internet access or for monitoring of the internet. It is not about checking private laptops or smart phones at borders. In fact, ACTA is after only on large scale traffic. It also stated that ACTA considers a fair balance between the interests of the parties concerned – the citizens, consumers, civil society or business. In addition, ACTA does not prevent people from sharing content online. It only fights against piracy and provides the tools to react against illegal content as defined by European and national legislation. Lastly, said agreement does not provide any direct or indirect effect on the legitimate trade in generic medicines or the global public health.

In the Philippines, we have the Business Software Alliance that does rounds to help reduce software policy, and the Optical Media Board (OMB) that raids shops and stalls selling fake CDs. However, despite these measures, counterfeiting and piracy have been a problem in our country. A call for a similar agreement (ACTA) might be a good route to help lessen pirates who steal money that should have gone to those deserving creative individuals. ACTA aims not only to establish international standards for intellectual property rights enforcement, but also to establish an international legal system to end counterfeit goods and copyright infringement of the Internet. It is about time that we comply with a comprehensive framework to protect intellectual property, the rights that can be protected and the means to enforce them.

SOURCES:

http://ec.europa.eu/trade/tackling-unfair-trade/acta

http://trade.ec.europa.eu/doclib/press/index.cfm?id=783

http://www.bbc.com/news/technology-18704192

http://www.bbc.com/news/technology-18953353

http://www.eff.org/issues/acta/

http://www.yugatech.com/the-internet/brewing-anti-online-piracy-bill-in-the-philippines/

The Legality of Fan Art in the Philippines

Fan art, according to Wikipedia, is an artwork that is based on a character, costume, collage, item, or story that was created by someone other than the artist, such as a fan, from which the word is derived from. Usually, it refers to fan labor artworks by amateur artists, or artists who are unpaid for their fan creations. Originally, fan art was used as a term to designate the work of an artist who was not necessarily professionally employed or pursuing a career in a field of genre arts, but simply created work based on topics of which he or she was a "fan." Wikimedia, on the other hand, defines fan art as an art describing unauthorized artistic representations of elements or characters in an original work of fiction, usually created by amateur enthusiasts for their own amusement. Fan art is created by someone other than the owner of the intellectual property rights in the original work or a permitted licensee. Jomo Thomson, in his online article entitled “Does fan art violate copyright?” defines fan art as a drawing based on a character, costume, or location that is made without permission by the original creator. 

In the US, fan art using settings and characters from a previously created work could be considered a derivative work, which would place control of the copyright with the owner of that original work. Display and distribution of fan art that would be considered a derivative work would be unlawful. Since fan art can be considered a derivative work, therefore most fan art is an infringement

However, American copyright law allows for the production, display and distribution of derivative works if they fall under a fair use exemption. Fair use protects certain uses that would otherwise be an infringement.  To find protection in fair use, a second work must be an artistically transformative use of the first, not have a great economic impact on the first, and not take too much of the first. A truly transformative work, therefore, may be protected. Fair use is a vague doctrine, giving courts great freedom in application.

 

In an online article entitled “The Messy World of Fan Art and Copyright” by Jonathan Bailey on May 13, 2010, he said that fair use may protect some fan creations from being an infringement, but that is handled on a case-by-case basis, looking at the facts of the actual work.

 

Sarah Says, in her article “Fan Art and Fair Use: One Truth and Five Myths” enumerated four factors to be considered in determining whether or not a particular use is fair. These factors are the following:

1. The purpose and character of the use, including whether such use is of commercial nature or is for non  profit  educational purposes: Non-commercial uses are far more likely to fall under fair use than commercial uses. Regardless of whether your work is commercial or non-commercial, a court would also look at whether the work is transformative, whether you alter the "expression, meaning, or message" of the original content through your use of the copyrighted material. Parody and critique are transformative uses, but they are not the only examples of transformative use. When determining whether a use is transformative, we want to look at the how the new use impacts our view of the original work;

2. The nature of the copyrighted work: How you use a copyrighted work matters, but so too does what copyrighted work you use;

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: How much you copied can also be a factor. There's no rule about just how much is too much, but how much you use is one of the factors courts examine in determining fair use; and

4. The effect of the use upon the potential market for or value of the copyrighted work: Market harm and potential market harm are biggies, and whether a work is considered a legitimate fair use often hinges on a whether a court determines that use harms the market for the original work.

While copyright laws differ from one country to another, the view of the US regarding fan art and fair use may be made applicable in the Philippine setting. Technically, fan-art of copyrighted characters enjoys no legal protection. The legalities of fan art are often debated within the fandom community, and not always easy to answer particularly from one country to the next because of varying copyright laws. If fan art is considered "derivative work", then its copyright would belong to the original copyright holder for a particular character, property, movie universe or book and not the artist. The artist should not have the right, therefore, to display the work without permission of the original copyright holder, and certainly should not be allowed to sell it without first obtaining a license to do so.

However, many in fandom attempt to claim that fan art falls under fair use including "commentary, criticism, news reporting, research, teaching, library archiving and scholarship." Others consider fan art a transformative work which "takes something extant and turns it into something with a new purpose, sensibility, or mode of expression" therefore suitable of legal protection in its own right.

In general, most media copyright holders turn a reasonable "blind eye" to fan art activity as it can be seen, to an extent, as a form of "free advertising" for their products. Artists, whether they are musicians, authors or filmmakers, are typically very lenient about such practices. They realize that such creations are not only free promotion for their work, but that such efforts create a community that comes together and supports the original work. The community works to ensure they don’t hurt the original creator’s ability to profit from the work and the creator tolerates what is technically a copyright infringement in many cases.

Sources:

http://commons.wikimedia.org/wiki/Commons:Fan_art

http://en.wikipedia.org/wiki/Fan_art

http://io9.com/5933976/are-fan-fiction-and-fan-art-legal

http://jomosthompson.wordpress.com/2010/05/12/does-fan-art-violate-copyright/

http://www.etsy.com/blog/en/2010/fan-art-and-fair-use-one-truth-and-five-myths/

http://www.plagiarismtoday.com/2008/09/09/fans-and-copyright-issues/

http://www.plagiarismtoday.com/2010/05/13/the-messy-world-of-fan-art-and-copyright/

http://www.squidoo.com/what-is-fan-art-#module150351394

http://www.squidoo.com/what-is-fan-art-#module150351708