CESSPOOL ON THE POTOMAC: Nature’s Greatest Gift to Mankind

Downloading comes in many forms. With or without the consent of the owner. For a consideration or otherwise, etc. For the commoner, the prevailing reservation to be addressed is the legality of downloading per se. To answer in the negative entails an exceedingly sweeping statement. In legal contemplation however, what needs to be dealt with is the repercussions brought about by the act of downloading copyrighted works, shared by others who are not copyright owners of such works, which verily, constitutes an act of copyright infringement on the part of the downloader.

Yes of course it is illegal to download software, videos, movies, music etc., from the internet without the consent of the copyright owner.

But for the commoner, a free lunch is the best, so to speak. Free download of computer software, games, applications, music, videos and movies, etc., is simply the best. Admittedly, even for the legal mind, despite knowledge of legal repercussions, downloading for free is simply the best.

To add genuine bliss in downloading for free is the absence of stricter Philippine penal laws on the matter. People take comfort on the fact that what seems to be commonly illegal is legally acceptable, to the prejudice of course of copyright owners. It is therefore “ok” in its strictest sense to download, only because of the want of firm and categorical laws for violation thereof and the exact implementation thereto.

It is humbly submitted that it would only prove futile to discuss herein the economic consequences vis-à-vis curtailment of foreign investments brought about by illegal downloading. Relative thereto, piracy, the trend nowadays to say at the very least, is a by-product of downloading. It is likewise respectfully opined that there is no significance in discussing herein the possible adoption of foreign laws into the Philippine jurisdiction. The application of these laws is implausible in this part of the world for exceedingly apparent reasons.

The above notwithstanding, the thought of genuine change however lingers with the adoption of the laws of other countries insofar as downloading is concerned.

US’ Stop Online Piracy Act (SOPA), the Protect the Intellectual Property Act (PIPA), New Zealand’s Three Strike Rule, UK’s Digital Economy Act are examples of existing laws in other countries for the purpose of putting an end to online piracy.

Then again, the viability of these laws in Philippine jurisdiction may not hold water. These are very well-crafted laws however best suited only for the country which promulgated the same. But these will not be applicable here, for now. What we need to focus on is the implementing hand.

We have the most brilliant lawmakers. Legislation is not a problem; anyway, these lawmakers will just get bits and pieces of provisions from foreign laws and turn them into the perfect, holistic republic act. The problem lies in the implementation of laws. Implementing hand should be enhance to bring about the seamless execution. The police. The Executive Department. Although this vision encompasses the assistance of the Legislative down to the Judiciary – the problem really lies on the execution.   

Downloading altogether is not unlawful. One may circumvent, with the lack of a more appropriate word, the law. The IPC reads in pertinent part, viz:

“184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder's legitimate interests.

Section 185. Fair Use of a Copyrighted Work. - 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(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.

185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

No need to adopt foreign laws. Just the same, after the adoption of these foreign laws, it will be useless because of our failure to advance them. We are altogether undermining our propensity and ability to pass and enact good laws to stop illegal downloading. It is an insult to our intelligence. Then again, legislation is no problem. The limelight should focus on the EXECUTION of our laws and PROSECUTION of violators thereof.

Two Cents Worth: Legality of FUN ART in the Philippines

Again, I vehemently submit my opposition. Enough with the emotional hullabaloo that we are all fans of fictional characters both locally and internationally. Kindly stop with the argument that when an individual creates a fan art out of an established, well-known fictional character, the same is not mindful of the legal intricacies brought about by this predisposed creation of some sort, nay, and I RESPECFULLY quote “the complexities of our copyright laws when lawyers and sometimes judges themselves cannot pinpoint the exact demarcating (sic) line between what is prohibited and what is not as far as fan art is concerned”.

Well I say all the more one should not venture into this kind of endeavor. Well I say, “kaya di umuunlad ang Pilipinas because of this excuse”.

Well anyhow, just for the sake of amusing with this kind of emotional fracas, I grew up marveling myself with the likes of Randy Valiente, Gerry Alanguilan, Gilbert Monsanto, among others, who all created various characters that shaped our childhood fantasies. I grew up looking forward to the next comics releases of DC, Marvel and Image, to name a few. Kabayo Kids is worth mentioning.

But what really is FUN ART? According to the most reliable source, Wikipedia defines FanArt as "Artwork that is based on a character, costume, item, or story that was created by someone other than the artist. The term, while it can apply to art done by fans of characters from books, is usually used to refer to art derived from visual media such as comics, movies or video games. Usually, it refers to artworks by amateur artists, or artists who are unpaid for their fan creations".

Based on the foregoing, it would be safe to state that fun art is a creation of a fan sourced from a fictional character created by someone else.

Our laws are oblique insofar as fun art toleration is concerned. Our jurisprudence has nothing to say on the matter. These fictional characters are products of the artists’ imagination and intelligence, passion and whatnot. Only the artist may reproduce and display, change, alter or distort pieces of artwork thereof – all this is controlled by the original author, no one else. If you’re an avid fan, create your fun art out of the fictional character by doodling it in your notebook, for your consumption – don’t display it, no one gave you the right to do so. Just marvel on it. As far as the argument of free marketing and promotion for the original author goes, it is his problem. Let him market his own creation. You are not obligated neither are you freely given the expressed clearance to do so. Besides, if you are an avid fan, absent any ulterior motive, you should advocate or undertake to stop these so-called fan creations.  

Of course, if there’s a will there’s a way – a way to circumvent these prohibitions on derivative work. The IPC reads in pertinent part, to wit:

“Section 173. Derivative Works. - 173.1. The following derivative works shall also be protected by copyright:

(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. (Sec. 2, [P] and [Q], P.D. No. 49)

173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as new works: Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. (Sec. 8, P.D. 49; Art. 10, TRIPS)

Section 185. Fair Use of a Copyrighted Work. - 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(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.

185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

In view of the foregoing disquisition and pertinent provisions, I am resolved to conclude, and so view in legal contemplation, that fun art is legal in the Philippines. It is not a case to case basis, as others would claim, because jurisprudence has yet to state this. Laws are inadequate for the time being.

Use the aforesaid provisions of the IPC then you’re safe.

However, as an “avid fan” of all these fictional characters which helped cultivate my sadistic imagination, I suggest a harsher penalty for fan art creators - imprisonment and the most unconscionable fine. Finally, it may be well to note that the advice (of bloggers) for fans to create their own is rather misplaced. A fan should not create, a fan should admire – otherwise, he wouldn’t be called a fan, would he?