Fair Use?

| Tuesday, June 8, 2010

Its not my first time in this situation. A lot of times, my photos were used without any written or oral permission. However, I am clear that I would allow my photos or works to be used by a third-party, as long as the owner is given credit--even by simply acknowledging the owner itself. Oh well, yes, its another classic example of intellectual property violation--and here in the Philippines, I don't know whether its the ignorance of the law that made it a widespread practice or is it the implementation of the law--since we have so many laws yet I don't know if our justice system is working--or conking even!

Just recently, I saw one of my photos displayed on East Avenue, in front of the LTFRB office. According to the tarp, its under Dangerous Drug Board together with other government agencies. The tarpaulin displays a big "Be Drug Free, Drive Safely!" programme of the said agency. With that is my photo of EDSA's traffic jam at Mandaluyong City. I said, whoa! There's my watermark...but what happened to the other watermark which clearly stated my name, copyright, year it was taken, websites (in case of contact) and most of all, this quote: "
Not allowed to be published OR used in any commercial purposes without the written permission or consent from the owner." Something tells me that the one who created it was aware that it has an owner and is under his copyright, however, he/she undermined it and cropped the watermark out of the picture.

Here's the original photo taken from my Flickr account:

However, the semi-transparent watermark still looms at the background, strengthening the evidence that the photo was indeed mine and was used without acknowledgment or permission. Tsk tsk, not my first time and I guess it wouldn't be the last time. Surprisingly, it comes from the government--the one who supposed to be implementing the law!

Oh well, I called them earlier and was able to manage to speak with the one responsible for the campaign. She said that the campaign didn't pushed through because Madame Gloria didn't approved it, so its just the only tarpaulin around the Philippines. However, she explained to me that her IT crew said that the photo came from Google and they got the photo from Google. Umm, yes...because they are searching for photos, of course they'll use Google or any search engine! Yet it doesn't mean that "Google IS THE OWNER of the said work!"
Dios mio Marimar! So there you go. Aside from millions of apologies, t-shirts and ballers would do the trick. Wala daw kasi pambayad para sa "moral damages" ang gobyerno. I just told them that just take it off and have it acknowledged when its put up again (on the next administration that is).

Although I have acknowledged that this is not for commercial purposes, the simple fact that the one who created it is already aware that the photo has an owner and should have asked permission first before having it published and cropped the warning watermark, somehow is an offense to my intellectual property right. I mean my website address is there, why didn't they asked permission? I don't go for fees. A simple acknowledgment would do and somehow a more ethical way of doing things
. Karapatan ko din na ipagtanggol ang IP ko!

I just don't know why there is a blantant disregard with online photographers and/or bloggers regarding this particular issue. I have no idea whether we have a cyber-law that "protects" the rights of the online users. The IP code on the net is even debatable. Some said that everything on the internet is for public use--ergo, copyright rules are not applied here. Such a headache!

A lot of digital photographers, may it be amateur or pro, put watermarks on their works whenever they post it on the internet. It's a scar on a work of art, but a practice that should at least provide some protection for the photographers posting on the net.

I'm also amenable with using it for using it for educational, research purposes. That's where Section 185 of the IP Code of the Philippines comes in. The particular section states:

Sec. 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 education 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.
There you go. Some say its a loophole in the said law (as always). However, Chapter VII, Section 184 stipulated,
Sec. 184. Limitations on Copyright. -

    184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:
      (a) the recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society; (Sec. 10(1), P. D. No. 49)
      (b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned; (Sec. 11, Third Par., P. D. No. 49)
      (c) The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated; (Sec. 11, P. D. No. 49)
      (d) The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose; (Sec. 12, P. D. No. 49)
      (e) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned;
      (f) The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work;
      (g) The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;
      (h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use;
      (i) The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations; (n)
      (j) Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and
      (k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.
    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 interest.
There were a lot of times that "sources be provided" were mentioned in this particular section. I just wonder why is it very difficult for some of us to even acknowledge or ask permission, like any good citizen does?

They say, the IP code has limitations. However, I believe there is also such thing as "fair use", "conscience" and moral obligation as a citizen and as a government employee.

My take on it, its not just about money, self-glorification or selfishness...its about just giving respect, thanks and doing it responsibly.

Alam kong di pa ito ang huling pagkakataon na makakaharap ko ang scenariong ito. Kaya kelangan nang pag-handaan.

Naku, matawagan nga ang IPO (Intellectual Property Office) of the Philippines. Tignan natin kung makakatulong sila!


Christian Lucas Sangoyo said...

Ibang klase talaga, at government agency pa!

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