Saturday, September 28, 2013





            "Karapatan ko ang ipahayag ang gusto kong ipahayag…sa anumang paraan na nais ko, at sa anumang konsepto na ibigin ko, at sa anumang salita na gamitin ko, nang naaayon sa batas, at angkop sa mga taong pamamahagian ko.  Aawitin ko ang kantang nais kong awitin.  Sasayaw ako sa tugtog na angkop sa aking galaw, at kung nais ng mundo na ako'y panoorin, malaya ko silang iniimbitahan. 

            Nais kong lukubin ako ng aking imahinasyon nang hindi natatakot, ang maramdaman ko ang pagiging malikhain, at higit sa ano pa man, ang pagyamanin ko ang aking sarili hindi ng salapi kundi ng sining at galing at upang makapag ambag ako sa kaban ng ating kultura… ang kultura na panghuhugutan ng panghinaharap na henerasyon, at ang kultura na nagsisilbing ugat at pundasyon ng kung ano tayo ngayon na mag uugnay sa kung ano tayo bukas. " 

                                                                                                                     - Judy Anne Yuki Yulo

            As embodied in our fundamental law[i], the right to freedom of expression is the right to liberally convey whatever the citizen may please and be sheltered from any liability for doing so except for some limitations provided for by law.  This embraces the right to communicate and to express oneself in any medium, through words, in any language, through pictures, images, actions or even fashion. The right to freedom of expression is vital in a democracy.  Thoughts, ideas, and opinions help inform political debates which motivate the people in promoting public accountability and transparency in the government. This freedom of expression gave birth to revolutions, and freedom fighters, to the Mandela's, Malcolm X's, Fidel Castro's, and the Martin Luther King's of this world.  This freedom of expression had evolved and it conceived digital freedom promoting creativity further, bolder, and better.  And this digital freedom spawned a new culture. 

            The innovative and novel freedom of expression generated by the Internet, proceeds farther than what was in the past wherein such freedom of expression before, centered either on the government or passive amusement.  With the brisk emergence and stream of the circuits of the web, freedom of expression has reached the point of exploitation which opened the gates to stealing, infringement, invasion, prejudice, and capitalism on the one hand, and sharing, liberality, creativity, exploration, and utilization on the other.  There is a very thin line between these two opposing concepts.  Who draws this line? Where do we draw the line between use and abuse? Between copying and revolutionizing? Between stealing and sharing?   How do we enrich creativity and culture at the same time respecting the owners and makers of art, literature, and creations? How do we respond to a creative call while safeguarding the right to the freedom of expression?  The key to all these is a law. A formula which will reconcile raw creations and improved creations.  Such law must be global in nature and must be apt to suit different cultures.  The law is the Intellectual Property Rights Law, which we already have, but which still needs a lot of improvements to create balance among censorship, curtailment, freedom, creativity, and ownership.

            Each of us is responsible, as a netizen and as a human being living in these modern times, when one need not be on a platform to invite an audience, or to be a member of a media to broadcast something, or to be a journalist to write and publish a literature, or to be an actor to be watched by many.  Nowadays, it's easy to have an audience and to connect to people around the globe.  All we need to do is to "shout out", upload, post, or blog and presto the world watches, likes or dislikes, comments, bashes, shares.  The engine of creation spins, ready to generate a new form and to initiate a fresh craft.  Each of us is responsible to provide the new generation and our future offspring a world of internet appeasement, where netizens respect each other's rights to offend and be offended with limitations, and to imitate and be imitated without transgressing each other's rights to freedom to create as well as the intellectual property rights of the creator. Each of us is responsible to promote the right to attribute and be attributed to, by setting the limitations of sharing and imitating, and by respecting the works of others and in return to gain respect.

            A new world was created - a rectangular shaped world.  It connects with us through the web.  It shouts out loud without a sound.  The internet world created a fresh universal culture, a one new nation without frontiers, with a common language to speak, and a communal medium to relate.


            Recently lawyers from all over the globe met for the Creative Commons Global Summit 2013 in Buenos Aires, Argentina, [ii] with speaker Lawrence Lessig, who is the Roy L. Furman Professor of Law at Harvard Law School, and Director of the Edmond J. Safra Center for Ethics at Harvard University and was a professor at Stanford Law School, where he founded the school's Center for Internet and Society.[iii] The aim is to discuss a common set of values and ideals about how to make culture and knowledge more widely accessible in terms of technology.  The summit discussed about the aspects of sharing more legally through the internet and encouraging the idea to legislate a law which does not curtail the freedom to create but boosts to rejoin the time honored tradition of "Call and Response", wherein, according to Lessig, there is a creative call that invites all to respond and the responses are creatively shared electronically.  Such practice of "Call and Response" is "Remix".  "Remix" is the following of the same form of concept such as a music video, but changing some elements to make the whole creation more localized to be adopted by a common set of audience.  It is the creative use of works when edited.

            How copyright law must be improved and how this law connects to the way culture is changing are two fundamental questions that the Summit intended to address.  According to Lawrence Lessig, the kind of culture that we have now is the kind where one feels "empowered, entitled, and obligated to participate in the creation and recreation of their culture, produced by, enabled by a certain kind of technology, not the kind of broadcasting, or fixed medium expression, but the technology of Facebook, and You Tube and digital technology including the PC."[iv]  This culture is different from the culture we had in the past, where we only sit passively and absorb everything that are being fed on us without having the opportunity for us to participate and become active in the process.  Our culture now stimulates our creativity and imagination, and encourages us to create for the love of creating rather than for the love of money.  But how can the law reconcile this love of creating with copyright?  "Fair use" partly settled the problem.

            As stated by Lawrence Lessig, in the US "fair use" puts copyright in a defensive position and it's as if a way to say to the copyright owners to "justify your control".  Lawrence Lessig demands the lawmakers and the copyright owners to tell us why it makes sense for the law to give the copyright owners the right to stop us from "remixing" their work as we have.  Fair use is a constitutionally protected right local in the US and in some parts of the world, but is viewed as wrong in others.  He further expressed that the creativity that we share is a common culture of expression globally.  This common culture of expression is conveyed through the process of creating, then recreating, and then sharing. 

            Problem arises when copyright owners, particularly music companies, abuse their power to hinder people from trying to practice the right that the law gives them.  Is Creative Commons the best solution for remix problems? According to Lawrence Lesig, no, it is not.  Creative Commons, however, has a role.  It prepares a culture for a solution by building and encouraging a certain practice that shows the world exactly what creators actually choose.[v]  This kind of practice paves way for respect for creator by attributing the creator.  Through this, Creative Commons adds values to copyright law.  How do we support this practice? The Summit, proposed three ways.  First, is by practicing remix, wherein we also need to uphold the right to remix.  Second, is by defending the practice of remix, by ensuring that  the extreme penalties which are necessary intended for pirates must also be of equal weight and value to the penalties which are meant for the abusive music companies who silence those who practice remix.  Third, is by embarrassing those who resist such practice.  The third practice is meant for the artists who let their lawyers file cases against those who practice remix.  These artists are encouraged to take responsibility for their lawyers.


            Last May 2013, Facebook announced that it already has 1.11 billion people using the site each month; the figure represents a 23 percent growth from a year earlier.[vi]  In January of this year, Global Web Index shows that the number of active Twitter users grew 40% from Q2 2012 to Q4 2012. This is equal to 288 million monthly active users.[vii]  And YouTube reported that more than 1 billion unique users visit YouTube each month, over 6 billion hours of video are watched each month on YouTube, which is almost an hour for every person on Earth, and 50% more than last year and 100 hours of video are uploaded to YouTube every minute.[viii]  These are only some of the figures which conclude that, indeed, the world is transforming to a rectangular shape.  And like a colony, a horde, a mass, or a multitude of some sort, internet users propagate each second  conceiving a whole new culture and expanding a whole new world. A world where people connect to each other in new ways, a world which breeds a new colony of some sort through a medium that also permits all kinds of obscurity and deception as well as publicity, creativity and reality. 

            If this is a whole new world, then the most fundamental right in this world is the freedom of expression.  The yearning to express ourselves is a human nature's primary precedence. Even the most reserved people discreetly express ideas about the world through their privacy.  In this new domain, where the right to freedom of expression, includes the freedom to hold opinions and to receive and impart information and ideas with little interference from the State, social networking sites like Twitter and Facebook  have also led to the prosecutions of those deemed to be abusive or offensive.  Netizens continue to exploit and explore what this new world has to offer. 

            Whenever a popular song or a music video comes out, netizens plague the net by uploading their own versions, and like virus infecting the circuits of the web, they go into the system of everyone stimulating the minds of creativity, resulting into the fabrication of more remix but the hunger for creation and recreation is not satisfied.  This is a part of the common culture of expression in this rectangular world.  The continuous play of ideas and the vast array of display of creations and the realization of imaginations carry on each second and this new world is persistently being filled with these concepts without being satiated.  This phenomenon is money for the music industry because indirectly they get free advertisements, and this phenomenon captures the attention of the world swiftly.

            Music videos are mixtures of lyrics, melodies, movements, production designs, cinematography…etc, which is a feast for a lurking predator.  The predators are the remix makers.  Such creation ignites a lot of creative responses and both copyright owners and remix makers take refuge in the internet world.  And because this world is still young and unripe when it comes to its own laws, rules and regulations, in which too many questions are still left unanswered and too many problems left unsolved, there are still many areas to explore, to fix, to discover and to reconcile.


            The evolution of social media has seriously reformed the means in which we are able to express ideas.  The comfort with which technology grants for freedom of expression has carried with it an invitation to lure private individuals to express publicly.  The internet provides us with listeners, commentators, advisers, or just an audience who are available twenty four-seven.   Poems of a frustrated poet, songs of a desperate song writer, or performances of an aspiring artist are allowed to be shared through the internet.  Accordingly, technology has converted freedom of expression from a chiefly private wonder into a principally public sensation.  Digital freedom is just a part of freedom of expression. And while freedom of expression may be in a form of writing, a painting, an action, fashion, or any creation, digital freedom also comprises all of those mentioned but confined in a rectangular world, nurtured by electrical power and created by technology.  Digital freedom allows the creator to call billions of viewers to show his masterpiece, giving the viewers in return the chance to respond, stimulating creativity and imagination and allows sharing.

            Digital freedom is the freedom to use and reuse the creations of others applying one's own ingenuity, subject to limitations in accordance with the copyright bionetwork.  Digital freedom is essential to the enrichment of cultural heritage.  The power to convey our own ideas as well as access the ideas of others is one which caters the society with the capacity to operate freely and progressively.  When famous artists produce music videos, the audiences mimic the creation and add some ideas and concepts that are suitable to them without the hassle of having to pay for the production.  All it takes is music as a background, and a computer to record, upload, and then share.

            Whereas digital freedom emboldens resourcefulness, copyright controls invasion, trespass, or intrusion of the rights of the creator.  So the questions which were once posted above would again be asked now, how do we limit digital freedom and where do we draw the line?  Who will draw the line?, the government?, the users?, the freedom fighters?, or the copyright owners?  Again, the answer is the law. 


            In accordance with what Lawrence Lesig had said that Creative Commons is not the solution to remix problems, it is definitely not, and I agree with him when he said that, but I also agree with him that Creative Commons has a role, a big role, in fact.  By  letting the creators choose on how and what they want to share, those who are into remix would not have any doubts on whether or not by using the original in their remix they could be infringing upon the owner's copyright.  I believe that copyright owners of the original as well as remix makers should have a symbiotic relationship, wherein both parties benefit from each other.  On the side of the remix makers, they benefit from the owner of the original by gaining ideas or inspiration and reusing the latter's works to create a new one. On the other hand, the owner of the original work benefits from the remix makers because of free advertisements, this way the owner of the original work is benefitted indirectly.  Problems arise however if the original work is not that popular and the original maker was not attributed.  The viewers of the remix would presume that the remix is an original one and if a viewer would use the latter in creating a remix, uploaded such in YouTube with attribution and both works became viral, then I believe that it would be prejudicial to the original maker. What if, the original maker was attributed; does it mean that there is no infringement? No.  Attribution is not the same as asking permission.  

            Using the concept of creative commons, there must be a law global in character which must be adopted by each country, wherein if the original creator makes it clear that he doesn't want his work being used for remix in a commercial way, then one who uses to the contrary  must be held responsible and must be sanctioned accordingly.  The law should not stop there.  The provisions should include that an equal sanction must be given to those original owners, as well as music companies and producers who would harass, in the form of lawsuits, the reuse of their work for lawful purposes. 

            The Universal Declaration of Human Rights provided the world with Article 19 [ix] which maintains the right to freedom of expression.  However, different nations present this freedom in various and assorted ways, for this reason the term "lawful purposes" also have diverse applications.   The wordings of the declaration is clear that a person has the right to express himself freely without interference and through any medium, should we then propose that governments of various nations have to  exert efforts towards a culture of complete freedom of expression?  Certainly not, because to do so would put social order and safety at risk. Of course there are limitations, and these limitations are, again, different from every nation. The distinction between the politics regarding freedom of expression and the certainty of what is really happening in most countries is stark.  Take for example in Germany where "remix" is not allowed as impliedly stated in their copyright law, when there is the use of a melody in a musical work.[x]  Even in You Tube, under its terms and conditions, it would make a netizen hesitant on whether or not the doctrine of fair use would apply to the situation.[xi]   In US and in our country however, remix is legal under the doctrine of "fair use".[xii] [xiii]

            Assenting to this reality of differences in the applications and enforcements of the freedom of expression, my advocacy for now is to respect that.  It would be safer to give the original creator the freedom to control on how his intellectual property should be used and abused by others excluding the trouble and inconvenience of being pestered by a lot of people who would be asking permissions from the original maker. This is where Creative Commons would come into play.

            Creative Commons is a nonprofit organization whose objective is to provide the makers of creative works to use, reuse, and share legally their creations, by providing standardized terms and conditions that would best fit the maker's choices and needs in a form of Creative Commons licenses.[xiv]  This is merely a tool in conjunction with copyright, which gives the original creator to modify the terms of the copyright.  A tool which, to my mind, is the best way to readily place a stamp on  a creation with both the rights of the original maker as well as the limitations on the freedom of the remix makers to enjoy.  Creative Commons respects both the original creator and the remix maker.  This way both the copyright law and the freedom of expression are reconciled and this way permission is readily granted by the original creator to the remix maker which in turn creates a new creation inspired by the original one, without the apprehension of the possibility of being accused of being an infringer. 


            Today, various reforms, amendments, legislations, studies, and the like are being formed to respond to the fast growing internet world that we have.  To name a few, there is the European Parliament resolution of 11 December 2012 on a Digital Freedom Strategy in EU Foreign Policy,[xv] the  U.N. Human Rights Council: First Resolution on Internet Free Speech,[xvi] and the Fair Use Act (H.R. 1201) Amending the Digital Millennium Copyright Act[xvii].  The globe's attention has been seized by the invasion of the internet world.  We need to be aware and adapt to the constantly shifting and developing machine of ceaseless revolution to help support the spread of art, information and consumerism.  Thoughtless litigations against digital freedom must be stopped.  Music artistic enterprises as well as their consumers are at war and have been continuously struggling since the concept of copyright came into the picture.  This war was there even before the concept of digital freedom came into the picture.  And now, with the advent of the net and computers, the struggle became tougher.  This is not to say that digital freedom must be upheld over copyright.  By encouraging remix we must not forget to urge new and original creations as well.  We must at least try to cross the barrier between monetary interests and the freedom for art and creativity.  Economic progress and cultural liberalization must go hand in hand.  Both must coincide, so must original creation and remix. 

            How far the bounds of freedom of expression should proceed is theoretically and politically, and morally uncertain.  Both worlds are in an episode of an extensive tale of animosity between technology and intellectual property.  Both worlds are trying to preserve the cultural heritage that we have now.  The different cultures that we have from different nations swiftly formed into a digital one.  The invasion of the rectangular world is inevitable and we as netizens and citizens should exert all efforts to let the rectangular world fit perfectly into our circular planet.

[i] 1987 Constitution Article III Section 4. 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.
[vi] Facebook says it now has 1.11 billion people using the site each month, slightly more than the 1.06 billion reported three months earlier. It represents a 23 percent growth from a year earlier.  Facebook also says it had 665 million active users each day on average in March, up 26 percent from a year earlier, and 751 million using Facebook from a mobile device each month, up 54 percent.
[vii] GWI.8, the Q4 2012 dataset from Global Web Index, shows that the number of active Twitter users grew 40% from Q2 2012 to Q4 2012. This is equal to 288 million monthly active users (claimed to have used or contribute to Twitter in the past month) across the 31 markets currently researched by GWI (representing nearly 90% of the global internet population aged 16 to 65). That marks a whopping growth rate in active users of 714% since July 2009.  An incredible 21% of the global internet population now use Twitter actively on a monthly basis.
[viii] More than 1 billion unique users visit YouTube each month; Over 6 billion hours of video are watched each month on YouTube—that's almost an hour for every person on Earth, and 50% more than last year; 100 hours of video are uploaded to YouTube every minute; 70% of YouTube traffic comes from outside the US; YouTube is localized in 56 countries and across 61 languages; According to Nielsen, YouTube reaches more US adults ages 18-34 than any cable network; Millions of subscriptions happen each day, and the number of people subscribing has more than doubled since last year.
[ix] The Universal Declaration of Human Rights Article 19 - Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
[x] Act on Copyright and Related Rights (Copyright Act) Article 24 Free use (1) An independent work created in the free use of the work of another person may    be published or exploited without the consent of the author of the work used.
                                    (2) Paragraph (1) shall not apply to the use of a musical work in which a melody is recognizably taken from the work and used as the basis for a new work.
[xi] Terms of Service of You Tube: You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. YouTube and its licensors reserve all rights not expressly granted in and to the Service and the Content.
Section 184. Limitations on Copyright. - 184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:
(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;
(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 the 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
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.
[xiv] Creative Commons is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.  Our free, easy-to-use copyright licenses provide a simple, standardized way to give the public permission to share and use your creative work — on conditions of your choice. CC licenses let you easily change your copyright terms from the default of “all rights reserved” to “some rights reserved.”   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.
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