TITLE
CREATIVITY AND
CULTURE OF A RECTANGULAR SHAPED WORLD
I. INTRODUCTION
"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.
II. GLOBAL
SUMMIT, "CALL and RESPONSE", "REMIX"
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.
III. A WHOLE NEW
WORLD
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.
IV. FREEDOM OF
EXPRESSION AND DIGITAL FREEDOM
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.
V. THE LAW AND
CREATIVE COMMONS
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.
VI. FITTING A
RECTANGULAR SHAPED WORLD IN A CIRCULAR PLANET
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.
[xiii] CHAPTER VIII
LIMITATIONS ON COPYRIGHT
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.
This work is licensed under a Creative Commons Attribution 3.0 Unported License.
