"Using the criteria for fair use, it appears that the fair use factors weigh heavily in favor of Sotto...nevertheless, this should not discount the fact the senator should know that a blog is entitled to copyright protection." -- Maricel Estavillo
Amid the online outrage against Philippine Senate Majority Leader Sen. Vicente C. Sotto III over claims of plagiarism and copyright infringement, it is high time that we discuss here the basic tenets of copyright, particulary involving the Internet.
The senator has been accused of lifting parts of his speech on the Reproductive Health Bill from a blog by American blogger Sarah Pope. In his privilege speech last August 29, Sotto contested that plagiarism is not a criminal offense under Philippine laws. If there’s anything, he said, the closest violation would be copyright infringement. Citing a statement from an official from the Philippine Intellectual Property Office, Sotto said lifting extracts from a blog for Congress use constitutes fair use under the Philippine Intellectual Property Code.
To start, Sotto got it right that plagiarism lacks legal teeth. The remedy provided by plagiarism is limited to, in most cases, shaming the other party found guilty of copying without consent. Expulsion from school and resignation from public post are two of the strong and immediate consequence of plagiarism.
The second question is whether a blog is protected under copyright. The answer is yes. A web blog is eligible for copyright protection. And if the blog fits the basic definition of one, which is an online personal journal, then for sure it is copyrighted protected.
This is so as the Philippines, along with 164 contracting parties, is a signatory to the Berne Convention for the Protection of Literary and Artistic Works. The landmark international treaty on copyright, that was adopted in 1886, prescribes for the “protection of the rights of authors in their literary and artistic works.”
According to the convention, the “expression literary and artistic works shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.”
Berne gives signatories an option whether to require a protected work to be “fixed in some material form.” Fixation or the imprinting an original work of authorship on a tangible medium is one of the requirements for copyright protection under the US Copyrght Law. When a blogger writes on a blog, the work is considered as fixed.
Most important is that under copyright Berne, no formality is required to acquire copyright protection. This means that a blog gets copyright protection from the moment of its creation. Article 5(2) of the convention states, “The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the exercise of protection in the country of origin of the work.”
The Philippine acceded to the Berne Convention in 1950. Section 172.1 of the Intellectual Property Code of the Philippines, Republic Act 8293, grants copyright protection to literary works from the moment of their creation. Echoing the provision in Berne, the local law defines protected works as “original intellectual creations in the literary and artistic domain.”
Section 172.2 of the Philippine law states that “works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.”
Hence, both under the US and the Philippine laws, web blogs, such as that of Pope, are copyright protected from the moment of their creation.
As a signatory to the Berne Convention, it is the duty of the Philippines to recognize the copyright protection granted by the US to the American blogger. Under Article 5(1) of Berne: “Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.”
The third question is when Sotto lifted parts of his speech from a blog, did he commit copyright violation?
The Philippines, in particular, has copied the fair use exception of the US, which sets limitations on exclusive rights for specific purposes.
In the US, fair use is codified under Section 107 of the US Copyright Act, which allows the use of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship or research. The US statute tells courts to consider the nature of the copyrighted work, the purpose and character of the use, the amount and substantiality of the portion used against the copyrighted work and the effect of the use to the market of the protected work in determining whether a use of a protected work can be considered as fair use.
The fair use provision in Section 185 of the Philippine IP Code gives the same four criteria in determining fair use of copyrighted works.
Using the four criteria for fair use, it appears that the fair use factors weigh heavily in favor of Sotto. He was right when he said that his speech has no commercial nature, that he lifted only parts of the copyrighted work and with the use not resulting in “economic harm” to the blogger.
Nevertheless, this should not discount the fact the senator should know that a blog is entitled to copyright protection and as a dutiful legislator should not forget to pay respect to a law that grants rights to a creator of an original work.
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Maricel is currently attending an LL.M. Program in Intellectual Property and Competition Law at the Munich Intellectual Property Law Center — our direct connection to Europe’s technology scene, and an international point of view of the Intellectual Property Law. You can reach her by e-mail at arcie_estavillo@yahoo.com
