Content creators, creativity, and fair use (1)
Our Intellectual Property Code is more than two decades old, and yet many of its provisions, particularly Part IV (the Law on Copyright), have yet to be unboxed and interpreted by the Supreme Court. Fortunately, the Intellectual Property Office recently issued Guidelines on Statutory Fair Use in the Intellectual Property Code to shed some light on the application of the fair use provisions of the IP Code.
Copyright is essentially a bundle of economic (and moral) rights that the law grants to copyright holders for “original” works falling under the literary and artistic domains. The exercise of any of these rights (e.g., the economic right of reproduction) without the copyright owner’s consent may find one at the receiving end of a copyright infringement suit.
However, copyright law can be tricky because, despite the grant of these rights, copyright law also recognizes some allowable uses of copyrightable works without the copyright owner’s consent under the principle of fair use. Fair use traditionally refers to “a privilege in others than the copyright owner to use the copyrighted material reasonably without his consent.” What is reasonable can depend on what particular type of fair use is being invoked.
Fair use under the law is basically of three types: (1) the general (or common law) fair use (based as it were from case law in the United States); (2) statutory fair use, which contemplates specific situations of allowable use of a copyrighted work; and lastly (3) fair use in the form of other limitations on copyright under the IP Code. We shall focus in this two-part article on the first two types.
Under the first type, four factors are taken into account in determining whether the use of a copyrighted work without the copyright holder’s consent constitutes fair use. Under the second type, the IPO considers two subtypes. The first subtype refers to situations that can amount to fair use without making any additional reference to the general (or common law) fair use’s four factors. The second subtype refers to situations that must additionally pass the general (or common law) fair use’s four-factor test.
The first subtype contemplates “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.”
One activity that may fall under this is “vlogging,” which the recent IPO Guidelines on Fair Use defined as the “making of an audiovisual recording of current events, usually but not always accompanied by the maker’s views, opinions, commentary or criticism, and the making of such recording publicly available or accessible on the internet.”
Vlogging is very popular since it can cover almost any topic under the sun, including product unboxing and food reviews. Vlogging is even considered part of the “audiovisual media domain,” among the many domains of the “creative industries” the country seeks to further develop and promote. Such development and promotion, however, must be in harmony with our IP laws in general and copyright in particular.
For instance, a vlogger may visit a place where literary, scientific, or artistic works may be viewed or are on display (say, a famous restaurant’s menu that contains not just the dishes they serve but photographs and other artworks as well or a science museum that houses scientific works) and which the vlogger intends to showcase or visually include in his vlog.
According to the IPO, since the main object of a report of a current event is to give the public an impression of having taken part in it, then only parts of such literary, scientific, or artistic works should be included in the vlog. Otherwise, if the whole work is shown
(such as a sculpture or painting with a subsisting copyright that is on display in a temporary art exhibition), the IPO opined that the same must be shown only briefly to satisfy the report’s informatory purpose.
Since copyright issues usually arise when a copyright holder perceives a violation of his/her/its economic rights, it may do well for a vlogger who substantially monetizes their content by utilizing copyrighted works to take heed of such fair use guidelines.
“Copyright is essentially a bundle of economic (and moral) rights that the law grants to copyright holders for ‘original’ works falling under the literary and artistic domains.
Vlogging is very popular since it can cover almost any topic under the sun, including product unboxing and food reviews.
(To be continued)