The Doctrine of Fair Use and the Use of Copyrighted Material in the Internet

"The Internet has been characterized as the largest threat to copyright since its inception. The Internet is awash in information, a lot of it with varying degrees of copyright protection. Copyrighted works on the Net include news stories, software, novels, screenplays, graphics, pictures, Usenet messages and even email. In fact, the frightening reality is that almost everything on the Net is protected by copyright law. That can pose problems for the hapless surfer” (Copyright Website, www.benedict.com)

The website http://www.benedict.com/ contains summaries of cases pending in the United States involving the use of internet and the issue of copyright. Interesting cases involve the Google Book Search Project and the Viacom vs. Youtube squabble over SpongeBob. To my mind, the kind of issues being raised in these and other recent cases in the US indicate a narrowing of the doctrine of “fair use”.

These cases seem far removed from us at this juncture. After all, Intellectual Property Laws like most of our laws are territorial. However, a caveat to consider is Section 3 of the Philippine Intellectual Property Code (IP Code), which allows the enforcement of intellectual property rights of foreign entities in this jurisdiction subject to the existence of a treaty allowing such enforcement or in the absence of such treaty, at least, on the basis of the principle of reciprocity. This notwithstanding, the applicable law for IP Violations is still Philippine Law.

Are developments in American jurisprudence concerning fair use applicable to the Philippines? This is relevant in view of the criteria for fair use spelled out in the IP Code:

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.


The criteria enumerated (purpose and character of use etc) in Section 185.1 is actually from the landmark case of Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) regarding the memoirs of former President Gerald R. Ford. Excerpts of said memoirs were published by The Nation Magazine to the prejudice of Harper and Row (publisher of Ford) who had an exclusive contract to publish excerpts of the memoirs with Time Magazine.

Because of the similarity of the text with the criteria in Harper and Row, there is a strong temptation to apply the doctrine of adoption of interpretation based on the foreign origin of the statutory text. In other words, since the text is borrowed from American statute books, American jurisprudence has great persuasive value in this jurisdiction.

Prof. Susan Villanueva, a professor on Intellectual Property Law in the UP College of Law, gives us a caveat in the matter of fair use. She opines that there are differences in the wording adopted by the IP Code vis-à-vis US jurisprudence. Section 185.2 for instance, is a significant departure from Harper and Row. She also invites our attention to the term “multiple copies for classroom use” which in some states in the US has been eliminated from their statute books.

In my view, this difference in US and Philippine Law may be used to support a different conclusion should concrete cases be brought in our Supreme Court on fair use of internet materials.

In interpreting said statute, our courts should be more circumspect in adopting American Jurisprudence. It is rather unfortunate that the Supreme Court has uncritically adopted American Jurisprudence in the past.

A broad interpretation of the scope of the fair use doctrine has its benefits. Internet, with its rapid information dissemination capabilities, can be an important tool for developing countries (derisively classified as the Third World) to catch up with the more developed ones. For instance, with the development of USB Internet Connections, which allow remote access to the internet, the Philippine Government may be able to provide a bridge to compensate for the lack of libraries in many parts of the country.

On the contrary, a narrow interpretation of fair use can have adverse consequences to these developmental goals.

The link below is an example of how the internet can be an effective pedagogical tool. To those with IPL background, this clip would also show you the difference in the duration of our copyright law from that of the US.

http://www.youtube.com/watch?v=CJn_jC4FNDo (Walt Disney Characters Tell us What Copyright is)

BRYAN A. SAN JUAN

Entry No. 3