Tuesday, March 10, 2009

New Structures for Creativity

In "The Power of Words" (in Magis, ed. Queena Lee-Chua), Fr. Bienvenido Nebres, SJ, has expressed the hope that Philippine literature will develop fully to become the third "jewel" of our poverty-stricken nation, whose two original jewels, according to the late Fr. Horacio de la Costa, SJ, are our music and our faith. A full body of literature can bring forth a people of great works and a strong nation, while poverty in literature makes it much harder to overcome poverty in governance, capital, and technology. Fr. Nebres says, "If we still remain a fragmented people, it is perhaps in part because the words (or Word that is to create us) have not been fully uttered or written."

A new structure to enable Philippine literature to flourish is the new law for authors which was signed at MalacaƱan last March 5. Republic Act 9521 establishes within one year a Book Development Trust Fund for Philippine Authorship in the amount of one hundred fifty million pesos the interest of which will be distributed as grants to veteran and budding authors in all regions of our country. The Implementing Rules and Regulations (IRR) of the law will be formulated by the National Book Development Board. Authors and publishers will be invited to a public consultation on the IRR to be announced through the website www.nbdb.gov.ph

The new law brings us closer to the day when a critical mass of Filipinos will have become full-time authors who can secure for themselves and their families a decent standard of living whether as freelancers or as writers attached to institutions or enterprises. Most veteran and new authors find it too difficult to sharpen constantly their skills or to reach the cutting-edge of their disciplines, while they are preoccupied with earning a living through other means. Many potential writers are discouraged by kith and kin who warn that writers rarely or barely earn enough.

Other structures that can contribute considerably to the growth and improvement of both literary and non-literary works are a sound copyright law and its effective enforcement. Without adequate protection of copyright, authors cannot hope to obtain sufficient and fair remuneration from those who use and reproduce copies of their works.

If every author received fair remuneration for each photocopy and digital reproduction of his or her work from every individual or group that made or obtained the reproduction, there surely would be a great increase in the number of full-time writers who would be able to concentrate on their craft, as they would be able to support themselves and their loved ones primarily through practicing and honing such craft. In Australia, copyright-holders receive two (2) cents (approximately 84 Philippine cents) for every photocopied page. Imagine how rewarding it would be for our writers to receive even 10 cents for every photocopied page. Our literary field would bloom with a thousand flowers.

Unfortunately for our authors, fair remuneration for the reproduction of their works is elusive because the 1998 IPC or Intellectual Property Code (R.A. 8293) lacks specifics in its description of what constitutes "fair use" of copyrighted works. Section 185.1 of the IPC states: "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….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; (d) The effect of the use upon the potential market for or value of the copyrighted work."

In section 187, the IPC states: "the private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright" except when, in the case of a book, "an entire book, or a substantial part thereof" is what is reproduced. In other words, for research or private study, one is permitted to reproduce or photocopy only a non-substantial portion of a book.

The IPC is silent on what specifically constitutes a substantial portion of a book. Is a whole chapter such? What if the book is a collection of articles, essays, or poems of one author or several writers? Is a whole article, essay, or poem a substantial portion? What if it is a short poem that occupies only one page?

I agree with those who maintain that a whole chapter is a substantial portion. In an anthology, a whole article, essay, or poem, no matter how short, is a substantial portion. But what if a user photocopies one page less than the entire chapter, article, essay, or poem? What if a user photocopies 50% of the chapter today and 50% tomorrow? These are only some of the difficulties in specifying "fair use" and then enforcing it.

The NBDB has drafted a set of “fair use guidelines” that the agency will circulate to educational institutions in order to encourage them to produce and enforce similar guidelines of their own. The NBDB has also helped organize the Filipinas Copyright Licensing Society (FILCOLS), Inc., to collectively manage the reproduction rights of authors and publishers, to protect these rights, and to ensure fair remuneration for the rights-holders. All authors and publishers whose works are being used fairly or unfairly in the Philippines are strongly urged to join FILCOLS. Visit http://filcols.blogspot.com

With FILCOLS, copyright-holders should discuss the matter of working for the amendment of the copyright section of the IPC in order to specify further the concept of fair use and perhaps to legislate fair remuneration especially through a collective copyright licensing scheme that is similar to what is done in other countries.

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