Copyright Infringement through Social Media

 What are Protected from Copyright Infringement 

            The following are protected by our Intellectual Property Law against Copyright Infringement from the moment of their creation[1], during the life of the author and 50 years after his death except for: work of applied art (25 years from the date of making)[2], performances not incorporated in recordings (50 years from the end of the year the performance took place), sound or image and sound recordings and for performances incorporated therein (50 years from the end of the year the performance took place) and broadcasts (20 years after the broadcast took place)

1.      Literary and Artistic Works[3]

a.       Books, pamphlets, articles and other writings

b.      Periodicals and newspapers

c.       Lectures, sermons, addresses, dissertations prepared for oral  delivery, whether or not reduced in writing or other material form

d.      Letters

e.       Dramatic or dramatico-musica

f.       Compositions choreographic works or entertainment in dumb shows

g.      Musical compositions, with or without words

h.      Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art models or designs for works of art

i.        Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art

j.        Illustrations, maps, plans, sketches, charts and three-dimensional  works relative to geography, topography, architecture or science

k.      Drawings or plastic works of a scientific or technical character

l.        Photographic works

m.    Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings

n.      Pictorial illustrations and advertisements

o.      Computer programs

p.      Other literary, scholarly, scientific and artistic works

2.      Derivative Works [4]

a.       Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works

b.      Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents

3.      Works of the Government [5]

a.       Speeches

b.      Lectures

c.       Sermons

d.      Addresses

e.       Dissertations

4.      Work of Architecture[6]

5.      Performance[7]

6.      Sounds Recordings[8]

Exclusions from Copyright Infringement

            Copyright protection shall not extend to the following:[9]

1.      Idea, procedure, system, method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work

2.      news of the day

3.      other miscellaneous facts having the character of mere items of press information

4.      any official text of a legislative, administrative or legal nature, as well as any official translation thereof

Limitations on Copyright

            Based on the “Doctrine of Fair Use” under Sec. 185, “the fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright.[10]  It also covers decompilation or the reproduction of the code and translation of the forms of a computer program to achieve the interoperability of an independently created computer program with other programs may also constitute fair use under the criteria established by this section, to the extent that such decompilation is done for the purpose of obtaining the information necessary to achieve such interoperability.”[11]    

            Libraries or archives whose activities are not for profit can also make a limited number of copies for fragile works, isolated articles for expedient purposes and for preservation when the copy is no longer available with the publisher.

            When authorized by the owner, 1 back-up copy of a computer program can also be made if necessary for use of the computer program and archival purposes.

             

Lack of Definition of Copyright Infringement

            Our Intellectual Property Laws does not define what copyright infringement.  It only defines who is liable for infringement under Sec. 216.  Copyright infringement is so broad that it includes any violations of rights granted under the law.  Violations are committed when you use the right for your own without the permission of the copyright owner.

Rights Granted

            Rights granted to the copyright owner includes:

1.      Copyright or economic right[12]

a.       Reproduction

b.      Dramatization, translation, adaptation, abridgment, arrangement or other transformation

c.       First public distribution

d.      Rental

e.       Public display

f.       Public performance

g.      Other communication to the public[13]

2.      Moral Rights

a.       Attribution requirement (which lasts forever[14])

b.      Make any alterations prior to or withhold his work from publication

c.       Object to any distortion, mutilation or other modification of, or other derogatory action against his work

d.      Restrain the use of his name restrain the use of his name with respect to any work not of his own creation or in a distorted version

Social Media

According to the Merriam-Webster Dictionary, social media are forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content. 

How I Use Social Media

I would classify myself as an active user of social media.  I have several social blogs with different niches.  I make use of content sharing sites such as: Scribd, SlideShare, Facebook, Linked In, Tumblr, Plurk, Twitter, Dropbox and Google+.  I made use of photo sharing sites such as Pinterest and Instagram. I use bookmarking sites such as: StumbleUpon, Delicious and Digg.  I use video sharing sites such as: YouTube, Vimeo and Daily Motion.  I also engage in internet forums such as: Girl Talk, Pinoy Money Talk, Pinoy Exchange and Philmug.  I also use geo-location social media such as Swarm and Foursquare.  I use instant messaging apps such as: Viber and Line.  I also post reviews and ratings on Tripadvisor. 

Social Media a Medium for Copyright Infringement

Social makes it easier to communicate and disseminate copyrighted works to the public in whatever data type: content or words, video, music and image.  You can simply upload documents on Scribd and presentation slides on SlideShare.  You can easier post statuses and share on Facebook, Linked In, Plurk on Google+.  You can simply reblog on Tumblr or Retweet in Tweeter.  You can simply share any file in massive sizes through Dropbox with its cloud technology.  You can easily repin images on Pinterest or regram on Instagram.  You can upload videos on YouTube, Vimeo and Daily Motion.[15] 

Intellectual Property Law Stifling Social Media Usage

While the passing of information is fast, easy and limitless through social media, the lack of definition of copyright infringement and its broad coverage stifles social media usage.  In fact, it makes it impossible for an average social media to avoid committing any acts of copyright infringement. 

Social Media Behaviors that Lead to Copyright Infringements

            Not all social media users are aware that they are already committing copyright infringements.  If you observe policies of social media such as Twitter[16] and Facebook[17], they hold the user liable for any content that they are sharing as they are the source of authority.  If a social media user is not cautious, it could lead to certain liabilities.

I’ve been observing my social media behavior and these are the copyright infringements which I could have possibly committed.  All of which involves a clear communication to the public and reproduction.

First, I tend to share online viral articles, collaged images and infographics on Facebook, Linked In, Tumblr, Plurk, Twitter, Tumblr and Google+ that includes quotes from movies, books and scripts, video remixes with background copyrighted music and copyrighted movie and television scenes and clippings and Filipino amateur singers singing in a mall karaoke of copyrighted songs and copyrighted photographs by amateur and professional photographs.  Mere liking in Facebook, actually allows my friend to see it.  Sometimes, it is also involuntary such as the time when my accounts were sending spam messages to others without me knowing. 

Second, I make video blog or vlog about my concert experiences or capture my activities and add my favorite songs as background and upload them on YouTube, Vimeo and Daily Motion.  I also watch

Third, I use memes or movie gifs and include them on my blog articles. 

            Fourth, I love to repin on Pinterest the photos taken by others or regram them on Instragram.

            Fifth, I download from Scribd, Dropbox, 4shared and Utorrent.

            Sixth, using copyrighted images such as cartoon characters as avatars on internet forums and social networking sites. 

            Seventh, I don’t have control over the ads that appear on my social blogs.  It can contain copyrighted music and images that is communicated to my readers.

Solution to Avoid Copyright Infringement

            We really have no choice but to accept our restrictive laws.  It is better to adopt safety measures to avoid the possible commission of copyright infringement as we can’t always rely on the Doctrine of Fair Use to save as in case of suit.

            The most basic solution is to avoid making unnecessary disclosures.  Think before you share.  If you won’t gain anything from it, better not do it.

            For bloggers like me, it’s best to verify what is authorized to be posted with the author or event organizers.  If you’re blogging about actual experience, this tends to be difficult.  But, if you’re invited to cover an event, this is very easy to do.  In fact, it’s highly encourages by their public relations officer.  You can also make use of press released information which is excluded from copyright protection. 

            I also had a blogger friend who was sued for a comment posted on his site which he refused to take down.  For now, the Philippine Court does not consider comments as being published by the blogger and the case was dismissed for lack of probably cause.  I’d still suggest that it is best to filter our comment contents published on our sites as it may also contain copyrighted materials which could be attributed to us.

            Also read social media policies prior to use just so you know the extent of your liability.

            Select and use those with Creative Commons License applicable to your case.  I highly recommend those with Attribution-ShareAlike (CC BY-SA) so you are free to share or adapt (remix and transform) for any purpose even commercially as long as you give attribution to the creator and grant the same license.[18]  You can also use the music offered by YouTube on its Audio Library which are free as background. 

            Never ever think that an attribution is sufficient, always ask for the permission of the author or creator. 

            Be aware of recent amendments regarding our Intellectual Property Laws as ignorance of the law is not an excuse.

            For photographs, it’s best to upload your own photographs.  But, be careful also not to capture copyrighted works such as works of architecture, drawings, graphic and other information that can’t be disclosed because then you’ll be committing a public display of copyrighted works.

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[1] Sec. 172

[2] Sec. 213

[3] Sec. 172

[4] Sec. 173

[5] Sec. 176

[6] Sec. 186

[7] Sec. 203

[8] Sec. 203

[9] Sec. 175

[10] Sec. 185

[11] Sec. 185.1

[12] Sec. 177

[13] Sec. 171

[14] Sec. 198

[15] Sec. 202.9

[16] https://twitter.com/tos

[17] https://www.facebook.com/legal/terms

[18] https://creativecommons.org/licenses/by-sa/3.0/

MIsdirected Email

You received a misdirected mail and there is a notation that such mail must be confidential, or else be destroyed.  The content of the mail is something contrary to law.  How will it be valid for you to provide info to public without violating the laws we’ve discussed in the class?  How can you be not liable for such disclosure to the public?

Email as Electronic Evidence

            Section 5(f) of the Electronic Commerce Act of 2000 (R.A. 8792) and Section 6(h) of the Implementing Rules and Regulations of the Electronic Commerce Act defines an “Electronic Document as information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.”  In Section 6(h) of the Implementing Rules and Regulations of the Electronic Commerce Act, it further added that the term “electronic document” shall be equivalent to and be used interchangeably with “electronic data message.”  

Most of the provisions of Electronic Commerce Act of 2000 (R.A. 8792) is taken from the United Nations Commission on International Trade Law (UNCITRAL) Model Law.   The UNCITRAL defines a “data message” as an “information generated, sent, received or stored by electronic, optical or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.  Moreover, in Section 6(e) of the Implementing Rules and Regulations of the Electronic Commerce Act, it redefined “Electronic Data Message” as “information generated, sent, received or stored by electronic, optical or similar means, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.”  Thus, electronic mail or e-mails are regarded as an electronic document.   

According to Rule 4 Section 1 of A.M. No. 01-7-01-SC Rules on Electronic Evidence, the email can be regarded as an original electronic document provided that a printout or output readable by sight or other means, shown to reflect the data accurately shall be presented in court.  According to Rule 33, Section 2, to be admissible as an equivalent as a functional equivalent of a written document for evidentiary purposes, the person seeking to introduce an email correspondence or electronic document in any legal proceeding has the burden of proving its authenticity to be under the manner provided in Rule 5 Section 2.

Email Disclaimers

            There is currently no legislation covering email disclaimers in the Philippines.  In the United States where our Cyber Laws are patterned, email disclaimers are not legally binding.  In the recent misdirected email issue of Goldman Sachs, its email service provider, Google refused to delete the email without any court order.[1]   

            If we regard email disclaimers as part of an electronic document, there is no way it can be legally binding because it is not contract without the affirmation of the recipient.  According to Art. 1305 of the Civil Code, “A contract is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service.”  Thus, a unilateral dictation by email disclaimers on its unintended recipient does not result in a legal and binding contract. 

Privacy

Art. 26 of the Civil Code stating that “Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” poses a limitation to the Constitutional Right of freedom of speech granted by Sec. 4 Article III Bill of Rights of the 1987 Constitution.

Extent of Protection of Privacy

            As stated in the case of Pollo v. Constantino-david, “Protection of this private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly important as modern society has developed. All the forces of a technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society xxx The notion of informational privacy is still developing in Philippine law and jurisprudence.”[2]

Data Privacy Legislation in the Philippines

Nature of the Data Privacy Act of 2012

            The Data Privacy Act of 2012 is the Philippines' first and only consolidated data privacy legislation.  It imposition is part of the Philippines’ compliance with the Directive 95/46/EC of the European Union and the Asia Pacific Economic Cooperation (APEC) Information Privacy Framework. 

Aims of the Data Privacy Act of 2012

The Data Privacy Act of 2012 aims to substantially raise the profile of the Philippines in the data privacy and business in the data processing sphere.  It deals with the assurance of the security of personal information handled by employees of BPO companies based in the Philippines as a means of attracting more investors in the information technology and BPO industry in the Philippine. 

The Philippines Business Processing Association believes that the Act will facilitate the Information technology of the BPO industry expanding from call centers to areas that involve handling sensitive personal data such as in the health care and human resources areas with projections of revenue in the industry increasing from $ 9 billion in 2011 to $ 25 billion by 2016.

Coverage of the Data Privacy Act of 2012

All “Personal Information Controllers”, being persons who control the collection, holding, processing or use of the personal information of others defined in the Act as “Data Subjects” are mandated to comply with its requirements before any such collecting, holding, processing or use may take place.  Through the concept of “sensitive personal information, it introduces a class of personal information which due to its particular sensitivity is subject to more stringent requirements for processing.[3]

            The Personal Information Controllers are responsible and accountable for decisions on the data usage that pass by the Personal Information Processors.  Thus, they are the ones who can be criminally liable for unauthorized data usage.[4]

            Thus, ordinary email recipients are outside the coverage of the Data Privacy Act of 2012.

Libel as a Cyber Crime Offense Under Sec. 4 of the Cybercrime Prevention Act of 2012 (R.A. 10175)

A libel is defined as "a public and malicious imputation of a crime or of a vice or defect, real or imaginary or any act, omission, condition, status or circumstance tending to cause the dishonor, discredit or contempt of a natural or juridicial person or to blacken the memory of one who is dead."¹³ "For an imputation to be libelous, the following requisites must concur: a) it must be defamatory; b) it must be malicious; c) it must be given publicity and d) the victim must be identifiable. [Lopez v. People (2011)]

Absence of Element/s as Defense in Libel

Absence of the Element of Maliciousness

Since the email content is already contrary to law, it is already a crime.  Imputation of criminal intention is not libelous because intent to commit a crime is not a violation of the law.  (People v. Baja)  Thus, if it is to be exposed, it is an imputation of a crime. 

But, imputation of a crime is only one element.  In order to constitute libel, there should be malice which is a more substantial element. 

There are two kinds of malice: malice in law and malice in fact.  Malice in law is a presumption of law which is raised by the mere utterance.  While, malice in fact is a positive desire and intention to annoy or injure out of ill will or personal spite. 

So if the ill will is engendered by one’s sense of justice or other legitimate or plausible motive, such feeling negatives actual malice. [People v. de los Reyes, Jr.] 

Error or Mistatements

If it was published by mistake as when the publisher though it was sent to him for him to publish.  If given an advise by the sender, a prompt correction or retraction is sufficient to establish absence of malice.  As held in Borjal vs. CA (1999), “Errors or misstatements are inevitable in any scheme of truly free expression and debate.  Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language.  There must be some room for misstatement of fact as well as for misjudgment.  Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy.” 

Absence of the Element of Identifiability of the Victim

The email content contrary to law can be published to any third person without revealing the sender or making the sender as a blind item which no one can pinpoint with certainty.  This

Distinction Between Absolute Communication and Conditional Or Qualified Privilege

            In absolutely privileged communications, the occasion is an absolute bar to the action regardless of the existence of express malice.  Whereas, in cases of conditionally or qualifiedly privileged communications, the law raises only a prima facie presumption in favor of the occasion and it is conditioned on the want or absence of express malice.  Otherwise, there can be a remedy for the damages in a civil action for slander or libel.  Conditionally or qualifiedly privileged communications relates more particularly to private interests, and comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social, made to a person having a corresponding interest or duty.  There must be both an occasion of privilege and the use of that occasion in good faith [Sison v. David (1961)]  Truth is not a defense, unless it is shown that the matter charged as libelous was made with good motives and for justifiable ends.

Absolute Privilege Communication as Defense in Libel

            I can also file a civil or criminal case against the sender and incorporate the email content as part of the pleading so that it will constitute as an absolute privilege communication.

Conditionally or Qualifiedly Privilege Communication as Defense in Libel: Private Communication Made By Any Person To Another In The Performance Of Any Legal, Moral Or Social Duty

In order that a private communication, libelous in character, shall be privileged, certain conditions must exist:

1.    It must be made in good faith

2.    It must be made in the performance of a duty, which duty must be legal, moral, or social; and

3.    It must be made solely with the fair and reasonable purpose of protecting

a.    The interests of the person making the communication; or

b.    The interests of the person to whom the communication is made. [US v. Bustos (        1909)]

To reveal the email content to a public officer or police officer moved by a sense of justice against something contrary to law negates malice in fact.  Absence of any utterance but merely showing it to the appropriate officer, negates malice in law.  As such email content is left to the public officer to investigate as to the source and criminal implication.  No such statement, opinion or imputation was made by me by the mere act of reporting.  In order to prove lack of malice in fact, evidence must be presented that it was opted to report it silently to the authorized public official for its proper arrest and redress rather than to have it published in other means and damaging the reputation of the sender. 

Conditionally or Qualifiedly Privilege Communication as Defense in Libel: Fair And True Report, Made In Good Faith

A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

If the email content which is contrary to law is about a fair and true report of a judicial, legislative or other official proceedings which are not of confidential nature or a recopy of a pleading already filed in court, the charge of libel should be dismissed.

When the offended party is a public official and the defamatory imputation is related to the discharge of his official duties, proof of truth is sufficient for acquittal.  This is true even if there is no imputation of a crime.  Proof of good motives and justifiable ends is also not a requirement.  However, the imputation must only be with regards to his official duties and functions and not of his person.

Conditionally or Qualifiedly Privilege Communication as Defense in Libel: Fair Comment or Opinion

If the comment is an expression of an opinion which may be right or wrong, based upon proven facts and upon reasonable degree of care and on reasonable grounds, it negates maliciousness.[5]  It is merely a viewpoint and not tended to be injurious.  Moreover, since it is based on facts, third persons can verify and judge it for themselves.

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[1]http://www.afr.com/p/technology/goldman_fears_massive_privacy_breach_iuaUPthbR1ZeZWiEsx9uEO

[2] http://www.lawphil.net/judjuris/juri2012/jul2012/gr_193636_2012.html

[3] http://www.dlapiper.com/en/asiapacific/insights/publications/2012/10/new-tough-privacy-regime-in-the-philippinesbrdat__/

[4] http://www.gmanetwork.com/news/story/330365/scitech/technology/how-the-data-privacy-act-impacts-phl-businesses 

[5] BAGUIO MIDLAND COURIER, et. al. vs. COURT OF APPEALS, et. al., G. R. NO.  107566, November 25, 2004