Changing landscape of copyright

Nowadays, it is so easy to copy materials that are available online.

When you see an interesting picture or video posted by someone on their social media account, all you have to do is download a copy or if you cannot download it, take a screen shot, and then post it in your own account for all your friends and followers to see.

However, if you are not sure if someone took that photo or created that video themself, you insert the letters CTTO or CTO meaning credit to the owner just to make sure that you make some form of attribution to the real owner of those photos or videos.

The Intellectual Property Office of the Philippines (IPOPHL), however, points out that doing so is not proper attribution, as you may be infringing on someone’s copyright unless the use can be justified under the so-called “doctrine of fair use.”

Under our Intellectual Property Code (IPC) and under the Berne Convention for the Protection of Literary and Artistic Works, obtaining copyright over one’s literary and artistic work should not be subjected to any formality. The works are protected from the moment of their creation, but you can have them registered or recorded with the National Library so that you will have proof of ownership. But registration of one’s literary and artistic works, which includes photographic works, is not a requirement before the owner can sue for copyright infringement.

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You take a video of a scene with a building, which is the architectural masterpiece, say of one national artist on the background. You use that photo without asking the architect’s permission in your upcoming film which, good for you, got Netflix interested enough to buy the rights to show your film on their very popular streaming service.

Without knowing it, you are violating the rights of the author or such work of architecture.

During the just-concluded five-day 1st Philippine International Copyright Summit, Chuck Valerio, who is the assistant bureau chief of the Bureau of Copyright and Related Rights accreditation and standards division, explained that local copyright laws do not recognize the so-called freedom of panorama (FOP) or the right to shoot public spaces.

Freedom of panorama, he said, is an exception under copyright laws, similar to fair use, that dispenses with the need to secure prior permission from a copyright owner for the use of a work.

But since our IPC does not have such freedom of panorama provision and since taking a photo or video of a copyrighted work such as a building, whose architectural design is copyrighted, is considered as creating a derivative work based on an existing copyrighted work, then the appearance – whether intentional or not – of such copyrighted work in a photograph may be considered as creating a derivative work.

Creating derivative work from one’s copyrighted work is an exclusive right given to a copyright owner.

Valerio cited the case of France, where the company in charge of Eiffel Tower’s maintenance installed a new lighting display and copyrighted it so that photos of the tower taken at night – when the lights are displayed – are subject to copyright laws and fees for the right to publish.

In other jurisdictions with FOP provisions in their copyright laws, one has a right to take photographs of public spaces and the use of such photos even for commercial purposes and even without the consent of, or payment of royalties, to the copyright owner is allowed. Basically, the FOP provision will allow the reproduction and communication to the public of the copyrighted work as appearing in the photo.

There is now a proposal in Congress to amend the IP Code and include such FOP provision. As proposed, “the copyright in a work that is situated, otherwise than temporarily, in a public place, or in premises open to the public, is not infringed by the making of a painting, drawing, engraving, or photograph of the work or by the inclusion of the work in a cinematographic film or in a television broadcast.”

Unfortunately, as pointed out by lawyer Jose Antonio Aliling and Raffy Lerma, who is a board member of the Photojournalists Council of the Philippines, suits for copyright infringement can be very expensive so that copyright owners in the country would oftentimes just turn a blind eye to infringement of their works. Or some just are not aware of what their rights are.

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If one uses a copyrighted work without the consent of the copyright owner, and the unauthorized use of such copyrighted work is not one of those considered as exceptions or limitations to copyright, then one can be sued for infringement. Good faith is not a defense in copyright infringement and one can be held criminally, civilly or administrative liable.

During the same forum, there was a very interesting presentation as to whether literary and artistic works created via artificial intelligence are entitled to copyright protection.

Lawyer Ijeoma Unachukwu of CIPP/US Communities Rise pointed out how AI is now being used to create artistic works. She cited the AI portrait of Edmond de Belamy, which was created by feeding the AI system with 15,000 portraits from the 14th and 15th century allowing the generator to make a new image based on the training data. The AI portrait was auctioned for $432,500.

In South Korea, she cited how AI was used to revive deceased superstar Kim Kwang-seok’s voice 25 years after his death. Supertone’s AI technology was trained to sing over 700 songs with the artist’s voice and was able to learn by listening to several songs by the artist.

AI was also used to finish Beethhoven’s last symphony 194 years after his death by Amper AI music. In movies, an AI called Benjamin wrote a short science fiction film called “ Sunspring” after the AI was fed with dozens of sci-fi screenplays. And then there is the nude portrait of crouching women, which was brought to life by an AI trained to paint like Picasso after the AI analyzed dozens of Picasso’s past works. Then more recently, she said that a 3-D portrait of Rembrandt was created by art historians and technicians using data and FR techniques from 346 of Rembrandt’s paintings.

Unfortunately, a number of issues need to be resolved before it can be determined if such AI created works are even copyrightable. She said that the US copyright office, for instance, will not register works produced by machines or mechanical processes that operate randomly or automatically without sufficient creative input or intervention from a human author in the resulting work. So in the US, works created by the AI will fall into the public domain. But if there was human intervention, does the copyright belong to the human author?

Unless the work is created by humans, then it is not entitled to copyright protection in the US. In that interesting case of Naruto vs Slater, a macaque (monkey) took selfies and those photos were used in a book by David Slater (who actually was the one who set up the camera for the monkey). The People for the Ethical Treatment of Animals (PETA) sued Slater for copyright infringement claiming that since it was the monkey who took the photographs of himself. The court held that the macaque Naruto did not have statutory standing to sue under the Copyright Act.

If the AI’s work, assuming that the AI is the one which has the copyright, is used without its permission, can it sue for copyright infringement? Should AI works even be protected? Since the AI used as input copyrighted works, didn’t the AI also commit copyright infringement?

Technology is changing everything. Let’s hope that our legal framework can keep up with these changes.

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