Media, free speech and copyright

I was privileged to speak before a gathering of media practitioners, academics, lawyers and businessmen during a seminar on Media Laws and Regulations held last month and organized by the Asian Media and Communication Center (AMIC) of Singapore and the University of Asia and the Pacific (UA&P) Institute of Communication.

I was tasked to address the issue on the apparent conflict between copyright and freedom of speech. In other words, does copyright law, as we know today, serve the interests of authors or creators, while not depriving society of a meaningful dialogue, which is an object of the freedom of speech or expression?

Our Constitution expressly guarantees the freedom to express one’s ideas. On the other hand, copyright is a right of authors to stop others from copying their works without permission, as an exercise of their right of ownership and consistent with their economic right to exploit the work for a limited number of years.

The foregoing legal precepts appear to be free from paradox or conflict. However, in countries where democratic principles are zealously defended, the existence of an exclusive right to prevent a person from reproducing copyrighted work is deemed a violation of the constitutional right to free speech.

It is argued that freedom of speech stands on a higher plane than the right of creators over their intellectual creations. For one, freedom of speech or expression is included in our Constitution’s Bill of Rights; copyright is merely a State policy set out in the Constitution. In the Philippines, no one has questioned before the Supreme Court the validity of our Law on Copyright, as found in the Intellectual Property Code, on the ground that it infringes the right to free expression.

We must take into account that copyright laws in the Philippines strike a balance between private and public interests over literary and artistic works. In a certain sense, copyright is a restriction since it prohibits a person to express himself to the extent the copies the "expression" of another person. But, aren’t our libel laws or penal laws against fraudulent statements constitutes a limitation to our freedom of expression as well?

It has been suggested that the perceived conflict between freedom of speech or expression and copyright is best understood using the concept known as the "idea-expression dichotomy." Under this principle, copyright protects the form in which a work is expressed but does not protect the underlying ideas or information in the work. As an example, a cartoonist may have this idea of a rich man falling in love with a poor lady as a plot for his comic serial. His idea of a rich man falling in love with a poor lady cannot be copyrighted. On the other hand, the characters and their dialogue in his comic serial, which are the expression of his idea, can be the subject of a copyright.

To the extent that a person is allowed to think, ponder and explore his ideas, copyright is not a limitation to a person’s right to free speech or expression. Equally significant is the incentive copyright provides, through economic and moral rights, for authors or creators to innovative, to create and to express themselves in their literary and artistic works.

In other words, when applying the idea-expression dichotomy, the object of maintaining dialogue is preserved because no exclusive right could be exercised over ideas. At the same time, copyright’s object of exclusive exploitation of works is likewise preserved because expression of these ideas remains protected by copyright. Hence, the objects of the freedom of speech or expression and copyright can still be realized.

(Atty. Fider is a partner of ACCRALAW. He obtained his LLB from UP in 1986 and LLM from Queen Mary College University of London in 1990. He can be contacted at 830-8000 or [email protected].)