Writers and copyright

At the “

: Copyright in the Digital Environment” forum at the Instituto Cervantes last Saturday, I was asked to speak about copyright on behalf of creative writers. Here is the talk I gave, which had some sentences in Spanish and some in Filipino, to highlight the trilingual nature of the audience (forgive my bad Spanish!):

Hay declaraciones que todos los escritores dicen son verdaderos. There are certain statements that all creative writers hold to be true.

Primero, that writers own their creations. We applaud the government for recognizing this right. Chapter 2, Section 172, of Part 4 of Republic Act 8293 says: “Literary and artistic works . . . are original intellectual creations in the literary and artistic domain protected from the moment of their creation.” Onerous was the old practice of requiring writers who wanted to claim copyright to their own works to go physically to the Copyright Office in the National Library building to fill in some forms and to pay an amount, even if small. Era terible! Now, writers have copyright from the very moment they put their fingers on the keyboard and save their works in their computers. Gracias a Dios o gobyerno!

Segundo, that writers own their creations even if they created them during their office hours. We cannot applaud the government for being vague about this truth. Que barbaridad! Chapter 6, Section 178.3, says: “In the case of work created by an author during and in the course of his employment, the copyright shall belong to: (a) The employee, if the creation of the object of copyright is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer; or (b) The employer, if the work is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary.”

The problem with this provision is that many writers are university professors, and universities have three functions, namely, teaching, research, and community service. Universities use the creations or research results of their faculty to gain accreditation, international stature, or grants. Therefore, it can be argued that all creations by university professors belong to the university, since these are used not only for the personal gain of the professors when they claim them as evidence of being entitled to promotion or tenure, but also for the good of the university. Estamos a merced de universidades.

We writers want the law to be amended to make it clear that any literary creation by any university professor belongs to the professor, not to the university, unless there is an explicit contract to the contrary. The default, in other words, should favor writers rather than universities. Escritores primero, universidades segundo.

Tercero, that writers should earn from what they write. We do not applaud the government for making the three main sources of income for writers exempt from copyright.

Primera causa of income loss – los estudiantes. The vast majority of readers of literary works are students, when asked by their teachers to read such works. But this is exactly what is not considered copyright infringement. Chapter 8, Section 185.1, states that “The fair use of a copyrighted work for . . . teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright.”

The only other reason for reading a literary work is enjoyment, but how many readers actually buy a work in a bookstore for personal enjoyment? The publishing figures are clear: hardly any literary work sells more than a couple of hundred or at most a couple of thousand copies. There are hundreds of thousands, no, millions, of students that read literary works for reasons of classroom work, scholarship, or research.

Segunda causa of income loss – las bibliotecas. Chapter 8, Section 88.1, says that “any library or archive whose activities are not for profit [aside: that means every library, because very few universities are for profit and even in universities which are for profit, the library itself is not for profit] may, without the authorization of the author or copyright owner, make a single copy of the work by reprographic reproduction, where the work by reason of its fragile character or rarity cannot be lent to users in its original form.” Because our literary works usually use fragile material, i.e., newsprint, and because they soon become rare because their print run is very small and they are hardly ever reprinted, then every library can argue that it has the legal right to reproduce our works without asking our permission or paying us anything.

Tercera causa of income loss – mismo el gobyerno. Chapter 8, Section 184.1h, says that “the use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest is compatible with fair use,” and does not, therefore, constitute infringement of copyright. Wait a minute! The Department of Education is part of government, and the DepEd textbooks are the biggest source of income for writers, if only the publishers that deal with DepEd would pay for works reprinted or used in textbooks. (To be continued)