Law that Limits Creativity

 

“When all think alike, then no one is thinking.”

— Walter Lippman

“Capital isn’t so important in business. Experience isn’t so important. You can get both these things. What is important is ideas. If you have ideas, you have the main asset you need, and there isn’t any limit to what you can do with your business and your life.”

— Harvey Firestone

“To be creative you have to contribute something different from what you’ve done before. Your results need not be original to the world; few results truly meet that criterion. In fact, most results are built on the work of others.”

— Lynne C. Levesque

“[I]in 1913, the first assembly line was implemented at Ford Motor Company. The process grew like a vine and eventually spread to all phases of the manufacture of Ford cars, and then through the entire world of heavy industry. There can be no doubt that a powerful revolution occurred at Highland Park—but it was not the assembly line itself that provided the power. Rather, it was the creation of an atmosphere in which improvement was the real product: a better, cheaper, Model T followed naturally. Every man on the payroll was invited to contribute ideas, and the good ones were implemented without delay.”

— Douglas Brinkley

Wheels for the World: Henry Ford, His Company, and A Century of Progress 

INTRODUCTION

It is a State policy of the Philippine government to protect and promote intellectual property rights which was enshrined both in the 1973 Constitution and in the 1987 Constitution. The 1973 Constitution provides that “the exclusive right to inventions, writings and artistic creations shall be secured to inventors, authors, and artists for a limited period” while the 1987 Constitution explicitly mandates that the State shall protect intellectual property.

The Philippines became a member of the World Intellectual Property Organization [WIPO] in 1980 and became a signatory to a number of significant multilateral international agreements and treaties for the protection and promotion of intellectual property rights.

Philippine copyright law is embodied in the Intellectual Property Code of the Philippines, also known as Republic Act No. 8293. It is also partly based on the United States copyright law and the principles of the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886.1

The Intellectual Property Code of the Philippines protects patents, trademarks, copyright, and other forms of intellectual property. 

The law is enforced through a body established by the law: the Intellectual Property Office, or IPO, and its various branches. Copyright implementation is done with the coordination of the IPO and the Copyright Division of the National Library of the Philippines.

According to the Intellectual Property Code of the Philippines, works that can be copyrighted are literary and artistic works and derivative works. Literary and artistic works are protected from the moment of their creation and shall include in particular the following:

a. Books, pamphlets, articles and other writings

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

c. Letters

d. Dramatic, choreographic works

e. Musical compositions

f. Works of Art

g. Periodicals and Newspapers

h. Works relative to Geography, topography, architecture or science

i. Works of Applied art

j. Works of a Scientific or technical character

k. Photographic works

l. Audiovisual works and cinematographic works

m. Pictorial illustrations and advertisements

n. Computer programs; and

o. Other literary, scholarly, scientific and artistic works.2

Also copyrightable are the derivative works which includes the following:

a. Dramatizations, translations, adaptations, abridgements, 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

Derivative Works shall be protected as new works, provided that such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works.4

There are also works that are not protected by our Intellectual Property Law. The works that are non-copyrightable are the following:

  1. Idea, procedure, system, method or operation, concept, principle, discovery or mere data as such;

  2. News of the day and other items of press information;

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

  4. Pleadings;

  5. Decisions of courts and tribunals which refers to original decisions and not to annotated decisions such as the SCRA or SCAD as these already fall under the classification of derivative works, hence copyrightable;

  6. Any work of the Government of the Philippines;

  7. TV programs, format of TV programs5;

  8. Systems of bookkeeping; and

  9. Statutes.

Conditions imposed prior the approval of the government agency or office wherein the work is created shall be necessary for exploitation of such work for profit. Such agency or office, may, among other things, impose as condition the payment of royalties.

However, no prior approval or conditions shall be required for the use of any purpose of statutes, rules and regulations, and speeches, lectures, sermons, addresses, and dissertations, pronounced, read, or rendered in courts of justice, before administration agencies, in deliberative assemblies and in meetings of public character.6

WHAT IS CREATIVITY?

Creativity is defined by the Merriam-Webster dictionary as the ability to make new things or think of new ideas or the ability to create.

In an article entitled There’s a Critical Difference Between Creativity and Innovation authored by Drew Marshall, creativity is defined as unleashing the potential of the mind to conceive new ideas. Those concepts could manifest themselves in any number of ways, but most often, they become something we can see, hear, smell, touch or taste. However, creative ideas can also be thought experiments within one person’s mind. It is subjective, making it hard to measure.7 Organizations need to foster creativity. Driving business results by running ideas through an innovation process puts those ideas to work – for companies and their customers. Creativity is the price of admission, but it’s innovation that pays the bills.

Apple, Inc., formerly Apple Computer, Inc., is an American multinational corporation that designs, develops, and sells consumer electronics, computer software and personal computers. Its best-known hardware products are the Mac line of computers, the iPod music player, the iPhone smartphone, and the iPad tablet computer.its computer software includes the OSX and iOS operating systems, the iTunes media browser, the Sabari web browser, and the iLife and iWork creativity and productivity suites. When iPhone smartphone was to be introduced in the market, Steve Job’s announcement made it clear that a smart phone was not simply a phone. It was a computer for your pocket that among other things made calls. Making computers was a problem that Apple, Inc. solved twenty years ago.8

For Steve Jobs, an American entrepreneur, marketer and inventor, who was the co-founder, chairman and CEO of Apple, Inc., “Creativity is just connecting things. When you ask creative people how they did something, they feel a little guilty because they didn’t really do it, they just saw something. It seemed obvious to them after a while. That’s because they were able to connect experiences they’ve had and synthesize new things. And the reason they were able to do that was that they’ve had more experiences or they have thought more about their experiences than other people. Unfortunately, that’s too rare a commodity. A lot of people in our industry haven’t had very diverse experiences. So they don’t have enough dots to connect, and they end up with very linear solutions without a broad perspective on the problem. The broader one’s understanding of the human experience, the better design we will have.”9

Also, in PBS’s “Triumph of the Nerds: The Rise of Accidental Empires” (1996), Steve Jobs said that “Picasso had a saying. He said, ‘Good artists copy, great artists steal.’ And we have always been shameless about stealing great ideas and I think part of what made the Macintosh great was that the people working on it were musicians and poets and artists and zoologists and historians who also happened to be the best computer scientists in the world.”10

Donatella Versace, an Italian fashion designer and current Vice-President of the Versace Group, as well as chief designer, believed that “ creativity comes from a conflict of ideas.”11

Sylvia Plath, an American poet, novelist and short story writer, on creativity: “And by the way, everything in life is writable about if you have the outgoing guts to do it, and the imagination to improvise. The worst enemy to creativity is self-doubt.”12

George Kneller said that creativity consists largely of rearranging what we know in order to find out what we do not know. Hence, to think creatively, we must be able to look afresh at what we normally take for granted.

DOES COPYRIGHT LAWS LIMITS CREATIVITY?

In an article of Business Week entitled “Turning Limitations into Innovation”, Mary Ann Mayer, VP of Google, pointed out that “Creativity is often misunderstood. People often think of it in terms of artistic work — unbridled, unguided effort that leads to beautiful effect. They’re beautiful because creativity triumphed over the rules. Creativity, in fact, thrives best when constrained.” She continues by stating, “it is from the interaction between constraint and the disregard for the impossible that unexpected insights, cleverness, and imagination are borne.”13

Copyright laws are essential. It protects the works from the time of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. It does not limit creativity freedom as a matter of fact it encourages creativity.

The concept of copyright is well described in an article of New York Times dated October 6, 2000. “Copyrights are granted to encourage creativity by publicizing new works while ensuring the artists a reasonable return. Public interest is preserved by guaranteeing that eventually the right to use the works will enter public domain”14

According to Fiona Macmillan, a professor of law at the University of London, copyright and intellectual property as a whole has associated itself with concepts of genius, creativity and culture.

HAS TECHNOLOGY SURPASSED HUMANITY?

Culture is very strong and changes slowly. It is but normal for a new technology to be adapted within a culture and be used to support existing patterns of behavior. It’s easy to get worked up into a state of anxiety about what our modern world is doing to our societies. Human cultures are apparently more resilient than we naively assume.

For decades, humanity experienced a tremendous change in telecommunications technology, therefore changing also people’s behaviour in their environment. The digital world let us look (or forces us to look) to our mobile phone and our life outside the network is gradually fading. In former times the humankind could get non-verbal and verbal communication at once. We could see a person’s face while we were talking with him, we could feel the vibe or call it “karma”, we could use every antenna of our body to evaluate. People in trains, metrolines, are spending more time with their phone instead of experience their actual environment. People communicate almost everything through their “smartphone”. Nowadays, we can investigate a person’s profile in social media which has its advantages as well as disadvantages. We can get information about somebody without having a real communication.

The online environment adds further layers of complexity to the culture concept. Regular participation in online cultures simultaneously dilutes and expands our individual cultural orientation and mix. Overseas travel can also exert the same effect. Our cultural profile is not static, it grows and develops through cross-cultural experiences. In more general terms, any cultural understanding that arises from an exchange or interaction will be subject to the perspective and frame of reference of the individual observer or participant. It will depend upon the individual’s cultural and language background, and their knowledge and experience of their own and other cultures and the world around them. What one learner will come to understand or learn when observing or engaging in a cultural exchange, another may not.

COPYRIGHT LAW MUST DEREGULATE CULTURE

Creative Commons (CC) has enabled a new approach to copyright licensing over the last ten years. CC licenses facilitate novel social, educational, technological, and business practices, and support productive relationships around networked knowledge and culture.

Our experience has bolstered our belief that to ensure the maximum benefits to both culture and the economy in this digital age, the scope and shape of copyright law need to be reviewed. However well-crafted a public licensing model may be, it can never fully achieve what a change in the law would do, which means that law reform remains a pressing topic. The public would benefit from more extensive rights to use the full body of human culture and knowledge for the public benefit. CC licenses are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.

At the outset, Creative Commons is rooted in the broader work to reform copyright. The founders of Creative Commons believed that copyright law was out of sync with how people share content on the Internet, and they developed the CC licenses as one way to address that problem. But we’d like to see copyright law itself better aligned to its original purpose–to enable and reward creative participation in culture and society.

From time to time, people in our community bring up the question of whether Creative Commons should be only a steward of the CC licenses, or also a steward of the broader participatory culture that the licenses are meant to promote.

Is developing a shiny new digital product to demonstrate digital capability really engaging your audiences and meeting your own mission? Instead think about harnessing digital tactics to use one of your most valuable and existing assets: content. Cultural organisations are creators, facilitators and guardians of creative and cultural content, in the form of collections, written pieces, films, performances, exhibitions and more. But this content’s true value is only realized when it can reach and engage audiences.

Using digital channels can make this happen. But to do so, your content must be fit-for-purpose digitally. This means thinking of digital channels not as a range of generic publishing outlets, but as routes to a distributed network of communities with niche interests and needs.

It means resisting a one-size-fits-all solution and tailoring content to meet these niches. It means not just adopting a ‘publish and be done’ attitude but checking for quality and encouraging conversation. It also means setting your content free and allowing audiences to engage with it on their own terms

To engage your audience’s changing needs and behaviours successfully, you have to understand them first. Digital technologies give you the ability to start doing this. They provide the platforms that encourage these behaviours (via websites, apps and social media channels) and the ability to capture data about them (via various analytics tools). Digital technologies also provide you with the ability to test out your ideas quickly. This means you can rapidly assess success or failure before undertaking significant investment.

But to generate meaningful insight about your audiences from these technologies, they must be used as part of a broader knowledge gathering approach, one that should be connected to your organisation’s audience engagement mission. Adopting and embedding such an approach, with digital tools at its heart, is an essential step towards understanding change.

The value of digital is not just as a useful set of technologies, but as a shared collaborative agenda that can shine light on other areas of mutual knowledge and learning. So consider dealing with digital change by tearing up your digital strategy. Instead use digital tactics and tools to produce fit-for-purpose content, audience-focused research and a culture of honest collaboration. Build these into your wider mission and into the core of your organisation and you will be better ready for change.

Technology itself is cultural. New literacies and the role of the market and commercialization in shaping youth culture. With the advent of the Internet and the many forms of group that may be realized online, another dimension of groupness has become available. Online groups, and the digital cultures that result provide new venues for groups and communities to be created and maintained. Online groups require us to revisit questions of identity, membership and community and the ways in which individuals become members of such groups, and how their messages contribute to the group’s identity and culture. Matters of convention and behavioural norms in this environment are critical. Issues of gatekeeping are also important in this setting and include consideration of the ways in which certain individuals achieve leadership status in their groups and influence the development and evolution of the group over time.

CONCLUSION

While the society has been bothered by the threats of “piracy,” and lawsuits by the recording and film industries, the enforcement of copyright law in the digital world has quietly shifted from regulating copying to regulating the design of technology. Lawmakers and commercial interests are pursuing what might be called a technical solution: instead of specifying what can and cannot be done legally with a copyrighted work, this new approach calls for the strategic use of encryption technologies to build standards of copyright directly into digital devices so that some uses are possible and others rendered impossible. Cultural policy are as important as the consequences of the revolutionary structural change introduced by digital technology and the Internet.

Digital technology and the Internet have created the most powerful instrument for the democratization of knowledge since the invention of moveable type for printing. They have introduced perfect fidelity and near zero-marginal costs in the reproduction of cultural works and an unprecedented capacity to distribute those works around the globe at instantaneous speeds and, again, near zero-marginal costs.

The enticing promise of universal access to cultural works has come with a process of creative destruction that has shaken the foundations of the business models of our pre-digital creative industries. Underlying this process of change is a fundamental question for society. It is the central question of copyright policy. How can society make cultural works available to the widest possible public at affordable prices while, at the same time, assuring a dignified economic existence to creators and performers and the business associates? It is a question that implies a series of balances: between availability, on the one hand, and control of the distribution of works as a means of extracting value, on the other hand; between consumers and producers; between the interests of society and those of the individual creators.

Digital technology and the Internet have had, and will continue to have, a radical impact on those balances. They have given a technological advantage to one side of the balance, the side of free availability, the consumer, social enjoyment and short-term gratification. History shows that it is an impossible task to reverse technological advantage and the change that it produces. Rather than resist it, we need to accept the inevitability of technological change and to seek an intelligent engagement with it. There is, in any case, no other choice – either the copyright system adapts to the natural advantage that has evolved or it will perish.

Adaptation in this instance requires a passive and reactive approach to copyright and the digital revolution entails the major risk that policy outcomes will be determined by a process of the survival of the fittest business model. The fittest business model may turn out to be the one that achieves or respects the right social balances in cultural policy. It may also, however, turn out not to respect those balances. The balances should not be left to the chances of technological possibility and business evolution. Rather, they should be established through a conscious policy response.

Copyright enforcement necessarily entails monitoring of all computer communications, and therefore the destruction of online privacy.

Laws exist to be enforced, otherwise they cease to have any power. The logical conclusion of enforcing copyright law is perfect monitoring of all systems that could potentially copy any copyrighted information. As earlier mentioned, computers are particularly good at making copies and the Internet is particularly good at distributing copies. Therefore, any enforcement of current copyright law would require surveillance of anything that goes in or out of a computer — a total monitoring of network communications.

I believe that we need more simplicity in copyright. Copyright is complicated and complex, reflecting the successive waves of technological development in the media of creative expression from printing through to digital technology, and the business responses to those different media.

When it was invented, copyright seemed like a relatively benign legal instrument. Today, however, the implications of preventing copying of certain materials are downright insidious. What begins as a measure ostensibly for the public good instead leads to profound negative consequences for society and humanity.

2 Intellectual Property Code, Section 172.1.

3 Intellectual Property Code, Section 173.1.

4 Intellectual Property Code, Section 173.2.

5Joaquin v. Drilon, G.R. No. 108946, Jan. 28, 1999.

6 Intellectual Property Code, Section 176.

7 Marshall, Andrew. “There’s a Critical Difference Between Creativity and Innovation.” Business Insider, April 10, 2013. Web. October 17, 2013. https://www.businessinsider.com/difference-between-creativity-and-innovation-2013-4#ixx2hwFPhPib.

10Cavna, Michael. “STEVE JOBS: His 10 Best Quotes about art and creativity.” Washington Post, October 6, 2011. Web. October 17, 2013. http://www.washingtonpost.com/blogs/comic-riffs/post/steve-jobs-his-10-best-quotes-about-art-and-creativity/2011/10/06/gIQAc0ZARL_blog.html.

11 Ibid.

12 Ibid.

14 “Copyright Extension Stifles Creativity, Lawyer Tells Court.” The New York Times. 6 Oct. 200: C3

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One thought on “Law that Limits Creativity

  1. Pingback: Students’ Take: Contacts viz RA 10173, Competing advertising in sponsored events, and Direction of Copyright Reform | Berne Guerrero

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