Wednesday, September 05, 2007

Philippines inmates’ videos and some questions on global IP rights

During the last few weeks some videos of a group of inmates from the Cebu Provincial Detention and Rehabilitation Centre in Philippines have been “dancing” around the net and today CNN reports on a new one. According to Byron Garcia, who developed the idea, dancing has improved dramatically inmate behaviour and the number of violent episodes has decreased substantially.

As you can observe here, the videos consist of large group of inmates performing choreographies of local and international artists that…what a minute! What about the copyright of those artists? Is the Philippines prison system paying royalties for public performance, derivative work, reproduction, distribution and a long list of things that is doing by using the music, filming the videos and posting them in Internet? Should it pay? Well, it can be argued that under Section 185 of the Philippines Intellectual Property Code "[t]he fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright" and it the fair use exception is evaluated taking into account several things, two of which are “[t]he purpose of the usage of the copyrighted material to be classified as fair use", […]and "[t]he effect(s) the copyrighted materials has or have on the potential market and the value the item has to enriching the item of which the copyrighted material is being classified as fair use”, and if the videos are understood as fulfilling a "similar purpose", it could be said that here the exception would apply due to the public goods purpose, the almost nil negative effect on the copyrighted materials market and the clear enrichment that such a materials enjoy by free marketing linking them to public goods (for those revenge-seeking that think that inmates should be locked away in cells, without entering into the discussion about the merits or morality of such action, is important to note that the inmates in the Cebu prison are still awaiting trial, some for more than five years). However, one needs to think what the situation would be in a different country where the doctrine of fair use is non-existent and where due to the imposition of TRIPS that happened in the 1990s, now been extended through TRIPS-Plus via free trade agreements, the permitted uses are limited to pay and listen in private (even getting to many friends in a party can be infringement by public performance). Should an activity that serves society be subject to the dictates of ever expanding IP rights to satisfy the greed of some record companies? (please, do not start with the “poor author and musician” because I think that it has been properly clarified that with the exception of when asking for stronger IP rights in Congress, the industry does not give a damn about them). Just another small example of why copyright in particular and IP in general need to be kept under a very tight control and not be subject to the desires of a couple of big associations…but the trend seems to be the opposite.

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