Addressing Conflicts Between The Intellectual Property Code and the Freedom of Expression

A person’s right to express himself is as much a social construct as it is a legal one. It is a social construct in the sense that expression stems from a person’s internal being, and his ability to communicate and to act out his thoughts in order to reach out to others; and at the same time, a legal one, since it is an aspect of the human experience which is explicitly regulated by law. The fact that laws in general are meant to regulate the social facets of human life, however, provides a certain conflict between the two, as it seems that in imposing the former, the latter may become restrained, and its full extent may not be actualized.

In today’s highly technologically-immersed world, the most mainstream means of expressing oneself is undeniably through the use of social media. Aptly assigned, then, for our final paper / blog entry, is the following issue: “Does the current setup of the Intellectual Property Code stifle your behaviour (expression) in Social Media? If so, how do you resolve that?” To address this issue, I try to find out which parts of RA 8293, as amended, are seemingly in conflict with a person’s right to the freedom of expression, and propose recommendations therefor.

  • Behavior and Expression in Social Media

Since the emergence of social media, it has become one of the fastest-growing avenues for self-expression and self-determination. It has since then transcended traditional tri-media (print, radio, and television), and has established itself as the all-inclusive fourth form of mass media, encompassing within its wide range of functionality not only all the usages of the aforesaid traditional forms of media, but setting forth and further improving one critical aspect that sets it apart from the other three: the intertwining communications and interconnections system it provides not only to one side of the communication model, but to all participants thereto. This aspect of social media has given rise to a certain self-sustaining phenomenon unique to it: the proliferation of user-generated content, which is mostly the production and communication of original works, the modification of such works, and its re-transmission into the same social media circle thereafter. For the purposes of our discussion, we shall refer to this phenomenon as the modification-retransmission system, which essentially defines the critical act which sustains the user-generated content set-up.

For an ordinary individual, his behavior toward the traditional tri-media platforms would be limited merely to consumption, and sometimes, if the system employed so provides, generation of feedback. The communication model is restricted only to a one-to-many situation, wherein the consumer’s sole communication partner is the content generator. There is no means for him to communicate with other consumers, and no system in place to allow him to establish for himself a similar one-to-many communication model with other consumers with him as the content generator (unless of course he avails of any of the services of the three traditional forms media aforementioned, but at his own cost).

However, because of the emergence of social media platforms, the mere consumer has become empowered, and has been given an avenue to exercise his freedom of expression. Through social media, he is able to establish not only a one-to-many communication model, but rather a many-to-many communication model with other consumers and content generators alike. The modification-retransmission system allows whatever content originally created by one user to be modified and/or retransmitted by the next, to no foreseeable end or restriction, barring any legal repercussions. This functionality of social media platforms has allowed the user to break free from being merely an end-consumer, and become a content generator himself.

Furthermore, a salient part this system is the allowance of community sharing of works, and the unadulterated opportunities for further transmission of the works outside those communities. What was once merely confined to certain geographical regions may now be transmitted through social media to reach practically any place in the world. It has the elitist nature of some cultures, and has allowed difference practices and beliefs to mingle and bleed-through. Disregarding any applicable law, the potential of social media platforms for interconnection and transmission of expression through such interconnections is extensive and almost immeasurable.

However, as with any aspect of human life, laws are in place to regulate and protect our rights from possible abuse. Generally, the purpose of the law is to provide for a reasonable interference against a person’s rights, so as to protect not only him, but all parties which may possibly become involved or affected, and their respective rights. Taken in to context, an ordinary person’s behavior in and exercise of expression through social media may be curtailed in order to protect and balance the rights of all parties involved. The essential thing to know here then is whether the actual use by social media users, as discussed in the preceding paragraphs are compatible with the allowable usage under the Intellectual Property Law, as amended,  specifically regarding the kinds of protection it accords to copyright holders, and the acts it consequently prohibits others from exercising.

  • Behavior and Expression under the intellectual Property Code

Under RA 8293, three specific umbrella rights are protected: patents, marks, and copyright. Generally speaking, all these rights pertain to subjects which may be considered in a broad sense as forms of expression, but it is only copyright which explicitly identifies “expression” as one of its elements[1]. Moreover, put in the context of social media and its more typical usage, the expressions as herein mentioned would more likely pertain to artistic and literary works, which are subjects covered by the law on copyright[2].

  • Expression under the Law on Copyright

No exact definition of the term “expression” is provided under the law. It may be culled from its provisions, however, that what the law intends to protect are original literary, scholarly, scientific, and artistic works[3], in general, as well as derivatives of such original works[4]. Should there be a work created that falls outside of any of the four classifications aforementioned, or falls within the coverage of Section 175[5], then the same would not be protected under copyright. Nevertheless, the classifications are so broad that almost all kinds of expressions could be covered, especially under the term “artistic”, which, even discounting the lack of specific delimitations set by the law, is already a very subjective, thus difficult, area of human experience to define. And given the typical use of social media today, as discussed in the prior sections, such acts performed and works shared by users through social media platforms would most likely fall within this blanket term of “literary and artistic” works.

  • Kinds of Protection Accorded

Be that as it may, the fact that a work is eligible for protection does not automatically mean absolute protection. The law accords two sets of rights to a copyright holder: Economic rights under Section 177 (and the corresponding Neighboring Rights for Performers, Producers of Sound Recordings, and Broadcasting Organizations[6]), and Moral rights, under Section 193. The former essentially reserves unto the copyright owner the right to produce, alter, exploit, and disseminate his work, to the exclusion of all others[7], while the latter pertains more to his rights of paternity and attribution for works originated by him, and non-attribution for works he did not create, or for distorted versions of his work as adapted by others[8]. Acts outside those rights accorded to him are not covered by his copyright, and may thus be performed by others without violation of the law.

With respect to moral rights, there is no argument, legal or otherwise, that the originator of a work should be credited for creatively bringing into being something which, in one way or another, ultimately contributes to the self-determination and self-actualization of a certain society. It is a civil right which flows from the constitutional freedom of expression, that is, to be free to express oneself without prior censure, or fear thereof, and be thusly properly credited for such an expression. The issue lies however, with the extent of the economic rights granted to right holders, and the manner through which the law protects such rights.

  • Protection Accorded by Economic Rights

Section 177 provides for seven so-called economic rights, which can be summed in the following manner: the right holder, generally the originator or the author of the work, is entitled to the exclusive exercise of the right to reproduce his work, the right to transform his work or make alternations thereto, the right to the first public distribution of the work and other subsequent communications of the work to the public, the right to perform the work to the public, and most specially, the right to derive profit from the work. It may even be argued that the exact point of providing for these economic rights is so that the right holder has, for a certain period of time, exclusive enjoyment of all and any pecuniary interest in the work. This is vastly different from the protection accorded by the moral rights also vested upon him; while the latter pertains to a civil right to paternity and attribution, or non-attribution as the case may be, the former protects the property rights of the right holder, and prevents others from encroaching thereupon without the right holder’s express consent, or that of the governing law.

  • Exclusive Reproduction, Transformation, and Performance

Of particular notice is the right to the exclusive reproduction, transformation, performance, and communication of the work to the public. While the other rights under Section 177 protect the holder against acts which directly infringe upon his enjoyment of the pecuniary benefits of his copyright (as in the first public communication and distribution of the work, or substantial portions thereof, without his authority, thus depriving him of the opportunity to do so for himself, and removing from his reach certain parts of the market which he could have capitalized upon, had the infringing act not been committed), the four aforesaid acts cannot be conclusively said to automatically deprive him of his pecuniary interests, as they may be performed without denying him the profit he might make from the said market share. In fact, even the law itself recognizes certain exceptions to the exclusivity of the exercise of these rights, as embodied in Chapter VIII[9]. For the purposes of this paper however, and as delimited by the available functions and uses of social media, we limit our discussion to the reproduction, transformation, and transmission of copyrighted material.

  • Limitations of Copyright

Section 184 provides a list of acts, which although are prima facie contrary to the economic rights discussed in the previous section, do not, under the law, infringe upon the rights of the holder[10]. It must be said however that the list is exclusive, and as such, acts which are not therein explicitly included are deemed to be infringing acts, no matter how similar in characteristics or elements.

Of particular interest are the following: (b), which allows the use of quotations, as compatible with Section 185; (c), which limits its application to releases made through mass media for the purpose of giving information not otherwise expressly reserved; and (d), which limits its application to reporting of current events. It seems that under the law, reproduction of copyrighted material for the sole purpose of non-commercial news reporting or information dissemination, when such information is imbibed with public interest and has not been expressly reserved, is the only exception allowed, and even then, provided that there is attribution to the source. It gives no room for other non-commercial acts which may be premised on other purposes; and even assuming arguendo that these provisions are sufficient limitations on copyright for acts constituting reproduction and further communication of the work to the public, it fails to cover one behavior which proliferates in the realm of social media, and might even be considered to be its life-blood: the modification-retransmission system, which was discussed in the prior sections.

  • Actual Use vs. Allowable Use – Copyright Restricts Expression

A comparison of the foregoing discussions between the unmitigated actual exercise of the freedom of expression through social media, and the allowable use of the same, in light of the law on copyright clearly shows that the latter does indeed curtail the former. By comprehensively granting to a specific person the exclusivity of exercising the so-called economic rights and neighboring rights, it effectively prohibits others from utilizing a copyrighted work, even though such use would essentially not be incompatible with the right holder’s pecuniary interests. Even taking into consideration the limitations on copyright, the effect is the same, as the limitations are very few, and cover only a very limited range of acts. The fluidity and ephemeral nature of social media, which has become the point of such platforms, and of the expressions made therein through the so-dubbed modification-retransmission system, become greatly restrained, caused greatly by the uncertainty of users on whether the content and the manner they want to communicate such content to others may be legally allowed, in light of the limitations imposed by the law.

Given that there indeed exists a curtailment of the right to exercise the freedom of expression, the question now becomes whether the same is still within the reasonable limits set by the constitution.

  • The Freedom of Expression under the Constitution

The protection granted specifically for the freedom of expression is a novel one under the 1987 Constitution. Previous constitutions did not provide the phrase “… of expression”, and simply clumped the protection for other kinds of expressions under the freedom of speech and of the press. The amendment, however, now provides a broader formula inclusive of all forms of expression[11], and should cover those communicated through social media platforms, which do not strictly fall within the traditional notion of the freedom of speech and of the press.

  • What constitutes “Expression”

The freedom of expression has been said to embrace a number of cognate rights, including but not limited to the freedom of speech and of the press, the freedom of assembly, the freedom of petition, freedom of religion, the right of association, the right to access to information on matters of public concern, and the right not to be detained solely by reason of one’s political beliefs and aspirations. The underlying concept is that its aim is to insure the free and effective communication of ideas from mind to mind,[12] which basic for the growth of a free and democratic society. Traditionally, the freedom of expression is conceived to have two elements: the freedom from previous restraint, and the freedom from subsequent punishment.

  • Previous Restraint

The idea of imposing a measure of restraint previous to the communication of the expression or work, or in other words, prior censorship, is one which is contradictory to the concept and nature of the freedom of expression. It is precisely the point of expression to promote the free flow of ideas, and the mitigation posed by a prior censorship would be an unlawful curtailment of the same. As Cruz puts it, “such authority is anathema in a free society,”[13] the authority herein referring not only to rules and regulations which may be imposed by executive and administrative bodies, but even to statutes passed by the legislative. It is the requirement of the law for an author to submit his work prior to publication so that the State may decide whether such work may or may not be published which is considered contrary to the freedom herein discussed, and is thus, unconstitutional.

Consideration must be given, however, to the numerous cases decided by our Supreme Court, wherein the freedom from previous restraint was not strictly observed, in light of supervening circumstances specific to each case, and/or the existence of a public policy or of public interest, which tempered the hand of the Court.

  • Subsequent Punishment

While there is [supposed to be] absolute prohibition against prior censorship, the same cannot be said for subsequent punishment. Admittedly, no person would freely engage in the expression of his ideas, even without the existence of prior censorship, if he were in fear of being punished after the fact. But as succinctly put by Bernas, citing Blackstone, “Every free man has an undoubted right to lay what sentiments he please before the public, … but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.[14]” The freedom from subsequent punishment is not as absolute as the freedom from previous restraint, and should be qualified by tests discussed in the following section.

  • Delimitations

The State may rightfully impose limitations curtailing the freedom of expression, under the exercise of police power, or in pursuance to legitimate public policy or public interest, which as mentioned in the preceding paragraph, includes considerations of impropriety, mischief, or illegality; additionally, good morals, good customs, and public order. In determining whether the imposed limitations are constitutional, three tests have evolved throughout the years, and are discussed in the subsequent sections of this paper.

  • The Clear and Present Danger Rule

Under this test, the determining question is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the State has a right to prevent. It becomes a question of proximity and degree, wherein the character of every act depends upon the circumstances in which it is done[15]. For the test to be applicable, the danger must be clear, or must present a causal connection with the danger of the substantive evil arising from the utterance questioned; and must also be present, or must identify with an imminent and immediate danger, which must not only be probable, but very like inevitable[16]. Given the parameters of this rule, it would seem that it finds no application with the subject matter of our discussion, since it concerned mainly with preventing expressions from bringing about the danger sought to be prevented; whilst in our discussion, it is not the effect of the expressions which is the issue, but the manner by and through which they are reproduced, modified, and/or thereafter retransmitted.

  • The Dangerous Tendency Rule

On the other hand, the Dangerous Tendency test focuses more on determining whether the words uttered creates a dangerous tendency which the State has a right to prevent. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent[17]. While this test is inherently different from the previous, as it actually leans more in favor of authority rather than liberty, it similarly finds no application in our discussion, as it still concerns the censorship of expressions thought to bring about the danger being sought to be protected by legislation.

  • The Balancing of Interests Test

The applicable test is the Balancing of Interests Test, as applied in the case of American Communications Association v. Douds[18]. In that case, the Court had the opportunity to utilize a test different from the two foregoing, taking into consideration the following circumstances: “… when a particular conduct is regulated in the interest f public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the court is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented… to weigh the circumstances, and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights…” Therefore, in determining whether there is curtailment of the freedom of expression with respect to certain provisions of the law on copyright, the solution is to balance the rights being pitted against one another – in this case, on one hand, the civil rights flowing from the constitutional right of a person to exercise the freedom of expression, and on the other, the protection accorded to a person’s property rights, which includes copyright in its sphere of application.

  • Application to Restricting Provisions

What the law on copyright, specifically the provisions discussed a priori, protects are ultimately property rights, whereas the freedom of expression protects civil rights. In applying the test in the foregoing section, focus is given in weighing the two warring rights against each other, with preference given to the free enjoyment of the right to express oneself, absent any reasonable showing of any reason to rule in favor of regulation. In this case, the freedom of expression must be upheld, since civil rights enjoy preference over property rights in the universally accepted principle of the hierarchy of rights. This is not to say however, that the provisions in question are inherently unconstitutional, or are unconstitutional per se; rather, the proper interpretation should be this: each case must be resolved based on the specific circumstances therein, that is, in the absence of any applicable limitations set forth in Chapter VIII of the law, and provided the acts committed do not in any way interfere against the economic interests of the right holder, and/or the moral rights of the originator, and are not against good morals, public order, or public policy, the court must be guided by the hierarchy of rights, barring any other overriding state interest.

  • Other Recommendations

Recommendations on how to interpret the seemingly conflicting provisions of law and the Constitution aside, there are other ways to guarantee both the exercise of the freedom of expression, and the protection of the property rights of the right holder.

  • Linking: A simple solution to the issue of Re-transmission

In his paper[19], Garon suggests a very simple solution to avoid the issue presented above. He posits that our accustomed behavior of unwittingly and indiscriminately re-transmitting content we see online on an as-is basis to others in our social media circle, without giving thought to the consequences of using words, images, sounds, and other forms of expression, and the lack of permission of the originator is what basically gets us into trouble. However, by simply transmitting the link or URL of the material we want to share, instead the material itself, we are then able to avoid violations of any copyright provisions, as copyright apparently does not attach to link addresses, as these are considered mere facts and ideas within the work.[20]

  • Amendment of IP Code by adding Social Media related provisions

It is important to note that the current Intellectual Property Code was originally drafted prior to the emergence and proliferation of social media platforms. It took effect on January 1, 1998, and was amended in August 6, 2001 by Republic Act 9105, and again on June 6, 2008 by Republic Act 9602, and further on February 28, 2013 by Republic Act 10372. And in the past 16, almost 17 years of its existence, and even taking into considerations the amendments thereto, no provisions have been added which specifically target the fourth classification of mass media. Contextually speaking, the provisions of the act were designed by legislators generally with the traditional tri-media in mind, and while most provisions of the law are coached in sufficiently broad enough terms to cover the emergence of social media, there are still certain facets of it which are inherently different from tri-media, and are thus outside the protection and regulation of the law.

Argument could be made that with the rate technology is further evolving, the social media we know today may not be the same in the next 10, maybe even five years, and as such, trying to address this seemingly transient issue now might result in a form of short-sightedness in the legislation. In such a case, it might probably be more prudent to wait for the emergence of new international treaties to which Philippines would be inevitably a signatory, and thereafter craft the appropriate law. But on the other hand, while legislators play the waiting game, violations of both copyright and related rights, as well as the freedom of expression, are being committed, and the public is being opened to vulnerabilities that would otherwise be addressed by statute. In the interest of protecting all rights available to the people, legislators should look into the possibility of incorporating the newest form of mass media even without international pressure, as this platform is no longer being used merely for personal expression and gratification, but has already sufficiently evolved to encompass all aspects of human life, most specially business and commerce.

[1] Republic Act 8293, Sec. 172.2 provides: “Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.”

[2] Sec. 172.1: “Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations in the literary and artistic domain protected from the moment of their creation…”

[3] Sec. 172.1 (o)

[4] Sec. 173.1. The following derivative works shall also be protected by copyright:

  • Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and
  • 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. (Sec. 2, [P] and [Q], P.D. No. 49)

[5] Sec. 175: “Unprotected Subject Matter. – Notwithstanding the provisions of Sections 172 and 173, no protection shall extend, under this law, to any idea, procedure, system, method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts having the character of mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof .”

[6] Covered by Chapter XII of RA 8293

[7] Section 177. Copyright or Economic Rights. – Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

177.1.   Reproduction of the work or substantial portion of the work;

177.2.   Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;

177.3.   The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;

177.4.   Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)

177.5.   Public display of the original or a copy of the work;

177.6.   Public performance of the work; and

177.7.   Other communication to the public of the work. (Sec. 5, P. D. No. 49a)

[8] Section 193. Scope of Moral Rights. – The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right:

193.1.   To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;

193.2.   To make any alterations of his work prior to, or to withhold it from publication;

193.3.   To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and

193.4.   To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. (Sec. 34, P.D. No. 49)

[9] Entitled, “Limitations on Copyright”, covering Sec. 184 to 190, specifically Sec. 184-185 for the purposes of our discussion.

[10] Sec. 184.: “Limitations on Copyright. – 184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:

(a) The recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society; (Sec. 10(1), P.D. No. 49)

(b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned; (Sec. 11, third par., P.D. No. 49)

(c) The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated; (Sec. 11, P.D. No. 49)

(d) The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose; (Sec. 12, P.D. No. 49)

(e) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned;

(f) The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work;

(g) The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;

(h) 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 and is compatible with fair use;

(i) The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations; (n)

(j) Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that the original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and

(k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.

(l) The reproduction or distribution of published articles or materials in a specialized format exclusively for

the use of the blind, visually- and reading-impaired persons: Provided, That such copies and distribution shall

be made on a nonprofit basis and shall indicate the copyright owner and the date of the original publication.

[§11-RA10372[2013].adwss] 32

[11] Bernas, S. J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 231 (2009).

[12] Cruz, I. A., Constitutional Law, 199 (2007)

[13] Ibid.

[14] Bernas, S. J., supra, 232 (2009)

[15] Schenk v. U.S., 249 U.S. 97

[16] Gonzales v. COMELEC, 27 SCRA 835

[17] Cabansag v. Fernandez, 102 Phil. 152

[18] 339 U.S. 282

[19] Garon, Jon, Social Media in the Workplace – From Constitutional to Intellectual Property Rights (November 1, 2013). Available at SSRN: or Retrieved on November 26, 2014

[20] Garon, supra,citing Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990)

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