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Creative Industries Consultant | IP Lawyer | Producer | Musician | Human Rights Advocate | Writer

Monday, July 29, 2013

How to Make a Living from Music in the Philippines



Last week, I participated in a WIPO-IPOPHL seminar on 'How to Make a Living from Music'.

The key lecturer was Mr. David Stopps, author of the book with the same name. Stopps has had a long experience in music management in the UK, having worked with some of very best acts in the world like U2, the Police and David Bowie among many others.

What Stopps discussed were both familiar and new. Conceptually, I had been trained to understand copyright and collective management to the closest detail. But Stopps was able drive the nail home by talking about his real life experiences and how he witnessed independent artists earn income in so many different ways, as long as intellectual property was respected and complied with. 

Stopps discussed how music is placed in advertisements, films, TV shows, video games, apps and others, earning royalty income for the artist and the producer. He also talked about making derivate income from selling merchandise and product placement during shows. 

This was very interesting stuff that reminded me of how much time and sacrifice we need to put in to elevate the Philippine music business up to that level. 




Mark Thursday Alciso of the Filipino Society of Composers, Authors and Publishers, Inc. (FILSCAP) talked about collective management of copyright and the challenges faced, including the unwillingness of businesses to pay license fees and the confusion caused by having several different organizations collect license fees for different rights over the same music.

Royalty collection also gets harder when one has to deal with large networks or organizations that have a ton of leverage. Artists in the Philippines almost never get paid for the use of their music in films, TV shows or advertisement, a common practice in more developed economies. What ought to be a significant source of income is reduced to zero and a shallow promise of 'artist exposure'... something they would get anyway whether or not they're paid.

Many other concerns were raised like the massive competition we get from foreign acts, the lack of radio airplay and the proliferation of substandard music in the mass market. 




In the end, we find ourselves back where we started. If we want this country to be a source of and a hub for great music, we need to make real changes in our understanding and respect for intellectual property and business. No more pushovers. No more compromise. As artists, we mean business.

_____


For those who missed the seminar, you may still benefit from David Stopp's experience by reading his book, published by the World Intellectual Property Organization (WIPO):

Download the PDF version of David's book from the WIPO Website


Thursday, September 20, 2012

Pinoy Blogfest 3.0


Saturday, August 18, 2012

Plagiarism & Copyright Infringement: Do They Apply to Legislative Speeches?


During the legislative debates on the Reproductive Health Bill in the Philippines, a certain Senator delivered a speech containing passages lifted from an American health blog.

The blogger found out about this and accused the Senator and his staff of plagiarism and copyright infringement.

So what is plagiarism? What is copyright infringement? Allow me to repost an old guide for you here: 


Plagiarism is the use of another person's work without proper citation or credit. Copyright infringement, on the other hand, is the use of another person's copyright-protected work without permission.

In this particular case, the Senator and his staff failed to do both. They did not cite their sources and they did not obtain permission to use the blogger's original post, which is still protected by copyright. 

So does the Senator have a good excuse for doing this?

Under the Intellectual Property Code of the Philippines (Republic Act No. 8293), the best defense against copyright infringement is Fair Use: 

Section 185. Fair Use of a Copyrighted Work. - 185.1. The 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. 
xxx 
In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include: 
(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work.
On the count of copyright infringement, I believe the Senator was able to exercise fair use when he included the blogger's work in his speech because:

a) The use was for a public purpose; 
b) the nature of the copyrighted work consisted of scientific data and analyses relevant to the public interest; 
c) the amount of the work used may be significant but by nature data was taken as a whole; and
d) There was no apparent damage to the business or reputation of the blogger.

Having said that, the Senator still stands guilty of plagiarism. He failed to cite his sources and breached a very simple academic and professional precept. 

But who can punish the Senator? Plagiarism, being a professional and ethical offense is beyond the powers of any civil or criminal court in the Philippines. 

The only bodies that may be able to punish the Senator for plagiarism are: 
1) The Senate (can discipline its members); 
2) His Alma Mater (may revoke his degree); and
3) Any professional organization that he is a part of (may revoke his membership or discipline him). 

Outside of these bodies, the public can only respond through media and through their 2013 votes (the Senator is up for re-election) if they feel strongly enough about the plagiarism issue.

In any case, this is not so much a legal matter as it is a professional one. There is great shame in failing to acknowledge your sources in professional and academic circles. In legislative bodies, however, I know that this is not the first time this has happened. But for some reason, people are taking notice this time. 

Optimistically, this is can be seen as an increased demand for government accountability.

Pessimistically, this is just another lobbying tactic to steer attention away from the real debate.

Finally, this whole issue has nothing to do with the medium being used. Works on Internet are NOT automatically part of the public domain, contrary to popular misunderstanding. All original works are protected by copyright in whatever shape or form they take, subject to very limited exceptions. Remember that the public domain is composed of works with expired copyrights and those that were never protected by copyright. Thus, it consists mostly of very old works of art and literature. Not blog entries.


Friday, August 3, 2012

Is Human Rights Your Business?


"For the past 33 years, I have looked in the mirror every morning and asked myself: 'If today were the last day of my life, would I want to do what I am about to do today?' And whenever the answer has been 'No' for too many days in a row, I know I need to change something." 
- Steve Jobs


I remember back in law school when a commercial law professor told us that a corporation had no obligation other than to make profit for its shareholders. I was not persuaded then and I strongly oppose the view now.

Profitability might be measured by dollars and cents but getting to the bottom line is more complicated that that. A company may make millions in a few short years while depleting the resources necessary for its business operations, grabbing a quick buck while leaving communities damaged forever. Industries like mining, gas and lumber have learned this the hard way and few corrections have been made thus far. But if you were to look deeper into the future, you may understand how protecting and preserving communities and their environment will yield long-term, sustainable and meaningful wealth for the company and all its stakeholders (not just its stockholders).

So why do businesses need to protect human rights? Professor John Ruggie of Harvard’s Kennedy School of Government laid down a deceptively simple answer known as the ‘Protect, Respect and Remedy Framework’. This was adopted by the UN Human Rights Council as its ‘Guiding Principles on Business and Human Rights’. The framework highlights three things:
  1. States’ existing obligations to respect, protect and fulfill human rights and fundamental freedoms; 
  2. The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights;
  3. The need for rights and obligations to be matched to appropriate and effective remedies when breached.   
The elegance of this framework is that it creates no new laws, rights or obligations. It simply combines existing international law and shared general principles to guide us on how to conduct business responsibly.

Forget about Corporate Social Responsibility (CSR) programs, foundations and charities. These are all good and noble but they are always voluntary. Even worse, they have sometimes been used merely as vehicles for tax cuts and good publicity. CSR programs have been abused as a way for the left corporate hand to give publicly while the right hand takes away much more in private. Money spent giving scholarships to a few poor children might have been taken from funds withheld from the company’s laborers, denying them a fair living wage.

The Ruggie Principles hold businesses accountable for all its activities. It does not care about how you spend corporate money for philanthropy but how the business makes money in the first place. With what I like to call ‘Due Diligence Plus’, one is able to monitor basic human rights concerns like labor practices of a company or the environmental impact caused by its business operations. These factors are not limited by local laws but should conform to international standards of human rights protection. 

Now, this is not voluntary.

These principles have also been echoed under the ‘Guidelines for Multinational Enterprises’ of the Organization for Economic Cooperation and Development (OECD), in the human rights chapter of the ‘Guidance on Social Responsibility’ from the International Organization for Standardization (ISO 26000), and in the revised ‘Sustainability Framework and Performance Standards’ of the International Finance Corporation (IFC) and are quickly becoming the international gold standard for responsible business.

Businesses are powerful movers of society. They can influence policies, win elections and destroy regimes. Businesses create wealth that can either build great opportunities or attract great evil. This time, we must hold them truly accountable under the toughest human rights standards. 

The quicker we learn these principles and adopt them, the quicker we eliminate child labor, human trafficking, war profiteering, environmental damage, displacement of local communities, corruption and unbridled greed. These things are stoppable. I believe this generation has an opportunity to do so.






Friday, February 24, 2012

Geographical Indications (GI): Tayabas Lambanog



Marketed as "Philippine Vodka", the VuQo brand lambanog has made it to Hollywood: 
http://www.abs-cbnnews.com/lifestyle/02/24/12/filipino-vodka-makes-it-oscar-gift-bags

Priced at $24 (about P1,032) a bottle in California, very few Filipinos will get to enjoy this beautifully assembled product in its final form. But in essence, we Filipinos of legal age all know this to be the Tagalog lambanog or more specifically, the Tayabas Lambanog.

Lambanog is a powerful liquor created from the fermented nectar of the coconut flower. This nectar is then distilled and collected as Lambanog. The final product is a clear white liquid containing around 20% to 40% alcohol (40 to 80 proof) and is drank on its own or mixed with tropical fruit juices like mango, calamansi, lime, orange or pineapple.

So how did this P200 per gallon power liquor turn into a luxury? Simple. Proper intellectual property management and marketing. 

First, the VuQo brand was developed and registered as a trademark. This allows the producer to have exclusive intellectual property rights over the brand and market it freely without the fear counterfeits.

Second, the producer packaged the liquor with elegantly-designed, world-class frosted bottles. This adds class and mystique to an otherwise unromantic ordinary drink. The bottles themselves are protected by industrial design intellectual property rights. 

Third, the producer highlighted the Philippine origin of the liquor, making it exotic, unusual and exciting to the American market. The indication of origin itself may be used as a brand and helps improve the marketability of a product as authentic.

Finally, the story of how lambanog is made and the cultural rituals associated with the drink is spread to promote the authenticity and tradition attached to the drink. These traditional stories become part of the product and part of the experience. Traditional knowledge over the creation of the product, its history and rituals may be protected as intellectual property.

These strategies used helped transform this simple barrio drink into a young celebrity among the drinks of the world.

Back home, the Philippine government and private industries are working hard to set standardized practices for the production of lambanog. This way, we will be able to have the Tayabas Lambanog recognized as a Geographical Indication.

A Geographical Indication or GI is a collective brand like Champagne Wine (France), Praewa Silk (Thailand) or Idaho Potatoes (USA) that is commonly-used by producers to certify the authenticity of their product. An internationally accepted GI will help products fetch a higher price in the global market because the producers are subjected to strict product standards that guarantee quality. 

We hope to establish the Lambanog GI, among other Philippine GIs, in the world market and have our brand stand proudly alongside the Scotch Whisky and the Stolichnaya Vodka.

So we work hard to make this dream happen... but since it's a Friday night, allow me to down my first glass of triple-distilled Tayabas Lambanog with a little calamansi juice. Tagay na!




Friday, October 14, 2011

Healing Hilot: Protecting Indigenous Massage Techniques





The Dagdagay Hilot is an ancient massage technique that was developed by the indigenous cultural communities (ICCs) of Mountain Province in the Philippines. Here, the masseuse uses uniquely shaped sticks to massage the soles of the feet in order to stimulate blood circulation. This technique is often paired with the use of virgin coconut oil and other herbs. It is believed to be effective therapy for hypertension, hormonal imbalance, depression and stress.

Today, many health spas and massage establishments employ this technique as part of their services. Cropping up alongside them are schools or training facilities that offer to teach these techniques and issue certificates for successful students. Much money changes hands in this industry, yet there has been no reported benefit to the communities of Mountain Province from which these techniques were copied. This is also true for all other indigenous hilot techniques and the communities from which they originate.

Under the Indigenous Peoples Rights Act (IPRA), ICCs have the right to exercise ownership over their health practices, among other things.[1]

The law reads: “they shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations…”

Unfortunately, this provision presently treated as a mere declaratory statement and it will continue to be one up until the National Commission on Indigenous Peoples (NCIP) shall have properly defined and operationalized these 'special measures'.

A different provision of the law offers more clarity by saying that Community Intellectual Rights (CIRs) may not be taken without ‘Free Prior and Informed Consent (FPIC)’ or ‘in violation of their laws, traditions and customs’.[2]

These rights may be used as a basis for community ownership over a health practice like massage techniques. This community property may then be the subject of a contract for the use of the technique and its name. Franchising this knowledge and brand could be a good and steady source of revenue for a community for as long as there is a properly executed contract, compliant with the dual requirements of FPIC and conformity with the community’s laws, traditions and customs.

Schools and training facilities must also be subject to the quality standards set by the community’s master practitioners. Certificates issued will no longer simply be a result of x number of hours spent in class but an authentic stamp of approval by the communities themselves of the proper application of the technique.

Trademark law can be used to support this business model by registering certification marks that may be used authenticate spas, health establishments or schools that wish to use the community’s brand. 

A “DAGDAGAY” certified establishment assures the public of the quality and authenticity of the service being offered while everybody else is prohibited from using the brand or mark. Any violator will then be liable for both trademark infringement and violation of the provisions of IPRA.

This combination of protective measures under IPRA and the Intellectual Property Code can help create a system that would give life to the ideals set by IPRA to protect the cultural integrity of our ICCs and to help them maintain control over and benefit from their knowledge, systems and practices.

Perhaps someday we can enjoy our massages with real peace of mind, knowing that our patronage is helping our indigenous peoples in a very real way.





[1] Sec. 34. Right to Indigenous Knowledge Systems and Practices and to Develop own Sciences and Technologies- ICCs/IPs are entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights. They shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives of these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge of the properties of fauna and flora, oral traditions, literature, designs, and visual and performing arts.

[2] Sec. 32. Community Intellectual Rights. - ICCs/IPs have the right to practice and revitalize their own cultural traditions and customs. The State shall preserve, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation of their laws, traditions and customs. (emphasis supplied)