IT Law Journal

administrator January 14th, 2008

Ported License Modifications
by Michael Vernon Guerrero

This article documents the changes made to generate the Philippine set of Creative Commons licenses:

1. The modification in the general header disclaimer, “CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED. CREATIVE COMMONS ALSO DISCLAIMS LIABILITY FOR DAMAGES AND ASSUMES NO LEGAL RESPONSIBILITY RESULTING FROM ITS USE” is merely for style.
2. In the second paragraph of the license header, the phrase “TO THE EXTENT THIS LICENSE MAY BE CONSIDERED TO BE A CONTRACT,” was removed. The phrase was removed to avoid any doubt that the license can be considered as part of an entirely different class of documents besides those of contracts. The following points are made to support this position:
1. From where obligations arise: Article 1157 of the Philippine New Civil Code (Republic Act 386, approved 18 June 1949) provides that “Obligations arise from: (1) Law;(2) Contracts; (3) Quasi-contracts; (4) Acts or omissions punished by law (delicts); and (5) Quasi-delicts.” In light of the stipulations detailing the obligations of the licensee in the Creative Commons license, such obligations emanate under Article 1157 (2), RA 386, as provided above.
2. Requisites of a valid contract; Effect of absence of cause: Article 1318 of the Philippine New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) Cause of the obligation which is established. One of the focal point in determining whether the Creative Commons license, hence, is a valid contract lies in the existence of the third element “cause”. Article 1352 [of the New Civil Code] declares that contracts without cause, or with unlawful cause produce no effect whatsoever. Those contracts lack an essential element and they are not only voidable but void or inexistent pursuant to Article 1409, paragraph (2). (JLT Agro v. Balansag; GR 141882, 11 March 2005; citing PADILLA, CIVIL LAW, Vol. IV-A, 247-248 (1988). Ocejo, Perez and Co. v. Flores and Bas, 40 Phil. 921, Escutin v. Escutin, 60 Phil. 922.)
3. “Cause” or “consideration”: In [Philippine] jurisdiction, cause and consideration are used interchangeably (Footnote 28, Saguid v. Security Finance, GR 159467, 9 December 2005). As expressed in Gonzales v. Trinidad, 67 Phil. 682, consideration is “the why of the contracts, the essential reason which moves the contracting parties to enter into the contract.” (Villamor v. Court of Appeals, GR 97332, 10 October 1991)
4. Presumption of existence of cause/consideration: Under Article 1354 of the Philippine Civil Code, it is presumed that consideration exists and is lawful unless the debtor proves the contrary. (Saguid v. Security Finance, GR 159467, 9 December 2005; citing Nuguid v. Court of Appeals, GR 77423, 13 March 1989, 171 SCRA 213, 218) Moreover, under Section 3(r) of Rule 131 of the Rules of Court, it is presumed that there is a sufficient consideration for a contract. The presumption that a contract has sufficient consideration cannot be overthrown by a mere assertion that it has no consideration. (Saguid v. Security Finance, GR 159467, 9 December 2005; citing Fernandez v. Fernandez, G.R. No. 143256, 28 August 2001, 363 SCRA 811, 828.) To overcome the presumption of consideration, the alleged lack of consideration must be shown by preponderance of evidence. (Saguid v. Security Finance, GR 159467, 9 December 2005; citing Ong v. Ong, G.R. No. L-67888, 8 October 1985, 139 SCRA 133, 136.)
5. Cause/consideration not necessarily pecuniary in nature: The consideration need not be monetary but could consist of other things or undertakings. (Navotas Industrial Corp. v. Cruz, GR 159212, 12 September 2005; citing Bible Baptist Church v. Court of Appeals, G.R. No. 126454, 26 November 2004, 444 SCRA 399.)

Under Philippine jurisdiction, the CC license should be considered as a valid contract when the other two elements are also present, especially in light of the obligations being imposed against the licensee(s) in exchange for the permission to use the materials licensed by the licensor therein. This is a major change since the principle beyond its enforceability is distinct from other jurisdictions, where the license’s enforceability may emanate from the law itself.

3. The phrase “dramatization, translation, adaptation, abridgment, arrangement, and other alterations of a literary or artistic work,” replaced “translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work,” in the definition of “Adaptation.” This change was made to reconcile the definition with Section 173.1(1), Republic Act 8293.
4. The phrase “sound recording, audiovisual work, or fixation.” replaced “phonogram.” Sound recordings, audiovisual works, and fixations are defined under Sections 202.2 to 202.4 of Republic Act 8293.
5. The phrases “collection of literary, scholarly or artistic works, and a compilation of data and other materials,” and “which by reason of the selection or coordination or arrangement of their contents,” replaced “collection of literary or artistic works,” and “which, by reason of the selection and arrangement of their contents,” in the definition of “Collection.” This was made to reconcile the definition with Section 173.1(2), Republic Act 8293. This is a major change since “a compilation of data and other materials” is adjusted towards the purview of “Collection,” which is a derivative work, as provided by law and not under “Work,” which contemplates original work, under the unported licenses. It is also noteworthy that Version 3.0 uses the word “Collection” and no longer “Collective work,” as used in Versions 2.0 and 2.5. This removed the necessity to explain the distinction between a collection contemplated in Section 173.1(2) with collective works as defined in Section 171.2, Republic Act 8293. It appears that the term “collective work” in the Philippine jurisdiction is synonymous with “joint work” in other jurisdictions.
6. The sentence “Such distribution of the original and copies of the work or adaptation, which is the material object that is subject of copyright, does not imply a transfer or assignment of the copyright of such works or adaptation.” was added to the definition of “Distribute.” This change was made to emphasize Section 182, Republic Act 8293, which distinguishes the material object that is subject to copyright, and copyright itself.
7. The phrases “person, whether natural or juridical,” replaced “individual, individuals, entity or entities” in the definition of “Licensor.” This change was made so as to provide a legal context as to the parties involved in the agreement. The provisions on Persons are provided in Republic Act 386 (Philippine New Civil Code), Book I: Natural Person (Articles 40-43), Juridical Persons (Articles 44 to 47). This change was similarly replicated in the definition of “Original Author” where “natural person or persons” and “natural person” replaced “individual, individuals, entity or entities” and “individual or entity”, respectively; in the definition of “You” where “a person, whether natural or juridical,” replaced “an individual or entity”; in the first paragraph on the title on “Termination,” where “Persons, whether natural or juridical,” and “persons” replaced “Individuals or entities” and “individuals or entities” respectively.
8. The phrase “who or which owns the copyright of the work,” was added in the definition of “Licensor” to emphasize the requirement that the one who grants the license should have the right to do so. Ownership of copyright is elaborated under Section 178, Republic Act 8293.
9. The change in the word “offer(s)” to “offers” in the definition of “Licensor” is merely for style.
10. The phrase “especially for anonymous and pseudonymous works, the natural person or persons represented by the publisher” replaced “the publisher;” in the unported license, in light of Section 179, Republic Act 8293. This major change clarifies that publishers cannot be deemed to be the original authors for pseudonymous works but that publishers can represent them.
11. The phrase “to the extent applicable, “original author” may also include:” was added in the definition of “Original Author.” This change was made to reflect the distinction of the status of “authors” under the general provisions of the Philippine Intellectual Property Code (Sections 171-201, 213-220), and “performers, producers, and broadcasters” under the specific provisions on the rights of performers, producers of sound recordings and broadcasting organizations (Sections 202-212). Authorship and ownership are clearly distinguished in the general provisions to provide a clear relation between natural and juridical persons as to the exercise of the rights.
12. The phrase “(i) in the case of a performance, the actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works;” replaced “(i) in the case of a performance the actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore;” in the definition of “Original Author.” This change was made to align the stipulation with the definition of “Performers” as provided by Section 202.1, Republic Act 8293.
13. The phrase “(ii) in the case of a sound recording, audiovisual work, or fixation, the producer who is the person who takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representation of sounds;” replaced “(ii) in the case of a phonogram the producer being the person or legal entity who first fixes the sounds of a performance or other sounds;” in the definition of “Original Author.” This change was made to align he stipulation with the definition of “Producer of sound recording” as provided by Section 202.5, Republic Act 8293.
14. The phrase “(iii) in the case of broadcasts, the person, duly authorized to engage in broadcasting, that transmits the broadcast” replaced “(iii) in the case of broadcasts, the organization that transmits the broadcast” in the definition of “Original Author.” This change was made to align he stipulation with the definition of “Broadcasting organization” as provided by Section 202.8, Republic Act 8293.
15. The phrases “protected from the moment of its creation, and by the sole fact of its creation,” and “as well as of its content, quality and purpose,” were added in the definition of “Work.” This change reflected the wordings of Section 172.2, Republic Act 8293.
16. The enumeration “such as a book, pamphlet, article and other writings; a periodical and a newspaper; a letter; a lecture, sermon, address, dissertation prepared for oral delivery, whether or not reduced in writing or in any other material form, or other work of the same nature; a dramatic or dramatico-musical composition or work; a choreographic work or entertainment in dumb show; a musical composition with or without words; an audiovisual work and a cinematographic work, and a work produced by a process analogous to cinematography or any process for making audio-visual recordings; a work of drawing, painting, architecture, sculpture, engraving, lithography, or other works of art; a drawing or plastic work of a scientific or technical character; a photographic work including work produced by a process analogous to photography; a lantern slide; a pictorial illustration and advertisement; a model or design for works of art; an original ornamental design or model for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art; an illustration, map, plan, sketch, chart or three-dimensional work relative to geography, topography, architecture or science; a performance; a broadcast; a sound recording, audiovisual work, or fixation; and other literary, scholarly, scientific and artistic works” replaced that which were enumerated in the definition of “Work” in the unported license. This change was made to reflect the definition of “Works” in Section 172.1, Republic Act 8293, although the items in the law are in their plural form and not in the singular form. as adopted.
17. The phrases “public recitations, plays, dances, or otherwise to perform the work” and “either directly or by means of any device or process,” replaced “public recitations of the Work” and “by any means or process,” respectively; while “to publicly show of images in sequence and to make the sounds accompanying it audible; to make the recorded sounds audible at a place or at places where persons outside the normal circle of a family and that family’s closest social acquaintances are or can be present, irrespective of whether they are or can be present at the same place and at the same time, or at different places and/or at different times, and where the performance can be perceived without the need for communication;” was added, and “to perform the Work to the public by any means or process and the communication to the public of the performances of the Work, including by public digital performance;” was removed in the definition of “Publicly Perform.” This change was made to reconcile the stipulation with the definition of “Public Performance” in Section 171.6, the definition of “Communication to the public” in Section 171.3, and “Communication to the public of a performance or a sound recording” in Section 202.9, Republic Act 8293. Broadcasting, defined by Section 202.7, Republic Act 8293, was not modified.
18. The phrase “a copy or” was added, while the phrase “manner or form” replaced “means.” This change was made to indicate that even a single instance of making a copy constitutes “Reproduction” under Section 171.9, Republic Act 8293.
19. “Limitations on Copyright” replaced “Fair Dealing Rights” in Section 2. This change was made to reflect the applicability of the whole chapter on Limitations on Copyright (Sections 184-190 [with exception to Section 189 which covers computer programs]) and Section 212 (which relates to the Limitations on Protection on the rights of performers, producers of sound recordings, and broadcasters) of Republic Act 8293, and avoid the implication that only Section 185 or “Fair Use” applies.
20. The modification in the first words of all enumerations under “License Grants,” in Section 3, from “to” to “To” was made only for style.
21. The modification of “The original work was translated from English to Filipino,” from in “The original work was translated from English to Spanish,” one of the enumerations of the license grant was made only for style.
22. Reference to last section in the title “Miscellaneous” was removed in the last paragraph of the title on “License grants” as it no longer applies as a result of the porting process. The last paragraph of the title on “Miscellaneous,” which provided “The rights granted under, and the subject matter referenced, in this License were drafted utilizing the terminology of the Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979), the Rome Convention of 1961, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996 and the Universal Copyright Convention (as revised on July 24, 1971). These rights and subject matter take effect in the relevant jurisdiction in which the License terms are sought to be enforced according to the corresponding provisions of the implementation of those treaty provisions in the applicable national law. If the standard suite of rights granted under applicable copyright law includes additional rights not granted under this License, such additional rights are deemed to be included in the License; this License is not intended to restrict the license of any rights under applicable law.” was deleted inasmuch as the Philippine license is now more attuned to the terminology of Philippine Intellectual Property Code, Republic Act 8293.
23. The phrase “or (iii) either the unported Creative Commons license or a Creative Commons license for another jurisdiction (either this or a later license version) that contains the same License Elements as this License (e.g. Attribution-NonCommercial-ShareAlike 3.0 (Unported))” replaced “a Creative Commons jurisdiction license (either this or a later license version) that contains the same License Elements as this License (e.g., Attribution-NonCommercial-ShareAlike 3.0 US)” as suggested by Creative Commons International.
24. The example “Filipino translation of the Work by Original Author,” replaced “French translation of the Work by Original Author.” This change was made only for style.
25. Only the Voluntary Licensing Scheme was adopted since there is no compulsory licensing scheme (whether waivable or unwaivable) for copyright, unlike patents, available under Philippine law. The primary relevant provision as to the instance of collecting societies may be found under Section 183 (Designation of Society), Republic Act 8293, which provides that “The copyright owners or their heirs may designate a society of artists, writers or composers to enforce their economic rights and moral rights on their behalf.” The right of collecting societies to collect the royalties for and in behalf of the copyright owner in the Philippines is derived from the Deed of Assignment (usually for Public Performance Rights) made between the copyright owners and the collecting society, and not directly from a specific provision of law. Related to the exercise of rights on copyright, incidental to the assignment, is Section 180.1 (Rights of Assignee), which provides that “The copyright may be assigned in whole or in part. Within the scope of the assignment, the assignee is entitled to all the rights and remedies which the assignor had with respect to the copyright.” Considering thus that the designation of the collecting society is not in the nature of a power of attorney, but an assignment of rights; the copyright owner could not exercise the rights necessary to license his work outside the agreement made with the collecting society, without being contrary to the Deed of Assignment made with the Collecting Society. Under this scenario, if the copyright owner would license his work with CC license when in fact the rights necessary are already assigned to the Collecting Society, the “in case of doubt clause” would not operate within the sphere of ambiguities of the license terms but within the sphere of the ambiguity of the licensor’s capacity itself. Such ambiguity cannot be made to benefit the licensor who would initiate the ambiguity. The licensees’ interests remain to be material here since the license is to be taken as a contract in Philippine jurisdiction, in fact a contract of adhesion. Hence, ambiguity, under Philippine jurisprudence, is taken against the one formulating (here, adopting) the terms of the agreement. It cannot be made to prejudice the licensees who have taken the work, according to the terms provided, in good faith.
26. It is noteworthy that Section 4(f) includes an express moral rights acknowledgment, which was omitted by the previous versions 2.0 and 2.5 unported/generic licenses, which were based on US realities. Noting however that (1) the right to make Adaptations per se, in the Philippines, is not deemed a derogatory action prejudicial to the author’s honor and reputation; and (2) Section 4(f) could be read as if the licensee has the obligation “….to not distort, mutilate, modify or take any other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation” in every jurisdiction even if moral rights do not exist, as pointed out by CCI, there was more wisdom in adopting the more encompassing and neutral statement “Moral rights remain unaffected to the extent they are recognized and not waivable by applicable law,” as suggested by the CCI Director, as it considers fully Sections 193 and 195, Republic Act 8293.
27. The phrases “ACTUAL OR COMPENSATORY, INCIDENTAL, MORAL, NOMINAL, TEMPERATE OR MODERATE, LIQUIDATED, EXEMPLARY OR CORRECTIVE” replaced “SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY” in the title on “Limitation on Liability” in Section 6; while “actual or compensatory, incidental, moral, nominal, temperate or moderate, liquidated, exemplary or corrective damages” replaced “general, special, incidental or consequential damages” in the Creative Commons Notice. This change was made in light of the fact that Special, Incidental, Consequential, Punitive and Exemplary Damages, are terms not found in Philippine law. Damages under Philippine Law, specifically under Article 2197, Title XVIII, of the Civil Code of the Philippines (1950) are enumerated as “(1) actual or compensatory; (2) moral; (3) nominal; (4) temperate or moderate; (5) liquidated; or (6) exemplary or corrective.” Based on the definitions or examples being made over the Internet as to the meaning of the original wordings of the damages, “Special damages” somehow relates to Actual or Compensatory damages, “incidental damages” relates to Liquidated damages, “Consequential damages” somehow relates to Moderate or Temperate damages, and “Punitive damages” relates to Exemplary damages.
28. The phrase “or its affiliates in the Philippines (”CC-PH”)” was added since a limitation of liability is equally important to affiliates, authorized representatives, etc. of the Creative Commons in the Philippines, relating to the license.
29. The words “Work,” “Adaptation,” “Collection,” Licensor”, “License”, “License Elements,” “Original Author,” “You,” “Distribute,” “Publicly Perform,” and “Reproduce” were converted to lower case words, unless they are the first word in a sentence, or are the words being defined in the license. This change was made for style.
30. The words “Applicable License”, and “Attribution Parties” were converted to lower case words, unless they are in quotation marks.
31. The word “the” was added before the word “licensor” for consistency, unless if “licensor” is preceded by the word “any” or is related to “original author” in an enumeration or option.
32. Specific section references in Section 4(d), Attribution-NonCommercial 3.0 Philippines now referred to Section 4(b), rectifying the minor error in the unported suite, which refererred to Section 4(c); while Section 1 (b) of Attribution ShareAlike 3.0 Philipines now referred to Section 1(h), rectifying the minor error in the unported suite, which referred to Section 1(f).

• ITLJ 4-1
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