President Benigno S. Aquino III recently signed into law
Republic Act No. 10172 that amends certain provision of The Intellectual
Property Code of the Philippines (RA 8293). “The
government did it while everyone was riveted to news from North Borneo. What is
it with lawmaking and lack of consultation in the Philippines? Amendments to
the Intellectual Property Rights Law (Republic Act 10372) were made in
mid-February and signed by President Benigno Simeon Cojuangco Aquino III on
Feb. 28, while the stand-off at Lahad Datu in North Borneo was hitting a
tension-filled peak.”[i]
The amendments made by the law to the intellectual property code raised
issues that had alarmed Filipinos to question such amendments. Questions have
been raised as how these amendments would affect the rights to gather
information in books and even in the web. While these issues are raised, the government
presented questions that are mostly asked in the web and answered it according
to the amendments of the newly signed law. This paper, then, aims to discuss
the accuracy of these questions, and if it considers or presents a valid
argument as presented by the intellectual property code of the Philippines and
as to its amendments provided in Republic Act No. 10172.
Am I still allowed to import books, DVDs and CDs from
abroad?
The Intellectual
Property Code of the Philippines or the Republic Act No. 8293 provided the
provision in which the importation for personal purposes may be permitted. RA
8293 Section 190.1[ii] provides
that importation of a copy of a work may be done without the authorization of
the author if it complies with the circumstances, which the law provides. The
question then lies if such importation still, may be done, provided that
Section 14 of the RA 10372[iii] indicates
the deletion of the entirety of section 190.1 and 190.2 of the RA 8293. The
answer of the government to such issue is that, it may still be done provided
that such importation does not include pirated or infringed materials, and that
as long as it is legally purchased, such can be done but is subject to Customs
regulations.
The accuracy of the
answer of the government to such issue is questionable, because the deletion of
the Section 190.1 and 190.2 of RA 8293 provided in RA 10172 says otherwise. The
removal of the original limitation of three (3) copies as provided in 190.1 (a)
(iii) is applicable only to the use of any religious, charitable, or educational
society or institution, but when it is for individual purpose, the limitation
provided under 190.1 (a)(i) is not more than one (1) copy at one time.
There is no question
if such importation of books, DVDs and CDs from abroad because even if RA 8279
is not amended, it still can be done. But the explanation of the government had
given gray areas in which it tries to imply that there is no limitation of the
copies that can be imported. Although it was mentioned that it is still subject
to the custom regulations, it still must be specified that the personal use or
purpose must be considered and not merely mentioning that the removal of three
(3) allowable copies is deleted.
The removal of section
190.2 is also being questioned because it provides for the prohibition of acts
that would violate the rights of owner the copyright and for violation of the
protection of such rights. It has been provided by law that violation of such
rights would consist infringement, and one of such is the importation of the
materials, this then would conclude of whether it diminishes the rights of
owner of the copyright or, it merely paved way for the extension of limitation
of importation, thus giving more access to the public.
Is
the reproduction of copyrighted material for personal purposes punishable by
this law?
this law?
RA 10172 amended the definition of
‘reproduction’; it provides that it is the making of one or more copies,
temporary or permanent, in whole or in part without prejudice to the provisions
of section 185 that is the fair use of a copyrighted work. And as provided by
RA 8293, reproduction is one of the copyright or economic rights that mainly
are protected by the law.
The government tried to explain that if you
transfer music from a lawfully acquired CD into a computer, then download it to
a portable device for personal use, then you didn’t commit infringement. It is proper to maintain that, reproduction
in order to be in the nature of fair use of copyrighted work must consider the
effect of the use upon the potential market for or value of the copyrighted
work. We can say then that, if we try to reproduce the copyrighted work, it
would then affect the marketability of the work. The government says that, if
we make multiple copies and sell such, or make a profit out of it, it will be
considered as infringement, which the law strongly prohibits.
I argue then, that if
for example, we make multiple copies but we distribute them for free, for
non-profit purposes, would it still be considered as infringement?
I insist that it is
in the nature of being an infringement, for it diminishes the rights of the
owner of the copyrights to the marketability of the work. In RA 8293 Section
185.1[iv],
it provides the factors or guide in which how to determine if the use is in the
nature of being a ‘fair use of a copyrighted work’. The use of a work for
research, scholarship, classroom use and similar purpose would not be
considered as an infringement. The law does not specify the profitability or
not of reproduction, thus, whether a person makes reproduction out of profit or
not, I believe it still would be considered an infringement.
Is
the possession of, for example, a music file procured through an infringing
activity a violation of this law?
Section 217.3[v]
of the Intellectual Property Code of the Philippines provides that knowledge of
having an infringing copy is necessary in order to become criminally liable to
such act.
The government
explains that to become liable, power and ability to control the person
committing the infringement is also necessary to become criminally liable.
Under section 217.3, it is not necessary and as long as there is knowledge that
the work you possess is the product of an infringement, it can be used against
a person and become criminally responsible.
Section 218.1(c),
which is amended by RA 10172, provides that copy of the infringing work may
become prima facie evidence that may be presented by the owner of the
copyrighted work against a person but it is until the contrary is proved. It is
then important to note, that the mere possession of a copyrighted work, known
to be infringed, becomes prima facie evidence against her, and until it is
proved that knowledge of having an infringed copy is absent, it is may still be
subjected to liability.
Is
jailbreaking or rooting* my phone or device illegal?
According to the Intellectual Property Office of
the Philippines, “Jailbreaking is not a crime under the amendment (RA 10172).
Jailbreaking or any other form of circumvention of technological measures (as
defined in sec. 6 of the amendments), are not crimes in themselves. The
amendments require that you first be found guilty of copyright infringement,
and that is only the time that jailbreaking or circumvention of technological
measures increases the imposable penalty and damages that can be awarded by the
courts. You still need to be found guilty of copyright infringement, as
jailbreaking is merely an aggravating circumstance that increases the penalty.”
I believe that the question would be best
answered if, whether or not jailbreaking or rooting is considered infringement
under the Intellectual Property Code. The code indicates that infringement
would be the violation of the copyright or economic rights provided under section
17 of the code.
Jailbreaking (for iOS) or rooting (for Android) as
the government has provided is the act of removing the vendor imposed
limitations of tablets, mobile devices and other electronic gadgets. It is also
explained that it may be in violation of the system’s terms of use. If
jailbreaking or rooting is then defined as it is explained, it would not then
be considered as an infringement as provided by the Intellectual Property Code
because it is not considered to be a violation of the rights of the copyright
or economic rights enumerated in section 177 of RA 8293[vi].
The controversial amendment provided in RA 10172
is the inclusion of a subsection 177.12, which contains the definition of
“technological measure”; in which jailbreaking, or rooting would then be
considered. The government explains that it is only punishable under the
amendment if there is a copyright infringement and that would be explained as
only be considered as an aggravating circumstance to the infringement
liability.
As provided in section 23 of the RA 10172[vii],
the circumvention of the effective technological measure is considered an
aggravating circumstance, as it provides the maximum penalty of imprisonment
and fine would be imposed if infringement were done through the use of such
measure. In short, the amendment does not punish the act of jailbreaking or
rooting itself but it is only punishable if the act comes with the copyright
infringement as provided by section 177 of the RA 8293.
Are
mall owners liable for infringement activities of their tenants?
“Section 22 of the
Republic Act 10172 amends section 216 of the intellectual property code which
provides that there are two types of copyright infringement liability – direct
and secondary. An infringement takes place when the use of a protected work of
a copyright owner goes beyond limitations, to include fair use provisions that
are outlined in the law.” In short, the violators of infringement has been
expanded, hence, the extent of person having liability on the acts prohibited
by the law also extends to those who benefits and acts with knowledge to such
activity.
The question is to be
best answered when it is to be qualified. “In the case of a mall owner with a
tenant who is selling pirated movies, the Philippine IP office has explained
that for it to be secondary liable, the mall owner must (1) benefit the
infringing activity; (2) must have been given a notice of the infringing
activity and a grace period to address the complaint; and (3) has the right and
ability to control the activities of the tenant of who is doing the
infringement.”[viii]
To become secondarily
liable to such act, the complainant must provide evidence to support the
circumstances provided by the amended section 216 of the intellectual property
code. It does not automatically provides liability to the mall owners, but the
complainant has the burden of proof as to the liability of the mall owner in
terms of having the benefit, notice and control in the activity.
Is
it legal for the Intellectual Property Office (IPO) to visit businesses to
conduct searches based on reports, information, and complaints?
Section 2 of the RA
10172[ix]
amends the section 7 of RA 8273[x] which adds
the jurisdiction of the Intellectual Property Office to conduct visits during reasonable
hours to establishments and business engaging in activities violating
intellectual property rights based on report, information or complaint received
by the office. The question lies whether or not such provision is
constitutional or not.
The government
explains that it is constitutional, because it still should follow the criminal
procedure of the application of search warrant before conduct searches based on
information, information and complaints. Probable cause, then, is still
necessary to issue search warrant, thus the right to due process is still
guarded by the provision. “Jurisprudence dictates that probable cause, as a
condition for the issuance of a search warrant, is such reasons supported by
facts and circumstances as will warrant a cautious man to believe that his
action and the means taken in prosecuting it are legally just and proper.
Probable cause requires facts and circumstances that would lead a reasonable
man to believe that an offense has been committed and that the objects sought
in connection with that offense are in the place to be searched.”[xi]
In terms of customs regulations in
search and seizures in criminal procedure, it is a basic principle that custom
search and seizure is one of the exceptions in the application for the search
warrant. But of course, in lieu of the powers designated to such office.
Philippine
lawmakers have been incorporating the effects of technological modernization in
the country. And through these developments, Filipino citizens react to such in
different point. The government’s role in protecting intellectual property
should be properly defined. “Intellectual
property, very broadly, means the legal rights which result from intellectual
activity in the industrial, scientific, literary and artistic fields. Countries
have laws to protect intellectual property for two main reasons. One is to give
statutory expression to the moral and economic rights of creators in their
creations and the rights of the public in access to those creations. The second
is to promote, as a deliberate act of Government policy, creativity and the
dissemination and application of its results and to encourage fair-trading
which would contribute to economic and social development.” [xii]
In lieu to such issues, the line between the laws for protection of
intellectual property rights and right of every person for access to
information should be properly ascertained and defined.
[i]Anonas-Carpio,
Alma. While we
were not looking: IP law amendments. Retrieved May 16, 2013, from http://www.philippinegraphic.ph/index.php/tech/112-while-we-were-not-looking-ip-law-amendments
[ii]
Section 190. Importation for Personal Purposes. - 190.1.
Notwithstanding the provision of Subsection 177.6, but subject to the
limitation under the Subsection 185.2, the importation of a copy of a work by
an individual for his personal purposes shall be permitted without the
authorization of the author of, or other owner of copyright in, the work under
the following circumstances:
(a) When copies of the work are not available in the Philippines and:
(i) Not more than one (1) copy at one time is imported for strictly individual
use only; or
(ii) The importation is by authority of and for the use of the
Philippine Government; or
(iii) The importation, consisting of not more than three (3) such copies
or likenesses in any one invoice, is not for sale but for the use only of any
religious, charitable, or educational society or institution duly incorporated
or registered, or is for the encouragement of the fine arts, or for any state
school, college, university, or free public library in the Philippines.
(b) When such copies form
parts of libraries and personal baggage belonging to persons or families
arriving from foreign countries and are not intended for sale: Provided, That
such copies do not exceed three (3).
[iv]
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. Decompilation, which is understood here to
be the reproduction of the code and translation of the forms of the computer
program to achieve the inter-operability of an independently created computer
program with other programs may also constitute fair use. 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.
[v]
217.3. Any person who at the time when copyright
subsists in a work has in his possession an article which he knows, or ought to
know, to be an infringing copy of the work for the purpose of:
(a) Selling, letting for hire, or by way of trade offering or exposing
for sale, or hire, the article;
(b) Distributing the article for purpose of trade, or for any other
purpose to an extent that will prejudice the rights of the copyright owner in
the work; or
(c) Trade exhibit of
the article in public, shall be guilty of an offense and shall be liable on
conviction to imprisonment and fine as above mentioned. (Sec. 29, P.D. No. 49a)
[vi]
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)
[vii] SEC. 23. Section 217.2. of
Republic Act No. 8293 hereby amended to read as follows:
“217.2. In determining the number of years of imprisonment and
the amount of fine, the court shall consider the value of the infringing
materials that the defendant has produced or manufactured and the damage that
the copyright owner has suffered by reason of the infringement: Provided, That
the respective maximum penalty stated in Section 217.1. (a), (b) and (c) herein
for the first, second, third and subsequent offense, shall be imposed when the
infringement is committed by:
“(a) The circumvention of effective technological measures;
“(b) The removal or alteration of any electronic rights
management information from a copy of a work, sound recording, or fixation of a
performance, by a person, knowingly and without authority; or
“(c) The distribution, importation for distribution, broadcast,
or communication to the public of works or copies of works, by a person without
authority, knowing that electronic rights management information has been
removed or altered without authority.”
[viii]
Estavillo, Maricel (March 7, 2013). Copyright infringement under the new IP
law. Retrieved May 19,2013, from http://www.interaksyon.com/infotech/copyright-infringement-under-the-new-ip-law
“SEC.
7. The Director General and Deputies Director General. –
“x
x x
“(b)
Exercise exclusive appellate jurisdiction over all decisions rendered by the
Director of Legal Affairs, the Director of Patents, the Director of Trademarks,
the Director of Copyright and Other Related Rights, and the Director of the
Documentation, Information and Technology Transfer Bureau. The decisions of the
Director General in the exercise of his appellate jurisdiction in respect of
the decisions of the Director of Patents, the Director of Trademarks and the
Director of Copyright and Other Related Rights shall be appealable to the Court
of Appeals in accordance with the Rules of Court; and those in respect of the
decisions of the Director of the Documentation, Information and Technology
Transfer Bureau shall be appealable to the Secretary of Trade and Industry;
“(c)
Undertake enforcement functions supported by concerned agencies such as the
Philippine National Police, the National Bureau of Investigation, the Bureau of
Customs, the Optical Media Board, and the local government units, among others;
“(d)
Conduct visits during reasonable hours to establishments and businesses
engaging in activities violating intellectual property rights and provisions of
this Act based on report, information or complaint received by the office; and
“(e)
Such other functions in furtherance of protecting IP rights and objectives of
this Act.”
[x]
Section 7. The Director General and Deputies Director
General. - 7.1. Functions. - The Director General shall exercise the
following powers and functions:
a) Manage and direct all functions and activities of the Office,
including the promulgation of rules and regulations to implement the
objectives, policies, plans, programs and projects of the Office: Provided,
That in the exercise of the authority to propose policies and standards in
relation to the following: (1) the effective, efficient, and economical
operations of the Office requiring statutory enactment; (2) coordination with
other agencies of government in relation to the enforcement of intellectual
property rights; (3) the recognition of attorneys, agents, or other persons
representing applicants or other parties before the Office; and (4) the establishment
of fees for the filing and processing of an application for a patent, utility
model or industrial design or mark or a collective mark, geographic indication
and other marks of ownership, and for all other services performed and
materials furnished by the Office, the Director General shall be subject to the
supervision of the Secretary of Trade and Industry;
b) Exercise exclusive appellate jurisdiction over all decisions rendered
by the Director of Legal Affairs, the Director of Patents, the Director of
Trademarks, and the Director of the Documentation, Information and Technology
Transfer Bureau. The decisions of the Director General in the exercise of his
appellate jurisdiction in respect of the decisions of the Director of Patents,
and the Director of Trademarks shall be appealable to the Court of Appeals in
accordance with the Rules of Court; and those in respect of the decisions of
the Director of Documentation, Information and Technology Transfer Bureau shall
be appealable to the Secretary of Trade and Industry; and
c) Exercise original
jurisdiction to resolve disputes relating to the terms of a license involving
the author's right to public performance or other communication of his work.
The decisions of the Director General in these cases shall be appealable to the
Secretary of Trade and Industry.
[xi]
Coca-Cola Bottlers, Phils., Inc. (CCBPI) v. Gomez, G.R. No. 154491,
November14,2008.
[xii] WIPO (2004). Citing Websites. In Intellectual Property Handbook: Policy, Law and Use.
Retrieved May 19, 2013 from http://www.wipo.int/export/sites/www/aboutip/en/iprm/pdf/ch1.pdf
DISCLAIMER: Please note that this article is for general information and educational purposes only. All articles contained here in this website are solely those of the author and do not necessarily represent the views and opinions of any member of the bar, my school or any other organization that I may or may not be affiliated with or connected to. In accordance with the law, this is not intended to constitute legal advice, and nothing in the articles or comments should be taken as such.
DISCLAIMER: Please note that this article is for general information and educational purposes only. All articles contained here in this website are solely those of the author and do not necessarily represent the views and opinions of any member of the bar, my school or any other organization that I may or may not be affiliated with or connected to. In accordance with the law, this is not intended to constitute legal advice, and nothing in the articles or comments should be taken as such.
