Technology and the Law: Practical Implications
of the amendment of the intellectual Property Code specifically in R.A. 10372
Men as imperfect as they are pursue perfection as the
ultimate goal of their existence. To meet such end, these imperfect beings
create rules and law to have a resemblance of what they think will make them
perfect. However such pursuit for perfection only serves to bury them in a
world filled with imperfection as they struggle to find a path towards such
end. Ironically, no matter how hard men strive for their longed goal; the act
of creating rules and law itself to be perfect is an absolute example of how
imperfect they truly are.
Society has taught us that we need laws and rules to
have things in order, without such we would live in a lawless world and chaos,
destruction and disorder would follow. It is only natural that people would
want a life of peace and harmony and that the rule of law is at the center of
it preventing such chaos and disaster. But what if the cause of disorder is the
law itself? What if the center of what we want to be a harmonious society is
that which causes confusion? The notion that a world with rules are peaceful
and those without are in a state of anarchy are long gone. We have witnessed
with our own eyes how even with the rule of law chaos and disorder and even
confusion can still exist. This is so when the law itself is at the center of
such confusion and ambiguity.
R.A. 8293 otherwise known as the Intellectual Property
Code has recently been amended by R.A. 10372 and although it is a good notion
that our laws are being “improved” by our lawmakers, everything doesn’t always
translate to a positive sign. Upon the passing of R.A. 10372 many provisions of
R.A. 8293 were amended, deleted and some were added. This paper shall tackle
the recent amendments provided for by R.A. 10372 and its practical implications
in the Intellectual Property Code.
One of the amendments included in R.A. 10372 which can
be considered problematic is the amending of section 7 of R.A. 8293[i]
particularly section 7.1 which provides for the functions and powers of the
Director General and Deputies Director General. In section 2 of
RA 10372[ii],
one of the amendments to section 7 was for the granting of the power to an
administrative agency to conduct “visits” during reasonable hours to
establishments and businesses via complaint for activities violating
intellectual property rights and violation of the IP code. One problem here
lies on the fact on the term used, which was to conduct visits. In doing so
what does the visit really mean? Doest it mean that such agency can just enter
into a private area and look around? Or can they gather evidence in relation to
the complaint filed in their office even without the law explicitly saying how
these visits should be conducted? If such was the case then such visit would
mean that the agency can enter into the private property of an individual
therefore violating his rights for privacy and due process as well as if such
agency can barge into the property of an individual and gather evidence based
on the complaint as such would infringe upon constitutional rights.[iii]
In an online article written by Raissa Robles, it was
mentioned that such amendment to RA 8293 “ allows warrant less searches, raids and
seizure and violates the bill of rights of the 1987 constitution” and that “ it
gives the intellectual property office (IPO) unprecedented power making IPO
officials both judge and executioner of the cases involving violations of
intellectual property rights”. [iv]
If
such is the case then indeed these allowed visits to be conducted are
problematic and a burden.
To give more light on the matter, in the same article
written by raissa robles, Prof JJ Disini of the University of the Philippines
College of Law explained the implication of the amended section 7.1(d) and I
quote:
“if you are a victim of copyright infringement,
under the new law you can ask a government agency (the IPO) to enter into a
privately owned space in order to search, to look around . Lets take another
situation- in the case of rape or murder. Let’s say you’re related to someone
who was murdered. You know that certain evidence about the suspected murderer
is located in a particular place. As a victim’s relative, you cannot just go to
the place and enter. You need a warrant.”
“why is it that Congress will give the victim of
intellectual property rights violations more rights than the victims of heinous
crimes? What about securing evidences against terrorists? They need to get
warrants. But for suspected copyright infringements, authorities are allowed
“visits” which invade the privacy of alleged infringers. Are these crimes so
terrible that we are willing to set aside constitutional principles? I think
there’s a disconnect there.”
Indeed it is baffling that a single provision
can mean so much as to be in violation of
our constitutional rights, not to mention a big difference when it comes
to what Professor Disini discussed when compared to heinous crimes. But having
one agency the power to enforce violations on cases involving intellectual
property rights especially when these “visits” can be tantamount to the power
to conduct warrantless searches is problematic indeed.
Although not problematic as the previous one,
another amendment provided for by RA 10372 is in section 171.3[v]
that which defines communication to public or communicate to the public. The
implication of this amendment is such that it expanded the definition of
communication to public to include broadcasting. Prior to RA 10372, public
performance under RA 8293 sec 171.6[vi]
provides for public performances making such where people outside the family
and those which are close to the family are present or can be present whether
at the same time or place or in different places and different times and such
performance can be perceived without the need for communication under the
meaning of subsection 171.3 of RA 8293[vii].
Section 171.3 prior to RA 10372 provides that communication to public means
making of the work available to the public by wire or wireless means however,
in section 171.3 as amended, communication to public now includes any
communication to the public including broad casting, rebroadcasting,
retransmitting by cable, broadcasting by satellite.
A conflict between the definition of public
performance and its interpretation in jurisprudence as compared to the amended
definition of public performance when such is discussed. however the issue can
be resolved upon the answer to whether or not broadcasting is within the
definition of public performance as given in RA 8293 prior to amendment and
applied to the case of FILSCAP v. Makati Shangri – La[viii].
In the case of FILSCAP v. Makati, the position
of both FILSCAP and the IPO was that broadcasting is covered in the broad
definition of what is perceived as “public performance” under RA 8293. A quick
view of the powers of the FILSCAP, it can be inferred that FILSCAP administers
the public performance and reproduction rights of the creators and owners of
original works however there is no mention of “communication to the public.”
The deliberations of the amendment to the
definition of what is communication to the public will reveal that the
amendment provided for in RA 10372 is in line with the proposal of FILSCAP where
the definition of communication to public is unclear as to how old it was and
that which can be used as reference to be able to determine what certain
performances should be considered as those performances which can be perceived
as without the need of communication. Also, it was stated that the current
definition of communication to public only took into the making of a work
available to the public through wire or wireless means which contravenes the
WIPO Copyright Treaty Article 8.[ix]
Based on Article 8 it can be clearly seen that the term communication to public
does not only cover the making of the work available, it also includes
communication of work through wire or wireless network as well as making such
work available to the public. Therefore, communication to public includes
broadcasting, rebroadcasting, retransmitting by cable and broadcasting by
satellite.
Likewise, with the passing of RA 10372, the
provisions regarding the importation for persona use have also been amended.
Under sec. 14[x] and 15[xi]
of RA 10372, sections 190.1[xii]
and 190.2[xiii] of RA
8293 are deleted in its entirety and section 190.3 is hereby renumbered to be
the sole provision as Section 190.
However, the deletion of sections 190.1 and
190.2 as well as the renumeration of 190.3 have certain repercussions. One
would be that by deleting section 190.1, it follows that it is the intent of
the legislature to remove the allowance provided for by law. This means now
that no person may import a copy of the work of an individual even if such is
for personal use as well as if it is for religious, charitable, educational
society or institution duly incorporated, or whether such is to encourage fine
arts or for any state school, college, university or further as such when
importation is for the free public library of the Philippines. In effect, no
person may now import a body of work even when such copy is a legitimate copy
or copies of such since to be able to allow it into the Philippines, one needs
the permission of these foreign copyright owners and we can only imagine the
turmoil that could bring especially to our countrymen / women (ofw) working
abroad. Also, such law focuses only on infringing materials like books,
CDs and DVD’s but failed to specify
how may one can actually import since the restriction or the allowance as to
the number of copies that one can import has been deleted which was previously
section 190.1 of RA 8293.
Linking this provision to modern times, we
can’t help now but think how this will affect our digital data as well.
Although it is clear as to how this will be used when it comes to books, music
and movies how will this fare when it comes to data. Question is are the
Philippines even equipped to handle searches when it comes to copyrightable
materials in the digital form. Can our security even be able to search the
computer of an individual as well the mobile devices such as phones and tablets
that are now being commonly used.
In connection with the topic in importation as
stated above, the article by raissa robles also tackles such topic and connects
it to another amended provision by RA 10372 sec 12[xiv],
which is sec 212 of RA 8293[xv].
In the said article it was pointed out how under RA 8293 a “returning Filipino
can bring in as many non- pirated movie DVDs, music CDs and even software so
long as it does not exceed 3 copies each and these are for personal use.”
However this is more inexplicable since RA 10372 has also deleted the provision
allowing for fair use as part of the personal purpose, which qualifies for the
number of copies a person can import infringing materials. Hence, with the
deletion of sections 190.1 which provides for the importation of a body of work
by an individual for his personal purpose as well as section 212.1 which
provides for the limitations of a natural person exclusively for his own
personal purposes then there really is no benchmark as to how many body/ bodies
of work an individual may import.
Also included in the amended provisions is the
provision on the term of moral rights. Previously, sec. 198.1 of RA 8293[xvi]
provides that the moral rights of an author shall last during the lifetime of
the author and for the 50 years after his death shall not be assignable or
subject to license. However with the amendment provided by RA 10372, sec.198.1[xvii]
now states that the right (moral) shall last during the lifetime of the author
and in perpetuity after his death.
However, the problem now lies with the rest of
the amendment, under section 198.1 of RA 10372 those moral rights provided for
by sec 193.2 , 193.3 and 193.4 shall be coterminous with the term of economic
rights provided by under sec 213, RA 8293.[xviii]When
it comes to the term of protection of both original and derivative works it
still remains the same which is during the lifetime of the author plus 50 years
after death.
But in the case of photographic and audio-visual works
a problem arises. Technically the economic rights of photographic and
audio-visual works are protected for 50 years if published and if not from the
date of suck making. If such moral rights which shall be coterminous with the
protection of the economic rights which is lifetime plus 50 if published and if
not from date of making and the amended term of protection for moral rights
under sec 198.1 is lifetime of the author and in perpetuity after his death,
wouldn’t there be a decrease in the vested rights. If this is so then RA 10372
does not provide for a no impairment clause of such right, and there is no
provision under this law of protecting rights that will be impaired with the
implementation of such new law.
A closer look also needs to be given to sections
184.1(L)[xix]
as well as 185.1.[xx] First off,
184.1 provides for the limitations on copyright particularly in the
reproduction or distribution of published articles or materials in a
specialized format. Specialized format here would mean that such format is for
the use of the blind, visually and reading impaired persons. However such must
be made for a non-profit basis. Therefore a person who wishes to share the
knowledge bestowed upon by the medical and legal practices cannot record
lectures and distribute the same as learning materials as it violates the law
in two points; first point is that the allowance provided for by law must be
for a non-profit purpose. However it can be contended that distribution here
does not mean selling per se, which is true but the second point kicks in. That
such material produced must be exclusive for the use of the blind and visually
– reading impaired persons meaning that it is only them that gets to actually
have a use for them. In this case such person must translate the texts of the
medical and legal profession into what blind people use to read which is the
Braille.
Section 185.1 tackles the idea of fair use of a
copyrighted work. In the old law, the fair use of a copyrighted work includes
multiple copies for classroom use, scholarship, research and similar purposes.
On the new law amended by RA 10372, the phrase multiple copies was replaced
with limited number of copies. The implication of such amendment is such that
it is not clear as to how limited is limited. There is neither criteria nor
guidelines set in the law to determine how to limit the number of copies
allowed. The problem with our law is that of substantiality. A person cant copy
a whole book because that will be copyright infringement however if it is in
bits and pieces it will pass as not an infringement of copyright. Also when it
comes online content, specifically when it comes to posting of comments and
such, our law does not provide for a mechanism as to archiving or a guideline
as to what can be archived or not.
Included in the fair use definition however is the
term decompilation, which can be understood as to be the reproduction of the
code and translation of the forms of a computer programs to achieve the
interoperability of a computer program created independently with other program
which can also constitute fair use to the extent that the decompilation shall
be done for the purpose of achieving interoperability by obtaining information
necessary for it.
Other amendments made by RA 10372 include section
208.4[xxi]
which provides for the scope of performer’s right. Aside from those provided by
the previous law, 208.4 adds the right that a person has the right to authorize
the making available to the public of their sound recording made in a way that
the public can have such access from a place and time individually chosen by
them.
To conclude, change doesn’t always translate smoothly.
There may be a few bumps along the road of progress but the important thing is
that it is moving. It doesn’t always have to be perfect from the start since
that is usually always the end goal. We can modify and change things along the
way, towards our ultimate end. Just like the same as these amendments, although
some… well most are not as what we expect it to be, at least the positive thing
we can take out from it is that it is changing. Although the question is the
necessity of the change, I believe that necessary or not out laws should be
able to adapt to the changing times and incorporate and not be stuck as the
world around us is fast evolving. All in all, be it as the final paper/ blog
for my class in Technology and the law, I learned more than I thought I would
and I hope that my learning will not stop within the confines of the classroom
but hopefully I can take it with me everywhere I go because technology is
everywhere and what I learned in this class is something that I can apply to
everyday things.
[i] section 7, RA 8293:
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) 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 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.
[ii] section 2, RA 10372:
Amending
section 7 of RA 8293…
Section
7.1 (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
[iii] Article III, section 2 of the 1987 Constitution
provides
Section
2: the right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the person to be seized
[iv] Raissa Robles “Copyright owners have more rights than
heinous crime victims with Congress’ IP Code Changes – lawyers say” http://raissarobles.com/2013/03/06/copyright-owners-have-more-rights-than-heinous-crime-victims-with-congress-ip-code-changes-lawyers-say/
May 27, 2014
[v] Section 4, RA 10372
Sec.
171.3 ‘Communication to the public or communicate to the public means any
communication to the public, including broadcasting, rebroadcasting,
retransmitting by cable, broadcasting and retransmitting by satellite, and
includes the making of a work available to the public by wire ir wireless means
in such a way that members of the public may access these works from a place
and time individually chosen by them.
[vi] Section 171.6, RA 9283
171.6:
the recitation, plating, dancing, acting, or otherwise performing the work
either directly or by means of any device or process; in the case of
audiovisual work, the showing of its images in sequence and the making of the
sounds accompanying it audible; and, in the case of a sound recording, making
the recorded sounds audible at a place or at places where persons outside the
normal circle of the family and the family’s closest social acquaintances are
or can be present at the same place and at the same time, or at different
times, and where the performance can be perceived without the need for
communication within the meaning of subsection 171.3
[vii] section 171.3, RA 8293
171.3:
communication to the public means making of the work available to the public by
wire or wireless means in such a way that members of the public may access
these works from a place and time individually chosen by them.
[viii] PDF FILe
http://www.google.com.ph/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CDQQFjAA&url=http%3A%2F%2Fonlineservices.ipophil.gov.ph%2Fipcaselibrary%2Fipcasepdf%2FDITTB7200100001.pdf&ei=0EGEU92jK8SkkQXTuYGACQ&usg=AFQjCNHdKJZ-Wkd34ExwG-37TBR27rK9WQ&bvm=bv.67720277,d.dGc
[ix] Wipo Administered treaties: Wipo Copyright Treaty http://www.wipo.int/treaties/en/text.jsp?file_id=295166#P78_9739 May 27, 2014
[x] section 14, RA 10372
sec.14.
Sections 190.1 and 190.2 of Republic Act No. 8293 are deleted in its entirety
[xi] section 15, Ra 10372
sec,15.
Section 190.3 of Republic Act no. 8293 is hereby renumbered and amended as the
sole provision under section 190 to read as follows.
Sec.190
Importation and Exportation of infringing materials – subject to the approval
of the secretary of finance, the commissioner of customs is hereby empowered to
make rules anf regulations for preventing the importation or exportation of
infringing articles prohibited under PART IV of this act and under relevant
treaties and conventions to which the Philippines may be a party and for
seizing and condemning and disposing of the same in case they are discovered
after they have been imported or before they are exported.
[xiv] sec 21, RA 10372
sec
21. Section 212 of RA 8293 is hereby amended to read as follows:
sec
212 Limitation of rights- the
provisions of chapter VIII shall apply mutatis mutandis to the rights of
performers, producers of sound recordings and broadcasting organizations
[xvii] sec. 17, RA 10372
sec.
198. Term of moral rights – 198.1 the right of the author under section 193.1
shall last during the lifetime of the author and in perpetuity after his death
while rights under sections 193.2 193.3 and 193.4 shall be coterminous with the
economic rights, the moral rights shall not be assignable or subject to
license, the person or persons to be charged with the posthumous enforcement of
these rights shall be named in a written instrument which shall be filed with
the National Library. In default of such person or persons, such enforcement
shall devolve upon either the author’s heirs and in default, the Director of
the National Library.
[xviii] sec. 213, RA 8293
[xix] sec 11, RA 10372
sec.184.
limitations on copyright
(1)
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 non-profit basis and shall
indicate the copyright owner and the date of the original publication.
[xx] sec. 12 RA 10372
sec.185.
fait use of copyrighted work – 185.1 the fair use of a copyrighted work for
criticism, comment, news reporting, teaching including limited number of 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 a computer program to
achieve the interoperability of an independently created computer program with
the other programs may also constitute fair use under the criteria established
by this section, to the extent that such decompilation is done for the purpose
of obtaining the information necessary to achieve such interoperability.
[xxi] Sec 20, RA 10372
208.4
scope of right – the right to authorize the making available to the public of
their sound recordings in such a way that members of the public may access the
sound recording from a place and at a time individually chosen or selected by
them, as well as other transmissions of a sound recording with like effect.
