ARE THE STATEMENTS OF MALACAÑANG
OF ITS F.A.Q RE: REPUBLIC ACT 10372 ACCURATE?
INTRODUCTION:
REPUBLIC ACT 10173,
AMENDING CERTAIN PROVISIONS OF THE INTELLECTUAL PROPERTY CODE
On February 28, 2013, President
Benigno Aquino III signed into law Republic Act 10173, amending certain
provisions of the Intellectual Property Code. The Act took effect on May 22,
2013 or fifteen (15) days after its publication date of March 7, 2013.
On March 8, 2013 Malacañang
clarified Republic Act No. 10372, or "An Act Amending Certain Provisions
of RA 8293," otherwise known as the "Intellectual Property Code of
the Philippines, and for other purposes.
It is important for the public to
be made aware of the amendments on intellectual property following concerns
raised in social networking sites and the media on the new law.
The amended IP Code actually
removes the limit to the entry for the number of copyrighted items one can bring
home to the country provided they will be for personal use.
What is prohibited under the new
law is the illegal downloading of copyrighted works as this would amount to
violating a copyright.
RA 10372 also allows religious,
charitable and educational institutions to import more copies for as long as
they are not infringing or pirated copies, so that more Filipino students in the
country may use such works.
It also creates the Bureau of
Copyright and Other Related Rights under IPO, which will be in charge of policy
formulation, rule making, adjudication, research, and education.
The new law also mandates the
accreditation of collective management organizations (CMOs), whose job will be
to ensure the protection of the rights and financial benefits of copyright
owners.
It also allows the non-commercial
reproduction of copyrighted works for use by people with hearing, eyesight and
reading problems.
Now the blind can access their
favorite bestseller, their favorite novels. Unlike before, our blind fellows
have to buy in Braille form (Braille
is a series of raised dots that can be read with the fingers by people who are
blind or whose eyesight is not sufficient for reading printed material). But
this time, they can just go to a bookstore, and if they find a bestseller, they
can ask that it be reduced to Braille and that they don’t have to pay for the royalty.
The new law further empowers the
enforcement of IP rights, although a complaint from the copyright owner is
still needed before violators can be apprehended.
The new law also strengthen the
government’s campaign against IP pirates, infringers and criminal syndicates.1
DISCUSSION:
The Government in
view of the enactment of R.A. 10372 which effectively amended certain
provisions Republic Act 8293 otherwise known as the intellectual property code
released FAQ’s (Frequently Asked Questions) in the Government website. The
Following are as follows.
A) Am I still allowed to import
books and DVD’s and CD’s from abroad?
The
government answered that the amendments to the Intellectual Property Code have
removed the original limitation of three copies when bringing legitimately
acquired copies of copyrighted material into the country. Only the importation
of pirated or infringed material is illegal. As long as they were legally
purchased, you can bring as many copies you want, subject to Customs
regulations.
The
new law, Republic Act No. 10372, totally deleted Sections 190.1 and 190.2. This
deletion is interpreted by some quarters as a clear intent to disallow such
acts. In other words, they argue that unlike before, Filipinos and foreigners
alike cannot bring to the Philippines an intellectual property work, a book or
a CD for instance, even if it is for personal use. This would mean that if the
traveller brings a book, perhaps bought from the airport bookstore abroad to
pass away time, it would be illegal for that book to be brought into Philippine
jurisdiction.
Some
speakers believe that the deletion is inconsequential because the right to
import copyrighted materials previously granted under the Sections 190.1 and
190.2 is also covered and governed under the existing provisions on fair use
under Section 185.1. However, even if bringing in of IP works for personal use
is indeed covered under the provision on fair use, the amendment exposes consumers
to airport inconvenience brought about by the possible differences of
interpretation on the part of the enforcement officers.
Section
190.3 was retained, expanded to cover both importation and exportation as well,
and renumbered simply as Section 190, with the following text (underscored
portions are the amendments):
Section
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 and regulations for preventing the importation or
exportation of infringing articles prohibited under this Section 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.
[Note: the underscored portions are the amendments] 2
The
Government’s answer as to the above given still remains hanging and lacking,
more so inaccurate, in the event as to how would an officer of the Bureau of
Customs check on any importation of intangible works. At any rate, considering
that the main goal of the law is to protect intellectual property, would there
be any or no violation of any Constitutional rights once already executed?
B) Is the reproduction of
copyrighted material for personal purposes punishable by this law?
No. Infringement in this context
refers to the economic rights of the copyright owner. So, 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. But if, for
example, you make multiple copies of the CD to sell, then infringement occurs.
The
government asserts that the one being violated in this issue is the economic
rights of the owner. It can be viewed and qualified that there is no specific
provision that would make it a criminal violation for users to reproduce
copyrighted material for personal use.
On
another thought, with exhaustive analysis of the provisions of R.A. 10372
Section 203.2 of the latter provision in particular which states that “the
right of authorizing the direct and indirect reproduction of their performance
s fixed in sound recordings or audio visual works or fixations in any manner or
form”, the owner or the author of the copyrighted work may file other remedies
and a civil case for infringement against the offender.
C) Is the possession of, for
example, a music file procured through an infringing activity a violation of
this law?
Only if it can be proven that the
person benefitting from the music file has knowledge of the infringement, and
the power and ability to control the person committing the infringement.
The
provision under Section 22. Section 216 of R.A. 10372 explains well which
states that:
SEC.
22. Section 216 of Republic Act No. 8293
is hereby amended to read as follows:
“SEC.
216. Infringement. – A person infringes a right protected under this Act when
one:
“(a)
Directly commits an infringement;
“(b)
Benefits from the infringing activity of another person who commits an
infringement if the person benefiting has been given notice of the infringing
activity and has the right and ability to control the activities of the other
person;
“(c)
With knowledge of infringing activity, induces, causes or materially
contributes to the infringing conduct of another.3
The
presumption of innocence on this part of the Government’s answer has a great
weight as to its applicability. The person who has the possession of the
material must be benefited from it before he can be considered liable. The
knowledge of the person that the material is from infringement activity is the most
important factor.
D) Is jailbreaking or rooting[*] my
phone or device illegal?
No. Jailbreaking or rooting by
themselves are not illegal. However, downloading pirated material, or
committing infringement with a “jailbroken” phone increases the penalty and
damages imposed on the person found guilty of infringement.
Jailbreaking
(iphone) or rooting (android) is not illegal per se. But using jailbreaked
iphone or rooted android to download infringed application constitutes
infringements. Majority of smart mobile users who modify their device with the
intention to acquire the infringed application for free, this in fact causes or
induces people to commit acts of infringement to which we may conclude that the
position of the government is in a way inaccurate,
Nowadays,
among the practice that induces or contributes to the infringing act of another
is by way of an example wherein entrepreneurs running business comprising
technological devices who in a way offers services of modification as to the
applications that the user who previously pays over the application would
eventually can avail of such for free after the said modification. In this
consequence, the entrepreneur maybe held liable for copyright infringement
punishable under Section 22 (Section 216[c]) of Republic Act No. 10372.
E) Are mall owners liable for
infringement activities of their tenants?
Mall owners are not automatically
penalized for the infringing acts of their tenants. When a mall owner or lessor
finds out about an infringement activity, he or she must give notice to the
tenant, then he or she will be afforded time to act upon this knowledge. As
stated above, the law requires that one must have both proven knowledge of the
infringement, and the ability to control the activities of the infringing
person, to be held liable. The mall owner must also have benefitted from the
infringement.
In
this answer by the government, I am suitable enough to agree as to its
explanation taking into cognizance the provision under section 22. Section 216 of
R.A. 10372 which states that:
SEC.
22. Section 216 of Republic Act No. 8293
is hereby amended to read as follows:
“SEC.
216. Infringement. – A person infringes a right protected under this Act when
one:
“(a)
Directly commits an infringement;
“(b)
Benefits from the infringing activity of another person who commits an
infringement if the person benefiting has been given notice of the infringing
activity and has the right and ability to control the activities of the other
person;
“(c)
With knowledge of infringing activity, induces, causes or materially
contributes to the infringing conduct of another.
According
to one author, Ms. Raissa Robles, in relation to mall owners, they may also be
held liable if for example they have existing knowledge that some of their
tenants are in possession of articles that have been downloaded illegally from
the internet, provided that they have control and supervisory power over such
tenants inside their premises. But such liability may only attach if the
building owner has working knowledge of such infringement. The emphasis would
be “knowledge of such infringement” and such mall owner exercising control or
supervisory over their tenant fails to act upon it.
F) Is it legal for the Intellectual
Property Office (IPO) to visit businesses to conduct searches based on reports,
information, and complaints?
The IPO may visit establishments
based on reports and complaints; this in itself is constitutional. However, if
the IPO intends to perform a search and seizure, it must comply with
constitutional requirements, such as having a search warrant. A warrant
wouldn’t be required, however, if the IPO is accompanied by the Bureau of
Customs or the Optical Media Board—two agencies that can perform a search and
seizure on their own right without a warrant (per Republic Act No. 1937 and
9239, respectively).
The procedure and safeguards for
this are to be spelled out in the Implementing Rules and Regulations.
Section
2. Section 7 (d) of Republic Act 10372 states that:
The
director general and deputies director general may conduct visits to establishments
and businesses engaging in activities violating intellectual property rights
based on report, information or complaint received by the office.
Section
2. Section 7 (c) of Republic Act 10372 also states that:
The
director general and deputies director general 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.
From
the abovementioned provision, is the power of the IPO to conduct visits not in
violation of the Constitution?
Taking
into consideration Article 3 Bill of Rights, Section 2. This section of the
Bill of Rights states that:
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
persons of things to be seized.4
One
of the concerned agencies that may undertake enforcement functions in support
to IPO is the Optical Media Board. One of the provisions closely relative to
the provision of Section 2. Section 7 (d) of Republic Act 10372 is Sec. 10 of
RA 9239 otherwise known as the Optical Media Act gave the Optical Media Board
the power to:
(d) Conduct inspections, by itself or in
coordination with other competent agencies of the government, at anytime, with
or without prior notice, of establishments or entities including those within
the economic zones engaged in the activities as provided in Section 13(a), (b)
and (c) of this Act, and employ reasonable force in the event that the
responsible person or persons of such establishment or entity evades,
obstructs, or refuses such inspection. For this purpose, the agents of the OMB
shall be considered agents in authority.5
In
the aforementioned provisions, admittingly indeed is the handled confusion as
to OMB’s power to “conduct inspections” with the IPO’s power to “conduct
visits”.
EPILOGUE:
The
Philippine government have lots of brilliant, talented, artistic and creative
citizenry. Yet we are losing these talented Filipinos simply because there is
not enough protection as to their work. In order to cure this defect, the
Philippine government’s responsibility needs to provide a legal structure where
innovative industry is fostered and ultimately be protected.
Disclaimer:
This
blog is for academic purposes only. I am not a lawyer nor pretending to be one.
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 Arellano
University School of law nor My professor Atty. Michael Vernon Guerrero y
Mendiola, any member of the bar 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.
Author:
Marife Tubilag Maneja
