Are the statements of Malacanang, in its FAQ regarding RA 10372,
accurate?
Accuracy is the condition or
quality of being true, correct, or exact.[i] This paper aims to answer the question of whether
or not the provided responses in the list of FAQ’s provided by the government
is correct in relation to law, and is applicable to prevailing circumstances.
This paper
enumerates the frequently asked questions with their corresponding answers
followed by discussions on its basis or current applicability.
1) Am I still allowed to import books, DVDs, and CDs from abroad?
Answer:
Yes. In fact, 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.
>>Before the amendment by RA10372, the importation of
a copy of a work by an individual for his personal purposes is permitted
without the authorization of the author of the work only 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.
The
deletion of Section 190.1 and 190.2 from the Intellectual Property Code results
in the allowance of any number of reproduction of “works” for personal use and
the importation of any number of legally purchased works subject to customs
regulations.
There may be some gray areas on how such new regulation can
be effectively applied to modern day importation of works. Unlike in the old
times whereby works were taken in as tangible objects such as books, CD’s, DVD’s
and the likes, these days, most works are acquired as files stored in phones,
tablets, computers, and websites. The importation of works stored as music
files, e-books, picture files, and the likes may prove to be the challenge in
this Question. How would an officer check for importation intangible works? And,
if allowed would there be any violation of any Constitutional rights? Although
next to impossible, one may consider these facts since the main goal of the law
is to protect intellectual property.
SEC. 190. Of the Intellectual Property Code States that 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
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.
2) Is the reproduction of copyrighted material for personal
purposes punishable by this law?
Answer:
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.
>>A property
for personal use is defined as a type of property that an individual does not
use for business purposes or hold as an investment. In other words, property
that an individual owns for personal enjoyment. [ii]
In relation to
infringement, “personal use” may have various meanings especially now that an
individual may have several devices loaded with hundreds of “works”, which may
be reproduced at the click of a button. Because of this fact, enforceability of
the law comes into question. The allowance of reproduction for personal use was
not properly defined or limited by law and by Malacanang’s FAQ. This oversight
may cause unimaginable losses to our authors and artists.
The
implementing rules and regulation must take into account that “works” may not
only come in the form of tangible objects such as books and dvd’s, but also in
the form of files, websites, and the likes.
3) Is the possession of, for example, a music file procured
through an infringing activity a violation of this law?
Answer:
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 law states that a person infringes a right when
one, directly commits an infringement, 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, and when one, with knowledge of
infringing activity, induces, causes or materially contributes to the
infringing conduct of another.
The abovementioned provision is badly needed especially in today’s
internet age, where the world becomes smaller and smaller by the day, where thousands
of “works” are transferred in a single transaction through the worldwide web. The
provision works for the benefit of those who, in good faith, acquired protected
works. Tons of data, including protected “works” are transferred to the hard drives
of unsuspecting web users who in good faith had no knowledge of infringement.
4) Is jailbreaking or rooting[*] my phone or device illegal?
Answer:
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.
>>The
primary purpose of jailbreaking in the context of smartphones is to allow the
phone to install and run third-party applications that haven’t been approved by
the phone manufacturer. Phones that are not jailbroken can only run
applications obtained through the manufacturer’s App Store.[iii]
Law law gives an
exclusive right to patent owners to to restrain, prohibit and prevent any
unauthorized person or entity from making, using, offering for sale, selling or
importing that product.
However this exclusive right is also subject to limitations provided by
sec 72 of RA 10372.
The said amendment to the Intellectual Property Code by allowing
certain acts to be performed even without the authorization of the patent owner
such as using a patented product which has been put on the market in the
Philippines by the owner of the product, or with his express consent, insofar
as such use is performed after that product has been so put on the said market.
As a device owner, one may use a
purchased device in any way that he or she desires. Such use is not covered by
the restrictions provided by the Intellectual Property Code. The word use may
simply include jailbreaking or to install and run third-party applications that
haven’t been approved by the phone manufacturer. This may not be evident but
the allowance of this process in one way or another affects the economic
entitlement of the patent owner. Currently however, it seems that the only consequence
of this act is that the warranty of the device is voided.
5) Are mall owners liable for infringement activities of their
tenants?
Answer:
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.
>>The law states that a person infringes a right when
one, directly commits an infringement, 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, and when one, with knowledge of
infringing activity, induces, causes or materially contributes to the
infringing conduct of another.
The requirement of having knowledge of an infringement activity
before an establishment owners are held liable presents a challenge for the enforcers
of the law. The only effect of this provision is that it gives the advantage of
deniability of knowledge to mall owners thereby releasing them of any liability
from the committed offense.
All throughout the Philippines, countless stalls filled with
infringed materials are lined inside malls, especially in the provinces, in
plain view of everyone, even the people who are supposed to enforce the law and
of course, the owners of these estalishments. It is clear that even with good intentions
from our lawmakers, our government is plagued with corruption which makes it
almost impossible to enforce the abovementioned provision.
6) Is it legal for the Intellectual Property Office (IPO) to visit
businesses to conduct searches based on reports, information, and complaints?
Answer:
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.
>> The provided answer in Question 6 properly
addresses the query.
The Intellectual Property Code created the Intellectual Property
Office has the following functions:
* Administratively adjudicate contested
proceedings affecting intellectual property rights; and
* Coordinate with other government agencies and
the private sector efforts to formulate and implement plans and policies to
strengthen the protection of intellectual property rights in the country.
There is nothing in the law that
prohibits visits from the Intellectual Property Office from visiting establishments
for the protection of intellectual property rights. It is also proper that in
cases of searches and seizure based on complaints and reports, the Intellectual
Property Office and the law itself must give way to the rights guaranteed by
the Constitution such as the Right against unreasonable searches and seizures
and due process.
The Constitution requires that 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 or things to
be seized.[iv]
Although all the
answers given had legal basis, and are accurate, this material provided by the
government may provide more questions than answers. Due to modern day
advancements, the enforceability of some of the provisions of the Intellectual
Property Code is almost next to impossible without violation of Privacy rights.
However the
Intellectual Property Office may compliment the law with an ironclad Implementing
Rules and
Regulations taking considering the effect of modern day technology on how works
are created, acquired, transferred and infringed, to effectively enforce the
provisions of the code.
DISCLAIMER:
This blog is not made by a lawyer. It is not intended to give advice nor
establish any attorney-client relationship with any person. This publication is
made solely to comply with the requirements for the subject Technology and the law.
[i] http://www.thefreedictionary.com/accuracy
[ii] Definition of 'Personal Use Property': http://www.investopedia.com/terms/p/personaluseproperty.asp
[iii] Pros and cons of jailbreaking or rooting your smartphone By Debra Littlejohn Shinder, website: http://www.techrepublic.com/blog/smartphones/pros-and-cons-of-jailbreaking-or-rooting-your-smartphone/1460
[iv]Article III Sec2
of THE 1987 CONSTITUTION OF THE REPUBLIC
OF THE PHILIPPINES
