Are the statements of Malacanang, in its FAQ regarding RA 10372, accurate?

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.

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[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