The thing about facts: Mayo 2014

Martes, Mayo 27, 2014

An Overview on the Amendments to the IP Code

February 28, 2013, would be considered as a remarkable date to those individual who are extremely aware to the effects of amending the Intellectual Property Code of the Philippines otherwise known as R.A. 8293.

The same date was when the proposed amendments to R.A. 8293 of which is R.A. 10372 “AN ACT AMENDING CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8293, OTHERWISE KNOWN AS THE "INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES", AND FOR OTHER PURPOSES, was approved and signed into law by our President Benigno S. Aquino III. Now, prior and after the said date, a lot of arguments arose out of the said amendment its advantages and disadvantages, and continue to echo until now after a year of its approval.

On my personal experience, just to share, I am not that aware on how serious this matter could be. However during our classroom sessions regarding the matter wherein some points were raised to us by our professor, I came to realized that I should become more familiar with such a matter because I may become already guilty under some of its provisions without even knowing it!

While checking and looking upon my notes during our lecture regarding the matter, I found out specific points raised and discussed therein and my own good way to start this assigned research to us, and it is my time and opportunity to have a look upon it on my own perspective. The following are;

1. Jailbreaking

2. Deletion of Sections 190.1 and 190.2

On jailbreaking, as what I have learned, it is the process or act of accessing other application store other than the exclusively provided and limited by a particular brand such as the products of Apple-IPhone, IPod touch and IPad.

The new law inserted a new provision, of which is Section 171.12, providing a definition of Technological measures. After reading the same for several times, I have this conclusion that jailbreaking is surely a punishable act now. However I am not pleased with my own conclusion so I need to check and look upon some other opinions regarding the matter.

According to IPO Director General Ricardo Blancaflor “Jailbreaking is not a crime. It has never been a crime under the old law or the new law. The bottom line is—you have to have a formal complaint from the person being infringed and of course a finding of infringement. The mere fact that an act was done, I will not even refer to it as jailbreaking, it could be any other form, does not mean it is a crime already. If at all there is a finding to that effect, it will only be an aggravating circumstance but the main element of the crime which is infringing has to be proven first.” ¹

On the contrary, Ms. Raissa Robles pointed out that –

Under the new law, once you modify a device (for instance “jailbreaking” an Apple product such as an iPhone or iPad) in order to remove restrictions on what and how apps and content can be stored and used — you can be held criminally liable for ”copyright infringement.” The amended version introduces for the first time in our criminal law the concept of “digital rights management” (DRM) – which also covers how we use digital devices on the Internet and which behaviors are considered criminal.²

As for me, I strongly believe that jailbreaking should not be considered as a crime. Let those jailbreakers pay the price they have to pay when they have already encountered the negative effects of jailbreaking. With this, our freedom to choose would not be infringed and as to the government they would just simply laughed upon to those victims of jailbreaking. Win-win situation isn’t it?!.

Regarding the deletion of sections 190.1 and 190.2, I heard that this has the effect of encountering airport problems upon arriving here in the Philippines and may be subjected to customs regulations regarding the matter.

According to Ms. Raissa Robles, the deletion erased the right of the Filipinos to bring in here books, CDs, movies legally acquired from foreign countries. On the statement issued by Democracy.net.ph, this change infringes on the right of the people to import books, media and music for their own personal use.

On the other hand, the amendments have removed only the original limitations of three copies when bringing in our country legally and legitimately acquired copies from other countries.

To be honest, I have no stand as of the moment regarding the matter. I am still puzzled about it and needs more enlightenment. Ouch. I wish my further research herein below would assist you to have your own conclusion.

By deleting these provisions under the amendment, there is no longer any limit to the number of copies that can be imported. Also, importation shall not be considered copyright infringement if it falls under the general exceptions which includes fair use (Chapter VIII, Sec. 185 IP Code). Contrary to Ms. Robles’ insinuations that OFWs can no longer bring home copyrighted works, they can in fact bring home more copies for personal use that fall under the fair use exceptions. The deletion of Sections 190.1 and 190.2 in fact allows for religious, charitable, or 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. Moreover, the IPOPHL has a very good working relationship with the Bureau of Customs, hence, there can be no misinterpretation of the real intention of the amendment in the Rules to be drafted by the Commissioner of Customs.³

As I was working with my blog and doing my research I have found out some points regarding the subject matter.

Constitutional Principles Set Aside for Copyright Owners

JJ Disini, University of the Philippines College of Law professor, pointed out that one new provision that gave him serious concern was the expanded power under Section 7 (D). It gave the IPO Director General and Deputies Director General the new power to:

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;

Prof. Disini explained the implications:

“If you are a victim of copyright infringement, under the new law you can ask a government agency (the IPO) to enter a privately owned space in order to search, to look around.

Let’s take another situation – let’s take 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 victim of heinous crimes?

What about securing evidence against suspected 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.⁴

IP amendments violates Bill of Rights

The revised Section 7(d) says that authorities can "conduct visits... to establishments and businesses engaging in activities violating intellectual property rights and provisions of this act based on report, information or complaint received (by authorities)."

Comparing this provision with Section 2 of the Bill of Rights, has led me to conclude that this power is unconstitutional on its face and on its application.

Having already the knowledge in criminal law that before any searches and seizures could be validly and legally conducted a valid search warrant or warrant of arrest should first be acquired, that is by finding a probable cause from a witness to testify personally and under oath before a judge.

As for me, this is a clear shortcut or a circumvention of the constitutional mandate above mentioned.

Possession of Temporary Copies Already Infringe Law

Disini said that, under the revised RA 8293, the mere possession of a "temporary copy" of copyrighted material already makes one criminally liable.

"Under economic rights, if you're just using software, not making a copy, kahit na pirated copy yan, you're not violating copyright law. If all you're doing is just using pirated software, should be safe," he said.

But he pointed out that the mere act of running a piece of software creates a temporary copy if it in a computer's memory —which, in itself, is already illegal under the revised law.

"The mere act of running software which triggers the OS to temporarily copy software into random access memory (RAM) already constitutes infringement," Disini warned.

"So even if you're just using software in an Internet cafe, you're already committing copyright infringement," he added. ⁵

These are some notable amendments in our Intellectual Property Code for me. I am just wondering on how these amendments would be efficiently and effectively implemented.

In summary, the amendments to the Intellectual Property Code are so controlling and vague.

However, I still have this amount of respect to our lawmakers for another effort of trying to improve our local laws. I am just hoping that this effort for improvement is surely our lawmakers’ act of moving forward rather than backward in terms of legislation.

“Ignorance of the law excuses no one from compliance therewith”, the law is for everyone, for every Filipinos, it is such a disappointment that in real setting majority of the Filipinos are ignorant of the law making them a vulnerable victim of dynamic laws.

Crowdsourcing should have been applied here as well, to ensure that the basic human rights as protected by the bill of rights would not be greatly affected.

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1. Blancaflor, Ricardo “Palace to Review IP Code Amendments”,

Intellectual Property Philippines

http://maniolas.com/tag/ricardo-blancaflor

Last Retrieved: May 27, 2014

2. Robles, Raissa, “Congress Erased Every Filipinos Right to Bring Home Music, Movies and Books from Abroad”

http://raissarobles.com/2013/02/14/congress-erased-every-filipinos-right-to-bring-home- music-movies-and-books-from-abroad/

Last Retrieved: May 27, 2014

3. “IP Code Amendments Gives Better Access To Copyrighted Works from Abroad”

Intellectual Property Office of the Philippines

http://ipophil.gov.ph/index.php/component/content/article/20-what-s-new/134-ip-code- amendment-gives-filipinos-better-access-to-copyrighted-works-from-abroad

Last Retrieved: May 27, 2014

4. Robles, Raissa, “Copyright Owners Have More Rights Than Heinous Crimes 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/

Last Retrieved: May 27, 2014

5. Dimacalli, TJ, “New IP Law Allows Warrantless Searches, Erases Right to Personal Use”

GMA News Online

http://www.gmanetwork.com/news/story/294998/scitech/technology/new-ip-law-allows- warrantless-searches-erases-right-to-personal-use

Last Retrieved: May 27, 2014

Martes, Mayo 6, 2014

An Outlook on Senate Bill 53

Introduction

Cyber world, certainly, is paving its way to share its life amongst us. From the necessity of improving a basic calculator –the abacus, which originated from China, cyber crafts have finally embraced the world, the universe and unraveled world boundaries through the internet!

Cyberspace and Internet have created a wide range of opportunities to share information, opening up paths for every individual to group themselves, to organize for whatever purposes it may serve them.

Its fast-phased evolution and improvement should come along with fast sharp-minded individuals who will grasp its enormous power and will make sure that everything is doing just fine. When the cyber world took a nosedive, there arose a lot of crimes related to it and will rapidly increase if not guarded upon firmly and accurately as possible.

With the introduction of Senate Bill 53 or “AN ACT ESTABLISHING A MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM, CYBERCRIME PREVENTION AND LAW ENFORCEMENT, CYBERDEFENSE AND NATIONAL CYBER SECURITY” by Senator Miriam Defensor-Santiago, which protects the rights and freedom of Filipinos in cyberspace, while defining and penalizing cybercrimes, everyJuan will have a fair chance of expressing themselves through the use of internet without a fear of imprisonment.

If passed into law, the MCPIF will be the first law to be created through “crowdsourcing.” Crowdsourcing- is an online process of getting work done by tapping people on the Internet who volunteer their talent and skills.

          According to Senator Santiago, a group of concerned netizens—composed of software designers, IT specialists,
academics, bloggers, engineers, lawyers, human rights advocates—approached her office with a draft of the
         MCPIF. The group formulated the MCPIF through discussions in an open Facebook group, email, Google Hangout
         teleconferences, and social media channels like Twitter. This means that the bill sought to be passed, did not only
   come from researchers of the government, but from netizens who have encountered or are still encountering the
          same problems and ask that their rights be protected. ¹

Reaction (s) to the Introduced Bill

“We are more thoroughly an enlightened people, with respect to our political interests, than perhaps any other under heaven. Every man among us reads, and is so easy in his circumstances as to have leisure for conversations of improvement and for acquiring information.”

-Benjamin Franklin-

1. Right to Freedom of Speech and Expression on the Internet

Although section 3 of the bill provides the protection of the above mentioned right to be accorded to every Filipino Citizen, the same section also provides for certain expressions, writings, speeches or information that could be a subject of an Order which;

(a) creates a clear and present danger of a substantive evil that the state has a right or duty to prevent;

(b) is not protected expression under the standards of the community or the audience toward which the material or information is directed; and

With this, the act should provide as well basic parameters of the above enumerated qualifications for the Filipino citizen to at least know certain limitations of the right, for them to smartly share any information to the internet without facing any possible liabilities.

2. Promotion of the Universal Use of the Internet

This right as provided in the proposed bill under section 5, would be much more effectively achieved when almost all the Filipinos across the nation have an access to the internet in whatever means possible. The bill should have a provision for a possible country-wide access to the internet, taking into considerations as well the smallest communities in remote areas. Such that, the Local Government Units should be tasked according their citizens within their respective territories access to the internet.

The use of wireless, DSL, and cable for broadband access has become increasingly prevalent in metropolitan areas. While these technologies are being successfully utilized in terms of both service quality and economics in densely populated areas, there are still vast geographic regions where broadband services are either prohibitively expensive or simply unavailable at any price. The bill should examine several alternatives for using (WiFi) technology to provide fixed broadband access in rural areas consisting of towns, smaller remote communities, clusters of subscribers separated by large inter cluster distances, as well as widely scattered users.

LGUs should consider the cost benefits of several emerging technologies and architectures, including high gain antennas, dynamically steerable beam forming antennas, and multihop routing.

In addition to the above proposition, those ideas, skills, merchandises, goods unknown to the great majority from different remote areas will be effectively exposed increasing trades and incomes for different entities. Through this, the proposed bill will accomplished its objective of the universal use of the internet.

3. Educational Programs of the Proposed Bill

          Childhood is all about exploration. Through the interactive world of technology, our children are being shaped
          by their exploration of computers and the Internet. The modern computer and the Internet offer today’s children
a powerful device that, if used appropriately, can enhance the development of the child’s physical, cognitive, and
social skills. Children get interested because they can make things happen with the Internet. The Internet is a po-
         werful tool that is revolutionizing our children’s learning, communication and play.3

         Teaching teens about the ethical treatment of others on the web and of websites and intellectual property (such as
   music, videos, and written materials) in cyberspace can help prevent cybercrime. While youth who commit cyber-
        crimes may realize that their actions are wrong, they may not know that their Internet behaviors are illegal.

A U.S. Department of Justice, U.S. Attorney’s Office Task Force categorizes cybercrime in three ways:

The computer as a target (using a computer to attack other computers)
The computer as a weapon (using a computer to commit a crime)
The computer as an accessory (using a computer to store illegal files or information)

These categories include crimes such as launching viruses, storing illegal files (such as child pornography), committing
fraud, infringing copyrights, and pirating software, among others.

Many youth commit cybercrime by;

Downloading and sharing copyrighted video and music files
Harassing others via chat bots (computer programs designed to imitate human conversation)
Hacking into school computer networks to deface websites, enter sites that the school forbids, or change grades⁴

The proposed bill should include a provision mandating different educational institutions to spread the knowledge of the effective use of the internet incorporated therein. The government, through the Department of Education should facilitate learning programs to teach the basics of the cyber world. Significant parts of the bill could be integrated to the student’s computer subject. In effect, minors, at their young ages will have a proper view and idea to effectively make use of the internet avoiding possible violations of the proposed bill.

The best way to prevent youth from committing cybercrimes is to educate them about ethical and legal rules of the Internet, and the emotional and financial costs of cybercrimes to victims. Moreover, cybercrimes carry real consequences. Teach youth that their actions in cyberspace are not anonymous, and that real people are affected by their crimes.

4. Education Programs for Computer Shops Business Owners

An Internet cafe provides Internet and computer access in a coffee shop or computer lab environment, charging by the hour or minute. Often serving food and drinks, Internet cafes are visited by gamers, students, professionals, and people who don't own a computer. Because the Internet provides easy access to all kinds of information, games, and media, it's the responsibility of cafe owners to reduce the harm the Internet could cause if unrestricted access is provided to all customers.

              The anonymity of Internet cafe ISPs can encourage illegal activity, including looking at child pornography
   and hacking. Users also frequently engage in file sharing, downloading or uploading copyrighted material.
   When the identity of Internet cafe users isn't recorded, the responsibility rests with the cafe itself to restrict
             access to illegal material or monitor online activity. In addition, the cafe must make sure to delete user material
   and information stored in the web browser's caches, to ensure privacy is maintained between users. India has
   created guidelines for its cyber cafes that include recommending webcam photos be taken of all users and stored
   along with records of accessed websites, mail server logs, and proxy server installations for at least a year.⁵

Those planning to put up computer shops should undergone first a seminar programs relating to social responsibility, internet freedom rights and cybercrime prevention.

5. Criminal Acts

"The bill intends to repeal the current Cybercrime Prevention Law of 2012 due to the fact that some provisions of the law is claimed to be unconstitutional. On February 25 of this year, the Supreme Court declared certain provisions—including posting a link to libelous material—unconstitutiona"l⁶.

In the past decade, advances in communications technologies and the “informatization” of society have converged as never before in human history. This has given rise to the industrialization of a type of crime where the commodity—personal information—moves far too quickly for conventional law enforcement methods to keep pace.

           In a digital age, where online communication has become the norm, internet users and governments face increased
   risks of becoming the target of cyberattacks. As cyber criminals continue to develop and advance their techniques,
   they are also shifting their targets – focusing less on theft of financial information. To fight fast-spreading
             cybercrime, governments must collaborate globally to develop an effective model that will control the threat.⁷

Our Revised Penal Code should now contain provisions penalizing cybercrimes, as to the proposed bill, it should contain a provision requiring it to be updated, repealed or amended on every given specified period to meet the changing features of every cybercrimes.

6. Globalization

         Globalization is an inevitable phenomenon in human history that's been bringing the world closer through the exchange of
   goods and products, information, knowledge and culture. But over the last few decades, the pace of this global integration
has become much faster and more dramatic because of unprecedented advancements in technology, communications, science,
transport and industry.While globalization is a catalyst for and a consequence of human progress, it is also a messy process
that requires adjustment and creates significant challenges and problems. This rapid pace of change can be unsettling and most
   societies want to control or manage it".⁸

Our legislative arm should consider an active participation in world-wide conventions. Conventions that will embark upon the issues of cybercrimes and to get away with it if not totally get rid of it. This will hasten our lawmakers’ knowledge to adapt applicable rules to regulate the fast changing cybercrimes.

Conclusion

"In his inaugural address, President Benigno S. Aquino III said these words: (This is what democracy means. It is the foundation of our unity. We campaigned for change. Because of this, the Filipino stands tall once more. We are all part of a nation that can begin to dream again)”.⁹

The proposed bill or the Magna Carta for Internet Freedom is a timely appropriate and proper approach to our country’s current situation in regard to the World Wide Web. This proves that we are adapting rules and regulations to meet and to achieve a better, harmonius and quality living with the use of Internet. The Philippines is being cited as a model for participative democracy, that through crowdsourcing, the collaboration and direct participation of citizens enabled by the Internet and ICT, laws can be crafted that reflect most accurately our people’s aspirations. Filipino citizen’s rights and freedom with the use of Internet would be secured if the proposed bill will be passed.

In conclusion, the bill should consider some points as herein proposed, various improvements, prior its implementation. The passage of the bill and its possible implementation shows that the Philippines is on its way to a more advance, technology-based country, not allowing itself to be left behind by some other countries.

This is surely a very good progress for each and every Filipino citizen whose majority are inclined to the use of Internet.

“A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill, having no legal effect, violates no constitutional right or duty.”

-Montesclaros vs COMELEC GR No. 152295

1."After the RH Law: Magna Carta for Internet Freedom is Miriam's New Pet Bill"

Senate of the Philippines 16th Congress

(http://www.senate.gov.ph/press_release/2013/0703_santiago1.asp)

Last Retrieved: May 6, 2014

2. Par. c, section 4, Senate Bill 53

3. “Positive Effects of Internet Usage on Child Development”

(http://www.verdick.org/child-development-and-the-internet/child-dev-pos)

Last Retrieved: May 6, 2014

4. “Teaching Youth Cyber Ethics”

(http://www.ncpc.org/programs/teens-crime-and-the-community/monthly-article/teaching-

youth-cyberethics)