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.
***********************************************************************************
1.
Blancaflor, Ricardo “Palace to Review IP Code
Amendments”,
Intellectual Property Philippines
Last Retrieved: May 27, 2014
2.
Robles,
Raissa, “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
Last Retrieved: May 27, 2014
4.
Robles,
Raissa, “Copyright Owners Have More Rights Than Heinous Crimes 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
Last Retrieved: May 27, 2014
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