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, 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

Walang komento:

Mag-post ng isang Komento