Monday, May 20, 2013

Technology and the Law (Intellectual Prop. Law)

Showing knowledge seems to be a part of human nature already. No man is an island; part of our existence is to learn from one another. We learn in different ways, it can be by means of listening, talking, observing, reading, or copying. Following the concept of intellectual property law, we also learn and share ideas by means of copying. It has been the mode of transferring documents, discoveries and inventions from ancient to modern times. It has also become a means to disseminate information. However, these means and ways of sharing are often times being abused by the people especially in the world of commerce. With this regard, I move to raise certain issues which I believe should be given priority and clearer interpretation by the law.

Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. Intellectual Property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonographs in their recordings, and those of broadcasters in their radio and television programs. 

Intellectual property, very broadly, means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.

Generally speaking, intellectual property law aims at safeguarding creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use made of those productions. Those rights do not apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such. Intellectual property is traditionally divided into two branches, industrial property and copyright.

Am I still allowed to import books, DVDs, and CDs from abroad?

According to MalacaƱang, a person can import books, DVDs and CDs from abroad. 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 in to the country. Only the importation of the pirated or infringed materials is illegal. As long as they were legally purchased, you can bring as many copies as you want, subject to the customs regulation.
Section 190 of Intellectual property code of the Philippines, Chapter VIII Limitations on Copyright which is amended provides that:
“Importation for Personal Purposes. - 190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work 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.
(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, that such copies do not exceed three (3).
190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor's right of action.”

The aforesaid provision of Intellectual property code of the Philippines is contradicting to Malacanang’s opinion is. However, such provision has already been repealed.

The new law, Republic Act No. 10372, totally deleted Sections 190.1 and 190.2. This deletion is interpreted by some quarters as a clear intent to disallow such acts. In other words, they argue that unlike before, Filipinos and foreigners alike cannot bring to the Philippines an intellectual property work, a book or a CD for instance, even if it is for personal use. This would mean that if the traveler brings a book, perhaps bought from the airport bookstore abroad to pass away time, it would be illegal for that book to be brought within the Philippine jurisdiction. Some blogger said that the deletion of entire sections of 190.1 and 190.2 deprived every Filipino’s right to bring home music, movies and books from abroad. Said blogger’s opinion is totally contrary to Malacanang’s opinion. The deletion of the said Section is more favorable to the people to import books, DVDs and CDs abroad as long as the said imported materials are not pirated materials or infringed materials and they were legally purchased abroad. It removes the limits on the number of copies of books, software or other materials protected by the Intellectual Property Law provided that they will be for personal use according to them.
Based on the provision of the law, the Malacanang opinion is not accurate. The said amendment focuses only on the infringing materials which might be imported or exported in the Philippines. The new law did not specify how many books, DVDs, CDs can be imported by an individual. The said amendment also is contrary to the opinion of the malacanang that as long as the materials are for personal use, said person can import books as many as he can. The word personal use in the new law has been deleted, therefore even if it is for personal use, said importation of any materials is contrary to the said new law.

Is the reproduction of copyrighted material for personal purposes punishable by this law?

Contrary to MalacaƱang’s opinion, Infringement in this context refers to the economic rights of the copyright owner. If you transfer music from a lawfully acquired CD into a computer, and saved it in a portable device for personal use, then no infringement has been committed. But if, for example, you make multiple copies of the CD for the purpose of selling them, then infringement has been committed.

According to the new law, Republic Act No. 10372.
203.2. The right of authorizing the direct or indirect reproduction of their performances fixed in sound recordings or audiovisual works or fixations in any manner or form;
“203.3. Subject to the provisions of Section 206, the right of authorizing the first public distribution of the original and copies of their performance fixed in sound recordings or audiovisual works or fixations through sale or rental of other forms of transfer of ownership;
“203.4. The right of authorizing the commercial rental to the public of the original and copies of their performances fixed in sound recordings or audiovisual works or fixations, even after distribution of them by, or pursuant to the authorization by the performer; and
“203.5. The right of authorizing the making available to the public of their performances fixed in sound recordings or audiovisual works or fixations, by wire or wireless means, in such a way that members of the public may access them from a place and time individually chosen by them. (Sec. 42, P.D. No. 49A).”
In the case at bar, as long as there is no intention of selling such CD copies into a third person or making a multiple copies of the CD for the purpose of selling, then no infringement has been comitted.
The aforesaid provision prohibits only the multiple copies of a CD with the intention of selling it, because it will infringe the economic rights of the copyright owner.

The third issue that was solved by Malacanang was, ‘is the possession of, for example, a music file procured through an infringing activity a violation of this law’?
Malacanang said that only if it can be proven that the person benefiting from the music file has knowledge of the infringement, and has the power and ability to control the person committing the infringement.

Copyright infringement occurs when someone other than the copyright holder copies the expression of a work. This means that the idea or information behind the work is not protected, but how the idea is expressed is protected.

In this issue, if a person who is in the possession of a music file has procured it by means of infringement which to his knowledge is a violation of the said act, provided that said person benefited from such act, then he is considered in bad faith from the moment he acquires knowledge about the act of infringement and failed to report it to the authority. If it is proven that he committed such act, then he will be considered liable for the illegal possession of such materials.

The next issue is whether jail breaking or rooting personal phone or device illegal. Malacanang said that Jailbreaking or rooting by themselves is 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 law does not prohibit jailbreaking or rooting personal phone or device, what the law prohibits is downloading pirated material, or committing infringement with a jailbroken phone.

For example for jailbreaking, one of the obvious reasons to jailbreak is to get access to those apps that Apple did not approve for the App Store. Apple has strict guidelines on what is allowed and what is not allowed, with apps that access certain features of the device or replicate default features often getting the book. According to the law, jailbreaking is not illegal. What makes illegal is the downloading of pirated materials through jailbroken phone or any gadgets because it is an act that transgresses against the Intellectual Property Code of the Philippines. Such act falls within the scope of piracy which is prohibited by this act.

Are mall owners liable for infringement activities of their tenants? According to Malacanang, 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 benefited from the infringement.

This issue is actually related to the preceding issue that such person or mall owner must be proved that he has knowledge of such infringement. He cannot be automatically penalized for the infringing acts of their tenant without taking any legal steps.

It is also provided in Section 1 Article III bill of rights of the Philippine constitution that No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of laws.

In the case at bar, the mall owner cannot be automatically penalized for the infringing acts of their tenants without due process of law or without being proved, because it is not just prohibited by this act but also by the Philippine constitution.

The last issue that the Malacanang need to answer about the amendment of Intellectual property law is whether it is legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints.

In response to this issue, the malacanang said that Intellectual Property Officer 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.

According to the Intellectual property law, the Intellectual Property Officer has a right to 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; and such other functions in furtherance of protecting IP rights and objectives of this Act.

In this issue, Intellectual property officer must comply with requirements provided in our constitution if such visitation is intended for search and seizure. Non compliance of intellectual property officer of the requirement is a violation of the constitutional law of the Philippines.

In statutory construction, “what the law does not include, it excludes” and “when the law does not distinguish, we should not distinguish”, the way I understand these two principles I think that the omission of such provisions disallows such acts, hence it does not distinguish as an act being for public or personal use. Based on this, such omission makes the law too strict that it misses the intent of the law. 


  1. Can you explain clearer your stand regarding the visitorial power given to the IPO. I can’t seem to understand how you put into mix the latin maxim of EXPRESSIO UNIUS EST EXCLUSION ALTERIUS. Do you believe with Malacanang that it is constitutional for the IPO to conduct visits based on merely reports and complaints? Don’t you think that the requirement to conduct a visit is too shallow that it disregard due process already. Thank you.

  2. I too do not see the relevance of the latin maxim "what the law does not include, it excludes." Please clarify further. Thank you :)

  3. Would it not be unfair to leave what "benefits" a mall-owner receives from a tenant who violates the IP laws as ambiguous and vague? Because rent, in itself, can be considered a benefit, or even the attraction of people to the property is also a benefit. So how can Malacanang address this ambiguity? Or rather, how would you address it, if you were the Director General of the IPO?

  4. Would it be possible that jailbreaking leads to piracy? As being used recently, jailbreaking is a way for a majority of people to pirate applications. That being said, they get applications without being bought. And if so, would it make jailbreaking illegal?