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 Malacañang, 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 Malacañang’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. 

http://www.gov.ph/2013/02/28/republic-act-no-10372/
http://www.wipo.int/portal/index.html.en
Philippine constitutional law

tech and the law

QUESTION: Will R.A 10173 provide sufficient mechanism to the introduction of the national ID system in the Philippines, without the constitutional issues arisen in the case of Ople vs. Torrres (G.R. No. 127685 July 23, 1998)?

Tracing the root of the National ID System issue, it started when Petitioner Ople (in the case of Ople vs. Torres (G.R. No. 127685 July 23, 1998), prays that the court invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" on two important constitutional grounds, viz:

1.

It is a usurpation of the power of Congress to legislate ; and

2.

it impermissibly intrudes on our citizenry's protected zone of privacy.

A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows:

ADOPTION OF A NATIONAL COMPUTERIZEDIDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services on social security and reduce, if not totally eradicate fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government intrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby direct the following:

Sec. 1. Establishment of a National Compoterized Identification Reference System. A decentralized Identification Reference System among the key basic services and social security providers is hereby established.

Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive Secretary, with the following as members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and Local Government

Secretary, Department of Health

Administrator, Government Service Insurance System,

Administrator, Social Security System,

Administrator, National Statistics Office

Managing Director, National Computer Center.

Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC.

Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies. TheIACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems.

Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference.

Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies.

Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the President through the IACC, on the status of implementation of this undertaking.

Sec. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and

Ninety-Six.

(SGD.) FIDEL V. RAMOS

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee, are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order enjoining its implementation.

Petitioner contends:

A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION.

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES;

D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY

This case was decided in favor of the petitioner. The court held that; A.O. violates the right to privacy

In striking down A.O. 308, the SC emphasized that the Court is not per se against the use of computers to accumulate, store, process, retrieve and transmit data to improve our bureaucracy. The SC also emphasized that the right to privacy does not bar all incursions into the right to individual privacy. This right merely requires that the law be narrowly focused and a compelling interest justify such intrusions. Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions.

The right to privacy is a constitutional right, granted recognition independently of its identification with liberty. It is recognized and enshrined in several provisions of our Constitution, specifically in Sections 1, 2, 3 (1), 6, 8 and 17 of the Bill of Rights. Zones of privacy are also recognized and protected in our laws, including certain provisions of the Civil Code and the Revised Penal Code, as well as in special laws (e.g., Anti-Wiretapping Law, the Secrecy of Bank Deposit Act and the Intellectual Property Code).

The right to privacy is a fundamental right guaranteed by the Constitution. Thefore, it is the burden of government to show that A.O. 308 is justified by some compelling state interest and that it is narrowly drawn. The government failed to discharge this burden.

A.O. 308 is predicated on two considerations: (1) the need to provide our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. While it is debatable whether these interests are compelling enough to warrant the issuance of A.O. 308, it is not arguable that the broadness, the vagueness, the over breadth of A.O. 308, if implemented, will put our people’s right to privacy in clear and present danger.

The heart of A.O. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a “common reference number to establish a linkage among concerned agencies” through the use of “Biometrics Technology” and “computer application designs.” Biometry or biometrics is “the science of the application of statistical methods to biological facts; a mathematical analysis of biological data.” The methods or forms of biological encoding include finger-scanning and retinal scanning, as well as the method known as the “artificial nose” and the thermogram. A.O. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used.

Moreover, A.O. 308 does not state whether encoding of data is limited to biological information alone for identification purposes. The Solicitor General’s claim that the adoption of the Identification Reference System will contribute to the “generation of population data for development planning” is an admission that the PRN will not be used solely for identification but for the generation of other data with remote relation to the avowed purposes of A.O. 308. The computer linkage gives other government agencies access to the information, but there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system.

A.O. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. The lack of proper safeguards in this regard of A.O. 308 may interfere with the individual’s liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for “fishing expeditions” by government authorities and evade the right against unreasonable searches and seizures. The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. They threaten the very abuses that the Bill of Rights seeks to prevent.

RA 10173 aims to protect the fundamental human right of privacy of communication while ensuring free flow of information to promote innovation and growth. The Act fundamentally secures and protects the confidentiality, as well as the integrity of personal information in both government and private sectors. It sanctions unauthorized disclosure of personal information. The statute as well established a directive that a person should give information by virtue of his free will and full understanding of the purpose it is intended to be used. It also guards journalists and publishers for they cannot be compelled to reveal their sources.

The subject law provides for the creation of a National Privacy Commission in order to monitor and ensure compliance of the country with the international standards for data protection.

The passage of the Data Privacy Act may well tender each and everyone of us the crucial peace of mind in disclosing vital information indispensable for our various trades, may it be personal or business dealings, knowing that our right to information privacy is shielded by the law’s mandate against possible abusers. Accordingly, it is expected to promote investment in the rapidly emerging information technology and business process outsourcing industries in the country. Conversely, it would make individuals and entities be more vigilant of the possible consequences of misuse and abuse of information, ensuing to a more responsible use of information technology.

RA 10173 is indeed a crucial law in the current digital age. It could really be of immense value to one and all of us, over and above that it could be of great benefit to our nation as a whole. At this time, proper implementation and observance of the new law are the critical keys to realize its well-settled aspirations

  

In response to the question of will R.A 10173 provide sufficient mechanism to the introduction of the national ID system in the Philippines, without the constitutional issues arisen in the case of Ople vs. Torrres (G.R. No. 127685 July 23, 1998), I take the stand to answer yes.

I believe that R.A no. 10173 can stand alone to push through the innovative and more convenient purpose of A.O No. 308. As stated in the declaration of policy under sec. 2 of Data Privacy Act of 2012 (R.A 10173); It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected. We cannot deny the fact that technology is unstoppable in terms of improvement that even the law itself which primarily protect new inventions has to adapt with the technology’s improvements. The intention of the new act can go side by side with A.O. No. 308 to protect primarily the privacy right of an individual even without quoting relevant constitutional provisions.

If there is one vital issue regarding the intention of A.O No. 308 which can be raised by non-supporters over and over, that would be the impermissible intrusion on our citizenry's protected zone of privacy. There’s always this fear of possible unwarranted disclosure of confidential matters enormously accumulated in computerized data banks and in government records relating to taxes, public health, social security benefits, military affairs, and similar matters. But let us also not forget, that we have a sufficient number of laws particularly criminal law prohibiting and punishing any such unwarranted disclosures and the civil law which provides remedy for possible civil damages that it may bring. R.A No. 10173 seemed to be very supportive of the said laws. The scope of the act is clear, the act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.