Are the explanations (FAQs) made by Malacanang on the amendments to the Intellectual Property Code of the Philippines, accurate?
One of the major hindrances to development that have beset several major industries within the Philippines, including but not limited to music, movie, and computer industries, is the problem of copyright piracy. For example, the International Intellectual Property Alliance, on its 2010 Special 301 Report on Copyright Protection and Enforcement, reported that the Philippine music and record industry suffered a loss of US$ 112.1 Million in 2009 due to copyright piracy whereas the business software industry suffered a staggering loss of US$126.4 Million, also due to copyright piracy[i]. The same report also noted that a high percent rate of Business Software End – User Piracy, hinders the growth of the Information Technology Sector of the Philippines. Corollary, the same report cited a study which stressed that a decrease in the level of Business Software End – User Piracy will result in job creations which said to be likely within thousands thereby not only improving software industry but ultimately, improving the Philippine Economy as well[ii].
With piracy being rampant within the country, the IIPA in the same report recommended that the Philippines be elevated from their Watch List to the Priority Watch List[iii]. However, due to significant legislations that were recently enacted such as the Anti – Camcording Act of 2010, the 2012 Special 301 Report made by the United States Trade Representative (USTR) maintained the country’s position as one of those under their Watch List thereby preventing its elevation to the Priority Watch List[iv].
However, another significant legislation that must be noted is R.A. no. 10372 which provides for numerous and major amendments on some parts of the Intellectual Property Code of the Philippines (R.A. no. 8293). R.A. no. 10372 is significant because it basically provides for major amendments to the country’s Copyright Law, making it more compatible with today’s technologies, thus enabling it to combat the consequent problems, such as the different forms of copyright piracy. As stated above, Copyright piracy and infringement or the lack of copyright protection has been hindering the growth of some of the country’s major industries. Thus, in order to strengthen the copyright law, the following amendments were made, to wit:
1. The creation of another bureau, which is the Bureau of Copyrights and other Related Rights which exercises functions, inter alia, original jurisdiction to resolve disputes relating to the terms of a license involving the author’s right to public performance or other communication of his work, accept, review and decide on applications for the accreditation of collective management organizations or similar entities and to conduct studies and researches in the field of copyright and related rights[v];
2. New provision expanding and empowering the Director General and Deputies Director General the power to undertake enforcement functions supported by concerned agencies (PNP, NBI, Opitical Media Board, etc.) and more controversially, to conduct visits during reasonable hours to establishments and businesses engaging in activities violating intellectual property rights and provisions of the IPC based on report, information or complaint received by the office and such other functions in furtherance of protecting IP rights and objectives of the Code.
3. Provisions defining ‘Technological Measure’ and ‘Rights Management Information’[vi] and the consequent penalties for their infringement[vii];
4. Amendment providing for the option to deposit with the National Library (or Supreme Court if the work is within the field of law) two (2) complete copies or reproductions of the work[viii]. With this, an owner of a copyright or other related rights may further produce more evidence that the copyright pertains to him thereby reinforcing protection from infringers;
5. Deletion of Sections 190.1 and 190.2 of the Intellectual Property Code which originally provides, among others, the conditions vis – a – vis the importation of a copy of a work for personal use. The deleted Section 190.1 (a) provides, among others, that if the copies of the work are not available in the Philippines, such importation for personal use may be made without the prior permission or authorization of the copyright owner provided that not more than one (1) copy at one (1) time must be imported if strictly for personal use, and if such copies shall be used for religious, charitable, or educational society or institution duly registered or is for the encouragement of the fine arts, or for any state school, college university or free public library, the importation may be made without prior permission or authorization from the copyright owner provided that the copies imported do not exceed three (3) copies. Further, the deleted Sec. 190.1(b) provides when copies that form parts of libraries and personal baggage’s belonging to persons or families coming from foreign countries and are not intended for sale, the deleted section required that it must not exceed three copies[ix]
6. Amendment defining a person who commits an infringement[x]. Worthy of note is the new Section 216 (b) of R.A. no 10372, which provides that those benefiting from infringing activities of another shall also be guilty of infringement provided that the person benefiting has been given notice of the infringing activity and that the latter has the right and ability to control the activities of the other person. Under this newly created Section, establishment owners who allow tenants to sell pirated CDs, DVDs, etc. may now become liable for infringement.
With the enactment of R.A. no. 10372, one can observe the government’s efforts to strengthen the country’s Copyright Law in order to combat the continuing problem of piracy within the country. With the enactment of the law, even landlords or mall owners may become liable for infringement; thus, expanding the coverage of people who may become liable for copyright infringement. However, the law obviously has flaws and they are not minor flaws. The law is constitutionally infirm. Worthy of note is the amendment expanding and empowering the Director General and its Deputies to conduct visits during reasonable hours to establishments and businesses engaging in activities violating intellectual property rights and provisions of the IPC based on report, information or complaint received by the office. With such amendment, a question arises whether the Director General has the power to conduct ‘visits’ even without a search warrant. Gleaning from the letters of the law, it can be inferred that they can conduct such visits without a search warrant and thereby blatantly violating the right against unreasonable searches and seizures, which is one of the constitutionally enshrined and guaranteed rights.
Another amendment to take note is the deletion of Sections 190.1 and 190.2 of the Intellectual Property Code. This is the amendment where Overseas Filipino Workers take concern because under the deleted sections, persons coming from abroad can import copies of works without prior permission or authorization from the copyright owners. With such omission, however, the question that would arise is whether the importation of copies of works for personal use may still be made without being liable for copyright infringement.
In connection with the flaws and questions arising from the amendments made by R.A. no. 10372, the government issued the “FAQs on the amendments to the Intellectual Property Code of the Philippines”[xi], which answers the different questions arising from the law including the questions brought about by the above controversial amendments. Although the government may be lauded for explaining some points for concern regarding the law, the question remains: “Are the explanations (FAQs) made by Malacanang on the amendments to the Intellectual Property Code of the Philippines, accurate?
II. Accuracy of the” FAQs”
Under the “FAQs on the amendments to the Intellectual Property Code of the Philippines”, the government’s explanations or answers can be summarized as follows[xii]:
1. Persons can still import books, CDs and DVDs coming from abroad as long as such were legally purchased. As long as that such imported works were legally purchased, a person coming from abroad can import as many copies as one wants subject of course to Customs Regulations; this is so because R.A. no 10372 deleted Sec. 190.1;thus, removing the original limitation of three (3) copies.
2. The reproduction of a copyright material for personal purposes does not, per se, constitute infringement. Infringement in this context, is said to refer to the economic rights of the copyright owner. Thus, it is said that if you transfer music from a lawfully acquired CD into a computer, then download it to a portable device for personal use, then you didn’t commit infringement. The case would be different however, when the work is reproduced in multiple copies for the purpose of selling them. In such a case, infringement occurs.
3. The possession of, for example, a music file procured through an infringement activity will not constitute copyright infringement provided that it can be proven that the person benefitting from the music file has knowledge of the infringement, and the power and ability to control the person committing the infringement.
4. Jailbreaking or rooting of a phone or device is not per se illegal. What is illegal is making use of such jailbroken or rooted phone in order to engage in infringing activities.
5. Mall owners can now be made liable for the infringing activities of their tenants provided however, that the mall owner has benefited from such infringing activities and has been given notice of the infringing activity and that the latter has the right and ability to control the activities of the other person.
6. It is legal and therefore constitutional for the Intellectual Property Office (IPO) to visit businesses in order to conduct searches based on complaints, reports or information. However, if the IPO will conduct a search and seizure, they will first need to obtain the necessary search warrant. A search warrant will not, however, be necessary if the IPO shall be accompanied by either the Bureau of Customs or Optical Media Board, which are said to have the power to conduct searches and seizures in their own right even without a warrant.
In view of the foregoing explanations or answers, I submit that the above – mentioned “FAQs” specifically explanations numbers one (1), two (2) and six (6), are not accurate based on the following arguments:
First, the importation of copies of works for personal purposes under Sec. 190 of the Intellectual Property Code, as amended, is not only limited to Books, CDs and DVDs. A person coming from abroad can still import other copyrighted products. Further, with the new law omitting Sections 190.1 and 190.2, it still can be argued that the government’s explanation has no legal ground to stand on. The original Sec. 190.1 of the IPC granted persons coming from abroad the right to import copyrighted materials, subject to certain conditions, which can be asserted. As the law stands now, no right could be asserted because of the complete omission of Sec. 190.1 of the IPS. It must also be emphasized that R.A. no. 10372 maintained the original Sec. 190.3. Thus, the Commissioner of Customs with the approval of the Secretary of Finance, can still enact rules and regulations for preventing the importation of infringing materials. With this, the rules may provide for limitations against the importation of copies of infringing materials.
Second, the definition of ‘reproduction’ was also amended. The term now includes temporary and partial reproduction. Thus, if a person will partially reproduce a copyrighted law book with commentaries to be used temporarily because most of his classmates do the same, then such person and including the classmates may still be held liable for infringement because under the amended law, one of the ways of committing infringement is when such is committed with knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another. In view of the foregoing, the government’s explanation under explanation number two (2) is misleading because the explanation given does not really constitute reproduction but a transfer of a lawfully purchased copyrighted material from one personal device to another.
Third, the government explains that the amendment expanding and empowering the Director General and its Deputies to conduct visits during reasonable hours to establishments and businesses engaging in activities violating intellectual property rights and provisions of the IPC based on report, information or complaint received by the office, is legal and in itself constitutional. I submit that such explanation is not accurate and is outright misleading. The Constitution guarantees the right against unreasonable searches and seizures and protects it through safeguards such as prior procurement of warrants. Although the Constitution protects such a right, it does not prohibit searches and seizures. Searches and seizures can be lawfully made when such is reasonably done; it is reasonable when the search and seizure was made with a warrant or if without a warrant, such is one of the recognized warrantless search. However, under the amended law, a mere report of an infringement activity filed with the Intellectual Property Office (IPO) will be sufficient to enable the latter to visit businesses in order to conduct searches. Thus, if a person reports to the IPO that an Office uses pirated software’s, then the IPO already can make the ‘visit’.
Although the government’s explanation under the ‘FAQs’ tried to separate a “visit” from “search and seizure”, it still did not provide for a demarcation line between them. Thus, it can still be argued that a “visit” is similar, if not, substantially the same as with “search and seizure”. This is supported by the fact that the IPO can conduct warrantless search and seizures if accompanied by the Bureau of Customs or the Optical Media Board. With the foregoing, the IPO can conduct an initial ‘visit’ then if they find violations to the IPC, then they can call the Bureau of Customs or the Optical Media Board in order to raid the establishment and thereby effecting a warrantless search and seizure.
Although the problem of copyright infringement and piracy within the country can still be described as severe, the government, in enacting laws that would combat such problem, must do so in a manner that will not infringe the Constitution or any fundamental constitutional right. Based on the 2010 IIPA Special 301 Report on Copyright Protection and Enforcement, the IIPA recommended that the Philippines should ensure search warrants are obtainable on a reasonable and timely basis consistent with international law and that they are not easily quashed[xiii]. Thus, even international standards on intellectual property, recognizes the significance of search warrants. The legislative branch of government should be careful in enacting laws that would trample the rights of others even if such persons were willfully engaged in selling pirated CDs and DVDs. This is so because a wrong can never cure another wrong. For this matter, the explanations made the government through the “FAQ’s on the Amendments to the Intellectual Property Code of the Philippines” should be the one that must be amended due to some inaccuracy that would lead the public to the wrong conclusion about R.A. no. 10372.
In view of the foregoing, I submit that some explanations made by the government through the “FAQ’s on the Amendments to the Intellectual Property Code of the Philippines” are inaccurate.
[i] 2010 Special 301 Report on Copyright Protection and Enforcement. International Intellectual Property Alliance (IIPA). Accessed May 18, 2013 at http://www.iipa.com/rbc/2010/2010SPEC301PHILIPPINES.pdf.
[iv] 2012 Special 301 Report. United States Trade Representative. Accessed May 18, 2013 at http://www.ustr.gov/sites/default/files/2012%20Special%20301%20Report_0.pdf. P. 49
[v] Sec. 1 in relation with Sec. 2 of R.A. no. 10372
[vi] Sec.6, R.A. no. 10372
[vii] See Sections 22-23, RA. No 10372
[viii] Sec. 16, RA 10372
[ix] See deleted Sections 190.1 and 190.2 of R.A. no 8293
[x] Sec. 22, R.A. no. 10372
[xi] FAQs on the Amendments to the Intellectual Property Code of the Philippines. Accessed May 18, 2013 at http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
[xiii] 2010 Special 301 Report on Copyright Protection and Enforcement. International Intellectual Property Alliance (IIPA). Accessed May 18, 2013 at http://www.iipa.com/rbc/2010/2010SPEC301PHILIPPINES.pdf.