Is the explanation regarding the amendments in the Intellectual Property Law (RA 10372) accurate?
The Renaissance Man would have been proud of us. Indeed, we have gone a long way, from Neanderthals discovering fire to sending bunjee-jumping astronauts in space. Ingenuity has propelled us to where we are right now, a world where due to man’s innovation and technological advances, anything is possible. Artists, writers, inventors, designers and innovators, regardless of their reasons for doing it, go through stages of creative process, which could take years of their lives, to transform an idea into a form of expression. As a result, their creation or work becomes their property which should rightly be protected under the laws of man. As such, intellectual property laws were instituted, not only to delineate the rights of the author but at the same time, to push for the thriving of innovation and development.
The Philippines is a haven of talented innovators. This fact is recognized by no less than the 1987 Constitution which provides for intellectual property protection, to wit, “the state shall protect and secure exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.”
Last February 28, 2013, President Benigno Simeon Cojuangco Aquino III signed into law RA 10372, entitled, “An Act Amending Certain Provisions of Republic Act No. 8293, Otherwise Known As The Intellectual Property Code of the Philippines, and For Other Purposes.” Thereafter, the Office of the President released FAQs on the amendments to the Intellectual Property Code of the Philippines [i] to shed light on the matter. Now, the question is, is their said explanation in the FAQ accurate?
While researching on this topic, I chanced upon journalist Raissa Robles’ blog entitled “Copyright owners have more rights than heinous crime victims with Congress’ IP Code Changes-lawyers say.[ii]” Apparently, the said article created a lot of buzz in the social media. Well, it certainly piqued my interest upon reading the title alone. The said blog featured several divergent opinions of authorities on this subject matter, which only confirms that there are loopholes in the amended law.
IMPORTATION FROM ABROAD
In the said FAQ it was explained that we are still allowed to import, books, DVDs and CDs from abroad to wit, “yes, 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 into the country, only the importation of pirated or infringed material is illegal, as long as they were legally purchased, you can bring as many copies you want, subject to customs regulations.”
The amendment pertains to the deletion in their entirety of Sections 190.1 and 190.2 of RA 8293 which in essence provides that, “importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author or the owner of the copyright, under certain circumstances”.
At first glance, it seems like it is good news that the amendment removed the limitation of three copies of copyrighted material. I can now tell my relatives abroad that they can give me unlimited number of pasalubongs of books and DVDs, because under the amended law, we can import as many copies as we want as long as we abide with the customs regulations. Is this too good to be true?
Should the deletion of the entire provision of Section 190.1 and 190.2 be taken as deletion of our very right to import copyrighted materials even without the consent of the author or should we interpret the deletion as regards the three-limit rule only on allowed copies that can be imported?
Intellectual property lawyer, J.J. Dissini has this to say on this query, “in the old law, you are allowed, but Congress removed that right from you, because they deleted the provision that permitted you to do that, so a reasonable interpretation is that Congress intended for you not to have that right.” [iii]
I agree with Atty. J.J. Dissini. If the true intent of the amended law is to remove only the three-limit rule, the law should have stated it clearly. It the true intent of the law is to state that we can now import legitimate copies as many as we want, then the law should have stated it expressly. It is an elementary rule in statutory construction that the true intention of the law as expressed in its language should be clear so as not to make room for ambiguous interpretations. Here, since the amended law omitted the entire provision, and the law is silent as regards the number of copies that are allowed to be imported, such instance can only be interpreted to mean that the said right is no longer present in the amended law.
REPRODUCTION OF COPYRIGHTED MATERIAL FOR PERSONAL PURPOSES
The reproduction of copyrighted material for personal purposes is not punishable by law, according to the FAQ. It argues that, “infringement in this context refers to economic rights of the copyright owner.”
Before RA 8293 was amended, the provisions on Section 177 or the economic rights of the copyright owner are subject to the limitations on copyright under Chapter VIII. Likewise, Sections 203 (Scope of Performer’s Rights), Section 208 (Scope of Rights of Producers of Sound Recordings) and Sections 209 (Communication to the Public) are subject to the limitations on protection of rights under Section 212. Section 212 provides that, “Sections 203, 208, and 209 shall not apply where the acts referred to in those Sections are related to: (212.1) the use by natural person exclusively for his own personal purpose; (212.2) using short excerpts for reporting current events; (212.3) use solely for the purpose of teaching or for scientific research; and (212.4) fair use of the broadcast subject to the conditions under Section 185.”
However, in the amended law, Section 212 has been amended which now reads as follows: “Section 212 Limitations on Rights- the provisions of Chapter VIII shall apply mutatis mutandis to the rights of performers, producers of sound recordings and broadcasting organizations.” This means that the provisions on Section 212 have been deleted and that the provisions on economic rights shall apply mutatis mutandis.
Meanwhile, Section 203.2 which states that, the performer has “the right of authorizing the direct or indirect reproduction of their performances fixed in sound recordings, in any manner or form” is limited by Section 212.1 which provides that the said performer’s right does not apply when, “use by a natural person exclusively for his own personal purposes.” The correlation between the two sections is no longer applicable because of the amended law. Now, you can no longer reproduce a sound recording even for personal purposes only. If you do, you will be liable for infringement under the economic rights of the copyright owner based on the amended law.
POSSESSION OF A COPYRIGHTED MATERIAL THROUGH AN INFRINGING ACTIVITY
The FAQ explains that, “possession of a music file procured through an infringing activity is a violation of this law, only if it can be proven that the person benefiting from the music file has knowledge of the infringement, and the power and ability to control the person committing the infringement.” In other words, one is not liable under this law, if it can be proven that the person benefiting from it has no knowledge of the infringement and the power and ability to control the person committing the infringement. So in this context, good faith is a defense against an infringing activity.
Infringement is defined under the amended law as a “(a) person who directly commits an infringement; (b) benefits from the infringing activity of another who commits an infringement if the person benefiting has been given notice of the infringing activity and has the right and ability to control the activities of the other person; and (c) with knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.”
Meanwhile, Section 216.1 which provides for Remedies for Infringement was likewise amended. One of the amended parts under this provision reads, “in case the infringer was not aware and had no reason to believe that his acts constitute an infringement of copyright, the court in its discretion, may reduce the award of statutory damages to a sum of not more than ten thousand pesos…”
Now, if good faith is a defense just like what the FAQ implies, why is it that under the remedies in the amended provision, it is provided that the court, in its discretion, may reduce the award or statutory damages if good faith of the infringer has been proven? The said provision implies that the court, in its discretion, can take the good faith defense of the infringer, if proven, as a mitigating circumstance for the payment of statutory damages. In this respect, it follows that possession alone, of a copyrighted material through an infringing activity without the requisites of knowledge of the infringement and power and ability to control the person committing the infringement is, indeed, a violation of this amended law. It seems that the explanation and the amended law are irreconcilable. Under Section 216.1, there is a remedy provided by the amended law involving an infringer “not aware of his acts constitute an infringement of copyright.” So aside from the three enumerated acts under Section 216, it is also implied that a person without knowledge of his infringement act is also penalized under the amended law? In this light, the definition of infringement becomes vague and the FAQ statement on this matter is nowhere close to accurate.
According to the FAQ, “Jailbreaking or rooting by themselves are not illegal. It is defined as “hacking the phone’s OS to allow consumers to run any application on the phone they choose.” [iv] To Apple’s dismay, it has been declared legal in the US as one of the exemptions to its intellectual property law, the Digital Millennium Copyright Act’s anti-circumvention provisions.[v]
Under the amended law, Section 171.12 defines technological measure as, “any technology, device or component that, in the normal course of its operation, restricts acts in respect of a work, performance or sound recording, which are not authorized by the authors, performers of sound recordings concerned or permitted by law.” In this context, jailbreaking is a circumvention of technological measure because you can access the operating system of the phone and add applications to it that are otherwise restricted by the cellphone maker. In other words, you can customize the applications in your cellphone in accordance to your predilection. However, I will not go that far and say that such modification would qualify as a derivative work because our law does not provide for such matter. I suppose the only upshot of jailbreaking is the loss of warranty, which for some is not a big deal since they think they can maximize the utilization of their phone by jailbreaking it. It is within their freedom of choice to give up such protection. After all, such protection is only for at least a year.
On the other hand, according to the FAQ, “committing infringement with a jailbroken phone increases the penalty and damages imposed on the person found guilty of infringement.”
So jailbreaking is merely treated as an aggravating circumstance under the amended law, as stated in Section 216.1(b)(i), “the amount of damages to be awarded shall be doubled against any person who, (i) circumvents effective technological measures.” But if jailbreaking is legal, why should it be treated as an aggravating circumstance?
EXTENDED LIABILITY FOR MALL OWNERS
Under Section 216( c ) of the amended law, “a person infringes a right protected under this Act when one ( c ) benefits from the infringing activity of another person who commits an infringement if the person benefitting has been given notice of the infringing activity and has the right and ability to control the activities of the other person.”
In relation to the above provision, the FAQ explains that “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 have benefitted from the infringement.”
I suppose the extended liability of the mall owners is good in a way that accountability for infringement is present to both mall owner and tenant. More so, the fight against infringement would be extensive, which will be taken down to the level of consumers, so to speak, since it is common knowledge that there are certain malls that allow their tenants to sell infringed materials. In this sense, the mall owners will be forced to become more vigilant in screening and monitoring their tenants for any infringing activity. Nonetheless, this provision will only be good on paper until those certain malls will be made liable.
The FAQ explanation seems legitimate since the mall owner upon notice of the infringement will be given ample time to act upon such notice. Good faith then, is a defense for mall owners. However, what happens now when the infringing activity of the tenant has come to the knowledge of the mall owner? What actions should the mall owner carry out? The mall owner’s liability should have been explained thoroughly in the amended law itself and not in the Implementing Rules and Regulations.
LEGALITY OF POWER OF IPO TO “VISIT” AND TO CONDUCT SEARCHES
Under the amended law, Section 7, “the director general and deputies director general can exercise the following powers and functions, (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.”
The FAQ, as regards to this matter explained that, “the IPO may visit establishments based on reports and complaints, this in itself is constitutional. However, if the IPO intents 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.”
I am not convinced with the said explanation. Clearly, Section 7 should be declared unconstitutional as it is a direct violation of the 1987 Constitution, particularly Article III, the Bill of Rights, Section 2 which states, “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”
The director general and deputies director, now have the power to conduct visits to establishments without search warrant. Atty J.J Dissini in Ms. Robles’ blog explained that the said provision, “gives copyright owners more rights than the victims of such crimes as murder, rape and terrorism.” I agree. I mean, what will they do when they “visit”? Observe or look around? This is invasion of right to privacy if there is no showing of probable cause. Persons in authority cannot do this to suspects of murder, rape and terrorism as there would be a need for probable cause to obtain search warrant. And here comes a law which allows warrantless search only to protect the rights of the few. Is this really the intent of law?
To say that the IPO’s power to visit is constitutional is inaccurate and misleading. The said power is an example of unreasonable search and seizure. As I have learned in my Constitutional Law II class, the Bill of Rights provides premium protection of the right to privacy of a person and that is why it is very important that probable cause must first be established before the persons in authority can perform reasonable search and seizures. Yet, the constitutional requirement for lawful search and seizure does not stop there. It further requires that a judge shall determine the existence of probable cause, only after examination under oath by the witnesses that he may produce or affirmation of the complainant and such search warrant must particularly describe the persons or things to be searched. The Constitution is very clear on this matter and is applicable in all instances except for the seven allowable warrantless searches.
What is more appalling is that the basis for the said power to visit will only be the reports and complaints that they will receive. In the strict sense under this provision, they will heavily rely solely on third-party information and remain inactive with regard to the information-gathering. So what if no one complains? I suppose reports and complaints are not sufficient basis because there is no one to verify the certainty of such information under oath.
According to the FAQ, the procedure and safeguards for the amended law are to be spelled out in the Implementing Rules and Regulations. So, all our questions will be answered in the IRR? I don’t think it is too much to ask from the lawmakers that the law itself shall be complete and clear enough so that ordinary citizens of common intelligence such as myself can understand the law. The amended IP Code left several gaps that should be addressed by the law itself and not by the Implementing Rules and Regulations. If there are ambiguities in the law, why can’t they amend it again? As I have learned in my Statutory Construction class, the Implementing Rules and Regulations could not cure the defects of the law.
A COPYRIGHT REGIME SYSTEM
I agree with Director General of IPO DG Blancaflor when he said that, “we have to protect creation whether it’s foreign or Filipino, people should realize that it’s not always a one-way street, if we have a good copyright regime system, this country can take advantage of its artists.” [vi] However, what DG Blancaflor should understand is that, to have a good copyright regime system, the intellectual property law should be in accordance with constitutional precepts. The amended Intellectual Property Law has several ambiguities and questionable provisions, notably, Section 7(d), the provision which renders the director general exceptional powers. Such provision is a blatant disregard of the right to privacy of a person. Likewise, DG Blancaflor should be humble enough to recognize the flaws of the amended law. To have a defective law is dangerous. As pointed out by authorities on this matter, there are inaccuracies in the government’s explanation. And if such inaccuracies will not be harmonized soon, the true intent of intellectual property law will lose its force.