Sunday, May 19, 2013

Is the explanation of Malacanang relevant to the amendments of the Intellectual Property Law, RA 10372, accurate?
By: Darius Francis M. Paduada

Yes, Malacanang’s explanation to the amendments made by RA 10372 of the Intellectual Property Code is accurate. It is based on the said amendments. However, I do not agree in its entirety. Since as of the moment there is no Implementing Rules and Regulations (IRR) regarding the matter, the public must be contented with facts and questions posted on the online Office Gazette ( Basically, my discussion about the subject matter will be limited to the explanations posted.
The amendments made by RA 10372 of RA 8293 have resulted into six (6) frequently asked questions. Well, that is according to the Palace. My take on this issue is that yes they are correct that those are the top six (6) popular queries. But I cannot agree that they are the most important, relevant, and essential elements of the new law. At the very least they are mere statement of facts. They are merely a question and answer type of explanation that we, the public, have no idea how Malacanang come up with the 6 most frequently asked questions. Was there a survey? Was there a study conducted? Or a research made by the Palace or the IPO? Again, we cannot verify this. We just have to settle with what is posted.
Another issue is about the list of questions. I have read RA 10372 and I think I can come up with far more important questions about the amending law than the FAQ’s of Malacanang. So in this article, I 'a, planning on making my own list. But first here are “our” questions about RA 10372 as posted.
  1. Am I still allowed to import books, DVDs, and CDs from abroad?
  2. Is the reproduction of copyrighted material for personal purposes punishable by this law?
  3. Is the possession of, for example, a music file procured through an infringing activity a violation of this law?
  4. Is jailbreaking or rooting my phone or device illegal?
  5. Are mall owners liable for infringement activities of their tenants?
  6. Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints?

In my reading and studying about the subject matter and its relation to our course in Technology and the Law, I decided to come up with my own list. I considered here the more vital and essential parts of the bill that made it one of the controversial laws in our recent memory.

I think this should be asked about this new law.

Question 1: Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints?

Malacanang’s Answer: The IPO 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 (per Republic Act No. 1937 and 9239, respectively).
Comment: This is one the questions in Malacanang's list. In fact it is number six (6). I think this topic should be number one (1) because this involves constitutionally guaranteed rights of due process and notice and hearing. RA10372 hereby bestowed on the IPO through its Director General additional functions. Section 2 of RA 10372 amended Section 7 of the IP Code. It reads as follows:
Sec. 7. (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;
Futhermore, the conduct of Intellectual Property visits is implented by paragraph C of the sam Sec. 7 which provides that the IPO can:
(c) Undertake enforcement functions supported by concerned agencies such as the Philippine National Police, the National Bureau of Investigation, the Bureau of Customs, the Optical Media Board, and the local government units, among others;

Visitorial powers are not unconstitutional. I first encountered visitorial powers in Labor law wherein the Secretary of Labor and Employment or his duly authorized Regional Directors are empowered to visit business establishments to make sure that Philippine labor laws are implemented. Visitorial powers go hand in hand with enforcement. I think it is a justified and necessary power that ensures protection of labor. In the case of the IPO, it is unnecssary and we can also say contravenes constitutional boundaries. There is distinction between the Secretary of Labor and the IPO. It should be noted that the IPO is not an ordinary office. It exercises quasi-judicial functions. But for the Intellectual Property Office to have the power to visit establishments based on reports and complaints is too far.
The Director General exercises exclusive appellate jurisdiction over all decisions rendered by Directors of other bureaus under the IPO (Sec. 7.1.b). The Office of the Director General further exercises original jurisdiction to resolve disputes relating to the terms of a license involving the author’s rights to public performance or other communication of his work (Sec.7.1.c). Furthermore, the Bureau of Legal Affairs has the primary function to hear and decide opposition to the application for the registration or cancellation of trademarks, patents, utility models and industrial designs (Sec.10.1). It also exercise original jurisdiction in administrative complaints for violation of laws involving intellectual property rights where the total damage claimed are not less than P200,000.00 (Sec.10.2.a). What I’ am trying to emphasize here is that the IPO is an office with quasi-judicial function. It is not limited to mere registration. It has discretion and applies the Intellectual Property Law on applications and hearings. It hears and decides cases. Therefore, what is it doing visiting establishments based on reports and complaints? Why will perform searches and seizures? How is it allowed to undertake enforcement functions supported by the Philippine National Police, the National Bureau of Investigation, the Bureau of Customs, the Optical Media Board, and the local government units? And even can do so without warrant? I think that the ruling of the Supreme Court as to the fundamental and essential requirements of due process in trials and investigations of an administrative character laid down in Ang Tibay vs. CIR (G.R. No. L-46496 February 27, 1940) applies to the Intellectual Property Office.
Finally, this issue should be clarified with; perhaps in the coming IRR. We do not need another OMB whose news breaking activities always involve playing patintero with CD/DVD pirates. I also believe that the IPO has quasi-judicial functions. And such functions require neutrality and impartiality of the Office.

Question 2: Is the protection on copyright lasts in perpetuity under RA 10372 thus amending the general lifetime of the author plus 50 years rule?
This question and discussion is not on the Malacanang list and I only included this for purposes of my discussion.
Sec.17 of RA 10372 amended Section 198 of Republic Act No. 8293 which states that:
SEC. 198. Term of Moral Rights. – 198.1. The right of an author under Section 193.1. shall last during the lifetime of the author and in perpetuity after his death while the rights under Sections 193.2. 193.3. and 193.4. shall be coterminous with the economic rights, the moral rights shall not be assignable or subject to license...”
If the right of the author over his works extends perpetually, how can his work be enjoyed by the public domain? Will be paying the author, his assigns or heirs, of fees and royalties forever? In the beginning, this new provision could be confusing and controversial. Obviously the perpetual copyright protection does not apply to all the rights of the author or creator. This should be clarified.

There are two (2) bundle of rights afforded to an author/creator. The first is the copyright or economic rights and the second is moral rights. Section 177 provides for the economic rights while Section 193 states the moral rights. The amendment made by RA 10372 affects only the moral rights of the author. There is no question about the author’s economic rights. It is generally protected during the lifetime of the author and 50 years after death.

The change applies to moral rights. However, we should first make another distinction. Not all the moral rights afforded to the author under Sec. 193 extend to the work perpetually. The right of the author in Sec.193.1 is forever. I think this is rightly so. To require that the authorship of the works be attributed to him should stand the test of time and cannot be term- bound. Let the work be attributed to the source. Just like in trademarks, the name of the author appearing on the work is a source indication function. The author has the right to be credited of the work he has put into. While on the other hand, be criticized if some people disagrees.

According to our IP class, the indication right of an author is also called paternity rights. The paternity right of the author can explain it all. The author is the father of his creation. The creation is the child of the author. There is no denying that. What more is the best indication of a work than to be attributed to it as its father-creator.

Question 3: Is jail breaking or rooting my phone or device illegal?

Malacanang’s Answer: No. Jailbreaking or rooting by themselves are 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.
This is also posted in the FAQ. The reason I included and adopted this from Malacanang’s version into my own list is because I find it amusing and new. The first time I heard the word jail breaking was just last week in my Intellectual Property class. I was enlightened that jailbreaking and rooting are the process of removing the vendor-imposed limitations of tablets, mobile devices and other electronic gadgets and their only diffrence is jailbreaking is for iOS while rooting is for Android. If there are persons who are not fun of gadgets and technologies, I think I’ m one of them. Although I am an admitted caveman on latest gadgets, I still find jail breaking amusing. It is new and the young understands it.
But regarding the accuracy on Malacanang’s explanation, I disagree. First and foremost, the question is incorrect and out of context. Jail breaking or rooting my phone or device is not illegal if the only party concerned is the government. Obviously it is not legal if you ask telecommunication companies. They will be losing profits. Their devices will be reconfigured. The more correct question would be “Is jail breaking or rooting my phone or device copyright infringement?”
My take on this issue is, it is not infringement. My basis? I do not have any legal basis. At first I thoght I had but I realized it was inacccurate. Regardless, my stand that jailbreaking and rooting is not infringement stands. And this makes this question worthy to be explained more by the Intellectual Property Office.

My first realization was jailbreaking and rooting is a technologigal measure.
Section 6 of RA 10372 amended RA 8293 and added a definition of a technological measure. Accordingly, ‘Technological measure’ means 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 or producers of sound recordings concerned or permitted by law (Sec. 171.12).
Following this, jailbreaking and rooting as a technological measure would disqualify it as an act of infringement per se. It would only as some sort of an aggravating circumstance. This is what is provided by the new Section 216 which states that:

216.1. Remedies for Infringement. – Any person infringing a right protected under this law shall be liable:
(b) To pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to the infringement as well as the profits the infringer may have made due to such infringement, … Provided, That the amount of damages to be awarded shall be doubled against any person who:
(i) Circumvents effective technological measures;

Again, is the explanation of Malacanang relevant to the amendments of the Intellectual Property Law, RA 10372, accurate? No. As I have presented there are many issues left hanging. There are many issues not discussed in the FAQ. There is no basis on coming up with the most frequently questions asked just like the surveys of Pulse Asia and SWS during election periods. And lastly I need to know the IPO's take on modern devices, cellphones, downloading and the like. Is it infringement or not?

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