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 (www.gov.ph).
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.
- Am I still allowed to import books, DVDs, and CDs from abroad?
- Is the reproduction of copyrighted material for personal purposes punishable by this law?
- Is the possession of, for example, a music file procured through an infringing activity a violation of this law?
- Is jailbreaking or rooting my phone or device illegal?
- Are mall owners liable for infringement activities of their tenants?
- 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?