LEAL,
MICHELLE D.
2011-0279
What should be the Philippine
direction in Philippine Copyright Reform?
In June 2011, Senator Villar and his
colleagues in the Committee of Trade and Commerce in the Senate have submitted
Senate Bill No. 2842 which provides certain amendments in RA 8293 or otherwise
known as the Intellectual Property Code of the Philippines primarily to give further protection to
intellectual property rights in the Philippines. Some of the amendments introduced are:
"a) giving special copyright considerations for the blind, visually-and
reading-impaired persons when reproduction is made in a specialized format and
distributed for free; b) improvement in the organizational structure of Bureau
of Copyright under the Intellectual Property Office of the Philippines (IPOPHIL);
c) strengthening campaign in the fight against illegal downloading of music via
the internet; e) Complying with the World Intellectual Property Organization
Internet Treaties, concepts of "technological measure" and
"rights management information"; f) Expansion of power of Customs
Commissioner as regards infringing materials to cover imported and exported
protected materials; g) Expansion of rights of producers of sound recordings to
include authority to permit and/or restrict public access of the same; h)
Introduction of the "double the damage" under certain circumstances
to increase penalty imposed against infringers and thereby dissuade future
infringers; i) Insertion of provision of disclosure of information to provide
notice to owners of such copyright of any discovered copyright infringement to
provide owners the option to take appropriate actions to enforce his / her own
rights; j) new section has been inserted mandating formulation of IP policies
in schools, universities and other IP-creating institutions and k) lose
restrictions on non-profit libraries by allowing them to make limited copies
rather than just one copy of a published work."[1]
In United States, the music and
movie industries are going after Internet users they accuse of swapping
copyrighted files online to focus on education and awareness and redirection to
legal and authorized services. The Copyright Alert System was put into effect
this week by the five biggest U.S. Internet service providers — Verizon,
AT&T, Time Warner Cable, Comcast and Cablevision — and the two major
associations representing industry — the Motion Picture Association of America
and the Recording Industry Association of America. Under the new program, the
industry will monitor "peer-to-peer" software services for evidence
of copyrighted files being shared. Each complaint will prompt a customer's
Internet provider to notify the customer that their Internet address has been
detected sharing files illegally. Depending on the service provider, the first
couple of alerts will likely be an email warning. Subsequent alerts might
require a person to acknowledge receipt or review educational materials. If a
final warning is ignored, a person could be subject to speed-throttling for 48
hours or another similar "mitigation measure."[2]
Last February 28, 2013, President
Aquino has signed the amendments into the law where the new statute denominated
as Republic Act 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”
as government’s campaign against IP pirates, infringers and
criminal syndicates would be strengthened where various comments have been
raised by various groups and individuals.
Officials of FILVADRO (Filipino
Visual Arts and Design Rights Organization), the Filipinas Copyright Licensing
Society, Inc. (FILCOLS), and the Filipino Society of Composers, Authors and
Publishers, Inc. (FILSCAP) had met with Senator Manny Villar, and personally
submitted and discussed their organizations’ respective position papers and
proposed amendments to the copyright law. According to them, the Philippines is
the only country in Southeast Asia that has a provision for resale rights;
however, it has not been able to successfully enforce the provision in favor of
the artists or the copyright-holders since the IP Code’s creation in 1997 based
on an informal survey conducted by FILVADRO between 2008 and 2011 among its
constituents.
The
contested provision is Section 200 titled “Sale or Lease of Work” which states
that: “In every sale or lease of an original work of painting or sculpture or
of the original manuscript of a writer or composer, subsequent to the first
disposition thereof by the author, the author or his heirs shall have an
inalienable right to participate in the gross proceeds of the sale or lease to
the extent of five percent (5%). This right shall exist during the lifetime of
the author and for fifty (50) years after his death.”[3]
FILVADRO crafted its proposed amendments to Section 200 of the IP Code based on
the existing practices in the United Kingdom and Australia with regard to resale
rights. The proposed amendments include the identification of the liable
individuals who shall pay for the resale rights, mandatory reporting of a
resale transaction to FILVADRO, and the assertion that resale royalty is a debt
due to the visual artists or the copyright-holders.[4]
Moreover,
The confusion arose from the deletion of two provisions in the old law limiting
the bringing in or importation of such products for personal use to only three
copies. Under the IP Code amendments, Filipinos returning from
abroad can bring in more than three (3) copies of legitimate copyrighted works.
Under Section 190.1 of the present RA 8293, importation for personal purposes
means that you are only entitled to import in the Philippines up to three (3)
copies of copyrighted works in your personal baggage. Once imported, the
present law also states that such copies cannot be used to violate the rights
of the copyright owner, or else you will be liable for copyright infringement
(Sec. 190.2). By deleting these provisions under the amendment, there is no
longer any limit to the number of copies that can be imported. Also,
importation shall not be considered copyright infringement if it falls under
the general exceptions which includes fair use (Chapter VIII, Sec. 185 IP
Code).
Contrary
to the view of Intellectual
property lawyer J.J. Disini, this means that an IPR owner may send notice to
the Bureau of Customs banning the importation of all its products. We cannot
assert the intentions of the Congress. On
the other hand, those in favor of said deletion
of Sections 190.1 and 190.2 states that in fact such deletion allows for
religious, charitable, or educational institutions to import more copies, for
as long as they are not infringing or pirated copies, so that more Filipino
students in the country may use such works.
Cagayan
de Oro City Rep. Rufus Rodriguez, a principal author of the bill, added that RA
10372 does not criminalize “jail breaking,” or the practice of tweaking a
communications gadget or circumventing technological measures. He pointed out
that what is prohibited is the illegal downloading of copyrighted works as this
would amount to violating a copyright.[5] The amendments require that you first be
found guilty of copyright infringement, and that is the only time that
jailbreaking or circumvention of technological measures increases the imposable
penalty and damages that can be awarded by the courts. You still need to be
found guilty of copyright infringement, as jailbreaking is merely an
aggravating circumstance that increases the penalty.
Another cause of confusion is
contrary to the constitutional principles for copyright owners as shown by JJ
Disini, University of the Philippines College of Law professor, pointed out
that one new provision that gave him serious concern was the expanded power
under Section 7 (D). It gave the IPO Director General and Deputies Director
General the new power 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. This clearly shows an invasion of privacy.
Fair Use Exceptions to Copyright
Infringement are now Applicable both to Copyright and Related Rights. A single
song can be the subject of many IP rights. The composer, lyricist, etc., has
“copyright” over the song, while producers, performers, and broadcasters have
“related rights” over it. Under the present IP Code, there are limitations to copyright,
which do not apply to related rights. The Bill in fact broadened such
limitations and exceptions and narrows down what acts constitute copyright
infringement as to related rights. The amendment of Sec. 212 of the IP Code in
fact reinforces the general exception of fair use for infringement of related
rights.
Moreover, the amendments to the IP
Code also propose several provisions which are beneficial to copyright
stakeholders, the creative industries, and the country in general, namely grant
of enforcement in order to further protect ordinary citizens as well as
Filipino artists and creators. [6]
Hence, the future of Copyright in the Philippines may be of advantageous and be
of a disadvantage depending on the point of view and to what background each
one is coming from. Above all, we are
hopeful that such would be mutually beneficial for the people and the
government.
[2] Music,
movie industry to warn copyright infringers.
February 27, 2013. http://www.philstar.com/entertainment/2013/02/27/913781/music-movie-industry-warn-copyright-infringers
[3]
http://www.lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html
[5]http://www.philstar.com/business/2013/03/08/917004/p-noy-signs-ip-code-amendments
[6]http://www.abs-cbnnews.com/focus/02/15/13/ipoph-ip-code-amendment-gives-filipinos-better-access-copyrighted-works-abroad
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