President Benigno Aquino
III on Wednesday signed amendments to the Intellectual Property Code without
vetoing some of its controversial measures.1
The Amended Republic Act 8293 or Republic
Act 10372 was passed into law on February 28, 2013 despite the public going
against it as expressed in the article of Raissa Robles’ “Congress Erased Every Filipino’s Right to Bring Home Music, Movies,
and Books From Abroad”2. In her article, she pointed out that under
this law jail-breaking or modifying a device shall make the person criminally
liable, that downloading a song or movie and sharing it will make one
criminally liable. She also made mentioned the deletion of Sections 190.1 and
190.2 which allows importation of a copy of a work by an individual for his
personal use without the authorization of the author of, or other owner of
copyright in under the circumstances provided by the Intellectual Property Code
The new law deleted the entire Section
190.1 and 190.2. This deletion is interpreted by bloggers like Raissa Robles to
disallow such acts. By removing such provisions, it means for them that Filipinos
cannot bring to the Philippines a copyrighted work, even if it is for personal
use. This also curtails the right of a person to his right to property, which
is one of the basic human rights. Further, if such copyrighted work is not
available in the Philippines and could only be available abroad and such
copyrighted work is for educational purpose, because of the new law, this will
not be possible unless the person will run the risk of facing criminal charges.
What is the law trying to protect? Is it more of the copyrighted work of
foreign authors or owners under the Philippine jurisdiction? What is the
practice of other countries compared to the practice of the Philippines? Will
this new law benefit the Filipinos or will it infringe their right?
________________
1http://www.gmanetwork.com/news/story/298015/scitech/technology/aquino-signs-ip-code-amendments-into-law.
07 March 2013
2 http://raissarobles.com/2013/02/14/congress-erased-every-filipinos-right-to-bring-home-music-movies-and-books-from-abroad/.
07 March 2013
In
the website of the Intellectual Property Office, it clarified the issues
tackled by Raissa Robles, issue by issue. To quote, “By deleting these provisions under the amendment, there is no longer
any limit to the number of copies that can be imported. xxx Contrary to Ms.
Robles’ insinuations that OFWs can no longer bring home copyrighted works, they
can in fact bring home more
copies for personal use that fall under the fair use
exceptions. The deletion of Sections 190.1 and 190.2 in fact 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”3. Interestingly,
these provisions that were deleted were provisions lifted or adopted from
Copyright Law of the United States. Section 602 of that said law expressly provides
the same exception of the importation or exportation of infringing items4.
According to the Intellectual Property Office, this will be clarified in the
Implementing Rules and Regulations (IRR). If that is how to interpret the
deletion of those provisions mentioned, why did our lawmakers maintain Section
190.3 and became Section 190 which states Importation and
Exportation of Infringing Materials. – Subject to the approval of
the Secretary of Finance, the Commissioner of Customs is hereby empowered to
make rules and regulations for preventing the importation or exportation of
infringing articles prohibited under this Section Part IV of this Act
and under relevant treaties and conventions to which the Philippines may be a
party and for seizing and condemning and disposing of the same case they are
discovered after they have been imported or before they are exported. This
expands the power of the Commissioner of Customs to seize any infringing
material and shall expand his power to arrest the person who brought the
infringing work without a warrant of arrest. As Raissa Robles puts it, it is an
open invitation to extortion.
What
would be our country’s direction for protecting the intellectual rights of the
people? Why did lawmakers create the amendment of the current intellectual
property law? What should be our country’s direction in terms of copyright
reform particularly in cover songs, articles, games or software?
Cover
songs5 or cover version or
simply cover, is a new performance or recording of a contemporary or previously
recorded, commercially released song or popular song, usually by someone other
than the original artist. Filipinos, artists and ordinary internet use render
their favorite songs and upload it in Youtube or social media. CNN Travel 6
has identified 13 Most Overplayed Cover Songs by
___________
3http://www.ipophil.gov.ph/index.php/20-what-s-new/134-ip-code-amendment-gives-filipinos-better-access-to-copyrighted-works-from-abroad.
06 March 2013
4 Section
602 (a) (3), Copyright Law of the United States of America
5http://en.wikipedia.org/wiki/Cover_version.
07 March 2013
Filipinos. Among of
which is ‘It’s my Life by Bon Jovi’, ‘Moves Like Jagger by Maroon 5’ and the
number one in the list, ‘Faithfully by Arnel Pineda’. Interestingly, are cover songs illegal in the
Philippine jurisdiction? Yes, because cover songs are considered derivative works in the Philippines. Section 173.1 (a)
of Republic Act 82937 defines the form of derivatives work such as dramatizations,
translations, adaptations, abridgments, arrangements, and other alterations of
literary or artistic works. It is another form of alteration of a literary work.
Thus, under Philippine jurisdiction, this right is protected. However, if it is
shared and uploaded in the Youtube and other social media network, the
copyright owner or author will have the difficulty of running after the infringer.
In the Unites States,
in order to share cover songs, one must obtain license. Sharing of an audio recording in any form,
paid or unpaid, constitutes distribution. Distribution can be in the form of
downloads, streaming from any website, including yours, or any physical product
such as CD or vinyl. When you distribute a recording a song somebody else
wrote, whether it’s for commercial use (making it for sale) or promotional use
(giving it away for free), you are still required to obtain a compulsory
license and pay royalties8. In Philippine jurisdiction, cover songs
or any of its genre is not specifically stated but it can be covered under the
all-catch phrase of ‘any form’ stated in the provision of the law. This, I
think is the direction that the amended copyright law is going. It is to protect the copyright of the original
owner or author of an artistic or literary work. However, it should not be cut
and paste provision wherein the text of the law was copied from another
jurisdiction but pasted only the relevant provisions to the Philippine
jurisdiction. If this is being done, the essence of the law is lost, creating
more confusion and may violate other basic rights. Raissa Robles mentioned in her
article that, “Under this new
law, once you modify a device (for instance “jailbreaking” an Apple
product such as an iPhone or iPad) in order to remove restrictions on what and
how apps and content can be stored and used — you can be held criminally liable
for ”copyright infringement.9” If this law protects the right
of the copyright owner or author, the lawmakers must strike a balance between
protecting the copyright of the owner and right of the person to due process
and right against self-incrimination. The law must be clearly expressed so as
not to be subjected to several interpretations. Or it cannot be expanded in the
Implementing Rules and Regulations (IRR). The IRR cannot be greater than the law.
This is against the principles of statutory construction.
__________
7 Republic Act
8293, Section 173.1(a). 06 June 1997.
9 http://raissarobles.com/2013/02/14/congress-erased-every-filipinos-right-to-bring-home-music-movies-and-books-from-abroad/.
07 March 2013
One of the issues
prevalent in this worldwide web era is software infringement. Technology is
dynamic and changes in a blink of an eye. Software creation keeps on evolving.
Sometimes the later technology is an improved version of earlier ones. This
makes software creation vulnerable to infringement.
In another jurisdiction, it remains to be a debate
whether software should be protected by copyright law or patent law10.
Where we adapted our Intellectual Property Law, the United States Patent and
Trademark provides on how to protect software. It is considered a patent on an
invention and the grant of a property right to the inventor is issued by the
United States Patent and Trademark Office. Generally, the term of a new patent
is 20 years from the date on which the application for the patent was filed in
the United States. U.S. patent grants are effective only within the United
States, U.S. territories, and U.S. possessions 11. Such right conferred to the inventor excludes
the others from making, using, altering selling the invention to the United
States. Wikipedia defines Software copyright 12 as the extension of copyright law to machine-readable software. In Canada, software
is protected as a literary work under the Copyright Act of Canada. Copyright is acquired automatically when an
original work is generated, the creator is not required to register or mark the
work with the copyright symbol in order to be protected13. Software
is copyrightable in India. Recently, Copyright Office, New Delhi has
copyrighted the Hindi to Punjabi Machine Translation Software developed by Dr.
Vishal Goyal and Dr. G.S.Lehal, Punjabi University Patiala14.
Under the Intellectual Property Law
of the Philippines, software creation is protected by the Copyright Law.
Although Section 172.1 (n) of the Intellectual Property Code15 specifies
on computer programs, software creations are computer programs. However, no
reports were ever made as to any violation related to the infringement of
software creation. It is either the Filipino people understand the laws by
heart or it is rampantly violated because it has never been implemented. There are good laws
that were created to protect the rights of people, however when it comes to the
implementation of these laws our government is weak in doing so. By force of habit, our
government leaders lack the political will to do so. They become incapable in
executing these laws. Then, it comes the amendment of a law that was never implemented.
As if it was studied thoroughly by our lawmakers, we have a new version of the amended
law which was cut and pasted from another jurisdiction. Instead of clarifying,
this becomes the subject of confusion and deprivation of the basic rights.
___________
10http://www.invention-protection.com/ip/publications/docs/How_Should_Software_Be_Protected.html.
08 March 2013.
11Ibid
12
http://en.wikipedia.org/wiki/Software_copyright.
08 March 2013.
13 http://en.wikipedia.org/wiki/Software_copyright#Canada.
08 March 2013.
14 Section 172.1(n) of Republic Act
8293.
15 http://en.wikipedia.org/wiki/Software_copyright#India.
08 March 2013.
Copyright
reform in our country should be initiated by good laws that protect the
intellectual creation of a creator from infringement. It should be dynamic and
evolving. It should keep up with the changing times. It should encourage original
work by protecting the rights of the owner. Registration of original work must
be easy and inexpensive. The office that has the power to administer and
supervise intellectual property laws must be felt by the public. Inventions and
intellectual creations must be good source of improving the lives of Filipino
people. In the end, these laws will not only protect copyright but will improve
the economy of the Philippines, from being a developing country to a developed
country! When this time comes, Filipino voter like myself can truly say that we
have elected the right leaders to lead the Philippines!
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