Friday, March 8, 2013

AMENDED INTELLECTUAL PROPERTY LAW (OR RA 10372), IS THERE GOOD IN IT FOR FILIPINOS?


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?

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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 works3. 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
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4 Section 602 (a) (3), Copyright Law of the United States of America


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.


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7 Republic Act 8293, Section 173.1(a). 06 June 1997.

            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.  



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11Ibid
14 Section 172.1(n) of Republic Act 8293.

            
        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!