Why
are intellectual properties so important? What is its role in the society? In a
country? In the world? The answer is very simple - intellectual properties
contribute a lot in the development of a country. As defined by the World
Intellectual Property Organization or WIPO, intellectual property refers to the
creation of the mind, such as inventions, literary and artistic works, and
symbols, and names, images and designs used in commerce. Without the new ideas
and inventions that artists come up with, a country would much likely depend on
the ideas of the other countries. And if a country would not have its own
ideas, they would be like dummies relying on others and not stand on its own.
In
the business world, companies come up with their own trademarks. In this way,
they stand out from the other companies. This trademark is their own and it
cannot be used by other companies because it is protected by the intellectual
property law. From the sound of it, it's like a company's trademark is the
company's face, if it was a human being. The face which others would recognize
easily upon seeing it. A face of a person that is different and unique from all
the other faces of the people all over the world. The face which was given to a
person and only him or her has that face.
The
next question is, why is it important to protect these intellectual properties?
Why not let others use these ideas that we come up with? The answer is not as
simple as in the first question. Intellectual properties are protected in order
to avoid piracy and counterfeiting. As stated by STOPfakes, which was launched
to serve as a one-stop shop for U.S.
"According
to FBI, Interpol, World Customs Organization and International Chamber of Commerce
estimates, roughly 7-8% of world trade every year is in counterfeit goods. That
is the equivalent of as much as $512 billion in global lost sales. Of that
amount, U.S.
Which sectors
are most affected? IP theft poses a risk to all industry sectors; those most
commonly affected by IP theft are manufacturing, consumer goods, technology,
software, and biotechnology, including pharmaceuticals."
With
the findings discussed above, it clearly shows that if intellectual properties
are not protected, there would be a lot of losses. All efforts used by
companies in coming up with new products or inventions would be put to waste if
other companies would steal these ideas and produce the products like it is
their own and offer it for a cheaper price when in fact, it is worth much more
than that.
In
the Philippines Philippines
"The IIPA also elevated the Philippines
The IIPA even cited that these are “evidence
of the will of the Philippine government to tackle piracy and create space for
legitimate creative businesses to grow.” So, there really is an improvement in
the approach used by the government of the Philippines
The
third question is, what is the implemented law in the Philippines Philippines
"Declaration of State Policy. - The State
recognizes that an effective intellectual and industrial property system is
vital to the development of domestic and creative activity, facilitates
transfer of technology, attracts foreign investments, and ensures market access
for our products. It shall protect and secure the exclusive rights of
scientists, inventors, artists and other gifted citizens to their intellectual
property and creations, particularly when beneficial to the people, for such
periods as provided in this Act.
The use of
intellectual property bears a social function. To this end, the State shall
promote the diffusion of knowledge and information for the promotion of
national development and progress and the common good.
It is also
the policy of the State to streamline administrative procedures of registering
patents, trademarks and copyright, to liberalize the registration on the
transfer of technology, and to enhance the enforcement of intellectual property
rights in the Philippines
Some provisions of R.A. 8293 are amended by R.A. 10372
in order to protect intellectual property rights more effectively, but there
are flaws in these amendments. A report even stated that the new law threatens
to deprive the Filipinos of their right to bring home copyrighted music, movies
and books from abroad because Section 190 of R.A. 8293 concerning the
importation of a copy of a work for personal purposes was amended in R.A.
10372. The provision of Section 190 in R.A. 8293 reads as follows:
"Importation
for Personal Purposes. - 190.1. Notwithstanding the provision of Subsection
177.6, but subject to the limitation under the Subsection 185.2, the
importation of a copy of a work by an individual for his personal purposes
shall be permitted without the authorization of the author of, or other owner
of copyright in, the work under the following circumstances:
(a) When copies of the work are not available in the Philippines
(i) Not more than one (1) copy at one time is imported
for strictly individual use only; or
(ii) The importation is by authority of and for the
use of the Philippine Government; or
(iii) The importation, consisting of not more than
three (3) such copies or likenesses in any one invoice, is not for sale but for
the use only of any religious, charitable, or educational society or
institution duly incorporated or registered, or is for the encouragement of the
fine arts, or for any state school, college, university, or free public library
in the Philippines.
(b) When such copies form parts of libraries and
personal baggage belonging to persons or families arriving from foreign
countries and are not intended for sale: Provided, That such copies do not exceed
three (3).
190.2. Copies imported as allowed by this Section may
not lawfully be used in any way to violate the rights of owner the copyright or
annul or limit the protection secured by this Act, and such unlawful use shall
be deemed an infringement and shall be punishable as such without prejudice to
the proprietor's right of action.
190.3. 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 of articles the importation of which
is prohibited under this Section and under treaties and conventions to which
the Philippines may be a party and for seizing and condemning and disposing of
the same in case they are discovered after they have been imported."
Sections 190.1 and 190.2 in the above-mentioned
provision were deleted in their entirety in R.A. 10372. And Section 190.3 wad
renumbered and amended as the sole provision under Section 190. The deletion of
Sections 190.1 and 190.2 would clearly deprive the Filipinos of their right to enjoy
the works of the other countries. According to Raissa Robles, a blogger who
writes about Philippine politics and currently a correspondent of South China
Morning Post,
"Everyday,
many Filipinos arrive in Manila, bringing back with them books as well as
DVDs and CDs of music and movies they bought in other countries for their
personal use.
They can do
this without fear of being questioned because it’s a right specifically granted
“to persons or families arriving from foreign countries” under Section 190 of
the Intellectual Property Code of the Philippines
But because of these amendments, Filipinos arriving
from foreign countries would now have to fear bringing home music, movies and
books for they will be penalized under R.A. 10372. The principle of dura lex sed lex may be applicable in
this case, but in my opinion, such
amendment in the said Sections is unreasonable. What would be violated if
Filipinos bring home music, movies and books they got from abroad and it is
only for their personal use? What if they got it as a souvenir? What if they
are a big fan of the artist or the author? I cannot see the logic of deleting
these Sections when there will be no harm done at all. It may be the way of the
government of encouraging the Filipinos to love their own music, movies and
books, but I think depriving the Filipinos to love other works from abroad is
too much. Well, maybe it can be a way, but it is not the only way.
According to Robles, it was the Intellectual Property
Office which played an active role in drafting the amendments to R.A. 8293. And
when she asked Ricardo Blancaflor, the IPO Director General, regarding the
deletion of such provisions, the latter's reply was:
“The greater good has to be served. This
law is for everybody. I think instead of people criticizing it, I think people
should recognize it’s a long awaited legislation. It was done within the bounds
of the law The good side of the law should also be highlighted. Hindi negative
that some interest groups are pushing.
We should be congratulated for the great
work we are doing.”
So, I
guess we should be thankful that we are being deprived of our rights? Our right
of being free from criminal liability when we prefer works of other countries. It
is like we are being compelled to not like the things that we really like. It's
really absurd, in my opinion.
Section 212.1 of R.A. 8293 which
states that natural persons may use for their own personal purposes the works
of performers and the sound recordings was also deleted in R.A. 10372. Another
right deprived from the Filipinos.
Raissa Robles also pointed out that in jailbreaking Apple products, people may
be held criminally liable for copyright infringement because the amendments by R.A. 10372 introduces, for the first time
in our criminal law, the concept of “digital rights management” (DRM) – which
also covers how we use digital devices on the Internet and which behaviors are
considered criminal.
Atty. JJ Disini, a technology law expert
agrees with Robles. According to Atty. Disini in an interview by the GMA
Network,
"In the
old law, it's very explicit that, when you're coming into the country with your
personal media collection, even if the copyright owner says that you can't bring
them in, you can go and point to the law and say that you're allowed to do that
but that provision has now been removed."
On the other hand, the Intellectual
Property of the Philippines (IPOPHL) responded on Robles' blog entry and said:
"Contrary to Ms. Robles' insinuations, returning Filipinos can in
fact bring home more copies for personal use that fall under the fair use
exceptions... Moreover, the IPOPHL has a very good working relationship with
the Bureau of Customs, hence, there can be no misinterpretation of the real
intention of the amendment.
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,"
In addition to IPOPHL's response, a report by
the Philippine Star, regarding the same issues, stated that with these
amendments, there is no more limit to the entry of copyrighted products into
the country for personal use. According to Cagayan de Oro City Representative
Rufus Rodriguez, a principal author of the bill, the deletion of the provisions
did not mean that Filipinos are
prohibited from bringing home music, movies and books from abroad as long as it
is for their own personal use. What's confusing about this statement is that
Section 14 of R.A. 10372 reads as
follows:
SEC. 14.
Sections 190.1. and 190.2. of Republic Act No. 8293 are deleted in their entirety.
"The importation of a copy of a work by an
individual for his personal purposes shall be permitted without the
authorization of the author of, or other owner of copyright" - this provision was deleted in its entirety. It is very
clear. The right of the people was deleted
in the amendments done in R.A. 10372. There was nothing in the amendments
stating that music, movies and books from abroad may be used by Filipinos for
their own personal use.
Regarding
jailbreaking, Rodriguez said that it is merely an aggravating circumstance
that increases the penalty for copyright infringement and that what is
prohibited is the illegal downloading of copyrighted works for it violates a
copyright.
If the deleted provisions show that Filipinos are
deprived of some rights, but according to Rufus Rodriguez, a principal author
of these amendments, and what the IPOPHL has to say about Robles' insinuations,
there are no rights violated by such amendments, then it would be very
confusing for the Filipinos. How can the Filipinos know which they should comply
with - what they understand from the law itself or what the principal author and
the IPO say about it?
Another issue arising from these amendments is that it
allows warrantless searches as stated in a report in GMA Network. In this
report. Atty. Disini said that:
"The newly amended Intellectual Property Code of the Philippines
According to Atty. Disini, the amendment in Section 7
of R.A. 8293 in unconstitutional. The provisions of this Section reads as
follows:
"Section 7. The Director General and Deputies Director General.
7.1.
Functions. - The Director General shall exercise the following powers and
functions:
a) Manage and
direct all functions and activities of the Office, including the promulgation
of rules and regulations to implement the objectives, policies, plans, programs
and projects of the Office: Provided, That in the exercise of the authority to
propose policies and standards in relation to the following: (1) the effective,
efficient, and economical operations of the Office requiring statutory
enactment; (2) coordination with other agencies of government in relation to
the enforcement of intellectual property rights; (3) the recognition of
attorneys, agents, or other persons representing applicants or other parties
before the Office; and (4) the establishment of fees for the filing and
processing of an application for a patent, utility model or industrial design
or mark or a collective mark, geographic indication and other marks of
ownership, and for all other services performed and materials furnished by the
Office, the Director General shall be subject to the supervision of the
Secretary of Trade and Industry;
b) Exercise
exclusive appellate jurisdiction over all decisions rendered by the Director of
Legal Affairs, the Director of Patents, the Director of Trademarks, and the
Director of the Documentation, Information and Technology Transfer Bureau. The
decisions of the Director General in the exercise of his appellate jurisdiction
in respect of the decisions of the Director of Patents, and the Director of
Trademarks shall be appealable to the Court of Appeals in accordance with the
Rules of Court; and those in respect of the decisions of the Director of
Documentation, Information and Technology Transfer Bureau shall be appealable
to the Secretary of Trade and Industry; and
c) Exercise
original jurisdiction to resolve disputes relating to the terms of a license
involving the author's right to public performance or other communication of
his work. The decisions of the Director General in these cases shall be
appealable to the Secretary of Trade and Industry."
In R.A. 10372, the provision above-mentioned is
amended as follows:
“Sec. 7 The
Director General and Deputies Director General. –
x x x
b) Exercise
exclusive appellate jurisdiction over all decisions rendered by the Director of
Legal Affairs, the Director of Patents, the Director of Trademarks, the
Director of Copyright and Other Related Rights, and the Director of the documentation,
Information and Technology Transfer Bureau. The decisions of the Director
General in the exercise of his appellate jurisdiction in respect of the
decisions of the Director of Patents, the Director of Trademarks and the
Director of Copyright and Other Related Rights shall be appealable to the Court
of Appeals in accordance with the Rules of Court; and those in respect of the
decisions of the Director of the Documentation, Information and Technology
Transfer Bureau shall be appealable to the Secretary of Trade and Industry;
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;
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; and
e) Such other
functions in furtherance of protecting IP rights and objectives of this Act.”
Article 3, Section 2 of the Constitution states that
the people have the right to be secure in their persons, houses, papers, and
effects against reasonable searches and seizures of whatever and for whatever
purpose. It also provides that a search warrant is needed in such searches. The
amendment in Section 7 of R.A. 8293 gives the Director General and Deputies
Director General the authority to conduct visits to establishments and
businesses without search warrants. Even if a complaint, report or information
is filed before the office stating that an establishment is engaged in
activities violating intellectual property rights, a search warrant must still
be obtained first before conducting such visits, in accordance with the
provisions of the Constitution.
With all the issues arising from these amendments as
stated above, I think it is still debateable whether the R.A. 10372 is a better
law than R.A. 8293. There are a lot of pros and cons in these amendments. It
may be beneficial to copyright owners and intellectual property rights may be
more protected because of these amendments, but the people would also be
deprived of their rights due to too much "protection" for these
intellectual properties. In my opinion, it should meet halfway where the law
would still effectively protect intellectual property rights and at the same
time, it would not violate any provision of the Constitution and the people
would not be deprived of any of their rights.
References:
Robles,
R. Congress Erased Every Filipino's Right To Bring Home Music, Movies and Books
From Abroad. February 14,
2013. http://raissarobles.com/2013/02/14/congress- erased-every-filipinos-right-to-bring-home-music-movies-and-books-from-abroad/. Accessed May 19, 2013
Diaz,
J. P-Noy Signs IP Code Amendments. March 8, 2013. http://www.philstar.com/business/2013/03/08/917004/p-noy-signs-ip-code-amendments. Accessed May 19,
2013.
Republic
Act 10372: Amending the Intellectual Property Code of the Philippines
Calica,
A. Alliance
WIPO.
Emerging Issues in Intellectual Property. http://www.wipo.int/about-ip/en/studies/.
Accessed May 19, 2013.
STOPfakes.gov.
How Serious a Problem is Counterfeiting and Piracy? http://www.stopfakes.gov/learn-about-ip/ip/how-serious-problem-counterfeiting-and- piracy. Accessed May 19, 2013.
Republic
Act 8293: An Act Prescribing the Intellectual Property Office, Providing for its Powers and Functions, and for
Other Purposes. http://www.lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html.
Accessed May 17, 2013.
Dimacali,
T. New IP Law Allows Warrantless Searches, Erases Right to Personal Use. February
14, 2013.http://www.gmanetwork.com/news/story/294998/scitech/technology/new-ip-law-allows-warrantless-searches-erases-right-to-personal-use.
Accessed May 17, 2013.
[Disclaimer: This blog is for our Technology and the Law class only. The contents of this entry is the writer's opinion and is not intended in any way to serve as a legal advice.]
No comments:
Post a Comment