Sunday, May 19, 2013

Republic Act No. 10372 Amending Republic Act No. 8293, The Intellectual Property Code of the Philippines

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. tools and resources on intellectual property rights:

"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. companies lose between $200 billion and $250 billion. IP theft has a major impact at home, too: according to the U.S. Customs and Border Protection, in fiscal year 2010, nearly 20,000 seizures of counterfeit and pirated goods with a total domestic value of $188.1 million and a manufacturer’s suggested retail price of $1.4 billion were intercepted before entering the United States. The total domestic value of counterfeit products seized presenting potential safety or security risks seized was $42 million.

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, one the most serious problems regarding intellectual properties is the selling of pirated DVDs. It's like on every street of the country, you will be able to find a store selling these pirated DVDs. There are even some vendors who just walk around the streets like the takatak boys, but instead of selling cigarettes, candies and newspapers, they sell pirated DVDs. In some markets and malls, Class A bags, shoes, watches and jewelries can be found. It really looks authentic and it is much cheaper but the quality is not that good and it is illegal. Yes, there is a law in the Philippines protecting intellectual property rights. Until now it is a struggle implementing this law, but there are also improvements as to the approaches dealing with piracy in the country. An article of Philippine Star even mentioned that the IIPA, a private sector coalition of trade associations representing US copyright-based industries working to improve international protection and enforcement of copyrighted materials formed in 1984, submitted a report to Optical Media Board regarding the improvement of the government in the dealing with the problem of piracy. A portion of the article stated that:

"The IIPA also elevated the Philippines to a Commendable Special Mention Category “to denote positive progress in several key areas for protection of creative content warranting recognition,” thereby removing the country from its watchlist category."

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 in dealing with the problem of piracy.

The third question is, what is the implemented law in the Philippines protecting intellectual property rights? The Intellectual Property Law of the Philippines is R.A. 8293. It is an Act prescribing the Intellectual Property Office, providing for its powers and functions, and for other purposes. Section 2 of the said Act reads as follows:

"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 and:
(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 or Republic Act 8293."

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 (RA 8293) allows warrantless searches of business establishments and offices for violations of IP rights. Also, the amendments seek to expand the meaning of infringement to include the making of temporary copies. Finally, mall owners, lessors, and online content providers wil become more vulnerable to infringement done by others."

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.


Robles, R. Congress Erased Every Filipino's Right To Bring Home Music, Movies and Books From Abroad. February 14, 2013.   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.    Accessed May 19, 2013.

Republic Act 10372: Amending the Intellectual Property Code of the Philippines (R.A. 8293). Accessed May 17, 2013.

Calica, A. Alliance Lauds Phl Efforts Against Piracy. February 22, 2013.    Accessed May 19, 2013.

WIPO. Emerging Issues in Intellectual Property. Accessed May 19, 2013. How Serious a Problem is Counterfeiting and Piracy? 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. Accessed May 17, 2013.

Dimacali, T. New IP Law Allows Warrantless Searches, Erases Right to Personal Use. February 14, 2013. 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.]

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