PRACTICAL IMPLICATIONS OF R.A. 10372
With the outburst of technology, people have been creating inventions, goods and even literary works that tend to shape the society of today. And with the kind of communication and information sharing that we have now, these creations of the mind can easily be disseminated among peers. These creations profit the authors, owners and inventors economically which is why their rights to their creations have to be protected. Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce (World Intellectual Property Organization). Since intellectual property is broad on its meaning, it would be better to define it in terms with regards to the law. And in the article of William Fisher, he referred to intellectual property as
a loose cluster of legal doctrines that regulate the uses of different sorts of ideas and insignia. The law of copyright protects various “original forms of expression,” including novels, movies, musical compositions, and computer software programs. Patent law protects inventions and some kinds of discoveries. Trademark law protects words and symbols that identify for consumers the goods and services manufactured or supplied by particular persons or firms (Fisher)
Here in the Philippines, we have the Intellectual Property Code which details the scope of intellectual property rights, registration for trademarks and patents, the rights of the inventors, owners and authors and also what would constitute infringement on such rights.
The Intellectual Property Code has been in effect since June 6, 1997. But recently, in the year 2013, February 28, amendments have been made to R.A. 8293 or Intellectual Property Code (IPC). These amendments are embodied in R.A. 10372 and the objective of this paper is to look into the implications that R.A. 10372 has with respect to R.A. 8293. In general, if we look at the provisions that have been amended, most are regarding copyright laws. R.A. 10372 has empowered copyright owners and gave the more rights. Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings (World Intellectual Property Organization)
To start with, R.A. 10372 amended Section 6 of the Intellectual Property Code dealing with the Organizational Structure of the Intellectual Property Office (IPO). It created an additiona bureau as the seventh bureau in the office, the Bureau of Copyright and Other Related Rights. In the IPC, before the amendment, there was no office for copyright. There is one for patents, trademarks, legal affairs and another two but none for copyright. But now, we can see that copyright is being given more focus and importance in intellectual property. Because now, the work of performers like sound recordings, music videos, books being converted to ebooks and dance performances are being proliferated across the internet. People are sharing these creative works using torrents or other peer-to-peer software intended for sharing. Thus further protection of such works is being called for. Also due to the increase of copyrighted work,s issues concerning the latter are becoming diverse especially with regards to licensing of an author’s right. An office to settle such disputes is needed and the Bureau of Copyright and Other Related Rights (BCRR) is now given the power to exercise original jurisdiction to resolve such disputes among others which is enumerated in the new section, Section 9A.
But the problem here would lie on the expansion of the functions of the Director General and Deputy Director General regarding his newly granted 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 would mean in actuality that when the IPO gets any report, confirmed or otherwise, the Director General would then have the power to go into the establishment reported. Of course when the Director General conducts this visit, he would not simple say hi to the owner of the suspected establishment, it would warrant him to look around the premises and conduct his so called visit.
When you look at it that way, would it not equate to unwarranted search and seizure? By the power granted under the amended Section 7, it could give rise to such a situation which would give the Director General such as to conduct an unwarranted search based on reports or suspicions of infringing activities. This is clearly in violation of a private individual’s right against unwarranted search and seizure. Prof. Disini explained the implications:
“If you are a victim of copyright infringement, under the new law you can ask a government agency (the IPO) to enter a privately owned space in order to search, to look around. Let’s take another situation – let’s take the case of rape or murder. Let’s say you’re related to someone who was murdered. You know that certain evidence about the suspected murderer is located in a particular place. As a victim’s relative, you cannot just go to the place and enter. You need a warrant. Why is it that Congress will give the victim of intellectual property rights violations more rights than the victim of heinous crimes? (Robles, 2013)
It is of course saddening to think that copyright owners would be given more preference in terms of violations of their rights as oppose to those against whom heinous crimes have been committed, like murder, rape and robbery. When you look at it in a deeper context, these copyright owners who would really benefit from such would be those big multinational companies. They would not want their profits to be hampered and would thus opt for more protection from the government. Of course this is just speculation on my part but then again, in real life scenarios, they are really the ones who get the most out of the law, unlike ordinary citizens who are the ones really in most need of protection from the law. Also this power of the Director General applies not only to copyrighted materials, but also for patents and trademarks. The extent of this power is vast and can be misued. I think that this provision would not only pose problems on copyright but also for patent and trademark.
But then again, individuals will not be the only ones who will experience problem regarding the amendments made by R.A. 10372. According to Raisa Robles, another new section now makes it possible to stop individuals from downloading from torrents that foreign companies have tagged as illegal download centers. Section 216 will now make Internet Service Providers (ISPs) liable if they are notified that a customer is downloading from such torrents sites and they do not do anything about it. Here is the section (Robles, 2013). They would be liable under letter (b) of Section 216 because one way or another they would be benefitting from the infringing activity of the person committing the infringement. That person would pay for their services and their bandwith just so he could download torrents to his devices. Of course the profits made by the ISPs for subscription to their services would be the benefit they received.
ISPs would not be the only ones with this provisions. Establishments like building for rent and malls would also have a problem with this in cases where those who rent spaces from them would actually conduct infringing activities like the selling of pirated DVDs which is very common nowadays, and the rent paid to them would thus be their benefit, then they can also fall under this provision. I know of a certain mall who used to have vendors in them with stalls displaying pirated DVDs for sale. One day, the vendors put down their stalls per instructions of the managment of the mall. And yet, I still see some who discreetly offer to passing customers the sale of those pirated DVDs. This would then make this certain mall liable because it could not prevent the infringing activity of their leasees.
Another one of the most controversial amendment to the Intellectual Property Code is the deletion of Section 190 specifically sections 190.1, 190.2 and 190.3. It effectively removed the imporatation by the individual of a copy or work even without the authorization of the owner under certain circumstances.
Cagayan de Oro City Rep. Rufus Rodriguez, a principal author of the bill, made this clarification yesterday amid apprehensions raised by overseas Filipino workers and travelers that the new law bans the bringing in of products covered by intellectual property (IP) rights.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. The President signed the amendments into law on Feb. 28. The new statute, denominated as Republic Act 10372, was published in The STAR yesterday. It takes effect 15 days after its publication in two national newspapers. Rodriguez said the deletion of the two provisions does not mean that the new law bans the bringing in of copyrighted products like books, music and films or movies. On the contrary, it means that there is no more limit to the entry of these products, provided that they are for personal use (Diaz, 2031).
But contrary to such claims, the deletion of those provisions would actually entail the deletion of the limitations of the rights of the copyright owner/author. These limitations are their to provide the public of a leeway in which to import certain works even without asking for authorization from the owner/author. The implication of this is that without the protection or should I say limitation provided by those provisions then the reality is that for indivuals who would want to import works, let’s us say books for example which are not yet published or made available here in the Philippines, they would first have to go to the author/owner and obtain his/her permission for the individual to do so even if he has already brought the book.
This would pose a problem for some because there are cases wherein educational books, like medical books for example which are used or needed by medical students and are required for in their studies cannot be found here in the Philippines yet and needed to be ordered from outside the country. What if in the situation that a family member or a friend is coming home from abroad and is asked to buy such book/s, then he would not be able to bring the items without first getting permission to do so. It would be such a hassle on the part of the family member or friend to actually go to the owners or authors of such books even if he has legitimately bought them from the store.
Section 212 would also be problematic in this scenario. It amended the limitations of the rights of the performers and producers of sound recording wherein the scope of their rights would not apply to acts performed by a natural person exclusively for his own personal purpose. Specfically I think it would be most problematic in reproduction of the performaces fixed in sound recordings in any manner and any form. It would mean that even if there was no intent on the part of the individual to profit from reproducing the sound recordings, and he would not put the copies on sale or even distribute them, still he has obtain permission from the performer of the sound recording. What if the individual would just want to make back up copies of the CD he just purchased, or he just wanted to make copies so that he can listen to the music in his other devises, then it would mean to say that he would actually have to go to the performer or producer just so he could do it. It renders this scenario absurd and impractical.
R.A. 10372 deleted this provision without providing for an alternative in this scenario. According to their FAQs, Infringement in this context refers to the economic rights of the copyright owner. So, if you transfer music from a lawfully acquired CD into a computer, then download it to a portable device for personal use, then you didn’t commit infringement. But if, for example, you make multiple copies of the CD to sell, then infringement occurs (FAQs on the amendments to the Intellectual Property Code of the Philippines, 2013). Although this is their statement regarding the matter, the wordings of the amendment provision does not provide for such a scenario but on the contrary, it makes the simple act of making back up copies of files legally bought, as an infringing act.
This brings us to another matter that makes for a complicated situation. The definition of reproduction has been amended to included reproduction either as temporary or permanent, whole or in part of a sound recording. Thus even if for example, a person is copying the contents of the usb flash disk of his friend because his friend would need to reformat such usb and would need a back up copy of his files, the good samaritan friend who copies and back ups the contents of the owner of the usb would then be liable for infringement if the usb would contain copyrighted sound recordings. And even if he did not meant to make use of such sound recording, or if he would have deleted the files right away after his friend is able to transfer them back to his usb, the individual would still be liable because of the wordings of the term reproduction.
This provision, Section 171.9 has clearly resticted the acts of the private individuals with how they handle their sound recordings, whether such sound recordings have been legally bought or not. And by restricting it as such it made simple and ordinary acts as crimes with which copyright owners have a claim against. It is like even if a person has legally bought the sound recording, he or she has very limited right on how to manage such file. I think by giving more rights to the copyright owners, for their own benefit, it has rendered criminal several circumstances which occurs in the ordinary course of daily lives. Of course although not everyone is innocent, it also goes to show that not every one is guilty.
But not every amendment of the R.A. 10372 poses problems or is detrimental in general. I think one of the good highlights of the amendments is with regards to Section 188 regarding Reprographic Reproduction by Libraries. Instead of allowing said libraries falling under this section to make only a single copy of the work that they have without authorization from the copyright owner, R.A. 10372 changed the words, a single copy to limited copies in order to preserve or replace the work in the event that it is lost, destroyed or rendered unusable. A lot of unexpected and unforseen circumstanes can occur without warning, for example a flood, storm or fire may break out of the library thereby effectively destroying some of the works contained therein, especially if it affected those works which are hard to obtain or is out of print already.
In such instance, it is imperative to not only have one copy at hand but to have multiple copies of the works in order to counter such circumstances. Also, it cannot be avoided that there are times when those who borrow books defaces the books, write notes or markings which renders some of the pages unreadable. Or also there are cases not limited to defacing but also taking the books without any intention of returning them. The amendment in Section 188 is a good counter measure for such occasions and would be a big help to libraries who encounters these kinds of cases.
The wording of Section 188 could have been used instead in Section 190 rather than deleting such important provisions with the intention of removing the limitation on importing copyrighted works here in our country. It would have been a more viable solution rather than the one that has been brought about by R.A. 10372.
With all these problematic implications that the amendments to the Intellectual Property Code have, IPOPHL had said the public will be given wider participation in drafting the amended IP Code’s implementing rules and regulations (IRR) (De Vera, 2013). But then again implementing rules and regulations can only cover so far as that which the law allows. It cannot go beyond and above the law. And it is not the remedy needed to fix the complicated and dare I say unwanted situations mentioned above. This is even reiterated in a coverage under Interaksyon of the comments made by Atty. Disini. He said that
the IRR couldn’t exactly “correct” or make the controversial clauses of the amendments any better for users of copyrighted materials, which is why he was recommending that Aquino veto the law.“You can’t write something on the IRR that is contrary to the law itself. Many of the things in there cannot be solved by the IRR,” he explained. Disini stressed the precarious situation that IP users and IP owners have with regard to the law, where the latter could easily attack any unfavorable provisions in the IRR since the statute is generally “favorable to them.” “That will be the question now. Just how persuasive will the IRR and the IP Office be?” he asked. But for members of Democracy.Net.PH, the only recourse now is to repeal the law as it is “biased against stakeholders in a way the Constitution is not.” (Tuazon, 2013)
I think that what would have to be done is that the amendments have to be amended again. And this would mean that a new law has to be passed in order to cure the problematic situations caused by R.A. 10372. Laws should be reviewed very thoroughly before being passed just yet. Because once a law is passed, it very well affects the lives and rights of the people and as such if it has complications like the ones regarding R.A. 10372 then it becomes detrimental to the people. Which is why careful analysis, input by technical experts and lawyers versed in the field are needed in order that to ensure that if the Intellectual Property Code would need to be amended again in order to address these problems, then it would not again bring about problematic situations like the ones that we have now.
De Vera, B. A. (2013, March 6). PNoy signs into law amendments to IP Code. Retrieved May 27, 2014, from Interaksyon: http://www.interaksyon.com/business/56498/pnoy-signs-into-law-amendments-to-ip-code
Diaz, J. (2031, March 8). P-Noy signs IP Code amendments. Retrieved May 24, 2014, from PhilStar: http://www.philstar.com/business/2013/03/08/917004/p-noy-signs-ip-code-amendments
FAQs on the amendments to the Intellectual Property Code of the Philippines. (2013, March 8). Retrieved May 25, 2014, from Official Gazette: http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
Fisher, W. (n.d.). Theories of Intellectual Property. Retrieved May 20, 2014, from Harvard Law School: http://www.law.harvard.edu/faculty/tfisher/iptheory.html
Robles, R. (2013, March 6). Copyright owners have more rights than heinous crime victims with Congress’ IP Code changes – lawyers say. Retrieved May 24, 2014, from Inside Philippe Politics and Beyond: http://raissarobles.com/2013/03/06/copyright-owners-have-more-rights-than-heinous-crime-victims-with-congress-ip-code-changes-lawyers-say/
Tuazon, J. (2013, March 6). NEW LAW UNDER FIRE | Critics slam ‘problematic’ IP code amendments. Retrieved May 27, 2014, from Interaksyon: http://www.interaksyon.com/infotech/new-law-under-fire-critics-slam-problematic-ip-code-amendments
World Intellectual Property Organization. (n.d.). What is Intellectual Property? Retrieved May 18, 2014, from World Intellectual Property Organization: http://www.wipo.int/export/sites/www/freepublications/en/intproperty/450/wipo_pub_450.pdf
World Intellectual Property Organization. (n.d.). World Intellectual Property Organization. Retrieved May 18, 2014, from Copyright: http://www.wipo.int/copyright/en/