Monday, May 20, 2013

Was Malacanang correct in its explanation of RA 10372?

Republic Act 10372 was signed into law last February 28, 2013.  It amends certain provisions of Republic Act 8293 more commonly known as the Intellectual Property Code of the Philippines.  It became controversial due to the fact that its amendments, according to critics, violate constitutional rights of the people such as the right to due process, the right against unreasonable searches and seizures, and the equal protection clause.  Its passing and signing into law was not highly publicized as there were more pressing issues our country (and the media) focused on during those times (Sabah/Kiram issue.)
To address the constitutional issues, the government on its official web portal, through its post, “FAQs to the amendments to the Intellectual Property Code of the Philippines,” answered what it held to be the most frequently asked questions (FAQ’s) as regards RA 10372.  There were six (6) FAQs which the post seeks to clarify in very simple and short terms. 
The task is to look into the Q&A post by the government and see if the questions were satisfactorily answered based on the amending law and to include some meaningful comments.

Question:  Am I still allowed to import books, DVDs, and CDs from abroad?

Answer:  Yes. In fact, the amendments to the Intellectual Property Code have removed the original limitation of three copies when bringing legitimately acquired copies of copyrighted material into the country. Only the importation of pirated or infringed material is illegal. As long as they were legally purchased, you can bring as many copies you want, subject to Customs regulations.
Comment:  The answer seems correct as Sec 14 of RA 10372 provides that:
“Sections 190.1. and 190.2. of Republic Act No. 8293 are deleted in their entirety.”
            Said sections of RA 8293 provided for limitations as to the number of original/non-infringed copies of copyrighted materials allowed to be brought into the country.  It allows one (1) copy if for personal use while up to three (3) copies if for other purposes such as religious, research and educational ones.  The entire sections having been removed may be interpreted as removing the said limitations and allowing as much copies as a person would want to bring into the country, subject to customs regulations, and for as long as copies qualify under the “fair use” as provided under intellectual property laws.
            The critics were doubtful and suspicious as to the removal of said sections previously setting a limit which actually protects the individual for as long the number of copies one would bring does not exceed such limit.  They worry that the removal may actually work against those who would want to bring a copy home with them as perhaps they fear that now any amount of copy of a copyrighted material would trigger the suspicion from authorities leading to a possible intrusion into ones rights.
            The government having clarified that such removal opens for individuals to carry as much “legal” copies, I would have to take their word for it and concede that since Intellectual Property laws only seek to deter introduction of infringing copies into the country, then it is right to say that the removal of the sections actually removed the limits.  Perhaps the procedure for determination in points of entry, if for example there are multiple copies of a copyrighted material brought in, is another story and would be properly addressed by the implementing rules and regulations. 
            The answer puts in perspective the main issue here under the intellectual property law which is the legality or illegality of the acquisition of a material, and not the number of copies, carried into the country.
Question:  Is the reproduction of copyrighted material for personal purposes punishable by this law?
Answer:  No. 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.
Comment:  The answer doesn’t appear responsive to the question.  It provides a contextual reply and then proceeds by giving a situation-based example which is about data transfer and not about reproduction.
At best, the reproduction only addressed by the answer is the reproduction of code under Section 185.1 of RA 10372 which it defines as “decompilation” and in more detail:
which is understood here to be the reproduction of the code and translation of the forms of a computer program to achieve the interoperability of an independently created computer program with other programs may also constitute fair use under the criteria established by this section, to the extent that such decompilation is done for the purpose of obtaining the information necessary to achieve such interoperability.
            Reproduction, under section 171.9 of the amending law, is defined as:
“the making of one (1) or more copies, temporary or permanent, in whole or in part, of a work or a sound recording in any manner or form without prejudice to the provisions of Section 185 of this Act.”              
If one is to look closely at both RA 8293, the old law and RA 10372, the amending law, “reproduction” is allowed even without the consent of the copyright owner only in very special circumstances. 
Among the special situations are mentioned in Sections 184, 185 and 188.1 of RA 8293.  Sec. 184 provides for “specialized format exclusively for the use of the blind, visually- and reading-impaired persons” with further qualification that such “be made on a nonprofit basis and shall indicate the copyright owner and the date of the original publication.”  On the otherhand section 185 lists what are situations of “fair use” that dies not consist infringement of copyright while under Sec. 188.1 if reproduction is for reprographic or preservation purposes then it is allowed even without consent of the author or copyright owner provided that they be reproduced only in limited copies.
Taking note of the aforementioned sections, it is clear that reproduction may only be done under very exceptional circumstances and for exceptional purposes, otherwise these qualifications should not have been provided at all.
Nowhere under the amending law, RA 10372, was non-profit reproduction of copyrighted materials for personal purposes mentioned as being allowed. 
It would have been better if the government’s answer to the FAQ qualified the definition and extent of “personal purpose.”
The implied effect of the law is that reproduction is allowed and is not an infringement of copyright if, although seemingly done in public, it is done for purposes of going beyond the music or to “digest” it further such as in research, criticism, comment, news reporting, and not for the sake of merely listening to it or sharing it to the public.
            RA 8293, Chapter XV, Section 212, provided for the exceptions which included “personal purpose” but Sec 21 of RA 10372 amended the said section, mutatis mutandis, providing that what should now apply when it comes to reproduction of performances (for the performer and producers alike) would be Chapter VIII on Reproduction of Copyrights.  Chapter VIII however does not provide for a discussion of “personal purposes” and in relation to the first FAQ in the post, the limitation for importation for personal use was completely deleted.  It only provides for an exclusive list of what does not constitute infringement and “personal purposes” is not included.
 The answer to this second issue is inadequate to address the question directly, as the law itself appears to be.
Question:  Is the possession of, for example, a music file procured through an infringing activity a violation of this law?
Answer:  Only if it can be proven that the person benefitting from the music file has knowledge of the infringement, and the power and ability to control the person committing the infringement. 
Comment:  The answer provided above is based on Sec 216 (b) of RA 10372.  The section however does not talk of mere possessing but beneffiting from the infringed material and so therefore the answer is not responsive to the question.  The law does not of itself provide an answer as to whether mere possession would punishable.  One provision, Sec. 216.1 (6) 2nd par., however implies that the act of infringing itself, whether or not known to the offender who happens to commit it, is civilly punishable.  Still that part does not address the question on mere possession.
Question:  Is jailbreaking or rooting[*] my phone or device illegal?
Answer:  No. Jailbreaking or rooting by themselves are not illegal. However, downloading pirated material, or committing infringement with a “jailbroken” phone increases the penalty and damages imposed on the person found guilty of infringement.
Comment:  On this Q&A, the government is correct in stating that jailbreaking otherwise known as rooting is not illegal. This is primarily based on the US Library of Congress’ declaration back in July 2010 that it is a right of all owners of products such as Iphone and Ipad.
            Rightly so, jailbreaking allows the owner of the Iphone, Ipad or other like devices to maximize its use by removing the restrictions set by the manufacturer as regards various features made available by other technology providers and developers of software applications.  The product is not altered.  The usability, flexibility and enjoyment of the device are increased, to the benefit of the owner.
Question:  Are mall owners liable for infringement activities of their tenants?
Answer:  Mall owners are not automatically penalized for the infringing acts of their tenants. When a mall owner or lessor finds out about an infringement activity, he or she must give notice to the tenant, then he or she will be afforded time to act upon this knowledge. As stated above, the law requires that one must have both proven knowledge of the infringement, and the ability to control the activities of the infringing person, to be held liable. The mall owner must also have benefitted from the infringement.
Comment:  I would have to agree that subject to certain conditions, the mall owner may be held liable for acts of infringements committed by his tenants.  It should be presumed that the owner shall ultimately be the one to blame not just if he has actual knowledge and control of the situation but if there is a proliferation of the infringing activities. Such should lead authorities to safely assume that he is tolerating the violation of intellectual property laws in exchange for the profit earned through the rents paid him.
            Under Section 217.3 of RA 8293 it is not just the fact that the possessor of the article knows that it is a product of infringement which could be the basis for his liability but he may also be held liable if he “ought to know” or perhaps, should know.  In the same wise, the mall owners should be held accountable if on its face there appears to be an encouragement of selling or displaying products inside the establishment which were obviously infringed, by the fact that many of the said items are being sold by most of the store operators, even at least, on a particular section of the mall.  Obvious here may be determined by whether the store owners or sellers have the proper rights to distribute the items they are selling, or just basing on the price of an original and an infringed item, or simply due to the history of the place or establishments.
            To qualify the “non-automatic” penalizing of the mall owners only based on their knowledge and control would hamper the drive to discourage copyright infringement in malls and major establishment.  It may be circumvented and be used as an excuse in denying liability.  There is a need to stress that there are instances that mall owners “ought to know” that such illegal activities are going on inside their establishments so that they too would be the ones vigilant in the fight for the rights of artists, producers and the like, in protecting the products of their creativity.  That way, the amendment brought about by sec 216 (b) of RA 10372, pertaining to knowledge and control, would be more effective.
Question:  Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints?
Answer: The IPO may visit establishments based on reports and complaints; this in itself is constitutional. However, if the IPO intends to perform a search and seizure, it must comply with constitutional requirements, such as having a search warrant. A warrant wouldn’t be required, however, if the IPO is accompanied by the Bureau of Customs or the Optical Media Board—two agencies that can perform a search and seizure on their own right without a warrant (per Republic Act No. 1937 and 9239, respectively).
Comment:  This would be among the more controversial issues among these FAQ’s as this part is where the law intended to expand the powers of the Intellectual Porperty Office (IPO), or at least it attempted to do so.
            It was merely an attempt as there was not a clear discussion as to the purpose of such visiting power and to what action the IPO may take if it is found that there is a violation of the IP law.  There was a patent attempt to liken the IPO to become just like what other govenment agencies such as the Optical Media Board (OMB), National Bureau of Investigation (NBI) and Bureau of Customs (BoC) are capable of when it comes to enforcing laws subject of their respective jurisdictions.
            There are two things which the above mentioned agencies can do which the IPO has not yet possessed even with the passing of RA 10372.  First, the said agencies can act on their own, the IPO cannot and has to await complaints by artists, authors and other copyright holders.  Second is that these agencies can enforce on their own, which the IPO cannot do.  Under the amended Section 7 of the intellectual property law, the IPO Director and his Deputy Director can:
Undertake enforcement functions supported by (emphasis supplied) 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;
            Without giving the IPO the power to act and enforce on its own, RA 10372 merely re-designates the Intellectual Property Office as a “middleman” kind of government agency tasked to accept complaints and coordinate with other government agencies for purposes of enforcement.  The “visiting” powers conferred by RA 10372 is rendered purposeless for it seems there was no need to include it in the law if the only power that the IPO has, on its own, is exactly to visit  since it has to have assistance if it wants to pursue further actions against violators.
            The legality of their visiting power as conferred by Sec 7 (d) law and all the more their non-existent right to perform search and seizure operations on their own, as attempted to be created by sec 7 (d) need not be discussed here as there is none in, or if there is, it can only be said to be useless and purposeless.
Final Comment:
Noticeable is the fact that in the end the post provides that:
The procedure and safeguards for this are to be spelled out in the Implementing Rules and Regulations.”
Perhaps that would be the reason why the six (6) questions and answers would appear to be very straightforward and doesn’t appear to be apprehensive about constitutional rights issues as it would when critics would attack the amendatory law.  The government maybe confident that whatever loopholes the wordings of RA 10372 have, the IRR would be able to cover.  However, according to critics of RA 10372, such as Professor Jj Disini, the implementing rules cannot suffice to fix the loopholes of a law since one cannot write something on the IRR which is contrary to law and the it would be impossible to address every flaw, the very reason why there is an injunction on the Cybercrime Law.

             Overall, the Q&A post of the government regarding RA 10372 is not as helpful as it may have wanted it to be as it clearly missed some of the more important issues which should have been answered.  It was not only due to the simple way the questions were answered but perhaps because the law itself is lacking in substance required to provide for a meaningful legislation.

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