Willy Wonka’s version of the IPL Amendments
Once upon a time, when the Filipino people were busy defending the sovereign kingdom of the Philippines in a territorial dispute with kingdom of Malaysia, lawmakers began baking amendments in the Intellectual Property Law (IPL) clandestinely. After a few weeks which is extraordinarily fast compared to the general average of phasing of law making in the Philippines, it was approved and signed by no less than the President of the Philippines, President Benigno S. Aquino III. Yes, clandestinely I say because no one really knew of this, only those limited to the invitation for the consultation arranged, this was publicized only after the heads up given by investigative journalist and blogger Raissa Robles regarding the amendments of the Intellectual Property Law (RA8293) of the Philippines packaged in R.A. 103721. Thereafter, netizens, militant groups and lawyers questioned the said amendments because of the e-wall it tries to build, limiting the rights of the people to maximize their ownership or consumption of something placed in the public market. To erase the doubts of the people, the Malacañang Palace, released an explanation of the amendments to the IPL which seems to be authored by Willy Wonka himself. Why? Because it is “sugar, spice and everything nice.” Sugar coated is an understatement it is. It tried to hide the threats to the people by looking through rose colored glasses.
In this paper, all the guarantees made by the Malacañang Palace will be discuss vis a vis with the explanation given by University of the Philippines College of Law Professor, Atty. JJ Disini, IPL Lawyer Atty. Elpidio V. Peria and University of the Philippines College of Law Professor Victoria Avena.
First guarantee, Filipinos may still import books, DVDs, CDs from abroad. According to the Palace, the amendments introduced, deleted the limitation of the quantities of articles, before amendement three (3) copies, one may import from abroad, thus, giving the consumers the freedom to bring legally acquired copies of copy righted material in the country subject to Customs laws.2 They further explained that the only thing prohibited is pirated items. However, the amendment itself was quite vague which allows multiple interpretations of the law, some are good, some are not.
Atty. Peria, in his blog, presented possible scenarios in the implementation of the said particular amendment. First, the Secretary of Finance and the Bureau of Customs may simply regulate the importations of materials. Second, the foreign copyright owner, may request the Intellectual Property Office (IPO) to recommend to the Bureau of Customs the non-entry in the country of copyrighted material which they consider an excess.3 These may be pure speculations for now, but these are not impossible to happen since the amendment also gave wide and vast powers to the IPO. Atty Disini, too, share the same sentiments of Atty. Peria, according to him, the outright deletion of Section 190 makes all the scenarios above possible. Unlike the old law, it expressly allows consumers to import products abroad but now, because of the removal of the said section, consumers no longer have the explicit right to allow importations of copyrighted materials.4 Thus, if Filipinos get apprehended, they have no right in the IPL which they may use to defend their actuations regarding importations. One effect that Atty. Disini suggest this might bring is price hike of items since if consumers will be banned to import from abroad, they have no choice but to buy inside the country no matter how costly it may be.5
Furthermore, it is justified why anti amendments advocates are being pessimistic regarding these amendments because history and experience themselves may attest that vague laws with loopholes are being used to abuse and manipulate the public (e.g. CARP, VFA).
Second guarantee, it is not completely illegal to reproduce copyrighted materials for personal purposes IF it is for personal use and the copyrighted work is lawfully acquired. Thus, if one sells CDs copied form a lawfully acquired material; it is still infringement since it is not used for personal purposes.8 Regarding Pirated Music, it has been illegal even before the amendments of the IPL. In the Fact sheet made by the IPO, it explained that it is detrimental to local artist thus it has been protected by E-Commerce Act (Section 177) since 1997, which penalizes reproduction of a work without consent from the copyright owner.The said law may also apply to instances where a downloaded file from the internet was transferred from one person to another, the transferee may be held liable for violation of IPL.9 However, the significance of this amendment does not lie in the prohibition clauses which removes the issue argued by the IPO in their fact sheet. The issue presented by the parties is on the matter of the limitations on protection. The amendment removed the limitations on protection stipulated in Section 212 Chapter XV of RA 8293.10 In the deleted section, it includes exclusive personal use as an exception from the coverage of the IPL, thus, allowing anyone from making use of copyrighted items even without authorization from the owner of the copyright. No economic right of a performer or producer may hinder the use of a copyright material when it is used by a person for personal purposes.
Aside from that, Section 19011 which mentions importation for personal purposes was also removed. Under this deleted Section 190, it allows importation when copies of work is not available in the Philippines, one copy is allowed for individual use, the copy imported is for Philippine Government use or authorized by the Philippine Government, for educational, religious and charitable causes and will be a part of a library or personal belongings of an individual.
At present, with the phasing of the amendments, it is not surprising that with the deletion of Section 212, the word “personal purpose” no longer appear in the entire IPL including the amendments. Unlike before, the word “personal purpose” was repeated three times.12
Interestingly, even the right to fair use of students and researchers are now limited as the right to fair use MULTIPLE copies is replaced in the law. Now, only LIMITED copies are allowed in exercising the right to fair use.13
According to the IPO, the replacement of word is not an issue since the office will set the number of allowable copies when they frame the Implementing Rules and Regulations, however, Atty. Peria said in his blog that the privilege of deciding how many copies is no longer in the hands of the students and researchers, instead, it is given to the Intellectual Property Office.14 As if this is not enough burden to students and researchers, who, in a country like the Philippines, does not have the capacity to buy expensive materials needed for their respective fields. The amendment added a new section, Section 12015, it implies that intellectual creation of the learning institution and its employees must be given more importance than the right to fair use of students and researchers.16 In the Philippines, as mentioned earlier, such a milieu is crucial. If we are to give importance to education and technological innovations in this country as stated in our 1987 Constituition, the addition made, impedes the very guarantee of the constituition.
Third guarantee, the explanation of the Palace, states that a music file obtain through a method which violates the law is punishable only if proven that the transferee knew of the infringement and has the power and ability to control the person committing the violation.17 However, the way it was worded in the statement, failed to express the implication of this law.
As illustrated by Atty. Disini, if a mall owner, receives rental from the person who leases a unit in the mall but then again, the trade of the leasee includes infringement of any provision in the IPL, then the mall owner may still be held liable because he benefits no matter how indirect it may be. The given scenario may also apply to Internet Service Providers (ISPs) and others as long as they benefit from the infringement in any way.18
Disini, further, compared the amendment made with the US Digital Millenium Copyright Act with the freshly amended IPL of the Philippines. According to him, the US at the least allows ISPs and content providers to remove the infringing content before any legal action. Unfortunately, in the Philippines, no provision giving such opportunity is available to ISPs.19
In addition to the wide threat ISPs are exposed to, there is another section in the amendment section which makes IPs liable whenever an individual using their service downloads torrents or any file from an entity tagged as illegal download centers without prior notice. This liability is stipulated in Section 21620 of the amended IPL.
Fourth guarantee, Jail breaking which is commonly done in smartphones is not illegal but they consider it illegal to use jail breaked phone in downloading pirated material or commiting any vforms of violations.
In the definition given by the Palace in their explanation, they define Jailbreaking as “the process of removing the vendor-imposed limitations of tablets, mobile devices and other electronic gadgets.”22
Although it is not considered as a crime, using jail breaked phone may increase the penalty and damages awarded by the court.23 Hence, it aggravates the penalty which when we talk about the life and liberty of a person, it should not be taken lightly.
Fifth guarantee is connected to the situation given in the third guarantee. According to the Palace, mall owners are not automatically penalized for the acts of the tenants. Upon knowledge of the owner, it should give notice to the tenant and stop the tenant from doing the infringement act. Mall owners are not automatically penalized for the infringing acts of their tenants. Knowledge must be established and the owner must be able to exercise control over the tenant. 24 there may be safeguards present in the law, however, compared to the old IPL, this is still more stringent since the latter does not poses liabilities to mall owners.
The last one, is not a guarantee but a MISguarantee. According to the IPO and the Palace, IPO has the power to conduct searches based on reports and complaints subject to the requirements of the constitution- applying for a search warrant. However, they claim that no warrant is needed when the IPO is accompanied by the Bureau of Customs or the Optical Media Board.25
For Atty, Disini, search and seizure without a warrant constitutes warrantless search and thus unconstitutional. Atty. Avena affirmed the comment of Atty. Disini, it must be noted that only a judge way issue a warrant since it requires personal inquiry of the probable cause.26
The latter sentence was quite a manipulation, to avoid applying for a warrant, this may be a loophole for abuse and because of the legally given privilege for the Bureau of Customs and Optical Media Board not to apply for a warrant, one has no remedy but to allow the IPO to conduct search and seizures without a warrant.27
Because it is “sugar, spice and everything nice.”
1 Anonas- Carpio, Alma. (2013). While we were not looking: IP law amendments. Retrieved May 18,2013 from http://www.philippinegraphic.ph/index.php/tech/112-while-we-were-not-looking-ip-law-amendments
2 Official Gazette of the Philippines. February 2013. Citing Website. FAQs on the amendments to the Intellectual Property Code of the Philippines. http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
3 Peria, Elpidio V. (2013). PHILIPPINE COPYRIGHT LAW AMENDMENTS DISADVANTAGEOUS TO ORDINARY USERS, STUDENTS and RESEARCHERS. Retrieved May 18, 2013 from http://bitsinbits.wordpress.com/2013/02/16/philippine-copyright-law-amendments-disadvantageous-to-ordinary-users-students-and-researchers/
4 Ilas, Joyce. (2013). Amendments to IP Code questioned. Retrieved May 18, 2013 from http://www.solarnews.ph/news/2013/02/15/amendments-to-ip-code-questioned
6 Dimacali, TJ. (2013). New IP law allows warrantless searches, ‘erases’ right to personal use. Retrieved May 18, 2012 from http://www.gmanetwork.com/news/story/294998/scitech/technology/new-ip-law-allows-warrantless-searches-erases-right-to-personal-use
7 Anonas- Carpio, Alma. (2013). While we were not looking: IP law amendments. Retrieved May 18,2013 from http://www.philippinegraphic.ph/index.php/tech/112-while-we-were-not-looking-ip-law-amendments
8 Official Gazette of the Philippines. February 2013. Citing Website. FAQs on the amendments to the Intellectual Property Code of the Philippines. http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
9 Intellectual Property Office of the Philippines. February 2013. Citing Website. FACT SHEET ON IP CODE AMENDMENTS. Retrieved May 18, 2013 from http://www.ipophil.gov.ph/index.php/20-what-s-new/135-fact-sheet-on-ip-code-amendments
10 R.A. 8293 Section 212
Section 212. Limitations on Rights. – Sections 203, 208 and 209 shall not apply where the acts referred to in those Sections are related to:
212.1. The use by a natural person exclusively for his own personal purposes;
212.2. Using short excerpts for reporting current events;
212.3. Use solely for the purpose of teaching or for scientific research; and
212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec. 44, P.D. No. 49a)
11..R.A. 8293 Sec. 190
Section 190. 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).
12 Robles, Raissa. (2013). Congress erased every Filipino’s right to bring home music, movies and books from abroad. Retrieved May 18, 2013 from http://raissarobles.com/2013/02/14/congress-erased-every-filipinos-right-to-bring-home-music-movies-and-books-from-abroad/
13 Peria, Elpidio V. (2013). PHILIPPINE COPYRIGHT LAW AMENDMENTS DISADVANTAGEOUS TO ORDINARY USERS, STUDENTS and RESEARCHERS. Retrieved May 18, 2013 from http://bitsinbits.wordpress.com/2013/02/16/philippine-copyright-law-amendments-disadvantageous-to-ordinary-users-students-and-researchers/
15. Section 230 of RA 10372
Sec. 230. Adoption of Intellectual Property (IP) Policies- Schools and universities shall adopt intellectual property policies that would govern the use and creation of intellectual property with the purpose of safeguarding the intellectual creations of the learning institution and its employees, and adopting locally-established industry practice fair use guidelines. These policies may be developed in relation to licensing agreements entered into by the learning institution with a collective licensing organization.
16 Peria, Elpidio V. (2013). PHILIPPINE COPYRIGHT LAW AMENDMENTS DISADVANTAGEOUS TO ORDINARY USERS, STUDENTS and RESEARCHERS. Retrieved May 18, 2013 from http://bitsinbits.wordpress.com/2013/02/16/philippine-copyright-law-amendments-disadvantageous-to-ordinary-users-students-and-researchers/
17 Official Gazette of the Philippines. February 2013. Citing Website. FAQs on the amendments to the Intellectual Property Code of the Philippines. http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
18 Dimacali, TJ. (2013). New IP law allows warrantless searches, ‘erases’ right to personal use. Retrieved May 18, 2012 from http://www.gmanetwork.com/news/story/294998/scitech/technology/new-ip-law-allows-warrantless-searches-erases-right-to-personal-use19 ibid
20 Section 216 of RA 10372
Sec. 216. Infringement. a person infringes a right protected under this act when one:
(a) Directly commits an infringement;
(b) Benefits from the infringing activity of another person who commits an infringement if the person benefiting has been given notice of the infringing activity and has the right and ability to control the activities of the other person; or
(c) with knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another
21 Official Gazette of the Philippines. February 2013. Citing Website. FAQs on the amendments to the Intellectual Property Code of the Philippines. http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
23 Anonas- Carpio, Alma. (2013). While we were not looking: IP law amendments. Retrieved May 18,2013 from http://www.philippinegraphic.ph/index.php/tech/112-while-we-were-not-looking-ip-law-amendments
24 Official Gazette of the Philippines. February 2013. Citing Website. FAQs on the amendments to the Intellectual Property Code of the Philippines. http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
26 Dimacali, TJ. (2013). New IP law allows warrantless searches, ‘erases’ right to personal use. Retrieved May 18, 2012 from http://www.gmanetwork.com/news/story/294998/scitech/technology/new-ip-law-allows-warrantless-searches-erases-right-to-personal-use19 ibid
27 Robles, Raissa. (2013). Copyright owners have more rights than heinous crime victims with Congress’ IP Code changes – lawyers say. Retrieved May 18, 2013 from http://raissarobles.com/2013/03/06/copyright-owners-have-more-rights-than-heinous-crime-victims-with-congress-ip-code-changes-lawyers-say/
DISCLAIMER: Does not refect the opinion of my school nor my professor. My thoughts. 🙂