Is the Explanation of Malacanang to the relevant amendments in R.A. 10372 accurate?

Republic Of The Philippines

Arellano University School of Law

Technology and the Law

(Atty. Michael Vernon Guerrero y Mendiola)

The Govenment is view of the enactment of R.A. 10372 which effectively amended certain provisions Republic Act 8293 otherwise known as the intellectual property code released FAQ’s (Frequently Asked Questions) in the Government website.1 The Following are as follows.

Am I still allowed to import books and DVD’s and CD’s from abroad?

The government responded . “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.” 2

Now we dissect the government’s sentiments regarding this particular matter, there is a need first to compare the provisions pertaining to importation in Republic Act 8293 and its amendment in Republic Act 10372. The main provision which deals with the importation of products from foreign countries in the old law is section 190.1 ,190.2 (importation for personal purposes). But under section 14 of Republic Act 10372, section 190.1 and 190.2 was deleted. There is now a grey area pertaining to the importation of books, articles and any object that has been subjected to copyright. Section’s 190.1 and 190.2 are not only limitations regarding the importation of copyrighted objects from abroad but it also establishes rights, when for instance a copyrighted object maybe the object of importation if the copies does consist more than three copies and its usage is for religous, charitable as well as educational institution. Another situation is if such imporation of a copyrighted object is for individual use only provided that it is not more than one copy. Now since the provisions has been deleted, it goes without saying that the previous exemptions provided under section 190 Republic Act 8293 are already abrogated and thus imporation of books and other copyrighted materials without the consent of the copyright owner is illegal.

“Some speakers believe that the the deletion is inconsequential because the right to import copyrighted materials previously granted under the Sections 190.1 and 190.2 is also covered and governed under the existing provisions on fair use under Section 185.1. However, even if bringing in of IP works for personal use is indeed covered under the provision on fair use, the amendment exposes consumers to airport inconvenience brought about by the possible differences of interpretation on the part of the enforcement officers.” 3

The answer of the government therefore in question no.1 posted in its website is highly debatable. It is a basic tennet in statutory construction supported by plethora of cases decided by the Supreme Court that if a particular provision is deleted it is therefore the intention of congress to disallow the operation of such provisions. It is therefore concluded that when congress effectively deleted the section 190.1 and 190.2, all statutory rights granted by it are deemed suspended. However as discussed buy this article 4 section 190.3 was retained. Note the however the amendments to section 190 in Republic Act 10372

“Section 190. Importation and Exportation of Infringing Materials. – 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 or exportation of infringing articles prohibited under Part IV of this Act and under relevant 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 or before they are exported. [Note: the underscored portions are the amendments]”5

We therefore read this provision as an express delegation by the congress to the specified branches of the executive to exercise quasi legislative power regarding the importation and exportation of copyrighted objects previously discussed in section 190.1 and 190.2. We may interpret this as a way for congress to give this departments greater leeway in implementing the copyright laws of the country. Since according to the Supreme Court upon the evolution of human interaction; society itself become more complex that it is almost impossible for congress to foresee all possibe situations, this resulted therefore to a trend where congress delegates to the branch of government the power to legislate such as the implementing rules and regulations.

Is the reproduction of copyrighted material for personal purposes punishable by this law?

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.7

The government in their answer relative to the second question asseverate that the one being violated is the economic rights of the owner. Indeed there is no specific provision that make it a criminal violation for users to reproduce copyrighted material for personal use. But in reading the provisions of republic act 10372 it seems that the copyrighted owner may file other remedies and a civil case for infringement against the user who reproduced the questioned copyrighted material, since acording to section 203.2 of Republic act 10372 in quoting the provision “the right of authorizing the direct and the indirect reproduction of their performances fixed in sound recordings or audio visual works or fixations in any manner or form”.

By reading the provision therefore it maybe implied that it is a condition sine quo non for the copyright owner to give his/her consent in the direct or indirect reproduction of performances fixed in sound recordings, audio visual works or fixations in any form. The emphasis to this provision is the phrase “unauthorize reproduction in any form”. The provision does not qualify what the purpose for such reproduction, it maybe for personal use, for educational purpose or religous performance or selling. The prohibitions stays regardless of the motiviation for the reproduction. It may therefore be concluded that the prohibition stays even if the original comes from a legitimate source where the copy comes from.

By the facts stated above therefore, I partially accept the government’s views. Indeed there is no criminal liability regargding this matter. But the conclusion presented by the government is misleading and incomplete. True there is no criminal liability, but the copyright owner may file a case for illegal reproduction since according to the provision stated above it is within the copyright owner’s right to authorize or not to authorize the reproduction of his copyrighted material in any manner or form. So the contention that if a CD’s content is copied and transferred into another medium which resulted in the transfer of such content to another device, it is of my humble opinion that it constitutes reproduction within the contemplation of the section 203.2 of Republic Act 10372 upon which a case for infringement may be initiated.

Nothwitstanding however the prohibition on unauthorized reproduction, Republic Act 10372 provided for an exception under section 13(former section 188.1 of R.A. 8293) the law provides that persons who’s activities are not for profit, example's of which are libraries and archives may without the authorization of the copyright owner make limited number of copies of the work. Another example is the production of copies where the original is lost destroyed or rendered unusable, etc.

Is the possession of, for example, a music file procured through an infringing activity a violation of this law?

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.

It is very clear from the provision of Republic Act No. 10372 section 22 thereof that a person may be held liable for infringement if he/she has direct personal knowledge and such person benefits from such infringement thereof. Under R.A. 10372 there is no specific provision which expressly prohibits the possesion of a music file procured thru infringinging activity. However under section 22 of the same law, persons who directly benefit from an infringing activity of another person maybe held liable provided that such person has been given notice and has the right to control the activities of the other person. A person may also be held liable if upon his knowledge of the infringing activity induces or contributes to the infringing conduct of another.

However since infringement carries with it a criminal penalty it is therefore presumed that the same rules on criminal actions are applied. Since knowledge that a particular item came from or a product of illegal acts, such person having knowledge of such illegal acts and directly benefits thereof may be held liable as an accessory for the crime of infringement.

“Section 22(former section 216 of R.A. 8293) turns internet service providers into cops 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 of R.A. 8293 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. The wording of the law makes it unfair to ISPs because no prior notice is necessary:

“There’s this copyrighted material. This law says you benefit (from the download) because you sell bandwidth. The moment they (the IPO) notify them (ISPs) of that, they are committing copyright infringement. That’s unfair to the service provider.”8

According to one author (raisa robles) relatively mall owners may also be held liable if for example they have existing knowledge that some of their tenants are in possesion of articles that have been downladed illegally from the internet provided that they have control and supervisory power over such tenants inside their premises. But such liability may only attach if the buiding owner has working knowledge of such infringement. The emphasis would be “knowledge of such infringement” and such mall owner exercising control or supervisory over their tenant fails to act upon it.

Is jailbreaking or rooting my phone or device illegal?

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.

The government mainatains the position that indeed jailbreaking is not illegal per se, however the act of downloading a pirated material is the one that is illegal. That may be so, the governments position regarding this matter has some semblance of truth, jailbreaking your iphone is not illegal per se, using your jailbreaked iphone however to download infringed application constitutes infringements. But such position of the government is somewhat misplaced, majority of people who modify their device like jailbreaking of an iPhone, their intention is to acquire the infringed application for free, this infact causes or induces people to commit acts of infringement.

If for example a store owner offers services like modifying your phone so that the application that the user of such mobile device previously pays over the application, and such modification will make such application for free, then such store owner maybe held liable for copyright infringement under section 22(section 216(c)) of Republic Act 10372. As this practice induces or contributes to the infringing act of another.

However according to one article,

“”Under this new law, once you modify a device (for instance “jailbreaking” an Apple product such as an iPhone or iPad) in order to remove restrictions on what and how apps and content can be stored and used — you can be held criminally liable for ”copyright infringement.” The amended version 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.

Penalties for “jailbreaking” and other forms of copyright infringement range from three years in jail and at least P150,000 for the first offense, and up to nine years in jail and P1.5 million pesos for the third and subsequent offenses.”9

In section 23(amended secttion 217.2) of Republic Act 10372 provides for penalties of if the defendant provided for the circumvention of the effctive technology measures, removal alterations of any electronic rights management information from a copy of a work. In reading this provision indeed the penalty provision provides for acts of infringement upon mere circumvention of effective technological measures and/or removal or alteration of any electronic rights management. I respectfully opine that section 23 (amended section 217.2) effectively criminalizes the act of jailbreaking. Jailbreaking in my opinion is a technology measure that will effectively circumvent all security features of the phone inorder for its user to download the application for free.

Are mall owners liable for infringement activities of their tenants?

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 benefited from the infringement.

As previously discussed under section 22( section 216) of Republic act 10372, the enumeration are the acts that constitutes infringement. I agree with the government’s position pertaining to its answer to question number 5. The mall owners are not automatically penalized for the infringement acts by their tenants, the prosecution must first establish that the said mall owners have knowledge of the infringing acts and was benefitting from the same. If a government office officially informed the mall owner that his/her tenants exercises infringing acts to his establishment and such mall owner fails to stop/ or prohibit such infringing acts, then there is a presumption of knowledge of such infringing acts on the part of the mall owner and that would make him accessory to such violation. Inorder for the mall owner however to be liable they must have the right and ability to control the activities of the infringer. By virtue of an agreement it is presumed that the mall owner and the tenant incorporates upon their contract that all illegal activities are prohibited. Infact it is deemed impliedly incorporated in every contract that such contract will abide by the statutes of the sovereign otherwise contracts that are contrary to law is void.

Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints?

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).

The procedure and safeguards for this are to be spelled out in the Implementing Rules and Regulations.

Under section 2 (section 7(d) of Republic Act 10372, the director general and deputies director general may conduct visits to establishements and businesses engaging in activities violating intellectual property rights based on report, information or complaint received. I am greatly disturbed by this provision. What is therefore the definition of visit? If for example the owner of the establishment or a warehouse refuse to allow the deputies to enter their premises will such warehouses owner be liable criminally? Indeed the bureau of customs and the optical media board may conduct search and seizure in their own right subject to specific limitation, nonethless the provision giving the director general and its deputies power to conduct searches and seizures without a warrant makes it constitutionally unacceptable.

“Notwithstanding the fact that IPRs are private rights, now we have the much-talked-about IP Code amendments giving powers to the Director General and the Deputies Director General of Intellectual Property Office (IPO) to undertake enforcement functions with the support of the PNP, NBI, Bureau of Customs, Optical Media Board and the local government units, among others and in addition, these same people will now be able 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 Intellectual Property Office.” 10

“Prof. JJ Disini of the University of the Philippines College of Law characterizes this latter set of powers as warrantless searches which are unconstitutional, but what we will highlight is that this enforcement function makes the IPO officials both judge and executioner of the cases involving violations of IPRs and this is what makes it problematic.“11

Indeed the powers granted to optical media board to conduct inspections and lawful searches are confined to specified places, while in section 2(section 7(d) as long as there is a report and a complaint by the office then the IPO office may conduct inspection regardless of the place. This provision is indeed in my opinion highly controversial and I doubt its constitutionality. It will violate right of the people against unreasonable searches and seizures

“Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”12

End Notes:

Disclaimer:

This blog is for academic purposes only. I am not a lawyer nor pretending to be one. This article does not reflect the view of Arellano University School of law nor My professor Atty. Michael Vernon Guerrero y Mendiola.

Author: Aedler Jo-Lean Atutubo

Sunday, May 19, 2013