Monday, May 20, 2013

Technology and the Law

A Critique on Malacañang’s Clarifications to the IP Code Amendments

xxx the language of intellectual property exists. It has political reality in the world. Sometimes the language confuses and misleads. There are two possible reactions to such a reality. One can reject it and insist on a different and “purified” nomenclature, or one can attempt to point out the misperceptions and confusions using the very language in which they are embedded.
 -James Boyle, The Public Domain: Enclosing the Commons of the Mind[1]


            Intellectual property is not a fairly new concept in Philippine society.  A concrete proof could be found in the earlier Coca-Cola tansan where, during the ‘80s the words “Reg. Phil. Pat. Off.” can be found.  Or that symbols such as ® or accompany every product, restaurant, book or phrase as a sign that it is a protected property.

            In the Philippines, the regime of intellectual property predates any other international treaty on intellectual property in which the country is a signatory.[2]  There were already existing intellectual property laws as early as 1879 such as the Spanish Law on Intellectual Property and the Spanish Patent Law of 1888.[3] Two (2) relevant laws were passed in 1947, Republic Act 165 which created the Philippine Patent Office and Republic Act 166 or the Trademark Law.  In 1972, Presidential Decree 49 or the Copyright Law was enacted.

            Section 9(3) Article XV of the 1973 Constitution recognized “[t]he exclusive right to inventions, writings, and artistic creations shall be secured to investors, authors and artists [for a limited period].”  A more specific provision on the state’s responsibility to protect intellectual property was included in the 1987 Constitution, more specifically Section 13 Article XIV thereof which provides for protection and security of “the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, x x x.”

            Right after the promulgation of the 1987 Constitution or on February 27, 1987, President Corazon Aquino issued Executive Order 133 which created the Bureau of Patents, Trademark and Technology Transfer (BPTTT).  In 1993, the Inter-Agency Committee on Intellectual Property Rights under the Office of the President was created by virtue of Executive Order 60.

RA 8293: Intellectual Property and the Globalization Framework in the Philippine Setting

            In 1995, the Senate ratified the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) which is now the World Trade Organization or the WTO.  The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) introduced intellectual property rules “into the multilateral trading system for the first time”[4] and establishes the required minimum protection that governments have to give to other WTO member-countries.[5] 

            The above factual context is important since the enactment of Republic Act 8293 or the Intellectual Property Code is one of measures made by the Philippine government to prove its compliance with the TRIPs.  RA 8293 created the Intellectual Property Office (IPO) and repealed other inconsistent provisions of existing laws and consolidated patent, trademarks and copyright laws into a single intellectual property law.[6]  Special intellectual property courts were likewise designated and later on Special Commercial Courts were likewise designated to try and hear intellectual property related cases.

            Truly then, intellectual property rights, as Father Ranhilio Aquino would say, are about economic interests.[7] Investments through investor confidence, international pressure and the enforcement of intellectual property rights and protection are all inter-related.  Globalization threw technology and information in the midst of a competitive yet protectionist, profit-driven and oriented and volatile international market.

            Lastly, to cap this discussion, a phrase as cited in an online article is worth stressing:

[B]y the close of the twentieth century, in highly developed market economies at least, most symbolic production and human creativity have been captured by and subjected to market relations. Private ownership of the cultural means of production and the sale of the outputs for profit have been the customary characteristics. The exceptions - publicly supported libraries, museums, music - are few, and they are rapidly disappearing. The last fifty years have seen an acceleration in the decline of nonmarket-controlled creative work and symbolic output. At the same time, there has been a huge growth in commercial production.[8]

The Amendments to the Intellectual Property Code

Sometime in May 2011, the House of Representative approved on third reading House Bill 3841 introducing amendments to specific provisions of RA 8293.  Congressman Rufus Rodriguez, one of the authors of the Bill stated that one of its aims is to “give as much concern to the rights of performers, phonogram producers and broadcasters in the same breath as those accorded authors of artistic and literary works.”[9]  Another co-author, Aurora Representative Juan Edgardo Angara declared that the goal of the amendments is “to provide an internet environment where it is safe to distribute and license protected material.”[10] The Senate eventually passed its counterpart, Senate Bill 2842.

While Filipinos were right in the middle of the uproar created by the Cybercrime Law, President Benigno Aquino III signed into law Republic Act 10372 (An Act Amending Certain Provisions of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, and for Other Purposes) on February 28, 2013. 

The new law immediately came under fire from netizens and lawyers who raised the issue on the introduction of “problematic” amendments to the law[11] including provisions that directly violate the Constitution.[12] 

Section 7 of the amended law, expanded the power of the Intellectual Property Office (IPO) Director General and Deputies Director General.  In the original law, the IPO only exercises quasi-judicial functions over decisions rendered by other administrative bodies and those relating to disputes in licensing terms.  In RA 10372 however, the law expanded the powers of the IPO, through its Director General and Deputies Director General to include enforcement functions and visitorial powers without the benefit of a judicial warrant.

Lawyers were fast enough to raise the question of the validity of this specific amendment of the law for being violative of due process, equal protection, the right against unreasonable searches and seizures and an encroachment into the powers of the judiciary.[13]  With both the power to enforce the law and its quasi-judicial functions, the IPO and its officials will act both as the judge and the executioner at the same time.  Moreover, it seems that no other government agency, aside from the IPO, performs both quasi-judicial power and enforcement function at the same time.[14]  It should be stressed that prior to the amendment, only law enforcement agencies under the National Committee on Intellectual Property Rights, which include the BOC, the NBI, OMB and the PNP could pursue, arrest and prosecute suspected counterfeiters.[15]

The law further amended the definition of “communication to the public” (Section 171.3) and “reproduction” (Section 171.9).  Additional concepts such as “technological measure” (Section 171.12) and “rights management information” (Section 171.13) were likewise included in the amendments.

Sections 190.1 and 190.2, which contain the right to import copyrighted works even with the objection of the copyright owner, were completely deleted under RA 10372.  This provision of the law allows people to bring into the country at least three (3) copies of a copyrighted material under the certain circumstances.[16]

The deletion of this particular section drew flak from many sectors of society that it even incited a debate between IPO Director-General Ricardo Blancaflor and investigative journalist and blogger, Ms. Raissa Robles.[17]  Blancaflor in an interview with the news channel, ANC, said the provision was taken out “so you can bring as many as you can as long as you are not infringing and they are covered by fair use.”[18]  Lawyer and IT Expert and UP Professor of Law, Atty. JJ Disini on the other hand, countered Blancaflor’s statement by simply saying that the “reasonable interpretation is that Congress intended for you not to have that right…”[19]

Temporary reproduction and the removal of the personal use exception existing under Section 212 of RA 8293 makes a person copying or reproduction for personal use liable for infringement under the amended law.

Lawyer Atty. Elpidio V. Peria again expressed concern that such amendments are disadvantageous to ordinary users, students and researchers saying that the new law “severely disadvantaged the broader right of the people for access to knowledge.”[20] 

In a strongly worded statement, said that the amendment “is a dangerous measure that potentially criminalizes daily actions” which are crucial to Filipinos.[21]

Malacanang Explains (or at Least Attempted To).

Probably in an attempt to at least tone down the debate on the IP Code amendments so as to prevent it from turning into an uproar both online, on the streets and into the courts, the government issued a 6-point clarification in the form of frequently asked questions (FAQs) in the Official Gazette website captioned “FAQs on the Amendment to the Intellectual Property Code of the Philippines.”[22]

But the question still is, did these supposed FAQs clarify or substantially appease the public’s clamor for the rightful exercise of their constitutionally enshrined freedoms?

This author believes that it does not.  The questions were phrased in such a way that they are hermeneutically-distorted.  Malabnaw, as we usually call it.  The FAQs did not only muddle the issues, it even swayed away from the major one, which is, whether these amendments could stand the test of constitutionality.

a. Expanded Powers of the IPO

The last question in the FAQs is, ironically, the most important question that the people would probably want more to know: Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints? The government answered in the affirmative and in its own defense, proceeded right away with a statement that “this in itself is constitutional.”  It emphasized that there would still be a need for the IPO to secure a search warrant but that the same can be dispensed with if the IPO is accompanied by the BOC and the OMB who can allegedly perform warrantless searches and seizures.

The government’s answer to this particular question is vague and is actually misleading.

Section 7 of the amended IP Code violates the constitutional guarantee against unreasonable searches and seizures.  Article III Section 2 of the 1987 Constitution should be re-echoed in full for emphasis and reiteration:

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.

The answer to FAQ #6 issued by the government failed to mention that Sec 7(d) of the amended law clearly ignored the fact that as a general rule, a search warrant must be procured from the courts before a valid search and seizure are made.  While it is true that this rule is not absolute because there are exemptions provided thereto, these exemptions must pass the test of reasonableness to be valid and the determination of reasonableness, uniqueness of the circumstances involved, the purpose for which the search and seizure was made and the absence or presence of probable cause and the manner in which it is made are all purely judicial questions.[23] More so because a warrantless search is a derogation of a constitutional right, a public office, official or officer cannot invoke regularity in the performance of their duties as a defense.[24]

As Justice Nachura accentuated in the case of Valeroso vs CA,

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection.  While the power to search and seize may at times be necessary for public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of any statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of an individual in the name of order.  Order is too high a price to pay for the loss of liberty.[25]

Further, Section 7 of the amended law exacerbates the susceptibility of the public to further rights violation. 

The government compares the warrantless search and seizure of the IPO to that of the BOC and the OMB.  This is deceiving and misleading. 

First, Republic Act 9239 (An Act Regulating Optical Media, Reorganizing for this Purpose the Videogram Regulatory Board, Providing Penalties Therefor, and for Other Purposes), does not dispense of a judicial search warrant.  In Section 10 (e) thereof, one of the powers and functions of the OMB is to “apply for or obtain search warrants from any court of law” and only to take preventive custody of any seized item.  The same is true with the Bureau of Customs.  While this is true with the Tariffs and Customs Code of the Philippines, the same is also with limitations as they could only conduct this under a specific purpose and only within their collection district.

Second, the visitorial powers given to the IPO is very much different compared to that given to the Department of Labor and Employment (DOLE), the Bangko Sentral ng Pilipinas (BSP) and the OMB.  These government agencies are tasked to regulate the activities of employers (DOLE), banks (BSP) and optical media producers (OMB) and at the same time issue the necessary licenses and permits for them to operate.  This is different for the IPO since it does not have either licensing or regulatory functions over the use of IP goods.[26]

b.  Reproduction, Infringement, Vicarious Liability and Jailbreaking: Misleading Questions, Misleading Answers

            The second FAQ which the government answered in the negative is whether the reproduction of a copyrighted material for personal purpose is punishable by law.  It averred that when one transfers music from a lawfully-acquired CD into a computer and transfer it into a portable device, there would be no infringement to talk about.

            Again, this is quite misleading.

            Section 171.9 introduced the law’s definition of reproduction which is the making of one (1) or more copies whether it be temporary or permanent and whether it be in whole or in part of a particular work or sound recording in any manner or form.  Clearly, under this provision, there is infringement if and when a copy is made, even a temporary one, of a copyrighted work, without the consent of the copyright owner.  This interpretation is very true more so when Section 171.9 is read together with the deleted portions of the old IP Code on personal use as an exception.

            Again, as Atty. JJ Disini pointed out in his Position Paper against these amendments, such concept and definition would not be realistic in the day-to-day realities of modern day technology.  Say for example, a computer user runs or launches a particular software or listens to a legitimate sound recording over the internet or merely by visiting a legitimate page over the internet, these acts would leave temporary copies of these pages over the computer’s RAM.  Then, eventually, this computer user would be committing infringement and would be liable under the amended law.[27]

            The amendment is even made more confusing and vague in that while Section 216 provides for a very nebulous and obscure definition of what infringement is.  Imagine, a person infringes a right when he “directly commits an infringement.”[28]  But what really is infringement? The law does not actually define it.  This is very dangerous as it allows the IPO to actually go after anyone for doing almost anything that they could arbitrarily interpret as an act of infringement.

            This amended provision would not only be dangerous to individuals but also to legitimate businesses if read together with Section 216(b) on the liability of those who benefit from a particular infringing activity. 

That is why the answers to FAQ #3 and #4 are likewise misleading.

In answering FAQ #5, the government said that mall owners are not automatically penalized for the infringing acts of their tenants because “when a 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.”

FAQ # 5 is obviously an answer to the issue raised by Atty. Disini on vicarious liability where he pointed out as an example the liability of a mall owner with his lessees who may be committing an infringing activity under the law.  But take note, despite the government’s answer to FAQ #5, nowhere is there any provision or sentence in Section 216(b) that provides for a specific time or opportunity within which the mall owners could take corrective actions to stop the infringing activity of its lessee.  The government’s answer is quite vague.  How much time will be afforded? The law does not say.

The fourth FAQ is something close to the heart of many Filipino smartphone users who cannot fully enjoy the capabilities of their phone because of expensive software applications.  Is jailbreaking a crime? The government says, jailbreaking or rooting “by themselves” are not illegal.  It only increases the penalty.  Under the amended law it is an aggravating circumstance.  So it is in itself a prohibited act.

c.  Importation Rights or No Right At All

            FAQ #1 is also of great interest for many Filipinos: Am I still allowed to import books, DVDs and CDs from abroad?  Yes, says the government.  It boasts of the fact that the amendment “removed the original limitation of three copies  x x x.  As long as they were legally purchased, you can bring as many copies as you want.”

            This is not only misleading, it is also false.

            Sections 190.1 and 190.2 were completely deleted in the amended law.  These provisions are important since they provide that an individual has a right to import copyrighted works even against the copyright owner’s will.  While this right is limited, an importer does not hold a heavy burden of proving to a customs officer that he is acting within the limitations provided for by law.  On the other hand, a customs officer, will not have unbridled power to detain a supposed illegal or infringing article or material.

            As Atty. Disini succinctly puts it in his critique of the then proposed amendments, the deletion of these provisions creates an importation right “that only the copyright holder or its licensees have the authority to import the works into the country.”[29]


            The inevitable conclusion is simple.  The clarifications issued by the government on the amendments of the IP Code through these six-item frequently-asked-questions do not really clarify the law.  These clarifications only muddled the salient points of the law and in truth deprived every Filipinos’ right to be informed.

            Clearly, the amendments to the Intellectual Property Code pose many fundamental issues that must be addressed truthfully since the provisions thereof have a great impact on our individual rights.  It is true that the state has the duty to protect intellectual property rights, but a balance must be created between the rights given to the owners of these intellectual properties and the fundamental rights of each and every Filipino clearly enshrined under our Constitution. 

[2] Zuraida Mae D. Cabilo, “Philippine Intellectual Property Rights under the World Trade Organization, 1995-2005: Implementing the Flexibilities under a TRIPs-Plus Commitment,” at last accessed on 18 May 2013.
[3] Ibid.
[5] Ibid.
[6] Cabilo, supra.
[7] Fr. Ranhilio C. Aquino, “Intellectual Property Rights: Protecting Economic Interests,” at last accessed on 18 May 2013.
[9] Philippine News Agency, “House Passes Amendments to Intellectual Property Code,” at last accessed on 19 May 2013.
[10] Ibid.
[11] JM Tuazon, “New Law Under Fire,” at last accessed on 18 May 2013.
[12] Melvin Calimag, “IP Code Amendments Violate Constitution, Says Internet Lawyer,” at last accessed on 18 May 2013.
[13] Atty. JJ Disini, “Position Paper on the Proposed Amendments to the IP Code.”
[14] Atty. Elpidio V. Peria, “The Enforcement Provisions of the IP Code Amendments Do Not Have Safeguards in Cases of Abuse,” at last accessed on 18 May 2013.
[15] Alma Anonas-Carpio, “While We Were Not Looking: IP Law Amendments,” at last accessed on 17 May 2013.
[16]   Section 190.  Importation for Personal Purposes. – 190.1.  Notwithstanding the provisions 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 a 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 likeness 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 part of the 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).
[18] Raissa Robles, “Reply to Ricardo Blancaflor, Intellectual Property Office Director_General,” at last accessed on 20 May 2013.
[19] Joyce Ilas, “Amendments to IP Code Questioned,” at last accessed on 17 May 2013.
[20] Elpidio V. Peria, “Philippine Copyright Law Amendments Disadvantageous to Ordinary Users, Students and Researchers,” at last accessed on 18 May 2013.
[23] Valeroso vs Court of Appeals, G.R. No. 164815  September 3, 2009.
[24] Ibid.
[25] ibid.
[26] Disini, supra.-
[27] ibid.
[28] Section 216(a).
[29] Disini, supra.

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