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.
Introduction
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, democracy.net.PH 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]
CONCLUSION
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.
[1] http://thepublicdomain.org/thepublicdomain1.pdf
last accessed on 18 May 2013.
[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 http://journals.upd.edu.ph/index.php/kasarinlan/.../1974
last accessed on 18 May 2013.
[3] Ibid.
[4] http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm
last accessed on 18 May 2013.
[5] Ibid.
[6] Cabilo, supra.
[7] Fr. Ranhilio C. Aquino,
“Intellectual Property Rights: Protecting Economic Interests,” at http://www.dlsu.edu.ph/research/centers/cberd/conferences/ipr.pdf
last accessed on 18 May 2013.
[8]
As cited in http://www.electronicbookreview.com/thread/technocapitalism/proprietary
last accessed on 19 May 2013.
[9] Philippine News Agency, “House
Passes Amendments to Intellectual Property Code,” at http://www.interaksyon.com/article/4513/house-passes-amendments-to-intellectual-property-code
last accessed on 19 May 2013.
[10] Ibid.
[11] JM Tuazon, “New Law Under Fire,”
at http://www.interaksyon.com/infotech/new-law-under-fire-critics-slam-problematic-ip-code-amendments
last accessed on 18 May 2013.
[12] Melvin Calimag, “IP Code
Amendments Violate Constitution, Says Internet Lawyer,” at http://newsbytes.ph/2013/03/04/ip-code-amendments-violate-constitution-says-internet-lawyer/
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 http://bitsinbits.wordpress.com/2013/02/20/the-enforcement-provisions-of-the-ip-code-amendments-do-not-have-safeguards-in-cases-of-abuse/
last accessed on 18 May 2013.
[15] Alma Anonas-Carpio, “While We
Were Not Looking: IP Law Amendments,” at http://www.philippinegraphic.ph/index.php/tech/112-while-we-were-not-looking-ip-law-amendments
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 http://raissarobles.com/2013/02/15/reply-to-ricardo-blancaflor-intellectual-property-office-director-general/
last accessed on 20 May 2013.
[19] Joyce Ilas, “Amendments to IP Code
Questioned,” at http://www.solarnews.ph/news/2013/02/15/amendments-to-ip-code-questioned
last accessed on 17 May 2013.
[20] Elpidio V. Peria, “Philippine
Copyright Law Amendments Disadvantageous to Ordinary Users, Students and
Researchers,” at http://bitsinbits.wordpress.com/2013/02/16/philippine-copyright-law-amendments-disadvantageous-to-ordinary-users-students-and-researchers/
last accessed on 18 May 2013.
[21] http://democracy.net.ph/statement-on-proposed-amendments-to-ra-8293-intellectual-property-code/
last accessed on 20 May 2013.
[22] http://www.gov.ph/2013/03/11/infographic-faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
last accessed on 15 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).
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