Comment: FAQs on the Amendments to the Intellectual Property Code of the Philippines

Disclaimer: The comments you are about to read are of the author’s alone and does not represent the views of the bar or any association or institution. It is made only as a compliance to an educational purpose.

Importation for personal use, in whose favor?

The first question regarding the Intellectual Property (IP) law amendments was about the implications of Section 14 of RA 10372[i] which removed article 190.1 and 190.2 of RA 8293[ii].

 Ignorance of the law does not excuse us from compliance to it, so why is Malacanang giving us explanations that tend to make us ignorant of a law? Because the first question, that is supposedly frequently asked, hides the fact that one of our rights was removed. In fact, it has opened us to the possibility of being harassed. Just because there would be no limitations on the number of copyrighted materials we may import doesn’t mean we can actually import unlimited copies, since it would always be subject to Customs regulations. Do they really think we would be that gullible? How would we be able to bring as many copies as we want if it would be subject to regulations? What if the regulations is not favorable to what I want as an importer, did it not contradict what Malacanang answered that I could bring as many copies as I want?

The fact of the matter is, they removed a right which we had under RA 8293. It was a limited right, but it was a tangible right. It was something we know we had. Even if it was limited to 3 pieces, at least we would not be subjected to harassment so long as we are acting within our right. Now, due to this new amendment, we would always be subjected to whatever regulation the customs would implement.

If I went to a vacation before, and decide to bring home copyrighted materials for personal use, I could do it without fear of being questioned when I return because I know I am just exercising my right. But not today, I do not have that right anymore. Even if I could bring unlimited copies, it wouldn’t matter since it would always be at the mercy of the customs regulation whether or not I may enjoy all those materials I legally acquired. I would rather that I bring three copies of something which I know for sure I will be able to use and enjoy, than to be allowed to bring a hundred copies with a chance that I may not be able to use even just one out of the one hundred pieces.

It wouldn’t even matter what purpose we intend to use the copyrighted material for. Even if we would use them for personal purposes only, we would still be made to explain to whoever has the authority to question us when we would go about importing books, DVDs and CDs.

So yes, we are still allowed to import books, DVDs and CDs from abroad, not because it is our right to do so but only because we were allowed to. It has only one difference but it is a huge one, the only one that matters. It erased our right.

I know that this right is not being exercised by everyone, so to better understand how insensitive this amendment is to us, let us relate it to a right we all exercise, the right to free speech. What if our right to speak our mind and to critique our government was removed? But the government will then explain that they would still allow us to speak our mind and even critique them. How would you feel about speaking then? My point is, it is a different thing to have a concrete right, than just being tolerated so long as they are comfortable with how you stretch their tolerance.

            The amendments that were made which removed limitations on the amount of import would be open to circumvention because of its vagueness. There will always be people who would bend the rules in their favor if there is no clear-cut right which is expressly mandated. That is the trouble this amendment has provided us. A law cannot be vague because it would be open to misuse, abuse and misinterpretation. Others would just manipulate it in their favor if it would not serve them purpose. Whereas before, when there was an express right, they would be hard pressed to circumvent the same.  

Personal purpose.

            The second explanation on the FAQ states that the reproduction of copyrighted material for personal purposes is not punishable by the law and its subsequent amendment. They even made an example regarding a CD just to illustrate the obvious. If this is how they answered the second question, then why did the lawmakers felt the need to amend Section 212 of RA 8293[iii]?

            Section 212 of RA 8293 specifically answers the second question. It was one of the enumerated limitations wherein copyrighted materials may be used for personal purposes. There would have been no use for putting it in the frequently asked questions if they had not removed those enumerations there in the first place. Now that Sec. 21 of RA 10372 have removed those enumerations, they felt the need to reiterate that they are not, in effect, amending what they amended? It is so confusing if you would think of it rationally, but think of it skeptically then it might begin to make sense.

            In the original law (RA 8293), it would be implied that it was indeed the economical rights which was being delved upon by the law, by removing those distinctions, the explanations to the amendment (RA 10372) felt the need to distinguish that what was being delved upon was the economical rights, which they wouldn’t even have to distinguish had they not amended section 212 of the original law. What is the purpose of confusing the public? Why remove a provision then later use that same provision you remove as an explanation of your amendment? 

            Its funny how Malacanang would put in their explanation the phrase “personal purpose”. In Raissa Robles online article entitled “Congress erased every Filipino’s right to bring home music, movies and books from abroad[iv]”, she did an experiment, out of curiosity, by typing the phrase “personal purpose” both in RA 8293 and RA 10372. The phrase was repeated three times in RA 8293 but was non-existent in RA 10372. That was why I found it funny that Malacanang would use that very same phrase to explain their amendment. Irony is wasted on the stupid.

Possession of infringing materials.

            The only issue I have with the third explanation of Malacanang is when an event wherein someone in possession of an infringing material was reported by a copyright owner, thereupon acted by the IPO through their visitorial power (more on than when I delve upon the sixth explanation later in this piece), but in actuality had no knowledge that the material in his possession is infringing, what then? Malacanang stated in their explanation that there would only be violation of the law if it could be proved that the one in possession had knowledge of the infringement. What if the same could not be proved? But the one in possession had already suffered damage on his reputation, not to mention his constitutional right was violated as well. What then?

Jailbreaking. Not a crime, but an aggravating circumstance?

            Do we even have to point out the obvious here? If that is not the most inaccurate statement of all time, I don’t know what is. What would be the point of jailbreaking then? Just for the heck of losing your warranty with the company you bought your gadget from?

            As far as I know, if I bought a shirt or a book, I can do whatever I want with it. I can read the book or I can wear the shirt, but I could also just throw them in the garbage or even eat them if I wanted to. The point is, after having bought the same, it is up to me how I would use it. The same principle should apply to our tablets or phones. After paying for it, we could do what we want with it. I could use it for the wireless access to the internet it offers or I could also use it to decorate my walls. I have even seen a show on YouTube where they put gadgets on their blender and ask the audience, “WILL IT BLEND?” [v] The point is, once it is bought, it becomes your property. You have the right to use it as well as to destroy it. In cases of tablets and phones, once we buy one, we have the right to use its features, or to jailbreak it.

            Jailbreaking must not only be legal, but it must also be your right. There is no gray area here. The amendments made sure to mention so, only they made it useless for one to exercise this right. Is there any law-abiding citizen who would jailbreak or root their gadgets if they knew it would only become an aggravating circumstance once they use the features of a jailbroken or rooted phone or gadget?

            It seems as if they are compromising our right by limiting how we could exercise it. In my previous analogy, suppose it is lawful to speak your mind and critique the government, but if you say something they don’t want, they could still aggrevate your crime because you spoke your mind. Making something legal seem illegal, it’s more fun in the Philippines, indeed.

            It is the same as to threaten the public not to jailbreak or root your belongings. It is not illegal but do not do it just the same because it will bite you in the ass. Why not just make jailbreaking or rooting illegal, you might ask? Well, THAT would be illegal. But the amendments, along with their explanation in the FAQs made it seem legal-with-strings-attached, for anyone stupid enough to jailbreak or root their gadgets, thinking it is not punishable, would of course use a feature of jailbroken and rooted gadgets and become liable to a greater extent.

Unequal protection of the law.

            The explanation of Malacanang regarding the liability of mall owners is a mirror on how the elite are given better protection versus those beneath them. Wouldn’t it be better and effective if the mall owners would be liable vicariously along with their tenants? So that the mall owners would be extra vigilant to be able to be free from any liability that may arise from his tenants.

            The law requires that the owner should have a proven knowledge of the infringement going about his tenants, knowledge which could easily be denied. The very thing to prove the mall owners liability is the easiest to deny and the hardest to prove. That is unequal protection of the law if I ever saw one. The mall owners obviously have the ability to control the activities of the infringing person because the tenant answers to his landlord. If we are really want to pursue the law to its letter then shouldn’t there be no need for the mall owner to benefit from the infringement to be held liable vicariously?

            This way, the mall owners would be more careful in choosing their tenants, and regularly check their tenants if they are abiding by the anti-infringement measures set up by the government. So that it would be their responsibility to know everything which goes on in their establishment and not to feign ignorance when push comes to shove and a tenant was caught in violation of the law.

            What this actually did is to give a way for mall owners to escape liability. I could already picture it in my head. With this explanation by the Malacanang, I doubt there would be any mall owners who would be prosecuted under this law, for they are not automatically liable. They have a way-out, a wiggle room which, for mall owners and their big pockets, is enough to tilt the law in their favor.

The legality of IPO’s visitorial power.

            In the FAQ conveniently provided by Malacanang, they managed to respect and disrespect the constitution in just one answer to a query. It was stated that if the IPO intends to perform a search and seizure, they must comply with constitutional requirements, such as having a search warrant, unless they are accompanied by the Bureau of Customs or the Optical Media Board. The right of BoC and the OMB is founded upon laws which are inferior to our Constitution, the supreme law of the land. Did our constitution not protect us from unreasonable searches and seizures if it emanates from the BoC and the OMB? So it means that the constitution would bow down to Republic Act No. 1937 and 9239? This amendments is a violates the rights of the citizens against unreasonable searches and seizures.

            Why would Malacanang answer in a way that is a “must” but then again, gives exceptions? How could there be compliance to a constitutional requirement if there is an exception for the same compliance to be optional? This explanation is not only inaccurate but also vague and dangerous. It could easily be used to circumvent any unreasonable searches into rightful searches so long as authorities from BoC and OMB are present.

            In effect, it would be very easy for the IPO to just have persons authorized by either the BoC or the OMB to be relegated to their office so that they could skip altogether the hassles of securing a lawful search warrant. So that whenever they would want to conduct searches, they could just have the representative of BoC and OMB to accompany them anytime they wish to. So how can the explanation of Malacanang serve to accurately say that it is legal for the IPO to visit businesses to conduct searches when they have laid out the pathway for the IPO to circumvent the constitution by virtue of the amendments?

            This is clearly a violation of the due process clause of our constitution. This provision could be used to harass individuals who are suspected of violating the copyright of other individuals but in reality are using the copyrighted material under the fair use clause. In a situation where only a report from any individual is needed, the IPO, without a search warrant, as long as accompanied by a representative from the BoC or the OMB, may enter the premises of the suspect, then afterwards if it would turn out that he was not in violation, wouldn’t the damage incurred by the supposed violator already be sufficient for the one who complained in the first place? It is very much possible that there would be individuals who would use this loophole just to harass others.

            In an interview by Raissa Robles with Atty. Victoria Avena[vi], a criminal law professor, it was pointed out that copyright owners have better rights than the victims of heinous crimes. This, to me, is unforgivable. Since copyright need not be registered and it is present upon creation, it is not logical for it to have greater protection than the victims of heinous crimes.

            What about the provision in our constitution that guarantees our right to be secure in our persons, house papers and effects? Since the IPO would have the power to enter our homes even without search warrants, would they be able to take our belongings as well? Up to what end is this law willing to compromise our constitutional rights just to protect copyright owners? If they are willing to be that much flexible in protecting copyright owners, wouldn’t it be better if they could do the same for heinous crime victims? There are countless instances wherein suspected criminals would be set free only due to technicalities or reasonable doubt, which is fair, and if we were to forego those technicalities in criminal cases, wouldn’t it make more sense in the side of the victim rather than what is happening in the advent of this amendment to RA 8293? Why did our lawmakers rush this amendment and actually blindside the public when it was actually signed into law, when their efforts could be better used to amend our very-outdated penal code?

            Scared yet? What is even more frightening is that this visitorial power by the IPO is not only limited to copyright but also extends up to trademark, patents and industrial designs[vii]! Presumably, as correctly pointed out by Ms. Robles, even internet cafes, laboratories or clothing stores would be subjected to this newly acquired power by the IPO. The explanation by Malacanang cannot cure their failure to invite these affected sectors to give their reactions on the said amendments. I guess now I know why they weren’t invited in the first place.

            The last sentence of their explanation will also not cure the supposed infirmity of the amendment. As Alma Anonas-Carpio stated in her article “While we were not looking: IP law amendments”[viii], one cannot correct the flaws in a law by tweaking the rules of its implementation. In the same article, Anonas-Carpie quoted Atty. JJ Disini of the University of the Philippines College of law, cautioning that one cannot write something on the IRR that is contrary to the law itself.

            Therefore, whatever infirmity this visitorial powers has caused would not be cured by the IRR. It has overstepped the constitution and would only remain as it is. There would be no safeguards to be spelled out since the amendment itself has destroyed the safeguard that our constitution has guaranteed us. The end would never justify its means if the means would be to compromise our right.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


[i] SEC. 14. Sections 190.1. and 190.2. of Republic Act No. 8293 are deleted in their entirety.

[ii] SEC. 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).

 

SEC. 190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor’s right of action.

[iii] SEC. 21. Section 212 of Republic Act No. 8293 is hereby amended to read as follows:

 

“SEC. 212. Limitations on Rights. – The provisions of Chapter VIII shall apply mutatis mutandis to the rights of performers, producers of sound recordings and broadcasting organizations.”

[vii] Ibid.

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2 Responses to Comment: FAQs on the Amendments to the Intellectual Property Code of the Philippines

  1. mrotoledo says:

    It was nice how you illustrated the ambiguity of possession of infringed materials and connected it with the newly vested visitorial power of the IPO. The illustration you provided in your blog is not mere speculation or pigment of imagination but a scenario that is possible to happen especially with the Dirty Harry tactics that plagues the government as discovered in various cases. This example you have pointed out is just one of the many questions regarding the amendments. The IPO and Philippine lawmakers must do something with these loopholes.

  2. Pingback: Students’ Take: RA 10173 viz a National ID system, and Malacanang’s FAQ on the effects of RA 10372 | Berne Guerrero

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