INTRODUCTION
RA 8293, otherwise known as the
Intellectual Property Code took effect on January 1, 1998. [i]
Subsequently on February 28, 2013, President Aquino signed into law RA 10372,
which amended certain provisions of RA 8293. This amendment had caught the
attention of netizens, lawyers, writers, and even professors recognized as
experts in their intellectual property field. Some were disappointed with the
decision of the president in signing these amendments into a law. Some even
asked for the repeal of the law due to unconstitutional issue. Some said the
amendments were problematic and confusing.
“Netizens
and lawyers on Wednesday said they were disappointed with President Benigno
Aquino III for signing the “problematic” amendments to the Intellectual
Property Code into law, leaving such issues as the expanded powers of the IP
office unanswered.”[ii]
Democracy.Net.PH said, “It is regrettable enough that the
President has signed into law the IP Code amendments, whose flaws have been
pointed out by leading legal experts. It is even more regrettable that the
President approved the law without any public indication that the arguments
against the bill had been duly considered.” [iii]
Professor Disini, a UP College of
Law professor said that the amendments introduced by RA 10372 violated some provisions
of the Constitution.
“Disini
said that a number of the amendments violate the due process clause, the right
of citizens against unreasonable searches and seizures, and the equal
protection clause as guaranteed by the constitution.”[iv]
The practical implication of the
amendment to the IPL Code will be later discussed in this page. Amendments were
actually introduced by RA 9150, RA 9502 and RA 10372. However, this page will
focus on the amendments made by RA 10372. But before that, let as try to know
the meaning of Intellectual Property.
The Intellectual Property (IP) refers to any creation or product of the human mind or
intellect. It can be an invention, an original design, a practical application
of a good idea, a mark of ownership such as trademark, literary and artistic
works, among other things.[v]
Why
is Intellectual Property so important? One reason is that intellectual property
contributes enormously to our country’s economy. Small or big industries need
it for the protection of their rights. Their ideas and works which are the
source of their wealth and income are protected and they would greatly benefit
from it.
Another
reason is that artists become fully compensated for their artistic or literary
works. They would be encouraged to do more and to share more their talents,
ideas and other artistic works. These works would surely contribute positively
to the country’s economy.
On
the other hand, consumers or buyers are guaranteed that they purchase the
genuine products and not paying for imitations or fake items. No one can
imitate the trade name or trademark of another otherwise he would be held
liable for infringement. Thus buyers are secured and safe in their
transactions.
Another
question that should be dealt with is this: How to protect Intellectual
Property? For an individual or industries- whether big or small- should learn
how to keep their ideas or innovations a secret until they have filed a patent
application. The artists, inventors and creators should remain vigilant against
illegal selling, reproduction, copying, and distribution of items to protect
their intellectual property.
The
Philippine Government values the importance of intellectual property that’s why
it had made several laws on intellectual property. Some of which is the
Intellectual Property Code which was made effective on January 1, 1998. An
amendment was made thereafter, the RA 10372 and was signed into law on February
28, 2013. Other amendments on RA 8293 was also made by other laws.
Furthermore,
the Philippine Government also entered into treaties and other international
agreements for the protection of rights and interest of every Filipino citizen.
But
is amendment of RA 8293 really necessary? The answer to this question will be
read in the Conclusion part. Let me first discuss more about this law and some
of its amendments.
I
learned in my Intellectual Property Law (IPL) class that the IP Code consists
of four (4) parts:
(1)
The
Intellectual Property Office
(2)
The
Law on Patents
(3)
The
Law on Trademarks, Servicemarks and Trade Names
(4)
The
Law on Copyright
When my professor
discussed the amendatory law, RA 10372, I noticed that amendments were made in
part 1 (The Intellectual Property Office) and part 4 (The Law on Copyright).
However, most of the amendments were made in part 4 (The Law on Copyright). Let
us examine the changes introduced by this law.
AMENDMENTS
INTRODUCED BY RA 10372
Importation
First, the law on
importation in Section 190 of RA 8293 was amended by Sections 14 and 15 of RA
10372. The provisions of sections 190.1 and 190.2 were deleted and retained
section 190.3. Sections 190.1 and 190.3 allow the importation of copyrighted
material but with certain allowances. An individual may import one or even
three copies depending on the circumstances.
When the Congress
deleted these allowances, one could no longer bring more than one material to
the Philippines. Thus, the rule is: only one. Reading from the lines of the
amendatory law, the Bureau of Customs no longer has the right to allow
importation of more than one material. This is because the Bureau has to abide
by the rules and procedures of the law. To allow importation of more than one
is illegal. It is against the law.
If that would be
the case, information would be very expensive. Knowledge would be very hard to
acquire it. It is very difficult to disseminate information from only one
source. We cannot photocopy, copy or reproduce it. Otherwise, it will be an
infringement case. Foreign authors should be the one to sell their work
directly to the Philippines and thus, the expensive cost to pay.
Definition
of Reproduction
Second, the
definition of reproduction under section 171.9, RA 8293 was amended by Section
5, RA 10372. The words ‘temporary or
permanent’ was added in the definition[vi]
which makes the law so tight and strict. This may also provide some problem
since there is no distinction between ‘permanent’ or ‘temporary’.
Term
of Moral Right
Third, the term of
moral right was also revised. Under RA 8293, the rights of an author shall last
during his lifetime and for fifty (50) years after his death. [vii]
Under the new law, such right shall now last during the lifetime of the author
and in perpetuity after his death. [viii]
The term is now indefinite.
To explain further,
the previous law implies that once a material becomes a public domain, there is
no more moral right to speak of One’s name can be written therein and pretend
to be the author. However, the new law does not allow so. Today, even the material
becomes a public domain, the name of the author is still necessary to be
written therein.
Powers
of the Intellectual Property Office
Another amendment introduced by
RA 10372 was the new powers of the Intellectual Property Office (IPO). This
amendment was not under part 4 (The Law on Copyright) but under part 1 (The
Intellectual Property Office) of the Intellectual Property Code. Section 2 (7D)
of RA 10372 gave the power to the IPO 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 office.[ix] I
am disturbed by this amendment. This practice is proscribed in our
Constitution.
This violates the due process
clause and the unreasonable searches and seizures guaranteed by our
Constitution. As a rule, before authorities can enter a private place or search
papers and effects therein, they must first show a valid search warrant. Warrants,
at all times, must first be secured before any search, visit or investigation
may be conducted. Otherwise, it is considered illegal. This is a rule in
accordance with the rights and procedure guaranteed by the constitution.
The amendatory law seems not to
have observed this right. Instead, the law gives the IPO Director General or
Deputies Director General to seize the papers and effects of establishments and
businesses engaging in activities violating the intellectual property rights
even without a search warrant. This is clearly a violation of the constitution.
To quote the statement of
Attorney Disini in a blog, he said:
“If you
are a victim of copyright infringement, under the new law you can ask a
government agency (the IPO) to enter a privately owned space in order to
search, to look around.
Let’s
take another situation – let’s take the case of rape or murder. Let’s say
you’re related to someone who was murdered. You know that certain evidence
about the suspected murderer is located in a particular place. As a victim’s
relative, you cannot just go to the place and enter. You need a warrant.
Why
is it that Congress will give the victim of intellectual property rights
violations more rights than the victim of heinous crimes? What about securing
evidence against suspected terrorists? They need to get warrants.
But
for suspected copyright infringements, authorities are allowed ”visits” which
invade the privacy of alleged infringers. Are these crimes so terrible that we
are willing to set aside constitutional principles? I think there’s a disconnect
there.”[x]
“Disini is one of the legal
experts who personally sent a memorandum to Malacañang due to the public outcry
following the exposure of the law’s problematic provisions as laid down by
blogger-journalist Raissa Robles.”[xi]
Fair
Use
There was also a change in the
concept of Fair Use. RA 8293 states that fair use of a copyrighted work for
criticism, comment, news reporting, teaching including multiple copies for
classroom use, scholarship, research, and similar purposes is not an
infringement of copyright. Decompilation, the reproduction of the code and
translation of the forms of the computer program to achieve the
inter-operability of an independently created computer program with other
programs may also constitute fair use. [xii]
Under the new law, the word
decompilation has a longer definition thus: “Decompilation, which is understood
here to be the reproduction of the code and translation of the forms of a
computer program to achieve the interoperability of an independently created
computer program with other programs may also constitute fair use under the
criteria established by this section, to the extent that such decompilation is
done for the purpose of obtaining the information necessary to achieve such
interoperability.”[xiii]
The amendatory law can also be
viewed positively in some ways. Additional rights are granted to some group of
individuals. Such amendments were made to cope up with the changes brought
about by the modern times. Technological
products or inventions are introduced in this modern times and it is just and
fair enough that some technological words or changes be also inserted and
observed in our law.
“The
IP Code is put in place to protect the creative minds of the Filipinos who have
endless innovative works. Further, amending the IP Code is a significant stride
in the government’s fight against piracy. The IP Code does not only protect the
outputs of the creators, but also safeguards the general public from pirated
merchandise, which may be cheaper but may have harmful effects.”[xiv]
Scope
of Performer’s Rights
Section 18 of RA 10372 also
amended section 203 of RA 8293 with respect to the scope of performer’s rights,
giving such performer’s right a wider scope. It now includes right as to
audio-visual works and fixation as additional to those already provided in the
previous law.
Rights
of Producers of Sound Recordings
Section 20 of RA 10372 also
provided additional right to producers of sound recordings aside from those
already mentioned under Section 208 of RA 8792. The scope of section 208.4[xv]
was an additional right conferred to such producers.
Infringement
Section 216 of RA 8293 was also
amended by section 22 of Ra 10372. In the amendatory law, it provides the
definition of infringement. This provision is really necessary because it had
provided several acts which constitute infringement.
This would clearly define the act
of infringement. There would be no more confusion as to what the word
infringement really mean is. Before in the previous law, it had only provided
for certain liabilities of an infringer but without definition or enumeration
of acts which would constitute infringement.
Criminal
Penalties
Amendments were also made on
Section 217 of RA 8293 on criminal penalties. Maximum penalty shall be imposed
when a certain act is committed by the three instances. [xvi]
CONCLUSION
Is amendment of RA 8293 really necessary?
I don’t think so.
There is a need to harmonize
intellectual property to the changing world due to technological advancement.
But it seems that RA 10372 is too confusing and does not necessary solve the
issues on this becoming technological advanced country.
Some people demand for the repeal
of the law. There are various critics and opposition by renowned intellectual
property educators. These should not be set aside. It must be taken into
consideration.
I am not saying that RA 8293 is
perfect but is better than RA 10372. The previous law is not confusing and it
does not violate constitutional right.
I know that the new law only aims
for the good and benefit of every citizen. In fact it was enacted to meet the needs
of the changing society due to the introduction of modern technology. However,
there are some loopholes and we cannot just hide it. It’s for real. The
lawmakers should all take these comments, critics, and suggestions into
account.
[i] Section 241,
Intellectual Property Code
[ii] Tuazon, JM;
“NEW LAW UNDER FIRE | Critics slam ‘problematic’ IP code amendments”; http://www.interaksyon.com/infotech/new-law-under-fire-critics-slam-problematic-ip-code-amendments; last
retrieved: May 22, 2014
[iii] “Democracy.Net.PH
Statement on the Signing of President Benigno S. Aquino III of RA 10372
(Amendments to IP Code)”;
http://democracy.net.ph/democracy-net-ph-statement-on-the-signing-of-president-benigno-s-aquino-iii-of-ra-10372-amendments-to-ip-code/;
last retrieved: May 22, 2014
[iv]
http://www.interaksyon.com/infotech/new-law-under-fire-critics-slam-problematic-ip-code-amendments
[v]About
Intellectual Property, http://www.ipophil.gov.ph/index.php/ip-knowledge/about-intellectual-property; last
retrieved: May 22, 2014
[vi] Section 5, RA
10372
[vii] Section 198, RA
8293
[viii] Section 17, RA
10372
[ix] Section 2, RA
10372
[x] Robles, Raissa;
“Copyright owners have more rights than heinous crime victims with Congress’ IP
Code changes – lawyers say”, http://raissarobles.com/2013/03/06/copyright-owners-have-more-rights-than-heinous-crime-victims-with-congress-ip-code-changes-lawyers-say/; last
retrieved: May 22, 2014
[xi] Tuazon,
JM; “NEW LAW UNDER FIRE | Critics slam ‘problematic’ IP code amendments”;
http://www.interaksyon.com/infotech/new-law-under-fire-critics-slam-problematic-ip-code-amendments;
last retrieved: May 22, 2014
[xii] Section 185.1,
RA 8293
[xiii] Section 12, RA
10372
[xiv] “RA 8293: Protecting the Intellectual
Property in the Philippines”; http://ap.fftc.agnet.org/ap_db.php?id=94;
last Retrieved, March 26, 2014
[xv] Section 208.4
provides:
"SEC.
208. Scope of Right. – x x x
"208.4.
the right to authorize the making available to the public of their sound
recordings in such a way that members of the public may access the sound
recording from a place and at a time individually chosen or selected by them,
as well as other transmissions of a sound recording with like effect."
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