Wednesday, May 28, 2014

 “WHAT WOULD BE THE PRACTICAL IMPLICATION OF THE AMENDED RA 10372 IN THE PERSPECTIVE OF THE INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES “

            This Amended Republic Act 10372 which was passed and approved by the President into law on February 28, 2013, to which it has deleted some sections of the International Property Code of the Philippines, but it hailed a lot of revisions on the said law to the advantage of the IPL

            The President has signed this bill amending the Intellectual Property Code, this amendment will introduce that there would be no more limits to the entry of the copyrighted products into the country for personal use.

            The deletion of two provisions which is Sec 190 and 191, the said deletion does not mean that the amendment of the said law shall not allow the bringing into our country of the copyrighted products like books, music, recordings, discs, films or movies. The law meant that there shall be no limit to the entry of the following products, provided that such entry of products shall be for our personal use only.

            The amended law now allows religious, charitable and educational institutions to import more and more copies for as long as they are not infringing the copyrighted materials and they are not bought as pirated ones, as long as now more and more students, elementary, high school, colleges, and masterals and even ordinary people, working people, rich and poor ones may use those works.

            The amended law created the Bureau of Copyright and Other Related Rights under the Intellectual Property Office.  This Bureau shall be in charge of policy formulation, rule making, the adjudication, research and development and education.

            The amended law will also mandate the accreditation of collective management organization in which they will be in charge for the protection of the rights and financial benefits of copyright owners.  This amended law shall not therefore allow the non-commercial reproduction of copyrighted materials and works for the benefit of those hearing impaired and those persons having eyesight and reading problems.

            The amended law also made changes in the Intellectual Property Code by giving them the police power to the Intellectual Property Office here in the Philippines.  With these amendments, the government then can therefore use such power against people who does pirating, infringers and there will be a valid campaign against those pirating syndicates and infringements syndicates who shall be criminally liable against reproduction of copyrighted materials.

            The amended law does not criminalize those who are into jail breaking, or the practice of tweaking a communication gadget or cellular phones or circumventing technological measures.  Jail breaking is just an aggravating circumstance that shall increase the penalty for the crime of copyright infringement.
            Under this amended law, what is prohibited is the illegal downloading of copyrighted materials that will violate the copyright law.  Because the Intellectual Property Rights shall always remain to be private rights as to violate such right, the initial procedure shall be that there should always be a complaint from the Intellectual Property Right owner.

            Such Filipinos, like OFW’s. students, and members of the academe, shall fear nothing.  These amended laws are meant to protect the Filipino artist and creators while making such copyrighted materials and works more accessible to more Filipinos.

            Let us now make certain explanation with regards to certain questions that always arises in the course of these amended law.

1.      “Are we still allowed to import books, DVD’s and CD’s from other countries?

The government’s view on this is that, 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 legally purchased, you can bring as many copies you want, subject to Customs regulations.

            This means that all purchases of books, DVD’s and CD’s derived from other countries brought into our country shall not constitute copyright infringement for the reason that it shall be for personal usage, or personal consumption, if the copies are more than 3 then it should be for any religious and charitable purposes.  Other than this reason like for mass production then it shall violate the copyright law.

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

The governments view on this is that, NO.  Infringement on 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, and then you didn’t commit infringement.  But if, for example, you make multiple copies of the CD to sell, then infringement occurs.

This means that if the said reproduction is for any propriety means and other than
for personal use, then the copyright owner may file an infringement in reproduction of the said CD for multiple copies, thus infringement then occurs.  Reproduction should be qualified if its permanent or temporary, no matter what the qualification then, the copyright owner may file a case for illegal reproduction since according to the provision stated above is it is within the copyright owners right to authorize or not to authorize the reproduction of his copyright material in any manner or any form. The exception to the amended law is that, it provides that if the reproduction is not for any propriety purposes or not for any means of profit, it shall be in consideration for the use in the libraries and archives may without any authorization of the copyright owner make limited number of copies of his work.  And if the said reproduction was for the reason is that where the original work, song is lost, destroyed and or rendered not usable.

3.      “Is the possession of, for example, a music file procured through infringing activity a violation of the law? “

The governments view on this is that, Only if it can be proven that the person benefiting from the music file has knowledge of the infringement, and the power and ability to control the person committing the infringement.

Under the amended law, there was no specific provision which expressly prohibits the possession of a music file procured thru infringing activity. Under Sec 22 of the said amended law provides that persons who directly uploaded some music and videos for personal use as always makes the rule in this amendment will not violate any copyright infringement.  If it shall be uploaded and reproduce for several copies and discharge to people for propriety purposes had entailed and violated the rights of the artist therefore the owner of the said song or music shall have the right to file charges to such persons infringing the said reproduction.

4.      “Is Jailbreaking or rooting my phone or device illegal?

The governments view is 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.

Jailbreaking as per what had been discussed in the earlier topic is not illegal as
one of the features of this amended law.  But the governments view is that it is not illegal but the act of downloading pirated material is illegal, but for me this is just infringement too.  Because once our Iphone or Ipad is jailbreak then there shall always be a tendency for us to download and acquire infringed application for no fees at all, this act is illegal and therefore encourages infringement too.

            Stated in Sec 23 of the RA 10372, which provides for penalties if the defendant provided for the circumvention of the effective technology measures, removal, alterations of any electronic rights management information from a copy of a work.

            This provision with regards to the penalty imposed on the circumvention of the effective technology such as the jailbreaking of such gadgets will effectively avoid the violations on the risk of removing the security features of the gadgets in order that people shall refrain from downloading any application for free.

5.      “Are mall owners liable for infringement activities of their tenants?

As per the governments issue on this, the 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. 

This shall be in accordance with the provisions under Sec 22 of RA 10372, which had discussed and enumerated acts that will constitute infringement.  As stated above, the mall owners shall not be liable with regards to the activities of their tenants as long as they have no knowledge at all of their illegal activity but if they are aware of any illegal activity of their tenants, they shall be held liable per se.  They shall be liable automatically if their tenants are caught with the activity of infringement.  If the said activity then was reported to the officials concerned and such officials had informed of the infringement activity o the tenants, then and then, the mall owners shall exercised its rights against the infringement activities of their tenants, and if then the mall owners or lessors therefore fails to stop the infringement activity of their tenants, then there shall be a presumption that the said mall owners knew and had knowledge of the illegal activity of infringement of the said tenant then the mall owner together with their tenant shall be held liable for infringement.  Such activities can be overturned or can be controlled as long as the mall owners have the control with regards to the conditions set forth on their contracts, regarding any activities that are not in contrast to what they had agreed upon for the then the contract shall also include the infringement or any activities stated in Sec 22 of RA 10372 in what ever contract that the mall owner and the tenant shall pursue or agrees upon to constitute a partnership and thus liabilities shall be held liable to either the mall owner, lessor and the tenant.

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

Again as per governments view on this, 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.

As earlier stated, the amended law had created the Bureau of Copyright under the IPO, giving them the police power to the Intellectual Property Office of the Philippines to take charge of any search and seizure in accordance to the compliance of their duty as their campaigns against any violation and complaints receive by them.  They are the ones given the job to ensure the protection of the rights and financial benefits of the copyright owners.  They are given the job to look after the protection of the people’s rights too and their campaign against pirates, infringers and criminal syndicates.
            CONCLUSION

In my own opinion, yes, there are certainly practical application of the
amended law but it remains to be seen that the infringement shall be always be no limit because there are certain provisions of the law on the said amended that are not conducive to us as end users.  Regarding Jailbreaking for example, like me, I bought all my gadgets at a very expensive costs coming all from Singapore and yet I don’t approve such Jailbreaking and Rooting are example so decompilation, the process of removing the vendor imposed limitations on tablets, mobile devices and other electronic gadgets.  Because, like us consumers, we always wanted that all the applications downloaded should have its security features, now, becoming not illegal per se opened itself in the prying eyes of those criminally infested minds of infringers and pirates.  But then, not being illegal as what others had discussed in their bloggs too, this jailbreaking and decompilation may be in violation also of what operating system terms of use and thus as what had been discussed to us by Atty Guerrero, it shall therefore void the warranty of our gadgets.  Imagine the costs of each gadgets, phones, tablets that we acquire then, if it will open its doors to people who just have to settle for free downloadable.  Another thing is that it shall be advantageous to us students because we can acquire more knowledge of the free services that we may now have because we can search anything and watch anything, download anything we want, as long as these shall be for our personal use only.  These will definitely help us students in their research for our concerns in the study of law.  Whatever this amended law has, it shall benefit each and everyone in whatever we do but it shall be practical in the sense that it shall be accessible for us to search for all the important things we need in the net without the fear of infringing the copyright rights of the owners. 











1.  RA 10372 An Act Amending Certain Provisions of RA 8293
2. “FAQ’s on the Amendments to the Intellectual Property Code of the Philippines”
    At:http://www.gov.ph/2014/05/25/faqs-on-the-amendments-to-the-intellectual- -property-code-of –the-phillippines/
  1. Intellectual Property Code Sec 190 (b)
  2. raisa robles / Copyright owners have more rights than heinous crime victims with
Congres IP Code changes
at: 2014/05/26 

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