FAQs: On the Amendment of the Intellectual Property Code of the Philippines

 

 

 

 

                                                                       FAQs

                                    On the Amendment of the Intellectual Property Code

 

 

 

INTRODUCTION                                               

 

 

            Are you familiar with the “logo quiz” game? Few months ago, it has been very popular with the cellular phone users, wherein one needs to guess the name of an establishment by looking at the trademark or the logo.

 

            Are you a copyright owner? Do you know that once you post a blog in the internet, you are already considered as a copyright owner?

 

            The Republic Act 8293 entitled as, “The Intellectual Property Code of the Philippines,” as amended by Republic Act 10372, is an act mandated to establish, prescribe and provide for the powers and functions of the Intellectual Property Office. It also protects other kinds of intellectual property such as copyright, patents and trademark, and such other forms as may be determined by the law, to wit:

 

The Intellectual Property Code splits works that may be copyrighted into 17 classes, listed from A to Q. While all the classes listed are specifically for copyrighted material, trademarks and other forms of intellectual property, depending on what it is, are covered as well. Patents do not have a category.

 

  • A: Literature (books, pamphlets, etc.)
  • B: Periodicals (newspapers, tabloids, magazines, etc.)
  • C: Public speeches and other public speaking works (speeches, lectures, sermons, etc.)
  • D: Letters
  • E: Television or movie scripts, choreography, and entertainment in shows
  • F: Musical works (lyrics, songs, song arrangements, etc.)
  • G: Art products (drawings, paintings. sculptures, etc.)
  • H: Ornamental designs and other forms of applied art (not necessarily industrial designs)
  • I: Geographical, topographical, architectural, and scientific works (maps, charts, plans, etc.)
  • J: Scientific and technical drawings
  • K: Photographs and cinematographic works made in a process similar to photography
  • L: Audio-visual works and cinematographic works made in a process similar to making audio-visual works
  • M: Pictures used in advertising (includes logos)
  • N: Computer programs
  • O: Other works not covered in classes A-N of a literary, scholarly, scientific, or artistic nature
  • P: Sound recordings
  • Q: Broadcasts[i]

 

 

 

MORAL RIGHTS

 

            Moral rights, which can be exercised by any copyright holders (individuals, corporations, etc.), are enshrined in Chapter 10 of the Intellectual Property Code. However, Section 193 of the code (which is also in Chapter 10), which also outlines a copyright holder’s moral rights, makes these rights independent of economic rights outlined in Section 177 of the code.

Under Philippine copyright law, moral rights are relatively expansive on the behalf of the copyright holder, which are listed below:

 

  • Attribution
    • The right to be prominently displayed as the creator of the copyrighted material, in any form practical to the work
    • The right to change or even withhold the work from circulation

 

  • Integrity of ownership
    • The right to object to any alteration detrimental to the name of the creator of the material
    • The right to restraining the use of the creator’s name in a work not of his making

 

            Copyright holders are not allowed to be forced to create or publish his or her works already published, as that could be classified as a breach of contract. However, the copyright holder could also be held liable for breach of contract.

 

            The Intellectual Property Code also permits the waiver of moral rights in most cases, but does not allow it if the following situations occur:

 

  • If the creator’s name will be used to damage the reputation of another person
  • If the creator’s name will be used to give credit to something he or she did not make.

 

            Moral rights are automatically waived in collective works unless the copyright holders expressly reserve their moral rights. Also, if no objections have been made during the time a copyright holder waives his or her moral rights or even if moral rights were waived unconditionally, works altered or even destroyed would not constitute as a violation of moral rights.

 

            In the Philippines, the term of moral rights, unless they were waived, is the same as the term of copyright of a literary work (lifetime plus 50 years). Violation of moral rights may also be contested as a violation of the Civil Code. Any damages collected under the Civil Code shall be given to the copyright holder, or if the holder is already dead, be put in a trust account to be given to the copyright holder’s heirs. If the heirs defaulted, the damages go to the government.[ii]

 

 

EFFECT OF ITS AMENDMENT

 

 

            The amendment of Republic Act 8293 raised some frequently asked questions,[iii] which directly answered the same. However, it failed to tackle the extent of the powers and functions of the amended law and leaved vagueness as to its interpretation.

 

            The first part of the amended law, which is the RA 10273, added another Bureau, and proposed an extensive definition of the terms in the Intellectual Property Code, and had given additional terms.

            It suggested articulate requirements on licensing, next to the requirements of assignment of copyright. It gave restrictions as to the economic rights in any work that may be granted the exclusive licensure. Within the extent of the restricted permit, the licensee is permitted to every rights and solutions which the licensor had with respect to the copyright. Hence, the copyright owner has the right to usual accounting from the assignee or the licensee with regard to the assigned or licensed work. The statement of account must be in writing and shall be given the authority at least once in a year indicating such information such as books of accounts, and documents that will copyright owner in the determination of rights.  

            Furthermore, one of the major amendments is the redefinition and extension of copyright infringement. It granted that copyright infringement is done by a person who: 1) “directly commits an infringement; 2) benefits financially from the infringing activity of another person who commits an infringement if the person benefitting has been given notice of the infringing activity and has the right and ability to control the activities of the other person, and; and 3) purposely and with intent to enable induce infringement by another person, and materially contributes to it.”[iv] As to damages, it would be doubled and will be awarded if such act is done by violating technological measures or by eradicating or changing any electronic management rights information from the work, sound recording, or a performance, when there are logical reasons to know that it will persuade, allow, assist, or obscure the infringement. Such damages are likewise given when such infringement is committed if it is distributed or broadcasted openly to the public without any authority.

 

 

 

The FAQs

 

 

Question: Am I still allowed to import books, DVDs, and CDs from abroad?

 

Answer: 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 they were legally purchased, you can bring as many copies you want, subject to Customs regulations.

 

My position: For instance, Juan Dela Cruz purchased Black’s Law, a well-known law dictionary abroad, at a bookstore therin. When he came back from the United States, as granted by the amended law, he can legitimately bring the acquired copy of such book into the Philippines, and being open to reproduction, then such may be acquired also by his friends, Mar Santos and Pedro Mendoza, as long as it is for their personal use, or on the other hand,  he can buy so much copies abroad and bring them to the Philippines, and sell them to different persons. Since it is granted by law that one can acquire as many copies as he wants, as long as it legally purchased, one can easily escape liablity as to infrigement cause one can easily defend that it was not imported illegally and such material is not unlawfully infringed. It failed to provide the limitation of such authority as to the purchase and its authority to the importation.  

 

Question: Is the reproduction of copyrighted material for personal purposes punishable by this law?

 

Answer: No. Infringement in 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, then you didn’t commit infringement. But if, for example, you make multiple copies of the CD to sell, then infringement occurs.

 

My position: This is favorable to persons who has personal purposes such as the downloading of the copyrighted materials, especially now that tablets have been very useful to people for their perosnal businesses. You can easily download music and videos, or even ebooks. However, some may use this as a money-making device. When you go the Greenhills Mall, for only Php300, you can have different musics, ebooks, applications and videos, that can be installed in your tablet. I consider this as money-making scheme, and with such violation, how come that the government do not resolve the same? For instance, Juan Dela Cruz does not want to spend so much time to download the musics he wanted to have in his playlist, he could therefore go straight to Greenhills Mall and pay certain Patrick Celso for the installation of the same in his ipad. Again, the law failed to discuss its limitation and provide the parameters on what is legal and what is not legal.

 

Question: Is the possession of, for example, a music file procured through an infringing activity a violation of this law?

 

Answer: Only if it can be proven that the person benefitting from the music file has knowledge of the infringement, and the power and ability to control the person committing the infringement.

 

My position: How do we prove such knowledge? Did the government provided such measures, while it is obvious that we have rampant illegal downloaders and uploaders of copyrighted materials? Yes, the government provided a law with regard to the infringing activity or such violation, but how do they spend time for the strict implementation of the same? For instance, the pirated DVDs along Quiapo, yes, they are giving efforts to resolve the same, but in reality, such efforts are not enough. They should provide measure and parameters for this.

 

 

Question: Is jailbreaking or rooting[*] my phone or device illegal?

 

Answer: 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.

 

My position: Again, what are the penalties? How do they know that Juan Dela Cruz had downloaded a pirated material? It, again, failed to provide for such restrictions. And take note,  jailbreaking now is simple as ABC. Is the government ready to accommodate the violators of the same?

 

Question:Are mall owners liable for infringement activities of their tenants?

 

Answer: 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 benefitted from the infringement.

 

My position: Again, the parameters. How will the government acquire such knowledge that the mall owners are aware of such infrigement activity?

 

Question: Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints?

 

 

Answer: 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—two agencies that can perform a search and seizure on their own right without a warrant (per Republic Act No. 1937 and 9239, respectively).

 

My position: This is vague. Different interpretations may arise, and the right of a person to be left alone may be violated.

 

 

 

CONCLUSION

 

 

            The lawmakers should have considered the consequences of the amendment of the Intellectual Property Code, it should likewise have provided the parameters and other restrictions as to the application of the amended law. It must have provided a crystal clear discussion, leaving no doubt as to its interpretation because one can easily commit such violation defending himself of different interpretation to the same.  

 

 

 

 

 

           

 

             

           

             

           

           

 

           

 

 

 

 

 

 

 

 

 

 

 

 


[i]Classes, Copyright Law in the Philippines : http://en.wikipedia.org/wiki/Copyright_law_of_the_Philippines

 

[ii]Moral Rights, Copyright Law in the Philippines: : http://en.wikipedia.org/wiki/Copyright_law_of_the_Philippines

 

 

[iii] FAQs on the amendments to the Intellectual Property Code of the Philippines

 

Am I still allowed to import books, DVDs, and CDs from abroad?

                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 they were legally purchased, you can bring as many copies you want, subject to Customs regulations.

 

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

                No. Infringement in 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, then you didn’t commit infringement. But if, for example, you make multiple copies of the CD to sell, then infringement occurs.

 

Is the possession of, for example, a music file procured through an infringing activity a violation of this law?

                Only if it can be proven that the person benefitting from the music file has knowledge of the infringement, and the power and ability to control the person committing the infringement.

 

Is jailbreaking or rootingmy phone or device illegal?

                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.

 

Are mall owners liable for infringement activities of their tenants?

                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 benefitted from the infringement.

 

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

                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—two agencies that can perform a search and seizure on their own right without a warrant (per Republic Act No. 1937 and 9239, respectively).

The procedure and safeguards for this are to be spelled out in the Implementing Rules and Regulations.

 

                *Jailbreaking (for iOS) and rooting (for Android) are examples of decompilation, the process of removing the vendor-imposed limitations of tablets, mobile devices and other electronic gadgets. Though not illegal, decompilation may be in violation of your operating system’s terms of use, and therefore may void your warranty.

 

[iv] SEC. 22. Section 216 of Republic Act No. 8293 is hereby amended to read as follows:

 

“SEC. 216. Infringement. – A person infringes a right protected under this Act when one:

“(a) Directly commits an infringement;

“(b) Benefits from the infringing activity of another person who commits an infringement if the person benefiting has been given notice of the infringing activity and has the right and ability to control the activities of the other person;

“(c) With knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.

 

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