“WHAT WOULD BE THE
PRACTICAL IMPLICATION OF THE AMENDMENT TO THE IPL CODE ESPECIALLY IN THE PERSPECTIVE OF THE AMENDMENTS IN RA 10372"
Chapter
I Introduction
Chapter
II the Evolution of Intellectual Property Law
Chapter
III Practical Implication of the amendment to the IPL (RA 8293 and RA 10372)
Chapter
IV Conclusion
Chapter
I
Introduction
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The
1987 constitution recognizes the vitality of art creations, innovations including
technology transfer created by our gifted fellowmen. The provision relating
these matters was expressly stated under Article 14 Section 14[i]. Such
artistic creations mentioned by the former evolved and protected under one
major law and that is Intellectual Property Law. IPL was divided into four
categories and they are: (1) the general provisions relating to intellectual
property office (2) the law on trade mark, trade names and service marks (3)
the law on patents (4) the law on copyright.
Most
of the provisions in the intellectual property law were based in the United
States. The Philippines is also a signatory in several treaties such as berne
convention, wipo treaty, paris convention, Budapest treaty, TRIPS agreement and
etc.
This
law is intended to give ample protection to inventors, creators, authors and
the like to their creations; and this protection is a “right” given to them in
which case, it is inherent to property right that was being recognized by the
civil code. However, it is only inherent up to the extent that it is similar in
nature. The terminologies are different, but it is quite likely similar as far
as the right is concern. The property rights given by the civil code to its
owners are the following: (1) the right to possess (2) the right to use (3) the
right to dispose (4) the right to exclude. On the other hand, the IPL gives the
following rights (1) Patent rights – the right to file infringement (2)
Trademark, Tradenames, Service Marks rights – the right to file infringement
(3) Copyright – Economic rights, Moral rights, rights to proceeds and
subsequent transfers, the right to file infringement.
The
rights granted under the IPL lasted for a certain period of time. After the
expiration of the period, the creation will now belong to the public domain. In
which case, it will innovate future artistic creations. In return, the
Philippine economy will rapidly grow which will benefit our business
environment both local and foreign investors; if that happens, “it will
encourage and increase licensing opportunities in the local market” as Francis
Lim of Philippine daily inquirer claimed.[ii]
The
role of the Intellectual property law in the government is being used as a tool
to develop artistic creation in our nation in favor to our fellowmen creators,
inventors and authors. Toward this end, our country is still developing and
still considering certain mechanisms that will provide strong protection in
intellectual property rights.
Chapter
II
The
Evolution of Intellectual property law
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Several laws have been enacted already since 1947. On
1997, Republic Act 8293 was signed into law. This act was known as
“intellectual property code of the Philippines” the said law as I mentioned
before was divided into several parts. The Law on Patents, Copyright and
Trademark. This law was currently being used up to present. However, despite of
enactment of the law, the problem remains in the consistency of effective
protection of intellectual property rights. And the effect of this problem
arose out to a controversy which makes the Philippines included in the US IP
Watch list.
Pursuant
to Section 182 of the Trade Act of 1974, as amended under Special 301 provisions,
USTR must identify those countries that deny adequate and effective protection
for IPR or deny fair and equitable market access for persons that rely on
intellectual property protection. Countries that have the most onerous or
egregious acts, policies, or practices and whose acts, policies, or practices
have the greatest adverse impact (actual or potential) on the relevant U.S.
products must be designated as “Priority Foreign Countries.” [iii]
It
has two dominant non-statutory categories. One of which was “Priority foreign
country” and the other is “Priority watch list”. Countries included on priority
foreign countries said to have an inadequate intellectual property laws. On the
other hand, countries included on priority watch list said to have serious intellectual
property right deficiencies. Unfortunately, Philippines were one of the countries
included in the priority watch list of IP 301 report. According to Maricel
Estavillo who holds an LL.M degree in Intellectual property, said that the
“Philippines was first listed in 1989 and from 1994 to 2013, it remained on the
list.”[iv]
In 2013, Philippines were listed under Ordinary watch list.
After
20 years, Philippines were removed in the so-called “US IP Watch list”. It was
announced on the online website of the Office of the US Trade Representative on
April 28, 2014. Our country was removed because the US government finds
improvement in our Intellectual Property rights protection. “The Philippines’ removal from the watch list is recognition
of the Aquino government’s continuing commitment to uphold the rights of the
professionals and consumers – ensuring that their hard work is recognized and
protected by legislation”, said Philippine presidential spokesperon Edwin
Lacierda.[v]
On
2013, Republic Act 10372 was signed into law. The said law amended some
provisions of RA 8293. According to Atty. Santiago, a former deputy director
general of IPO said that the legislative intent of RA 10372 is to improve and
recognized the enforcement of copyright protection of modern technologies.
Especially those involved in the internet or what we called cyberspace.
Despite
the enactment of the recent law, many still oppose the amendments of the
provisions. According to them, it violates due process clause and the right
against unreasonable searches and seizures and lastly, the equal protection
clause as provided in our 1987 constitution. On the contrary, it cannot be
denied that these issues have not yet pass in the lime light. All the public
knows is that the Philippines has been removed in the US IP watch list. But
sadly to say, only few of us knew what the law is all about. IPL is a very
technical law, in which the provisions itself cannot be determined in lieu of
lay mans term. The next chapter would tackle the grey areas that are still encroaching
in the Intellectual property law.
Chapter III
Practical Implication of the
amendment to the IPL (RA 8293 and RA 10372 )
It was mentioned before in the
preceding chapter, despite of enactment of RA 8293, the problem remains in the
consistency of effective protection of intellectual property rights. And the
effect of this problem arose out to a controversy which makes the Philippines
included in the US IP Watch list.
This law has been amended by RA
10372 but only for some matters no longer relevant in copyright and added
protection in technology aspect. Now, for a better improvement of this law, we
will tackle the grey areas and suggestions that we may add in our Intellectual
property law.
a)
I have not seen any provision in
the IPL both old version of the law and its amendments providing onerous
restrictions affecting contracts in licensing software or other things
involving technology. The author of this article does not claimed to be an
IT expert. But based on the research that have conducted. Some people who works
in the IT industry demands that this kind of idea be included in one of the
protections in the IP law.
b)
Second thing is about fair use
of copyrighted work and its negative impact on education field. This is one
of the most controversial provisions in the IP law. However, the Intellectual
property office has already resolved this matter, when they issued Implementing
rules and regulations or “IRR” for brevity. The law provides the following:
"SEC. 185. Fair Use of a Copyrighted Work. – 185.1. the fair use of a
copyrighted work for criticism, comment, news reporting, teaching including limited
multiple number of copies for classroom use, scholarship,
research, and similar purposes is not an infringement of copyright.
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.[vi]
Xxx xxx xxxx
The red mark shows
the new insertions that have been made under RA 10372. On the other hand, the
red mark with a strike line is the deleted phrase under the old law.
Although the deletion
of the word “multiple” under the old
law may be seem valid, however, the insertion of the word “limited” by the new amendment still does not satisfy the needs of
protection under the Copyright law. A lot of people oppose this new provision
since; it does not liberally construed in favor of Filipino citizens from the
education sector, especially Students here in the Philippines, regardless of
their educational attainment.
Under the 1987
constitution of the Philippines, it states there that the state shall give
priority to education [vii]
as a general rule the supreme law prevails over any other law such as IP Law.
In reality, considering that we are now in the modern era, students can read
and get a book over E-book’s, or hard bound copies depending on their own
prerogative. However, majority of the students especially for those who cannot
afford one, still opt to read in hard copy or hard bound format. Most of them
photocopy a series of books in one semester, in order for them to cope in their
studies. Sadly to say, under the new amendment, these scenarios might lead to
multiplicity of infringement case, if the provision stated “limited number of
copies” the phrase is still vague. How would these students assure whether the
original copies that they photocopied would still in the concept of “limited
copies”? the intellectual property
office have already clarified this matters, and they said that this matters
pertaining to this issue will clarified when they finalized the IRR to give the
true meaning of the word “limited” under section 185.
However, It would be
better, if our legislators removed the qualifying phrase of the word “multiple”
or “limited”. The construction of these words
makes the entire provision ambiguous. They did not consider some realistic
factors in the real world. It cannot be denied, that our IP law gives ample
protection to its authors, creators and the like. Books, is one the things that
is listed under the copyright protection. However, on the contrary, once the
author published it, with the intention to sell and distribute it in the public
at large, the ownership will turn over in the public domain. The consumer who
purchased the book has the right to dispose, destroy, possess and let this book
be photocopy in favor of another person. Provided, no entity or juridical
person shall be consider as consumer regarding this matter. Provided further,
that the reproduction of these books shall be for educational or research
purposes only.
c)
Third thing, is to provide clear
provision addressing jail breaking. In the Philippines especially in the IT
industry, majority of the store owners in the mall provides jail breaking
services. Some people has been concerned lately in the amendment provision of
IP law since they might be subject to offenses in relation to performing
services such as jail breaking.
I remember during my Intellectual property class last semester, we
tackled about jail breaking. During that time, RA 10372 is already signed into
law. My professor asked us whether jail breaking constitutes infringement of
copyright? One of my classmate voluntarily raised her hand and answered that “no, jail breaking does not constitute as
infringement since the Philippines is a signatory of WIPO treaty. Which
provides mechanisms to address technology copyright protection, jail breaking
in another countries are legal” unfortunately, our professor does not clarify the answer regarding this matter,
she told us that this issue is still debatable.
On the contrary, based on my research, The IP office clarified the
following statement. " Is jailbreaking or rooting
my 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.[viii]
Even though, the IPO office clarified this
matter, it would still be highly advisable to put or insert additional
provision in our IP law. To avoid any confusion or misunderstood that jail
breaking is an infringement act, especially in the best interest of IT sectors.
Provided, that in case our legislators came up with this idea, the provision
shall be in lay man terms referring jail breaking services.
The statement of the IPO office supports the conclusion of the law
which provides the following: 216.1. Remedies
for Infringement. – Any
person infringing a right protected under this law shall be liable:"x x
x"(b) To pay to the copyright proprietor or his assigns or heirs such
actual damages, including legal costs and other expenses, as he may have incurred
due to the infringement as well as the profits the infringer may have made due
to such infringement, and in proving profits the plaintiff shall be required to
prove sales only and the defendant shall be required to prove every element of
cost which he claims, or, in lieu of actual damages and profits, such damages
which to the court shall appear to be just and shall not be regarded as
penalty: Provided, That the
amount of damages to be awarded shall be doubled against any person who:
"(i)
Circumvents effective technological measures; or
d)
Fourth,
providing adequate protection for software programs. The IP law here in
the Philippines, lacked of giving protection to software programs created by
our fellowmen. I am not certainly sure whether software programs technically
included as one of the exclusions of protection under the law. However, despite
its non- guarantee protection. The government shall consider some factors that
might develop our economy, to further innovate these ideas in the IT industry.
e)
Fifth.
Providing clear provision addressing downloading musics, movies, videos and
the like. we are all aware that unauthorized downloading or downloading
piracies is illegal.
As we remember, the E-commerce law of
the Philippines already punishes piracy acts under section 33. On the other
hand, our IP law also punishes piracies but indirectly.
It cannot be denied, that the IP law only punishes those who are benefits
from the act of infringement or who reproduced the original copy with the
intention to sell it. It is now every impractical now these days to penalize
all these violators. The law makes the people criminalized without due process
of law. Instead, our legislators should instead qualify the law that only
entities, juridical person such as store owners can be held liable for
infringement. Provided, they are unauthorized and directly benefits to the
same. Provided further, they had the intention to sell piracies.
f)
Lastly,
alternative provision regarding importation for personal purposes.
Under the new amendment or RA 10372, sec
190 paragraphs 1 and 2 were deleted. Instead, paragraph 3 of the said section
remained. As we may recall, Philippines was formerly listed in the US IP watch
list. Recently, the US government removed Philippines in the watch list. The rationale
of this event is because of section 190 of our IP law. Our legislators really
intended to delete paragraph 1 and 2 of section 190 in order to persuade the US
government to remove our country in the watch list.
After the enactment of Ra 10372, the
deletion of section 190 does not have a wide acceptance to the public. In their point of view, they thought
that they would not be able to import things for their own personal purposes.
Especially those Filipino who came from abroad. Since for them, this is a
matter of right. However, the IP office clarified this matter and stressed that
“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.”[ix]
Despite the deletion of this provision, our
legislators still need to clarify these by providing a new law or any other
means. A mere statement from the IP office would not satisfy the needs of the
concerned citizens regarding this matter. A better version of section 190 will
do. Provided, it will not encroach any law pertaining to copyright protection.
To prevent the Philippines, be included in the US IP watch list.
Chapter
IV
Conclusions
Philippines
is indeed a developing country. Just in the recent news, we have been excluded
in the US Ip watch list. This is a mile stone for us after 20 years to further
develop our Intellectual Property Law in terms of protection. It cannot be
denied, that our law makers strived efforts to provide mechanisms that would
motivate us to create more artistic creations and inventions by way of
improving our laws and regulations outside the country.
As
a closing statement to this article, I wish to point out that the conclusion of
practical implication of the amendments shall be strictly enforce, in order for
us to increase trade and direct investments from the other countries.
REFERENCES
[i] Art 14 Section 13. The State shall protect and secure the exclusive
rights of scientists, inventors, artists, and other gifted citizens to their
intellectual property and creations, particularly when beneficial to the
people, for such period as may be provided by law
[ii]http://business.inquirer.net/27197/intellectual-property-tools-to-a-better-economic-future
[v]
http://205.234.241.62/balitangamerica/philippines-removed-from-u-s-piracy-watch-list/
[vi] Sec 185 fair use of a copyrighted work
[vii] Article 2 section 17 of 1987 constitution
[viii]
http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
[ix] http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
image source (a) = http://www.lawcommentator.com/business-tech/starting-a-business-and-protecting-your-ip/
image source (b) = http://www.royaltyip.com/2.html
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