Monday, May 20, 2013


Through time, the human race has evolved and with evolution came different invention; inventions which has become necessary in our everyday life. In today's world, ideas have become a commodity. A very valuable commodity in  which people could benefit from. The more innovative the idea the more valuable it is. However, an idea can be compared to a generic thing which anyone is able to create or conceptualize. But what makes an idea different and mor valuable is its author's originality, no wonder why people feel the need to protect their own ideas.

The Philippine Constitution recognizes that an effective intellectual and industrial property system is vital to the development of creative activity. To this end, it enjoins the State to protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creation. To fulfill this mandate, the Philippine Congress passed the Intellectual Property Code, Republic Act 8293, which took effect in 1998. The country also acceded to the Berne Convention, which protects the property rights of artists and writers, and as a member of the World Trade Organization, accepted its mandate to protect intellectual protection expressed and distributed in the various modes and channels invented by man.1 

In the Philippines, copyright laws  protect patents, trademarks, and other forms of intellectual property.

Recently, an amendment was made with the intellectual property law. Malacanang has released its interpretations with the said amendments. Interpretations of which are considered to be accurate in some aspects, and contrary to others.

According to the Malacanang, importing of books, DVDs, and CDs from abroad is still allowed. 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.

“SEC 190. Importation and Exportation of Infringing Materials. – Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation or exportation of infringing articles prohibited under Part IV of this Act and under relevant treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported or before they are exported. (Sec. 30, P.D. No. 49)”

An issue has been raised regarding the importation and exportation of purchsed subject. One in particular has been the controversy that Balikbayans no longer enjoy the right to bring home copyrighted music, movies, and books from abroad 2 .However in the explanation given by Malacanang, only importation of pirated materials or infringed material is illegal and that the Secrety of Finance and the Commiser of Customs determine the importation or exportation of infringing articles. 

The reproduction of copyrighted material for personal purposes is not punishable by this law. 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. 

There is the 'fair use' doctrine which is base on the American Jurisprudence. Fair use is an affirmative defense that can be raised by an individual who is sued for copyright infringement (or an individual against whom a claim of copyright infringement is alleged) (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)). Once the plaintiff has proven that his or her copyright was infringed upon, the burden lies with the defendant who invokes the fair use defense to prove that her or his use of the copyrighted work of another should be legally permitted, notwithstanding the copyright owner's exclusive rights in her work.3

What is sought to be prevented here is piracy. Making multiple copies of materials, for example CDs and selling them after is prohibited under the law. However legitimately acquiring CDs and transfering them for personal use and for non-profit is allowed. We apply the fair use doctrine in determining whether or not there has been infringment to the owner's right.  If your use is fair, it is not an infringement of copyright, even if it is without the authorization of the copyright holder.4

The law also provides under section 184 to wit; the reproduction or distribution of published articles or materials in a specialized format exclusively for the use of the blind, visually- and reading-impaired persons: Provided, That such copies and distribution shall be made on a nonprofit basis and shall indicate the copyright owner and the date of the original publication. 

Possession of a music file procured through an infringing activity is a violation of the 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. 

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

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

Infringement is commited only when the copyright owner knew that such a thing has occured. There must be knowledge of the infinging activity and it must be proven in order for a person to be liable under this law.

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. 

Under section 185.1 of the ammended copyright law of the Philippines,
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.

Under the law, jailbreaking is allowed. However if the device is jailbroken, companies have the right to impose conditions or limitations such as the right to revoke warranty if jailbreak was performed on one's device.

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.

The explanation of malacanang in this is found to be contrary to what is writen in the law. Mall owners who receive rental payments from stall owners, the latter happens to have commited an infringement. In this situation mall owners benefit from the rental payment of thr stall owners. Therefore, they are liable if they have received the notice.

Section 126 -infingement states that -

(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;

It is understood that mere notice constitutes as an infringing activity which makes mall owners already liable for the act. Further, the law does not provide proper remedy to mall owners in case such occurs. Due process on the part of mall owners is not found in this provision.

The Intellectual Property Office (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 theirhis  own right without a warrant (per Republic Act No. 1937 and 9239, respectively)

In the Malacanang explanation, there is still the requirement of warrant and that Intellectual Property Office may 'visit' the establishment based on reports and complaints. The exception to this rule is that when the IPO intends to perform a search and seizure which must constitute a search warrant. 

The revised Section 7(d) states  that authorities can --
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.

Contrary to the explanation of Malacanang in Section 7(d) there is warrantless search conducted by the IPO in 'visiting' the said establishments based on report, information or complaint received by the office. 'Visiting' without warrant would be violative of the Constitutional right to a search warrant. In its explanation, Malacanang distinguished visiting from seach and seizure. Visiting the private establishment by the government agency is prohibited by the Constitution.

Based on the issues raised contrary to certain provision of the Intellectual Property Law as amended,( “SEC. 216. Infringement– A person infringes a right protected under this Act when one: “(c) With knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another) I see that there is a burden in terms of ambiguous interpretation of the law which governs what should be protected when it comes to the scopeand technicalities of copyrighted materials or products. To this end, there is a need for the Congress to review said provisions for possible amendments or revision.

1., May 17, 2013
2., May 19, 2013
3., May 20,2013
4., May 20,2013
5., May 17, 2013
6., May 14, 2013
7., May 14, 2013

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