Intellectual property is defined in Ballantine’s Law Dictionary as those property rights which result from the physical manifestation of original thoughts. Mere ideas or mental conceptions are not considered as intellectual property because they are not yet transformed into a physical object. Only those creations of the mind which are transformed to physical form are considered intellectual property and protected by law. In the Philippines, Republic Act 8293 or better known as Intellectual Property Code of the Philippines is the law which governs the protection of intellectual property. It was approved on June 6, 1997 and became effective on January 1, 1998. Its purpose is to protect and strengthen the intellectual property system in the Philippines in relation to what is deemed appropriate according to global standards of intellectual property protection.
The Intellectual Property Code of the Philippines recognizes eight intellectual property rights: Copyright, Related Rights, Patents, Mark, Geographical Indications, Industrial Designs, Layout Designs of Integrated Circuits, and Protection of Undisclosed Information. The protection of this law extends to any person whether a national of the Philippines or not, or domiciled in the country or not. As long as such has a real and effective industrial establishment in a country which is a party to any convention, treaty, or agreement, which the Philippines is a party of, or their country extends reciprocal rights to nationals of the Philippines, they are entitled to this protection.
On February 28, 2013, President Benigno Aquino signed into law Republic Act 10372 which amends certain provisions of the Intellectual Property Code of the Philippines. This law consists of thirty two sections which expanded or deleted some of the topics in the current Intellectual Property Code. While this law was being deliberated in congress, various clamours from the public calling for its veto were being pushed because of the consequences it carries.
The government in its effort to explain such amendment released an explanation in a form of infographics guidelines on the possible effect of such amendment. This paper aims to determine whether the Intellectual Property Code of the Philippines and its amendments coincide to the explanation given by the government and its purpose are still amply protected.
In lieu of the protest against the amendments to the Intellectual Property Code of the Philippines and the clamour from the public to not pass them, the government in its effort to ease any building tension from the public published a statement in a question and answer form which will answer the queries the public has regarding the amendment. The statement coming from the government was titled “FAQs on the amendments to the Intellectual Property Code of the Philippines” which can be found in the government’s website gov.ph. It contains six question and answer segment which the government identified as the frequently asked question over the said topic. The purpose of this FAQ’s was to clear out any confusion the public has over the amendment to the Intellectual Property Code.
Browsing through the statement of the government regarding the effects of the amendment, on the first reading it may appear that the amendment works to our advantage. It highlighted such facts that one can now import as many number of copies of Books, CDs, and DVDs subject to customs rules as long as they are legally purchased because the original limitation to three copies was removed by the amendment. It explained that reproduction of copyrighted materials for personal use is legal. Even the possession of infringed music files is not violative of the law when the person has no knowledge of the infringement. Mall owners are not liable to infringement as long as they did not benefit on the infringement activities of their tenants. It said that jailbreaking or rooting by themselves are not illegal. They cleared the issue over search and seizure that the IPO still needs to obtain a warrant in conducting a search. These things might appear simple and appear no issue at all. It took the government only six questions to downplay the strong clamour from the public over the possible constitutional violations this amendment will bring.
These FAQs appear so simple and so concise that the bigger issues are not really discussed. It seems to be a deception by the government to hide the vast power it gives to itself and its agencies and downplay the possible abuse of power it confers to such.
Evaluating the FAQs
In my opinion, the explanation by the government over the amendment to the Intellectual Property Code is not as accurate as they want to picture it to be. Though the explanation by the government might create an impression that there is nothing to worry about the amendments to the Intellectual Property Code, I believe that there is more to what the government is trying to downsize from its FAQs.
These questions that they tried to answer do not truly explain the issues over such amendments. They tried to answer issues raised by critics in a light manner that will create conclusion that there is nothing wrong with the amendments. Though their intention in introducing this law might be good, the end that they like to achieve does not justify their means. It is in my humble opinion that the Filipino people will be greatly affected by this law not only financially since we will be forced to buy original expensive copyrighted items, but also the intellectual growth of our country will be impaired.
Over my study of the amendments to the Intellectual Property Law and the explanation by the government, I was so inclined to believe that this will be for the better of everyone. I was having a hard time to realize the negative implications of this amendment. I have researched several articles over the internet regarding the pro’s and con’s of the amendments, yet I find to justify myself of the advantages that the amendment can bring. That was until I came across the article written by Raissa Robles regarding the amendments.
Comparing the FAQs, the amended provisions, and the points raised by Raissa in her article, it led me to the realization that the government should have not passed the law yet. As good as the government wants to eliminate piracy in the country, I think they should have considered first the current state of living of our fellow Filipinos. We don’t need this kind of law as of the moment. Piracy is not an illegal act which is of elemental concern which needs to be taken cared with the heavy arm of the law. Yes, there might be some losses being incurred because of the supposed to be profits generated in original items, but there are also benefits gained from the current state of Intellectual Property Rights that we have as of the moment. And I believe that the benefits outweigh the cost as of the moment in having lax implementation of the law regarding pirated materials.
I share the same sentiment of Raissa Robles that a lot of us in the Philippines started learning computers through pirated softwares. Though I don’t have the data to back up my statement, I’m saying it through experience and observation of the current state of living of Filipinos. I’ll focus my attention on this paper on musics and videos as an example. Original CDs and Videos are a bit pricey compared to their pirated counterpart which cost a lot lower. Though I don’t know how much the going rate of pirated CDs and DVDs is nowadays because I have stopped buying these things, but I bet is will surely be a hell lot lesser than the original ones. So, for an average Filipino who is earning less, and below the poverty line, in able to enjoy this entertainment, they are forced to patronize these pirated items in able to squeeze them to their budget. If the government will restrict access to these pirated materials, the poor people can’t afford to buy the original ones. This will lead to impairment of their growth on whatever learning they can get over such items.
The biggest issue that the government downplayed in their FAQs is the issue about the expanded power granted to the Intellectual Property Office. The government said that there is nothing wrong with the visitorial power of the IPO because this is constitunional. They even said that if a search and seizure is to be implemented, a proper warrant must be obtained in accordance with the law. With this having said, I am confused on what will be the point of the visiting power and its difference with search and seizure. What is the purpose of granting the IPO of such visitorial power? The only possible effect that I can think of from this power is a fishing expedition on the part of the IPO. Since according to the government’s explanation, a warrant is still needed for a search and seizure, the visitorial power of the IPO will aid the latter in obtaining a warrant against the subject. This is unconstitutional as the Supreme Court prohibits fishing expedition by authorities in gathering pieces of evidence against the accused.
This visitorial power is subject to abuse by the IPO since what is needed is only an allegation or a report from an author a copyrighted material of possible infringement then the IPO can automatically act on it. The problem with it is that the innocent individuals may be prejudiced on their private rights because of mere allegation of possible violation of the Intellectual Property Law. The law now allows the IPO to conduct investigation through their visitorial power. Now they can enter the premise of an accused without the necessary warrant which is required in conducting search in seizures. In effect, the visitorial power granted to the IPO is above the power of search and seizure since it is upon the discretion of the IPO to conduct a visit based on mere reports.
The explanation by the government regarding the importation of Books, CDs, and DVDs does not tell the bigger picture of what has been amended. What has been highlighted from the FAQs is that the original limitation of three copies of copyrighted materials has been removed. But the problem is, that is not the issue regarding importation. It would have been better if they did not delete the provision which allows people to bring materials for personal use. With such deletion, it creates a possibility that the personal properties of people can easily be confiscated when they do not conform as a legitimate copyright material. There may seem no problem to this because pirated products are considered illegal goods but they still remain personal properties of the owner. By allowing this things to be confiscated even if they are for personal use only will violate the constitutional guaranty given by section two of article three of the Constitution which guaranty the people to be secure of their persons, houses, papers, and effects.
By the deleting the phrase for personal use only in the Intellectual Property Code, it opens the possibility of the government through the IPO to conduct a seizure of property of an individual without due process. This amendment does not respect the right of the people over their personal properties. The government may argue that pirated materials are illegal and therefore must be confiscated for violating the law but such materials still consist of the private property of a person. Proper warrant should be obtained first before seizing pirated materials. Pirated materials are not of a great value that the primordial right given by the Constitution must be disregarded.
What the government failed to explain in their FAQs is that the amendment expanded the definition of infringement and the how to commit it. In the amendment, a person commits an infringement if he directly commits and infringement; benefits from the infringing activity of another person who commits an infringement; and with knowledge of infringing activity, contributes to the infringing activity of another. With this expansion in the scope of infringement, it is as if everyone will be liable to infringement. By the mere possession of an infringed item, a person can be held liable because of the benefits he derives over it. The law is silent whether the benefit it is talking about is financial benefit or merely the pleasure of using it. Thus, it will be hard to escape liability if caught owing an infringed item because at some point there is benefit derived over it.
It is no secret that the end goal of the government in amending the Intellectual Property Code is for the utmost protection of the rights of Artists, Inventors, and Authors, whose creations are protected by the law. The amendments introduced aims to eliminate piracy which is so rampant nowadays. I do agree that piracy should be eliminated. But I do not agree with the government on their method on how to fight it.
As cited in the article of Raissa Robles, in China, record companies lowered their prices in able to compete with the pirated products and make them more affordable to the public. I think this approach should not only be implemented not only in China but in the whole world. Why is it that the cost of purchasing copyrighted products in China will be cheaper than in our Country? I think it is immoral for these companies to bill other countries more and bill China less on their product because they cannot eliminate piracy in China. It is as if they choose the countries who to bully and impose a bigger price tag on their products.
If the government is really serious in helping to promote the rights of these Artists, Inventors, and Authors, I think the approach of enforcing the strong hand of the law against the consumers will not work for the better of everyone. Infringement of products from time immemorial has been a problem that the government is trying to solve with the same solution. And the government is continuing and will continue to lose on its battle against copyright infringement because the formula that they are applying is not the proper solution. It is hard to believe that the welfare of the Artist, Authors, and Inventors are the concern of the government in signing this amendment into law. The amendments clearly show that it favor foreign companies who makes reproduction of copyrighted materials. It is a fact that foreign companies are losing a lot due to copyright infringement. I believe that the passing of this law is brought by a strong pressure from these firms to protect their personal interest to the prejudice of the Filipinos. Our consumers should not be burdened by laws restricting their rights to own products due to the government’s failure to eradicate infringement.
What the government is doing is imposing hefty rules and regulations over consumers who have limited purchasing power and force them to shell out their money to buy expensive products. For an average Filipino, this is not possible. The government would want to impose on the Filipinos through this amendment that if you cannot afford to purchase a copyrighted product, then you have no right to own and enjoy them through other means. We should always remember that through this infringed products, benefits are also derived. Taking pirated computer software as an example, many poor Filipinos who cannot afford to buy an original product are now computer literate and technologically updated because of this.
Instead of these amendments to the Intellectual Property Code restring the right of ownership to consumers of infringed materials, the government should have pushed for a reduction in the prices of these items to make it more affordable to an average Filipino. We have to face the fact that as of the moment, our Country is a third world country whose poverty level is continuing to increase year by year. If in China, original items are being sold at a lesser price that should also be done here in the Philippines and in other parts of the world.
By making original products more affordable is the only way I can see on how to truly eliminate infringement and protect the rights of Artists, Authors, and Inventors. As for the moment, due to economic difficulties, majority of the Filipinos cannot afford to buy original products and therefore most will rely on piracy. The amendments to the Intellectual Property Code have its advantages and disadvantages. The amendments may put us in better position in the international community but in passing any law, we should always consider the welfare of the people as the utmost priority of the government. And in my opinion, this amendment does not prioritize the welfare of the people and therefore should be struck down.
Republic Act 10372: An Act Amending Certain Provision of Republic Act 8293. Official Gazette of the Philipines
FAQs on the amendments to the Intellectual Property Code of the Philippines. Official Gazette of the Philippines. Retrieved May 19, 2013, 7:09pm. http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
Raissa Robles. Congress erased every Filipino’s right to bring home music, movies and books from abroad. Retrieved May 18, 2013, 10:25pm. http://raissarobles.com/2013/02/14/congress-erased-every-filipinos-right-to-bring-home-music-movies-and-books-from-abroad/
Raissa Robles. Copyright owners have more rights than heinous crime victims with Congress’ IP Code changes – lawyers say. Retrieved May 18, 2013, 10:20pm. http://raissarobles.com/2013/03/06/copyright-owners-have-more-rights-than-heinous-crime-victims-with-congress-ip-code-changes-lawyers-say/