Introduction
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.
FAQs
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.
Conclusion
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.
Bibliography
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/