Sunday, May 19, 2013

Intellectual Property



“My words and my ideas are my property, and I’ll keep and protect them as surely as I do my stable of unicorns.”  Jarod Kintz


Intellectual property, very broadly, means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. [i] Countries have laws to protect intellectual property for two main reasons, one is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations, the second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development. [ii]  Generally speaking, intellectual property law aims at safeguarding creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use made of those productions[iii]

Intellectual property protection in the Philippines is recognized by the Philippine government as vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products.[iv]  Republic Act 8293 also known as the  Intellectual Code of the Philippines is the consolidated law of the Philippines that protect the rights of the owners/creators. Many amendments were made in order to fully protect the rights of owners or creators, the most recent one is Republic Act 10372. Some provisions of the old law were either removed or amended in order to improve the law, however these changes creates confusion on the people. Some of the confusions are:


Am I still allowed to import books, DVDs, and CDs from abroad?
Many Filipinos import products which are not available here in our country. Most of these are food, books, DVDs , CDs and the like. One of their reasons is that it is lot more cheaper in abroad than here in our country, another reason is the availability of the products here in the Philippines. Section 190.1 of RA 8293 or the Intellectual Code of the Philippines talks about the importation of copyrighted products here in our country. Under this provision, an individual can import a copy of a work here in the Philippines even without the authorization of the creator, provided that it must for his personal use only. On the other hand section 190.2 of the same law gives the limitation of importation of these products, it says that importation of these products must not infringe the right or violate any rights of the owner of the copyright and doing of this unlawful such act will result to some punishment. However this provision was removed in RA 10372, the repealed law of RA 8293.
            The removal of the provisions creates confusion to the consumers. They think that removal of the provisions prohibits the importation of any copyrighted work here in the Philippines. The framers of the law explain that the removal does not mean prohibition, unless it removes the limitations on the importation of these pieces of work. However the explanation is somewhat contrary to the main purpose of the law. The Intellectual Property Law is created for the protection of the right of the owner or creator of a work, the reckless importation (without limitation in the quantity) will prejudice the right of the creator. On the other hand the  removal of section 190.2 doesn’t mean that violators will be free from punishment if they do acts that will infringe the right of the owner.



Is the reproduction of copyrighted material for personal purposes punishable by this law?
             Nowadays free downloading of music and movies from the internet is the most popular trend. They will download their favorite music in internet and save it in their personal computer or personal player, or some will save or burn it in a CD and make multiple copies. This act is a clear violation of the Economic Right of the owner. Economic Right is the right of the owner/creator that his work will not be reproduced without his authorization or any consent from him. Section 177 of the Intellectual property law provides for the exclusive economic right of the owner. The act of downloading the copyrighted material and reproducing it (even for personal use) prejudice the right of the owner in terms of prejudicing the sale or market consumption of the material. Instead of buying it, people will tend to download it for free or get a copy of the material from someone who download it for free. Downloading it even for non-profit purpose still violate the right of the owner. Let’s say that you download a movie from the internet, you save it in your laptop for your personal viewing  and your friend know that you have the copy of the movie, he asked you for a copy and you gave it to her for free (non-profit), still this is reproduction of the material which is prohibited in section 177 of the law. Reproduction means creating of a copy of the material without the authorization of the owner or the creator. The example above is a clear example of reproduction, which is punishable under this law.

Is the possession of, for example, a music file procured through an infringing activity a violation of this law?
            Downloading of copyrighted materials from the internet  and saving it in your computer and transfer it in your personal player is illegal per se, because this is a clear reproduction of the copyrighted material. The economic right of the owner of materials protects them for illegal reproduction of their work. The possession of the copyrighted material can be a evidence against the person. Section 217.3 of the Intellectual Property law explains that the possession of the material which he knows to be an infringing copy of the work is criminally liable. Even when it is for personal use or for non-profit activities still it is violation of the law. 
            In the amended law, it says that it must be proven that the person has the knowledge of the infringing activity or had the knowledge that the copyrighted material is illegally acquired. The presumption of innocence is still applicable. The person who has the possession of the material must be benefited from it before he can be considered liable.  Here the important factor is the knowledge of the person that the material is from infringement activity.

Is jailbreaking or rooting my phone or device illegal?
            Free applications is the one of many benefits a person can get if he jailbreaked his phone, laptops or other gadgets with operating system.[v] Jailbreak is defined as is the process of removing the limitations on Apple devices running the iOS operating system through the use of software and hardware exploits – such devices include the iPhone, iPod touch, iPad, and second generation Apple TV, jailbreaking permits root access to the iOS operating system, allowing the download of additional applications, extensions, and themes that are unavailable through the official Apple App Store.[vi]
Many ipad owners prefer to jailbreak their gadget to avail free applications and programs. The downloading of copyrighted program is the illegal act, not the act of jailbreaking. The act of jailbreaking per se is not illegal, is it a personal choice of the owner in removing the limitations provided by the operating system of the gadget. The main risk of jailbreaking your gadget is the removal of the warranty. Jailbreaking is one kind of Decompilation. Section 185.1 of Intellectual property law describe decompilation as the reproduction of the code and the translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other program. Decompilatin per se is not illegal or may be considered as a fair use of copyrighted work, but the act must not prejudice the right of the owner. One example of this act is that the decompilation must not affect the potential market value of the copyrighted work. Getting free applications is a clear example of this act, the market value of the product is affected, because some gadgets which are jailbreaked can avail the programs free of charged. The illegal act is the downloading of the free application not the jailbreaking of the gadget. Jailbreaking is not a violation of the Intellectual property Law.

Are mall owners liable for infringement activities of their tenants?
An infringer is a person who crosses boundaries without the owner's permission is a trespasser.[vii] In patent law, infringement is a form of trespass, and a person whose product, process, apparatus, or composition infringes the scope of a valid claim is comparable to a trespasser and is called an infringer.[viii]
In cases of owners of the establishment where infringement activities happen, they are not automatically liable. In Republic Act 10372, its says that ,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, 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.[ix] One clear example of this the selling of pirated DVDs in malls, mall owners must have the knowledge of the activity, he must give notice to the tenant and have ample time to act upon the knowledge of the illegal activity.
Under the new law, an infringer is also anyone who “benefits from the infringing activity of another person” and if this person “has been given notice of the infringing activity and has the right and ability to control the activities of the other person” or if a person “purposely and with the intent to enable or induce infringement by another person and materially contributes to it.”[x] In the case of a mall owner with a tenant who is selling pirated movies, the Philippine IP Office has explained that for it to be secondarily liable, the mall owner must (1) benefit from the infringing activity; (2) must have been given a notice of the infringing activity and a grace period to address the complaint; and (3) has the right and ability to control the activities of the tenant of who is doing the infringement.[xi]
Knowledge of the illegal act must be proven before an owner can be held liable. Under the Intellectual Property law a claim of innocent infringement is not a defense against a finding of infringement.[xii] An innocent infringer is liable for the infringement, but a court may reduce — or, in some instances, remit altogether he amount of damages[xiii] The burden of proving innocent intent is on the defendant and is a heavy one, the defendant must prove that it did not know and should not have known that its conduct constituted infringement, further, the defendant “must not only establish its good faith belief in the innocence of its conduct, [but] it must also show that it was reasonable in holding such a belief.”[xiv]
The secondary liability provision can affect third-party business providers such as mall owners, concert, event organizers, and bazaar operators. It can also have an impact on the business of online intermediaries operating in the Philippines such as hosting providers and peer-to-peer file sharing websites.[xv]

Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints?
            Due process of law is a Swiss knife that an individual use against the Police power of the state. It is the safeguard of the people from the arbitrary use of the power of the government. One fundamental right of the people is not to be arrested without warrant of arrest or not to be searched without search warrant or any valuable reason, however this is not absolute.
Warrantless search is allowed in our country provided that it must not infringe the right of person to due process of law. Our constitution provides circumstances where in a warantless search can be made. One example of this is the warrantless search in customs, where all the imported products are being examined before it can enter the Philippines market. Many copyrighted products enter into our market, like computers, ipad, dvds and other materials. These products are being examined in customs, to make sure that it is legally transported here in the Philippines.
  The amended law of RA 8293 broaden the power of the Intellectual Property Office to conduct warrantless search based on reports 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. [xvi]



[i]  WIPO, 2004. Citing Websites. In  Intellectual Property Handbook: Policy, Law and Use. Retrieved May 19, 2013 from http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch1.pdf
[ii] ibid

[iii] ibid

[iv] Citing website. In Wikipedia: Intellectual Property. Retrieved May 19, 2013 from http://en.wikipedia.org/wiki/Intellectual_property_protection_in_the_Philippines
[v] Citing Website. In Wikipedia : Jailbreaking. Retrieved May 20, 2013 from http://en.wikipedia.org/wiki/IOS_jailbreaking
[vi] ibid
[vii]Citing Website. In Wikipedia. Retrieved May 20,2013 from  http://itlaw.wikia.com/wiki/Innocent_infringement
[viii] Citing website. Retrieved May 19, 2013 from  http://www.lectlaw.com/def/i040.htm

[ix]  Estavillo, Maricel. March 7,2013. In Tech meets IP : Copyright infringement under the new IP law . Retrieved May 20,2013 from http://www.interaksyon.com/infotech/copyright-infringement-under-the-new-ip-law

[xii] Citing Website. In Wikipedia. Retrieved May 20,2013 from  http://itlaw.wikia.com/wiki/Innocent_infringement
[xiii] ibid
[xiv] ibid

[xv] Estavillo, Maricel. March 7,2013. In Tech meets IP : Copyright infringement under the new IP law . Retrieved May 20,2013 from http://www.interaksyon.com/infotech/copyright-infringement-under-the-new-ip-law

[xvi]Citing Website. In Official Gazette. Retrieved May 20, 2013 from  http://www.gov.ph/2013/03/11/infographic-faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/
 
DISCLAIMER:  Please note that this article is for general information and educational purposes only. All articles contained here in this website are solely those of the author and do not necessarily represent the views and opinions of any member of the bar, my school or any other organization that I may or may not be affiliated with or connected to. In accordance with the law, this is not intended to constitute legal advice, and nothing in the articles or comments should be taken as such.

4 comments:

  1. Regarding your views on the new amended intellectual property law, what can suggest the government will do in order fight online piracy, since the Intellectual Property Office only has visitorial powers? How about those citizens who downloaded pirated music and movies, how can the Philippines government stop it?

    ReplyDelete
  2. You mentioned that the rule on presumption of innocence is applicable in a situation where a person is in possession of a file acquired through an infringing activity. What are the instances by which proof may be shown that the person had knowledge as to the infringing activity?

    ReplyDelete
  3. Given the fact that warrant of arrests should be issues before IPO conducting searches. What may be the extent of these reports and complaints that the IPO consider in order to conduct searches? may anonymous reports be entertained? :)

    ReplyDelete
  4. I found your discussion on the legality of the IPO's power to search and to seize very interesting. I agree that metes and bounds must be met first for us to consider the said function constitutional. The Constitution is the supreme law of the land and must be followed at all times. I hope that this will be clarified to the IPO asap. This being said, do you know any case in the SC which tackles the constitutionality of this feat? In my opinion, the SC should set a good precedent regarding this matter.

    ReplyDelete