“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
[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.
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.