Are the explanations of Malacañang relevant to the amendments of the Law on Intellectual Property accurate?
Under the Intellectual Property Law, the State deemed it necessary to give protection to copyright and related rights; trademarks and service marks; geographic indications; industrial designs; patents; lay-out designs of integrated circuits and protection of undisclosed information. The reason for the protection of such is to give the Filipinos the sense of entitlement when it comes to their original works or to give them the security they may need when it comes to piracy and infringement. One way also, is to hearten the Filipinos to work hard in becoming competent and well-known scientists, inventors, artists (local and international), as opposed to being maids, entertainers and caretakers to which most of the foreign countries think they are only seem to be good at.(no intention of belittling my countrymen, just stating observations).
The law specifically provided safeguards on what rights to protect and what are the limitations on these rights, however, the legislative body sought it was necessary for the Intellectual Property Law to be amended, which they later did, on February 28, 2013. Considering the remarks made by the Malacañang about the amendments, it showed holes and flaws that are, in blogger’s opinion, not needed and should be reverted back to the original.
This blog would contain queries about the amended Intellectual Property Law and answers from the Malacañang. The blog also contains the blogger’s opinions and comments on the statements given by the Malacañang.
- 1. Question: Am I still allowed to import books, DVDs, and CDs from abroad?
Answer from Malacañang: Yes. 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.
Comment: The former Section 190 of the Intellectual Property Code, which is entitled ‘Importation for Personal Purposes’, allows the importation by an individual of a copy of works or articles, be it books or DVDs or CDs, provided that the same will not be distributed for sale but will only be used for personal purposes. This is one privilege granted to balikbayan citizens, and even to religious, charitable and educational societies or institutions that are duly registered or incorporated under the Corporation Code, by RA 8293. It is important to note that the rights granted by the former section 190 have been removed by the amendments introduced by RA 10372. This is evidenced by the fact that the provision laying down the instances when importation of copyrighted materials is allowed, that is, Subsection 190.1, has been deleted. With the amendment of the said section, the new Section 190 of the Intellectual Property Code now merely focuses on the importation and exportation of infringing materials. The language of the amended provision is clear – it simply states that the Commissioner of Customs is mandated to see to it that the importation and exportation of infringing materials be prevented. It no longer provides for situations wherein an individual or institution can import in the Philippines a copyrighted material for personal use nor does it give them the privilege to do so. Thus, following the present formulation of Section 190, the importation into the Philippines of a copyrighted material is no longer allowed.
- 2. Question: Is the reproduction of copyrighted material for personal purposes punishable by this law?
Answer from Malacañang: No. 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.
Comment: The abovementioned answer still relies on the provision of the Intellectual Property Code prior to its amendment. The provision being referred to is the former Section 212.1 of RA 8293 which prescribes a limitation to the rights of performers and producers of sound recordings. The immediate implication of this provision is that the performers and sound recording producers cannot enforce their rights against a natural person who uses, or even reproduces, copyrighted materials exclusively for his own personal purposes. As such, if one uses a copyrighted material and later on reproduces it so that he can have a personal copy of it for his own use, he does not commit an infringement of the rights of the copyright owner. However, with the recent amendment of Section 212, it seems that the personal use of a copyrighted material is no longer allowed.
The new Section 212 now provides a different limitation on the economic rights of performers and sound recording producers. It no longer contains the four specific instances when the said rights cannot be enforced. Instead it now makes the provisions of Chapter VIII, which has also undergone certain amendments, of the Intellectual Property Code as sole limitations to Sections 203, 208 and 209. If the provisions of Chapter VIII are to be applied in lieu of the former Section 212, it would be easy to conclude that any reproduction of a copyrighted material for personal use is now considered a violation of the law. This is because the former Section 212 has been changed in its entirety and can no longer be used as a basis to justify such act. To borrow the words of one Raissa Robles, “Our law makers erased the entire Section 212 and replaced it with something else that no longer contains this particular exception – the use by a natural person exclusively for his own personal purposes. The exception is now gone from the congressional measure amending RA 8293.” Hence, commenting on the answer given above, infringement, under the new law, can now be committed not only when the reproduced copies of a copyrighted material are intended to be sold but also even when they are to be used exclusively for personal purposes.
- 3. Question: Is the possession of, for example, a music file procured through an infringing activity a violation of this law?
Answer from Malacañang: 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.
Comment: “Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright.” In line with this, RA 10372, in amending Section 216, enumerated three situations when a person can commit infringement of a right. The new Section 216 is very specific as to the acts that constitute infringement and this is the very provision used by Malacañang as basis in its explanation regarding the possession of music file procured through an infringing activity. The reliance on the said provision is misplaced since it does not contemplate a situation involving the possession of something which is procured through an infringing activity.
Dennis Funa enumerates two kinds of infringement, to wit: (1) direct infringement and (2) indirect infringement. Section 216 refers to direct infringement while Section 217.3 refers to indirect infringement. Section 217.3 should instead been applied because it expressly contemplates a situation involving a person in possession of an article obtained through an infringing activity. A person is liable under Section 217.3 if the following are present: (a) he is in possession of an infringed copy, (b) he knows or ought to know that the copy was obtained through infringement and (c) he possesses the copy for the purpose of any of those mentioned in Section 217.3. Therefore, even if one is in possession of a music file procured through an infringing activity, the same does not automatically constitute a violation of the law since it must also be shown that the possessor has knowledge or suspicion that it was acquired through an infringement of the original copyrighted material.
- 4. Question: Is jailbreaking or rooting my phone or device illegal?
Answer from Malacañang: No. 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.
Comment: “Jailbreaking 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.” “Android rooting is the process of allowing users of smartphones, tablets, and other devices running the Android mobile operating system to attain privileged control (known as “root access“) within Android’s subsystem. Rooting is often performed with the goal of overcoming limitations that carriers and hardware manufacturers put on some devices, resulting in the ability to alter or replace system applications and settings, run specialized apps that require administrator-level permissions, or perform other operations that are otherwise inaccessible to a normal Android user.” In other words, through jailbreaking and rooting, one is able to download programs that are not allowed or permited by the device’s operating system and it is all for free. There seems to be a problem with this because programs and applications, which are copyrighted, are downloaded for free and when that happens one can already use a copyrighted material not only without the consent of the owner but also without paying him anything. Is it not a violation of the rights of the copyright owner if one is able to use for free that which the law has vested in the copyright owner to be his? This would not create much problem if that which has been downloaded will be for personal use only. But what if it is sold? It will already result to the great prejudice of the copyright owner. Thus, it is not an issue if what has been downloaded is original or pirated because either way damage can be caused to the copyright owner. Personally speaking, it is wrong to consider jailbreaking and rooting as legal activities.
- 5. Question: Are mall owners liable for infringement activities of their tenants?
Answer: 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.
Comment: Of all the explanations made by Malacañang, this has been the most accurate so far. The amended Section 216 provides three specfic acts of infringement. Paragraph (b) thereof appears to be the most applicable. As provided for by the said paragraph, a person liable for infringement when he benefits from the infringing activity of another despite having notice of such activity and the right and ability to control that activity. It is well to note that for liability to attach under this circumstance it is necessary that the following are present: (1) the person benefited from the infringing activity of another, (2) he has notice or knowledge of the infringing activity and (3) he has the right and ability to prevent the infringing activity from being committed. Consequently, mall owners cannot be held liable for the infringing activities of their tenants if for example there are not aware that they are being or has been committed since the former are not in the position to conduct inspections all the time. But if they are aware that an infringing activity is being committed by the tenants and they don’t act on it notwithstanding the ability to do so, they can be held liable even if they did not derive any benefit therefrom since in this case there is failure to do that which they ought to do. Hence, mall owners can only be held liable for the infringing activities of their tenants if they commit the act that is punishable by Section 216 (b) of the Intellectual Property Code.
- 6. Question: Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints?
Answer: 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. 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 their own right without a warrant (per Republic Act No. 1937 and 9239, respectively).
Comments: The amendment made to Section 7 of RA 8293 is perhaps the most controversial. With the said amendment, the Director General and/or the Deputies Director General of the Intellectual Property Office (IPO) are now granted with visitorial powers. Many would say that this additional power given to the Director General and/or the Deputies raises a constitutional issue as it would run contrary with the mandate of the 1987 Constitution specifically on the right against unreasonable searches and seizures, and with the right to privacy as well. How is this so? To put things into perspective a review of Section 2 of the Bill of Rights would be proper.
The Bill of Rights is intended to safeguard the people against the possible abuses that they may suffer from the hands of those in authority. These abuses come in many forms; one of them is the unwarranted intrusion into ones home, establishment or any of his property. It is for this reason that the people are given the right against unreasonable searches and seizures. Isagani Cruz, a well-known constitutionalist, has this to say regarding the scope of this right: “The rights against unreasonable searches and seizures (and to the privacy of communication and correspondence) are available to all persons, including aliens, whether accused of a crime or not (emphasis supplied). Artificial persons, like corporations, are also entitled to the guaranty, although they may be required to open their books of accounts for examination by the State in the exercise of the police power or the power of taxation. As a rule, however, their premises may not be searched nor may their papers and effects seized except by virtue of a valid warrant (emphasis supplied).” Taking into consideration the statements of Cruz and the provision of Section 2 of the Bill of Rights, it can be inferred that a search can only be made if there is a valid warrant and the requirement of a valid warrant is indispensible regardless of whether the owner of the establishment to be searched is accused for committing a crime or not, provided it does not fall under the exceptions laid down by jurisprudence.
Malacañang’s explanation pertaining to this new power of the IPO actually put a distinction between the act of ‘visiting’ and the act of ‘searching’ an establishment. That is erroneous. The new Section 7(d) states that the IPO can conduct ‘visits’ if it receives reports, complaints or information regarding violations of intellectual property rights. But the provision was worded in such a way that the word ‘visit’ would mean or include ‘searching’. To illustrate, if the IPO conducts a visit after receiving a report, complaint or information, then said visit would necessarily be considered a search since it is conducted for the purpose of verifying if the report, complaint of information is correct. This being said, the IPO must always have a search warrant every time it visits establishments or businesses engaging in activities violating intellectual property rights, otherwise it would become an unlawful or unreasonable search. However, with the amendment of Section 7, the IPO can now just enter establishments or business premises even without a warrant. Worse, they can do this based only on a report, complaint or information which the law does not require to be verified or made under oath. This is the scenario if the new Section 7(d) of the Intellectual Property Code is to be applied and in contrast to what Malacañang said, it is unconstitutional.
The signing into law of RA 10372 has led to a lot of confusions as to whether those acts which were permitted before under the provisions of RA 8293 can still be done legally despite the amendments made by the former to some provisions of the latter. Malacañang shed light on this matter by giving answers to some of the querries made regarding the effect and application of the amended law. It is quite surprising that some of the answers given by Malacañang were explained still on the basis of the old law on intellectual property. It thus made these answers inaccurate as far as the acts referred to in the questions are concerned.
 Section 190 (RA. 8293). Importation for Personal Purposes.
190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances:
(a) When the copies of the work are not available in the Philippines and:
(i) Not more than one (1) copy at one time is imported for strictly individual use only; or
(ii) The importation is by authority of and for the use of the Philippine Government; or
(iii) The importation, consisting of not more than three (3) such copies or likeliness in any one invoice, is not for sale but for the use of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.
(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed three(3).
190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor’s right of action.
190.3. 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 of articles the importation of which is prohibited under this section and under 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.
 SEC. 15. Section 190.3. of Republic Act No. 8293 is hereby renumbered and amended as the sole provision under Section 190 to read as follows:
Section 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)”
 Section 212. Limitation on Rights. – Sections 203, 208 and 209 shall not apply where the acts referred to in those Sections are related to:
212.2. The use by a natural person exclusively for his own personal purposes
 SEC. 21. Section 212 of Republic Act No. 8293 is hereby amended to read as follows:
“SEC. 212. Limitations on Rights. – The provisions of Chapter VIII shall apply mutatis mutandis to the rights of performers, producers of sound recordings and broadcasting organizations.”
 Taken from an article written by Raissa Robles entitled Congress erased every Filipino’s right to bring home music, movies and books from abroad posted on February 14, 2013. (http://raissarobles.com/2012/02/14/congress-erased-every-filipinos-right-to-bring-home-music-movies-and-books-from-abroad) – May 18, 2013
 Columbia Pictures, Inc. v. Court of Appeals (261 SCRA 144). Cited by Dennis Funa, Intellectual Property Law, 2012 Edition, p.673.
 SEC. 22. Section 216 of Republic Act No. 8293 is hereby amended to read as follows:
“SEC. 216. Infringement. – A person infringes a right protected under this Act when one:
“(a) Directly commits an infringement;
“(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;
“(c) With knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.
 Direct infringement – “Copyright is deemed infringed by any person who, without the consent of the owner of the copyright , does anything the sole right to do which is by law conferred on the owner of the copyright. The essence of direct infringement is copying. There is no infringement if there is no direct copying or use of another’s work no matter the degree of similarity since the similarity could be due to mere chance.” (Funa, Intellectual Property Law, 2012 Edition, p. 676)
 Indirect Infringement – “This pertains to dealings with works of direct infringements. This should be expressly penalized in the statute and it would be just to penalize only those who knowingly deal with infringing copies.” (Funa, Intellectual Property Law, 2012 Edition, p. 677)
 Section 217.3. Any person who at the time when copyright subsists in a work has in his possession an article which he knows, or ought to know, to be an infringing copy of the work for the purpose of:
(a) Selling, letting for hire, or by way of trade offering or exposing for sale, or hire, the article;
(b) Distributing the article for purpose of trade, or for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or
(c) Trade exhibit of the article in public, shall be guilty of an offense and shall be liable on conviction to imprisonment and fine
 SEC. 2. Section 7 of Republic Act No. 8293 is hereby amended to read as follows:
“SEC. 7. The Director General and Deputies Director General. –
“x x x
“(d) 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;
 “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons of things to be seized.” (Section 2, Article III, 1987 Constitution)
 Isagani Cruz, Constitutional Law, 2007 Edition, p. 140.
 Valid warrantless searches are limited to 1) customs searches; 2) searches of moving vehicles; 3) seizure of evidence in plain view; 4) consent searches; 5) searches incidental to a lawful arrest; and 6) “stop and frisk”. (Malacat v. Court of Appeals, 283 SCRA 159)
DISCLAIMER: ONLY A LAW STUDENT’S OPINION