Are the statements of Malacańang in its FAQ regarding RA 10372 accurate?
Nowadays, people are careless with what they do especially when it comes with their social media. Most people through the internet tend to post, publish, share, like, tweet, follow and subscribe to any kind or anything that they might see. There are a lot of beneficial things that the internet provides, but not all are free. We must remember that there are also developers and creators who are using their talents and skills to find ways to make things easier for us. Meaning, not all things we find in the internet are free. Which also means that not all things we do there are legal.
Republic Act No. 10372, signed on February 28, 2013, amends certain provisions of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines. The following are some frequently asked questions about these amendments, and some short answers. [i]
Am I still allowed to import books, DVDs, and CDs from abroad?[ii]
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.[iii]
Is the reproduction of copyrighted material for personal purposes punishable by this law?[iv]
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.[v]
Is the possession of, for example, a music file procured through an infringing activity a violation of this law?[vi]
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.[vii]
Is jailbreaking or rooting[*] my phone or device illegal?[viii]
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.[ix]
Are mall owners liable for infringement activities of their tenants?[x]
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.[xi]
Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints?[xii]
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).[xiii]
The procedure and safeguards for this are to be spelled out in the Implementing Rules and Regulations.[xiv]
I find the statements made by Malacańang in favor of accuracy than the other way around. We should be mindful that efforts were made to provide protection not just for the consumers but for the owners as well.
The first question is, am I still allowed to import books, DVDs, and CDs from abroad? I agree with the given answer that as long as it is legitimately acquired and as long as the imported material is not pirated or infringed the same may be imported in the country, subject of course to customs regulation.
This particular answer is correct. There should not be any limitations, except customs regulations, when a book or disk is lawfully acquired. When we purchase a book, DVD or CD from abroad the right to travel such article is within the bounds of the law. Only infringed materials should be subject of importation and exportation regulations.
Nowadays, there are a lot of pirated CDs and DVDs. Their importation and exportation is of course punishable under the law for being in violation of the rights of the copyright owners. If we tend to punish those who violate the law, then we should grant more rights and privileges to those who acquire or purchase the articles lawfully.
Now we tackle the second question. Is the reproduction of copyrighted material for personal purposes punishable by law? I beg to differ to the suggested answer. I am of the opinion that the second question and the corresponding answer do not reflect the true purpose of the law. The reproduction of copyrighted materials for personal purposes should be punishable by law.
As what I have learned under our new law, the transfer or reproduction of a legally acquired copyrighted material to another device is punishable by law. For example, when we purchase a song from itunes using an ipad the subsequent transfer of such song to a laptop, computer or another device violates the law.
In relation thereto, it would conform to the law that the reproduction of such copies with the intention to profit with the said copies by selling them would infringe the rights of the copyright owner. When we legally acquire a copyrighted material, we only have the right to enjoy and use such copyrighted material on the basis of number of copies we possess. Meaning if we have one copy of a cd, our rights to such copy extends to only to that copy. The right to reproduce such copies belongs to the copyright owner.
The third question illustrates a situation wherein we acquire a file through an infringing activity. I agree with the answer that no liability attaches to the person who possesses the file. The liability attaches only when the person benefitting has knowledge of the infringement and control over the person committing the infringement.
Although there is a question whether the person who has possession of such file legally acquired it, the same should not be in violation of the law. As when a person purchase a certain music file from a person who violated the law, the person who purchased the music file should not be liable. He is an innocent purchaser and the law should pursue not the purchaser but the one who infringed the rights of the copyright owner. The liability should only attach when he knows that the file came from an infringing activity and he has control over the person responsible for such infringement.
The law provides that infringement occurs when one: (1) directly commits an infringement; (2) benefits from an 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; and (3) with knowledge on infringing activity, induces, causes or materially contributes to the infringing conduct of another.[xv]
The law is clear in determining the liability of a person when it comes to infringement. If he directly commits it, has been notified and has control over the person infringing the rights, and when he has taken part to such infringing conduct then such liability would attach. But the mere possession of a music file with not render the person liable.
The fourth question is about the decompilation of our gadgets. Jailbreaking and rooting is not illegal. I agree with the given answer that the act of jailbreaking or rooting our gadgets do not violate the law. The act of jailbreaking and rooting affects only the limitations imposed by the vendor.
In lieu thereto, the act of jailbreaking or rooting attaches with it the consequence of voiding the warranty of our gadgets. Most people tend to disregard the consequences of jailbreaking or rooting their gadgets. Some say that the benefits they will have when their gadgets are decompiled provides better use of their devices and they will only worry about such consequences when time comes that they need to fix them.
The act of downloading pirated materials or committing infringement with a jailbroken phone increases the penalty and damages on the person guilty of infringement. For me this is just and right. As said above the act of jailbreaking or rooting our gadgets will not violate the law. It is too much for a person to decompile the limitations imposed by the vendor then using such gadget to download pirated or commit infringement.
As for the fifth question, due process and rights against infringement are present. The answer provides that mall owners are not automatically penalized. The mall owner is liable for any infringement that the tenants may commit. The mall owner shall be only liable when has knowledge of such infringement, the ability to control the activities of the infringing person and the mall owner has benefitted from such infringement. The mall owner has the right to due process as to give notice first to the tenant and the ample time to act upon that knowledge.
Business practice usually includes in the contract of lease that the lessor may terminate the contract when the lessee engages in conduct that is in violation of the law or in violation of the contract. Some also include that the lessor is not liable for any illegal activity as long as the lessor did not participate to the illegal activity. There are many ways wherein the mall owner may escape liability in case the lessee pursues an act in violation of the law. In connection, the answer provided gives the mall owner the right to notify his tenant and is given time to act to such activity in addition to other means that the mall owner may pursue.
Finally, is it legal for the intellectual property office (IPO) to visit businesses to conduct searches based on reports, information, and complaints? I agree with the answer that the IPO may visit establishments based on reports and complaints.
As provided for by law, the director general and deputies director general can (d) conduct visits during reasonable hours to establishments and businesses engaging in activities violating intellectual property rights and provisions of RA 10372 based on report, information or complaint received by the intellectual property office.[xvi]
The law is clear as long as there is a report, information or complaint the IPO office can conduct searches to businesses. The question which may be raised here is, what will be the reasonable time to conduct the search? I am of the belief that the reasonable time as stated by law is during business hours such as the time of opening of the business until the closing of the same, or even outside business hours as when the consent of the business owner is had and there are witnesses present during the search.
I also agree that when it comes to search and seizure it is a different story. The law mandates that before a search and seizure may be conducted there must be a valid search warrant. Let us be reminded that even lessees have the right to be secured within their premises they occupy and such right may not be disregarded just because of reports or complaints. As I have learned, any evidence acquired through an invalid search and seizure is inadmissible in evidence and shall be considered as a fruit of a poisonous tree. When the search and seizure is illegal the evidences acquired through such activity will also be treated as illegal.
A warrant wouldn’t be required 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. The law states that, the director general and deputies director general can (c) undertake enforcement functions supported by concerned agencies such as the Philippines National Police, the national Bureau of Investigation, the Bureau of Customs, the Optical media Board, and the local government units, among others.[xvii]
Let us be mindful that the right to unreasonable searches and seizure is protected by law but let us also remember that there are certain government agencies that may conduct searches and seizure on their own right. Let us tackle about criminal procedure, particularly about arrest without a warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) when an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.[xviii] The law also provides that, search incidental to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.[xix]
When a person is lawfully arrested then the search in connection with such arrest is legal and any evidence acquired thereto can be used as evidence. The same may be said to the search and seizure that may be conducted by the Bureau of Customs or the Optical Media Board.
The FAQ and answers issued by Malacańang aims to give clarifications to some present questions that may be raised regarding RA 10372. I am of the opinion that the FAQ and answers will stand for the moment, but I believe that there will be a lot more questions that will be raised in the future. For now, I am convinced that this issuance of Malacańang is accurate.
Everyone has a right to protect, we must respect not just ours but that of others as well.
[xv] Sec. 22, RA 10372.
[xvi] Sec. 7, RA 10372.
[xvii] Sec. 2, RA 10372.
[xviii] Sec.5, Rule 113, Rules of Court
[xix] Sec. 13, Rule 126, Rules of Court
DISCLAIMER: This blog is not made by a lawyer. It is not intended to give advice nor establish any attorney-client relationship with any person. This is made to comply with the requirements for Technology and the law subject.