Has the Palace given accurate explanations regarding the amendments of R.A. 8293, otherwise known as the Intellectual Property Code of the Philippines?

by elzr22

To be accurate in something as in speech or action, what is spoken or an action’s content must be free from error or defect. A type of standard or model is followed with fine caution. Here, the author shall dare to look into the accuracy in speech and action of the Palace when it addressed the public in the advent of a new law, Republic Act 10372.

The passage in 2012 of Republic Act 10372, amending certain provisions of the Intellectual Property Code of the Philippines provides an unusual avenue for the Palace to apprise the public of its thoughts on the new features of the amendatory law by publicly issuing six (6) Frequently Asked Questions (FAQs) posted in the government Official Gazette website. 1 The questions were addressed this way:

1. “Am I still allowed to import books, DVDs, and CDs from abroad?

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.”

The government clearly refers to the expunged provisions of Republic Act 8293, they are, Articles 190.1 and 190.2 dealing with the importation of copyright articles for personal purposes. It is found in Part IV, in the 8th Chapter of the Intellectual Property Code.

To be frank, the deletion of said provisions could lead a person into charting a gray territory which for most part could result in one or several contrasting interpretations of the amendatory law, vis-à-vis, the rest of R.A. 8293.  At any rate, I wish to put a modest emphasis on the possible dangers of removing the articles which the author considers exceptions on importation.

The term ‘importation’ or the ‘act of importing’ per se means bringing in of merchandise, commodities, workers, etc. from a foreign country for use, sale, processing, re-export, or services. It also means to introduce from one use, connection, or relation into another. 2

In trade relations among countries, goods that are coming from a sending country to a receiving or host country are imposed customs duties and fees by the latter’s government. Depending on the bulk, class and category of goods entering at ports determines the amount of money to be paid. This is not to mention big corporations, aside from inter-state negotiations, engaged in bilateral trade relations with a State to mutually enable both of them to specialize further in the production of those goods in which they have a comparative advantage. Usually the context of these trade engagements is mainly to create profit and mark up financial gains.

This is not the same in importation cases specified in the old Section 190 of R.A. 8293, Importation for Personal Purposes, which, together with the old Sections 190.1 and 190.2, is deleted in its entirety.

In its amendment, R.A. 10372 renumbered Section 190.3 of R.A. 8293 in Section 15, to wit:

“SEC. 190. Importation and Exportation of Infringing Materials. – Subject to the approval of the Secretary of Finance, the Commissioner of the 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).”

Indeed, what Congress did is an example of an amendment by deletion. This is a fundamental principle in statutory construction which indicates that the legislature intended to change the meaning of the statute, for the presumptions is that the legislature would not have made the deletion had the intention been not to effect a change in its meaning. The amended statute, R.A. 10372, should accordingly be given a construction different from that previous to its amendment. 3  (See Topacio Nueno vs. Angeles, 76 Phil. 12 (1946); Niere vs. Court of First Instance of Negros Occ., G.R. No. 30324, Nov. 29, 1973, 54 SCRA 165)

Furthermore, this amendment speaks in an entirely different language. A person does not have to be a mad scientist to get the point that you should never claim a right to use, much less a right to ownership over a thing that doesn’t belong to you. In no uncertain terms, using a copyrighted material without the prior authority from the owner to use it constitutes a crime of infringement.

To me, ultimately, this is not the issue.

What about lawful acquisition of a thing, a book for instance, through purchase from a bookshop in Manhattan, New York? Do I need to secure authority from the copyright owner of the book in order to avoid legal confrontation with him in the future? What about an ugly situation with the Customs officials to whom I refuse to pay my dues for the book?

I find this troublesome.

Very succinctly, the changes in the law simply tell us that in effect the goods (books, cds and dvds) entering the jurisdiction of the Philippines, whether or not applied for commercial ends, have to be laid pertinent customs duties and tariffs – the bulk, class or category – depending. And that the term importation pertaining to goods, whatever they are, must be taken to mean in its simple and generic sense, without any exception to the use or consumption of such goods, even for personal purposes.

2. “Is the reproduction of copyrighted material for personal purposes punishable by this law?

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.”

This statement failed to make a legal qualification. Let us look at Section 187 of R.A. 8293. It reads:

“x x x

Sec. 187. Reproduction of Published Work. –

187.1 Notwithstanding the provision of Section 177, and subject to the provisions of Subsection 187.2, the private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work. x x x.

Meanwhile, the Palace was correct, at least, in pointing out the limit in the number of copies set by law when reproducing a copyrighted material, and for which it is contemplated. But Section 187.1 must be read together in light of Section 187.2 of which reads:

x x x

187.2. The permission granted under Subsection 187.1 shall not extend to the reproduction of:

(a) A work of architecture in form of building or other construction;

(b) An entire book, or a substantial past thereof, or of a musical work in which graphics form by reprographic means;

(c) A compilation of data and other materials;

(d) A computer program except as provided in Section 189; and

(e) Any work in cases where reproduction would unreasonably conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author. x x x. ”

The foregoing are absolute exceptions, expressly mentioned which implies the exclusion of all others. Expressio Unius Est Exclusion Alterius. The matter of reproduction of a copyright material as was answered by the Palace can mean an entire book (Section 187.2 of R.A. 8293), a published work (Section 187). There is no necessity however to belabor this since such book is part of the statutory enumeration prohibiting such reproduction.

The lapse that the Palace committed only sows confusion to the public.

3. “Is the possession of, for example, a music file procured through an infringing activity a violation of this law?

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.”

The following are conditions where one can be held liable for copyright infringement under R.A. 10372:

x x x  

Sec. 22. Section 216 of Republic Act No. 8293 is hereby amended 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 the knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.

x x x.” Bold supplied

In addition, it must be remembered in criminal prosecution in the Philippines, the quantum of proof required to secure a conviction must be guilt beyond reasonable doubt. Copyright, Patent, and Trademark infringement is a crime punishable in Section 217 of R.A. 8293. For an infringer to be criminally liable thereunder the commission of an infringing act must be direct on his part, receives benefits from the infringing act and has personal knowledge of the infringing activity.

On this score, I submit.

4. “Is jailbreaking or rooting[*] my phone or device illegal?

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.

(Jailbreaking (for iOS) and rooting (for Android) are examples of decompilation, the process of removing the vendor-imposed limitations of tablets, mobile devices and other electronic gadgets. Though not illegal, decompilation may be in violation of your operating system’s terms of use, and therefore may void your warranty.)”

Firstly, what do these terms, ‘jailbreaking’ and ‘rooting’ mean?

Jailbreaking is the process of removing the limitations put in place by a device’s manufacturer. Using Apple iOS devices as a case in point, this process of jailbreaking removes the restrictions Apple puts in place, allowing you to install third-party software from outside the app store.

Simply speaking, when you have successfully jailbroken a device by being able to detect a security weakness, it will be easier to use a software or program application that the manufacturer does not approve.

Rooting on the other hand is the process of gaining “root access” to a device. After rooting, you can grant specific applications access to root permissions, allowing them to do almost anything they want to do with the operating system. For example, an application with root permissions could uninstall system applications, install low-level system binaries, revoke permissions installed apps require, and do other crazy things. Essentially, rooting gets around an operating system’s security architecture. 4

As a mobile phone and computer notebook owner myself, I have the liberty to enjoy these devices as I please. So long as the objective of my jailbreaking or rooting of my gadgets, assuming I’ll try it in the futurein, is not infringing to trespass the copyright of a company, I am protected by law. This is found in Section 12 of R.A. 10372. It states:

x x x

SEC. 12. Section 185.1. of Republic Act No. 8293 is hereby amended to read as follows:

‘SEC. 185. Fair Use of a Copyrighted Work. – 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of a computer program to achieve the interoperability of an independently created computer program with other programs may also constitute fair use under the criteria established by this section, to the extent that such decompilation is done for the purpose of obtaining the information necessary to achieve such interoperability.’

x x x.”

5. “Are mall owners liable for infringement activities of their tenants?

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.”

As a reiteration of Sec. 22 of R.A. 10372, acts of infringement can hold a person criminally liable when three conditions are present: there is a direct involvement in the commission of an infringing activity, there is some benefit that redounded to him due to carrying out an infringing act, and the person involved in such activity, with knowledge of the same, materially contributes into the perpetration of the illegal conduct.

Before the eyes of the law, mall owners remain innocent until such fact of guilt is proven otherwise.

Although I support the statement of the Palace, we Filipinos know that this exist only in theory. Look around you. You’ll see the answer.

END NOTES

[1] http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/

[2] http://dictionary.reference.com/browse/import

[3]http://books.google.com.ph/books?id=_tJxoRdQthUC&pg=PA102&lpg=PA102&dq=statutory+construction+amendment+by+deletion&source=bl&ots=48qsw-I70y&sig=8l7ovUtbx9kzHy0fellQ_1kg8_s&hl=en&sa=X&ei=CM-lUZrtMoO2kgXd8oGQDg&ved=0CC0Q6AEwAA#v=onepage&q=statutory%20construction%20amendment%20by%20deletion&f=false

[4] http://www.howtogeek.com/135663/htg-explains-whats-the-difference-between-jailbreaking-rooting-and-unlocking/

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