"WHAT WOULD BE THE PRACTICAL IMPLICATION OF THE AMENDMENT TO THE IPL CODE ESPECIALLY IN THE PERSPECTIVE OF THE AMENDMENTS IN THE RA 1037”

Practicality of a law speaks of a rule or regulation that would be beneficial to all and not just to a certain office or branch of the government. It is to save time and resources of the government thereby increasing efficiency and productivity in how the government renders service the people.

The Act amending some of the provisions of the Intellectual Property Act of the Philippines was signed by President Aquino into Law on February 28, 2013 and took effect fifteen days after its publication.[i]

POWERS AND FUNCTIONS OF THE INTELLECTUAL PROPERTY OFFICE

One of the amendments is the creation of a new office that is called the Bureau of Copyright and Other Related Rights[ii]. It was created in addition to the six bureaus the Intellectual Property Office of the Philippines already has; wherein the Director General and Deputy Directors Generals are given additional powers to undertake enforcement functions supported by concerned agencies such as the Philippine National Police, the National Bureau of investigation, the Bureau of Customs, the Optical Media Board and local government units.

The creation of a new bureau is beneficial to copyright owners whose materials are frequently violated. The office handles a specialized function that focuses more on protecting and enforcing IP rights. To illustrate, with the rising cost of legal education unscrupulous persons take advantage of the opportunity and mass produce copyrighted materials selling them to the public to the detriment of the owners of such materials. This practice deprives copyright owners to profits which rightfully belong to them for creating such materials. The violators unjustly enrich themselves, in contravention to Article 19 of the Civil Code, which states that:

“Every person must, in the exercise of his rights and in performance of his duties, act with justice, give everyone his due, and observe honesty and good faith[iii].”

Having a specialized department handling copyright laws allows synergy of efforts, ensuring maximum results, both protecting owners and apprehending violators. The newly created office serves as a spring board for the enforcement of copyright laws and can spearhead the efforts of other branches of government in stopping copyright violators[iv].

Another effect of such creation in the IP industry particularly to the copyright owners is ensuring that the laws are followed. It warrants that owners’ rights are respected. It provides an environment conducive for the further development of ideas and literature because owners’ rights are protected. The protection extends to provide economic protection because of the strict implementation of copyright laws that ensures that no unauthorized person benefits economically from the ideas of others[v]. This will foster an environment where other creators are enticed with a reasonable return on their intellectual creations. The State in enforcing copyright laws by promoting the sound implementation of IP laws and zealously stopping copyright infringement will guarantee a continuous stream of intellectual creations.

Another important amendment is providing visitorial powers during reasonable hours to establishments and businesses that take part in activities that violate IP rights[vi]. This too is beneficial to the copyright owners at the same time making the regulatory body more efficient in doing their work. It provides for an immediate detection of blatant copyright violation because it allows seizures of copyrighted materials falling under the “plain-view” doctrine of warrantless searches and seizures[vii]. It serves as a deterrent for future violators because it empowers law enforcement agents to enter private properties suspected of violating copyright laws, making violators more susceptible to apprehension.

Although these enforcement and visitorial powers were questioned by the consumers and business owners because the IPO officials can enter or visit any establishment or business that is suspected to be violating IP rights founded simply on a report, information or complaint from any person received by it, the amendment does not violate any constitutional right of a person. The visitorial powers conferred to the IPO does not partake of a warrantless search because it does not give an IPO official a blanket authority to search every nook and cranny of the place, but merely to visit a place suspected of violating copyright laws. Moreover, the amendment highlights the fact that seizures are only allowed when materials qualify under the “In-plain view” doctrine.

 In the past, this new bureau was only a small unit in the National Library and its function are as follows:

·         The Bureau exercises original jurisdiction in resolving disputes that relate to licensing which includes the author’s right to public performance or other matters relating to communication of his work.

·         The Bureau accepts, reviews and decide on application for the accreditation of collective management organizations or similar entities.

·         They do studies and research in the field of copyright and other related rights

·         They give other copyright and related rights services and charge reasonable fees for them.

Creating an entire bureau, under the IPO, will send the message that the State is formally recognizing the rights of copy right owners by ensuring that an entity entrusted with the enforcement of IP laws, has a bureau that handles Copy Right Law.

DESIGNATION OF SOCIETIES

In the old IP law, copyright owners can designate to a society the authority to enforce their economic rights[viii]. The amending law however required that such society entrusted with the enforcement of their economic rights be accredited with the IPO[ix]. This added requirement of accreditation streamlines the overall enforcement of copyright laws because it prevents the scenario where different societies have conflicting or even overlapping claims in enforcing the economic rights of those they represent. Being accredited with the IPO brings order in the entire industry because the need for accreditation entails the need for registration of various copyrighted materials. In registration, the IPO can monitor the society that represents each copyright owner. The legal and judicial practicality is the prevention of forum-shopping and the unnecessary duplication of suits.

REPROGRAPHIC REPRODUCTION OF LIBRARIES

The amendment changed the restriction found in Sec 188.1 of the Old law where only a single copy can be reprographically reproduced. The amended law changed the restriction from “Single” to “limited.”[x] This has a very practical implication because it ensures that libraries will have a sufficient number, albeit limited, number of copies instead of a very restricting “one” copy. It affirms the very function of a library as being the repository of written works, necessarily entailing that it should have a sufficient amount of copies for its users who could simultaneously use the same material.

IMPORTATION FOR PERSONAL USE

The amendment completely repealed Sec. 190.1 and 190.2 of the old IP law[xi]. It abolished the limitation of the number of copies that a person can bring into the country, for personal use. It now allows an unlimited number of copies to be imported without securing a prior authorization from the author. The removal of the restriction has allowed returning citizens from abroad to bring in literature and other copyrighted materials without fear of any prosecution. People are allowed to import unlimited books, DVDs and CDs from abroad provided these were legally purchased[xii]. This amendment removed the limitation the old rule has of three copies when bringing legitimately procured copies of copyrighted items in the country. This change in policy is geared towards globalization wherein intellectual creations from other nations is accessible en masse and not just a solitary copy. The only prohibition is the importation of pirated or infringed materials.

Today, the transfer of music from one device to another has become an issue since the availability of free downloaded materials in the internet and the economic rights of the copyright owner has been badly affected. The amendment does not punish a person who lawfully acquires a CD by purchasing it then transferring it to a portable device for personal use. Infringement occurs when the person who lawfully acquires the CD makes multiple copies to sell and make money out of the transferred materials. According to the IPOPHL publication in the Official Gazette:

“The possession of, let’s say, a music file procured through an infringing activity is not a violation of law. There can only be infringement if it is proven that the person benefiting from the music file has knowledge of the infringement, and the power and ability to control the person committing the infringement[xiii]. “

FAIRUSE, DECOMPILATION, JAILBREAKING

The amendment elucidates that jailbreaking or rooting is not illegal in nature[xiv]. According to the IPOPHL publication downloading pirated material, or committing infringement with a “jailbroken” phone increases the penalty and damages imposed on the person found guilty of infringement[xv]. The act of “Jailbreaking” is considered merely as an aggravating circumstance only and not a separate offense. Furthermore, it is only considered as such when there has been a clear copy right infringement case. In the advent of globalization and interconnectedness, Jailbreaking allows the users a wider array of system integration of different system platforms.  

“Jailbreaking and rooting are examples of decompilation, the process of removing the vendor-imposed limitations of tablets, mobile devices and other electronic gadgets[xvi]. Though not illegal, decompilation may be in violation of your operating system’s terms of use, and therefore may void a person’s warranty.” The salient point of nullifying the warranty is fair enough trade-off for the choice of a user.

Jailbreaking or rooting procedures are more often than not found in Malls and commercial establishment which raises the question of whether mall owners are liable for infringement activities of their tenants, the IPOPHL answered in the negative in another publication the IPOPHL said that “Mall owners are not automatically penalized for the infringing acts of their tenants. When a mall owner or lessor find 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 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.”[xvii] The persuasive opinion of the IPO in interpreting the liabilities in this accept paves the way for an unburned act of commerce because it allows Mall operators to focus more on their commercial enterprise, instead of constantly monitoring their tenants.

As stated earlier the IPOPHL officers are given enforcement and visitorial powers to visit businesses to conduct searches based on reports, information and complaints; this is constitutional. Nonetheless the officers of the IPOPHL must comply with the constitutional requirement if they intend to perform a search and seizure. One requirement would be having a search warrant. Although a warrant is not a requirement if the officers of the IPOPHL are accompanied by the Bureau of Customs or the Optical Media Board. (Republic Act 1937 and 9239)[xviii]

 Mostly the amendments are in favour of the IP rights owner and not the consumers. However, one of the amendments favour the blind, visually reading impaired persons, the provision gives special fair use exemption of the non-commercial reproduction of works for use by blind, visually and reading impaired persons, provided the materials indicate the copyright owner and the date of the original publication[xix].

MORAL RIGHTS OF COPY RIGHT OWNERS

The amendment extended one of the Moral Rights of copyright owners, particularly the “Right of Attribution.”[xx] Prior to the amendment, the Moral rights of an author: Attribution, Alteration, Distortion, and Restrain, will last during his lifetime and up to fifty years after his death[xxi]. In the amendment, it increased the right of Attribution in perpetuity even after the death, while making the other Moral rights coterminous with his economic rights[xxii]. This is beneficial to the author for his work will forever be attributed to him, solidifying his place in history.

CONCLUSION

The various amendments in the Old IP code only strengthens the IP laws in the country. Intellectual Property, as its name suggest, is property that can be the subject of ownership. The strict protection of IP rights coupled with the liberalized acceptance of current practices, made the Old law more responsive and dynamic to the ever expanding world of Intellectual Property.

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[i] AN ACT AMENDING CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8293, OTHERWISE KNOWN AS THE “INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES”, AND FOR OTHER PURPOSES. Republic Act 10372.  Sec. 32. February 28, 2013.

[ii] Id. Sec 6

[iii] NEW CIVIL CODE OF THE PHILIPPINES. Art 19.

[iv] Supra. Note 1. Sec 7

[v] Id. Sec. 26

[vi] Id. Sec. 2

[vii] People v. Musa. 217 SCRA 597

[viii] An act prescribing the intellectual property code and establishing the intellectual property office, providing for its powers and functions, and for other purpose. [INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES]. Republic Act No. 8293. June 6, 1997

[ix] Supra. Note 1. Sec. 10

[x] Id. Sec. 13

[xi] Id. Sec. 14

[xii] FAQ on the Amendment to the Intellectual Property Code of the Philippines. Official Gazzette. March 8, 2013. [Avaialable at www.gov. ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-Philippines/ Last Accessed May 26, 2014]

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Supra. Note 1. Sec. 12

[xvii] Supra. Note 12

[xviii] Id.

[xix] Supra. Note 1. Sec. 11

[xx] Supra. Note 8. Sec. 193.1

[xxi] Id. Sec. 198.1

[xxii] Supra. Note 1. Sec 17