Is Downloading Illegal?

Is Downloading Illegal?

By Mikaelo Jaime Reyes

I.                    Piracy in the Philippines

       

        The Philipines was on the “priority watch list” of the International Intellectual Property Alliance, an industry lobby group from the US. On 2006, the Philippines was dropped from the list.  Although dropped, movie pirates still have a surprising influence (International Intellectual Property Alliance 2005).

        The piracy market for DVDs, software, movie, and music is a boon to a number of varying groups of people. One group consists of producers, traders, and distributors of bootlegged media that earn a reasonable income. One estimate is that more than 1,000 people in the Philippines earn a living by being part of the supply chain for pirated media (The Culture of Piracy in the Philippines).

II.                  Anti-Counterfeiting Trade Agreement (ACTA)

                                ACTA is a multinational treaty for the purpose of establishing international                                                      standards for intellectual property rights enforcement. The agreement aims to                                              establish an international legal framework for targeting counterfeit goods, generic                                               medicines and copyright infringement on the Internet, and would create a new                                                 governing body outside existing forums.

                                The final contents of the treaty was published on 15 April 2011.

                                RIGHTS OF HOLDERS:                                

                                                Section 2: Civil Enforcement

-          to issue an order against a party to desist from an infringement

-          require in civil procedure pirated copyright goods and counterfeit trademark goods to be destroyed

-          may ask (alleged) infringers to provide information on the goods it "controls

                                                Article 23: Criminal Offences

-          wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale" should be punishable under criminal law.

III.               Opposition to ACTA

       

        An open letter signed by many organizations, states that "the current draft of ACTA would profoundly restrict the fundamental rights and freedoms of European citizens, most notably the freedom of expression and communication privacy (Free Knowledge Institute, 2012).  The glaring error on the law is that it will punish even those persons who would be found watching a alleged infringed material on youtube although the person is not aware that the material is infringed. The 1987 Constitution Section 4  states that “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances”

IV.                Stop Online Piracy Act (SOPA)

        The law establishes a two-step process for intellectual property-rights holders to seek relief if they have been harmed by a site dedicated to infringement. The rights holder must first notify, in writing, related payment facilitators and ad networks of the identity of the website, who, in turn, must then forward that notification and suspend services to that identified website, unless that site provides a counter notification explaining how it is not in violation (Stop Online Piracy Act, 2011).

Proponents of the legislation state it will protect the intellectual-property market and corresponding industry, jobs and revenue, and is necessary to bolster enforcement of copyright laws, especially against foreign-owned and operated websites. Claiming flaws in present laws that do not cover foreign-owned and operated websites, and citing examples of "active promotion of rogue websites" by U.S. search engines, proponents assert stronger enforcement tools are needed (Gruenwald, 2011).

V.                  Three Stike Law

                                On receipt of a complaint from a copyright holder or representative, HADOPI                                                                may initiate a 'three-strike' procedure:

                                (1) An email message is sent to the offending internet access subscriber,                                           derived from the IP address involved in the claim. The email specifies the                                        time of the claim but neither the object of the claim nor the identity of the                                               claimant.

                                The ISP is then required to monitor the subject internet connection. In addition,                                           the internet access subscriber is invited to install a filter on his internet                                                     connection.

                                If, in the 6 months following the first step, a repeat offense is suspected by the                                                   copyright holder, his representative, the ISP or HADOPI, the second step of the                                              procedure is invoked.

                                (2) A certified letter is sent to the offending internet access subscriber with                                   similar content to the originating email message.

                                In the event that the offender fails to comply during the year following the                                                      reception of the certified letter, and upon accusation of repeated offenses by the                                          copyright holder, a representative, the ISP or HADOPI, the third step of the                                                           procedure is invoked.

                                (3) The ISP is required to suspend internet access for the offending internet                                    connection, that which is the subject of the claim, for a specified period of                                       from two months to one year.

                                The internet access subscriber is blacklisted and other ISPs are prohibited from                                              providing an internet connection to the blacklisted subscriber. The service                                                      suspension  does not, however, interrupt billing, and the offending subscriber is                                     liable to meet any charges or costs resulting from the service termination.

VI.                Philippine Bill on Online Piracy – Anti Online Piracy Act of 2012

       

        Under Section to oh HB 6187, the following acts are prohibited:

a.       To make in any manner not authorized by the copyright owner, copies of music recordings or films, in complete or substantially complete form, by any means, including but not limited to uploading, downloading or streaming.

b.       To offer goods or services, or provide access in a manner not authorized by the copyright owner, copies of music recordings or films, in complete or substantially complete form, by any means, including but not limited to uploading, downloading or streaming.

REFERENCES:

Retrieved last September  14, 2012, The Culture of Piracy in the Philippines, http://www.asian-edition.org/piracyinthephilippines.pdf

Intellectual Property Alliance. 2005 Special Report. PHILIPPINES. New York. 2005.

Retrieved last September 14, 2012. Free Knowledge Institute. http://freeknowledge.eu/acta-a-global-threat-to-freedoms-open-letter

H.R.3261 – Stop Online Piracy Act; House Judiciary Committee; October 26, 2011

Juliana Gruenwald (2011-12-08). "Critics of Online-Piracy Bills Release Their Own Draft Legislation". NationalJournal.

Is Fan Art Legal in the Philippines?

By: Mikaelo Jaime C. Reyes

I.                    INTRODUCTION

Fan Art is defined as an “art of any form, usually electronic or drawn free hand, that uses characters or settings from popular television show, novel, cartoon, anime, or movie as the subject.”¹ A fan art is an unsolicited artwork that is based on a character or property that the artist did not create. Fan art is usually produced by inexperienced artists to express their admiration for the original creator and an inexperienced artist to practice and improve their drawing skills.

II.                 LEGALITY OF FAN ART

Fan art is a violation of the original owner’s copyright. Under Section 177 of Republic Act 8293, commonly known as Intellectual Property Code of the Philippines, the copyright or economic rights shall consist of the exclusive right to carry out, authorize, prevent the following acts,

a.       Reproduction of the work or substantial portion of the work

b.      Dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work,

c.       First public distribution of the original and each copy of the work by sale or other forms of transfer of ownership,

d.      Rental of the original or a copy of the audio

e.       Public display of the original or a copy of the work

f.       Public performance

g.       Other communication to the public

A fan art would fall squarely on items: a, b, or g since a fan art usually depicts the copy of the original work of the creator including style, color, shading, expression. It is significant to consider that the right to reproduce, transform or communicate to the public the copyrighted work is exclusively granted to the owner of the copyright.

III.               DERIVATIVE WORK

May fan art be considered a derivative work therefore protected as a new work? Under Section 173 of  Republic Act 8293, commonly known as Intellectual Property Code of the Philippines, derivative shall also be protected by copyright:

a.       Dramatizations, translations, adaptations, abridgements, arrangements, and other alterations of literary or artistic works

b.      Collections of literary, scholarly or artistic works, and compilation of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.  

Derivative works will be protected and considered new provided that the new work shall not affect any subsisting copyright.

If the fan art is created not for profit but merely to express admiration, then there would be no copyright infringement since the law requires that to be considered a new work it should not affect any subsisting copyright.

IV.              FAIR USE

Copyright grants the holder certain exclusive rights to their intellectual property, but the common culture has a right to fair use of a work. Section 185 of Republic Act 8293 explicitly states that use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. But we can examine fan fiction under the four factors for fair use outlined in the statute:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

V.                 CONCLUSION

In conclusion, it’s up to each artist to analyze risks of making and selling items that borrow from others’ brands, characters, or imagery, and make the best decisions possible for their businesses.

REFERENCE:

1.      Urban Dictionary, Retrieved on August 30, 2012, http://www.urbandictionary.com/define.php?term=fanart

2.      Davis, Lauren, Are Fan Fiction and Fan Art Legal?, Retrieved on August 30, 2012, http://io9.com/5933976/are-fan-fiction-and-fan-art-legal

Appraisal of the Data Privacy Act of 2011

Is it a Good or Bad Law?

Under Section 2, the State recognizes the:

(a) fundamental human right of privacy of communication;

(b) the vital role of information and communications technology in nation building;

(c) inherent obligation to ensure that personal information in the information and communications systems in the government and in the private sector are secured and protected

The passing of this bill will help foster the growth the call center industry in the Philippines since the proposed bill is based on the standards set by European Parliament and is aligned with the Asia Pacific Economic Cooperation Information Privacy Framework.[1]

The bill will result in the increase of foreign investments related to IT-BPOs. As of to date the salaries of the employees of the BPO amount to 14% of the 2012 government spending.[2]

With the passage of this bill, we are more likely to attract more IT-BPO investors. Raymond Lacdao, director for Business Processing Association of the Philippines, expects the industry to earn $25 billion in 2016 and employ 1.3 million employees. If the target is reached, Lacdao said this will result in 3.2 million indirect employees and a nine percent growth in GDP.[3]

Now ask yourself, is this a good or bad law? I think the answer is obvious.

Is this law perfect?

I.

 The bill would have a significant impact to our GDP however it is not without flaws. The most glaring flaw is that it fails to address protection against personal information and sensitive personal information of processed by personal information controllers and processors located outside the Philippines and do not maintain an office, branch or agency in the Phil and neither complies with any of the provisions stated under Section 5.

For the protection to apply the following elements must be present:

a.     Processing of all types of personal information

b.    Any natural or juridicial person involved in personal information processing

c.     Establishment outside of the Philippines may be subjected provided that:

a.     Establishment uses equipment that are located in the Philippines or;

b.    Maintain an office, branch, or agency

d.    complies with extra-territorial application

Extraterritorial application requires that for the protection to apply the act done or practice engaged in and outside the Philippines, any of the following should be present:

a.     personal information about a Philippine citizen or a resident

b.    entity has link with the Philippines

c.     other similar instances

II.

Under Section 9-A which discusses the accountability of the personal information controller. The personal information controller is responsible under its control or custody, including information that have been transferred to a third party for processing makes him accountable for complying with the requirements of the bill and provide level of protection while the information is being processed by a third party. However, the identity of the third party shall not be made known to the data subject unless a request by the data subject is made. The requirement of data subject consent is wrong since under the Rights of a Data Subject, he should be made aware of the personal information controller. All the more should the data subject be made aware of the third party processing the personal or sensitive personal information since errors would most likely arise from the third party who is not made accountable under Section 9-A.[4]

Unintended Consequences?

Article 3 Section 3 of the 1987 Constitution states that “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

Under Section 31, in cases of breach of penalty where such breach has resulted in the information being published or reported by media shall make the reporter, writer president, manager and editor-in-chief liable and be imprisoned and penalized. [5]

Should Section 31 be declared null and void for being unconstitutional since it abridges the freedom of the press?

How does this affect me and the general public?

This bill will cause an increase in Foreign Direct Investments in the IT-BPO industry which will in turn increase GDP of the Philippines. Presently, the Philippines is experiencing a surprising economic surge because of two factors: (a) OFW remittances (b) the call center industry. “These jobs are considered well - paid -- enough for workers to afford, after several years' employment, down payments on condominiums in Manila's booming property market.”⁶

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[1] http://www.interaksyon.com/article/35612/bpap-says-data-privacy-act-will-boost-it-bpo-sector

[2] http://www.gmanetwork.com/news/story/264130/economy/business/bpo-salaries-amount-to-14-percent-of-2012-phl-govt-spending

[3] http://www.sunstar.com.ph/cebu/business/2012/07/12/bpo-growth-ph-coming-non-voice-sector-industry-official-231643

[4] http://www.senate.gov.ph/lisdata/1218710275!.pdf

[5] http://businessmirror.com.ph/home/opinion/28114-senate-bill-clamps-down-on-press-freedom

⁶http://edition.cnn.com/2012/07/12/world/asia/philippines-surprise-surge/index.html?iref=obinsite