WHAT SHOULD BE ITS DIRECTION?
Philippine copyright law is enshrined in the
Intellectual Property Code of the Philippines, officially known as Republic Act
No. 8293. The law is partly based on United States copyright law and the
principles of the Berne Convention for the Protection of Literary and Artistic
Works. Unlike many other copyright laws, Philippine copyright laws also protect
patents, trademarks, and other forms of intellectual property.[1]
Copyright is vested upon the author or creator from
the time of creation irrespective of their “mode or form of expression,” as
well as their content, quality and purpose. Existing copyright laws primarily
cover tangible or printed literary and artistic works.
In the Philippines, the right to information is
guaranteed under the 1987 Philippine Constitution[2]
(Bill of Rights, Art. III, Sec. 7). The right of scientists, inventors, artist
and gifted citizens to their intellectual property creation are likewise
protected by Art. XIV, Sec. 13 of the 1987 Constitution.
On 8 December 2010, House Bill No. 3841
“Copyright Bill” [3]was filed
in the House of Representatives. The Copyright Bill proposes amendments to the
Intellectual Property Code of the Philippines (“IP Code”), specifically with
regard to copyright provisions. It also proposes certain changes to the current
structure of the Intellectual Property Office of the Philippines (“IPOPHL”).The
Copyright Bill seeks to cover the current gaps in the provisions of the IP Code
with regard to copyright and to bolster copyright protection and enforcement.
It is the consolidation of three House Bills pending in the 15th Congress:
House Bill Nos. 47, 267, and 2041. House Bill Nos. 47 and 267 both seek to
address the problems brought about by the Internet: rampant unauthorized
reproduction of copyrighted works. House Bill No. 2041 sought an expansion of
the concept of fair use: exemption from securing permission for reproduction of
the work in a specialized format for the blind or visually-impaired. The
consolidated bill adds several other provisions, ultimately with the goal to
secure stronger rights for artists and authors.[4]
The Bill being mentioned above proposes the
amendment and addition of several new terms in the list of definitions. These
include: 1)“Communication to the public” or “communicate to the public” now
means “any Communication to the public, including broadcasting, rebroadcasting, re-transmitting by cable, broadcasting and re-transmitting by satellite and
includes the making of a work available to the public by wire or wireless means
in such a way that members of the public may access these works from a place
and time individually chosen by them.”; 2) “Reproduction” is redefined to mean “the
making of one (1) or more copies, temporary or permanent, in whole or in part,
of a work or a sound recording in any manner or form without prejudice to the
provisions of Section 185 of this Act.”; 3) It defines new terms such as:
“Technological measure” and “Rights Management Information.” “Technological
Measures” are “any technology, device, or component that, in the normal course
of its operation, restricts acts in respect of a work, performance or sound
recording, which are not authorized by the authors, performers or producers of
sound recordings concerned or permitted by law.”
The importance of adding and amending said definitions, states that the
new definitions seek to address problems encountered with the protection of
works found in new media such as electronic formats, online streaming audio and
video, e-books, social networking, etc.
It can be noted also that the proposed Bill amends the fair use
provisions of the Intellectual Property Code. The word “multiple” was changed
to “limited number of” copies for classroom use, research, and similar
purposes. Theword “decompilation” is also expounded upon. Additional requirement
was highlighted. According to the bill it was “done for the purpose of
obtaining the information necessary to achieve inter-operability between
computer programs.”
On the other hand,the bill also extends fair use to reproduction and
distribution of published works in specialized formats exclusively for the use
of the blind with a requirement that “such copies must be distributed on a
non-profit basis and that the copyright owner and date of publication must be
indicated in such reproduction. Also, the reproduction must not be in conflict
with the normal exploitation of the work and does not prejudice the legitimate
interests of the copyright owner. Distribution is also allowed, even if the
specialized copies are made abroad, provided the foregoing requirements are
fulfilled.”[5]
Good news was highlighted to the field of librarianship and its
professionals. The amendments to the provisions on the power of
libraries to make copies of works for the purpose of preservation and to the
provisions on deposit of works were clearly depicted. Thus, the Bill no longer
limits non-profit libraries and archives to make a single copy but allows such
institutions to make a limited number of copies as needed to fulfill their
mandate to preserve original works. In addition, the provision on depositing
works with the National Library and the Supreme Court Library is minimally
changed by providing that only works of law are deposited with the Supreme
Court Library. Also, the receiving institution will issue a notice of deposit
instead of the former certificate of deposit.
The grant of power to the Commissioner of
Customs to regulate interstate movement of works was also depicted. The present
bill simplifies the rule on interstate movement of works by deleting the old
provisions regarding importation of works. It grants the Commissioner of
Customs the power to make Rules and Regulations, subject to the approval of the
Secretary of Finance, to prevent the importation and exportation of prohibited
goods or articles under the IP Code.
Moral right of authors was also given high importance by extending the
moral right of authors “to require that authorship of the works be attributed
to him” and that his name “be indicated in a prominent way on the copies and in
connection with the public use of his work” to a perpetual term. Thus, the
moral right secured in Sec. 193.1 of the IP Code is no longer limited to 50
years after the author’s death. To be able to attain of their main purposes for
amending the Copyright Bill, the proponent redefine and expand copyright
infringement. The Bill provides that copyright infringement is done by a person
who: 1) “directly commits an infringement; 2) benefits financially 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, and; and 3)
purposely and with intent to enable induce infringement by another person, and
materially contributes to it.”
Said Bill also gives the copyright owner the option to choose, instead
of actual damages and profits. Statutory damages for all infringements involved
in an action a sum equal to the filing fee but not less than PhP 50,000 but the
choice must be made before final judgment is rendered. The Court may consider
the nature and purpose of the infringing act, the flagrancy of the
infringement, existence of bad faith, the need to deter such acts, any loss
that the plaintiff has suffered or is likely to suffer because of the
infringement, and any benefit received by the defendant because of the
infringement.
What is good here is that said Bill will give Courts power to order
seizure and impounding of any article which may serve as evidence in Court
proceedings, in accordance to the Rules on Search and Seizure involving
violations intellectual property rights to be issued by the Supreme Court. In
addition, all of these do not preclude the filing of an independent suit for
relief by the injured party by way of damages, injunction, or otherwise.
With regards to the amendment regarding the responsibility of schools
and universities, the Bill highlighted their mandate to adopt policies which
would govern the use and creation of intellectual property. These policies
would safeguard the intellectual creations of the learning institution and its
employees and may also be developed in relation to licensing agreements entered
into by the learning institution with a collective licensing organization.”
If signed someday by the President of the land, the amendments mentioned
at the Copyright Bill are highly commendable. They will answer the need of our
country in facing the challenges given by the virtual and electronic
environment where the use of copyrighted content demands innovative and
relevant guidelines.
Senate Bill 2842[6],
passed on third and final reading last week, calls for the creation of a
dedicated copyright office, to be called the Bureau of Copyright, which, if
this measure becomes law, will come on top of the existing agency tasked with
overseeing intellectual property rights protection – the IP Office of the
Philippines.[7]
Said office will handle policy formulation, rule-making, adjudication,
research and education.” Likewise, through this Bill, it will expand the scope
of what could be considered as infringing activities. By inserting new
provisions on technological protection measures and rights management, made in
compliance with the World Intellectual Property Organization Copyright Treaty
and the WIPO Performances and Phonograms Treaty, it can be noted that the new
Bill prepared the country to face the challenge of global information.
I conclude this blog by saying; the Congress in general is on the right
track highlighting amendments that will comply with the demands of globally
competitive world. It can be noted that
copyright protection is a basic pillar of any capitalist society, creating a
legal framework that allows and encourages entrepreneurship by extending legal
protection to industrious individuals and organizations for proprietary,
intangible assets. Though understanding the importance of copyright laws can
dissuade would-be thieves from attempting to profit from others' creations, and
is a must for all businesses using proprietary images, audio works or written
materials. Thus the Philippine government has a right direction towards
attaining the challenge of copyright issues.
[1]Republic
Act No. 8293". Congress of the Philippines.June 6, 1997.
http://www.congress.gov.ph/download/ra_10/RA08293.pdf
[2] 1987 Philippine Constitution
[3]House
Bill No. 3841-Copyright Bill
[4]Macalalad,
Alpheus.2011. Proposed Amendments to Copyright Provisions of the Intellectual
Property Code.
[5]
House Bill No. 3841-Copyright Bill
[6]Senate
Bill 2842
[7]Estavillo,
Maricel. 2011. Intellectual Property
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