Sabado, Marso 9, 2013

DIRECTION OF PHILIPPINE COPYRIGHT REFORM


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 Watch

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