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COPYRIGHT LAW: ITS APPLICATION and REGULATION IN DIGITAL

MEDIA
Introduction
(Short intro just in case)
Technological advancements in our generation have allowed us to access
every available source of information around the globe with just a touch of a
button. As with any other privilege, technology is fast becoming a tool for
unscrupulous persons/entities to create new ways of circumventing the law
on copyrights. Every gadget, from PCs to cellphones, have easy access to the
internet and other software programs designed to make our lives easier. You
need the time? Check your cellphone. You want to watch your favourite TV
series? You can check it on the internet via your cellphone, tablet, laptop etc.
You want to listen to music, read a book, check the dictionary, or play a
game? All of those things can now be accessed with just a swipe of a finger.
The problem is that technology has also made it easier for criminals to make
money through media piracy via the internet. The internet is a vast array of
networks spread all over the world with domains and hosts ready to be
changed in an instant. It crosses international boundaries and jurisdictions
making lawbreakers much harder to apprehend. And the bigger problem is
that the masses have become very willing participants in the circulation of
illegal data.
These days, an original DVD costs around Php 350.00 to 500.00 each. An
original music CD costs Php 280.00 for local musicians and 450.00 for
international artists. Brand new pocketbooks range from Php 100.00 to
1,000.00 each. Aside from mass media, computer softwares are also the
target of internet piracy. Original installers for operating systems range from
Php 1,000 to 2,000 and other accessory applications also require other
purchases for installers. On the other hand, downloading these from sites
such as UTorrent, Pirate Bay and other illegal downloading sites would cost

you nothing but the internet fees you have to pay in order to download the
sites content. Efforts to eradicate these types of websites have resulted to
public backlash and complaints about how not many people can afford to pay
or buy original copies of the works they are downloading from the internet.
But what about the rights of the creators of these movies, music or books?
How are the copyright owners protected and who gets reprimanded for
participating in the distribution of illegally acquired media?
Implications
(Mae)
APPLICATION
With the heightened use of the internet and easy accessibility of computers
nowadays, several local laws have been enacted to protect the rights of the
copyright owners and the public from copyright abuses in the form of
technology.
Intellectual Property Code (RA No. 8293)
The Intellectual Property Code has been in existence since 1997 but was
amended in 2013 by RA No. 10372 in order to keep up with the changing
dynamics of technology in the country. The said amendment brought about
criticisms from the public due to certain limitations imposed on the purchase
and use of copyrighted material. The government however, clarified the
issues raised in its website 1 by making a compilation of frequently asked
questions.
Issues in the Amendment of the Intellectual Property Code
1 Infographic: FAQs on the amendments to the Intellectual Property Code of the Philippines.
March 11, 2013. Date Accessed: November 7, 2015.
(http://www.gov.ph/2013/03/11/infographic-faqs-on-the-amendments-to-the-intellectualproperty-code-of-the-philippines/)

The issues raised (based on the amendments introduced to the original law)
are the following:
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.

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
didnt commit infringement. But if, for example, you make multiple copies of
the CD to sell, then infringement occurs.

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.

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.

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.

6. Is it legal for the Intellectual Property Office (IPO) to visit businesses to


conduct searches based on reports, information, and complaints?
The IPO may visit establishments based on reports and complaints; this in
itself is constitutional. However, if the IPO intends to perform a search and
seizure, it must comply with constitutional requirements, such as having a
search warrant. A warrant wouldnt be required, however, if the IPO is
accompanied by the Bureau of Customs or the Optical Media Boardtwo
agencies that can perform a search and seizure on their own right without a
warrant (per Republic Act No. 1937 and 9239, respectively).

Fair Use Policy


Under Section 185.1 of the IP Code, the fair use of copyrighted work shall not
be considered as an infringement of copyright.
The fair use of a copyrighted work for criticism, comment, news
reporting,

teaching

including

multiple

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 the computer program to
achieve the inter-operability of an independently created computer
program with other programs may also constitute fair use. In determining
whether the use made of a work in any particular case is fair use, the
factors to be considered shall include:
a) The purpose and character of the use, including whether such use is
of a commercial nature or is for non-profit education purposes;
b) The nature of the copyrighted work;
c) The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
d) The effect of the use upon the potential market for or value of the
copyrighted work.
However, Section 187 limits private reproduction of a published work to only
a single copy for the exclusive use of the person copying it and for purposes
of research and private study. The said provision states as follows:
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.
Moreover, the grant of reproduction does not cover a work of architecture;
and entire book or substantial parts thereof, or musical work in which
graphics form by reprographic means; a compilation of data and other

materials; a computer program except as provided in Section 189; and 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. (Section 187.2)
Despite the backlash the law has received since its amendment, a few
notable additions to the original law have positive implications. These are:
1. The amended IP law gives some exceptions to the use of
copyrighted materials by the

blind, visually- and reading-impaired

persons, provided that such use shall be made on a non-profit basis


and shall indicate the copyright owner and the date of the original
publication; (Section 184 (1)) and
2. Provides not-for-profit libraries or archives the right to make limited
copies of copyrighted works as may be necessary for them to fulfill
their mandate, where before they can only make a single copy; and
such right to make limited copies also extends to the situation where
the work is lost, destroyed or rendered unusable, replace a copy, or to
replace, in the permanent collection of another similar library or
archive, a copy which has been lost, destroyed or rendered unusable
and copies are not available with the publisher. (Section 188.1)
The Optical Media Act of 2003 (RA No. 9239)
Optical media as defined in RA No. 9239 is a storage medium or device in
which information, including sounds and or images or software code, has
been stored, either by mastering and/or replication, which may be accessed
and read using a lens scanning mechanism employing a high intensity light
source such as laser or any such other means as may be developed in the
future. There is also a list of the types of optical media covered by said law
(Schedule C). The most common forms of optical media include CDs, DVDs
and VCDs.

RA No. 9239 specifically targets import, export, acquisition or duplication of


magnetic (optical) media without a license and duplication of any intellectual
property in magnetic media intended for commercial profit or pecuniary gain
without authority or consent of the owner. In simpler terms, the said law
targets piracy and distribution of pirated materials. Under Title V, Rule 1,
businesses and other entities engaged in the importation, exportation,
acquisition, or duplication of magnetic media without a license or duplication
for commercial profit or pecuniary gain without consent of the owner thereof
shall be subjected to civil and criminal actions.
Anti-Camcording Act of 2010 (RA No. 10088)
On July 27, 2009, the Anti-Camcording act was signed into law by then
President Arroyo. The aim was to address the rampant camcording in
cinemas in which the videos taken are then copied and sold to the public for
low prices. Under Section 3 of the said law, the following acts are prohibited:
(a)use or attempt to use an audiovisual recording device to transmit
or make a copy of any performance in an exhibition facility of such
cinematographic film or other audiovisual work or its soundtrack, or
any part thereof;
(b)have in his/her possession, an audiovisual recording device in an
exhibition facility, with the intent of using or attempts to use the
audiovisual recording device to transmit or make a copy of any
performance in the exhibition facility of such cinematographic film or
other audiovisual work or its soundtrack, or any part thereof; or
(c)aid, abet or connive in the commission of the acts prohibited under
this section.
Section 5 of the said law also provides for the presumption of subsistence of
copyright ownership as follows:
Section 5. Presumptions as to the Subsistence of Copyright and/or
Ownership of Copyright. - For purposes of Section 3, copyright shall be

presumed to subsist in the subject cinematographic film or other


audiovisual work or its soundtrack if the accused does not put in issue
the question as to whether copyright subsists therein. However:
(a)where the accused puts such question in issue but does not satisfy
the court that he/she does so in good faith, the presumption as to the
subsistence of copyright herein shall apply, notwithstanding that the
accused puts that question in issue;
(b)where the name of a person appears on copies of the subject
cinematographic film or other audiovisual work or its soundtrack as
made available to the public in such a way as to imply that the person
was the maker thereof and, in the case of a person other than a body
corporate, that name was his/her true name or a name by which
he/she was commonly known, that person shall be presumed to be the
maker thereof and the copyright owner thereof, unless the contrary is
established; and/or
(c)where the accused puts in issue the question of whether copyright
subsists in the subject cinematographic film or other audiovisual work
or its soundtrack, or the ownership of the copyright therein, an affidavit
made in behalf of the copyright owner in which he/she makes
assertions of facts relevant to showing that: (1) copyright subsists in
the work or other subject matter; and/or, as the case may be, (2)
he/she is the owner of the copyright, shall be admitted in evidence and
shall be prima facie proof of the matters stated therein until the
contrary is proved, unless the court requires that oral/testimonial
evidence be adduced to prove those matters.
Furthermore, the defense that the recorded film or soundtrack was used for
private or domestic purposes shall not be appreciated by the courts. The
punishment for offenders of the Anti-Camcording Act includes a fine of PhP
50,000 to PhP 750, 000 (US$ 1,000 to 17,000) and will face imprisonment of
a minimum six months and one day to six years and one day. Individuals who

commit the punishable acts for the purpose of sale, rental or other
commercial distribution shall suffer the penalty in the maximum. Foreign
offenders shall face immediate deportation after payment of the fine and
serving his/her sentence, and will permanently be refused entry to the
Philippines. Offenders who are employees of or hold a seat in government
will perpetually be disqualified from public office, and will forfeit his/her right
to vote and participate in public election for five (5) years.
Pilipinas Anti-Piracy Team (PAPT) and
the Philippine Association of Record Industry (PARI)
According to the latest IDC Global Software Piracy Study, the software piracy
rate in the Philippines remained at 71% in 2004 and 2005. Software piracy
losses increased from US$69 million to US$76 million. In order to fight the
increasing number of pirated software, the National Bureau of Investigation
(NBI), Optical Media Board (OMB), Philippine National Police (PNP) worked
with the Business Software Alliance (BSA) in forming the Pilipinas Anti-Piracy
Team. The group aims to combat software piracy by strictly enforcing the
laws on all businesses and industries regarding the use of original software.
However, this group has only been operating around Southern Luzon, mainly
in Central Visayas.

In 2014, the Philippines, through the efforts of the Philippine Association of


Recording Insdustry (PARI) was successful in shutting down Kickass Torrents
(KAT.ph) which is a torrent site that hosts illegal music downloads. However,
after only a few weeks, the site was up and running with another domain
name (another host country). This event raised the issue on updating the
countrys laws to keep up with changing times in terms of piracy using the
internet. On a positive note, the June 9, 2014 article of Patricia Esteves in the

Philippine Star2 has stated that After two decades, the US has recently
removed the Philippines from its piracy watch list, following significant
reforms put in place by the country.

The Philippines has been consistently on the watch list since 1994 and was
first listed in 1989. Because of its many significant legislative and regulatory
efforts to protect and enforce intellectual property rights, it was finally taken
off the list.

The Cybercrime Prevention Act of 2012 (RA No. 10175)


On September 12, 2012, the Cybercrime Prevention Act was signed into law
despite several complaints and issues raised by the public as to its coverage
and implementation. Its aim was to address the legal issues regarding online
interactions and the internet use in the Philippines. The Cybercrime
Prevention Act of 2012 is the first law in the Philippines which specifically
criminalizes computer crime, which prior to the passage of the law had no
strong legal precedent in Philippine jurisprudence. While laws such as the
Electronic Commerce Act of 2000 (Republic Act No. 8792) regulated certain
computer-related activities, these laws did not provide a legal basis for
criminalizing crimes committed on a computer in general.
Among the cybercrime offenses included in the bill are cybersquatting,
cybersex, child pornography, identity theft, illegal access to data and libel.
In relation to copyright infringement, the Cybercrime Law now punishes
acquiring of any digital copy of any copyrighted material with a fine ranging
2 http://www.philstar.com/entertainment/2014/06/09/1332610/fight-vs-illegaldownloading-continues

from Php 200,000 to 500,000 and six to 20 years in prison. But now that any
crime under the Revised Penal Code a list of general punishable acts is
now considered a cybercrime if done using a computer or the internet, the
prior laws pertaining to intellectual rights and piracy are given more support
for enforcement.
Can ordinary internet users be made liable for copyright
infringement?