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Just half a century ago, the term “piracy” would refer to a crime committed in high seas by attacking or seizing a vessel. But with the advent of information technology, the term acquired a very different meaning. Although the image of skulls and crossbones or Captain Jack Sparrow engaged in a swordfight still comes to mind – thanks to Hollywood – the concept of piracy in the new millennium applies mainly to copyright infringement.

Piracy is never explicitly defined under the Philippine laws. But its meaning may be deducted by reading the Penal Provisions of RA 9239 or the Optical Media Act. Section 19 states:

a. Imprisonment of at least three (3) years but not more than six (6) years, and a fine of not less than Five Hundred thousand pesos (Php 500,000.00) but not exceeding One Million five hundred thousand pesos (Php 1,500,000.00), at the discretion of the Court, shall be imposed on any person, natural or juridical, who shall:

1. Engage in the importation, exportation, acquisition, sale or distribution of, or possess or operate manufacturing equipment, parts and accessories without the necessary licenses from the OMB;

2. Engage in the mastering, manufacture, replication, importation or exportation of optical media without the necessary license from the OMB;

3. By himself, or through another, cause the mastering, manufacture or replication of any intellectual property in optical media intended for commercial profit or pecuniary gain without authority or consent of the owner thereof;

4. Engage in the Mastering, manufacture, or replication of optical media without affixing or installing in the resulting products the SID Code, and/or such other codes prescribed, assigned and authorized by the OMB. The absence of the codes prescribed, assigned and authorized by the OMB in any optical media shall be prima facie evidence that said optical media are in violation of this Act;

5. Engage in the mastering, manufacture, or replication of optical media using, affixing or installing in the resulting products false SID or other codes. The presence of false or unauthorized codes shall be prima facie evidence that said optical media are in violation of this act;

6. Engage in the mastering, manufacture, or replication of optical media using, affixing or installing in the resulting products false SID or other codes that have been assigned by the OMB to another person, or, having been assigned and authorized said codes by the OMB, allow or authorize another person, establishment or entity to use, affix or install such codes in the latter’s products;

The abovementioned acts, though the law does not expressly say so, may be interpreted as constituting piracy.

The Optical Media Act is relatively a new law, which took effect only in 2004. Prior to it, a similar law was already in effect which is PD 1987 or an Act Creating the Videogram Regulatory Board. But since PD 1987 was enacted way back before software became commercially available and accessible, its provisions were deemed insufficient to combat piracy. Hence, the promulgation of RA 9239.

The Optical Media Act aims to strengthen the existing intellectual property rights laws. However, emphasis must also be given to the simple fact that piracy, like prostitution, pornography or gambling, cannot be eradicated completely. That is a hopeless cause.

Two things should be highlighted to have a better understanding of the situation. First is the technology. Its advancement has made possible the transfer of information in unimaginable ways. In fact, optical media is destined to become obsolete in the next 10 years. This is the inevitable. CD’s will suffer the same fate as that of cassette tapes. In this scenario, piracy, by legal definition, will become non existent since its meaning was only deducted from the present law that prohibits the illegal manufacture of optical media. But the demise of optical media will not eradicate piracy. It will just be resurrected in some other form.

Second, which is the more important thing, is the social implication of piracy. In a myopic perspective, piracy is just a mere unauthorized manufacture, replication, sale, and distribution of works. Hence, a violation of intellectual property rights. But in a broader point of view, piracy is a social phenomenon that is related to other important issues. It is in the former’s perspective that anti piracy laws are founded. The declaration of the State’s policy under Section 2 of the Optical Media Act illustrates this point. It states,

“It is hereby declared to be the policy of the State to ensure the protection and promotion of intellectual property rights. The unregulated mastering, manufacture, replication, importation and exportation of optical media in all forms is inimical to economic growth and public interest. Towards this end, the State shall institute the means to regulate the manufacture, mastering, replication, importation and exportation of optical media.”

The problem with the provision or the whole Act for this matter is that it started with a wrong assumption. The premise that “The unregulated mastering, manufacture, replication…of optical media in all forms is inimical to economic growth and public interest” may have been supported by figures of the total losses of the entertainment industry due to piracy and the negative perception it creates across the continent. Apparently, these are the reasons for enacting such law. But our lawmakers missed out on something much more important. That is, the Philippines, whether they like it or not, directly benefits from the phenomenon.

This brings me to the point raised earlier that piracy is more than an act of unauthorized replication and distribution of works, but a social phenomenon related to other issues. First is the issue of unemployment. It is quite obvious that the selling of pirated CD’s and DVD’s gives livelihood to thousands of poor Filipinos. Had they have better jobs, which by the way the government ought to provide and ensure its citizens, they would not resort to pirating CD’s and DVD’s. Considering the unemployment rate today, the government should be very thankful that these people found ways to earn a living without resorting to crime.

It is ironic how former Optical Media Board chairman, Edu Manzano arrogantly branded these people criminals when all they wanted is to earn a living to have a decent meal at least three times a day. As de Conrado Quiros rightly pointed, “It’s not a matter of preference, it’s a matter of survival.” [1] Taking away their source of income without providing for another one is tantamount to killing them. Now that’s immoral; that’s the greater crime.

Philippine Daily Inquirer writer Eric Caruncho made a curious observation on the bootleg trade in Quiapo. He said, “…a mere five years of the bootleg trade have given the area what decades of development planning by the city government have not: a veneer of prosperity. [2]” If the government cannot provide its citizens a decent job, then it should better leave alone those people trying to make a decent living.

Aside from unemployment, another issue related to piracy is education. If one would carefully observe, majority of computers in this country use pirated software. That means, majority of our citizens acquired/are acquiring knowledge in information technology through the use of pirated software. If not for the pirated Windows office, we would still be using the typewriter, or the acetate and the overhead projector for our presentation. Going after the people selling or buying pirated software is like going after the very things that enable us to connect to the modern world. The absence of pirated software means no more internet, no more Friendster and Facebook, no more PlayStation, no more Windows. Filipinos would be imprisoned in the walls of ignorance, left alone by the rest of the world.

As regards to DVD’s, Quiapo has more titles to offer than the classy record bars and video shops found in huge malls. The titles vary from the mainstream cinema to the classics and independent. Film buffs can now enjoy the works of the masters like Akira Kurosawa, Francois Truffaut, Godard and even other lesser known but great filmmakers around the world. Hollywood classics are also available together with blockbusters. As Caruncho observed, “The sheer diversity of bootleg products is staggering: there are stalls specializing in anime, film classics, concert videos and music films, telenovelas, and of course, porn.” You won’t find a great selection like this anywhere in Manila except in Quiapo.

Why is this important? Because it provides an alternative to the mainstream cinema that we are accustomed to. We got used to watching blockbuster movies and teen flicks from Hollywood. Our taste has been limited to these formulaic movies that we become unaware that some of the greatest films in history are produced not by Hollywood, whose primary focus is commercialization, but by geniuses from other countries. Worse, some of us have become indifferent to this fact. Hence, our local producers tend to follow the same formula.

The availability of classic movies will open our minds and might inspire and challenge our filmmakers to be more creative. Caruncho was probably right in saying that “…the next generation of Filipino filmmakers is, very likely, receiving the bulk of their education in cinema from bootleg DVDs, rather than from film school or Mowelfund or the occasional embassy screening as used to be the case…these movie geeks could show us something tomorrow that we’ve never seen before. [3]

So, if this is the case – if the Philippines directly benefits from piracy, or if the phenomenon serves the national interest, what about the losses suffered by the recording industry and the artists? By way of analogy we could say that another person’s loss is another person’s gain. In the case of piracy, the loss of 20th Century Fox or Warner Bros. means livelihood for our poor Muslim brothers and the loss of Bill Gates is paving the way for the education of an entire nation.

The government is now in a dilemma: Who should the government protect, the artists and the industry or the poor pirated CD vendors? Which is more important, protection of intellectual property or prioritizing national interest?

The argument that the Philippines is a direct beneficiary of piracy is not meant to encourage bootleg trade. The purpose of this paper is to point out the inadequacy of our copyright laws. The root cause of piracy boils down to one thing: economics. People resort to piracy because pirated products are much cheaper than the original. Had the cost of an original Microsoft Office or DVD is only 50 pesos, people will definitely buy the original. Never mind the quality. Bootleg copies have almost the same quality as that of the original. But of course, software and record companies will not drop their prices. That will never happen.

Now, another question arises. Are copyright laws too restrictive in terms of information sharing or distribution? After all, information is supposed to be free or at least shouldn’t cost that much.

Take the case of original equipment manufacturer (OEM) software. OEM software refers to “software that is sold to computer builders and hardware manufacturers (OEMs) in large quantities, for the purpose of bundling with computer hardware. The third-party software that comes with your digital camera, graphics tablet, printer or scanner is an example of OEM software.” [4] The concept serves well the capitalists’ interests. But by restricting the replication or distribution of OEM software, the consumers are clearly relegated on the losing end. Since a separate software is much expensive, people will just resort to piracy.

What our legislators can do is to enact a law that would protect copyrights without sacrificing the people’s freedom to acquire information. It must be noted that piracy is not an inherently immoral act. It is a crime mala prohibita which means that it is only a crime insofar as there is a law existing that prohibits it.

These are the things that our lawmakers have overlooked. It is in this context that our lawmakers should take their cue in addressing the situation. This is the question that our lawmakers should have asked before enacting an anti piracy law. A law that deviates from this context is bound to fail.

Piracy, as a social phenomenon, is too complex. Such is its complexity that it cannot be confined in the narrow legal framework that our lawmakers have in mind. The Optical Media Act is too simple to address such complex phenomenon.

Piracy and the need to acquire CDs, as Jonas Baes explains in an online article, “seems to allude to the contemporary Philippine cultural imaginary. Shaped by a dependence on developed countries in the west, the Philippine cultural imaginary is largely a culture of ‘aspiration’ hinged on the acquisition of technologies that manifest a quality of life. Material acquisition is therefore…a simulation of that quality of life. As the unequal distribution of wealth creates the great cultural divide, it is piracy that tends to bridge the gap with its various impacts to various sectors of Philippine society.” [5]

The rampant piracy clearly illustrates the great cultural divide still prevalent in the society. It also mirrors how capitalism and commercialism has dominated our consciousness.

As Baes wrote, “…its impact on Philippine consumptive behavior is a great challenge to status quo of the global capitalist political economy. Perhaps like the challenge a terrorist group like the Abu Sayyaf poses on the Philippine state. Why the strong move against piracy? Because such unseen force has been backfiring on the capitalist movie and music CD industry, which to begin with is itself exploitative. So at the end of the day I ask the same question asked by Conrado de Quiros in a recent newspaper column: ‘Who are the real—or bigger—pirates, the people who copy the albums and sell them in Quiapo, Divisoria and Virra Mall for less than a hundred bucks, or the recording companies who produce the albums and sell them to the public for more than a hundred bucks?’” [6]

The statement especially that quoted from de Quiros needs further reflection. A mere enactment of the law just for the sake of enactment is stupid and presumptuous. The point here is simple. That is, if the government wants to legally address piracy, it should first understand and see the phenomenon in its various angles – the social, cultural, legal, and commercial – instead of simply starting with a wrong assumption.


Endnotes

[1] Conrado de quiros, Still, Isles of Tortuga, Philippine Daily Inquirer, September 9, 2004

[2] Eric Caruncho, The Quiapo Cinematheque, Sunday Inquirer Magazine June 24, 2007

[3] Caruncho

[4] http://graphicssoft.about.com/od/glossary/f/oemsoftware.-UFl.htm

[5] Jonas Baes. Towards a political economy of the “real”: music piracy and the Philippine cultural imaginary http://polyglot.lss.wisc.edu/mpi/conference/Baes.htm

[6] Baes

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