[Mirror] Ricaza, Michelle Marie

Summer 2011

Airport Body Scanners? A controversial security measure.

According to an article I read, by this time next year, body scanners will be used as an added security measure in Ninoy Aquino International Airport. By the very nature of body scanners, it is expected that a lot of people will voice out their opinions regarding its implementation.

In the first place, what is a body scanner?

A full-body scanner is a device that creates an image of a person’s nude body through their clothing to look for hidden objects without physically removing their clothes or making physical contact (http://en.wikipedia.org/wiki/Full_body_scanner). By its very definition, it creates an image of a person’s nude body. Its definition itself raises a privacy issue that should very well be addressed before it can be implemented here in the Philippines.

The implementation of such is unconstitutional as it violates Section 2 of Article III of the Constitution. Section 2 states that “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable.. xxx”.

The effect of body scanners is that a person may be searched for anything within his person without his consent. This may be construed as an unreasonable search which is protected under our Constitution. The law explicitly states that this right is inviolable regardless of the purpose. And I don’t think that the ratio behind the implementation of body scanners is enough reason to violate one of the fundamental rights of a person which is the right to be secure in their persons.

A person’s right to privacy, which is related to his right against unreasonable searches, should also be addressed as it may very well be violated in the implementation of such body scanners. The image produced by these scanners reveals too much detail as to the subject’s body which should not have been made available to anyone without the person’s consent. The image of the human body is a private matter and should never be made available to anyone, let alone be stored in a database somewhere.

The images produced by the body scanners are stored in a database. How sure are we that the database is safe and will not be posted in the internet? I also read an article stating that in a Florida airport, 35,000 naked scans were recorded by officers and distributed on the internet (http://legalift.wordpress.com/2011/02/25/eesc-condemns-body-scanners-as-a-breach-of-fundamental-rights/). One of the things we have to consider possible if body scanners are indeed implemented here in the Philippines.

These are just a few things we have to consider before we should spend a lot of money to acquire these body-scanners. Do the advantages really outweigh the disadvantages? We must always be mindful of the things we are willing to give up for a sense of security.

Copyright Infringement on Works of Art displayed in public

We often see private sculptures, artworks and other artistic expressions displayed in public spaces intended for public viewing and appreciation. These works are of course subject to copyright protection from the moment of its creation. And due to these works’ public set-up, we sometimes see people take pictures of themselves with these works in the background. Or some people just take pictures of these works because they are artistic and beautiful. Therein lies the issue of copyright infringement. Is there copyright infringement when these pictures are posted without proper attribution to the creator of the artistic expressions? Is there a provision under the Intellectual Property Law which protects or punishes this action?

I don’t think there is copyright infringement when these artworks are photographed and then posted online or somewhere else. Even if they are private works, when an artist agrees to create an artwork and have it situated in a public space, he then gives up rights that he would otherwise have as the copyright owner (http://www.artright.co.za/artbusiness/legal/copyright/copyright-public-sculpture/). The very essence of having the artwork situated in public is for the public to see its beauty. As such, appreciation of its beauty comes with the territory. It is therefore prone to being photographed. Technically, there is infringement but by agreeing to its public setting, it is excused because the artist acknowledges the fact that it might be photographed for whatever purpose.

There is no copyright infringement if it falls within the purview of the fair use doctrine covered by Section 185 of the Intellectual Property Law. Under the fair use doctrine, there is no copyright infringement if the following factors are present:

(1) The purpose and character of the use, including whether such use if of a commercial nature or is for non-profit education purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion uses 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. (Section 185, Republic Act No. 8293)

If these factors are present, there is no copyright infringement. Hence, a simple photograph of the work and posting it on facebook falls within the purview of the fair use doctrine. There is no violation of the copyright law.

However, it is a different story if the work is photographed and was used to trade in the artwork itself for pure commercial gain. Here, there is copyright infringement as it violates Section 177.5 of the Intellectual Property Law. This provision states that:

“Subject to the provisions of this law, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts: xxx Public display of the original or a copy of the work;”

Under this provision, only the creator has the exclusive right to carry out the public display of the copy of the work. The photograph of the artwork is considered a copy of the work. Prior consent of the creator is needed.

In summary, since the location of these artworks is in public, the artist gives up certain rights which he would have if not for the public setting of his artwork. However, this is not without exception. The prior consent of the artist is still necessary if the artwork is used for financial gain.

To make things simpler, if the photograph of the artwork is not used for financial gain and purely for non-profitable reasons, there is no copyright infringement and consent of the artist is not needed. However, if profit is involved, the consent of the artist is necessary absent of which constitutes copyright infringement.

These artworks are protected under copyright. However, these artists were willing to give up certain rights so that they can share their works with the public. We must learn to appreciate the beauty of these works and must give credit where credit is due.

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