[Mirror] Tagayuna, Carlo

Summer 2011


Body Scanners

This topic is with regard to the proposed importation of body scanners to be used in our airports as a security measure.

To begin with, 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.(Wikipedia)

Recently published in the Philippine Daily Inquirer was regarding the said importation of this Full-Body scanners to be used in our airports. http://globalnation.inquirer.net/news/breakingnews/view/20110127-316982/Full-body-scanners-at-NAIA-mulled it was said that “By next year, travelers at the Ninoy Aquino International Airport may find themselves in a literally revealing and potentially humiliating situation.”

With this in mind, We, as travelers or users of the Ninoy Aquino International Airport may be subjected to such full body scan. I find some issues and benefits regarding this measure to be implemented in our country, among which are: PRO’s 1) it may reduce the risk of terrorist attacks in our airports, 2) a better security measure, and 3) eliminating the risk of bringing in and out illegal substances or other things that may be carried and hidden behind our clothes. On the other hand, these are the CON’s 1) it may be subject to constitutional issues specifically the BILL of RIGHTS in Article III sec.2 on illegal search and seizures, 2) leakage of its database to the general public of pictures taken from said scanners.

My stand regarding this issue is that this should not be implemented in our country on the basis that it violates the fundamental law of our land, the Philippine Constitution specifically the provisions on search and seizures. The usage of this scanners are illegal and the things seized may be considered illegally seized as in accordance with the plain-view doctrine.

plain view doctrine n. the rule that a law enforcement officer may make a search and seizure without obtaining a search warrant if evidence of criminal activity or the product of a crime can be seen without entry or search. Example: a policeman stops a motorist for a minor traffic violation and can see in the car a pistol or a marijuana plant on the back seat, giving him “reasonable cause” to enter the vehicle to make a search. http://legal-dictionary.thefreedictionary.com/Plain+View+Doctrine.

To further explain my opinion, in the plain-view doctrine, there should be no exertion of extra effort to see or obtain the thing to be seized meaning it should be seen with the naked eye. if this is the case, the use of the scanners would not coincide with the doctrine and is clearly violative of the provisions on search and seizures.

Again, this is not a legal opinion but a mere personal statement done which may or may not be correct and would be of proper discussion in the proper forum and the proper time. what was stated above may be considered before implementation of the said plans of the government and the usage of public funds.


Commissioned Art works, Can we Really take pictures of them?

Nowadays, as we walk along the busy streets of the metro, or even in some provinces here in our country, we seem to stumble across some works of art or sculptures found either in intersections, parks, plazas, in front of buildings, or even buildings themselves are works of art. These structures or sculptures tend to become a landmark for some or a point of reference for others. For most of us, we tend to pose in front of them and take pictures then brag about “been there”, “seen that”, but is it really legal?

This question was given to us by my law professor which really makes me wonder if is it legal, if not, then, how come no one forbids us to take pictures of these works of art or even posing in front of them?

Let us now look into how taking pictures or posing in front of these said sculptures become illegal per se.

OWNERSHIP OF COPYRIGHT

Sec. 178. Rules on Copyright Ownership. – Copyright ownership shall be governed by the following rules:

178.1. Subject to the provisions of this section, in the case of original literary and artistic works, copyright shall belong to the author of the work;

178.2. In the case of works of joint authorship, the co-authors shall be the original owners of the copyright and in the absence of agreement, their rights shall be governed by the rules on co-ownership. If, however, a work of joint authorship consists of parts that can be used separately and the author of each part can be identified, the author of each part shall be the original owner of the copyright in the part that he has created;

178.3. In the case of work created by an author during and in the course of his employment, the copyright shall belong to:

(a) The employee, if the creation of the object of copyright is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer.

(b) The employer, if the work is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary.

178.4. In the case of a work-commissioned by a person other than an employer of the author and who pays for it and the work is made in pursuance of the commission, the person who so commissioned the work shall have ownership of work, but the copyright thereto shall remain with the creator, unless there is a written stipulation to the contrary;

The above cited provisions on copyright mus be correlated to the following provisions in order for us to complete my answer to the given question:

LIMITATIONS ON COPYRIGHT

Sec. 184. Limitations on Copyright. –

184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:

(a) the recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society; (Sec. 10(1), P. D. No. 49)

(b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned; (Sec. 11, Third Par., P. D. No. 49)

(c) The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated; (Sec. 11, P. D. No. 49)

(d) The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose; (Sec. 12, P. D. No. 49)

(e) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned;

(f) The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work;

(g) The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;

(h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use;

(i) The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations; (n)

(j) Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and

(k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.

184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder’s legitimate interest.

Now, to answer the big question, with reference to the given provisions of law regarding the subject matter, i can definitely conclude that the works of art (sculptures) displayed/located/placed in public places may legally used in our pictures as a back ground without any infringement of the copyright of the owner.

First of all, most of these works are commissioned by mostly the government or some private individuals or firms who wish to commemorate a certain individual or event, the ownership of which, in the absence of any stipulation, contract or agreement belongs to the maker or the person who has done the work.

Secondly, relying on the provision of section 184 up to 184.2, it allows the use of the work in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right of the holder’s legitimate interest.

Last, with this provisions in mind, the taking of pictures of these sculptures, as long as it would not be used commercially or for any other purpose which may prejudice the author of the work may be done. in any other way, posing in front of them as a souvenir does not harm nor prejudice the author for it will be for the personal consumption and satisfaction of the person posing in front of them.It is not intended by those people to do harm to the maker but the acts are purely private and as a remembrance of the place where they have been.

I may be correct or wrong in this view. The only true way to know is when there would be a decided case by the Supreme Court on the subject matter. But at this time, i respect any other view regarding the subject matter.

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