SY 2012-2013, First Semester
- Data Privacy Bill: How it affects Juan Dela Cruz
- “Legality of Fan Art in the Philippines” a misnomer.
- What is Legality of Downloading Online Materials in the Philippines? – Juan DeLa Cruz
Gone are the days when an information, whether privilege or not can only be found on paper or to go back further in time, in stones. Scientific advancement transformed the life of every living person on earth. The entire content of the voluminous Supreme Court Reports Annotated can now be found in a single compact disk (cd). However, with the advent of technological advancement comes our obsolete and dilapidated laws that serve as a deterrent to to mitigate the ill-effects of technological advancement. The law has failed to cope with the modern times. The sanctity of the privacy of communication and correspondence is now a misnomer or at the very least, had now been deeply compromised. It now begs the question, where were our policymakers during this period of transformation? The scarcity of our privacy laws given this modern age truly reflect our Filipino character that we are short-sighted. We never anticipate or to be more precise, we refuse to anticipate the consequences of the events that are unfolding right before our very own eyes. There is a Filipino saying “isang kahig isang tuka”, we live on a day to day basis, already satisfied with the joys and benefits of the present time. Comes now the Data Protection Bill which just preceded the Anti-Photo and Video Voyeurism Act of 2009. The computer age has long started dating back to the early 90’s and the use of the internet or the world wide web had long been prevalent in the Philippines. If not for the big scandals that shocked the entire nation which could very well be put as one of the many ill-effects of technological advancement as far as communication is concerned, these laws would not have come into existence. We are not saying that a man could foresee the future nor are we demanding that our policymakers be fortune tellers, nevertheless, we could mitigate the ill-effects or catastrophic consequences of this technological advancement in the future if only we are thinking of it in the present.
The Data Privacy Bill have long been needed in this age, and in the Philippine context, especially with an alarming number of cybercrimes in our country. The state is at a loss ti impose its might on the perpetrator if these cybercrimes for lack of laws or is toothless because of its dilapidated laws. There is no doubt that this Data Privacy Bill if later on would be enacted as a law will have a great impact in our society. For one, this will greatly discouraged those “black hackers” from hacking the inofrmation of certain individual which he hold so dear without his consent. This will further augment our privacy laws which no less than Article III Section 2 and 3 of the Constitution deemed sacrosanct.
Criticism on the Data Privacy Bill
Section 5 . Extraterritorial Application
This Act applies to an act done or practice or practice engaged in and outside the Philippines by an entity
I have no criticism with regard to this provision, although I have one question. Are we in a position to impelement our laws outside our territorial jurisdiction? One can safely assume that this is more than a valid question. Recent events are still fresh in our memories when the Chinese hacked most of the Philippine Government’s websites which I assume contains information that is vital to national security or privelege information. The Philippines did only one thing, that is, it pleaded that it should respect its sovereignty. Is the Philppines ready to implement this law considering that we belong to the so called category of “weak states”?
Intelligence and passion knows no limitations when it comes to fan art. A fan does not think of the intricacies of our copyright laws when he create his own artwork. Juan Dela Cruz would not even think of the grave consequences of such act , all he thinks of is how he will express his joy for the movie that likes or how he will support his favorite marvel superheroes character/characters. An ordinary Filipino would not even attempt to think of the grave consequences of such act if ever he’s work will constitute infringement. I would even bet all my marbles that Juan Dela Cruz does not know that such law exists. From the perspective of a fan, there is no intention to profit from such work, all he simply wants is to express his joy or support or sometimes disgust.
Why should we bother Juan Dela Cruz with the complexities of our copyright laws when lawyers and sometimes judges themselves cannot pinpoint the exact demarcating line between what is prohibited and what is not as far as fan art is concerned.
In an article written by Stepehen Paul in http://www.legalzoom.com he defined fan art as is artwork that is based on a character, costume, collage, item, or story that was created by someone other than the artist, such as a fan, from which the word is derived from. The term, while it can apply to art done by fans of characters from books, is usually used to refer to art derived from visual media such as comics, movies or video games. In addition to traditional paintings and drawings, fan artists may also create web banners, avatars, or web-based animations, as well as photo collages, posters, and artistic representation of movie/show/book quotes.
Our Copyright laws does not even provided a clear cut definition of when one’s derivative work would constitute infringement or when it is not. It will be decided on a case by case basis. There is no hard and fast rule with regard to this matter,
From the viewpoint of an ordinary Filipino, or in my case to be more safe, I wouldn’t even dare to venture into the unchartered waters of the legalities of my artwork. The Legality of Fan Art in the Philipiines is a misnomer as far as Juan Dela Cruz is concerned. Why would I bother with these alien terminologies when my supposed to be upright Senator is even guilty of plagiarism?
This is why I bother ladies and gentleman. According to one of my professors enacting a law is one thing, enforcing it is entirely another. In theory one can say that there was a violation of our copyright laws but if one does not enforce his rights in a court of law it does not mean that no violation is committed. In the absence of any clear cut distinctions under our copyright laws as to when one’s work will constitute infringement or not and in the absence of any jurisprudence regarding the matter, the only yardstick that I could suggest is to know the intention of the author, nothing more nothing less.
Downloading per se is not illegal but downloading a copyrighted material is illegal. The Philippines does not have enough laws as to regulate the use of the world wide web.Although in the absence of specific laws regulating the internet, one could be held liable under Republic Act 8293 otherwise known as the Intellectual Property Code of the Philippines.
The internet gives easy access to a wide range of downloadable music, videos, software and documents. Let us take a look on how one may benefit from these legally and without risking becoming a victim of grooming, bullying, identity theft or viruses.
With respect to peer-to-peer file sharing there is no law prohibiting it. Peer-to-peer file sharing is when data that has been uploaded/downloaded is made available for free to other individuals over the internet. As the internet is used by millions of people, file sharing creates a super library of files available to anyone who is online.File sharing copyright-protected material is just as serious as illegal downloading as you are helping to distribute illegally downloaded data.In order to use file sharing sites you normally have to download special software. Often this will leave an icon on the desktop of your PC. If you think your child may be downloading files illegally or without your permission, check the desktop for any icons you don’t recognise.
The Acta Treaty
The controversial treaty that is yet to be signed by the community of nations. ACTA is an international trade agreement that will help countries work together to tackle more effectively large-scale Intellectual Property Rights violations. In a country like the Philippines wherein the specter of martial law is stilla round the corner, a treaty like the Acta that would in one way curtail the freedom of expression of the populace will be met with strong opposition if the people will not be informed properly as to its nature and legal consequences.
However, the treaty is already being viewed as one that will curtail the freedom of expression and will regulate the use of the internet or the world wide web. Acta does not contain any provision that provide for the cutting of internet access or for monitoring of the internet. Acta is not about checking private laptops or smart phones at borders.Let us take into account the case of the European Union (EU)/ The EU Customs Regulation, in force since 2003 and taken onboard by Acta, includes a clause that exempts travellers from checks if the infringing goods are not part of large scale traffic. So Acta is really not about individual citizens. People will can continue to use their online social networks just as they do today, no change. The respect of fundamental rights such as privacy, freedom of expression and data protection is expressively mentioned as a basic principle of the agreement. Acta will not change the role Internet Service Providers (ISPs), as is often claimed. There is already now an existing Memorandum of Understanding between right holders and internet platforms to fight against the selling of counterfeit goods on the internet. And already now are service providers, for example YouTube, checking clips for copyright and IPRs violations. This, however, does not mean that YouTube is no longer allowing the upload of clips all together.
ACTA does not favour industry over fundamental rights
Both data protection/privacy and the protection of Intellectual Property are recognised as fundamental rights by the Universal Declaration of Humar Rights. Acta strikes a fair balance between the interests of the parties concerned, including citizens, consumers, civil society or business. Acta guarantees all safeguards and exemptions provided by existing or Filipino norms, such as fundamental rights, privacy, freedom of speech, etc.
ACTA does not prevent people from sharing content online
Acta is fighting against piracy; piracy should not be confused with sharing content. Sharing content is only illegal when the content is illegal. Acta does not define what is legal or illegal content. It only provides the tools (civil, criminal or administrative) to react against illegal content as it is defined today by national legislation.