SY 2012-2013, First Semester
- On Law about Privacy Rights
- Legality of Fan Art in the Philippines
- On Laws re: Copyright Infringement
In view of the advent growth of technology where information about individuals can be easily obtained by anyone for unlawful purposes, the legislators deemed it fit to strengthen the protection of the fundamental right to privacy of its citizenry.
Recently passed by the Senate on its third reading is the Data Privacy Act or Senate Bill No. 2965 which aims to protect personal information in the information and communication systems of the public and private sectors alike.
The law provides that personal, privileged, and sensitive personal information, as defined therein, must be collected, stored and protected with utmost confidentiality and with proper safeguards. Such data must be processed lawfully, meaning it must be obtained with the consent of the individual and must be used only for its intended purpose.
It also burdens the personal information controller, such as natural or juridical person/s, who controls the collection and processing of information to employ measures against accidental or illegal misuse, destruction, disclosure, alteration, or even illegal processing. The Senate added the Principle of Accountability wherein the controller is also responsible for information that had been transferred to a third party for processing. An individual must also be designated to ensure compliance with the Act.
Interestingly, the rights of data subject are enumerated therein. In addition, the subject may dispute, suspend, withdraw, block or destroy incomplete, outdated, false, and unlawfully obtained information subject to indemnification for damages.
Following are considered punishable under the Act: unauthorized processing, access due to negligence, improper disposal, wrongful processing, unauthorized access or intentional breach, malicious disclosure, and unauthorized disclosure. Any act provided above would merit a penalty of imprisonment or fine, or both.
Indeed, given the stringent standards, the law shall ensure the protection of right to privacy. However, these same rules must be executed with caution. As correctly pointed out by Senator Angara, “We want to strike the right balance by ensuring that the proposed measure does not overreach its intentions to improve data privacy in the country. The policies that protect our information should not be the same policies that stop us from putting this information to good use.” This law should not prove as a hindrance to companies to efficiently carry out their operations.
While at the same time safeguarding our right to privacy and communication, the bill was enacted promising boost in our Information Technology – Business Processing Outsourcing industry.
Expecting high results, Senator Angara proposed the law with the intent to bring the country to international standards of privacy protection. According to the proponent, Act was based heavily from Directive 95/46/EC of the European Parliament and Council. It is also in adherence with the Asia Pacific Economic Cooperation (APEC) Information Privacy Framework standards.
Given the feasible revenue-generating effect of this law and the possible increase of employment in the country, the Business Processing Association of the Philippines (BPAP) is keeping its hopes up for the signing of this Act into law by the President.
Legality of Fan Art in the Philippines
As defined by Wikipedia, Fan art 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 the United States, the fan art would be considered as derivative work and its display and distribution would be unlawful. However, American copyright law allows for the production, display and distribution of derivative works if they fall under a fair use exemption. A court would look at all relevant facts and circumstances to determine whether a particular use qualifies as fair use; a multi-pronged rubric for this decision involves evaluating the amount and substantiality of the original appropriated, the transformative nature of the derivative work
In view of this, infringement will be decided by the court on a case to case basis.
In Philippine settings, however, we have no law expressly penalizing the fan art. However, if would be categorized as a derivative work, under the Intellectual Property of the Philippines, then laws on derivative works would govern such art. Given this, such works shall be protected as new works subject to the exception provided for in Sec 173.2 of the aforementioned law.
- The Intellectual Property Code of the Philippines
Indeed, online piracy has been rampant all around the globe that the lawmakers deem fit to protect intellectual property rights of the people. In the United States, the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) have been proposed to penalize those who will be violating copyright infringement by blocking websites that facilitate said crime. For example, if you’re running a blogsite and there is a link to a site that you didn’t know is accused of infringement, your site maybe removed and blocked from all search-engine results.
Last year, Congress has also filed a bill similar to SOPA and PIPA that would also penalize those who will offer online services that promote piracy, as well as the mere “provision of a link or aggregated links to other sites.
Under the proposed measure of House Bill No. 6187, those who are found guilty of online piracy will be charged two years in prison and a fine ranging from P50,000 to P150,000 for the first offense; three-year imprisonment and a fine ranging from P150,000 to P300,000 for the second offense; and a 5-year imprisonment with a fine from P300,000 to P1 million for the third offense.
Yes, this law maybe for the protection of the copyright owners, but the question that may be asked is this: Will the passage of the bills constitute a violation of constitutional rights of freedom of speech and expression?
The provisions set out in the bill are vague. As an internet user, it does not clearly specify the extent of downloading, uploading or streaming that may be defined as infringement since it does not tackle the nitty-gritty process of “authorization”. It can also be regarded as broad and all-encompassing since the law can be applied on just about any website, especially on social networking sites like Facebook and Twitter. Say, your link leads to a site hosting an illegal content, this might lead to a shutdown of the entire network. It is sweeping in this sense and may lead hosting sites and social network to review and limit those that the users will publish just to avoid the sanctions of law, hence, restricting the right of freedom of expression.
Copyright law is intended to protect the owners of their works and the corresponding exclusive rights due them . Under the Law on Copyright, one of these exclusive rights is “the public distribution of the original and each copy of the work by sale or other forms of transfer of ownership”. Downloading, then, will be in violation of this since the work has been substantially transferred in the possession of another without the authorization of the copyright owner.
- Republic Act 8293