SY 2012-2013, First Semester
- Personal Data Protection Bill
- Legality of Fan Art in the Philippines
- Files Downloaded subject to Copyright
- Foreign laws and proposed laws protecting copyrighted materials. Should it be passed in the Philippines? If passed, will it constitute a violation on basic constitutional rights?
The rapid development of technology has had a significant impact upon social life. Throughout the world, technology offers many facilities that contribute to fast connectivity. At the same time, accessibility to technological advances raises questions about the right of individuals to retain the confidentiality for certain types of information. The easy and swift dissemination of information through technology creates threats to privacy by providing great opportunities for surveillance by persons who have access to personal information about others.
These challenges have not gone unchallenged, with growing media and public concern about privacy. Businesses such as Google and Facebook are under constant scrutiny and pressure with their security about privacy.
I firmly believe that with the help of Data Protection Bill/Act, if made law, it would be the first comprehensive data protection law in the Philippines which seeks to penalize identity theft and misappropriation of sensitive personal information maintained in databases to uphold the right of privacy guaranteed under our Constitution.
Article II of the Philippine Constitution, our Bill of Rights, provides at least two guarantees that clearly identify zones of privacy or a person’s ”right to be let alone” or the ”right to determine what, how much, to whom and when information about himself shall be disclosed”.
Section 2 guarantees “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.”
Section 3 renders inviolable the “privacy of communication and correspondence” and further cautions that ”any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”
Regulation concerning the right to privacy and data protection could be considered as one of the most important areas of need in the Philippines. It is one of the major issues in the modern community, which is being affected by the way we communicate today, the new way of business or commerce, and by the rapid development of technology.
The growth of technology provides many opportunities to gather, analyze, and disseminate information in various ways and this certainly makes legal protection of privacy a necessity.
As a developing country, Philippines has a large community of users of technology and communication systems. Indeed, Data Protection Law is necessary to protect an individual’s right to privacy and should be considered as either a basic and inalienable human right or as a personal right or possession. The catalysts for protection are: (1) technological and organizational development, (2) public fear of those developments, and (3) the nature of other legal rules, which form the normative basis for such laws. Data protection and privacy rights are closely related. In other words, privacy is a fundamental human right and data protection is one way to protect it.
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. (Wikipedia)
Fan fiction and fan art are both enormous components of our popular culture, a way we retell our favorite stories just as humans have always retold myths and legends. But sometimes creators, publishers, and studios claim that works of fan art and fan fiction violate their copyright.
The law on copyright states as follows:
Sec. 173. Derivative Works. –
173.1. The following derivative works shall also be protected by copyright:
(a) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and
(b) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.
173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as a new works: Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works.
Hence, based on the aforesaid provision and on the definition given by Wikipedia, Fan Art may be surmised as a Derivative works. Thus, it is legal in the Philippines provided it has complied with the proviso.
Is the act of downloading copyrighted works, shared by others who are not copyright owners of such works is an act of copyright infringement on the part of the downloader?
First we must define the following terms:
Copyright is the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work).
Copyright infringement is the act of violating the exclusive rights of a copyright owner. Examples include copying or performing a work without the copyright owner’s permission, or creating a work of one’s own that derives from a copyrighted work.
File sharing is a general term for sharing digital files electronically. These files could be music or other audio recordings, movies, television shows, games or other computer software, or any other type of digital file.
According to R.A. 8293 or the Intellectual Property Law of the Philippines which provides that:
Sec. 177. Copy or Economic Rights. – Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts: or
177.1. Reproduction of the work or substantial portion of the work;
177.2 Dramatization, translation, adaptation, abridgment, arrangement or
other transformation of the work;
177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a
compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work
THEREFORE, the act of downloading which is deemed a reproduction of the work, if without the consent of the copyright owner, shall be liable to Copyright Infringement.
Should the following laws or Proposed laws of different countries involving Copyright be passed in the phillipines?
Stop Online Piracy Act (SOPA)
Protect IP Act (PIPA).
The bills are intended to strengthen protections against copyright infringement and intellectual property theft, but Internet advocates say they would stifle expression on the World Wide Web. In essence, the legislation has pitted content providers — like the music and film industries — against Silicon Valley. CBS Corporation is among the media and entertainment companies that support the legislation.
There are already laws that protect copyrighted material, including the Digital Millennium Copyright Act (DMCA). But while the DMCA focuses on removing specific, unauthorized content from the Internet, SOPA and PIPA instead target the platform — that is, the site hosting the unauthorized content.
The bills would give the Justice Department the power to go after foreign websites willfully committing or facilitating intellectual property theft — “rogue” sites like The Pirate Bay. The government would be able to force U.S.-based companies, like Internet service providers, credit card companies and online advertisers, to cut off ties with those sites.
UK’s Digital Economy Act 2010
It establishes a system of law which aims to first increase the ease of tracking down and suing persistent infringers, and after a minimum of one year permit the introduction of “technical measures” to reduce the quality of, or potentially terminate, those infringers’ Internet connections. It also creates a new ex-judicial process to handle appeals.
If someone used wireless connectivity in a cafe to download free content, the cafe owner would be held responsible. Universities and libraries are also concerned about this aspect.
France’s HAPODI law and New Zealand’s “three-strikes” rule
France’s HAPODI law and three-strike law of New Zealand grants rightsholders the power to request that internet service providers (ISPs) issue up to three warning notices to consumers alleged to be illegally using copyright protected content.
All these laws or bills are the same in essence, and that is to combat the act of copyright infringement. Hence, these laws or bills should not be passed in the Philippines because the Anti-Counterfeiting Trade Agreement (ACTA) ), as a multinational treaty for the purpose of establishing international standards for intellectual property rights enforcement if ratified and entered by the Philippine government will suffice to protect the rights of Copyright owners.
Moreover, such treaty if ratified will not violate Constitutional rights on free expression and privacy because it will be an exercise of police power for the promotion of public interest.