SY 2012-2013, First Semester
- Appreciating the Data Privacy Act of 2011
- Legality of Fan Art
- Act of downloading; act of copyright infringing?
Recognizing the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected, the Senate of the Philippines unanimously approved the Senate Bill 2965 also known as “Data Privacy Act of 2011”. The Senate Bill seeks to protect personal information. As provided in the bill, personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and ascertained by the entity holding the information, or when put together with other information would identify an individual.
The Senate Bill applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers who are not established in the Philippines, however, use equipment that are located in the Philippines, or those who maintain an office, branch or agency the Philippines.
Before personal information may be disclosed to the public, it is subject to compliance to the requirements of the Bill. Under the General Data Privacy Principles, the processing of personal information must be based on the principles of transparency, legitimate purpose and proportionality. Specifically, personal information must be collected for specified and legitimate purpose. The personal information must be relevant, accurate, adequate and not excessive for the purposes that it is collected. Personal information can be retained as long as necessary for the fulfillment of the purposes.
Remarkably, the Bill gives a right to the data subject to suspend, block, remove or destruct personal information from the data controller’s filing system if the information is incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or direct marketing. Another interesting point is that the Bill gives a right to the data subject to be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information. [THE PROPOSED PHILIPPINES DATA PRIVACY ACT by Professor Abu Bakar Munir]
The Senate Bill defines the violations of protection of personal information which may be done by unauthorized and wrongful processing and disclosure, by negligence, by improper disposal, by unauthorized access and breach of confidentiality as well as the applicable penalties for the said offenses. In fine, it identifies who are accountable for wrong handling or processing of personal information and providing the impossible penalties thereof.
With the current developments in accessing diverse information, it is timely and imperative that this Bill is being introduced in our jurisdiction because it will not only safeguards personal information of individual or entity but also in times that there will be violations, the offender will be held liable under the law.
Fan art is popularly characterized as artwork that is based on the 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. As such, it can be collectively described as the art made by enthusiasts with reference to an original artwork, therefore it may be an adaptation or even an alteration of the original depending on the interpretation of the fan. Accordingly, creation like this may be regarded as derivative following the provisions of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines.
Section 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. (Sec. 2, [P] and [Q], P.D. No. 49)
173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as 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. (Sec. 8, P.D. 49; Art. 10, TRIPS)
The term usually applies to artwork made by fans of characters from books and art derived from visual media such as comics, movies, or video games. However, with the advent of technology, fans may also create web banners, avatars, or web-based animations, as well as photo collages, posters, and artistic representation of movie, show, book quotes, and they may easily broadcast their subsequent art work to the whole world. This practice is already widespread and even tolerated considering that in a way it promotes the original work, and as the saying goes imitation is the best form of praise.
But, is this expression of fans and absolute? Can they just modify, interpret and create new work of art without any restrictions? It must be noted that the provision mentioned above explicitly provides that copyright protection of the original author extends to the derivative work thus only the original author has the right to subsequently alter or modify his original work. However, the provisions found in Section 185 of Republic Act 8293 will somehow permit the creation of fan art and this is commonly known as the Doctrine of Fair Use.
Section 185. Fair Use of a Copyrighted Work. – 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:
(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work.
185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Following this provision, it may be said that the derivative works such as fan art may be allowed so long that the same is in accordance with fair use. Also, upon careful evaluation of the provisions of the Intellectual Property Code, there are other instances wherein fan art may be regarded as lawful, namely; (1) when the original work which is the basis of the fan art is not protected by copyright; and (2) when the fan or creator of the fan art has the right, either by way of transfer or assigning, to use the original artwork.
Although, fan art may be considered lawful it is still best to create an original, something that you can call your own. Aside from the fact that you have all the rights pertaining to that masterpiece, said rights are protected by law.
- Wikipedia, free online encyclopedia
- Republic Act 8293, “The Intellectual Property Code of the Philippines”
Copyrighted works are those original intellectual creations in the literary and artistic domain which is protected by law from the moment of their creation. The Intellectual Property Code of the Philippines devotes its entire Part IV to identify the works under copyright protection. However, this copyrighted works have become available in the internet and with the advance technology that we have nowadays; almost everyone has access to the internet.
Thus, the question now is whether the provisions of our copyright laws shall extend to copyrighted works available in the internet? The present Philippine law in copyright protection is quite vague with regards to the applicability of the same in the copyrighted works available in the internet. It must be noted that Filipinos have this notion that whatever is available in the internet is free of charge. This concept is wrong for it violates the right of the original owner of the work because a copyright owner has the exclusive right to carry out, authorize or prevent the communication to the public of the work.
Some countries, namely the United States, United Kingdom, France and New Zealand have taken definitive measures to counteract this ongoing problem. In the case of the United States, they have Stop Online Piracy Act (SOPA), the act expand the ability of U.S. law enforcement to fight online trafficking in copyrighted intellectual property and counterfeit goods. Provisions include the requesting of court orders to bar advertising networks and payment facilities from conducting business with infringing websites, and search engines from linking to the websites, and court orders requiring Internet service providers to block access to the websites. This applies only to non-U.S. sites. Another United States bill is the PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PIPA). The stated goal is to give the US government and copyright holders’ additional tools to curb access to “rogue websites dedicated to the sale of infringing or counterfeit goods”, especially those registered outside the U.S.
For its part, the United Kingdom has the Digital Economy Act 2010 which aims to regulate the digital media. The act and its proposed regulatory code provided an outline on how to proceed against a person who commits copyright infringement. First step is the gathering of list of Internet Protocol (IP) addresses which the copyright holder believes to have infringed his right, the identified IP number shall be sent to the Internet Service Provider, along with a “copyright infringement report”. The ISP then will determine the validity of the infringement report and if found to be valid, a notification shall be sent to the subscriber. The rightsholder can then approach a judge to gain a court order to identify some or all of the subscribers on the list, and with that information launch standard copyright infringement litigation against them.
The French government, through a law creates a government agency called Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (HADOPI) (English: the High Authority for Transmission of Creative Works and Copyright Protection on the Internet). The agency’s mandate is to ensure that internet subscribers “screen their internet connections in order to prevent the exchange of copyrighted material without prior agreement from the copyright holders.” The main feature of this is the “three-strike violation” wherein on the third violation, the internet access subscriber is blacklisted and other ISPs are prohibited from providing an internet connection to the blacklisted subscriber. The service suspension does not, however, interrupt billing, and the offending subscriber is liable to meet any charges or costs resulting from the service termination. Additionally, action under the HADOPI law does not exclude separate prosecution under the French code of Intellectual Property, or limit a claimant’s other remedies at law.
In New Zealand, the prevailing law is the Copyright (Infringing File Sharing) Amendment Act of 2011 which amended the Copyright Act of 2004. The Act provides for what is known as graduated response, which is the copyright owners notify fixed-line ISPs (the Act does not apply to mobile networks until 2013) that they believe an internet subscriber is infringing their copyright through peer-to-peer filesharing, the ISPs in turn send warning notices to the relevant subscribers, and after three such warnings the copyright owner may take their case to the Copyright Tribunal.
Another measure that is internationally known is the Anti-Counterfeiting Trade Agreement (ACTA). It is a multinational treaty for the purpose of establishing international standards for intellectual property rights enforcement. The agreement aims to establish an international legal framework for targeting counterfeit goods, generic medicines and copyright infringement on the Internet, and would create a new governing body outside existing forums.
As previously stated, there is yet no law in the Philippines that will somehow curtail these online activities. House Bill No. 6187 which is known as Anti-Online Piracy Act of 2011 was filed by Representatives Irwin Tieng and Michael Velarde. The bill is patterned with the United States SOPA with some modifications. One of the salient features of the bill is found in Section 3 which provides for the prohibited acts; a) To make in a manner not authorized by the copyright owner, copies of music recordings or films, in complete or substantially complete form, by any means, including but not limited to uploading, downloading, or streaming, and, b) To offer goods or services, or provides access in a manner not authorized by the copyright owner, copies of music recordings or films, in complete or substantially complete form, by any means, including by means of download, streaming, provision of a link or aggregated links to other sites.
The passage of this law will be helpful to restrict this online activity which is adversely affecting the rights of the copyright owner. However, the Constitutional provisions on freedom of speech must be also upheld and the right to due process of the alleged violators must be observed. The law must explicitly provide rules to protect the said Constitutional rights of the individual.