[Mirror] Barona, Hera Aiza Marie

SY 2012-2013, First Semester


DATA PROTECTION BILL OF 2011: BOON OR BANE?

Under Article II of our 1987 Constitution, it is expressly declared under Section 24 thereof that, “(T)he State recognizes the vital role of communication and information in nation-building.” Pursuant to such declaration of state policy various laws have been enacted and implemented to ensure that despite the advent and proliferation of technology Filipinos would still be able to enjoy their right to privacy of communication and correspondence. Among the laws that aim to protect our right to privacy of communication and correspondence are Republic Act No. 4200, also known as the Anti- Wire Tapping Law, and Republic Act No. 9372, also known as the Human Security Act of 2007.

Last September 2011, Senate Bill No. 2965, otherwise known as the Data Protection Bill, was passed. The proponents of the said bill aim to create a National Privacy Commission, which shall be an independent body, to administer, implement and ensure compliance with international standards regarding data protection. As a consequence, personal data pertaining to an individual will be collected and processed by a personal information controller. However, under the bill it was not laid out in plain terms on what kind of data shall be collected or up to what extent of personal information shall be collected. Hence, it would seem that the National Privacy Commission will have a wide discretion on that matter subject to limitations provided by the Constitution and other special laws.

Despite the limitations mandated by the Constitution and other special laws, personally, I am not totally convinced that Senate Bill No. 2965 would be able to provide protection to each and every Filipino or to a majority of Filipinos at the least in terms of privacy of communication and correspondence. If not a surplus-sage, this would just be a vehicle for evil-minded persons in carrying out their evil plans.

Let us take for example the impeachment case against which ousted Chief Justice Renato Corona from his post as the highest magistrate of the Supreme Court. One of the allegations contained in the articles of impeachment filed against him was his non-disclosure of correct information on his statement of assets, liabilities and net worth. To prove such non-disclosure or misdeclaration or under declaration, the prosecution panel pushed for the opening of his foreign deposit account to which the defense panel opposed invoking Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act. Under Section 8 of the Foreign Currency Deposit Act, a foreign currency deposit is declared as and considered of an absolutely confidential nature and may only be examined, inquired or looked into upon the written permission of the depositor. One of the noticeable differences this law has with Republic Act No. 1405 or the Bank Secrecy Law is that in the former law, the foreign currency deposits are exempt from any other order or process of any court while in the latter law, the exceptions to treatment of deposits with absolute confidentiality are the following: “upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation.” If I am the crook, then, I would convert the wealth I have illegally amassed into foreign currency deposits in order to place it beyond the reach of the court. Same thing with Senate Bill No. 2965. If it will be enacted into law, it will be used in circumventing other laws. For instance, under Section 10 of the said bill, the processing of personal information shall be permitted only in two instances: if it is not prohibited by law and at least one of the conditions set forth therein exists- e.g. (e) The processing is necessary to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate. The above-mentioned condition is a very broad one. Again, the discretion lies with the National Privacy Commission. Leaving the determination of whether or not a condition exists to the hands of the Commission without a black and white delineation will only give rise to added opportunities for corruption. It may even lead to the deprivation of property without due process. Moreover, such processing of personal information may lead to identity theft that can result to a contract purportedly entered into by one who is a victim of identity theft. True enough, the bill also laid out penalties for those who will violate it. But then again, the penalties to be meted out are not strong deterrents to its violation. Intentional processing of personal information and unintentional or processing due to negligence has almost the same penalties. So to speak, the bill, if enacted into law, will not have enough teeth to bite its violators.

A lot of Filipinos are still computer-illiterate. Does Congress in passing this bill intend to apply it only to those who are well-off? How about if instead of allocating PhP 20, 000, 000.00 in the creation of the National Privacy Commission and allotting Php 10, 000,000.00 annually to it, the Government will focus on literacy campaign first? How about if the Government will upgrade its information system first in order for us to be not left behind by our neighboring countries? How can the Government implement something like this when not all its manpower can use computers?

On the bright side, this may also expedite the updating of information in various government agencies like the Social Security System and the Land Transportation Office. If the information of these agencies is up-to-date, surely the processing and receipt of benefits would not take decades nor would a vehicle already sold by the first owner a decade ago still be registered in his name.

As a sovereign, I do not submit to the position that we need to have a lot of laws. A handful of laws are so much better than having thousands of laws that are only superfluous. I may sound pessimistic but I do cannot let out any sign of relief nor can I appreciate any convenience in this bill. In fact, in my humble opinion, the sum of benefits this bill has to offer the public, is meager than what it is going to cost.


Fan Artists, Beware?

While strolling or on our way to the mall or to school, we come across with people wearing cute shirts or shirts displayed on the sidewalks showing faces of famous cartoon characters and our usual reaction would be: “Oh! That’s so cute!”; “Captain America looks so adorable!”; or “I wanna get one of those!” Adorable as they may seem, yet, when we analyze things, these creations may pose an issue.

By the way, I am referring to fan art, which has found its way into our society. I intended to look for an exact definition of fan art. However, when I typed the words in the search tab, I was surprised to see that there are a lot of materials-from pictures, blogs, forum, online fan art community, among others-on line. Wow! Where have I been?!

Wikipedia defines fan art as a “work of art 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. “ In other words, fan art is a creation using an already existing movie, pictures, comics or other visuals.

In the Philippines’ legal setting, this fad may lead to the determination of whether or not the rights of the original creators are infringed by fan artists. Under Section 173. 1 of the Intellectual Poroperty Code, it is provided that, “ (T)he 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)” Therefore, fan artists need not fear of being sued for copyright infringement since the law governing literary creations expressly declares so. Furthermore, Section 173.2 of the same Code provides that, “(T)he 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)”

As a matter of fact, these fan art creations may deem to be a manifestation of the freedom of expression granted by the Constitution. Fan artists, bearing with them their creativity, have the tendency of altering , modifying, arranging or adding something to the appearance of their favorite cartoon character like Hulk, Black Widow, Tazmanian Devil, Naruto and Fujiko, among others. Yet, these acts doesn’t mean that they are defacing, demeaning or degarding the work of the original creators. It may be also that fan artists want others to see the other side of their favorite cartoon characters or enhance the superpowers of their favorite ninja superhero.Or it may be their hobby. An outlet for their passion or creativity.Simple as that.


Gagged!!

Just as modernization comes with a hefty price, advancements in technology also come with its own pros and cons. It is of common knowledge that the underground business of pirated CDs and DVDs proliferated in the Metro until some got busted by the Optical Media Board together with other law enforcement agencies. We need not go into how those operators manufactured those pirated CDs and DVDs. It is sufficient that we know that the movies or records contained therein were obtained illegally. Therefore, a form of infringement. Now, how about if the source is the internet?

I am not being cynical but I don’t think that we have enough resources to counter online activities done illegally. I am not even sure if we have the right people in town. But this does not mean to say that I will start a tolerance-campaign for “online-pirates.” Thus, mixed emotions surged my being when proposed measures against hacking, online piracy, plagiarism and other related matters reached my ears.

In the United States, early this year the SOPA, short for Stop Online Piracy Act, and PIPA, or the Protect Intellectual Property Act, started making noises. Allegedly, “SOPA and PIPA aim to protect intellectual property and counterfeit drugs.” [1] But as part of the consequences, “many believed that it will pose a much greater threat to the online community as this will affect e-commerce and the way people share knowledge/ information on the internet.”[2]

Also, in New Zealand, the celebrated “three- strikes rule” has cut down the frequency of online piracy into half. Based on statistics, this is a significant endeavor on the part of the Recording Industry Association of New Zealand (RIANZ). How did they do it? Simple. The RIANZS already sent out “2, 766 infringement letters.”[3]

What is this “three-strike rule?” To put it simply, the rule contemplates a situation where an “account holder receives two notices, or strikes, per rights owner from the Internet Service Provider and then, after the account holder receives the third strike within 9 months, the rights owner can apply to the Copyright Tribunal for a penalty.” [4] Under the rule, the “first strike is called a Detection Notice, the second a Warning notice and the third an enforcement notice.”[5] Personally, I don’t think that this will work in the kind of bureaucracy that we have. Plus the fact that, correct me if I’m wrong, if the third offense should be given notice within 9 months after the sending out of the second notice, then, this will only give online pirates a means to circumvent the law.

The Philippines may be lagging behind other countries in terms of measures taken against online piracy and hacking. But as they say, better to be late than never. If, for instance, the “three-strikes rule would be implemented in the country, it would be receiving clamor nationwide. It should be noted that under the “three-strikes rule,” the mere act of file sharing, defined under the law as, “material uploaded or downloaded from the Internet; and using an application or network that enables the simultaneous sharing of material between multiple users.”[6] In my meager understanding of the world of computers, I have to ask these questions: Does it mean that no more yahoo groups? No more scribd? If the answers would be all yes, then, it would seem like we would be back to Stone Age. For sure, there are alternative ways of protecting copyrighted online articles or materials. Congress should scrutinize the law first before passing it.

We should have laws. Yes. We should stop online piracy. Yes. But we Filipinos, as lovers of freedom and democracy, should have better laws. Not a law that would gag us. Not a law that would cater to the whims of the few. Not a law that would serve as a blanket against remarks that would definitely touch a soft spot. If Congress wants to stop online piracy, then, formulate better parameters.

What will happen to the so-called freedom of expression and association? How about every Filipino’s right to privacy of communication and correspondence? What about everyone’s right to learn and to be educated? Education first before prosecution. Have we forgotten the mandates of the Highest Law of our Land? Or do our law-makers only want to be part of the trend?

Let the ZTE-Broadband deal be our benchmark on this. If ever the time will come that this proposal will be materialized, I hope that it will be free from personal interests, which I doubt because wherever modernization lands, the pockets of those who are tasked to implement it, thickens.


Endnotes

[1] http://www.yugatech.com/the-internet/brewing-anti-online-piracy-bill-in-the-philippines/

[2] Id.

[3] http://www.bbc.com/news/technology-18953353

[4] http://3strikes.net.nz/information/law-basics

[5] Id.

[6] Id.

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2 comments
  1. bertmanalang said:

    “As a sovereign, I do not submit to the position that we need to have a lot of laws. A handful of laws are so much better than having thousands of laws that are only superfluous. I may sound pessimistic but I do cannot let out any sign of relief nor can I appreciate any convenience in this bill. In fact, in my humble opinion, the sum of benefits this bill has to offer the public, is meager than what it is going to cost.”
    I Agree 101%. I believe that it is for the same reason why God gave His billion creatures just 10 definite, perfectly crafted commandments, because the 11th commandment could have caused the destruction of the whole world.
    What the Philippines need indeed are “quality” laws, those that can surely and effectively be enforced.

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