SY 2012-2013, First Semester
- The Data Privacy Act of 2012
- Legality of Fan Art in the Philippines
- Freebie yes, Legal? Not Necessarily
The fundamental laws of the land, whence all other laws spring forth guarantees the most basic of civil and [as a matter of consequence] political rights, among them the right to privacy.
It is provided in our Constitution:
Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Sec. 2. 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 shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
Sec 3. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (from Article 3 of the 1987 Constitution also known as the Bill of Rights)
It is thus emphasized that ‘the right to be let alone’ is a constitutionally recognized right of the Filipino citizen and must therefore be upheld at all times. Such was the aftermath of the twenty-year Marcos rule that made our law makers create such a network of safeguards to assure that such civil right violations as were the status quo during the turbulent Marcos era would no longer be a threat in the coming decades.
It is indeed a marvel of construction and legal foresight that makes this Constitutional mandate still relevant up to now, when societal dynamics are shifting and evolving in a rapid pace brought on by the advance of information technology. This is perhaps one of the driving forces of the Data Privacy Act of 2011, standing squarely on the sacred right to communication and correspondence declaimed in Section 3 of the Bill.
Because of the ease and the sheer amount of data being handled and exchanged on a daily basis in the information highway, the possession and subsequent dissemination of the same had bred major dilemmas along the way. In the main is the method by which, in this voyeuristic and uncomfortably inter-connected populace where it seems everything is fair game, we would still be able to keep a few things to ourselves. One of the major conundra faced by our legal engineers is the manner by which we may monitor the entities who possessed and control the distribution and use of pertinent data collected through any means.
As ordinary citizens, how are we to be secure that information we have provided to third parties in the course of our transactions, remain confidential, instead of being out there? this is a relevant question that the Data Privacy Act of 2012 hopes to answer.
The Data Privacy Act of 2012
On August 15, 2012, Republic Act 10173, or the Data Privacy Act was signed into law by President Benigno S. Aquino III, a revolutionary law where data privacy is concerned.
Among others, the Act enumerates the rights of the Data Subject, provides guidelines in the collection and processing of information, creates a National Privacy Commission which would serve as the implementing arm of the law, mandates safeguards in all processes by which any information goes through with the end of ensuring the protection thereof and its subject, prescribes penalties for violations of said law, as well as imposing accountability upon responsible entities.
What it Covers
Section 1 of the Act defines Personal Information as “any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual”. (from the Official gazette’s website)
Does this ring a bell for cyberstalking? Undeniably, not a few of netizens have attempted to Google themselves and other people for nothing more than harmless curiosity–or probably unmitigated conceit and vanity.
With constant and wide usage by netizens, Google, much like a living, learning organism, improved itself through osmosis. It inevitably became the go to for anyone researching any mundane trivia, news article, and material for academic and professional use.
When you want to know more about a showbiz ‘chismis’ you got wind of, you Google it for juicier details. If you wish to get more information about a- shall we say–interesting character, you let google paint a picture for you, literally.
Prospective employers have also been known to Google applicants for information that would understandably not be in the resume but would definitely (for better or for worse) help them determine the candidate’s suitability for the job. Like magic, with just a few strategic key words, Google will get back to you with tremendous amount of information that has no business being online, just waiting to be perused by any old busybody.
It is definitely scary, when you come to think of it.
Which is why I thank the drafters of the RA 10173 for addressing the hairier aspects of information technology. Information is power, and this is why the dotcom boom of the late 90s have left many a Chucks-wearing, twenty-something from the Silicon Valley millionaires overnight. it should not, however, be a cause for us to live in fear because information about ourselves are in the hands of entities who could use and store them sans our control.
It is worthy to mention a key provision in the Act dealing with the life of the data collected. Although the law’s Implementing Rules and Regulations have yet to come out, the section pertaining to retention of information is promising enough. If you have heard the rather ironic quip that “karma is digital’, then you will appreciate the significance of this mandate since a lot of us have learned the hard way that past and might I say youthful mistakes never had a faster time of biting you in the derriere than when they are online. Remember the old Friendster photos and the cheesy testimonials? Or the Multiply blogs before it was mainly used for advertising various merchandise?
On a graver note, although the RA 10173 mainly regulates information processes within the Philippines, it could prevent such online atrocities as those proliferating websites in the United States where people’s mug shots are available online for free–but the hapless victim with the unfortunate mugshot is required to pay to have them taken down? This blatant extortionist scheme would be avoided if the Data Privacy Act would be allowed to grow its teeth in order to protect everyone from the many dangers of overexposure online–or anywhere else.
Let’s begin with etymology, as all discussion of ‘specialized’ topics must begin.
The dictionary definition of ‘fan’ as found in the Webster-Merriam online Dictionary:
1. : an enthusiastic devotee (as of a sport or a performing art) usually as a spectator
2. : an ardent admirer or enthusiast (as of a celebrity or a pursuit)
For purposes of this particular discussion, the applicable definition of Art is
n. decorative or illustrative elements in printed matter
According to WiseGeek, Fanart, which can be singular or plural, can be defined as graphic representations of various media forms that have numerous fans. ( (http://www.wisegeek.com/what-is-fanart.htm)
Fan art may comprise a wide variety of media–visual, literary, even audio presentations.
One species of fan art is fan fiction, a genre of the fan subculture that has over the years, almost approached legitimacy as actual licensible creations. Trekkies, or ardent fans of the sci-fi series were such die-hard followers of this alternative universe that they were not content on just watching the show or reading the books. They had to live it, create versions of it themselves, using the existing characters and premises as take off points in completing their own literary creations.
A lot of these fans are hugely talented too, and some of their work were actually published and incorporated in the Star Trek universe. Such is the power of geekiness and latent talent.
The hairy part is–when does tolerated fandom end and copyright violation start? Author of the hugely successful Harry Potter series J.K. Rowling recently emerged victorious in a copyright lawsuit against a ‘fan’ who sold published works that are largely derivative from her work. Library Journal writes through Michael Rogers:
U.S. District Judge Robert P. Patterson September 8 ruled in favor of author J.K. Rowling, who sued Steven Vander Ark to stop publication of his volume The Harry Potter Lexicon (http://www.libraryjournal.com/article/CA6500676.html?rssid=220). Patterson permanently blocked the book’s publication saying that its release would have caused Rowling irreparable harm as a writer. He additionally awarded Rowling and co-plaintiff Warner Bros. $6,750 in statutory damages.”
Patterson further adjudged that “Lexicon appropriates too much of Rowling’s creative work for its purpose as a reference guide,” adding that “while the Lexicon in its current state is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled.” ( http://www.libraryjournal.com/article/CA6594231.html)
This is specially enlightening in the Philippine setting because of the recent brouhaha over Sotto’s plagiarized Senate speech concerning the controversial Reproductive Health Bill.
What is Fair Use?
The intellectual Property Code of the Philippines provide:
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.
In laymen’s terms, ‘fair use’ is any form of use of any copyrighted material such as a book, a movie, a literary work other than fiction or syndicated columns (including blogs), visual presentations, plays, music for purposes of criticism, commentary, as a way of illustrating a different or independent concept. Therefore use is limited and done for transformative purposes, not as an exact copy of the original work. (Please see Stanford University website’s Copyright and Fair Use )
Parodies, spoofs for purposes of entertainment also fall upon the province of Fair Use.
Case law and applicable statutory safeguards regarding Fair Use remain to be rare even in the international arena and even more so here in the Philippines where laws need a massive overhaul in order to treat crimes of these nature.
The term ‘transformative’ as a criteria for avoiding infringement suits is vague, according to the Stanford University website. This means that it is largely open to interpretation and no hard and fast rule exists in relation to this concept. Suffice it to be stated as of this writing, that when use is done for transformative purposes, it renders it to be fair use and therefore not subject to copyright lawsuits.
What About Blogs?
Blogs are creations protected by copyright, whether syndicated or not. True, they are publicly available via the internet and access to them is virtually unlimited, without any restrictions to someone with a reasonably good internet connection and a working computer. This, however, does not make the ideas and writings contained in these blogs yours. Scholarly attribution is still a must when using any material found in these blogs, in keeping with rules against plagiarism.
The fact that the internet is a public domain and is free does not negate the fact that the idea was owned by another person. Citing your references, when the idea, information, or the words are not yours is still the standard, old school way of doing things. To conclude the contrary is a ludicrous and bewildering exercise of mental gymnastics. You may paraphrase an idea or thought postulated by someone else but attribution would still be incumbent upon the user.
These days, it’s ridiculously easy to get free stuff online–when you know how to look. You can get discount coupons to events and places, free web hosting services for your business, free phone calls, free text messages, free anything as long as you are connected to the world wide web.
One of the things I’m crazy about are books, and I’m ecstatic when I’m able to find a website that allows you to read and/or download books I’m raring to get my hands on for absolutely no fees whatsoever. I have visited and used websites like http://www.projectgutenberg.com, literature.org and downloaded books from the Apple online store. I have such avarice when it comes to anything you can read, and I don’t even have a’genre’ of choice. I read anything and everything and that is why you will see me equally psyched to be getting my hands on free access to Marvel or Archie comics online or downloading Brothers Karamazov on my iBook.
I’m sure a lot of people share the same passion I have for books, and still a host of other people scour the web for access to anything related to their respective hobbies or passions. Movies and music are two other popular things to get access to once you’re logged in to the internet. File sharing sites abound where users can upload and download scores of movies and music for personal use without having to spend more than their DSL bills’ worth. It is definitely worth it, because when you calculate the cost of buying an artist’s CD versus downloading the music online, hands down, the difference is huge savings.
Now the question is, with the virtually limitless possibilities that the internet can offer any regular hobbyist, how then is the sanctity of copyrighted works protected?
PHILIPPINE COPYRIGHT LAWS
Our copyright laws ensure the protection of literary works and other similar works from the moment of creation. This right covers
Sec 172 (1)
(a) Books, pamphlets, articles and other writings;
(f) Musical compositions, with or without words;
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)
177.7 Other communication to the public of the work*
The author of the work enjoys copyright protection during his lifetime and 50 years thereafter, after which it becomes public domain–which knowledge some of our legislators’ mouthpieces might do well to have before insisting on the complete opposite on national television.
It is clearly obvious that when we download a copy of The Mistress either from a file sharing site online, or your friend’s iPod cache of movies, we are violating a basic copyright law.
As with every other rule in the book, there is, of course an exception to copyright and that is the Fair Use provision found in Section 185 thus:
Sec. 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.
Which is further determined by checking the following:
(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education 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.*
Having said the same, it would be prudent for our laws to flex its muscles in the hopes of having under control if not completely eradicating this alarmingly commonplace illegal activity.
It is definitely tempting to spend a mere 25 bucks on the newest Twilight installment rather than see it onscreen where you have to easily shell out 300 for the ticket and food at the cheapest movie house in the country–not to mention having to commute to the mall. Or waiting for it to be on DVD and spending usually around 700 to purchase a copy.
But then, think of the long term effcts of piracy and copyright infringement–lower revenues for the authors/artists, less recording companies wanting to invest on new talent, higher prices on movie tickets and performances to compensate for the production costs that aren’t being returned profitably because their works are available elsewhere for nothing. There would be fewer new acts, making it far more difficult to discover new material for the public’s consumption when we impoverish the hen that lays the so-called egg.
Now, countries who had been on to the technology and its many dangers have long since implemented laws aiming to regulate onine activity and eventually punish copyright infringement.
The Philippines had been a little bit slower on the uptake, but there is reason to be optimistic since the President just recently signed into law Republic Act (RA) No. 10175, or the Cybercrime Prevention Act which would make it easier to combat cyber-related crimes.
Protecting copyrighted works, however, would be a trickier sort because it would undoubtedly necessitate funding and manpower, not to mention the technology to be able to track file sharing in order to punish those who are liable. In this wise, it appears to be a good move to pattern our statutes to new Zealand’s Three Strike Rule, including the means by which these activities might be detected and reported.
The ACTA Treaty–Should we, or Should we not?
Shutting down websites that assist in illegally downloading copyrighted works and other businesses that tend to promote similar activities is one thing. For one, as Yugatech.com wrote in its January 21, 2012 article Brewing Anti-Piracy Bill in the Philippines, this could mean a boon to bloggers, artists, and businessmen alike because they would have a leg to stand on when any form of infringement is committed on protected works. They may claim damages and cause the shut down of a particular website that allowed or assisted in the infirngement.
The ACTA Treaty, on the other hand, from a cursory reading seems to be of a bigger scale, seeking to fruy bigger fish, so to speak. It is international in scope and involves bodies like the United Nations, the Wolrd Trade Organization, by actually creating an external arm independent of the bodies mentioned. This appears to be tantamount to allowing unlimited view of your parlour window to your neighbors so they could peek in any time and haul out any culprit they deem guilty.
Problems with the Constitutional safegaurds to freedom os speech and the ever sacred right to privacy would be in danger of being an issue as the Treaty appears to link us to an international cyber version of Big Brother. I would opine that further study and information-gathering be mad ebefore we agree to sign into thie Treaty. True, much is to be gained through this law, but it is my opinion that the basic rights to being yourself as much as it is legal, and pretty much being at liberty to express yourself in ways you are most comfortable in–as long as it is not violative of anyone else’s right one of course, is still the core of a democratic nation.
*Provisions from the Intellectual Property Code taken from the Chan-Robles online Law Library.