SY 2012-2013, First Semester
- Data privacy Act 2011; Senate 2965
- Legality of Fan Art in the Philippines
- Downloading, Is this Legal in the Philippines?
The Senate of the Philippines unanimously (http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-2965) approved the Data Privacy Act of 2011 (http://www.senate.gov.ph/lisdata/1218710275!.pdf), also known as “An Act Protecting Individual Personal Information in Information and Communications Systems in the Government and the Private Sector, Creating for This Purpose a National Data Protection Commission, and for Other Purposes” (S.B. 2965).It seeks to establish fair practices and regulate the collection and use of personal details stored in the computer systems of the private sector and the government. The act 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 and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines. As provided in the Section 9 of the bill, processing of personal information shall be allowed, subject to compliance of certain requirements, and other laws allowing disclosure of information to the public and adherence to the principles of transparency, legitimate purpose and proportionality, the personal information must be:
- Collected for legitimate purpose
- relevant for the purposes for which it is to be used the processing of personal information
- processed lawfully
Section 9 in connection with Section 10, the processing of the personal information shall be permitted only if not otherwise prohibited by law, and when at least one of the conditions exist:
- Data subject has given express or implied consent
- related to the fulfillment of a contract or for compliance with legal obligation
- The processing is necessary to protect vitally important interests of the data subject, including life and health;
- in order to respond to national emergency
- or for legitimate interests
However, in my opinion, this Bill could create numerous consequences. There is a probability and possibility of unlawful prying into the personal information of the data subject if the public officer concerned or the Processor has a private transaction with the data subject, therefore, consent to be given by the data subject may be set aside. There may be a contract entered into which may be fictitious, in which case, may defraud the creditors of the data subject. Other persons may pry into the privacy of the data subject, and the latter may be ignorant or is at disadvantage on account of his moral dependence. Other public officials or officers, and government employees working in government agencies or offices and handling the payroll may create a GHOST EMPLOYEE, therefore, corruption will become more possible and easy to do because of the availability of personal information. Personal information available to the public might become a danger to the life of the data subject.
FAN ART – It is a transformation of an original work into another art made by a fan, for example, a character from the movie of AVENGERS, then printed to a T shirt, this is a derivative work which under the Intellectual Property Law is likewise protected by copyright.
However, under the law, copyright holder or the original creator enjoys economic rights which he may transform the work and prevent others from transforming his original work.
A derivative work is legal, however, the work must to be used in a manner which does not conflict with the normal exploitation of the work ( original work ) and does not unreasonably prejudice the right of the original creator.
In other countries, Fan Art is regarded as legal by reason of parody. From the view or opinion of other Copyright owners, Fan Art makes their creation profitable and more known to the public, more persons patronize their work.
However, in the Philippines, the above-mentioned may not hold true or may not apply in the same manner as other countries permit the act.
In the Philippines, the reality is that the work of a Fan is almost more profitable and more known to the public, therefore prejudices the work of the original creator, but why was this not yet prevented?, it may have been tolerated by silence or innocence, and makes the wrong doing, repeated and becomes a right at the end of the day. People may have known the law, or know the law but having misconception or misapplication of law in their minds that the original creator’s work has no registration, therefore not protected by law. The copyright law in the Philippines may become inutile in reality.
Downloading is a nationwide activity in the Philippines, is this legal? It is not legal. Downloading is the process of taking a file from a computer on the Internet and saving that file on your computer. It is done privately or for personal use maybe, however this does not mean that this act is in accord with fair use because in similar situation of copying an entire book or substantial part of it even for personal use is already copyright infringement.
It is punishable in the Philippines, however, not pursued by law enforcers, another wrong repeated, if tolerated or not apprehended becomes a trend, and later on becomes a plague which is harder to suppress.
It is expressly provided Section 33(b) of R.A. 8792 or the E-Commerce Act which provides:
x x x
Section 33. Penalties. – The following Acts, shall be penalized by fine and/or imprisonment, as follows:
X x x
(b) Piracy or the unauthorized copying, reproduction, dissemination, or distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recording or phonograms or information material on protected works, through the use of telecommunication networks, such as, but not limited to, the internet, in a manner that infringes intellectual property rights shall be punished by a minimum fine of One Hundred Thousand pesos (P 100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years;
Now we deal with the question regarding passage of a Bill like in U.S. namely STOP ONLINE PRIVACY ACT ( SOPA ), and PROTECT IP ACT ( PIPA ), if there would be same bill introduced in the Philippines, will this constitute a violation of our Constitutional Rights, a prior restraint to freedom of speech and freedom of expression.
No. Freedom of expression is not absolute, it is subject to Police Power and may be properly regulated in the interest of the public. It does not cover ideas offensive to public order or decency or reputation of persons which are entitled to protection by the State. The State declared to protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people. It will not constitute prior restraint. Prior restraint or Censorship as defined: conditions the exercise of freedom of expression upon the prior approval of the government.
There are numerous cases upholding the constitutionality of regulating the freedom of speech and expression so as to give equality to all, for the benefit of public interest.