[Mirror] Dela Cruz, Jan Michael

SY 2012-2013, First Semester


YOU HAVE A RIGHT TO BE LET ALONE

Our Concept of the Right to Privacy

The right to privacy or the “right to be let alone” has been immortalized by various Supreme Court decisions and codified in legislations of the Legislature. Yet, with the dynamic evolution of Information and Communication Technology (ICT), the right to privacy of every individual remains and is continually under threat of unlawful invasion. We may say that the basic essence or concept of the right to privacy is still valid at this modern age but the evolution of technology expanded the notion of the fundamental right to privacy as involving what the Philippine Congress proposes keep inviolate and sacred—personal data privacy.
Various zones of privacy are recognized and enshrined in several provisions of our constitution[1], statutes[2] and special laws.[3] In the past, an attempt to put together a centralized national identification system was thwarted by our Supreme Court in the case of Ople vs. Torres[4] as it impermissibly intrudes on our protected zone of privacy.

Globally, privacy is likewise recognized as a fundamental human right by the Universal Declaration on Human Rights[5] (UN, 1948).
Data protection is not a new concept to us. Commonwealth Act. No. 591[6] penalizes the disclosure by any person of data furnished by the individual to the NSO with imprisonment and fine. Republic Act. No. 1161[7] prohibits public disclosure of SSS employment records and reports. These laws, however, apply to records and data with the NSO and the SSS.

Since the 1970s and 1980s privacy regulations aimed at governing how personal data is processed were introduced in Europe. While the Europeans are implementing or considering revisions of their Data Protection Directive which came into force in 1995 our Legislature is still deliberating on a proposed law called the Data Protection Act. It is worthy to note however, that the Data Protection Act of 2011 might have been an offshoot of the Ople vs. Torres case which was decided by our Supreme Court in 1998.

Fundamental Principles underlying the Data Protection Act of 2011

By reading the draft of the Data Protection Act of 2011 and Europe’s Data Protection Directive one cannot fail to observe the similarity between the two. Strikingly similar are the following fundamental principles[8] of data privacy protection:

  1. Individuals should be informed when personal data is collected.
  2. Individuals should be told who is requesting the data and the reason for their request to help them decide whether to release control of all or part of such data.
  3. Individuals should be told how they can access data about themselves in order to verify its accuracy and request changes.
  4. Individuals should be told how their data will be protected from misuse.

In RAND Europe’s Review of the European Data Protection Drive[9], they observed that implementing the foregoing principles “is not easy, particularly in today’s world, where personal data is collected, processed and transferred in vast amounts, either on behalf of the individuals themselves (e.g. by the state to preserve security or improve public services) or for the benefit of commercial organizations.” This is a challenge our country confronts mutually with the whole world.

The Proposed Data Protection Act of 2011 as a Regulatory Means of Protecting Data Privacy for Filipino Citizens

The proposed bill comprised of 44 sections covering various subjects such as scope, establishment of the National Privacy Commission, rights of data subjects, security of personal information, security of sensitive personal information in the government, and penalties for violation.

The Senate bill covers both private and public sectors. It extends its reach to an entity or a data processor via its extraterritorial application[10].

It must be emphasized, at this juncture, that in what appears to be an effort to protect the domestic BPO industry, the proposed bill when eventually enacted into law will not apply to “personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines.”[11] Many critics are concerned however regarding its effects on our BPO industry and the countries within the European Union. Some say that “while this might make it easier to obtain outsourcing contracts from the USA, it would seem to make it impossible for the Philippines to be considered by the EU to provide ‘adequate’ data protection, since the main purpose of adequacy findings concerns the protection given to data about Europeans.”[12] This might be a serious problem because the European Data Protection Directive imposes restrictions on data transfers to prevent personal data from being moved to countries where the data protection regime is less stringent.

The question now is how this will affect call center operations? As we all know, the BPOs collect information from residents of foreign jurisdictions. It appears from the above-quoted provision that in order for a Call Center company to be outside the ambit of the law, each of his call center agents must see to it that the collection of personal information from residents of foreign jurisdictions must be in accordance with the privacy laws of such jurisdictions. Interestingly, does this mean that a call center agent must have a good grasp of privacy laws of foreign countries?

The National Privacy Commission (NPC)

Under the proposed bill the NPC will be the administering and implementing agency of the law. It has the power to monitor and ensure compliance of our country with international standards set for data protection[13].

The challenge for the NPC is enforcement of the law. Privacy is an abstract right. The damages suffered are often intangible that it is why it is very difficult to assign a pecuniary valuation to it.

As long as the personal data has not been used illegally, it may be difficult to obtain any compensation for damages, even if the data controllers are negligent in handling the personal data and even if this negligence has created a substantial security and privacy risk. This is possible because there may not be immediate foreseeable damages; such as for example when a credit card number is leaked and as previously discussed the leaked data has not yet been abused.

Funding and fiscal adequacy may also be a problem for the still to be created NPC.

The Definition of the Personal Information Controllers (PIC) and Personal Information Processors (PIP) may be Inadequate

It may be inadequate in the sense that a question as to who is a PIC or PIP in an online environment when a browser visits a website, cookies are being sent and stored to and from a number of sources around the globe. “A cookie, also known as an HTTP cookie, web cookie, or browser cookie, is usually a small piece of data sent from a website and stored in a user’s web browser while a user is browsing a website.xxx Although cookies cannot carry viruses, and cannot install malware on the host computer, tracking cookies and especially third-party tracking cookies are commonly used as ways to compile long-term records of individuals’ browsing histories — a major privacy concern that has prompted European and US law makers to take action.”[14]

Other interesting provisions

Interestingly, the bill makes the right to privacy of the data subject transmissible[15] to his heirs after the death of the data subject. It remains to be seen however how this new provision will play a role in the privacy protection law of our country.

Another interesting provision is the extraterritorial application[16] of the law.

Record-keeping, Society’s Way to Remedy its Benign Capacity to Forget

As enunciated by the Supreme Court in Ople vs. Torres “the right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources — governments, journalists, employers, social scientists, etc. xxx It is timely to take note of the well-worded warning of Kalvin, Jr., “the disturbing result could be that everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to forget.”


Endnotes

[1] Sections 1, 2, 3(1), 6, 8, and 17 of Article III of the 1987 Constitution

[2] Civil Code (Articles 26, 32, and 723), Revised Penal Code (Articles 229, 280 and 290-292)

[3] Anti-Wiretapping Law, Secrecy of Bank Deposits Act, and the Intellectual Property Code

[4]See G.R. No. 127685, July 23, 1998 at: http://www.lawphil.net/judjuris/juri1998/jul1998/gr_127685_1998.html

[5] Article 12

[6] Sec. 4, Commonwealth Act No. 591 [1940]

[7] Sec. 24 [c] and 28 [e], R.A. 1161, as amended.

[8] See RAND Europe, Review of the European Data Protection Directive at: http://www.rand.org/pubs/technical_reports/2009/RAND_TR710.pdf

[9] Supra

[10] See Section 5 of the Senate Bill at: http://www.senate.gov.ph/lisdata/1218710275!.pdf

[11] See HUNTON & WILLIAMS LLP, Philippines Passes Omnibus Data Protection Law at: http://www.huntonprivacyblog.com/2012/03/articles/philippines-passes-omnibus-data-protection-law/

[12] See Graham Greenleaf, ASEAN’s New Data Privacy Laws: Malaysia, the Philippines and Singapore at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2049234&http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2049234

[13] Section 6 of the Data Protection Act of 2011

[14] http://en.wikipedia.org/wiki/HTTP_cookie

[15] Section 16 of the Data Protection Act of 2011

[16] Section 5 of the Data Protection Act of 2011


Fan Art and Copyright: The Tangle and Strangle

Fan creations or more commonly called fan art or fan fiction is an emerging medium of an individual’s self-expression. The fan art scene in the Philippines might not be as developed or as thriving as it has ever been in other countries but its fast rise and imposing penetration to the Philippine pop culture makes it worthy of attention. Its significance on one’s right to express his thoughts, beliefs and opinion, and its tangle and strangle with another person’s intellectual property rights deservingly places it under the microscope of a law student’s inquiring scrutiny.

Unlike in the USA, the Philippine jurisprudence regarding conflicts between fan art creators and copyright owners is barren. Is it because fan creations are legal in the Philippines?

Is it legal?

Under the Intellectual Property Code of the Philippines (IPC), copyright of original literary and artistic works shall belong to the author or creator of such work[1]. The IPC also unequivocally reserves the right to make transformation and communicate derivative works of their original work to the public[2]. Derivative work includes dramatization, translation, adaptation, abridgment, or other transformation of the original work.

A fan art means an artistic or literary work based on a character or a story created by a person other than the artist who created the original character or story where such artwork is based. As such, a fan art is a derivative work or a transformation of an original copyrightable work. It is therefore not impossible for these fan creations to be the subject of legal tangles and strangles.

Since fan arts are mostly built upon or an offspring of the whole or part of an original copyrightable work then understanding and employing fair use is the only hope of fan creators to make sure that they can walk out of legal battles against the copyright owners unscathed.

Section 185 of the IPC provides that the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Furthermore, in determining whether a fan art is fair use, the following factors shall be considered:

  1. purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Based on the above, a fan art which has for its purpose critiquing an original work is fair use of a copyrighted work. For example, a fan creation of Ash Ketchum of the animated series POKEMON that depicts the said character as violating animal rights is a permissible fan artwork because of the purpose of its use.

It is also important to always disclose clearly that the fan art is unofficial and that it is just a fan art.

The most sensitive among the abovementioned factors in determining fair use would be the effect of the fan art upon the potential market for or value of the copyrighted work as when the fan art competes and is inimical to the market of the original work. So it is always safe to be non-commercial than profit from your fan art.

Tolerating Fan Creations

The reason why fan art’s popularity is rising so fast and that it rises almost unchallenged despite the legal tangles and strangles involved is that it also serves as a free advertising medium for commercial original works.

The creators and artist would also want to avoid burning bridges with their fans especially when they do not have harmful effect upon the market of the copyrighted work.

Come Original

The moral lesson is: while it is true that there may be such permissible fan art or fan creation and that as much as possible creators and artists would not want to antagonize their fans by aggressively pursuing copyright infringement cases, it is still better if you “come original” as what the 311 song entitled “Come Original” says.


Endnotes

[1] Sec. 178.1

[2] Sec. 177.2


The e-Legality of Downloading

Hayaan niyong pilipitin ko nang kaunti ang mga salita ni Ginoong Lourd de Veyra na isang manunula, manunulat, at sikat na TV personality.

“Naliligo tayo sa mala-habagat na buhos ng libreng materyal na galing sa internet.” The quantity of copyrighted materials available in the internet and susceptible to acquisition by almost everyone who has access to it without compensating the copyright owners of those materials is overwhelming. Halos lahat ng klase meron (halimbawa album ng “The Mars Volta,” komiks ng “Coheed and Cambria,” mga pelikula, mapa-dayuhan tulad ng mga klasikong “Basic Instinct,” “The Godfather,” at bagong labas na “The Avengers,” o gawang Pilipino tulad ng “Ang Panday,” pati mga pelikula ni John Lloyd at Bea Alonzo). Malamang nga meron na ring pirata nung pamosong nobelang Fifty Shades of Landi, ah este Fifty Shades of Grey pala. Daig pa ang Divisoria. Kasi sa internet walang tawarang nagaganap. Parang pista, halos lahat ng nakahain libre at pwedeng balik-balikan. What is appalling is that the fete is neverending—anyone is welcome to enter anytime and take something for nothing. What is very alarming is the blatant disregard to the rights of the creators of the copyrighted works. The question that lingers to everyone’s mind would be, “Is downloading copyrighted works illegal in the Philippines?”

It depends.

Section 33(b) of the e-Commerce Act of 2000[1] provides:

SEC. 33. Penalties. – The following Acts shall be penalized by fine and/or imprisonment, as follows:

xxx xxx

(b) Piracy or the unauthorized copying, reproduction, dissemination, 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 recordings 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 (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years;

Corollary to the abovementioned provision, the act of downloading a copyrighted work is not punishable unless it is done in a manner that infringes intellectual property rights. The phrase “in a manner that infringes intellectual property rights” should be associated with the provisions of the Intellectual Property Code of the Philippines (IPC)[2].

Under Section 177 of the IPC, to the copyright owner belongs the exclusive right to: (1) reproduce; (2) make an adaptation; (3) effect first publication: (4) have the work rented; (5) have a public display; (6) have public performance; and (7) communicate it to the public. This is of course subject to certain limitations under Chapter VIII of the IPC. Thus, the act of downloading a copyrighted work will be punishable only if such act is coupled with any of the aforementioned acts absent the consent of the copyright owner. Thus, if the downloader only uses the copyrighted work for his own personal and non-commercial purposes, he is not liable for copyright infringement by his mere act of downloading the copyrighted work.

The foregoing may be true only in cases of direct downloading.

A downloader will definitely court legal tangle and strangle in cases of unauthorized P2P (peer to peer) or torrent downloading. This is because while a person downloads a file using a P2P software (e.g. BitTorrent, Gnutella, uTorrent, etc) smaller chunks of files that he has already downloaded in his computer are simultaneously uploaded and made available to other downloaders who use the same P2P/torrent software. There is always downloading and uploading at the same time. By uploading the copyrighted work, the user is in effect making the copyrighted work available to the public. If this is done without the consent of the copyright owner, the act will then come within the purview of the phrase “in a manner that infringes intellectual property rights.”

Americans have SOPA/PIPA, Britons have Digital Economy Act 2010, the French have HADOPI law, the people from the New Zealand have the “Three-Strike-Rule.”

Several months ago, cyberspace was once shaken by two proposed legislations in the USA. The “Stop Online Piracy Act” (SOPA) and “Protect IP Act of 2011” (PIPA) seek to give US corporations and their government the right to an affirmative relief from US courts to order internet providers and advertising companies to block websites that are suspected of abetting or are themselves violating US copyright laws. Common to both proposed legislation is the granting of power to the US government to prevent access to the domain name system of the websites suspected of online piracy. A domain name system (DNS) is characterized by many as the phonebook of the internet. According to Marshall Brain and Stephanie Crawford[3], DNS converts Internet Protocol (IP) addresses that computers use to identify each other in the network, which are usually numerical in form (e.g. 123.342.89), into names recognizable by humans such as legalesecaprice.blogspot.com. A website caught as abetting or enabling copyright infringement will be blocked from the DNS servers. The blockage will be for the entire website even if not all of its contents violate copyright laws.

Aside from the overwhelming opposition from the cyberspace, it is submitted that it is primarily because of this feature of the proposed bills that halts their enactment into law. The American legislators surely must ensure to strike a balance between giving protection to copyright owners and avoiding overbreadth and sweeping application without regard to the legal contents of such websites.

The Digital Economy Act of 2010 of U.K., the HADOPI law of France and the Three-Strike-Rule of New Zealand, on the other hand, are not without legal infirmities.

All of three laws contain almost similar provisions regarding their enforcement. Under these laws, if it appears on the part of the copyright owner that a subscriber to the internet commits copyright infringement on the owner’s work, the owner may make a copyright infringement report to the Internet Service Provider (ISP) who will notify the concerned subscriber of such report. The ISP will also be required to monitor the internet activity of the subscriber. If the subscriber, despite such notice, continues to commit copyright infringement the subscriber will be blocked from the use of the internet and the ISP will be prohibited from providing internet connection to the subscriber.

What is controversial in these laws is that the mere appearance, not the actual commission, of copyright infringement is sufficient to commence legal action and penalize the subscriber suspected committing copyright infringement.

This is not only repugnant to universally accepted principles of justice and fair play but also violative of the due process of law. These kinds of laws will never have a leg to stand on in the Pearl of the Orient Seas.

The 1987 Constitution of the Philippines guarantees that no person shall be deprived of life, liberty or property without due process of law. On this score alone, the foregoing laws and proposed bills cannot land its feet in the shores of Pearl of the Orient Seas.

What about the Philippines?

On May 18, 2012, Rep. Irwin Tieng and Rep. Mariano Velarde submitted to the House of Representatives House Bill No. 6187[4] otherwise known as “ANTI-ONLINE PIRACY ACT OF 2011” (permit me to call it APA not because it is a substantial reproduction of Uncle Sam’s SOPA and PIPA but simply because it is the most obvious appellation for it).

While its counterpart laws/bills abroad deal with copyright infringement of virtually any literary or artistic works capable of being transformed or stored in the internet, APA seeks to penalize only online piracy of music recordings or films. Section 2 of APA on the declaration of state policy provides that the “government shall exert efforts to combat online piracy that has seriously [sic] damaging the entertainment industry.”

Noticeable in this proposed bill is its very limited application. If indeed the state wants to protect the copyright owners from online piracy why not come up with a law that protects all kinds of literary and artistic works from unauthorized distribution in the internet.

Indeed, because of the rampant piracy in our country, laws are necessary to protect the rights of copyright owners from online piracy.

Laws are mere scrap of papers if they cannot be implemented effectively. Legislating must be coupled with effective implementation.

Sa wakas.

The long arms of the internet reach almost anyone in the world in a snap of a finger or in a click of a mouse. Because of this, copyrighted works can be distributed easily to the widest audiences possible unlike in the past. Societies must be able to weigh and balance these benefits with the ugly side of cyberspace. Governments must be careful in crafting laws that regulate the use of the internet or it will contribute to the breakdown of the one most wonderful inventions of man.


Endnotes

[1] See the full text at: http://www.chanrobles.com/republicactno8792.htm#.UFQJbo1lSos

[2] See the full text at: http://www.lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html

[3] http://www.howstuffworks.com/dns.htm

[4] A copy of the bill is available at: http://www.congress.gov.ph/download/index.php?d=billstext_results

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2 comments
  1. bertmanalang said:

    Let us not think about the burden of the call center agent on how he will be able to gather information from foreigner. The government did not think about that matter when it crafted the Data Privacy Act. In fact, the government did not make any sort of thinking; it just copied the Data Protection Law from the laws of other countries.

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