[Mirror] Delfin, Mary Nespher

SY 2012-2013, First Semester

Data Protection Bill of 2011

“Communication is two-sided – vital and profound communication makes demands also on those who are to receive it… demands in the sense of concentration, of genuine effort to receive what is being communicated. “

~ Roger Sessions ~

Freedom of expression and communication goes hand in hand. It is one of the rights that the 1987 Constitution protects. But as the old saying goes, anything in extreme is toxic. Too much freedom of expression will lead to misunderstanding and sometimes fatal disputes. With the passing to Third Reading by the Senate of Data Privacy Act of 2011, the State is simply exercising its police power. However, I am reluctant with some of the provisions of this bill. I have two points that I would like to tackle. Take for example the excessive penalty for violating this bill. General penalty of imprisonment from 1 year and six months to 5 years and penalty of not less than Php1,000,000 but not more than Php 2,000,000 is definitely excessive. As provided by the Constitution under Section 19 of the Bill of Rights, that excessive fines shall not be imposed x x x unless for compelling reasons involving heinous crimes. Although the Supreme Court have already held in various cases questioning how to determine what is an excessive penalty, it was generally held that the determination will depend on the situation and the sound discretion of court. It will depend on how the court will appreciate the evidence to arrive with the decision. For me, although violating one’s privacy could not be quantified as to provide a standard amount of award for damages, the Php 2,00,000 as maximum fine is very excessive. How do I say so? First and foremost, we need to determine first what was the violation. Was that considered as a heinous crime. Going back again to Section 19 of Article 3, excessive fines shall only be given for compelling reasons that involve HEINOUS CRIMES. This could be defined as those crimes or offenses that are exceedingly or flagrantly bad or evil or those committed with extreme cruelty as to shock the general moral sense. Now is the violation that flagrant or offensive? It is not as shocking as that of a crime of rape or murder. As a matter of fact, the violation is providing one’s personal information to another without his or her consent? In layman’s term the act of gossiping is now being punishable of a maximum of 5 years imprisonment and Php 2,000,000 as fine. Which leads me to my second point which is the act of providing the information to another without the subject’s consent. As I have already mentioned, does the act of gossiping falls under this act as well? In gossiping definitely the consent of the subject is not freely given. Although in gossiping most of the time it is just rumors about the person. In this Bill, what is being protected is the personal information of the person. It is admirable that our dear legislators only wants the people to be protected and not to be harassed by others because their personal information shall only be taken and provided if there is a justified reason. As provided by Section 26 of Article VI, for a bill to be passed it shall only embrace one subject. Although the Title of the Bill is clear on what it wants to be protected, the act that could fall under it is very general and it is a catch all subject. As I have already discussed, the simple act of gossiping could fall under this topic.

To sum it all up, the Bill is definitely going to be beneficial to us all. But just like any other laws created by men, there are loopholes that could still be amended to better cater its purpose to the public in general.

The Legality of Fan Art

I am sure everyone of us have already encountered or seen a fan art. This is the type of artwork that is based on a famous character or story. This is called a fan art because the artist is not the artist who actually created these famous characters. If you haven’t seen one, you just need to type in “fan art” in your search engines and voila! you will be provided of more than a million samples of this art. But is it actually legal?

Before I answer that question, let me first define what is a derivative work. In layman’s term, it is a new form of an already copyrighted work. There could be a hint of existence of some parts of the original work but it is considered as totally new. Examples of which are provided for by Section 173. 1 of the law on Copyright. It could either be an adaptation or a collection. Now lets go back to the previous posted question, is fan art illegal? It would depend on the purpose of such fan art. Section 185.1 of the Copyright Law provided requisites for it to be considered as a fair use of the copyright work and one of which is the purpose and the character of the use, which includes whether the use is of commercial nature or non-profit and educational in nature. This is related to another requisite which is the amount and substantiality of the portion used in the copyrighted work. Thus if the purpose is for commercialization of the fan art such as using it as t-shirt prints that will be marketed to the public then it is no longer fair use of the copyright. But if the fan art is just for private hobby of the person or just as personal collection then it could still fall under the category for fair use.

To sum it up, the government and the law does not totally restrict the freedom of expression as it is one of the rights being protected by the Bill of Rights but we should also take note of the fair usage of the copyright so as not to incur any infringement.

Is downloading really illegal?

Downloading from the internet is such a common trend right now that all of us are guilty of. As a matter of fact, I am guilty of downloading some stuff from the internet like reviewers and songs. After taking up the Copyright Law as part of my curriculum in law school it turned out I could have been guilty of copyright infringement, if not for one provision therein. I am referring to the provision of the law which tackles the “Fair Use” of the copyrighted work. As what the law states, “(T)he 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.” So it only means that if I will be downloading something from the internet which is a copyrighted work, my purpose of downloading it will make a big difference.

The question now is that, will the act of downloading the article from the internet which was posted by another person who is not the author of said work a copyright infringement? Well, it will depend. Since Article 85 of the law on Copyright does not distinguish who will be the one who will be downloading the work. If the purpose is still for scholastic reasons, then it could not be classified as an infringement regardless if the person who posted it is not the author himself. It will be a different case for the person who posted this material over the internet. Because the fact that he posted it for everyone to have access to, then it is as if he is the actual author of said work.

  1. bertmanalang said:

    Last week, a news from Pakistan hit the headline. According to the report, throngs of Pakistani muslim torched Buddhist and Hindu temples which also led to the death of some people, because somebody posted on the internet a picture of a burned Quran. It turned out that the supposed culprit was a 9 year old boy. The boy denied posting the picture. He explained that one of his friends forwarded the picture to his computer.
    Question. If such incident will happen in the Philippines, in view of the enactment of the Anti-Cybercrime Act of 2012, will the boy be liable?

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