[Mirror] Domingo, Jaimie Rae

SY 2012-2013, First Semester


Data Privacy Act of 2011

Comment on the Data Privacy Act of 2011

In the Data Privacy Act of 2011, Congress has recognized the role of information and technology in the country, to wit:

The State recognizes the vital role of information and communications technology in nation- building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected. (Sec. 2, Data Privacy Act)

Moreover, the fundamental law of the land provides in the Bill of Rights that:

Section 3. (1) 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.

Thus, it is correct to postulate that people value their right to privacy of communication and information as guaranteed by the 1987 Constitution and recognized in the recently passed Data Privacy Act of 2011.

In today’s time, information is key to numerous undertakings. Information obtained regarding the performance of a certain company may lead investors to either buy or drop their shares of stock with regards to that company. However, the information being referred to in the Data Privacy Act pertains to information of the sensitive kind which in the ordinary course of business, a person would not divulge or would hesitate in giving out said information.

As earlier stated, the purpose of the Data Privacy Act is to protect and secure information which would otherwise be handed over to a Personal Information Processor for the purpose of processing the same usually in compliance with the regulation power of the State. It is of no doubt that such information should be protected for the very reason that information given out by the Data Subject could be used in a malicious manner which would eventually lead to the prejudice of the Data Subject. Furthermore, persons who are about to give out information to a Personal Information Processor should be secure in themselves that the information they give out would be protected from the willful and malicious targeting of criminals.

In today’s technology, what was once impossible or improbable now becomes a possibility however it comes with a price like identity theft and credit card theft being rampant especially in the United States. In relation to the Data Privacy Act wherein sensitive and privileged matters may be the information sought after the Data Subject, the State should afford protection to the millions of Data Subject as it is this protection that is afforded to the citizens that lets the citizen-taxpayer feel the altruistic feeling whenever he pays his taxes.

That being said, the Data Privacy Act of 2011 is timely as it is very much needed in the modern times. However, as with the other laws enacted by Congress, the problem that needs to be addressed is the implementation of said laws. The Philippines has numerous laws which are timely and commendable however it is the implementation of these laws that should be addressed and focused on by the Executive Branch of the government.


Legal Dilemma: Fan Art

The Legality of Fan Art in the Philippines

My sister is fond of going to COSPLAYS. Whenever an opportunity presents itself, she will surely bug me to help her with her costume and to take her to the venue of the COSPLAY. She thrives on attention. I, for one, have observed quietly from the sidelines the enthusiasm of millions of fans in showing off their costumes which is a product of many preparations and hardwork. Costumes worn at these COSPLAYS are really a sight for sore eyes. The detail of the costumes reflect the amount of time a person has invested in preparing it. These costumes are often referred to as FAN ART.

Fan art has been defined as:

Fan art or fanart is artwork 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. [1]

From the definition provided above, it can be said that Fan Art is a derived work of a person which can be protected under the Intellectual Property Code under Copyright Laws. Under the Code, a Derivative Work is defined as:

Section 173. Derivative Works. – 173.1. The 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)

173.2. The 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.

Fan Art being an alteration of an original artistic work is protected in the Philippines as it falls under Section 173 (a) for being “other alterations of literary or artistic works”. However, Fan Art may also cause confusion as the law also expressly states that the author of the work shall have Copyright or Economic Rights as provided under Section 177 [2] of the Intellectual Property Code. Under these rights the author of the work shall have the exclusive right to the reproduction of the work or to its transformation which is what happens when Fan Art is created. Thus, confusion is created when Fan Art and Copyright Laws collide.

Fan Art may be a case for infringement but the facts and circumstances of each case is needed to be taken into consideration. However, law suits involving fan art is seldom heard of as fan art is highly tolerated as a means of advertising and promoting the work of the original author himself. Thus in an article by Jonathan Bailey, it states:

XXX XXX XXX

fan fiction and art is usually not very harmful. Fans create works that are openly recognized to be non-canon to the story and are not replacements for the original.

In fact, some feel these fan communities actually serve a valuable service to copyright holders by providing a thriving site for fans to visit, keeping them entertained and engage between official releases. In short, since fan creations don’t take away sales of the original work, they are often seen as free promotion and a way to grow the brand without cost or effort.

XXX XXX XXX

Fan fiction and fan art communities, in turn, usually have a set of rules that they follow to preserve their symbiotic relationship.

First, they agree to not profit from or sell copies of their creations. Though some of the communities run ads to cover hosting costs, most do not turn any profit and the individual authors never sell their works. Second, they always proclaim that their work is unofficial and has no connection with the creators. Finally, they respond to requests from the copyright holder to remove content and work with the creator as needed.

In short, the community works to ensure they don’t hurt the original creator’s ability to profit from the work and the creator tolerates what is technically a copyright infringement in many cases. Everyone seems to be happy though, on rare occasions, the system can break down. [3]

In the aforequoted article, the author also shares a few pointers [4] on how to avoid conflict in creating fan art.

In sum, it is this author’s opinion that fan art is protected under the Philippine law as long as the art created does not amount to an infringement on the original author’s copyright or economic rights and as long as the fans creating the artwork does not derive profit from such artwork to the prejudice of the original author of the work.


Endnotes

[1] Fan Art, http://www.wikipedia.org, 26 August 2012

[2] Section 177. Copyright or Economic Rights. – Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:
177.1. Reproduction of the work or substantial portion of the work;
177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;
177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
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)
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a)

[3] The Messy World of Fan Art and Copyright, http://www.plagiarismtoday.com, May 13, 2010

[4] Staying Safe

If you’re interested in creating fan fiction or fan art, here are a few quick things I would say to do to make sure you don’t find yourself in a copyright or trademark conflict.

Check the Rules: Look for the rules of whatever you’re a fan of. Fan art and fan fiction communities often have guidelines and some authors have made public statements on the issue. Do some research before creating and uploading.

Make it Clearly Unofficial: Have clear statements on your site that your site and your work is not an official site and is just a fan creation. Though it may not help with an actual trademark or copyright dispute, it shows good faith and encourages rightsholders to work with you.

Be Non-Commercial: This is an element of the unspoken rule, but try to be completely non-commercial with your works, no selling copies, no sponsorships, no advertisements.

Be Careful with Domains: Be mindful that your domain can become a trademark issue if it leads others to think that you might be an official site. Make it clear with your domain that it is a fan creation.

Comply with Requests: If the creator or an agent on their behalf makes a request of you, obey it. If it’s a polite request, complying helps avoid a less-than-polite request later and builds a good rapport. If it is a more stern one, it is even more important to comply.

By no means do these steps prevent fan fiction and fan art from being a technical infringement, but they may help your use of the content be considered a tolerated and even respected use of the source material.


Downloading and Copyright and Infringement in Between

Under Section 171.1 of the Intellectual Property Code of the Philippines, copyright is defined as a right over literary and artistic works which are original intellectual creations in the literary and artistic domain protected from the moment of creation. Thus, the law provides that works are protected from the time of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.

To this end, authors are assured that their works are protected without need of registration with the Intellectual Property Office. However, nowadays, with the technology that is available, people are now “resourceful” in obtaining copyrighted works without the author’s consent or permission. Moreover, such act of obtaining the copyrighted work is done through the internet by “downloading” the work of the author.

Under Philippine law, an author has both economic [1] and moral rights [2]. Thus, the author of the copyrighted work has the right to authorize or prevent the reproduction or distribution of his work. But with technology on the rise, rampant unauthorized distribution and/or reproduction of copyrighted works is difficult to prevent and/or trace much more to prosecute the alleged violators. Sadly, the Philippines is not the only country faced with this dilemma.

Moreover, the trend nowadays is to share copyrighted works through social sites with the use of P2P or Peer to Peer sharing. This is an illegal sharing of copyrighted work as it is tantamount to the reproduction and/or the distribution of the copyrighted work which is expressly reserved to the owner of the copyright.

On the part of the downloader who is benefitting from his “resourcefulness”, they are what is referred to as the “direct infringers” and is thusly just as liable for copyright infringement as the uploaders of the copyrighted work.

However, some countries are aggressively fighting copyright infringement

In the United States of America, there is the SOPA/PIPA bill which is pending before the Senate. The SOPA bill or the Stop Online Piracy Act will empower the US government and private entities to “blacklist” those websites allegedly committing infringement. On the other hand, PIPA or the Protect IP Act will enable the US government and corporations to prosecute websites who are allowing or promoting copyright infringement whether these websites are based on the US or not.

Ultimately, the bills are designed to work in support of each other with the main goal of protecting intellectual property by limiting copyright infringement done through the use of the internet.

Another is the United Kingdom’s Digital Economy Act of 2010. This law aims to limit copyright infringement by limiting and/or effectively terminating the internet connections of alleged copyright infringers.

In France, there is the HAPODI law, rather HAPODI is the organization (the High Authority for Transmission of Creative Works and Copyright Protection on the Internet) tasked to administer the law whose ultimate aim is to minimize or totally abolish copyright infringement by ensuring that internet subscribers “screen” their internet connections so that no transfer of copyrighted work will occur without authorization from the copyright owner. It is similar to the UK’s Digital Economy Act in that alleged copyright infringers’ losses their internet connection upon repeated offense.

Another controversial law is New Zealand’s “three-strikes rule” which is similar to both France’s HAPODI law and the UK’s Digital Economy Act. Reportedly these enacted laws has since its introduction lessened to a great extent the number of known internet copyright infringement.

The common denominator among these countries is the graduated response to the alleged copyright infringers. This means that the offender is given multiple opportunities to amend or correct his ways before imposing the penultimate penalty of disconnection from the world wide web permanently.

However, these controversial laws has raised the issue that there is now internet censorship brought about by the enactment of the aforementioned laws.

In order to resolve issues on copyright infringement, laws such as those mentioned above are enacted so that Intellectual Property may be protected. In line with this, the ACTA treaty or the Anti-Counterfeiting Trade Agreement came into existence as a response to the rampant unauthorized distribution and/or reproduction of copyrighted works among other things. ACTA enables countries to work together in order to minimize if not abolish copyright infringement by enforcing the protection accorded to copyright owners. In sum, through ACTA standards of goods are upheld and may eventually boost a nation’s economy.

In order to remedy online piracy, necessary steps and changes have to be made. Thus, the Philippine government should enter and ratify the ACTA. ACTA claims that it will not monitor the internet but rather provide tools that may be used for protection and enforcement of copyright. Global efforts are ensuing in order to fight counterfeit goods and eventually stabilize the economy and uphold the standards of merchandises.

However, the laws mentioned above do raise the issue on internet censorship. As enunciated in the highest law of the land, freedom of expression[3] is guaranteed to its citizens. Laws and treatises to be entered and/or enacted must define in unambiguous terms its purpose, the scope of protection and its enforcement so as not to lead to arbitrary censorship that is tantamount to a violation of one’s Constitutionally guaranteed rights.

Permanently depriving a person from using the internet on charges of copyright infringement is too harsh a penalty as say for example the alleged copyright infringer is a member of a four-person household, all those persons are forever deprived of enjoying technology through the internet based on charges of infringement whether or not infringement is actually committed. Thus, it is censorship that is occurring with the enactment of these laws.

Although piracy, counterfeit goods and copyright infringement is rampant, there are other ways in which these acts can be monitored without interfering or with minimal interference on one’s constitutionally guaranteed rights.


Endnotes

[1] Sec. 177. Copy or Economic Rights. – Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:
177.1. Reproduction of the work or substantial portion of the work;
177.2 Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;
177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
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)
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work (Sec. 5, P. D. No. 49a)

[2] Sec. 193. Scope of Moral Rights. – The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right:
193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;
193.2. To make any alterations of his work prior to, or to withhold it from publication;
193.3. To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and
193.4. To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. (Sec. 34, P. D. No. 49)

Sec. 194. Breach of Contract. – An author cannot be compelled to perform his contract to create a work or for the publication of his work already in existence. However, he may be held liable for damages for breach of such contract. (Sec. 35, P. D. No. 49)

Sec. 195. Waiver of Moral Rights. – An author may waive his rights mentioned in Section 193 by a written instrument, but no such waiver shall be valid where its effects is to permit another:
195.1. To use the name of the author, or the title of his work, or otherwise to make use of his reputation with respect to any version or adaptation of his work which, because of alterations therein, would substantially tend to injure the literary or artistic reputation of another author; or
195.2. To use the name of the author with respect to a work he did not create.(Sec. 36, P. D. No. 49)

Sec. 196. Contribution to Collective Work. – When an author contributes to a collective work, his right to have his contribution attributed to him is deemed waived unless he expressly reserves it. (Sec. 37. P. D. No. 49)

Sec. 197. Editing, Arranging and Adaptation of Work. – In the absence of a contrary stipulation at the time an author licenses or permits another to use his work, the necessary editing, arranging or adaptation of such work, for publication, broadcast, use in a motion picture, dramatization, or mechanical or electrical reproduction in accordance with the reasonable and customary standards or requirements of the medium in which the work is to be used, shall not be deemed to contravene the author’s rights secured by this chapter. Nor shall complete destruction of a work unconditionally transferred by the author be deemed to violate such rights. (Sec. 38, P. D. No. 49)

Sec. 198. Term of Moral Rights. –
198.1. The rights of an author under this chapter shall last during the lifetime of the author and for fifty (50) years after his death and shall not be assignable or subject to license. The person or persons to be charged with the posthumous enforcement of these rights shall be named in writing to be filed with the National Library. In default of such person or persons, such enforcement shall devolve upon either the author’s heirs, and in default of the heirs, the Director of the National Library.
198.2. For purposes of this Section, “Person” shall mean any individual, partnership, corporation, association, or society. The Director of the National Library may prescribe reasonable fees to be charged for his services in the application of provisions of this Section. (Sec. 39, P. D. No. 49)

Sec. 199. Enforcement Remedies. – Violation of any of the rights conferred by this Chapter shall entitle those charged with their enforcement to the same rights and remedies available to a copyright owner. In addition, damages which may be availed of under the Civil Code may also be recovered. Any damage recovered after the creator’s death shall be held in trust for and remitted to his heirs, and in default of the heirs, shall belong to the government. (Sec. 40, P. D. No. 49)

[3] Sec. 4, Art. III of the 1987 Constitution: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to assemble and petition the government for redress of grievances.


Suggested Readings

  1. How SOPA/PIPA Can Affect You by Jamal http://www.1stwebdesigner.com/design/how-sopa-pipa-can-affect-you/
  2. Peer-to-Peer File Sharing and Copyright Laws: A Primer for Developers http://iptps03.cs.berkeley.edu/final-papers/copyright.pdf
  3. Digital Economy Act of 2010 http://www.wikipedia.org
  4. HADOPI Law http://www.wikipedia.org
  5. Berners-Lee: HADOPI Law is ‘so out of whack it’s ridiculous’ by Olivia Solon, April 19, 2012 http://www.wired.co.uk/news/archive/2012-04/19/hadopi-out-of-whack
  6. New Zealand Passes Three- Strikes Law http://www.zeropaid.com/news/93080/new-zealand-passes-three-strikes-law/
  7. Three Strikes rule has ‘halved piracy’ in New Zealand http://www.bbc.com/news/technology-18953353
  8. Anti- Counterfeiting Trade Agreement http://www.wikipedia.org
  9. ACTA- Anti-counterfeiting Trade Agreement http://ec.europa.eu/trade/tackling-unfair-trade/acta/
  10. Brewing Anti-Online Piracy Bill in the Philippines http://www.yugatech.com/the-internet/brewing-anti-online-piracy-bill-in-the-philippines/
2 comments
  1. bertmanalang said:

    Ratifying ACTA will result to problems far more serious than the problems attributed to the recently enacted Anti-Cybercrime Law. I have read all the blogs posted and I am convinced that many among us do not fully understand the nature and implications of ACTA. I noticed your reference to arbitrary censorship being in violation of the constitutional rights. ACTA far exceed your apprehension. ACTA, through the ACTA Committee, can actually enact provisions that would be binding on countries ratifying ACTA, in complete disregard of such countries legislative departments.
    I have posted a sequel entitled SLEEP NO LONGER II, discussing ACTA, in my blog. I extracted from that sequel the following:
    ACTA Section 1, Article 2 (Nature and Scope of Obligations) reads:

    “Each Party shall give effect to the provisions of this Agreement. A Party may implement in its law more extensive enforcement of intellectual property rights than is required by this Agreement, provided that such enforcement does not contravene the provisions of this Agreement. Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.”

    This section reveals ACTA’s sinister intent to subdue domestic laws in order to insure that ACTA’s provisions are strictly complied with by a would-be party like the Philippines. For one, ACTA does not allow a party to give effect and determine the appropriate method of implementing any of its provision if such party decides to implement ACTA provisions in its domestic laws in a manner that its enforcement is not in accord with what is actually setforth in ACTA. Simply stated, ACTA dictates that a sovereign has NO right to enforce in its territory any ACTA provision whose method of enforcement is not in accord with how ACTA wants a provision to be enforced.”

    This ACTA provision therefore, flies in the face of Section 7, Article II of the 1987 Philippine Constitution, in declaring Philippine State Policies:

    “The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest and the right to self-determination.”

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