[Mirror] Dumalag, Cyrus Gen

SY 2012-2013, First Semester


Comments on Data Protection Law

Preventing copyright infringement is not easy. With technology, virtually anything can be copied easily and nearly perfectly. One way to combat potential copyright infringement is to legislate laws such as Anti-Counterfeiting Trade Agreement ACTA and Stop Online Piracy Act of the United States and other Asian and European countries which is intended to strengthen Copyright laws of the Philippines to penalize copyright offenders that is said to affect the music and film industry in the country. Online streaming, uploading and downloading of copyright materials will be subjected to the proposed law.

Downloading involves the receipt of a file copied from a remote network location.

Copyright infringement is committed through the unauthorized use of works under copyright, infringing the copyright holder’s “exclusive rights“, such as the right to reproduce or perform the copyrighted work, spread the information contained within copyrighted works, or to make derivative works. It often refers to copying “intellectual property” without written permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work’s creator.

Under R.A 8293 Sec. 172.2 works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose.

Sec. 171.1 Copyright or economic rights consist of the exclusive right to carry out, authorize or prevent the reproduction of the work or substantial portion of the work;

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;

The E-Commerce Law specifically Sec. 33 (b) penalized individuals for 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.

But we shouldn’t rely on “fair use”, since fair use is simply a guarantee that copyright laws do not infringe freedom of speech and expression (ART. 3, Sec. 4, 1987 Constitution).

In conclusion, the idea of legislating a new law which strengthen Copyright laws of the Philippines to penalize copyright offenders and the protection of copyright holders on the other hand must be harmonized as both of them are anchored under our fundamental law.


Comments on the Fan Art Legal Issue

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.

There are many examples of fan art, and these may start when kids are little and want to draw their favorite cartoon character. Those gifted in art may learn exactly how to draw or recreate something beloved from a comic book, TV show, video game or movie.

The answer to the question on whether fan art can be registered as trademark in the Philippines can be anchored on the principles provided under R.A.8293 otherwise known as the Intellectual Property Code of the Philippines.

Under RA 8293, there are two types of works: original and derivative. Original works are those literary and artistic works are those original intellectual creations in the literary and artistic domain protected from the moment of creation.

While, derivative works was defined as those falling under the following category as (1) dramatizations, translations, adaptations, abridgments, and other alterations of literary or artistic work, and (2) 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.

Sec173.2 further provides, that such new works 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.

Clearly, fan art in the strict legal sense defined under R.A. 8293 do not qualify as any of the two types of works which are protected under the said Act.

But can we invoke the defense of fair use in an infringement case for using another’s work, without permission, in the creation of his own work?

Sec. 185 of R.A. 8293 outlines certain purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, commentary, news reporting, teaching, scholarship, and research. According to this section, there are four factors to be considered in determining whether or not a particular use is fair:

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

But fair use is slippery. There are four factors for courts to weigh when a defendant accused of infringement claims the fair use defense, and this four-factor balancing test leads to subjective, unpredictable results.

In conclusion, it’s up to each artist to analyze risks of making items that are borrowed from other’s brands, characters, or imagery.


References


DOWNLOADING AND INFRINGEMENT

With the recent boom of the Philippine outsourcing industry, there has been much clamor to enact a privacy and data protection legislation to ensure that the growth of the outsourcing industry can be sustained.

Once signed into law, the legislation will impose a privacy regime modeled on the EU Data Protection Directive. It features significant notice, consent and data breach notification requirements, and it imposes direct obligations on both data controllers and data processors. The law will create a National Privacy Commission with authority to monitor compliance and recommended to the DOJ the imposition of penalties for noncompliance including imprisonment and fines.

The provision makes it clear that foreign personal information is outside the scope of the data protection granted under the act that no one hand gives the foreign outsources-comfort of being protected by their own data protection law and on the other hand leaves a country without a data protection law unprotected.

The applicability of the act is only towards Philippines data subject and to entities having a linkage with Philippines, seems to leave the outsourcing industry exposed to vulnerabilities which may arise with regard to data protection.

One of the main reason for the creation of this act is to regulate the processing of personal data to ensure that all transactions related thereto are conducted in an efficient and responsible manner but it is a fact that efficiency and reliability of every transactions are the fundamental duty of those who are involve, the purpose of this act may be manipulated by those who have access with the database this can be gleaned from the fact that, data information are gathered in the hands of individuals who may use them as a tool for their own interest and benefit.

Personal data information can now be used against the person who owns it by identity thieves, blackmailers etc. since this may legalize the intrusion in people’s private lives with the help of data collection and processing. This may do more harm than good, and as we know data do not have to be collected to achieve this goal. Thus data protection act can be used as an instrument to violate our fundamental right to privacy.

Lastly, terrorist, thieves, forgers and other lawless elements may gain unlawful access to vital informations in the system to perpetuate crimes against our country and citizens. The system could also be flooded with inaccuracies in data processing since data are far more than data controllers, the complexity of this scheme render it impossible to check everything particularly the information whether such have complied with the fundamental laws of the land before being processed.

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