SY 2012-2013, First Semester
- Data Protection Act 2011
- Legality of Fan Art in the Philippines
- Legality of Downloading Online Materials
Commentary and Analysis on the Data Protection Act of 2011
On March 20, 2012, the Senate of the Philippines unanimously approved the omnibus Data Privacy Act of 2011, 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). 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 recommend to the Department of Justice the imposition of penalties for noncompliance, including imprisonment and fines.
The bill, authored by Sen. Edgardo Angara, mandates public and private entities to protect and preserve the integrity, security and confidentiality of personal data collected in its operations. It emphasizes the importance of complying with international data security standards. That is to lay down the basis for companies to be responsible in maintaining the confidentiality and integrity of digital data.
Although the bill does not contain cross-border data transfer restrictions, the law will apply to certain foreign processing of personal information about Philippine residents. In an apparent effort to protect the domestic outsourcing industry, however, the 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.
In the current scenario, the BPO and IT sector is facing issues such as identity theft, data manipulation, information fraudulence, etc. as we have to reveal the personal information to a third party vendor and there are loop holes for corrupted people to access our personal information and details. Today hacking and malware is a trend, but it cannot be promoted, right rules and regulations are essential to suppress these mishaps. Consequently, our country lacks the over-arching policy framework that upholds privacy laws and penalizes individuals for overstepping them.
Now, the introduced law is to ensure that data manipulation is taken care of, particularly in both private and public sector. The Data privacy act along with Cybercrime Prevention act will make sure that unauthorized access to data is regulated, individuals revealing their data for services are not harmed, and also putting limits to the liberty of data collections from buyers by the service providers. Limits to data collection means any service provider or vendor can only collect information about the client and customer which is required for the transaction process. There are many vendors who collect information in addition to what they require.
The implementation of new rules and regulations will enhance the outsourcing business. Service buyers will be more confident enough to get into a contract with any service provider in the Asia-Pacific offshore region. There are many service buyers who are looking forward to outsource healthcare information management related jobs to the offshore which has direct access to the key information and details of any customer. Implementation of the Data privacy act will make such clients to be more confident to disclose the personal details. A data privacy law will pave the way to increased client or investor confidence as it solidifies our commitment of data security to our foreign clients.
By establishing such a policy framework, we can actually protect Internet freedoms while making sure the Web remains safe. In this way, we can reduce the risk for true harm to be inflicted and heighten the opportunity for our digital space to be a truly productive and collaborative venue.
What is a Fan Art?
As defined in Wikipedia, 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. Usually, it refers to fan labor artworks by amateur artists, or artists who are unpaid for their fan creations.
Fan art reinforces the original creative work. It involves the original work of the original artist and the work of the subsequent artist based on the original work. It keeps the original work alive but without the original work, fan art will not exist.
What are the applicable laws?
As provided from the Copyright Law of the Philippines under R.A. 8293:
Copyright law protects original, creative works of authorship such as books, manuscripts, music, film and video productions, computer code and works of art such as paintings and photos—among other things. Authors of these works have exclusive rights to do the following with their work:
- Reproduce the work
- Distribute copies of the work to the public
- Perform the work publicly
- Display the copyrighted work publicly
- Prepare derivative works based upon the work
In connection with the abovementioned law, fan art is considered as a derivative work. And as defined in the law, derivative work is a new, original product that includes aspects of a preexisting, already copyrighted work. Also known as a “new version,” derivative works can include musical arrangements, motion pictures, art reproductions, sound recordings or translations. They can also include dramatizations and fictionalizations, such as a movie based on a play.
Only copyright owners have the exclusive right to produce derivative works based on their original, copyrighted works. Copyright on original works of authorship is automatic, and registration—while it does carry significant benefits, like the right to sue for infringement—is not required for a work to be protected; protection attaches immediately when the work is completed. However, a copyright owner can grant permission to someone else to make a derivative work based on his or her original—if permission is granted (in the form of a license or assignment), then creation of the derivative work is not infringement.
Therefore, you have to seek first permission from the original artist before you can use the original, if not the infringement arises. However, there is an exception to this general rule, seek permission first, and that is the fair use doctrine. This is a defense available to someone who uses another’s work—without permission—in the creation of his or her own.
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:
- purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- the effect of the use upon the potential market for or value of the copyrighted work.
Fan arts may be validly legal for as long as the subsequent artist follows what the law mandates him to comply with; contradictory act of what the law provides infringement arises. Symbiotic relationship exists between the original artist and the subsequent artist. The original artist benefits from the subsequent artist and vice versa.
As provided in Republic Act 8293, it substantially provides that copyright infringement is 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.(Wikipedia) The act of downloading a copy of a copyrighted material is considered a copyright infringement without the permission from the copyright holder infringing the copyright holder’s “exclusive rights”.
Torrents and other file sharing software are the means of downloading which are made for legal objectives but are used illicitly. They are legal because they give opportunity to share files which is beneficial to others, sharing what they made to the new generations. But downloading copyrighted materials is what they used for without the consent of the copyright holder, hence illicitly used.
Ratification of ACTA treaty in the Philippines: Violative of the Freedom of Expression and Privacy?
The Anti-Counterfeiting Trade Agreement (ACTA) is a multinational treaty for the purpose of establishing international standards for intellectual property rights enforcement. The agreement aims to establish an international legal framework for targeting counterfeit goods, generic medicines and copyright infringement on the Internet, and would create a new governing body outside existing forums, such as the World Trade Organization, the World Intellectual Property Organization, or the United Nations. (Wikipedia)
Many researchers have criticized the treaty for it adversely affects the fundamental rights of a person: freedom of expression and communication privacy One of them is Aaron Shaw, Research Fellow at the Berkman Center for Internet & Society at Harvard University, according to him ”ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties. Even though the precise terms of ACTA remain undecided, the negotiants’ preliminary documents reveal many troubling aspects of the proposed agreement” such as removing “legal safeguards that protect Internet Service Providers from liability for the actions of their subscribers” in effect giving ISPs no option but to comply with privacy invasions. Shaw further says that “[ACTA] would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process”.
Considering all the above mentioned comments and informations, I would recommend that the Philippine government should uphold the constitutional law of the land which is the supreme and the highest law in the Philippine setting. This constitutional law includes the constitutional rights of a person. Some of these rights are the freedom of expression and privacy which in ratifying to that treaty, it will go against the said constitutional rights. Authorities may easily interfere to someone’s privacy and intervene to someone’s freedom of expression as provided in the treaty if something is suspicious or unusual in engaging activities in the internet.