SY 2012-2013, First Semester
- Senate Bill No. 2965: The Data Protection Act
- Fan Art: An Art or an infringement?
- Downloading “Free” Infringement?
Senate Bill No. 2965 also known as “The Data Protection Act” recognizes the vital role of information and communications technology in nation building and its inherent obligation to ensure that personal information in information and communication systems in the government and in the private sector are secured and protected. In doing so, the said Act will create a National Privacy Commission to administer and implement the provisions of The Data Protection Act.
As defined in this Senate Bill, “personal information” shall refer to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and ascertained by the entity holding the information, or when put together with other information would identify an individual.
Accordingly, prior to processing of “personal information”, individual or entity should first comply with the requirements of this Senate Bill and other laws before allowing disclosure of information to the public. As mentioned in the said Bill, this is to adhere to the principles of transparency, legitimate purpose and proportionality. Some of the requirements set by the Data Protection Act before “personal information” can be disclosed to the public are as follows:
- There must be a purpose;
- Processing must be lawful;
- Personal Information should be accurate, and relevant;
- Adequate and not excessive in relation to its purpose;
- Retained only for a specified length of time; etc.
- Kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected and processed: Provided, further, That adequate safeguards are guaranteed by said laws authorizing their processing.
In Section 31 of this Data Protection Act, a fine and imprisonment is imposed in case of breach of confidentiality: “The penalty of imprisonment ranging from two (2) years and four (4) months to five (5) years and a fine not less than Five Hundred Thousand Pesos (Php 500,000.00) but not more than Two Million Pesos (Php 2,000,000,000.00) shall be imposed in case of a breach of confidentiality where such breach has resulted in the information being published or reported by media. In this case, the responsible reporter, writer, president, publisher, manager and editor-in-chief shall be liable under this Act.”
The question of most people (especially the media and the press) is that: What about the Constitutional right of “Freedom of speech and of information” which our Philippine Constitution specifically protects? (Article III Section 4 of the Philippine Constitution: No law shall be passed abridging the freedom of speech, of expression, or of the press… XXX)
By criminalizing the mere processing, publishing and reporting by the media of “personal information” as a violation of “BREACH of CONFIDENTIALITY” as provided for in Section 31 of this Senate Bill, do we therefore disregard the need for the transparency and accountability of the public officials?
Perhaps, we need to further evaluate the true purpose of this Data Protection Bill and the people being catered by this act. Will the Data Protection Bill protect the interest of the country as a whole by encouraging more foreign investments? Or will this act merely protects the interest of the few?
Fan Art, is an art created by a “fan” based on the work of the original creator, be it a character from a comic, a story and other. It is a transformation of an original work into another work of art, thereby creating two pieces of work: the original work and the derivative work.
Under the Intellectual Property Code of the Philippines, derivative works are likewise protected by copyright. The question is, who can transform or adopt the original work? Can anyone just modify or change an original work and claim it as their own?
From the moment of creation, the copyright holder (original creator) enjoys several economic rights, one of which is the transformation of the work or the right to create a derivative work. Thus, not anyone can create a derivative work and it is only the original creator or the copyright holder that may freely transform his/her original work.
Having said all of these, one may conclude that Fan Art therefore infringes the copyright holder’s economic right since, the original creator’s permission was not sought prior to the transformation of the original work by anyone than the copyright holder. But why is it that Fan Art creations are tolerated by most original creators? Is it because the law classifies Fan Arts in the light of “fair use”?
Although the transformation of an original work was not among the enumeration of fair use under Republic Act 8293, section 184.3 of the same act provides that the limitations on copyright should be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder’s legitimate interests.
Whether or not Fan Art infringes one’s copyright or not is still an unresolved issue. Fan Art creators should keep their work personal and reasonable as not to unreasonably infringe the legitimate rights of the copyright holder. Otherwise, the copyright holder may, at anytime, invoke their legitimate right and ask the court to declare that the work infringes their copyright.
“There ain’t no such thing as free lunch” – TANSTAAFL, and for copyright owners:movies; music; and; other items downloaded in the internet are of no exception.
The 1987 Philippine Constitution Article 3 Sec. 1 provides that: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws”. This constitutional provisions, along with the provisions provided by the Intellectual Property Code of the Philippines, and the controversial U.S. proposed bill, Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA), are the bases of copyright owners to insists and fight for their proprietary rights.
This is the reason why the proposed US bills SOPA and PIPA were drafted. These acts aims to mandate the internet service providers to shutdown websites containing copyright infringement material. However,because of issues on the constitutional violation of freedom of speech and information, these acts earned numbers of negative feedbacks and resulted to a simultaneous website service blackout on January 18, 2012. Up to this date, the SOPA and PIPA remains to be a US proposed bills. Thus, it is submitted that like the US, the Philippines is likewise not ready for a similar SOPA and PIPA law. Considering the hunger and yearning of every Filipino for knowledge and information, similar protests may likewise be experienced by a similar SOPA and PIPA bills in the Philippines.
However, who can blame the copyright owners for insisting their proprietary rights? Economic rights of every copyright holders are infringed for every pirated DVD sold to an individual. In short, obtaining a copy of their work for free or for less than the supposed price is stealing the opportunity from the copyright holder to enjoy the benefits or fruits of their creation.
There is no question that selling pirated DVDs infringes the rights of the copyright holders. However, could the mere downloading of movies, music or other downloadable material available in the internet be an act of copyright infringement too?
Under the E Commerce Law or Republic Act 8792 Section 33, downloading through the use of telecommunication networks, such as, but not limited to the internet, in a manner that infringes intellectual property rights and which is made available to the public, or broadcasting of protected material is penalized. However, the mentioned law provides that the act being penalized is the downloading of the material if made available to the public. Now, the question would be… how about downloading the same for personal use only? Would it still be an infringement? Assuming that it is an infringement, would it not be a violation of the Constitutional provision provided in: Section 4. “No law shall be passed abridging the freedom of speech, expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”
The E Commerce Law did not include penalizing individuals downloading materials from the internet for personal use. Thus, it is submitted that individuals downloading materials (i.e. movies, music etc.) from the internet, even in a manner that infringes intellectual property rights should not be penalized as long as the downloaded material will only be used for their personal entertainment.
Copyright holders and beneficiaries of downloadable materials in the internet are both protected by the constitutional law. The former, his proprietary rights, and the latter, his freedom of communication. Both rights are protected by the constitution and existing laws…it is just a manner of enforcing that right.
Perhaps, one may conclude that there might be such a thing as free lunch after all… that is: (1) if the copyright holders would just sit back and not enforce their proprietary right; or (2) until a law has been passed specifically penalizing down loaders of materials from the internet, which for sure, will be a question of law as to whether or not it would be a violation of the constitutional right of freedom of communication and information. Until then, down loaders may still enjoy what most would call “free lunch”.