[Mirror] Flores, Tricia Jane

SY 2012-2013, First Semester


A look into the Data Privacy Act of 2011: Senate Bill .2965

The rapid development in information technology has paved the way for an easy access of people on almost anything there is to know in the world. Through the use of internet, people are able to communicate with their relatives and friends anywhere in the globe and the use of information technology provides speedy access and transfer of information regardless of the nature of information. And to keep up with the recent developments in technology, a Bill is currently being proposed that adapts to the developments in information technology and reconciles the same to the people’s right to privacy and confidentiality.

The proposed Act is based on European Council No. 45/2001 which provides for a framework on the protection of individuals with regard to the processing of personal data by institutions and on the free flow of such data. The provisions set up a high standard of protection and safeguard to information that are classified as personal and thus confidential. This also called for the establishment of an authority which is tasked to uphold the standard of protection and monitor its security.

The sponsor of the Data Protection Act, Senator Edgardo Angara, confirmed reference of the Act to the European Council No. 45/2001 policy which is similarly protects and ensures proper handling and management of personal information. The Act provides its application to all entities whether private or public who are involved in the business of processing all types of information. It is with the goal to make Philippines at par with the data privacy law globally. By strengthening the foundation of data privacy in the country, we open the country’s doors to IT investments particularly the Business Process Outsourcing.

The features of the Bill include the establishment of the National Privacy Commission, specification of the lawful processing of personal information and extent of accountability of controller and its subcontractor, and the penalties that are imposed in case of breach thereof. It also provides for the rights of the data subject as well as the level of security required in handling personal information.

The National Privacy Commission is tasked to enforce the provisions provided in the Act, and monitor compliance of the entities covered. This is a dedicated commission that is authorized to receive complaints, institute investigation, and settle disputes. they are given the power to issue cease and desist orders in relation to processing of personal information.

The Act further provides for the General Data Privacy Principle which indicates circumstances where information may be disclosed to the public in adherence to the principles of transparency, legitimate purpose, and proportionality. In relation to this, the extent of accountability of the information controller is to comply with the set guidelines of the Act and adhere to its security standards. It is also in the mind of the framers of the Act that outsourcing is an emerging industry in the market and thus provided for the applicability to subcontractors. the Act still counts on the controller the responsibility for the enforcement of proper safeguards to maintain confidentiality of the personal information.

The Act gives the burden to the custodian of the personal information to secure and only use such information within the sphere of its authorized purpose. The Act could potentially mitigate the cases of unauthorized disclosure and use of personal information such as identification, medical condition and history, sexual activities of a person, etc. The Act extends the accountability to the source of these kinds of information. With the existing legislation, only the media or the one who exposes the information is held liable. The Act serves as another control point to ensure that the very source of personal information, the controller, is faced with the burden of potentially bring liable in case of mismanagement of the information under their custody.

The proposed law on Data Privacy as well as the recent passage of IT related law such as Cyber Crime Protection Bill is a proof that our legislative branch of government is dedicated to enact laws that will adopt to the changing times and developments in information technology. It is noteworthy to cite Senator Angara’s comment that the government needs to enforce policies that balances the right of the person to privacy and the swift access of information by anyone thru the use of internet. The Act is seen to open more opportunities for the Business Processing Outsourcing and information technology driven industries as the foreign players are assured of the government’s dedication in strengthening the foundation and protection of data privacy and integrity.


Sources: Senate passes proposed data privacy act, Marvin Sy.The Philippine Star. 21 March 2012 European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data


FAN ART: LEGALITY IN THE PHILIPPINE CONTEXT

Fan Art is defined as an art based on a character, costume, collage, item or story that was created by someone other than the artist, such as “fan” from where the word was derived . Fan Art likewise refers to an art derived from visual media such as comics, movies, or video games. [1] The Fan Art materials are created by “fans” in appreciation of the author or creator’s art work by giving their own expression on the piece, may it be a character, story, video games or even movies.

Fan works on Marvel series, Harry Potter, Star Wars, and Mario brothers are among the famous pieces of fan art in the market. These were created by the fans, followers and advocates of these characters based on their own expression and art orientation. “Fans” are able to provide their own sense of expression of a particular idea introduced by an original work of art.

Copyright in general enables the State to protect the authors of literary and artistic works from unauthorized use and benefit by people other than the author. It provides for the rights of the author against unauthorized reproduction, distribution and display of his work.

Fan Art is based on an original work or creation. The idea as set in the original work is used by fan artists in the creation of their own representative art works. Does the use then in fan art of the idea set by the author of the original work considered as an infringement of their copyright? Does the State allow the legality of fan art?

Republic Act No 8293, otherwise known as the Law on Copyright provides for Derivative Works; which requires that there must be an “original work” from which the “new work” was derived [2]. Section 173 specifically provides that:

Section 173. Derivatives Works.-

173.1 The following derivative works shall also be protected by copyright:

a) Dramatizations, translations, adaptations, abridgements, arrangements, and other alterations of literary or artistic works; and

b) Collections of literary, scholarly or artistic works, and compilation of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.

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 [3].

With the foregoing provision, it can be implied that the use, exclusive to the enumeration in Section 173, of the artistic or literary work is allowed by the law and that the product of such use is given a recognition as that of a new work.

In the case of Fan Art, such can be considered as a derivative work having been derived from an original work, following the above mentioned provision saying among others that adaptations, abridgements and arrangements of literary or artistic works are considered new works. Fan Art therefore is considered a new work because it is a byproduct of the fan artist’s expression and interpretation of a prior original work; it is a result of the mental labor of the artists in interpreting an original work.

Fan Art is a form of expression by one about an existing original work. Such being an expression of ideas though produced by an existing original work, should enjoy the same level of protection as that of an original creation.

Everybody has the right to protect its property including original creations. Artistic and Creative works are creations of mind translated into a visual form. These are expressions that the artists have of the world, a character or an idea. Such expression whether original or a derivative from the original should be protected in any way possible as recognized by the law.


Endnotes

[1] http://thetvdb.com/wiki/index.php/Fan_Art

[2] The Copyright Law of the Philippines, Dennis Funa, First Edition 2011

[3] Republic Act No. 8293, An act prescribing the intellectual property code and establishing the Intellectual Property Office, providing for its powers and functions, and for other purposes


Copyright on the language of http://

Access to variety of works including articles, books, audiovisual and multimedia files has been made convenient thru the use of internet. Internet now becomes a library where all sorts of information are readily available for downloading either for free or for a fee.

Downloading of files from the internet has become a normal course of people in cases where they need access to any information, documents, and multimedia files. With the hype of technology and easy access to information thru internet, controls need to be set to protect the rights of owners of information and to enforce obligations against people who exploit information.

Countries like the United States, United Kingdom, and New Zealand have proposed necessary controls to protect the rights of the authors, specifically, copyright, in relation to their works readily available in the internet. In the United States, Representative Lamar S. Smith introduced the bill Stop Online Piracy Act (SOPA) which aims to expand the ability of U.S. law enforcement agencies to fight online trafficking in copyrighted intellectual property and counterfeit goods. The act includes measures where courts can order the barring of advertising networks and payment facilities from conducting business with infringing websites as well as prevent search engines from linking to websites that violate the law. The courts can also require internet service providers to block access to these websites. Another proposed bill in the US on the other hand, the Protect Intellectual Property Act (PIPA), aims to give the US government and copyright holders additional tools to curb access to “rogue websites dedicated to the sale of infringing counterfeited goods” especially those registered outside US. This Law authorizes the Justice Department of the US to seek court order against violating websites. Furthermore, PIPA states that “an information location tool shall take technically feasible and reasonable measures as expeditiously as possible, to remove or disable access to the internet site associated with the domain name set forth in the order…and delete all hyperlinks to the offending internet site”.

Like in United States, the United Kingdom has its own law on protecting intellectual properties – theDigital Economy Act 2010. This Law explains the function of UK’s Office of Communications to make provisions about online infringement of copyright, penalties for infringement of copyright, and performer’s rights. The Law also states the enforcing of controls over internet domain, providers, and for other related purposes.

New Zealand on the other hand has implemented a Three Strike rule against internet piracy where, generally, a copyright tribunal can issue fines and can remove access to the internet for a significant period of time should an individual infringe the country’s copyright laws.

In the Philippines, Republic Act 8792 otherwise known as the Intellectual Property Law of the Philippines, protects the right of the authors by virtue of Section 177 provides:

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)

The act of downloading the materials in the internet like blog articles, audiovisual, and multi media , is not within the expressed list of prohibition in the abovementioned section 177. The Law explicitly prohibits any person not authorized by the author to reproduce, adapt, dramatize, distribute, lease, display, perform and communicate the work in the public but did not say any infringement which relates to downloading from the internet. It is however required for a person who uses a work of another to attribute the work by mentioning the name of the author in the work as prescribed in section 193 of the code;

Section 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)

Further, to address Online Piracy in the country, there is a bill being proposed patterned after SOPA and PIPA where the government is given authority to likewise, shut down local websites illegally distributing pirated software and applications, block international sites which distribute copyrighted materials, and impose penalties to those who will infringe the right of the copyright owners. This bill aims to protect the rights of the growing number of bloggers, writers, and artists who use internet as platform for their artistic and literary works.

Just like the critics of PIPA and SOPA bills, the proposed bill on Online Piracy concerns freedom of expression which is a constitutional right of the people. The question whether the copyright of the authors may run against the freedom of expression of the person who will be found infringing or violating the supposed law on online piracy should be addressed.

For most people, internet is a way of life. Internet is not only used as a social platform to establish network, it is also used for communication, expression of ideas, employment, and as repository of information. With the passage of the bill, the government is given the authority to shut down the sites defying copyright laws and penalize its owners. This authority will have the power to constraint not only the website owner’s right to express their works thru their respective websites but further constraint the people from the supposed information that they could access through these sites. The act of shutting down or blocking off the websites may be a form of constraint against freedom of expression of its owners. Using the balance of interest test in constitutional law, freedom of expression, a constitutional right is supreme over property right of the Copyright owners.


References

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