[Mirror] Gonzalvo, Johanna Mae

SY 2012-2013, First Semester


Data Privacy Act of 2011, Comment

The Data Privacy Act of 2011 in its declaration of policy recognized the privacy of communication as a fundamental human right and the importance of information and communications technology in nation-building. Along with this declaration, is the statement of the State’s obligation of ensuring that such communications and information are secured and protected.

The Act covers the processing of all types of personal information, defining processing as any operation or set of operations performed upon personal information including, but not limited to, the collection, recording, organization, storage, updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data. It also covers natural and juridical persons involved in personal information processing such as personal information controllers and processors. However, some information are not covered, among those are information about all individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, information relating to any discretionary benefits of a financial nature, personal information processed for journalistic, artistic, literary or research purposes, and personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions.

The Act laid down the requirements for lawful processing of personal information, rights of the data subject, and the penalties for unauthorized processing, accessing, improper disposal, wrongful processing of personal information.

At first look on the Data Privacy Act of 2011, I thought they were just words and letters passing my eyes, the Act was worded very technically, that I myself had a hard time getting through the definition part alone. I think the words used to define the technical terms, were, in themselves, technical. I think it is a short coming of the act that it did not give more attention to the web where there is more threat. I also think that mere establishing a commission is not enough to implement said law and to guarantee protection.

After getting the hang of all the technical terms, I now come to the more important matter which is, is there really a need for such a law? In the modern day that we are in, and with all the marketing schemes that there are, and the hype to take advantage of freebees, we are easily drawn to give out our name, our number, and some information. Ever received a telemarketing call? Where do you think they get your information? We may not realize it yet, but this is a product of lack of legislation on data processing, that is lack of protection on our part. I think it is now time to enact a law that would protect one’s privacy in personal information. A lot of people have not realized yet the dangers of giving away personal information without protection.


Fan Art, Are You A Fan?

Have you ever seen an Avenger’s poster that really caught your eyes, tickled your brain and made you wonder “there is something different, but you just can’t tell?” It might be an FAN ART. There is no legal definition for fan art yet. Right now it is commonly referred as creations of fans such as images and drawings based on characters of films, comics, books and other literary forms.

After seeing this thing called fan art, you would start to think, is this legitimate? To answer this, we would have to first get to know the law. Here in the Philippines, we have RA 8293, the Intellectual Property Code of the Philippines gives protection to original intellectual creations in the literary and artistic domain from the moment of their creation [1] it further provides that 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. [2] It gives the author the exclusive right to carry out, authorize or prevent the following acts: 1) reproduction of the work or substantial portion of the work; 2) dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work; 3) the first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; 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; 5) public display of the original or a copy of the work; 6) public performance of the work and 7) other communication of the public of the work. [3] We also have the so called “derivative works” which are also protected by the copyright, which are dramatizations, translations, adaptations, abridgments, arrangements, and or other alterations of literary or artistic works; and collection 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; [4] these works shall be protected as new work provided: 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. [5]

Based on the abovementioned provisions, we can say that fan art in a copyright infringement, but then the law also provides for the fair use of the copyright which does not constitute infringement, which is the tricky part. Under the fair use of a copyrighted work: The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include: (a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (b) The nature of the copyrighted work; (c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) The effect of the use upon the potential market for or value of the copyrighted work; the fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [6]

Based on these provisions, we can say that fan art may be legal and may be an infringement, how to determine this is up to the courts. Where fair use ends, is also up to the court to determine. As of now, fan art is rampant, some for profit and some just for fun. We may have enough legislation, but it is up to the authors to raise their right and to put a stop if they feel that their right is being violated.


Endnotes

[1] Sec. 172.1, RA 8293

[2] Sec. 172.2, RA 8293

[3] Sec. 177, RA 8293

[4] Sec. 173.1, RA 8293

[5] Sec. 173.2, RA 8293

[6] Sec. 185, RA 8293


DOWNLOAD=GUILTY

If you are reading this blog you could either be a music lover who thinks buying records is a waste, a movie lover who has never set foot on a theatre or maybe just someone who has plenty of time to read. In the age that we are in, everything is literally in our fingertips; one need not lift his hand to have what he desires. A few clicks on the computer, voila, your favourite movie or your theme song or the game you’ve been eagerly waiting for, and the best part of it, it’s FREE. A few harmless clicks that you didn’t even shed a sweat, but is it really harmless? Let us get to know the pastime that is addictive as well, DOWNLOADING.

Download(noun)

An act of moving or copying a file, program, etc., from a usually larger computer system to another computer or device (http://www.learnersdictionary.com)

So far, nothing harmful yet, the tricky part is what people are downloading, let’s think of movies, songs, games and even books:

Copy or Economic Rights

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:

  • Reproduction of the work or substantial portion of the work;
  • Dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work;
  • The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
  • 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;
  • Public display of the original or a copy of the work;
  • Public performance of the work; and
  • Other communication to the public of the work. (Sec 177, RA 8293)

..now, having second thoughts? Wait, there’s more:

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 by a minimum fine of one hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years; c) Violations of the Consumer Act or Republic Act No. 7394 and other relevant or pertinent laws through transactions covered by or using electronic data messages or electronic documents, shall be penalized with the same penalties as provided in those laws; d) Other violations of the provisions of this Act, shall be penalized with a maximum penalty of one million pesos (P1,000,000.00) or six (6) years imprisonment. (Sec. 33 (b), RA 8792)

… and some more; Hon. Irwin Tieng and Hon. Mariano Michael Velarde introduced House Bill No. 6187, The Anti-Online Piracy Act of 2011. Section 3 of said bill, prohibits and declares unlawful for any person to:

a) Make in a manner not authorized by the copyright owner, copies of music recordings or films, in complete or substantially complete forms, by any means, including but not limited to uploading, downloading, or streaming.

b) Offer goods or services, or provides access in a manner not authorized by the copyright owner, copies of music recordings or films, in complete or substantially complete form, by any means, including by means of downloading, streaming, provisions of a link or aggregated links to other sites.

After reading these, we can generally say that downloading copyrighted works, shared by others who are not copyright owners of such works constitutes a copyright infringement even on the part of the now, not so innocent downloader.

As of the moment, not only the Philippines is on the battle against online piracy, the US has Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA).

How would SOPA work?

It allows the U.S. attorney general to seek a court order against the targeted offshore Web site that would, in turn, be served on Internet providers in an effort to make the target virtually disappear. It’s kind of an Internet death penalty.

More specifically, section 102 of SOPA says that, after being served with a removal order:

A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order…Such actions shall be taken as expeditiously as possible, but in any case within five days after being served with a copy of the order, or within such time as the court may order. [1]

The Protect IP Act says 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.” In addition, it must delete all hyperlinks to the offending “Internet site.” [2]

… and there is ACTA,

What ACTA is about

ACTA is an international trade agreement that will help countries work together to tackle more effectively large-scale Intellectual Property Rights violations. Citizens will benefit from ACTA because it will help protect Europe’s raw material – innovations and ideas

Europe’s economy can only remain competitive if it can rely on innovation, creativity, quality, and brand exclusivity. These are some of our main comparative advantages on the world market, and they are all protected by Intellectual Property Rights. As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights means protecting jobs in the EU. It also means consumer safety and secure products.

The EU’s national customs authorities have registered that counterfeit goods entering the EU have tripled between 2005 and 2010.

Statistics published by the European Commission in July 2011 show a tremendous upward trend in the number of shipments suspected of violating IPR. Customs in 2010 registered around 80,000 cases, a figure that has almost doubled since 2009. More than 103 million fake products were detained at the EU external border [3]

Something should be done about the rampant copyright infringement through the internet, we do have legislations, but they are not enough. We may follow the lead of the international community, but we must always put into consideration the rights granted by the Constitution. The international community are trying drastic measures to eradicate such evils; technology is always moving forward, our laws must be able to cope with such change to better protect our right.


Endnotes

[1] http://news.cnet.com/8301-31921_3-57329001-281/how-sopa-would-affect-you-faq/

[2] http://news.cnet.com/8301-31921_3-20062398-281.html

[3] http://ec.europa.eu/trade/tackling-unfair-trade/acta/

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