[Mirror] Guro, Jamjoom

SY 2012-2013, First Semester


A Glance on the Data Privacy Act of 2011

The Legality of Fan Art

Fan Art in the Philippines is a mere species of what has been a deviant business enterprise as regards intellectual works considering piracy as detrimental to the right of creators and authors of intellectual works. Under Republic Act 8293, the criteria for fair use of a copyrighted work is that such art must be for critcism, comment, news reporting, teaching and research is not an infringement thus makes any other use as an infringement of the copyrighted work. It would however cover a derivative work which is considered a new work and is not extension of the copyright of the original work. Under the foregoing limitations, any fan art would be legal in the strict sense. Any simple alteration of the original art would fall under the derivative work hence protected but this has an economic impact in the Philippines where the original owner of the work may at any day file a case of infringement against almost everything being sold in the market like slippers by by crocs, clothes by nike and other possible object which may be the subject of appropriation appears an imitation of the the original. A fan art would be included as it is based on an original work and is made for profit. This would be a clear violation of the provision of fair use under the Republic Act 8293. It is considered a fan art where the premise is personal idolization or commitment of a fan for any originally made character like super heroes. Any use for profit would give rise to a right of the original artist of the work. In legal fiction the artist has every right to file an action for infringement but in the real sense, would any artist prohibit another to spread his creation? I personally wouldn’t since this would be a legacy burnt in the heart of the public eye so that the creator would be known until his demise or even thereafter. However, this does not mean that the creator of the fan art is free to do anything with the derivative art made. Under Republic Act 8293, the original artist of the work has economic rights including the right to prevent Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work thus Fan Art is legal, we must take into account that the right belongs to the author of the work. For as long as the derivative work is not violative of the economic and moral rights of the author then the fan art is legal under the provion on fair use. It is the profiting from the derivative work which makes the fan art infringing . Unlike in trademark and patent, there must be confusion as to the article or object which prejudice the right of the owner when such article or object passes to the public misleading who the real owner is. In copyright, there is a clear view and understanding who the author of the artistic work is in respect of the original work where the fan art is based. From the very words used FAN ART it distinguishes that any reproduction of a work whether a copy or transformation, the public would immediately consider the work is not their creation but is merely based on an original work made by a fan to admire the artistic work of another or the representation depicted by the work. In addition, the moral rights of the author which cannot be waived must be considered as well but this would by absurd in case of fan art since such derivative work is to boost the impact of the author by any fan as to the original work. The fan art would be an act of good faith by the creation of the derivative work provided that it is made to favor the prominence of the original author of the work. But the author still has the right against any derivative work based on his original creation. But in legal fiction as to astistic work, no one would be injured, confused or mislead since a fan art is in itself an admiration of the original work of the author.


Fan Art

By its very title it can be seen as a grant of statury right to privacy as mentioned under the Philippine Constitution of 1987. “Section 3 The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.” Though it seems promising on the privacy part when the ACT states that “SEC. 2. Declaration of Policy.- It is the policy of the State to protect the fundamental human right of privacy of communication. The State recognizes the vital role of information and communications technology in nation building and its inherent obligation to ensure that personal information ininformation and communications systems in the GOVERNMENT and in the private sector are secured and protected.” Indeed an executory implementation, however it recognizes as well the information and communications in the government. Why o why? Haven’t we experienced enough circumvention under statutory law on “Anti-Wire Tapping Act (Republic Act No. 4200)” which I am totally against as well. Hello! Garci! What if this act is passed? Dearest! Garci! Even if the ACT discloses exceptions under Section 4. Scope which states among others that “This Act does not apply to the following: (a) 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,”. It just gives more ideas on how to cloak the data by making the document personal as to its source when under the definition of Personal information found in Section 3 when it states that ”xxxfrom 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.xxx” The creator may make an information or communication by simply including an identification thus become personal. The scenario does not forsee that the Public offecer can attach anything on the document and poof! Public document becomes personal informationor communication. The individual can even make encrypted content to make it look geometric by using mathematical expressions to appear coded simply as addition and subtraction when in fact it contains detailed message of those exluded by the ACT. A clear example. What if the information contains a bar graph or a pie graph. For anyone’s sake, that could have been a computation of profits in a election scam which this country has been trying to supress and still trying. Another point is under “Section 5. Extraterritorial Application. – This Act applies to an act done or practice engaged in and outside of the Philippines by an entity if: (a) The act, practice or processing relates to personal information about a Philippine citizen or a resident;” It may be deduced that foreign relations within the Philippines would be excluded in the protection which for instance could simply identify the information or communication to pertain to foreigners with actually contents referring to a citizen of the Philippines or a resident. The ACT even says that “The personal information was collected or held by an entity in the Philippines. ” What if merely sent from overseas, who is to say that such information or communication is as such when the processing would be limited and responsibility would be held by the maker under trust of the contents made. How can this be ascertained when the ACT under “Section. 9. General Data Privacy Principles. -The processing of personal information shall be allowed, subject to compliance with the requirements ofthis Act and other laws allowing disclosure of information to the public and adherence to the principles of transparency, legitimate purpose and proportionality.” ? The title of the ACT says privacy but under processing the same must be disclosed. How can anything be private when it shall undergo processing or as defined in the ACT “Processing refers to any operation or any 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.” If under operation, what data can be actually protected when under current events that POSTAL offices cannot even protect the mail of the citizens from being stolen. What more in cases where the information or communication is processed before being kept and protected which this ACT aims to do including Information or communication of Government Relations. In fact the ACT even includes “Sensitive personal information refers to personal information: (among other things About an individual’s health, genetic or sexual life of a person, or to any judicial proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings;)” How in the case of a delinquent who commits a heinous act then becomes old but runs for election, let’s say the Presidency for example and thereafter wins. BOOM! Dearest! Garci! Or under the Anti-Wire Tapping ACT! Hello! Garci! Under “Section 11 Sensitive Personal Information and Privileged Information. prohibited, except in the following cases: ( a) The data subject has given his or her express consent, specific to the purpose prior to the processing; ” So what if it gives his consent? the information still gets processed and thereafter data is protected. Final note, the information or communication which deserves protection is that of private in nature only by constitutional expression “Privacy of Communication under the fundamental law of the State as a limitation on the Government for the protection of Sovereignty which resides in the PEOPLE and all government authority emenates from THEM as against Public office is a Public trust. Public officers and employees must at ALL TIMES be ACCOUNTABLE to the PEOPLE, SERVE THEM with utmust responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, lead modest lives. ” as mentioned in ARTICLE XI, SECTION 1 and ARTICLE II SECTION 1 of the 1987 Constitution.


Copyright Infringement

Downloading Copyrighted Works

The Law on copyright as regards infringement is not as crystal clear in the Philippines. It is not even defined in the act but merely states limitations, fair use and rights whether moral or economic. It would seem that infringement must be taken in its literal sense hence violation is committed by violation of such rights specified by the Intellectual Property Law. But if we look at the law, Section 185 where it states that “In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(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.”

This presupposes a wide understanding of what is substantially infringing to the copyright owner and what is the effect on the potential market or value of the copyrighted work. The copyright owner is burdened with these explanations before he could exercise the remedies provided in the law.

Infringement is usually an administrative penalty of law sanction by the rules of court. Hence, the state would not act in behalf of a clear violation of the law or rights of the copyright owner which applies only to violations of penal laws. There is no liability here unless there be a remedy exercised by the copyright owner. But there is no copyright infringement on the part of the downloader since there is only an effect on the potential market and value of the copyrighted work which is yet to be proved before it becomes illegal. This gives rise to another question of how would the owner of the copyright run after the downloader? How would the copyright owner maintain the loyalty of the downloader who precisely downloded the work since such person actually likes the work. Running after them would discourage potential audiences for which the copyrighted work depends for its exposure thereby a target market for generating profit for the copyright owner.

Another provion related to this is Section 184 on the Limitations on copyright. It states that “the following acts shall not constitute infringement of copyright:” which is a negative provision as to its application. Does this mean that every act done outside of those mention is an infringement just by using a violation of the economic and moral rights as basis for copyright infringement? But under the mentioned provisions of this paragraph, there is no copyright infringement on the part of the downloader bacause it is directed against those who offer the copyrighted work to the public whether for profit or not. Particularly section 187 states that “Section 187. Reproduction of Published Work. – 187.1. Notwithstanding the provision of Section 177, and subject to the provisions of Subsection 187.2, the private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work.

187.2. The permission granted under Subsection 187.1 shall not extend to the reproduction of:
e) Any work in cases where reproduction would unreasonably conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author. (n)”

Should laws be passed to optimize the enforcement of copyright laws?

Yes, the Philippines should pass similar proposed legislations as SOPA/PIPA; Digital Economy Act and New Zealand’s three-strike rule. This would strengthen the economy and encourage competition in the industry for a more healthy market based on copyrighted works of authors and artists. There would be a problem in some areas of the businesses dedicated to protecting copyrighted works as there would be lesser security of tenure as to artists and authors but isn’t that the core of artistic and literary works. The creation of copyrightable works is the very reason for works and it embraces the chance of competition of creators in selling their work under similar categories or fields of work. Now, most artistist do not create their own works but rather make derivative works of original creations. To me, that is not artistic or much less copyrightable. The failing economy is caused by the dissappearance of competition. Singers and writers tend to derive classical works rather than make a phenomenal classic themselves. And they even call it “Official Filipino Music” or “Official Filipino Movies”.

The proposed legislations would even create jobs in enforcement of the copyright law. Since computer technicians for software and hardware would be employed to fight infringement. By such protection, artists would be able to appropriately sell their copyrighted works with the consumers and avoid downloading sites to destroy their only source of profit and livelihood. We should protect such right of the artists and authors because if we don’t the market for artists will be lost. They would not create anymore and find other profitable work. This would lead to the uselessness of the fredom of expression for artists who base their livelihood on their artistic works. Unlike other fields of work where there is no need of artistry or harmony but only refer to mechanical and technical work.

The Philippines should not sign and ratify the ACTA Treaty. We can make our own laws to bolster the enforcement of Intellectual Property laws. Signing the treaty would only pave the way for the big countries to interfere with our community and economy. It does not provid for any stricter definition of infringement wich calls for trouble in enforcing the copyright laws. Infringement is a very broad term which could criminlaize a wide range on internet surfers and users in a short period of time. This would also supress the availability of information and essential goods for health measures for those who need medication.

ACTA Treaty and the right to freedom of expression and privacy

Under the treaty, Article 11: Information Related to Infringement

“Without prejudice to its law governing privilege, the protection of confidentiality of information sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority, upon a justified request of the right holder, to order the infringer or, in the alternative, the alleged infringer, to provide to the right holder or to the judicial authorities, at least for the purpose of collecting evidence, relevant information as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls.”

Clearly the treaty is at a loss of understanding the right of persons to expression. Under this provision mentioned, there appears to be a wide range of potential infringers covered by this treaty. It would supress the right to speech and eventually the democracy which is the heritage of many countries. There is even a risk to surrender the control of domain anmes to authorities thus restrict the people in conducting their business over the internet which is one of the basic strategies in expanding the industry with less expenses for transportation issues. The treaty also allows the authorities to look into the personal details of the users thereby a clear violation of the right to person and papers protected by the constitution.

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