[Mirror] Llanes, William

SY 2012-2013, First Semester

Proposed Philippine Law on Data Protection

The proposed law on data protection, otherwise known as the Data Privacy Act of 2011 (Senate Bill No. 2965), is anchored on the constitutional guarantees provided under the Bill of Rights of the Philippine Constitution. These guarantees serve as safeguards for private citizens against unreasonable searches and seizures (Art.III, Sec.2 of the Constitution) and to uphold privacy of communication and correspondence (Art.III, Sec. 3 of the Constitution).

The aforesaid bill seeks to protect the integrity and confidentiality of personal data and aims to penalize identity theft and misappropriation of sensitive personal information maintained in databases to uphold the right of privacy guaranteed under our Constitution. It also intends to promote trust and confidence by providing adequate standards of data protection in order to attract foreign companies and investors who are into outsourcing processes which involves the handling of client information. With such policy framework in place, clients will be more confident in disclosing personal details to business process outsourcing companies in the Philippines.

Moreover, it will be mandatory for all data collectors to protect the security, integrity and confidentiality of all the personal information they are able collect such as medical and insurance records among others. Since personal information must be collected for specific and legitimate purpose, it should be relevant, accurate, adequate and not excessive for the purposes that it is collected. Hence, the liberty of data collections is limited only to information about the client and customer which is required for the transaction process. Likewise, the creation of an independent body to police the implementation is also a necessary step to ensure that the provisions of the proposed law are properly administered and executed.

With regard to the security of personal information in government, said Act should not be used to curtail the public’s right to information and press freedom, especially on matters of public interest, without infringing on every person’s right to privacy.

In this day and age, it is indeed necessary to have a comprehensive privacy and data protection laws that would eliminate the possibilities of abuses on privacy of identity, communication, and correspondence as well as promote e-commerce and ensure compatibility with international standards. Yet, appropriate controls should be in place and constant review of the privacy codes must be done to ensure that it adheres to the underlying principles embodied in the Act as well as to catch up with the new developments and increasing sophistication of information technology.

The Legitimacy of Fan Art

Fan art is considered an artwork that is based on a character, story, comics, movies that was created by someone other than the original artist, such as a fan or an admirer thereof. Moreover, it is generally made without permission of the original creator. The artist of said artwork uses different mediums of crafting the designs by way of drawings, paintings, collages, as well as web-based animations to have an artistic representation of the known character in a book or movie among others.

It would seem that fan arts are widely tolerated especially on the internet since it somehow promotes the source material being admired by a fan. However, the legal interpretation of its proliferation draws a thin line between merely admiring the source material to an infringement brought about by a possible conflict with intellectual property laws especially when said art is used for commercial purposes.

Before we delve into the issue of its legality, let us first look into the purpose of its creation since most fan artists would say that it is not intended to infringe any rights of the original artists. It is said that the purpose of its creation is to merely honor or admire the original work without benefitting from it since it is not intended for profit. Nonetheless, since copyright infringement is considered as malum prohibitum and intent is not necessary for conviction of an accused, the intention to profit or not from the creation of said fan art is irrelevant and should not be used to justify its legality.

Likewise, it can be argued that a fan art is a fair use of copyrighted work under the Intellectual Property Code of the Philippines and it may also be considered a derivative work since it is a transformation or adaptation of an original work. However, most fan arts, by their very nature, does not fall within the provision of the law on fair use nor are they considered highly transformative art works.

The legality of fan art in the Philippines remains to be in question since there is no existing jurisprudence yet on the matter. The scarcity of lawsuits related to fan art is an indication that it is tolerated by most copyright holders as it serves as a free advertisement of their original work in various forms of media.

Downloading of Copyrighted Works

In general, the act of downloading or storing copyrighted works without permission of the copyright owner is considered a copyright infringement. One of the exceptions is when the copyright owners reserve or waive their rights for a particular purpose.

In the landmark intellectual property case entitled “A&M Records, Inc. v. Napster, Inc.”, the United States Court of Appeals affirmed the ruling of the district court that the Napster users who download files containing copyrighted music violate the copyright owner’s reproductive rights. The same principle is also recognized under the Intellectual Property Laws of the Philippines wherein the copyright owner has exclusive economic rights to carry out, authorize or prevent the reproduction of the work or substantial portion of the work (Section 177.1 – Republic Act No. 8293).

The proposition to legislate laws such as Stop Online Piracy Act (SOPA), PROTECT IP Act (PIPA) and other similar laws of various countries aim to reinforce the existing intellectual property laws of the Philippines as it intends to reduce if not eliminate the infringers. However, the lawmakers should be extra cautious in crafting the provisions of the law as it may result to an unconstitutional prior restraint on free expression as well as it could hamper the free use and enjoyment of internet.

The same can be said on the Anti-Counterfeiting Trade Agreement (ACTA treaty) as the human rights implications of said treaty may be exponentially worse in other countries if the same is adopted since the flexible intellectual property laws that provides an elbow room for innovations and free expressions will be superseded by the rigid provisions of the aforesaid treaty.

Ultimately, we can all agree that copyright owners deserve ample protection under the law from piracy. Whether the intention of the downloader is to store the copyrighted material or distribute it for profit or other reason makes no difference since intent is not necessary to convict an infringer as copyright infringement is considered as malum prohibitum. However, to introduce new copyright laws that would tend to adversely affect the freedom of expression and/or jeopardize the privacy of a person should be discouraged since these fundamental rights are of equal importance.

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