SY 2012-2013, First Semester
This argumentative narrative delves into the wisdom, assuming there is any, of the controversial Senate Bill No. 2965, otherwise known as the “Data Privacy Act of 2011,” reportedly slated for third and last reading by the Sixteenth Congress of the Philippines.
Senate Bill No. 2965, which I personally believe will leave a mark on the concept of Rights to Privacy of persons, his liberties and properties, was conceptualized and authored by three senators whom I regard as staunch defenders of the Constitution, namely: Senator Miriam Defensor-Santiago, an acknowledged Constitutional Law, Civil Law and Criminal Law Expert par excellence, on top of her being a Divinitatis Doctor (if I am not mistaken); Senator Edgardo Angara, an undisputed legal luminary who prominently figured in the clash for human rights during the Marcos era; and Senator Trillanes who championed the cause of the masses and for which cause, was stripped, during his incarceration, of all his rights to privacy. By their individual qualifications and experiences, I find it difficult to conclude that there merely were advertencies on the part of these three Senators, not only with respect to the consequences that this Bill make on the Constitution, particularly the threat posed on the sacrosanct concept of right to privacy embodied therein, but more importantly, its impact to the Filipino people.
In declaring that the State recognizes the vital role of information and communication technology (ICT) in nation-building, Senate Bill No. 2965, otherwise known as the “Data Privacy Act of 2011” vows to protect the fundamental human rights of privacy of communication, and ensure that personal information and communication systems in the government and in the private sector are secured and protected (Section 2, Chapter 1). The salient features of the Bill are as follows:
(1) Applies to the processing of all types of personal information as well as to any natural and juridical persons involved in personal information processing (Section 4, Chapter 1);
(2) Applies to personal information processing both within and outside the territorial jurisdiction of the Philippines (Section 4 and 5, Chapter 1);
(3) Does not apply to all information relating to the government as well as to employees, whether they be currently employed, separated, terminated or retired from the service (Section 4, Chapter 1);
(4) Allows processing of personal information subject to compliance with existing laws, adherence to the principles of transparency, legitimate purpose and proportionality, and to specific conditions as specified in the Bill (Section 9 and 10, Chapter III);
(5) Allows the processing of sensitive personal information and privileged information, generally, upon express consent of the data subject (Section 11, Chapter III);
(6) Allows subcontracting of processing of personal information (Section 12, Chapter III);
(7) Disallows data subject, his heirs and assigns from invoking their rights to confidential of personal information gathered for the purpose of investigation in relation to any criminal, administrative or tax liabilitiesof the data subject (Section 15, 16 and 17, Chapter IV)
(8) Provides for fines and imprisonment as penalty for violation of any provision thereof (Chapter VII); and,
(9) Will amend Section 7 of R.A. 9372 (Human Security Act of 2007), and will likewise repeal or modify all other laws, decrees, executive orders, proclamations and administrative regulations or parts thereof inconsistent with the Bill (Section 43, Chapter VIII).
The Bill was prepared jointly by the Committees on Science and Technology; Constitutional Amendments; Revision of Codes and Las; Civil Service and Government Reorganization; and Finance.
Whether Senate Bill No. 2965 is necessary, beneficial and feasible under the present Philippine political dispensation.
To all civil libertarians out there who, by this argumentative narrative, are denied their liberty to immediately react to thereto, my apologies.
I now begin my attack.
The Bill Is Necessary In View Of The Constantly Rising Incidents Of Violation Of Right To Privacy, Brought About By Advances in Sciences, Particularly In The Field Of Information and Communications Technology.
The continuous phantasmagoric advances achieved by man in the field of Information and Communications Technology (ICT) have virtually obliterated all known physical boundaries separating people around the globe. By a single, slightest click on their computer’s mouse, people manage to communicate and interact instantly with each other – a process that effectively breaks all known social, cultural, economic, financial, emotional, psychological, legal and other barriers that once existed and separated them.
Without doubt, ICT redefined not only “the man” within each individual; it also drastically transformed the world into a virtual paradise where he could actually do things that he could have not done before. For instance, a person within the confines of his room and with the use of a computer unit, could now electronically “transport” himself to some other places, search for and converse with his family and friends, apply for work, and likewise transact business. Or actually see people and events occurring around him in real time as the situations unfold, by simply connecting a surveillance camera to his computer. Or access his records and finances through ICT-based biometric machines capable of identifying persons through facial, retinal, finger-, or palm print, and body-aural matching.
But serpents abound even in paradise.
Cases of almost all sorts of crimes against persons are attributed to the unrestricted access to social networking sites. Various forms of frauds proliferate in electronic commerce transactions. Suspicions persist that the government deliberately installed surveillance cameras in almost all nooks and corners of every community purposely to electronically gather information and observe the populace. On top of it all, both public and private entities are widely known to be illegally engaged in gathering, building up, holding to, and using personal information of individuals with whom they have or have not transacted business with. These they do for their own pernicious purpose and advantage, in utter disregard of individuals’ right to privacy and safety.
Thus, the elusive Eden that man had been dreaming for so long a time, is once again lost.
Instead of bliss, man finds himself again in the midst of a whirlwind incessantly hurling, but this time on a larger global scale. It is for this one, specific reason which prodded almost all countries of the world to contain, while there remains sufficient time, the damage already done and to minimize, if not altogether eliminate, the menacing, unprecedented threat of global-wide confusion and devastation resulting from man’s improper use of ICT.
For sure, the authors of the Bill fully realized the seriousness of the situation. The problem exists, and its existence will persist for as long as ICT continues to evolve into a much higher technical level. Yet, every Filipino is well aware that the country, with its very limited ICT technical capability, is not capable of meeting head-on the problem
There are, of course, other options that could possibly arrest the menace of the present situation. However, I steadfastly stand for the option proffered by the authors of the Bill: to lay down laws that will regulate the processing of personal information, in order to protect the fundamental human rights of privacy of communication, and ensure that personal information and communication systems in the government and in the private sector are secured and protected.
The Bill Is Beneficial Because It Advances The Right To Privacy, A Profound, Unalienable Right Of Every Filipino, Guaranteed In the Bill Of Rights, and Its Protection and Enforcement is Secured by the Police Power of the State.
Concededly, the strongest possible grounds for opposition that civil libertarians could taunt against the Bill under consideration is, that some or all of the provisions contained in the Bill are in violation of the fundamental human right to privacy and therefore, said Bill contravenes the Bill of Rights enunciated in the 1987 Constitution. Hence, the Bill is not beneficial to the Filipino people.
Following are my arguments in defense of the Bill:
I. The Bill, rather than being in violation of the fundamental human right to privacy, actually advances and supports the cause for the right to privacy.
The pertinent provisions of the Bill of Rights in tangent with the Right to Privacy are the following”
Section 1 – No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection ofthe law
Section 2 – The right of the people to be secure in their persons, houses,papers and effects against unreasonable searches of whatever natureand for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complaint and the witnesses he may produce, and particularly describing the place to be search and the persons or things to be seize.
Section 3 –(1) The privacy of communication and correspondence shall beinviolable except upon lawful order of the court, or hen public safety ororder requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
Section 4 – No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
Section 7 – The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development,shall be afforded to citizens, subject to such limitations, as may beprovided by law.
Section 9 – Private property shall not be taken for public use without just compensation.
Section 10 – No law impairing the obligation of contracts shall be passed.
A. Nature of the Bill of the Bill of Rights.
A Bill of rights is a declaration of fundamental principles and of the basic rights of the citizenship. It enumerates some of the private and inalienable rights of the people, and it has been said that the rights protected by the Bill of Rights are those that inhere in the “great and essential principles of liberty and free government.”(U.S. v. Cruikshank, 92 U.S. 542) The existence of the Bill of Rights is one of the characteristics of a republican form of government, which form had been adopted by the Republic of the Philippines.
The provisions of the Bill of Rights are not to be construed by themselves according to their literal meaning. Since the declaration of general principles which they contain is not, and from their nature, cannot be so certain and definite as to form rules for judicial decisions in every case, they may, up to a certain point, be properly treated as guides for the political conscience of the legislature rather than as absolute limitation of its power (Allen v. Pioneer Press Co., 40 Minn 117). The provisions of the Bill of Rights are primarily limitations on government, declaring rights that exist without any governmental grant, that may not be taken away by government and that government has duty to protect.
The fundamental rights guaranteed in the Constitution apply to all persons. “The Constitution is a law for rulers and for people equally in war or in peace and covers with the shield of its protection all classes of men at all times and under all circumstances. (Martin v. Ver, GR 628810, 25 July 1983)
B. The Fundamental Human Rights of Life, Liberty and Property are NOT ABSOLUTE; Legislature has duty to enact laws to protect or enforce the Bill of rights.
It is well to remember that the fundamental human rights conferred by the Constitution are NOT ABSOLOUTE. (United Public workers v. Mitchell, 330 U.S. 75) and courts must careful not to transmute vital constitutional liberties into doctrinaire dogma (Carpenter v. Riter’s Café, 31 U.S. 722)
Any government action in violation of the rights declared in the Bill of rights is void, so that the provisions of the Bill of Rights are self-executing to this extent; however, the legislature may enact laws to protect and enforce the provisions of the Bill of Rights. (Quinn v. Buchanan, 298 SW 2d 413),
C. Bill of Rights Embraces Every Right of Persons.
Section 1 of the Bill of rights is all-embracing. The words “life, liberty or property” are representative terms and are intended to cover every right to which a member of the body politics is entitled under the law and these items include the right of self-defense, freedom of speech, religious and political freedom, exemption from arbitrary arrests, the right freely to buy and sell as others may, the right to labor, to contract to terminate contracts, to acquire property, and the right to all our liberties, personal, civil and political. In short, ALL that makes life worth living (16 Am Jur. 2d, p.683) The enjoyment of private reputation unassailed is a right entitled to the protection of la and the constitution as much as the right to possession of life, liberty and property (Harris v. Nashville Trust, 128 Tenn 573)
A constitutional guaranty of the enjoyment of life, liberty and property carries with it all that effectuates and renders complete the unrestrained enjoyment of that guaranty. And it has been said that the rights to life, liberty, property and the equal protection of the law are so related that the deprivation of any one of those separate and independent rights may lessen or extinguish the value of the other three (Smith v. Texas, 233 U.S. 630)
(a) Definition, Nature and Limitations of Right to Life.
The right to life includes the right to live, free from social dangers against life or limb or free from unjustified control. The right to life includes the right to protect one’s private reputation against improper attacks. One’sright to life includes the right to live in decency and honor and thus necessarily includes the right to self-defense.
(b) Definition, Nature and Limitations of Right to Property.
Right to Property refers to the right to acquire, possess and enjoyproperty in any manner consistent with the equal rights of others and the just exactions and demands the State – Larracochea v. Brown, 43061-R, 15 August 1972
(c) Definition, Concept and Limitations of Right to Liberty.
RIGHT TO LIBERTY includes the right to exist and right to enjoyment of life while existing, and is invaded not only by a deprivation of life but also bya deprivation of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual. Personal liberty includes the right “to be let alone” to determine one’s mode of life – whether it shall be a life of publicity or of privacy – and to order one’s life and manage one’s affair in a manner that may be most agreeable to him, so long as he does not violate the rights of other of the public. where there is a significant encroachment upon personal liberty, the State may prevail ONLY upon showing a subordinating interest which is compelling. (Bates v. Little Rock, 361, U.S. 516) But despite of the broad scope of the fundamental right of liberty and the jealous protection by the Constitution of the rights of the individual, LIBERTY is not a right which is uncontrollable or which is absoluteunder all circumstances and conditions (16 Am. Jur. 21, p. 687). Hence,liberty does not signify unrestrained license to follow the dictates of anunbridled will. Individuals may be deprived of life or liberty as punishment for crime. And one who is prevented from injuring another cannot justlyassert that he has himself been deprived of any right (16 Am. Jur. 21, p 687 – 688). Constitutional liberty is always a relative term. It means liberty REGULATED by just and impartial law; in other words, such liberty is natural liberty so far restrained by human laws as is necessary and expedient for the general advantage of the public (16 Am. Jur. 21, p. 688)
II. The Guaranties Under The Privacy Provision Are Not Absolute.
A. Nature, Definition, Incidence and Requirements for Violation of Right to Privacy.
The right to privacy is employed with respect to the determination of whether a cause of action in damages exist for an unwarranted invasion of such right, or whether it may be protected by injunctive relief. (Cordero v. Buigasco, 34130-R, 17 April 1972; 17 CAR (2s) 532)
It may be defined as the right to be let alone, or to live a life of seclusion, or to be free from unwarranted publicity, or to live without unwarranted interference by the public about matters with which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual’s private life which could outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.
Four different kinds of torts arise from the violation of the right to privacy (1) appropriations for thedefendant’s advantage of plaintiff’s name or likeness (2) intrusion upon plaintiff’s seclusion (3) public disclosure of private information, and (4) publicity which places defendant in a false or objectionable light (Jaworski v. Jadani, CV-66405, 01 Dec 1983.
There is an actionable violation of the right of privacy if (1) publicity is given to any private or purely personal information about a person (2) without the latter’s consent (3) regardless of whether or not such publicity constitutes a criminal offense, like libel or defamation, the circumstances that the publication as made with the intent of gain or for commercial and business purposes invariably serves to aggravate the violation of the right. (Cordero v. Buigasco, 34130-R, 17 April 1972; 17 CAR (2s) 532)
B. Right to Privacy Enjoys Constitutional Protection BUT Subject to Limitations.
The right to privacy as such is accorded recognition independent of its identification with liberty. In itself, it is fully deserving of constitutional protection. The concept of limited government has always included the idea that governmental powers step short of certain intrusions into the personal life of the citizen. This is one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspect of life is the hallmark of the absolute state (Valmonte v. Belmonte, G.R. No. 74930, 13 February 1989). In contrast,, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the State can control. Protection of this private section, that is, protection of the dignity and integrity of the individual, has become increasingly important as modern society has developed. All the forces of technological age operate to narrow the area of privacy and facilitate intrusion into it. In modern times, the capacity to maintain and support this enclave of private life makes the difference between a democratic and totalitarian society.
The right to privacy belongs to the individual in his private capacity and not to public and governmental agencies. The right is purely personal; it may be invoked only by the person hose privacy is claimed to be violated.
C. The Guaranty given by the Privacy provision is NOT ABSOLUTE; The State May Infringe the Right to Privacy.
What is the measure of allowable state intrusion into privacy?
The original proposal at the 1935 Convention was : The privacy of communication and correspondence shall be inviolable except upon lawful order of the court.” It is obviously the intent of the proponent of the provision to condition allowable intrusion upon the order of a court. He argued: ” we state the fundamental principle that a person is entitled to the privacy of communication; that he is entitled to his secret, BUT in those case here a secret involves public questions which the State should and ought to know, the State may infringe that privacy of communication by some process or by appealing to the Court for the purpose of determining whether or not the privacy should be maintained.” It is clear that the 1935 Constitution allowed intrusion into the privacy of communication either upon lawful order of a court or even without a court order when public safety and order so demands.
“It is also clear in the 1972 Convention that an executive officer can order intrusion when in his judgment and even without prior court approval, he believes that public safety or order so requires.” (1971 Constitutional Convention Session of 25 November 1972)
III. Right to Privacy Under the Bill of Rights of the Constitution Are Subject To The Inherent Police Power of the State
A. Nature, Definition, And Extent Of Police Power
The Police power is the power of the State to enact laws, ordinances or rules designed to promote the safety, health, peace, good order and morals of the community.
Although constitutional guaranties cannot be transgressed, it is settled that the possession and enjoyment of rights are subject to the police power exercised by the governing authority of the country. Consequently, both persons and property are subject to all kinds of restraint and burdens in order to secure the general comfort, health, welfare, and prosperity of the people of the State. Everything contrary to public policy or inimical to the public interest is the subject of the exercise of police power. However that which is not from its nature subject to the police power cannot be arbitrarily made so.
The scope of police power is to be measured by the legislative will of the people upon question of public concern, NOT in the acts passed in response to sporadic impulses or exuberant display of emotion, BUT in those enacted in affirmance of established usage or by such standards of morality and expediency as have by gradual processes and accepted reason become so fixed as fairly to indicate the better ill of the people in their social, industrial and political development.
Police power is the most essential, insistent and illimitable of powers which enables the State to prohibit all things hurting to the comfort, safety and welfare of society. It does not emanate nor is it conferred by the Constitution. It is inherent in the State. Police power is pervasive and non-available power and authority of the sovereign. The scope of police power expands and contracts with changing times. It consists of imposition of restraints upon liberty or property to foster common good. Its scope is ever expanding to meet the exigencies of the times, even to anticipate the future where it could be done, providing enough room for the efficient and flexible responses to conditions and circumstances thus securing the greatest benefits. Police power is not confined within narrow circumstance of precedents resting on past conditions; it must follow the legal progress of a democratic way of life (Sangalang v. IAC, G.R. No. 71169, 23 December 1989)
B. Basis of the Inherent Right of Police Power.
The exercise of the police power of the State is based on the settled principle of salus populi est suprema lex, and of the well-known and important maxim si utere tuo ut alinum non laedas (so use your on property as not to injure another’s property). So also, the police power is based on the imperative necessity of preserving the State itself.
C. Legislature Has the Sole Power to Exercise Police Power.
It is the legislature that has the power to exercise the police power of the State. The legislature is primarily the judge of necessity, adequacy or reasonableness and wisdom, of any la promulgated in the exercise of the police power of the state (Inchong v. Hernandez, L-7995, 31 May 1957) The exercise of police power of the State may be delegated by the legislature to local governments and even to the Chief Executive in times of national emergency (Primicias v. Fuguso, L-1800, 27 January 1948)
IV. Police Power May be Exercised by the Legislature To Override Constitutional Guaranties, Including the Right to Privacy.
The State, in the exercise of its police power, can prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. It can prohibit all things hurtful to comfort, safety and welfare of society. It may also regulate property rights. “The necessities imposed by public welfare may justify the exercise of governmental authority to regulate even if thereby certain groups may plausibly assert that their interest are disregarded” (Taxicab Operators of Metro Manila v. BOT, L-59234, 30 September 1982.
A. Exercise of Police Power to Promote Public Interest and General welfare.
The SC upheld the validity of the Rent Control Law as police power measure: “It was enacted to promote the public interest and the general welfare. The State is not compelled to stand idly by while a considerable segment of its citizens suffers from economic distress” (Melchorr v. Moya, L-35256, 17 March 1983)
B. Exercise of Police Power to Meet Exigencies of Changing Times.
Police power is a dynamic force that enables the State to meet the exigencies of changing times. On some occasions, police power may even override a constitutional guaranty. Thus, guaranty of no imprisonment for non-payment of debt may be made to yield to the State’s police power (Lozano v. Martinez, G. R. No. 63419, 18 December 1986)
C. Exercise of Police Power To Secure Economic Survival and ell-Being of the Community.
The establishment and maintenance of the Oil Price Stabilization fund is within that pervasive and non-available power and responsibility of the government to secure the physical and economic survival and well-being of the community, that comprehensive sovereign authority e designate as the police power of the State. The stabilization and subsidy of domestic prices of petroleum products and fuel oil – critical in importance considering, among others, the continuing high level of dependence of the country on crude oil – are appropriately regarded as public purpose (Citizen’s Alliance for Consumer Protection v. ERB, G. R. No. 78888-90, 23 June 1988)
D. POLICE POWER AS THE LA W OF OVERHELMING NECESSITY
Police power of the State is co-extensive with self-protection. it is the law of overwhelming necessity. It is that inherent and plenary power of the State to prohibit all things hurtful to the comfort, safety and welfare of the people (Phil Assn of Service contractors v. Drilon, G.r. No. 81958, 30 June 1988)
The Bill Is Feasible As Manifested By The Determination Shown By The Legislature In Proposing Bill Into Law, And By The Sovereign Power of the People Themselves To Repeal, Replace, And Recast Antiquated, Ineffective And Irrelevant Laws, Rules and Regulations.
Between the security of the State and its due preservation, on the one hand and the constitutionally guaranteed right of an individual, which should be held to prevail?
When our people gave their consent to the fundamental law of the land, they did not renounce but to thecontrary, reserved for themselves certain rights that they held sacred and inviolable. One such right is the privilege to be so secured in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. Their sole conceded proviso to this rule is when a search warrant or warrant of arrest is lawfully issued. There are, to be sure, known exceptions, predicated on necessity and justified by good reasons, when warrantless searches and seizures are allowed.
The Constitution indeed protects and safeguards the privacy of communication. But this privacy gives way to two exceptions, to wit:
(1) Upon lawful order of the court as when the latter orders the communication be testified to as being material to a pending case; or,
(2) When public safety and order shall require otherwise, as may be prescribed by law.
I. The Necessity of Protecting Information and Communication, as well as communication structures was Fully Appreciated by The Drafters of the Constitution.
Section 20, Article XVI of the 1987 Philippine Constitution deals with communication in general and includes within its scope commercial telecommunications, mass media and advertising. It deals with “communication structures” and is concerned with the availability and reach of communication facilities. The subject is a matter of concern because, as Commission Braid put it: “no other technology . . . has prescribed itself so penetratively and yet so imperceptibly on human consciousness as mass communication. We cannot measure the real losses in terms of people participation, development of indigenous technical skills, personal and national identity and self-forth and self-esteem owing to the pervasive influence of communication in our society.”
While the provision prescribes a communication structure which allows for a nationa- international balance that is beneficial to the nation: “the balance flow of information into, out of, and across the country.” But while concern is with structure, and since structure is bound to have an impact on the content of communication, the provision adds that, whatever policy is formulated, it must respect the “freedom of speech and of the press.”
II. The Constitution Authorizes the Regulation of Information and Communication In Vie of Public Need, Public Interest and Common Good.
In the exercise of proper communication the authority to maintain a proper communication environment, the State may even order a private telephone company to allow interconnection. Thus, in PLDT v. NTC, 190 SCRA 717 (1990) the Court said: “The interconnection which has been required of PLDT is a form of intervention with property rights dictated by the “objective of government to promote rapid expansion of telecommunication services in all areas of the Philippines. . . to ensure that all users of the public telecommunications services have access to all other users of the service whatever they may be within the Philippines at an acceptable standard of service at reasonable cost.”
The decision considered public need, public interest, and the common good. Those were the overriding factors which motivated the NTC in granting provisional authority to ETCI. Article II, Section 24 of the 1987 Constitution, recognizes the vital role of communication and information in national building. It is likewise a State policy to provide the environment for the emergency of communication structures suitable to the balanced flow of information into, out of, and across the country (Article XVI, Section 10). A modern and dependable communication network rendering efficient and reasonably priced services is also indispensable for accelerated economic recovery and development. To these public and national interests, public utility companies must bow and yield.
III. The Sovereign Filipino People Mandates That The Government Must Pursue State Policies and Perform and its Duty, To Achieve Common Good.
The Government aims to promote thecommon good, not merely the general welfare which, by the use of the word “general” admits of exception. The welfare of every Filipino, wherever he may be and however poor he may be is the concern of the State. The Government exists to promote the welfare of every Filipino, and this is express in Pilipino “sa ikabubuti ng lahat” rather than for the general welfare which is “sa ikabubuti ng nakakarami”. (Nolledo, Jose, The New Constitution of the Philippines, 1997 Revised Ed., National Book Store, Mandaluyong City, Philippines., p. 149). Thus, the sovereign Filipino people, in achieving common good, tasked the government to pursue the following policies as well as duties:
Section 1, Article II – The Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them.
Section 2, Article II – The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international la as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with allnations.
Section 4, Article II – The primary duty of the Government is to serve and protect the people. The Government may call upon the people todefend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by la, to render personal militaryor civil service.
Section 7, Article II – The state shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.
Section 19, Article II – The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.
Section 20, Article II – The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.
Section 19, Article II – The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.
Section 24, Article II – The State recognizes the vital role of communication and information in nation-building
Section 28, Article II – Subject to reasonable conditions prescribed by law, theState adopts and implements a policy of full public disclosure of all its transactions involving public interest.
Section 13, Article XII – The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.
Section 19, Article XII – The State shall regulate or prohibit monopolies hen the public interest so requires. No combination in restraint of trade or unfair competition shall be allowed.
Section 9, Article XVI – The State shall protect consumers from trade malpractice and from substandard or hazardous products.
Section 10, Article XVI – The State shall provide the policy environment for the full development of Filipino Capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.
Section 11, Article XVI – (1) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens.
The Congress shall regulate or prohibit monopolies in commercial mass media hen the public interest so requires. No combinations inrestraint of trade or unfair competition therein shall be allowed.
(2) The advertising industry is impressed with public interest, and shall be regulated by la for the protection of consumers and the promotion of the general welfare.
Only Filipino citizens or corporation or associations at least seventy-five per centum of which is owned by such citizens shall be allowed to engaged in the advertising industry.
The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines.
A. The Government Must Always Concern Itself with the well-Being and Economic Security of the People
“No one could be compelled under our libertarian system to share with the present government its ideological beliefs and practices, or commend its political social and economic policies or performance. But, at least, one must concede to it the basic right to defend itself from its enemies and, while in power, to pursue its program of government intended for public welfare. In the pursuit of those objectives, the Government has the right, under its police power, to select the reasonable means and methods for best achieving them. (Valmonte v. de Villa, GR 83988, 24 May 1990)
The promotion of social justice to insure the well-being and economic security of all the people should be the concern of the state The court also approved the “equality of right” principle: “In all such particulars the employer and the employee have equality of right, and any legislation that disturbs the equality is an arbitrary interference with the liberty of control. In all such particulars the employer and the employee have equality of right, and any legislation that disturbs the equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land. “Police power, the court conceded, is an expanding power; but it cannot grow faster than the fundamental la of the state. If the people desire to have the police power extended and applied to conditions and things prohibited by the organic law, they must first amend the law” People v. Pomar, 46 Phil 440 (1924)
B. Duty of the State To Promote and Protect Human Rights and Fundamental Freedom Under International Law
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis. while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural system, to promote and protect all human rights and fundamental freedom. The process of promoting and protecting human rights should be conducted in conformity with the purpose and principles of the UN Charter and international la. (Declaration on Human Rights, Vienna, 1993)
Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their on political, economic, social and cultural systems and their full participation in all aspects of their lives. The promotion and protection of human rights and fundamental freedoms at the national and international level should be universal and conducted without conditions attached. The international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world (Declaration on Human Rights, Vienna, 1993)
IV. The State Must Carry Out and Implement Senate Bill No. 2965 In Due Exercise of Its Police Power; The Security of the State Is Compatible ith Individual Rights, Including Right to Privacy, for Both Can be Preserved.
Thus the question: Between the security of the State and its due preservation, on the one hand and the constitutionally guaranteed right of an individual, which should be held to prevail?
There is no choice to my mind not for any other reasons than because there is utterly no need to make a choice. The two are not incompatible; neither they necessarily oppose to each other. Both can be preserved; indeed, the vitality of one is the strength of the other. (Nolledo, Jose, The Ne Constitution of the Philippines, 1997 Revised Ed., National Book Store, Mandaluyong City, Philippines).
Since the early 1970s, the Philippines have been witnessing the fast pace of developments in the field of information technology which has brought about a continuing torrents of variety of new technologies that could and did facilitate massive copyright infringements. Thus, copyright owners, both here and abroad, continuously hold the view that among these new technologies, the development of computers and the Internet stand out as the main culprits which facilitated new methods of copying that obviously are in the nature of copyright infringement and piracy. They specifically point to Fan Arts or Fanarts as one such method of copying that is continuously bringing economic havoc to their respective businesses.
On 6 June 1997, then President Ramos approved Intellectual Property Code of the Philippines(R.A. 8293) which became effective on 01January 1998. The law was actually a consolidation of Senate bill No. 1719 and House Bill 8098, enacted primarily to give effect to the Agreement on Trade-Related Aspects of the Intellectual Property rights (TRIPS) which the Philippine Senate on December 14, 1994. Notwithstanding the passage of R.A. 8293, copyright owners remain convinced that the government need to take more stringent action to halt the flagrant violation of their exclusive and moral rights under existing laws.
Surprisingly, the government remains mum on the matter. Thus, the questions:
Did Congress, in enacting RA 8293l in 1997, considered said law, along with the Constitution, existing statutes and current jurisprudence on the matter, as being adequate and sufficient to meet such current issues on the proliferation of Fan Arts?
Or should the nature of conflicting interest between copyright owners and Fan Art artists be a sufficient basis for Congress to revisit R. A. 8293 so as to resolve the issue of alleged individual liability from copying of copyrighted works?
I personally believe that the Constitution, existing statutes, current jurisprudence and R.A. 8293, side by side with the persuasive effect of American statutes and case laws, are more than sufficient to justify the legality of Fan Arts being merely a part of creative process necessary to achieve national progress as well as being a clear exemption from the protection of copyright under the doctrine of “fair use”.
I justify the reference to American statutes and case laws in resolving this particular issue on the grounds that R.A. 8293 is a substantial reproduction of the United States’ Copyright Act of 1976 (17 U.S.C. 101 et. Seq.; 1976) and that, even after the passage of R.A. 8293 in 1998, Philippine Courts had been consistently using and citing in its decisions U.S. case laws respecting matters involving violations of the Intellectual Property Code of the Philippines. Thus, in Pearl and Dean v. Shoemart and NEMI, G.R. No. 148222, 15 August 2003, the Supreme Court cited Baker v. Selden, 101 U.S. 841 (1879) and Muller v. Triborough Bridge Authority, 43 F. Supp. 298; SDNY, 1942. On the other hand, the following is a brief description of the United States’ Copyright Act of 1976 from which R.A. 8293 as derived in substantial form and context:
“Copyright Act of 1976, 17 U.S.C. Section 101 et seq. (1976), replaced prior Copyright Act of 1909, revising extensively U.S. Copyright law. This act preempted state common-law copyright, thus completing the coverage of the national copyright system. In addition to other changes, it eliminated the requirement that works to be copyrighted be deposited with the Library of Congress, and it changed the term of copyright from 28 years with a single renewal to the life of the author plus 50 years (with certain exceptions). It also broadened categories of materials to the life of the author copyrighted, stating that copyright subsists in original work of authorship fixed in any tangible medium of expression. Such works include literary, musical, and dramatic works; pantomime and choreographic works; pictorial, graphic, and sculptural works; motion picture and other audio-visual works; sound recordings and computer software. The Act clarified the conventions of fair use; specified proper copyright notification (usually the symbol © or the word “Copyright”); established the Copyright Royalty Tribunal to oversee cable television and jukebox licensing of copyrighted works, in accordance with royalty rates set by the tribunal; placed limitations on the use of copyrighted works by libraries and educational institutions; and established a mechanism for review of issues pertaining to computer software.” (Merriam-Webster’s Dictionary of Law, 1996 ed., Merriam-Webster, Incorporated, Philippines, p.584)
WHILE FAN ARTS ARE ADMITTEDLY FORM OF COPYING, WHICH IS SHORTHAND FOR THE INFRINGING OF THE COPYRIGHT OWNER’S EXCLUSIVE RIGHTS, NOT ALL ACT OF COPYING INFRINGES COPYRIGHT HENCE, LEGAL
Fan Arts or Fanarts, by its traditional definition, are artworks based on a character, costume, collage, item, or story, created by someone other than the artist who may or may not be a fan, and who derived the idea of the artwork from visual media such as comics, movies or video games. In modern usage, “Fanart” evolved to mean any amateur art for a specific TV show, movie, book, or other media event not owned or created by amateur artists, or artists who are unpaid for their fan creations. Thus, a professional comic adaptation of an original artwork would not be considered fanart, while a version done by an unaffiliated fan would be.
Being an artwork, Fanart may appear in every medium just as traditional “art” does, including but not limited to drawing, painting, sculpture, photography, photo manipulation, videos, crafts, textiles, metal smithing, and fashion.
How then would Fan Arts be considered as legal or illegal?
Fan art is illegal if it is copied in a manner that is “contrary to law, morals, or public order, or which contravenes some rules of publicpolicy or public duty” (Piroveno v. De la Rama Steamship Co, 96 Phil 360); “it is an act that is void and cannot be validated” (Republic v. Acoje Mining Co, 117 Phil 383) Conversely, a fan art is legal if it is copied in manner that is “conforming to law; according to law; required or permitted by law; not forbidden or discontinuanced by law; good and effectual in law; cognizable in courts of law” (Lopena v. Magridge, 61468-R, 24 December 1980)
The Intellectual Property Code of the Philippines Authorizes the Copying and Use of a Copyrighted Work When Such Copying and Use Does Not Conflict With Any of the Specific Exclusive Rights of the Copyright Owner.
To come within the realm of illegality, the act of copying and using a copyrighted work in order to create a fan art must be contrary to law, morals or public order, or contradictory to some public policy or public duty. But when the law and jurisprudence themselves, in pursuance of a constitutional provision, authorizes the act of copying and using a copyrighted work, such acts and use must be interpreted to be perfectly legal.
First, I invite attention to the textual construction of the definition of exclusive rights in Sections 177 as well as Section 184 of Republic Act No. 8293, both of which are prefaced in the following manner, to wit:
“Chapter V – Copyright Or Economic Right.
Section 177. Copy or Economic Rights. – Subject to the provisions of Chapter VIII, copyright or economic right shall consist of the exclusive right to carry out, authorize or prevent the following acts. . .”
‘Chapter VIII – Limitations On Copyright.
Section 184. Limitations on Copyright. –
184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright. . .”
Very clearly then, what Section 177 is saying is that, although copy or economic rights gives the copyright owners the exclusive right to carry out, authorize or prevent the rights of reproduction, transformation, first public distribution, rental, public display, first public performance and other communication of their works to the public, such rights are subject to the “Limitations on Copyright,” which limitations, according to Chapter VIII, Section 184 thereof, are acts which “shall not constitute infringement of copyright.
Briefly restated, there are acts which, though appearing to be infringing a copyright, does not necessarily constitute infringement of copyright.
Thus, even unauthorized uses of a copyrighted works are not necessarily infringing. In the same vein, “an unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright law” (Twentieth Century Music Corp V. Aiken, 422 U.S. 154).
The Intellectual Property Code of the Philippines Authorizes the Copying and Use of a Copyrighted Work When Such Copying and Use Are Permitted Under the Doctrine of Fair Use.
Second, I have to emphasize the fact that R.A, 8293 authorizes the copying and use of a copyrighted work under Section 185 thereof, which actually is a legislative endorsement of the Doctrine of Fair Use.
“Section 185. Fair Use of a Copyrighted Work. –
185.1. 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. . . In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include. . .”
185.2. 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.”
Well-settled is the rule that foreign laws and judgment are not accorded judicial notice unless they are properly pleaded and proved in a legal proceedings. However, the Court may, in its discretion, take judicial notice of foreign laws and judgment whenever the issue is embraced in a Philippine statute derived or adopted from a foreign law or judgment, there being want of sufficient precedents on the issue under consideration. Nevertheless, such foreign law shall not wholly be controlling, but shall be accorded only persuasive effect on the trier of facts.
While the concept of “Fair Use” and the factors used in determining its application are stated in Sections 185 to 190.3, Philippine authors such as Ernesto C. Salas, author of Essentials of Intellectual Property Law, admits in page 243 of said book that “while the concept is rather simple, its application is definitely not.” For this reason, as well as the fact of want of Philippine Jurisprudence on the treatment and application of the Doctrine of Fair Use, I refer to the landmark U.S. case of A & M Records, Inc. v. Napster, 114 F. Supp. 2d 896; 12 February 2001, explaining in depth the application of the Guidelines in the Determination of Fair Use, to wit:
“Guidelines in the Determination of Fair Use –
A. Purpose and Character of the Use.
Focuses on whether the new work merely replaces the object of the original creator or instead adds a further purpose or different character. Thus, this factor asks “whether and to what extend the new work is ‘transformative’ (Campbell v. Acuff-Rose Music, inc. 510 U.S. 569, 579; 114 S.Ct. 1164; 127 L. 2d 500, 1994)
Downloading MP3 file does not transform the copyright
Retransmission of radio broadcast over telephone lines is not transformative (Infinity Broadcast Corp v. Kirkwood, 150 F. 3d 104, 1998)
Reproduction of audio CD into MP3 format does not transform the work (UMG Records v. MP3.com, 92 F. Supp. 2d 389)
Requires the determination of whether the alleged infringing use is commercial or non-commercial. Hence, a commercial use weighs against a finding of fair use
Direct economic benefit is not required to demonstrate commercial use; rather, repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute commercial use.
a. Churches that copy indices and texts for its members unquestionably profited from the unauthorized distribution and use of the text without having to account to the copyright owners (Worldwide Church of God b. Philadelphia Church of God, 227 F. 3d 1110; 9th Cir. 2000)
B. Nature of the Copyrighted work.
1. Work that are creative in nature are closer to the core of intended copyright protection than are more fact-based works.
C. The Amount and Substantiality of the Portion Used in Relation to the Work as a Whole.
1. While wholesale copying does not preclude fair use per se, copying an entire work militates against a finding of fair use (Hustler Magazine v. Moral Majority Inc, 796 f. 2d. 1148; 9th Cir. 1986)
a. A use is fair even w hen the protected work is copied in its entirety (Sony Corp v. Universal City Studios, Inc., 464 U.S. 417; 104 S.Ct. 774; 1984)
D.Effect of the Use Upon the Potential Market for the Work or the Value of the Work.
1.Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.
2. The importance of this factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors.
The proof required to demonstrate present or future market harm varies with the purpose of character of use
The act of Copying and Use of Fan Arts is NOT a Case of Theft Which Would Make Fan Art Illegal; Rather, It Is Merely a Part of the Creative Process that We All Do and Need to Do in Order to Foster National Progress, as Envisioned in the Constitution and the Laws.
The purpose of copyright is to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries. Copyright therefore, is for the benefit of society, and the acts of rewarding authors and creators is the means to achieve this. But it should be kept in mind that there will always be tension between encouraging the use and processing of information, and discouraging it.
Too little control might negatively affect creative activity. But too much control and too many restrictions in copyright might also interfere with creativity.
Fan Arts, as new forms of artworks produced from variety of evolving technologies, are not only authorized but are actually encouraged by the State to promote the progress of science and useful arts deemed essential to national development and progress. Thus, under the 1987 Philippine Constitution, the following policies and provisions respecting new artworks such as Fan Arts, can be found, to wit:
“Article II – Declaration of Principles and State Policies.
Section 17. The State shall give priority to education, science and technology, arts, culture and sports to foster patriotism and nationalism, accelerate social progress and promote total human liberation and development.
Section 24. The State recognizes the vital role of communication and information in nation-building.
Article XIV – Education, Science and Technology, Arts, Culture and Sports.
Section 10. Science and technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation and their utilization; and to science and technology education, training and services. It shall support indigenous, appropriate and self-reliant scientific and technological capabilities, and their application to the countries productive system and national life.
Section 13. The State shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as may be provided by law.
Article XIV – Arts and Culture
Section 14. The State shall foster the preservation, enrichment and dynamic evolution of a Filipino national culture based on the principle of unity of diversity in a climate of free artistic and intellectual expression.
Section 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote and popularize the nation’s historical and cultural heritage and resources, as well as artistic creations.
Section 18, para 2. The State shall encourage and support researches and studies on the arts and culture.”
To carry into effect and achieve the foregoing constitutional mandates, Republic Act No. 8293 (Intellectual Property Code of the Philippines), provides:
“Section 2. Declaration of State Policy: The State recognizes that an effective intellectual and industry property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, investors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act.
The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good.
It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyrights, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines.”
Evolving technologies create new opportunities for lawful competition, and, as a result, copyright owners must sometimes change their business methods. But outlawing a useful technology merely because many people use it as a tool for infringement will rarely promote the progress of science and useful arts.
Therefore, only when the technology is not capable of legitimate uses does it make sense to outlaw it.
Copyright Owners Are Not Entitled to Prohibit Fan Art Nor Exercise Monopoly control Over New Technologies with Legitimate Uses; The Enjoy Only Those Rights Accorded to them by the Statute.
“Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by the statute. Being a statutory right, the rights are only enjoyed with respect to the subject and by the person, and on terms and conditions specified in the statute. Since copyright in published work is purely a statutory creation, a copyright may be obtained only for a work falling within the statutory enumeration or description.” (Joaquin v. Drilon, G.R. No. 108946, 29 January 1999)
Copyright law does not give copyright owners control over technologies with legitimate uses, even though consumers can use those technologies to enjoy copyrighted works without authorization. The core of copyright principle is that intellectual property owners are NOT entitled to prohibit or exercise monopoly control over new technologies that threatens their business existence. (A & M Records, Inc. v. Napster, 114 F. Supp. 2d 896; 12 February 2001)
The current developments therefore are clarion calls for copyright owners to rethink their business plans and positions, because copyright law is not intended to insulate copyright owners’ business plans from the course of technological development.
But to single out some businesses and individuals as outlaws by attributing to them the havoc that a new artwork will bring, even before finding a cognizable wrong in the method of procuring and using such new artwork, runs against the basic principle of fair play.
In any event that copyright owners fail to adjust and compete under the evolving technological development, such is a situation that only copyright owners themselves could provide the necessary answer.
Introduction to Title I.
Years prior to 2000, legal controversies respecting intellectual property infringement were almost unheard of, despite the fact that during those periods there were then both foreign and domestic companies producing capital and consumer products and services marketed to foreign and domestic markets.
After 2000, however, radical changes, mostly attributed to the advent of the internet, took place as regard intellectual property rights both here in the Philippines and abroad. This period catered in a steady rise in claims as well as counterclaims for copyright infringement, pitting major players in the media, pharmaceutical, fashion design, banking and finance, food, and service-provider industries against internet service companies and private individuals.
Recently, the U.S. government, particularly its Senate as well as its House of Representatives, became the object of criticism when said chambers proposed bills, namely, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP Act), the Stop Online Piracy Act (SOPA), the Online Protection and Enforcement of Digital Trade Act (OPEN), and the most controversial of them all – the Anti-Counterfeiting Trade Act (ACTA), aimed at curbing the growing menace of copyright infringements committed by foreign internet piraters and infringers against American copyright owners.
This reaction paper delves into the nature of the afore-mentioned proposed U.S. bills, the attendant controversies thereto, and the feasibility or non-feasibility of their being adapted in this country.
NOTA BENE: This Title discussing the proposed bills PIPA, SOPA and OPEN Act, is the first of two installments to this work. Due to the controversial nature and far-reaching implication of ACTA, this writer, fully aware of the target date for the submission of this reaction paper, nevertheless opts to discuss ACTA separately and at length in the second installment.
I. The Framing of the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP Act or PIPA)
A. Events Leading to the Framing of PIPA
For the past several years, U.S. content creators, under the aegis of the Digital Millennium Copyright Act of 1998 (DMCA), have been engaged in an active electronic war against copyright infringers and internet piraters. True, U.S. content creators have won many of their hard-fought battles in their homeland, yet they remain to be virtual paper tigers in their sustained, aggressive campaign against their overseas opponents.
In the early part of 2011, the U.S. Chamber of Commerce, in a letter to the editor of The New York Times, revealed that “rogue websites that steal American’s innovative and creative products, attract more than 53 billion visits a year thereby threatening more than 19 million American jobs. Because the target “rogue” sites are offshore, lawsuits against them in U.S. courts would be futile.
Thus, on 12 May 2011, Senator Patrick Leaky introduced PIPA before the U.S. Senate.
PIPA critics, on the other hand, charges that PIPA is actually a re-write of the Combating Online Infringement and Counterfeit Act (COICA) which failed to pass in 2010.
B. What PIPA intends to Achieve.
U.S. content creators have always been looking for new ways to fight privacy and infringement. They have tried suing individual users, getting Internet Service Providers (ISPs) to take action against subscribers, and working with the U.S. government to shut down internet domains based in the U.S. But none of these actions proved successful against overseas websites from infringing U.S. copyrights or prevent internet users from accessing those infringing sites.
PIPA then is aimed at foreign websites that infringe copyrighted materials. It seeks to enhance enforcement against “rogue” websites operating and registered overseas, and eliminate financial incentives to steal intellectual property online. “Rogue website” is a term coined by PIPA and SOPA supporters, for websites that happen to be located in a nation more hospitable to copyright infringement than the U.S.
C. How is PIPA Designed to Operate.
Originally, PIPA, like its House of Representatives’ version SOPA, provided for two methods for fighting copyright infringement against foreign websites:
The U.S. Department of Justice could seek court orders requiring an ISP to block the domain name of the infringing site. However, this ISP-blocking provision became a major concern among internet security experts hence, this provision have been dropped from both the PIPA and SOPA.
Allows rights-holders to seek court orders requiring payment providers, advertisers, and search engines to stop doing business with the infringing site. Under this method, rights-holders would be able to request that funding be cut-off from an infringing site, and that search links to that site be remove. The site in question would have five (5) days to appeal any action taken against it.
PIPA allows the U.S. Department of Justice to ask the court to issue an order to block the website, upon satisfaction that the website is directed at U.S. consumers and harms U.S. intellectual property rights owners. Once the court order is issued, such order may be served on the ISP, financial transaction providers, internet advertising services and information location tools to require them to stop financial transactions with the “rogue” site, to take reasonable measures to expeditiously cease doing business with the infringing website, to prevent access to it, and remove links to it . The term “information location tool” was borrowed from the DMCA and is understood to refer to search engines but could cover other sites that link to content.
D. Other Significant PIPA Provisions.
PIPA defines infringement as “distribution of illegal copies, counterfeit goods, or anti-digital rights management technology. Under PIPA, an infringement exists if facts or circumstances suggest that site is used primarily as a means for engaging in, enabling, or facilitating activities described as infringement.
PIPA clarifies that it does not alter existing substantive trademark or copyright law.
The proposed bill provides for “enhancing enforcement against rogue websites operated and registered overseas” and authorizes the U.S. Department of Justice to seek a court order “in rem” against websites dedication to infringing activities, if through due diligence, an individual owner or operator cannot be located.
II. The Framing of the Stop Online Piracy Act (SOPA)
A. Events Leading to the Framing of SOPA
The events which led to the framing of SOPA is exactly the same events, circumstances and environments which led to the framing of PIPA in the U.S. Senate.
SOPA as introduced by Texas Representative Lamar Smith (Republican) before the House of Representatives on 26 October 2011.
B. What SOPA intends to Achieve.
The main targets of SOPA are overseas websites classified as troves for illegal downloads. It thus aims to crack down on copyright infringement by restricting access to “rogue websites” that host or facilitate the trading of pirated content.
C. How is SOPA Designed to Operate.
The immediate objective of SOPA is to cut off pirate sites by requiring U.S. search engines, advertising networks and other providers to withhold their services to “rogue websites.”
SOPA defines “foreign infringing site” as any site that is committing or facilitating copyright infringement direct against U.S. content creator. A “U.S.-directed website,” according to Section 101 of SOPA is one wherein:
The internet site is used to provide goods and services located in the U.S.;
There is evidence that the internet site or portion thereof is intended to offer or provide such goods and services, or access to such goods and services, or delivery of such goods and services to users located in the U.S.;
The internet site or portion thereof does not contain reasonable measure to prevent such goods and services from being obtained in or delivered to the U.S.; and,
Any price for goods and services are indicated or billed in the currency of the U.S.
As provided for in the proposed bill, whenever a website is suspected to be a “rogue site:”
SOPA allows the U.S. Attorney General to seek court order against the targeted offshore website that would in turn, be served on the internet provider in an effort to make the target virtually disappear.
More specifically, Section 2 of SOPA provides that after being served with a “removal order,” a service provider shall take technically feasible and reasonable measure designed to prevent access by its subscribers located within the U.S. to the foreign infringing site or portion thereof that is subject to the order. Such action shall be taken as expeditiously as possible, but in any case within five (5) days after being served with a copy of the “removal order” or within such time as the court may order.
D. Other Significant SOPA Provisions.
Unlike PIPA which targets only domain name system providers, financial companies and advertising networks, SOPO zeroes in on companies that provide internet connectivity.
SOPA critics charge that the bill will cause some serious security-related implications, for the bill intends to tinker with domain name system and a set of security improvements to it, known as DNSSEC. The idea of DNSSEC is to promote end-to-end encryption of domain names, that is, there will be not break in the chain between the internet provider and its customers. If carried out, innocent website will be swept in as “collateral damage”, and the blacklist can be bypassed by using the numeric internet address of a website.
SOPA could require ISPs to monitor customers’ traffic and block websites suspected of copyright infringement.
SOPA could be used to force ISPs to block by “Internet Protocol Address” and deny “access to only the illegal part of the site. Since IP blocking will be involved, it may likewise follow that “Deep Packet Inspection,” meaning forcing an ISP to intercept and analyze customers’ web traffic as the only way to block access to specific URLs.
SOPA critics aver that SOPA is an Internet Blacklist Bill that would allow corporations, organizations, or the government to order an ISP to block an entire website simply due to an allegation that the site posted infringing content.
III. The Parties to the Controversies.
The frontlinePIPA and SOPA supporters are traditionally composed of the media companies, TV networks, movie studios, recording companies, beauty-products makers, pharmaceutical companies, artists associations, service providers, and other individuals and entities who holds or owns intellectual property rights.
The midfield players are ISPs, advertising networks, financial providers and those individuals and entities at the intersection of the conflicting claims of copyright owners and the infringers/piraters.
The oppositors are usually those accused of intellectual property infringement and internet pirating.
IV. Issues and Concerns
Following are issues and concerns aired by various individuals and groups on internet, respecting PIPA and SOPA,:
- Passing laws to filter pirated content for Americans does nothing about piracy overseas; the pirates will quickly find ways around the filtering system.
- Media companies are trying to legislate their way out of what is really a business-model problem.
- SOPA shifts the financial and resource burdens of protecting IP rights from the copyright holders to ISP and search engine companies, even though the latter has no financial interest in protecting those copyrights.
- Neither proposed bill does enough to protect against false accusation:
- Provisions in the bills grant immunity to payment processor and network that cut off sites based on a reasonable belief of infringement; so, even if the charges turn out to be false, only the site suffers.
- The standard of immunity is incredibly lower and the potential for abusive is high; thus, sites that host user-generated content will be under tremendous pressure to closely monitor users’ behavior
- Increased restrictions like the PIPA proposal will deter innovation in an economic climate here creative innovations need a boost, not a setback.
- The bills have grave constitutional infirmities, potentially dangerous consequences to the stability and security of the internet addressing system, and will undermine U.S. foreign policy and strong support for free expression on the internet around the world.
- PIPA does not meet constitutional standards because a final determination of unlawful activity must be made before a material is completely removed from circulation.
- In addition to the alleged infringing material, a large amount of protected speech may be affected, thus emphasizing the potential over-broadness of the bill.
- SOPA will have catastrophic consequences for the stability and security of the DNS. By blocking certain websites, the domain name universality that allows all entries to come up with the same answer, no matter what DNS is being used, will be undermined.
- By blocking websites, SOPA will subvert current efforts supported by the U.S. in strengthening the security of DNS protocols.
- PIPA is likely to exert pressure on other countries to adopt PIPA’s IP-protection standards.
- PIPA gives U.S. the power to bring down websites outside of its jurisdiction, thus become a form of disguised for trade protectionism.
- Filing of false notification is a crime, but the process under SOPA would put the burden of proof and the legal cost of fighting a false allegation on the accused.
- SOPA systematically favors a copyright owner’s intellectual property rights, and at the same time, strips the owner of the accused website of their rights.
- SOPA is an Internet Blacklist Bill; it would allow corporation, organization, or the government to order an ISP to block and entire website simply due to an allegation that the site posted infringing content.
- SOPA is unconstitutional; if enacted, an entire website containing tens of thousands of pages could be targeted hen only a single page ere accused of infringement.
- The proposed bills stomp on individuals in manifold ways, aside from the fact that they are supported by a loathsome group of predatory business; if implemented, they will curtail free use of the internet with draconian enforcement and fines.
- Against the foregoing myriad of claims against PIPA and SOPA, this writer finds the following argument to be the only acceptable defense in support of the two proposed bills: SOPA clearly defines infringing sites based on Supreme Court rulings and the DMCA, and requires rights-holder to follow a strict set of rules when trying to get payment cut off to an infringing site. False claim can result to damages, including cost and attorney’s fee.
V. Current Status of the Proposed Bills.
On 14 January 2012, White House officials posted the following statement: “Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small,” and “we must avoid creating ne cyber security risk or disrupting the underlying architecture of the internet.”
Four days thereafter, a concerted protest action as launched by high-profile Web companies and organizations. Wikipedia went completely black; Google put a big black box over the prominent logo on its home page, with a link to a page on which users could sign a petition entitled “Tell Congress: Don’t censor the Web.” Street protest followed in the cities of New York, San Francisco and Seattle. The event simply was a culmination of strong public opposition to PIPA and SOFA.
Days later, the controversial IP-blocking provisions were dropped from the proposed bill. This was followed by some Senators and Representatives withdrawing their support to the proposed bills.
Currently, PIPA and SOPA are in limbo.
VI. The Online Protection and Enforcement of Digital Trade Act (OPEN Act) as an Alternative Legislation.
On 18 January 2011, the same date when PIPA and SOPA were sent to the legislative freezer, California Republican Darrell Issa introduced OPEN Act in the House of Representative. This was followed by Oregon Democrat Ron Wyden introducing OPEN Act’s Senate version.
According to its author and supports, OPEN Act offers more protection than SOPA would to sites accused of hosting pirated content. It intends to cut off the flow of funds to alleged pirate websites without requiring them to be blocked. It would allow digital rights holders to bring cases before the U.S. International Trade Commission (ITC), an independent agency that handles trademark infringement and other trade-related disputes.
SOPA supporters counters:
The ITC does not have the resources for digital enforcement and that giving it those resources would be too expensive.
OPEN does not do enough to combat online piracy; it may make the problem worse.
VII. The Viability of PIPA and SOPA as Part of the Philippine Legal and Political System
The proposed bills in its present contextual forms, are definitely intended for the internal application in the U.S. At least for now, there is no immediate urgency for persons other than American citizens to comment, argue or contend with what U.S. legislators think is good for its citizens.
Yet, the warning raised by a PIPA critic that “PIPA is likely to exert pressure on other countries to adopt PIPA’s IP-protection standards,” is relevant and valid insofar as the Philippines is concerned. For Philippine politicians are known for their innate knacks to survey and copy pending bills as well as new statutes enacted by other countries, with the intention of applying them in this country.
As elected representatives of the Filipino people, some politicians see to it that there is a bill, at the very least, clearly attributed to them as authors or co-authors, is filed before their memberships in Congress lapse. Instead of authoring or sponsoring a bill proposing the renaming of a street, or a state college or university, or a hospital, or government building, the controversy that a Philippine version of PIPA and/or SOPA will create is more than enough for their names to be remembered as a Philippine statesmen. Never mind the potential chaos that such PIPA and/or SOPA version would cater to the Filipinos. What counts to some politicians is that they leave some mark during their term in office so that the voters will easily recall such politicians’ name come election.
Should the warning suddenly materialize in Philippine Congress, I then offer the following arguments to such initiative.
A. A Philippine Law Adapted from PAPI and SOPA is Duplicitous of the Republic Act No. 8293 (The Intellectual Property Code of the Philippines) Provision hence, Unnecessary.
R.A. 8293 is the codification of the country’s various intellectual property laws. Said law was enacted primarily to give effect to the Agreement on Trade-Related Aspects of the Intellectual Property Rights (TRIPS) ratified by the Philippine Senate on 14 December 1994.
Since its implementation on 01 January 1998, R.A. 8293 proved to be an effective legislation, tailored-fit to the evolving Philippine intellectual property rights requirements.
To illustrate: Both PIPA and SOPA consider internet piracy and copyright infringement as crimes. The same acts are already classified as crimes “mala prohibita” under R.A. 8293, a special law enacted by Philippine Congress for the sole purpose of prohibiting and at the same time imposing sanctions on any act or omission perpetrated by any person in violation of the rights of intellectual property owners. There is therefore, no need for R.A. 8293 to be substituted with a piece of doubtful, untested legislation.
B. A Philippine Legislation Adapted from the Proposed U.S. Bills under Consideration Would be Unconstitutional for being Contrary to Sections 1, and 14(1) and (2) Article III of the 1987 Philippine Constitution.
Section 1 Article III of the Philippine Constitution mandatorily prohibits the deprivation of property, aside from life and liberty, without due process of law.
Section 14, Article III, also of the same Constitution commands “(1) No person shall be held to answer for a criminal offense without due process of law,” and that, “ (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.”
Under the proposed U.S. bills, mere suspicion by an intellectual property rights owner that another person is accommodating, facilitating or performing activities infringing or could infringe his intellectual property rights, would be sufficient basis for the former to seek government intervention for the blocking of the suspected infringer’s IP address. Internet experts are in agreement that IP-blocking is actually an “Internet death penalty,” as the block IP address is forcibly taken out of the internet. In such case, it is clear that the owner is deprived of his property: the blocked IP- address. Inasmuch as the infringement is a crime, Philippine laws require that the accused be given all the opportunity to defend and prove his innocence. Thus, an “ex parte” proceeding, as contemplated in the proposed U.S. bills, applied into a case criminal in nature, is not sanctioned under the Philippine Constitution as well as by the Rules of Court.
Moreover, under Philippine Criminal Law System, a crime exists only when a criminal act is committed, and such act proceeds from a criminal mind, except of course in the case of “mala prohibita” crimes where intent is not necessary.
As mentioned earlier, mere suspicion by an intellectual rights owner would trigger legal action by the government. A suspicion is but a mere state of mind. Suspicion does not even come close to an intention. And any intention, and suspicion for that matter, that remains in the minds of any person is not an actionable right, there being no overt act by or through which a right or a wrong could be qualified.
C. A Philippine Legislation Adapted from the Proposed U.S. Bills under Consideration Would be Unconstitutional for being contrary to Sections 2, 3 and 4, Article III of the 1987 Philippine Constitution.
Section 2, Article III of the 1987 Philippine Constitution mandates: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures of whatever nature and for any purpose shall be inviolable. . .”
In Section 3, Article III, the same Constitution provides that “(1) 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” and (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”
And Section 4, Article IV of the same Constitution explicitly prohibits any violation against the freedom of speech, to it “No law shall be passed abridging the freedom of speech, or the press, or the right of the people to peaceably to assemble and “
Mention must be made that the strongest objection aired by the Americans to the proposed bills is the implications of the bills’ provision on free speech, as provided for in the First Amendment, in relation to the Fourth Amendment, to the U.S. Constitution, which actual are counterpart provisions of Section 4 and Section 2, Article III, respectively, in the 1987 Philippine Constitution, to wit:
Amendment I (1791): “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Amendment IV (1791): “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”
Specifically, the proposed bills’ provisions under question are those appearing in SOPA:
Section 101, defining the term “U.S.-directed website –
The internet site is used to provide goods and services located in the U.S.;
There is evidence that the internet site or portion thereof is intended to offer or provide such goods and services, or access to such goods and services, or delivery of such goods and services to users located in the U.S.;
The internet site or portion thereof does not contain reasonable measure to prevent such goods and services from being obtained in or delivered to the U.S.; and,
Any price for goods and services are indicated or billed in the currency of the U.S.
If adapted, approved and implemented, the proposed bill will trigger the operation of government machineries by mere suspicion that a person, through his website, may or may be committing an infringement.
But is it really the interest of the government that is in issue, or is it the interest of private individuals called intellectual property rights owner?
Nothing is more clearer than the fact that the proposed bills systematically favor a copyright owner’s intellectual property rights, and at the same time, strips the owner of the accused website of their rights.
In the first place, it is the intellectual property rights owner whose interest will be materially affect by the effects and consequences of infringement. Such rights-owner’s interest is purely a private matter; government’s interest, even if not material, must always be public in nature. How then can these bills justify the material role that the government plays in the blocking procedures of a website suspected of committing infringement, in furtherance of the private interest of a private person? Obviously, the two proposed bills is a clear attempt of intellectual property rights owners to legislate their way out of their losing business enterprises which failed to keep abreast with the evolving technological advances. To do that, rights owners blame the alleged “infringing” website, and at the same time enlisting the participation of the government, to do the job for them.
And what if the targeted website indeed committed infringement but which involves only a single page, would the government, over the prodding of a suspecting private individual, be justified in blocking out the entire website, affecting tens of thousands of “innocent” pages or documents stored in that blocked website?
This writer stands steadfast in his belief that by the foregoing arguments alone, the viability of the proposed U.S. bills being adopted in the Philippine legal and political system has no support to stand on.