[Mirror] Manansala, Tessa Lonica

SY 2012-2013, First Semester


DATA PRIVACY ACT 0f 2011

Under Section 3 (1) of Article 3 of the 1987 Constitution provides that:

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.

Even our Constitution respect and upholds the privacy of communication of every individual. Privacy is our precious jewel that everybody wants to invade or take it away from us. In our modern era, it is still best to be secure in every aspect our lawmakers see it to be fit in our age.

This act of the senate entitle Data Privacy Act of 2011 also known as “An Act Protecting Individual Personal in Information and Communications Systems in the Government and the Private Sector, Creating for This Purpose a National Data Protection Commission, and for Other Purposes” (http://www.senate.gov.ph/lisdata/1218710275!.pdf) would be a mechanism and tool to be safe in our private information matters. We can now assure that all the information that were gathered by government agencies and private sector with be utmost confidential relating to our information and cannot be obtain without our consent. The personal information controller processor has the obligation to safeguard the processing of data transfer to third person by any lawful means and any violation of which would tantamount to sanction as stated in the act. Thus, it will ensure that our identity would not be acquired immediately to be used in illegal and fraudulent act. This will not only protect us from invasion of our personal information domestically (Philippines) but which also relates or those engaged outside of the Philippines.

Since this is the mandate of our constitution, then, this act of the senate would be much appreciated.

However, in relation to section 175 of IPC which provides that:

Notwithstanding the provisions of Sections 172 and 173, no protection shall extend, under this law, to any idea, procedure, system, method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts having the character of mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof (n)

The law specifically does not extend to data protection which relates to the law on copyright under IPC, on the other hand the senate provides only for such privacy issue of the data or information gathered or stored by the processor of controller or for any abuses for unauthorized processing of information, then, matter relating to this actuation will be governed primarily by the data protection act of 2011.


Legality of Fan Art in the Philippines

An issue of fan art, legal or not?

Fan Art is an artwork that is based on a character, costume, collage, item, or story that was created by someone other than the artist, such as a fan, from which the word is derived from. [1]

According to Intellectual Property Code:

Sec. 172. Literary and Artistic Works. –

172.1 Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations in the literary and artistic domain protected from the moment of their creation x x.

172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. [2]

In our modern times, fan art has been a rampant doing anywhere, not only in the Philippines, but, around the world. It is subject to possible abuse and maybe an issue of legal disputes about infringement on copyright law. Our law protects copyright pertaining to derivative works that such fan art may fall under with. The law states that:

Sec. 173. Derivative Works. –

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

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

(b) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents. (Sec. 2, [P] and [Q], P. D. No. 49)

173.2. The works referred to in paragraphs (a) and (b) of Subsection 173.1 shall be protected as a new works: Provided however, That such new work shall not affect the force of any subsisting copyright upon the original works employed or any part thereof, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. (Sec. 8, P. D. 49; Art. 10, TRIPS) [3]

There are no yet laws or jurisprudence relating to the legality of fan art here in the Philippines as compared to the foreign jurisprudence, fan art is legal on the ground that it is with the realm of fair use.

Nonetheless, By the very usage of the derivative work sec. 173.1 (a), referred above, it can also be copyright protected by alterations of literary or artistic creations to appear it original per se, that it transforms it to another similar creation based on those art which it came from. As long as it will not affect the subsisting original copyright works, copyright law may be extended as well to fan art.

Therefore, the sense of permitting fan art creations is founded on the creator’s admiration to the works of the original author/creator. It is a form of individual’s positive appreciation to the original work. Furthermore, having a fan community will make the original work more prominent in its field and it necessarily mean that it reached the stage of fame and people’s recognition.


Endnotes

[1] http://en.wikipedia.org/wiki/Fan_art

[2] http://www.lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html

[3] http://www.lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html


RE: DOWNLOADING IN THE PHILIPPINES

Legality of downloading / Related laws

Nowadays, our technology has been continuously progressing to its extent. People are being dependent to technology and have been part of our daily lives and one of these is downloading.

When we say downloading it means to receive data to a local system from a remote system, or to initiate such a data transfer. A download can mean either any file that is offered for downloading or that has been downloaded, or the process of receiving such a file. [1]

A lot of people now are being hooked and addicted to downloading without knowing what are the legal matters that must taken into consideration and what are the consequences after that. It must be noted out that not all available in the internet are legal, there may have been topic or issue which are classified and restricted to be the subject of downloading. There are areas which are sensitive in the views of certain individual and may be subject for sanction like in the laws of different countries which shows their persistent objection for illegal downloading or to that infringer of copyrighted works, to wit;

Digital Economy Act of 2010 of United Kingdom:

Online infringement of copyright

Section 3 to 16
The Act’s provisions against the act of copyright infringement proved controversial. It establishes a system of law which aims to first increase the ease of tracking down and suing persistent infringers, and after a minimum of one year permit the introduction of “technical measures” to reduce the quality of, or potentially terminate, those infringers’ Internet connections. [2]

New Zealand’s “Three Strike Rule”.

The rule allows fines of up to NZ$15,000 (£7,600) to be issued to illegal downloader caught three times. [3]

SOPA AND PIPA of U.S.

The Stop Online Piracy Act (SOPA) is a United States bill introduced by U.S. Representative Lamar S. Smith (R-TX) to expand the ability of U.S. law enforcement to fight online trafficking in copyrighted intellectual property and counterfeit goods. Provisions include the requesting of court orders to bar advertising networks and payment facilities from conducting business with infringing websites, and search engines from linking to the websites, and court orders requiring Internet service providers to block access to the websites. The law would expand existing criminal laws to include unauthorized streaming of copyrighted content, imposing a maximum penalty of five years in prison. [3]

The PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PIPA) the bill defines infringement as distribution of illegal copies, counterfeit goods, or anti-digital rights management technology. Infringement exists if “facts or circumstances suggest [the site] is used, primarily as a means for engaging in, enabling, or facilitating the activities described.” [4]

We can clearly gleaned that, by those list, there is indeed an aggressive approach to stopping illegal downloading and file sharing, I, somehow appreciate this kind of laws where it tends to protect copyright owners for their work. Owners for their hard work must be able to defend such work from infringers and able to reap the work of their own sweat. People deserve to treat fairly and squarely, on matters of their work and business. Thus, passage of these similar laws may greatly affect the flow of good business among industries.

In Philippine scenario these works may be inferred in copyright law [5] which states that:

Section 172. Literary and Artistic Works. – 172.1. Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations in the literary and artistic domain protected from the moment of their creation xx.

This means, music and movies for example are protected from the moment of their creation, which are frequently subject of illegal downloads. They are entitled to be safeguarded to ensure the healthy competition to the market.

Is Philippines ready for ACTA?

The Anti-Counterfeiting Trade Agreement (ACTA) [6] is a multinational treaty for the purpose of establishing international standards for intellectual property rights enforcement. The agreement aims to establish an international legal framework for targeting counterfeit goods, generic medicines and copyright infringement on the Internet, and would create a new governing body outside existing forums, such as the World Trade Organization, the World Intellectual Property Organization, or the United Nations.

Supporters have described the agreement as a response to “the increase in global trade of counterfeit goods and pirated copyright protected works”. Trades Unions representing workers in the music, film and TV industries and large intellectual property-based organizations such as the Motion Picture Association of America and Pharmaceutical Research and Manufacturers of America were active in the treaty’s development.

Threat to Freedom of Speech and Privacy:

However, “the current draft of ACTA would profoundly restrict the fundamental rights and freedoms of European citizens, most notably the freedom of expression and communication privacy.” The Free Software Foundation argues that ACTA will create a culture of surveillance and suspicion. Aaron Shaw, Research Fellow at the Berkman Center for Internet & Society at Harvard University, argues that “ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties. Even though the precise terms of ACTA remain undecided, the negotiants’ preliminary documents reveal many troubling aspects of the proposed agreement” such as removing “legal safeguards that protect Internet Service Providers from liability for the actions of their subscribers” in effect giving ISPs no option but to comply with privacy invasions. Shaw further says that “[ACTA] would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process”. [7]

These ACTA law, on one hand, might somehow useful in the instance of guarding protected works, because it promotes the industry or trade producing manufacturing etc. those works as a part of a business or entertainment. I cannot say that it’s a violation of freedom of speech or an invasion of privacy because before a person can alleged such violation he must be restrained to do an act without lawful means. There must and should be prior restraint before such right be violated. As one of the reasons illustrated were:

  • ACTA is an international trade agreement that will help countries work together to tackle more effectively large-scale Intellectual Property Rights violations. Citizens will benefit from ACTA because it will help protect Europe’s raw material – innovations and ideas.
  • Europe’s economy can only remain competitive if it can rely on innovation, creativity, quality, and brand exclusivity. These are some of our main comparative advantages on the world market, and they are all protected by Intellectual Property Rights. As Europe is losing billions of Euros annually through counterfeit goods flooding our markets, protecting Intellectual Property Rights means protecting jobs in the EU. It also means consumer safety and secures products. [8]

Time again technology holds greater part to easy everyday life, we may say that it helps and provides us a pleasure in just one click, but, we must remember that not all things in the internet are legal and allowed.


Endnotes

[1] http://en.wikipedia.org/wiki/Uploading_and_downloading

[2] http://en.wikipedia.org/wiki/Digital_Economy_Act_2010

[3] http://en.wikipedia.org/wiki/Stop_Online_Piracy_Act

[4] http://en.wikipedia.org/wiki/PROTECT_IP_Act

[5] http://www.lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html

[6] http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement#Threats_to_freedom_and_fundamental_human_rights

[7] http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement#Threats_to_freedom_and_fundamental_human_rights

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

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