[Mirror] Modio, Kent Harold

SY 2012-2013, First Semester


The Value of Privacy

Time again, it has been proven that information is a vital piece in and of our everyday lives. And with the advent of the fast-paced technology, everyone can have access to everything the worldwide web can offer. Such accessibility is indeed beneficial if we put it in good use; however, such accessibility has been subject to abuse and misuse.

Constitutionally-granted right to privacy

The very main gist of the right to privacy is the right to be let alone and the 1986 Philippine Constitution has in it various provisions guaranteeing one’s right to privacy. Such provisions has been applied to great extents resulting to various jurisprudence and laws enshrined on such foundation. [1]

The most basic concept of an individual person is to be secure in our persons, homes, papers and effects. However, the guarantee of which the Constitution has founded upon is not absolute. Various Supreme Court decisions has time and again reiterated that the right to privacy is not an absolute right. [2]

Background

According to a Senate press release, the following are the salient points of the Data Privacy Act among others: [3]

  1. The Philippines lack the overarching policy framework that upholds privacy laws and penalizes individuals for overstepping them.
  2. Based on a study conducted by Verizon RISK team, in conjunction with the US Secret Service and the Dutch High Tech Crime Unit, the Philippines was among the 22 countries that suffered from data breach in 2010.
  3. The Data Privacy Act pushes private and public sectors to keep their information systems secure by defining who are accountable whenever breaches occur. This measure ensures that the Information and Communications Technology (ICT) environment the Philippines seek to roll out will be conducive for both business and government.
  4. The Senate version of the Data Privacy Act follows the Asia-Pacific Economic Cooperation (APEC) Privacy Framework, upholding key Information Privacy Principles, which include preventing harm, providing notice and putting limits to data collection. [4]

The Data Privacy Act of 2011 [5]

The Data Privacy Act encompasses both the public and private sector within the Philippines. It’s main subject is the protection of an individual’s information engaged either in the public or the private sector, such individual has been defined as the data subject.

Consent

One interesting point to look at is the so-called consent of the data object. Section 3 (b) defines:

b.) Consent of the data subject refers to any freely given and informed expression of will, either in written or electronic form executed personally and voluntarily by the data subject, whereby the data subject agrees to the processing of personal information about and/or relating to him or her.

Such consent, must of course, be freely given. However, the more interesting portion to look at is the form by which the consent is given. Such consent may either be in written or electronic form. The former being the most common but debates may arise upon the electronic form of consent. Clearly, the use of such form is not the most safe as there are still issues as to the security surrounding the use of electronic correspondences and the likes. Furthermore, one cannot be certain for sure that the person giving the so-called consent by way of electronic means is the same person with the right giving such consent. The implementing rules and regulations on such provision must be clear on this matter.

There are other provisions that discusses consent. Section 10 (a) of the law provides for the criteria for lawful processing of personal information which shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exist. Section 10 (a) pertains when data subject has given his or her express or implied consent. The implied consent is one thing that may be subject to scrutiny.

Extraterritorial Application

Section 5 discusses the Extraterritorial application of the law. With the following requisites to fulfill with before applying the law on extraterritorial matters, this maybe again subject to debates. Jurisdictional problems may arise as to the extraterritorial application of the law.

Funding

The problems on funding of the law may arise because of the constitution of The National Privacy Commission. Under Chapter II, Section 6, the National Privacy Application has given the task to administer and implement the provisions of this Act, and to monitor and ensure compliance of the country with international standards set for data protection. The said National Privacy Commission shall be attached to the Office of the President.

With the creation of another commission, we must consider the funding for which such commission was created. We must consider that the main purpose for which such bill was created is to protect the so-called “sunrise industry” that is the BPO industry. However, with the ever-widening bureaucracy creating commissions and departments here and there, one must take into consideration the funds needed in the implementation of such law. It is but true that the law covers a very wide perspective as to its implementation and the process it entails.

Conclusion

We must commend the proponents behind the passage of the Data Privacy Act of 2011. As with the ever changing landscape of technology, the safeguard of rights is but one of the most fundamental responsibility for which the government must actively work on. Even if the law is mainly directed on those who are engaged in the ICT industry, we cannot deny the fact that these are measures to imbibe a friendlier atmosphere for business and investors alike. However, it must be still be clear that the right to privacy is not one that is absolute but still has its limitations.

Post Script

At the onset of this assignment, I came to realize my personal experience with regards to the right to privacy. I worked with, arguably, the two of the largest Business Process Outsourcing (BPO) companies operating here in the Philippines and the accounts I have been assigned to handles healthcare particularly in the United States. And in the United States government has enacted the Health Insurance Portability And Accountability Act of 1996 or more known as HIPAA. We did discuss the law on our training and how US citizens are very sensitive in giving personal information like SS number, etc. And even the mere use of the word “social” is strictly prohibited.


Endnotes

[1] Section 2 and 3 of Article III of the 1986 Philippine Constitution

[2] G.R. No. 181881 Briccio “Ricky” A. Pollo v Chairperson Karina Constantino-David, et., al.

[3] Press release, Angara Calls for Data Protection, September 21, 2011

[4] Asia-Pacific Economic Cooperation (APEC) Privacy Framework

[5] Senate Bill 2965 An Act Protecting Individual Personal Information 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.


Fanning an Art: Legal or Not

Let me start this article by citing the definition of Derivative Works provided for under R.A. 8293 [1]:

Section 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 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)

Fans all over the world create their own versions of events over a literary work or draw from their own imaginations places like Narnia, the Middle Earth and Hogwarts among others. Fans also have their own versions of the characters they admire the most using the settings from the original work, posting them on social community websites for all the world to see. Spock, Harry Potter, Gandalf, Pevensie siblings, Captain Kirk — these are only some of the characters that are mostly built with fan arts and fan fictions by their mostly devoted fans all over the globe. But the question we have to deal now is: Are these so-called “fan art” legal? and if so, to what extent are they?

As of this writing, there are no jurisprudence on the matter. Our Copyright Law is also silent on the matter. But our law provides the definition of Derivative Works as mentioned above. And most fan arts would, in every sense construing liberally, fall within the definition under the derivative works provision. However, there is a sense of danger in leaving the argument at that. Derivative Works has in it a limitation defined under the “fair use” concept. Section 185 of the Copyright Law states:

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. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(b) The nature of the copyrighted work;

(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(d) The effect of the use upon the potential market for or value of the copyrighted work.

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.

The question now is, do we consider the creation of fan art under the fair use doctrine?

The answer is NO. Clearly, Section 185 enumerates that there is no infringement of copyrighted on the following instances:

  1. Criticism
  2. Comment
  3. News reporting
  4. Teaching including multiple copies for classroom use, scholarship, research, and similar purposes
  5. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use

Now, if we construe this instances strictly, nowhere in the enumeration can we relate the creation of fan art and fan fictions. There’s not even a single instance close to the situation regarding these so-called fan arts. The idea is that there is no fair use in the creation of fan arts. The law is pretty much silent on the matter. Even if we consider them as derivative works, there is no safeguard as to the extent the fans have in creating and even destroying the original works they based their creations on.

Furthermore, Section 177 of the Copyright Law of the Philippines, particularly subsection 177.2 states that:

Section 177. Copyright or Economic Rights. – Subject to the provisions of Chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:

177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;

.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a)

Based on this provision, copyright owners need not worry as to any distortions fans may inflict upon their original works because the copyright owner has the exclusive right to carry out, authorize or prevent the translation, adaptation, abridgment, arrangement and other transformations of the work.

Now, let us take the argument to another angle. If we consider fan art illegal, aren’t we stepping on the rights of the fans on their right to freely express themselves under the Right of Freedom of Expression?

We may not truly answer whether fan art is legal or not. The law is silent on the matter. Jurisprudence may have yet to come. But right now, what we have is a law that protects original works from people who might use and abuse the same. Anyone may transform and use them as their own work provided it is under the fair use provision. What we should balance out is the exercise of freedom of expression to the extent that we do not step on another person’s right. There is no one superior upon the other, no right exercised better than the other. What we need to create is a codified means of exercising “fan arting” without infringing the copyright owner’s rights.


Endnotes

[1] Republic Act No. 8293. An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for its Powers and Functions, and for Other Purposes


Sharing is caring? Not this time…

INTRODUCTION

When one hears or sees the word pirate, it automatically comes to mind a beard-laden old man with an eye patch, a pirate hat, a squeaky wooden leg on whatever side and a parrot perched upon his shoulder.

That is what a pirate usually look like, however, these kinds of pirates are those engaged in piracy mostly perpetrated in the high-seas but we know for a fact that piracy may take some other form, say copyright infringement.

COPYRIGHT INFRINGEMENT

There is copyright infringement when, “As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.” [1]

But with the fast-paced technology we have today, we cannot monitor every person in the world to know whether or not they are infringing the rights of a copyright owner. That would be too wide scale and probably administratively unfeasible. So the question now is how would the protection of copyright owners be performed in such a manner as to defeat its broadness and un-feasibility.

US TAKES ACTION THROUGH STOP ONLINE PIRACY ACT (SOPA) and PROTECT INTELLECTUAL PROPERTY ACT (PIPA)

What is SOPA and PIPA? Here is the rundown of the said legislative acts:

“The legislation would allow copyright holders and the Justice Department to seek court orders against websites associated with copyright infringement. SOPA, the House version, applies to both domestic and foreign websites, while PIPA targets foreign websites. If that court order is granted, the entire website would be taken down. Internet users who typed in the site’s URL address would receive an error message, and for all appearances, the site would never have existed. Importantly, the court does not need to hear a defense from the actual website before issuing its ruling. The entire website can be condemned without a trial or even a traditional court hearing.” [2]

Both legislative acts is said to protect copyright owners and their rights based on such copyright. But honestly speaking, I think the main purpose of the said bills is not the protection but rather economic in purpose. Politico.com writer Mark Zappler and Kim Hart cites:

“According to the U.S. Chamber of Commerce, so-called “rogue” sites draw hundreds of millions of clicks a year — at a huge toll to the American economy. The business lobby cites research by brand protection firm MarkMonitor estimating that illegal sites cost legitimate businesses more than $130 billion in revenue annually.” [3]

You can virtually see the damage online piracy does to the world economy as a whole. However, the main issue arising out of these bills based from my readings is the vague language on the said bills which can automatically shutdown websites with the posting of copyrighted material on it where such website posted the said materials in good faith. In a sense, we always go back to the concept of fair use. Furthermore, online writers agree on the matter that these bills may pose a huge threat to the thriving social media community as the bill intends to shutdown the entire website if they think there is infringement on their copyright. There is an indirect enroachment of one’s right to express themselves because the shutdown of a site will affect everyone even those who did not participate the the infringing of another’s copyright.

Furthermore, one the main targets of these bills are foreign websites that offers such copyrighted material for no price at all. Illegal downloading of movies and music has hit the movie and music industry big time. Reaching out to these foreign websites is a very sensitive matter and the advantages of these bills is yet to be seen.

SIMILAR ACTIONS ACROSS THE WORLD

Actions across the world against online piracy has been in the drumbeat for quite some time now. In the United Kingdom, The Digital Economy Bill of 2010 has been passed and is now being implemented. According to BBC,

“… the aspect that has received the most attention is measures designed to curb illegal file-sharing.” [4]

Furthermore, the bill’s main objective is again to protect copyright owners and as the law would put it, protect UK’s creative industries. And another issue surfacing again is the lost of revenues from the said industries brought about by illegal download and sharing.

On the other hand , France’s HADOPI has been in implementation since 2009 after a very much controversial and much fought passage. Internet articles strongly criticizes the law for being ridiculous. One article suggest that by implementing the three-strike rule and disconnecting a family’s internet connection because they downloaded illegal music would be a violation of right of the other users in the family. [5]

These are only examples of laws that directly points out to illegal downloads and other forms of online piracy. However, in a concerted effort to totally eradicate online piracy, countries across the world have developed the Anti-Counterfeiting Trade Agreement or more widely known as ACTA.

ANTI-COUNTERFEITING TRADE AGREEMENT (ACTA) AND THE PHILIPPINES

The agreement’s main objective is to enhance the protection of intellectual property rights and streamline online enforcement mechanisms in the intellectual property arena. [6]

As of this writing, there has nine signatories to the said agreement plus European Union with the signature of its 22 members. [7] However, the said agreement has been met with criticisms all over the world particularly on the issue that it will violate a person’s right of expression citing that such agreement would create a culture of surveillance and suspicion. [8] Furthermore, other provisions met with criticisms within the ACTA is the removal of legal safeguards in protecting ISPs from liability for the actions of their subscribers. [9]

My opinion on the matter is that, there would be no violation on one’s civil rights particularly right to freedom of expression as long as it would only focus on its mandate to establish the protection of intellectual property rights. We are so engrossed in exercising our civil rights that we always forget that we have the responsible in exercising such.

Say for example that the Philippines did ratify ACTA, what will happen now? Yes it may stop rampant piracy that our country is experiencing now. It may stop such but not totally eradicate the same. And yes, the Constitution guarantees and safeguards the right to express and the right to privacy but we always have to go back to the notion that exercising these rights also entails the responsible exercise of these rights subject to certain limitations.

It is just a simple reflection of our online lives and what we do while we are on the internet. We do not have to go through the technicalities of multi-lateral agreements, municipal laws and others. Just simply ask yourself, “do you download copyrighted materials illegally?” If you’re answer is in the affirmative, then you are doing something wrong. And you are violating another person’s rights on their creative works. I don’t see any violation of a person’s civil rights on that.

CONCLUSION

We cannot deny for a fact that piracy has been widespread in our country. Bangketas everywhere are selling pirated copies of everything. More so, some movies are not yet even shown in our local cinemas but copies of the same are rampant.

Do we blame the government for its inaction on these kinds of infringement?

Do we put the blame on the distributors and sellers of these pirated products?

Do we point the fault to the consumers themselves who patronize these products?

These are only some of the questions we have to answer. Clearly, we cannot answer them now. But what is clear is that the protection of copyright infringement is not one way or two way but rather a disciplined and concerted effort to eradicate piracy that is leeching our economy, our country and across the world today.

We cannot disregard the fact that part of this concerted effort to stop online piracy is the capitalist notion. Yes, illegal downloads are illegal even if no law defines it. We know for a fact we are violating another person’s right by downloading their copyrighted material. But we have to understand the outrage we may feel if the same thing happens to us.

Gone are the days that this online piracy is yet to appear. Remember the times when cassette tapes and radios rule the airwaves. No online piracy around. Persons running around carrying their walkmans. We are to blame here. The rampant online piracy is the product of humanity’s strive for innovation and technology. And we reap what we sow.

POST SCRIPT

At the time of posting of this article, I have reported to RIAA three download links on Christina Aguilera’s new song. I am a big fan of the said artist and because of what happened during the release of her previous album, fans like me are now aware of the effects illegal downloading has on a person’s career discounted the fact that the recording company she is signed in lost millions of dollars in revenue because of the leakage of the said album.


Endnotes

[1] Definitions, U.S. Copyright Office

[2] Johnson, Luke. What Is SOPA? Anti-Piracy Bill Explained. The Huffington Post. 19 January 2012.

[3] Zappler, Mike and Hart, Kim. What is SOPA? Politico.com. 17 January 2012.

[4] Q&A: The Digital Economy Bill. BBC Co UK. 9 April 2010.

[5] Solon, Olivia. Berners-Lee: HADOPI law is ‘so out of whack it’s ridiculous. 19 April 2012.

[6] Anti-Counterfeiting Trade Agreement (ACTA)

[7] Ibid.

[8] Speak out against ACTA

[9] Shaw, Aaron. The Problem with the Anti-Counterfeiting Trade Agreement (and what to do about it). April 2008.

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2 comments
  1. bertmanalang said:

    Yes, illegal downloads are definitely illegal, even if no law defines it. In converse, downloads which are not illegal are legal. Thus, not all downloads are illegal.
    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. . .” (Underlinings mine)

    ‘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. . .” (Underlinings mine)

    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).

    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.” (Underlinings mine)

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