[Mirror] Obieta, Anna Marie

SY 2012-2013, First Semester


Data Privacy Act of 2011

Senate Bill 2965 or the Data Privacy Act of 2011, aims to strengthen the protection of personal data in information and communications systems in both government and private sectors. It is the policy of the State to protect the fundamental human right of privacy of communication. The State recognizes the vital role of information and communications technology in nation building and its inherent obligation that personal information in information and communication systems in the government and in the private sector is secured and protected.

Government and private entities are mandated to protect the integrity, security and confidentiality of personal records. The bill highlights the importance of compliance with international data security standards. It seeks to lay down the basis for companies to be responsible in maintaining the confidentiality and integrity of digital data.

It also aims to safeguard internet freedom, while at the same time promote growth in the country’s information and communications technology sector, with the observance that it will adhere to rigorous international standard pertaining to privacy. The end to be achieved is to entice more businesses to invest in IT-related business processing outsourcing activities in the country.

What about the right to privacy?

“The essence of privacy is “right to be let alone”. It is expressly recognized in section 3 (1) of the Bill of Rights:

Sec. 3. (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.

Other facets of the right to privacy are protectad in various provisions of the Bill of Rights, viz:

Sec. 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 of the laws.

Sec. 2. The right of the people to be secure in their persons, houses papers, and effects against unreasonable searches and seizures of whatever nature and 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 complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

xxx xxx xxx

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health as may be provided by law.

xxx xxx xxx

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual Property Code. The Rules of Court on privileged communication likewise recognize the privacy of certain information.

The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources — governments, journalists, employers, social scientists, etc.” (Ople vs. Torres)

Thus, it’s all about the constitutional rights of a person that the act seeks to protect and to provide penalties for violations thereof.

However, this Act has been opposed by media and journalist’s organizations saying that the Data Privacy Bill is a tainted freedom of information bill. The penalty clause for “Breach of Confidentiality” is a blatant attack on press freedom and meant to restrain journalists from being responsible and truthful in reporting based on facts.

I wonder how they would reconcile the issues concerning the right to privacy and the freedom of the press to be united in such a way that both ends are served supremely.


Legality of Fan Art in the Philippines

So i’m going to blog about fan art here in the country. Let me be honest that i have not the slightest idea, but still going to do it anyway. Just kidding. I will be needing the help of the ever reliable and delivering world wide web.

Wikipedia defines Fan Art as

“Artwork that is based on a character, costume, item, or story that was created by someone other than the artist. The term, while it can apply to art done by fans of characters from books, is usually used to refer to art derived from visual media such as comics, movies or video games. Usually, it refers to artworks by amateur artists, or artists who are unpaid for their fan creations. In addition to traditional paintings and drawings, fan artists may also create web banners, avatars, or web-based animations, as well as photo collages, posters, and artistic representation of movie/show/book quotes.

Usually, it refers to fan labor artworks by amateur artists, or artists who are unpaid for their fan creations—so that, for example, professional comic adaptations of the Star Wars films would not be considered fanart while a version done by an unaffiliated fan would be. The distinctions here cannot always be finely drawn and the actual status of particular works can often fall into a gray area.”

As far as our country is concerned, I don’t think there is really much of an issue regarding violations of our Intellectual Property Code unlike in other countries.

The major possible violations are therefore copying, performance or display of existing characters and plots, creation of derivative works without the copyright holder’s consent and prohibited use of trademarks belonging to the original work. In order for a work to be protected by copyright, it must be an original creation set in a fixed medium.

Relation of fair use with fan art

The fair use doctrine says that otherwise copyrighted works may be used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. To decide whether a use is “fair use” or not, courts consider:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. Section 185 of the Intellectual Property Code provides for fair use of copyrighted material. The criteria for fair use is almost identical to the fair use doctrine in United States copyright law, with the exception that even unpublished works qualify as fair use under Philippine copyright law.

As long as the unlicensed fan art is not advertised or marketed for profits, fans or artists usually do not have to concern one’s self about violating copyright laws.

Since here in our country, fan art is considered as a form of expression of basically “fans and enthusiasts” alike and in effect gives a free publicity and can actually help boost the popularity of the creation, we can say that it is more amiable and lenient to hatch, copy, concoct, explore or procreate the life of a created character.


Freedom. Online.

The World Wide Web gives us more prolific instrumentality to explore, and platforms for interchange than we ever had access to before, such as downloading songs and movies, but we sometimes forget that ownership still exists in the virtual world. Copyright law can be dense and difficult to navigate, but it is just as important online as it is in more tangible forms. While there are plenty of ways to download free songs and videos online, the fastest and easiest way is by using file-sharing technology. It is specifically designed to make searching and downloading files easy. It’s so popular now most likely because it’s a fast and convenient way to get free works. You simply start the download and after a couple of hours you have a full-length MP3-quality audio and DVD-quality movie without leaving your home. All that is needed is a computer with an Internet connection, then you’re set. The availability of free downloads online has also gotten a lot of media attention lately.

However, this seemingly harmless act of downloading copyrighted works, shared by others who are not copyright owners of such works, is technically an act of copyright infringement on the part of the downloader under Republic Act 8293 or the Intellectual Property Code and in itself is punishable under the law. Under Section 219, where allowance is made for fair use for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use.

I think it’s best if a law similar to the US proposed legislation “SOPA/PIPA,” UK’s “Digital Economy Act 2010,” France’s “HAPODI law,” and New Zealand’s “three-strikes” rule be passed in the Philippines.

According to yugatech.com:

In hindsight, this proposal could also help online publishers and bloggers as well:

  • A blogger can now easily have another website or blog shut down for illegally copying articles, photos and videos.
  • A blogger can now claim damages against news portals illegally lifting their copyrighted videos and photos. We’ve reported on a number of similar cases where TV networks and online news sites taking content and photos from bloggers without prior consent or compensation.
  • Bloggers can report sites that scrape their RSS feeds and have local ISPs block these sites.
  • Web designers can run after 3rd parties that copy their designs, logos and artworks and implements it on their own website or sell them to others.

Having this proposal enacted into a bill will provide a lot of benefits to bloggers, website owners, independent artists and web designers.

Also, the Philippine government should enter and ratify the “ACTA” treaty to remedy online piracy. The Anti-Counterfeiting Trade Agreement (ACTA) is an international agreement with the objective that effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally; further that proliferation of counterfeit and pirated goods, as well as of services that distribute infringing material, undermines legitimate trade and sustainable development of the world economy, causes significant financial losses for right holders and for legitimate businesses, and, in some cases, provides a source of revenue for organized crime and otherwise poses risks to the public and it is their desire to combat such proliferation through enhanced international cooperation and more effective international enforcement. Moreover, to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade; to address the problem of infringement of intellectual property rights, including infringement taking place in the digital environment, in particular with respect to copyright or related rights, in a manner that balances the rights and interests of the relevant right holders, service providers, and users and alsoto promote cooperation between service providers and right holders to address relevant infringements in the digital environment.

However, there are several fundamental problems with the process and content of the ACTA as can be read at publicknowledge.org/issues/acta that raise significant concerns which includes lack of transparency, lack of democratic process, lack of public input.

The content of the treaty is deeply concerning in several ways. The treaty goes beyond its intended purpose and extends its reach beyond pure enforcement into the realm of real legal reform. Here are just a few of the problems that would have real consequences for the consumer:

  • Its language is vague and key terms, like “counterfeit” and “piracy” are never clearly defined. This lack of definitions means that there is no clear standard to differentiate between large-scale commercial infringement and ordinary, unintentional acts of infringement. Plus, by over-using and mis-using the term “counterfeit”, it puts generic drugs at risk of being considered illegal and even confiscated at borders, threatening global access to affordable medicine.
  • It would implement a regime of statutory damages that are both disproportionate to the crime and absent any balancing limitations. The Agreement proposes the use of over-zealous and disproportionate statutory damages that would prevent future domestic reform by Congress because the provisions would be tied to an international agreement. It also contains no safeguards or exceptions in cases of innocent infringement.
  • Criminal penalties for “significant willful” copyright infringements that have no “direct or indirect motivation of financial gain” may have grave implications for individual users. This is particularly concerning given that the Agreement doesn’t include any limitations on copyright and trademark enforcement, like the provision of fair use, that are an essential part of U.S. law.
  • It would permit signatory countries to search electronic devices at border controls to search for infringing material. This is an opt-out policy. The text provides for the possibility of an exception from border searches for personal baggage, but a country is not required to have this exception—it is merely permitted to have one.

The greatest concern over ACTA is that it purports to ratchet up protections for IP rights holders without even the barest measures to preserve either the balance in IP law or due process rights of citizens. Without going through any pre-existing avenues of legal change—whether domestic or international—this treaty may be considered an act of “policy laundering.” That is, the use of an international treaty to justify the passage of controversial legislation within one’s own country.

Personally, i think such legislation and treaty adherence, if pursued, will be violative of Constitutional rights on free expression and privacy.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual Property Code. The Rules of Court on privileged communication likewise recognize the privacy of certain information.

The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources — governments, journalists, employers, social scientists, etc.” (Ople vs. Torres)

Rule of thumb, provide the definite safeguards to actually implement these laws or treaties, all for the betterment and optimum exercise of every individual’s rights and privileges.

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