[Mirror] Oftana, Janette

SY 2012-2013, First Semester


DATA PRIVACY ACT OF 2012: THE LAW TO BOOST BPO AND INFORMATION TECHNOLOGY-RELATED BUSINESSES IN THE PHILIPPINES

Introduction and Overview

Data Privacy Act is one of the newest Bills being passed by the Congress and the Senate to respond the need for protection of everyone’s right in terms of privacy and communication. More often than not, today hacking and malware is a trend, but in our country where BPO has an active participation in economy, it cannot be promoted, nor encouraged. There must be certain right rules and regulations which are essential to suppress these mishaps. Consequently, the framers of this Act believe that ICT related bills will strengthen the country’s position as a prime destination for IT investments, noting that the country has experienced an exodus of skilled workers and professionals in the field due to a lack of lucrative careers in the country.

Section 2, Chapter 1 of the said Act defines the Declaration of Policy, whereby it provides that:

“It is the policy of the State to protect the fundamental human right of privacy communication. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.”

Therefore, it is essential to pass measures that are timely which and those which adhere to international standards, at the same time, keeping up with the rapid changes in ICT sector. The bill further seeks to establish fair practices and regulation relating to the collection, use and protection of an individual’s private information and communications system; to contribute to the promotion and development of electronic commerce in the Philippines and to enhance the competitiveness of the Philippines in the international economy as a hub for business process outsourcing; and to protect the consumers and promote its trust and user confidence in electronic commerce through the issuance of clear, transparent, predictable and enforceable rules to clarify and ensure the protection of personal data information and communications systems.

The Mission of The National Privacy Commission

The National Privacy Commission is created by virtue of this Act to ensure that data manipulation is taken care of, particularly in both private and public sector. It is sanctioned to administer and implement the provisions of the Act, and to monitor and ensure the compliance of the country with international standards set for data protection, there is hereby created an independent body to be known as the National Privacy Commission to act as a collegial body. For this purpose, the Commission may be given access to personal information subject of any complaint to collect the information necessary to perform its functions under the Act.

What are the Rights of the Data Subject?

The data subject is entitled to the following:

  1. be informed whether personal information pertaining to him or her shall be, are being or have been processed;
  2. be furnished of the information indicated into the processing system of the personal information controller;
  3. access to the contents and sources from which personal information were processed;
  4. dispute the inaccuracy or error in the personal information and have the personal information controller correct it immediately;
  5. suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controllers filing system upon discovery and substantial proof;
  6. be indemnified of damages sustained due to incorrect and unauthorized use.

Is the Act beneficial to everyone?

Yes. Taking into account that the Philippines’ IT-BPO industry which is has a big role as a generator of both direct and indirect jobs is evolving rapidly with the result that an increasing amount of the work undertaken in the Philippines involves non-voice, complex services in a wide range of functional areas and industry verticals. Much of this work involves confidential personal and company information, and client firms of our IT-BPOs want to know that the Philippines provides international standards of protection to safeguard their information. In fact, there are many service buyers who are looking forward to outsource healthcare information management related jobs to the offshore which has direct access to the key information and details of any customer. Implementation of the Data privacy act will make such clients to be more confident to disclose the personal details.

Likewise, the act will increase confidence among international investors and companies that outsource business processes to the Philippines, adding the Data Privacy Act brings the Philippines to international standards of privacy protection. The same are based on standards set by the European Parliament and is aligned with the Asia Pacific Economic Cooperation (APEC) Information Privacy Framework, is intended to protect the integrity and confidentiality of personal data.

Conclusion

Indeed, this Act seems to bring in a new era bringing a very important role in the present Philippine economy– the BPO industry. The heavy penalty as provided under Sections 22 to 34 of the Data Privacy Act gives justice to the purpose of the framers of the law, which is to protect and ensure implementation of the Act. This is the long overdue answer to the need of BPO and IT industry.


Fan Art/Story: Is it legal in the Philippines?

Fan Art Defined

Wikipedia defined Fan Art as 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. 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. 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 fan art 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.

Fan Art, which can be singular or plural, refer to graphic representations of various media forms that have numerous fans. Many types of fanart exist, and they are similar to fanlit. In fanlit, people write stories, plays, or screenplays about characters or worlds that have already been created. As the name fan suggests, those who are significant fans of a certain character, show, fictional world or the like usually produce this work. With fanart, instead of writing, artists usually paint, draw, or use other graphic forms to copy, represent, explore or extend the life of a created character or world.

There are many examples of fan art, and these may start when kids are little and want to draw their favorite cartoon character. Those gifted in art may learn exactly how to draw or recreate something beloved from a comic book, TV show, video game or movie. One common area of fanart is reproductions of art based on Japanese manga and on anime. People may use a combination of drawing and writing to create further adventures of a comic book character.

In addition to art inspired by manga or anime of Japan, very popular books and movies tend to be the inspiration for tons of fanart. For instance, the Harry Potter series, Tolkien’s work, the Star Wars series and others can stir up the souls of artists so that they create numerous representations of the characters or world. There are many online sites that feature fanart museums or galleries. Those who complete a piece of art may submit it to these sites for possible inclusion. Usually the only reward is sharing love of a particular fictional thing with others.

Most times, art inspired by created works is not sold. There is generally a distinction between a person who is licensed to create new stories about a favorite character or world, and those who simply do so because they love the characters or world. Usually new people hired to extend the creations of someone else are fans, and have a unique vision of how to proceed. As long as unlicensed fanart isn’t sold, artists usually don’t have to worry about violating copyright laws. This issue can get sticky when people do charge for their artistic works.

Artists who receive licensing or who are contracted to create new art may become inspirational to fan artists too. The work of Alan Lee, which is featured in Peter Jackson’s filmed version of The Lord of the Rings, for instance, is now captured in illustrated copies of Tolkien’s work. There are fan artists who copy Lee’s style or appear to be influenced greatly by it.

Fan Art Has its Own Story: Evolution

Previously, a fan artist was anyone who drew for a genre because they were a fan of the genre rather than a professional employed to create art for the genre. In the earlier years artists like Wendy (Fletcher) Pini, who produced amateur original fantasy art for fanzines, would be deemed a “fan artist” because she produced art for genre she was fan of. While an fan artist could make fan art for any genre, generally the most common were the science fiction and fantasy genres.

However, in modern usage, the word “fan art” means any amateur art for a specific TV show, movie, book, or other media event not owned or created by the artist. Original genre art is generally no longer considered “fan art.”

Technically, the term “fan art” encompasses art in every medium just as the word “art” does, including but not limited to drawing, painting, sculpture, photography, photo manipulation, videos, crafts, textiles, metal smithing, and fashion. Within these broad media types, fanart has also created types of art almost specific to itself, such as icons. Colloquially, fan art most commonly refers to the art for a series that is drawn or painted either traditionally or digitally. However, colloquial use can also be dependent on the fandom. For example, in a fandom where photo manipulation is the dominant form of art, “fan art” for the fandom often implies “photo manipulation” not traditional art.

Does a Fan Art violate Copyright?

The ability to create fan art is vital to comic artists both as a means of practicing to improve skill, but also to make money at conventions by drawing commissions for fans. When a particular art is copyrighted, which means that only the author/rights holder has the right to copy, display, distribute, and create derivative works. Fan art can be considered a derivative work, therefore most fan art is an infringement of the holder’s copyright.

BUT, copyright law has a doctrine called “fair use” that (in the name of free speech) protects certain uses that would otherwise be an infringement. To find protection in fair use, a second work must be an artistically transformative use of the first, not have a great economic impact on the first, and not take too much of the first. A good piece of fan art is very transformative, giving us a new vision of a familiar character, so that factor could benefit the artist. The amount taken would probably not favor the artist, because one of the considerations is if the “core” elements are copied, which most fan art does.

The practice is common, but is it legal? The short answer is a qualified maybe, which is about as good as you can get from a lawyer without specific facts. I think most artists are safe, but each situation will be different, depending on distinct situations, looking the facts of the actual work.

Does it violate trademark?

Protection in the trademark realm covers the right to claim you are the rightful source of a good. Trademarks are violated when a second party markets goods in such a way that the consuming public could believe they are buying from the first party. Trademarks usually protect words or phrases and company logos, but can also extend to packaging (called trade dress). Fan art should not ordinarily violate trademark if the artist makes no claim to be associated with the trademark holder and is not marketing his or her own version of it.

Suggestions to artists who want to draw original works based on others creations.

  1. The more original your work is, the more protected you are. Be creative, that’s why you draw, anyway.
  2. Be wary of mass production. The bigger you get, the bigger the target on you.
  3. Don’t use the logo or trademarked name. People want the drawing, not the name, so don’t risk it.

What does the Law say?

According to copyright law, copyright holders have the sole right to distribute derivative works based on an original creation. This includes sequels and any other work that includes copyrightable elements from the original creation. If you are an author or an artist and you want to use all or part of someone else’s creation in your work, you may run into problems with claims that your art is a derivative work.

Conclusion

Fan fiction and fan art are, usually, an infringement of the right of the copyright holder to prepare and license derivative works based on the original. This is almost without exception. However, many copyright holders, for good reasons, tolerate fan art and even encourage it, but this should not be taken as carte blanche to do what you want with the source material. There are many lines that a fan artist can cross and wind up in legal trouble. The best thing is to study the rules for your community and obey them closely. That is safe to remember that your creations only exist through the good graces of the copyright holder and they can change their mind at any point. If you’re not comfortable with that, then you’re better off creating your own, wholly original work. Not only do you not have the threat of being shut down hanging over you, but you also have the right to exploit the works however you see fit.


References

[1] http://wiki.xbmc.org/index.php?title=FanArt XBMC FanArt definition

[2] http://www.wisegeek.com/what-is-fanart.htm What is Fanart? – WiseGEEK

[3] http://thetvdb.com/wiki/index.php/Fan_Art thetvdb.com Fan Art definition

[4] http://www.afterellen.com/internet/2009/2/lesbian-fan-art Fan Art Empowers Queer Women

[5] http://fanart.tv/rules/ Fanart.tv Rules


WHETHER SUCH ACT OF DOWNLOADING IS INFRINGEMENT OR NOT, SHOULD SIMILAR LAWS TO THE US PROPOSED LEGISLATION “SOPA/PIPA, “UK’s DIGITAL ECONOMY ACT 2010,” FRANCE’s “HAPODI LAW,” AND NEW ZEALAND’s “THREE STRIKES”RULE.

Introduction

Sometime in August 2012, when Senator Vicente Sotto delivered his speech opposing the Reproductive Health (RH) Bill, the issue on online piracy, plagiarism and copyright infringement had been again on its peak, when it was alleged by the groups pushing the passage of the said bill that Sotto copied entirely and almost verbatim from an article of a US blogger Sarah without attribution, except for the expert opinion that Sarah also used as a source.

With the easy access of the articles available online, fear among the bloggers, writers online for an unauthorized use of their work has become their individual concerns. In fact, a lot of propositions have been circulating for the passage of a bill protecting works online.

Copyright law provides an incentive to create software, music, literature and other works by ensuring that the creator will be able to reap the financial benefits of the work.

In the Philippines, “Piracy” is slang for copyright infringement, it is usually used to describe the unlawful copying of software, videogames, movies or MP3s. Copyright law gives a creator of software, music, literature and other works a limited monopoly to reproduce or distribute in the created work. If a person is accused of piracy, then someone is claiming that he/she has violated their copyright by copying part or all of their work without authorization, or have enabled other people to produce such copies.

IS THE ACT OF DOWNLOADING COPYRIGHTED WORKS, SHARED BY OTHERS WHO ARE NOT COPYRIGHT OWNERS OF SUCH WORKS, AN ACT OF COPYRIGHT INFRINGEMENT ON THE PART OF DOWNLOADER?

Copyright gives the owner exclusive rights to reproduce, adapt, publicly distribute, perform and display their work. Nonetheless, the law allows “fair use” of copyrighted material. Fair use permits, in certain circumstances, the use or copying of all or a portion of a copyrighted work without the permission of the owner.

Original expressions of ideas are copyrighted for a certain period of time (generally the lifetime of the author, and for 50 years after his death). Copyrighted materials are everywhere around you: songs, movies, TV shows, photographs, magazines, books, software, plays and Web sites are just a few things that are subject to copyright protection.

The copyright of a work gives the holder a limited monopoly on reproduction, distribution, and display of that work. When you buy or are given a copyrighted work, you get limited use of it, but not the right to distribute it. The material fact that a downloader may be avoided from copyright infringement is that, he must only use it for personal use. A very simple example is when a person downloads for his personal use (for the purpose of watching the very controversial movie “The Mistress”. He is not liable for copyright infringement when he only use it for his own personal use. However, it would be a different story now when that person makes the reproduction of the movie for profit. In that case, he becomes liable for copyright infringement. Hence, in my opinion, if a copyrighted work has been shared by others who are not copyright owners of such work, it does not simply constitute copyright infringement on the part of downloader. The element of purpose is necessary.

WHETHER SUCH ACT OF DOWNLOADING IS INFRINGEMENT OR NOT, SHOULD SIMILAR LAWS TO THE US PROPOSED LEGISLATION “SOPA/PIPA, “UK’s DIGITAL ECONOMY ACT 2010,” FRANCE’s “HAPODI LAW,” AND NEW ZEALAND’s “THREE STRIKES”RULE.

SOPA/PIPA and other similar laws are pieces of legislation whereby purpose of these bills is to make it harder for sites — especially those located outside the United States, for example, to sell or distribute pirated copyrighted material such as movies and music as well as physical goods.

Now, copyright law provides incentives for creating. One of the incentives for creating software, music, literature and other works is being able to reap the financial benefits as the creator. Illegitimate distribution of copies may prevent the copyright holder from benefiting from the sale of legitimate copies of the product. The theory is that significantly fewer people would buy copies from the copyright holder if other copies were available cheaper or for free. When the act of piracy is supported with a law on copyright, the act mere act of downloading would in effect constitute infringement.

SHOULD THE PHILIPPINE GOVERNMENT ENTER AND RATIFY “ACTA” TREATY TO REMEDY ONLINE PIRACY? WILL SUCH LEGISLATION BE VIOLATIVE OF CONSTITUTIONAL RIGHTS ON FREE EXPRESSION AND PRIVACY?

No. ACTA is not essentially a remedy for online piracy.

I think, the Philippines would opt to enter with this treaty when the proper laws and procedure for the same are laid in its finality. Eventually, by entering and ratifying this act, the Philippines is bound to observe the treaty by which it is a signatory. Hence, it would only make the Filipino online users vulnerable to criminal offense because a country which for one, is a signatory has the right to enforce its copyright rules under its local laws among participating nations. However, since freedom of expression and privacy are rights which are not always absolute, I for one, could not say that entering such treaty would outrightly be violative to the abovementioned rights. Since the threat of infringement is always present where web innovations are sprouting rapidly, it is essential for all users of the Internet and to copyright owners to remain vigilant in the face of future threats, and vice versa.

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