[Mirror] Ongson, Cherry Amor

SY 2012-2013, First Semester

Data Privacy Act of 2011

Section 4 of the act states that, it applies to the processing of all types of personal information and to any person whether natural or juridical involved in personal information processing including those personal information controllers who are not established in the Philippines, however, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines.

The act also enumerates the transactions where it is NOT applicable, such as governmental transactions, personal information processed journalistic, artistic literary or research purposes,personal information originally collected from residents of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines-outside its scope.

Thus, it is clear that foreign personal information is outside the scope of data protection granted under the Act- such that the it gives the respective foreign outsourcing companies the comfort of being protected by their own data protection law, if their country has one, but if none? then…they could not resort to neither the Philippine data protection nor the data protection of their own country.

The applicability of the Act-only towards Philippines data subject and to entities having a linkage with Philippines, seems to leave the outsourcing industry expose to the danger which may affect its data.

Fan art

Fan art is artwork that is based on a character, costume, collage, item, or story that was created by someone other than the artist. It is 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.

Derivative Works as provided for under 173.1 of the Intellectual Property Code

The following derivative works shall also be protected by copyright:

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

What is protected by the Copyright is the moral right of the artist on the expression of his idea. Thus, by allowing alteration as an artistic representation of the other person’s idea, introduced to the original idea of the author, there is a violation of the moral right of the creator or the author. If a person wants to express his idea there is no issue there, but as long as it is his original creation.

To Download or Not to Download ?

“Copyright” -right over literary and artistic works which are original intellectual creations in the literary and artistic domain protected from the moment of creation (Kho vs. Court of Appeals, G.R. No. 115758, March 11,2002).

What then is an Intellectual Creation?

It is one of the modes of acquiring ownership under the Civil Code.

Intellectual Creation

Article 721. By intellectual creation, the following persons acquire ownership:

(1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work;

(2) The composer; as to his musical composition;

(3) The painter, sculptor, or other artist, with respect to the product of his art;

(4) The scientist or technologist or any other person with regard to his discovery or invention.

The rights over copyrights are conferred from the moment of creation (Sec 172.1, Intellectual Property Code). The work is deemed created if something original is expressed in a fixed manner.

What is Downloading?

It is the act of copying data (usually an entire file) from a main source to a peripheral device. The term is often used to describe the process of copying a file from an online service or bulletin board service (BBS) to one’s own computer. Downloading can also refer to copying a file from a network file server to a computer on the network (WEBOPEDIA-Definition)

By the definition as provided for above, the act of downloading of a particular work of someone would technically constitute infringement. Infringement is made when there is a piracy or substantial reproduction. If so much is taken that the value of the original work is substantially diminished or the labors of the original author are substantially and to an injurious extent appropriated by another (Habana vs. Robles, G.R. No. 131522, July 19, 1999).

However, under Section 185 of RA 8293, the Intellectual Property Code:

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.

Thus, even if a work has been downloaded but if the purpose of which would constitute fair use, then it would not be considered infringement.

In the Philippines House Bill No. 6187 was introduced by HON. IRWIN C. TIENG and HON. MARIANO MICHAEL M. VELARDE. The act is known as Anti-Online Piracy Act of 2011. The salient provision of the act is as follows:

SECTION 3. Prohibited Acts.

It is hereby prohibited and declared unlawful for any person:

a) To make in a manner not authorized by the copyright owner, copies of music recordings or films, in complete or substantially complete form, by any means, including but not limited to uploading, downloading, or streaming.

b) To offer goods or services, or provides access in a manner not authorized by the copyright owner, copies of music recordings or films, in complete or substantially complete form, by any means, including by means of download, streaming, provision of a link or aggregated links to other sites.

If House Bill No. 6187 Anti-Online Piracy Act of 2011 would be passed into law, then the act downloading would now be considered as a prohibited and declared unlawful and subject to particular penalty and sanction accorded by in the particular law.

The 1987 Constitution provides under, Section 24 of the State Policies. The State recognizes the vital role of communication and information in nation-building.

Also, under Section 2, Declaration of State Policy of the Intellectual Property Code of the Philippines:

The State recognizes that an effective intellectual and industrial 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, inventors, 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.

Perusal of the provision of the 1987 Constitution and the declaration of the state policy of the Intellectual Property Code of the Philippines, as stated above would prove that it is the avowed principle of the state to facilitate transfer of technology and the state recognizes the vital role of communication and information in nation-building. There are salient provisions also under the Intellectual Property Code of the Philippines qualifying what would constitute infringement or not, depending on the particular purpose of obtaining the particular work of a person (Section 185 of RA 8293, The Intellectual Property Code).

In summary, if the House Bill No. 6187 Anti-Online Piracy Act of 2011 would be enacted into law, this would counter the provision of the constitution, pertaining to freedom of communication and information. The constitution being the highest law of our land, nugatory provision counter to it should be considered unavailing.

1 comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: