[Mirror] Pante, Dexter

SY 2012-2013, First Semester


Comments on Data Privacy Bill

The Data Privacy Act is worth-supporting because of the safety measures it propose to protect safety information of individuals however it has a lot of loopholes that can be further refined.

An analysis of the definition of personal sensitive information, consent of the data subject and the implication to the freedom of the press would reveal that there is still too much to be desired from this bill.

According to the Bill, sensitive information refers to “personal information (1) about an individual race, ethnic origin, color and religious, philosophical or political affiliations; (2) about an individual’s health, genetic or sexual life of a person, or to any judicial proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings; (3) issued by Philippine government agencies peculiar to an individual which includes, but not limited to, Social Security numbers, previous or current health records, licenses or its denials, suspension or revocation, and tax returns; and (4) specifically established by an executive order or an act of Congress to be kept classified.” It can be gleaned from this definition that it is very limited. It only focuses on personal characteristics in defining an individual such as race and gender, however there is another type of data which is not covered by this definition which could easily be used to identify a person such as behavior. If this is not covered, the implication would be enormous. Data processing centers could abuse data on behaviors of individuals and use it for illegal purposes. For example, we know for a fact that certain search engines like goggle aside from collecting personal sensitive information, they also collect data on the type of websites being visited by a certain individual. When collected over a prolonged period of time, the data could be used to identify individuals even without divulging the personal sensitive information.

Another weakness of this bill is that it approaches the consent of the data subject in a very individualistic manner. It defines consent of the data subject as “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.” However, Section 35 of the Indigenous Peoples Rights Act (IPRA) provides that “access to biological and genetic resources and to indigenous knowledge related to the conservation, utilization and enhancement of these resources, shall be allowed within ancestral lands and domains of the ICCs/IPs only with a free and prior informed consent of such communities, obtained in accordance with customary laws of the concerned community.’’ Thus, this means that consent can be collective as well. In order to protect the genetics of indigenous people from being exploited by multinational companies, there is a need to also include collective consent in the provision of the said bill.

Finally, the bill has a provision that provides prior restraints and penalties for the exercise of press freedom. Section 31 of the Bill says that “the penalty of imprisonment ranging from two (2) years and four (4) months to five (5) years and a fine not less than five hundred thousand pesos (Php 500,000.00) but not more than two million pesos (2,000,000,000.00) shall be imposed in case of a breach of confidentiality where such breach has resulted in the information being published or reported by media. In this case, the responsible reporter, writer, president, publisher, manager and editor-in-chief shall be liable under this Act. ” The prior restraint here is that it would be practically impossible for media people to secure the consent of the data subject for matters that does not pose a clear and present danger to the interest of the public. For instance, in reporting a vehicular accident where the data subject is unconscious, should the media person wait for the data subject to be conscious and get his/her consent prior to reporting of the incident? This would be very impractical and cumbersome in the exercise of the freedom of the press. According to Isagani Cruz, freedom of speech includes freedom after speech. It can not be unnecessarily curtailed without clear showing of the dangers it might pose, but in this section it provides penalties for the exercise of this right.


Legal Issues on Fan Art

Aside from being regarded as text capital of the world, our young population is also increasingly hooked up with the internet due to availability of affordable smartphones and internet servces offered by telecommunications company. In fact, our internet penetration rate is one of the highest in the world. The Philippines ranked 17th of the Top 20 Internet Countries in the 2nd Quarter of 2012 with 3 in 10 of the population are considered netizens. [1]

Among internet sites Filipinos often visit are social networking sites like Facebooks, Twitter, MySpace, Yahoo Groups and Forums, where they often exchange opinions and ideas with other internet users. One phenomenon that is a progeny of these social networking sites is the Fan Art or Fan Fiction which is becoming very popular in the media, arts and comics.

This essay aims to explore legal issues on fan art or fan fiction in the Philippines particularly with reference to the laws on copyright and trademark with the hope of enlightening the reader on intellectual property laws as well as their limitations.

As a preliminary, it is important to state at the onset that this discussion limits itself on legal aspect of fan art in the Philippines. For this purpose, fan art is to be understood synonymously with fan fiction. However, since fan art is not exclusive to the Phiilippines, we will adopt a definition from online resources.

Wikipedia defines FanArt 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 a nutshell one could say that FanArt is artwork created by a fan of something.” [2]

So what do we mean when we say fan art is legal in the Philippines? Basically, we are referring to two issues, namely whether the fan art could be copyrighted and can be registered as trademark.

Let us first discuss issues on copyright.

Under RA 8293 otherwise known as Intellectual Property Code, there are two types of works: original and derivative. Original works are those literary and artistic works are those original intellectual creations in the literary and artistic domain protected from the moment of creation.

Derivative works, on the other hand, are those (1) dramatizations, translations, adaptations, abridgments, and other alterations of literary or artistic work, and (2) collections of literary, scholarly, or artistis works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.

Under our law, derivative works are protected as new works. Based on this provision, Fan Art are not original works. But could they be derivative works and hence entitled with protection as well?

According to Fr. Aquinio in his book “Intellectual Property Law”, the right to adapt, abridge, alter and transform one’s work is exclusive right of the original author, hence, a derivative work without author’s consent and authority is an infringement. [3] By this reasoning, it would be next to impossible for a fan art to be a derivative work since the fan still has to secure consent or authority from the original author which is rarely given.

But is there something in our law that puts limitation on copyright? Section 184 of RA 8293 enumerates those acts which does not constitute copyright infringement and Section 185 also defines the extent of fair use of copyrighted work. Fair use has been defined as use for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright.

The problem with these provisions is that no where do they mention the transformation of the original work for non-commercial purposes as a limitation. They merely exempt from copyright infringement the public performance, use, reproduction, communication to the public, of a work when it is for either educational, religious, private and non-commercial use. However, in order to avail of these, the work must first be copyrightable either as original work or derivative work. But then again, almost all derivative works are without the authority of the original author.

See the fallacy in this reasoning? I remember this kind of circuitious reasoning has a formal name, that is Petitio Principii or Begging the Question.

One suggestion would be to exempt fan art from copyright infringement by adopting a more liberal definition of fair use which would contemplate inclusion on adaptation or transformation of an original work even without authority from the author provided it is for private consumption or if it promotes the work without pecuniary benefit on the part of the fan or if it does not violate the moral rights of the author.

Now, let’s discuss fan art in relation to trademark.

According to RA 8293, a mark is any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods.

According to Fr. Aquino, the Philippine Law provides for two ways by which trademarks or service marks are created, namely by use and registration. [4]

So the question is, can an art created by a fan based on an existing mark can acquire a status of a valid trademark in the Philippines?

In answer to this it is very worthwhile to note how RA 8293 defines trademark infringement. Under Section 155, trademark infringement includes the following:

  1. Use in commerce any reproduction, counterfeit, or colorable imitation of registered mark or of the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising any goods or services.
  2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.

Common element in these provision on infringement is the element of putting the mark available for commerce.

This means that when a fan art is created only for personal and private use of the fan without gaining economic benefits from it, then it could not be considered as trademark infringement.

What if the mark from which the fan art is based is not registered in the Philippines? Still, it might be considered as infringement because the mark might be internationally known and therefore protected.


Endnotes

[1] http://www.internetworldstats.com/top20.htm

[2] http://wiki.xbmc.org/index.php?title=FanArt#What_is_FanArt.3F

[3] Aquino. Intellectual Property Law. Phoenix Press, 2006, page 57.

[4] Aquino. Intellectual Property Law. Phoenix Press, 2006, page 142.


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