[Mirror] Ramos, Roman Chino

SY 2012-2013, First Semester


Continuing to March in Rhythm Without Moving Forward.

I personally oppose. The epicenter of academic fracas or otherwise should neither be concentrated on the reproductive health bill, for men are cavemen whose libidos are interminably resilient; nor the new interior and local government Czar whose personality, happy and gay, contradicts the supposed temperament of the title. Academic efforts should not be centered on the new Supreme Court Chief Justice – we, at any rate, have close to three decades to scrutinize her. Let bygones be bygones – forgive the lawmakers who had nothing to throw in, so to say, and focus on matters which bid more import.

Matters which bid more import? I say an individual’s deep-seated right to privacy. These days, rampant are identity theft, leakage and dissemination of personal information, uncalled publicity of personal lives, government intrusion of private lives, and the list goes on and on.

Despite adversities, or undertakings unfolding before your very eyes, whether favorable or otherwise but mostly disheartening, a quiet time alone is what matters most without worrying that your privacy is being intruded. Whatever you do alone so long as it does not harm anyone or encroach on anyone else’s rights, is no one’s business. PRIVACY is what we yearn for at the end of the day. It is the cornerstone of self-identity. One of the very best things in life is a good night sleep – peaceful and unbroken.

Privacy is not a grant. It is an absolute requirement, though just like any other constitutional right, it is subject to limitations by the very same constitution. It is even an understated declaration to tell someone to mind his own business. As they say, even rock stars and the bright stars of pornography are entitled to privacy.

However, disappointing as it may be but as we would have thought, there is really no particular law pertaining to privacy in the Philippines. Provisions on the protection of privacy are scattered in different existing Philippine laws, viz:

Section 2 of the 1987 Constitution reads in part: “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 xxx”.

Section 3 of the same provides: “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”.

The E-Commerce Act (R.A. 8792), section 31 provides “access to an electronic file, or an electronic signature of an electronic data message or electronic document shall only be authorized and enforced in favor of the individual or entity having a legal right to the possession or the use of plaintext, electronic signature or file or solely for the authorized purposes. The electronic key for identity or integrity shall not be made available to any person or party without the consent of the individual or entity in lawful possession of that electronic key”.

The E-Commerce Act, Section 32 provides: “xxx any person who obtained access to any electronic key, electronic data message or electronic document, book, register, correspondence, information, or other material pursuant to any powers conferred under this Act, shall not convey to or share the same with any other person”.

The Rape Victim Assistance and Protection Act of 1998 (R.A. 8505), section 5 provides: “at any stage of the investigation, prosecution and trial of a complaint for rape, the police officer, the prosecutor, the court and its officers, as well as the parties to the complaint shall recognize the right to privacy of the offended party and the accused. Towards this end, the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial and that the name and personal circumstances of the offended party and/or the accused, or any other information tending to establish their identities, and such circumstances or information on the complaint shall not be disclosed to the public”.

The Family Courts Act of 1997 (R.A. 8369), section 12, provides: “all hearings and conciliation of the child and family cases shall be treated in a manner consistent with the promotion of the child’s and the family’s dignity and worth, and shall respect their privacy at all stages of the proceedings. Records of the cases shall be dealt with utmost confidentiality and the identity of parties shall not be divulged unless necessary and with authority of the judge”.

R.A. 1405, as amended, is the act prohibiting disclosure of or inquiry into, deposits with any banking institution and providing penalty therefor.

Anyway, let’s not beat around the bush. The introductory part may well be considered mere jabber. The purpose is just to fill up this page. We all know the constitutional right to privacy. It is written in the very constitution. We need not search any further.

In contrast, the enumeration of laws pertaining to privacy was culled from Commission on Information and Communications Technology’s (CICT) Mr. Philip A. Varilla’s report entitled “PRIVACY FRAMEWORK IN THE PHILIPPINES” (from Google.com). But the same is just as broad and general as the introduction.

The primordial aim of this write-up is to discuss the passage of the DATA PRIVACY ACT OF 2011 during the information and communications technology (ICT) era.

INFORMATION AND COMMUNICATIONS TECHNOLOGY

We have the overpowering emergence of ICT. As often heard, and as it has been substantiated, nay, implanted, the society we subsist in is one explicitly dependent on technology. It’s hard to catch up, but it’s harder to keep up. To live in a society practically reliant on technology, which we ourselves established, is already an ordeal in itself; how much more when hardly anyone has unqualified expertise on technology.

Through this handiwork, getting your hands on the personal information/background of another is readily obtainable. The obligatory compulsion to catch up with technology as an inevitable element of the latter-day civilization vis-à-vis the safeguarding and buttressing of the constitutionally enshrined right to privacy should be harmonized together like the fine tune of Mick Jagger’s Memo from Turner. While we attempt to catch and keep up with technological advancements, we should, more than ever, take into consideration the fundamental right to privacy.

But by the same token, the fundamental right to privacy is all together broad. Specifically, information that may be disclosed is the kind of information that may be obtained through Business Process Outsourcing (BPO).

BUSINESS PROCESS OUTSOURCING

In everyday parlance, it is what we term “call centers”. Basically, BPO is the process of hiring another company to handle business activities for you. It is distinct from information technology (IT) outsourcing, which focuses on hiring a third-party company or service provider to do IT-related activities, such as application management and application development, data center operations, or testing and quality assurance (www.sourcingmag.com).

In a nutshell, BPO is an emerging industry in the Philippines which has generated $11 billion in revenues through BPO contracts in 2011. Hence, there is no denying that BPO has economically lifted the Philippines.

DATA PRIVACY ACT OF 2011

Recognizing the significance of data protection to complement the profitable and growing BPO industry, our brilliant lawmakers, at least a number of them, took time off from the show business, extra-curricular activities and whatnot, to pass the DATA PRIVACY ACT OF 2011 (DPA for brevity). We are more than grateful and indebted to these lawmakers who, save for being reputed lazy and corrupt, among other things, refused to be called ignorant insofar as the field of ICT is concerned in relation to BPO.

Forget about what Mr. John Perry Barlow stated that relying on the government to protect your privacy is like asking a peeping tom to install your window blinds. Then again, we have no choice. Besides, the DPA has its own share of “better” viewpoints, to wit:

  • The DPA only proves that the state recognizes the vital role of ICT in nation building and the nation’s inherent obligation to ensure that personal information in information and communication systems not only in the government but also the private sector are secure and protected.
  • Since it involves the private sector, it will contribute to the promotion and development of electronic commerce. It will protect consumers and cultivate trust and confidence in the same by guaranteeing the protection of personal information insofar as ICT is concerned.
  • The very sensitive personal information shall be safeguarded by using the most appropriate and adequate standards. The DPA only gives the minimum standards/requirements for the protection of personal information in electronic form. Therefore, with the ability to think ahead and as the need arises, unless of course indolence gets the better of them, our lawmakers will amend the DPA accordingly.
  • It is a good law, which will center on the protection of privacy; prevention and mitigation of identity theft, security breaches, and fraudulent access; and, augmentation of more resolute criminal penalties for violations of the same.

Best of all, the DPA caters to a specific industry, that is, the BPO. The economic allocation brought about by the latter is substantial, which warrants this kind of legislation. Furthermore, since it brings the Philippines at par with international standards, it will surely entice more foreign investors. Isang masigabong palakpakan para sa mga mambabatas!

However…

The law will create a National Privacy Commission (NPC) with authority to monitor and ensure compliance of the country with international standards set for data protection, among other things, and is given an initial budget of P20M.

The question now is what will happen to the CICT?

Pursuant to Executive Order No. 269, series of 2004, which created the aforesaid commission composed of the National Computer Center, Telecommunications Office, Philippine Postal Corporation, and National Telecommunications Commission gives the same the duty to preserve the rights of individuals to privacy and confidentiality of their personal information.

There may exist an overlapping of responsibilities. Albeit being a transitory measure, the CICT was not merely consultative. It is equipped with strong and clearly defined powers and appropriate manpower/resources.

One office may not be able to properly identify its functions from the other offices’. It is imperative that all this should be harmonized to make our approach to ICT development more coherent and even cost-effective.

It would have been better to have created first the DEPARTMENT OF INFORMATION AND COMMUNICATIONS TECHNOLOGY; subsequently, and only then may bureaus, attached agencies, etc., of the department may be created to ensure efficiency and streamlining and implementing various ICT-related plans and policies – more specifically, the creation of a commission thereat which shall focus on data privacy insofar as the BPO industry is concerned.

In sum, with international standards as guideposts, DPA relatively addresses a new era of BPO and ITC industries. It is still raw (undefined general measures), but we do hope its IRR shall fill in the gaps. There a lot of matters to accomplish, we are continuing to march in rhythm without really moving forward, JUST YET, but soon we will, even just at a snail’s space.


Two Cents Worth: Legality of FUN ART in the Philippines

Again, I vehemently submit my opposition. Enough with the emotional hullabaloo that we are all fans of fictional characters both locally and internationally. Kindly stop with the argument that when an individual creates a fan art out of an established, well-known fictional character, the same is not mindful of the legal intricacies brought about by this predisposed creation of some sort, nay, and I RESPECFULLY quote “the complexities of our copyright laws when lawyers and sometimes judges themselves cannot pinpoint the exact demarcating (sic) line between what is prohibited and what is not as far as fan art is concerned”.

Well I say all the more one should not venture into this kind of endeavor. Well I say, “kaya di umuunlad ang Pilipinas because of this excuse”.

Well anyhow, just for the sake of amusing with this kind of emotional fracas, I grew up marveling myself with the likes of Randy Valiente, Gerry Alanguilan, Gilbert Monsanto, among others, who all created various characters that shaped our childhood fantasies. I grew up looking forward to the next comics releases of DC, Marvel and Image, to name a few. Kabayo Kids is worth mentioning.

But what really is FUN ART? According to the most reliable source, 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”.

Based on the foregoing, it would be safe to state that fun art is a creation of a fan sourced from a fictional character created by someone else.

Our laws are oblique insofar as fun art toleration is concerned. Our jurisprudence has nothing to say on the matter. These fictional characters are products of the artists’ imagination and intelligence, passion and whatnot. Only the artist may reproduce and display, change, alter or distort pieces of artwork thereof – all this is controlled by the original author, no one else. If you’re an avid fan, create your fun art out of the fictional character by doodling it in your notebook, for your consumption – don’t display it, no one gave you the right to do so. Just marvel on it. As far as the argument of free marketing and promotion for the original author goes, it is his problem. Let him market his own creation. You are not obligated neither are you freely given the expressed clearance to do so. Besides, if you are an avid fan, absent any ulterior motive, you should advocate or undertake to stop these so-called fan creations.

Of course, if there’s a will there’s a way – a way to circumvent these prohibitions on derivative work. The IPC reads in pertinent part, to wit:

“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)

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.”

In view of the foregoing disquisition and pertinent provisions, I am resolved to conclude, and so view in legal contemplation, that fun art is legal in the Philippines. It is not a case to case basis, as others would claim, because jurisprudence has yet to state this. Laws are inadequate for the time being.

Use the aforesaid provisions of the IPC then you’re safe.

However, as an “avid fan” of all these fictional characters which helped cultivate my sadistic imagination, I suggest a harsher penalty for fan art creators – imprisonment and the most unconscionable fine. Finally, it may be well to note that the advice (of bloggers) for fans to create their own is rather misplaced. A fan should not create, a fan should admire – otherwise, he wouldn’t be called a fan, would he?


Cesspool on the Potomac: Nature’s Greatest Gift to Mankind

Downloading comes in many forms. With or without the consent of the owner. For a consideration or otherwise, etc. For the commoner, the prevailing reservation to be addressed is the legality of downloading per se. To answer in the negative entails an exceedingly sweeping statement. In legal contemplation however, what needs to be dealt with is the repercussions brought about by the act of downloading copyrighted works, shared by others who are not copyright owners of such works, which verily, constitutes an act of copyright infringement on the part of the downloader.

Yes of course it is illegal to download software, videos, movies, music etc., from the internet without the consent of the copyright owner.

But for the commoner, a free lunch is the best, so to speak. Free download of computer software, games, applications, music, videos and movies, etc., is simply the best. Admittedly, even for the legal mind, despite knowledge of legal repercussions, downloading for free is simply the best.

To add genuine bliss in downloading for free is the absence of stricter Philippine penal laws on the matter. People take comfort on the fact that what seems to be commonly illegal is legally acceptable, to the prejudice of course of copyright owners. It is therefore “ok” in its strictest sense to download, only because of the want of firm and categorical laws for violation thereof and the exact implementation thereto.

It is humbly submitted that it would only prove futile to discuss herein the economic consequences vis-à-vis curtailment of foreign investments brought about by illegal downloading. Relative thereto, piracy, the trend nowadays to say at the very least, is a by-product of downloading. It is likewise respectfully opined that there is no significance in discussing herein the possible adoption of foreign laws into the Philippine jurisdiction. The application of these laws is implausible in this part of the world for exceedingly apparent reasons.

The above notwithstanding, the thought of genuine change however lingers with the adoption of the laws of other countries insofar as downloading is concerned.

US’ Stop Online Piracy Act (SOPA), the Protect the Intellectual Property Act (PIPA), New Zealand’s Three Strike Rule, UK’s Digital Economy Act are examples of existing laws in other countries for the purpose of putting an end to online piracy.

Then again, the viability of these laws in Philippine jurisdiction may not hold water. These are very well-crafted laws however best suited only for the country which promulgated the same. But these will not be applicable here, for now. What we need to focus on is the implementing hand.

We have the most brilliant lawmakers. Legislation is not a problem; anyway, these lawmakers will just get bits and pieces of provisions from foreign laws and turn them into the perfect, holistic republic act. The problem lies in the implementation of laws. Implementing hand should be enhance to bring about the seamless execution. The police. The Executive Department. Although this vision encompasses the assistance of the Legislative down to the Judiciary – the problem really lies on the execution.

Downloading altogether is not unlawful. One may circumvent, with the lack of a more appropriate word, the law. The IPC reads in pertinent part, viz:

“184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder’s legitimate interests.

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.”

No need to adopt foreign laws. Just the same, after the adoption of these foreign laws, it will be useless because of our failure to advance them. We are altogether undermining our propensity and ability to pass and enact good laws to stop illegal downloading. It is an insult to our intelligence. Then again, legislation is no problem. The limelight should focus on the EXECUTION of our laws and PROSECUTION of violators thereof.

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