[Mirror] Raton, Nikki

SY 2012-2013, First Semester

Data Privacy Act of 2011 – Reaction

The Philippine Senate has approved Senate Bill 2965 or the Data Privacy Act of 2011. The Senate claims that the bill aims to strengthen the protection of personal data in information and communication systems both in the public and private sectors by establishing fair practices and regulate the collection and use of personal data stored in the computer systems. The bill is also expected to attract IT-related investments in the country and encourage IT-related professionals and skilled workers to look for opportunities within the country.

While it may help prevent misuse of personal information in the computer system, including identity theft, and further boost our business process outsourcing (BPO) industry in the country, the inclusion of certain types of data, mainly sensitive personal information and privileged information, as among those types of information covered by the bill, seemingly violates the Constitutional right of the individual to privacy as well as violates the provisions of the Rules of Court pertaining to privileged communication.

Article III Section 3 (1) of the 1987 Constitution provides:

Section 3.(1) The privacy of communication and correspondences shall be inviolable except upon lawful order of the court, or when public security or order requires otherwise as prescribed by law.

The repealing clause of this bill (Section 43) states that it amends Section 7 of RA 9372 or the Human Security Act, which states that:

“SEC. 7. Surveillance of Suspects and Interception and Recording of Communications. The provisions of Republic Act No. 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.”

Being so, it only means that communications between the above mentioned professional relationships may be included and processed by third parties, be it individual or entity. In my opinion, personal information controller and processors may be considered third parties, since they control or regulate the information gathered from the person. They gain access and information about an individual in the process.

Since this bill applies to privileged communications mentioned, it might limit clients, patients in disclosing information to their prejudice.

Likewise, inclusion of sensitive personal information as among those data to be processed might be used to discriminate the individual on account of his race, ethnic origin, color, religious or political affiliations, genetic or sexual life, etc.

In terms of storage of data, there should be a definite period for storing the information to protect the data. In case the period of storing the data expires and the transaction with the data subject is not yet over, request for the retrieval should be seeked from the Commission. Further, these processors or controllers should be accredited by the Commission to ensure their standards are regulated by the Commission.

Finally, how will this bill, in case it becomes a law, in anyway connect with the writ of Habeas Data?

The Writ of Habeas Data provides:

“Sec. 1. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.”

Legality of Fan Art

Fan art or fan art is 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. Meanwhile, a fan artist is anyone who drew from a genre because they are a fan of the genre rather than a professional employed to create art for the genre.

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, video, crafts, textiles, metal smiting, and fashion. Within these broad medium types, fan art also created types of art always specific to itself, such as icons.

In the artistic community, fan art is often not seen as a legitimate form of artistic expression. The argument against fan art made by some artists, as well as some other fans, is that artwork is derivative and not original. Therefore, it does not show as much individuality and artistic sensibilities as original artwork would.

Derivative works are creations that are based in an existing work. A derivative work is by definition substantially similar to the underlying work and would be copyright infringement in the absence of a license. Thus, if the underlying work is in copyright one who wishes to exploit the derivative work needs a copyright license from the owner of copyright of the underlying work. The aspects of a derivative work added by the derivative authors are that author’s property, but the elements drawn from the pre-existing work remains on grant from the owner of the pre-existing work. If there is no such license, then the use of the underlying work in the derivative work is illegal under copyright laws.

According to copyright law, copyright holders have the sole right to distribute derivative works based on original creation. This includes sequels and other works that includes copyrightable elements from the original creation. Characters can be granted copyright protection from creation as can many non-expression elements of the original work. This is furthered that most form of creations are built upon plot elements and other copyrightable parts of the original materials.
That being said, fair use may protect some fan creations from being an infringement, but that is handled on a case to case basis, looking at the facts of the actual work. However, most fan creations, by their very nature, don’t parody or mention the source material, which would provide a great deal of protection, nor are they highly transformative, meaning, that they are likely to win in the event that such a suit takes place.

Fan art is not often the subject of legal controversy; from a copyright holder’s viewpoint, fan fiction and art is usually not very harmful. In fact, fan creations serves as free promotions and as a way to grow the brand without cost or effort, hence, copyright owners benefit from fan communities. For as long as fan communities do not hurt the original creator’s ability to profit from the work, and the proper attribution is given to the copyright holder, their symbiotic relationship is preserved.

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. They serve as a reminder that fan art is not necessarily the legal property of the fan artist and that copyright law and fair use and transformative defenses vary from country to country. It is best to study the rules of each community and obey them closely; that fan art creations exists only thru the good graces of the copyright holders and can put in force their right against infringement. While many copyright holders, for good reasons, tolerate fan art and even encourage it, it should not be interpreted that fan creators can do as they please with the source material, lest they end in court battle.


Downloading as Copyright Infringement

Generally, the downloader is infringing copyright if he downloads or store copyrighted materials in his computer without the permission of the copyright owner, unless fair use or another exemption under copyright laws applies. If you download a song, yfilm, game or software from a file-sharing website or another website (such as a page on a social-networking site) where it’s made available, and you do not pay for the item or otherwise obtain it under license from the copyright holder, then you are infringing someone’s copyright. Most downloading of commercially available copyrighted works, such as music or movies, through file sharing is illegal. In a US case, a Federal Court of Appeals held that users of Napster were infringing copyright when they shared MP3 files of copyrighted music.

However, purchasing of licensed softwares such as Microsoft Office and remaining in compliance with the terms of the license, as well as downloading music or other copyright able materials in accordance with the terms of a license, or having the permission of the copyright owner to download or keep a copy of the owner’s works exempts the downloaded from any liability.

The law also exempts the use of copyrighted materials from infringement, the so-called “fair use”. Fair use is an important part of copyright law, but is limited in scope and it’s application sometimes uncertain.

Copyright also allows making a copy of CD for personal use. However, giving a copy to another person is not allowed. Many people believe that if no money is involved, then no law has been broken. This is false. Whether giving away the copy or selling it, this is still a violation of copyright law.

The main dangers of infringing copyright in this way are (i) the potential for civil liability to the copyright holder, and (ii) the introduction of spyware, viruses or other unwelcome items to your computer as part of the download process.

It is also possible for a person to face criminal prosecution for copyright infringement, although the copyright statutes in the UK in effect limit the offense to the large-scale distribution of pirated material for financial gain. An individual who occasionally downloads songs via a peer-to-peer sharing site is unlikely to face criminal liability, and in fact the prosecuting authorities failed in at least one recent attempt to prosecute an individual who was operating a file-sharing website in the UK.

Civil liability, on the other hand, is a distinct possibility. Copyright holders frequently seek to identify and obtain compensation from individuals whodownload copyright material in a way that infringes the copyright. They do this by obtaining records from internet service providers (ISPs) and then getting their lawyers to write to people who have, according to the records, infringedtheir copyright. Ordinarily the lawyers’ letters demand a sum of money as compensation for the copyright infringement.

In the Philippines, RA 8792 or the E-Commerce act, particularly Section 33 (b), punishes with either fine or imprisonment any “unauthorized copying, reproduction, dissemination distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recordings or phonograms or information material or protected works.”

These unauthorized acts are penalized when committed through “the use of telecommunication networks,” including the Internet, when they infringe intellectual property rights.

The laws of the US, France, New Zealand and United Kingdom (SOPA/PIPA, HADOPI law, Three Strike Rule and Digital Economy Act, respectively) on copyright infringement, particularly when done through the Internet, attaches its liability not only on the Internet subscribers, but also on the Internet Service Providers / websites. Should similar laws be adapted in the Philippines, illegal downloading will not only pose liabilities on the internet users but on the websites and internet providers as well. It would surely benefit our artists, website designers and providers and website users.

The enforcement of copyright is the responsibility of the copyright holder. Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries enable courts to remedy copyright infringement with injunctions and the destruction of infringing products, and award damages. Copyright holders have started to demand through the ACTA trade agreement that states act to defend copyright holders’ rights and enforce copyright law through active policing of copyright infringement.It has also been demanded that states provide criminal sanctions for all types of copyright infringement and pursue copyright infringement through administrative procedures, rather than the judicial due process required by TRIPs.

Similarly, the ratification of the ACTA Treaty by the Philippines will further strengthen our fight against illegal downloading and consequently, minimize, if not totally eradicate online piracy. The provisions in the ACTA enjoins not only public awareness but active participation of the citizens in fighting copyright infringement though information about the procedures as well as the relevant laws in enforcing copyright laws, among others, aside from the active policing of copyright infringement.This could mean the end to a lot of local sites — sites that offer streaming TV shows (telenovelas, news, etc), blogs that offer downloads to cracks and hacks to software, forums that provide avenues for users to share copyrighted content like songs or mobile apps, and many more.

Similar laws, like those mentioned, as well as adherence to ACTA, be pursued in the Philippines, should not pose a threat to our freedom of free expression and privacy. While our Constitution safeguards these rights, bear in mind that such rights are not absolute, and are subject to police powers when public order is at stake. Copyright infringement, digital or otherwise, is a crime against public order, for it is the unauthorized use of works under copyright, infringing the copyright holder’s “exclusive rights”. It is copying “intellectual property” without written permission from the copyright holder. In a way, it is similar to theft. Freedom of expression and privacy should not be invoked, and rightly so, when it deprive copyright holders of their legitimate right to gain profit out of their creations. Article XIV Section 13 of the Constitution guarantees the protection of the exclusive rights of copyright owners of their intellectual property and creations, for a period as may be provided by law. Creative work is to be encouraged and rewarded. The immediate effect of these copyright laws is to secure a fair return for an author’s creative labour and at the same time to stimulate artistic creativity for the general public good.

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