SY 2012-2013, First Semester
- Senate Bill 2956 “Data Privacy Act”
- The legality of Fan Art in the Philippines
- Is Online Downloading: Legal or Illegal ?
No less than the Constitution itself enshrined in the bills of rights which guarantees the right to be secured against unreasonable searches and seizures of whatever nature and purpose, freedom of speech, of expression, of the press, and of the right to privacy of communication and correspondence.
“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 ….xxxxxx” (Art. III Sec. 2 , 1987 Constitution of the Philippines).
“ 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” (Art. III Sec. 3(1), 1987 Constitution of the Philippines).
“No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances“(Art. III Sec. 4 , 1987 Constitution of the Philippines).
With the enactment of Senate Bill No. 2965 otherwise known as the Data Privacy Act will the aforementioned constitutionally guaranteed rights be protected, restricted, or worse be violated?
The Data Privacy Act seeks to create a National Privacy Commission who will be empowered to administer and implement the provisions of this Act, and to monitor and ensure compliance of the country with international standards set for data protection.
This Act shall apply to all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency.
But what is personal information? The Data Privacy Act defines personal information as:
Sec 3 (g) Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and ascertained by the entity holding the information, or when put together with other information would identify an individual.
One of the provisions of this Act which is ambiguous and might be subject to abuse is definition of personal information. It does not provide an enumeration of what information the identity of an individual is apparent or can be reasonably be ascertained. Basic personal information includes social security number, tax identification number, age, status, and the likes.
However, does personal information also include bank records, credit records, ownership of title of real as well as personal properties of a person? If it does – the said information may be regulated or prohibited by the government from disclosure which in some cases might be necessary for accountability and transparency especially those in the government service.
Another ambiguous provision can be found below:
Article 16 of the Act provides for the transmissibility of Rights of the Data Subject “The lawful heirs and assigns of the data subject for which he or she is an heir or assignee at any time after the death of the data subject or when the data the data subject may invoke the rights of the data subject for which he or she subject is incapacitated or incapable of exercising the rights as enumerated in the immediately preceding section.”
I find the aforesaid provision inconsonant with the provision of the civil code providing that the civil personality is extinguished by death. Once the data subject dies he ceases to be a person within the meaning of law.
Art. 42. Civil personality is extinguished by death.
Since he is no longer a person within the meaning of law, he no longer has personal information which needs to be protected. The personal information ceases to be private in nature but should become public. Otherwise, this might lead to cases wherein the information however vital might not be known by the public since consent can’t be had.
The most controversial provisions in this law are the provisions regarding penalties which provide
SEC. 30. Unauthorized Disclosure. –
a) Any person who discloses to a third party personal informal not covered by the immediately preceding section without the consent of the data subject obtained by him from a data controller or unknowingly transferred to him, shall be subject to imprisonment ranging from one (I) year to three (3) years imprisonment and a fine of not less than Five Hundred Thousand Pesos (Php 500,000.00) but not more than One Million Pesos (Php 1,000,000.00).
b) Any person who discloses to a third party sensitive personal information not covered by the immcdiately preceding section without the consent of the data subject obtained by him from a data controller or unlmowingly transferred to him, shall be subject to imprisonment ranging from three (3) years to five (5) years imprisonment and a fine of not less than Five Hundred Thousand Pesos (Php 500,000.00) but not more than Two Million Pesos (Php 2,000,000.00).
Several associations of the press such as the Philippine Press Institute (PPI) and Economic Journalists Association of the Philippines (EJAP) protested that Section 30 of the Data Privacy Act suppress freedom of the press. According to them, it extends liability to reporters, writers, presidents, publishers, managers and editor-in-chiefs involved in the unauthorized publishing of sensitive personal information.
On the other hand, the author of this law Sen. Edgardo Angara has assured that this provision will be rectified in the Bicameral Conference Committee. Angara stressed that the main objective of the bill is to promote confidence in the country’s booming Information Technology and Business Process Outsourcing (IT-BPO) industry and its growing e-government initiatives by mandating public and private institution to safeguard the integrity, security and confidentiality of personal information collected throughout their operations.
Despite the goodness of the objective, the said provision can be use as a tool by those which have many to hide as a shield to cover the truth from coming out to the public. The said law penalizes a person who wasn’t able to secure consent despite the purpose for which the disclosure is to be made.
SEC. 31. Breach ofConjidentiality. – 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 (Php 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.
This provision also prompted protest from from the Philippine Press Institute (PPI) and the National Union of Journalists of the Philippines (NUJP). The PPI and NUJP said the proposed legislation also violates freedom of the press that is enshrined in the Constitution.
The NUJP said Section 31 of the Data Privacy Act “is clearly intended to prevent journalists from performing their duties of delivering timely, relevant and accurate information to the public in the service of the people’s right to know.”
Angara, in a press statement said lawmakers will rectify Section 31 of Senate Bill No. 2965 during their bicameral hearing. According to him it was not the intention of the legislature to penalize the media for doing their job of responsible reporting rather it is only those whose actions were directly behind the release of private information will be held accountable.
Even so, most of the information that media acquire comes from private individuals. If this law will be effective, the said sources of information will not disclosure it anymore to the media due to their fear of punishment.
With that scenario in mind, the said law seems to place the country in a martial law like state where one cannot anymore speak the truth due to fear of castigation.
The Congress should carefully review the said Act especially the aforementioned provisions as not to unduly violate the fundamental rights guaranteed by the Constitution.
Is Fan Art legal in the Philippines?
Technically Fan Art is illegal. It violates the Copyright Law and Trademark Law.
But what is fan art?
Fan Art is an 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.
The Intellectual Property Code of the Philippines provides that, Copyright refers to literary and artistic works which are original creation in the literary and artistic domain protected from the moment of their creation. It shall be owned by the person who has created the work.
As the owner of the copyright, he has the exclusive right to carry out, authorize or prevent the following acts:
- Reproduction of the work or substantial portion of the work;
- Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;
- The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
- Public display of the original or a copy of the work;
- Public performance of the work; and
Included in the rights of a copyright owner is the right to carry out derivative works
Derivative works refer to
(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.
Fan art is in reality a derivative work of the original work. Since the author of the original work has the exclusive right to carry out, authorize or prevent the derivative work, a fan creating an adaptation of his favorite comic character is actually violating the copyright of the owner.
A defense which may be used by a fan on copyright infringement is 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
Fair use varies from a case to case basis taking into account the facts of the case.
It is also worth noting that fan art can be a trademark violation as well. There is a trademark violation when a work is identical with, or confusingly similar to, or constitutes a translation of a mark which is considered by the competent authority of the Philippines to be well-known internationally and in the Philippines.
Nonetheless, even if fan art violates the rights of the authors, it is for good reasons, tolerated by them and even encourages it. In a way it helps them make their creations known.
Technically there is no law yet in the Philippines punishing illegal downloading of online copyrighted materials for personal and non-commercial purpose.
Nulla crimen, nulla poena sine praevia lege poenali (No crime, no punishment without a previous penal law). The latin maxim provides that there can be no crime committed and no punishment rendered if there is no penal law at the time the act was constituted.
What the Intellectual Property Code of the Philippines penalizes is the infringement of the author’s copyright which consists of the exclusive right to carry out, authorize or prevent the following acts:
177.1. Reproduction of the work or substantial portion of the work;
177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;
177.3. The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a)
As provided for under the IPC, publication of a work without the author’s permission which includes uploading a copyrighted work in the internet infringes the economic right of an owner and is penalized under the same law.
However, nowhere in the code is downloading per se prohibited. A person who downloads online a copyrighted material without the author’s permission can only be penalized if he distributes the same for commercial purpose which is a clear infringement of the author’s economic right.
Foreign Laws: SOPA, ACTA and 3 Strike Rule
Foreign countries have been continuously proposing laws to curb online piracy
SOPA (Stop Online Piracy Act)
It is a bill passed by the US to fight online piracy of copyrighted materials and counterfeit goods. It allows the US attorney general to seek a court order to bar advertising networks and payment facilities from conducting business with websites which infringes intellectual property, and search engines from linking to the websites, and block access to the website by serving the court order to the Internet Service Providers.
ACTA (Anti Counterfeiting Trade Agreement)
It is an international trade agreement which aims to establish international standards for intellectual property rights enforcement. It is said to encourage service providers to collect and provide information about suspected infringers by giving them “safe harbor from certain legal threats”.
3 Strike Law (Copyright Infringing File Sharing Amendment Act of 2011)
It is a law adopted in New Zealand which amended the Copyright Act of 1994. It seeks to provide owners of copyrighted materials a convenient and efficient way to penalize people infringing their copyright via online file sharing system such as Peer to Peer file sharing.
The account holder receives a first strike which is called a detention notice, then a warning notice for a second strike, and the enforcement notice for the third strike. It allows the district court to order suspension of an account holder’s internet account for up to 6 months and/or penalty up to $15,000.
However, there are numerous oppositions to said laws (SOPA, ACTA and 3 strike law) claiming that it violates their constitutional right to freedom of expression and conduct a lawful business since the court can order to block an infringing website or a search engine if it contains a link to an infringing site.
Philippine bill going in the said direction and its constitutional violation
Recently, House Bill 6187 also known as the Anti-Online Piracy Act was filed by Buhay Party List Reps. Irwin Tieng and Mariano Michael Velarde. The said law aims to protect the intellectual property rights of workers in the creative and entertainment industries by penalizing acts of online piracy.
Section of 4 the said bill makes it 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.
Section 5 of the said law provides for the penalties
Any person who shall violate any provision of this Act shall suffer the following penalties, to wit:
a. Imprisonment of one (1) year to two (2) years plus a fine rangingfrom fifty thousand pesos (P 50,000.00) to one hundred fifty thousand pesos (P 150,000.00) for the first offense;
b. Imprisonment of two (2) years and one (1) day to three (3) yearsplus a fine ranging from one hundred fifty thousand pesos (P150,000.00) to three hundred thousand pesos (P 300,000.00) for the second offense;
c. Imprisonment of three (3) years and one (1) day to five (5) years plus a fine ranging from three hundred thousand pesos (P300,000) to one million pesos (P 1,000,000.00) for the third and subsequent offenses;
In determining the number of years of imprisonment and the amount of fine, the court shall consider the value of the infringing materials and the damage that the copyright owner has suffered by reason of the infringement.
It is noteworthy to point that unlike the abovementioned foreign laws the proposed bill does not seek to block websites with infringing contents.
I’m just not sure if it’s due to lack of financial resources or insufficient technology?
Moreover, I’m still lost on how will track violators of said act? Will they track them using ISPs? If not, then what other method?
With regards to constitutional violation, it is still unclear to me since the process of identifying the said violators were not laid down.
Hopefully our legislators will be able to enact a law against online piracy which would not only benefit the business sector but also protect and respect the rights of its citizens.