SY 2012-2013, First Semester
- Appreciation of House Bill No. 1554 – Data Privacy Act
- Legality of Fan Art in the Philippines
- My Appreciation of ACTA and SOPA
DATA PROTECTION BILL (House Bill No. 1554)
- If passed into law this would definitely protect a lot of “Credit Card Holders” who normally provide so much personal information to the Credit Card Company such as their names, contact details, residence and office address and most importantly bank account details.
- This would likewise protect those individuals obtaining bank accounts wherein personal information such as those mentioned above and even other financial interests are being disclosed to the bank for purposes of loans, etc. This would give protection apart from Banking Laws.
- This may also protect passengers purchasing tickets online from airlines companies because in this process, passengers normally disclose personal information.
- Verily, it may be noticed that in compliance with the constitutional provisions on government officers or employees disclosures, some specific information of the latter were excluded from the Bill.
- Sec. 6 of House Bill No. 1554 provides Extraterritorial Application. Granting that there will be no issues on acquiring jurisdiction over foreign entities which provide online services so as to make them a “Personal Information Controller” and thus may be held liable in the Philippines. In my interpretation those foreign entities which may be held liable as foreign entities under Extra territorial application would be the social networks sites and email service providers.
- A very special provision which I have noticed aside from the creation of the “National Privacy Commission is Sec. 23(f), the “Breach Notification” which provides that the information controller shall promptly notify the commission of any breach of information under their control. Otherwise they shall also be penalized.
- Finally, the bill classifies the information “Personal Information” and “Sensitive Personal Information” with different penalties. The latter of much higher penalty. This is apart from the criminal liability.
There seems to be no law in the Philippines governing particularly the so called “Fan Art”. Although others say that the Provisions of Republic Act No. 8293 otherwise known as the Intellectual Property Code of the Philippines and other related laws may be made applicable on such matter as it may be considered a “Derivative Work” being an artistic creation itself, hence, it may infringe the original derivative work which served as its inspiration.
My personal take on this matter is that, everything boils down to the fact that although there are laws regulating one’s “freedom of expression”, an “artwork or artistic creation” knows no boundaries. And although these artistic creations or artworks may be protected by law, one cannot be said to be infringing another’s artwork by making the latter as an inspiration for “another artwork” which by the use of our senses could be determined as entirely different from the other. Especially because fan art are normally used for personal purposes as a fan of a character or an art and not for commercial purposes.
But what about if such fan art is being used by the artist for commercial purposes? Then I guess, it would depend on people’s appreciation based on the existing applicable laws of that particular fan art as to whether it is infringing or not. Because in that instance, there may now be an intent on the part of the artist of somehow infringing an original artwork for his own personal pecuniary gain. Hence, such artist may be in bad faith and such act may violate the right of the artist or the owner of the original artwork which the latter should of course have a right of action.
With the recent signing of the Anti-Counterfeiting Trade Agreement (ACTA) by countries such as Australia, Canada, Japan, Morocco, New Zeland, Singapore and South Korea and the United States several concerns were raised by different organizations. But my take on this matter is this.. I would like to view this in my wide perspective and considering as well the rationale behind this Agreement which is the protection of all copyright or trademark owners. To me, it is a very interesting Agreement and policy but my only concern is with respect to its implementation. Although it only binds those who signed such agreement, it cannot be avoided that other countries which did not sign such agreement may be involved as commercial transactions nowadays from all over the world are available online. This may happen if part of the implementation involves the use of internet and other online technology technology which has a big possibility that it may encroach the laws of so many countries, be it a signatory or not a signatory of such Agreement. Aside from securities and other constitutional rights which may be violated, what about jurisdiction? Are they going to penalize one who violated this Agreement but has not violated the law of the country where he belongs and which such country is not even a signatory to such agreement? The Agreement may be reasonable and solid as a foundation, but what about its implementation?
With respect to the Stop Online Piracy Act (SOPA) which is currently a bill introduced in the United States. As I read its provisions from the website of Wikipedia, it is said to “include the requesting of court orders to bar advertising networks and payment facilities from conducting business with infringing websites, and search engines from linking to the websites, and court orders requiring Internet service providers to block access to the websites.” To me, the rationale behind this Act is of course reasonable. However, the said quoted provision may violate the right to due process of those business organizations or companies who’s access to their sites are blocked merely because there was a court order allowing such blocking. The question is “Will these business organizations be even granted a right to defend themselves before issuance of such order blocking the entire world from accessing their website? Another interesting question is that “If for instance one of their products is found to infringe another product and then they are sanctioned by blocking everyone from accessing their website, isn’t it a violation of their right to make a legitimate business and sell their other products which are not infringing at all? As to how the implementation for this Act becomes fair to everyone is quite puzzling to me.