[Mirror] Sunga, John Mark

SY 2012-2013, First Semester

Comments on Senate Bill 2965 (Data Privacy Act of 2011)

An insight over the Senate Bill 2965 (http://www.senate.gov.ph/lisdata/1218710275!.pdf)

Have you ever experienced an unknown caller appears on the screen of your phone calling you. Then when you answer their call, some agent from some certain company will have some information regarding you and when you ask them how they managed to get your number or personal information they will simply tell you that it was through this certain company and they will even tell you that your lucky because you qualified for this certain kind of promo or whatever they call it.

With that kind of scenario, I am scared thinking that some people with no good intention might get hold of your personal information and will use it to their advantage. The Philippines lacks data protection law, quoting Winnie Monsod, a known economist.

SB 2965 is an enabling law of the consitutional provision under Art. III, Section 3 (1) of the 1987 Philippine Constitution that “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”.

Privacy is a sacred and basic right which should be afforded to every person. In the case of Ople vs. Torres, GR No.127685, July 23, 1998 (http://www.lawphil.net/judjuris/juri1998/jul1998/gr_127685_1998.html) the Philippine Supreme Court held that under the Civil Code of the Philippines, it provides that every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. The right to privacy is one of the most thereatened rights of man living in a mass society. The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources — governments, journalists, employers, social scientists, etc.

In the case of Morfe vs. Mutuc (22 SCRA 424) citing the landmark United States case of Griswold vs. Connecticut that the essence of privacy is the right to be let alone.

Having dwelled so much into the necessity of privacy, I believe that the passing of this bill into a law would protect to a great extent the right of a person to privacy because at this day and age, who knows? Maybe anyone can easily access on your account using internet or any device for that matter and later on and the will do it for some reason that might prejudice your interest and rights.

Another significant point to remember in passing this law is that Sen. Angara who is the bill sponsor said that “the over-arching policy framework that upholds privacy laws and penalizes individuals for overstepping them.” Under the Senate Bill 2965, it will also create an agency which will be named as the National Privacy Commission that will implement the regulations once enacted. With such commendable act, I believe that the passing of this will create more business, and attract more investors especially from European countries which are really strict on matters regarding data privacy because it will give them enough confidence that our country is committed to protecting one’s privacy and security.

The Legality of Fan Art in the Philippines

What is a Fan Art?

Fan art or fanart 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. In addition to traditional paintings and drawings, fan artists may also create web banners, avatars, or web-based animations, as well as photo collages, posters, and artistic representation of movie/show/book quotes.

The following are examples of fan arts:

[ Images “Naruto Shippuuden Fan Art” and “Harry Potter Trio Fan Art” in original; Photo credits from: DeviantArt.net (http://th01.deviantart.net/fs42/300W/f/2009/061/f/7/New_Sage_by_Ninjatic.jpg) FanPop.com (http://images2.fanpop.com/images/photos/6900000/the-Trio-fan-art-harry-potter-6912943-650-558.jpg)%5D

Its Legal Status in the Philippines?

As a general rule, the right to reproduce, make any public display of the image or make any alterations to such art belongs solely to the original artist. Basically it is simply saying that the original creator who who protected his work under the law has the right to exclude others from abusing his creation.

As culled from the Copyright Law of the Philippines under R.A. 8293

Section 177. Copyright or Economic Rights. – Subject to the provisions of Chapter VIII, copyright or economic rights shall consist 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)

xxx xxx xxx

Section 193. Scope of Moral Rights. – The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right:

193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;

193.2. To make any alterations of his work prior to, or to withhold it from publication;

193.3. To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and

193.4. To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. (Sec. 34, P.D. No. 49)

Section 194. Breach of Contract. – An author cannot be compelled to perform his contract to create a work or for the publication of his work already in existence. However, he may be held liable for damages for breach of such contract. (Sec. 35, P.D. No. 49)

Section 195. Waiver of Moral Rights. – An author may waive his rights mentioned in Section 193 by a written instrument, but no such waiver shall be valid where its effects is to permit another:

195.1. To use the name of the author, or the title of his work, or otherwise to make use of his reputation with respect to any version or adaptation of his work which, because of alterations therein, would substantially tend to injure the literary or artistic reputation of another author; or

195.2. To use the name of the author with respect to a work he did not create. (Sec. 36, P.D. No. 49)

However, as an exception to the general rule, such fan art can still be considered as legal and can even be protected. “Hence, the author of such fan art can still enjoy the benefits reaped from a copyrighted work but only to the extent of the addition added, changes, or other new material appearing for the first time in the work” (Dennis Funa, The Copyright Law of the Philippines, 2011). They fall down under the definition of a derivative work or in layman’s term a mew version of the original work.

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 174. Published Edition of Work. – In addition to the right to publish granted by the author, his heirs, or assigns, the publisher shall have a copyright consisting merely of the right of reproduction of the typographical arrangement of the published edition of the work. (n)

According to Jonathan Bailey in his article The Messy World of Fan Art and Copyright (http://www.plagiarismtoday.com/2010/05/13/the-messy-world-of-fan-art-and-copyright/), he provided the Parameters in order to stay safe if one is interested in creating a fan fiction or fan art, he gave pieces of advice that he thinks are important in order that one will be sure that he wont find himself someday in a copyright or trademark conflict.

  1. Check the Rules: Look for the rules of whatever you’re a fan of. Fan art and fan fiction communities often have guidelines and some authors have made public statements on the issue. Do some research before creating and uploading.
  2. Make it Clearly Unofficial: Have clear statements on your site that your site and your work is not an official site and is just a fan creation. Though it may not help with an actual trademark or copyright dispute, it shows good faith and encourages rightsholders to work with you.
  3. Be Non-Commercial: This is an element of the unspoken rule, but try to be completely non-commercial with your works, no selling copies, no sponsorships, no advertisements.
  4. Be Careful with Domains: Be mindful that your domain can become a trademark issue if it leads others to think that you might be an official site. Make it clear with your domain that it is a fan creation.
  5. Comply with Requests: If the creator or an agent on their behalf makes a request of you, obey it. If it’s a polite request, complying helps avoid a less-than-polite request later and builds a good rapport. If it is a more stern one, it is even more important to comply.

As a conclusion, fan arts are legal so long as the fan artist does not cross the line between what is allowed of him to do and not to do. Most authors allow the proliferation of fan arts solely for the fact that those fan artist also promote the work of the original author/artist.

Issue on the Legality of Downloading Online Materials

The act of downloading a copy of a copyrighted material is illegal. Downloading without permission from the author/owner of such work is illegal and would restrict them of their moral and economic rights as the copyright holder. [Republic Act 8293]

However if we speak of the current trend right now in the internet, which is downloading through the means of “torrent” system, there is nothing illegal with the use of it. The use of “torrent” files which are basically a small file of information used by a file sharing technology known as a bit torrent is legal. The method used in torrent is you download a “.torrent” file then by using a program in your computer such as BitTorrent, Vuze or any P2P sharing technology application several people will “seed” the torrent file that you are downloading. So if we question the legality of the process, nobody can be really held liable for seeding a torrent file because several people will come from different jurisdiction and it will be quite complicated to apply several intellectual property laws to them.
from the German Pirate Party

If Philippines will ratify ACTA Treaty[click link for full text of the treaty]: Is it Violative of the Freedom of Expression and Privacy?

Lots have been in opposition of the Anti-Counterfeiting Trade Agreement because of its controversial provisions, among them is the issue regarding the curtailment of freedom of expression and privacy. According to Aaron Shaw, “ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties. Even though the precise terms of ACTA remain undecided, the negotiants’ preliminary documents reveal many troubling aspects of the proposed agreement. For example, ACTA advocates intend to further criminalize non-commercial copyright and trademark infringements. They also aim to reinforce so-called “Digital Rights Management” (DRM) technologies that currently prevent the personal, legal reproduction of optical discs like DVDs and trample on “fair use” rights. In addition, rights owner lobby groups want the agreement to undermine legal safeguards that protect Internet Service Providers (ISPs) from liability for the actions of their subscribers. It would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process.”

With those provisions in the ACTA I would suggest that the Philippine government should not ratify to that treaty. Authorities will easily pry into someone’s privacy if they suspect that one is engaged in any of the activities prohibited by the treaty. We have to bear in mind that privacy of the citizen on whatever they do in the internet should be protected also. It is their right to do freely what they want. Internet is the new medium for expressing one self and also a way to acquire vast knowledge and information.

In the case of Camilo Sabio vs. Gordon, G.R. No. 174340, Oct. 17, 2006, the Supreme Court of the Philippines discussed the importance of privacy thus,

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a “constitutional right” and “the right most valued by civilized men,” but also from our adherence to the Universal Declaration of Human Rights which mandates that, “no one shall be subjected to arbitrary interference with his privacy” and “everyone has the right to the protection of the law against such interference or attacks. Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person’s “right to be let alone” or the “right to determine what, how much, to whom and when information about himself shall be disclosed.”Section 2 guarantees “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.” Section 3renders inviolable the “privacy of communication and correspondence” and further cautions that “any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

It is clear that if the Philippine Government will ratify the ACTA it surely violate the highest law of the land, which is the Constitution. Freedom of expression will be curtailed also because if copyright holder would suspect that a work is similar to him he can easily ask the authority to investigate the work under suspicion.

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