[Mirror] Tovera, Marilyn Sharina

SY 2012-2013, First Semester


Appraisal of Data Protection Act

Data Privacy Act: Good or Bad?

Purpose:

The right to privacy is an inviolable right which the State protects as provided under the Philippine Constitution and a well recognized right under International Laws. It is high time to strengthen the laws on privacy as demanded by the increasing sophistication of information technology with its capacity to disseminate information on individuals.

The purpose of this act is to protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.” In order to achieve this general objective, the law prescribes certain standards and rules. These deal with the collection and use of information, the quality and security of information and the rights of individuals with respect to information about themselves (A Practical Guide to the Data Protection Act by John Woulds). The main intent is to protect individuals against misuse or abuse of information about them. This law is not new to other countries namely the United States and those which are signatories to the European Union.

Good or Bad?

It is very clear that the intention of the Act is to protect the people and their rights, hence it can be said that it is a good law. It is true that every person’s privacy should be protected by the State and it is a right that any person can invoke. The DPA seeks to achieve the following: that personal data be processed fairly and lawfully; be obtained only for lawful purposes and not processed in any manner incompatible with those purposes; be adequate, relevant and not excessive; be accurate and current; not be retained for longer than necessary; be processed in accordance with the rights and freedoms of data subjects and be protected against unauthorized or unlawful processing and against accidental loss, destruction or damage. In other words, it gives security on the part of the data subject that his personal data will be kept properly and that it will be secured. The DPA is a guaranty as to the protection of a person’s privacy. On the other hand, the it can also be said that it is a bad legislation because of the limitation it might create on the power of the State which it can exercise over its citizens. The people might abuse it as to escape liability by invoking this protection or it can contribute in slowing down the resolution of cases due to the registration process of personal data as provided by the Act. For instance, in the recent impeachment trial of CJ Corona, he invoked his right under the Secrecy Bank Deposits Act which seems to be his scapegoat to liability. From this, we can deduce that someone can use this DPA as a scapegoat, if not construed correctly.

Pros-Cons:

One of the advantages that this law can provide is the protection of privacy. It can eliminate the abuse on unauthorized dissemination of personal data of a person without his consent. Due to the growing trend in computer systems and technology, a person’s personal data can be transferred or disseminated right away, in just a click. By the mechanism of the data system provided under this Act, unauthorized dissemination of personal data can be eliminated. It would now be difficult to track a person because he is secured. Another advantage is that there will be authentication of the personal data of every person. It means that fraud can be lessened or eliminated. The personal data to be registered in the system is subject to verification, that the data subject is required to provide only true information or data about him. Lastly, in cases of transfer of data, personal data shall not be transferred to a country or territory unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data. This means that even there is a transfer to a different territory, you are still provided with the adequate security. The guaranty on privacy provided by DPA will extend to other jurisdictions.

On the other hand, I see the following as the disadvantages: Restricting the ability of public authorities to process personal data even where the processing can only be of benefit to individual citizens. As provided under the DPA, previous consent should be attained before personal data can be processed or that it be necessary to protect vitally important interests of the data subject or is necessary in order to respond to national emergency. The problem that might arise is with regard to time. It seems that the law does not provide for the time of determination as to necessity. There are cases when time is of the essence in a certain circumstance, for instance life or health is in consideration. Can the data controller outrightly process the data necessary? Is there a determination needed in such circumstances? This dilemma is actually one raised in the European Union in the application of the DPA. There are times when the personal data is necessary, and determination if its processing is lawful will only cause delay which could be prejudicial on the part of the said person. Another disadvantage is the tedious task of registration of personal data processing system. There are only certain personal data which can be included in the system, which means that there is still a need to verify the said data between the date controller and the data subject. In my opinion, this is very impractical and not feasible with the system we have in the Philippines. It might only cause additional work that might delay necessary things. The mechanism that the law provides might not be doable in this jurisdiction.

We cannot see the goodness of a law until it is applied. Quoting what the Supreme Court said, it is until the application of the law that we see its goodness or badness which brings us to the realization of the real intention of the legislators. Moreover, there is no perfect law and there is always a room for adjustment and improvement.


References

  • Data Protection Act of the Philippines
  • A Practical Guide to the Data Protection Act by John Woulds
  • Wikipedia – Data Protection Directive
  • U.K. Data Protection Act 1998 (DPA 1998) – Article/Commentary
  • EU data protection proposals – pros and cons
  • Gill Montia (http://www.insurancedaily.co.uk/author/gill/) | January 30, 2012

Legality Of Fan Art In The Philippines

Fan Art is defined as an “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.” In other words, it is a work done by a fan or any other person.

The Law

The general rule is that the right to reproduce and display pieces of artwork is controlled by the original author or artist. According to copyright law, copyright holders have the sole right to distribute derivative works based on an original creation. This includes sequels and any other work that includes copyrightable elements from the original creation. However, copyright law allows for the production, display and distribution of derivative works if they fall under a fair useexemption. It appears that making a derivative work which complies with fair use of a copyrighted work is not an infringement of copyright. Sec.185.1 of Republic Act No. 8293 otherwise known as the Intellectual Property Code of the Philippines provides that:

“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.

It further provides that “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 value of the copyrighted work.

It can thus be said that fan art can be legally done provided that it falls within the purview of fair use under the copyright law. In fact, there are already many fan fiction sites which is the same as fan art, a work created by fans, that are recognized. They do not amount to infringement because they do not use it for commercial purposes and they make it clear that it is not an official work but rather a fan creation.

Pros-Cons

Actually, fan art and fan fiction may be of help to publicity of the original works. They may be a free promotion to the original works and it also encourages the people to buy the original work because it is a sort of teaser. Moreover, fan created works are being tolerated. There are sites which are open to fans to make their own works. And actually, these sites provide for rules that the fans should abide so as not to violate any law. There are limitations, for instance, they cannot make a work out of an original author’s work if the said author expressly says so. They also state that their works are fan creations and not an official one. They give a caveat and disclaimer with their works so that the readers would know that they are not the original authors. Moreover, many of these fan created works are not used for profit and commercial purposes, but only as expression of their admiration on the original author’s work.

However, the downside of this is drawing the line between the rights of the original author and the fans. Some fans may go over beyond the line between what is not an infringement and what is an infringement. Moreover, due to many networking sites, it may be hard to trace and regulate these fan creations.

A Little Out Of The Box

It might be a little out of the box, but fan art can also be anchored to freedom of expression as granted by the Constitution. Fan art as defined is a creation of a fan basing his work/s from an original work. It appears that the original work influenced another person to be more creative and to make another work. Another person expresses himself through the said work, for instance in fan fiction. Many fans subscribe to a fan fiction site and make their own versions to express their thoughts on how they perceive the original story; the same with fan art, they get the idea from the original and they derive something out of it which is in line on how they want to express themselves. These things make people more creative and it becomes an outlet of their expression. And having said that, so long as the fan-created work does not violate the copyright law and is in line with fair use, any person can exercise his freedom of expression through these works. Fan art then can be considered as legal and not an infringement to someone else’s right.

Bottom Line

These fan creations may amount to an infringement of the copyright holder, so it is best to study the laws and rules of the sites on fan-created works. Everyone should be careful so as not to violate any law. Fan artists should not cross the line of the copyright holder. They should always claim that it is not an original work and make a disclaimer and caveat for the readers; and the safer thing is just make an original one.


References

  • The Messy World of Fan Art and Copyright, Written on May 13, 2010 by Jonathan Bailey
  • Fan Art
  • Intellectual Property Code of the Philippines (R.A. No.8293)
  • Philippine Constitution, Freedom of Expression

Everything for Free is Nice

Why download?

Downloading through the internet of songs, movies, programs, and the like is very rampant. Everyone does it. Why – because it is free and easily available, just a click away. You can instantly listen to a song through downloading it, without the hassle of going to a store and without the burden of taking out money from your pocket. In other words, nothing beats something which is for free.

However, there are issues which arise from the act of downloading which should be taken into consideration. Is the act of downloading legal? It it not a violation of the rights of the authors? Is it protected by our Constitution?

Legal or not?

For most of the people, especially Filipinos, downloading is legal and fine. Speaking in the context of the Philippines, we Filipinos love everything which is free, or if not free, something which is of lesser or cheaper price. For instance, the “art of piracy” of movies was discovered because the original ones are too expensive for a common Filipino.

Actually, no law has yet been passed as to the act of downloading. No law is in existence yet as to contemplate downloading and sites which cater it. And since there is no law yet, it is not yet punishable and illegal in the Philippines. However, there are many countries around the world that seeks to adopt a law or existing laws from other countries which seeks to punish the act of downloading. There are also countries which already have these kinds of law.

Feasibility of Applying These Laws in Philippine Context

The Philippine lawmakers are now in the verge of adopting laws which will protect the authors of original works and to ban and prohibit the act of downloading.

SOFA, PIPA, UK’s Digital Economy Act, HAPODI Law and New Zealand’s Three-strike rule are different laws from different countries which seek to accomplish one purpose: online piracy. These laws only differ only in its execution mechanism and penalties provided for but only seeks one purpose. The question now is: Is it feasible to adopt these laws in our country? Will it not violate the Constitutional mandate as to freedom of expression?

As to feasibility in the execution mechanism, it seems to be very tedious and impossible in the Philippines. The said laws provide for a certain body which should be the one to check if there are violators of the law. They created a mechanism which can track the users. Simply reading it, I must say that the mechanism is quite expensive. Being familiar with the Philippine system, we are left behind when it comes to technology and tracking devices. The thing is that there are many Filipinos who an afford to evade the law, who can escape from it and make the innocent ones suffer. I am not saying that it is absolutely impossible, neither that we don’t adopt any law which will protect the authors and to regulate the abuse as to piracy. What I am saying is that we can adopt these kind of laws but they should be worded and adjusted so as to fit the Philippine context – which means that it should be administratively feasible and fair. The mechanism should be less tedious and the law should be less strict.

The Copyright Law

Under R.A. 8293, there are limitations provided for as to the scope of the copyright protection. The Copyright Law provides that:

CHAPTER VIII.

LIMITATIONS ON COPYRIGHT

Section 184. Limitations on Copyright. – 184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:

(a) The recitation or performance of a work, once it has been lawfully made accessible to the public, if done privately and free of charge or if made strictly for a charitable or religious institution or society; (Sec. 10(1), P.D. No. 49)

(b) The making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned; (Sec. 11, third par., P.D. No. 49)

(c) The reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works of the same nature, which are delivered in public if such use is for information purposes and has not been expressly reserved: Provided, That the source is clearly indicated; (Sec. 11, P.D. No. 49)

(d) The reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose; (Sec. 12, P.D. No. 49)

(e) The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use: Provided, That the source and of the name of the author, if appearing in the work, are mentioned;

(f) The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: Provided, That such recording must be deleted within a reasonable period after they were first broadcast: Provided, further, That such recording may not be made from audiovisual works which are part of the general cinema repertoire of feature films except for brief excerpts of the work;

(g) The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;

(h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use;

(i) The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations; (n)

(j) Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that the original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and

(k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.

Furthermore, the Law provides that:

“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”.

The Law allows the use and production of the works provided it does not violate anything, that it is within the contemplation of fair use and it is used not for profit.

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.

Therefore, we can say that downloading can be legally possible provided that it adheres to the limitations provided for by the law. Moreover, I cannot imagine life without free downloading. If the government will seek to moderate it, they may do so provided there is balance – that the authors or the owners of the work are protected and the consumers at the same time. It should not be an absolute prohibition, but rather a moderate prohibition, wherein the mechanism of the said law will be favorable to both sides.

On The Brighter Side

We can say that downloading has also good effects. It promotes the work of people because in that way, many can appreciate it because it can be accessed for free. It may seem that because it can be availed of for free, the industry will have negative financial effects. The sale of the said original works will lessen because it can be already availed of for free. Yes, that is true! The thing now is that this scenario will lead the companies to lower the prices of their items, so as to encourage people to buy originals, in which case it will be favorable to both sides. It will cause a domino effect wherein the people will be encouraged to buy originals because the prices are now affordable.

Conclusion

Adopting the said laws will be very problematic. Just imagining that the free sites will be banned, I’m pretty sure that many people will protest. The fact will not be embraced by the public. There should be a better way as to reconcile this problem, so as not to violate any copyright law and at the same time allow the people to access freely this works. There should be balance on both, where there is a win-win situation for both sides. The law should be trimmed and penned so as to address the problem in the local context, which will be administratively feasible, cost effective and equal to all.

I am not saying that we should tolerate downloading, but to moderate it, were there are no copyright infringement and at the same time no violation of the freedom of expression. If there will be an absolute limitation as to downloading, the very essence of being a democratic country will be tainted. We should just seek a solution wherein everything is in moderation.


References

Advertisements
1 comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: