SY 2012-2013, First Semester
- Data Privacy Act of 2011
- The Legality of Fan Art in the Philippines
- Whether the Act of Downloading Copyrighted Works, Shared by Others Who are not Copyright of such Works, is an Act of Copyright Infringment on the Part of the Downloader”
- Whether Such Act of Downloading is Infringement or not, Should Laws Similar to the US Proposed Legislation “SOPA/PIPA,” UK’s “Digital Economy Act of 2010,” France’s “HAPODI Law,” and New Zealand’s “Three-Strike” Rule be Passed in the Philippines and Should the Philippine Government Enter and Ratify the “ACTA” Treaty, to Remedy Online Piracy
- Will such Legislation and Treaty Adherence, if Pursued, Be Violative of Constitutional Rights on Free Expression and Privacy?
Data Privacy Act of 2011 pertains to establishing fair practices and regulate the collection or gathering and use of personal details or information stored in the computer systems of both the government and private sector. These entities are mandated to protect the integrity, security and confidentiality of such personal records. The act is telling us to be accountable for such gathering information where every data controller is responsible to comply with the proposed Act and also be accountable for the action or inaction of the data processor. Each data controller is required to designate an individual that will be responsible to ensure compliance.
As to the scope of the Act, it covers all entities and individuals involved in the gathering and processing of all types of personal information and sets stringent standards for, and controls on, the lawful manner of selecting, processing and retrieval of personal information.
All the personal information classified as confidential or considered to be information imbued with public interest maintained by the government shall be secured using the most suited standards recognized by the ICT industry and as recommended by the Commission of Information Communications Technology (CICT). With this, it will prevent the misuse of personal information in computer systems.
The proposed law provide for several rights to the individual such as right to be informed whether an individual’s data is being processed, to have access to personal data and to correct. Also, the person has the right to the data subject to suspend, block, remove or destruct personal information from the data controller’s filing system if the information is incomplete, outdated false, unlawfully obtained, used for unauthorized purposes or direct marketing. Moreover, it gives right to the data subject to be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.
Through this Act of having an environment protective of its data and information, we can be successful in data processing like that of the call centers. We can go into higher value-added IT services like engineering, finance, accounting, healthcare and the like.
According to Benedict Hernandez, BPAP president and chief executive, “the act will increase confidence among international investors and companies that outsource business processes to the Philippines because it brings the Philippines to international standards of privacy protection.” He also added that IT-BPO industry is evolving rapidly with the increasing amount of work undertaken in the country involving non-voice and complex services, in a wide range of functional areas and industry verticals. He further uttered that “complex services already account for over 30% of industry revenues, and these services are growing more rapidly than voice services. Much of this work involves confidential personal and company information, and client firms of our IT-BPOs want to know that the Philippines provides international standards of protection to safeguard their information.”
It is also worth noting of the comment of Senator Edgardo J. Angara which he said that the Data Privacy Act will not be used to stifle press freedom, following reports showing that a clause in said measure will penalize journalists and media professionals involved in breaches of confidentiality. This is in relation to the Philippine Press Institute which protested that Section 30 of the Data Privacy Act, during the bicameral review, that implies such as to extend the liability to reporters, writers, presidents, publishers, managers and editors-in-chief involved in the unauthorized publishing of sensitive personal information.
According to Senator Angara, “It was not our intention to penalize the media for doing their job of responsible reporting,” as the Chair of the Senate Committee on Science and Technology. He added that “Only those whose actions were directly behind the release of private information will be held accountable. For example, a private individual was hospitalized and that person’s medical records were made public without his consent. In this case, the hospital or the records custodian will be sanctioned, not the journalist who wrote about it.” The Data Privacy Act will not be used to gag media, and we will rectify this provision during the bicameral hearing.
The main objective of the proposed measure is to promote confidence in the country’s booming Information Technology and Business Process Outsourcing (IT-BPO) industry and its growing e-governance initiatives by mandating public and private institutions to safeguard the integrity, security and confidentiality of personal information collected throughout their operations. This act would be very beneficial to all of as, especially to the community, for it give us assurance as to the privacy of our personal facts. This would be a big step towards eliminating illegal access to private personal facts, information illegally obtained or used for unauthorized purposes. Before the introduction of this act, we were helpless for there is no remedy given to us for such unlawful acts. With the passage of Data Protection Act, it would really have a positive outcome to the community (private or government) in many and countless ways.
The legality of “fan art” in the Philippines is based on the premise that amateur artists, who are not earning profits from their fan creations, create fan labor artworks without intention of committing copyright infringement. A brief explanation would perhaps give us more insights about “fan art” and its effect on the rights of the person/s or owner/s protected under the Intellectual Property Law of the Philippines.
Fan art is defined as an artwork based on a character, costume, collage, item, or story created by someone other than the artist or owner of the intellectual property rights in the original work or a permitted licensee, such as a fan, from which the word is derived from. The term “fan art” is used to refer to art taken from visual media like comics, movies or video games. Also, fan artists may also create web banners, avatars, or web-based animations, other than photo collages, posters, and artistic representation of movie or show or book quotes on traditional paintings and drawings.
Fan art creator, according to some articles, must release the fan art under a free license that allows commercial use provided that such does not infringe any copyrights of the owner’s right. However, in practice, it is often difficult to tell whether the fan art is an independent work which merely shares with the original work of fiction some basic non-copyrightable aspects or features or has been made by copying.
Intellectual Property Law, especially Copyright Law, protects the original and creative works of an author like books, manuscripts, music, film and video productions, computer code and works of art such as paintings and photos. Authors of said works have exclusive rights to do the following with their work: (a) Reproduce the work; (b) Distribute copies of the work to the public; (c) Perform the work publicly; (d) Display the copyrighted work publicly; and (e) Prepare derivative works based upon the work.
A derivative work is defined as a new, original product that includes aspects of a pre-existing or has been already copyrighted work. This is also known as a “new version”. It includes musical arrangements, motion pictures, art reproductions, sound recordings or translations, dramatizations and fictionalizations. In order for a derivative work to receive its own copyright, it must be different enough from the original to qualify as a new piece of work. Making minor changes to an original and copyrighted work does not constitute a new derivative work under copyright law.
Under the law, it is said that only copyright owners have the exclusive right to produce derivative works based on their original and copyrighted works. Copyright on original works of authorship is automatic and registration while it does carry significant benefits, like the right to sue for infringement is not required for a work to be protected because protection attaches immediately when the work is completed. An exception would be when a copyright owner grants permission to someone else to make a derivative work based on his or her original, hence such creation of the derivative work cannot be considered as infringement. But if the original is from an author and no permission was given to use the original from its creator, then it would amount to infringement of an author’s copyright. An exception to exception would be the doctrine of “fair use”. This is a defense available to someone who uses another’s work without permission from the author in the creation of the latter.
There are factors that courts usually weigh when a defendant accused of infringement claims the “fair use” defense, and this four-factor balancing test leads to subjective, unpredictable results.
The copyright on a derivative work covers only new material, appearing for the first time in the derivative work; it does not cover any pre-existing material from the original. Meaning, if you have a license on the work from its author, you can make a derivative work based on the original but shall not obtain the copyright on the original. The owner retains all rights to the original and all its elements. Another scenario would be when the copyright on the original is not extended by the creation of the derivative work. If an author makes a derivative of his own work, then his copyright will not change regardless. But if a second author makes a derivative work of the first author’s original, the copyright on the elements of the original is measured by the life of the original’s author cannot be considered as derivative works. While, for example, an entire blog would be dedicated to fan creations, it is equally important to take a brief look at the issue of copyright infringement.
According to the 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. Hence, fair use may protect some fan creations from being an infringement, but it will be a case-to-case basis.
It is also worth noting that fan fiction and fan art can be a trademark violation as well, especially if it uses names and titles in a way that causes confusion as to whether they are official. Trademark disputes over fan creations are unusual, but still possible.
Cases filed before the court involving copyright infringement of fan fiction and fan art issue are very seldom in our jurisdiction. It is strange considering that many of the rights holders who are the most common target of fan creations are also among those most aggressive at stopping other infringement of their work.
On the viewpoint of a copyright holder, fan fiction and art is usually not damaging. Fans create works that are openly recognized to be non-canon to the story and are not replacements for the original. Since fan creations don’t take away sales of the original work, they are often seen as free promotion and a way to grow the brand without cost or effort.
Another concern or issue, however, is the cost of going to war with fans. Being litigious with creators of fan art can be costly, not only in terms of court costs, but in terms of backlash. No creator wants to sue their fans, especially when the fans aren’t earning revenue, and as such most creators will tolerate fan fiction and art under most circumstances.
In observing the symbiotic relationship of fans and creator, the community works to ensure they don’t hurt the original creator’s ability to profit from the work and the creator tolerates what is technically a copyright infringement in many cases. Everyone seems to be happy though, on rare occasions, the system can break down.
The key point to remember is this: 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.
However, many copyright holders, for good reasons, tolerate fan art and even encourage it, but this should not be taken as blank cheque to do what you want with the source material. There are many lines that a fan artist can cross and wind up in legal trouble.
The best thing to do is to study the rules providing for the rights of a copyright owner or creator and to know the extent of such actions so as not to create any violations which may result in copyright infringement or violation of any provisions of the intellectually property law.
The purpose of Copyright Law is to create software, music, literature and other works, using digital technologies, by ensuring that the creator will be able to reap the financial benefits of the work. The Law on Copyright gives the owner or author exclusive rights to reproduce, adapt, publicly distribute, perform and display their works. However, an exception under the law would arise if such copyrighted materials were acquired through the concept of “fair use”. Fair use, in some instances, permits the use or copying of all or a portion of a copyrighted work without the permission of the owner. Nowadays, the use of digital technologies by some persons, intentionally or fair use, whether for profit or not, to perfectly copy the works of others and made available to others for distribution and consumption are presumed to be in violation of copyright infringement unless otherwise substantiated by reasonable and conclusive evidences. This makes it easier for people to create and get copies of songs or videogames, and more difficult for copyright holders, like record companies, to control the works once they are released to the public. This new technologies has changed the way content distributors relate with their customers and law and business models are just trying to catch up.
A person who is a downloader, generally, is infringing copyright if he or she downloaded or stored copyrighted materials on his or her computer shared by others who are not copyright owners of such work if such is without the permission of the copyright owner, unless fair use or other exemption under copyright law applies. In other words, the intent of the user or downloader is necessary to constitute copyright infringement. A person who downloads files for personal use is not in violation of the law. Most of the downloading over the Internet that are commercially available copyrighted works, like music or movies, through file sharing systems is illegal. An example would be the case of Napster where its users were adjudged to be infringing copyright when they shared MP3 files of copyrighted music. Even if you don’t illegally offer recordings to others, you join a file-sharing network and download unauthorized copies of all the copyrighted music you want for free from the computers of other network members would also result to copyright infringement. Also, in order to gain access to copyrighted music on the computers of other network members, you pay a fee to join a file-sharing network that isn’t authorized to distribute or make copies of copyrighted music. Then you download unauthorized copies of all the music you want. The law on copyright gives the holder a limited right on reproduction, distribution, and display of such work. Such copyright infringement would not set in if such is only for personal use. If a person bought a fake dvd copy for the purpose of watching a movie or for personal use, he may not be liable for copyright infringement. However, if such person reproduced the copy of the movie for profit or gain, then he becomes liable for copyright infringement.
In contrast, if a person has purchased licensed software, like Microsoft Office, it is legal to keep a copy on his or her computer. Also, if a person downloads music or other copyrighted material in accordance with the terms of a license, or if the copyright owner grants him or her permission to download or keep a copy of the owner’s work, such persons are free to do so. According to some articles, it is okay to download music from sites authorized by the owners of the copyrighted music, whether or not such sites charge a fee. There are sites where permission is granted and content is available for downloading legally. It is never okay to download unauthorized music from pirate sites (web or FTP) or peer-to-peer systems. An examples of peer-to-peer systems making unauthorized music available for download would be Ares, BitTorrent, Gnutella, Limewire, and Morpheus. It is worth knowing that it is never okay to make unauthorized copies of music available to others via uploading music on peer-to-peer systems.
WHETHER SUCH ACT OF DOWNLOADING IS INFRINGEMENT OR NOT, SHOULD LAWS SIMILAR TO THE US PROPSED LEGISLATION “SOPA/PIPA,” UK’s ‘DIGITAL ECONOMY ACT OF 2010,” FRANCE’s “HAPODI LAW,’ and NEW ZEALAND’s “THREE-STRIKE” RULE BE PASSED IN THE PHILIPPINES AND SHOULD THE PHILIPPINE GOVERNMENT ENTER AND RATIFY THE “ACTA” TREATY, TO REMEDY ONLINE PIRACY.
“Piracy” in the Philippines is used interchangeably with “copyright infringement” which is the unlawful copying of software, videogames, movies or MP3s. Due to serious, rampant and contagious problem emanating from online piracy in the Philippines, the Philippine government is inclined to form a bill similar to that of SOPA or PIPA which aims to help protect copyright owners from having their content pirated by others, either as a hobby or for profit. The materials or files involved are usually movies, music, software, photos and other IP-protected content. Normally, it is the record labels and the movie producers are the ones heavily affected by the online piracy.
Aside from the Business Software Alliance which deals with the surveillance among areas prone to software piracy and the Optical Media Board or OMB which raids shops and stalls selling fake cds and dvds, this Anti-Online proposal bill will urge people to combat along with the coordination of concerned sites and internet service providers against the escalating online piracy. The proposal is still a proposal and most likely be patterned to the abovementioned SOPA and PIPA of the US Congress with more adjustments acclimated to local settings.
With the approval of such bill, it may or may not include any or all of the following provisions and penalties concerning shutting down local websites illegally distributing pirated software and applications; closing down of local sites that provide downloads of unlicensed songs or movies; blocking off international sites that are known to openly assist in illegally distributing copyrighted materials; imposing penalties on local websites that uses copyrighted materials without proper consent or attribution; and imposing penalties on individuals or groups that openly share or distribute copyrighted content.
The positive effect of it could help online publishers and bloggers in many ways. Blogger can simply have another website or blog shut down for illegally copying their articles, photos and videos. Furthermore, a blogger can now claim damages against news portals illegally lifting their copyrighted videos and photos. Also, bloggers can report sites that scrape their RSS feeds and have local ISPs block these sites. Likewise, web designers can run after 3rd parties that copy their designs, logos and artworks and implements it on their own website or sell them to others.
Bloggers frequently asked questions redound to how they can protect their content from being used by others without their consent. According to some articles, it can be remedied by enabling a number of technical safeguards like “prevent hotlinking, watermarking, reporting to Google AdSense, filing DMCA complaints”.
Having this proposal enacted into a bill will provide a lot of benefits to bloggers, website owners, independent artists and web designers. On the other hand, this could be the end to a lot of local sites likes sites that offer video streaming TV shows and dramas like telenovelas and news, blogs that offer downloads to cracks and hacks the software, forums that provide ways for users to share copyrighted files or materials such as songs, mobile applications and the like.
It is but right and in tune with the present scenario to create a bill which would somehow lessen or totally eradicate online piracy without prejudice to local sites. This is based on the premise that those who are involved with such illegal acts know for a fact and from the start that what they are doing are, by nature, illegal hence cannot be permitted nor consented to favor a class or sector of society when such acts resulted to a violation of one’s legal right protected under the law.
No, such legislation and treaty adherence will not be violative of constitutional rights on free expression and privacy. The passing of such bill into law is presumed to be in accordance with our constitution. Under the 1987 Constitution of the Philippines, Article III of Bill of Rights, Section 2 “The right of the people to be secure in their persons, houses, papers, and effect against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complaint and the witnesses he may produce, and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.” In this article, a person is protected from such unreasonable searches and seizures from any person even from the government if there is no right violated or illegal act done. This provision is applicable in cases where a person, by committing such acts or omissions, violated the rights of the others and such action by the government is done in due process. Hence, the creation of anti-piracy bill will not violate one’s right to privacy for a person is freely given the security from encroachment as long as his acts are done legally. If not, then he can be subjected to such consequences of his illegal acts.
Section 4 of the same article “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 grievance.” This is not an absolute right for one’s act can be an exercise of his right but can be a violation to another. Hence, even if a person is validly exercising his lawful right to freedom of expression like that of copying and making on-line piracy but violates the rights of the owner, he is in violation of such articles.
Hence, the creation of such bill would not result to violation of expression and piracy for such bill only fortifies one’s right to that violators who circumvent laws just to pave their way through its malicious motive of gaining only for themselves.