The evolution of music has been
as fast as the season designs of the fashion industry, evolving from the simple
vinyl records, into mini cassette tapes, to the late Y2K’s Compact Disk and now
to mp3 or m4gs that can easily be synced to iPods and any of the high tech
devices that supports the so called format. It is also the same as to any form
of art, to still movies and canvass painting to the now highly used IMAX and
CG-fied form of video and photo manipulation. The changes are so prominent. I
remember going to one of the attractions in the Universal Studios in Singapore,
where in there is a 25 minutes 4D movie. Creating new art has no limits. With
today’s technology and with the gadgets that have been invented, anything is
possible.
I am really fond of photographs.
Well basically, I am in love with photography. International photographers like
Annie Leibovitz, the duo of Markus Klinko and Indrani, Zhang Jigna are some of
the people that I look up to. Sandra Dans is a local photographer that I often
stalk... I mean her blog. Unlike the film cameras before, where you only have
one lens to cover most of your shoot (you go a few steps forward to zoom in,
and a few steps backward for a wide shot), most digital single lens camera
(DSLRs) are equipped with multiple lenses that can manage to get several shots
while standing on the same place. Of course, we already have the obvious
editing equipment such as Adobe Photoshop and Light room, to name some.
As the arts prosper, the author’s
rights are being in jeopardy as well. Many people are constantly being ripped
off of their works, ideas because of the different gadgets that we can use. An
example of this is one of photo manipulation. I remembered a blogger/musician a
few years back that has complained and was outraged when her photo was used by
an environmental group without her knowledge. Some of these issues are being
raised, and one even trended on some social networking sites. The allegation
that Lady Gaga has copied one of the songs of Madonna, Born this way ring any
bell?
In the Philippines, the Copyright
law is protected within the context of the Intellectual Property Code of the
Philippines, Republic Act 8293. Along with this are the provisions protecting
patent, trademarks and other forms of intellectual property. The law is partly
based on the United States Copyright Law and the principles of the Berne
Convention for the Protection of Literary and Artistic Works(1). The work, either literary or artistic
are protected from the moment of their creation, as provided in the
Intellectual Property Code, and is protected by the sole fact of their
creation, irrespective of their mode or form of expression as well as their
content, quality and purpose, as provided from Section 172.2.
One of the hottest topics today,
after the Amalayer incident and the highly hated law by the “netizens” R.A.
10175 is the new amendments being made on the Intellectual Property Code, IPC
for brevity. Senate Bill Number 2842, “An
Act Amending Certain Provisions of Republic Act 8293, otherwise known as “the
Intellectual Property Code of the Philippines”, and for other purposes”.
This law amends several parts of the IPC and has proposed additional provisions.
As I have mentioned above, the
copyright law of the Philippines is patterned to the United States of
Americas’. The US Copyright law is governed by the federal Copyright Act of
1976. Prior to the amendment of the Philippines’ own copyright law, the IPC
provides no Bureau on the Copyrights law. The IPC only provides one for
trademarks and patents. On the new amendment being proposed, the law creates a
new body that shall exclusively handle the registration and recording, as well
as the disputes in terms of copyright and copyright infringement.
One of the two principal
international conventions protecting copyright is the Berne Convention for the
Protection of Literary and Artistic Works. The treaty requires its signatories
to recognize the copyright works of authors from other signatory countries in
the same way as it recognizes the copyright of its own nationals (2). The other is the Universal Copyright
Convention, UCC for brevity, adopted at Geneva in 1952. The UCC was developed
by United Nations Educational, Scientific and Cultural Organization as an alternative
to the Berne Convention for those states which disagreed with the latter
convention’s aspect, but still wishes to participate in some form of multilateral
copyright protection(3).
Another convention recognized is
the Buenos Aires Convention, signed mostly by Northern and Southern American
countries, which allows for protection of all creative works as long as they
contain a notice informing that the creator claims copyright on it. The Buenos
Aires Convention also instituted the rule of the short term, where the length
of the copyright term of work in a country was whichever was shorter – the
length of the term in the source country, or the protecting country of the work(4).
The Constitution of the
Philippines has provided the basis of copyright as well as patent laws. The law
of the land provides that “the state shall protect and secure the exclusive
rights of scientist, inventors, artists, and other gifted citizens to their
intellectual property and creations, particularly when beneficial to the
people, for such period as may be provided by law(5).
The Civil code of the Philippines further provides that, by intellectual
persons, the following persons acquire ownership; the author; composer;
painter, sculptor, or other artist; scientist or technologist(6).
Now let us define what copyright
is. The IPC did not provide any particular definition on the code itself;
however, we can find several definitions of it thru jurisprudence. The
definition proposed by the World Intellectual Property Organization makes
explicit the following elements:
a. Copyright
has to do with the rights of intellectual creators, particularly those usually,
though not exclusively, connected with mass communication.
b.
It
is that system of legal protection an author enjoys of the form of expression
or ideas.
A
copyrightable work is created when two requirements are met: originality and
some form of expression. There is therefore creation when an idea is expressed
in some tangible medium, or is at least expressed in such a way that the
critical transition from bare idea or concept to “product” is in effect. That
there is protection even for that which is merely orally expressed is clear. An
impromptu speech is copyright protected(7).
I will give you one example as to
how this law is in effect. I have a friend who has turned into his hobby, photography
as his work. He always place watermark on his works after he edits them. This
is his way of copyrighting his works without even going into the bureau of
patents to have it copyrighted. As it was stated above, copyright attaches from
the inception of the work. Such as, when a composer creates a song, or when a
screenplay writer has made a new script, as the law provides on the IPC, the
copyright law is already in effect.
The terms of protection being
given to the works by the IPC are different. First is that of a known author.
The term of protection is that as long as the author lives, and fifty years
after his death. For example, if a certain Mr. E has created a book, twenty
years after, he died. The book is protected by the copyrights law from its
creation up to the death of the author, extending it to another fifty years. It
is the same as to a joint author. The economic rights shall be protected during
the life of the last surviving author and for 50 years after his death. As for
an anonymous author, the work shall be protected for 50 years from the date on
which the work was first lawfully published(8).
In comparison to the Singapore
Copyrights law, the period upon which the protection subsists during the life
of the author, same as the Philippines, however, the extension of the
protection upon the death of the author is 70 years. This pertains to any
literary, dramatic, or musical work, or in an artistic work other than a
photograph. As to the cases of sound recording and film, copyright subsist
until the expiry of the calendar year in which the recording or film was first published.
The duration of copyright protection for a broadcast and cable program is 50
years from the end of the calendar year in which the broadcast was made or the
program was first included in a cable program service. The duration of
copyright protection for a published edition of a work is 25 years from the
expiry of the calendar year in which the edition was first published(9).
Today, the Philippines is
undergoing another change, and one of them is the mentioned bill above.
Technically, it is a consolidated bill regarding several amendments of the IPC.
One of which is the introduction of another branch of the Intellectual Property
Office. From the current IPC, there are only seven branches as to the
Intellectual Property Office. As I studied the code, there is no official
bureau that will handle copyright cases. To this new proposed bill, the
introduction of the bureau of copyright, with it is a new Director for
Copyright, who has exclusive appellate jurisdiction. The proposed amendment
also includes agencies such as the Philippine National Police, National Bureau
of Investigation, Bureau of Customs, Optical Media Board, Local Government
Units, etc. The said agencies are given an authority to visit or search an
establishment within reasonable hour, if the said establishment is believed to
be on the business or in practice of activities that are in violation of the
intellectual property rights(10).
One highlight of this is that the
power given to the bureau of customs to search your iPads, Laptops, or Hard
Drives whenever you leave or enter the country. On this aspect, I will tell you
something about what my sister had told me. You see, my sister just came back
from the USA a couple of months back. When she left the country, my mother gave
her a new laptop. She told me that when she was leaving the US last November,
the bureau of customs on her departure state were inspecting said laptops and
gadgets, making sure that they are not violating copyright laws by storing
ripped off movies or series that may be distributed to another country. I think
that the congress of the Philippines is once again patterning the amendments to
the USA’s own copyrights law.
However, I ask this. Is it not in
violation of our right to privacy? Although it may be that the law to privacy
is not absolute, will this new amendment be in violation or not? Just imagine
being stopped at the airport because the custom officer has a suspicion that
you are in violation of the copyrights law.
Another amendment is that of
Section 171.9, wherein the definition of reproduction is altered into the
making of one or more copies, Temporary or Permanent, in whole or in part, of a
work or a sound recording in any manner or form without prejudice to the
provisions of Section 185. Again, I do not like this provision at all.
Let me share to you one of my
favourite sites on the World Wide Web. This is where my hobby on photography started
and where I met several of my artist friends.
DeviantArt commonly known as dA
is an online community wherein the members share and post most of their
artistic works either in poetry, digital art, traditional art or photography.
Most of the members are non professionals who are merely hobbyist. Some uses
the website as a stepping stone for their career.
(A screen-capture of the site |
www.deviantart.com)
One of the functions of the site
is that you can freely download the art, even without the author’s permit. It
also happens that I am very fond searching new wallpapers for my laptop screen
and my phone. So whenever I feel like changing the theme of my phone or any of
my gadgets for that matter, I download from this website. Technically I would
not violate any law if I ask the artist if I could use his art to be my new
wallpaper right. But if I chose to place it on my other device, would I now
violate the proposed amend law?
Let me give you another scenario.
I usually buy my music thru iTunes. As soon as I download the file, it will be
placed on my hard-drive. Supposing that my hard drive does not have enough
capacity, and then I transferred my downloaded music to a blank CD, does this
mean I am in violation of copyright infringement, based on the proposed amended
provision. Or in a case wherein my sister, who purchased an e-book on an online
store, and decided that she wants it to be placed both on her Smartphone and
her Tablet, would that be in violation of the proposed amendment? Again, I will
reiterate the provision given; it is the making of one or more copies,
TEMPORARY or PERMANENT, IN WHOLE OR IN PART xxx
Another amendment proposed by the
said bill is that of the entire removal of Sections 190.1 and 190.2, which
pertains to the importation of artistic works for personal use. Now this
amendment is the hottest bacon in the pan. One of the reasons as to why I am
aware of this amendment, besides our professor talking about it in the class is
that, it was spread out to the social networks. A couple of weeks back, my
Facebook timeline was flooded with violent reactions and “share” of an article
from Interaksyon.com. As I read about the news, I find that the provisions
being amended are highly disadvantageous to the students.
I was once a college student a
few years back, but not that long ago. Of course, every fourth year has to make
their own thesis before they graduate. My course was not as popular as some wherein
the amount of materials for research is at the library and majority of the
books and additional literatures that I needed are only available on another
country, I of course had to ask my grandmother to bring the books as soon as
she comes back to the country. If the amendments were passed at that time, then
I would definitely go insane. Am I correct in interpreting that the new
amendment has removed the privilege of a person to import literatures and
materials that may be beneficial to them?
Let me remove ourselves in the
context of being students and just focus on being private individuals who just
happens to be going on a trip with our family on let’s say Malaysia. In Kuala
Lumpur, there is one big bookstore, if I remembered it correctly; the name of
the bookstore is Kinokuniya, a Japanese branch of bookstores. And it just so
happens that the new release of the manga you were looking for is already
available at said bookstore when you visited it, or a book that you have been
waiting for to be released in the Philippines is already available at said
branch. If the amendments were approve, and the entirety of Sec. 190.1 and
190.2 were indeed removed, you cannot go back to the Philippines with the books
that you have purchased in Malaysia since you would commit copyright
infringement according to the Philippine Laws. Even the new albums of famous
artist that you purchased from the US when you visited you Uncles or Aunts for
summer would be prohibited.
Of course, the reason of the
authors of the said bill is to lessen the people who often commit copyright
infringement or piracy. Though, I think that this steps are too much in a sense
that it is highly restricting, and of course as a consumer and appreciator of
the arts, my rights are now lessen if not diminished at all.
I found an article, which I will
quote. This is the reply of the IPOPH on the proposed amendment. They say that
the amendment will give better access to copyrighted works from abroad. And now
I think, I thought that you are completely removing Section 190.1 and 190.2 of
the IPC?
Clearing this up, the IPOPH claims
that under the IP Code amendments, Filipinos returning from abroad can bring in
more than three copies of legitimate copyrighted works. Quoting directly from
the article, “Contrary to Ms. Robles’
insinuations that OFWs can no longer bring home copyrighted works, they can in
fact bring home more copies for personal use that fall under the fair use
exceptions. The deletion of Sections 190.1 and 190.2 in fact allows for religious,
charitable, or educational institutions to import more copies, for as long as
they are not infringing or pirated copies, so that more Filipino students in
the country may use such works. Moreover, the IPOPHL has a very good working
relationship with the Bureau of Customs; hence, there can be no
misinterpretation of the real intention of the amendment in the Rules to be
drafted by the Commissioner of Customs.”(11)
As of the
present, the bill that has been pending has been signed already by the current
president. The report further revealed that
"the amended IP Code will give IPOPHL law enforcement powers" because
"prior to the amendment, only enforcement agencies belonging to the
National Committee on Intellectual Property Rights (NCIPR)—the Bureau of
Customs, National Bureau of Investigation, Optical Media Board and Philippine
National Police—could catch counterfeiters." The report also noted that
"RA 10372 will take effect 15 days after its publication in at least two
newspapers of general circulation."(12)
The new law may be in favour of
the copyright holder. They are well protected against piracy and copyright
infringement, and it would be safe to say that the pirated DVDs or illegal
downloads may be reduced. The copyright owners’ royalties or profits will be
better that that when their music or art is being ripped off. Many may not
realize, especially the younger ones that whenever they illegally download
music, the producers, composers or even the artists are being robbed of their
right to gain from their works. So yes, analyzing the amendments may, there are
several perks in it. Considering the direction of the Philippines as to
Copyright reform, the strict imposition of the law may indeed help contain
piracy.
Though, on the other hand, the rights
of the consumers who are enjoying the works the authors have made would be restricted
and may even be removed.
References:
(1)
Copyright
Law of the Philippines | http://en.wikipedia.org/wiki/Copyright_law_of_the_Philippines
(2)
Berne
Convention – http://en.wikepedia.org
(3)
Universal
Copyright Convention – http://en.wikepedia.org
(4)
Buenos
Aires Convention – http://en.wikepedia.org
(5)
1987
Philippine Constitution
(6)
The
New Civil Code of the Philippines
(7)
Intellectual
Property Law; Comments and Annotations | Fr. Ranhilio Callangan Aquino
(8)
Commercial
Law of the Philippines: Volume 1; 2009 Edition; Intellectual Property Code of
the Philippines
(9)
Intellectual
property Law – Singapore | www.singaporelaw.sg/content/iplaw2.html#section1
(10)
Senate
Bill No. 2487 | http://www.senate.gov.ph/lisdata/101108699!.pdf
(11)
IPOPH: IP code amendment gives Filipinos better
access to copyrighted works from abroad | http://www.abs-cbnnews.com/focus/02/15/13/ipoph-ip-code-amendment-gives-filipinos-better-access-copyrighted-works-abroad
(12)
P-Noy greenlights
Intellectual Property Code amendments; Critics slam him for backing
"oppressive" rules | http://www.spot.ph/the-feed/53021/p-noy-greenlights-intellectual-property-code-amendments-critics-slam-him-for-backing-oppressive-rules/
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