Friday, 8 March 2013

Copyright Law; Amended


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/



Friday, 11 January 2013

10175 vs 3327


After the holiday break and gaining so much weight I might add, I come back with something new and something old. Before the break starts, a very controversial law was passed, gaining the whole nation’s interest, most if not all affected are the people who often use the internet, the so called “netizens”. And I admit, I am one of those ‘netizens’ that appealed before even reading the law itself since people are buzzing about it. I only read it thoroughly when my brother asked me to for his assignment. Yeah, shame on me for reacting first before reading the whole law.

Since we are currently on the era where the power of internet is immeasurable and most social networks are used not only to connect with other people but scream opinions on certain topics, either in a negative or a positive way, having these laws acts as buffers or reservoirs of the post being made, or so they say. I suddenly remembered one of the most controversial videos before, when YouTube was a bit new.  Way back in 2007, Chris Crocker, a fan of Britney Spears, posted a video on said site which garnered, as the last time I checked, over 45 Million views. From that video, several responses are made, such as parodies.

After that video, several other videos and scandals came and become the hype, or rated to be the most viewed videos. The most recent is the video that trended on twitter, the video of a female public transportation passenger, now dubbed to be “Amalayer”. Now I checked on my Facebook page, and I see the new video of a professor hitting his students, or something akin to having a nervous breakdown. Such power the internet has. Just a click of the mouse or a touch of a finger added by a simple hashtag and you can spread rumours like a wild fire.

R.A. 10175 - AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES or commonly known as the Cybercrime law became one of the most controversial topic on the latter part of 2012. It was passed and signed last September 2012, divided into thirty-one sections with eight chapters, which criminalized several offenses, such as illegal access or commonly known as hacking, data interference, device misuse, cybersquatting, computer fraud, cybersex and spam. It also includes laws against child pornography and libel.  Its provisions apply to all Filipino nationals regardless of the place of commission. Jurisdiction also lies when a punishable act is either committed within the Philippines, whether the erring device is wholly or partly situated in the Philippines, or whether damage was done to any natural or juridical person who at the time of commission was within the Philippines. Regional Trial Courts shall have jurisdiction over cases involving violations of the Act(1).

As I have said, this law became quite controversial on most social networks, gaining so much response, either positively or negatively. Several petitions were filed to the Supreme Court, however, the Supreme Court at first deferred on acting on the petitions making the law effective for a week(2). There was a mass protest made on several social networks which made the Supreme Court issue a temporary restraining order on the law for 120 days(3).

While R.A. 10175 is serving its 120 days TRO, Senator Mirriam Defensor-Santiago has authored and filed a bill known as Bill No. 3327 – MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM that would repeal R.A. 10175. It is said that this bill will provide penalties and prohibited acts while including the rights and the protection of the internet users (4). Majority claims that the law passed, RA 10175, restrains freedom of expression and freedom of speech as defined by the 1987 constitution.

Let me relate my opinion in several provisions of RA 10175 before comparing it to the bill being passed to the Philippine Congress.

I – R.A. 10175 | CYBERCRIME LAW

(a)   Libel

The Cybercrime Law of the Philippines, as I have stated above is divided into 31 sections with 8 chapters, discussing different offenses, one being Libel.

The Revised Penal Code of the Philippines defined libel as public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonour, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead(5). It happened to be the provision of RA 10175 that made several negative reactions, coming from different sectors especially the Media and several legal institutions.

According to said law, the prohibited act is that of Libel committed through computer system or any other similar means which may be devised in the future(6). Most often use the internet to vent out their opinions and frustrations. Some therapist suggest that their patients blog every day, using it as a diary of their life. I often check some of my favourite bloggers posts of their everyday life, or their opinions in fashion. And clearly remember one of the bloggers from Singapore, who has been a victim of a so called “internet bullying” or others called it as “internet bashing”. It also happened to our very own Filipino bloggers, several comments may be viewed as defamation or even libel, but since, it is the internet, the so called bashers are often quoting their constitutional right to freedom of expression. Not only have that readers committed that offense but bloggers as well, although they often made a cry for their freedom of expression as well.

The section regarding libel serves as filter for that online bashing and several libellous articles on the internet, however, the scope indicated on the said law is too broad that it is already crossing the line of limiting several constitutional rights.

(b)   Child Pornography

The Cybercrime Law defines Child Pornography in connection with another law, RA 9775 known as the Anti-Child Pornography act of 2009.

RA 9975 enumerated several unlawful/prohibited acts which would be constituted as a violation of said act, such as (a) the employment or persuasion or coercion of a child to create or produce any kind of child pornography (b) production of child pornography (c) Publication or Selling of Child Pornography (d) Possession of any form of Child Pornography with the intent to sell or reproduction or publishing it, etc. (7).

The only difference on of RA 10175 and 9775 is that on the new law of Cybercrime, the degree of penalty is one degree higher when the offense is committed with the use of a computer. This fact confused me because the scope of the anti-child pornography act also taps into the use of the internet on the commission of the offense. So if an offense is committed, which penalty would be followed on to whose jurisdiction will it fall?

(c)    Cyber-squatting vis a vis Computer related Identity Theft

Defined to be the acquisition of a domain name in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same. It may be made by making an identical or similar to existing trademark registered or registering the domain with an identical name (8).

Computer-related Identity Theft as defined by the law is the intentional acquisition, use or misuse of the personal information identity of another whether natural or juridical (9).

I often see this thing, especially on e-mails claiming that so called “You have won ___, to claim your price, click on the link” which happens to be either a virus or a scam to get your email address and password or any personal information that your account has. The person who acquired the data can access your email and may even use your email to continue their scam.

Several other personalities have this problem as well. Like I said, I am fond of reading blogs and I sometimes look at their twitter, and it often confuses me because whenever I searched for their name, for example, in twitter, there are five to ten people who appear with the same name and same profile pictures. This is what I like about the new law, is that even though in the internet, people are protected from identity theft.

II – Bill 3327 | MAGNA CARTA FOR PHILIPPINE INTERNET FREEDOM

The bill being passed, in my opinion is a much clearer version of RA 10175. The bill identifies not only the rights of the internet user but specifies the offenses that a “netizen” may commit. Let me give my opinion to several provisions of the bill.

(a)   Hacking

Hacking is defined by Section 27 of said bill to be an unlawful for  any unauthorized person to intentionally access or to  provide  a third  party with access to,  or to  hack or aid or abet a third party to  hack into  data,  networks,  storage  media  where  data  is  stored,  equipment  through  which  networks  are  run  or maintained, the physical plant where the data or network equipment is housed. The unauthorized access  or unauthorized  act  of providing  a third  party with  access to,  or  the  hacking  into,  data,  networks,  storage  media  where  data  is  stored,  equipment  through  which networks  are  run  or  maintained, the physical plant where the data or network equipment is housed shall be presumed  to be malicious(10).

We often see hacking incidents on the movies. There is this American show that I often watch, where in they have a female technical analyst that can hack a computer and track as to where the network was pinged. I even catch an episode where it was pinged from China to Europe before going to the States. And yes, it does happen in real life as well.

Hacking is one of the threats, which may result to identity theft or even result into war. I remembered bumping on to news where in the Pentagon was hacked. Secured data may be used or sell to different parties that are interested. Personally, this is one of the internet offenses that I am afraid of since, if a person hacks your account, they can use it to extort money from your contacts.

(b)   Copyright Infringement

Copyright Infringement is the unlawful publication of a work either in part or in full any content that he does not have any economic right over. It is often related to plagiarism (11). It may be a photo or any form of writing that was made originally. I see several photos on the internet, especially on a website called deviantArt, and most of the photos posted by the deviantartist relay their sources, as to who originally photographed the art or as to who the inspiration for the particular work. I often see on the description a disclaimer or the words “based on...”. For further comparison and just for the discussion’s sake, I’ll use the case of Sen. Tito Sotto for this particular section.

Several photos of the speech made by Sen. Sotto became the topic of my news feed a couple of months back on my facebook account. It is said that said speech is the Tagalog version of the late President Kennedy’s speech and that it was copied on several blogs. Accusations flew and claims are been made, but my use of this as an example is that, we often use several quotations to our posts on the internet, and we often fail to use citations. On the case of Sen. Sotto, the speech was posted on the internet without citations.


(12)

(c)    Piracy

Another section of the new bill pertains to Privacy. Yes, we already have the Anti-Cam cording Law, but the provision on the said bill extends into internet piracy. Download websites, torrents and such who distribute movies or music without the consent of the owners of said mediums. Defining piracy refers to the unauthorized copying, distribution and selling of works in copyright (13).

The offense is very rampant on the internet since not everybody is willing to pay on iTunes for music and movies. In comparison to the previous law, the limitation and definition of the offense regarding on piracy within the context of the bill is much better.

(d)   Internet Libel, Hate Speech, Child Pornography and Other expressions
Section 33 of the new bill discusses extensively the provisions regarding internet libel, hate speech, child pornography etc. As I have previously discussed, most bloggers and celebrities experiences the hate speeches. I can often see it on twitter and sometimes they even blog about it. Some video posted on the internet often have hate speeches or hate comments.

I will focus on the hate speech provision on this part since this is one of the most suiting on most can relate to this.

Hate Speech defined by the law is a public and  malicious  expression calling  for  the  commission  of illegal  acts  on  an  entire  class  of persons,  a  reasonably  broad section  thereof,  or  a  person  belonging  to  such  a  class,  based  on  gender,  sexual  orientation, religious  belief  or  affiliation,  political  belief  or  affiliation,  ethnic  or  regional  affiliation, citizenship, or nationality, made on the Internet or on public networks (14).

I often see this on one of the YouTube superstars, like Ms. Michelle Phan who posts video tutorials on the said site. I can often see, while checking her videos some hate speech. Within the Philippines, I see this on as I have said bloggers and other celebrities. There are forum sites where some who we call “haters” of a particular person create speeches, sometimes vulgar and often delivered in a very bad way.

Hate Speech is not limited to comments or tweets but also to videos posted or linked containing such offense.

Final Thoughts:
In sum, I can say that the new bill is better than R.A. 10175. The MCFPIF bill discusses extensively the offense as well as giving better rights to internet users. R.A. 10175 is over broad, on its less than ten page discussion of the law, however, Bill 3327 may be long, and yes, I tried to finish everything but it was really long, however, it was meticulously created so that not only the internet users have their right but their obligation on not overusing the power of the internet is limited, and subject to punishment if they have committed such offense.

References:
(1)   – Cybercrime Prevention Act of 2012 | http://en.wikipedia.org/wiki/Cybercrime_Prevention_Act_of_2012
(2)   -  SC Defers action on petitions vs Cybercrime Law |
(3)   – SC Issues TRO vs Cyberlaw | http://newsinfo.inquirer.net/285848/sc-stops-cyber-law
(4)   – Santiago Proposes Magna Carta for Internet | http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet
(5)   – Chan Robles – Revised Penal Code : Article 353 Definition of Libel |  http://www.chanrobles.com/revisedpenalcodeofthephilippinesbook2.htm#.UO_XueRwofU

            Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead

(6)   – Official Gazette – R.A. 10175 : Chapter 2 Section 4 | http://www.gov.ph/2012/09/12/republic-act-no-10175/

            (4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

(7)   – Lawphil.net – RA 9775 : Section 4 | http://www.lawphil.net/statutes/repacts/ra2009/ra_9775_2009.html
            Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person:
            (a) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or      production of any form of child pornography;
            (b) To produce, direct, manufacture or create any form of child pornography;
            (c) To publish offer, transmit, sell, distribute, broadcast, advertise, promote, export or           import any form of child pornography;
            (d) To possess any form of child pornography with the intent to sell, distribute, publish,       or broadcast: Provided. That possession of three (3) or more articles of child pornography        of the same form shall be prima facie evidence of the intent to sell, distribute, publish or          broadcast;
            (e) To knowingly, willfully and intentionally provide a venue for the commission of             prohibited acts as, but not limited to, dens, private rooms, cubicles, cinemas, houses or in          establishments purporting to be a legitimate business;
            (f) For film distributors, theaters and telecommunication companies, by themselves or in      cooperation with other entities, to distribute any form of child pornography;
            (g) For a parent, legal guardian or person having custody or control of a child to        knowingly permit the child to engage, participate or assist in any form of child pornography;
            (h) To engage in the luring or grooming of a child;
            (i) To engage in pandering of any form of child pornography;
            (j) To willfully access any form of child pornography;
            (k) To conspire to commit any of the prohibited acts stated in this section. Conspiracy to      commit any form of child pornography shall be committed when two (2) or more persons            come to an agreement concerning the commission of any of the said prohibited acts and      decide to commit it; and
            (l) To possess any form of child pornography.

(8)   – Lawphil.net – RA 9775 : Section 6 | http://www.lawphil.net/statutes/repacts/ra2009/ra_9775_2009.html
            (6) Cyber-squatting. – The acquisition of a domain name over the internet in bad faith          to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is:
            (i) Similar, identical, or confusingly similar to an existing trademark registered with   the appropriate government agency at the time of the domain name registration:
            (ii) Identical or in any way similar with the name of a person other than the registrant,           in case of a personal name; and
            (iii) Acquired without right or with intellectual property interests in it.

(9)   – Lawphil.net – RA 9775 : Section 3 | http://www.lawphil.net/statutes/repacts/ra2009/ra_9775_2009.html

                        (3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

(10)                       Bill No. 3327 – Magna Carta for Philippine Internet Freedom | http://www.senate.gov.ph/lisdata/1446312119!.pdf
(11)                       Bill No. 3327 – Magna Carta for Philippine Internet Freedom | http://www.senate.gov.ph/lisdata/1446312119!.pdf
            Section 29.  Infringement of Intellectual Property Rights. -
            Copyright infringement.  - Subject  to  the  Intellectual  Properly  Code  of  the Philippines, it shall be unlawful for  any person to  publish or reproduce on the Internet, in part or   in whole,  any  content that he does not have any economic rights over, or does not acknowledge and  comply  with  the  terms  of copyright  or  license  governing  the  intellectual  property  rights enjoyed  by  the  content  being  published  or  reproduced,  or  falsely  claims  having  intellectual property rights over the content he does not own.

             A.2. Non-attribution or plagiarism of copy left content shall constitute infringement.

            A.3. Non-attribution or plagiarism of free license or public domain content shall       constitute infringement, but shall not be subject to damages.
                  A.4.  Subject  to  the  Intellectual  Property  Code  of the  Philippines,  it  shall  be                       unlawful for any person to reverse-engineer any whole or part of any computer program,                       software, code, or script, whether or not executable, that is the subject of a copyright, and                that he does not have any property rights over, or does not acknowledge and comply with                  the terms of copyright or license governing the intellectual property rights enjoyed by the                          computer program being reverse-engineered.  
(13) – Wikipedia: Copyright Infringement | http://en.wikipedia.org/wiki/Copyright_infringement#.22Piracy.22
(14) - Bill No. 3327 – Magna Carta for Philippine Internet Freedom : Section 33 B1 | http://www.senate.gov.ph/lisdata/1446312119!.pdf


Friday, 7 December 2012

That New Law


People of this age lives in a fast phase. Fast food restaurants are the most visited during lunch, most people drink instant coffee in the morning, or if they have the spare time, they go to Starbucks, an instant noodle for breakfast and a take out from McDo in the evening. Majority of the people this days are on the go, and possibly, and I’m sure you’ll agree, lives off the internet either on their iPads, iPhones, Androids, Smartphones or laptops.

Gone are the days when people line up on the counter to buy a new pair of shoes or a nice shirt. We have websites like Multiply.com, Lazada.com or sometimes even in Facebook. Hell, we can even buy a car on Sulit.com. Airlines nowadays have their own website where you can book flights to Hong Kong, Singapore, Boston or even to Boracay. Tickets to the Script concert are a three minute process. All you need is a click of the mouse or book it right to your fingertips. But one thing is for sure, we always use our Credit Cards to do the job.

I must confess I have been a frequent shopper on the sites mentioned above. I often feel lazy to go out, stand on a long queue that takes hours. Why go to the mall when you can purchase anything you need on the internet.

There is also a time when I have to line up for two days just to apply for my passport. My Mader also had the experience of having to line up on the wee hours of the morning just to apply for her US visa back in ’92. Comparing it now, I can schedule and answer my application form from the US Consular office website. How convenient, especially when I don’t have to go to the Consular office by four in the morning.

But the convenience and the instantaneous transactions come with a price. I have this doubt on some of the sellers on-line especially since you have to indicate your personal information, mainly when you are using your credit cards. There is this huge chance that I could be a victim of identity theft, or that another person would use my credit card to purchase.

Last August 15, 2012, President Aquino III signed Republic Act 10173, known as the ‘Data Privacy act of 2012’. According to said law;

SEC. 2. Declaration of Policy. – It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.(1)

This act aims to protect personal information that a natural or juridical person has used on any transaction that they have made. (2) I have no idea as to how I should react to this new special law. It has somehow had some advantages and disadvantages on its face, and frankly, one of its disadvantages is that it somehow appears to be over-breadth.

Advantages

I - This act protects the Journalists and their Sources.(3)

Let us first tackle the most obvious right of protection in which the law applies which is the protection to the journalists. The constitution provides, on Article 3, Bill of Rights:

Section 4. 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 grievances. (4)

Let us admit, this is the usual law provision that the most if not all of the journalists, writer, columnist or whatever you may have called them to protect their rights into publishing and posting their writings on the paper or the internet.

Quoting from an opinion of the court, “Freedom of the press was virtually unknown in the Philippines before 1900. In fact, a prime cause of the revolution against Spain at the turn of the 19th century was the repression of the freedom of speech and expression and of the press.” (5) And as of now, it is one of the symbols of a democratic country. Voicing out opinions thru editorials, magazines and newspapers, and even the polls being made, especially on this electoral period, the people of the Press are given the right of expression.

In connection with this, Atty. Vicente Sotto has authored Republic Act No. 53: AN ACT TO EXEMPT THE PUBLISHER, EDITOR OR REPORTER OF ANY PUBLICATION FROM REVEALING THE SOURCE OF PUBLISHED NEWS OR INFORMATION OBTAINED IN CONFIDENCE (6) on October 5, 1946, protecting the right of the writers, reporters or editors in disclosing their sources. RA 10173 made exclusion in connection with the said Republic Act. In fact, it was made clear on the provision of the new act that there are no amendments are made.

The act ensured that any member of the Press may, with their own discretion, reveal their sources. It is to protect the said sources’ identity. If the news is invasive or highly affects a powerful or influential person that may detriment the source of the news, the reporter, may not reveal the name of his source. It does help to protect the personal identity of the said source.

II – Protection of Personal Information

As you can see on the introductory part of this blog, people lives in a fast phase and most if not all uses the internet to transact, purchase or contract. This makes us vulnerable to identity theft, since we have to make use of our personal information in order to validate our businesses.

Again, the Constitution, being the supreme law of the land provides protection to its people. Although the law does not explicitly provide, every person has the right to privacy.

To quote from jurisprudence, “The essence of privacy is the right to be left alone. In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities.” (7)
This right is usually connected to the right against unreasonable search and seizure. However, it may also pertain to the protection of the information of a person or a private corporation.

In defining what Personal Information pertains to, let us go the section provided by the law:

(g) Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual. (1)

Kind of confusing isn't it? However, it only pertains to any information; name, gender or nationality that may identify the person or private corporation who has made the transaction. The law protects the identity of the individual, either a natural or juridical person on being exposed.

Let me use a sample transaction of booking a flight to using Cebu Pacific Air.


(8)
A person who uses the internet in booking their flight needs to indicate his name, age, gender and other necessary circumstances on the application. Throwing back to the late ‘90s, people who want to travel via air needs to go to the airline’s office to purchase their tickets, standing on long lines or waiting for their numbers to be called. As of today, some still prefer on going to said offices, however other prefer a much more sophisticated way such as doing it on-line.

Upon continuing the transaction, the website also requires the credit card number to be used. This somehow becomes the tricky part. However, RA 10173 created a commission, National Privacy Commission (NPC for brevity), which is tasked to monitor and ensure compliance of the country with international standards for data protection. (9)

The NPC filters data information thru a system that they had devised will secure that there is no anomaly that will happen while an individual is making transaction. It makes me feel a bit secure and a bit confident when I make online transactions or purchases. Once again I will highlight, I often use the internet to purchase any goods or close several transactions using the internet, and this act will become my own personal body guard in the world of the internet.


Disadvantages

And like a double edge sword, the law’s advantages are also its flaws.

The 1987 constitution provides the privacy to communication made. Isn't it that the system being introduced by RA 10173 is also an intrusion on a person or a corporation to contract or transact? We often use our e-mails to make contracts, not only domestically but also internationally. Imagine that you are a business woman who is communicating via e-mail on a foreign supplier, and that you transaction is being monitored by the NPC.

The New Civil Code reiterated the provision of the Constitution, which provides that:

Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

xxx

(11) The privacy of communication and correspondence

This provision entitles a person to file a case for civil liability against any public officials or any private person. Reading the sections from the new RA 10173, the scope of the power given to the NPA seems to violate not only the constitutional right of a person but it also violates provisions introduced by the new civil code. As I read the new provisions of the new special law in conjunction of other laws, it confuses me as to how limited the filtering system of the NPA regarding data’s inputs made by a person or corporation has made.

I ask this question, will the NPA violate a person’s right for unreasonable search and seizure?

On the ruling made by the Supreme Court in Ople vs Torres:

“The Civil Code 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. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications xxx” (10)

On the case cited, the issue was the implementation of A.O. No. 308, and as the court have stated on this case, won’t the government misuse the data that they have acquired? They may have included a confidentiality clause on the new RA 10173, but there is also this underlying fear that the data that they have filtered to a person may be used against them. On the quoted case, the Supreme Court stressed that, the right to privacy is one of the most threatened rights of a man living in a mass society, and the threats may come from various sources, one on which is the government. (10) It is like opening our personal information to the government, or as how most would say it, we are stark nude in the eyes of the government.

Conclusion

There is no precedent case where said RA applies, therefore my interpretation of the said law may be biased and solely be based on my opinion and as to how I appreciate the law. It may be a good improvement on the IT world, a precaution against any mishandling of sensitive or personal information. Or it may be a cause of riot against private individuals who does not want to disclose their negotiations and information.



Sources:

(1)   Data Privacy Act of 2012 – The Official Gazette : http://www.gov.ph/2012/08/15/republic-act-no-10173/
(2)   Data Privacy Act of 2012 – The Official Gazette : http://www.gov.ph/2012/08/15/republic-act-no-10173/

SEC. 4. Scope. – This Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.
(3)   Data Privacy Act of 2012 – The Official Gazette : http://www.gov.ph/2012/08/15/republic-act-no-10173/

SEC. 5. Protection Afforded to Journalists and Their Sources. – Nothing in this Act shall be construed as to have amended or repealed the provisions of Republic Act No. 53, which affords the publishers, editors or duly accredited reporters of any newspaper, magazine or periodical of general circulation protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.

(4)   1987 Philippine Constitution – LawPhil.net : http://www.lawphil.net/consti/cons1987.html
(5)   Tolentino vs Secretary of Finance -Separate Opinion – Padilla: http://www.lawphil.net/judjuris/juri1994/aug1994/gr_115455_1994.html
(6)   Republic Act No. 53 – Chan Robles http://www.chanrobles.com/RepublicActNo.53.html#.UMBKw-Q06So
(7)   SJS vs Dangerous Drug Board, et’al. - G.R. No. 157870 http://www.lawphil.net/judjuris/juri2008/nov2008/gr_157870_2008.html
(8)   Sample image of Cebu Pacific Transaction : https://book.cebupacificair.com/Guest.aspx
(9)   Data Privacy Act of 2012 – The Official Gazette : http://www.gov.ph/2012/08/15/republic-act-no-10173/

SEC. 7. Functions of the National Privacy Commission. – To administer and implement the provisions of this Act, and to monitor and ensure compliance of the country with international standards set for data protection, there is hereby created an independent body to be known as the National Privacy Commission xxx

(10)     Ople vs Torres – G.R. No. 127685 http://sc.judiciary.gov.ph/jurisprudence/1998/jul1998/127685.htm