By: Jaimie Rae A. Domingo
Under Section
171.1 of the Intellectual Property Code of the Philippines, copyright is
defined as a right over literary and artistic works which are original
intellectual creations in the literary and artistic domain protected from the
moment of creation. Thus, the law provides that works are protected from the
time of their creation, irrespective of their mode or form of expression, as
well as of their content, quality and purpose.
To this end,
authors are assured that their works are protected without need of registration
with the Intellectual Property Office. However, nowadays, with the technology
that is available, people are now “resourceful” in obtaining copyrighted works
without the author’s consent or permission. Moreover, such act of obtaining the
copyrighted work is done through the internet by “downloading” the work of the
author.
Under Philippine
law, an author has both economic[1]
and moral rights[2].
Thus, the author of the copyrighted work has the right to authorize or prevent
the reproduction or distribution of his work. But with technology on the rise,
rampant unauthorized distribution and/or reproduction of copyrighted works is
difficult to prevent and/or trace much more to prosecute the alleged violators.
Sadly, the Philippines is not the only country faced with this dilemma.
Moreover, the
trend nowadays is to share copyrighted works through social sites with the use
of P2P or Peer to Peer sharing. This is an illegal sharing of copyrighted work as
it is tantamount to the reproduction and/or the distribution of the copyrighted
work which is expressly reserved to the owner of the copyright.
On the part of
the downloader who is benefitting from his “resourcefulness”, they are what is
referred to as the “direct infringers” and is thusly just as liable for
copyright infringement as the uploaders of the copyrighted work.
However, some
countries are aggressively fighting copyright infringement
In the United
States of America, there is the SOPA/PIPA bill which is pending before the Senate.
The SOPA bill or the Stop Online Piracy Act will empower the US government and
private entities to “blacklist” those websites allegedly committing
infringement. On the other hand, PIPA or the Protect IP Act will enable the US
government and corporations to prosecute websites who are allowing or promoting
copyright infringement whether these websites are based on the US or not.
Ultimately, the
bills are designed to work in support of each other with the main goal of protecting
intellectual property by limiting copyright infringement done through the use
of the internet.
Another is the
United Kingdom’s Digital Economy Act of 2010. This law aims to limit copyright
infringement by limiting and/or effectively terminating the internet
connections of alleged copyright infringers.
In France, there
is the HAPODI law, rather HAPODI is the organization (the
High Authority for Transmission of Creative Works and Copyright Protection on
the Internet) tasked to administer the law whose
ultimate aim is to minimize or totally abolish copyright infringement by ensuring that internet subscribers “screen”
their internet connections so that no transfer of copyrighted work will occur
without authorization from the copyright owner. It is similar to the UK’s
Digital Economy Act in that alleged copyright infringers’ losses their internet
connection upon repeated offense.
Another
controversial law is New Zealand’s “three-strikes rule” which is similar to
both France’s HAPODI law and the UK’s Digital Economy Act. Reportedly these enacted
laws has since its introduction lessened to a great extent the number of known
internet copyright infringement.
The
common denominator among these countries is the graduated response to the
alleged copyright infringers. This means that the offender is given multiple
opportunities to amend or correct his ways before imposing the penultimate
penalty of disconnection from the world wide web permanently.
However,
these controversial laws has raised the issue that there is now internet
censorship brought about by the enactment of the aforementioned laws.
In
order to resolve issues on copyright infringement, laws such as those mentioned
above are enacted so that Intellectual Property may be protected. In line with
this, the ACTA treaty or the Anti-Counterfeiting Trade Agreement came into
existence as a response to the rampant unauthorized distribution and/or reproduction
of copyrighted works among other things. ACTA enables countries to work
together in order to minimize if not abolish copyright infringement by
enforcing the protection accorded to copyright owners. In sum, through ACTA
standards of goods are upheld and may eventually boost a nation’s economy.
In
order to remedy online piracy, necessary steps and changes have to be made.
Thus, the Philippine government should enter and ratify the ACTA. ACTA claims
that it will not monitor the internet but rather provide tools that may be used
for protection and enforcement of copyright. Global efforts are ensuing in
order to fight counterfeit goods and eventually stabilize the economy and
uphold the standards of merchandises.
However,
the laws mentioned above do raise the issue on internet censorship. As enunciated
in the highest law of the land, freedom of expression[3] is
guaranteed to its citizens. Laws and treatises to be entered and/or enacted
must define in unambiguous terms its purpose, the scope of protection and its
enforcement so as not to lead to arbitrary censorship that is tantamount to a
violation of one’s Constitutionally guaranteed rights.
Permanently
depriving a person from using the internet on charges of copyright infringement
is too harsh a penalty as say for example the alleged copyright infringer is a
member of a four-person household, all those persons are forever deprived of
enjoying technology through the internet based on charges of infringement
whether or not infringement is actually committed. Thus, it is censorship that
is occurring with the enactment of these laws.
Although
piracy, counterfeit goods and copyright infringement is rampant, there are
other ways in which these acts can be monitored without interfering or with
minimal interference on one’s constitutionally guaranteed rights.
Suggested Readings:
1. How
SOPA/PIPA Can Affect You by Jamal
2. Peer-to-Peer
File Sharing and Copyright Laws: A Primer for Developers
3. Digital
Economy Act of 2010 www.wikipedia.org
4. HADOPI
Law www.wikipedia.org
5. Berners-Lee:
HADOPI Law is ‘so out of whack it’s ridiculous’ by Olivia Solon, April 19, 2012
6. New
Zealand Passes Three- Strikes Law
7. Three
Strikes rule has ‘halved piracy’ in New Zealand
8. Anti-
Counterfeiting Trade Agreement www.wikipedia.org
9. ACTA-
Anti-counterfeiting Trade Agreement
10. Brewing
Anti-Online Piracy Bill in the Philippines
[1] Sec. 177. Copy
or Economic Rights. - Subject to the provisions of Chapter VIII,
copyright or economic rights shall consist of the exclusive right to carry out,
authorize or prevent the following acts:
177.1. Reproduction
of the work or substantial portion of the work;
177.2 Dramatization,
translation, adaptation, abridgment, arrangement or other transformation of the
work;
177.3. The first
public distribution of the original and each copy of the work by sale or other
forms of transfer of ownership;
177.4. Rental of the
original or a copy of an audiovisual or cinematographic work, a work embodied
in a sound recording, a computer program, a compilation of data and other
materials or a musical work in graphic form, irrespective of the ownership of
the original or the copy which is the subject of the rental; (n)
177.5. Public display
of the original or a copy of the work;
177.6. Public
performance of the work; and
177.7. Other
communication to the public of the work (Sec. 5, P. D. No. 49a)
[2] Sec. 193. Scope
of Moral Rights. - The author of a work shall, independently of the
economic rights in Section 177 or the grant of an assignment or license with
respect to such right, have the right:
193.1. To require
that the authorship of the works be attributed to him, in particular, the right
that his name, as far as practicable, be indicated in a prominent way on the
copies, and in connection with the public use of his work;
193.2. To make any
alterations of his work prior to, or to withhold it from publication;
193.3. To object to
any distortion, mutilation or other modification of, or other derogatory action
in relation to, his work which would be prejudicial to his honor or reputation;
and
193.4. To restrain
the use of his name with respect to any work not of his own creation or in a
distorted version of his work. (Sec. 34, P. D. No. 49)
Sec. 194. Breach of Contract. -
An author cannot be compelled to perform his contract to create a work or for
the publication of his work already in existence. However, he may be held
liable for damages for breach of such contract. (Sec. 35, P. D. No. 49)
Sec. 195. Waiver of Moral Rights. -
An author may waive his rights mentioned in Section 193 by a written
instrument, but no such waiver shall be valid where its effects is to permit
another:
195.1. To use the
name of the author, or the title of his work, or otherwise to make use of his
reputation with respect to any version or adaptation of his work which, because
of alterations therein, would substantially tend to injure the literary or
artistic reputation of another author; or
195.2. To use the
name of the author with respect to a work he did not create.(Sec. 36, P. D. No.
49)
Sec. 196. Contribution to Collective
Work. - When an author contributes to a collective work, his right to
have his contribution attributed to him is deemed waived unless he expressly
reserves it. (Sec. 37. P. D. No. 49)
Sec. 197. Editing, Arranging and
Adaptation of Work. - In the absence of a contrary stipulation at the
time an author licenses or permits another to use his work, the necessary
editing, arranging or adaptation of such work, for publication, broadcast, use
in a motion picture, dramatization, or mechanical or electrical reproduction in
accordance with the reasonable and customary standards or requirements of the
medium in which the work is to be used, shall not be deemed to contravene the
author's rights secured by this chapter. Nor shall complete destruction of a
work unconditionally transferred by the author be deemed to violate such
rights. (Sec. 38, P. D. No. 49)
Sec. 198. Term of Moral Rights. -
198.1. The rights of
an author under this chapter shall last during the lifetime of the author and
for fifty (50) years after his death and shall not be assignable or subject to
license. The person or persons to be charged with the posthumous enforcement of
these rights shall be named in writing to be filed with the National Library.
In default of such person or persons, such enforcement shall devolve upon
either the author's heirs, and in default of the heirs, the Director of the
National Library.
198.2. For purposes
of this Section, "Person" shall mean any individual,
partnership, corporation, association, or society. The Director of the National
Library may prescribe reasonable fees to be charged for his services in the
application of provisions of this Section. (Sec. 39, P. D. No. 49)
Sec. 199. Enforcement Remedies. -
Violation of any of the rights conferred by this Chapter shall entitle those
charged with their enforcement to the same rights and remedies available to a
copyright owner. In addition, damages which may be availed of under the Civil
Code may also be recovered. Any damage recovered after the creator's death
shall be held in trust for and remitted to his heirs, and in default of the
heirs, shall belong to the government. (Sec. 40, P. D. No. 49)
[3]
Sec. 4, Art. III of the 1987 Constitution: No law shall be passed abridging the
freedom of speech, of expression, or of the press, or the right of the people
to assemble and petition the government for redress of grievances.
I agree that "(t)he common denominator among these countries is the graduated response to the alleged copyright infringers." This may also be considered in the formulation of the Implementing Rules and Regulations of the controversial Cybercrime Prevention Act (RA 10175).
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