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Is the Malacanang accurate in its opinion concerning the amendments of Intellectual Property Code of the Philippines?

Under the Constitution, RA 8293 and other laws, intellectual property rights consisting of Copyright and Related Rights; Trademarks and Service Marks; Geographic Indications; Industrial Designs; Patents; Layout-Designs of Integrated Circuits; and Protection of Undisclosed Information are well recognized and protected. The purpose of which is to encourage scientists, inventors, artists and other gifted citizens to share their work to the public in return for the exclusive right to use or exploit the same for a certain period as may be provided by law.

Relevant in the discussion is the Law on Copyright. Copyright denotes the exclusive legal right to reproduce, to publish and to sell the matter and form of a literary, musical or artistic work.[1] In other words, it is the right of an author to exclusively appropriate an expression of idea which may be in any form or medium. The Intellectual Property Code of the Philippines provides for the economic rights of a copyright owner. These are the following:

Section 177. Copyright 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]

Aside from economic rights, moral rights of an author are also recognized and secured. These consist of the following:

Section 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)[3]

However, these rights are not absolute. Limitations on copyright are also provided by the law in order for the public to enjoy the fruits of the intellectual creativity of a scientist, inventor, artist or a gifted citizen. These provisions are considered not prejudicial to the rights of the copyright owner, author or the right holder and they are exceptions on acts of copyright infringement. These consist of Section 184, 185,186,187,188,189, 190 and 212 of the Intellectual Property Law. In addition, Section 198 of the said law limits the period within which the work may be enjoyed exclusively by the author.

Upon the passage of RA 10372, many provisions of RA 8293 were amended, some were deleted and new sections have been added. However, some were considered problematic and debatable. One of these is the provision on the importation of a work for personal purposes. The old version of the said provision states that:

Section 190. Importation for Personal Purposes. – 190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances:

(a) When copies of the work are not available in the Philippines and:

(i) Not more than one (1) copy at one time is imported for strictly individual use only; or

(ii) The importation is by authority of and for the use of the Philippine Government; or

(iii) The importation, consisting of not more than three (3) such copies or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.

(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed three (3).

190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor’s right of action.

190.3. Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation of articles the importation of which is prohibited under this Section and under treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported. (Sec. 30, P.D. No. 49)[4]

The new version removes Sec. 190.1 and Section 190.2 from Section 190 leaving the following provision:

“SEC 190. Importation and Exportation of Infringing Materials. – Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation or exportation of infringing articles prohibited under Part IV of this Act and under relevant treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported or before they are exported. (Sec. 30, P.D. No. 49)”[5]

This deletion simply implies that no person now may import of a copy of a work of an individual, that is, even if the importation is for personal use, religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines. For example, if a balikbayan or an alien legally acquired a book abroad, he will not be allowed to bring it in the Philippines. He will also be subject to airport inconveniences.

If that is the case, then the deletion of Section 190.1 and 190.2 of RA 8293 would be prejudicial to the interests of the public. Although this would increase the protection afforded to scientists, inventors, artists and other gifted citizens to their intellectual property and creations, this would be inconsistent with the state policy of RA 8293 provided as follows:

Section 2. Declaration of State Policy. x    x     x

The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good. [Emphasis supplied][6]

x                                          x                                          x

The deletion would frustrate the diffusion of knowledge and information for the common good instead of promoting it because by prohibiting the importation of work made by gifted citizens abroad, the public would be denied an access to information. Hence, it will not be easy for them to acquire knowledge of or otherwise benefit from these new creations.

The deletion was however interpreted the other way around by the Malacanang. In the FAQs on the amendments to the Intellectual Property Code of the Philippines, the following is stated:

           Am I still allowed to import books, DVDs, and CDs from abroad?

Yes. In fact, the amendments to the Intellectual Property Code have removed the original limitation of three copies when bringing legitimately acquired copies of copyrighted material into the country. Only the importation of pirated or infringed material is illegal. As long as they were legally purchased, you can bring as many copies you want, subject to Customs regulations.[7]

As an elementary rule on statutory construction, the amendment by deletion of certain words or phrases in a statute indicates that the legislature intended to change the meaning of the statute, for the presumption is that the legislature would not have made the deletion had the intention been not in effect a change in its meaning. The amended statute should accordingly be given a construction different from that previous to its amendment.[8] This tenet was applied in the case of Gloria vs. CA (G.R. No. 131012), Buenaseda vs. Flavier (226 SCRA 645). Exception to that rule is that an amendment of the statue indicates a change in meaning from that which the statute originally had applies only when the intention is clear to change the previous meaning of the old law. Rules do not apply when the intent is clear that the amendment is precisely to plainly express the construction of the act prior to its amendment because its language is not sufficiently expressive of such construction.[9]

Notwithstanding the non-application of the said exception, it is very surprising that the aforementioned general rule was not applied by the Malacanang in interpreting the amendment. In fact, in the opinion quoted above, it mentioned things which were not present in the amendment. It stated that the law has removed the limitation of three copies when bringing legitimately acquired copies of copyrighted material into the country. Moreover, it added the condition that only the importation of illegal works is prohibited. Well in fact in Section 14 of RA 10372, only the sentence “Sections 190.1. and 190.2. of Republic Act No. 8293 are deleted in their entirety” is present. Based on the foregoing, it appears that this interpretation is imprecise.

Aside from that, the Malacanang also commented on five more frequently asked questions in the Official Gazette. One of those is regarding the reproduction of a copyrighted material for personal purposes, the Malacanang posits the following:

Is the reproduction of copyrighted material for personal purposes punishable by this law?

No. Infringement in this context refers to the economic rights of the copyright owner. So, if you transfer music from a lawfully acquired CD into a computer, then download it to a portable device for personal use, then you didn’t commit infringement. But if, for example, you make multiple copies of the CD to sell, then infringement occurs.[10]

This statement is not entirely accurate. It must be qualified. Under RA 8293, the private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work. [11]However, exceptions are provided in the said law. It was provided that:

187.2. The permission granted under Subsection 187.1 shall not extend to the reproduction of:

(a) A work of architecture in the form of building or other construction;

(b) An entire book, or a substantial part thereof, or of a musical work in graphic form by reprographic means;

(c) A compilation of data and other materials;

(d) A computer program except as provided in Section 189; and

(e) Any work in cases where reproduction would unreasonably conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author. (n)[12]

Hence, it cannot be said that reproduction of a copyrighted work for personal purpose like for research and private study is not punishable at all. It is punishable if the qualifications and exceptions provided by law are not complied with.

Another statement is about the lawfulness of the possession of a copyrighted material procured through an infringing activity declared as follows:

Is the possession of, for example, a music file procured through an infringing activity a violation of this law?

Only if it can be proven that the person benefitting from the music file has knowledge of the infringement, and the power and ability to control the person committing the infringement.[13]

The opinion of the Malacanang is fairly accurate. This can be inferred from a careful perusal of the Article 216b of RA 8293, as amended.

Moreover, the Malacanang commented about the legality of jailbreaking or rooting a device which is stated as follows:

Is jailbreaking or rooting my phone or device illegal?

No. Jailbreaking or rooting by themselves are not illegal. However, downloading pirated material, or committing infringement with a “jailbroken” phone increases the penalty and damages imposed on the person found guilty of infringement.[14]

Comparing the new and old version of Sec 185 of the IPL, I think this statement is fairly accurate. Under the amended section, decompilation is still considered fair use as long as it is done for the purpose of obtaining the information necessary to achieve such interoperability. This means that jailbreaking or rooting is not per se illegal. However, if jailbreaking is done for the purpose of infringing a copyrighted material, a violation is committed. For example, if a person jailbroke or rooted a device for the purpose of downloading or obtaining copyrighted material illegally, there is a violation. Conversely, if a person jailbroke or rooted a device for the purpose of improving a program or to see a general idea of what is going on, the act of jailbreaking or rooting will not be violative of the Intellectual Property Code.

Further, the Malacanang also pointed out the liabilities of owners or lessors of establishments in case an infringing act is committed inside their properties. It stated that:

Are mall owners liable for infringement activities of their tenants?

Mall owners are not automatically penalized for the infringing acts of their tenants. When a mall owner or lessor finds out about an infringement activity, he or she must give notice to the tenant, then he or she will be afforded time to act upon this knowledge. As stated above, the law requires that one must have both proven knowledge of the infringement, and the ability to control the activities of the infringing person, to be held liable. The mall owner must also have benefitted from the infringement.[15]

In line with the newly inserted provision in Section 216 of the IPL, this is fairly accurate and just. Under the amended provision, one who directly commits an infringement or benefits from an infringing activity or having knowledge with the infringing activity, induces, causes or materially contributes to the infringing activity of another person, will be held liable. Hence, as applied to a mall owner or a lessor, if he benefits, having knowledge of an infringing activity and control of the activities of the infringer but does not act against it, he will be held liable. In addition to that, a mall owner or lessor, having knowledge of the infringing activity, induces, causes or materially contributes to it, is also liable even if he/she does not benefit from it. Because by doing that, he/she allows himself to be an accessory to the crime. This amendment is just fair and in line with the policy of the State to deter infringement of copyrighted materials and to secure exclusive rights to scientists, inventors, artists and other gifted citizens to their intellectual property and creations.

Lastly, Malacanang made statements on the authority of IPO to conduct visits. It stated that:

Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints?

The IPO may visit establishments based on reports and complaints; this in itself is constitutional. However, if the IPO intends to perform a search and seizure, it must comply with constitutional requirements, such as having a search warrant. A warrant wouldn’t be required, however, if the IPO is accompanied by the Bureau of Customs or the Optical Media Board—two agencies that can perform a search and seizure on their own right without a warrant (per Republic Act No. 1937 and 9239, respectively).

The procedure and safeguards for this are to be spelled out in the Implementing Rules and Regulations.[16]

It is a bit confusing how the Malacanang interpreted Section 7d of RA 10372. It made conditions when the search warrant would be required and when not required in performing search and seizure, well in fact in the said provision there is no such qualification. It simply states that IPO has authority to conduct visits during reasonable hours to establishments and businesses engaging in activities violating intellectual property rights and provisions of this Act based on report, information or complaint received by the office. Maybe, it is giving us a foresight as to how this would be enforced with other agencies like Optical Media Board and Bureau of Customs.

Nonetheless, based on the above mentioned provision itself, there’s no mention that a warrant is required before the IPO can conduct a visit. What is more terrifying is that based on a report or information only, a person being supposed as a copyright infringer could be searched. Under the Constitution, it cannot be denied that a search without a warrant, if not falling under the circumstances allowing warrantless searches, is violative of the Bills of Rights particularly the right against unreasonable searches and seizures which states that:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures 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 complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.[17]

Generally, the statements made by the Malacanang regarding the amendments on the Intellectual Property Code of the Philippines are accurate though some are baffling. Some say that it is interesting how these issues will be interpreted in the Implementing Rules and Regulations of RA 10372, however the IRR can no longer change, expand or be contrary to the law itself. Nevertheless, I sincerely hope that the IRR will be persuasive enough to make it explicit and clear how the amendments can be fair, reasonable and justified on points where they are confusing. Otherwise, the only remedy is for the President to veto the law or for the Supreme Court to declare it unconstitutional in a proper forum.

Disclaimer: I am neither a lawyer nor pretending to be one. This article is created because it is one of the requirements in my Technology and the Law course.


[1] “Copyright.” Webster’s Ninth New Collegiate Dictionary. Ninth Edition. 1988. Print

[2] Section 177, RA 8293, 1997

[3] Section 193, RA 8293, 1997

[4] Section 190, RA 8293, 1997

[5] Section 190, RA 10372, 2012

[6] Section 2, RA 8293, 1997

[7] FAQs on the amendments to the Intellectual Property Code of the Philippines, http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/, May 19, 2013

[8] Ruben Agpalo, Statutory Construction p. 102 ( 2003)

[9] Ibid., p. 105

[10] FAQs on the amendments to the Intellectual Property Code of the Philippines, http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/, May 19, 2013

[11] Section 187.1, RA 8293, 1997

[12] Section 187.2, RA 8293, 1997

[13] FAQs on the amendments to the Intellectual Property Code of the Philippines, http://www.gov.ph/2013/03/08/faqs-on-the-amendments-to-the-intellectual-property-code-of-the-philippines/, May 19, 2013

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Section 2, Article III, Philippine Constitution

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