IPOPH: IP code amendment gives Filipinos better access to copyrighted works from abroad

Intellectual Property Office of the Philippines

Posted at Feb 15 2013 01:30 PM | Updated as of Feb 16 2013 05:26 AM

To clarify the issues raised in Raissa Robles’ article entitled “Congress Erased Every Filipino’s Right to Bring Home Music, Movies, and Books From Abroad”, below are the IPOPHL’s point-by-point response:

Under the IP Code amendments, Filipinos returning from abroad can bring in more than three (3) copies of legitimate copyrighted works. Under Section 190.1 of the present RA 8293, importation for personal purposes means that you are only entitled to import in the Philippines up to three (3) copies of copyrighted works in your personal baggage. Once imported, the present law also states that such copies cannot be used to violate the rights of the copyright owner, or else you will be liable for copyright infringement (Sec. 190.2). By deleting these provisions under the amendment, there is no longer any limit to the number of copies that can be imported. Also, importation shall not be considered copyright infringement if it falls under the general exceptions which includes fair use (Chapter VIII, Sec. 185 IP Code). 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.

Jailbreaking is not a crime under the amendments. Contrary to the author’s opinion, jailbreaking or any other form of circumvention of technological measures (as defined in Sec. 6 of the amendments), are not crimes in themselves. The amendments require that you first be found guilty of copyright infringement, and that is the only time that jailbreaking or circumvention of technological measures increases the imposable penalty and damages that can be awarded by the courts. You still need to be found guilty of copyright infringement, as jailbreaking is merely an aggravating circumstance that increases the penalty.

Downloading Pirated Music has always been Illegal. Downloading pirated music has always been illegal, and especially detrimental to our local artists. In fact, all organizations of Philippine singers, performers, composers, artists, and producers, have been pushing for the amendments because they have been severely affected by music piracy. However, even before the E-Commerce Act provision against piracy and hacking, downloading pirated music has already been penalized by R.A. 8293, enacted as early as 1997, which punishes copyright infringement or the reproduction of a work without authorization by the copyright owner (Sec 177, IP Code).

Fair Use Exceptions to Copyright Infringement are now Applicable both to Copyright and Related Rights. A single song can be the subject of many IP rights. The composer, lyricist, etc., has “copyright” over the song, while producers, performers, and broadcasters have “related rights” over it. Under the present IP Code, there are limitations to copyright, which do not apply to related rights. The Bill in fact broadened such limitations and exceptions and narrows down what acts constitute copyright infringement as to related rights. The amendment of Sec. 212 of the IP Code in fact reinforces the general exception of fair use for infringement of related rights.

Other Beneficial Provisions of the Amendments. Moreover, the amendments to the IP Code also propose several provisions which are beneficial to copyright stakeholders, the creative industries, and the country in general, namely:

Grant of enforcement powers to IPOPHL (Sec. 2) - The bill grants visitorial powers to IPOPHL and allows it to undertake enforcement functions with the support of concerned agencies such as PNP, NBI, BOC, OMB and LGUs. However, as IP rights remain to be private rights, there must be a complaint from the IP right owner.

Establishment of the Bureau of Copyright and Other Related Rights (Secs. 1 and 3) - At present there is no entity performing the more substantial function of policy formulation, rule making, adjudication, research and education, which is envisioned to be handled by the Bureau of Copyright. Although a Copyright Division exists in the National Library, the function of such office is ministerial in nature: to be a depository of copyrighted works. A bureau dedicated to serving the needs of the copyright-based industries and stakeholders could give more focus and rally more resources for these sectors.

The Copyright Bureau will support the creative industry, which is very important for protection of works by Filipinos both here and abroad.

Accreditation of collective management organizations or CMOs (Sec. 10) - CMOs are organizations that enforce the copyright of the copyright holders. Through this mandate, IPOPHL will be able to monitor and promote good corporate governance among CMOs, benefitting not only the rights holders themselves but also the users of copyrighted works. Mall owners, restaurants, and other heavy users of music in their establishments will greatly benefit from this provision, as they are ensured that only legitimate collecting agencies can collect royalties from them on behalf of copyright owners.

Clarification of the concept of copyright infringement, including secondary liability (Secs. 22 and 23) - The provisions on copyright infringement have been refined to include contributory infringement (secondary liability), circumvention of technological measures and rights management information as aggravating circumstances, and the option to collect statutory damages instead of actual damages. However, under Sec. 22 of the amendments, to be secondarily liable, a landlord or mall must: (1) benefit from the infringing activity; (2) must have been given notice of the infringing activity and a grace period to act on the same; and (3) has the right and ability to control the activities of the person who is doing the infringement. The complainant has the burden of proof to provide evidence that all 3 elements are present.

Fair use for the blind, visually- and reading-impaired (Sec. 11) - This provision would give a special fair use exemption for the non-commercial reproduction of works for use by visually-impaired persons. Before this amendment, hundreds of thousands of blind Filipinos could not buy Braille works at cheap prices because copyright protection operates. Now with this amendment, blind and visually impaired Filipinos can have easier access to copyrighted works in Braille.

Formulation of IP Policies within universities and colleges (Sec. 27) - This will ensure that the rights of the academic community (professors, researchers, students) over their literary, scholarly and artistic works are clearly delineated and respected.

With these amendments to the IP Code, IPOPHL will still run after pirates, infringers, and criminal syndicates. Ordinary citizens, like balikbayans, students, and hard-working Overseas Filipino Workers have nothing to fear. The amendments are meant to protect the Filipino artists and creators, while also making copyrighted works more accessible to Filipinos.