Angkor wat,Cambodia, 2014
January 9, 2015
Nowhere (Copyright Law Reform)
September 27, 2013
I cannot fathom in its strongest terms why in the world would a UP student file an entry of a stolen photo in a photo essay contest and having it won afterwards. This shameless act was condemned and brought outburst by the public especially that of the UP community and netizens who might have been the one who discovered the plagiarized photo.
Same as the speech presented by one of our Senators who was accused of plagiarizing parts of his speech.
This brings me to a question about how visible the copyright law is when it comes to acts like these. Yes, I know that plagiarism is a serious offense but how come many people still commit errors when it comes to matters as this. Does the reform in Copyright Law touched on this particular area?
As I read through the amendments, I have noticed that several provisions have been removed and changed. Of particular is Section 190 which is Importation for Personal Purposes that received different opposing views because the old provision which includes a sub section 190.1.iNow, this section is completely new and thus opened to different interpretation because the Commission of Customs is given the authority to prevent the importation and exportation of Infringing materials. This appears to me as somehow vague and might be used by these appointed official to abuse their power to the detriment of the person’s right.The said provision should have set specific instances as to when a material to be exported or imported is infringing or not.
Another area that may be a point of argument would be the limitations on the fair use of academic materials. My view on the matter would be leaning more on the pro-students’ side because I am a student who , just like any other students, cannot afford to buy pricey books so ending up photocopying some reading materials that needs to be studied for the next course meeting. But i for the record, respect the copyright owner of these books because the law is categorical that they are also entitled to economic rights and it would be totally unfair on their part if they cannot felt that they received this right fully. But an interesting statement thay I may inject from Larry Lessig’s talk is when he said in his presentation that why can the cultural policies encourages them to create more for the love of work than for the money.
My only sentiment is that, students like me, when it comes to academic materials,books that is, should not be restricted as to how many pages may be allowed to have it photocopied. The Government should give more attention to this than amending provisions which are not that important. Fair use is conferred but it still has its limitations when it comes to academic purpose. Why cant the law provide more benefits for the students? Learning and everything that comes with it i believe is something that an individual should never be deprived of.
Plagiarism as mentioned earlier is a serious matter that also needs an urgent attention as it somehow imprints a negative image on one’s reputation but I have not seen any provision in the amendment that digs deeper into such area. i have to admit that it was only in college that i embraced what plagiarism really means,its effects and its consequences.it was only that time that I met Kate Turabian. Since then, I became more careful in acknowledging authors though I would not say that I have perfectly mastered this skill because I know for a fact that I also commit lapses from time to time like forgetting technicalities like the format but never will I ever write or claim something that I do not own. Intellectual theft is something that should not be taken for granted and should be taken seriously.
With the advent of social media, people can easily express themselves through posting on their wall on facebook or tweeting for instance. But as I observed, a lot of people commit this wrongdoing by not acknowledging or citing the author for example of a quote that they posted and claiming it as their own as if they created those quotes.and that irks me everytime I see someone posting a quote or expression when we all know that he/she just copied it from another without citing those. Two possible theories that I could think of: one, they would like to somehow impress others that by posting it without any reference given, it would give an impression that they created it, thus intellectuals , or two, they know nothing about copyright. I would like to think that the reason is the latter. And if such is the case, is it about time that our government include pertinent areas related to academics of the copyright law in all the schools’ curriculum? Particular mention would be plagiarism. Because in my elementary and highschool years, I cannot remember that my teachers mentioned anything about this( or it might be because that was a very long time?) what Im trying to drive at is for them to have a deeper understanding when it comes to this matter since this will be brought by them as they proceed to higher level in education. This would give them a firm foundation and will be to their advantage. in fact, one determinative factor as to how a student have learned for the past 3 years and before graduating is writing a paperwork called the thesis.
But how about those that have complete knowledge of the law but still,chose to commit it? will this reflect the sharpless penalties provided for by law?It can be, and if such be the case and for the several times that people tend to commit these errors, why cant the law provide a harsher sanction instead? The Chilean embassy in the stolen photo might have said that nothing has changed with regard to their view and respect on Filipinos, but I highly doubt because for me it only increases and adds up to the other major government issue we are facing now.thirst for power acquired ilegally will get you nowhere.
Disclaimer: The views and opinions are of the author’s alone and does not represent the views of the bar.
Works Cited
REPUBLIC ACT NO. 10372
An Act Amending Certain Provisions Of RA 8293 otherwise known as the “INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES”, And for other purposes.
http://raissarobles.com/2013/02/16/amended-ip-code-disadvantageous-to-students-teachers-researchers-says-copyright-expert-lawyer-ping-peria/. Retrieved, September 24,2013.
http://www.philippinegraphic.ph/index.php/tech/112-while-we-were-not-looking-ip-law-amendments. Retrieved, September 24, 2013.
http://www.youtube.com/watch?v=RIV1UE_RZ-c
i 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).
Where to Wear
August 30, 2013
OVERVIEW
Many would agree, with considerate fire and passion that sports events always bring an outburst of strong emotions of the crowd, it likewise influence people’s behavior and social values. Undeniably, the massive collective gathering of people interestingly discloses an unexplored consumer market[i]. Big companies come in, getting their chance and opportunity to advertise their products by exclusively sponsoring such events thus giving them full exposure of their brands as seen by the whole world.
Organizers of events as this in turn benefit from the sponsorship provided by the companies because staging an event would require huge fund in carrying it out and this would normally come and derive from companies who would shell out huge amount of money and in turn reciprocally benefit because of the exclusive, unlimited and overflowing display/advertisement of their brands on the whole duration of the event.
Predictably a very effective strategy of promoting a brand due to the fact that it would invite the public’s mind of how good the product is by associating it with the event’s goodwill by carrying it’s name and logo. Riding with the popularity as well is another thing. No wonder why Pepsi, has, for the longest time, been the official sponsor of the Super Bowl in the United States, one of the much awaited event and attended by millions of spectators and marketing wise, equates to millions of profits and attracts more consumers. Another notable example is the Fifa World Cup and the Olympic Games where different brands would set an enormous price in return for an exclusive exposure of their brand.
AMBUSH MARKETING and TRADEMARK ISSUES
Inevitably, sports events and ambush marketing somehow cannot be separated as this has been a problematic area among organizers of events. But how is ambush marketing defined by the way? Ambush Marketing is defined as the company’s attempt to capitalize on the goodwill reputation and popularity of an event by creating an association not authorized or consented by the necessary parties[ii].
One famous example I have read so far was when several Dutch Girls wearing orange dresses that is associated with a dutch product Bavaria which is completely a competitor of the official sponsor of the event which was Budweiser. The said Dutch girls were asked to exit from the venue and have been charged for organizing unlawful commercial activities[iii]. It appears from the foregoing that ambush marketing has been a serious threat to organizers of event because they have a duty to protect the sponsored brand from losing profits because of intrusion of ambush marketers.
In connection with the prevailing occurence of ambush marketing that is, trademark issues such as infringement, unfair competition and misappropriation of goodwill, the Lanham Act is of significant to refer to where it provides sports entities legal remedies from trademark infringement and misappropriation of goodwill[iv]. Clearly, it prohibits other products from advertising their brands so as to create confusion or mislead the public that such brand is affiliated or is connected with the event giving them totally an instant free ride and advantage.
On this account, Trademark infringement comes into picture and is defined as that occurs when there is an unauthorized use of a trademark- or a confusingly similar name, word, symbol or any combination of these- in connection with the same or related goods or services and in a manner that is likely to cause confusion, deception or mistake about the source of the goods or services[v]. In these instance, trademark infringement would typically fall or happen when a brand not authorized try to affiliate itself giving the impression that such brand has a connection with the event.
OF FREEDOM OF EXPRESSION
This to me raises much more interesting question as regards to an ordinary spectator of an event, wearing a non sponsored brand and will be unceremoniously ejected from the scene. Will it be treated as a trademark infringement under the law?
So if I for instance would go to an event wearing a “Globe tshirt” where in fact the official and exclusive sponsor of this event is “Smart”, will that constitute a trademark infringement?
Being on the liberal side, I firmly submit to the view that equality prevails over dictating one’s human choice. The dominant entity cannot empower itself from restricting an individual from freely expressing himself through wearing his own clothes which has an element of personal freedom of expression. This basic and fundamental right cannot be curtailed as it will run counter to the very aim of bill of rights upheld and recognized firmly by our constitution.
I embrace the fact that individuals should be freely and openly choose what they desire in matters may it be in speech or in clothing. Accordingly, a liberalist approach would yield expansively towards giving everyone equality, that is a balanced prospective over things, freedom which basically putting an individual in a state where he enjoys being at liberty and free to act without any confinement or restrictions. My right to freedom of expression should never be curbed as I, as possible has all the rights to exercise it.
On the question, am I creating a wrongful association with respect to the event, In the eyes of the spectators like me, certainly there is no violation of the law as it would not create confusion or likelihood and will not fall within the coverage of the ambush marketing or even trademark infringement likewise. In order to prove a commission of a trademark infringement, one must prove that and must be shown that it would create a confusion on the part of the public.
In the case of Prosource International, Inc. versus Horphag Research Management SA.[vi] It emphasized the element of likelihood of confusion which according to the case is the gravamen of trademark infringement. Moreover, it states that “likelihood of confusion is a relative concept. The particular, and sometimes peculiar circumstances of each case are determinative of its existence. Thus, in Trademark infringement cases, precedents must be evaluated in the light of each particular case.”
Arguably, the given statement above will support the argument that the wearing of a non sponsored clothing in an event for instance would not violate any law pertaining to trademark infringement.
[i] http://www.mondaq.com/x/117458/Trademark. Retrieved, August 28,2013
[ii] http://www.atrip.org/Content/Essays/Pelanda%20Ambush%20Marketing,%202011.pdf Retrieved, August 28, 2013.
[iii] http://news.bbc.co.uk/2/hi/8743881.stm. Retrieved, August 28, 2013.
[v] Black’s Law Dictionary, 9th Edition.
[vi] G.R No. 180073, November 25, 2009
Is the act of a person A, disclosing the mobile number of B, to a third person, without B’s consent considered a violation of R.A 10173?
The presence of the well-defined rights of an individual sanctified in our Constitution gives us a full measure of protection which is of paramount necessity one must possess as a human being. Succintly, it is through these rights that one enjoys and exercises his freedom afforded to him by law. Absence of such rights would definitely preclude justice and lead to a chaotic society.
The right to privacy, being one of the protected rights enshrined in our Constitution[i] and in the Civil Code[ii], has observed to have always been marred because as the world becomes modernized or technologically advanced and expanded-where the people inevitably need to adopt whether they like it or not, the more this right becomes fragile. One can easily get hold of someone else’s information in just a click away. The increasing number of personal identity crime such as stealing another’s information in perpetuating a crime is very alarming. The security and safety of one’s personal information is becoming a portentous issue and this in turn poses a great challenge on our lawmakers to set fine tune rules in order to cope up with this fast changing world and in order to preserve this right.
Republic Act 10173 or also known as the Data Privacy Act of 2012[iii] was enacted with the purpose and intent of protecting the fundamental human right of privacy as stated in the Declaration of Policy of aforesaid statute. The law is set to give assurance to the public that personal information disclosed to instrumentalities such as the government is well secured and guarded. Such information provided by them on every transaction will be kept and be respected with confidentiality by not disclosing or disposing it to the public-which might cause irreparable injury to the owner of such information, other than the exceptions provided for by the law.
It is significant however to point out that this law have meted parameters as to its scope and limitation as provided in Section 4. It states that the Data Privacy Act only applies to those types of information processed by the government and private sectors since they are those that usually ask for personal information of an individual whenever they’re transacting business with.
Understandably, the limitation as to the extent of application of the law is clearly provided. It must be noted that the scope of the law is material in determining its applicability lest will likely send a confusing message to the proper agency who will implement the said law.
We are presented with a scenario in relation to this law to wit, whether or not the Act of a person A, disclosing the mobile number of B to a third person without consent is violative of R.A 10173.
The answer can be gleaned from determining the scope of its applications mentioned above and to reiterate, under Section 4 of the law. Undeniably, the act of A in this particular scenario does not fall within the purview of Section 4 since in order for one to become liable, the law clearly provides that one (either natural or juridical person) should be involved in personal information processing including those personal information controllers and processors who although not found or established in the Philippines….Evidently, the law specifically set forth this guideline so as to properly and smoothly implement the law.
It is an elementary canon in statutory construction that when the words and phrases of the law are clear, then it must be determined from what the law exactly says and should not extend to those matters not included or provided therein. In this instance, the law is clear as it only covers those types of processed information thereby excluding those that are not enumerated therein. And when we speak of processing, as defined in Section 3j of the law, refers to any operation or any set performed upon personal information but not limited to the collection, recording, organization, storage among others of data.
By its definition alone, one can assume that it is essentially an act performed in a broader sense, that is, storing and collecting bulk information.
Going back to the question at bar, the mere disclosing of a mobile of a mobile number of A to another person is in its clearest, not violative of R.A 10173. The intention of the law is to protect the information of a person against any government or private sectors who have always been the primary entities involved whenever one transacts business with them, as the initial requirement would normally be filling out certain documents which requires for one to provide personal information. In this regard, they in turn have an access to a person’s personal data file. That’s where the purpose of the law comes in: to safeguard such personal data since these entities who have all the means of disclosing and disposing it and might use it for unlawful purpose. The act of A is not within the ambit of the law hence, will not be treated as a violation of the Data Privacy Act.
The ultimate goal of the law here is not to punish an ordinary case of giving it to another person without consent which is of but a usual occurrence in our everyday life but rather to hold accountable those sectors provided by the law who might use their resources in order to intrude into one’s life and gain unlawful means which would cause damage to an individual.
A good analogy here would be a scenario where a person asking for another person’s address and knowing such, immediately provided the information. If the intention of the law is to punish everyone who divulges information of another without consent, then wouldn’t the law be absurd and futile? Would the purpose for which it was enacted properly served? This, arguably will amount to a questionable law as the boundaries are not properly laid. Moreover, it will create pernicious effect with respect to the carrying out of the said law if this would cover the mentioned scenario.
Verily, the law expressly and strictly positions itself towards penalizing specific entities who would commit such act punishment will be put into effect accordingly.
Furthermore, the case of Ople versus Torres, G.R 127685[iv] would gain more anchor to support the answer herein argued.
To recapitulate, it only shows that the act done did not constitute an unlawful invasion of privacy as to affect the life or security of the person. The wordings of the law cannot be any clearer and in view of this, it is unmistakably true that the act done did not fall within the coverage of the Data Privacy Act. This, to emphasize, was promulgated to ensure that all processed data will be shielded from any unlawful acts that might be committed by these sectors who possess such information of an individual. Accordingly, the law’s basic precept is to safeguard this right so as to prevent any act that might trample upon the basic rights of a person.
Endnotes
[i] 1987 Philippine Constitution Section 2, 3(1) of the Bill of Rights:
“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 complaint and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
“Section 3.(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the Court, or when public safety or order requires otherwise as prescribed by law.”
[ii] Civil Code of the Philippines, citing Article 26;
Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief;
- Prying into privacy of another’s residence;
- Meddling with or disturbing the private life or family relations of another;
- Intriguing to cause another to be alienated from his friends;
- Vexing or humiliating another on account of his personal beliefs, lowly station in life, place of birth, physical defect or other personal condition.
[iii] Official Gazette of the Philippines.July 2011.Citing Website. RA 10173. Retrieved from http://www.gov.ph/2012/08/15/republic-act-no-10173/
[iv] The doctrine in this case provides that “the right to privacy does not bar all intrusions to individual privacy. It merely requires that the law be narrowly focused and a compelling interest justifies such intrusion. Intrusion into the right must be accompanied by proper safeguards and well defined standards to prevent unconstitutional invasions.
carilagbaquino 