Inside Philippine politics & beyond

Congress erased every Filipino’s right to bring home music, movies and books from abroad

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By Raïssa Robles

Everyday, many Filipinos arrive in Manila, bringing back with them books as well as  DVDs and CDs of music and movies they bought in other countries for their personal use.

They can do this without fear of being questioned because it’s a right specifically granted “to persons or families arriving from foreign countries” under Section 190 of the Intellectual Property Code of the Philippines or Republic Act 8293.

What these Filipinos probably do not know is Congress has just passed a law erasing this right.  The law — a consolidated measure amending RA 8293, was sent to Malacañang Palace on January 29,  2013 and  just needs the signature of President Benigno Aquino III to become effective.

That’s not all.

Under this new law, once you modify a device (for instance  “jailbreaking” an Apple product such as an iPhone or iPad) in order to remove restrictions on what and how apps and content can be stored and used — you can be held criminally liable for  ”copyright infringement.” The amended version introduces for the first time in our criminal law the concept of “digital rights management” (DRM) – which also covers how we use digital devices on the Internet and which behaviors are considered criminal.

Penalties for “jailbreaking” and other forms of copyright infringement range from three years in jail and at least P150,000 for the first offense, and up to nine years in jail and P1.5 million pesos for the third and subsequent offenses.

There’s more.

If you happen to be leasing out space — for instance, if you’re a mall or building owner  — to someone who infringes copyright, you could be held liable.

And that’s not all.

If someone else had downloaded music from the Internet and shared the file with you, and you then uploaded it onto your technological device and listened to it, you could also be held liable if the download site was one that the US recording and movie companies  have been trying to shut down.

Downloading music was the sixth most popular reason for surfing cited by 683 Internet users ages 10 to 17 in a 2009 study conducted by the Asian Institute of Journalism and Communications for UNICEF.

Authorities say that downloading music was made illegal as far back as the year 2000, when then President Joseph Estrada signed the E-Commerce Act into law. They point to Section 33 of the E-Commerce Act which punishes with fines and jail “piracy or the unauthorized…downloading” of, among others, “copyrighted works including legally protected sound recordings or phonograms…through the use of telecommunication networks…in a manner that infringes intellectual property rights.”

They neglect to point out, though, that the last part in Section 33 contains a qualifying clause which states that downloading becomes illegal only when done “in a manner that infringes intellectual property rights.”

Intellectual property rights are spelled out in RA 8293 – the Intellectual Property Code.

Here is the particular section in RA 8293 which states when the economic rights of performers (as spelled out in Section 203) and sound recording producers (as spelled out in Section 208) have to give way:

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. – Sections 203, 208 and 209 shall not apply where the acts referred to in those Sections are related to:

212.1. The use by a natural person exclusively for his own personal purposes;

212.2. Using short excerpts for reporting current events;

212.3. Use solely for the purpose of teaching or for scientific research; and

212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec. 44, P.D. No. 49a)

I will repeat – Section 212.1 states that the economic rights of performers and sound recording producers have to give way when the copyright material is for “the use by a natural person exclusively for his own personal purposes.”

What can be clearer than that? A natural person means you and me. Not a corporation.

Now guess what.

Our lawmakers erased the entire Section 212 and replaced it with something else that no longer contains this particular exception – “the use by a natural person exclusively for his own personal purposes.”

That exception is NOW GONE from the just-approved congressional measure amending RA 8293.

Later in another post, I will show you how they did it in such a totally confusing way that it would make you quite dizzy to understand it. It took me a long while to understand it. And at the end, I thought – Wow!

I will also try to answer the question posed to me by my hubby Alan:  What do ordinary Filipinos get out of the amended RA 8293?

Just out of curiosity, I did a word search of the phrase “personal purpose” in RA 8293, our present Intellectual Property Code. The phrase was repeated THREE TIMES.

I then inserted all the approved congressional amendments to RA 8293 and did the same word search for the phrase “personal purpose”. It’s now ALL GONE.

Because our lawmakers not only excised Section 212, which I just mentioned. They also erased the following:

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).

I was greatly disturbed by that, especially after I learned that no organization of overseas workers was invited to attend the lone public hearing that Senator Manuel Villar, the measure’s main sponsor, called on March 9, 2011. My Senate sources told me only representatives from the following were invited to that public hearing:

In this case, it was the Intellectual Property Office (IPO) under the Department of Trade and Industry which had played an active role in drafting the amendments to RA 8293. And so I asked Ricardo Blancaflor, the IPO Director General,  why they felt the need to erase Section 190.1 – which specifically guaranteed the rights of ordinary Filipinos flying home from overseas to bring home copyright materials such as DVD movies, music CDs and books.

And does this mean that Filipinos could now be open to extortion at the airport and harbors when they bring in such copyright materials?

Blancaflor’s initial reply to me was the following:

“The greater good has to be served. This law is for everybody.

I think instead of people criticizing it, I think people should recognize it’s a long awaited legislation. It was done within the bounds of the law.

The good side of the law should also be highlighted. Hindi negative that some interest groups are pushing.

We should be congratulated for the great work we are doing.”

These are only some of the amendments to RA 8293.

In the next article,  I will discuss at length what Blancaflor told me and what University College of Law Professor JJ Disini also told me about the amendments’ vast implications on the listening and viewing habits of ordinary Filipinos.

And especially on their Internet behavior and the way they transfer music from the PC, to an MP3, to an Android Phone and a Pad.

The amendments to RA 8293 could make them liable and open to extortion.

I have to hand it to Blancaflor. He gave me a very lengthy interview past office hours last Friday and although tired, he was very patient in explaining the law to me. He explained how provisions – which I thought favored foreign movie, recording and software companies – were in fact “pro-Filipino.”

My thanks, too, to Prof. Disini who answered my questions for many hours. I think we were both bleary-eyed when we ended our discussion past midnight.

Both of them talked passionately about a topic that would put most people to sleep. sleeping AddEmoticons04242

After realizing the amendments’ implications, however, you just might end up doing this – Yell AddEmoticons04239

 

Comments

    • It turns out we have no law punishing people who buy pirated DVDs.

      However, we NOW have a law punishing punishing people who DOWNLOAD the same movies and songs available as pirated DVDs with the amended Intellectual Property Code.

  3. I just want to ask if im studying abroad and im going on vacation sa pinas. I cant bring my own books to study while having my vacation?

  5. The Intellectual Property Code defines the rights of owners of intellectual properties, such as patents, trademarks and copyrights. With respect to patents, the Code expressly grants to the patent owner the exclusive right to import products covered by his patent, thus:

    SEC. 71. Rights Conferred by Patent. – 71.1. A patent shall confer on its owner the following exclusive rights:
    (a) Where the subject matter of a patent is a product, to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product,
    (b) Where the subject matter of a patent is a process, to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process.
    71.2. Patent owners shall also have the right to assign or transfer by succession the patent, and to conclude licensing contracts for the same. (See. 37, R.A. No. 165a)

    SEC. 76. Civil Action for Infringement. – 76.1. The making, using, offering for sale, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patentee, process without the authorization of the patentee constitutes patent infringement.

    No similar provision expressly granting copyright owners exclusive right to import is found in the Code with respect to copyrighted materials. However, the now repealed Section 190 of the Code provides that:

    SEC. 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)

    With Section 190 , there was in effect a restriction on the right to import copyrighted materials notwithstanding that there is no provision granting the copyright owner any exclusive right to import copyrighted materials. There is basis, consequently for the view that anyone may now freely import into the Philippines copyright materials (but not the fake ones, of course).

  6. this law will kill the mobile phone technicians profession whose livelihood was mostly based on phone unlocking… bago sana pirmahan ni pres noynoy ang batas na yan.. may nakahanda na syang work para sa mga mobile phone technician sa pilipinas…

    • Good example. Unlocking phones per se won’t penalise them. But unlocking it so they can put in it pirated music that they sell will get them in hot water.

  7. I agree with the law that held the space owner must be liable for illegal that happen within his property/building.

    Therefore, If you happen to be leasing out space must know what type of business will be set up and what are the reflection of that towards society.The goods, products, or brand must not be FAKE, INFRINGING, or COUNTERFEIT plus assurance of customers on buying genuine goods, and customer education to purchase genuine goods.

    In conclusion; it is just fair that mall owners are held LIABLE for copyright infringers who rent in their malls. Same way na dapat liable sila for people who get mugged or children who get snatched inside the mall.

  8. I was browsing the net to check out what’s new. I saw a link from one of my friends. It was about Congress erasing the rights to bring books, music and movies from abroad. I decided to read it, since I was quite curious. There, I saw that the blog pointed on the changes about RA 8293. The first one mentioned was about jailbreaking being considered as a crime. This is not true, since you must be found guilty of copyright infringement. Jailbreaking just increases the penalty if one is found guilty the penalty, and it won’t really send you to jail because you did that.

    Speaking of gadgets, file sharing also seems to be under fire. It is understandable, since many local artists are being affected by music piracy. Besides these people actually work hard for their music. If we buy albums and digital copies from international artists, why cant we do the same? For other Asian acts such as J-Pop and K-Pop, fans actually buy their albums so they would get an edge at countdown shows and it shows how much the fans are willing to support their idols. BTW, most of the songs which could be legally downloaded are priced cheap. Since the business also knows that your money also goes to other commitments in life, not just by buying albums.

    Eh, speaking of which.. some people were also asking if it’s still legal to bring media into the Philippines from another country. Well, the answer is a big fat YES! In fact, you can bring more than three copies! Isn’t that awesome or what? For me, it is good news since I would be able to bring a ton of books, games, albums and DVDs. It is also fantastic since I would be able to play my games even before it is released. And for me to also spaz over the latest K pop albums.

    • Hooray for you.

      You read the law that way.

      Wait until the restrictions start trickling in, citing the amended IP Code as the basis.

      For instance, let’s take the “awesome” new right of OCWs to bring home more than three copies of legitimately bought software abroad.

      Once the amended IP Code comes into full force and once the IRRs are set up, let’s see you bring in ONE HUDNRED LEGITIMATELY BOUGHT MICROSOFT PRODUCTS through NAIA.

      Let’s test the waters, shall we.

      • Wait for the IRR of the new amended Law on IP and read first the REPEALING CLAUSE so as the SEPARABILITY [email protected] mike santos …

        Of course we can always take refuge at Supreme Court , but why WAIT THERE . It will be better if the law will be VETOED by PNOY and further review and public hearing’s ( TRUE ) will be conducted first.

        • Presidential veto is not absolute. The veto can be over-ridden by I think 2/3 votes of the members of each chamber. I don’t know exactly the procedure but it can be over-ridden. Finally there is a remedy for the over-ride, i.e., take the matter to the Supreme Court for infirmities or unconstitutional provisions.

          But that’s not the important point. Usually they will try to rectify any perceived error for the sake
          of what is called as parliamentary courtesy. Wala naman sigurong bastusan between co-equal
          departments. The President in practical terms need Congressional support for his programs.

          Even based on jurisprudence, the Supreme Court is duty-bound to sustain the acts of the Executive and/or the legislative in case of doubt. It is expected they will be careful because after the Supreme Court, there is no more remedy except perhaps a showdown with the people. Hehehe

        • Yes @Arsenio it is not really absolute , the Congress can overide it so as every Department respecting their Co-Equal Department’s but the Most PARAMOUNT of all or firstl RESPECT our BASIC RIGHTs .

          I believe that the amended Law on I.P. was a Curtailment of some of our Constitutional Rights ,guaranted under the Constitution. WHY wait , if the prevention of that curtailment is the non signing of PNOY on the amended law on IP sir…. He he ngayon na , habang isinusulat pa nila ang IRR ng BAGONG batas.

        • Correct me if I am wrong. Normally IRRs are practically prepared “after” the law is passed. I have never come across a law with an IRR before it is approved/passed or lapsed into law.

          How can there be an IRR when it is not a law yet? I don’t know, probably a draft. Probably I’m wrong. But it should be that way logically that there is a draft already. If ganun sila kasipag and diligent in their work, maraming salamat po.

          As an example, if you remember there was that amendment to the National Internal Revenue Code (NIRC) increasing the amounts of personal exemptions and other amendments. The IRR was issued I think 6 months after the amendments were passed and signed into law. They didn’t how to interpret it and I remember the then Senator Roxas filing a complaint or appeal of some sort that the B.I.R. was interpreting the law and not implementing it. Meaning he was claiming that the B.I.R. were making rules which were not in the law or the intent of the law. Probable reason, political expediency to pass the law without planning how to correctly implement. In the end, we never knew what the outcome of the Roxas action. In the end, the B.I.R. rules were followed because the questioned transitory nature of the issues transpired already. What followed was a series of 2 extensions for all taxpayers to file the related and affected annual reports. Meanwhile, while the IRR was pending, it could not hold pending related transactions such as refund of taxes. And if I am not wrong, Roxas was either the author/proponent or co-author of the bill.

          Yes, only in the Philippines.

          Just like the existing IPP laws, there are some provisions there which at a certain point of time were not yet implemented and there were on-going cases already. I remember it concerned the creation of a Board to implement fines and sanctions.

        • YES [email protected] ….KAYA NGA KAKO NAKAKATAKOT that PNOY will sign now the amended Law on I.P. It is because of so many inconsistencies between or against RA. 8293 and also against PD # 49.

          Those inconsistencies can be harmonize by the IRR . Like section 30 of PD 49 , last paragraph, that 3 copies of books allowed by a balikbayan in bringing in home in the Philippines. And other’s said to be defined not crystal clear on the amended Law on IP.

          Kaya sabi ko , with the express provision of the law authorizing the Bureau of Customs and the Department of Finance to reduced into writings the Rules and Regulation of the amended Law on I.P. , the provisions thereat which are not clear and DISADVANTAGEOUS for US , can become clearer if written under the Whims and Caprice of the B.C. and D.F.

          Pag naprmahan ang batas , IRR will follow and our remedy now is to go to the Supreme Court for our redress….. WHY WAIT? If it can be send back to Congress for further review and public hearing thru the VETO of PNOY, anyway our Basic Rights as Guaranted in the Constitution we now feel are goingnto be violated with some provisions of the new amended Law on Intelectual Property.

        • The IRR or the Implementing Rules and Regulations has the EFFECT of a LAW itself so that under the REPEALING CLAUSE of the IRR, if it was stated that Presidential Decrees , Laws, Presidential Orders and Rules and Regulation or part thereof which are inconsistent with the NEW Republic Act are hereby repealed….. Vested Rights and Privileges granted/acquired on the old Laws,PD,PO etc., are no longer available if repealed.

        • In fact the SEPARABILITY CLAUSE and REPEALING CLAUSE of an Implementing Rules and Regulations of the Law will play an important part of the amendatory Law and the IRR itself .

          I know that an IRR of a LAW comes after signing of the Law itself , SO , Much More that with the existence of infirmities in the new amendatory Law, WHY NOT CORRECT FIRST WHAT IT IS CLOUDY BENEATH THE LAW BEFORE …..PNOY signed that LAW.

        • Sa IRR dyan sila minsan nagtatago ng BOMBA o LENIENCY o FAVORABLENESS at ang NASA isip ng PROPONENTs so as sa MAMBABATAS na nag hain ay BAKA MAKALUSOT….. E KUNG MAKALUSUT , PAPANO NAMAN si Juan de laCruz @Arsenio .

        • Yes I agree, the laws may seem to be fair but the the implementation are practically done in favor of the privileged few.

          Swerte lang pag nakatsamba ang ordinary tao tulad natin. Then we say it’s fair.

          For those not lucky enough to benefit from the actual intent, sorry na lang walang kang “K” whatever that means.

          The rules must not only seem fair, reasonable or justified. They must be actually and in reality be fair, reasonable and justified. Give everyone his/her due regardless of station in life. Kaya nga probably ang “dare” ni Raissa is “let’s test the waters”. She is not fully convince with words of opinion or advices only. The law or rules must be crystal clear in the most possible way.

        • Yes, Victin. They should first repeal the entire PD 49 categorically. Say, “PD 49 is hereby expressly repealed” without any qualifications such as inconsistent parts thereof. So that the IRR would be controlling and without PD 49 co-existing with the new IP Code.

  9. “Life, Liberty, and the pursuit of Happiness” is a well-known phrase in the United States Declaration of Independence. The phrase is meant to exemplify the “unalienable rights” with which all human beings are endowed for the protection of which they institute governments.

    The United States Declaration of Independence, which was primarily drafted by Thomas Jefferson, was adopted by the Second Continental Congress on July 4, 1776.[2] The text of the second section of the Declaration of Independence reads,
    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
    (Source : Wikipedia)

    The rights to life, liberty and pursuit of happiness is found in other Constitutions including the Universal Declaration of Human Rights. There is a quite a massive response to Ms. Raissa’s blog because it appears these rights are being threatened. Also, the right to property of the common people like us vs. the right to property of intellectual proprietors.

    Government is basically entrusted to protect the interests of its citizens, their happiness although with due
    regard for the rights of others. In the hierarchy of values, can we say that the right to life, liberty and pursuit
    of happiness is higher than the right to property. Well, I think so. Laws are made to attain order and give
    justice. Primarily, it should protect the weak. Otherwise, it is not “for the people”.

    So where is the “Gusto ko happy ka, or happy kayo?”. Many are confused as I am confused with some of the
    arguments here which are technical in nature. Why? Because the government lacked the actual sincerity to explain the proposed law. Ms. Raissa brought the issue to the people because she is also worried about
    what it actually means for the people. She is probably not satisfied with the answers she was getting.

    In other words, goverment efforts to explain the proposed law is lacking the necessary perseverance or
    zeal or enthusiasm (Sigla in Tagalog). Will the people just leave it to the lawyers to act on the matter. The answer is a resound “NO!”.

    Benefit of the doubt is therefor unacceptable. I think this is what Ms. Raissa is telling in her blog and
    certainly we are affected.

    • Arsenio, thank you for nailing what I’ve tried to express in several blogs. The Philippine Constitution seems to me to be a legalistic document lacking soul. What is being expressed in this blog thread is that “soul”, the desire to live free and active and richly without having to report to this or that heavy-handed, authoritarian agency. In a way, Raissa’s blog is so valuable, not for the arguments about music CD’s, but because it represents the voice of Filipinos who would kindly like it’s government to allow them to live free and healthy and active lives, in search of opportunity and happiness. Bingo. Beautiful. Thanks.

      • I think I got the idea from your comments and with a little knowledge of law, democratic principles and watching the movie National Treasurer over and over again in the past couple of years.

        Philippine laws are mostly copied from American laws (and jurisprudence) I think primarily because of their very high sense of fairness and easy to understand principles in relation to individual freedoms. Whenever there is a legal question with no precedence in the Philippines, US cases are cited in order to arrive at decisions. In the modern days they still appear to be consistently but sometimes overly democratic to a fault due to a high degree of respect for individuals even for those accused of crimes. That is the legacy of great American leaders like Benjamin Franklin, Thomas Jefferson, George Washington and others and of course the American people to the world handed down to all peoples of the world from generation to generation.

        There will always be a lot to learn from reading excerpts from the Black Law Dictionary because legal and democratic principles are briefly explained and American jurisprudence is very rich, certainly a gift for all mankind to emulate and imitate. There is no other model or standard available.

        There lies the difference in leadership and service to the people. American leaders (I think mostly) would rather sacrifice their personal interests than damage democratic principles and ideals. Significant leaders here sometimes sacrifice personal but not “bank interests” when the time comes to make a choice.

        The “hurt” being experienced now being profusely and angrily expressed in this blog concerns those
        inalienable rights which may be imaginably or actually threatened, we don’t know exactly. The Filipino people especially the OFWs I think deserve better treatment from their leaders. In the American scenario, I would think the American people trust their leaders, systems and process to protect them in their shores or outside of it. In the Philippine setting , there is general distrust for our leaders, systems and actual practices. The citizens will now try to protect themselves.

        Thank you Mr. Joe America. God bless.