Reply to Ricardo Blancaflor, Intellectual Property Office Director-General

By Raïssa Robles

Yesterday afternoon, reacting to my blog post about the amended RA 8293, IPO director General Ricardo Blancaflor gave an interview to ANC where he addressed some of the points in my article. His office website also published a long “explanation” on the things I brought up.

Apparently stung by the story, the IPO has gone into overdrive and fired off several press releases and statements to the media.

Some people seem to think that with these responses the matter is closed, and I was mistaken.

Such is not the case, as this post will show.

In responding to Blancaflor’s response, I’ve taken the liberty of consolidating his statements, as well as that of his office, into several main topics.

ONE:

On the deletion of Section 190.1, which expressly states that Filipinos can bring home up to three copies each of copyrighted books, music and movies:

Blancaflor said, as quoted by ABS-CBN News’ David Dizon:

“We took that provision out and now you can bring as many as you can as long as 1) you are not infringing and 2) they are covered by fair use. Personal use is one of the samples of fair use,” he said.

Blancaflor said that in the past, a balikbayan bringing in 10 books from abroad could be stopped by Customs because of Section 190 of the IP Code.

Now, he said Filipinos could bring as many books as they want, provided that there is no copyright infringement and the books are for personal use or for educational purposes such as libraries or universities.

On the website of the Intellectual Property Office, DG Blancaflor also stated:

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.

My reply:

DG Blancaflor said that with Section 190.1 deleted, balikbayans can bring home “as many as you can.”

Unfortunately, his statement is incomplete. Balikbayans can indeed bring home as many CDs and books as they want –  PROVIDED they meet two conditions.

• FIRST, the materials must not infringe copyright.
• SECOND, the books must only be for personal use or educational purposes.

That seems easy enough to understand, but think about it: HOW will you be able to tell if the materials infringe copyright?

By the way, NOWHERE in the amended law is there a definition of what “infringement” means. Section 184 and Section 212 state what is NOT infringement. From these sections, you are supposed to infer what “infringement” means. Section  216 further confuses the definition of infringement. It states:

Sec. 216. Infringement. A person infringes a right protected under this act when one:

(A) Directly commits an infringement;

There’s another problem. Blancaflor said it’s OK to bring in books for personal use. But THE LAW DOES NOT SAY THAT, only Blancaflor does.

On the IPO website, DG Blancaflor points to Chapter VIII, Sec. 185 IP Code as the provision that guarantees the right of Filipinos to stuff books, movies and music in their personal baggage.

Here’s Section 185 he’s referring to. Notice that nowhere does it state “personal purpose” as part of fair use. All the reasons stated below are for serious stuff like news reporting and academic work. There’s nothing that indicates personal enjoyment is part of fair use.

Section 185. Fair Use of a Copyrighted Work. – 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(a) The purpose and character of the use, including whether such use is of a commercial nature or is
for non-profit educational purposes;

(b) The nature of the copyrighted work;

(c) The amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and

(d) The effect of the use upon the potential market for or value of the copyrighted work.

Furthermore, the only provision which specified “personal purpose” as part of fair use is Section 212.1 – which Congress deleted. It said one form of fair use is “the use by a natural person exclusively for his own personal purposes.”

Dear DG Blancaflor, in case I missed it, would you mind pointing out which part of Section 185 allows balikbayans to bring home 10 books of the same title – for “personal use”, not for educational purpose? Also, why did you only mention books? What about music and videos? Those were allowed under the deleted Section 190.1.

By the way Blancaflor also says the following on the IPO website:

“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.”

My response? I never raised those points so his mention of them is is irrelevant and immaterial.

TWO:

On jailbreaking

DG Blancaflor posted this on the IPO website:

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.

I asked Prof. Disini whether jailbreaking – which removes restrictions on what and how apps and content can be stored and used – is a crime. He explained:

My understanding is, that was the intention of the law. To prohibit it.

When you circumvent technological measure, the purpose is to get access to the work in order to modify it. Why would you jailbreak something? You defeat the protection in order to change the code to make the device do other things.  Modifications are an infringement of copyright.

My reply:

If one lawyer, Blancaflor,  says it means one thing, and another lawyer, Disini, reads the same law and says it means something else, then the wording of the law has to be made clearer.

THREE:

On downloading pirated music

DG Blancaflor posted this on the IPO website:

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).

My reply:  

I never said downloading pirated music was legal. What I wrote was:

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.[Emphasis mine]

Let me put the context of this particular discussion.  I had asked Prof. JJ Disini about the implications of inserting the phrase “temporary or permanent, in whole or in part” in Section 171.9, which legally defines the word “reproduction”.

The amended version [with the insertions in red] now reads :

171. 9 “Reproduction” is the making of one (1) or more copies, temporary or permanent, in whole or in part, of a work or a sound recording in any manner or form without prejudice to the provisions of Section 185 of this Act (SecA1[E], P.D. No. 49a);

The Section 185 talked about “fair use” of copyright material.

Prof. Disini’s explanation on the insertion of “temporary or permanent, in whole or in part”:

That’s for software. When you look at copyright, you look at economic rights. It does not include the right to use the thing.

For instance, you have a song. If I sing the song I’m using it. I’m not making a copy but I’m using it. I’m just singing it, unless I perform it in public for money.

Now think of software. Let’s say you bought a PC with pirated software. You did not put it there. When you run the software, you are not making a copy but you are using it. You cannot infringe the right of the copyright owner.

Now, what’s the significance of inserting the phrase “temporary or permanent, in whole or in part” in the legal definition of copying or reproduction?

For instance, someone gave you an iPod. You have no idea whether the songs in the iPod are licensed or not. But the fact that while listening to the music a copy of the song is being made temporarily in the device, you are already committing copyright infringement.

When you surf on your PC, a temporary copy of the websites you visit is made in your RAM (Random Access Memory).

What those amendments are saying now is that the mere act of visiting websites, if the websites don’t give you authority to copy their content, then you are infringing the website owner’s copyright because your computer is making a copy in your RAM.

What those amendments are saying now is that the mere act of surfing the web (and visiting download websites) is copyright infringement.

That includes software, books, accessing a book – copied temporarily – buying a device full of movies – when that device operates, it plays the movies onto your screen. You are not making a copy anymore. You bought it with all copies inside. But the act of playing it, you are committing copyright infringement under the new definition.

I asked Prof. Disini how he came upon such an explanation.

He said this interpretation of the word “copying” has been made by foreign copyright “maximalists”:

It’s an interpretation that is desirable for them because it strengthens the economic rights of digital content owners.

DG Blancaflor’s reaction to Disini’s interpretation:  

I ran by DG Blancaflor the explanation of Prof. Disini. He said that was not the intention behind  amending Section 171.9 nor is it the correct interpretation. This is Blancaflor’s explanation:

It’s another pro-Filipino provision. When something (you create) is stored in a computer, that’s a very temporary production. We included ‘temporary’ reproduction because this also includes the production of software which is in a very temporary state… he can store it (his creation) in the (computer) memory.

He explained that because of this, creators of songs and software who file an infringement suit could present their work as evidence, even though this is still in a temporary state inside a computer and not a “permanent fixation” like a record or CD.

He also said that unwittingly listening to pirated music does not make a person liable under the “fair use” clause because one of the four elements of fair use is purpose of the use. In this case, he said it’s “for personal reason”. He then pointed to Section 185 which defines fair use.

My reply:

Despite what Blancaflor says, personal purpose is not among the elements listed under Section 185, which I discussed earlier in this piece.

“Personal purpose” is listed under Section 212.1. But that section HAS BEEN ERASED BY THE AMENDED law

FOUR:

On deleting Section 212:

DG Blancaflor indicated on the IPO website that this deletion is actually A GOOD THING because it “in fact reinforces the general exception of fair use for infringement of related rights.”

My reply:

My understanding of DG Blancaflor’s convoluted sentence is that deleting the section on “personal purpose” expands the way the public can use copyrighted material without infringing on the rights of performers, producers or sound recordings and broadcasting organizations.

Unfortunately his sentence doesn’t explain how.

1. He does not explain why “the use by a natural person exclusively for his own purposes” was deleted by the amended RA 8293 as part of fair use.
2. He does not explain why this deletion is A GOOD THING that expands the way the public can use copyrighted material.

I find it quite interesting that the word “personal purpose” has been excised from a law on intellectual property.

I find it striking that the IPO, the agency created to watch over the fruits of human creativity is totally devoid of the human aspect in its stated mission posted on its website:

We are a knowledge-driven government organization that works towards economic, technological, and socio-cultural development by communicating, enabling, and ensuring the effective use of the Intellectual Property System in all levels of society for the creation, protection, utilization, and enforcement of Intellectual Property.

What is the purpose of copyright?

Prof. Disini explained it this way to me:

The purpose of copyright, intellectual property (IP) rights is to enhance public domain – the works that are freely accessible to everyone. Because we want culture to flourish we give exclusive rights to people who make cultural works so that they can make a living from it. But only for a limited period of exclusivity. But when the exclusivity is gone, the public can enjoy it.

Even without IP, the people are going to make songs. We want more songs and the only way for them to produce more is to give them exclusive rights. The end goal is to enhance culture.

These works enter the public domain so we don’t have to pay anymore. The Spoliarium copyright is gone. So now I can take a picture of it, make a song about it, that further enhances the culture.

How come there is no provision in the IP Code that tells us how to donate to the public domain. The IP Code is all about creating and protecting property instead of enhancing culture.