In Hot Pursuit : Copyright Reform

by precybacalangco

Foreword

What are these intellectual property rights?  Is there really a need to protect such, particularly copyright right, from transgression? Why it needs to be pursued? Are our current laws not sufficient to see the end of this goal or is there something else that hinders its take off?  To whose shoulders the burden of pushing reforms for copyright should rest to gain popularity domestically?

Brief Background – Intellectual Property Rights in the Philippines

Philippine 1987 Constitution explicitly mandates that the State shall protect intellectual property. Towards that end, the government has made it a State policy to protect and promote intellectual property rights. It further recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilities transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in the Intellectual Property Code of the Philippines.

The Philippine government has been protecting intellectual property rights since 1947, when the first laws on the protection IPR were enacted. Such laws include:

  • Republic Act No. 165 otherwise known as “An Act Creating a Patent Office, Prescribing its Powers and Duties, Regulating the Issuance of Patents and Appropriating Funds Therefore”
  • Republic Act No. 166 otherwise known as “An Act to Provide for the Registration and Protection of Trademarks, Trade Names and Service Marks, Defining Unfair Competition and False Marking and Providing Remedies Against the Same, and for other Purposes”

Subsequent to the foregoing, additional laws were enacted and issuances promulgated to further promote and protect intellectual property rights, to wit:

  • Republic Act No. 422 transferring the examination of copyright applications to the Bureau of Public Libraries.
  • Republic Act No. 623 regulating the use of duly stamped or marked bottles, boxes, casks, kegs, barrels, and other similar containers;  providing, in the case of foreign applicants, for reciprocity and recognition of their priority rights; establishing, in the case of trademarks, principal and supplemental as well as interference proceedings;  extending protection of utility models and industrial designs under the patent system; and providing, in the case of trademark registration, for reciprocity arrangement with other countries.
  • Republic Act No. 5434 providing for a uniform procedure for appeals from the decision of quasi-judicial officers including the Director of Patents.
  • Administrative Order No. 94 [November 20, 1967] creating a committee to review the Philippine patent system and recommend amendatory laws to further upgrade it.
  • Presidential Decree No. 721 creating the Legal Services Division and the Research and Information Division in the Philippine Patent Office. Subsequently, major reorganization of the various Divisions was made in the 1980’s.  The General Organic Chemistry Division and the ChemicalTechnology Division were merged to form the Chemical Division.  The Mechanical-Electrical Division was merged with the Mechanical, Design, Utility Model Division and Electrical Division to form the Mechanical and Electrical Examining Division.
  • Presidential Decree No. 1263 amending Republic Acts Nos. 165 and 166, granting authority to the Philippine Patent Office to increase its fees and to spend a portion of its income for priority projects; exempting indigent inventors who filed their application for patent through the Philippine Inventor’s Commission from all fees charged by the Philippine Patent Office; and shortening the period for the grant of a compulsory license from one hundred eighty [180] days to one hundred twenty [120] days from the date the petition is filed in cases where the compulsory license applied for is on a patented product or process involving  any project approved by the Board of Investments [BOI].
  • Executive Order No. 133 [February 27, 1987] merging the Philippine Patent Office with the then Technology Transfer Board thereby creating the Bureau of Patents, Trademarks and Technology Transfer  [BPTTT].
  • Executive Order No. 60 was issued in 1993 creating the Inter-Agency Committee on Intellectual Property Rights [IAC-IPR] under the Office of the President of the Philippines.
  • Department Administrative Orders Nos. 5 and 6 introduced amendments to the Rules of Practice in Patent and Trademark Cases and the Rules of Procedures of the Technology Transfer Registry effective on March 15, 1993.

IPR promotion and protection have also been made a state policy as the 1973 Constitution provides that the exclusive rights to inventions, writings and artistic creations shall be secured to inventors, authors, and artists for a limited period.

The 1987 Constitution, meanwhile, explicitly mandates that the State shall protect intellectual property.

The major turning point in the protection of IPR in the Philippines is the passing and signing into law of the Intellectual Property Code of the Philippines (Republic Act 8293) in 1997. The IP Code repealed the old IP and IP-related laws such as the Republic Act 165 (Patents Law); Republic Act 166 (Trademarks Law); Presidential Decree 49 (Copyright/Related Rights Law); Presidential Decree 285 (Textbook reprinting Law); and Articles 188 and 189 of the Revised Penal Code (on unlawful competition/infringement). Consequent to this was the establishment of the Intellectual Property Office that would administer and implement the State policies declared in the Act.

Intellectual Property Rights (“IPR”)

Intellectual property refers to any creation or product of the human mind or intellect. It can be an invention, an original design, a practical application of a good idea, a mark of ownership such as trademark, literary and artistic works, among other things. Intellectual property rights, on the other hand, are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.

IPR Protection

Vital to the concern of IPR protection is the acceptance of society that intellectual property is an economic asset in which rights can be allocated to. That it is an income stream that needs management, hence, the provision of the rights. As an asset it is a good and/or service with “definite economic value, and with implications for trade and competition in the market.”

By acknowledging the nature of these rights, it is therefore imperative to device policies and programs towards protecting them. Safeguarding the rights of scientists, artists, and other holders of IP encourages more intellectual property creations. This means more inventions, innovations, discoveries, and scientific discussions that will develop our indigenous science and technology. In addition, the creative geniuses of Filipinos in the fields of arts and music are also promoted to emerge and thrive.

Therefore, by protecting the IPRs, we not only develop our economy though the economic revenues generated by the endeavors, but we also support the growth of our culture. IPR protection also allows efficient and effective technology transfers. A country would only be willing to export its technology if it is confident that it will be able to receive the just economic rents. Numerous studies have concluded a direct relationship between IP protection and foreign direct investments. Hence, foreign investment decisions are also dependent in the state of IPR infringements in a country.   The Philippines has long recognized the significance of IPR protection, especially with the country’s relevant pool of talents in the fields of science, information technology, biotechnology, engineering, arts, and music. It has been a member of the Berne Convention (Literary and Artistic Works) since 1951; Paris Convention (Industrial Property), 1965; WIPO Convention, 1980; Rome Convention (Performers, Producers and Phonograms and Broadcasting Organizations), 1984; TRIPS Agreement, 1995; PCT (patents), 2001; WCT (WIPO Copyright Treaty), 2002; and the WPPT (WIPO Performances and Phonograms Treaty) in 2002.

Copyright and rights related to copyright

Copyright law is enshrined in Chapter IV of Republic Act 8293, otherwise known as the Intellectual Property Code of the Philippines.  Copyright maybe defined as a form of intellectual property which protects the rights of authors and creators of literary and artistic works. It refers to the main act in which, in respect of literary and artistic creation, may be made only by the author or with his authorization. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as their content, quality and purpose.

Also protected through copyright and related (sometimes referred to as “neighbouring”) rights are the rights of performers (e.g. actors, singers and musicians), producers of phonograms (sound recordings) and broadcasting organizations. The main social purpose of protection of copyright and related rights is to encourage and reward creative work.

Copyright provides economic rights which refer to the rights of the author or copyright owner to derive financial reward from the use of his works by others and moral rights which refer to the rights of the author to claim authorship of the work (Right of Paternity) and the right to restrain the use of his name with respect to any work not of his own creation or a distorted version of his work.

Copyright covers literary and artistic works, which is understood to include every original work of authorship regardless of artistic or literary merit.

Works covered by copyright include but are not limited to literary works such as novels, poems and plays; newspaper articles; films and television programs; letters; artistic works including paintings, sculptures, drawing and photographs; architecture; computer programs; and advertisements, maps and technical drawings.

Concept of 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.

The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright.

Issue on Copyright: Infringement

Despite numerous efforts to strengthen the foundation of IPR protection, the state of IPR infringements in the country continues to be a serious concern.  Infringement refers to the act of violating copyright owner’s exclusive rights, such as the right to reproduce, distribute, display or perform the copyrighted work, or to make derivative works, without permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work’s creator.

This is the focal point where IPR protection revolves.

Sec 216 of RA 8293 provides:  Infringement. – A person infringes a right protected under this Act when one:

(a) Directly commits an infringement;

(b) Benefits from the infringing activity of another person who commits an infringement if the person benefiting has been given notice of the infringing activity and has the right and ability to control the activities of the other person;

(c)  With knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.

At present, among the rampant IPR infringement in our country are: 1) optical media piracy, 2) copyright and trademark violations of all types, 3) importation of counterfeit merchandise, 4) software piracy of all types, and 5) bootleg cable television. The aforementioned are the ones that have the immediate attention of the government and private sectors in the Philippines. Meanwhile, the affected industries of these IPR violations are: 1) Software and IT Services, 2) Music and Recording, 3) Movie and Video, 4) Literary and Publishing, and 5) Merchandising/Manufacturing Industries¹.

The actual pursuit

Chasing something so noble, like the protection of one’s right to his literary and artistic works, should be given preferential attention.  Piracy and theft, two common words associated with infringement, deprive the copyright owners of their exclusive right, specifically the right to be associated with their works and gain financial fruits from them.  Present laws were crafted, initially to encourage creators to create more, not just for profit but create for the love of it.  However, a solid framework is yet to be established to give these creators peace of mind in terms of protecting their creative or copyrighted works.

Take for instance this common scenario: “Juan labored for days and nights and years to come up with an original music composition.  However, since he is just a poor boy and knows nothing and no one to have his work published, he yielded to an advice from a friend to approach Mr. Rich who has the machinery to realize his dream.  Unfortunately, Mr. Rich happens to be a bad guy.  In the end, Juan was left with nothing but the fact that he owns the composition.  Gone was his creation along with his dreams just because he does not have the resources and sufficient knowledge on how to protect his property right, a right that is susceptible to exploitation by those with money and in power.  To further fuel the misery of Juan, no immediate recourse can be had with the implementing body whose primary task is to ensure protection of IPR”. Such is the sad plight of Juan whose only desire is for his work to be recognized and be associated with it.

Sad as it is, that’s a fact of life.  The challenge now is on us, who are equipped with appropriate knowledge to start the fight and see the end of the battle.  In the process, the most important key is sustaining the flame, keeping it burning until the goal is met.  At this point, we cannot just simply turn a blind eye on what is happening around us and pretend that everything is all right.  For once, let’s step back and evaluate how far we have gone in our quest for IPR protection.  Yes, laws were enacted and some were even repealed along the journey toward this end, however, the question remains, “Are we there yet?”  When can we possibly see the day that people alike are no longer beset with uncertainty and doubt when prompted with issues on IPR protection?

Laws for these intellectual properties were installed way back year 1947 but if you’ll look at the line of cases decided at present, you only see a handful of them.  If we take this reality positively, this might lead us to conclude of an effective and efficient implementation of our laws, hence no rampant violations are raised.  On the other side, which I think is the more realistic scenario, we can assume that there are so many infringement cases filed and/or unfiled and undecided that the body tasked to oversee the enforcement, the Intellectual Property Office (“IPO”) and its various branches cannot handle due to certain limitations, be it inherent in the organization or brought about by inefficient management and implementation.  If you further scout around, you’ll likely to stumble on so many cries for reform on various aspects of copyright laws.  Why do you think so? Was it because our current laws, despite of the recent amendments, still lack in substance to fully support State’s policy of protecting various intellectual property rights? And if these laws are sufficient, how can we measure their success? How can we validate?  What gets inspected gets respected.  Can we observe the same in our aspiration to push reforms and positive change towards IPR protection?  What can we specifically do to make a mark?

Borrowing the words of Professor Lawrence Lessig, a famous legal scholar, in one of his talks: “we share too little of our culture and when we do share, too much is done illegally”.  With this view, he calls for the enactment of laws that will allow us to share more legally.  I understand fully where these observations emanate.  Frustrations would likely to build up in cases where ideas and creation are bountiful, actors are aplenty, yet few success stories are told.  Much as I would like to understand the intricacies of each function and the involved work procedures, I still cannot reconcile facts from reality and the reports and related data from the provisions of the laws intended to protect IPR.

Let’s not wait for undesirable things to happen to anyone, before we pull our acts together. One relevant eye opener was the struggle of Aaron Swartz that ended to his committing suicide after being charged of thirteen (13) felonies.  His only vision then is to share free information and social justice. Such a waste of life, I must say.  I was a bit shaken how passionately this young guy fought for what he thinks is right.  I can only wish that through Aaron’s self sacrifice, a tiny spark of heroism in our blood may ignite so we could desire to fight for others and aim to win the battle for them.

Having said that, let’s join our hands together and yield to the call for help of our fellowmen.  With one spirit, let us pursue active promotion of protecting copyright through widespread information campaign, discussion of policies, equipping people with sufficient knowledge of the law through various seminars on the subject, strict implementation and monitoring and timely reporting of any violation to proper authorities.   New legislations, not just amendments, must be passed and financial support must be secured to augment better enforcement of the Intellectual Property (“IP”) laws so we can have an efficient and effective IP protection. Let’s discard the attitude of indifference just because we are not directly affected by their implementation. As said, with developed economies due to revenues generated from IPR protection, we also support the growth of our culture.

With legislations and strong political will in the implementation of these laws, no one can fail.  Support would definitely come in handy from all concerned.  After all, who can say “no” to protection? Definitely, not those who stand to be benefited of these copyright reforms.

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