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New IP law allows warrantless searches, 'erases' right to personal use

February 14, 2013 10:06pm

UPDATED FEB20 A new law threatens to strip Filipinos of the right to bring home copyrighted music, movies, and books from abroad —and all it lacks is just the President's signature, warned investigative journalist Raissa Robles in her blog on Thursday.
 
Worse, according to technology law expert Atty. JJ Disini, the newly amended Intellectual Property Code of the Philippines (RA 8293) allows warrantless searches of business establishments and offices for violations of IP rights. Also, the amendments seek to expand the meaning of infringement to include the making of temporary copies. Finally, mall owners, lessors, and online content providers wil become more vulnerable to infringement done by others.
 
The revised RA 8293, primarily sponsored by Sen. Manuel Villar, was passed by Congress and submitted to President Benigno Aquino III on January 29 for his approval and enactment.
 
'Erasing' consumers' rights
 
In her blog, Robles explained that the current version of RA 8293 allows the importation of copyrighted work for personal use without the need for consent from the copyright owner, as long as the material is not intended for sale and does not exceed three copies. 
 
But, according to Robles, the revised RA 8293 basically "erases" the right to personal use. She said that a crucial section giving leeway for the personal consumption of copyrighted material has been removed from the new version.
 
"Section 212.1 (of the current RA 8293) 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' (but) that measure is NOW GONE (highlight and caps hers) from the just-approved measure amending RA 8293,"  Robles said.
 
Technology law expert Atty. JJ Disini agrees.
 
"In the old law, it's very explicit that, when you're coming into the country with your personal media collection, even if the copyright owner says that you can't bring them in, you can go and point to the law and say that you're allowed to do that," Disini explained in a phone interview.
 
"But that provision has now been removed," he stressed.
 
What are 'infringing material'?
 
Disini pointed out that, in other countries, the so-called "first-sale doctrine" basically allows original buyers to do whatever they want with the copyrighted material.
 
"For example, if you buy a book, you can do whatever you want with it. You can even sell it," he said. "As a result, there is a thriving secondhand book market abroad. Those books may then be imported into the country."
 
But Disini says that the amended law may prevent importation of otherwise authentic books, because the law is vague on what materials may be considered to be infringing on intellectual property rights.
 
"The problem is, what is meant by 'infringing materials'? For a lot of intellectual property owners, it can mean that you're already infringing their rights merely by their not allowing you to possess their materials," he explained.
 
Disini said that this can impact not just the personal ownership of copyrighted materials, but also even the wholesale importation of the same —particularly under Section 190 on the "Importation and Exportation of Infringing Materials" in the revised law.
 
"What's going to happen now is that copyright owners can simply go to the Bureau of Customs and say that copyrighted items can't be imported except by certain identified persons," he said.
 
Disini warned that this could give companies the ability to control market prices by leveraging the law to prevent the importation of copyrighted materials —even if these happen to be legal copies.
 
"There is a danger that parallel importation of authentic copies might be prohibited under the proposed law," he warned.
 
Warrantless visits: unconstitutional
 
Disini also warned that an amendment to Section 7 of RA 8293 would allow warrantless inspections of establishments —an act which, he says, is clearly unconstitutional. The constitution prevents government agents from entering private spaces such as offices and homes without a warrant issued by a judge.
 
The revised Section 7(d) says that authorities can "conduct visits... to establishments and businesses engaging in activities violating intellectual property rights and provisions of this act based on report, information or complaint received (by authorities)."
 
"That's a warrantless search. The intellectual property owner can have it done directly, with no warrant. Wala kang magagawa, even upon information lang, pwede na pumasok (ang mga awtoridad)," he said.
 
"A warrant (should be) necessary and must be issued by a judge," Disini stressed.
 
Temporary copies already infringe law
 
Disini said that, under the revised RA 8293, the mere possession of a "temporary copy" of copyrighted material already makes one criminally liable.
 
"Under economic rights, if you're just using software, not making a copy, kahit na pirated copy yan, you're not violating copyright law. If all you're doing is just using pirated software, should be safe," he said.
 
But he pointed out that the mere act of running a piece of software creates a temporary copy if it in a computer's memory —which, in itself, is already illegal under the revised law.
 
"The mere act of running software which triggers the OS to temporarily copy software into random access memory (RAM) already constitutes infringement," Disini warned.
 
"So even if you're just using software in an Internet cafe, you're already committing copyright infringement," he added.
 
Vicarious liability for mall owners, bloggers
 
Disini also said that Section 216(b) of the revised RA 8293 extends the liability for copyright infringement beyond the seller and the buyer to include even the establishment where the transaction took place.
 
"Under the proposed amendment, ang mangyayari is that so long as nagbe-benefit ka —for example, if you're a mall owner receiving rental payments from a stall owner— at meron kang ability na pigilan ang mga taong yon, the mere fact na ni-notify ka na may nag-iinfringe, liable ka na," he said.
 
"There's no opportunity to remedy the situation, automatically liable ka na. Scary yon for mall operators, but it's also scary for online service providers and even bloggers," he warned.
 
Disini pointed out that the US' Digital Millennium Copyright Act at least allows third parties such as content providers and web hosting services the opportunity to take down infringing content before legal action is undertaken.
 
"Pero sa bagong batas, walang ganon, so kung content provider ka sa Pilipinas, the moment na ma-notify ka na may infringement, you're liable directly and immediately. Mere notification is enough," he said.

He adds that this amendment basically reduces the online service provider exemption found in the E-Commerce Act (RA 8792).

IPOPHL response

However, in a direct response to Robles' blog entry, the Intellectual Property Office of the Philippines (IPOPHL) issued a clarificatory statement on February 14, in which they stressed that the amendents actually expand consumer rights in stead of restricting them.

"Contrary to Ms. Robles' insinuations, (returning Filipinos) can in fact bring home more copies for personal use that fall under the fair use exceptions... 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," the statement read.

"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," the IPOPHL clarified.

Narrowing down copyright infringement

The agency also allayed concerns over the abuse of copyrights, saying that the amendments actually clarify which acts may be considered to be in violation of the law.

The IPOPHL pointed out that a work can be subject to multiple rights: a song, for example, may bear the "copyright" of its composer as well as "related rights" of producers, performers, and broadcasters.

"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", the IPOPHL explained.

Rights for students, visually impaired

The IPOPHL also pointed out that the revised law even gives special consideration to students and differently-abled people who might otherwise not have access to copyrighted materials.

One such consideration is the new Section 11 of the revised law, which is entitled, "Fair use for the blind, visually- and reading-impaired".

"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," the IPOPHL said.

Special consideration was also supposedly given to academics under Section 27 on the "Formulation of IP policies within universities and colleges".

"(Section 27) will ensure that the rights of the academic community over their literary, scholarly and artistic works are clearly delineated and respected," the IPOPHL stressed. — with AM Marzoña, GMA News
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