The e-Legality of Downloading

Hayaan niyong pilipitin ko nang kaunti ang mga salita ni Ginoong Lourd de Veyra na isang manunula, manunulat, at sikat na TV personality.

“Naliligo tayo sa mala-habagat na buhos ng libreng materyal na galing sa internet.” The quantity of copyrighted materials available in the internet and susceptible to acquisition by almost everyone who has access to it without compensating the copyright owners of those materials is overwhelming. Halos lahat ng klase meron (halimbawa album ng “The Mars Volta,” komiks ng “Coheed and Cambria,” mga pelikula, mapa-dayuhan tulad ng mga klasikong “Basic Instinct,” “The Godfather,” at bagong labas na “The Avengers,” o gawang Pilipino tulad ng “Ang Panday,” pati mga pelikula ni John Lloyd at Bea Alonzo). Malamang nga meron na ring pirata nung pamosong nobelang Fifty Shades of Landi, ah este Fifty Shades of Grey pala. Daig pa ang Divisoria. Kasi sa internet walang tawarang nagaganap. Parang pista, halos lahat ng nakahain libre at pwedeng balik-balikan. What is appalling is that the fete is neverending—anyone is welcome to enter anytime and take something for nothing. What is very alarming is the blatant disregard to the rights of the creators of the copyrighted works. The question that lingers to everyone’s mind would be, “Is downloading copyrighted works illegal in the Philippines?”

It depends.

Section 33(b) of the e-Commerce Act of 2000[1] provides:

SEC. 33. Penalties. - The following Acts shall be penalized by fine and/or imprisonment, as follows:

xxx xxx

(b) Piracy or the unauthorized copying, reproduction, dissemination, distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making  available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recordings or phonograms or information material on protected works, through the use of telecommunication networks, such as, but not limited to, the internet, in a manner that infringes intellectual property rights shall be punished by a minimum fine of one hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years; (emphasis supplied)

Corollary to the abovementioned provision, the act of downloading a copyrighted work is not punishable unless it is done in a manner that infringes intellectual property rights. The phrase “in a manner that infringes intellectual property rights” should be associated with the provisions of the Intellectual Property Code of the Philippines (IPC)[2].

Under Section 177 of the IPC, to the copyright owner belongs the exclusive right to: (1) reproduce; (2) make an adaptation; (3) effect first publication: (4) have the work rented; (5) have a public display; (6) have public performance; and (7) communicate it to the public. This is of course subject to certain limitations under Chapter VIII of the IPC. Thus, the act of downloading a copyrighted work will be punishable only if such act is coupled with any of the aforementioned acts absent the consent of the copyright owner. Thus, if the downloader only uses the copyrighted work for his own personal and non-commercial purposes, he is not liable for copyright infringement by his mere act of downloading the copyrighted work.

The foregoing may be true only in cases of direct downloading.

A downloader will definitely court legal tangle and strangle in cases of unauthorized P2P (peer to peer) or torrent downloading. This is because while a person downloads a file using a P2P software (e.g. BitTorrent, Gnutella, uTorrent, etc) smaller chunks of files that he has already downloaded in his computer are simultaneously uploaded and made available to other downloaders who use the same P2P/torrent software. There is always downloading and uploading at the same time. By uploading the copyrighted work, the user is in effect making the copyrighted work available to the public. If this is done without the consent of the copyright owner, the act will then come within the purview of the phrase “in a manner that infringes intellectual property rights.”

Americans have SOPA/PIPA, Britons have Digital Economy Act 2010, the French have HADOPI law, the people from the New Zealand have the “Three-Strike-Rule.”

Several months ago, cyberspace was once shaken by two proposed legislations in the USA. The “Stop Online Piracy Act” (SOPA) and “Protect IP Act of 2011” (PIPA) seek to give US corporations and their government the right to an affirmative relief from US courts to order internet providers and advertising companies to block websites that are suspected of abetting or are themselves violating US copyright laws. Common to both proposed legislation is the granting of power to the US government to prevent access to the domain name system of the websites suspected of online piracy. A domain name system (DNS) is characterized by many as the phonebook of the internet. According to Marshall Brain and Stephanie Crawford[3], DNS converts Internet Protocol (IP) addresses that computers use to identify each other in the network, which are usually numerical in form (e.g. 123.342.89), into names recognizable by humans such as legalesecaprice.blogspot.com. A website caught as abetting or enabling copyright infringement will be blocked from the DNS servers. The blockage will be for the entire website even if not all of its contents violate copyright laws.

Aside from the overwhelming opposition from the cyberspace, it is submitted that it is primarily because of this feature of the proposed bills that halts their enactment into law. The American legislators surely must ensure to strike a balance between giving protection to copyright owners and avoiding overbreadth and sweeping application without regard to the legal contents of such websites.

The Digital Economy Act of 2010 of U.K., the HADOPI law of France and the Three-Strike-Rule of New Zealand, on the other hand, are not without legal infirmities.

All of the three laws contain almost similar provisions regarding their enforcement. Under these laws, if it appears on the part of the copyright owner that a subscriber to the internet commits copyright infringement on the owner’s work, the owner may make a copyright infringement report to the Internet Service Provider (ISP) who will notify the concerned subscriber of such report. The ISP will also be required to monitor the internet activity of the subscriber. If the subscriber, despite such notice, continues to commit copyright infringement the subscriber will be blocked from the use of the internet and the ISP will be prohibited from providing internet connection to the subscriber.

What is controversial in these laws is that the mere appearance, not the actual commission, of copyright infringement is sufficient to commence legal action and penalize the subscriber suspected committing copyright infringement.

This is not only repugnant to universally accepted principles of justice and fair play but also violative of the due process of law. These kinds of laws will never have a leg to stand on in the Pearl of the Orient Seas.

The 1987 Constitution of the Philippines guarantees that no person shall be deprived of life, liberty or property without due process of law. On this score alone, the foregoing laws and proposed bills cannot land its feet in the shores of Pearl of the Orient Seas.

What about the Philippines?

On May 18, 2012, Rep. Irwin Tieng and Rep. Mariano Velarde submitted to the House of Representatives House Bill No. 6187[4] otherwise known as “ANTI-ONLINE PIRACY ACT OF 2011” (permit me to call it APA not because it is a substantial reproduction of Uncle Sam’s SOPA and PIPA but simply because it is the most obvious appellation for it).

While its counterpart laws/bills abroad deal with copyright infringement of virtually any literary or artistic works capable of being transformed or stored in the internet, APA seeks to penalize only online piracy of music recordings or films. Section 2 of APA on the declaration of state policy provides that the “government shall exert efforts to combat online piracy that has seriously [sic] damaging the entertainment industry.”

Noticeable in this proposed bill is its very limited application. If indeed the state wants to protect the copyright owners from online piracy why not come up with a law that protects all kinds of literary and artistic works from unauthorized distribution in the internet.

Indeed, because of the rampant piracy in our country, laws are necessary to protect the rights of copyright owners from online piracy. 

Laws are mere scrap of papers if they cannot be implemented effectively. Legislating must be coupled with effective implementation.

  

Sa wakas.

The long arms of the internet reach almost anyone in the world in a snap of a finger or in a click of a mouse. Because of this, copyrighted works can be distributed easily to the widest audiences possible unlike in the past. Societies must be able to weigh and balance these benefits with the ugly side of cyberspace. Governments must be careful in crafting laws that regulate the use of the internet or it will contribute to the breakdown of the one most wonderful inventions of man.

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[1] See the full text at: http://www.chanrobles.com/republicactno8792.htm#.UFQJbo1lSos

[2] See the full text at: http://www.lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html

[3] http://www.howstuffworks.com/dns.htm

[4] A copy of the bill is available at: http://www.congress.gov.ph/download/index.php?d=billstext_results