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