TORRES vs. PAGCOR (G.R. No. 193531, December 14, 2011)

FACTS:

Petitioner was a Slot Machine Operations Supervisor (SMOS) of respondent Philippine Amusement and Gaming Corporation (PAGCOR). On the basis of an alleged intelligence report of padding of the Credit Meter Readings (CMR) of the slot machines at PAGCOR-Hyatt Manila, then Casino Filipino-Hyatt (CF Hyatt), which involved the slot machine and internal security personnel of respondent PAGCOR, and in connivance with slot machine customers, respondent PAGCOR's Corporate Investigation Unit (CIU) allegedly conducted an investigation to verify the veracity of such report. The CIU discovered the scheme of CMR padding which was committed by adding zero after the first digit of the actual CMR of a slot machine or adding a digit before the first digit of the actual CMR, e.g., a slot machine with an actual CMR of P5,000.00 will be issued a CMR receipt with the amount of eitherP50,000.00 or P35,000.00. Based on the CIU's investigation of all the CMR receipts and slot machine jackpot slips issued by CF Hyatt for the months of February and March 2007, the CIU identified the members of the syndicate who were responsible for such CMR padding, which included herein petitioner.

On the same day, another Memorandum of Charges signed by Rogelio Y. Bangsil, Jr., Senior Branch Manager, CF Hyatt Manila, was issued to petitioner informing him of the charge of dishonesty (padding of anomalous SM jackpot receipts). Petitioner was then required to explain in writing within seventy-two (72) hours from receipt thereof why he should not be sanctioned or dismissed. Petitioner was placed under preventive suspension effective immediately until further orders.

On May 7, 2007, petitioner wrote Manager Bangsil a letter explanation/refutation of the charges against him. He denied any involvement or participation in any fraudulent manipulation of the CMR or padding of the slot machine receipts, and he asked for a formal investigation of the accusations against him.

On August 4, 2007, petitioner received a letter dated August 2, 2007 from Atty. Lizette F. Mortel, Managing Head of PAGCOR's Human Resource and Development Department, dismissing him from the service.

On September 14, 2007, petitioner filed with the CSC a Complaint against PAGCOR and its Chairman Efraim Genuino for illegal dismissal, non-payment of backwages and other benefits. The complaint alleged among other things, that he tried to persuade respondent PAGCOR to review and reverse its decision in a letter of reconsideration dated August 13, 2007 addressed to the Chairman, the members of the Board of Directors and the Merit Systems Protection Board and that no resolution was issued on his letter reconsideration.

Thereafter, the CSC dismissed the complaint on the ground that the same has already prescribed.

After the denial of his Motion for Reconsideration, Torres elevated the case to the Court of Appeals, which likewise dismissed his petition on the same ground.

Hence, this appeal.

ISSUE:

Whether or not the sending of his letter of reconsideration by means of a fax machine is a valid mode of filing a letter of reconsideration?

DECISION:

A motion for reconsideration may either be filed by mail or personal delivery. When a motion for reconsideration was sent by mail, the same shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case. On the other hand, in case of personal delivery, the motion is deemed filed on the date stamped thereon by the proper office. And the movant has 15 days from receipt of the decision within which to file a motion for reconsideration or an appeal therefrom.

Petitioner received a copy of the letter/notice of dismissal on August 4, 2007; thus, the motion for reconsideration should have been submitted either by mail or by personal delivery on or before August 19, 2007. However, records do not show that petitioner had filed his motion for reconsideration. In fact, the CSC found that the non-receipt of petitioner's letter reconsideration was duly supported by certifications issued by PAGCOR employees.

Even assuming arguendo that petitioner indeed submitted a letter reconsideration which he claims was sent through a facsimile transmission, such letter reconsideration did not toll the period to appeal. The mode used by petitioner in filing his reconsideration is not sanctioned by the Uniform Rules on Administrative Cases in the Civil Service. As we stated earlier, the motion for reconsideration may be filed only in two ways, either by mail or personal delivery.

In Garvida v. Sales, Jr., we found inadmissible in evidence the filing of pleadings through fax machines and ruled that:

A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade. The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile.

xxx A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading.xxx

Moreover, a facsimile transmission is not considered as an electronic evidence under the Electronic Commerce Act. In MCC Industrial Sales Corporation v. Ssangyong Corporation, We determined the question of whether the original facsimile transmissions are "electronic data messages" or "electronic documents" within the context of the Electronic Commerce Act.

We, therefore, conclude that the terms "electronic data message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence. 

EXPERTRAVEL & TOURS, INC. vs. CA (G.R. No. 152392, May 26, 2005)

FACTS:

Korean Airlines (KAL) is a corporation established and registered in the Republic of South Korea and licensed to do business in the Philippines. Its general manager in the Philippines is Suk Kyoo Kim, while its appointed counsel was Atty. Mario Aguinaldo and his law firm.

On September 6, 1999, KAL, through Atty. Aguinaldo, filed a Complaint against ETI with the Regional Trial Court (RTC) of Manila, for the collection of the principal amount of P260,150.00, plus attorney’s fees and exemplary damages. The verification and certification against forum shopping was signed by Atty. Aguinaldo, who indicated therein that he was the resident agent and legal counsel of KAL and had caused the preparation of the complaint.

ETI filed a motion to dismiss the complaint on the ground that Atty. Aguinaldo was not authorized to execute the verification and certificate of non-forum shopping as required by Section 5, Rule 7 of the Rules of Court. KAL opposed the motion, contending that Atty. Aguinaldo was its resident agent and was registered as such with the Securities and Exchange Commission (SEC) as required by the Corporation Code of the Philippines. It was further alleged that Atty. Aguinaldo was also the corporate secretary of KAL. Appended to the said opposition was the identification card of Atty. Aguinaldo, showing that he was the lawyer of KAL.

During the hearing of January 28, 2000, Atty. Aguinaldo claimed that he had been authorized to file the complaint through a resolution of the KAL Board of Directors approved during a special meeting held on June 25, 1999. Upon his motion, KAL was given a period of 10 days within which to submit a copy of the said resolution. The trial court granted the motion. Atty. Aguinaldo subsequently filed other similar motions, which the trial court granted.

Finally, KAL submitted on March 6, 2000 an Affidavit of even date, executed by its general manager Suk Kyoo Kim, alleging that the board of directors conducted a special teleconference on June 25, 1999, which he and Atty. Aguinaldo attended. It was also averred that in that same teleconference, the board of directors approved a resolution authorizing Atty. Aguinaldo to execute the certificate of non-forum shopping and to file the complaint. Suk Kyoo Kim also alleged, however, that the corporation had no written copy of the aforesaid resolution.

ISSUE:

Whether or not the alleged teleconferencing should be given judicial notice so that the authority of Atty. Aguinaldo, to sign the verification and certificate of non-forum shopping, claimed to be given in the said meeting via teleconferencing is valid?

DECISION:

In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing. Teleconferencing is interactive group communication (three or more people in two or more locations) through an electronic medium. In general terms, teleconferencing can bring people together under one roof even though they are separated by hundreds of miles. This type of group communication may be used in a number of ways, and have three basic types: (1) video conferencing - television-like communication augmented with sound; (2) computer conferencing - printed communication through keyboard terminals, and (3) audio-conferencing-verbal communication via the telephone with optional capacity for telewriting or telecopying.

A teleconference represents a unique alternative to face-to-face (FTF) meetings. It was first introduced in the 1960’s with American Telephone and Telegraph’s Picturephone. At that time, however, no demand existed for the new technology. Travel costs were reasonable and consumers were unwilling to pay the monthly service charge for using the picturephone, which was regarded as more of a novelty than as an actual means for everyday communication.

Indeed, teleconferencing can only facilitate the linking of people; it does not alter the complexity of group communication. Although it may be easier to communicate via teleconferencing, it may also be easier to miscommunicate. Teleconferencing cannot satisfy the individual needs of every type of meeting.

In the Philippines, teleconferencing and videoconferencing of members of board of directors of private corporations is a reality, in light of Republic Act No. 8792. The Securities and Exchange Commission issued SEC Memorandum Circular No. 15, on November 30, 2001, providing the guidelines to be complied with related to such conferences. Thus, the Court agrees with the RTC that persons in the Philippines may have a teleconference with a group of persons in South Korea relating to business transactions or corporate governance.

Even given the possibility that Atty. Aguinaldo and Suk Kyoo Kim participated in a teleconference along with the respondent’s Board of Directors, the Court is not convinced that one was conducted; even if there had been one, the Court is not inclined to believe that a board resolution was duly passed specifically authorizing Atty. Aguinaldo to file the complaint and execute the required certification against forum shopping.

The respondent’s allegation that its board of directors conducted a teleconference on June 25, 1999 and approved the said resolution (with Atty. Aguinaldo in attendance) is incredible, given the additional fact that no such allegation was made in the complaint. If the resolution had indeed been approved on June 25, 1999, long before the complaint was filed, the respondent should have incorporated it in its complaint, or at least appended a copy thereof. The respondent failed to do so. It was only on January 28, 2000 that the respondent claimed, for the first time, that there was such a meeting of the Board of Directors held on June 25, 1999; it even represented to the Court that a copy of its resolution was with its main office in Korea, only to allege later that no written copy existed. It was only on March 6, 2000 that the respondent alleged, for the first time, that the meeting of the Board of Directors where the resolution was approved was held via teleconference.

Worse still, it appears that as early as January 10, 1999, Atty. Aguinaldo had signed a Secretary’s/Resident Agent’s Certificate alleging that the board of directors held a teleconference on June 25, 1999. No such certificate was appended to the complaint, which was filed on September 6, 1999. More importantly, the respondent did not explain why the said certificate was signed by Atty. Aguinaldo as early as January 9, 1999, and yet was notarized one year later (on January 10, 2000); it also did not explain its failure to append the said certificate to the complaint, as well as to its Compliance dated March 6, 2000. It was only on January 26, 2001 when the respondent filed its comment in the CA that it submitted the Secretary’s/Resident Agent’s Certificate dated January 10, 2000.

NARVASA vs. SANCHEZ (G.R. No. 169449, March 26, 2010)

FACTS:

The instant case stemmed from three cases of sexual harassment filed separately against respondent by petitioner along with Mary Gay P. de la Cruz and Zenaida M. Gayaton, who are also employees of the LGU.

In her affidavit-complaint, De la Cruz claimed that, sometime in February 2000, respondent handed her a note saying, "Gay, I like you." Offended by respondent’s inappropriate remark, de la Cruz admonished him for giving her such a note and told him that she would give the note to his wife. Respondent then grabbed the note from her and tore it into pieces. However, this first incident was followed by a message sent to De la Cruz sometime in March 2002 in which he said, "Ka date ko si Mary Gay… ang tamis ng halik mo."

On the other hand, Gayaton narrated that, on April 5, 2002, respondent whispered to her during a retirement program, "Oy flawless, pumanaw ka met ditan" while twice pinching her upper left arm near the shoulder in a slow manner.

A few days later, Gayaton received a text message while she was passing respondent’s car in front of the municipal hall. The message said, "Pauwi ka na ba sexy?" Gayaton later verified through respondent’s clerk, Alona Agas, that the sender of the message was respondent.

On or about April 22 to 25, 2002, Gayaton received several messages from respondent stating: (1) "I like you"; (2) "Have a date with me"; (3) "Don’t tell to (sic) others that I told that I like you because nakakahiya"; (4) "Puso mo to pag bigay moto sakin, I would be very happy" and (5) "I slept and dreamt nice things about you."

Finally, as far as petitioner’s complaint was concerned, she asserted that, on November 18, 2000, during a field trip of officers and members of the St. Joseph Multi-Purpose Cooperative to the Grotto Vista Resort in Bulacan, respondent pulled her towards him and attempted to kiss her. Petitioner resisted and was able to escape the clutches of respondent to rejoin the group that they were travelling with. Respondent apologized to petitioner thrice regarding that incident.

ISSUE:

Whether the acts committed by respondent against petitioner (since the CSC resolution only touched upon petitioner’s complaint) constitute simple misconduct or grave misconduct?

DECISION:

Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of behavior. To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions and duties of a public officer. In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of an established rule must be manifest.

Respondent’s acts of grabbing petitioner and attempting to kiss her were, no doubt, intentional. Worse, the incident occurred months after he had made similar but subtler overtures to De la Cruz, who made it clear that his sexual advances were not welcome. Considering that the acts respondent committed against petitioner were much more aggressive, it was impossible that the offensive nature of his actions could have escaped him. It does not appear that petitioner and respondent were carrying on an amorous relationship that might have justified his attempt to kiss petitioner while they were separated from their companions. Worse, as petitioner and respondent were both married (to other persons), respondent not only took his marital status lightly, he also ignored petitioner’s married state, and good character and reputation.

GARCILLANO vs. THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION (G.R. No. 170338, December 23, 2008)

FACTS:

More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly between the President of the Philippines and a high-ranking official of the Commission on Elections (COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a controversy that placed the legitimacy of the present administration on the line, and resulted in the near-collapse of the Arroyo government. The tapes, notoriously referred to as the "Hello Garci" tapes, allegedly contained the President’s instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings were to become the subject of heated legislative hearings conducted separately by committees of both Houses of Congress.

In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G. Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a congressional investigation jointly conducted by the Committees on Public Information, Public Order and Safety, National Defense and Security, Information and Communications Technology, and Suffrage and Electoral Reforms (respondent House Committees). During the inquiry, several versions of the wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the supposed three-hour taped conversation. After prolonged and impassioned debate by the committee members on the admissibility and authenticity of the recordings, the tapes were eventually played in the chambers of the House.

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction docketed as G.R. No. 170338. He prayed that the respondent House Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped conversations in their committee reports and for any other purpose. He further implored that the said recordings and any reference thereto be ordered stricken off the records of the inquiry, and the respondent House Committees directed to desist from further using the recordings in any of the House proceedings.

Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly stopped.

After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson promised to provide the public "the whole unvarnished truth – the what’s, when’s, where’s, who’s and why’s" of the alleged wiretap, and sought an inquiry into the perceived willingness of telecommunications providers to participate in nefarious wiretapping activities.

On motion of Senator Francis Pangilinan, Senator Lacson’s speech was referred to the Senate Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who had previously filed two bills seeking to regulate the sale, purchase and use of wiretapping equipment and to prohibit the Armed Forces of the Philippines (AFP) from performing electoral duties.

On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, docketed as G.R. No. 179275, seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the Constitution.

ISSUE:

Whether or not the publication in the internet of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation is sufficient?

DECISION:

The Senate cannot be allowed to continue with the conduct of the questioned legislative inquiry without duly published rules of procedure, in clear derogation of the constitutional requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the House of Representatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure." The requisite of publication of the rules is intended to satisfy the basic requirements of due process. Publication is indeed imperative, for it will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or rule of which he had no notice whatsoever, not even a constructive one. What constitutes publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines."

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of general circulation only in 1995 and in 2006. With respect to the present Senate of the 14^th Congress, however, of which the term of half of its members commenced on June 30, 2007, no effort was undertaken for the publication of these rules when they first opened their session.

The invocation by the respondents of the provisions of R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes. In other words, the law merely recognizes the admissibility in evidence (for their being the original) of electronic data messages and/or electronic documents. It does not make the internet a medium for publishing laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do so only "in accordance with its duly published rules of procedure."

RUSTAN ANG vs. CA (G.R. No. 182835, April 20, 2010)

FACTS:

Complainant Irish Sagud (Irish) and accused Rustan were classmates at Wesleyan University in Aurora Province. Rustan courted Irish and they became "on-and-off" sweethearts towards the end of 2004. When Irish learned afterwards that Rustan had taken a live-in partner (now his wife), whom he had gotten pregnant, Irish broke up with him.

Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and told Rustan to take on his responsibility to the other woman and their child. Irish changed her cellphone number but Rustan somehow managed to get hold of it and sent her text messages. Rustan used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-8084768. Irish replied to his text messages but it was to ask him to leave her alone.

In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a picture of a naked woman with spread legs and with Irish’s face superimposed on the figure. The sender’s cellphone number, stated in the message, was 0921-8084768, one of the numbers that Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they were in Baguio in 2003.

After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it would be easy for him to create similarly scandalous pictures of her. And he threatened to spread the picture he sent through the internet. One of the messages he sent to Irish, written in text messaging shorthand, read: "Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa lahat ng chatter."

Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada, Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the waiting police officers intercepted and arrested him. They searched him and seized his Sony Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police station, he shouted at Irish: "Malandi ka kasi!"

Thereafter, the public prosecutor filed an information against Rustan before the Regional Trial Court (RTC) of Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children Act or Republic Act (R.A.) 9262.

During the trial, the prosecutor presented the pictures in evidence.

In a decision rendered by the RTC on August 1, 2001, Rustan was found guilty of the violation of Section 5(h) of R.A. 9262.

On Rustan’s appeal to the Court of Appeals (CA), the latter rendered a decision dated January 31, 2008, affirming the RTC decision. The CA denied Rustan’s motion for reconsideration in a resolution dated April 25, 2008.

ISSUE:

Whether or not the RTC properly admitted in evidence the obscene picture presented in the 

case?

DECISION:

Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).

But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the first time before this Court. The objection is too late since he should have objected to the admission of the picture on such ground at the time it was offered in evidence. He should be deemed to have already waived such ground for objection.

Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.

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

Fan Art and Copyright: The Tangle and Strangle

Fan creations or more commonly called fan art or fan fiction is an emerging medium of an individual’s self-expression. The fan art scene in the Philippines might not be as developed or as thriving as it has ever been in other countries but its fast rise and imposing penetration to the Philippine pop culture makes it worthy of attention. Its significance on one’s right to express his thoughts, beliefs and opinion, and its tangle and strangle with another person’s intellectual property rights deservingly places it under the microscope of a law student’s inquiring scrutiny.

Unlike in the USA, the Philippine jurisprudence regarding conflicts between fan art creators and copyright owners is barren. Is it because fan creations are legal in the Philippines?

Is it legal?

Under the Intellectual Property Code of the Philippines (IPC), copyright of original literary and artistic works shall belong to the author or creator of such work[1]. The IPC also unequivocally reserves the right to make transformation and communicate derivative works of their original work to the public[2]. Derivative work includes dramatization, translation, adaptation, abridgment, or other transformation of the original work.

A fan art means an artistic or literary work based on a character or a story created by a person other than the artist who created the original character or story where such artwork is based. As such, a fan art is a derivative work or a transformation of an original copyrightable work. It is therefore not impossible for these fan creations to be the subject of legal tangles and strangles.

Since fan arts are mostly built upon or an offspring of the whole or part of an original copyrightable work then understanding and employing fair use is the only hope of fan creators to make sure that they can walk out of legal battles against the copyright owners unscathed.

Section 185 of the IPC provides that the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Furthermore, in determining whether a fan art is fair use, the following factors shall be considered:

    

      1. purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

      2. the nature of the copyrighted work;

      3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

      4. the effect of the use upon the potential market for or value of the copyrighted work.

Based on the above, a fan art which has for its purpose critiquing an original work is fair use of a copyrighted work. For example, a fan creation of Ash Ketchum of the animated series POKEMON that depicts the said character as violating animal rights is a permissible fan artwork because of the purpose of its use.

It is also important to always disclose clearly that the fan art is unofficial and that it is just a fan art.

The most sensitive among the abovementioned factors in determining fair use would be the effect of the fan art upon the potential market for or value of the copyrighted work as when the fan art competes and is inimical to the market of the original work. So it is always safe to be non-commercial than profit from your fan art.

Tolerating Fan Creations

The reason why fan art’s popularity is rising so fast and that it rises almost unchallenged despite the legal tangles and strangles involved is that it also serves as a free advertising medium for commercial original works.

The creators and artist would also want to avoid burning bridges with their fans especially when they do not have harmful effect upon the market of the copyrighted work.

Come Original

The moral lesson is: while it is true that there may be such permissible fan art or fan creation and that as much as possible creators and artists would not want to antagonize their fans by aggressively pursuing copyright infringement cases, it is still better if you “come original” as what the 311 song entitled “Come Original” says.

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[1] Sec. 178.1

[2] Sec. 177.2