[Reposted with permission from B.I.T.S. in Bits] Blogger Raissa Robles has recently written on the erasure by our Philippine Congress of the right of Filipinos from abroad including ordinary OFWs to bring home with them foreign music or movie CDs, DVDs, and books through the bicameral conference committee bill setting forth amendments to the Intellectual Property Code, or IP Code (Republic Act 9283) that is now in the Office of the President for his signature before it comes into full effect as a new law.
Intellectual Property Office Director-General Ric Blancaflor has responded to this blog post that this is not a problem, since that provision in the IP Code actually limits the Filipino from bringing home three (3) copies, so with the deletion of that provision, the OFW can actually bring more than that number.
But that may not actually happen, since the right is no longer there and if Filipinos will heed DG Blancaflor’s advise and bring in more than three (3) copies of copyrighted material, then the other provisions of the IP Code amendments could kick in, like
a) the provision of which empowers the Secretary of Finance and the Bureau of Customs to regulate these importations of infringing materials [1] , or
b) the foreign copyright holder, who no longer need to register and deposit first in the National Library and the Supreme Court these materials[2] , can assert its copyright at the border through a simple request at the Intellectual Property Office and the said Office, in the exercise of its enforcement functions [3] can ask the support of the Bureau of Customs to still stop that Filipino OFW in its tracks for carrying those excessive copyrighted materials
c) The new enforcement function of the Intellectual Property Office will not only cover by the way the copyrighted music and movie CDs, DVDs and books, but now the Office will also run after the Filipino OFW for the fake or “faux” designer Louis Vuitton designer bag the poor fellow may have saved up for several months to buy to show off to his relatives, or the jeans or belt or even shades, branded ones that he or she can now afford, indicating his upward mobility, these are all trademark violations, and trademark is another kind of intellectual property that can also be subject to these enforcement functions of the Intellectual Property Office.
These examples perhaps exaggerate, but all of these can possibly happen as these set of rights and powers are now given to the Intellectual Property Office and the copyright and related rights holders to exercise at anytime, which they may not do also, but this is all at the expense of the rights of the ordinary consumer or user and even students and researchers.
What about students and researchers? On this I remember my son in Philippine Science High School in Davao City who had failing grades in one subject once and when I asked him, he said he cannot cope with the reading requirements as they were limited from photocopying in their library the required readings in class to only ten (10) pages per day, the assigned readings are usually more than the ten (10) pages limit and the queue is very long for photocopying oftentimes he didn’t bother queuing. I raised this in a Parent’s meeting one time and I said that the school should prioritize the learning of the students above all else and the respect of intellectual property rights of the authors of books will have to come later after they have graduated and they can afford to buy these books on their own, after all there is a long-standing principle in copyright law called fair use.
But lo and behold, now I cannot say that anymore as, with these amendments to the IP Code, the right to fair use of students and researchers has been limited. When before, the right to fair use to make “multiple” copies for classroom use, scholarship, research and similar purposes is not considered an infringement of copyright, that word “multiple” is now replaced with the word “limited”, and who sets this limitation, it is the Intellectual Property Office.
The Intellectual Property Office explained that there is no problem with the word “limited” as they can set the number of how many these are in the implementing rules and regulations to take into account the concerns of the copyright holders and the users, students and researchers.
But that is not the point of the provision of the law on fair use since the amendment shifts the power to make that decision on the copyright holder and the Intellectual Property Office. The previous wording of the law, the word “multiple”, gives to the user, student and researchers the right without even the permission of the copyright holder and the Intellectual Property Office, to make such reproduction or copying as that is the nature of the right of fair use.
What makes things difficult for students and researchers with these amendments is that there is a new provision in the IP Code, sec. 230, which reads:
Sec. 230. Adoption of Intellectual Property (IP) Policies- Schools and universities shall adopt intellectual property policies that would govern the use and creation of intellectual property with the purpose of safeguarding the intellectual creations of the learning institution and its employees, and adopting locally-established industry practice fair use guidelines. These policies may be developed in relation to licensing agreements entered into by the learning institution with a collective licensing organization.
This provision perhaps lays bare the priorities now of the school or learning institution, and none of the words there actually mention the most important clientele or raison d’ etre of these institutions –the students and researchers – for what is prioritized now is the intellectual creation of the learning institution and its employees. What about the students and researchers, you would ask. Well, with this provision, they can be the captive market or users of these intellectual creations – the books, pahmphlets, reading materials, etc. of the learning institution and its employees. Juxtapose this situation with the limited right of fair use and really, the costs of learning, researching and the creation of new knowledge might just be limited and costly, if ever it is made available.
Of course, it must be pointed out that the IP Code has one or two positive amendments also, which is that :
1) It gives some exceptions to the use of copyrighted materials by the blind, visually- and reading-impaired persons, provided that such use shall be made on a non-profit basis and shall indicate the copyright owner and the date of the original publication [4];
2) Provides not-for-profit libraries or archives the right to make limited copies of copyrighted works as may be necessary for them to fulfill their mandate, where before they can only make a single copy; and such right to make limited copies also extends to the situation where the work is lost, destroyed or rendered unusable, replace a copy, or to replace, in the permanent collection of another similar library or archive, a copy which has been lost, destroyed or rendered unusable and copies are not available with the publisher[5] ;
But, for all of what the amendments may have given, it has taken a lot from the rights of users, students and researchers and all the rest of the powers over copyright are given to the copyright holders and the Intellectual Property Office.
To put some perspective on where our priorities should be, we don’t have to look far but note our 1987 Constitution and there in its Article II as part of the State policies, we have this on education :
Sec. 17- The State shall give priority to education, science and technology, arts, culture and sports to foster patriotism and nationalism, accelerate social progress and promote total human liberation and development.
Then, let’s see what it has to say, in art. XIV on the exclusive rights of inventors, artists, etc.:
Sec. 13. The State 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 period as may be prescribed by law.
What we can see from the first provision is that the so-called ESTACS (education, science and technology, arts, culture and sports) is a PRIORITY of the state, thus in any policy that will be undertaken by the government, care must be taken that they are placed first, among all other considerations. The second provision indicates that the State shall protect and secure the exclusive rights of a certain class of people, the scientists, inventors, artists and other gifted citizens, and note the non-mention of rights holders and licensees in this enumeration, only when it is beneficial to the people, and for such period as may be prescribed by law.
Surely, this law has severely disadvantaged the broader right of the people for access to knowledge, since education is accorded the highest priority as a matter of state policy and exclusive rights to particular individuals are given only when they are beneficial to the people in general. These amendments are not beneficial to the people in general and we have not even started looking at other aspects of modern life, downloading of material over the internet, and the criminal and penal aspects of the amendments. That we will look into in the next posting.
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[1] Sec. 15 of the Bicameral Conference Committee Bill, dated 26 November 2012
[2] Sec. 16 of the Bicameral Conference Committee Bill, dated 26 November 2012
[3] Sec. 2 of the Bicameral Conference Committee Bill, dated 26 November 2012
[4] Sec. 11 of the Bicameral Conference Committee bill, dated 26 November 2012
[5] Sec. 13 of the Bicameral Conference Committee bill, dated 26 November 2012
