Is Downloading Against any Philippine Law?

Is Downloading Against any Philippine Law?

In the ancient times, people who work need to run home in order to watch their favorite television series. With the proliferation of technology in the 80s and 90s – the VCR was born which enabled people to record their favorite shows. No need to cram home and beat the traffic. To make things even better, we no longer need to record these shows. All we need to do is to click a button, access YouTube or better yet, go to Torrent and view your favorite shows –past, present, and future episodes. We can even download full series of any show or movie –whether screened here in the Philippines or otherwise – with one touch.

The phenomenon that is downloading, has paved the way for unprecedented conveniences as well as issues as content authors battle out their rights. There seems to be a very thin line between good ol’ file sharing versus piracy which is a threat to the creative class. In this blawg entry, we shall discuss the interplay of different laws relating to downloading of content and its application in the country from a legal juncture.

SOPA and PIPA

SOPA or Stop Online Piracy Act is a proposed bill with the end view of avoiding infringement on copyright through restriction on website access or trade of pirated content. Now, PIPA, on the other hand or PIPA or the  PROTECT IP Act is a proposed bill of the same likes as that of SOPA. The goal is to curb "rogue websites dedicated to infringing or counterfeit goods." Though the goal is pretty clear, an issue which is much criticized is the point that hinges on possible “content censorship” and the “chilling effect” which it may produce as consequence thereof.

Another issue is that there is already a law which punishes copyright infringement which questions the passage of another bill. However, proponents of the bill insists that SOPA aims to restrict pirating of content by creating a statute which penalizes the access of these cyberlinks being made available to US.

As a result, IT industry is worried of SOPA’s implication and supported that more liberal OPEN – or Online Protection and Enforcement of Digital Trade Act (OPEN). A different feature of IOEN is that it affords more efficient enforcement on policing and monitoring of sites that are reported to be infringing and trading copyrighted content.

Philippines’ Take: Cyber Crime Protection Bill of 2012

With the recent enactment of the Cyber Crime Protection Bill of 2012, IT enthusiasts, gamers, legal scholars, and just plain anyone who uses the information highway has mixed reviews. To date, surveys launched internationally have concluded that only “Few countries were able to demonstrate that adequate legal measures had been taken to ensure that perpetrators of cyber crimes would be held accountable for actions” (Cyber Crime…and Punishment.www.witsa.org/papers/McConnell-cybercrime.pdf).  Categories of the most common cyber crimes are data-related crimes such as interception, modification of data or theft; Network-related crimes such as Interference sabotage; access cries such as hacking and distribution of virus and other computer-related crimes such as aiding cyber criminals, fraud and forgery.

Is downloading copyrighted material stealing?

This is the main issue that should be addressed in order to separate the hues of gray in this area. It remains to be seen how IT experts and the legal community can come  up with a balance scorecard or a model that will create a demarcation line between these two. Technology has come to a full swing affording us to retrieve any data in blinding speeds, that sometimes, the way by which we do this has never much occurred to us as anything illegal, until now. Downloading and stealing copyrighted content has never been brought to the fore until now when we see giant multi-media companies battle this issues out in court with gazillions of dollars at stake.

The birth of our country’s Cyber Crime Law is still in its very delicate stage that we still need to watch and observe how other countries will deliver theirs after years of implementation of their laws. This is the best way by which we can adjust as well as curb the rights that is deemed to be an infringement on IP rights of authors.

So, is downloading penalized in any law in the Philippines? The answer is,….we have yet to find out.

The Legality of Fan Art in the Philippines

Fan art may be commonly defined, as that "derived" medium of expression from an original, either in traditional mode such as drawing, painting or an expression in digital mode such as image manipulation of photos or videos. The meaning of derived here means that the resulting art was a by-product of the "inspiration" (or otherwise) from an original.

The term now becomes popular with the propagation of websites dedicated to hollywood movies, syndicated series, and a whole gamut of fictional characters on the web. Adoring fans has used their creative juices to "borrow" something old to create a "free and self-expression," to something new.

In the earlier days of the internet, fanart served as a convenient way to advertise and spread popularity of these ideas, characters, etc,...which made authors of artistic and literary expression a household name. HOwever, with everyone having access to internet and providing all Juan dela Cruzes of a 5-second of fame, controversies involving fan art arise.

Selling of Fan Art

The controversy in legality of fan arts usually begins when certain "rights" or thresholds belonging only to the author is infringed by fanartist.The IP Code provides that part of the rights of the author as owner of his copyright is, "...in the case of original literary and artistic works, copyright shall belong to the author of the work." This includes the reproduction,distribution, public display, and communication. In short, the author enjoys the economic gain from his original work. A counter argument of fan artists is that, their expression, though derive, also has some original elements on it.

In this scenario,  fan art, as it has become now, may well transgress and infringe on this right. Counterfeits and fake art has become prevalent nowadays, taken as the original for all its worth. Fanart in this sense, becomes a competition of the original and wholly disregards the respect and all other rights that should be accorded and enjoyed by the author.

According to The Intellectual Property Code of the Philippines, an author possesses certain rights by virtue of his original expression. As stated in the IP Code, SEction 172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. (Sec. 2, P.D. No. 49a). It provides that, in the case of original literary and artistic works, copyright shall belong to the author of the work." 

Fanart as a Derivative Art is Protected by Fair Use

The boundaries of how and when Fair Use comes as an argument to support fanart is still in a limbo. This is because Philippine jurisprudence is replete of actual cases which can be used as an stare decisis on when and how Fair Use may apply. The IP Code does provide 4 factors that may be considered such as in order to ascertain fair use, to wit: 

(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education purposes;

(b) The nature of the copyrighted work;

(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(d) The effect of the use upon the potential market for or value of the copyrighted work.

Then again, there are now hard and fast rules as to how to determine its application. Again, there's two sides to every contention, and it all boils down to the merits of each indivudual case.

Notice to Author Makes Fanart Legally Protected 

Here is another point of contention, as not all authors are united as to what constitutes fanart as a derivative, legal work versus, that of a clear copyright infringement.The Fair Use Doctrine is rather complex and yet to be actually used in court so as to define certain legal boundaries. This then makes a complicated idea on what constitues infringement as to what is fair use.

Fanart if not sold does not infringe copyright laws

Another classic argument is that, since authors take drastic action only when their economic rights are transgressed, therefore, for as long as the fanart is not sold or "non-profit" then the author of the original may not claim any copyright infringement.

Though may be partly true, still authors of original works are indecisive about how and when fanart causes infringement and when and what circumstances will make them initiate corrective or legal action against fanartists.

Based on these possible issues arising from fanart, it seems that much is left to be desired as to when and how fanart poses a threat or actual infringement to the rights of an author.

Likewise, it is also best to note that these fanarts may not only infringe on copyright but on trademarks as well.

However, despite a very strong opposition and opinion - legal or otherwise, suits of this type are again, one in a million, especially in Philippine setting. This makes for a case which may be publicly blown, spending millions of pesos and years and years of court time, yet may not prove lawsuits of this type may be only true in theory.

For now, it would be best to strengthen our laws on intellectual property to protect authors from situations and issues arising therefrom. From the author's end, it would also be wise to subscribe to Creative Commons to afford certain protection as how far protection of their work should serve them.

Data Privacy Act: Like or Unlike?

With the advent of technology here and there with blinding speeds, and enabling the world to get hooked and connected in an instant, the Philippine Senate approved S.B No. 2965, also known as the "Data Privacy Act of 2011." The bill was modeled after the EU Data Protection Act. Though a handful of proposals from different legislators touching on the same topic had already been made, this particular bill made the buzz from legal scholars, professionals, as well as the media. The main concern was the "timing" of its joint submission - a critical factor to be considered as this was sometime when the Corona Impeachment Trial was in full swing. Initial resistance to the bill and questions on the scope as well as the implementation should it be approved are just of few of the reactions.

The purpose of the bill is to afford people the right to secure data or information collection, use, processing and its storage. It aims to make the people informed and protected in case of breach of notice thereof. To attain this end, the bill proposes the creation of a Commission which is envisioned to be an independent body acting as a "consultant" on matters in regard to the monitoring, compliance and imposition of penalty for the violation of breach of notice in cases where data or information.

This is a humble take on this,...

While the Constitution enshrines the right of the people to be secure in their effects, as well as the provision of the right to privacy in communication against whimsical and illegal seizures and intrusion (Section 2 and 3 of the Bill of Rights),the bill seeks to reinforce this protection by addressing current issues which may be in the "gray areas" now existing due to technology. True, the Constitution already contains the provision for the protection of persons, his/her effects, etc,..., however, a bill is now in order and is necessary where there is presently a black hole on how this protection will actually be afforded. The bill envisions to be a complement and enacting statute that will enable the full force of the law in cases where individuals may find themselves at the mercy of irresponsible technocrats or abuse of control of those who have a upper hand in technology.

As in any other bill, the fear of most people is that it may afford unwanted censorship and closure of all other readily information especially on matters which are of public interest. Likewise, there is a view that this may create a "chilling effect" and thus, stifle the free flow of information. However, upon closer reading of the bill, the scope is quite clear and does not leave a watering hole to the fact that the right and protection afforded now, will still be available. Actually, on inspection of the bill, this may be a tool to fight "irresponsible broadcasting and yellow journalism."

Philippine media has always prided itself of being the most democratic in Asia and the entity that enjoys the longest freedom. However, we are aware of the many breaches as well as abuses that media has, willingly or unwillingly,  created. The bill seeks to enjoin the practice of breach of notice as well as unwanted disclosure of confidential or private data. If media is confident that it operates on the zone of being accountable to what it presents to the public, while protecting rights of individual, then press freedom is nowhere in danger with the passing of this bill.

Protection of our private data is a right. Like the intrinsic need of connecting and communicating, this creates a by product which is sharing of information. By enactment of this bill, this will afford us more security and a semblance of "peace of mind" that entities handling our information is being responsible on the way they handle, use, store, and process these data.

Another advantage of this bill to become a law is on the business aspect. The business community, especially those in the business process outsourcing (BPO) industry is in high hopes to the passing of the same to law. Senator Angara, as main proponent of the bill, strongly believes that this bill will boost more investors in this industry because of the protection to digital information/private data. Looking at the bill, it may actually create more jobs for the Filipinos in this sector and thus contribute to the provision of employment opportunities to most of our countrymen. Imagine, the bill will allow protection of sensitive, private data through imposition of penalty in case of liability and where it warrants.

The bill is not an "end-all-be-all" reference to gray areas created by the ever-changing technology.Sure, there are still loopholes as to i.e. the Commission will monitor compliance and the effectiveness of the imposition of penalty in case of breach. This is not the end; this is only the beginning, the first step, among the many. This bill may just be our baby step towards our goal as a nation to be secured with the data we share in the zone known as the information highway. Data Privacy Act?  Like

HOW TO DETERMINE IF EMPLOYEE IS ENTITLED TO OT AND HOLIDAY PREMIUMS (Part 1)

HOW TO DETERMINE IF EMPLOYEE IS ENTITLED TO OT AND HOLIDAY PREMIUMS (PART 1)
Identify the function of the employee. There are three types of employees as per Labor code to this effect:
a. Manager
b. Supervisor
c. Rank and File
Article 212 (m) of the Labor Code states that, "Managerial employee" is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. "Supervisory employees" are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees…
Let us not read over and beyond what is stated by the law. Clearly, our function does not fall under managers, nor are we supervisors. If we will consider attendance and hours work, we still fall under the usual 8-hours a day (or so as project necessitates). The mere fact that we are not treated like the majority of the employees is due to the very nature of our work, which is support. But I do not see a provision of the law, nor does the law intend to differentiate between support personnel and rank-and-file employee in terms of OT and Holiday Pay. In fact, it does not state a word to effect "support," nor exempt.
General rule in statutory construction: GIVE LIFE TO THE SPIRIT OF THE LAW. Surely, our law makers then did not envision support personnel to be deprived of premiums due them. If we are to say that BPO is all a different animal, then, until our lawmakers realize this and make amendments to this effect, then we still need to follow what is written.
Assuming, in arguendo, that our contract states that we are no longer entitled to OT and other Holiday premium, and then, I have to say that there is an illegal clause in our Offer Letter that should be struck down for being in direct violation of the Labor Code.
There are two qualifications which should be taken together by which the contract will be upheld:
(1) If the employee FREELY agreed to the contract and;
(2) If the employee and employer are IN EQUAL FOOTING by means of the terms of the contract such that, the employee is able to negotiate, etc. at the time of the agreement.
While it is true that we FREELY and VOLUNTARILY agreed to the terms of our contract, the second element is missing, which is that WE ARE NOT AT EQUAL FOOTING WITH THE MANAGEMENT AT THE TIME OF THE AGREEEMENT nor were we allowed to negotiate terms in the offer.

Next, I will share a thing or two about the concept of waiving OT and Holiday Premium, at oo, pwede pala ito. Ang tanong: by signing the contract, have we waived our right to OT and Holiday Pay.
Whew! Kapagod...Part 1 pa lang po toh...

DISCLAIMER: I am no law expert, just an enthusiast. I am not a lawmaker, but someday I dream to be. I am not a judge, but then again, who knows what the future holds. I AM a law student. From where I came from: "Law is our Business."

The Bitter Pill

Law school is beyond compare; it takes more effort to be at par with what is expected and what turns out to be the outcome. While law school is not necessarily more difficult intellectually than college, the workload is substantially greater and the level of competency demanded by professors definitely higher. I know a great deal of students, especially those who enjoyed academic success in college, who presumed that law school is but a mere continuation of their undergrad experience. This couldn't be farther from the truth. Take for instance, professors saying vague Latin concepts and expect students to appreciate it with the same zest and gusto. When it indeed happened, I found myself thrown into the deep, murky waters of the Nile. Well, the difficulty doesn’t end there. Since everyone is just as excited as mustering their way through that most coveted title, the bar is raised a notch higher. That leaves me either to sink or swim. This is one of those rare instances that makes me wish that I was indeed a whale (not referring to my physique) to assure that I will definitely stay afloat.

What makes the law school experience interestingly unique is its method of instruction and its incomprehensible and arbitrary system of grading. Most professors rely on either the Socratic or the case method as a means for illustrating legal rules and doctrines in a particular area of law. To be certain, law professors hardly explain precisely what the rule of law is in a particular case or area, often either because: (1) it is impossible to do so or (2) they have a distorted idea of what law is. This leaves me to develop and organize my own version of cases decided by the Supreme Court with Piolo Pascual as petitioner and Jose de Venecia as “Yoda-slash-respondent” which of course tips the scale in favor of my petitioner (Piolo’s character varies depending on who wins the case). As I see it, achievement is measured by the terabytes that you have in order to store these voluminous information topped with skill at rapid analysis and articulation. And what better way is there than to add some spice and pizzaz with the cast of characters per each case for better retention. Talk about memory-work!

What makes it even more difficult is the fact that I have to juggle work with academics at the same time. Time management is, as I realized early on, a God-given talent which you hone all the more when you are enfaced with these awkward situations. I feel like a horse with that stuff that focuses its sight ahead; I just look forward giving no room to look elsewhere and leaving me focused on what I am suppose to be aiming in law school – hurdling and passing the bar.

Seeing things from the standpoint of a person who writes technical medical brochures, law school is but a bitter pill one has to swallow to pave the way to the bar and consequently earn the title, “ATTY.”. But what makes it great is the stark analogy that this bitter pill, indeed is the way to make you feel better. And so if it is what I have to do, then I’ll take it. As a dead-drop gorgeous law professor once said in class, “it is always better to swallow.”

The Debates Are Set

A Commentary on “Lawmakers Consider Statewide Medical Database”

There is no doubt that accurate medical records are essential in providing quality health service for the physician and the patient alike. Patient analyses and treatments rely to it to a great extent. These facts are undisputed; however, the influx of arguments begin where data-sharing comes into view.

The main issue revolves on the issue of how much patient data can be disclosed. This further branches into sub issues on what entities will take charge of these pertinent data, how much will this cost, and which data should be included.

On one end are the advocates of privacy, pushing for patient confidentiality. They are promoting the view that healthcare providers should be mindful of security concerns and regulations regarding medical data records. Their allies in Congress have been consistently upholding their thrust to the point of vetoing bills which seek to propel sharing of medical data. Their main argument is that medical data-sharing infringes on a person’s right to privacy. Other issues that they sustain include the high cost involved in the centralization of these operations and the risk of record mismanagement on the end of the prospective service providers. These aside from existing statutes on some states are deemed to bar progress of EMRs in legislation.

On the other end are the proponents of interactive-sharing of data electronic records. They submit to the promise of greater patient safety, more efficiency and reduced healthcare costs for consumers. They opine that much medical progress can be achieved through this data-sharing, although to what extent of the data will be covered is still subject to discussion.

This is yet another subject that thrives on a rather gray area. In considering this matter for legislation, the guidelines used in observing the right to privacy of individuals may be useful to discern the extent the sort of data to be shared. It comes in easy terms: (1) it should be in accordance with existing laws; (2) must serve the interests of legitimate objectives; and (3) it must be of such nature that creates a necessity for the whole society. Expect a long and tiresome debate among legislators trying to outdo each other on the floor. But at the end of the day, it all settles to the fact that these may well have to be resolved through sound discretion and tactful medical professional handling.

Burden of Proof

A business law service posted an article regarding the risk of employee blogs to business. It discussed concerns regarding personal homepages (blogs) posing as potential “legal minefields” if not addressed properly. The issue revolves on employees working on their personal blogs before, during or after office hours (or perhaps when the boss isn’t looking). It enumerates the possible threats when employees disclose work, insolent co-workers, or share company/trade secrets through these channels.

A number of large businesses have experienced problems with these kinds of blogs and it is inevitable from the influx of technology that the internet is a favorable channel by which to serve as avenue for redress of grievances. Instead of mainly dismissing these as petty complaints, the company should rather view these as an outlet of criticism from the employees. Rather than deciding on when to fire blogger employees, the best action is to deal with the their pressing concerns.

Owners of large businesses should no longer be surprised in this technological trend. It is rather lack of insight on the part of the Management to believe that the internet is solely a tool to promote effective weblogs for communicating with customers and to merely propel marketing strategies to prospective customers. It is far more than that, boss.

This is most significantly true when you’ve given your employees good reason to despise an imaginary, slave-driver CEO or a supervisor with no balls. Employees are not primarily concern with revealing trade secrets, when there is actually none to divulge in the first place. Their main topics of interest concern their affairs, also known as “gripes” – the work load, salary, bloody damn officemates, slave-driving Management, lack of organizational structure, etc… That is the key step in understanding how these blogs work.

However, on a precautionary note, these schemes also raise the issue of how far an employer can dictate on the private life of their employees. It is one thing to regulate employee activities during working hours and definitely another issue when the actions take place out of working hours.

This paragraph is intended to boost the morale of the fearing employee regarding legal queries on blogging: It is the burden of the employers to prove that they have suffered loss as a consequence of an employee posting information on a blog than to take a defense of justifying dismissal due to it. Whether employers have a policy regarding this or not, a provision should clearly exist in their Employee Guidelines that constitute violation of such and such. Otherwise, it will be difficult for the company to justify their cause on these grounds claiming potential stance such as defamation.

It would be of interest to note for the employers that to post a blog, it does not need a deadline. On the contrary, it is rather available, up and running, ANYTIME.