Copyright Infringement

Downloading Copyrighted Works

The Law on copyright as regards infringement is not as crystal clear in the Philippines. It is not even defined in the act but merely states limitations, fair use and rights whether moral or economic. It would seem that infringement must be taken in its literal sense hence violation is committed by violation of such rights specified by the Intellectual P

roperty Law. But if we look at the law, Section 185 where it states that “In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(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.”

This presupposes a wide understanding of what is substantially infringing to the copyright owner and what is the effect on the potential market or value of the copyrighted work. The copyright owner is burdened with these explanations before he could exercise the remedies provided in the law.

Infringement is usually an administrative penalty of law sanction by the rules of court. Hence, the state would not act in behalf of a clear violation of the law or rights of the copyright owner which applies only to violations of penal laws. There is no liability here unless there be a remedy exercised by the copyright owner. But there is no copyright infringement on the part of the downloader since there is only an effect on the potential market and value of the copyrighted work which is yet to be proved before it becomes illegal. This gives rise to another question of how would the owner of the copyright run after the downloader? How would the copyright owner maintain the loyalty of the downloader who precisely downloded the work since such person actually likes the work. Running after them would discourage potential audiences for which the copyrighted work depends for its exposure thereby a target market for generating profit for the copyright owner.

Another provion related to this is Section 184 on the Limitations on copyright. It states that “the following acts shall not constitute infringement of copyright:” which is a negative provision as to its application. Does this mean that every act done outside of those mention is an infringement just by using a violation of the economic and moral rights as basis for copyright infringement? But under the mentioned provisions of this paragraph, there is no copyright infringement on the part of the downloader bacause it is directed against those who offer the copyrighted work to the public whether for profit or not. Particularly section 187 states that “Section 187. Reproduction of Published Work. - 187.1. Notwithstanding the provision of Section 177, and subject to the provisions of Subsection 187.2, the private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work.

187.2. The permission granted under Subsection 187.1 shall not extend to the reproduction of:

e) Any work in cases where reproduction would unreasonably conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author. (n)”

Should laws be passed to optimize the enforcement of copyright laws?

Yes, the Philippines should pass similar proposed legislations as SOPA/PIPA; Digital Economy Act and New Zealand's three-strike rule. This would strengthen the economy and encourage competition in the industry for a more healthy market based on copyrighted works of authors and artists. There would be a problem in some areas of the businesses dedicated to protecting copyrighted works as there would be lesser security of tenure as to artists and authors but isn't that the core of artistic and literary works. The creation of copyrightable works is the very reason for works and it embraces the chance of competition of creators in selling their work under similar categories or fields of work. Now, most artistist do not create their own works but rather make derivative works of original creations. To me, that is not artistic or much less copyrightable. The failing economy is caused by the dissappearance of competition. Singers and writers tend to derive classical works rather than make a phenomenal classic themselves. And they even call it “Official Filipino Music” or “Official Filipino Movies”.

The proposed legislations would even create jobs in enforcement of the copyright law. Since computer technicians for software and hardware would be employed to fight infringement. By such protection, artists would be able to appropriately sell their copyrighted works with the consumers and avoid downloading sites to destroy their only source of profit and livelihood. We should protect such right of the artists and authors because if we don't the market for artists will be lost. They would not create anymore and find other profitable work. This would lead to the uselessness of the fredom of expression for artists who base their livelihood on their artistic works. Unlike other fields of work where there is no need of artistry or harmony but only refer to mechanical and technical work.

The Philippines should not sign and ratify the ACTA Treaty. We can make our own laws to bolster the enforcement of Intellectual Property laws. Signing the treaty would only pave the way for the big countries to interfere with our community and economy. It does not provid for any stricter definition of infringement wich calls for trouble in enforcing the copyright laws. Infringement is a very broad term which could criminlaize a wide range on internet surfers and users in a short period of time. This would also supress the availability of information and essential goods for health measures for those who need medication.

ACTA Treaty and the right to freedom of expression and privacy

Under the treaty, Article 11: Information Related to Infringement

“Without prejudice to its law governing privilege, the protection of confidentiality of information sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority, upon a justified request of the right holder, to order the infringer or, in the alternative, the alleged infringer, to provide to the right holder or to the judicial authorities, at least for the purpose of collecting evidence, relevant information as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls.” Clearly the treaty is at a loss of understanding the right of persons to expression. Under this provision mentioned, there appears to be a wide range of potential infringers covered by this treaty. It would supress the right to speech and eventually the democracy which is the heritage of many countries. There is even a risk to surrender the control of domain anmes to authorities thus restrict the people in conducting their business over the internet which is one of the basic strategies in expanding the industry with less expenses for transportation issues. The treaty also allows the authorities to look into the personal details of the users thereby a clear violation of the right to person and papers protected by the constitution.