Linggo, Mayo 19, 2013

A CRITIQUE ON THE SALIENT POINTS OF REPUBLIC ACT NO. 10372, (An Act Amending Certain Provisions of Republic Act No. 8293, Otherwise Known as the “Intellectual Property Code of the Philippines”, and for Other Purposes)


            For so many years, the concept of safeguarding intellectual property never occupied any strategic importance in the pedestal of private rights until when the so-called intellectual property owners rose up in arms against the plague of piracy.  Back then, there was never an issue on the violation of these rights as people would ordinarily and casually reproduce or copy any book, or movie that caught their fancy, using any or all available means of reproduction.  These acts however became profit-oriented as unscrupulous and ingenuous individuals made it their cash cow.  Indeed, they made a killing in reproducing the articles by large quantities and offered them to the public who instantly patronized them as they were sold cheaper than the original copies.

            Regardless of the consequences, the people involved in the trade persisted since money comes quick and easy for them.  Despite the existing laws that penalize infringement activities, still these people would not be deterred.  The lack of other viable job alternatives and the instant cash profits made piracy and infringement activities more appealing to both crooks and vendors.  For the average pirated optical media or counterfeit goods vendor, selling IPR-infringing products may simply be a means of existence. There is a chance that the vendor does not fully comprehend the illicit nature of his activities, but more likely he simply does not care that what he is doing is illegal. And for the organized crime syndicates that often supply the vendors with the pirated optical media and fake goods, the relatively low risk and high profit margins provide all the reasons they need to spurn the laws and continue producing and distributing their knock-offs. [1]

            The proliferation of this practice has grown exponentially and nearly crippled the earnings through royalties of the performers and artists or the copyright owners in general.  This illegal activity allegedly earned tons of money for the reproducers or syndicates.  As a result, the artists lost millions in possible earnings, and finally losses in projected revenues by the government.    

            Undeniably, the Philippines has become a hotbed of a flourishing trade of counterfeit goods.  The organized crime syndicates more often than not don’t get caught, or if ever the law enforcement authorities get them, they simply get easily off-the-hook.  This pathetic but common occurrence may be attributed to the lack of political will on the part of authorities to really solve the menace of piracy.  Indeed, catching these crooks is one problem, and hailing them to jail is still another problem.  A case of lack of relevant intellectual property laws?  Certainly not.  The Philippines has sufficient laws, chief of them, the Intellectual Property Code, spelling out the different provisions intended primarily for the protection of intellectual property rights.


In 1997, the Congress of the Philippines passed Republic Act No. 8293 aimed at protecting “xxx the rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations xxx.” [2] Sixteen (16) years later, Republic Act No. 10372 came into law, amending certain provisions of Republic Act No. 8293.

The amendments were aimed at increasing the strength of the old law (RA No. 8293) particularly in the area of enforcement of intellectual property rights.   The more prominent amendments to Republic Act No. 8293 being those that relate to the right accorded to Filipinos arriving from abroad to bring in imported books, CDs and DVDs of movies and music without being subjected to delays in the counters due to questioning thereat by customs authorities; likewise appearing in the amendments is the provision on internet file-sharing.

             Among other things however, the following concepts or provisions in the amendatory law seemed to ruffle the feathers of some citizens.  They say that there appears to be a curtailment of their rights.

The Intellectual Property Office (IPO) website’s Frequently Asked Questions (FAQs) list six (6) items of concern, as well as their rather short explanations thereof.  On the question whether one may still be allowed to import books, DVDs, and CDs from abroad, it answers that the original limitation of three copies and the rule under Section 190.1 of the old Intellectual Property Code that the importation of a copyrighted work must be preceded by an assent or authority by the owner of the copyright before the materials or the copyrighted work are to be brought into the Philippines have been removed is not fairly accurate in the sense that under the old law, specifically under the now-deleted Section 190.1, it is stated therein that the three-copy limitation on the importation of works (books, CDs, DVDs) without authorization from the author would only be applicable if these copies were only for the use of any religious, charitable, or educational institutions.  Clearly, this is not the idea contemplated in the IPO’s answer.   The answer was not qualified, thus, misleading.

The amendments to the particular provision proffer the idea that there is no more need to secure authority from the copyright owner even if the importation of copyrighted works is not intended for personal purposes, qualified by the caveat that the same is however subject to the economic rights of the copyright owner as pronounced under Section 177 of the Intellectual Property Code or RA No. 8293, must be taken with a grain of salt.  It only means that the importation of these things are perfectly legal, even if they are in substantial quantity so long as the same are not pirated copies of original works.  If there is no substantial reason or wisdom to amend that particular provision, one wonders why, still, Congress made such deletion. 

Furthermore, the new provision (Section 190) giving to the Bureau of Customs the power to determine what is infringing and what is not seems to be self-serving.  While it is admitted that the regulation of importation or exportation of goods or articles is better left to the administrative agency concerned, the Bureau of Customs that is, the same however may not fully sub serve the intent of such particular provision.  This is dangerous.  For instance, an Overseas Filipino Balikbayan decides to bring home his collection of various CDs or VCDs of his favourite movies he bought knowing that the new law does not illegalize the importation of multiple copies of these materials.  The danger lies in when the Bureau of Customs, according to its determination, declares that the materials are infringing and therefore confiscates the same without clear parameters.  What if it turns out that the same really is not infringing? What happens now to the hapless OFW or balikbayan?  He is at the mercy of the authorities, and therefore, the possibility of extortion is very wide and open.

The law could have been phrased better.  It should not have given the Bureau of Customs that right to determine what is infringing or what is not. This, aside from the fact that there is a great possibility of confusion as to the determination of what constitutes infringement and what does not with respect to the books, CDs or DVDs of music or movies.  Thus, with this very possible perplexity, the purpose by which the amending law was crafted might be rendered illusory as when a copyright owner says that a copyright work cannot be brought home in the country because it constitutes infringement on his rights.  The law, instead of qualifying further or explaining the provision only ended up muddling the issue.

  Likewise misleading is the explanation on whether or not the reproduction of copyrighted material for personal purposes constitutes infringement.  It says that there is no infringement if one transfers music from lawfully acquired CD into a computer and then download the content to a portable device.  The act constitutes infringement only if one makes multiple copies of the CD to sell.  What if one makes multiple copies of the same, not to gain profit therefrom, but to distribute them to his relatives and some friends so that the latter could also enjoy the optical media, does infringement arise?  The explanation on this matter is not clear.

In the fourth question thereof, it says that jailbreaking, or the process of removing the limitations put in place by a device’s manufacturer or rooting, which is the process of gaining root access to a device [3], by themselves are not illegal.  It continues, “[H]owever, downloading pirated material, or committing infringement with a jailbroken phone increases the penalty and damages imposed on the person found guilty of infringement.” This is ambiguous.  It visualizes a jailbroken phone in the possession of an original buyer. 

But consider the following scenario:  if a jailbroken phone is subsequently sold by its first owner so that he can acquire a newer model or another brand, which practice is not uncommon in the Philippines, to an unsuspecting buyer and the latter downloads his favourite music from the internet to his phone without knowledge that it is jailbroken, would he be liable?  Apparently, yes, as the answer to the FAQ seems to explain.  And there lies the problem.  First, it avoids liability for the person who was responsible for the jailbreaking, and instead penalizes the subsequent buyer of the gadget.  It seems unfair.  But that is how the answer was worded.  In very simple terms, the use of a jailbroken phone, even when the user does so without knowledge thereof, increases the penalty for him, but not with respect to the one who rooted the phone.

As to the possible liability that mall owners may have for the infringement activities of their tenants on the pretext that they should be responsible for whatever happens inside their buildings, I interpose no opposition thereto.  Nonetheless, it is observed that these activities are not confined in the malls.  It is common knowledge that the same is more prevalent in the sidewalks where sales are more brisk.     

            And lastly, one of the more contentious provisions under the amendatory law is the provision giving the Intellectual Property Office police power to visit businesses and conduct searches based on reports, information, and complaints.  I find this rather disturbing.  For one, it may run counter to constitutional precepts of freedom from illegal or warrantless searches as it arrogates upon the Intellectual Property Office the authority to conduct vests to business establishments solely on the pretext that it has received reports that an illegal activity is taking place inside those businesses.  This practice is clearly proscribed in the Constitution.  Warrants, at all times, and must be acquired first before any conduct of searches or “visits” is to be considered illegal.  Also, since the pretext is to conduct visit based on a supposed report, again the possibility of corruption or extortion is not at all farfetched.  It didn’t help either that the IPO says that a warrant wouldn’t be required if it is accompanied by the Bureau of Customs or the Optical Media Board, which agencies could perform a search and seizure on their own right without a warrant.  Again, here, the possibility of abuse and misuse of this power is not a long shot.  And I leave it to the reader to make his own hypothesis on how abuses or excesses of authority could happen under the circumstances.   

            If there be any good points in the law as a consolation however, and which should be welcomed with nary a hint of doubt, the new law brings about a most-welcome and fresh innovations, to wit, the accreditation of collective management organizations (CMOs), whose job will be to ensure the protection of the rights and financial benefits of copyright owners; as well as the non-commercial reproduction of copyrighted works for use by people with hearing, eyesight and reading problems.  This is really a good provision which an IRR could explain with eloquence well.   


                        The boldness with which piracy trade is being conducted by the organized crime syndicates indisputably requires a more stringent approach through laws that afford the necessary shield against infringement.  This should not purport however that laws are to be hastily crafted as to possibly impair otherwise vested rights, or shall I say, rights which have already been afforded by an earlier law.  If this were so, then, it is not a law that the citizens need.  It is only a law that could have been the product of a knee-jerk and spontaneous response to the ever-growing and persistent threat of piracy or infringement of intellectual property.  Republic Act No. 10372, in this light, seems to be one which did not further the cause of intellectual property owners.  Rather, it seems to have defeated the very purpose for which Republic Act No. 8293 has guaranteed to them, that is, to PROTECT and SECURE the exclusive rights of scientists, et. al.

            There is a need to fully harmonize the importance of intellectual property laws with the growing needs of the people in this age of great technological advancement.  The executive agencies tasked with the enforcement of these laws should possess the necessary tools and political will to bring about at least a very acceptable reduction of the proliferation of these illegal activities. 

In the same manner, the legislature should continually craft laws that seek to adapt with the quickly changing times, most particularly for the protection of intellectual property rights.  Likewise, for the judiciary to encourage the members of the Bar to practice in the field of intellectual property litigation so that technically equipped practitioners would be adequate for the protection and or defense of intellectual property rights. 

And finally, the government must enlist the help of the citizenry and the artists themselves, being indispensable participants and stakeholders in the furtherance of the government’s initiative, so that more and more people would recognize and comprehend the importance of intellectual property not only for their own benefit, but also for the benefit the country’s economy.


The law has not been welcomed with open arms by the people.  The opposition thereto is far and wide.  Some are even demanding for its repeal for various grounds, including its constitutionality.

            This apprehension is accurately summed up by Ms. Alona Anonas-Carpio in her published article in the Philippine Graphic which I quote, “Cynical as this may sound, the proof of the pudding is in the eating. The Libel Law, too was created and passed to protect people from intentional damage to their reputations. However, that law has been used as a tool of punishment and harassment for its sins of omission and vagueness.

Perhaps the people cannot be blamed for being suspicious about the removal of limits that protect consumers even as they limit their ability to pack their bags with intellectual property rights-protected goodies. After all, it is the loopholes that break a law.”[4]

The foregoing observations or comments notwithstanding, the new law at least should be given time to prove its worth.  After all, the said law is, well, intended to arrest the evils of piracy.  For now, it is better to let it unleash its potential.  If in the long run, it proves to be counterproductive, then at least, Congress at Malacañang’s behest, with its vast powers, can still craft another law that could finally offer the much needed shot in the arm of the beleaguered intellectual property industry.  

But just the same, we better be wary.  There is no substitute to vigilance where private or personal, or Constitutional rights are at stake. 


2. Section 2, Declaration of State Policy, Republic Act No. 8293, Intellectual Property Code of the   Philippines.

5. Republic Act No. 10372, (An Act Amending Certain Provisions of Republic Act No. 8293,
    Otherwise Known as the “Intellectual Property Code of the Philippines”, and for Other Purposes)


            Again, the contents of this blog are opinions of this writer only and are not intended in any way to influence the opinions of others relative to the same topic.  Further, the reader is advised not to rely on the points of law raised herein to avoid any misconceptions.  Finally, the writer apologizes for any error, grammatical or otherwise, that may be spotted by a probing reader.

1 komento:

  1. As a blogger also, what can you suggest for the government to do regarding the importation of intellectual property goods? Is it really the intention of the law to arrest those who commits piracy of intellectual goods? How about this online piracy?