Rodriguez TODAYS CHALLENGE- PROTECTING COPYRIGHT IN THE PHILIPPINES

Internet

an international network of interconnected computers. "4- By the way it operates, the Internet is "a unique and wholly new medium of worldwide human communication”

provides a “wide variety of communication and information retrieval methods," like electronic mail, automatic mailing list services, newsgroups, chatrooms and WWW

Digital technology allows the conversion of this content into a digital form through “digitization” and enables their transmission over the Internet as “digital content”

Cyberspace—a unique medium common to all located in no particular geographical location but available to anyone, anywhere in the world, with access to Internet.

III. WHY ARE COPYRIGHT LAWS IMPORTANT?

-Related or neighboring rights—rights granted to or recognized in favor of performing artists with respect to their performances, producers of phonograms with respect to their recordings, and broadcasters with respect to their radio and television programs of some copyrighted work. Because of this conceptual proximity, they are called as such.

WIPO

1. Intellectual Property2. Industrial Property (patents-inventions, utility

models, industrial design, and trademarks-symbols, names, images, and others used in commerce

Copyright and related rights are “legal concepts and instruments”. They are the major means to establish ownership of inventions and creative ideas in their various forms

Purpose of Copyright and Related Rights (WIPO)

1. To encourage a dynamic creative culture, while returning value to creators so they can lead a dignified economic existence

2. to provide widespread, affordable access to content for the public

IP as powerful tool for economic development and national development (Constitution).

Without IP, creators would lose their economic fruits of their labor, thereby reducing investments

The creator invested time and money in developing a new product or service

IV. BEGINNINGS OF COPYRIGHT

Invention of printing press provide the “original need” for copyright laws. There should be a law between the author’s ownership of his work and the general public interest to access them.

“monopoly” granted to authors copyrightable works to enjoy the fruits of their labor but this is “neither unlimited nor primarily designed to provide a special private benefit. It is means to an end.

-limited monopoly

V. COPYRIGHT LIMITATIONS

-those that lock in the period during which their enjoyment and exploitation are exclusively reserved to the authors or creators.

-allowed to other persons by way of exceptions such as “compatible with fair practice” or “where reproduction would unreasonably conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interest of the author.”

VI. COPYRIGHT: BALANCING PRIVATE RIGHTS VERSUS PUBLIC INTEREST

To grant a limited monopoly to authors is a means to achieve public good.

Authors are granted exclusive rights over their creations and profit from them.

This monopoly (bundle of rights) is merely a “secondary consideration.” It is designed to move authors to harness their talents to create. Protection is the reward.

“Primary Object”- After expiration, the public freely gains access to the works.

VII. INTERNET: BANE OR BOON TO COPYRIGHT AND RELATED RIGHTS

Internet—“worlds’ biggest copy machine”

Because internet is a medium of worldwide human communication, copyright laws equally apply. However, it has become difficult for owners to protect their works.

VIII. HOW SERIOUS IS THE PROBLEM OF COPYRIGHT INFRINGEMENT ON THE INTERNET?

Most of the internet traffic are from copyright infringing. (Online piracy)

Illegal bittorrent downloading Illegal video streaming P2P file sharing Internet protocols used for file sharing

Affected industries

Cinema/motion picture Music Entertainment softwares Book and journal publishers (illegal subscription) Trade books (fiction/nonfiction) and academic text

books due to proliferation of tablets electronic reading devices

Counterfeit business software

IX. WIPO TREATES

1. WIPO Copyright Treaty (WCT)- rights of authors

2. WIPO Performances or Phonograms Treaty (WPPT)-performers or producers of phonograms

Objective of which is to provide protection to copyrighted materials in the internet, more specifically

To provide adequate legal protection and effective legal remedies against circumvention of effective technological measures.

They came into the Phils on October 4, 2002.

Obligations under the treaties

A. Technological Protection Measures (TPM)

-broad term that covers many different types of technologies used to control access to copyright content or to prevent users from copying protected content.

1. Access Control measures-deployed to limit access to protected content to users who are authorized to such access.

Ex. Cryptography, passwords, digital signatures

2. Copy Control Measures—measures to seek control “the use of protected content once users have access to work.”

Ex. Serial copy management systems for audio digital taping devices, scrambling systems for DVDs that prevent third parties from reproducing content without authorization

B. Rights Management Information (RMI) (article 12 WCT, Art 19 WPPT)

-items of information that are attached to a copy of work, fixed performance, or sound recording or which appear in connection with the communication thereof to the public. (such as author, owner of any right in the performance or information, terms and conditions of use of work or any numbers or codes that represent the information)

Common obligation “to provide adequate and effective legal remedies” against persons “knowing, or with respect to civil remedies, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of rights” of authors, performers, sound producers to knowingly engage in the unauthorized removal or alteration of any electronic rights management in works or copies of works, fixed performances, and phonograms or sound recordings; as well as distribution, importation, broadcast, or communication thereof, without authority and with knowledge that electronic rights management information has been removed or altered without authority.

TPMs and RMIs are “digital rights management systems”

X. THE PHILIPPINE’S LEGAL FRAMEWORK TO PROTECT COPYRIGHT AND RELATED RIGHTS

A. Intellectual Property Code

Took effect on January 1, 1998 Prior to IP Code, P.D. No 49 which carried the

provisions of Rome and Berne Convention which acceded in June 9, 1950.

The code is consistent with WTO and Trade-Related Aspects of Intellectual Property Rights (TRIPS)

TRIPS-negotiated in Uruguay and it expanded coverage of copyright of computer programs and databases; “Rental rights” in favor of authors

The IP code does not address problems in the internet

B. Optical Media Law

RA No 9239 or Optical Media Act of 2003 February 10, 2004 Enacted in response to address proliferation of CDs

VCDs and DVDs which carried unauthorized marketable digital content like motion pictures, softwares, games and programs

Creation of Optical Media Board-to address optical media piracy, but not in the internet

C. ANTI-CAMCORDING LAW

RA No 10088 May 13, 2010

Acts penalized as criminal

1. use or attempt to use an audiovisual recording device to transmit or make a copy of any performance in exhibition facility of a cinema or other audiovisual work or its soundtrack or any part thereof.

2. having in possession an audiovisual recording device in an exhibition facility, with intent of committing the act

3. connivance

D. ELECTRONIC COMMERCE ACT OF 2000

To promote the universal use of electronic transaction in the government and general information

Defined the liability of ISP, that it will not be liable for the making, publication, or distribution made in such material, including possible infringement of any rights

Penalized hacking and piracy Hacking—unauthorized access into or

interference in a computer system or server or communication system; or any access in order to corrupt, alter or steal or destroy computer data, without knowledge and consent of the owner, including introduction of computer viruses

Piracy—unauthorized copying, reproduction, dissemination, distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public works that are legally protected, through the use of telecommunication networks including but not limited to, the internet.

E. COPYRIGHTS AMENDMENT LAW (IP Code)

RA 10372 February 28, 2013 Seeks to address piracy in the internet

Section 22. Section 216 of Republic Act No. 8293 is hereby amended to read as follows:

"SEC. 216. Infringement. – A person infringes a right protected under this Act when one:

"(a) Directly commits an infringement;

"(b) Benefits from the infringing activity of another person who commits an infringement if the person benefiting has been given notice of the infringing activity and has the right and ability to control the activities of the other person;

"(c) With knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.

This amendment recognizes “vicarious liability”.

Vicarious liability—attaches to a person, who, having notice of infringement by another person and exercising the right and ability to control the former, benefits from the infringement.

Authors/Creators—while internet provides a new platform for their work, threatens the very foundation of their existence

For ISP, no liability—WIPO states that mere provision of facilities does not amount to communication that violates copyrights, however, they can be liable for vicarious liability.

Notice and take down procedure

o An ISP will not be liable if it had no knowledge of the infringement or not aware of the facts and upon obtaining such knowledge, acts expeditiously to remove, or disable access to the material

o It does not receive any financial benefit from infringement

o Take down material if violates copyright laws