STEP JUAN : THE PHILIPPINE DIRECTION TO PHILIPPINE COPYRIGHT REFORM

Picasso had a saying, good artists copy, great artists steal.

We have been shameless in stealing great ideas
- Steve Jobs, 1994
( Interview about the creation of the Apple Macintosh )
"I will spend my last dying breath if I need to,
and I will spend every penny of Apple's $40
billion in the bank, to right this wrong,
I'm going to destroy Android, because it's
a stolen product. I'm willing to go thermonuclear war on this."

- Steve Jobs, 2010

( Reaction to HTCs 2010 Introduction of an Android phone that share the many features of the
IPhone- Lifted from Steve Jobs Biography)
Steve Jobs statements on two separate occasions seems to justify the claim of the documentary
entitled , Everything is a Remix: Part IV when it claimed, When we copy, we justify; when
others copy, we vilify . It provides a rather interesting comparison of the evolution of man and
social evolution as we know it today. This social evolution gave birth to the concept of
Intellectual Property. It narrated that men came from the Last Universal Common Ancestor
(LUCA) also known as the genes in our body and through the process of evolution, these genes
copied, transformed and survived. It explains that culture evolves in a similar way; but instead of
genes, memes, defined by Merriam Webster dictionary as an idea , behaviour , style or usage that
spreads from person to person within a culture; through social evolution, are copied, transformed
and combined. Unfortunately, it further adds, these expressed ideas are regarded by our system
of law, which hardly acknowledges the derivative of creativity, as distinct lots with boundaries.
Watching the traffic lights change color while waiting for my turn to cross the street the other
day, I could not help but be reminded of the proposed amendments to the Intellectual Property
Code of the Philippines. It was mentioned in class weeks ago that it is only awaiting the
signature of the President and I even remember hearing from our professor in Intellectual
Property that if and when PNOY signs it into law, we should be afraid, more so, be very afraid of
the would be changes. I had wondered if it had been given a green light or if the President had
decided to give it a yellow status still.
Just today, I learned from the website of GMA Network that RA 10372 has been signed into law
on February 28, 2013 after Palace claimed days before that PNoy was still closely studying the
amendments. The same was transmitted to Director General Ricardo Blancaflor of the
Intellectual Property Office on March 4, 2013.

Copyright is not expressly defined in our laws . Only pertinent terms have been defined under
Section 171 of RA 8293. In the book of Funa, copyright is defined as a branch of that part of the
law which deals with the rights of intellectual creators. The law protecting copyright is very strict
since it endeavours to afford protection. More often than not ,the legalities of the provisions go
beyond the comprehension of an ordinary citizen , making it difficult to relate them to everyday
life, more so realize the gravity and impact of mans unconscious actions in relation to
infringement of anothers right.
History tells us that the Law on Copyright began upon the refusal of Parliament to renew the
Licensing Act in 1695, paving the way for the presentation to the House of Commons of a bill
which later became known as the Statute of Anne (1710) with a title that read An Act for the
Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or
Purchasers of such Copies, during the Times therein mentioned. This is recognized as the first
Copyright Law.
In the article entitled International Copyright Summaries by Kenneth Crews, it was noted that
there are many differences with respect to the standards of copyrightability among nations.
Germany is said to have high standard of originality while United Kingdom is regarded to have
very low standard. The article further notes that the basic structure of copyright law in over 140
countries is shaped by the requirements of the Berne Convention which specifies that "Authors
shall enjoy, in respect of works for which they are protected under this Convention, in countries
of the Union other than the country of origin, the rights which their respective laws do now or
may hereafter grant to their nationals, as well as the rights specially granted by this Convention.
An issue we all seem to relate to is piracy. I headed to Makati Cinema Square and decided to
conduct a social experiment. I asked several pirated CD or DVD patronizers why they resort to
buying fake over original and I got answers along this bend, Why buy something way
expensive if you will only watch it or listen to it once ? Highly impractical and waste of money.
Some even argued that pirated DVDs allow them to enjoy many movies without having to spend
a lot . Oh yes, we Filipinos love cheap stuff, the cheaper the better and even better if we get it
free. We brush aside the labor that went into the making of the songs and the films and other
artistic works of art because we argue that our everyday struggles are just too much to still care
about the people in the upper part of the pyramid. The justification lies along the argument of
practicality. At least that's how I see it based on the interviews I made .
In recent months, news agencies have announced that through the efforts of the local government
and the Optical Media Board ( OMB) , the streets of Quiapo and Makati Cinema Square have
been dropped from the notorious markets list in selling pirated CDs and DVDs. But who are we
kidding ? One only need to walk in Makati Cinema Square to realize that behind the clothes
being sold are boxes and boxes of pirated discs for sale. The quantity has not changed, only the
strategy has changed since they now employ people who follow customers around while
whispering, Maam/Sir, DVD ? Unfortunately, we seemed to have alreadembraced a culture of
piracy.
For a non expert, it is easy to make stipulations as to why copyright is such a big issue for the
government and copyright owners. For authors and copyright owners however, such a culture of
mere practicality has no place in society, and such unauthorized copy and use of artistic and
literary materials which are products of their genius mean millions of money down the drain.

Under the amended law, the Intellectual Property Office explained that the secondary liability of
mall owners arises when the latter benefits from the infringing activity, have been given notice of
the infringing activity and the grace period to address the complaint and had the right and
activity to control the tenant.
There have also been claims that piracy funds terrorism although these claims have remained
unsubstantiated. But copyright infringement is beyond buying fake discs. Years ago, Barbara
Streisand fans complained about Salbakuta destroying the sentimental impact of the song
Evergreen by incorporating lines of the song in the chorus of their song Stupid Love. The
reason behind copyright protection however is further than sentimental reasons.
In a fast paced and technologically advanced world, everything seems to be available at ones
fingertips. As potential markets expand, the expansion allows greater opportunity for abuse,
whether we know it or not. For a lucky few , the internet is a stage and everything but a feared
dungeon. Take the case of cover songs for instance where the likes of Charise Pempengco ,
Justin Bieber and the random girl at the mall got their instant fame. The formula seems easy, sing
someone elses song, upload it on YouTube and make people notice. Seems harmless right ? But
since we are on the subject of copyright protection, it must be asked; Is it even legal to sing
someone elses song ?
Section 172 of RA 8293 requires the element of originality to enjoy copyright protection. Section
172.1 (f) expressly includes musical compositions with or without words as among the works
which need to be original. Given this requirement, cover songs , cover versions or what we
popularly call in the Philippines as revivals become violative of the copyright law precisely
because they are copied.
Another type of music which is changing the face of the music industry is Mash Up. Typically
used to pump up the energy in bars, a mash up music as defined in Wikipedia is the blending of
pre recorded songs by seamless overlay of vocal tracks. Sometimes, as much as ten songs are
incorporated to make a single track making the original songs impossible to recognize. One may
ask , If the original songs become unrecognizable and are merely used as raw materials for
someone elses creative work, how would it destroy or copy the original to the extent that it
prejudices the owner of the original ?
The basis of the argument in favor of copyright protection in this case is that though making the
original appear unrecognizable, mash ups transform the works and under our laws, particularly in
Section 177.2, the dramatization, translation, adaptation, abridgement, arrangement, or other
transformation of the work gives the copyright owner reason to prevent the change based on his
economic rights. The solution for individuals who want to use samples of work is to license.
A famous case on copyright infringement would be Pirate Bay, the largest torrent hosting website
on the internet whose moderators faced trial in Sweden after media firms like Sony and Warner
Brothers sued them for promoting other peoples infringement of copyright laws. In their
defense, Frederik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmsioppi and Carl Lundstrom
argued that they are digital libertarians and that they cannot be prosecuted for copyright theft
because the content is not hosted on their servers. The defendants were thereafter found guilty
and sentenced to a year in jail and a $3.6 million fine.

Not very far behind is the issue of downloading. I personally believe the rules must have some
flexibility with regard to this. The fair use doctrine is actually a very welcome part of the
copyright law, until the amendments that is.
Let us examine fair use from around the world.
Fair Use as defined in the book of Funa is a privilege in other than the owner of the copyright to
use the copyrighted material in a reasonable manner without his consent, notwithstanding the
monopoly granted to the owner by the copyright. Its earliest use is said to have been recorded in
the case of Lawrence vs. Dana where the term was first coined.
Fair Use in Section 107 of the United States Copyright law considers four instances where
reproduction of work may be considered fair. These are
1. The purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the
copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the
copyrighted work
In Canada, fair use is replaced by fair dealing. The fair deal clause under Section 29 of the
Canadian Copyright Act allows use of copyright material for purposes of criticism, research and
private study provided it is done in a fair way.
The Supreme Court of Canada considers these six factors:
The

purpose of the dealing (research, private study, criticism, review)

The amount of the dealing (whole work versus a chapter, a table or a quote)
The character of the dealing (single copies are more fair than multiples)
Alternatives to the dealing (Links or licenses available)
Nature of the work (limits how much to use through institutional policy)
The effect of the dealing on the original work (loss of $$$, reputati on to the creator)
In the Philippines, the Doctrine of Fair use is enunciated in Section 185 where copyrighted work
for criticism, comment, news reporting, teaching, scholarship research is not considered
infringement of copyright.
Determination of Fair Use must consider the following factors :
(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.
The amendment related to fair use , although more recent, appears to me as more backward than
the old law I find acceptable.

Section 185.1 of RA 8293 provides that the fair use of a copyrighted work for criticism,
comment, news reporting , teaching, including multiplecopies for classroom use , scholarship,
research and similar purposes is not infringement of copyright. Under the amended law, multiple
has been replaced with the word limited. The lack of further explanation as to this limit scares
me because it does not support intellectual advancement in the modern times. Most areas in the
Philippines do not have access to schools, teachers and books. Far flung areas rely on volunteers
or teachers to the barrios who more often than not cannot as well afford to buy books to
distribute to students. This is where technology should come handy. But if downloading songs or
books that these instructors or volunteers can carry with them and distribute to students carries
with it a limit ans ultimately a violation and a sanction even for classroom use, what more will
these students learn ?
Copyright is synonymous to protection and laws around the world change from time to time
through amendments to further provide security to those who are entitled to protection. I think
this is the very same reason behindthe passage of what is now called as Republic Act 10372
amending certain provisions of the Intellectual Property Code of the Philippines.
The signing of the bill into law was not well received . Moderators of the popular website
Democracy.Net.Ph for instance issued a statement expressing disappointment over the new law
which they consider flawed, against the exercise of constitutional rights and biased against
stakeholders.
In RA 8293, Section 190.1 permits importation for personal use without obtaining authorization
from the author or copyright owner provided it does not exceed three copies. Such liberality
however is justified under 190.2 where the law reiterated that such allowance may not be used to
violate the rights of the copyright owner or limit the protection secured by the act . RA 10372 is
being frowned upon for the deletion of the above mentioned sections. In an article by journalist
and political blog writer Raissa Robles, it was claimed that the amendments to the Intellectual
Property Code especially in relation to the above cited sections erased the right of Filipinos to
bring home music, movies and books from abroad.
In response, the Intellectual Property Office argued that contrary to the claim of Ms. Robles, the
IP Code amendment actually gives Filipinos better access to copyrighted works from abroad
since the deletion of said sections mean there is no longer a limit to the number of copies that can
be imported. The IPO is arguing based on the benefit of International Exhaustion which is
explained in the very same article

Another arguable point is the implied warrantless searches and seizures under Section 7(d) of the
amended law which reads as follows.

SEC. 7. The Director General and Deputies Director General.

(d) Conduct visits during reasonable hours to establishments and businesses engaging in
activities violating intellectual property rights and provisions of this Act based on report,
information or complaint received by the office

University of the Philippines College of Law Professor JJ Disini expressed concern regarding
this extended power of the IPO arguing that in the absence of the need to secure warrants, it
appears that victims of Intellectual Property rights violations are given more rights than the
victims of heinous crimes. In addition, at sight it also appears to me that Section 7.1 (d)
contradicts Article 3 Section 2 of the Philippine Constitution which reads :
Sec. 2. The right of people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature shall be inviolable and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce , and particularly describing the place to be searched and the persons or things to be
seized.

The amended law also seems to be headed towards expansion and not merely extension of
protection. Before the amendment, moral rights are protected during the lifetime of the author
and fifty years after his death. In the amended law, particularly Section 198.1 thereof, moral
rights shall last during the lifetime of the author and in perpetuity after his death. The extension
of copyright protection defeats the very purpose of Intellectual Property which is to allow the
public to enjoy use of the thing formerly subjected to copyright protection after it has entered
public domain. This access is believed by many to encourage innovation. While the IP law seeks
to reward the creator of the work by granting him exclusive rights while alive, extending the
term of protection long after he is dead, more so in perpetuity, does not in any way remain
consistent with rewarding creativity nor giving necessary compensation. The law , by the time
the work enters public domain, has already afforded the copyright owner ample time to exclusive
enjoyment of his right to the exclusion of others.
We have varied reactions about the passing of the amended law but rules are rules and while we
hope for more appropriate ones as we voice out our oppositions, we need to recognize
theirsupposed value to society and to give our fair share to proper adherence and
implementation. The rules of copyright from around the world all seem to funnel down to very
basic solutions. The most important is to determine if it falls under the doctrine of fair use.

The website desktop-documentaries.com provides ways and means to stay out of copyright
related problems when doing a film. These, according to the site author includes creation of all
your own content, use of content in the public domain and use of content made available under a
Creative Commons License. In case one still needs the work of others to achieve the films
desired substance, one needs to abide by a legal checklist composed of getting permissions and
clearances, checking for facts and fairness and making certain all ownership.

In light of recent developments in the field of Intellectual Property, it is just proper to ask, does
RA 8293 as amended provide the necessary reforms to balance the ever so capitalist copyright
law as we know it ?
I try to bring out my own psychological weighing scale. Much like Boy Abundas magic mirror, I
venture into introspection and analyze the impact of the amended law to my life.
Will the reforms result to opportunistic legislation , trampling on constitutional rights and defeat
of the very purpose of the law. At the moment, it appears to me that it will.
Do we need copyright reform ? To me, the answer is a resounding yes.
To be fair, I would like to think that perhaps this too were in the minds of the proponents of the
amendments. Not everything about the amended law is unworthy of applause. One provision I
particularly find acceptable is Sec. 184 of the amended law which reads:

SEC. 184. Limitations on Copyright. x x x

(1) The reproduction or distribution of published articles or materials in a specialized format
exclusively for the use of the blind, visually- and reading-impaired persons: Provided, That such
copies and distribution shall be made on a nonprofit basis and shall indicate the copyright owner
and the date of the original publication.

Sadly, the amendments , in an effort to keep up with the changing times , got lost in diverging
roads and took the road most taken, swift, fast, but nonetheless understudied. Should further
changes be undertaken in the future ? Yes. I hope our lawmakers can sit down and carefully
concoct a win win recipe balancing both the interest of the copyright owners and the people
atlarge.
In an ideal world, information , music and other artistic and literary forms of expression should
flow freely and be enjoyed by the rest of the world. After all, the urge to share is very natural.
But that is not how the world operates. We live in the real world where rights have to be
protected and where equilibrium remains elusive. At the end of the day, it all boils down to the
need to recognize responsibility and accept accountability for our actions whether or not we are
the copyright owner, the copyright user or the law enforcement agency. In my point of view,
further copyright reforms will have to reaffirm the very purpose for the countrys intellectual

property law which is to encourage the flow of artistic expression and useful inventions for the
common good.
With the election season in full swing, it is with a heavy heart that I voice out my observation
that the padrino system has devoured the integrity of how our legislators enact laws; where the I
watch your back you watch mine mentality where the interest of the investors are highly
protected is undeniable. Stakeholders seemingly become synonymous to stockholders.
I am not against the copyright law. I am actually for its noble goal of giving credit and protection
where due. I hope better legislation can reverberate this goal and make it happen.
I am a small voice in Juans huge universe of complicated rules but I hope that Step Juan (one),
my baby step towards my participation in better policymaking can soon echo the sentiments of
the ordinary Juans in this country.

Sources :
The Historical Law and Economics of the First Copyright Act
http://www.macrumors.com/2011/10/20/from-steve-jobs-biography-im-going-to-destroyandroid/
http://www.youtube.com/watch?v=CW0DUg63lqU
www.merriam-webster.com/dictionary/meme
http://www.desktop-documentaries.com/copyright-issues.html
http://www.ipophil.gov.ph/index.php/20-what-s-new/134-ip-code-amendment-gives-filipinosbetter-access-to-copyrighted-works-from-abroad
http://www.historyofcopyright.org/pb/wp_ff342f50/wp_ff342f50.html?0.7635552792293345
http://raissarobles.com/2013/02/16/amended-ip-code-disadvantageous-to-students-teachersresearchers-says-copyright-expert-lawyer-ping-peria/
http://www.abs-cbnnews.com/-depth/12/18/12/us-drops-quiapo-notorious-markets-list
http://democracy.net.ph/democracy-net-ph-statement-on-the-signing-of-president-benigno-saquino-iii-of-ra-10372-amendments-to-ip-code/
http://www.copyright.gov/fls/fl102.html
http://www.acad.ca/copyright_faq.html
http://www.chanrobles.com/legal7copyright.htm
http://www.interaksyon.com/infotech/copyright-infringement-under-the-new-ip-law
http://news.bbc.co.uk/2/hi/technology/7892073.stm

http://www.guardian.co.uk/technology/2009/apr/17/the-pirate-bay-trial-guilty-verdict
Intellectual Property Law ( 2012 Edition ) by Dennis B. Funa
http://jlp-law.com/blog/republic-act-10372-amending-the-intellectual-property-code-of-thephilippines-ra-8293/
www.eler.org/include/getdoc.php
http://en.wikipedia.org/wiki/Mashup_(music)