Monday, May 20, 2013


“Are the statements of Malacanang, in its FAQ regarding RA 10372, accurate?”

The Congress has enacted Republic Act 10372 amending certain provisions of Republic Act 8293, otherwise known as the “Intellectual Property Code of the Philippines.” Due to the said amendments, certain issues and/or questions had been raised regarding the same. Below are the Frequently Asked Questions and was shortly answered by the government. However, the question is, whether the explanations provided for by the government are accurate, in relation with the old and new provisions of the Intellectual Property Code.

1. Am I still allowed to import books, DVDs, and CDs from abroad?

Section 190 of RA 8293 pertains to permitted circumstances of importation of a copy of a work by an individual for his personal purposes even without the authorization of the author or the owner of the copyright.[1] In the old provision of law, it has provided for 3 to 4 limitations as to when to allow the said importation, specifically Section 190.1 of the Act, to wit:
a.       When copies of work are not available in the Philippines AND:
·         Only one copy is allowed and shall be for personal use only;
·         When such importation is authorized by the government and solely for the use of the Philippine Government; or
·         Not more than 3 copies which is not for sale but for religious, charitable, or educational use.

b.      When such copies form part of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale.[2]
However, in RA 10372, the above provision was deleted. Due to the abrogation of the said provision, such limitation extends only to infringed articles or materials, where such are prohibited from being imported in the Philippines. Infringed articles or materials are those works taken in violation of the rights of an author, or owner of the copyright, which is protected by the law on copyright.
The government answered in the affirmative:
“Yes. In fact, the amendments to the Intellectual Property Code have removed the original limitation of three copies when bringing legitimately acquired copies of copyrighted material into the country. Only the importation of pirated or infringed material is illegal. As long as they were legally purchased, you can bring as many copies you want, subject to Customs regulations.”[3]
In the application of the amended law, the government has answered the question. An individual is allowed to import books, DVDs, and CDs from abroad provided that such materials are not infringed. However, such answer is not accurate, for it does not exhaustively and clearly explain what infringed materials are. Nor is there a precise definition under the law of what an infringed material is. In general term, so long as there is a violation of the author’s right, there is infringement therefore, such material cannot be imported. The construction needs to be applied in order to define infringed materials.

2. Is the reproduction of copyrighted material for personal purposes punishable by this law?

“No. Infringement in this context refers to the economic rights of the copyright owner. So, if you transfer music from a lawfully acquired CD into a computer, then download it to a portable device for personal use, then you didn’t commit infringement. But if, for example, you make multiple copies of the CD to sell, then infringement occurs.”
Here, the government did not answer the question. The question does not seek the economic rights of the owner. The question is about the prohibition, limitation as to reproduction of copyrighted material, and whether such act is considered punishable by law. The government should have answered what the prohibited acts are, and if such act does not fall under those prohibited by law, then clearly, there is no violation.
The government answered infringement in the context of economic rights of the copyright owner. This answer is non-responsive. Those listed under Section 177 of RA8293, are the exclusive rights of the said owner which he may exercise in his own discretion, such as authorizing or preventing reproduction of his work. If the owner of the work prevented such reproduction, and the said prohibition was ignored, disregarded, or violated by an individual, then the former may avail of the remedies afforded for him by law. There is infringement when the owner of a work complains against the holder of the material. There should be an act on the part of the owner because it is in his discretion whether to exercise his rights or not.
Notwithstanding the economic rights of the copyright owner, RA8293 provided for limitations on copyright, specifically Section 184. Although the law has afforded rights to the copyright owner in Section 177, the same shall still be subject to certain exemptions. Reproduction under Section 177 does not specify any purpose or use to which it shall be subjected to.

3. Is the possession of, for example, a music file procured through an infringing activity a violation of this law?

“Only if it can be proven that the person benefitting from the music file has knowledge of the infringement, and the power and ability to control the person committing the infringement.”
Again, the government is not accurate in answering the question. The government should have defined first or enumerated what the infringing activities are, or what infringement is.
“Infringement is the unauthorized importation, duplication, exhibition or distribution of any works covered under copyright protection.”[4]
These are the questions that may be a guide in determining whether such possession is a violation of the law in relation with Section 217 of RA8293
a.       Is the article/material taken from an infringing activity?
b.      Does the holder of the material have knowledge that the material was taken from an infringing activity?
c.       Is the purpose of the possession of the infringed copy of the work for the purpose of selling, letting for hire, or trade, or for any other purpose that will prejudice the rights of the copyright owner?

If all of the above questions are answered in the affirmative, then there may be a violation of the law on copyrights even if the possession if only temporary, in accordance with the amended RA8293, else, no violation thereof. Mere possession does not constitute violation, there should be present elements that would qualify such possession to be a violation of the said law.

4. Is jailbreaking or rooting[*] my phone or device illegal?

“No. Jailbreaking or rooting by themselves are not illegal. However, downloading pirated material, or committing infringement with a “jailbroken” phone increases the penalty and damages imposed on the person found guilty of infringement.”
The government’s answer is somewhat responsive, however, it would have been better if they have elaborated the explanation and should have not answered what is not being asked. Jailbreaking, basically, is freeing a gadget from limitations or restrictions imposed by the creator or carrier of the gadget. Once a gadget has been jailbroken, it may now be modified by the user based on his/her own preference and may be able to download files and applications not only on the fixed market provided for by the carrier, but also from other markets. Jailbreaking per se is not illegal. There are no prohibitions under that law nor declaration that such act is illegal in itself.

5. Are mall owners liable for infringement activities of their tenants?

“Mall owners are not automatically penalized for the infringing acts of their tenants. When a mall owner or lessor finds out about an infringement activity, he or she must give notice to the tenant, then he or she will be afforded time to act upon this knowledge. As stated above, the law requires that one must have both proven knowledge of the infringement, and the ability to control the activities of the infringing person, to be held liable. The mall owner must also have benefitted from the infringement.”
The answer of the government is not accurate. The question pertains to possibility of liability of the mall owner in relation with the infringing activities of their tenants. It was not asked whether mall owners are automatically penalized.
Liability is different from penalty. Liability is an obligation, responsibility, or debt.[5] Penalty, on the other hand, is a punishment established by law or authority for a crime or offense.[6] The question speaks of the responsibility of the owner in relation with certain acts committed by his/her tenants.
“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; or

(c)  With knowledge of infringing activity, induces, causes or materially contributes to the infringing conduct of another.” [7]

Therefore, mall owners may be liable for infringement activities of their tenants if the mall owners commit either of the acts provided for under Section 216 of RA10372, the above provision.

6. Is it legal for the Intellectual Property Office (IPO) to visit businesses to conduct searches based on reports, information, and complaints?

“The IPO may visit establishments based on reports and complaints; this in itself is constitutional. However, if the IPO intends to perform a search and seizure, it must comply with constitutional requirements, such as having a search warrant. A warrant wouldn’t be required, however, if the IPO is accompanied by the Bureau of Customs or the Optical Media Board—two agencies that can perform a search and seizure on their own right without a warrant (per Republic Act No. 1937 and 9239, respectively).
The procedure and safeguards for this are to be spelled out in the Implementing Rules and Regulations”.
The government answered in the affirmative. The Director General and Deputies Director General may 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.[8] However, the answer of the government is not accurate. The IPO is expressly allowed by law to conduct visits. Such law does not provide for limitations as to the visit that may be done by the said authority, nor does the law provide for rights of the establishments, or businesses to be visited. There is a probability that certain rights of the said establishments may be prejudiced pursuance to the enactment of the functions provided for with the IPO. There should be limitations so as to afford protection also to those entities that may be abused or taken advantage of by the agencies due to its capriciousness.
Although there is somewhat accord with respect to the constitutional right against searches and seizures, there is conflict as to the validity of a warrantless search as stated in the above answer of the government. There is a constitutional right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose 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. There are first and foremost constitutional rights that are opt to be protected and cannot be violated nor ignored by authorities because of the power given to them by mere statutes.

DISCLAIMER: I am not a lawyer. This blog is created solely for the purpose of compliance with TechNdDLaw under Atty. Berne Guerrero

[1] RA8293 sec 190.1
[2] RA8293 sec 190.1 (b)
[7] Section 216 RA10372
[8] Section 2 of RA10372


  1. I agree with you that there should be limitations to afford protection when the IPO should visit establishments. The visitorial right conferred to them is a disguise for search and seizure. The IPO must comply with the requirements of a valid search warrant.

    On other note, I hope you can expound on matters you said that the Supreme Court’s answer was not accurate or uncorroborated.

  2. In relation to the point raised by Malacanang in FAQ#2, do you agree that infringement necessarily relates to the economic rights of the owner?