A study of local and foreign legislation, bills
and treaties about ‘downloading’ copyrighted works
Copyright is that intellectual
property right which one has over “original
intellectual creations in the literary and artistic domain protected from the
moment of their creation.”[1]
Most,
if not all, of the works protected by copyright as enumerated under
various Sections in Part IV of Republic
Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines,
are available on the internet. These can be viewed, streamed, copied and
downloaded, often free of charge. And more often than not, these are made
available or ‘shared’ by persons other than the owner of the copyrighted work.
File-Sharing/Downloading in the Philippine Setting
Any person other than the owner of the copyrighted work
who without authorization makes available said work on the internet is liable
for infringement because a copyright owner has "the exclusive right to carry out, authorize or prevent" the
"communication to the public of the
work."[2]
This begs the question whether the person who takes advantage of the
availability of the work and downloads the same is also liable for
infringement.
The
rights that an author of a work enjoy is three-fold in character, viz:
(1) economic rights; (2) moral rights; and (3) neighboring rights. The
violation of any of these rights constitutes infringement. The specific acts
that constitute infringement are enumerated in R.A. No. 8293; however, the act
of downloading a copyrighted work is not expressly, or even impliedly,
prohibited. It is also unfortunate that the issue has not been tackled yet in
the courts. Ergo, it is safe to say that there is no restriction on online
downloading in the Philippines.
Stop Online
Piracy Act (SOPA) / PROTECT Intellectual Property Act (PIPA) (US)
What it is:
The Stop Online Piracy
Act (SOPA) is a United States bill (House Bill No. 3261) introduced on October
26, 2011 by U.S. Representative Lamar S. Smith (R-TX) to expand the ability of
U.S. law enforcement to fight online trafficking in copyrighted intellectual
property and counterfeit goods. Provisions include the requesting of court
orders to bar advertising networks and payment facilities from conducting
business with infringing websites, and search engines from linking to the
websites, and court orders requiring Internet service providers to block access
to the websites. This applies only to non-U.S. sites.[3]
On the other hand, the
PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft
of Intellectual Property Act, or PIPA) is also a United States bill (Senate
Bill No. 968) introduced on May 12, 2011, by Senator Patrick Leahy (D-VT) with
the stated goal of giving the US government and copyright holders additional
tools to curb access to "rogue websites dedicated to the sale of
infringing or counterfeit goods", especially those registered outside the
U.S.[4]
Both proposed
legislation are aimed at stopping copyright infringement at the source, meaning
to say they prevent the proliferation of infringing content; but it is not
clear whether the act of downloading content that has not been blocked or
removed is considered unlawful.
Applicability
in the Philippine setting:
Many of the provisions
in the SOPA and PIPA have drawn flak from various sectors. Issues have been
raised as to the consitutionality of said bills, in addition to potential
financial and industrial ramifications. As they are, similar legislation should
not be adopted in the Philippines.
However, the SOPA and
PIPA do have provisions that would be beneficial if adopted, particularly those
that provide penalties for selling counterfeit drugs and consumer goods through
the internet. These may be incorporated into exisiting laws on e-commerce and
intellectual property (if still not provided) in order to avoid the adoption of
the other controversial provisions.
The Digital
Economy Act of 2010 (UK)
What it is:
The Digital Economy Act
2010 (c. 24) is an Act of the Parliament of the United Kingdom regulating
digital media. Introduced by Lord Mandelson, it received Royal Assent on 8
April 2010, and came into force on 8 June 2010.[5]
The copyright provisions
in the Act and in the proposed regulatory code of the Office of Communications
outlines how to proceed against a person who commits copyright infringement. It
begins with rightsholders gathering lists of Internet Protocol addresses which
they believe have infringed their copyrights. They would then send each IP
number to the appropriate Internet Service Provider, along with a
"copyright infringement report".[6]
The ISP must then
determine whether the infringement report is valid and send a notification to
the subscriber in question if it is. The report and the subscriber it refers to
are recorded by the ISP, but no further action is taken.[7]
The next stage in
proceedings involves the rightsholder requesting a "copyright infringement
list" from the ISP. The rightsholder can then approach a judge to gain a
court order to identify some or all of the subscribers on the list, and with
that information launch standard copyright infringement litigation against
them.[8]
Further, the Act allows
the Secretary of State - with the consent of the Lord Chancellor, upper and
lower houses of Parliament and a court of law - to block access to a location
on the Internet "from which a substantial amount of material has been, is
being or is likely to be made available in infringement of copyright", or
a location which "facilitates" such behaviour.[9]
However,
it was reported that the key provision of the act - sending out warning letters
- has been continually delayed. The first letters are not expected to be sent
until at least 2014.[10]
Applicability
in the Philippine setting:
A
comparison between the SOPA/PIPA and the Digital Economy Act of 2010 reveals
that the latter is less strict, and premium is given on due process (as can be
seen above). A similar legislation may be adopted in the Philippines, although
the “website banning” measure may have to be deliberated upon, because it may
infringe on the constitutional right to freedom of expression in the
Philippines.
Moreover,
under the Digital Economy of Act of 2010 a website that hosts content or even
links that lead to other sites that violate copyright protection may be banned.
The issue here is that other content or links that do not violate copyright
protection will also be banned. This collateral damage borders on internet
censorship and violation of the right to freedom of expression. This kind of
provision may not receive major approval in the Philippines, since in the
country constitutional rights are zealously guarded.
HADOPI Law
(France)
What it is:
The
law creates a government agency called Haute
Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet
(HADOPI) (English: the High Authority for Transmission of Creative Works and
Copyright Protection on the Internet) and it was adopted by the French Senate
on May 13, 2009. On October 22, 2009, the Constitutional Council approved a
revised version of HADOPI. The agency is vested with the power to police
Internet users. The agency’s mandate is to ensure that internet subscribers
"screen their internet connections in order to prevent the exchange of
copyrighted material without prior agreement from the copyright holders."[11]
On receipt of a
complaint from a copyright holder or representative, HADOPI may initiate a
'three-strike' procedure. On the third violation, the internet access
subscriber is blacklisted and other ISPs are prohibited from providing an
internet connection to the blacklisted subscriber. The service suspension does
not, however, interrupt billing, and the offending subscriber is liable to meet
any charges or costs resulting from the service termination.[12]
Further, action under
the HADOPI law does not exclude separate prosecution under the French code of
Intellectual Property, particularly its articles L331-1 or L335-2, or limit a
claimant's other remedies at law.[13]
Applicability
in the Philippine setting:
The
HADOPI law provides for a “three-strike” rule similar to that implemented in
New Zealand, among others. This concept is very simple. On the first instance
of copyright infringement, a reminder will be sent via email message to the offending internet subscriber. On the
second instance, a certified letter-reminder will be sent. Finally, a third
violation will warrant the suspension of internet access for a specified period
of time. This can only be done upon a written order from a judge.
The
HADOPI law is a good measure to curb copyright infringement, mainly because of
the “three-strike” rule , which provides stringent measures but puts premium on
due process, a right that is given great importance in the Philippines.
The mandate may be given
to the Intellectual Property Office. However, the question of feasibility or
practicability arises. It would seem that in the current Philippine setting,
this would only apply to internet service subscribers whose e-mail addresses
and physical addresses are registered with the internet service provider. The
problem is, majority of Filipinos avail of internet service using pre-paid
subsciption, broadband service or Wi-Fi hotspots, among others. In the latter
cases, the e-mail and physical addresses are usually not registered. Some
subscribers may not even have an e-mail account. The offending person may be
located by tracking the internet protocol (IP) address, but then this is a
tedious process, and some would say that this is violative of the
constitutional right to privacy.
Beside
that, the addition of personnel to monitor internet traffic and send notices,
not to mention the operational expenses, would make the implementation of this
scheme very expensive.
Copyright
(Infringing File Sharing) Amendment Act 2011 (NZ)
What it is:
The Copyright
(Infringing File Sharing) Amendment Act of 2011 is an Act of the Parliament of
New Zealand which amended the Copyright Act of 1994. It commenced on September
01, 2011.[14]
The Copyright
(Infringing File Sharing) Amendment Act 2011 provides for what is known as
graduated response. Under the Act copyright owners notify fixed-line ISPs (the
Act does not apply to mobile networks until 2013) that they believe an internet
subscriber is infringing their copyright through peer-to-peer filesharing, the
ISPs in turn send warning notices to the relevant subscribers, and after three
such warnings the copyright owner may take their case to the Copyright
Tribunal.[15]
Applicability
in the Philippine setting:
Please
see above discussion on applicability in the Philippine setting of the HADOPI
law.
Anti-Counterfeiting
Trade Agreement
What it is:
The
Anti-Counterfeiting Trade Agreement (ACTA), is a multinational treaty for the
purpose of establishing international standards for intellectual property
rights enforcement. The agreement aims to establish an international legal
framework for targeting counterfeit goods, generic medicines and copyright
infringement on the Internet, and would create a new governing body outside
existing forums.[16]
The treaty is according
to Article 39 open for signature until May 01, 2013 for the participants
involved in the negotiations as well as all members of the World Trade
Organization (WTO) of which the participants agree. After entry into force, the
treaty would only apply in those countries that ratified it. The finalized
agreement text was published on April 15, 2011 and includes six chapters with
45 articles.[17]
Applicability
in the Philippine setting:
A
perusal of the text of the ACTA reveals that the treaty stipulations are in
keeping with the general principles of international law. There is a focus on
enforcement and international cooperation, which is prudent because online
piracy spans then entire globe.
The
ACTA drew a lot of criticism because of the fact that the negotiation stage was
not public, and prior requests for the full text of the same was withheld from
the public. Moreover, the public has no access to the deliberations on the ACTA
provisions. This poses some difficulty for countries who have yet to enter into
agreement or ratify the treaty because most of the provisions are couched in
general terms.
However,
it would seem that there is no downside to enter into and ratify the ACTA
because even after ratification, the Supreme Court has the power of judicial
review over the constitutionality of any treaty, international or executive
agreement[18],
and must hear such cases en banc.[19] Also,
there are certain grounds to invalidate a treaty or even to terminate the same.
CONSTITUTIONAL
IMPLICATIONS
Discussed
above are two (2) bills (SOPA and PIPA), three (3) legislative acts (The Digital
Economy Act 2010 [UK], HADOPI Law [France] and Copyright Amendment Act 2011 [NZ)])
and one (1) treaty (Anti-Counterfeiting Trade Agreement). If any or all of them
are adopted or ratified in the Philippines, there will be issues of
infringement of the constitutional rights to privacy and free speech.
Below
is a quick run-down of possible scenarios:
1. Search engines, e.g. Google, Yahoo and
Altavista, may be required to delete or not show a domain name or website which
contains material or links that infringe copyright, although some or most of
the other contents are legitimate.
2. The
three-strike rule discourages many to use the internet for fear of fines,
suspension of account or blacklisting.
3. Stringent
laws could discourage e-commerce because of the difficulty of storing,
transmitting and receiving files in the internet.
4. Regulatory
agencies/boards that monitor internet use also have access to IP addresses,
email addresses and even physical addresses of internet subscribers.
5. Internet
Service Providers (ISPs) may be liable for action of subscribers, especially if
they do not cooperate with regulatory aegncies; hence they may be constrained
to provide confidential information to avoid being impleaded during litigation.
6. Free
software will not be distributed with facility because peer-to-peer (P2P) hosts
are regulated.
7. The ACTA is
said to promote invasive searches even without probable cause as long as there
is suspicion of infringement.
Any of the
above-mentioned scenarios can arguably lead to an infringement of
constitutional rights to privacy and free speech as iterated in Sections 3 and
4 of Article III of the 1987 Philippine Constitution. Altough these rights are
not absolute, still these should be treated of paramount importance; hence,
extreme caution must be exercised in the adoption of any similar legislation.
[1] Sec. 172.1,
R.A. No. 8293
[18] Article VIII
Section 5.2.a 1987 Philippine Constitution
[19] Article VIII
Section 4.2, Ibid.
