“Man is least himself when he talks in his own person. Give him a mask, and he will tell you the truth. - Oscar Wilde

Saturday, September 15, 2012

File-Sharing and Copyright Laws

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.


            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.

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