IMPORTATION RIGHT OF FILIPINOS BASED ON TREATIES OR CONVENTIONS

OVERVIEW: PRE-AMENDMENT OF R.A. No. 8293 (IP LAW)

 Republic Act (R.A.) No. 8293, entitled, “An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for its Powers and Functions, and for Other Purposes,” otherwise known as the Intellectual Property Code, was signed into law on June 6, 1977 and took effect on January 1, 1998. The State took cognizance of the verity, it having declared the same in its underlying policy, that an effective intellectual property system is vital to national development, progress and the common good, including the terms of our trade relations with foreign partners around the globe. The present Code has governed the protection not only of its very own subjects but also of those encased by other jurisdictions. It has sought to secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property, particularly, when beneficial to the people. The construing amendments brought by the 1998 Code – in place of Presidential Decree (P.D.) 49,[1] R.A. No. 165[2] which were the former Copyright and Patent Laws, respectively, and R.A. No. 166[3] which provided for the protection of Trademarks, Tradenames and Service-marks, and other accompanying amendatory laws – were intended to make its provisions consistent with the General Agreement on Tariffs and Trade (GATT) and its supplementary Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement).

THE ADVENT OF R.A. NO. 10372[4]

In order to carry out the principles of the Constitution, and in view of the interests of primary stakeholders termed as the “holders of copyright and users of protected works” in this area of the law, the Philippines appropriately deals with the effect of treaties and conventions, as well as the extension of foreign law rights to the Filipinos, by putting into preferment the propriety of amendments.

According to Black’s Law Dictionary, in practice, amendment refers to any writing made or proposed as an improvement of the principal writing; whereas, in the context of legislation, amendment simply speaks of a modification or alteration proposed to be made in a bill on its passage, or in an enacted law. From these two concepts of “amendment,” it may be inferred that whatever modification it is to be made in the subject, aims to actually improve it. “Improvement” was the key driver of the Legislature in arriving at the concluding stand of R.A. No. 10372 to modify or repeal pertinent provisions of the present Intellectual Property Code. Besides, the Philippines adheres to the effects of treaties and/or conventions to which it has been a party, respecting issues contemplated in Intellectual Property and International Trade Laws.

One of the most, if not the most, contentious provisions of R.A. No. 10372 are contained in Section 14,[5] which deleted Sections 190.1[6] and 190.2[7] of R.A. No. 8293, in their entirety. Prompting the novel objectives of the updates in the IP law of the country, first query that stirs the mind of the informed public revolves around the less acceptable rationale of our lawmakers and the Government in pursuing the controversial amendments. The amended Section 190 (formerly Section 190.3 of R.A. 8293) now reads, “Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation or exportation of infringing articles prohibited under Part IV of this Act and under relevant treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported or before they are exported. (Sec. 30, P.D. No. 49).[8]”

The substance of the disputable action is that there was once an explicitly protected positive right which was exactly the same right impliedly excised by the lawmakers, putting such right in complete silence when they deleted with full force the aforementioned provisions.

The Congress intentionally deleted the sections which expressly contain such right to import copyrighted works even over the objection of the copyright owner, unwittingly creating an importation right in favor of copyright owners, and permitting a Customs Officer to question whether any right of importation of copyrighted works for personal use still exists. The removal of the right implies that it was done intentionally to deny individuals that right.[9]

Director General Ricardo R. Blancaflor (DG Blancaflor) of the Intellectual Property Office(IPO)-Philippines, however, argues, as he speaks for and in behalf of said Office during an interview conducted by Raissa Robles,[10] that such move of the lawmakers justifies the aim of the Government to accede to the “intelligent norm” of international exhaustion.[11]

THE PRINCIPLE OF EXHAUSTION OF INTELLECTUAL PROPERTY RIGHTS

The World Intellectual Property Organization (WIPO), in its official online portal, briefly explains the different forms of exhaustion of rights of an IP owner with respect to their scope. Exhaustion refers to one of the limits of IP rights, or in a clearer perspective, the extent or degree of control that an IP owner can exercise over the distribution of his copyrighted work(s). When a copyrighted work or material, after an authorized sale, has been marketed by a purchaser with the consent of the IP owner, the IP rights of commercial exploitation over the given work or material, can no longer be availed of by the IP owner as they are already in a state of being exhausted. Be the concept explained in a manner suited to the interested layman, when rights are exhausted, they indeed go through some means of transformation where all part of it is consumed. Or, in a more refined explanation in the legal parlance, each legitimate sale of a copyrighted work or material extinguishes the IP owner’s exclusive rights over the work or material sold, and the purchaser takes a title without further restraint or obligation under the copyright law.[12] Once such copyrighted work or material is subjected to subsequent acts of resale, rental, lending or other forms of commercial use by third parties, the IP owner loses the privilege to control or oppose the same, unless the law specifically provides otherwise.[13] In other words, there is a fairly broad consensus that this approach, however, may apply only within the context of the domestic market, at the least.

Many sources and reference materials, which pertain to copyright and have been in works for compilation specifically for law students, consistently reiterate the two (2) principal kinds of exhaustion: (1) national and (2) international exhaustion. The concept of national exhaustion does not allow the IP owner to control the commercial exploitation of goods put on the domestic market by the IP owner or with his consent. Herein, parallel imports or the importation of original copyrighted work, material, or article sold or distributed abroad, can be opposed by the IP owner or his authorized licensee based on the IP right. In the case of international exhaustion, the IP rights are exhausted once a given work, material, or article has been sold or distributed by the IP owner or with his consent in any part of the world.[14] With Sections 109.1 and 190.2, as DG Blancaflor would reiterate in his series of explanations on the deletion of the same, the Philippines had actually been in pursuit of national exhaustion which policy seems to be interpreted by some IP and International Trade Law scholars as a non-tariff barrier under the World Trade Organization (WTO).

The WIPO has put emphasis on the fact that limitations to copyright and other related rights vary from country to country, or from state to state, due to reasons grounded on social, economic and historical conditions. Thus, the question as to what extent of the sale or distribution of an IP protected work, material, or article abroad, can exhaust the IP rights over the same in the context of domestic law, becomes crucial and relevant only in cases of parallel importation. The principle of exhaustion of IP rights, therefore, can be said to have produced undeviating effects not on the reproduction but on the control over the distribution of copyrighted work or material embodying the IP rights.[15]

PARALLEL=INFRINGING IMPORTATION?

There is a conflict between intellectual property rights and international [free] trade and this more often than not, concerns the issue of parallel imports. If premised on the practice or rules of international trade, parallel import is not different from an ordinary one as the former’s implications under the law is complicated. The connection of the IP owner to that of the parallel importer is indeed not that which relates to any contractual obligations.

Considered a distinctive kind of trade, parallel importation refers to the import of goods, or copyrighted works, materials or articles in the case of copyright, outside the distribution channels contractually negotiated by the IP owner.[16] The imported work then is sometimes considered as a “gray market import,” which in fact, is original, only the distribution channels are not controlled by the IP owner. Professor Chung-Lun Shen (Taiwan),[17] in her opinions which mainly discuss the conflicting views between the interest of free trade with a reflecting benefit on customers and the interest of rights by the appropriate IP owner, published in the Journal of International Commercial Law and Technology, emphasizes that “the reason that gray market is gray is that the genuine goods never violate intellectual property laws, but the unauthorized import sparks a dispute about whether the import infringes in the distribution right under intellectual property laws.[18]”

Nevertheless, albeit being non-counterfeit, such “gray marketed article or material subject to copyright protection” is imported from another country or state without the permission of the IP [copyright] owner. This contemplates the second element (out of four as enumerated by Shen) forming parallel or gray market import which rests on the authorization of the owner of IP rights. Based upon the right of importation that an IP right confers upon the IP owner, as earlier mentioned, the latter may try to oppose such importation in order to separate markets.

It is worthy to note that parallel importation in most jurisdictions, is also known as “infringing importation.” Infringing importation is not defined under the present IP Code of the Philippines, but it is, under the U.S. Copyright Law[19] after which the Philippine Code was patterned. Thus, adopting the definition in the foreign law to make it applicable to Philippine setting with some modification and emphasis: Any importation without the authority of the owner of copyright, of copies of a work that have been acquired outside the Philippines is an infringement of the exclusive right to distribute copies.

Taking into consideration the authority of the Bureau of Customs under the special instruction of the Secretary of Finance, to block importation of the copyrighted works based on letters sent by foreign publishers, the latter has the power, nevertheless, to so provide an ensuring statement to the effect of preserving parallel importation.[20] This could be the Government’s means of qualifying certain acts of Filipinos returning from abroad, bringing into the country, some copyrighted works, while somehow assuring the respective foreign publishers of a remedy. In respect of this encouraging policy, another interpretation of infringing information may be of substance – that infringing or parallel importation may also occur when a genuine product, made with the consent of the IP owner, is imported into the Philippines against the wishes of the IP owner.

Take for instance: Y is a Filipino, importing without the consent of the intellectual property owner and/or of his exclusive licensee in the country of importation. In this particular case, the IP owner is not disputing that the imported product (which could be book, CD/DVD, etc.) is made with his consent, as the same is not pirated or counterfeit. But he is contending that the importation is made without his consent.

FIRST SALE DOCTRINE[21] [22] (ESSENTIALLY) IS EXHAUSTION DOCTRINE[23]

How is the Filipino, the very subject that the Government is ought to protect, placed at a saddening point?

He runs out of defenses, notwithstanding, the first sale doctrine; it is because “personal purpose,” which, at the least, opens the window for another valid defense, was dragged out of the amended IP Law. As earlier discussed, the former provisions embodied in Section 190 of R.A. No. 8293, provide for the exceptions to any importation without the copyright owner/holder’s permission regardless of whether the copyrighted work is lawfully made which essentially means, an individual without copyright in the Philippines, may be so permitted to import still. Hence, there is no liability if: (1) the importation is for use by the government, (2) the person importing the goods will use them for her own private use, or (3) the goods will be used for educational or religious purposes.[24]

With the passage of the amendments, the only consolation left (if that could be interpreted this way) is the implied fact that a Filipino can bring in books, movies or music into the country, that can no longer be subject to restrictions in quantity. He may now bring in copies of the copyrighted works mentioned in a number exceeding three (3). The Government says, insofar as a certain copyrighted work is legally purchased, a Filipino can bring in as many copies as he wants. And, this substantially misleads the general public. As Professor Jose Jesus Disini (Atty. JJ Disini), a Harvard University law graduate, now teaching Technology and the Law at the University of the Philippines College of Law, expresses it in his points of critique of the then proposed amendments, the ‘would-be’ complete removal of Sections 190.1 and 190.2 creates an importation right “that only the copyright owner/holder or his/its licensees have the authority to import the works into the Philippines.[25]”

INFRINGEMENT VIS-À-VIS FAIR USE

Infringement is defined by David Bainbridge[26] in this manner: “Intellectual property law gives rights to the owner of that property permitting him to do certain acts in respect of the thing in which the right subsists. Any person who does one of these acts without the permission or authority of the right-owner is said to infringe the right unless the act concerned is permitted by law or whatever defense which apply,” The adoption of this definition is further strengthened by the new provisions under Section 216 on Infringement.[27]

Be it remembered, the legislature recognizes the practicality and wisdom of the judicial doctrine of fair use by subsequently incorporating the same in the law. As Funa[28] succinctly puts it in his discussions, “fair use is a privilege lodged in the person other than the owner of copyright to use the copyrighted work or material in a reasonable manner without the latter’s consent, notwithstanding the monopoly granted to the owner of the copyright.”

Fair use is that use which is legally permissive as may be determined from the nature of factors for consideration enumerated in Section 185.1 of R.A. 8293, namely: (1) the purpose and character of the use; (2) nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and; (4) the effect of the use on the potential market for or value of the copyrighted work.[29] The factors for consideration or to be considered, however, are not exclusive. Funa avers that there are other factors that may be taken into account for the legislation of the fair use doctrine which principle was not intended to narrow or enlarge the rights of third parties within the context of fair use.

Inasmuch as the list provided for by law is concerned, “personal use” was not mentioned, but was, nonetheless, recognized in the fair use clause under Section 212 of R.A. 8293. The problem is, the enumeration under such provision was also deleted. With the passage of R.A. No. 10372, Section 212 now reads, “(Limitations on Rights) The provisions of Chapter VIII shall apply mutatis mutandis to the rights of performers, producers of sound recordings and broadcasting organizations.” Again the main objective is for the Philippines, to finally succumb to the obligations under the policy of the international exhaustion and to eventually encourage parallel importation and importation of goods or copyrighted works, materials or articles in bulk or in commercial quantities, subject to conditions of requisite licenses that are granted to sole distributors of these products in the Philippines.”

SUPPORT FOUND IN INTERNATIONAL TREATIES OR CONVENTIONS RE: IMPORTATION

Fr. Aquino has forwarded that the rationale for such requirements as the doctrines of fair use and the exclusions from protection under the Copyright Law, stems from the fact that the public has a stake in the creations of its members. As such, he stresses that there is good reason to abide by the general rule:

If one wants to enjoy the protection of his IP rights, he may avoid all that may render his work available to the public domain and do all what is required to obtain protection. Where the opportunity exists then for the operation of law to make one’s creation freely available, it will put it beyond the pale of any monopoly.

The monopoly(ies) that the law grants creators are incentives so that eventually their creative outputs may be made available to the public. Consideration of the economic interests constituted in IP rights, was one of the priorities of the Uruguay Round of the General Agreement on Tariffs and Trades (GATT)[30] that engendered the WTO.[31]

The GATT was originally created by the Bretton Woods Conference as part of a larger plan for economic recovery after World War II. The GATT’s main purpose was to reduce barriers to international trade. This was achieved through the reduction of tariff barriers, quantitative restrictions and subsidies on trade through a series of different agreements. The GATT was an agreement, not like any organization, which was supposed to become a successful International Trade Organization like the World Bank or International Monetary Fund (IMF). But such was not ratified, so it remained simply an agreement. The functions of the GATT then have been replaced by the WTO.[32]

The WTO establishes rules for international trade through consensus among its member states resolving disputes between these states that are all signatories to its set of trade agreements such as the TRIPS Agreement. The fundamental principles mainly concern trading system which shall, among others, be free of discrimination in the sense that one country cannot privilege a particular trading partner above others within the system, nor can it discriminate against foreign products and services increase international trade by promoting lower trade barriers and providing a platform for the negotiation of trade and to the member states’ business(es).

EFFECT TRIPS AGREEMENT (A.K.A “AGREEMENT”) HAVE ON THE RECOGNITION OF IP RIGHTS OF PERSONS/INDIVIDUALS OTHER THAN MEMBER COUNTRIES’ OWN NATIONALS

In its official online page, the WTO details that the TRIPS Agreement, which came into effect on January 01, 1995, is to date the most comprehensive multilateral agreement on IP. It covers, among others, copyright area of IP including its related rights i.e., the rights of performers, producers of sound recordings and broadcasting organizations.[33]

Three (3) Main Features: Standards[34]

The Agreement sets out the minimum standards of protection to be provided by each Member in respect of each of the main areas of IP it covers. It sets standards pertaining to the subject matter to be protected, the rights to be conferred and permissible exceptions to such rights and the minimum duration of protection, by requiring that the substantive obligations of the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in their most recent versions, must first be complied with. With the significant exception of the provisions of the Berne Convention on moral rights,[35] all the main substantive provisions of these conventions are incorporated by reference and thus become obligations under the TRIPS Agreement between the TRIPS Member countries.[36] In sum, Members of the WTO are obligated to “accord the treatment provided for in this Agreement to the nationals of other Members” provided these meet the criteria set forth in the foregoing conventions.

Preliminary procedures include knowing the ‘persons’ who must thus benefit from the treatment provided for in the Agreement. Article 1.3 defines who these persons are and they are referred to as “nationals” who may be natural or legal and have close attachment to other Members without necessarily being nationals.[37] This is followed by queries or criteria applied with respect to all WTO Members, whether or not they are party to the conventions earlier mentioned.

Articles 3, 4 and 5 of the Agreement[38] include fundamental rules on national and most-favoured nation (MFN) treatments of all ‘foreign’ nationals which are common to all categories of IP covered by TRIPS. National Treatment clause forbids discriminations between Members’ own nationals and the nationals of other Members. In other words, it implicates treating foreigners and locals equally; imported as well as locally-created copyrighted goods, materials, articles or works should be treated equally at least after the foreign works have entered the market. On the other hand, the MFN Treatment clause forbids discrimination between nationals of other Members. Member countries cannot normally discriminate between their trading partners, and in effect, should manage to grant ‘someone’ some special favor (such as lower customs duty rate[s] for one of their products, goods or works) and it necessarily follows that one has to do the same for all other WTO Member countries, therefore.

Article 13 requires Members to confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the owner/holder of the copyright. This is a horizontal provision that applies to all limitations and exceptions permitted under the provisions of the Berne Convention as incorporated into the TRIPS Agreement.[39] As such, exceptions must be applied in a manner that does not prejudice the legitimate interests of the copyright owner.[40]

It must be acknowledged that as a sort of counterbalance to the minimum standards of protection, there are provisions in the Berne Convention limiting the strict application of the rules regarding exclusive right. It provides for the possibility of using protected works in particular cases, without having to obtain the authorization of the owner of the copyright, and without having to pay any remuneration for such use. Those exceptions, which are commonly referred to as free use of protected works, are included in Articles 9(2) (reproduction in certain special cases), 10 (quotations and use of works by way of illustration for teaching purposes), 10bis (reproduction of newspaper or similar articles and use of works for the purpose of reporting current events) and 11bis(3) (ephemeral recordings).[41]

CONCLUSION

As regards National Exhaustion Policy vs. International Exhaustion

This conclusion – that the national exhaustion of intellectual property rights constitutes a non-tariff barrier under the WTO – seems to be based on a misleading knowledge of the basic spirit of the WTO. If this be accorded full support, view would imply that the promotion of international free trade under the WTO triumphs any other interest. And when parallel imports spark the conflict between international free trade and intellectual property rights, it becomes the upshot that the international exhaustion policy backing up free trade always surpasses the national exhaustion policy protecting intellectual property rights. The opinion that the national exhaustion policy is to be interpreted as a non-tariff barrier under the WTO, stems from the foregoing conflict. From the perspective that both international free trade and intellectual property exhaustion share equal positions for interest consideration under the WTO, provisions of the TRIPS Agreement especially Article 6 of the same must be respected; in the same vein that any interpretation which may attempt to preclude the national exhaustion policy under the WTO is tantamount to emptying the overall goals of the TRIPS Agreement, as embodied in its Preamble i.e., Recognizing also the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations, in order to enable them to create a sound and viable technological base.

If this is exactly what the lawmakers intended – to authorize parallel importation in view of the fact that the copyrighted work is original and authentic only that there has been a subliminal problem in its distribution – in deleting Section 190.1 of R.A. 8293, Atty. JJ Disini has this to say: the Philippines already allows parallel importation even without deleting Section 190.1 which impliedly adheres to national exhaustion policy and this can be seen from the fact that importation of used books for local resale without the formal authority from the copyright owner is allowed.

As regards possible importation rights in the guise of international treaties/conventions

Disclaimer effect seems to be consistent in all concerned or mentioned conventions and/or treaties including the WIPO Copyright Treaty, a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention.[42] The contracting parties or member states, whichever is the case, are under the obligations to observe the efficiency of national legislation of a certain state or country, that, notwithstanding the existence of permissions or grants as regards importation right by its nationals, the same may not surpass interests lodged in the national level. While contracting parties or member states/countries may provide for limitations of or exceptions to the rights granted to copyright owners in certain special cases that do not conflict with a normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of such copyright owners, the same privilege lies in the obligation of these parties or states to prefer enforcing their national legislations.

 

 

______________________

FOOTNOTES

 

[1] DECREE ON THE PROTECTION OF INTELLECTUAL PROPERTY, November 14, 1972.

[2] AN ACT CREATING A PATENT OFFICE, PRESCRIBING ITS POWERS AND DUTIES, REGULATING THE ISSUANCE OF PATENTS, AND APPROPRIATING FUNDS THEREFOR, June 20, 1947.

[3] AN ACT TO PROVIDE FOR THE REGISTRATION AND PROTECTION OF TRADE-MARKS, TRADE-NAMES AND SERVICE-MARKS, DEFINING UNFAIR COMPETITION AND FALSE MARKING AND PROVIDING REMEDIES AGAINST THE SAME, AND FOR OTHER PURPOSES, June 20, 1947.

[4] AN ACT AMENDING CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8293, OTHERWISE KNOWN AS THE “INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES”, AND FOR OTHER PURPOSES, July 23, 2012.

[5] Section 14. Sections 190.1. and 190.2. of Republic Act No. 8293 are deleted in their entirety.

[6] 190. Importation for Personal Purposes – xxx xxx xxx
190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances:

(a) When copies of the work are not available in the Philippines and:

(i) Not more than one (1) copy at one time is imported for strictly individual use only; or

(ii) The importation is by authority of and for the use of the Philippine Government; or

(iii) The importation, consisting of not more than three (3) such copies or likenesses in any one

invoice, is not for sale but for the use only of any religious, charitable, or educational society or, institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.

(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving `from foreign countries and are not intended for sale: Provided, That such copies do not exceed three (3).

[7] 190. Importation for Personal Purposes – xxx xxx xxx

190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor’s right of action.

[8] [R.A. 10372] Section 15. Section 190.3. of Republic Act No. 8293 is hereby renumbered and amended as the sole provision under Section 190 to read as follows: “SEC 190. Importation and Exportation of Infringing Materials. – xxxxxx xxx

[9] Professor Jose Jesus (JJ) Disini. “Executive Summary for Position Paper on the Amendments to the Intellectual Property Code.”

[10] Raissa Robles is an investigative journalist who currently writes for several foreign publications. Writing on politics, anti-terrorism and a wide-range of issues, she has contributed to several local and foreign publications including Asiaweek of the Time-CNN Group, Asia Incorporated magazine, The Time of London, BBC Radio, Riyadh Daily newspaper, Voice of America, Philippine Daily Inquirer, Philippine Center for Investigative Journalism and Vera Files. She has also published two biographical books, namely: (a) To Fight Without End: The Story of a Misunderstood President, and (b) Trianggulo. Robles took up English Literature, major in Imaginative Writing, at the University of the Philippines where she graduated magna cum laude and to hone her skills in journalism, she attended a course at the International Institute for Journalism in Berlin.

[11] Robles, Raissa (2013). Amended IP Code “disadvantageous” to students, teachers, researchers – says copyright expert-lawyer Ping Peria. Exclusive by Raissa Robles. Retrieved from http://raissarobles.com/2013/02/16/amended-ip-code-disadvantageous-to-students-teachers-researchers-says-copyright-expert-lawyer-ping-peria/. 2015-05-26.

[12] Funa (Ed. 2012, 634) asserts that the Patent Exhaustion Doctrine, in aid of explaining First Sale Doctrine in Copyright, was most famously described in Adam vs. Burke, as cited in Dufresne (2009). The Exhaustion Doctrine Revived? Assessing the Scope and Possible Effects of the Supreme Court’s Decision.

[13] International Exhaustion and Parallel Importation. http://www.wipo.int/sme/en/ip_business/export/international_exhaustion.htm. Retrieved 2015-05-26.

[14] Ibid., (WIPO), Note [13].

[15] Dizon, Michael (2009). Doctrine of Exhaustion of Intellectual Property Rights. Law and ICT. https://michaeldizon.wordpress.com/2009/01/20/doctrine-of-exhaustion-of-intellectual-property-rights/. Retrieved 2015-05-26.

[16] Ibid., (WIPO), Note(s) [13] [14].

[17] Associate Professor, Department of Law, National Chengchi University, Taiwan (clshen@nccu.edu.tw).

[18] Chung-Lun Shen. “Intellectual Property Rights and International Free Trade: New Jurisprudence of International Exhaustion Doctrine Under the Traditional Legal System.” Journal of International Commercial Law and Technology, Volume 7, Issue 3 (2012).

[19] Section 602, Title 7, Chapter 6 of the U.S. Code. – (a) Infringing Importation or Exportation.—(1) Importation.— Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501. Retrieved from https://www.law.cornell.edu/uscode/text/17/602. 2015-05-26.

[20] Robles, Raissa (2013). Amended IP Code “disadvantageous” to students, teachers, researchers – says copyright expert-lawyer Ping Peria. Exclusive by Raissa Robles. http://raissarobles.com/2013/02/16/amended-ip-code-disadvantageous-to-students-teachers-researchers-says-copyright-expert-lawyer-ping-peria/. Retrieved 2015-05-26.

[21] The first sale doctrine, under Section 109(a) of the (U.S.) Copyright Act of 1976, allows a purchaser of a copyrighted good to resell the item without the copyright holder’s permission, as long as there has been an initial sale by the copyright owner.

[22] Dennis B. Funa, (2012). Intellectual Property Law (2012 ed., p. 634).

The concept of First Sale has accepted two (2) definitions, to wit:

(a) One which “provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interest of the copyright owner.[22]”

(b) Another provides that “the copyright owner’s right to control the sale of a particular copy of a work ends after the owner’s first transfer of that copy.”

[23] Funa further asserts that the first sale doctrine is also known as the exhaustion doctrine, although the latter term is more commonly associated with patents and trademarks.

[24] Ibid., Sections 190.1 and 190.2 of R.A. No. 8293, Note(s) [6] [7].

[25] Professor Jose Jesus (JJ) Disini. “A Position Paper on the Amendments to the Intellectual Property Code.”

[26] David Bainbridge worked as a civil engineer in local authorities and civil engineering contractors (design, contract management of construction projects and development of computer software) before embarking on a career in law. Was a senior lecturer in law at Staffordshire University from 1987 to 1990. He was educated at University College, Cardiff (University of Wales); the University of Central England, Birmingham and the Inns of Court School of Law, London. His publications include numerous books and journal articles in the fields of intellectual property law and information technology law. His main research interests include intellectual property and information technology law. He is particularly interested in the interaction between law and new and emerging technologies.

[27] “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.

“216.1. Remedies for Infringement. – Any person infringing a right protected under this law shall be liable:

“x x x

[28] Atty. Dennis B. Funa is the Managing Partner of the Funa Tantuan & Fortes law Offices. He obtained his Bachelor of Laws degree at the San Beda College of Law.  Atty. Funa was a 1997 scholar of the London-based International Bar Association (IBA) in its Biennial conference in New Delhi, India. He was a 1999 scholar of the Association for Overseas Technical Scholarships in Tokyo, Japan. In his professional career, he has represented the country as speaker in various international intellectual property-related conventions, such as in the World Intellectual Property Organization (WIPO) – Asia Pacific Conference on New Technology and Enforcement of Copyright held in Indonesia in 1995, and in the WIPO-ASEAN Regional Round Table on IPR Cooperation and the TRIPS Agreement held in Thailand in 1996, as well as in several IP-related diplomatic conventions, under the auspices of the United Nations, in Geneva, Switzerland between 1996 and 1997.  He is presently a Commissioner in the Commission on Bar Discipline of the Integrated Bar of the Philippines, serving since 2002.

[29] Section 185. Fair Use of a Copyrighted Work. – 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:
(a) The purpose and character of the use, including whether such use is of a commercial nature or

is
for non-profit educational 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.

[30] Uruguay Round Agreement: TRIPS/
Trade-Related Aspects of Intellectual Property Rights – The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994.

[31] Fr. Ranhilio Callangan Aquino. “Intellectual Property Rights: Protecting Economic Interests.”

[32] Wikipedia.org. http://en.wikipedia.org/wiki/General_Agreement_on_Tariffs_and_Trade. Retrieved 2015-05-31.

[33] Overview: TRIPS Agreement. https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm. Retrieved 2015-06-01.

[34] TRIPS Agreement: Part II, Standards Concerning Availability, Scope and Use of Intellectual Property Rights. http://www.wipo.int/treaties/en/text.jsp?file_id=305907. Retrieved 2015-06-01.

[35] Article 6bis
 Moral Rights:
1. To claim authorship; to object to certain modifications and other derogatory actions;
 2. After the author’s death; 3. Means of redress

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

[36] Ibid., Note [32].

[37] TRIPS Agreement: Article 1
Nature and Scope of Obligations

xxx xxx xxx

3. Members shall accord the treatment provided for in this Agreement to the nationals of other Members.[1]  In respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all Members of the WTO members of those conventions.[2]  Any Member availing itself of the possibilities provided in paragraph 3 of Article 5 or paragraph 2 of Article 6 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for Trade-Related Aspects of Intellectual Property Rights (the “Council for TRIPS”).

[38] TRIPS Agreement: Article 3
 National Treatment

1. Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection[3] of intellectual property, subject to the exceptions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits.  In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies in respect of the rights provided under this Agreement.  Any Member availing itself of the possibilities provided in Article 6 of the Berne Convention (1971) or paragraph 1(b) of Article 16 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for TRIPS.

2. Members may avail themselves of the exceptions permitted under paragraph 1 in relation to judicial and administrative procedures, including the designation of an address for service or the appointment of an agent within the jurisdiction of a Member, only where such exceptions are necessary to secure compliance with laws and regulations which are not inconsistent with the provisions of this Agreement and where such practices are not applied in a manner which would constitute a disguised restriction on trade.

Article 4
 Most-Favoured-Nation Treatment

With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members.  Exempted from this obligation are any advantage, favour, privilege or immunity accorded by a Member:

(a) deriving from international agreements on judicial assistance or law enforcement of a general nature and not particularly confined to the protection of intellectual property;

(b) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country;

(c) in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement;

(d) deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members.

Article 5
 Multilateral Agreements on Acquisition or Maintenance of Protection

The obligations under Articles 3 and 4 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.

[39] Part II 
Standards Concerning the Availability, Scope and Use of Intellectual Property Rights; Section 1: Copyright and Related Rights

Article 9
 Relation to the Berne Convention

1. Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.  However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.

[40] Part II 
Standards Concerning the Availability, Scope and Use of Intellectual Property Rights; Section 1: Copyright and Related Rights

Article 13
 Limitations and Exceptions

Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

[41] Article 9
Right of Reproduction:
1. Generally; 2. Possible exceptions; 3. Sound and visual recordings

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Article 10 
Certain Free Uses of Works:
1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.

Article 10bis 
Further Possible Free Uses of Works:
1. Of certain articles and broadcast works; 2. Of works seen or heard in connection with current events

(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.

Article 11
 Certain Rights in Dramatic and Musical Works:
1. Right of public performance and of communication to the public of a performance;
 2. In respect of translations

(1) Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorizing:

(i) the public performance of their works, including such public performance by any means or process;
(ii) any communication to the public of the performance of their works.

(2) Authors of dramatic or dramatico-musical works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.

Article 11bis 
Broadcasting and Related Rights:
1. Broadcasting and other wireless communications, public communication of broadcast by wire or rebroadcast,
public communication of broadcast by loudspeaker or analogous instruments;
 2. Compulsory licenses; 3. Recording; ephemeral recordings

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;
(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

(2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.

(3) In the absence of any contrary stipulation, permission granted in accordance with paragraph (1) of this Article shall not imply permission to record, by means of instruments recording sounds or images, the work broadcast. It shall, however, be a matter for legislation in the countries of the Union to determine the regulations for ephemeral recordings made by a broadcasting organization by means of its own facilities and used for its own broadcasts. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by such legislation.

[42] WIPO Copyright Treaty: Article 1, Relation to Berne Convention. http://www.wipo.int/treaties/en/text.jsp?file_id=295166. Retrieved 2015-06-01.

LEGAL IMPLICATIONS OF THE WRITINGS BEING MADE IN ARELLANO SECRET FILES [FACEBOOK] PAGE

In the perspective of the one contributing | maintaining| service provider

 

This Paper intends to discuss the legal issues confronting the recently-launched anonymous confession page which we call the Arellano Law Secret Files Facebook Page (“Page,” for brevity). Contents and views hereof shall mean to refer only to students the Arellano University School of Law utilizing a confessional space in similar functions with other secret files pages grounded in the setting of other tertiary educational institutions, which have led the way to this relatively new virtual phenomenon.

One could be so entertained by setting his probing eyes on the thread of posts which have sprouted on the Arellano Law Secret Files Facebook Page. Most of the posts and stakes displayed on the Page, trivial nevertheless, could be read with interest by any Arellano University School of Law (AUSL) student who could have access to it. He could even read with all his attention to it and to the extent of being terminated from the corporate world on the extraneous ground of lack of expertise and focus at work.

That exactly was the Author’s take of risk while exploring the Page.

I visited it, supposedly for a jumpstart or to have a glimpse of the basics pertaining to the trend. That aim, however, which was originally for the purpose of exciting strong tendencies for my writing, escaped me and I almost became a fan of Spidey, who had been ridiculed by one contributor, for his seemingly desperate efforts in knowing the whereabouts of a girl he named ‘his Mary Jane.’ That very day, I failed to get the stimulation that I sought at first, but I definitely engaged myself into a deep read. At the least, I someway became aware of what the “present issues” were in the campus. Or elsewise put, in a way, I was able to try and see for myself what this secret files page was all about.

 

INTRODUCTION

The day the Philippines connected to the global internet for the very first time in 1994, somehow reminds us of the conjectural queries involving expectations of the pioneers responsible for its introduction, and the society who has been benefitting on the ensuing result. These expectations may be interpreted with a view on how the Internet would continue to be of enduring value to the Filipinos. This idea may be supported further by an outlook of them getting by in the mid-90s and in defining great deals which the Internet might bring to the society in the next twenty (20) years.

So now, what do we have? Great deals: we have them, indeed, more than 20 years later. As lifestyles have become more drifting, people tend to rely more on advanced technology and mobile communications. We were so over Friendster where one had the preference of making known his shout out for the day. It was once a social networking service website, whereby users were allowed to contact other members, maintain those contacts, and share online media and content with those contacts[1]. And, right now, we have the infamous Facebook, Twitter and Instagram, to name a few. We have blogs that could be considered as online diaries, and certainly, online forums. We have it in this age of convergence of modern technology, that group of computer-mediated tools that allow people to create, share or exchange information, ideas, and pictures/videos in virtual communities and networks[2] – the Social Media[3]. Because it caters to all kinds of individuals around the globe and plays a role in the daily lives of these individuals, helping facilitate real-time communication at any point on earth, between and among people, a question on how Internet puts influence on them, should not, therefore, be predicated.

 

THE SECRET FILES PAGE

How does it work?

Care to share your secrets?

http://goo.gl/forms/HSGrHbf51f

Products of an artless research provide:

Any student who would like to share his/her secret/s (as the name of the page outwardly suggests that it be secrets which, at the minimum, shall be contributed), “shall” fill-out a google form which will eventually be recorded in the Google Docs[4]. A pseudo name or ‘alias’ of the anonymous sender, together with the first four (4) digits of his student number which corresponds to the year when he/she first enrolled in AUSL, is required. The Administrator or Administrators, responsible for the secret files page settings, will then control the processing of the posts that come out as an entire package for a story. Some student-subscribers who may or may not participate in giving actual comments, could make a guess of who possibly made the entry or entries, given some indications or clues.

 

THE ARELLANO LAW SECRET FILES (THE PAGE)

The Arellano Law Secret Files is like any other anonymous confession sites which serves as a venue for the students of AUSL in expressing their thoughts, ideas, ideology, principles or values, or sentiments, rants, confessions or concerns, supported by the use of one categorical hit of Social Media and one that we are all very familiar with, Facebook. Patterned after PostSecret (postsecret.com)[5], this sort of confessional space, as termed by Rappler’s Agbayani, was first introduced by the University of the Philippines-Los Banos in Laguna, in this virtual time, naming their secret files page after the location of the campus itself, calling it, The Elbi (“LB”) Files[6]. It has, since then, engaged comments from said institution’s professors, students and alumni and views from students from other schools or universities. University of the Philippines-Diliman followed the inclination and marketed their very own secret files page with superiority, while the other institutions and universities, such as, University of Santo Tomas (UST), De La Salle University, Far Eastern University, San Beda [School of Law] and Arellano (AUSL), came behind in time.

 

THE PAGE VIS-À-VIS THE FREEDOM OF EXPRESSION

Pre-Secret Files Page Enthusiasm     

Before secret files pages enflame the confessional tendencies of students, tangible communication tools, such as, bulletin boards and freedom walls, among others, were previously placed in an obligatory position to convert ideas or opinions of students into firm evidence of their disposition(s). These tools may still be of use to date but are less enticing, nonetheless.

A formal writing or note, for instance, addressed to some faculty member or professor, or that which pertains to certain act or acts of a student affecting or infringing the right(s) of another in the course of their academic pursuit, is still in the queue of the students’ options, in order to pronounce their prayer for redress of wrongs done to them or simply, remedy. Or one may agree that, one of the most, if not the most, celebrated “offline” means of communicating students’ ideology relative to freedom-of-expression advocacy and its corresponding limitation(s), is the school’s official newsletter or school paper. Or it could be the political efforts of a certain group of students in the guise of an implemented code or campus act exemplifying rights of students on the one hand, and obligations of the school or educational institution on the other, and vice-versa. As stated by Supreme Court Justice Antonio E.B. Nachura, in his pre-bar compilation of random political law notes,[7] the right of students to free speech or expression in school premises must always be applied in light of special characteristics of the school environment. Hence, a provision in a Campus Journalism Act, which substantiates that a student shall not be expelled or suspended solely on the basis of the articles he/she has written, may, as far as the right of the student to academic freedom and due process, is concerned, be considered commendable, however, tested with some exception. Thus, such provision should be read to mean that the school cannot suspend or expel a student solely on the basis of the articles he or she has written, except when said articles materially disrupt class work or involve disorder or invasion of rights of others.[8] This may likewise find application in an online speech, regardless of whether or not the same has occurred off-campus on non-university/school sponsored-webpages like Facebook or Twitter.[9]

Freedom of expression is a principle renowned in any educational institution. Encouraging students to impart their takes on a particular activity or a certain issue in the campus parallels the intention of the institution to let these students realize their importance in building a dynamic system for learning. More importantly, such freedom is a right enshrined in and protected by our Constitution. Section 4, Article III of the 1987 Philippine Constitution, on Bill of Rights, is clear on this point as it reads, “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

 

            What does this Constitutional right have to do with secret files pages? As can be gleaned from the write-ups of a few number of bloggers about these pages, only the right pertaining to freedom of expression has been put into limelight.

De Leon (2011) explained that “the constitutional freedom of expression implies the right to freely utter and publish whatever one pleases without previous restraint, and to be protected against any responsibility for so doing as long as it does not violate the law, or injure someone’s character, reputation or business, and carries with it the right to circulate what has been published.[10]” (Emphasis supplied)

But like any other rights guaranteed therein, the same is not absolute and still is subject to some measure or regulation, relative to the State’s duty to validly impose sanctions, in the interest of the public.

Courts in the United States have repeatedly emphasized that the college and university campuses are peculiarly the marketplace/s of ideas[11] and the mere dissemination of ideas therein, regardless of how offensive the speech may be, a student, may not be stopped on the ground alone of violating the conventions of decency or only because the institution he/she is in disagrees with what he/she has publicized online. Thus, it may be said that permissible interference is the institution’s authority to gauge whether the students’ words of expressions rise to, or are susceptible to encouraging substantial and material disruptions with reference to the operations and manner of administration of the school or university.

With the advent of advanced information and communications technology (ICT), the Internet has become an avenue for volumes of data and wealth of information on practically every subject comprehendible. ICT, it having progressed so rapidly, has entrenched the way the Philippines regulates and manages its system of education. This is in pursuance of the State’s duty to promote full development of Filipino capability in the field of communication and information and the emergence of communication structures suitable to the needs and aspirations of the nation.[12] (Emphasis supplied)

It is, therefore, considered the cornerstone for the formulation of national policy on the use of media in education. The policy in order touches such aspects as right of every student to communicate his mind in acceding to the rules and regulations of the institution, adhering to or standing against the purposes for which such institution was created or organized, or evaluating the system that the institution is up to.

ICT in schools started with emails and then extended to creating online groups. As the Philippine Internet paves the way to non-conventional tools in communications, it has gone 180 degrees, when it comes to endowing with the students efficient communication services. Schools and universities even utilize, for their own preferment, the works and privileges of Facebook. A university’s profile, the subjects or courses it offers, kinds and achievement of students it has honed and updates may all be found in a Facebook Page. No wonder, even on how such an educational institution will implement its goal of unifying its students within or outside of the campus premises, the use of an online page like Facebook, is being encouraged. Various campus organizations and classes of different levels also take hold of the opportunities. Undoubtedly herein, categories of speech and students’ publications are protected by the law. But it is not a similar point to defend when we speak of the secret files page.

 

STATEMENT OF THE PROBLEM: LEGAL IMPLICATIONS

Freedom of Expression, an inalienable right recognized by the United Nations

            In this age of modernization, the power of the expansive instruments of online communication to hurt or damage is immense. And easy access to the Internet enables an individual to hold unusual powers and utilize the same to his very advantage but to the extent of damaging another. Take for instance, a blogger, who opposes a prominent political figure can ruin that person’s campaign by spreading damning information about him globally. Same thing with one’s post/s in his/her Facebook or Twitter Account, containing fighting words or direct reference to particular person/s relative to the content of the posts which could be inciting unlawful act or words of defamation. Hurting words can hit you in seconds and considering further, hundreds of people will be able to see the posts in just one click. Likewise concluded as regards confessional posts that secret files page displays.

A secret files page is more like a confessional space ­– intended for every topic imaginable in this present day – for students while maintaining their identity in confidentiality. It is in possession of an extraordinary feature which they tag as anonymity.[13]Anonymity is what makes the secret files pages or confessional sites very appealing. A student can say anything he/she wants to say in there, disclosing an array of various issues: from comment on the school’s environment, feedback about the operation, management and administration or the entire system of the school, to rating a professor’s performance, telling adventures in life and love or even articulating some day-to-day accounts, without great worries of social repercussions. As again, the identities of some senders will not be mentioned at any rate, if that be what the nature of the speech suggests. But there are clues which may be used by subscribers or readers in coming up with an equally appealing act of guessing. Insofar as the subject is concerned, even if the guess is a successful one, the rule is still in place, and that is to maintain as far as practicable, the confidentiality of the identity of the subject. Such act of preserving the rule is tantamount to valuing the liberty in anonymity.

Normally, topics or themes written in the secret files pages are those which are usually frowned upon by the society and/or those that are not genuinely accepted by the more conservative individuals/students. However, to reiterate, the right to express oneself without any restraint or interference is favored, specially, if the post on the anonymous confession page is not offensive per se. And even if the same is offensive, in that, it has the propensity to taint societal norms or that the nature of the message it tries to convey is controversial, it is a speech that may, nevertheless, be protected. This is in consonance with the guarantee that the Constitution bestows any individual concerning his freedom of expression. Noteworthy to mention is the fact that the same is considered an inalienable right of the human family, guarded and recognized by the United Nations by virtue of the Universal Declaration of Human Rights (UDHR).[14] As earlier discussed, the freedom of expression encased in every post displayed in secret files, is not without interference at all. The International Covenant on Civil and Political Rights (ICCPR), realizing that an individual has duties to other individuals and to the community where he belongs, recognizes the right to freedom of expression and to impart information and ideas of all kinds subject  to certain restrictions as provided by law and as may be deemed necessary.[15]

Right to Privacy

The right of privacy is concisely defined as the right to be left alone. It has also been defined as the right of a person free from undesired, or disclosure and as the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.[16] Quoting the words of Justice Brandeis, “the right to be left alone is the most comprehensive of rights and the right most valued by civilized men.[17]”

As for the secret files page, it must be noted that the users or senders are anonymous and the page is being operated and controlled by anonymous administrators, as well. One special quality of interaction through this page is anonymity. Data Privacy Act of 2012[18] defines sensitive personal information which includes, among others, personal information about religious, philosophical and political affiliations, and health, education or sexual life of a person. More often than not, these topics are the usual themes of the series of posts in the secret files page. And, why would someone take the risk of expressing contents of these mentioned themes if his/her act might throw himself/herself into a bulk of penalties imposed for committing [Internet/Online] libel[19]? It is because these secret confession sites which are chiefly grounded on anonymity, opens for an individual, a window of opportunity to express himself freely. One of the other factors that may be taken into consideration is the niche that a confessional space would likely to cater: those that are young and repressed, thus, the resort to these pages as outlets.

Anonymity does not merely make the confession site more appealing, it also uncovers protection intended primarily for two reasons: (1) to decrease the social risks of tackling unpopular perspectives and topics considered as taboos; and (2) to assume different personas apart from their offline and/or true identity.[20] For some, these pages have the ability to unite the students with common interests and sharing the same sentiments in life or about the entire system of the academic community to which they both belong. It is like having companions who could understand you only that, you may not have that physical or actual connection with them as all stuff happens online.

Psychologically speaking, expressing oneself in the in secret files pages or confession sites, like Arellano Law Secret Files Page is therapeutic for some. They can release whatever is within that they would want the ‘world’ to know. Quoting an answer from some sort of short survey done by Rappler.Com writer/contributor, asking why the secret files are so appealing[21], one student there answered, “To put it bluntly, I would say we all have an inner perv that we don’t want to own up to, or at least our conservative society won’t allow us to.” Another said, “In effect, it gives them [students by and large, mostly from the tertiary level/graduate school(s)] a brief dalliance into the ‘dark side’ but still remain free from judgment and social repercussions. It is a very safe way to indulge in a fantasy.” It makes sense. Internet interaction differs from ordinary face-to-face dealings and communications within the academic community when it comes to facilitating manner of self-expression. One has the ability to be somewhat anonymous and act with greater amount of freedom as he will be free from expectations from people who may know him and the susceptibility that he be damned or sanctioned socially is greatly reduced.

These Constitutionally-Guaranteed Rights and the Cybercrime Law on Libel

To reiterate, taking into account the social responsibilities of an individual to the society and his positive legal duties, his freedom of expression is not absolute. Legally speaking, a person may not “really” avoid sanctions that the State can impose in light of the legal definition of libel and the fact that the latter was never intended by law to be protected.

A provision in the Revised Penal Code of the Philippines, or Article 353 to be more specific, defines libel as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are as follows: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice.

Allegation then is considered defamatory if it encases the entire meaning of libel, ascribing to a person the commission of a crime or those circumstances, as mentioned, that tend to cause the dishonor or, in effect, damage the reputation of a natural or juridical person. Publication of the charge is satisfied when same content of expression is communicated to a third person, and eventually to the public. It is enough that a stranger was able to read the defamatory statement regardless of whether or not the defamed subject reads or was able comment to the libellous remark(s). As regards malice, the High Court, in a number of jurisprudence, adheres to the higher standard of “actual” malice. The Court explains in Disini vs. Secretary of Justice (2014)[22], that there is “actual malice” (or malice in fact) when the offender makes the defamatory statement with the knowledge that it is false or with reckless disregard of whether it was false or not. And the prosecution has the burden of proving the presence of the same given the appropriate instances under which malice could be proved.

But the High Court points it out, as it finally rendered its decision on the Disini case, that the penal code and the Cybercrime Act of 2012[23] ^{| [24]} mainly target libel against private persons. For this reason, the Court recognizes that these laws imply a stricter standard of “malice” to convict the author of a defamatory statement where the offended party is a public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs.[25]

Now, how about the element of the identifiability of the individual defamed? The Court, in an earlier case, declared that defamatory matter which does not reveal the identity of the person upon whom the imputation is cast, affords no ground of action, unless it be shown that the readers of the libel could have identified the personality of the individual defamed.[26] This should be read to mean that there must be positive identification of the person subject of defamation. There must be proof that at least a third person or stranger is able to identify that such an individual is the subject of the defamatory statement. Even the provisions in the Magna Carta for Philippine Internet Freedom,[27] a bill filed by Senator Miriam Defensor-Santiago, suggest that positive identification of the person is an essential element of Internet Libel.[28]

 

CONCLUSION

Responsibility of the Page Administrator

One site[29] published sort of a write-up about implications brought by these phenomenal anonymous confession sites, but, on the perspective of the administrators who primarily created, have been maintaining and run these pages. Says, a certain Bill Oglesby, who teaches media ethics and law at Virginia Commonwealth University, administrators may, generally, not be held liable if they merely provided the venue for postings since the latter are being made directly by the public. But their liability is certain, he added, “if the administrators function as ‘gatekeepers’ or are on notice about some particular legal issue that continually arises.”

On the contrary, Missouri State University’s The Standard, in its 2013 Article,[30] mentions a seemingly warning statement from a Missouri State media law professor, saying “Administrators of recently popular Facebook pages could be held legally responsible for the pages’ anonymous submissions.”

In the Article, the Professor explains why there is really nothing anonymous in this age of the Internet. As can be gleaned from posts on the subject pages, words and names are somehow screened and filtered, thus the asterisks which basically replaced the original letters forming such words or names, for the novel purpose of not having all the objects of confession concealed. That is what the rule says. It is then part of their compliance with the rule. However, the Missouri State Professor put emphasis on the main task of the administrators. Everything, that is submitted to them anonymously, will be read by them. That is the reason why they had to do other tasks such as screening, filtering, revealing matters which the readers may be able to accept upon reading, and concealing those that they do not think will be apt for any occasion.

The Electronic Frontier Foundation’s FAQ on Online Defamation Law[31] provides that, “generally, anyone who repeats someone else’s statements is just as responsible for their defamatory content as the original speaker — if they knew, or had reason to know, of the defamation.[32]” And this is pertinent even if an administrator changes the name of the potential victim of defamation. According to the same Legal Guide for Bloggers, for defamation to arise, and one be granted to his claim against the latter, “the person claiming defamation need not be mentioned by name.” So, that party having a cause of action, or he, who was defamed, only needs to be reasonably identifiable. Take for instance: If X defames Y, “a cabinet secretary, eldest daughter of a former Philippine COMELEC Commissioner and who was born in Iriga City, province of Camarines Sur” – the subject is reasonably identifiable as the Secretary of Justice, Hon. Leila De Lima.*

*Example has been expounded in the context of defamation as a whole.

Extent of Liability of Service Provider(s)

From the words of the law itself, except as otherwise provided by Republic Act No. 8792 or the Electronic Commerce Act of 2000[33], no person shall be held civilly or criminally liable in respect of the electronic data message or electronic document for which the party acting as service provider[34] merely provides access concerning liability founded on (a) obligations and liabilities of parties under the data message or document; (b) and if the service providers do not have actual knowledge or are not aware of the possible offenses of their clients which constitute acts of making, publication, dissemination or distribution of the libellous material or statement.[35] 

Right and Duty of the Institution

As observed, the more serious posts manufactured in the Arellano Law Secret Files would usually contain students’ stand, them having aversion to or intense feeling of detest about the way the University handles even the simplest task of facilitating the enrolment, for instance. There were those who “despise” a particular professor who is into particular “habits, norms and ways of teaching” causing an infuriated contributor to post his expression of dissatisfaction. The post’s caption was: “Are we really getting our money’s worth?”

The subtler ones, on one hand, talk about life and typical stuff, or journey in love, impaired friendships or the saddened consequence of being unfriended, or rants about another student or students for having excelled in class allegedly because of samplex, among others.

In the mentioned cases, and as pointed out earlier, offensive words of expression or speech, for that matter, even if offensive, is still protected by the supreme law of the land. This is the guiding principle in imposing the appropriate sanctions. The University, in turn, must accept the fact that their students are future emissaries of law and are the very reason for the institution’s existence. Voices in the secret files cannot be reduced into the traditional media of communication in view of the practicality offered by online communication. Online interactions afford the students a way better opportunity to speak their minds, opinions and principles, which acts will not prosper if placed in an offline counterpart. The University, for its part, may use of its authority to enforce, as may be necessary and just, appropriate disciplinary actions. The same shall not be to the effect of infringing the rights of its students to freely express themselves.

It is imperative to state that an educational institution, like any other juridical entity, has goodwill in its name to protect. In accordance with a definition provided by Black’s Law Dictionary, goodwill[36] is an intangible asset of such an institution comprised of reputation, contact networks, intellectual property and trademark/tradename.  If, at any rate, the name of the educational institution be tainted by the posts springing up on the secret files page, which posts are not protected by law or which are adjudged to be unlawful in nature, said institution may go beyond the appropriate disciplinary actions. Remedies could be availed of, directly against the offender/s.

Duty of the Students

As to the contributors, majority of which are presumably bona fide students of the AUSL, their liabilities are intertwined with an individual’s freedom of expression

Talking about matters that are considered controversial and alarming like sex and scandals, the Author personally believes that, as law students, contributors to the Arellano Law Secret Files may be reasonably expected not to violate the ultimate essence of and even the primordial purpose of putting up the anonymous confession site. Law students are supposed to know the rules. They should speak or act with due care and prudence and hold fast on to what equity and justice requires.

Freedom of expression can only be hindered if words contained in the posts, are in effect, inciting other students to execute rebellious acts against the University, or displays texts or photos pertaining to obscenity, harassment and “real” threats against a student, professor or any member of the school/university responsible in the latter’s operation(s) and administration. Further, the requisite condition for the permissible interference to successfully take effect, is that such expression will cause material and substantial disruptions to every class activity and to the operations of the school/university itself.

What could be the test then which justifies the abridgment of the freedom of expression? Clear and Present Danger rule states that the abridgment of this Constitutional right may be justified where there exists substantial danger that the speech will likely lead to an evil the State has a right to prevent. The University has been granted by the State the utmost authority and power to regulate this right: such, in an effort of the institution to nurture and protect the same, as well.

As regards libel being a subject of the country’s penal provisions and cybercrime law, criminalizing the same violates freedom of expression, says the United Nations (UN), pursuant to the Universal Declaration of Human Rights, particularly Article 19 which reads, “this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” The United Nations Human Rights Committee (UNHRC) has even declared that the penal code’s criminal libel provision is ‘incompatible’ with Article 19[37] of the International Covenant on Civil and Political Rights (ICCPR), of which the Philippines is a signatory. But the High Court respectfully expounds on the stand of the UN in the Disini case, putting emphasis on paragraph (3) of the same article. The UNHRC did not actually enjoin the Philippines to decriminalize libel. In the words of Justice Abad, it simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression.

 

           

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 FOOTNOTES

[1] WIKIPEDIA, the Free Encyclopedia, Friendster, defined. ^http://en.wikipedia.org/wiki/Friendster.^ Retrieved 2015-04-01

[2] Ibid., Social Media, defined by Wikipedia. ^http://en.wikipedia.org/wiki/Social_media.^ Retrieved 2015-04-01

[3] The Merriam-Webster Online Dictionary defines Social Media as “forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos).”

[4] Agbayani, Apa M. (2013). The Secret Files: Everybody’s got something to hide. Rappler, http://www.rappler.com/life-and-style/technology/136-viral/44935-university-secret-files, Published 2013-11-30; Retrieved 2015-04-01.

[5] “PostSecret” is an ongoing community art project, created by Frank Warren, where people mail in their secrets anonymously on one side of a homemade postcard.  Selected secrets are then posted on the PostSecret website (postsecret.com) or used for PostSecret’s books or museum exhibits (Wikipedia), http://en.wikipedia.org/wiki/PostSecret. Retrieved 2015-04-07.

[6] Palad, Faye (07 March 2014). Elbi Files: A gateway for awareness, or a dead-end for action. WordPress, fscp xx: strawberries and randomness, https://fayepalad.wordpress.com/tag/the-elbi-files/. Retrieved 2015-03-31

[7] Nachura, Antonio E.B., J. (2009). Outline/Reviewer in Political Law.

[8] Miriam College Foundation vs. Court of Appeals, G.R. No. 127930, December 15, 2000.

[9] Lloyd, Alex (2012). Facebook vs. The First Amendment: Student Free Speech in the Digital Age. University of Colorado’s The Legal Issue published by the Office of the University Counsel, Vol. 6, Issue 1.

[10] De Leon, Hector S. & De Leon, Hector M. Jr. (2011). Textbook on the Philippine Constitution.

[11] Ibid., Note 8.

[12] Section 10, Article XVI of the 1987 Constitution, General Provisions: The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

[13] Anonymity, adjective “anonymous”, is derived from the Greek word anonymia, meaning “without a name” or “namelessness”. In colloquial use, “anonymous” is used to describe situations where the acting person’s name is unknown (Wikipedia) or simply, such is a condition or quality of being anonymous (Merriam-Webster).

[14] Adopted by the United Nations General Assembly on 10 December 1948, as a result of the experience of the Second World War; proclaimed as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

[15] Article 19, International Covenant on Civil and Political Rights

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

[16] Ibid., Note 6.

[17] MARYNETTE R. GAMBOA vs. P/SSUPT. MARLOU C. CHAN, G.R. No. 193636, July 24, 2012 677 SCRA 385

[18] REPUBLIC ACT NO. 10173: AN ACT PROTECTING INDIVIDUAL PERSONAL INFORMATION IN INFORMATION AND COMMUNICATIONS SYSTEMS IN THE GOVERNMENT AND THE PRIVATE SECTOR, CREATING FOR THIS PURPOSE A NATIONAL PRIVACY COMMISSION, AND FOR OTHER PURPOSES

[19] See definition of and discussion about libel in the next succeeding page/s.

[20] Bargh, McKenna & Fitzsimons (2002). Can You See The Real Me? Activation and Expression of the “True Self” on the Internet. Journal of Social Issues, Vol. 58, No. 1, pp. 33-48.

[21] Ibid., Note 3.

[22] G.R. No. 203335 11 February 2014; (E), Abad, J.

[23] REPUBLIC ACT NO. 10175: AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES

[24] Section 4 of the Act enumerates the acts that constitute the offense of cybercrime:

xxx                           xxx                           xxx

(c) Content-related Offenses:

xxx                           xxx                           xxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

[25] Cited in the Disini vs. Sec of Justice (2014): ARTURO BORJAL and MAXIMO SOLIVEN vs. COURT OF APPEALS and FRANCISCO WENCESLAO, G.R. No. 126466 January 14, 1999; (2D), Bellosillo, J..

[26] Kunkle vs. Cablenews-American and Lyons, 42 Phil. 757, 08 February 1922.

 

[27] Senate Bill No. 53: An Act Establishing a Magna Carta for Philippine Internet Freedom, Cybercrime Prevention and Law Enforcement, Cyberdefense and National Cybersecurity; The Magna Carta for Philippine Internet Freedom was proposed as an alternative to the Cybercrime Prevention Act of 2012whose enactment was met with mixed reactions. Proponents of the bill claim that the #MCPIF is the first crowdsourced bill in the Philippines (Wikipedia).

[28] Section 52. Internet Libel, Hate Speech, Child Pornography, and Other Expression Inimical to the Public Interest. –

(a) Internet libel. –

(i) Internet libel is a public and malicious expression tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, made on the Internet or on public networks.

(ii) Malice as an essential element of internet libel. – Internet libel shall not lie if malice or intent to injure is not present.

(iii) Positive identification of the subject as an essential element of internet libel. – Internet libel shall not lie if the public and malicious expression does not explicitly identify the person who is the subject of the expression, except if the content of the expression is sufficient for positive and unequivocal identification of the subject of the expression.

[29] https://www.insidehighered.com/news/2013/02/26/college-confession-and-makeout-pages-raise-privacy-anonymity-issues. Retrieved 2015-04-07.

[30] http://www.the-standard.org/news/anonymous-posts-who-s-responsible/article_32e94ce4-a637-11e2-b496-001a4bcf6878.html. The Standard [News], 2013. By Missouri State University, [Midwestern] United States.

[31] A Legal Guide for Bloggers regarding Online Defamation Law which provides an overview of defamation (libel) law, including a discussion of the constitutional and statutory privileges that may protect an individual. https://www.eff.org/issues/bloggers/legal/liability/defamation. Retrieved 2015-04-08.

[32] Ibid., Note 31.

[33] AN ACT PROVIDING FOR THE RECOGNITION AND USE OF ELECTRONIC COMMERCIAL AND NON-COMMERCIAL TRANSACTIONS AND DOCUMENTS, PENALTIES FOR UNLAWFUL USE THEREOF, AND FOR OTHER PURPOSES.

[34] Section 5. Definition of Terms…

xxx                           xxx                                           xxx

(j) “Service provider” refers to a provider of –

1. On-line services or network access or the operator of facilities therefor, including entities offering the transmission, routing, or providing of connections for online communications, digital or otherwise, between or among points specified by a user, of electronic documents of the user’s choosing; or

1. The necessary technical means by which electronic documents of an originator may be stored and made accessible to designated or undesignated third party.

Such service providers shall have no authority to modify or alter the content of the electronic data message or electronic document received or to make any entry therein on behalf of the originator, addressee or any third party unless specifically authorized to do so, and who shall retain the electronic document in accordance with the specific request or as necessary for the purpose of performing the services it was engaged to perform.

[35] Section 30. Extent of Liability of a Service Provider –

xxx                           xxx                           xxx

(b) The making, publication, dissemination or distribution of such material or any statement made in such material, including possible infringement of any right subsisting in or in relation to such material. Provided, That:

1. The service provider does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material;

ii The service provider does not knowingly receive a financial benefit directly attributable to the unlawful or infringing activity; and

iii. The service provider does not directly commit any infringement or other unlawful act and does not induce or cause another person or party to commit any infringement or other unlawful act and/or does not benefit financially from the infringing activity or unlawful act or another person or party; Provider, further, That nothing in this Section shall affect –

xxx                          xxx                          xxx

[36] Originally, the Black’s Law Dictionary gives this definition for Goodwill: The primary intangible asset of a company, generally comprised of reputation, contact networks, intellectual property, and branding.
[37] Ibid., Note 11, par (3).