Philippines

Wed, 11/03/2009 - 09:20 — Jennifer Malonzo

Legal background

Copyright legislation	Intellectual Property Code of the Philippines (Republic Act No. 8293) ("RA 8293 ") From http://www.lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html
Other relevant laws	Electronic Commerce Act of 2000 (Republic Act No 8792) ("RA 8792") From http://www.lawphil.net/statutes/repacts/ra2000/ra_8792_2000.html
	Optical Media Act of 2003 (Republic Act No. 9239) ("RA 9239") From http://www.ops.gov.ph/records/ra_no9239.htm
Copyright treaties	Berne Convention	Rome Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention?	YES	RA 8293 s.213.1
Must a work be fixed in some material form before copyright attaches?	NO Works are protected by the sole fact of their creation, irrespective of their mode or form of expression.	RA 8293 s.172.2
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power?	NO The IP Code does not provide compulsory licensing in copyright.
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	LIMITED Freedom of speech and expression and similar rights are constitutionally protected. The IP Code also declares as State policy to promote the diffusion of knowledge and information, but there is no provision subjecting exercise of copyright to human rights compliance.
Does the compilation of a database of non-original material fall outside the scope of copyright?	NO Compilations of data and other materials are protected by copyright.	RA 8293 s.173.1(b)
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	NO

Freedoms to access and use

By Home Users	Is there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria?	YES It is unclear whether this provision is as broad as the US fair use right, as it speaks of "criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes", before setting out the balancing criteria.	RA 8293 s. 185
	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	NO Copyright covers adaptation or other transformation of works.	RA 8293 s.177.2
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	LIMITED Private reproduction in a single copy is allowed for research and private study only. This permission does not extend to work of architecture, an entire book or substantial part of it, musical works in which graphics form by reprographic means, compilations of data and other materials, computer programs except for one back-up copy or adaptation, and other cases where reproduction would be prejudicial to the author’s interest.	RA 8293 ss.187.1, 187.2, 189.1, 189.2
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	YES As long as it is done privately and free of charge or strictly for charity.	RA 8293 s.184.1(a)
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	NO
For Education	Is reproduction permitted for the purposes of research or study?	LIMITED Fair use for teaching including multiple copies for classroom use, scholarship and research is not an infringement, but factors determining fair use include the amount and substantiality of the portion used and effect on potential market for or value of the work. Only one copy for research and private study is allowed, but not an entire book or substantial part of it.	RA 8293 ss.185.1, 187.1, 187.2(b)
	Does any such research and study provision cover distance and online education?	NO There is no specific mention of distance or online education, though presumably fair use for study and research can be invoked.	RA 8293 s.187.2(b)
	May translations of works be made for educational purposes?	LIMITED Copyright covers translation of the work, though fair use may be invoked.	RA 8293 ss.177.2, 185.1
	May works be reproduced and published by educational institutions in connection with systematic instructional activities?	LIMITED Limitations on copyright include the use made of a work by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use.	RA 8293 s. 184.1h
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	YES
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	YES Fair use provision in the IP Code include decompilation for interoperability of computer programs.	RA 8293 s.185.1
	Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances?	LIMITED The E-commerce Act states that no civil or criminal liability shall be imposed on a service provider if it just provides access, provided that it is unaware of the infringement, does not knowingly receive any financial gain from the infringement, and does not directly commit or induce any infringement.	RA 8792 s.30
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	YES
	Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs?	LIMITED No cases are known in which personal data has been obtained by copyright owners under subpoena.
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	NO
	May computer software be reverse engineered for the purpose of creating interoperable software?	NO
	Is the incidental inclusion of a work in other material permitted?	LIMITED Only as part of news reports through photography, film or broadcast; and for teaching purposes, with acknowledgement.	RA 8293 s.184.1(d), (e)
	Is there are copyright exception for parody or satire?	LIMITED There is no specific mention of satire in the limitations on copyright though fair use provision includes criticism and comment.	RA 8293 s.185.1
	Do creators who license their work retain the moral right of attribution?	YES	RA 8293 s.193.1
By the press	Is there a copyright exception for the news of the day?	YES The source must be clearly indicated.	RA 8293 ss.184.1(c), (d), 185.1
	May copyright material be reproduced for the purposes of review and criticism?	YES	RA 8293 s.185.1
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	YES There is no condition for use of speeches, lectures, sermons, etc. delivered in courts, administrative agencies, and public meetings. But the author has the exclusive right of making a collection of his works.	RA 8293 ss.176.1, 176.2
	May quotations be used for any purpose?	YES The source and name of author must be mentioned.	RA 8293 s.184.1(b)
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	LIMITED Only a single copy for preservation, for lending isolated articles or portions in volumes for study or research, and for replacement.	RA 8293 s.188.1
	May libraries copy works for users for the purpose of research or study?	LIMITED Only for articles in composite works or brief portions of published works - for expediency of lending.	RA 8293 s.188.1(b)
	Are libraries allowed to make preservation or archive copies of materials in their collections?	YES But not missing volumes of works published in several volumes, or tomes or pages of magazines, etc., unless they are out of stock.	RA 8293 s.188.2
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	YES No such provision in the law.
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	NO There is no provision for adaptation for persons with disabilities in the limitations on copyright.
In public affairs	Are laws excluded from copyright?	YES	RA 8293 s.176.1
	Are other governmental works excluded from copyright?	YES But prior approval is required for exploitation of such works for profit, and payment of royalties may be imposed.	RA 8293 s.176.1
	Is there a copyright exception for use of material in judicial proceedings?	YES	RA 8293 s.184.1(k)
	Are the results of publicly funded research required to be published under an open access license?	NO

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	Under the IP Code, imprisonment of 9 years and a fine of PhP1.5 million (RA 8293 s.217.1(c)); Under the E-commerce Act, maximum fine is commensurate to damage incurred and 3 years imprisonment (for piracy through telecommunications networks such as the internet) (RA 8792 s.33(b)); Under the Optical Media Act, 6 years imprisonment and PhP1.5 million (for mastering, manufacture and replication of copyrighted works in optical media) (RA 9239 s.19a.3)
What is the maximum penalty for copyright infringement for a corporation?	Same as above
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	NO Provisions on remedies for infringement and criminal penalties do not distinguish personal from commercial use.	RA 8293 s.217.1
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright?	LIMITED There is no provision in the IP Code specifically covering TPM devices.
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	LIMITED There is no provision in the IP Code specifically covering TPM devices. The Optical Media Act exempts optical disc writers and similar devices used in PCs not for commercial purposes from being considered as manufacturing equipment, which it regulates.	RA 9239 s.3f
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material?	NO There is no such provision.
Are the operations of copyright collectives subject to public oversight?	NO
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online?	YES
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	NO Criminal penalties are not limited to large-scale counterfeiting. Any person infringing any right under the copyright law shall be criminally liable.	RA 8293 s.217.1
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	NO
Is there provision to penalise the wrongful allegation of copyright infringement?	NO

Conclusions

Part IV of the Intellectual Property Code of the Philippines deals with copyrightⁱ; the law is based in part on US copyright law and the Berne Conventionⁱ. It imposes stiffer penalties for infringement than previous laws mandated. The law provides for fair useⁱ, the criteria of which are similar to the US fair use doctrine. However, the exceptions for educational purposes and libraries are limited and the law has no provisions for distance education and the disabled. Further, unlike for patents, the law does not provide compulsory licensing in copyright and therefore exposes consumers to monopolistic exploitation by copyright holders. A big cause for concern is the fact that penalties under the law do not distinguish between individual and corporate infringements, and both are liable for criminal sanctions.

The Philippines is currently on ordinary watch list under the US 301 Watch List. It had been on priority watch list for five consecutive years (2001-2005) before being placed on the lower level since 2006. Despite enforcement activities (raids, seizures) of various government agencies, US IPRⁱ lobby groups are dissatisfied, citing proliferation of digital piracy including mobile device piracy and internet downloads, pay TV piracy, movie piracy, book piracy, among others. Photocopying of books in university areas is condemned for undermining publishers' interests.

In 2009, the country has been subjected to an Out of Cycle Review by the USTR regarding the state of IPR in the Philippines as the US still had concerns on IP law and enforcement. In its comment submitted to the USTR, the Philippine government highlighted the 328% increase in confiscated fake goods since 2005, which from January-October 2009 alone totaled P4.9 billion. It also pointed out implementation of IP measures by 29 universities and the country's heading of the ASEAN Working Group on Intellectual Property Cooperation.

High costs of proprietary softwareⁱ, music and film CDs, and educational materials such as textbooks, journals and other reference books, coupled with widespread poverty and unemployment provide the context for such ubiquitous piracy. A feasible recourse for the Filipino consumers is the promotion of free and open source software and materials, but the government refuses to give any incentive for the production and distribution of such as it maintains a policy of letting the market decide on the use of proprietary against open source software.

In its effort to please the US, the Philippine government fails to consider consumer and public welfare as it focuses only on protecting copyright holders and getting out of the US 301 Watch List. It is clear that the copyright law needs to be reviewed and the interests of Filipino consumers be given more attention to ensure fairness. But beyond this, the country also has to address intersecting social, economic, and technological problems that impact on the people’s access to knowledge.

This work is licensed under a Attribution Share Alike Creative Commons license

May copyright works be freely offered for commercial rental?	NO Copyright owner has exclusive right over rental of the original or a copy of the work, irrespective of the ownership of the original or the copy which is the subject of the rental.	RA 8293 s.177.4
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment?	NO There is no provision on releasing a work to the public domain before copyright expiration.
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain?	NO There is no provision on orphaned works.
Is parallel importation permitted?	LIMITED Importation is subject to limitations, and that such imported copies do not exceed three (3).	RA 8293 s.190.1
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy?	NO
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy?	NO
Are there specifications or incentives in national law/policy for the use of open document formats?	NO