They say that of all things, only one thing is constant – change.
True, everything changes and it is imperative that we adapt to whatever changes may come our way. Of much controversy is the fast paced advancements made in technology, which affects the lives of most of the world’s population. Indeed, technology has made a lot of difference in our society. Notwithstanding the perception – or some would say it is a fact – that technology tends to dissociate individuals with those around them, it should be stressed that the same technology brings together people from opposite sides of the world.
It cannot be denied that because of technology, individuals have more access to information. It has brought about ease of access to information from all over the globe. At present, you can share anything with anyone with one click and now, even with one tap. In the same way, you can just as easily obtain a copy of something shared over the internet with just your forefinger. Such sharing and copying, uploading and downloading has been done by every internet user.
This brings about issues with regard to intellectual property rights. What kind of protection does our law provide? How do changes in technology affect the protection of intellectual property? What changes should our intellectual laws undergo in order to keep up with the fast changing technology?
Protection of Intellectual Property in the Philippines
In the Philippines, the present law on copyright is embodied in Republic Act No. 8293, An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, providing for its Powers an Functions, and for Other Purposes. Said law is a codification of the then existing laws on patent, trademark, and copyright.
On February 28, 2013, Republic Act 10372 was signed into law, which introduced amendments to the Intellectual Property Code of the Philippines. It should be noted however, that even before it was passed, said law had been met with criticisms.
In particular, it has been criticized for allowing warrantless searches and seizures in violation of the Bill of Rights under the 1987 Constitution and that “[i]t gives the Intellectual Property Office (IPO) unprecedented power”, among others.
It should be noted that in the 2013 Special 301 Report of Acting United States Trade Representative Demetrios Marantis, Office of the United States Trade Representative, it was stated that it “recognizes the efforts and achievements of high level IPR officials and legislators in strengthening the protection and enforcement of IPR in the Philippines. xxxx. In early 2013, the Philippines brought to a close a longstanding legislative effort to modernize its copyright and IPR enforcement regimes consistent with the WIPO Internet Treaties. That legislation also took the important step of providing ex officio authority to customs officers. The United States looks forward to the adoption of implementing regulations that will further strengthen and clarify the law, especially as to the circumvention of technological protection measures. The United States looks to the Philippines to take important steps to address piracy over the Internet, in particular with respect to notorious online markets. The United States applauds the Philippines on its accession to the Madrid Protocol. The United States is encouraged by IPR enforcement efforts generally in the Philippines and by the continuing drop in the incidence of unauthorized camcording of motion pictures in theaters. While the United States is hopeful that implementation of the 2011 Supreme Court IPR procedural rules will lead to a more efficient judicial process for IPR cases, the United States remains concerned about the need to strengthen criminal enforcement of IPR and to improve predictability with respect to search and seizure orders. The United States also remains concerned about amendments to the Patent Law that limit the patentability of certain chemical forms unless the applicant demonstrates increased efficacy. The United States encourages the Philippines to provide an effective system for protecting against the unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products. The United States looks forward to continuing to work with the Philippines to address these and other issues.”
A different perspective
In his lecture given in Argentina during the Creative Commons Global Summit 2013, Professor Lawrence Lessig, in his preliminaries, stressed the view that we share too little from our culture and that we need to share more. He also stated that much of what we share is done illegally.
In order to demonstrate, Professor Lessig used what he calls “remix”, as an example. He stated that “remix” is an illustration of a “time-honored tradition of call and response”, explaining this as “a creative call that asks for the culture to respond. He stressed that this response is increasingly apparent in light of the advances in digital technology. This is just one issue which he focused on.
Copyright, according to him, should be connected with the way our culture is changing.
Professor Lessig emphasized his view that there is a need to “deregulate culture”, such that “culture is not heavily entwined with the regulation of law”. Rather he proposed that culture should be regulate “where it makes sense.” Again, he stressed the role of digital technology in enabling the “creation and recreation of culture”
Focus was also given to “fair use” under the American tradition of copyright. According to Professor Lessig, under American law, fair use “effectively, although not technically, puts copyright on the defensive”.
Under the Section 107, Title 17 of the US Code, the factors to be considered to determine whether an act constitutes fair use are as follows:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for, or value of, the copyrighted work.
Professor Lessig stated that what is viewed as “rights” under their law may be considered as “wrongs” in other countries.
It should be noted that Professor Lessig agreed with the view of a German organization, Rightremix.org, that creative commons is not a solution, notwithstanding the fact that he is part of said organization. He explained that creative commons indeed is not a solution, rather is “prepares culture for a solution” and that such solution entails “real change in real law”.
Prospects of Change in Intellectual Property Protection in the Philippines
In view of all this, what should then be the trend for intellectual property laws in the Philippines? Should it be restrictive or should we follow the proposal of “deregulation” as espoused by Professor Lessig?
Professor Lessig’s observation that what may be viewed as “rights” under their law may be considered as “wrongs” in other countries. Considering the differences in the policies of countries with regard to intellectual property, it is but certain that there would be disparities in what is protected and not protected and in what constitutes violations of intellectual property rights under different laws.
We have to take into consideration the accessibility of information over the internet. Through the internet, we are able to share our culture and have a glimpse of the culture of other nations in just a few minutes or even seconds.
Considering the ever-changing technology, our laws should be attuned with such changes and should be prepared for whatever changes may still come about. Although such possible advances in technology cannot be determined easily, our laws should be equipped to cater to such changes.
I agree with the view of Professor Lessig. While regulating and protecting intellectual property, there is an equivalent need for deregulation. In order to enrich our culture and promote the creation of intellectual property which is sought to be protected, there is a need to deregulate laws.
This is still in line with the policy of the state as embodied in Section 2 of the Intellectual Property Code, which provides as follows:
“Section 2. Declaration of State Policy. – The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act.
The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good.
It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines.”
As Professor Lawrence Lessig stated in his lecture, “What harm is it if cultural policies encourage more of creators who create for the love of creating rather than for the money?”
In the modern world, where we have access to almost every information through the internet, among others, it is highly impractical to protect intellectual property in the strictest sense. What the laws can do is to provide protection to the owners of such intellectual property, while at the same time, allowing more freedom in the creation and recreation of works.
As the world progresses, society changes, and our laws should follow as well. As human beings adapt to change, so should our laws. We should try to enrich our culture, as stressed by Professor Lessig, while at the same time safeguarding the rights of those who contribute to it.
 Robles, Raissa. Copyright owners have more rights than heinous crime victims with Congress’ IP Code changes – lawyers say. http://raissarobles.com/2013/03/06/copyright-owners-have-more-rights-than-heinous-crime-victims-with-congress-ip-code-changes-lawyers-say/
 Lawrence Lessig (Roy L. Furman Professor of Law and Leadership y director del Edmond J. Safra Center for Ethics en Harvard Law School) brindó una conferencia el pasado 23 de agosto de 2013 en el Aula Magna. http://www.youtube.com/watch?v=RIV1UE_RZ-c
 17 USC § 107 – Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the 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 upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.