IP Code amendments violate Constitution, says Internet lawyer

The proposed amendments to the Intellectual Property (IP) Code – embodied in a newly approved bill by Congress but still awaiting Pres. Benigno Aquino III’s signature – must be struck down because it contains “unabashed violations on constitutionally protected rights”.

This is according to prominent Internet lawyer and UP College of Law professor Jesus “JJ” Disini, who said in a position paper that the amendments are also “unreasonable considering the reality of life in the modern age.”

IPO Philippines chief Ricardo Blancaflor (center) during a recent press briefing with musician John Lesaca and National Book Development Board chair Andrea Pasion-Flores

Earlier, the Intellectual Property Office of the Philippines (IPO) said the amendments to the IP Code would benefit not only the copyright stakeholders and the creative industries but also the various sectors in the country.

For instance, the non-profit group Resources for the Blind said the revisions would open the books for the blind as it would give an exemption from the book publishers for the production of Braille versions of copyrighted books.

The IPO also explained that contrary to a blog entry of journalist Raissa Robles, the amendments allow Filipinos returning from abroad to bring in more than three copies of legitimate copyrighted works.

“Contrary to Ms. Robles’s insinuations that OFWs can no longer bring home copyrighted works, they can in fact bring home more copies for personal use that fall under the fair use exceptions,” the agency said.

The IPO also pointed out that “jailbreaking” is not a crime under the amendments, contrary to Robles’s assertion.

“Jailbreaking or any other form of circumvention of technological measures (as defined in Sec. 6 of the amendments), are not crimes in themselves. The amendments require that you first be found guilty of copyright infringement, and that is the only time that jailbreaking or circumvention of technological measures increases the imposable penalty and damages that can be awarded by the courts,” it stressed.

“You still need to be found guilty of copyright infringement, as jailbreaking is merely an aggravating circumstance that increases the penalty,” it added.

But, Disini noted in his position paper that the amendatory bill deletes the sections that expressly contain a right to import copyrighted works even over the objection of the copyright owner.

“Because of this deletion, the Bill unwittingly creates an importation right in favor of copyright owners,” he said.

“The removal of the provisions permits a customs officer to question whether any right of importation of copyrighted works for personal use still exists. The removal of the right by Congress implies that it was done intentionally to deny individuals that right,” Disini said.

The IP lawyer also said amendments unduly expand the powers of the IPO, which will enjoy the power to enforce the law and the visitorial powers without the benefit of a judicial warrant.

He also pointed out a provision in the amendments wherein an infringement is committed when a temporary copy of a copyrighted work is made without the consent of the copyright owner.

“Since the act of using a piece of software or of visiting pages on the Internet automatically creates temporary copies of the copyrighted work in the random access memory (RAM) of the computer; therefore, a computer user will be unwittingly committing copyright infringement by merely “using” a piece of software, i.e., by launching or running, or by visiting pages on the Internet,” he said.

“Moreover, because of this provision, these acts will now constitute criminal infringement under Section 217 of the IPC. Considering these absurd results, this provision is clearly out of touch with the realities of modern technology,” Disini said.

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