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Executive Summary for Position Paper on Amendments to Intellectual Property Code

Executive Summary for Position Paper on Amendments to Intellectual Property Code

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Published by Janette Toral
Prepared by Atty. JJ Disini with the intention of persuading President Noynoy Aquino to veto the amendments proposed to the current law.
Prepared by Atty. JJ Disini with the intention of persuading President Noynoy Aquino to veto the amendments proposed to the current law.

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Published by: Janette Toral on Feb 27, 2013
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02/27/2013

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Executive SummaryIntroduction
This position paper seeks to establish that the bill proposing certain amendments to the IPCcontains unabashed violations of some of our constitutionally protected rights and that some of its proposed amendments are unreasonable considering the reality of life in the modern age.
I. Expansion of IPO’s Powers
Under Section 7 of the proposed Bill, the IPO shall enjoy the power to enforce the law and thevisitorial powers without the benefit of a judicial warrant. This provision is objectionable on thefollowing Constitutional grounds:1. It violates the Due Process Clause2. It violates the Right against Unreasonable Searches and Seizures3. It violates the Equal Protection Clause
A. Enforcement Functions Violates Due Process
 The enforcement functions granted by this provision to the IPO violate procedural due process.
 First 
, the IPO is the agency which processes and grants the applications for registration of intellectual property (IP) owners.
Second 
, IP owners make regular payments to the IPO in theform of registration fees. IP owners, in contrast to alleged IP rights infringers, have moreexposure to the IPO, and the IPO is, in a way, beholden to IP owners for funds. Given this closerelationship, this provision will violate the right to procedural due process of alleged IP rightsinfringers because their chances of getting an unbiased and fair hearing before the IPO is low, if not, nil. Without the guarantee of a fair hearing,
 procedural fairness
is necessarily violated.
B. Visitorial Rights Violate Substantive Due Process
Section 7(d), which grants visitorial powers to the IPO violates substantive due process.
 First 
,the grant of visitorial powers in favor of the IPO is not required by the interest of the publicgenerally for it only favors IP owners, who, on the basis of a mere report, information, or complaint and without necessity of hearing, can invoke such power to their advantage; and
 second 
, such grant of power, while logically connected to the accomplishment of a desired purpose, is unduly oppressive upon individuals and establishments for the IPO use such power even without hearing or evidence.
C.
 
Visitorial Right Permits Unconstitutional Warrantless Searches
Section 7(d), which allows the IPO to conduct visits on the basis of a mere report, violates theconstitutional right against unreasonable searches and seizures. The provision allows the IPO toexercise such power without judicial determination of probable cause. Indeed, the IPO, at aminimum, can conduct visits on the basis of a mere report – without regard to its accuracy, truthor indeed, admissibility in evidence.
 D. The Additional Powers Violate Equal Protection Clause
The expanded powers of the IPO must be seen within the larger context of litigation advantagesgranted by Congress under the Amendatory Bill. Unlike other litigants, IP rights owners enjoythe benefit of having evidence impounded under Section 216.2 and prove their case throughaffidavit evidence with a presumption of ownership under Section 218. In addition, the proposedamendments permit IP rights holders to enter private spaces without a warrant to enforce their 
 
rights. Finally, a government agency, the IPO is empowered to enforce the rights of IP holders.Since these litigation advantages granted to IP rights holders implicate the fundamental right to privacy through the right against unreasonable searches and seizures as well as the Due Processclause, therefore the State must establish a compelling interest and the classification must benarrowly drawn to fulfill the same.
II. Temporary Reproduction as InfringementA. True Meaning of the Amendment
Under this amendment, there is infringement when a temporary copy of a copyrighted work ismade 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 inthe random access memory (RAM) of the computer; therefore, a computer user will beunwittingly committing copyright infringement by merely “using” a piece of software, i.e., bylaunching or running, or by visiting pages on the Internet. Moreover, because of this provision,these acts will now constitute criminal infringement under Section 217 of the IPC. Consideringthese absurd results, this provision is clearly out of touch with the realities of moderntechnology.
B. Temporary Copies and Vicarious Liability
Moreover, the provision on temporary copies will produce greater impairment of legitimate business expectations if read with 216(b) which provides for vicarious liability on persons who benefits from the infringement and has the ability to control the activities of the infringer.
C. Temporary Reproduction and the Removal of the Personal Use Exception
Finally, because of the removal of the personal use exception under Section 212(a), thetemporary copying of software for personal use is no longer an excepted practice. It is now aninfringing activity which will be subject to the penalties provided for by the IPC.
III. Vicarious Liability
The proposed Section 216(b) persons can be held vicariously liable for the acts of third parties.The person to be held vicariously liable need not directly engaged in the infringing activity. Theliability attaches as long as the requisites are present, with the “giving of notice” as the operativeact. This provision seeks to extend the liability for infringement upon mall operators, employers,schools, lessors, telcos, ISPs, online service providers, or any other person who receives some benefits from the infringing activity. This provision deprives persons of property without due process because it provides for no opportunity to avoid liability. Liability
automatically
attachesupon notice of the infringing activity, and no time was given for corrective action to stop theinfringing activity
after 
notification.
IV. Importation Right
The amendatory Bill proposes that Sections 190.1 and 190.2 of the IPC be deleted. The sections proposed to be deleted expressly contain a right to import copyrighted works even over theobjection of the copyright owner. But because of this deletion, the Bill unwittingly creates animportation right in favor of copyright owners. The removal of the provisions permits a customsofficer to question whether any right of importation of copyrighted works for personal use still

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