POSITION PAPER ON THE PROPOSED AMENDMENTS TO THE IP CODE Introduction A bill proposing to amend certain provisions of the Intellectual

Property Code (IPC) has recently been enrolled by Congress. Considering the proposed amendments impact on individual rights, much has been said about it in social networking sites and in the news. Blogger Raissa Robles even went on to say that through the bill, Congress has erased every Filipinos right to bring home music, movies, and books from abroad. The Intellectual Property Office (IPO), in defense of the proposed amendments, posted in its website that the amendments are meant to protect the Filipino artists and creators, while also making copyrighted works more accessible to Filipinos. While it is true that the protection of copyright and other intellectual property rights is a legitimate state concern, the State must extend its protection in a way that strikes a balance between the rights given to the makers of intellectual goods and the States interest in promoting the progress of science and the arts. Furthermore, such rights should not interfere with the individuals rights enshrined in no less than the Constitution. Indeed, any law that seeks to limit individual liberty must be measured against the standard of reasonableness. This paper seeks to establish that the bill proposing certain amendments to the IPC contains 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 the IPOs Powers The bill proposes to amend the IPC as follows: Section 7. The Director General and Deputies Director General shall exercise the following powers and functions: xxx c. Undertake enforcement functions supported by concerned agencies such as the Philippine National Police, National Bureau of Investigation, Bureau of Customs, Optical Media Board, Local Government Units, among others; d. Conduct visits during reasonable hours to establishments and businesses engaging in activities violating intellectual property rights and provisions of this act based on report, information, or complaint received by the office; (emphasis supplied).

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Under this amendment, the IPO shall enjoy the power to enforce the law and the power to conduct searches and seizures without the benefit of a judicial warrant. This amendment is objectionable on four grounds: first, it constitutes a usurpation of judicial powers; second, it violates the right to due process; third, it violates the right against unreasonable searches and seizures; and fourth, it violates the equal protection clause. Enforcement Function Violates Due Process. The proposed Section 7(c), assuming that enforcement can indeed be delegated to the IPO, is still constitutionally infirm because it will violate due process. The Article III, Section 1 of the Constitution provides that: Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. The guarantee of due process has two aspects procedural and substantive. As a procedural guarantee, it assures procedural fairness, or as Daniel Webster succinctly put, a law which hears before it condemns. On the other hand, as a substantive guarantee, it serves as a prohibition against arbitrary laws. Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due process and in so doing sums it all up as nothing more and nothing less than "the embodiment of the sporting Idea of fair play" (Ynot v. Intermediate Appellate Court, G.R. No., 74457, March 20, 1987, citing Frankfurter, Mr. Justice Holmes and the Supreme Court). 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. Section 5.1 of the IPC provides: Section 5. Functions of the Intellectual Property Office (IPO). 5.1. To administer and implement the State policies declared in this Act, there is hereby created the Intellectual Property Office (IPO) which shall have the following functions: a) Examine applications for grant of letters patent for inventions and register utility models and industrial designs; b) Examine applications for the registration of marks, geographic indication, integrated circuits; c) Register technology transfer arrangements and settle disputes involving technology transfer payments covered by the provisions of Part II, Chapter IX on Voluntary Licensing and develop and implement strategies to promote and facilitate technology transfer; x x x.(emphasis supplied). In addition, IP owners make regular payments to the IPO in the form of registration fees. IP owners, in contrast to those whom they accuse of infringement, have more exposure to the IPO, and the IPO is, in a way, beholden to IP owners for funds. Given this close relationship between the IPO and IP owners, this provision will violate the right to procedural due process of alleged IP rights infringers because their chance to get an unbiased and fair hearing before the

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IPO is low, if not, nil. This requirement of fair hearing is the essence of procedural due process. Without the guarantee of a fair hearing, procedural fairness is necessarily violated. Compare this with labor cases before the National Labor Relations Commission (NLRC), which is granted similar enforcement powers by the law. In these labor cases, state intervention on behalf of the labor force is justified, if not necessary, considering the power imbalance in favor of employers. Hence, in Fuentes v. NLRC, G.R. No. 110017, January 2, 1997: The State is bound under the Constitution to afford full protection to labor and when conflicting interests of labor and capital are to be weighed on the scales of social justice the heavier influence of the latter should be counterbalanced with the sympathy and compassion the law accords the less privileged workingman. In sharp contrast to cases before the IPO, IP owners already have leverage to begin with the proximate relationship and the financial backing of the adjudicating body: the IPO. Adding this proposed provision to the IPC will only further tilt the balance in favor of IP owners, to the detriment of the general public whose interest the IPO is obliged to protect. Hence, Section 2 of the IPC provides: 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 (emphasis supplied). Visitorial Rights Violate Substantive Due Process. Substantive due process is the protection against arbitrary laws and the guaranty against acts of arbitrariness of government. Hence, in the landmark case of United States v. Toribio, G.R. No. L-5060, January 26, 1910: To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the

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public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. Under the standards provided in U.S. v. Toribio, the proposed Section 7(d) will not pass constitutional muster. To emphasize, Section 7(d) provides: d. Conduct visits during reasonable hours to establishments and businesses engaging in activities violating intellectual property rights and provisions of this act based on report, information, or complaint received by the office (emphasis supplied). First, the grant of visitorial powers in favor of the IPO is not required by the interest of the public generally. Such visitorial powers will only favor 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. Moreover, the existence of other avenues, such as the application of a search warrant before a judge, further shows the dispensability of such power. Second, such grant of power, while logically connected to the accomplishment of a desired purpose, is unduly oppressive upon individuals. IP owners, even without presentation of evidence (as Section 7(d) only requires a report, information, or complaint), can actually make the IPO conduct visits in commercial and business establishments, even in media outlets. The net effect is arbitrary interference with private business and unnecessary restrictions upon lawful occupations in the guise of protecting public interest. Visitorial Right Permits Unconstitutional Warrantless Searches. Furthermore, the proposed Section 7(d) is objectionable because it violates the right against unreasonable search and seizure, a constitutionally protected right, by allowing the search of private space without a warrant. Article III Section 2 of the Constitution provides: Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized (emphasis supplied). A cursory reading of Section 7(d) will show that not only is the judicial determination of probable cause is absent, but such determination of probable cause is not required at all. Indeed, the IPO, at a minimum, can conduct visits on the basis of a mere report without regard to its accuracy, truth or indeed, admissibility in evidence. Compare this again with the visitorial powers given to government agencies such as the Bangko Sentral ng Pilipinas (for banks), the Department of Labor and Employment (for

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employers) and the Optical Media Board (for optical media duplicators). In those cases, the government agency concerned directly regulates the activities and issues licenses that permit those private entities to operate. In the case of the IPO, it neither issues licenses to private entities for the latters use of IP goods nor does it have regulatory authority over the consumption of IP goods. The proposed amendment also permits the IPO to enter a broad range of places that would otherwise require a warrant. The proposed amendment allows the IPO to enter businesses and establishments. This encompasses all types of places where commerce is conducted. Indeed, the IPO could potentially enter, without a warrant, any office, workshop, production floor, store, back office operations, schools, government offices, or any imaginable area where people report for work. The incursion into the private spaces otherwise protected by the Constitution is too broad to fall within the permissible boundaries of the same. The purpose for the search in the proposed amendment is clearly not regulation. The purpose is to fish for evidence, because as stated in the provision itself, the search shall be conducted upon a report, information, or complaint received by the IPO. The visit by the IPO will then lead to a search of the premises and the discovery of evidence that will be used to establish probable cause when the IPO decides to apply for a search and seizure warrant. The warrant would no longer be for the purpose of searching the place but only to seize the items in preparation for litigation. The Additional Powers Violate Equal Protection Clause. The expanded power of the IPO cannot be taken in isolation but within the larger context of litigation advantages granted by Congress in the following proposed amendments that favor IP owners to the detriment of alleged IP rights infringers: Section 7. The Director General and Deputies Director General shall exercise the following powers and functions: xxx c. Undertake enforcement functions supported by concerned agencies such as the Philippine National Police, National Bureau of Investigation, Bureau of Customs, Optical Media Board, Local Government Units, among others; Section 216.2. In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings, in accordance with the rules on search and seizure involving violations of intellectual property rights issued by the Supreme Court. (Sec. 28, P.D. No. 49a) Section 218.Affidavit Evidence xxx (c) The copy of the work or other subject matter annexed thereto is a true copy thereof.

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The affidavit shall be admitted in evidence in any proceedings under this Chapter and shall be prima facie proof of the matters therein stated until the contrary is proved, and the court before which such affidavit is produced shall assume that the affidavit was made by or on behalf of the owner of the copyright. Unlike other ligitants, IP rights owners enjoy the benefit of having evidence impounded and prove their case through affidavit evidence with a presumption of ownership. The latter presumption is particularly dangerous since the right to bring the suit in the first place must always be established not presumed. Indeed, all other litigants are required by the courts to prove standing. In the case of IP litigants, the law establishes a presumption of standing that is granted to no other type of litigant. Jurisprudence is replete with examples of litigants denied relief because of their failure to establish ownership rights, injury or relationship to victims. Established is the rule in evidence that he who alleges must provide proof of the same. The above-quoted law, however, exempts IP owners from such requirements. In addition, the proposed amendments 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. The absurdity and unfairness of these litigation advantages become clear when one considers a common example of a victim of heinous crime. Such a victim enjoys no right or presumption that he or she is authorized to bring the suit such proof must be submitted to the court to establish standing. In fact, without proof of a civil claim, the victims counsel is not even permitted to act as a private prosecutor. Next, the victim is not given the statutory right to have the court consider his affidavit as prima facie proof of the matters stated therein. More importantly, when seeking the help of a law enforcement officer, the victim of a heinous crime must secure a warrant before the authorities can enter private spaces in order search and seize evidence necessary to prove the offense charged. There appears to be no logical reason why IP rights holders should enjoy these litigation advantages to the exclusion of all other victims of crime in this Republic. Obviously, Congress identified IP rights holders as a class and granted upon them these advantages. The Constitution mandates that these must be consistent with the Equal Protection Clause. In Biraogo v. The Philippine Truth Commission of 2010 (G.R. No. 192935, December 7, 2010), this Honorable Court explained the rules governing valid classifications: An early case, People v. Cayat, articulated the requisites determinative of valid and reasonable classification under the equal protection clause, and stated that it must (1) rest on substantial distinctions; (2) be germane to the purpose of the law;

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(3) not be limited to existing conditions only; and (4) apply equally to all members of the same class.

Moreover, in that case, this Honorable Court held that when a classification interferes with the exercise of a fundamental right, the strict scrutiny standard must be used. Hence: The most exacting of the three tests is evidently the strict scrutiny test, which requires the government to show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. Briefly stated, the strict scrutiny test is applied when the challenged statute either: (1) classifies on the basis of an inherently suspect characteristic; or (2) infringes fundamental constitutional rights. In these situations, the usual presumption of constitutionality is reversed, and it falls upon the government to demonstrate that its classification has been narrowly tailored to further compelling governmental interests; otherwise, the law shall be declared unconstitutional for violating the equal protection clause (emphasis supplied). As explained above, the litigation advantages granted to IP rights holders implicate the fundamental right to privacy through the right against unreasonable searches and seizure as well as the Due Process clause. It is appropriate therefore for the State to establish a compelling interest and that the classification is narrowly drawn to fulfill the same. It is submitted that the infringement of IP rights can never take precedence over the commission of heinous crimes and yet the litigants or victims of heinous crimes enjoy no such litigation advantages or presumptions that favor them. It is inconceivable for the State to argue that the damage of IP rights owners are such that they deserve these benefits over victims of heinous crimes. Are Intellectual Property rights more important than human life or dignity?

II. Temporary Reproduction as Infringement The bill proposes to amend the IPC as follows:

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Section 171.9. Reproduction is the making of one (1) or more copies, temporary or permanent, in whole or in part, of a work or a sound recording in any manner or form without prejudice to the provisions of Section 185 of this Act (Sec. 41[E], P.D. No. 49a); (emphasis supplied). True Meaning of the Amendment. Under this amendment, there is infringement when a temporary copy of a copyrighted work is made without the consent of the copyright owner. This amendment was designed specifically to address temporary copies of software programs made in the random access memory (RAM) when they are operated. Implicitly, the right to make temporary copies is intended to give IP rights owners an exclusive right to use software. Under the present law, the mere operation of an allegedly infringing copy of a software does not constitute infringement since no copies are being made. Indeed, the IP code does not grant copyright owners the exclusive right to use the protected works. One can listen to a song (thereby using it) without infringing copyright. One can view a painting (thereby using it) and infringe no ones copyright over the same. But under this proposed amendment, a computer user will be unwittingly committing copyright infringement by merely using a piece of software, that is, by launching or running the same. But temporary copies of copyrighted works are made not only in the use of software but also by merely visiting pages on the Internet. The same is true for persons that use software programs like iTunes to play, download, and organize music files or movie applications that load temporary copies of the movies onto the RAM as part of playing the same. The same would be true not only of computer users but also users of various devices that operate software or play music or movies or allow the e-books or pictures to be rendered. The proposed amendment renders users of devices guilty of copyright infringement simply because their gadgets automatically make temporary copies of their software program while they are listening to their music files. Considering these absurd results, this provision is clearly out of touch with the realities of modern technology. One should also consider that if the operation of a file or software on a device or computer will now constitute criminal infringement under Section 217 of the IP Code. That means IP Owners, the IPO and the police can arrest persons operating these devices without a warrant on the ground that they are committing infringement in the presence of arresting officers. This means that the patrons of an Internet caf who unknowingly operate infringing copies of software would be vulnerable to arrest on the spot once the enforcement officer or any individual determines that the said software is infringing. The potential for harm brought by the proposed amendment is therefore great. Temporary Copies and Vicarious Liability. Moreover, Section 171.9 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 (albeit unintentional because of routine

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computer functions) and has the ability to control the activities of the infringer for infringement committed by third persons. The proposed Section 216(b) provides: Section 216. Infringement. A person infringes a right protected under this Act when one: xxx (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. Hence, mall owners, in relation to internet cafes and their patrons, can now be held liable for the mere use of certain software programs or the mere internet surfing of third-party patrons, as these activities will automatically produce copies. Radio and Television Networks can also be subjected to the same penalty on the basis of vicarious liability for the infringing activities committed by their advertisers, or even by advertisers of block timers. A more detailed explanation of the effects of this vicarious liability is provided below under III on Vicarious Liability. Temporary Reproduction and the Removal of the Personal Use Exception under Section 212(a). The proposed amendment of Section 212 is as follows: Section 212. Limitation on Rights. The provisions of Chapter VIII shall apply mutatis mutandis to the rights of performers, producers of sound recordings and broadcasting organizations. A fair reading of the provision will have the effect of removing the personal use exception under Section 212.1 of the current IPC. Section 212.1 provides: Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where the acts referred to in those Sections are related to: 212.1. The use by a natural person exclusively for his own personal purposes; 212.2. Using short excerpts for reporting current events; 212.3. Use solely for the purpose of teaching or for scientific research; and 212.4. Fair use of the broadcast subject to the conditions under Section 185 (emphasis supplied).

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Casus omisus pro omisso habendus est. A person, object or thing omitted from an enumeration must be held to have been omitted intentionally. Hence, the express removal of Section 212.1 in the amending bill shows the clear intent of the legislature to take away the personal use exception. Had the legislature not removed the personal use exception, the temporary reproduction could have been less oppressive, i.e., there may have been some ways where a temporary reproduction can be justified as personal use. But now that the amending bill itself removes the personal use exception, the absurdity becomes more apparent. The temporary copying of software for personal use is no longer an excepted practice. It is now an infringing activity which will be subject to the penalties provided for by the IPC. III Vicarious Liability Under the proposed amendment for Section 216(b), the following are the requisites to hold a person vicariously liable: 1) That he benefited from the infringing activity; 2) That he was given notice of the infringing activity; and 3) That has the right and ability to control the activities of the infringer. It is important to note that the person being held liable under this provision is not directly involved in the infringing activity. This liability attaches to any person for as long as the requisites are present. This provision therefore 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. A classic example involves a mall operator where one lessee sells infringing DVDs. The proposed amendment would hold the mall operator for infringement even though it does not actually commit any act of infringement. Although at first blush, the provision appears innocuous, a closer look at the provision reveals more serious problems. When reviewing the three elements above it becomes clear that the vicarious liability for infringement occurs upon receipt of the notice of infringing activity. Take the case of the mall operator. The signing of the lease arrangement gives the mall operator the right to stop infringing activity by the termination of the lease (and satisfies the 3rd element). Upon the payment of the rent, the 1st element is satisfied since a benefit would have been received by the lessor at that point. The last element to be satisfied therefore will always be the second element, that is, the IP right holders notification of the infringing activity.

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What is glaringly absent is the opportunity for the party being held vicariously liable to take corrective action to stop the infringing activity after notification. In the US, the Digital Millennium Copyright Act (DMCA) allows service providers a period to take down third party content that is alleged to be infringing. This way, these service providers can be shielded from liability. But under the proposed amendments no such corrective action can exempt from vicarious liability. The situation above brings another problem: the violation of the due process clause. The Philippine Constitution has provided that no person shall be deprived of life, liberty, or property without due process of law (Article III, Section 1, 1987 Constitution). But the provision above deprives a person of property without due process. This is because the provision provided no opportunity to avoid liability. The person is not given a chance to exercise its right and ability to control the activities of the infringer to avoid prosecution. Instead, what the provision provided is a sure way to incur liability because of acts made by a third person. In the end, it would highly discourage, if not totally prevent, the exercise of the ability of the person to inspect the activities of the infringer. Such person would rather not exercise the ability to control the activities of the infringer so that he/she would be able to use as a defense the lack of notice or knowledge of the infringing activities and avoid incurring liability. There is a view that tries to cure the potential dangers this proposed amendment poses, i.e., that the IPO can interpret the provision so as to give the entity involved the opportunity, a grace period, to exercise their right to control and stop the infringing activities. Unfortunately, however, such would not suffice. It is important to remember that such an interpretation is by nature executive and would not be binding on the courts for the reason that such a period is not provided under the proposed amendment. Hence, if the bill would become a law, since it clearly enunciates that the liability arises from mere notice alone, such interpretation is the most feasible interpretation that the court since the law did not provide for such a period and the point of reckoning of the liability is the time of notice. There are several concrete examples of potential situations that might arise in case such an amendment is passed both if the person vicariously liable is a private or a public entity. Perhaps the best example, in the case of a private entity, is a person operating a mall. A mall owners relationship with its lessees puts him in a position of control. This satisfies the third requirement under Section 216(b). If it turns out then that one of its lessees is involved in an infringing activity, the benefits that this lessee from the activity would inure to the benefit of the owner since the contract between the parties would involve a consideration paid by the lessee. The question now is what would happen if the owner learns of such activity. Following the proposed amendment would lead to only one conclusion: the mall owner would be held to be liable and such liability is incurred as soon as he learns of the infringement. No time was given for the owner to exercise his ability to control the activities of the infringer. Moreover, even if the owner exercise his ability to control, whether or not he is successful, this will neither mitigate nor can it be used as a defense since the proposed amendment does not make a distinction. Hence, whether the owner exercises his right or not is of no importance for he would still be held to be liable either way. The situation of mall owners is no different from that of telecommunication companies or online retailers whose services were leased by infringers. In

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this case, it is not surprising if these people would rather not delve into the activities of the infringers in order to avoid their liability. However, the problem does not end there. Even the mass media is going to be affected by this proposed amendment. This is through the practice of blocktiming. In the case of blocktiming, blocks of air time are bought in order to produce programs independent or networks and stations. Hence, the situation of the networks/stations is the same as that of the mall owners such that if there happens to be an infringing activity done by the entity who bought such air time, the networks/stations would be liable for such an activity and like mall owners, they cannot use as a defense the exercise of their control powers over the buyers. Even the government cannot escape the effects of this provision. A perhaps suitable example in this case is the lease/purchase by the Commission on Elections (COMELEC) of the PCOS Machines. If such machines turn out to be fakes, then COMELEC would be held vicariously liable, whether they be only lessees or absolute owners of such properties. The substantial control that they exercise as regards leasing or buying the machines puts them in the position to control such lease or purchase and once they get notified of the illegal activity, Section 216(b) becomes applicable and their liability sets in. In this case, we would be holding COMELEC, a constitutional body, liable to acts made by third persons without a possibility of defense. The reasonable result in this case is that the IPO would be prosecuting a constitutional body for violations of this proposed amendment. IV Importation Right The proposed amendment is simple enough. The Bill simply proposes that Sections 190.1 and 190.2 be deleted. The amendment, however, unwittingly creates an importation right in favor of copyright owners. An importation right means that only the copyright holder or its licensees have the authority to import the works into the country. Consistent with such rights, the parallel importation of even authentic goods would be prohibited. This is the same set of rights patent holders asserted to resist the importation of authentic patented medicines which resulted in higher local prices for such goods. It is believed that the creation of the importation right under the proposed amendment seeks the same result, that is, IP owners will set higher prices for the local sale of the same goods by preventing the importation of the same (but cheaper) goods from overseas. As a preliminary matter, it is important to know that Sections 190.1 and 190.2 provide, as follows: Section 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

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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). Section 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. The value of the above-quoted provisions is that they expressly contains a right to import copyrighted works even over the objection of the copyright owner. It is a limited right and can be exercised under certain circumstances but it is fairly easy to implement and explain to a customs officer who may want to detain the allegedly infringing importation. The removal of the provisions permits a customs officer to question whether any right of importation of copyrighted works (e.g., movies, music, books, software) for personal use still exists. After all, the removal of the right by Congress implies that it was done intentionally to deny individuals that right. Moreover, the absence of a clear right of importation on the part of individuals means that he would have to convince the customs officer of the right through other provisions and complex concepts such as fair use. From a practical standpoint, the customs officer will likely refer the matter to the BOC Legal Department and without any legal representation, the hapless individual will likely drop his claim and allow the seizure of the goods. Apart from the removal of the personal right to import copyrighted goods by the repeal of Sections 190.1 and 190.2, the proposed amendment will authorize the Commissioner of the Bureau of Customs (BoC) to make rules and regulations for preventing the importation of so-

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called infringing materials. While this appears to be straightforward, BOC has no independent means to determine whether any article is infringing or not. This stems from the fact that the IP Code does not mandate the registration of copyrighted works before the right is granted nor does the IP Code require the registration of licenses over copyrighted works. For practical purposes, therefore, the copyright owners will send the BoC a letter informing it that except for certain identified persons, no one is permitted to import say, a brand of software. On that basis, the BOC can prevent the importation of all software bearing the brand except for the named importers. This will include authentic copies purchased abroad for local resale or more commonly known as parallel importations. In sum, the receipt of BOC of multiple communications from various copyright owners will result in an effective right of importation by virtue of the revised Section 190 despite the fact that no such right exists in the economic rights granted to copyright owners in Section 177. Moreover, in Roma Drug v. RTC (G.R. No. 149907, Roma Drug v. RTC, 16 April 2009), the Court had already enunciated that it is public policy that dictates that such kinds of importation must be allowed, specifically in pharmaceuticals. The proposed amendments are in fact going against this public policy. The free importation would be curtailed not only by the law itself, but also by the workings of certain individuals.

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