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Executive Summary Introduction This position 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 IPO’s Powers Under Section 7 of the proposed Bill, the IPO shall enjoy the power to enforce the law and the visitorial powers without the benefit of a judicial warrant. This provision is objectionable on the following Constitutional grounds: 1. It violates the Due Process Clause 2. It violates the Right against Unreasonable Searches and Seizures 3. 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 the form of registration fees. IP owners, in contrast to alleged IP rights infringers, have more exposure to the IPO, and the IPO is, in a way, beholden to IP owners for funds. Given this close relationship, this provision will violate the right to procedural due process of alleged IP rights infringers 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 public generally 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 the constitutional right against unreasonable searches and seizures. The provision allows the IPO to exercise such power without judicial determination of probable cause. 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. D. The Additional Powers Violate Equal Protection Clause The expanded powers of the IPO must be seen within the larger context of litigation advantages granted by Congress under the Amendatory Bill. Unlike other litigants, IP rights owners enjoy the benefit of having evidence impounded under Section 216.2 and prove their case through affidavit evidence with a presumption of ownership under Section 218. 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. 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 Process clause, therefore the State must establish a compelling interest and the classification must be narrowly drawn to fulfill the same. II. Temporary Reproduction as Infringement A. 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. 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. 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. 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), 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 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. The liability attaches as long as the requisites are present, with the “giving of notice” as the operative act. 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 attaches upon notice of the infringing activity, and no time was given for corrective action to stop the infringing 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 the objection of the copyright owner. But because of this deletion, the Bill unwittingly creates an importation right in favor of copyright owners. 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. Apart from the removal of the personal right to import copyrighted goods, the proposed amendment also authorizes the Commissioner of the Bureau of Customs (BoC) to make rules and regulations for preventing the importation of so-called “infringing materials.” However, because the BoC has no independent means to determine whether any article is infringing or not, it would have to rely on the endorsements of copyright owners. Such practice will result in an effective right of importation on the part of copyright owners as they can actually advise the BoC not to permit the importation of any copyrighted material from any other source other than the copyright owners themselves or their duly authorized agents. To allow such practice to persist is contrary to public policy, as ruled in the case of Roma Drug v. RTC, where a similar practice once persisted in the pharmaceutical industry.