01-04-2013
Neptali L. Bulilan
An Act Amending Certain Provisions of Republic Act No 8293, otherwise known as the Intellectual Property Act of the Philippines, was signed into law on February 28, 2013.
It took effect 15 days after its publication on March 7, 2013 in two newspapers of general
circulation.
A new office known as the Bureau of Copyright and Other Related Rights was created and added to the existing six bureaus of the IP Office of the Philippines (IPOPHL). It also gives enforcement powers to the Director General (DG) and Deputy Directors General (DDGs) of IPOPHL.
This new bureau, which used to be a small unit in the National Library, has the following functions:
- To exercise original jurisdiction to resolve disputes relating to the terms of a licence involving the author’s right to public performance or other communication of his work;
- To accept, review and decide on applications for the accreditation of collective management organisations or similar entities;
- To conduct studies and research in the field of copyright and related rights; and
- To provide other copyright and related rights services and charge reasonable fees for them. Further, the amended IP code vested the DG and his two deputies with enforcement powers as follows:
- To undertake enforcement functions supported by concerned agencies such as the Philippine National Police, the National Bureau of Investigation, the Bureau of Customs, the Optical Media Board, and local government units, among others; and
- To conduct visits during reasonable hours to establishments and businesses engaging in activities violating IP rights and provisions of this act based on report, information or complaint received by the office.
This grant of enforcement and visitorial powers to the DG and DDGs of the IPOPHL raised some valid concerns among consumers, business establishments and the general public because the IPOPHL officials can enter and visit any establishments and businesses suspected of violating IP rights based merely on a report, information or complaint received by it.
If infringing articles are seen ‘in plain view’ during the visit, they can be seized without a warrant and the violators are then prosecuted. This will create an unprecedented situation wherein the IPOPHL officials who perform quasijudicial functions are now both the prosecutor and judge over IP rights cases brought before them.
Moreover, while the amending law was intended to create a copyright bureau within the IPOPHL and to implement copyright-related treaties, the grant of enforcement powers to the DG and DDGs is not limited to copyrightrelated violations but covers all other violations related to IP rights, including patents, trademarks, designs and utility models. So, the provisions on the grant of enforcement powers are, in effect, riders.
The amendment also provides for the vicarious liability of those who benefit from copyright infringement. Building owners, mall owners and online service providers may now be held liable based on the principle of vicarious liability. The act extends the liability for copyright infringement beyond the seller and the buyer to include even the establishment where the transaction took place.
Under this amendment, it is sufficient that the building or mall owner is notified about the infringing activity and that he has the right and ability to stop or control the activities.
Obviously, these amendments favour copyright or IP rights owners and not consumers. However, there is one amendment which favours blind, visually and reading-impaired persons. The amendment gives special fair use exemption of the non-commercial reproduction of works for use by blind, visually and reading-impaired persons, provided the materials indicate the copyright owner and the date of the original publication.
The IPOPHL has 180 days from the act taking effect to come up with its rules and regulations to effectively implement the provisions. Whether the amendments will bring forth the desired results remains to be seen during the implementation.
Neptali L. Bulilan is a senior partner at Sapalo Velez Bundang & Bulilan. He can be contacted at nep@sapalovelez.com