Liabilities Of Copyright Protection In The Philippines

International Law Essay

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Due to the status of the Philippines in relation to the more developed or industrialized countries, it seems
that protection of intellectual property, especially of copyright, may be of little significance. Being intangible
by nature, the concept is just in the abstract and is not readily understandable by a common man. In a
developing country, this is most manifest because of the obvious disparity in priorities. People cannot
afford to spend too much on something that they really do not need for subsistence. In fact, it is opined that
indeed:
[t]here is little incentive for the Filipinos to protect U.S. copyrighted materials, especially when the
purported victims, whether Microsoft, Disney, . . . are viewed as rich monopolists who engender little
sympathy from the public. However, would the intervention by companies establishing offices in the
Philippines help deter piracy? This may be unrealistic since piracy rates are so high. Companies are likely
to find that placing headquarters in the Philippines for the sole reason of decreasing (importing) costs to
the Filipino market may be a risky investment. For a developing country such as the Philippines with huge
socioeconomic gaps and a gross income that is considerably less than that of the average American, there
is little incentive for a Filipino family to want to protect the fiscal interests of a wealthy foreign corporation.
What about considering a new business model? As previously discussed, the average Filipinos annual
salary is significantly lower than an Americans annual salary. Therefore, it is unlikely that a Filipino is able
to pay the same $60 that an American would pay for a game. Publishers need to create a new business
model that is more attractive for locals to buy a homegrown version of the media than a pirated or
counterfeit one.
Perhaps this is the reason why the country has fallen so far behind and has been consistently on the
watch list. There are so many other problematic things that need to be addressed, especially country
ravaged by poverty. However, this is not enough reason to disregard those, which the rest of the world
recognize and respect. Illegal activities cannot be allowed to dictate the scheme of things. Adaptive action
must be resorted to in order to properly address the problem, instead of going around and avoiding it.
It cannot be overly stressed that illegality in the field of copyright has gone beyond what the law can cover.
As were found out in the analysis, the basis of liability is present, but the link is weak and ambiguous. This
cannot be invoked in order to prosecute the alleged offenses done. However, the principles of law should
not be allowed to simply stagnate to uselessness; it must be allowed to adapt. Currently, due to the
presence of several factors peculiar to the console gaming industry, certain activities, which seem
harmless, actually reinforce, if not create, the problems for society. The circumstances certainly warrant
enough attention so as to move the whole country to react. Therefore, there is a need for the State to step
in:
[C]ertainly, it is within the authority of the lawmaking body to prescribe certain acts deemed pernicious and
inimical to public welfare. Acts mala in se are not the only acts that the law can punish. An act may not be
considered by society as inherently wrong, hence, not malum in se but because of the harm that it inflicts
on the community, it can be outlawed and criminally punished as malum prohibitum. The State can do this
in the exercise of its police power.
Part Two

Knowledge or Control in Special Laws

Before anything further, there must be a discussion on the requirement of intent with regard to imputing
indirect infringement liabilities.
As was mentioned, the Intellectual Property Code was enacted specifically to address intellectual creation.
It is a special law, which also incorporates within its terms several penal provisions. It is generally
accepted that, when it comes to these types of laws, there will be liability regardless of intent. Thus, the
crime is consummated by mere perpetration of the illegal act. Thus:
[a] copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such cases,
did not know what works he was indirectly copying, or did not know whether or not he was infringing any
copyright; he at least knew that what he was copying was not his, and he copied at his peril. In determining
the question of infringement, the amount of matter copied from the copyrighted work is an important
consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the
work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the
labors of the original author are substantially and to an injurious extent appropriated by another, that is
sufficient in point of law to constitute a piracy.
However, this work is concerned with indirect liability. From an analysis of the laws and cases, there is
enough ground to conclude that in case of the Intellectual Property Code, this general rule does not hold
true. There are some instances where certain requirements of criminal law are applied to special penal
laws. This is evidenced by the fact that the Code itself provides that only those who aid or abet the
infringing act can be held liable. There has to be proof on the existence of these things in order to
successfully convict a person on this charge. The rulings extensively discussed previously are clear on the
requirements and even enumerated the elements of indirect liability. As discussed in the preceding
chapter, there is a requirement of either knowledge of the ongoing illegal activities or a certain degree of
control over the premises and/or persons involved in such. Again, absent any these, there can be no
liability to speak of. Furthermore, criminal provisions in the Code, often involve an element of repetition, or
other limitations, which entail that the acts are intended and willful. Although these present themselves in
a variety of forms, these cannot be done in any other manner. Given this, there must be a finding of both
knowledge and intent under these provisions of law. In fact:
[i]t is submitted that the doctrine of innocent infringement does not apply under Section 217 since this
provision deals with criminal infringement for which knowledge and intent are essential. Thus, only a
person knowingly aiding or abetting an infringement are guilty of a crime under this provision.
Therefore, it can be safely concluded that the general rule about special penal laws does not apply entirely
on the concepts aforementioned.
Part Three
Technician who modified the Console
The technician who modified the console seems to have liabilities even under the current law governing
copyright. While direct liability cannot be imputed, the presence of the elements point to the possibility of
indirect responsibility for the person in relation to copyright infringement. However, the link provided
between the infringement and the modification is still unstable. Although there may be a certain way of
constructing the provision so as to encompass the said activities, it may seem to stretch the law into areas
that it did not contemplate. After all, laws should be interpreted in a way that does produce an unjust or
an absurd conclusion. They must be construed so as to make sense to those who will follow it. Indeed,
with the duty of upholding the law and the higher interest of substantial justice, they should not declare

anything that will result to absurd or unreasonable consequences.

But the activities must not go unpunished. Because of its nature, it is safe to equate circumvention to
infringement itself. Indeed, there is some basis upon which to punish these activities in accordance with
the provisions of the Intellectual Property Code, but the better stand would involve incorporating a specific
provision to address the particular act. Given the peculiar nature of video games, the relation it has with the
usefulness of the illegal copy is enough to conclude that modification is essential to the continued success
of piracy. In the realm of console gaming, one cannot exist without the other for it is only through
accommodation that they thrive. The bottom line is, both spheres should be regulated in order to curb the
problem at hand. And besides, it is internationally recognized that:
Article 11 of the WIPO Copyright Treaty provides: Contracting Parties shall provide adequate legal
protection and effective legal remedies against the circumvention of effective technological measures that
are used by authors in connection with the exercise of their rights under this Treaty or the Berne
Convention and that restrict acts, in respect of their works, which are not authorized by the authors
concerned or permitted by law. Article 18 of the WIPO Performances and Phonograms Treaty contains a
parallel provision.
Thus, in compliance therefor, it is up to the contracting states to enact measures in ensuring protection
against circumvention. In accordance with the findings of this study, the proponent is of the belief that the
circumvention process must be defined and punished as infringement in relation to copyright. It must
cover all those who are involved, regardless of the products they deal in.
Vendor of the Video Game Console
From the point made, the vendor who employs or has an independent contractor relationship with the
technician will also be liable for the activities. This person has the technician under his wing, regardless of
the formal relationship between them. It is from this that he has access to the work involved and dictates
the calculated result desired. With regard to the former, the test for the presence of the power of control in
favor of the employer over the means and methods by which the same is accomplished. On the other
hand, the latter involves situation whereby an employer contracts out a specific work to a legitimate
contractor or subcontractor within a certain period regardless the place it is to be performed. Furthermore,
it requires that:
In this arrangement, the following conditions must be met: (a) the contractor carries on a distinct and
independent business and undertakes the contract work on his account under his own responsibility
according to his own manner and method, free from the control and direction of his employer or principal in
all matters connected with the performance of his work except as to the results thereof ; (b) the contractor
has substantial capital or investment; and (c) the agreement between the principal and contractor or
subcontractor assures the contractual employees' entitlement to all labor and occupational safety and
health standards, free exercise of the right to self-organization, security of tenure, and social welfare
benefits.
Direct liability is out of the question, for he did not perform the act personally. On the other hand, once the
technician is held to be engaged in infringing activities, there is resultant responsibility, if the principles
elucidated on vicarious liability in relation to infringement are applied. This type of indirect liability takes, as
an essential ingredient, the right or ability to supervise the infringers. It is upon a finding this particular
element, together with two others, that the charge is effectively established. And as can been seen, no
matter what the relationship is, this person has the right to supervise the activities, therefore there can be
vicarious infringement in this regard.
The proponent seeks to impute liability upon the persons responsible for the proliferation of illegal

activities. They should not be able to act with impunity, for the effects of ignoring this are reflected upon the
losses in the industry as well as the degree by which piracy is growing. As a whole, it is the country, which
will suffer the most detriment if this is not addressed.
Distributors
This particular person is not liable under the general concept of copyright infringement. Even if there is an
apparent connection between the vendor and technician on one hand, and the distributor on the other, the
link in order to create liability based on the act ends here.
However, this does not necessarily mean that there should be absolutely no liability here. Judging from the
findings of this work, four things need to be emphasized. First, the coverage of piracy is encompassing in
this society and is a well-known occurrence. Second, pirated games are of no use unless the gaming
console is modified. Third, the need for the console does not cease, irrespective of the nature of the game
being used and there is no direct impact on their sales. Fourth, the distributors know that the products are
being modified so as to accommodate the illegal games. These findings simply cannot be ignored.
The result is that the distributors will continue to profit, at least be able to sell their units, as long as there is
a demand for the games. On the other hand, the genuine games will no longer receive the same level of
patronage due to the availability of pirated copies, equating to losses. They seem to have no reason to
intervene in or police the situation for they do not experience any direct impact on sales. On this note, they
can be presumed to know or ought to have known of the possible infringing activities upon providing the
vendors and technicians of the unit itself and this attitude should be treated as having acquiesced to such.
Even if they claim otherwise, the first and second premises still hold true. Not only do these activities, if
unregulated, contribute to piracy, they also amplify the problem.
However, this instance seems to be beyond the protection offered by the Intellectual Property Code. The
actions of this person do not violate any of the rights of the copyright holder. Neither can any sign of
indirect infringement liability be detected, much less imputed here. Despite the submission that there
continues to be profitability in its favor amidst the struggle against video game piracy, there seems to be no
basis for liability to be imputed.
The most plausible source of liability may come from the civil code, either under the provisions on quasidelicts or human relations. The rules under the former should not be made to apply because it actually
favors the distributors. Ultimately, there has to be a determination of being the proximate cause of the
damage in order for liability to arise. Unfortunately, in this situation, this person cannot be said to be the
proximate cause. It may be possible to anchor a claim under the abuse of rights provisions; however, this
will be limited to a case that is civil in character. These acts deserve a more exacting treatment because of
the danger they bring to several aspects of society. Therefore, given the severity of the status of piracy in
the country, this has to go beyond being content with compensation. It has to be classified as criminal, and
thus:
[a] crime is the doing of that which the penal code forbids to be done, or omitting to do what it commands.
A necessary part of the definition of every crime is the designation of the author of the crime upon whom
the penalty is to be inflicted. When a criminal statute designates an act of a corporation or a crime and
prescribes punishment therefore, it creates a criminal offense, which otherwise, would not exist and such
can be committed only by the corporation. But when a penal statute does not expressly apply to
corporations, it does not create an offense for which a corporation may be punished. On the other hand, if
the State, by statute, defines a crime that may be committed by a corporation but prescribes the penalty
therefore to be suffered by the officers, directors, or employees of such corporation or other persons
responsible for the offense, only such individuals will suffer such penalty. Corporate officers or employees,
through whose act, default or omission the corporation commits a crime, are themselves individually guilty

of the crime.
The proponent submits that the principle behind the above mentioned provisions of law should be molded
to fit the current situation, and codified into a criminal provision to be incorporated in the Intellectual
Property Code. Leaving the parties at status quo is not the solution, for it is obvious that the current system
is easily exploited. The proposal would involve liability for performance of certain acts, although legal by
themselves, would result into a violation of the rights of another, if done within a certain situation in relation
to copyright. The apparently legal act would then be characterized as aiding or being in furtherance of the
illegal activity because of the context within which it was executed.
The prevalence of piracy in the country calls for more stringent measures, which not only deters the pirate,
but also requires the other parties involved to take positive action to prevent it from happening under pain
of prosecution. This is particularly because the relationship between the actors is intertwined in such a way
that the effects of infringement will necessarily affect each one. Therefore, in attaining the goal in an
atmosphere of piracy such as in the Philippines, there is a need to share the responsibility and require all
sides to take part in protecting intellectual property. This is essential, in order to make it difficult for the acts
to be actually performed, and push the illegal activities back into the black market.
Manufacturer
It has been determined that there is no direct liability under the Intellectual Property Code. Also, neither
can indirect liability be imputed under any set of standards provided. There is no basis in the current law
upon which to anchor a specific charge.
The product is by its nature capable of non-infringing uses. In fact, it is made to perform legitimate
activities, but it may be subjected to modification in order to accommodate the infringed copies. This will
necessarily negate the application of the ruling in the Sony case as well as the usefulness of incorporating
the provisions of the DMCA to impute liability. However, with the peculiar nature of the relation between the
video game and the gaming console, it seems that a different appreciation is at hand. Each item is a pair,
which means, one cannot be of any use without the other. In addition, there is also the presence of
knowledge of the prevailing condition of piracy in the country, which implies that caution is a must when
dealing with the product; otherwise, it will work in furtherance of illegal activities.
Piracy involves a mix of several participating actors, whether performing legal or illicit activities. The
shortcomings of one will result in benefit for the other because of the interrelation of the items involved.
Government action alone will not solve the problem. This is especially true for the console gaming industry,
where the advance in technology creates new problems the law cannot catch up with. Perhaps there
needs to be an imposition of a higher degree of diligence and requiring affirmative action in making sure
the products do not end up as media for infringing activities. The manufacturers must necessarily adapt at
the same rate that the pirates do, not only in terms of technological advancement, but in physical action as
well.
This person seems to be out of reach as of the moment. Aside from the fact that it does not directly create
the infringing product, there is also the issue of the territorial character of criminal laws. But its activities
must not be left unchecked. The situation needs to be addressed by congress, in accordance with the
findings of this work, in order to curb the problem it presents adequately.
Republic of the Philippines
Congress of the Philippines
Metro Manila

X X X Congress
Republic Act No. X X X X

November 12, 2010

AN ACT AMENDING CERTAIN SECTIONS OF THE CHAPTER ON COPYRIGHT OF REPUBLIC ACT

NO. 8293 OTHERWISE KNOWN AS THE INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
WHEREAS, the Constitution, specifically Article XIV, Section 13. States that the State 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 period as may be provided by
law.
WHEREAS, due to the alarming upsurge of such intellectual property crimes in the form of copyright
infringement and/or piracy, which has resulted not only in the serious pecuniary losses and destruction
commercial viability in the international community but also caused serious detriment to the nation's
efforts towards sustainable economic development and prosperity while at the same time has undermined
the people's faith in the Government and the latter's ability to maintain adherence to the law.
WHEREAS, it is hereby declared to be the policy of the State to ensure the protection and promotion of
intellectual property rights. The unregulated dealings with certain devices, in various forms has become
inimical to economic growth and public interest. There is a need to address acts, which contribute to the
illegal activities. Towards this end, the State shall institute the means to regulate these activities.
WHEREAS, the Congress, in the interest of justice, public order and the rule of law, and the need to
rationalize and harmonize the penal sanctions for these violations, finds compelling reasons to impose the
penalties for complicity accordingly;
Now, therefore,
Section 1. There shall be inserted in Chapter I, of the Intellectual Property Code
Section 171.4-A, which provides
Sec. 171.4-A. Technological Protection Measure
Sec. 171.4-A.1 Technological Protection Measure, as used in this Code, shall be any technology, device or
component which controls access to a protected work, or protects any copyrighted work from being
copied, reproduced or being used.
Sec. 171.4-A.2 Circumvention, as used in this Code, shall be any act which is done in order to work
around, bypass or defeat any technological protection measure as above defined. This term shall include,
but not limited to, modding, or modification.
Section 2. There shall be inserted in Chapter XVII, Part IV, of the Intellectual Property Code, Section 217-A
which provides:
Sec. 217-A. Criminal Penalties for Certain Activities
217-A.1. Any person who circumvents any type technological protection measures in video games with the
use of a device or process shall be guilty of copyright infringement and shall be punishable by the
provisions of Section 217.

217-A.2. Any person, natural or juridical, who knowingly employs the person in the preceding subsection,
or abets or aids in the circumventing activity shall be guilty of copyright infringement and shall be
punishable by the provisions of Section 217. Provided, that if the offender is a juridical person, the penalty
of imprisonment shall be imposed upon the directors, officers, and other persons in the company who
have actual or constructive knowledge of the activities and who exercise direct control over the person
performing the above act. Provided further, that the liability of the individuals shall cease upon showing
despite a previous express directive not to undertake such activities the person in the preceding
subsection still performed the act defined therein. Provided finally, that the juridical entity will be liable for
the fine provided in section 217, upon conviction of its directors and/or other officers.
217-A.3 Any person, natural or juridical, who knowingly provides, gives, or hands over, in whatever
manner, the device upon which the acts in Section 217-A.1 are performed, shall be punished according to
section 217-A.4 Provided, that if the offender is a juridical person, the penalty of imprisonment shall be
imposed upon the directors, officers, and other persons in the company who have actual or constructive
knowledge of the activities and who exercise direct control over the person performing the above act.
Provided further, that the liability of the individuals shall cease upon showing despite a previous express
directive not to undertake such activities the person in the subsection 217-A.1 still performed the act
defined therein. Provided further, that the juridical entity will be liable for the fine provided in section 217,
upon conviction of its directors and/or other officers. Provided further, that if the offender under this
subsection is the distributor of such products in the country, knowledge is presumed, and the liability shall
cease, only upon showing a certification to the effect that upon proper investigation the acts were done
clandestinely or that it has ceased to transact with such prior to the institution of the criminal action.
217-A.4. Any person who shall found guilty as herein provided as shall be liable accordingly for:
(a) Imprisonment of one (6) months to one (1) year plus a fine ranging from thirty-five thousand pesos
(P35,000) to one hundred thousand pesos (P100,000) for the first and second offenses
(b) Imprisonment of one (1) year and one day to three (4) years plus a fine ranging from one hundred
thousand pesos (P100,000) to two hundred seventy-five thousand pesos (P275,000) for the third and
fourth offenses.
(c) Imprisonment of three (4) years and one (1) day to six (7) years plus a fine ranging from two hundred
seventy-five thousand pesos (P275,000) to one million pesos (P100,000,000) for the fifth and sixth
offenses.
(d) Imprisonment of six (7) years and one (1) day to nine (12) years plus a fine ranging from one million
pesos (P1,000,000) to two million five hundred thousand pesos (P2,500,000) for the seventh and
subsequent offenses.
Section 3. Separability Clause. - If, for any reason, any provision of this Act is declared invalid or
unconstitutional, the other sections or provisions not so declared shall remain in full force and effect.
Section 4. Effectivity - This Act shall take effect thirty (30) days after its publication in the Official Gazette or
in at least two (2) newspapers of general circulation.
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