Apple contributing to music piracy

otolaryngologists (ear doctors). Seriously though, if the source for iPods is scarce,
nay, non-existent in this country, a resort to unsavory means is inevitable.

Indirectly, Apple is contributing to music piracy in the Philippines. How so? Read on.
First of all, I must applaud Apple for creating one of the worlds greatest innovations.
The design and simplicity of the iPod makes it easy for everyone from 4 to 80 to use.
But innovativeness in their proprietary thinking has led to selfishness which has led to
music piracy. Did I make it more confusing? Bear with me please.

But we should not blame the buyers of iPods. I dare say that Apple should make
iTunes accessible to Filipinos. I am sure that after reading this blog, I would have
converted a four year old and an 80 year old to stop pirating music. If the source of
our music is easily reached and affordable, we will have more new songs to
appreciate (just no more NKOTB, please.) More new songs, more new iPods.

As every iPod owner will know, the only way to load songs to the little white machine
is through a music library in iTunes. Well, ok, I forgot the little white cable. The
capacity of these iPods range from the mundane 1GB to the monstrous 160GB. Its
not just music, you can now load pictures and full length movies. Again, the latter has
to be in the iPod proprietary format. Am I boring you now, dont worry, the next
paragraph is the core of the article.

So, Apple, make iTunes for the Philippines possible!

Where do the owners of these iPods get their songs and movies? From itunes.com?
Think again. There is no iTunes for the Philippines! That means that no one with a
Philippine based credit card can purchase a song for 42 pesos (99 cents). Most
people (and you know who you are!) will load their iPods from tiangge type
establishments for 5 pesos song and 100 pesos per movie. If they wont load, they
will download the songs they want through utorrent or other illegal means. If not that
way, they will buy a 30 peso (is it still 30?) pirated CD and rip it to their iTunes. One
little sweet revenge is that they will have to type the song info one by one so that the
song title will register in their iPod.

Granting intellectual property rights to an author creates incentive to make more

creative works. By allowing the author to make money out of his creation and a
monopoly on the copying, a return on investment could be established. Without such
protection, free-riders would rein the imaginative output of artists and inventors. The
monopoly is balanced the limited duration of the protection. The control granted by
the current intellectual property laws will expire within a prescribed time.

I dont want to brag, but because of my legal practice, I stick to a non-pirated mode of
loading iPods. My newly tuned philosophy has redounded to my 12 year son. He
refuses to log on to the downloading websites despite the fact that we have had DSL
broadband for 2 years now. Secondly, we are at an impasse on how to convert
original DVDs to the iPod movie format (Any tips?). I had to thicken my face and ask
a friend of mine (actually client) to buy $50 worth of iTunes cards in the U.S.My son
still has $35 balance as of this writing.
With so many iPods out there, where are all the songs coming from? When was the
last time you bought an original music CD? I am sure there are only a handful of us
who still do. iPod has thickened both sides of the fence. Their popularity has renewed
interest in music. The more music is out there, the more business for

Reasons for Proctection

Intellectual property (in the U.S.) is fundamentally about incentives to invent and
create.1

There is some opposition to the control granted to intellectual property rights holders.
Some people prescribe to the theory that ideas should be shared for all to all to
benefit. If we regard the ideas we create as our property, then we should be able to
protect the same like we protect our own home. The Lockean natural rights theory
states that the labor of ones body and the work of ones hands are own by the actor.
Further, the theory also states that whatever is taken from nature by someone and is
mixed with his labor, it becomes his property.2
In todays world, everyone wants to make money. This instinct is what separates the
men from boys, the leaders from the followers. To economically benefit from the
ones own ideas is the fundamental principle in entrepreneurship. Our government
has sought to protect intellectual property through a series of laws amended over the
years to keep in tune with the current trends.

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If inventors, artists and businessmen (yes, even those guys) see that there can be
little or no return on their ideas, they will stop making them. We see the day when the
new songs cease, no new paintings or works of art are made, and no new inventions.
Just think, if have no intellectual property rights, we will still be stuck listening to
music with tape recorders and pressing endless buttons to skip or playback a song.
We would have to watch movies through reels of film in our own home. And worse,
start a car by turning a rotor with our bare hands.

Trademarks
This is an expression of an idea to mark goods or services in trade. It is attaching an
identity to a product or service. The ultimate purpose of trademarks is to identify the
origin of the product. Trademarks are also subject to government discretion as each
one has to be distinct from one another.

Ideas are protected

The bee has lost its sting

The bee has lost its sting.

Intellectual Property is a branch of law that hardly taught yet extensively exercised in
everyday business transactions. Everything around you has been the subject of IP
law whether in the past or in the present. Every soda you buy, every gadget you
purchase and every movie or television show you have seen is under IP law.

Our appellate court has dismissed a case against an alleged infringer accused of
using a hamburger name for a shoe brand minus one letter. According to the Inquirer
Article, the CA found that using a registered trademark for another merchandise in an
unrelated and totally non-competitive product is plausible.

There are three major branches of IP law: Copyrights, Patents and Trademarks. Each
is distinct but can be combined in a single product. I will briefly give a laymans
explanation to each branch.

As I have mentioned before in a previous blog entry, an arbitrary name such as what
the local hamburger chain has, should be afforded the strongest protection. The
uniqueness of ones brand name is highly sought after by companies. Name
recognition is a form of goodwill that cant be bought.

Copyright
Simply put, this is an expression of an idea in an artistic form. The popular examples
are songs, movies, and paintings. The core of copyright is the mode of expression
and the fixation in a medium. You can think of song or a great painting but unless it is
placed in a medium for people to see or feel, it can not be subject to copyright
protection. This is the branch that is the easiest to protect, has no discretion for the
government for protection and has the longest period of protection.
Patents
This is an expression of an idea or an improvement of an idea placed or manifested
in a useful article. The imperative ingredient in patent is that the idea has to have
utility. If the idea has no use whatsoever, then it might fall under copyright. This is the
hardest branch of intellectual property to qualify for because it involves discretion
upon the government body granting the patents. It is the hardest to obtain but
ironically, has the shortest span of protection.

In Philippines, we have made famous brand names as generics. Kodak and Colgate
have become synonymous with any camera and toothpaste respectively. Using that
culture trait, is quite advantageous here. Let me explain.
When we hear the phrase, Mag Kodakan tayo, it means its time for picture taking.
When a sari-sari store hears the question, Pabili ng Colgate, toothpaste is being
asked for. Any store clerk will inherently and without thinking will look for those
brands instead of cheaper alternatives. These brand names have been ingrained in
our instinct.
Now here comes the hamburger chain which started as an ice cream store in
Chinatown. After three decades, it is now a superbrand. The whole idea of trademark
is associating names or symbols to the origin of the goods or service. For example,
when we say Corolla, we dont think of Honda but of Toyota.
Going back to the hamburger chain, its brand name is a made up word that has
nothing to do with food (well, maybe honey). It has been in the country so long that it
has been recognized as a leader in the food industry. We know many brand names
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that neither describe nor indicate the service or the product it is named after. For
example, a coffee company named after a celestial male deer. In this country of ours,
mention that name, we all know its about the hamburgers.

Again, fortunately, in the Philippines, this type of trial is far from happening. Our
internet community is definitely part of the downloading society (come on, you know
who you are). So, if you have downloaded without permission, be glad that the
Record Industry Association America cannot sue you here.

In case this issue goes to appeal with the highest court of the land, we will finally
have some jurisprudence to settle the issue of trademark confusion.
You could have......
Let me tell you a story about a couple who had a long drive to attend a relatives
wedding. Not wanting to drive all night, they stopped a hotel before 10pm to rest.
Early next morning as they were checking out, the husband was surprised to see a
bill worth $400 for one nights stay. He immediately called for the manager. The latter
explained that the hotel was an establishment with 5 star facilities such as an Olympic
sized pool, 24 hour world class gym and sauna, 24 hour business center and 3
nightly broadway-type shows. The husband claimed that they just slept for the night
to rest. The manager claimed that the couple could have used those facilities
mentioned that is why the rate was so high. Frustrated, the husband wrote a check
for $50. Upon presentment of the check, the manager protested the low amount. The
husband then said You see, I have a beautiful wife and I am charging you $350 for
sleeping with her. But I did not! bawled the manager. In response, the husband
said, Ah, but you could have

I began this article on a funny note to prepare you on whats to come. Last year, the
Minnesota District Court (a Federal court as opposed to a state court), in Capitol
Records vs. Jammie Thomas convicted the defendant (a single mother) of distributing
24 songs from her computer. Ms. Thomas had a shared folder in her computer
which was open to users in the Kazaa Peer to Peer (P2P) network. A jury convicted
her of making available the songs for download. The ultimate fact in this case is that
NO ONE downloaded a song from her computer.

Fortunately, the judge in that case is reviewing whether his instruction to the jury that
making available as an element of infringement was valid. The copyright law
community has been shocked by this issue and is asking legal experts to take sides.

But this case and its current issue could have a chilling effect on the way record
company owners can sue grandmothers whose grandsons are using their lolas DSL
to connect to Kazaa. You could be convicted even though no actual transfer of files
occurred. What does this mean? To set an extreme example, you can be charged
with attempted murder of someone in your house because you have a gun in your
room. Because you could have shot that person!

The ruling in the U.S. follows an interpretation of an exclusive right of copyrighted

work. The particular section reads: to distribute copies or phonorecords of the
copyrighted work to the public by sale or other transfer of ownership, or be rental,
lease or lending. (17 U.S.C. 106). Our law reads slightly different, Sec. 177.3 of
R.A. 8293 (IP Code of the Philippines) states an exclusive right in the first public
distribution of the original and each copy of the work by sale or other forms of
transfer of ownership.

Violations of any law should be strictly construed, more so if such violation provides a
fine or criminal prosecution. By sale or other forms of transfer of ownership should
remain shut to the construction that there was an actual transfer. In the case of
Jammie Thomas, there was no such transfer, she just logged in and her shared
folder became accessible to the public.

I am sure you are going to tell me that my argument would mean that those stores in
the tiangge cant be caught if no one buys. But hold on, those stores are selling
obviously pirated material. Secondly, before any arrest can be made, there must be a
sale to break the law (a requirement before search and seizure). What you see on TV
are the raids to confiscate contraband. Third, there is no confusion as to the legality
of the items.

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Dont get me wrong, I am all for copyright protection and burning all those pirated
disks. But we should do it the right way. If we allow that what happened
in Minnesotahere, the slippery slope mentality would allow fortune tellers to charge
double because we could have asked more questions or husbands not bringing along
their beautiful wives.
Thursday, June 26, 2008
The genius of Philippine Trademarks
Filipinos ingenuity goes both ways. We can think of smart ideas but sometimes they
cross the line into infringement. But we can harness this genius in creating marks of
our own. To illustrate, there are 4 types of trademarks in terms listed in the order of
their strengths:
1) Arbitrary (made up, original) Ex. Exxon, Kodak
2) Suggestive (suggesting a product in the mind) Ex. Coppertone
3) Descriptive (trait emphasized) Ex. Quarter Pounder
4) Generic (natural inference). Ex. Mineral Water
Arbitrary trademarks bear no relationship to the products or services to which they
are applied. Suggestive trademarks imply some particular characteristics of the good
or service to which it applies and requires the consumer to exercise the imagination in
order to draw a conclusion as to the nature of the good or service. A descriptive term
identifies a characteristic or quality of the goods or services such as color, function,
dimensions or ingredients. They are can only be protected if they have acquired
secondary meaning in the minds of the consuming public. Lastly, generic terms are
names of a particular genus or class of which an individual article or service is but a
member.[1]
There are two cases which have recently caught the headlines. The word Ginebra
has been considered generic in a legal battle between two liquor companies. The
one who won sought to register and the losing company protested and sought to
protect its own mark and claim confusing similarity. The IPO claimed that the word
ginebra is generic and couldnt have obtained secondary meaning in favor of the

losing company. The standard in trademark disputes is that generic trademarks

cannot be subject of registration or subject to cancellation. Why then did the IPO
approve the trademark application if the word in question is generic? Think about it.
The other case is obviously a case of riding on the popularity of an arbitrary
name.Harvard University went after a clothing company using the school name for a
brand of jeans. This is clear cut. Trademark confusion creates a cause of action for
the owner of the mark because it will cause confusion as to the origin of the goods.
We all know that Harvard does not make jeans. If that be the case, I would go for
further studies at Levis University.
In summary, it is best to consult a legal professional before making product names
public. You wouldnt want to be caught drinking a strong colorless alcoholic beverage
without jeans.
Wednesday, June 25, 2008
Why you should NOT buy pirated CDs or DVDs
It may seem so easy for any of us to do such a thing. But when you realize that it is
more expensive to buy a hotdog at the place of honeyed burgers than it is buy a
silver disc of pirated material, it becomes an easier choice. But what is paramount is
that buying pirated material is a crime. Whether it is easy to do or cheap to buy, the
act is still criminal.
Taking aside the criminal aspect, the real reason for not buying pirated material is the
economic incentive that is lost. The reason why our government affords copyright
protection is to provide a security measure for a return on investment. All of us want
to earn money. Most of us are earning our daily bread by doing things we dont love.
But those who write the music and make the movies are doing exactly what they love
to do.
Making music and movies takes money. These artists, if you are willing to call them
that, put up money up front for the costs of making their work. One album could cost
easily six figures to make and that just the recording studio. Movies are a whole other
ball game. It is not uncommon for an action movie from a major U.S. studio to run a
figure of more than 100 million.
The only way for them to see that money come back is for us, the economic power
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that we are, to buy their products legitimately. When you buy pirated material, you
give money to scrupulous men who dont know how to make movies or write music.
The wrong people are making money.
If the money comes back to the artists, they will in turn make more music and more
movies for us to enjoy. Come on, we all love to hear our music and see our movies.
But when there are no more new ones, we will be stuck with watching Conan, the
Barbarian over and over again.
You might argue that these creative minds are making too much money such as J.K.
Rowling who is now a billionaire. But that argument doesnt hold water when you buy
your cell phone load. Do you see anyone complaining when the Ayalas are raking it
in or when MVP is upping his monthly per diem.
If we had a choice, we wouldnt want to buy fake burgers or fake sodas. Why should
you settle for less when it comes to music or movies?
Thursday, August 2, 2012

Trademark Law

You now may file an international trademark registration application for 85 countries
right here in the Philippines. The Intellectual Property Office of the Philippines
(IPOPHIL) as of July 25, 2012 is part of the Madrid Protocol. This is an international
registration system under World Intellectual Property Organization (WIPO) wherein
one single trademark application can be filed for several countries such as the U.S.,
European Union, China, Japan and even North Korea.

The undersigned is one many legal professionals that attended the Madrid Protocol
Training conducted by the IPOPHIL. See official LIST.

Thrilla is San Jose

In what sure is to be the trial of the century for intellectual property law, Apple and
Samsung are fighting over the touch screen tablet. Whoever wins get to rename the
next iPhone or Galaxy. SeeLINK

I wonder what Madonna has to say about this..

Richard Branson, the billionaire owner of many Virgin brands has filed a lawsuit
against a clothing denim line claiming rights over the Virgin name. I shall not say
more. See LINK

They must rolling in their graves

The great grandsons of the Gucci founder have been barred by the same company
from using their surname in competing products. Does anyone know if Louis Vuitton
have any grandchildren? SeeLINK
Legal Updates for June 29, 2012
A compromise gone wild
The shoe war is about to get bloody. The hunter now becomes the hunted. Never
trust your enemy. Ok, enough of the clichs. The United States Supreme Court has
created a twist in the manner how trademark infringement lawsuits can prosper.
In the original case of Nike v. Already (U.S. Supreme Court Order 11-982 June 25,
2012), the former filed trademark infringement claims against the latter for the dilution
of a registered trademark. Before the case went any further, or before it actually got
to a full-blown trial, Nikegave a Covenant Not to Sue and asked the District Court
(Federal Court) to dismiss the lawsuit.Nike, in short filed an affidavit of desistance
and proclaimed that they were longer interested in suing Already. Nike filed a Motion
to Dismiss for its own lawsuit. Seems open and shut, right? Well, the proceedings did
not end here.

Latest News from the Web

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As a matter of defense, an alleged infringer through a compulsory counterclaim may

opt to attack the validity of the plaintiffs registered trademark. This is to bank on the
idea that the trademark that is alleged to have been infringed wasnt valid from the
beginning. Crushing the leg it was standing on, so to speak. Already claimed (through
smart lawyering or actually using a parallel courts jurisprudence) that a plaintiffs
motion to dismiss its own infringement claims against an alleged trademark infringer
does not take away the power of the court to hear the defendants counterclaim of
(in)validity of the trademark.
Hard to swallow? Well here is the spoonful of sugar. A claim of infringement
presupposes a registered trademark. If that trademark is rendered invalid, the claim
of infringement is rendered moot. Here, Nike sort of said, Ok, we wont sue you
anymore, water under the bridge, eh?.Already replied, Well, thank you. But we still
think your trademark is wrong.
Already wanted its counterclaim (dressed as a defense) to prosper despite Nikes
decision to drop its lawsuit. Without going to legalese, the United States Supreme
Court agreed with Already andNike has gone from attacking to defending. The tables
were turned. (You thought no more clichs, right?).
This could prove to be an interesting development in the intellectual property litigation
paradigm. Could it be a slippery slope? Obviously, legal strategies have to be more
fine tuned now as any back up plans for an alleged infringer are strengthened
because of this decision. The moment of filing a lawsuit is actually the new point of
no return (I promise, that is the last clich).
Monday, May 28, 2012
Intellectual Property Law Updates May 28, 2012
Trademark Law

Even prior registered local trademarks under R.A. 166 (old trademark law),
which allowed squatting Philippine trademarks (Shangri-La case) to prevail over
international trademarks can now be cancelled.

Trademarks registered under R.A. 166 shall be deemed to have been

registered under R.A. 8293 (IP Code of 1998). This means that all the requisites
and/or provisions not present in R.A. 166 but present in R.A. 8293 can be invoked for
cancellation.

Even international trademarks not registered in the Philippines have

protection under the Paris Convention (IP Treaty)
Latest News from the Web

This is it! And you thought this would never happen

Competing porn sites are now suing for infringement. I dare not say anymore. Site for
online article HERE.

The Gs have it.

Gucci has won a trademark infringement case over Guess. There are not enough
Gs to share in this world. Site for online article HERE.

Downloading illegally or file sharing is still BAD!

The United States Supreme Court refused to hear an appeal by a former Boston
University student (represented by a Harvard Law Professor) who is set to pay
$675,000 (30 songs @$22.5K each) in damages for using Kazaa. Let this be a
lesson to all of you. Site for online article HERE.

Latest jurisprudence
Fredco Manufacturing Corp. vs. Harvard University, Cambridge, G.R. No. 185917,
June 1, 2011

Google can keep their Android

Harvard Jeans Case

Google partially won against Oracle after the later sued the former on patent
infringement. Oracle claims that the Andriod system is based on the Java technology
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which was bought by Oracle. 300 million smartphones cant be wrong. Site for online
article HERE.

TV really isnt free

Just because your name is John Doe and you downloaded the latest Hustler video
doesnt entitle you to be joined as defendant in common with other porn
connoisseurs. http://bit.ly/gypBnA
Pick up line in a song cant be used by a woman

An online service that sends FREE tv signal to subscribers over the internet is being
sued for ILLEGAL FREE PUBLIC PERFORMANCE. Yes, I didnt know that ILLEGAL
and FREE can be used in the same sentence. Site for online article HERE

Britney Spears (she is back somehow) is being sued by a couple of cowboys from
Nashville. The cowboys claim that the former teenager pop star used their song title
without permission.http://bit.ly/fjkKXL

IP Updates March 1, 2011

Being single is exclusive for Facebook

Trademark Law

In an effort to monopolize your relationship status, Facebook is trying to cancel three

U.S. patents on human relationships registering system. http://bit.ly/gTK8GU

Latest jurisprudence
E.Y Industrial Sales, Inc. v. Shen Dar Electricity and Machinery, G.R. No. 184850,
October 20, 2010

A registered trademark owners certificate of registration may be cancelled

even that trademark owner is the complainant in a petition for cancellation of an
adverse trademark. You can fall on your sword, so to speak.

A Declaration of Actual Use (requirement for trademark registration)

although notorized, hence a public document, must be accompanied by proof of
actual use as of the date claimed. The trademark owner must, therefore, present
evidence of such actual use.

An earlier valid trademark registration may still be cancelled upon proof of

prior and continuous use by rival trademark applicant.

Evidence of prior and continuous use of the mark or trade name by another
can overcome the presumptive ownership of the registrant and may very well entitle
the former to be declared owner in an appropriate case. When the applicant is not the
owner of the trademark being applied for, he has no right to apply for registration of
the same

You can sue without your pants on!

The famous Naked Cowboy of New York is suing CBS because a soap opera has
used a likeness in a scene in one episode. http://bit.ly/fc6rVx
Anyone can use Betty Boop now!
The family of the creator of the Betty Boop character has lost its standing to sue any
alleged infringement. Lesson learned: Document all transfers and licenses.
February 17, 2011 Updates
Trademark Law
Trademark protection is virtually perpetual in the sense that the registration can be
renewed every ten (10) years.
Sec. 146. Renewal

Latest News from the Web

146.1. A certificate of registration may be renewed for periods of ten (10) years at its
expiration upon payment of the prescribed fee and upon filing of a request.

Hopefully, you were not on the list

Latest News from the Web

When there is a Will, there is a TRO
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The nasty fight between Willie Revillame and ABS-CBN got nastier when the losing
network resorted to the judicial personalities. CLICK HERE
Copyright trolling maybe good business
There is a hidden practice of some scrupulous men of buying up copyrights of nave
owners and then suing those that use the work. Much like a user car salesman taking
credit for a new car sale.CLICK HERE
Sony vs. LG. This isnt a price war
The market for smart phones has led the mega companies to duke it out in the U.S.
courts. They are trying to pick up the scraps left by the company named after a
fruit. CLICK HERE
Four stripes and you are out!
A fourth stripe on a shoe was concluded to possible confuse the Italians between
Adidas and the other brand. But what about the 5 stripe Kwiss? CLICK HERE
Ford beat Ferrari in F1!
The F really is worth a lot of money these days. While our censor prevent us from
using F on air, Ford Motor Company has forced Ferarri in rethink on how they use
the F.
Wednesday, July 3, 2013
Four easy ways to protect your work
Your creation is from your blood, sweat and tears. You toiled over countless moments
to seek perfection as you perceive it to be. You want others to enjoy but not to make
money at your expense. Below are four simple ways to protect your work.
1. Invoke your right
If you want everyone to know that a particular literary or artistic work is yours, how do
you do it? Its the all important symbol. Its send a notice to the
reader/viewer/internet troll that such work has a semblance of protection. It may serve
as a warning to others not to use or borrow without your consent.

2. One Moment in Time

Stop singing! Seriously, protection for your work starts from the moment of creation.
So, you have to prove that one moment in time (ok, now you are humming). Have
some method of documenting that moment of creation. In this social media age, it will
not be hard to do.

3. Deposit with the National Library

Although such action is not a conclusive proof of ownership, a certificate of deposit
from the National Library of the work you registered with them has a government
stamp. That counts for something in case a dispute arises. Again, it is not conclusive
as it is almost a rubber stamp act by the government agency. Sadly, your deposit
does not earn any interest whatsoever.
4. Watermarking
Pretend you are painter and sign your name on the bottom left corner. Although not
done literally, placing a visible mark of authorship is an effective deterrent for would
be downloaders. Such mark should discreet enough so as not to spoil the artistic
quality.
All these steps cannot guarantee that your work will be not infringed. There are
several exemptions to infringement under the law and they may vary country to
country. Infringers are getting smarter every day. For every step you make, they'll be
watching you. (Again, stop with the singing!)
Thursday, June 27, 2013
Can I pay you not to sing?
You heard it sung many times while enjoying your sumptuous meal. Suddenly, there
is a bad taste in your mouth when the clapping clings and tambourine clangs. Unless,
of course, it is your natal day or someone in your table. Then you will sing along and
even take pictures. Just hope I am not in the next table.

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The hot news in the world of copyright is the push for the elimination of the copyright
protection of the song Happy Birthday. While the lawsuit in the U.S. Federal Court
System is quite complicated to read, I will try to simplify it.
How long is copyright protection?
According to Sec. 213 of the IP Code of the Philippines, any work that is copyrighted
is protected for 50 years after the death of the CREATOR. Seems long, eh? Well, if
you want to know the reason why the lawmakers made it that way, take my class.
When was Happy Birthday made?
According to the complaint, the song was originally composed as Good Morning to
All by the school teacher sisters Patty and Mildred Smith BACK in the 19th century.
Eventually, Warner/Chappell got ownership of the rights to the song and has been
collecting royalties every year (pun intended).

Conclusion
If this lawsuit does get dismissed, we will soon have birthday song police roaming
around every Saturday and Sunday afternoon looking for evidence of cake, candles
and balloons. Well, not really. It is never going to happen. Warner/Chappell will not
after small things like that. I believe that law abiding movie and TV producers are
paying the former well enough so that there will be no Birthday Police Academy
Movies.
Thursday, October 4, 2012
The Wisdom of the Cybercrime Law (RA 10175)
The three wise monkeys, Mizaru, (sees no evil), Kikazaru, (hears no evil)
and Iwazaru (speaks no evil) have decided to add a fourth member when they come
to perform in the Philippines, Noliberu(types in computer keyboard no evil).

How much does one have to pay?

If you have a private birthday party (shame on you for not inviting me), you can sing it
all you want up until the neighbors start complaining. The law allows private
performances within a circle of family and friends. But if you want it in a movie or a
television show, expect to pay between $5,000 and $30,000. Warner collects about
$2 Million per year from that song alone. Birthday parties are part of the employee
benefits package at Warner/Chappell (just kidding).

Why I use monkeys as a reference is because we might become the funniest country
in the world with regard to free speech next to North Korea (which has no internet).
The passage of the Cybercrime Prevention Act (R.A. 10175) has garnered the most
profile picture changes since 2010 (when the San Francisco Giants won the World
Series). For one, I pity those who live in the corner of 5th Ave and East 44th Street in
New York. Our infamous law is also their zip code.

Expiration Date

Most laws have good intentions and then some laws should have never been passed.
My view is that the Cybercrime Law is needed for actual crimes committed while
using the computer such as hacking or child pornography. Also, I applaud the Cyber
squatting provision. Intellectual Property stakeholders can now sleep a little easier
knowing my country took a step in the right direction.

Warner/Chappell claims that the copyright to Happy Birthday will last until 2030.
There is a particular provision under US law that allows a 95 year protection of songs.
If you calculated correctly, that means that the song was copyrighted in 1935.
Warner/Chappell is claiming that the Smith sisters didnt actually write the song. What
Warner claims as theirs is a piano arrangement of the tune (but not the lyrics)
copyrighted in 1935. Mildred Hill died in 1916 Patty Smith Hill died in 1946. Under US
law, any songs created ONLY after 1923 have that near century shield. This is a
dilemma that the US courts must address.

Where the fork in the road bent the wrong way is in the inclusion of a libel provision.
Admissions by both sides of the legislature claim that the free speech derailment
wasnt in the original version. It was inserted in the bicameral conference
committee hearings. While there are at least eight (8) petitions against the law filed in
the Supreme Court (as of this posting), I will try to analyze the law in my most obvious
and overt humble way.
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There are two more things wrong with the law on the libel inclusion.
First, the soon to be famous Section 4 (c) (4) of the law just includes libel in a copy
and paste format. Read here:
(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any
other similar means which may be devised in the future.
This insertion is both vague and contradictory. It is vague because Article 355 of the
Revised Penal Code DOES NOT define libel. The aforesaid provision only LISTS the
prohibited acts of Libel by WRITING. It is contradictory because most those acts
listed in Article 355 CANNOT be performed THROUGH a computer system. Here are
the acts as listed in Article 355:
1.

Writing;

2.

Printing;

3.

Lithography;

4.

Engraving;

5.

Radio;

6.

Photograph;

7.

Painting;

8.

Theatrical exhibition;

9.

Cinematographic exhibition; or

10.

Any similar means.

In criminal law, statutory and constitutional construction demand that all penal laws
should be construed in favor of the accused. Also, when a penal law enumerates a
list, anything NOT in the list is really NOT in the list. To side with a devils advocate,
the Cybercrime Act probably expanded the Any similar means. But I believe nothing
in that list is similar to the Internet.

The Cybercrime law INCREASED (Section 6) the penalty of Libel as defined in the
Revised Penal Code by one degree. Since 1932, the punishment that can be
imposed for a conviction of libel isPrision Correcctional in its minimum to medium
period. Translated (here is where my meter starts running), possible imprisonment is
a minimum of six (6) months to a maximum of four (4) years and two (2) months.
Raising it to one degree higher means that the imprisonment is now Prision Mayor in
its minimum and medium period. Translated again (tick, tock), the new jail time is a
minimum of SIX (6) years to a maximum of TEN (10) years. Look at it this way, the
old maximum time is now SHORTER than the new minimum time (four years, 2
months versus six years). That means, if you call me a lousy lawyer, I can have you
jailed for at least a full senatorial term. But there has been no change in the fines. Its
still a maximum of 6,000 pesos (a full tank of a Senators Ford Expedition).
On a more legalese side, libel as a cybercrime has now become mala prohibita.
Simply put, (tick, tock), it means libel is now a crime under a special law. If libel, in its
original form, is committed under the provisions of the Revised Penal Code, the crime
is mala in se. The latter form allows a defense of lack of criminal intent. Cybercrime
libel denies that type of defense. Thus, intent or motive is not an element. Any good
intention on a sharp criticism cannot be given as a excuse when that critique will be
deemed defamatory by the offended party.
On the issue of Sharing or Retweeting, we all have something to fear. Under
Article 360 of the Revised Penal Code, any person who shall publish, exhibit, or
cause the publication or exhibition of any defamation in writing or by similar means,
shall be responsible for the same. The law may be twisted to include the
aforementioned acts as the same as if you did the posting in the first place. Sharing
and retweeting republishes or re-exhibits the same allegedly defamatory remark. The
Sharerer or Retweeter is in the same cabin (boat is so old fashioned) as the
original poster and will receive the same punishment if charged together with the
original poster.
For the issues on Like or the Favorite, I submit that doing these acts in Facebook
and Twitter respectively, are NOT punishable under the Cybercrime Law. For more
information, please pay my standard hourly fee with a three hour minimum.
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Just kidding Liking a post in Facebook or marking a tweet as a favorite is NOT an

act listed in Article 355. A mouse click on for a thumbs up sign is definitely NOT
writing and neither any of the other acts listed many paragraphs above. Again, if the
law does not list the act as a crime, it cannot be punished as a crime.

ownership by the blogger of the material taken from the blog. So, a denial of the
copy and paste scenario cannot lie (pun not intended).

I will now watch V for Vendetta for inspiration on how to protest this new law, and
also Escape to Victory for training and escape strategies if caught.

So, we have plagiarism as a non-offense and public domain as exemptions invoked.

Public domain in the strict legal sense denotes that the copyright of a work has
ceased. As copyright is a private right, protection cannot be lost except by either
waiver or by the expiration of the term of protection. Under Philippine law, the term of
protection lasts until the lifetime of the author/creator of the work PLUS fifty (50)
years. In the U.S., its longer, up to 75 years. Epilogue interviews with the offended
blogger categorically stated that she has never waived any of her rights. Obviously,
the other manner has not occurred yet.

Thursday, August 23, 2012

Plagiarism by the Government
A television host turned Senator campaigning for a religious cause created a lot of
uproar when his privilege speech was alleged to have been tainted with plagiarism.
The accusations have become moot as the Senator and his chief of staff admitted to
the academic faux pas. The legal assistant of the Senator blasted the public and the
blogging media by stating whatever is in the Internet is now public domain. While
the spirit behind the speech is noteworthy, this blog article shall only focus on the
issues of plagiarism and public domain.

At the crux of this brouhaha is intellectual property, more particularly on copyright.

This branch of intellectual property is the easiest to create in terms of form and
subject matter, the longest in the scope of protection and hardest to litigate. Thus, it is
most infringed of all intellectual property rights.

Affirmative Defenses
Lets argue in reverse. The defendant here is claiming the defenses of public domain
and that plagiarism is not stated specifically in the law (RA 8293, Intellectual Property
Code of the Philippines). The danger of using these defenses is that both become
affirmative defenses. In affirmative defenses, the accused here admits to the facts of
the crime but excuses himself with the available limitations/exemptions under the
law. Egro, the Senator through his Chief of Staff admits to the copyright and

Public Domain

Reproduction
Is plagiarism a violation of the Intellectual Property Code? I submit it is (technically).
Under Section 177.1 of the IP Code of the Philippines, one of the economic rights
that may be infringed is the right of reproduction (ironic, isnt it?) with a qualification
that it should be the whole work or a substantial portion. If that doesnt fit in, the
legislature saw it fit to add Section 177.7 (Other communication to the public of the
work). The all inclusive other communication was supposed to fill in the gaps or to
be progressive in the law. Therefore, plagiarism is a violation of the copyright law.

Takedown
Is anything posted in the Internet public domain? We all know that it is not. I am sure
that most of you have seen a video or music taken down by either Facebook or
YouTube. Suffice it to say, these companies respect and follow the law on copyright.
Of course, the abovementioned companies do not check each and every work that is
uploaded. There must be a notice of takedown by the copyright owner (I have done
this before with great success). There have been many (noteworthy and notorious)
cases filed by the Recording Industry Association of America on illegal downloading
of copyrighted material.

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Copyright in Government
Now that we have shot down both affirmative defenses, only one is left. The staff of
the Senator likewise claimed that the Government is exempt from committing
copyright infringement. Perhaps, there has been a misreading of the law. Section 176
of the IP Code states that NO copyright shall subsist in any work of the Government
of the Philippines. It doesnt state no copyright infringement, just no copyright. Which
means, we can all plagiarise any speech by a Senator acting in official duties, such
as a privilege speech.

Constitutional Immunity
Now for the truly sad part, even if we can prove plagiarism was committed (admitted),
the Senator and his staff will get off the hook. First, it was a privilege speech. In the
1987 Constitution, under Section 11 of Article VI, no member of Congress (sic) shall
be questioned nor be held liable in any other place for any speech or debate in the
Congress or in any committee thereof. Since the reproduction or other
communication of the work was performed by a member of the Senate, there can be
no infringement claim against any of the staff.

Plagiarism is an evil species of copyright infringement that can only be curtailed by

legislation (unless you are still in college, where expulsion is the penalty). But if our
law making branch of the government execute this intellectually heinous act
themselves, do you think they will amend the law?

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