SB No.

2109: Philippine Online Infringement Act

(Affirmative)

Philippine Online Infringement Act:

Putting an End to Copycats

By: Arnold V. De Castro

“The copyright bargain: a balance between protection for the artist and rights for the consumer.”
-Robin Gross

The Outset

Technology plays an imperative role in the enhancement of our hasty civilization. It gives us
the expertness in our daily fracas in this extraordinary cycle called life. In fact, one of the
contributions of technology is the internet which is the network where different sites may be
accessed to acquire and/or convey data, recordings, files, etc. In connection with this, one
significant role of the internet is that it serves as the ground where the artistic and literary works of
talented and passionate individuals may be exhibited to the point that said works may be conveyed,
uploaded and downloaded. However, the controversy arises when the balance between the
protection of these works and the artists themselves on one hand, and the rights to fair use by the
consumer on the other hand, cannot be achieved. This conflict is primarily caused by the consumer’s
abuse of their right to utilize the said works of art.

Philippine Arena

It was year 2014, when the Philippine Association of Recording Industry (PARI) scored a
win against piracy when it shut down Kickass Torrents (KAT.ph), a torrent site that hosts illegal
music downloads1. But only after a few weeks, the illegal downloading site was back to business,
using another domain and name2. These prolific pirates simply changed their domain to that of
another country - to .to for Tonga or .so for Somalia3. Since the Philippine IPO had no jurisdiction
over these countries’ domain registrars, it could not further disrupt the same4. According to PARI
President Marivic Benedicto, the problem of illegal downloading has proven more difficult and
complicated to police5.

1 Phoebe Magdirila, “With new Cybercrime Law in place, Filipinos could face jail time for piracy.”
Techinasia.com. n.p. March 5, 2014. Accessed December 20, 2018. Available from
<https://www.techinasia.com/cybercrime-law-place-filipinos-face-jail-time-piracy>.
2 Ibid.
3 Ibid.
4 Mary Jean Castillo, “The Conflict on CyberSpace.” Federislaw.com. n.p. March 5, 2015. Accessed

December 20, 2018. Available from <http://www.federislaw.com.ph/faqs-resources/copyright/>.

5 Patricia Esteves, “Fight vs illegal downloading continues.” Philstar.com. n.p. June 9, 2014. Accessed

December 20, 2018. Available from <https://www.philstar.com/entertainment/2014/06/09/1332610/fight-

vs-illegal-downloading-continues/>.
 Also, the Philippines is, unfortunately, one of the countries described by Internet pirates as
“safe” for uploading, downloading, linking, torrenting, and stream infringing content without fear of
prosecution. The Philippines continues to be a haven for cyber criminals who illegally make content
available on the internet6.

The Main Conflict

As of today, there is no provision in the Anti-Piracy Law that includes illegal downloading as a
violation. Filipinos have truly kept up with the changing times. Prior to the enactment of the same,
the Filipino people have this practice of going to Quiapo or Greenhills to buy pirated CDs 7 .
Nevertheless, at present, the people come to know the convenience of downloading movies and
music from the Internet.

The Mandate of the State

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 products8. 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 Republic Act
No. 8293, otherwise known as the “Intellectual Property Code”.

This intellectual property system must constantly improve and evolve so as to meet the
rapidly changing landscape of the internet9. It is the obligation of the State to protect the woks of
Filipino artists. Indeed this could be done through an enactment of legislation which will enable
Filipino artists to stop online piracy.

The Bill’s Backbone

I. The Bill allows the copyright owner, or an exclusive licensee to file an application to
the Intellectual Property Office (IPO) to require internet service providers (ISPs) to take reasonable
steps to disable access to an infringing online location. Online location refers to any collection of
elated web pages accessible by a user through a domain internet protocol (IP) address o uniform
resource locator (URL)10;

6 Faye Orellana, “Court decision vs Chinese firm ‘provides model for copyright infringement.”
Philstar.com. n.p. June 25, 2014. Accessed December 20, 2018. Available from
<https://newsinfo.inquirer.net/951160/court-decision-vs-chinese-firm-provides-model-for-copyright
infringement>.
7 Leo Cruz, “Computer firm accused of copyright infringement over ad photo.”
Technologyinquirer.com. n.p. December 2, 2016. Accessed December 21, 2018. Available from
<https://technology.inquirer.net/56346/computer-firm-accused-of-copyright-infringement-over-ad-photo>.
8 Sec.2, R.A. 8293.
9 Ernesto Salao, Essentials of Intellectual Property Law, (Manila: Rex Printing Company, Inc., 2012.
10 Sec. 4, S.B. 2109.
 II. The IPO shall have the duty to review the said application and determine whether
the online location meets the requirements for application11;

III. In case the Committee, that will be created, agrees with the IPO report and its
findings, the Committee shall send Notice of Approval back to the IPO. Nevertheless, even if the
requirements are not met, the IPO shall keep a watch list of all online locations for which there has
been an application12;

IV. Upon receipt of the Order enjoining them to block a website, ISPs may submit a
response to the IPO setting the grounds for such objection13;

V. The IPO shall have the power to make recommendations to the Commission to
cancel the license of an ISP that refuses to comply with the Order from IPO14;

VI. The Commission shall schedule a hearing to investigate the alleged violations of the
ISP, and if the recommendation of the IPO to cancel the license of the ISP is proper and
meritorious, the Commission shall facilitate the prompt cancellation of the license of the ISP15.

Constitutionality of the Bill

The bill may pass the test of constitutionality as it adheres to the mandate of the supreme
law and it does not in any way desecrate any right protected by the same. This argument is
supported by two points, to wit:

A. Cancellation of license is not tantamount to deprivation of a property right.

The bulk of jurisprudence is that a license authorizing a person to enjoy a certain

privilege is neither a property nor property right. In Tan vs. The Director of Forestry16, the Supreme
Court ruled that "a license is merely a permit or privilege to do what otherwise would be unlawful,
and is not a contract between the authority granting it and the person to whom it is granted; neither
is it property or a property right, nor does it create a vested right."

In a more emphatic pronouncement, we held in Oposa vs. Factoran, Jr.,17 the Supreme
Court enunciated that all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protected by the due process clause of the Constitution."

11 Sec. 5, S.B. 2109.

12 Sec. 6, S.B. 2109.
13 Sec. 8, S.B. 2109.
14 Sec. 11, S.B. 2109.
15 Sec. 13, S.B. 2109.
16 Tan vs. The Director of Forestry, G.R. No. L- 24548 October 27, 1983.
17 Oposa vs. Factoran, Jr., G.R. No. 101083 July 30, 1993.
 All told, the State, through the enactment of a law and in accordance with the
doctrine of parens patriae, is not with tied hands to impose certain measures in order to suppress
the violation of property rights of the artists.

B. Due Process is afforded to the entity subject of deprivation.

Indeed, the Supreme Court elucidated that the essence of due process is the act by
the State of giving to the person who may be subject of deprivation, a sense of rational
participation in a decision that may affect his destiny18.

It is crystal clear by virtue of Section 8 of said Bill, that due process is afforded to
those ISPs that want to object to the order of the IPO. Also, under Section 11 thereof, ISPs are
given the opportunity to submit written explanation in case when the former are not able to comply
with the said order.

Conclusion

With these premises, it is a logical conclusion that no defect has been suffered by the said
Bill. The reason of the said bill is noble and it calls for its urgent passage so that protection can be
afforded in the most practicable way. Coupled with the effective implementation of the said
supposed law, copyright will indeed be preserved and the artistic and literary works will be
promoted.

18 Saunar vs. Executive Secretary, G.R. No. 186502, December 13, 2017.