Finally! After several years of fighting tooth and nail before the Legislative Branch in setting forth the proposed amendments to the Republic Act No. 8293, known as the Intellectual Property Code of the Philippines (IP Code), and tackling constructive critique towards the initiative, March 22, 2013 marked the dawning of a new day to all the lobbyists, supporters, stakeholders, persons-in-interest and the Intellectual Property Office of the Philippines (IPOPHL) in general, as the newly signed Act takes effect and is now expressed under Republic Act No. 10372, an Act Amending Certain Provisions of Republic Act No. 8293, otherwise known as the “Intellectual Property Code of the Philippines”. Two years ago, I recall having the opportunity to attend one of the many public consultations initiated by IPOPHL, wherein they invited the Law Professors and representatives from Korea to talk about their Copyright Law, its major features and their best practices in the field. During the activity, the participants underwent a workshop to discuss matters of interest which serve as potential areas to consider for amendments to the then Copyright Law. Lo and behold! The sweet efforts of those consultations have come to fruition.
According to this new Act, the IPOPHL is tasked within 180 days from its effective date to promulgate the rules and regulations necessary to effectively implement the law.
Pending the drafting of these rules and regulations, I would like to share noteworthy amendments which I learned from Atty. Louie Calvario, Attorney VI of the IPOPHL-Office of the Director General, when he articulated the new IP Code amendments during the IP Rights Committee Meeting conducted by AmCham Philippines held on April 22, 2013.
One of these amendments is the requirement for the Collective Management Organizations (CMO) to secure an Accreditation from the IPOPHL. Back then, the CMO is conceptualized to address the difficulty and impracticability of collecting royalties and in ensuring full protection of the copyright holders when these activities are done individually. The copyright holders need to designate a group of artists, writers, composers, and other right-holders who takes care of all the minute details concerning protection of their rights. Thus, a group which collectively manage their economic or moral rights on their behalf. Clearly, both the owners of the copyright and other related rights, on one hand, and the users of these copyrighted materials, on the other hand, clamor for a “link” to bridge the gap between the two. Hence, the key role of a CMO is to act for and on behalf of its members who are owners of the copyright and those of related rights as well. Depending on the kind of CMO one belongs to, however in general, the CMO sets to negotiate the rates and the terms of the use of the copyrighted material; to issue licenses in the use of these materials; to collect and to distribute royalties; to conduct proper documentation; and other relevant tasks with the primary goal of ascertaining that the members of its organization enjoy full protection of the law. To give particular attention to the Accreditation requirement, it is seen to be enforced by IPOPHL mandatorily. Thus, failure to comply would mean non-recognition of the existence of the CMO concerned. Consequently, a CMO unarmed with accreditation papers has no right to conduct any business with the users of the copyrighted materials nor be entitled to collect and receive any royalties and similar fees. This requirement is in place to address the numerous complaints on double collection on one entity by separate and distinct CMOs. With the accreditation strictly imposed, only those legitimate CMOs are empowered to collect and are the ones deserving to be paid.
Meanwhile, another interesting addition to the Amendments is the concept on Contributory Infringement which is anchored on secondary liability. To pin down this allegation, the Act requires the need to prove and satisfy the elements on (1) the benefits received by the liable party; (2) notice given to the liable party, and (3) the right and ability of control by the liable party over the activities of the infringer, but that the liable party failed to exercise such right. Atty. Calvario notes that the upcoming implementing rules and regulations (IRR) will identify the type of benefit that the alleged liable party is receiving out of the infringing acts so as to be properly charged with contributory infringement. And maybe, also to include the kind of notice sufficient enough to qualify as official notice to the liable party on the infringing acts. Likewise, we are keen on knowing the procedure to rectify the contributing act of infringement committed by the party secondarily liable.
InLastly, an amendment which captures the generosity of the drafters and supporters of this Act is the Fair Use of the Blind, Visually-and-Reading Impaired. This provision shed hope for basic education through the accessibility of the copyrighted materials in Braille. It allows the reproduction of such works, provided that it is distributed on a non-profit basis and the copyright owner as well as the date of original publication must be indicated.
These are just some of the notable changes in our IP Code. The countdown starts and the entire nation is thrilled about the manner on how this Act be efficiently implemented. At this point, we cross our fingers and hope for clarity and “teeth” in the law through its IRR soon to be released.
