Some Not-so-Uplifting Questions About UP’s “Lady Oblation”

CURRENT INNOVATION CONCERNS
Elpidio V. Peria
28 June 2017

from : http://politics.com.ph/look-ups-oblation-statue-gets-uplift-female-version/

What was initially thought of as an enchanting work of art by artist Ferdinand Cacnio of UP’s “Lady Oblation” has just turned into a brawl on social media, pitting the supporters of the work against those who question the effort of the artist. We don’t want to contribute to the aggravation of the parties here as we hope to clarify what is the law that may be relevant to this situation, aware that this is merely one of many legal opinions on the issue that will eventually sprout, with the caveat that if push comes to shove and this goes to litigation, only the Philippine Supreme Court, as it should be, will have the last say on this matter.

We will approach this by directly answering some of the questions that may be lurking in the subconscious of all those who may be inclined to take sides on this issue :

1) Is it plagiarism?

This is the word that has been bandied about among those who attack the artist and those who claim otherwise, but if we ask Judge Richard A. Posner, a well-known US jurist sitting in the US Seventh Circuit Court of Appeals and a senior lecturer at the University of Chicago Law School, in his book, what else should it be named but The Little Book of Plagiarism, he admits the word is difficult to define. He cited the usual dictionary definition of the word which is “literary theft”, but that definition is incomplete because there can be plagiarism of music, pictures or ideas as well as of verbal matter. The definition is also inaccurate as there can be plagiarism without theft, and it is imprecise, because it is unclear what should count as “theft” when one is not taking anything away from someone but simply making a copy. Plagiarism is different from copyright infringement as there is considerable overlap among them.

For him, it is better to confine the meaning of the word to “nonconsensual fraudulent copying.” Ultimately, for Judge Posner, there is no legal wrong named “plagiarism” though it can become the basis of a lawsuit if it infringes copyright or breaks the contract between author and publisher. For our own intellectual integrity, when we proceed further discussing this, let us take the cue from Judge Posner and perhaps agree to call what Cacnio did as “creative imitation” via sheer coincidence.

2) What law applies here?

The artwork being done by a Filipino and apparently done here in the Philippines, the law on copyright, that species of intellectual property law dealing with creative works, Republic Act 8293, or the Intellectual Property Code, apply in this case.

3) Who has the burden of proving there is copyright infringement in this case?

Philippine laws on copyright, embedded in Republic Act 8293, is a special law, but with criminal penalties. Those who may allege copyright infringement is engaging in a criminal proceeding, thus the burden is on the side asserting there was copyright infringement, which may be the artist from whose work in the Netherlands the UP Lady Oblation was purportedly copied, or any of her supporters.

4) Can such Dutch artist, living abroad, enforce  her copyright,  on the Filipino artist, in the Philippines?

A requirement in Philippine law, to be able to sue for copyright infringement, is that one must have a valid copyright. In a recent case of Sison Olaño, et.al v. Lim Eng Co, G.R No. 195835, March 14, 2016, for a claim of copyright infringement to prevail, the evidence on record must demonstrate: (1) ownership of a validly copyrighted material by the complainant; and (2) infringement of the copyright by the respondent.

In another Supreme Court case, Ching v. Salinas, Sr. (500 Phil 628, 639 [2005]), ownership of copyrighted material is shown by proof of originality and copyrightability. By originality is meant that the material was not copied, and evidences at least minimal creativity; that it was independently created by the author and that it possesses at least same minimal degree of creativity. Copying is shown by proof of access to copyrighted material and substantial similarity between the two works. The applicant must thus demonstrate the existence and the validity of his copyright because in the absence of copyright protection, even original creation may be freely copied.

The question here is, does the Dutch artist have a copyright over her work ? Assuming she has such copyright which we should presume is granted to her under her law, which is Dutch, the more important question is : can such rights arising from a foreign law be enforced here in the Philippines? The answer will have to be no, since intellectual property laws are territorial in application, meaning they can only be asserted and enforced in the country where is it issued.

Questions on what or how International law may apply should proceed with an inquiry whether both Philippines and the Netherlands have ratified the Berne Convention for the Protection of Literary and Artistic Works, the relevant international treaty on copyright, and since the main parts of this Convention is also made part of the TRIPS Agreement of the World Trade Organization or WTO, then, perhaps, if the plaintiff is determined, her country will take this up under the dispute settlement process of the WTO. This is a far-fetched thing so we should leave it at that.

5) What does this say about the bigger question concerning creativity and the creative process, are we really that free to create things and be inspired by what has come to our senses, without acknowledging them and claiming it as our work?

As free and capable individuals, we should be able to create any work that should suit our desires, but Judge Posner in his book that we have cited noted the rise of a cult of personality in this era of modernity where each of us think that our contribution to society is unique and so deserves public recognition, which is clouded by plagiarism. He did not condemn it though, which was not his style, but proceeded merely to find ways where such tendency does not go overboard and is tempered by existing laws and norms, including the existing laws on copyright.

The law on copyright was intended to balance the right of the creator and that of the public since, after a certain period of time, all creative works pass into what is called the “public domain”, a different concept from what natural resources advocates are pushing, but it consists all creative works whose copyright has expired and are thus free for others to use or appropriate for their works of creation.

How then should we resolve this? ABS-CBN has helpfully posted a report of other “Levitating Ladies”, which we would encourage the detractors and supporters of UP’s “Lady Oblation” to examine. We have seen those other ladies and if we may be allowed to hazard an opinion, Cacnio’s work has that mystical quality absent in all similar floating sculptures be it in the Netherlands, the UK or the US. For whatever it is worth, let us instead congratulate him for what he has done, it seems his work will become eventually famous, this kind of controversy is a good way to introduce these kinds of work that will not only enhance the prominence of the work but will encourage more people to examine the work closely and take their obligatory selfies with it, which is what we will do if we happen to pass by UP Diliman once we get there sometime.

There’s another thing we would say that this controversy has become reflective of our modern or is it post-modern sensibilities, no one seemed to have been bothered that the lady is naked and has taken that for granted. That is one advance we should also applaud.

oOo

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Perhaps the Crime is Cyber-Inciting to Sedition, but it may be unconstitutional

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
21 June 2017

from : http://dict.gov.ph

DICT Secretary Rodolfo Salalima was in the news lately as he said his Department may use the Cybercrime Act to arrest individuals for posting seditious materials online, and the crime is cyber sedition. Is there such a crime?

A basic rule in criminal law is encapsulated in the Latin maxim “nulla poena sine lege” or what is commonly translated as “no penalty without a law” which means one cannot be punished for doing something that is not prohibited by law. Is Sec. Salalima correct in what he was saying recently?

First thing we have to examine is the Cybercrime Act itself or Republic Act 10175 and it there says in sec. 6 and also sec. 7 :

All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

Section 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The DICT Secretary is correct in saying that the crime of sedition, being a crime penalized under the Revised Penal Code, in sec. 139, if committed through and with the use of information and communications technologies, may come under sec. 6 of the Cybercrime Act, thus his term cyber sedition, minus the hypen, or that may be the editorial judgment of the newspaper editors who wrote up such news report.

But let’s examine further if posting seditious material online can really be considered seditious. Let’s look at the elements of the crime of sedition and per our handy Revised Penal Code hornbook Luis B. Reyes (2012 18TH ed.) indicates, they are the following :

1. That the offenders rise (1) publicly and (2) tumultuously;
2. That they employ force, intimidation, or other means outside legal methods
3. That the offenders employ any of these means to attain any of the following objectives:

a) To prevent the promulgation or execution of any law or the holding of any popular election;
b) To prevent the national government, or any provincial or municipal government, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any executive order;
c) To inflict any act of hate or revenge upon the person or property of any public officer or employee
d) To commit, for any political or social end, any act of hate or revenge against private persons or any social class; and
e) To despoil, for any political or social end, any person, municipality or province, or the national government, of all its property or any part thereof.

The immediate problem from this enumeration is that, can the element of rising publicly and tumultuously be done, using the key operative verbs of the Cybercrime Act, “by through and with the use of” online methods ? We believe it cannot be done in such manner, thus any criminal prosecution for cyber sedition will most likely fail because of the failure to prove this key first element of the crime of sedition.

The remedy for the lawyers of the DICT here may be to cite instead art. 142 of the Revised Penal Code, the crime of inciting to sedition, which has the following elements :

1. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc.
2. Uttering seditious words or speeches which tend to disturb the public peace;
3. Writing, publishing or circulating scurrilous libels against the Government or any of the duly constituted authorities thereof, which tend to disturb the public peace.

What the lawyers of the DICT may also invoke is that when the words uttered or speeches delivered or scurrilous libels published have the tendency to disturb any lawful officer in executing the functions of office, etc., it is not necessary, to constitute a violation of art. 142, that the purpose of the offender is to accomplish any of the acts of sedition. This is because, according to Luis B. Reyes, the second part of art. 142, which defines other modes of committing the crime of inciting to sedition, does not require it.

But looking further at the big picture regarding the Cybecrime Act, the Supreme Court in the case of Disini, et.al. v. The Secretary of Justice, et.al. G.R. No. 203335, February 11, 2014, actually nullified some of its provisions and in the case of sec. 7, one of the legal anchor of DICT Sec Salalima for filing cyber sedition or cyber inciting to sedition, the Supreme Court has this to say about this provision:

the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,

For those who may now be prosecuted for cyber inciting to sedition, one approach for the defense may be to use the same argument as what the Supreme Court said in this case cited above on the constitutionality of the Cybercrime Act, in declaring as unconstitutional the cybercrime acts of online libel in art. 353 of the Revised Penal Code and child pornography on the ground of double jeopardy, the prohibition stated by the Constitution against being prosecuted twice for the same acts.

It is all up to the trial court though, to decide and perhaps, if the defense counsel is determined, to see whether the Supreme Court may agree.

oOo

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Secrecy in the SC Martial Law Hearings Was Not What the Constitution Intended

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
18 June 2017

TV and other media crew excluded from the executive session in the Supreme Court last June 15, 2017  (PHOTO : EV Peria)

The 3rd day of oral arguments for the Mindanao martial law petitions before the Philippine Supreme Court was mainly done in executive session thus the media and the public was denied the opportunity to look at the supposed disclosure of matters relating to national security that was presented that day by DND Secretary Lorenzana to the Justices of the Supreme Court.

To assuage the concerns that may result from excluding the public from these deliberations, the Supreme Court allowed nonetheless petitioner Congressman Edcel Lagman and Solicitor-General Calida in the executive session.

This is a problem since the public was not able to get a clear glimpse of the sufficiency of the factual basis for this declaration of martial law and understand fully what is happening in the country unless the Justices may mention it in their ponencia later as justification for whatever they may rule on this issue. But if the Justices will mention those secret matters in their decision to justify their ruling, then what was the point for the secrecy anyway, and whatever happened to transparency in governance if, on grounds of national security, certain facts and information relating to an important matter of public interest such as martial law may be excluded from the public?

If we follow the logic for such exclusion of the public in the 3rd day of oral arguments on the martial law case, then the Justices cannot disclose such sensitive information when they write their decision on this case, and if that is so, then how may the public fully understand the ruling which the Supreme Court will have to do by July 5? More importantly, the public may not forever get a glimpse of what may have actually swayed the President into declaring martial law and get a full sense of the gravity of the situation as the President has seen it. To the critics of the President, this may confirm their suspicion that the President acted rashly, but to the devotees of the President, this will only confirm that the President acted decisively. Both these groups of Filipinos were short-changed by the Supreme Court when they were excluded when Sec. Lorenzana made his presentation.

Let us remember that the Marcos Martial Law declaration was built on exaggerations and false pretenses and outright lies, including that ambush by then DND Secretary Juan Ponce Enrile who admitted it was faked, so that it will foster a sense of panic nationwide that served as one of the justifications for such declaration.

The framers of the 1987 Constitution was aware of that fact thus, they empowered any citizen, to petition the Supreme Court to inquire upon the sufficiency of the factual basis for the declaration of martial law. With that executive session held last Thursday, 15 June, this constitutional mandate was not followed.

This act of excluding the public in that important phase of the hearing may result in the public not really accepting the final result, whether it may be for upholding or revoking the declaration of martial law. If this happens, then it is quite unfortunate, there was a chance for the Supreme Court to really put to life this 1987 Constitutional provision on martial law, it may have bungled it somewhat.

oOo

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Mindanao Martial Law Petitioners Had A Difficult Day Fielding Procedural Questions in the SC

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
13 June 2017

(PHOTO: EVPeria)

In day 1 of the Philippine Supreme Court oral arguments today on the Mindanao Martial Law petitions questioning the sufficiency of the factual basis for the declaration of martial law by President Duterte, we left while Justice Bersamin, the fifth Justice to interpellate from the morning’s oral argument, was still grilling Atty. Cortez, one of the lawyers of the Petitioners, as we don’t want to get stuck in traffic from Taft Ave to Banlat, T. Sora, but what stood out from the exchanges today between the Justices and the lawyers of the petitioners was the uncertainty faced by the Supreme Court Justices on whether there is an “appropriate proceeding” before the Supreme Court, for them to review the President’s declaration of martial law in Mindanao.

In the initial presentation of the petitioners’s arguments led by Congressman Edcel Lagman in the morning, he briefly touched on what is the procedural basis for their legal action and he just said that this is the appropriate proceeding as there is a special and specific grant of jurisdiction by the 1987 Constitution to the Supreme Court which is different from what is provided for in sec. 1, Art. VIII of the 1987 Constitution to the Judicial Department. That provision in sec. 1, Art. VIII is usually memorized by law students for the bar exam as the ultimate grant of authority by the 1987 Constitution to the Supreme Court to exercise its judicial power “which includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amount to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

While this appeared to be clear-cut and easy, the series of questions by the second Justice to interpellate Congressman Lagman, Justice Bernabe, laid out the problems with that stance, who initially asked : how will you treat this petition, to which Cong. Lagman said, in a class by itself, your Honor.

She then followed up, she said that in the 1987 Constitution, the term used is “appropriate proceeding”, isn’t this a special proceeding to establish a status or fact, to which Cong. Lagman said : the transcript of the Constitutional Commission should have clarified that, but this is only with respect to the sufficiency of the factual basis for the declaration of martial law.

Not satisfied, Justice Bernabe quipped : couldn’t the framers have used the term “appropriate action” instead? Cong. Lagman said that but such a term is for ordinary petitions but this petition is not such petition.

Justice Bernabe then asked, what do you mean by “sufficient factual basis”, isn’t this the same as “proof beyond reasonable doubt” or “preponderance of evidence”, to which Cong. Lagman responds, the Constitution gives freedom to the Supreme Court to decide what kind of standard to apply in determining the sufficiency of factual basis. Later, Cong, Lagman adds, it should be probable cause based on the dissent of Justice Carpio in the Fortun v. Macapagal-Arroyo.

This kind of question by Justice Bernabe indicated one of the procedural issues faced by the Supreme Court, on what kind of evidentiary standard they should apply to this kind of petition. This evidentiary standard is the usual standard used by Philippine courts in deciding cases, if it’s “proof beyond reasonable doubt”, it’s usually used in criminal cases where the liberty of a person is about to be deprived and this is a high threshold of evidence such that if there is any small amount, which courts and lawyers usually call scintilla or very small amount, of doubt, on the guilt of the accused, the accused is set free. If it’s preponderance of evidence, which is used in civil cases, this is determined by how many pieces of evidence are there to support the winning side, compared to the losing side, which usually does not have as many pieces of evidence compared to the winning side.

On this point of probable cause mentioned by Cong. Lagman, Justice Bernabe retorted, but that’s for the President to use when she gathers facts which she may then use as basis to declare martial law, that is not for the Supreme Court.

She then asked, who has the burden of proving sufficiency of factual basis, to which Cong. Lagman says, the respondents, or the Party that makes the declaration of martial law.

To which response, Justice Bernabe asked, so you don’t apply the dictum that who alleges something has to prove what he is saying and on this, we somehow noticed that Cong. Lagman seemed at a loss for words and then Justice Bernabe followed that up with : what about the dictum that government actions are presumed valid and the burden is on the other side which alleges the reverse of that presumption? Actually here, it seemed Cong. Lagman did not answer or we may have missed taking notes at this stage.

Justice Bernabe was just warming up, she asked another point – what’s the deference that the Court should give to the President given that he has access to the facts, to which Cong. Lagman said the Court should give the President ample deference but the Supreme Court will have to exercise its special and specific jurisdiction to determine the sufficiency of the factual basis of the declaration. Hearing Cong. Lagman say this at this stage indicates to the skeptic that actually Cong. Lagman does not anymore know what he is saying and he is now relying on formulaic words from the Constitution hoping perhaps that this kind of questioning will stop.

But here’s more from Justice Bernabe : should we not give weight to those reports made by the President to Congress? Cong. Lagman said that the sufficiency of the factual basis should be based on Proclamation 216 and the President’s Report to Congress.

There were a lot more questions asked by Justice Bernabe on other aspects of the case but one important procedural point asked by Justice Bernabe which surprisingly she did not press as hard as the other procedural issues she raised was her question on the source of the reports of petitioners for their allegations that some incidents in the President’s report to Congress was inaccurate, particularly the incidents in the Amay Pakpak Hospital and in the Marawi Public Elementary School, to which Cong. Lagman only said these are from the disclaimers of the people involved in these mentioned entities.

Later in the afternoon, this was hammered on by Justice Bersamin, particularly on whether the Court can take judicial notice of these incidents, but we did not anymore take note what Atty. Cortez had to say on it as we already left, it was already 4pm. What stuck out to our recall in the earlier exchanges between the two was the difficulty encountered by Atty. Cortez in giving concrete answers to Justice Bersamin, like when he asked, so how many pages do you think the Proclamation should be so that there is sufficient factual basis for such declaration, to which Atty. Cortez did not give any concrete answer.

One final point on the procedural issue pointed out in the exchange between Justice Leonen and Atty. Marlon Manuel of the Alternative Law Groups was on the question by Justice Leonen that since the grant of power to the Supreme Court by the 1987 Constitution is supposed to be exclusive, and this is what is stated in sec. 1 of Article VIII which deals with the Judicial Department, but if the Supreme Court will then now agree with petitioners that the grant of power to the Supreme Court in the martial law provision of the 1987 Constitution in sec. 18 is another grant of power to the Supreme Court, but of its own sui generis or specific, particular kind which is not the same as what is stated in sec. 1 of Article VIII, then, all along the Supreme Court is wrong in understanding that such enumeration in sec. 1 of Article VIII is exclusive, since in reality it is not exclusive.

The answer by Atty. Manuel to this is brilliant, he just said, yes, that power is not exclusive, especially so when the statement granting that power is predicated by the verb “includes”. To one reading this sentence, to have that word means there are other enumerated powers which can be found in the document we are reviewing, in this case the 1987 Constitution.

Over-all, it was a great day for the 1987 Constitution today at the Supreme Court, and we are lucky, or perhaps we are now benefiting from the lessons of the previous Martial Law, that the Supreme Court can still function as it did today and it is not in any way in danger of being rendered irrelevant by these so-called vicissitudes and passions of the times

oOo

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GLOBE Cannot Just Send Its Subscribers’s Credit Info to another Government Agency

CURRENT SOCIETAL CONCERNS-PRIVACY
Elpidio V. Peria
12 June 2017

from : http://creditinfo.gov.ph

 

Relaxing at home during this Independence Day, I saw this social media posting from a veteran consumer activist from Davao, which, according to him, is from GLOBE, one of the leading telcos of the country, which reads :

“We’d like to share an important update on RA 9510 or the Credit Information Systems Act (CISA). In compliance with this government mandate, we’ll be sending basic credit information about your Globe account/s, including any overdue balance, to the Credit Information Corporation, a state-run agency, starting June 2017. We at Globe value your awareness on these matters. Learn more at http://www.creditinfo.gov.ph. Data charges may apply.”

This action of GLOBE, cavalierly informing only its clients and purportedly in pursuit of complying with this mentioned law, on credit information of individuals being processed by a specific government entity, the Credit Information Corporation, is VIOLATIVE of a later law, the Data Privacy Act or Republic Act 10173, passed in 2012. This later law came four years after this law on credit information was passed, in 2008. Maybe the lawyers of GLOBE may have overlooked this law or interpreted the law such that they went ahead with their action, but hopefully, with this blog post, citizens may be made aware and will react and tell GLOBE to stop what it is doing.

The Data Privacy Act recognizes the rights of data subjects, actually, us, humans, people, individuals, not computers, to our personal information, such that, this personal information cannot just be immediately processed without our consent. The law in sec. 12 gives the number one criteria for the lawful processing of personal information : that the data subject has given his or her consent.

What GLOBE has done in its announcement, that of merely informing its subscribers that GLOBE will be sending basic credit information of its subscribers, including overdue balance, to another government agency, the Credit Information Corporation, created by Republic Act 9510, is something that is not allowed by the Data Privacy Act as provided for in its sec. 13 dealing with sensitive personal information and privileged information.

The rule in sec. 13 is that the processing of sensitive personal information is PROHIBITED, and there are some instances where the processing of information is allowed, and it may be these exceptions that may be pointed out by GLOBE which enables it to pass on such credit information to the agency created by RA 9510.

Let us analyze the exception closely. It reads:

Sec. 13. Sensitive Personal Information and Privileged Information – the processing of sensitive personal information and privileged information shall be prohibited, except in the following cases:

Xxx (b) The processing of the same is provided for by existing laws and regulations; Provided, that such regulatory enactments guarantee the protection of sensitive personal information and the privileged information; Provided further, that the consent of the data subjects are not required by law or regulation permitting the processing of sensitive personal information or the privileged information.

 

We consulted the provision of RA 9510 on the guarantee of protection of this sensitive personal information and there, in sec. 6 of the law, is the following provision :

Section 6. Confidentiality of Credit Information. – The Corporation, the submitting entities, the accessing entities, the outsource entities, the special accessing entities and the duly authorized non-accessing entities shall hold the credit information under strict confidentiality and shall use the same only for the declared purpose of establishing the creditworthiness of the borrower. Outsource entities which may process and consolidate basic credit data are absolutely prohibited from releasing such data received from the Corporation other than to the Corporation.
xxxxx…

 

While this guarantee of strict confidentiality seems to be stated by this law, the number of entity categories, around six (Corporation, the submitting entities, the accessing entities, the outsource entities, the special accessing entities and the duly authorized non-accessing entities) that deal with a person’s credit information is surely one too many, that this strict confidentiality rule is actually meaningless. Why, these entities are all the entities that matter to a person’s credit history; if you go to the definitions section of the law, these are mainly also private companies who deal in the business of these things. Why bother with strict confidentiality when all those who will be interested will be given a creditors’ information anyway?

With the above-mentioned doubt on whether strictly confidentiality of a person’s credit information is guaranteed by RA 9510, this same law however seems to comply with the second criteria of the Data Privacy Act, which states that the consent of the data subjects are not required by law permitting the processing of the sensitive personal information.

This is because there is nothing in RA 9510 which requires the consent of persons with credit information or history to process their credit information under that law. That is one interpretation of the RA 10173 requirement which may be used by GLOBE to escape any legal liability under RA 10173.

But this same provision, sec. 13(b), of RA 10173 may also be interpreted to mean that there has to be a specific provision in any law that should explicitly state that such consent is no longer required. If that interpretation holds, and this kind of provision does not exist in the law, then RA 9510 may breach RA 10173.

Which is which? If you ask me, my view is to provide for a greater right to the person’s data privacy as regards his or her sensitive personal information, particularly his or her unpaid GLOBE accounts which may be compiled to provide an unsavory credit reputation to the person.

RA 9510 however requires the consent of the borrower (not the GLOBE subscriber, mind you) when such credit information is passed on to a special accessing entity, which is defined by RA 9510 as a duly accredited private corporation engaged primarily in the business of providing credit reports, ratings and other similar credit information products and services. But aren’t these precisely the kinds of entities subscribers with bad credit standing avoid? This provision of RA 9510 should also be looked into whether it still accords with the stated policy goals of the Data Privacy Act, which is to protect the identity of an individual from being ascertained, since RA 9510 already gives out not only the identity of the person but also more, especially the credit information of that person.

So, what happens now to what GLOBE will do this month of June, when it will do it, it does not yet say – that it will pass on credit information of its subscribers to the Credit Information Corporation ? That GLOBE purports to easily do it without any express consent of its subscriber speaks badly of its oft-repeated commitment in its ads to keep its customers welfare above its own. GLOBE should not be merely informing or making aware its subscribers that it will do such thing, it should also seek out, expressly, in written form, the subscribers’s consent and if the subscriber does not allow it, then GLOBE should not pass on such information.

But given that subscribers are busy people, the default setting here should be NO sharing of information to the Credit Information Corporation, unless the person consents to such sharing, which should be done in writing.

If the GLOBE does not do this, it is our view that it violates the provisions of the Data Privacy Act in its act of passing on the credit information of its subscribers, including unpaid accounts, to a government entity created by law, the Credit Information Corporation.

Perhaps the National Privacy Commission should step in to propose measures such that the functions of the Credit Information Corporation may be fulfilled, but not at the expense of the violation of the rights of the data subjects, the GLOBE subscribers.

Or, given that agencies, perhaps too occupied with their mundane concerns relating to their mandate, may act not in a prompt manner, and if that is the case, the citizenry, or the disgruntled GLOBE subscribers perhaps, should give the telco a lesson that consumers are not to be trifled with. We haven’t even examined the provisions of the Consumer Code on this.

oOo

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The House-approved tax reform bill is not your TRAIN to SUS(tainability) TRAN (sition)

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
11 June 2017

from : http://sustainability.leeds.ac.uk

The Philippine House of Representatives recently approved the much-awaited tax reform measure of the Duterte administration, the so-called TRAIN (Tax Reform for Acceleration and Inclusion) – aimed at generating the needed resources for the delivery of basic services and providing economic relief to salaried workers and other income earners.

This blog post however will not look at the merits of the new taxation schemes and tax exemptions in their entirety but will instead focus on the whether the measures in this approved House version of the tax reform bill will enable the country to take further steps toward sustainability transition, that long-term effort to enable our economy and society to transform itself so that it can better cope with the challenges of climate change and sustainable development.

If we have this sustainability transition lens in looking at this bill, the immediate item that should catch our attention is the excise tax on diesel fuel which is now increased progressively yearly within the next three years from being taxed at zero (0) now to 3 pesos in Jan 1, 2018; to 5 pesos in Jan, 1, 2019; and to 6 pesos in Jan. 1 2020.

The Department of Finance (DoF) is of the view that this impending diesel price increase will not jack up food prices or jeepney fares that much based on similar abrupt price increases in diesel from January to December 2016 and in the period 2010 and 2012.

Even the National Tax Research Center (NTRC) noted in a study it did recently in January 2017 that even jeepney fare rates will not rise as much as in fact such fares have already increased in anticipation of a fuel tax hike this July 2017. Based on the historical table (Table 13 in the study) that they have come up with, in the period after 2009, if the price increase in diesel fuel will increase by greater than 50%, this will generate an additional Php 1 increase in jeepney fares : this happened between the period February 2009 when diesel price was at Php23.00 and it increased to Php 37.75 in January 2011 and in the period between January 2016 where diesel price is at Php 20.20 and February 2017 where diesel price is at Php 31.00. In these periods, the jeepney fare rate increased at Php1.00. Perhaps with these three year successive increases of diesel prices, the jeepney fare rate may not increase more than Php1.00 within the three year period.

But perhaps the DoF is only looking at diesel fuel, but there are also a full range of other petroleum products (lubricating oils and greases, processed gas, waxes and petrolatum, denatured alcohol to be used for motive power, naphtha, regular gasoline and other similar products of distillation, leaded or unleaded petroleum gasoline, aviation turbo jet fuel, kerosene and liquefied petroleum gas, the latter are those that are used in homes for cooking and lighting, asphalts, bunker fuel oil) that will also be taxed in an increasing manner within a three-year time frame. The Senate should look closely how the totality of these petroleum products will contribute to price increases on all other goods and services the production of which will depend on the use of these other petroleum products. This will also serve as a check to validate these assurances of the DoF and NTRC on negligible price increases from these measures.

In that same study of the National Tax Research Center we have seen, these taxes on petroleum products are already accounted for and they foresee no problem with increasing the tax rates in these products since they haven’t been increased since 1996 and the Philippines has the 2nd-lowest excise tax rates in the ASEAN region.

While the House-approved tax measure provided for some earmarking of not more than 40% of the yearly incremental revenues from the petroleum excise tax for a social benefits program, it has not provided for specific funding to develop research and development into alternative fuels in order that there is a clear effort towards developing alternatives to fossil fuels and hence facilitate behavioral shifts in the use of diesel and similar fossil fuels.

In our earlier post on this topic, we proposed to make the increase in these excise taxes gradual, even suggesting the totality of the 6-pesos increase be fully implemented even beyond the entire term of President Duterte. This is to enable other coordinative measures by other agencies to kick in, like an accompanying measure to accelerate the development of alternative fuels so that the population will have an alternative to these fossil fuels or some incentives to assist the shift towards a fully-electricity based transportation system.

Ok, hybrid electric vehicles are exempt from excise taxes, but the way it is defined as a four-wheel vehicle in the House-approved tax reform bill leaves out alternatives that may run on two or three wheels. The Senate should look into this again. What about the jeepneys? There should be a clear phase out that should reduce dependence on diesel-guzzling jeepneys , but this should be coordinated with the preferential tax treatment in this bill given to hybrid vehicles in the House-approved measure.

Then we have to look at the other categories of activities that seem to have been left out, what about the coal-fired operating plants, are they exempted from any increases in taxes? The House-approved bill does not seem to touch these entities, especially the taxing of coal and coal substitutes used in these plants.

Looking at other provisions that may not immediately appear to induce efforts towards sustainability transition but in our view will gradually contribute to such efforts, the House should have also given preferential tax treatment to donations to initiatives that promote renewable energy or sustainable agriculture as these are activities that hasten our shift to a more sustainably-run economy or food system that increases our ability to adapt to a warming climate.

Finally, even the constitution of family home could be an opportunity, like giving higher value to houses that have installed energy-saving equipment or are constructed using green architecture principles subject to criteria that may be set up by the Department of Energy and the National Housing Authority. This kind of higher valuation for family homes induces entire Filipino households to use LED bulbs or install solar panels while potentially creating a market that further brings down the prices of these renewable-energy products. This is the kind of up-scaling nationwide that was not there before when the DoE pushed for a shift in compact fluorescent lamps nationwide.

The Philippine Senate has a chance to enhance this TRAIN so that this will truly proceed towards the SUS (trainability) TRAN (sition) of the country in the coming years.

oOo

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3 Ways Donald Trump Put the US At a Disadvantage in its Exit of the Paris Agreement

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
4 June 2017

from : http://montrealsimon.blogspot.com/2017/06/donald-trump-and-end-of-american-world.html

Many commentators already expressed their dismay at how the US has ceded its leadership on this globally important issue of climate change, but from where we sit, here are the ways his short-sighted decision will put the US at a disadvantage :

1) The US loses a seat at the negotiating table where discussions are ongoing to further flesh out how the commitments to the Paris Agreement are to be fulfilled

The Paris Agreement is set to take effect after 2020 and the countries which are Parties to the Agreement are hard at work, more recently in its Subsidiary Bodies meeting in Bonn, Germany just last month in May, to come up with various guidelines for following through with the commitments under the Agreement, like how the Nationally Determined Contributions are to be prepared or what elements of the technology transfer framework are to be further detailed.

With the US now deciding to exit from the Paris Agreement, the US immediately loses the right to effectively participate in shaping up the rules of the various commitments under the Agreement. This was among the reasons why US business leaders wanted the US to remain in the Agreement so that the US can water down these various guidelines and it will not affect the US as much. Paris Agreement may come out eventually stronger without the US trying to dilute its mechanisms of implementation.

Having experienced in the negotiating table of the UNFCCC on technology transfer how formidable the US negotiators are, these seasoned US negotiators and legal drafters will now mainly stay on the sidelines of further discussions and they will not be able to shape it along US interests. When negotiations move to a setting where only Parties to the Agreement can join, then the US will be like the NGOs and other observers who will just remain outside the negotiating room and they will only enter once the main protagonists are finished in their negotiations.

Australian, Japanese and Canadian negotiators, who are part of the UMBRELLLA negotiating group of which the US is a guiding hand, are formidable by themselves, but without a leader like the US with political and economic clout, they may not have such a strong voice now as before, though any one of these countries may come out as the leader of this negotiating group to replace the US.

2) With the market for renewable or clean energy technologies expanding worldwide, it cannot be avoided that trade rules will be increasingly affected by what the Paris Agreement will require countries to do to achieve their climate mitigation and adaptation objectives.

Determining what aspects of trade will be affected by the rules being set up under the Paris Agreement is difficult, but based on an initial analysis by Clara Grodin of the German Development Institute of submitted nationally determined contributions, the following trade elements may play a role in the implementation of a country’s commitments under the Paris Agreement, which the US will now not have anything to do at all, to their disadvantage :

a) Reduction of trade barriers – Parties to the Paris Agreement may agree to have a package of beneficial reduction of trade barriers among them to facilitate the uptake of clean energy technologies;

b) Regulation of timber trade – this involves the determination of how sustainably produced the timber being exported are, which may vary among Parties to the Paris Agreement and now rules may be arrived at on how to give preferential treatment among those who are Parties to the Paris Agreement;

c) Standards and labeling – this involves determination of embodied carbon in products that will then be given preferable trade treatment under the rules of the World Trade Organization;

d) Border carbon adjustments or border taxes – these are taxes that are imposed on products from countries will less stringent climate policies, of which the US will surely become one as it is now out of the Paris Agreement; EU and China will only be too happy to impose these taxes on US export products given how lousy environmental regulations will now be under the Trump administration;

e) Renewable energy subsidies – these are the support given by governments to their renewable energy sector which may be subject to rules on subsidies under the WTO;

f) Fossil fuel subsidy reform – this is similar to the subsidies given to renewable energy above but this time it may be given to phase out the over-all national consumption of fossil fuels, similar to what the Duterte Administration is doing now in its Comprehensive Tax Reform Package in Congress where the prices of diesel are taxed in order to discourage its consumption;

g) International market mechanisms – these are the carbon trading arrangements that are still being discussed at the moment inside the UNFCCC but may now be expanded under the Paris Agreement in various iterations;

h) International technology transfer including intellectual property rights – this involves rules on how developing countries may gain access to patented technologies, either by relaxing the rules on how the patents may apply on these technologies, or by giving interested countries some subsidies so these technologies may be used and applied in developing country markets;

i) Response measures – these are the totality of actions a country trying to implement climate change mitigation and adaptation policies will have to do including the wholesale transformation of a country’s entire energy grid or substituting its food supply which are mainly producing export commodities to one that more or less approximates its sustainable agriculture goals.

3) The governance architecture of the Paris Agreement will effectively exclude the US now that is has to evolve to give increasing roles to sub-national entities including non-state actors like corporations, to offset the emissions gap that will not now be fulfilled by the US

Professors Charles F. Sabel and David G. Victor talked about experimentalist governance which underpins the mechanism behind the Paris Agreement, where various ways are attempted to find the best way of achieving bottom-up international policy-making.

With various US states like California and cities like New York, including giant TNCs like Apple, Google, General Electric and Walt Disney committing to act to address climate change, various mechanisms will have to be developed within the Paris Agreement, including perhaps its amendment in due time, to enable these entities to let its efforts on climate change mitigation and adaptation count. This will need to be a long-term and sustained effort and with the entire world demanding action on climate change, Trump’s deplorable decision the past few days may just become a footnote of history in the long term.

oOo

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