Current Innovation/Societal Concerns
22 September 2012
Elpidio V. Peria
The Interface Between Intellectual Property and the Philippine Cybercrime Act
Much has been written about how the recently signed Cybercrime Act (Republic Act 10175) will impact on the rights of privacy of avid internet users in the Philippines while its anti-libel provisions may unnecessarily limit the freedom of expression of well-meaning bloggers who may now be lumped together with cyber-bullies. One group, the Internet Society of the Philippines, commented that the takedown provisions of the law, a power that may be exercised by the Department of Justice to shut down any internet properties at any time unilaterally without any notice and hearing, meaning it can do it without any court-issued warrant, makes it much worse than the proposed Stop Online Piracy Act (SOPA) of the US Congress which generated a wave of strong online protests early this year.
The references to SOPA refer to unilateral actions taken by the US Department of Justice in case it finds some violations of intellectual property online.
The Cybercrime Act’s provision on intellectual property [art. 4 (a)(6)] mainly relates to cyber-squatting, which it defines as the acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration:
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
According to Wikipedia, cyber-squatting, which is based on a United States federal law known as the Anticybersquatting Consumer Protection Act, is registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cyber-squatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.
The intellectual property involved in cyber-squatting relates to trademark, a species of intellectual property, which is defined in the Philippine Intellectual Property Code, Republic Act 8293 under the term “mark”, which means any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods.
Thus, anyone who uses these registered marks online as domain names, without consent from the registered owner of the mark or who claims a mark as his or her own and asks for money to give up the rights to it so that a legitimate user can use if to identify a business, is guilty of cyber-squatting under the Cybercrime Act.
The provision of the law which states “with intellectual property interests in it” must be defined further for clarity since it may refer to applications for trademarks that are pending registration or those marks that may be subject of litigation for any other reason.
What about the downloading of pirated content from the internet, will this also be penalized under the Cybercrime Act?
It appears it is not, since it is not one of the acts defined as a “cybercrime” under the law. The law mainly categorizes three kinds of broad acts, namely:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems, which identifies six kinds of crimes, namely illegal access, illegal interception, data interference, system interference, misuse of devices and cybersquatting;
(b) Computer-related Offenses – identifies three kinds of offenses, namely, computer-related forgery, computer-related fraud and computer-related identity theft; and
(c) Content-related Offenses:- identifies four kinds of offenses, namely, cybersex, child pornography, unsolicited commercial communications, and cyberlibel.
In addition to these enumerated, though not clearly-defined offenses, there are also those crimes which the Cybercrime Act calls as “other” offenses, such as the following: :
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.
However, when one downloads material over the internet, like a picture, and manipulates it so that it will result in any of the crimes enumerated under the law, this may fall under either any of the computer-related offences or content-related offenses enumerated under the Act though the operation of such provision on “other” offences under the law.
Ultimately, all these unclear provisions should be clarified by the implementing rules and regulations which must be formulated ninety (90) days from approval of the Act or by litigation in the course of its implementation.
Free speech advocates should strive to question the provisions of the law which serves as a prior restraint on these basic constitutional rights, especially now that this right is under siege from another equally important, though not as fundamental a right which is the freedom to exercise one’s religion and the non-establishment of religion to the detriment or disadvantage of other religions adhered to by the citizens of the state, as epitomized by recent protests of Muslims worldwide on a movie trailer that offends their religion.