Elpidio V. Peria
27 Apr 2013

Recent news reports indicate that COMELEC Chairman Sixto Brillantes, Jr. has already given up negotiating with SMARTMATIC over how the source code for the PCOS machines that will be used for the upcoming May 2013 elections may still be reviewed. He is thinking of just suing SMARTMATIC for its failure to make available the source code after the May 2013 polls.

SMARTMATIC, for its part, is reported to have failed to provide the source code to the COMELEC because it was not authorized to do so by the copyright owner of the software, Dominion Voting Systems, and these two entities are suing each other in a US Court.

Computer software, including the source code, is copyrighted material and is subject to the laws of copyright especially when it is to be used.

But wait, there is a Tribune online news article which reported that actually the SMARTMATIC source code was deposited by then COMELEC Chair Jose Melo and SMARTMATIC officials in a Bangko Sentral ng Pilipinas vault during the May 2010 elections just to show that the source code is there, it is available, in case it needs to be reviewed later, as mandated by law.

This blog piece will not look at the implications of the law which mandates the review of the source code, but will look at how the fair use provisions of our copyright law, especially the recent amendments to the Philippine Intellectual Property Code, may help COMELEC Chair Brillantes get his hands on that source code that is in the Central Bank vault and make it available for the mandated review of the source code as called for by our election laws.

Fair use, according to copyright scholars Patricia Aufderheide and Peter Jaszi in their book Reclaiming Fair Use, is the “right to use unlicensed material” and has long been a standard fixture in copyright laws of the world, though in some common law jurisdictions, according to Wikipedia it is called “fair dealing”.

Under the recent amendments made to our Intellectual Property Code now found in Republic Act 10372, our right to fair use under our copyright law reads:

Sec. 12. Section 185.1 of R.A. No. 8293 is hereby amended to read as follows:

“Sec. 185. Fair Use of a Copyrighted Work.- 185.1 The fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of copies for classroom use, scholarship, [research, and similar purposes] is not an infringement of copyright. Decompilation which is understood here to be the reproduction of the code and translation of the forms of a computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use under the criteria established by this section, to the extent that such decompilation is done for the purpose of obtaining the information necessary to achieve such inter-operability.

The bracketed  words “research and similar purposes” are the justifications that can be used by the user, in this case, the COMELEC, to get that source code in the Bangko Sentral ng Pilipinas vault and make it available to those who may wish to review the source code, at least to minimize the appearance of lack of credibility of the upcoming May 2013 elections and time is not in the hands of everybody concerned here – the COMELEC, the concerned citizens and political parties who may wish to conduct the source code review, the public in general – to do this mandated source code review.

Of course, it may be asked, wouldn’t the COMELEC be sued by the copyright owner, Dominion Voting Systems, for making the source code available for review?

COMELEC Chair Brillantes already answered this question in effect saying that given that this company is not based here in the Philippines, it has no standing to file a case here, though of course there are rules that can be invoked by the company to enable its suit to proceed but that requires a separate process and a discussion here in this blog that can just be dealt with later.

Besides, copyright being territorial in its application, such copyright of the Dominion Voting Systems, which may have been issued in the country where the company is based, does not operate here in the Philippines.

There are provisions in the IP Code amendments in RA 10372 however which allow for a simple notice procedure for foreign copyright holders to assert their copyright in the Philippines.

The only problem in this scenario is if the source code that was reported to be deposited in a Bangko Sentral ng Pilipinas vault during the May 2010 does not really exist and all that act of depositing the source code then, was, as the Tribune news report noted, “a show”.


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