copyright and libraries: updates on issues and challenges

Intl. Inform. & Libr. Rev. (2001), 33, 23^44doi:10.1006/iilr.2000.0157Available online at http://www.idealibrary.com on

Copyright and Libraries:Updates on Issues and ChallengesMILAGROS SANTOS-ONG*

INTRODUCTION

The original paper on Copyright and Libraries: Issues and Challenges waspresented during the 11th Congress of Southeast Asian Librarians (CONSAL)on 28th April 2000, at Suntec City, Singapore. This paper did not dealwith every provision of existing copyright laws. It was limited to thetopic assigned by the CONSAL Organizing Committee ‘‘practi-tioner’s view in servicing clients in the digital era within the limitationof copyright laws and legislation.’’ In this regard, only those provisionsthat librarians may encounter in the performance of their function werediscussed. The discussion centers on Philippine copyright provisions andFilipino practitioner’s view, experience and challenges. However, the re-levant literature from other countries were considered.This paper aims to update all relevant information found in the ori-

ginal paper that may be a¡ected by the recent change of events thathave transpired in the Philippines from the time the paper was origin-ally written in March 2000 to the present. In the digital era, the majorevents are: (1) the havoc done by the ‘‘I Love YouVirus’’ that originatedfrom the Philippines and which has a¡ected the United States and otherparts of the world; and (2). the passage of Republic Act No. 8792, popularlyknown as E-Commerce Law on 14th June 2000.Copyright is a right granted by virtue of a statute to authors of original

literary and artistic works of control over the uses to which their workmay be applied. This grant is recognized by the State as ‘‘vital to thedevelopment of domestic and creative activity, facilitates transfer of tech-nology, attracts foreign investments, and ensures market access’’1 for pro-ducts. It is an economic right of the owner that can place an economicvalue of his creation for a determined limited time and the exclusiveright to control and prohibit the use of his work except those provided

*Director, Supreme Court of the Philippines Library Services President, Philippine Group ofLaw Librarians 1999 President, Philippine Librarians Association, Inc.

1Lambino, L.K.G. (1998) Cyberlaw: protecting copyright on the World-Wide Web. Ateneo LawJournal 43, 98.

1057^2317/01/010023 + 22 $35.00/0 # 2001 Academic Press

24 M. SANTOS-ONG

by law. This right has two objectives: (1) encourage the creation of newand original works; and (2) disseminate ‘‘knowledge and information forthe promotion of national development and progress’’2 for the commongood.

LAWS AND LEGISLATION on COPYRIGHT

National laws have been revised to conform with the emerging globaltrends. This statement was supported by the paper of Mr Ang KweeTiang of Singapore at the 11th CONSAL on 28th April 2000, which sta-ted that majority of the copyright laws have been recently amended orrevised (1990s). In the case of Indonesia, the 1982 copyright law wasamended twice by Law No. 7 (1987) and by Law No. 12 (1997). Thesenational laws must be harmonized in order to protect the intellectualproperty rights of di¡erent countries considering that copyright lawis territorial in application. This means that works protected in onecountry are generally not protected in another. Entering into bilateral,multilateral or trade agreements is a way of harmonizing laws. By inter-national agreements, provisions on uniformity and reciprocity can beconcluded among countries which acceded to it.The ¢rst copyright laws can be traced back in England in 1895 when

the English Parliament enacted the Statute of Anne and in Spain withthe enactment of the Spanish Law on Intellectual Property of January 10,1879. According to Mr Ang Kwee Tiang, the copyright law of Englandspread and in£uenced its colonies such as Australia, Brunei, Singapore,Hong Kong, Malaysia, New Zealand, India Pakistan, Sri Lanka,Fiji, Kiribati, Tuvalu, Papua New Guinea, Tonga and Myanmar.The Spanish copyright law has likewise reached her colonies such asthe Philippines.

PHILIPPINE COPYRIGHT LAWS

Historical backgroundThe Spanish Copyright Law came to the Philippines by way of theRoyal Decree of May 5, 1887. The US Copyright Law was enforced in thePhilippines when Spain ceded it to the United States under the Treatyof Paris of 10th December 1898. Despite the fact that the Philippineswas a Spanish colony for more than 300 years, it was American lawsand jurisprudence that had a great in£uence on Philippine laws and

2 Ibid.

COPYRIGHTAND LIBRARIES 25

jurisprudence. The Philippines legal system still takes into considerationAmerican laws and jurisprudence for persuasive e¡ect in the absenceof Philippine laws and jurisprudence. The ¢rst intellectual property,Act 3134 was passed by the Philippine Legislature on 6th March 1924.It was patterned after the US Copyright Law. Art. 721^724 ofRepublic Act No. 386 or the Civil Code of 1949 are speci¢c provision on‘‘Intellectual Creations’’. One of the ¢rst laws passed during MartialLaw was Presidential Decree No. 49, ‘‘Decree on Intellectual Property’’, whichwas signed by former President Marcos on 15th December 1972.Republic Act No. 8293, ‘‘An Act Prescribing the Intellectual Property Code and

Establishing the Intellectual Property O⁄ce’’, was passed on 6th June 1997and took e¡ect 1st January 1998. This new law incorporated the provi-sions of international agreements, the latest of which is theTRIPS Agree-ment, wherein the Philippines is a signatory. This new law has providedprotection to copyright owners, both domestic and international, toenforce their rights in the Philippines.Republic Act No. 8792, ‘‘An Act Providing for the Recognition and Use of

Electronic Commercial and Non-Commercial Transactions, Penalties for UnlawfulUse Thereof, and Other Purpose,’’ was signed into law on 14th June 2000.(Appendix A). This law is popularly known as the E-Commerce Law.For laws to be e¡ective, Executive Order No. 200 (1987) requires that theymust be published in full text in the O⁄cial Gazette or two newspapers ofgeneral circulation.The importance of Republic Act No. 8792 could be seen in its early

publication which is ¢ve days after its promulgation. It was publishedin two newspapers of general circulation, the Malaya and thePhilippine Post on 19th June 2000. Promulgation of the Implementing Rulesand Regulations of the Electronic Commerce Act one month after the approvalof the law, 13th July 2000 is unprecedented. This implementingrules were published in the Malaya on 20th July 2000, one week afterpromulgation.The Philippines started to enter into international agreements on 1st

August 1951 when it acceded to the Berne Convention for the Protection ofLiterary and Artistic Works. The Philippines and the United States enteredinto an Exchange of Notes on the protection and enforcement of intellec-tual property rights on 6th April 1993. The signi¢cance of this Exchangeof Notes is that the Philippines was removed from the ‘‘watch list’’ and notbe subjected to United States trade retaliatory sanctions. The Philippinesentered into theWTOTRIPS Agreement (Agreement onTrade Related Aspectsin Intellectual Property Rights) on 15th December 1994. With the approvalof Republic Act No. 8293, the Philippines, like other developing countriesdelayed the application of the TRIPS Agreement for ¢ve years on1st January 2000. In December 1996, the World Intellectual Property

26 M. SANTOS-ONG

Organization (WIPO) adopted a new copyright treaty called the GenevaProtocol which is signi¢cant for it has covered the protection of digitaltechnology.

Copyright provisionsCopyright is vested from the time of creation irrespective of their ‘‘modeor form of expression,’’ as well as their content, quality and purpose.Existing copyright laws primarily cover tangible or printed literaryand artistic works. In the Philippines, sec. 172, Republic Act No. 8293 hasincluded computer programs in its enumeration of said works. Howeverthe use of ‘‘mode or form of expression in section 172.2 maybe interpretedas to cover digital works. Republic Act No. 8792 now provides more expli-cit provisions on digital works.Copyright, whether it be tangible/printed or digital grants the author

or the other creators of literary and artistic works, for a determined lim-ited time, exclusive right to carry out, authorize or prevent the followingacts:

(a) Reproduction of the work or substantial portion of the work;(b) Dramatization, translation, adaptation, abridgement, arrangement,

or other transformation of the work;(c) First public distribution of the original and each copy of the work

by sale or other forms of transfer of ownership;(d) Public display of the original copy of the work;(e) Public performance of the work;(f) Other communication to the public of the work.

Sec. 213.1 of Republic Act No. 8293 provides that for original andderivative works, protection subsists during the lifetime of the authorand for 50 years after his death. In case of anonymous works, protectionis for 50 years from the date of publication. For photographicworks, it shall be 50 years from publication or from its making, ifunpublished.Librarians must be aware of the coverage and limitations of copyright

laws and be guided by it in servicing its clients. Unlike other professions,the law provides safeguards for librarians who fear that in the process ofproviding the needed library service, they may be liable for copyrightinfringements.Philippine copyright law, Republic Act No. 8293 enumerates the follow-

ing safeguards for librarians in providing e¡ective dissemination ofinformation:

1. Fair Use Doctrine, Sec 185. Use of a copyrighted work for criticism,comment, news reporting, teaching, multiple copied for classroom use,


scholarship, research and similar purposes is not copyright infringementand may be considered as fair use. This privilege is given to peopleother than the copyright owner, to use the work even without hisconsent for as long as it is done in a reasonable manner. To determinefair use, the following factors should be considered:

(1) Purpose and character of the use, whether it is of commercialnature or non-pro¢t educational purposes;

(2) Nature of the copyrighted work;(3) Amount and substantiality of the portion used to the copyrighted

work as a whole;(4) E¡ect of use upon the potential market for or value of the work.

This provision on fair use does not provide a rule that may be auto-matically followed in determining whether a particular case is consid-ered as fair use. The enumeration is not exhaustive. Each of thesefactors are taken in a general term. This means, courts are given thediscretion to determine whether a particular case is fair or not by eval-uating all the evidences presented.When the purpose or character of useis ‘‘commercial’’ it is generally presumed that it is for pro¢t and unfairwhile non-pro¢t and fair for educational purposes. The burden ofproof rests on the defendant to convince the court that his commercialuse falls under the fair use. With regards to the amount and sub-stantiality of portion used, even through the portion used is the shortestor the smallest, it is considered as infringement if it is the heart of thework.There are no Philippine jurisprudence applying the ‘‘fair use’’ doc-

trine. Jurisprudence on this doctrine can be found only in the UnitedStates courts. Two United States cases involve researchers and studentswherein one was declared fair and the other unfair use. In Williams &Wilkins Co. v. U.S. (487 F2d 1345), the United States Court of Claims heldthat the large-scale photocopying of entire journal articles for the use ofresearchers, and private commercial organizations was fair use for lackof proof that the copyright holders su¡ered substantial harm from copy-ing and that there would be danger to medical research if the practicewould be made a copyright infringement. Decided di¡erently was thecase of Basic Books Inc. v. Kinko’s Graphics (758 F. Supp. 1522). The UnitedStates District Court of the Southern District of New York held that acommercial copyshop’s duplication of coursepacks for use of students incollege courses was not a fair use of the original works excerptedin the packets. Although these coursepacks were for students, they wereused to commercially exploit the excerpts without paying the permissionto do so.

28 M. SANTOS-ONG

2. Reproduction of Published Work, Sec. 187. Reproduction is allowed underthe following conditions:

(a) Made in a single copy;(b) For private use;(c) Exclusively for research and private study.

Exceptions are:

(1) Work of architecture;(2) Entire book, or substantial part thereof, or of a musical work in

graphic form or reprographic;(3) Compilation of data or materials;(4) Any work in cases where reproduction would unreasonably

con£ict with a normal exploitation of the work or wouldotherwise unreasonably prejudice the legitimate interest of theauthor.

Reproduction is a major problem as far as copyright laws are con-cerned. The INFRO General Papers; Reprographic Reproduction illustratedthe great extent of this problem by statistics in the mid 1990s comingfrom Denmark, Finland, Norway and Sweden, where from approxi-mately 23 million inhabitants, a total of more than 3000 million pageswere copied for educational purposes. The same study stated that ‘‘theproportion of protected materials being copied is usually highest in uni-versities.’’ Reproduction Rights Organizations (RROs) are being estab-lished in di¡erent countries including the Philippines to solve thisreproduction problem and to license the reproduction of copyrightedworks. In order to collect royalties and convey authorizations interna-tionally, RROs must enter into bilateral agreements. Since these organi-zations have just been organized in di¡erent countries, their e¡ectivenessin centrally administering copyright cannot yet be measured.The Philippines shares the same reproduction problem as the above

mentioned European countries. Photocopying shops surround the uni-versities. The problem is must greater for students reproduce not onlyjournal or periodicals articles but also entire textbooks. This practiceis worse than the Basic Books Inc. v. Kinko’s Graphics Corp (758 F. Supp.1522) for textbooks are reproduced in its entirety without even any slightmodi¢cation.Librarians may be guilty of this too if they knowingly allow and

condone students to do it. They should put notices either in the librarypremises or library brochures on the limitations of reproductionor photocopying of copyrighted materials. In Singapore, the Instituteof Southeast Asian, Studies explicitly incorporated in its Library Guideto Collections & Services the following photocopying limitations: ‘‘Users


should observe the conditions stipulated in the Singapore CopyrightAct of 1987 and are not allowed to bring materials not found in theLibrary for photocopying.’’Librarians can control this for cases where photocopying equipment

are found within library premises. Some universities in the Philippineshave placed notices to remind their clientele of these photocopyinglimitations. To allow students to do so, librarians can be prosecuted asprincipal or as an accessory. In legal parlance, librarians may be prose-cuted as co-defendant. Under the Philippine law, sec. 217 of Republic ActNo. 8293 provides the penalties of imprisonment and ¢ne for aiding orabetting infringements.Librarians and library associations can even assist in protecting the

rights of copyright owners. In one of the seminars conducted by thePhilippine Group of Law Librarians (PGLL) on available legal databasesin the Philippine, one company requested that they be allowed topresent the legal database that they developed. They claimed that theirsystem is so e¡ective that the legal departments of top multinational cor-porations have acquired their database. In their presentation, theylifted or copied cases from the Supreme Court Reports Annotated (SCRA), acommercially available compilation of Supreme Court decisions.This is a clear copyright infringement. The person presenting his data-base did not know that the President and publisher of the SCRAwas present. This company entered into an amicable settlement withthe SCRA publisher so as not to be sued. I believe that it ceases toexist.The mistake of this company was that they did not ask the permis-

sion of the SCRA publisher when they copied or reproduced the casesin their database. They could have avoided asking permission if theyhad used government publications which contain the full-text of Su-preme Court decisions such as the Philippine Reports. Section 175 of RepublicAct No. 8293 provides that government publications are not covered bycopyright. With this incident, librarians are able to protect the rights ofthe copyright owner.A raid was conducted in some photocopying shops in the ‘‘university

belt’’. The result of the raid showed photocopied or reproduced bookbearing the imprint of the ‘‘Supreme Court’’. When confronted by theauthor of the book, their defense was that they did not know of the re-production of the book for other clients were allowed to take out thebooks for a week. There is no way for the librarian to know whetherduring the said period, books are being reproduced. Neither can theypinpoint who among the borrowers of the said book photocopied it. Inthis situation, only the owner of the photocopying establishment can beprosecuted.

30 M. SANTOS-ONG

3. Reproduction by Libraries, Sec. 188. Reproduction is allowed for librariesand archives whose activities are not for pro¢t and made for a singlecopy for the following purposes:

(a) Fragile character of the original;(b) Isolated articles contained in composite works or brief portions is

reproduced to persons requesting them for research or studypurposes, instead of lending the volumes or booklets containingthem;

(c) where the original work has to be preserved or has been lostdestroyed or rendered unusable or in case of intra-loan, if thebook in the permanent collection of another, has been lost,destroyed or rendered unusable and no copy can be obtainedfrom the publisher or is out of print.

This provision speci¢es the preservation and replacement groundswhere reproduction of a single copy is allowed. Acquisition is not oneof them. There have been situations where a book is needed but it couldnot be readily purchased locally or is ‘‘out of stock’’. The librarian has tochoose between whether to provide the needed material by reproducingit and possibly infringe copyright or to tell the client that he does nothave it. If the activity is for educational or research purposes, then itcan readily fall under the fair use doctrine. How can a company librar-ian or a librarian in an institution not involved in education or researchremedy the situation? As a librarian, our duty is to provide informationat the time and in the manner that it is needed. On several occasions,librarians chose to take the risk of infringing copyright and reproduce infull the needed material.There seems to be a gray area as far as ‘‘out of print’’ or ‘‘out of stock’’

materials are concerned. If a book is out of print, are we licensed toreproduce a copy? What if it is just temporarily out of print and a bookis needed? The view of a professor of law is to allow librarians to photo-copy the whole book to replace a missing book or volume or parts ofpublished work are ‘‘out of stock.’’ The opinion of a retired justice whois an author of legal treaties, is to ask the permission of the author. Theproblem for this opinion is when the author is dead. It is di⁄cult to askthe permission of the rightful heirs. In my opinion, if reproduction isdue to any of the three above enumerated purposes, the Librarian canreproduce a single copy. However, if the purpose is to just have an avail-able copy in the library or to acquire one, then I must agree with theopinion of the retired justice that the permission of the copyright owneror his heirs must be sought.Those who can automatically photocopy ‘‘out of stock’’ works are

the depository libraries created by special laws namely: Presidential Decree


No. 812 and Republic Act No. 8293. The National Library and the SupremeCourt Library are two of these depository libraries.Sec. 188.2 of Republic Act No. 8293 allows the reproduction of ‘‘a volume

of a work published in several volumes or to produce missing tomes orpages of magazines or similar works, unless the volume, tome or part isout of stock; provided that every library which, by law, is entitled to receivecopies of a printed work shall be entitled, when special reasons require, toreproduce a copy of a published work which is considered necessary forthe collection of the library but which is out of stock.Liberal interpretation of the law is recommended. However, the

courts are empowered by the Constitution to determine the proper in-terpretation, if a case is ¢led in court. Otherwise, librarians should becautious in reproducing these materials.Reproduction of a single copy has been abused by some libraries who

have budgetary constraints or limitations. They legitimately purchase acopy but they reproduce several copies due to the demands of the client.In the Philippines, some librarians admittedly reproduced copies of abook, not due to the above mentioned reasons but due to ‘‘property ac-countability of librarians’’. This makes Philippine librarianship unique.The librarian is personally accountable for any loss of library material.So for expensive books, they photocopy it, keep the original and use orservice the photocopy.Will this reason fall under the ambit of the excep-tion provided by the law?

4. Reproduction of Computer Programs, Sec. 189. Reproduction of one back-up copy or adaptation is permitted provided:

(a) Use of the program in conjunction with the purpose and to theextent to which the computer program is obtained;

(b) Archival purposes or replacement of the lawfully obtained copywhich is lost, destroyed or rendered unusable.

The copyright law of Thailand, the United States and the rest of thecountries which are signatories to the above enumerated internationalagreements have speci¢c provisions for ‘‘Fair Use Doctrine.’’ The UnitedStates copyright law limits the types of libraries which bene¢t from ex-emptions to ‘‘non-pro¢t libraries, archives and educational institutions’’.Filipino librarians can be considered to be more fortunate for having

more safeguards expressly provided by law. No librarian has ever beenindicted or prosecuted on copyright infringement.

Copyright protection digital worksThere are no clear cut rules or expressed provisions of copyright law ondigital technology. Republic Act No. 8792 primarily seeks to promote

32 M. SANTOS-ONG

e-commerce in the Philippines, particularly in business-to businessand business-to-consumers transaction. However, it recognizes the useof electronic documents, ‘‘criminalizes’’ hacking of computers or thelaunching of viruses and penalizes piracy of copyrighted works (Sec. 31(b)).This legislation is considered an important legislation to boost economicrelations among ASEAN regions electronically. To guarantee its imple-mentation, this law further provides for penalties to related crimes par-ticularly those that involve hacking and piracy. A recent crisis in theelectronic world was brought about by the ‘‘I Love You’’ virus. The infa-mous event brought the Philippines into limelight for the source of thevirus was traced to a student from AMA Computer College. An esti-mated 10 billion worth of computer ¢les worldwide were destroyed.The Philippines was placed in a tight predicament for there was no spe-ci¢c law on ‘‘cyber crime’’. Even before this ‘‘I Love You’’ virus, a bill onelectronic data interchange had been ¢led as early as 1998 in bothHouses of Congress, sponsored by Senators Juan Flavier and Blas F.Ople and Congressman Harry Ang Ping. Subsequent bills on e-com-merce were introduced by Senator Flavier, and Congressmen Roilo Go-lez, Leonardo Verceles, Jr and Marcial Punzalan, Jr. With the able anddedicated charimanship of Senator Ramon B. Magsaysay, Jr, of the Sen-ate Committee on Trade and Commerce and Science and Technology,public hearings and consultations were conducted. As a result, a substi-tute bill was ¢led and the e-commerce bill was approved on third read-ing on 10th April 2000. In this respect, this e-commerce law wasapproved even prior to the devastation brought by the ‘‘I Love You’’virus.The passage of Republic Act No. 8792 did not solve the problem, for

Philippine laws cannot be implemented retroactively. The Philippines isthe ¢fth country in Asia to legislate the e-commerce law. Other coun-tries are Singapore, Malaysia, South Korea and India.In case of controversy electronic applications where existing laws

cannot be applied, interpretation is made by the Courts for immediatesolution. For more controversial ones, further revision to existing copy-right laws is the answer. Library advocacy must be practiced whenlaws a¡ecting libraries/librarians are pending to be assured of betterrights, and safeguards in the performance of their functions andresponsibilities.In the Unites States, the bill amending the copyright law, Digital Mil-

lennium Copyright Act (DMCA), Pub. L. No. 105^304, 112 Stat. 2860, wassigned by President Bill Clinton on 28th October 1998. It speci¢callycovers ‘‘webcasting’’ activities. This law, which will take e¡ect next year,provides that it will be a crime to create or sell any technology thatcould be used to break copyright protection devises. DMCA empowered


the Librarian of Congress to set the rules who gets exemptions and willwork with the Commerce Department to study whether the new tech-nological barriers sti£e fair use. In the Philippines, the Intellectual PropertyLaw provides that the Director of The National Library, after due con-sultation with librarians, books dealers, and other a¡ected profession,shall promulgate the ‘‘Copyright Safeguards and Regulation.’’Major copyright problem in the ¢eld of digital technology is more on

software piracy than the Internet application per se. This statement isgenerally applicable to developing countries like the Philippines wherethe on-line technology is not yet widely used. The situation is di¡erentfor developed countries like the United States, United Kingdom, otherEuropean countries, Japan and even ASEAN countries, particularlySingapore and Malaysia, where this technology has spread to all walksof life. Countries who use on-line technology must know how to managethe di¡erent aspects of the cyberworld to avoid chaos. This was clearlydiscussed by Margaret Philips in her paper ‘‘Managing Chaos in theCyberworld’’ for the 11th CONSAL. With the passage of Republic ActNo. 8792, the use of on-line technology will be faster. Senator Ramon B.Magsaysay, Jr in an interview and later published in the national news-papers of the Philippines, stated that the passage of Republic Act No. 8792provided an ‘‘express mandate within two years form the e¡ectivity ofthe Act to all government departments, business, o⁄ces, agencies, enti-ties and instrumentalities as well as government-owned and controlledcorporations to use and accept electronic data messages, documentsand signatures in their transactions’’. This is signi¢cant for an expressmandate is provided for the legal recognition and admissibility of elec-tronic data messages, documents and signatures. This law further man-dates the ‘‘installation within two years from the e¡ectivity of the Act ofan electronic on-line network otherwise known as the RPWEB to pro-mote the use of electronic documents and data messages in governmentand to the general public.’’Fair use doctrine and the other safeguards previously discussed for

printed or tangible works may be applied to digital works. Available lit-erature reveals that the problem with the Internet is not so much copy-right infringement but hackers, those who steal information and thosewho feed wrong information, whether intentionally or not especiallythose involved in e-commerce and trade. In the United States andUnited Kingdom, there are cases on ‘‘cybersquatting’’.3 Prior to the pro-mulgation of Republic Act No. 8792, there was no speci¢c law penalizingInternet hacking as a crime. Some sectors suggest that Internet hacking

3 Villafuerte, N.F. (2000) Cybersquatting in the internet. Manila Bulletin, 16th March 2000(http://www.mb.com.ph).

34 M. SANTOS-ONG

may be prosecuted using the fraud or malicious mischief and other simi-lar provisions of the Civil Code of the Philippines or the Revised Penal Codeor a special law, Republic Act No. 8484. Republic Act No. 8484 is ‘‘an actregulating the issuance and use of access devices, prohibiting fraudulentacts committed relative thereto, providing penalties.’’ Although this lawrecognizes the recent advances in technology and the widespread use ofaccess devices, it was not included in the list of laws that I have enum-erated in the historical background for this law deals speci¢cally withcommercial transactions only. In this regard, the case against the sus-pected ‘‘developer or creator’’ of the ‘‘I Love You’’ virus was dismissedfor lack of an appropriate law that could be used for the prosecution ofthe crime which cause multimillion dollar damages all over the world.People who will commit this crime will not be as fortunate for RepublicAct No. 8792 has cured this defect in the Philippine legal system.

1. Internet. Internet is a federation of computer networks or an interna-tional network of interconnected computers. It has features and capabil-ities which need not be discussed in detail for it is now a byword inalmost anything that people do, for education, health care, entertain-ment, economic trends such as stock market, trade and commerce andto simply update the stock knowledge of people all over the world. Anarticle by the Undersecretary of Trade NellyVillafuerte, published in theManila Bulletin dated 8th March 2000, stated that for the United Statesand Canada alone, there are 50�6 million Internet users. Japan has 20millionWeb users while South Korea has 7�8 million users.’’4 This ¢gureincreases every day. Even the number of Internet Providers and Serversare likewise increasing. For the Philippines, the available statistics for1998 listed 320 000 Filipino Internet users. Recently ASEAN countrieshave met to e¡ectively use this medium in trade or what they calle-commerce.The Internet is largely unregulated by governments. It is understood

that existing laws such as copyright, right to privacy, freedom of speechand law on contracts apply to Internet transactions. However, somequarters believe that the law on copyright or intellectual propertyshould be applied in view to the characteristics or elements of Internettransactions. Internet content which is coded in digital form, permitsidentical copies of the work to be immediately accessed, transmittedand reproduced. This they say maybe copyright infringement. However,the express provision of a special law (US DMCA, Republic Act No. 8792 orthe E-Commerce Act) can serve as a defense of possible claims of copyrightinfringement on the use of the Internet and other digital works.

4 Villafuerte, N.F. (2000) Internet and World WideWeb. Manila Bulletin, 8th March 2000.


Prior to the enactment of these special laws, the Internet process cantechnically consider all users of the Internet, not just libraries and librar-ians as guilty of copyright infringement. Cases have been ¢led in theUnited States on infringement made by service providers, the most no-table of which is the Case of Religious vs. Netcom On-Line CommunicationService (907 F. Supp. 1361). The Federal Court of California decided that‘‘liability of an access provider vis-a' -vis temporary digital copies, serversshould not be held liable for incidental copies automatically made ontheir computers using their software as part of a process initiated by athird party. Where the actions of a provider are automatic and indiscri-minate, the infringing subscriber is directly liable for the same act; itdoes not make sense to adopt a rule that could lead to the liability ofcountless parties whose role in infringement is nothing more than set-ting up an operating system that is necessary for the functioning of theInternet. Internet service providers and bulletin board systems are alsoin a way provided relief in this case.’’ Prosecution in the Internet is moreon the provider and not the user.Copyrighted works which are placed in the Internet have implied

consent or implied license from the author to reproduce it using the ‘‘In-ternet transactions or process.’’Authors who allow their works to be onthe Internet are presumed to know that the operation of this technologyallows the user to make a digital archives for the purpose of reading.There are works in the Internet which cannot be read in full unless theuser subscribes to it. This subscription requirement may be equated to‘‘consent’’ needed before full access may be made. Clear infringementof copyright may be when a copyrighted work ¢nds its way in the Inter-net without the knowledge of the copyright owner.

2. Software. In the digital era, software problems may be dealt with bycopyright, patent, trademark or licensing. Aniceto Ribao in his articlesstated that ‘‘Infringement is called theft of copyright or software piracywhich involve any of the following:

(a) Unauthorized duplication of computer program;(b) Softlifting and disk-swapping. Softlifting is the unauthorized

copyright of software within a business organization to createcopies for the employees use or take home. Those wholegitimately purchase a single user version are consideredsoftlifters once this is loaded in a multiple machines or network.Disk-swapping is the unauthorized exchange of software;

(c) Hard-disk loading is the loading of counterfeit software.Hardware vendors use this for promotions. For the price of ahardware, and several software are installed for free;

36 M. SANTOS-ONG

(d) CD-ROM piracy;(e) Copying of some program elements;(f) Copying of the organization, structure or design of program.The last two infringements are called ‘‘software plagiarism’’.5

In an article in the Philippine Daily Inquirer dated 6th March 2000,6

the Philippines is considered the second biggest exporter of developedsoftware, next to India. Despite this, software piracy is prevalent. How-ever, the Philippines is happy with the result of a survey published inthe Manila Standard dated 5th June 2000 that software piracy rate hasgone down from 77% in 1988 to 70% in 1999, the second lowest inSoutheast Asia. The lowest is Singapore by 51%. The article publishedin the Manila Standard further provided that: ‘‘Piracy losses exceeded $12billion worldwide in 1999 and topped $59 billion during the past ¢veyears. The survey, which was conducted by the Business SoftwareAlliance (BSA) and the Software and Information Agency Association(SIAA), found that software piracy in the Asia Paci¢c Region amountsto $2�8 billion in 1999 led by a $975 million loss for Japan. Countrieswith the highest piracy rates were Vietnam, China, Indonesia andIndia.’’7 According to the article by Carmina Reyes8 in a nationalPhilippine newspaper, piracy rate losses for the Philippines in 1998was P1�24 billion. The Philippine government in 1999 lost P170 millionin tax revenues due to piracy. BSA is a member of the NationalInformation Technology Council (NITC). Other members are: Adobe,Apple Computer, Autodesk, Bentley Systems, Compaq, Core Corp.,Intel, Microsoft, Network Associates, Vovell, Sybase, Symantee andWalker Digital.The top ten pirated software packages listed byAniceto Ribao in 1997

are: DOS,Windows,Wordstar, Lotus 1-2-3, dBase IV, Norton Utilities,Word forDOS/Windows, Virus Scan, Norton Archives and Pagemaker.9 There is also arampant piracy in educational software such as Encarta, games, CD-ROMS and other multimedia devices. The Jurisprudence CD-ROM ofLex Libris which contains the full text of complete Supreme Court deci-sions from 1901 to present is a victim of piracy. This two-CD Jurispru-dence which costs about S$1500�00 is sold by some ‘‘student groups’’ atS$16 and at S$22 to S$35 by some computer stores. Piracy started from

5 Ribao, A. (1997) Legal and practical considerations of software piracy. World Bulletin 13, 44.6 Salazar, T.R. (2000) Philweb bares plans; eyes software development o⁄ce in Silicon Valley.

Philippine Daily Inquirer, 26th March, 2000.7 Software piracy losses in 1999: $12b. Manila Standard, 5th June 2000.8 Reyes, C.E. (2000) CD piracy: a problem that won’t go away, Philippine Daily Inquirer, 25th July

2000.9 Ribaro, A. (1997) Op. cit. p. 51.


the students of a law school and has spread to other law schools. How-ever, the piracy is so well entrenched that the violators could not beidenti¢ed.Software piracy has been spreading to all sectors of the country that

even the government cannot safely say that they are not guilty of soft-ware piracy. Former President Fidel V. Ramos had to issue MemorandumCircular No. 115 on 5th April 1995, directing all departments and govern-ment agencies and instrumentalities to legalize computer software. Incompliance, the Department of Trade and Industry Secretary issuedDepartment Order No. 10, Series of 1995, directing all bureaus, o⁄cesand attached agencies to acquire only legitimate/licensed software andto move towards the standardization of software. If there was the possi-bility for the government which has a budget of its own to haveacquired unlicensed software,10 the more can software infringement hap-pen in libraries which are generally given the lowest priority as far asbudget is concerned. Librarians can be prosecuted from software piracyif they buy pirated materials for their library.Librarians, even in their personal capacity, may be guilty of softlifting

and disk-swapping pirated copies. Take the case of the two CD Jurispru-dence. The price of a single user version is di¡erent from the networkversion. What some libraries do is purchase the single user version as itis cheaper. However, they themselves install it in another computer or ina network. With this, two or more people can use the CD at the sametime. This is softlifting.Disk-swapping is common practice which may include librarians. If a

librarian from an academic institution takes part in disk-swap, can thisbe equated to the exemption for educational or research purposes?

ENFORCEMENT OF COPYRIGHT LAWS

The Philippines has speci¢cally legislated laws to protect intellectualproperty laws. However, strict implementation of the laws are slow.The Presidential Inter-Agency Committee on Intellectual PropertyRights was created by former President Ramos as a forefront of infor-mation campaign, seminars, dialogues and enforcement activities. Thisagency together with the National Bureau of Investigation (NBI) con-duct raids in di¡erent commercial establishments. 16th February 2000,the NBI raided and padlocked Bobcock-Hitachi Phil. Inc, a multi-national company illegally reproducing a foreign brand of computer

10Quirino, A.A.G., Fider, A.S., Syquia, Ma. D.T. & Pascual L.L. (1996) IPR developments in thePhilippines. World Bulletin 12, 11.

38 M. SANTOS-ONG

software. P7 million worth of fake software seized were raids are con-tinuously being conducted by the NBI, and related agencies in piracycases relating to software, CD, VCD, DVD, cassettes and other intellec-tual property materials. However, despite the vigorous campaign of thegovernment, violators openly sell pirated copies in shops and even onside-walks. The latest movies from the United States are sold inVCD atUS$2�00 even prior to their o⁄cial public screening in local moviehouses or theaters. In a case involving Lex Libris CD-ROMs, an adver-tisement was even placed in the 25th January 2000 issue of the BUY &SELL Magazine with a selling price of only P800 or US$18�00 while theactual price is more or less $778�00. This advertisementwas the key to the test buy conducted by the Intellectual PropertyDivision of the National Bureau of Investigation. After a search warrantwas issued by the court, a raid was conducted. The case is now withthe Legal Department of the National Bureau of Investigation readyfor ¢ling with the Department of Justice, which is in the initial phaseof prosecution.Copyright piracy is patronized by the public due to its lower prices.

Copyright piracy is on a commercial scale which can be criminally pro-secuted in countries which have adhered to theTRIPS Agreement.Enforcement of intellectual property laws is the responsibility of

courts. Thailand, Malaysia and the People’s Republic of China havecreated specialized intellectual property courts. In Thailand, it is calledthe Central Intellectual Property InternationalTrade Court.11 For other countriessuch as Indonesia and the Philippines, ordinary courts are designated totry intellectual property rights cases. The Supreme Court of the Philip-pines under Administrative Order No. 113-95, designed 48 regional and mu-nicipal trial courts to try and decide cases for violations of laws onintellectual property committed in the respective territories. SupremeCourt Administrative Order No. 104-96, was issued clarifying that intellec-tual property rights cases be tried exclusively by the Regional TrialCourts and withdrawing the designation of the Metropolitan and Muni-cipal/CityTrial Courts as part thereof. However, Carmina Reyes in herarticle recommends that ‘‘the Supreme Court needs to designate morespecial courts to handle IPR cases and more judges who can issue searchwarrants which can be serviced in any place in the country.’’ Raids arenot as e¡ective due to the problem of securing a search warrant.For 1999, there were 313 newly ¢led cases in these courts designated to

try intellectual property cases; 170 are pending and 363 have been

11Sumawong, A. (1999) Infringement of intellectual property rights. Some case studies in the¢eld of copyright and related rights: Thailand’s experience. In Proceedings of the WIPO ASEANSub-regional Colloquium for Judges and Prosecuters on the Enforcement of Intellectual Property Rights in theContext of theTRIPS Agreement, Manila, 27th^29th October, 1999.


decided upon. These decided cases are rarely appealed to the SupremeCourt (Appendix A). From 1901 to the present, there are only ¢ve caseswhich reached the Supreme Court on violations of copyright laws. Thetitles of the cases are listed in Appendix B. There cases involve ¢lms,one aTV program, and the last is the civil liability of a book publisheralleging copyright infringement. For January to 15th March 2000, thereare already 14 newly ¢led cases, 10 of which come from Pasig City.Based on Appendix A, Pasig City is the place where there are a lot ofcomputer shops. In fact one of the pending cases involving the Lex LibrisCD-ROMs, People v. Jaime Cruz et al. is pending in Pasig City. A test buywas conducted with the assistance of the police in a Shopping Complexwhere many computer shops are located. Several pirated copies werecon¢scated from two shops. The accused through their counsel, o¡eredto testify against the principal members of the syndicate. The next trialwas set on 12th April 2000. Let us just hope that no librarian is a part ofthat syndicate.Singapore has a more advanced remedy for intellectual property in-

fringement. The Court Dispute Resolution International (CDRI)12 is a settle-ment conference conducted by a Singapore Subordinate Court judgeand a counterpart judge form other countries such as the United Statesor in Europe. The judges, solicitors and litigants are brought together,not physically but by real time video conferencing. There settlementconferences are voluntary and non-binding in nature and any settlementis the consent of the parties.Vigorous campaigns have been made. In the Philippines, the Philip-

pine Exporters Confederation, Inc. commissioned the StandfordResearch Institute International to undertake a study on the problemsof the adjudication procedures of intellectual property cases. The follow-ing were identi¢ed as principal constraints in adjudication:

‘‘Adjudication system

(a) Investigation(1) di⁄culty in obtaining receipts to prove sale of counterfeit items;(2) di⁄culty in establishing identity of violators;(3) problem ¢nding witnesses to sign a⁄davits;(4) refusal by owners to allow entry during raids;(5) availability of judges;(6) ‘‘protection’’ o¡ered by ‘‘in£uential friends’’;(7) lack of storage space for seized evidence.

12 Thean, V. & Chionh, M. (1999) Dispute resolution of intellectual property rights: an inter-national judicial approach. In Proceedings of the WIPO ASEAN Sub-regional Colloquium for Judges andProsecuters on the Enforcement of Intellectual Property Rights in the Context of the TRIPS Agreement,Manila, 27th^29th October, 1999.

40 M. SANTOS-ONG

(b) Prosecution phase(1) inability of respondents to answer subpoena and notices;(2) liberal extensions granted to appear in preliminary hearings;(3) motions ¢led to challenge search warrant or validity of

complaint;(4) court congestion;(5) excessive reliance on technicalities and strict evidentiary

requirements;(6) lack of technical knowledge of judges on intellectual property;(7) low priority given to intellectual property cases.13

Enforcement of intellectual property rights cases is now gainingground with the following development:

(a) Promulgation of special laws such as Republic Act No. 8484 andRepublic Act No. 8792;

(b) Entering into the international agreements;(c) Serious enforcement on the provisions of the law on intellectual

property by law enforcers, ¢scals who prosecute them and thejudges who decide on the cases;

(d) Orienting the people on the provisions of existing intellectualproperty laws and the e¡ects that they bring to the community.’’

CONCLUSION

Issues on copyright laws have been discussed. The provisions of the lawmust be our guide for in law, ‘‘ignorance of the law excuses no one’’. Thechallenge is now before us. How will we ful¢ll our mission in providinge¡ective and accurate dissemination of information to our clients with-out infringing the rights of intellectual property owners?In the Philippines, the right to information is guaranteed under the

1987 Philippine Constitution (Bill of Rights, Art. III, Sec. 7). The right of scien-tists, inventors, artist and gifted citizens to their intellectual propertycreation are likewise protected by Art. XIV, Sec. 13 of the 1987 Constitution.We librarians have the duty to provide access to information to our cli-entle, the public. In this regard, we librarians should provide a balancebetween the rights of the owners of copyrighted works and the freeexchange of ideas or public access to information must be formulated

13 Carag, C.A., Maria Trinidad P.V. (1999) In the eye of the storm: The issues on intellectualproperty rights enforcement from the standpoint of the intellectual property owners and practi-tioners. Delivered at the WIPO ASEAN Sub-Regional Colloquium for Judges and Prosecutors on theEnforcement of Intellectual Property Rights in the Context of the TRIPS Agreement, Manila, 27th^29thOctober, 1999.


and implemented in order to e¡ectively perform our role in society andassist in the growth of every nation.Librarians as information providers are protected from copyright in-

fringement by the fair use doctrine and other safeguards to e¡ectivelyperform their functions. They must, however, know the limits andbounds of these safeguards. They should not use these safeguards as‘‘license’’ or make these safeguards as excuse to infringe the rights ofthe copyright owners. Librarians should not be the tools or the meansby which the clients they serve will infringe the rights of copyright own-ers. By doing so we will be as guilty as the principal or we will be ac-cessory to the crime. Librarians should be honest and upright. Theyshould not compromise their principles in providing service to their cli-ents at the detriment of copyright owners.Library advocacy may be practiced in cases where laws and regula-

tions a¡ecting the library profession are being drafted, pending or are tobe implemented in order to be assured that the mission and vision of theprofession would be rightfully implemented.

Newly ¢led an

2000

Station wlyled Disposed

Pendingend

Reportas of

National CapitalManila 0 0 0 Jan-00Quezon City ö ö NR*Pasay City 0 0 0 Jan-00Kaloocan City 0 0 0 Jan-00Makati City 0 0 1 Jan-00Pasig City 10 0 16 Jan-00Malabon 0 0 0 Jan-00Las Pi¢as City ö ö NR*Muntinlupa C 0 0 0 Jan-00Para¢aque Cit 2 0 2 Jan-00Marikina City 0 0 0 Jan-00Valenzuela Cit 0 0 6 Jan-00Third Judicial RMalolos, Bulac 0 0 0 Jan-00

42M.SA

NTOS-O

NG

APPENDIX A

d disposed cases on IPR violations

1999

Newly¢led Disposed

Pendingend

Reportas of

Ne¢

Judicial Region163 238 8569 62 40 Oct-99 öö ö ö NR*6 0 3 Jun-99ö ö 12 Dec-9955 55 3 Jun-990 0 0 Jun-99ö ö ö NR* ö

ity ö ö ö NR*y 9 1 10 Nov-99

0 0 0 Sep-99y 0 3 5 Jun-99egionan 0 0 2 Dec-99

Angeles C., Pampanga 2 1 1 Jun-99 2 0 4 Jan-00Sn. Fernando, Pamp. ö ö ö NR* 0 0 0 Jan-00

Jun-99 0 0 0 Jan-00NR* 0 0 1 Jan-00NR* 0 0 0 Jan-00Jun-99 0 0 0 Jan-00NR* 0 0 0 Jan-00Aug-99 0 0 0 Jan-00

NR* 0 0 0 Jan-00ö ö ö ö öNR* 0 0 0 Jan-00

NR* 0 0 0 Jan-00

NR* 0 0 0 Jan-00

NR* 0 0 0 Jan-00

Sep-99 0 0 0 Jan-00

COPY

RIG

HTAND

LIB

RARIE

S43

Fourth Judicial RegionBatangas City, Bats. 1 1 0Lipa City, Batangas ö ö öBi¢an, Laguna ö ö öCalamba, Laguna 0 2 0San Pablo City, Lag. ö ö öSan Pedro, Laguna 1 0 1SixthJudicial RegionIloilo City, Iloilo ö ö öBacolod City, Negros ö ö öOccidental ö ö öSeventhJudicial RegionCebu City, Cebu ö ö öNinthJudicial RegionZamboanga City ö ö öTenthJudicial RegionCagayan De Oro City ö ö öEleventhJudicial RegionDavao City 7 0 8

*No report

44 M. SANTOS-ONG

APPENDIX B

Philippine cases on copyright infringement

Columbia Pictures, Inc. v. Court of Appeals, G.R. No. 110318, August 28, 1996, 261 SCRA 144(1996).Joaquin, Francisco v. Drilon, Franklin, G.R. No. 108946, January 28, 1999, 302 SCRA 225 (1999).People v. Estrada, EstrellaT, G.R. No. 124461, September 25, 1998, 296 SCRA 383 (1998).Phoenix Publishing House, Inc. v. Ramos, Jose T., G.R. No. L-32339, March 29, 1988, 159 SCRA383 (1988).20th Century Fox Film Corp. v. Court of Appeals, G.R. Nos. 76649-51, August 19, 1988, 164 SCRA655 (1988).

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