ILLEGAL PHOTOCOPYING AND BOOK PIRACY IN THE PHILIPPINES AND IT EFFECTS TO THE LOCAL BOOK INDUSTRY / THE PHILIPPINE COPYRIGHT LAW AND CHALLENGES by ATTY. DOMINADOR D. BUHAIN President, PEPA and REX Book Store, Inc. (Seminar-Workshop on Operating a Reproduction Rights Organization,September 5, 2005, SEAMEO-Innotech, Diliman, Quezon City) Admittedly, we do not have accurate facts and figure on the effects of photocopying in the book industry. Allow me however, to share to you some experiences we have been encountering in my company, REX Book Store, Inc. ( RBSI) to fight piracy. Sometime in July, 2005, RBSI conducted routine surveillance at the photocopy centers located in Mendiola St., Manila. We were able to chance-upon the owner of a copy center in the act of photocopying books printed and published by RBSI. We spoke and explained to the owner that the act of photocopying said books is illegal and that he can be held criminally liable. The man, for his part, understood the consequences of his action and therefore voluntarily agreed to surrender the illegally reproduced books to our company. It was learned that said person has a pending case for Copyright Infringement before the Office of the City Prosecutor of Manila. A similar incident happened in Cagayan de Oro wherein the owner of a university voluntarily surrendered various copies of illegally reproduced books after our representative has conducted surveillance and test-buy operations in their bookstore. Sometime in 2004 we filed an application before the Regional Trial Court of Manila for a search against one company for photocopying lawbooks published by RBSI in violation of RA 8293. Following the application, the operatives of NBI carried out the raid of the business establishment which has resulted in the confiscation of unlawfully reproduced books. There was an instance when we received an information that a former employee of RBSI is in possession of negatives (flat) of the book “Philippine Constitution” The informant revealed that said former employee is looking for a financier for the printing of said book. The informant further said that the person is willing to sell the negatives (flats) in the amount of P200,000.00. After several meetings with the informant, it was agreed tht an entrapment operation be carried out to recover the negatives. Our representative posted himself as the buyer together with the operatives of the CIDG. During the said entrapment, two suspicious-looking females arrived at the scene carrying a bag which prompted our representative to approach them and ask for the negatives. In the presence of the CIDH, the two ladies surrendered the negatives and divulged the mastermind of the illegal scheme . On December 2, 2003, RBSI together with agents from the NBI Intellectual Property Rights Division (NBI-IPRD) applied for and was issued a search for violation of RA 8293 before the Regional Trial Court Branch 24. On the same day, the operatives of the NBI-IPRD conducted a raid at the aforesaid stalls. Seized from them were assorted infringed copies of the books Basic Mathematics for College Students and Developmental Reading Skill for College Students. Initial information from RBSI Davao revealed that some educational institutions are engaged in the sale of infringed copies of our books entitled General Psychology with Values Development Lessons and Basic Mathematics for College Students. RBSI representative and the NBI operatives conducted confirmatory test-buy which yielded positive result. Later, NBI filed an application for search warrant against the owner of the bookstore operating inside the university. RTC Judge of Davao City issued search warrants. On the same day, operatives of the NBI served the aforesaid search warrants which again yielded positive result. Seized from the suspects are the following: • 729 pieces of General Psychology • 4 pieces Basic Mathematics for College Students • 9 pieces The Law on Negotiable instruments • 9 pieces Textbook on Agrarian Reform Todate, the university has been ordering books from us amounting to P1,000,000.00. There was likewise a time when our Company sought the assistance of GMA-7 in our effort to increase public awareness on the ill-effects of book piracy. The segment producer and a cameraman proceeded to suspects’ stalls purposely to conduct test-buy of books . Our representative was able to buy illegally reproduced books and the full transaction was recorded with the aid of the surveillance camera. 2 With the help of the CIDG and Police Anti-Fraud and Commercial Crimes DivisionCriminal Investigation and Detection Group (AFCCD-CIDG) simultaneous raids were conducted at the aforesaid stalls . Seized from them were several copying machines and assorted illegally reproduced books. At this juncture, allow me to say a few words about copyright in general as well as possible recommendations as PEPA President and Chairman of the Legislative Affairs Committee. PREFATORY STATEMENT: Today, considering your knowledge on publishing, printing, writing and other aspect of publication, allow me to focus on the challenges facing the implementation of the Philippine Copyright Law and some recommendations that could be discussed during the round table discussions or group sessions. Along this line, allow me to lay down the premises as follows: THE CONSTITUTIONAL PROVISIONS RESPECTING COPYRIGHT The 1987 Philippine Constitution is replete with provisions respecting copyright, to wit: Section 13, Article XIV which states that: “The State shall protect and secure the exclusive rights of scientist, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law”. Also Section 10 of the same Article provides that: “Science and Technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology, education, training, and service. It shall support indigenous, appropriate, and self-reliant scientific and technological capabilities, and their application to the country’s productive systems and national life.” 3 To preserve the nation’s historical and cultural heritage and resources, the highest law of the land mandates that: “Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation’s historical and cultural heritage and resources, as well as artistic creations.” (Section 15, Article XIV) And finally, to protect the country’s historic wealth, Section 16 of Article XIV says that: “All the country’s artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition.” INTERNATIONAL AGREEMENTS ON COPYRIGHT To show that our country is serious in protecting intellectual creations, the mother land is a signatory or party to the following international agreements: (1) The Universal Copyright Convention (2) The Geneva Phonograms Convention is the Convention for the Protection of Producers Phonograms Against Unauthorized Duplication of Their Phonograms, concluded at Geneva Switzerland on October 29, 1971. (3) The Berne Convention, which is the Convention for the Protection of Literary and Artistic Work signed at Berne, Switzerland on September 9, 1886. (4) The World Trade Organization (WTO) Agreement. (5) The WIPO Copyright Treaty is concluded at Geneva, Switzerland on December 20, 1996. (6) The WIPO Performance and Phonograms Treaty is also concluded at Geneva, Switzerland on December 20, 1996. THE COUNTRY’S LAW On June 6, 1997, Congress passed R.A. No. 8293, otherwise known as the Intellectual Property Code of the Philippines. The law took effect on January 1, 1998 and provides in no uncertain terms that copyright protection automatically attaches to a work by the sole fact of its creation, irrespective of its mode or form of expression, as well as of its content, quality or purpose. 4 The new Code created the Intellectual Property Office and updated cum repealed the provisions of R.A. Nos. 165 and 166, P.D. Nos. 49 and 285 and their amendments. Of particular interest to us is Part IV of the Code from Sections 171 to 210 dealing on copyright. SUPREME COURT DECISIONS AND JURISPRUDENCE It bears emphasis that copyright is distinct and separate from trademarks or patents. As ruled by the Supreme Court in the cases of Kho v. Court of Appeals, G.R. No. 115758, 19 March 2002 and Pearl and Dean (Phil), Inc. v. Shoemart Incorpoarted G.R. No. 148222, 15 August 2003, wherein the highest tribunal ruled that “these copyright and patent rights are completely distinct and separate from one another, and the protection afforded by one cannot be used interchangeably to cover items or work that exclusively pertains to the others” The SC expounded further, thus: “Trademark, copyright and patents are different intellectual property rights that cannot be interchanged with one another. A trademark is any visible sign capable of distinguishing the goods (trademark) or service (service mark) of an enterprise and shall include a stamped or marked container of goods. In relation thereto, a trade name means the name or designation identifying or distinguishing an enterprise. Meanwhile, the scope of a copyright is confined to literary and artistic works which are original intellectual creations in the literary and artistic domain protected from the moment of their creation. Patentable inventions, on the other hand, refer to any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable.” (Underscoring supplied) In the leading case of Joaquin, Jr. v. Drilon, G.R. No. 108946, 28 January 1999, the Court explained the concept of copyright registration and its deposit with the National Library when it ruled that: Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by the statute, and not simply a pre-existing right regulated by it. Being a statutory grant, the rights are only such as the statute confers, and may be obtained and enjoyed only with 5 respect to the subjects and by the persons, and on terms and conditions specified in the statute. Accordingly, it can cover only the works falling within the statutory enumeration or description. And based on the ruling of the Supreme Court in the recent case of Ching v. Salinas, June 29, 2005, citing US jurisprudence the following are now basic principles on copyright: a) Ownership of copyrighted material is shown by proof of originality and copyrightability. By originality is meant that the material was not copied, and evidence at least minimal creativity; that it was independently created by the author and that it possesses at least same minimal degree if creativity. b) Copying is shown by proof of access to copyrighted material and substantial similarity between the two works; and c) The applicant of copyrighted material 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 CHALLENGES It must be noted that inspite and despite of the laws and jurisprudence there are various challenges as regards the implementation of the Copyright Law. Foremost of these challenges are the infringement of copyrighted materials and the illegal reproduction of copyrighted books and printed materials through photocopying, duplicating and printing materials. These illegal activities not only deprive the authors and publishers of the economic benefits in form of royalties and revenues but also affect the literacy of the country and citizenry. Rampant illegal reproduction of copyrighted materials is a dis-incentive that could prevent the sharing of knowledge and progress of thought. Along this line, I believe the matter should be address through the concerted effort of authors, writers, publishers, printers and other stakeholders to be spearheaded by the Philippine Reproduction Rights Organization (PRRO) by (1) Filing a test case against leading universities and entities who encourage and even suggested the photocopying of the copyrighted 6 materials in contravention and in complete disregard of the concept of “fair use”; (2) To support and initiate the filing of a remedial legislation that could provide mechanism in reproducing prescribed books and penalizing rampant and illegal reproduction of copyrighted books. As regards on the proposed legislation, as President of PEPA and Chairman of the Legislative and International Affairs Committee, I took the liberty of drafting a bill on the matter for your consideration and further improvement during your group sessions or workshops. Another challenge is the country’s membership with the ASEAN and other organization. It must be stressed that in Europe, member-states of the European Economic Council have a Copyright Directive for all member-states. The directive provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. In this regard, we should look into the possibility of the harmonization of the laws of the ASEAN countries on copyright and related rights. It should be emphasized that a harmonized legal framework on copyrights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of ASEAN industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. This will safeguard employment and encourage new job creation. Without harmonization of laws, may result in significant differences in protection and thereby in restrictions on the free movement of services and products incorporating, or based on, intellectual property, leading to a refragmentation of the market and legislative inconsistency. The impact of such legislative differences and uncertainties will become more significant with further development of the information society, which has already greatly increased transborder exploitation of intellectual property. This development will and should further increase. Significant legal differences and uncertainties in protection may hinder economies of scale for new products and services containing copyright and related rights. Any harmonization of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to 7 ensure the maintenance and development of creativity in the interest of authors, performers, producers, consumers, culture, industry and the public at large. As a final remark, it is my wish that the cited challenges could be addressed by the participants of this historical gathering. Maraming Salamat Po. 8