CESSPOOL ON THE POTOMAC: Nature’s Greatest Gift to Mankind

Downloading comes in many forms. With or without the consent of the owner. For a consideration or otherwise, etc. For the commoner, the prevailing reservation to be addressed is the legality of downloading per se. To answer in the negative entails an exceedingly sweeping statement. In legal contemplation however, what needs to be dealt with is the repercussions brought about by the act of downloading copyrighted works, shared by others who are not copyright owners of such works, which verily, constitutes an act of copyright infringement on the part of the downloader.

Yes of course it is illegal to download software, videos, movies, music etc., from the internet without the consent of the copyright owner.

But for the commoner, a free lunch is the best, so to speak. Free download of computer software, games, applications, music, videos and movies, etc., is simply the best. Admittedly, even for the legal mind, despite knowledge of legal repercussions, downloading for free is simply the best.

To add genuine bliss in downloading for free is the absence of stricter Philippine penal laws on the matter. People take comfort on the fact that what seems to be commonly illegal is legally acceptable, to the prejudice of course of copyright owners. It is therefore “ok” in its strictest sense to download, only because of the want of firm and categorical laws for violation thereof and the exact implementation thereto.

It is humbly submitted that it would only prove futile to discuss herein the economic consequences vis-à-vis curtailment of foreign investments brought about by illegal downloading. Relative thereto, piracy, the trend nowadays to say at the very least, is a by-product of downloading. It is likewise respectfully opined that there is no significance in discussing herein the possible adoption of foreign laws into the Philippine jurisdiction. The application of these laws is implausible in this part of the world for exceedingly apparent reasons.

The above notwithstanding, the thought of genuine change however lingers with the adoption of the laws of other countries insofar as downloading is concerned.

US’ Stop Online Piracy Act (SOPA), the Protect the Intellectual Property Act (PIPA), New Zealand’s Three Strike Rule, UK’s Digital Economy Act are examples of existing laws in other countries for the purpose of putting an end to online piracy.

Then again, the viability of these laws in Philippine jurisdiction may not hold water. These are very well-crafted laws however best suited only for the country which promulgated the same. But these will not be applicable here, for now. What we need to focus on is the implementing hand.

We have the most brilliant lawmakers. Legislation is not a problem; anyway, these lawmakers will just get bits and pieces of provisions from foreign laws and turn them into the perfect, holistic republic act. The problem lies in the implementation of laws. Implementing hand should be enhance to bring about the seamless execution. The police. The Executive Department. Although this vision encompasses the assistance of the Legislative down to the Judiciary – the problem really lies on the execution.   

Downloading altogether is not unlawful. One may circumvent, with the lack of a more appropriate word, the law. The IPC reads in pertinent part, viz:

“184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder's legitimate interests.

Section 185. Fair Use of a Copyrighted Work. - 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple 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 the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(a)  The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(b)  The nature of the copyrighted work;

(c)  The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(d)  The effect of the use upon the potential market for or value of the copyrighted work.

185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

No need to adopt foreign laws. Just the same, after the adoption of these foreign laws, it will be useless because of our failure to advance them. We are altogether undermining our propensity and ability to pass and enact good laws to stop illegal downloading. It is an insult to our intelligence. Then again, legislation is no problem. The limelight should focus on the EXECUTION of our laws and PROSECUTION of violators thereof.