Importation for Personal Use under the amended Intellectual Property Code

On 28 February 2013, President Benigno Aquino III signed into law Republic Act No. 10372¬† [full text], which is an Act Amending Certain Provisions of Republic Act No. 8293, otherwise known as the “Intellectual Property Code of the Philippines”, and for Other Purposes. The amendments will come into full force 15 days after its publication in at least two newspapers of general circulation.

A recent uproar centered on the wholesale removal of the sections on importation for personal use, just one of the substantial amendments. Raissa Robles believes that the change erased the Filipinos’ right to bring home music, movies and books from abroad. Democracy.net.ph also issued a statement arguing that this change infringes on the right of the people to import books, media and music for their own personal use.

For comparison and in order to better understand the debate, the old text under R.A. 8293 is reproduced in full, as follows:

Section 190. Importation for Personal Purposes.190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances:

(a) When copies of the work are not available in the Philippines and:

(i) Not more than one (1) copy at one time is imported for strictly individual use only; or

(ii) The importation is by authority of and for the use of the Philippine Government; or

(iii) The importation, consisting of not more than three (3) such copies or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.

(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed three (3).

190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor’s right of action.

190.3. Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation of articles the importation of which is prohibited under this Section and under treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported.

The new law, Republic Act No. 10372, totally deleted Sections 190.1 and 190.2. This deletion is interpreted by some quarters as a clear intent to disallow such acts. In other words, they argue that unlike before, Filipinos and foreigners alike cannot bring to the Philippines an intellectual property work, a book or a CD for instance, even if it is for personal use. This would mean that if the traveler brings a book, perhaps bought from the airport bookstore abroad to pass away time, it would be illegal for that book to be brought into Philippine jurisdiction.

Section 190.3 was retained, expanded to cover both importation and exportation as well, and renumbered simply as Section 190, with the following text (underscored portions are the amendments):

Section 190. Importation and Exportation of Infringing Materials. РSubject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation or exportation of infringing articles prohibited under this Section Part IV of this Act and under relevant treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported or before they are exported. [Note: the underscored portions are the amendments]

Some speakers believe that the the deletion is inconsequential because the right to import copyrighted materials previously granted under the Sections 190.1 and 190.2 is also covered and governed under the existing provisions on fair use under Section 185.1. However, even if bringing in of IP works for personal use is indeed covered under the provision on fair use, the amendment exposes consumers to airport inconvenience brought about by the possible differences of interpretation on the part of the enforcement officers.

It would be interesting to see how the deletion of old Sections 190.1 and 190.2 will be interpreted in the Implementing Rules and Regulations. What do you think?

2 comments

  1. this reminded me of the current Bureau of Customs mess.. which make one think is perhaps related in a strange way to the President’s deletion of such provisions. a fishy smell

  2. this reminded me of the current Bureau of CUstoms mess.. it perhaps has something to do way back when the Pres ordered the deletion of these provisions… gives Comm. Lina some wide latitude of legitimate powers in whatever it is he intended to with those boxes or anything taxable that passes through customs port… something fishy i think

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