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Friday, November 13, 2015

A Bad Review is Not Libelous

The hottest news of the week is the libel lawsuit filed by a celebrity stylist against a fashion blogger. While this representation will not doubt to any feelings of the parties in this controversy, the efficacy of this level of alleged defamation is wanting.

There is a previous article on Libel and the Public figure (read HERE). Now, from gathering of information from the apologetic news portal, the celebrated stylist is suing a fashion blogger mainly on the issue that most trending woman on earth wore a “used” dress on the biggest show last October 24, 2015.

This representation is fashion-deficient, friends were sought to define the job of a stylist. So, a stylist chooses the attire for a person. It’s that simple. What was just newly discovered was the difference between the designer and the stylist. The designer is known for the quality of the design, while the stylist is known for the choice. Also, the stylist doesn’t actually own or lay any proprietary right to the clothes.

No doubt that a stylist is a specialized profession where craft and artistic acumen is desired. People pay over six figures to be told what to wear. A celebrity stylist is a celebrity for intents and purposes. And as it was stated before, celebrities have a lesser degree of defamation standards.

Libel under the Revised Penal Code is the public and malicious imputation of a crime, or of a vice or defect, real or imaginary OR any act, omission, condition, status or circumstance tending to cause dishonor, discredit or contempt (Article 353 of the Revised Penal Code). The Cybercrime law (RA 10175) created the crime of online libel. In fact, the Cybercrime increased the penalty of libel.

Now, the degree of how the libel hurt the offended party is subjective. The more private the person, the higher the degree of privacy that is reasonably expected. Now, the more famous person, the lesser degree of privacy. A celebrity wants to be famous, thus the baggage that comes with notoriety must be the burden to be expected.

The accused in this issue is a fashion blogger. While his defense could use the freedom of expression and the press, there could be a better argument. The nature of the accuser in relation to the access to the public should be a factor. Also, the profession being high profile increases the chances of criticism.

The craft of “styling” is akin to other skills such as cooking, composing music or directing films. They put out their product for their target market to appreciate and pay for it, sometimes indirectly. 

Now, ask yourself this, if we allow this controversial libel lawsuit to prosper, what is to stop a director from suing a movie critic? What is to stop a chef from suing a customer who tweeted that the food tasted bland? What is to stop the musician from suing the audience who booed him onstage?


If you make yourself public, you make yourself open to criticism. More so, if the criticism is targeted to your craft. A bad review is not libelous. 


Monday, February 16, 2015

February 16, 2015



Copyright Law

It’s actually illegal to distribute a CD or USB flash drive containing your PHOTOS. The OPTICAL MEDIA BOARD law (Republic Act 9239, 2004) has a penal provision that declares illegal any person, without the appropriate licenses from the OMB, who distributes optical media as well as the replication of such optical media (Section 13). The punishment for this “crime” is imprisonment of at least 3 years but not more than 6 years, and a fine of not less than 500,000.00 but not exceeding 1,500,000.00 (Section 19).


Latest News from the Web


The Internet is not that “PURR-FECT”

An hour long video (YouTube) of a cat purring has been asked to be taken down by EMI, a US based music publisher because it is infringing on one their songs in their library. See LINK



A singer named after a dog says “dog gone it”.

A popular Latino singer/rapper has mulled suing an eyeglass company for using his generic dog name for a brand of sunglasses. See LINK



Are you “G?”

Guess has won against Gucci as the latter sued the former in a trademark infringement case. And this wasn’t in Alabang. See LINK

Wednesday, July 3, 2013

Four easy ways to protect your work


Your creation is from your blood, sweat and tears. You toiled over countless moments to seek perfection as you perceive it to be. You want others to enjoy but not to make money at your expense. Below are four simple ways to protect your work.


1. Invoke your right
If you want everyone to know that a particular literary or artistic work is yours, how do you do it? It’s the all important © symbol. Its send a notice to the reader/viewer/internet troll that such work has a semblance of protection. It may serve as a warning to others not to use or borrow without your consent.


2. One Moment in Time
Stop singing! Seriously, protection for your work starts from the moment of creation. So, you have to prove that one moment in time (ok, now you are humming). Have some method of documenting that moment of creation. In this social media age, it will not be hard to do.


3. Deposit with the National Library
Although such action is not a conclusive proof of ownership, a certificate of deposit from the National Library of the work you registered with them has a government stamp. That counts for something in case a dispute arises. Again, it is not conclusive as it is almost a rubber stamp act by the government agency. Sadly, your deposit does not earn any interest whatsoever.


4. Watermarking
Pretend you are painter and sign your name on the bottom left corner. Although not done literally, placing a visible mark of authorship is an effective deterrent for would be “downloaders”. Such mark should discreet enough so as not to spoil the artistic quality.



All these steps cannot guarantee that your work will be not infringed. There are several exemptions to infringement under the law and they may vary country to country. Infringers are getting smarter every day. For every step you make, they'll be watching you. (Again, stop with the singing!)  


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The material in this online newsletter has been drafted and edited by Atty. Roderick Vera and is for informational purposes only. The material above does not constitute nor become legal advice. Please consult with an attorney for legal advice before relying on any information found on this newsletter. For any questions, inquiries or comments, please see the contact information above.

Thursday, June 27, 2013

Can I pay you not to sing?


You heard it sung many times while enjoying your sumptuous meal. Suddenly, there is a bad taste in your mouth when the clapping clings and tambourine clangs. Unless, of course, it is your natal day or someone in your table. Then you will sing along and even take pictures. Just hope I am not in the next table.

The hot news in the world of copyright is the push for the elimination of the copyright protection of the song “Happy Birthday”. While the lawsuit in the U.S. Federal Court System is quite complicated to read, I will try to simplify it.

How long is copyright protection?
According to Sec. 213 of the IP Code of the Philippines, any work that is copyrighted is protected for 50 years after the death of the CREATOR. Seems long, eh? Well, if you want to know the reason why the lawmakers made it that way, take my class.

When was Happy Birthday made?
According to the complaint, the song was originally composed as “Good Morning to All” by the school teacher sisters Patty and Mildred Smith BACK in the 19th century. Eventually, Warner/Chappell got ownership of the rights to the song and has been collecting royalties every year (pun intended).

How much does one have to pay?
If you have a private birthday party (shame on you for not inviting me), you can sing it all you want up until the neighbors start complaining.  The law allows private performances within a circle of family and friends. But if you want it in a movie or a television show, expect to pay between $5,000 and $30,000. Warner collects about $2 Million per year from that song alone. Birthday parties are part of the employee benefits package at Warner/Chappell (just kidding).

Expiration Date
Warner/Chappell claims that the copyright to “Happy Birthday” will last until 2030. There is a particular provision under US law that allows a 95 year protection of songs. If you calculated correctly, that means that the song was “copyrighted” in 1935. Warner/Chappell is claiming that the Smith sisters didn’t actually write the song. What Warner claims as theirs is a piano arrangement of the tune (but not the lyrics) copyrighted in 1935. Mildred Hill died in 1916 Patty Smith Hill died in 1946. Under US law, any songs created ONLY after 1923 have that near century shield. This is a dilemma that the US courts must address.

Conclusion
If this lawsuit does get dismissed, we will soon have birthday song police roaming around every Saturday and Sunday afternoon looking for evidence of cake, candles and balloons. Well, not really. It is never going to happen. Warner/Chappell will not after small things like that. I believe that law abiding movie and TV producers are paying the former well enough so that there will be no Birthday Police Academy Movies.

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The material in this online newsletter has been drafted and edited by Atty. Roderick Vera and is for informational purposes only. The material above does not constitute nor become legal advice. Please consult with an attorney for legal advice before relying on any information found on this newsletter. For any questions, inquiries or comments, please see the contact information above.

Thursday, October 4, 2012

The Wisdom of the Cybercrime Law (RA 10175)



The three wise monkeys, Mizaru, (sees no evil), Kikazaru, (hears no evil) and Iwazaru (speaks no evil) have decided to add a fourth member when they come to perform in the Philippines, Noliberu (types in computer keyboard no evil).

Why I use monkeys as a reference is because we might become the funniest country in the world with regard to free speech next to North Korea (which has no internet). The passage of the Cybercrime Prevention Act (R.A. 10175) has garnered the most profile picture changes since 2010 (when the San Francisco Giants won the World Series). For one, I pity those who live in the corner of 5th Ave and East 44th Street in New York. Our infamous law is also their zip code.

Most laws have good intentions and then some laws should have never been passed. My view is that the Cybercrime Law is needed for actual crimes committed while using the computer such as hacking or child pornography. Also, I applaud the Cyber squatting provision. Intellectual Property stakeholders can now sleep a little easier knowing my country took a step in the right direction.

Where the fork in the road bent the wrong way is in the inclusion of a libel provision. Admissions by both sides of the legislature claim that the free speech derailment wasn’t in the “original” version. It was “inserted” in the bicameral conference committee hearings. While there are at least eight (8) petitions against the law filed in the Supreme Court (as of this posting), I will try to analyze the law in my most obvious and overt humble way.

First, the soon to be famous Section 4 (c) (4) of the law just includes libel in a “copy and paste” format. Read here:

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

This “insertion” is both vague and contradictory. It is vague because Article 355 of the Revised Penal Code DOES NOT define libel. The aforesaid provision only LISTS the prohibited acts of Libel by WRITING. It is contradictory because most those acts listed in Article 355 CANNOT be performed THROUGH a computer system. Here are the acts as listed in Article 355:

1.         Writing;
2.         Printing;
3.         Lithography;
4.         Engraving;
5.         Radio;
6.         Photograph;
7.         Painting;
8.         Theatrical exhibition;
9.         Cinematographic exhibition; or
10.       Any similar means.

In criminal law, statutory and constitutional construction demand that all penal laws should be construed in favor of the accused. Also, when a penal law enumerates a list, anything NOT in the list is really NOT in the list. To side with a devil’s advocate, the Cybercrime Act probably expanded the “Any similar means”. But I believe nothing in that list is similar to the Internet.

There are two more things wrong with the law on the libel inclusion.

The Cybercrime law INCREASED (Section 6) the penalty of Libel as defined in the Revised Penal Code by one degree. Since 1932, the punishment that can be imposed for a conviction of libel is Prision Correcctional in its minimum to medium period. Translated (here is where my meter starts running), possible imprisonment is a minimum of six (6) months to a maximum of four (4) years and two (2) months. Raising it to one degree higher means that the imprisonment is now Prision Mayor in its minimum and medium period. Translated again (tick, tock), the new jail time is a minimum of SIX (6) years to a maximum of TEN (10) years.  Look at it this way, the old maximum time is now SHORTER than the new minimum time (four years, 2 months versus six years). That means, if you call me a lousy lawyer, I can have you jailed for at least a full senatorial term. But there has been no change in the fines. It’s still a maximum of 6,000 pesos (a full tank of a Senator’s Ford Expedition).

On a more legalese side, libel as a cybercrime has now become mala prohibita. Simply put, (tick, tock), it means libel is now a crime under a special law. If libel, in its original form, is committed under the provisions of the Revised Penal Code, the crime is mala in se. The latter form allows a defense of “lack of criminal intent”. Cybercrime libel denies that type of defense. Thus, intent or motive is not an element. Any good intention on a sharp criticism cannot be given as a excuse when that critique will be deemed defamatory by the offended party.

On the issue of “Sharing” or “Retweeting”, we all have something to fear. Under Article 360 of the Revised Penal Code, any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The law may be twisted to include the aforementioned acts as the same as if you did the posting in the first place. Sharing and retweeting republishes or re-exhibits the same allegedly defamatory remark. The “Sharerer” or “Retweeter” is in the same cabin (boat is so old fashioned) as the original poster and will receive the same punishment if charged together with the original poster.

For the issues on “Like” or the “Favorite”, I submit that doing these acts in Facebook and Twitter respectively, are NOT punishable under the Cybercrime Law. For more information, please pay my standard hourly fee with a three hour minimum.

Just kidding… Liking a post in Facebook or marking a tweet as a favorite is NOT an act listed in Article 355. A mouse click on for a thumbs up sign is definitely NOT writing and neither any of the other acts listed many paragraphs above. Again, if the law does not list the act as a crime, it cannot be punished as a crime.

I will now watch “V for Vendetta” for inspiration on how to protest this new law, and also “Escape to Victory” for training and escape strategies if caught.
 

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Rod Vera is an attorney practicing intellectual property law. You may contact him at Phone: +63.917.884.8372; FAX: +63.2.820.1193; E-Mail: rpv@vera-iplaw.com