Privacy Act

We are now living in an Era when Privacy becomes a common concern in the society. Not that the Government lacks appropriate laws for the protection of this right, but rather the scope of privacy has been continuously expanding.

 

 Just like the other rights guaranteed by the constitution, the right to privacy has adjusted to the demands of time. As we reach the age of information revolution, the protection to privacy extends beyond the physical world. The protection covers also those issues in the virtual world concerning information control, download and data sharing etc. 

 

The technological advancement which leads to the creation of technological devices made the transmission of whatever type of information available anytime and anywhere.  Such information may be accessed and obtained by anyone, as long as he has the device and internet to access the sites. Hence, the easy circulation of information made the word privacy more complex and diverse. Although these technologies, wires, cables, devices are not really the main subject of privacy, they however carry the information across the cyber highway where the risk of interception or being linked to other unprotected data sharing devices or sites is considerably high.

 

Hence, it becomes imperative both on the part of the government and every citizen to be more cautious with the use of different information mediums, for to ignore such would be to put our personal privacy at risk. It is not new to read stories of people whose credit card numbers are being used by identity thieves. It is also common for us to read email messages from our friends soliciting money for emergency’s sake. Nevertheless, many people seem unaware of the consequences of a stolen identity or

we choose to ignore the possibility that maybe tomorrow or right at this very moment, without our knowledge, we already exhausted our credit limit ,or worst, somebody-on the net- has made us their cyber beggars. The movie Identity thief is a perfect demonstration of how cruelly the identity thieves destroy someone’s life.

 

Identity thief, this is an American film about stolen identity of a man named Sandy Patterson. It all started with a phone call from an identity protection service asking for his name, birth date and social security number. What he didn’t know was that the person on the line is a fake caller who prints out credit cards and uses them at the expense of others. One day Sandy’s credit card was cut off in a gasoline station for insufficiency of funds. Later on, he found out from his credit card company that he has spent a lot of money using his credit card and that he has exhausted his credit limit. Few days after, he got arrested.  Sandy wanted to clear his name and so he made a deal with the police officer to find the identity thief and present her before him. He got his approval and from there, the chasing adventure started.

 

So far, this is the new world, everything may be stolen, including our identity. This is not just a simple disguise, for all we know, the person using our identity looks breathlessly different from us. So how does this end? Of course it will always end up in the good hands of a lawyer. But is this the only way to resolve the problem?

 

In my point view, legal action is just a remedy. Identity thieves maybe avoided if we reduce our cyber appetite and limit the information we share or post on the cyber world. When we speak of cyber world, it is bigger than the World Wide Web- it includes telephone system- including mobile phones, online and wireless services, communication satellites, personal computers, ipad and other devices where we can store, send, receive, disclose and create information or data.

 

We cannot however deny the fact that in the age of information revolution, disclosure of information is almost inevitable in work, in business or even in our ordinary day encounters. For instance, if we apply for a post-paid contract with telecommunication networks, we will notice that we are asked to disclose every detail of our personal information- including our annual salary, the same is true with other service-oriented organizations. They require information to ascertain whether we can pay additional monetary obligations in exchange for the services they will provide.

 

So how do we reconcile the underlying issues in the preceding discussions? Well, there is still no limit as to what information we want to disclose personally or online, as the government does not prohibit but rather it encourages the free expression of every person in the ground of human activities.

 

This is when the Law comes in. At present, there is existing law that protects the disclosure of an individual’s personal information against organizations or persons having control over the said information or data, still, the same law admits certain exception. Fair use is the most common defense used by these information controllers. The law allows these organizations, more so the government, to gather information regarding a certain individual if said information would be used fairly and not prejudicial to the individual.

 

What is fair use of information and data. Fair use means that the use of information will not subject an individual to harassment, embarrassment or it will not do injustice to him. For instance, in a post-paid contract entered by an individual with a telecommunication network, the requisite of disclosing the annual salary of an applicant is necessary in order to ascertain whether he is capable of paying the monthly bills. Is the requirement fair?  Yes it is fair, although some find it embarrassing; still, the disclosure is fair and reasonable.

 

The law also allows the collection of personal information if such shall be used for legitimate purpose only, so that after you file your income tax return to the BIR, they will assess your income tax return by looking into your record books, receipts and other relevant documents that would reflect your final return.  They will also conduct an investigation to check for possible tax deficiencies. Is this a violation of privacy? Of course not, such is legitimate act of the taxing authorities in order to reflect the right amount of tax due on your annual tax return. It would be different however if the taxing authority, after you have paid your taxes, asks for the contact numbers of your family members, such is irrelevant and unnecessary..

 

Another circumstance would be an employer who asks for your transcript or copy of grades from your primary, secondary, tertiary up to graduate school .This is a legitimate and fair act of your employer, for some of them choose only the best and competent employees.

 

The same is also valid in cases such as when a psychiatrist or psychologist reasonably asks a copy of his patient’s previous psychological examination from the school’s guidance counselor or human resource person. These records are very critical to the employment, as well as to the social relationship of the patient. Hence, it shall be kept by the doctor with utmost confidentiality and shall be used according to the purpose known to the patient. Thus, it would be different if an employer would ask for a copy of an applicant’s previous psychological exam. To allow such would be to violate his right to privilege communication.  

 

The law also allows the gathering of personal information for litigation purposes. Said personal information may be presented as evidence before the court, and the court finding it admissible and with probative value, may admit the information gathered.

 

I can discuss as many circumstances regarding the use and misuses of information but before I move to my next point, let me reiterate what is mentioned in the preceding paragraph concerning Data Privacy Act. The creation of the Privacy Act is aimed to protect the personal information of an individual from those organizations or persons who might have the privilege to gain access to their personal data.  The direct purpose of the government is the preservation of human privacy, as an inherent consequence of democracy. It allows each and every person to live in liberty- far from a society that is always in quest of human illegal activities.

 

Earlier we already talked about technology and privacy, for some people, the rush to stay online and be connected with the whole world is a type of liberty that cannot be controlled by legislation. But of course, all the liberty we enjoy has limits. When I speak of limits, it referrers to the prohibition prescribed by law or the legal action and punishment for the person who committed certain acts in violation of the law- which in this case is the Data Privacy Act or Republic Act 10173. 

Technology as I mentioned above also includes mobiles or phone gadgets. We hear complaints about online issues regarding privacy, but we hear little issues regarding violation of privacy on mobile phones. So, are mobile phones protected by Republic Act 10173? The answer is yes; the law did not categorically exclude or specify which devices are covered by law. Section 4 of the said law provides for the Scope of the protection which states the following:

 “This Act applies to the processing of all types of personal information and  to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with”.

Hence, it is clear from the above stated law that any equipment used for the processing of information or data are covered by the protection. So why am I focusing on mobile phones? Many, especially those who remain to be traditional in their medium of communication, stick with mobile phones. One practical reason is that they find the communication in cellular phones more personal and direct. Although video call is available online, some choose the most conventional – if not personal- way of communication trough mobile calls and text. Although this is no longer the latest trend, still, there are people who give greater weight on mobile phones than online oriented devices.

Moving on to my next point, Is it acceptable to disclose someone else’s mobile number to a third person without the former’s consent? In my point of view, it depends, for we often encounter situations when we can’t say no to the person seeking for that piece of information, maybe because that person is our superior at work, or someone closely related to us like our family members. In this case, if we set aside the privacy issue we may choose to disclose the information.

If we entertain issues on privacy in relation to the question above, my answer would remain the same- it depends on the purpose of the recipient. If the third party has a fair and legitimate cause for acquiring the said information, then, the same principle would apply in this instance- there will be no violation of privacy because the information was disclosed in substantial compliance with Section 5 of Data Privacy Act, also known as Republic Act 10173.

Very briefly, the law requires that the information must be acquired for legitimate purpose or it shall be possessed fairly and legitimately, it must be accurate and relevant to the purpose for which it was collected, it shall not exceed to the purpose for which the data or information was gathered and it may be retained only within a reasonable time.

Citing as basis the above exceptions, we can infer that the law is not limiting but rather liberal.  It provides us the manner and discipline of handling personal information belonging to other person. Hence, using the above criteria, if we enter into a post-paid contract with a telecommunication service provider, the later may use our number to send in their advertisement and promos. They may also disclose our mobile number to their sister companies so that they can promote their company and services directly to us. Such has been the common practice of some telecommunication networks. The law allows this kind of process because it is necessary and relevant to the business.

It is also possible for government employees to receive messages from their office regarding notices, warnings and updates in their office. It is also possible for an employee from PAG-ASA to receive weather updates, while those who are employees of Red Cross may receive first aid tips in cases of natural disasters, all of these are possibilities which if existing- would not constitute a violation of our privacy.

Unlike our facebook accounts, twitter and email address where videos and photos of us may be viewed in just one click, phone numbers on the other hand does not reflect any information other than the numbers appearing on screen. To add further, a cell number although considered part of our information- is not really the main source of our personal and confidential data; it is rather a medium to collect or gather information from the person owning the number.

Thus, moving to my last point,  cell phone numbers are just numbers anyway, if we give it to a third person, they will get nothing but numbers, no more no less. Thus, the only information disclosed are those eleven numbers which if disclosed to another person-would still depend on the fate of their call.

 

Freedom and Intellectual Creations

Freedom as a Policy

Among the fundamental rights granted by our Constitution, I would say that the Freedom of expression is the most popular and controversial of all. Throughout the decades, this right has been subjected to several social and cultural issues which in effect, have significantly stretched the right to freedom to an N th extent. Today freedom of expression extends its scope not only to media, literature, performance and arts. In response to the common age, the right also entails complete access to expressions and ideas from whatever sources, may it be from digital or non-digital sources.

Freedom of expression as an instrument of public policy is a legitimate right which any person may exercise up to the extent that such right shall be used for his intellectual growth.  As consequence thereof, a person has a right to choose what materials to read, what music to listen to or what films or TV shows to watch. In essence what precisely is being preserved by the policy is the enjoyment of freedom.

Creations

The most beautiful aspect of life is creation. Creation is a product of human ideas and imaginations. It does not have to be big or grand as long as they express common human experience or emotional impulse.

In the field of Arts, creations reflect the experience of the creator and his emotional response to it. When we speak of experience, these are common occurrences in life which everybody gets to experience once in their lifetime. Thus, we can say that creations admit no boundaries, nor race and culture.  It creates certain connection to people who had the same experience as the creator.

According to Speaker Lawrence Lessig, diversity in laws should not be the case in Intellectual Creations because creations such as art works should be made available to everybody without regard to his/her race, culture or moral standards.

Call and Response

Speaker Lawrence Lessig, the founder of Creative Commons felt the need for relaxing the rigid application of laws with respect to the accessibility of intellectual creations. He suggested that freedom to access, use and recreate  works of another should be allowed without unnecessary restraints.

In response to the cultural calling he brought a new dimension to the right of expression- that is the freedom to share. As mentioned above, freedom of expression includes freedom to access the expression and ideas of others.  These expressions promote creativeness in the field of intellectual creations. As mentioned by the speaker, sharing allows each person to create and communicate his works to others.

One of the important points discussed by the speaker is the concept of call and response. He explained that in our society a call arises and the culture responds to it in a certain way. This culture is what he refers to as “the creative culture.’ With the advent of new technology, he recognized technology as a trigger to creativity. Thus, the creative culture is the response to the call of technology.

The technology has brought the emergence of creative applications which encouraged people to imprint creative elements on their works. An example would be the use of Instamag. This application is available for iphones and ipads which allow one to use photo frames for free, no attributions are required except 1.) That the user cannot rearrange or modify the frames and 2.) The prohibition to remove the trade name found on the frames. The essential feature of this application is that, it allows anyone to instantly arrange their photos in an artistic manner like that in the magazines, by using one of its template frames. The purpose of the creator is to make their creative designs available to anyone for free.  What makes it more advantageous is that the act of sharing the special features of Instamag encourages people who are not professionals in photography to inject artistic elements unto their photos. Thus, one does not have to be an artist to come up with an artistic arrangement of his personal photos.

Another example would be Sound Cloud. This application encourages artists and music lovers to upload their songs on this site and make it available to its members. Thus, any member can upload or download the music for free. There is no qualification or restrictions as to what kind of music one can upload or download.  One may upload any music; it may be an original piece, a remake or a remix of a song.

Indeed, the significant effect of cyber technology to our society is the liberation of creative culture- making the restrictive laws almost unnecessary.

Culture and Expressions

The speaker Lawrence lessig speaks of culture as a response to a call.   He recognized that culture affects our way of expression. He suggested that culture and expression works in tandem. Thus, from his concept of Call and Response, we can say that expressions are human translations of certain cultures. The cultural changes we introduce to our society influence the direction of our way of expressions, whether what we are receiving are movements, sounds or words, these are products of certain cultures that inevitably call for appreciation and understanding.

Our commitment to the changing society and culture makes it almost inevitable for us to reorganize our own perception of freedom of expression. Intercultural interaction has been a growing occurrence in the society. People from different places interact and together they share their ideas, trends and personal interests. Thus, at the present age, it is almost difficult to identify the difference, when almost every day the culture of one is influenced by another and vice versa. The positive implication of this intercultural interaction is that, people have become open and permissive in adopting the culture of others.  One concrete example is the sensational song Gentlemen of Psy.  People from different countries have made different versions of the video. Sometimes it is difficult to imagine an American or British making his own version of Psy because of the different lingual and cultural orientations. But this is culture and we are talking about the culture today.

In the Philippine context, our society has always been open in adopting the values of different worlds. This is reflected in our fashion choices and trends. We tend to imitate western orientation while we leave behind the traditions which the older generations have passed unto us.

Today, we are updated with new technologies and devices available from around the world. Our telecommunication system has also updated our connections, making almost everywhere a wifi hotspot. The problem however is that, yes we have the technology, and yes we are accessible everywhere- we can take and like photos-share our videos to our friends or make them available to the public. But the question now is that, are we still exercising our rights within the bounds of law? Is our context of freedom the same with other countries? In the end, the legal matters would boil down to the legality of our actions. The problem in our society is that we are moving forward towards complete freedom but we are burdened by the rigid application of our laws- almost inhibiting us in achieving the very purpose of freedom. So how do we reconcile the strictness of our laws and the permissiveness of the society?

This is what Speaker Lawrence Lessing is trying to tell us. We are called to respond to the call. That call is to fight for our freedom-Freedom to share- freedom to access- and freedom to use the information, data and works available to the public without restrains or punishment as consequence thereof.

It is true that Intellectual Property Law is rigid in its application, that it often blurs the right of fair use. Even granting that fair use is valid under the law, it creates an implied threat to anyone who is not familiar to the IP law. Noteworthy is the fact that IP laws impose imprisonment in cases of violations under its provisions and ignorance is not a defense.

Hence no matter how permissive the society with respect to intellectual creations some measures  of restrains cannot be broken. The adoption of strict laws to preserve intellectual integrity of the creators is always the paramount consideration of the lawmakers.

Arts and the Law

Our laws   are too restrictive rather than permissive in a sense that when two rights are in conflict, the law is one sided. Thus, the enjoyment of the freedom of one restricts the freedom of another.  In its general sense, freedom is vital to expression and freedom varies depending on the medium used for an expression.  Therefore, the law makers must adopt a more flexible attitude in formulating laws that will affect freedom rather than restrictions.

When it comes to artistic works, our laws limit their availability and usefulness up to a certain extent only.  Mostly, we are allowed to possess the art work but few of them are not really open for sharing, modifications and alterations. Hence the rooms for improvement and recreation are restricted from the moment of their creation.

In the present day, it would be futile to keep an artistic work untouched and unseen by the public for accessibility matters, experience of the artwork matters. We are no longer living in an age when art pieces are confined inside a crystal box. We must recognize the fact that as creators we must create art pieces which will be useful instruments to the new society. Thus, to restrict people from touching or using an artwork would make the art so detach to realities and so useless for the demands of its time.

With the new technology available, art pieces are found inside a ‘digital box’ -also known as the computer. The computer age has allowed creators to bring their works abroad, multiply copies of them- making them available to the whole world. Despite the dangers of copy right infringement, the creators recognize the value of sharing their works to the public.  They recognize the fact that digital technology has continuously changed the boundaries among the different fields of arts. For instance, films, videos, music, photography, painting, sculptures, engravings etc., these pieces of artwork may be coined together into a new piece of work. Although if taken as a whole, the new piece belongs to the creators, it does not however prevent the individual creators from claiming economic and moral rights from the use of their works.

When we speak of intellectual creation at the present time it refers to creations which are not only beautiful but also useful. An example of which is the art applied in cooking, the aesthetic value of a building or the paintings on the wall. These works deserves more recognition than protection.

The problem however is that there is no existing law that regulates cyber sharing. Thus, many of the creators are apprehensive in making their work accessible online in fear of completely loosing the intellectual integrity of their work. On the other hand, people who need the information, data or works  available online are also threatened to use the works of another because of the legal consequences they will encounter in case they go beyond the terms and conditions imposed by the creator.

Even granting that the use of a certain creation is within the scope of fair use, it is difficult to identify sometimes whether a work is legal or not, or even if the use is legal, the creation is made useless because the person cannot exhaustively use the creation according to its real purpose in fear of violating any IP laws.

According to the speaker, the only way is to change our laws. Thus, in framing a new set of law, the ideal law should be one that is imposed by the creators themselves as they are the ones who can properly set the purpose and limitations of their work. Whether they share their work to a specific group or to the whole world, what is important is that the very purpose of their creation is served. Thus if the purpose is to share for free, the laws must provide for enforceable laws that will protect the intellectual rights of the creator without defeating the purpose of the creator.

Freedom and Responsibility

Our fight to complete freedom against restrain from access to information, data and intellectual works is not without limitations. Under the law, we are granted that right to fair use. Sometimes it is difficult to adjust to this qualification especially if our purpose goes beyond this scope. But the fact remains that the law punishes those who do not follow. For now, complete freedom remains ideal. We can simply choose not to access or use the information we gather or comply with the limitations set by the law.

Certainly, our cry for freedom remains unheard. As speaker Lawrence Lessig said, “Creative Commons is not a solution,” but rather it is a step to liberate the creative culture.  In so far as our laws are concerned we rely on them, not because we agree to the purpose of these laws but rather it is the reality and the changes that we want to implement remain a vision. Our duty as citizens is to respect the laws in order to maintain the order of things.

We cannot at this moment say that creative culture will not create privacy issues or violations of intellectual property rights. It is even doubtful for some other people to concern themselves with the issue at hand as they are not well aware of their rights, but the debate must continue in order to determine whether abandonment of the restrictions imposed by law will benefit the interest of the public in general. Thus, the people should start the task of maintaining constructive exercise of such freedom and try as much as possible to avoid violating the law.

Freedom and the Government

Although the government has that power to implement laws and make legislative judgements, they cannot use their power as vehicle to circumvent the fundamental right of the people- especially the right of the people to freedom.

Like all incidental rights under freedom of expression. The new dimension under Intellectual Creations has aroused antagonism on the part of the lawmakers. Despite the growing support of the people for the liberation of creative culture, the government still clings on to the standard law because of the possible dangers and damages that the new freedom might cause to the public.

The government however cannot overlook the fact that their control over certain freedoms withholds the developments of the society as a whole. Thus, it would remain impractical for the government to continue to support a policy that has been rendered obsolete because of the changing circumstances in the society. It is also impractical for the government to maintain policies that will strongly pull down the growth of the government and its citizens.

The existing laws should reflect the circumstances in the present. It should mirror the aspirations of the government and the common passion of its citizens. It would be absurd to retain certain laws which are limiting rather than liberating. For this reason, reformulating old laws and making it applicable in the present time is justified. Thus, the laws should promote the general welfare of the people and it shall not be used as a vehicle to ruin the interests of the citizens.

For speaker Lawrence Lessig, the resistance of the Government is more than just to protect the general welfare of the people. It is something more complex which goes beyond the legal concerns. For him, the resistance is wrapped with political motives- Political in a sense that their commitment goes beyond the law.

It is difficult to ignore the fact that government has that power to arbitrarily deprive the people of their rights under the Constitution in order to gain control. In the Philippine context, this fact is something that is occurring on day-to-day basis. Sometimes government officials go far to the extent of committing evil against the public welfare. This is again reality and we cannot expect them to protect the rights that they personally and enjoyably exploit.

Thus, it is upon the people to protect their own rights. Our task is to remain vigilant in protecting our own freedom and to resist any control and restrains that the government or any private person might attempt to commit.

Conclusion

Intellectual creations and our freedom to create operate as a strong source of growth. It is that kind of freedom which constantly promotes social change. It reflects the circumstances and the climate of the community and can mirror the society’s aspirations as well as its frustrations. Above all, intellectual creations strive to promote new ideas, shares solutions to problems which the words cannot express and make the world easier to live in.

Introduction

While our policy makers are busy formulating Laws that would protect the property rights of the government and private individuals, our scientists are finding ways on how they can sell the sky, the air, the moon or a portion of land in Mars.  It may be difficult to perceive how a property beyond the commerce of man can be acquired and maybe we are just too ambitious to even try, but these are ideas, and the ideas themselves matter, such that if translated into artistic forms, inventions or marks, it may be subject to the protection guaranteed by law.

A property in general is subject to ownership; ownership is more than just possession of a thing; it is not enough that you have the right to enjoy; it is more than that; Ownership is not just an act of preservation- or an expectation to its fruits-or having the right of disposal; it is much more than these wide scopes of rights and expectations. In so far as the realm of property is concerned, the mentioned rights are just the basic principles. These rights find their application in real and personal properties.

Thus, any one may feel a sense of excitement and freedom knowing that ownership to a property is limitless or at least knowing that it is much more than anything.   However this rule is not free of gaps and exceptions for there are instances provided in laws which limit the rights of a person to property. However, this paper will not have an in\-depth discussion on the said gaps and exceptions, but let us not forget the principle of police power of the state as a limitation against the right to property with respect to real properties.

Very briefly, the exercise of police power of the government is one of the limitations to an individual’s rights to property in a sense that as between private interest and social interest, the latter certainly prevails. In other words, when social interest comes along, it is almost certain that the private person will lose his/her property. Police power is in support of social interest- the only requirement-as stated in the book of Justice Cruz- is that the exercise of police power must have substantial connection/ relation to the general welfare and that it must be a reasonable measure for the attainment of the purpose sought to be achieved.  In my own understanding of social interest, it serves as a balance between competing private and public interests. In other the words, the government cannot exercise police power in favor of social interest when in fact, they just ran out of believable reason to prove why they favored the deprivation of property of a private individual for no valid reason.

Property does not refer only to objects which are real or personal. It extends to products of imaginations which were made tangible through artistic works, inventions, or marks. These kinds of property are under the umbrella of Intellectual Property Law. Each is entitled to different protections under, copyrights law, patents and trademarks respectively. With respect to artistic works, its protection is reckoned from the time of its creation. While patents and trademarks acquires protection from the time of registration.

  Properties which resulted from the creative minds are usually fluid or sometimes too technical that it is difficult to identify which is artistic and which is for utility.   Due to the vast topic under the Intellectual property law, this paper aims to focus on one aspect of Intellectual Property Law-that is the Law on Trademarks

Imagine a world without trademarks, we may not notice its relevance but trademarks are everywhere. You can see it in your home, while you travel for work, when you take your breakfast, lunch or dinner or even before you go to sleep. In other words, trademarks are very much attached to our lives that if we look into the details of our personal belongings, there are always trademarks attached to them.  Trade Marks have also proved its relevance in trade of goods and services.  In 1982 during the conception of GATS, the United States, in its hope of tapping the international service markets, proposed to the Ministers of GATT to include services in its negotiation agenda. It took years before the agenda was approved. Finally though, the Ministers decided to extend its discussions to the other areas of trade such as services, intellectual property, textiles and agriculture. Among the discussion were the determinations of the marks, signs or symbols that may be given protection under trademarks and the basic protection available for trademark owners. It is also noteworthy to know that prior to the formulation of the Intellectual property law; marks were used by merchants for product identity. From here they established good trading relations from other traders based on the marks and the goods or services associated to it.

At present, the impact of trademarks has extended not only to establish product identity but also to build goodwill of a business. Goodwill refers to the relationship of the producers or trademark owners with the consumers. It is also known as business patronage wherein the consumers devote their loyalty to a certain trademark because of their good reputation, quality of products and services offered and image value. Thus, as between Jolibee and Jc Food Spot, the consumers would most likely choose Jolibee than those less known marks. Trademarks are also means for business build-ups. In this case, the relationship goes beyond the producer and consumer relationship such as in a franchising business where its goal is the return of investments, investors would most likely to gamble on business with well known trademarks because of the reliable, systematic and stable image which may take long years to build in a less known business.

Generally a trademark owner is the person who registered the mark to the commission, for any person who is not the owner of the trademark has no right to register the same. Upon registration and the approval of the commission of said mark, the trademark owner has the following rights:

1.      He has the exclusive ownership to the brand. Thus, no body may register, use, publicize, sell or indorse a trademark or a product associated with the mark without securing a license from the former.

 

2.      He has a right to claim for royalties, thus he may authorize third persons as agents to use or utilize the brand for a consideration without losing his ownership to the mark. Any misuses committed by the user may subject the latter for a penalty designated under the code

3.      To protect the mark from competitors and to sue for unfair competition. Unfair competition is not a direct consequence for the violation of trademark law. Unfair Competition belongs to the offenses relating to trademarks under Section 168 of the Intellectual Property Code. For unfair competition to prosper, intent to defraud or mislead the consumers is required. It also covers those acts which intend to imitate or copy the physical appearance of a product in order to confuse the consumers, also known as the passing off of trademarks. To add further, the mark owner may sue for violation of his right to publicity which caused injury to the goodwill of the business.

Another type of unfair competition is trademark dilution, under this specie, there are two acts which may result a violation against unfair competition. One is the blurring of a trademark wherein one person uses unfamiliar products in the market and associate it with a certain trademark which in truth, the trademark owner does not own. Another act under trademark dilution is the tarnishment of trademark wherein a person uses a product while doing certain activities which are considered in the eyes of the public.

4.      The right to sue for infringement. Mere use of similar marks belonging to a registered owner gives the latter a right to sue for infringement. In this case, no intent to defraud is required. This involves the selling o inappropriate f goods, association of other goods to a mark belonging to another registered owner, giving the impression that the said goods belongs to the latter or the copying of the physical appearance of the a mark and dilution of trademark. As consequence of registration, the owner is duty bound to protect itself from those users who misuses or mislead the consumers by any of the acts mentioned above.

 

Brand and Perception

As consequence of the right to exclusive ownership of a mark, the owner has all the rights to use, exploit, decide on how the thing is used, which brand the mark may be associated with, the manner on how it is marketed to the public, its positioning, set its target market, the applicable advertising strategy, all of these acts are exclusively given to the trademark owner and no one except those agents authorized by the owner may exercise such rights. Thus, any unauthorized user who uses the same thing in the concept of an owner may be stopped by the brand owner.

According to Kotler (2005) “brands have a remarkable ability to impact the way people view products. “ In addition, brand shapes the perception of the product since product and brand are stapled together. For instance, if a person sees an item with a prestige brand, then that person will view the item as a high quality and expensive product. This supports the idea that the transformation of a brand from a commodity to a status symbol is an indicator that a brand can manipulate the perception of the consumers about the product.

Solomon (1983) stated that “people rely upon the social meaning inherent in the products as a guide to the performance of social role.” this study says that people’s experiences from various products can be a source of the consumers’ formation of reality, perception and identity. This study supports the idea that the people’s interpretation to the brand is not always in the hands of the marketers but rather it depends on the general meaning set by the consumers to the brand.

According to Kleine (1993) “…the more important the identity to us, the more attractive it is associated products.” The study explains that people are actors who play different identities in the society. These people construct these identities using products which are closely related to them. Through this consumers are able to form their sense of self.

 

Marketing for Goodwill

Marketing plays a vital role in the sale of brands. Oftentimes it is the workings of marketing strategy that increases the sales of a product. The reason behind it is that, marketing is aimed to determine the wants of the consumers and from there a marketing strategy is formulated. The increase in sales of a brand is just an incidental effect in marketing quest, for its main purpose of to establish a connection between the products and the consumers. This is done by conducting studies and observations pertaining to the buying behaviors of the consumers. They also identify the factors which affects these behaviors.

The modern way of marketing goods and services is no longer focused on the wants of the consumer. They formulated another form of marketing which is socio-civic in nature. In a way, they indirectly sell their brands and products by sharing to the consumers their causes, their charitable deeds, their social responsibilities and their stand against environmental concerns.

An example of a socio-based marketing is the fund raising campaign -“run for a cause” This has been a successful strategy of other businesses in selling their brand for it relates not on the buying impulse of the consumers but rather connects with their emotion or sympathy. Another example is the use of biodegradable bags instead of plastics which are harmful for the environment. Still, businesses do not entirely lose their commercial senses. These socio-based marketing is an effective means to establish the goodwill of a business.

In our discussion with Intellectual property, goodwill is covered by the protection of a trademark owner against abusive users. It is clearly stated I the Civil Code, thus-

  Goodwill of a business is property, and may be transferred together with the right to use the name under which the business is conducted.

Thus, the goodwill of a business in an asset itself for it is in the goodwill of a business where the image of a brand attaches. A specific provision under the Intellectual property code provides for protection of a trademark’s goodwill, thus-

168.1. Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefore.

 One of the cardinal principles in unfair competition is the act of passing off. This is an act of one person attempting to share a good business reputation established by another or to acquire profits from said business creating confusion in the minds of the public as to the origin of the product. This acts must however be coupled with intent to defraud, otherwise, the proper remedy would be infringement under trademarks.

                                                         

Conclusion

In the light of the discussion above, as a spectator in an event sponsored by brands A, my stand would be to accept the tickets and wear the brand of B.  For the simple reason that I am just part of the audience and it is not my duty in the first place to know each and every sponsor in that particular event. I am not responsible for the mistake of Brand A for not securing a venue exclusive for its event. As stated in the above rights of a trade owner, it is the duty of the brand owner to exercise its rights.

It is my view that, as Spectator, I will not be held guilty for infringement or unfair competition solely by accepting a ticket and wearing a shirt of brand B for the obvious reason that for a claim of infringement to prosper, the user must al least exploit the brand in the concept of an owner, meaning exercising the rights to enjoy, exploit and dispose the same for a valuable consideration.  Clearly there is no infringement committed in so far as my actions are concerned. To add further, the law identified the actions which constitute violation of trademark law, the acts above mentioned are not the within the purview of the prohibition. To deprive me of my freedom to choose which products I entertain or what brand to wear is a clear violation of my right under the constitution. We go back to the grant of freedom of expression, thus-

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble the government for redress of grievances.

In the present scenario, the elements of infringement are not present; neither the elements of unfair competition are met. It would be absurd to punish a person who merely attends an event which in fact is granting a favor to the sponsors. Audience is not expected to be critical on every details of the event because in practice, that is the job of the sponsor- to promote their products and not to cause injury of distress the consumers.

With respect to the acts of brand B however, the latter may be held liable in violation of unfair competition for passing off the trademark. It appears that B is sharing economic benefits with Brand A creating a confusion to the public that brand B is associated with Brand A. Although there is no concrete fraudulent act made by brand B against brand A, the former’s presence without the consent of the latter is an indication that brand B has that intent to deceive and commit fraud. Also, fraud pertains to the public and not to the brand owner. Thus, there is a reason to believe that brand B is guilty of unfair competition.

 

Another point is that, although there was no mention of the similarities in the products of Brand A and B. Under the principle of expansion of business rule, the likeness of confusion is not exclusively confined with similar goods, for as long as the goods give an impression that the business has extended its business to other goods. It would be different however both brands belong to entirely different classes of things. So that if Brand A is a sports product while brand B is a beauty product, then there is no basis infringement.   

In all cases, B would be liable under infringement if it is shown that brand A and brand B is similar in class and appearance. In this case, brand B may be guilty of infringement if it appears that the presence of brand B has created confusion to the minds of the audience that the consumers are unable to differentiate the two within the view of their naked eyes, or that they believe that brand A is the maker or owner of brand B. These factors whether they take it singly or collectively would constitute an infringement.a

 

We are now living in an Era when Privacy becomes a common concern in the society. Not that the Government lacks appropriate laws for the protection of this right, but rather the scope of privacy has been continuously expanding.

 

 Just like the other rights guaranteed by the constitution, the right to privacy has adjusted to the demands of time. As we reach the age of information revolution, the protection to privacy extends beyond the physical world. The protection covers also those issues in the virtual world concerning information control, download and data sharing etc. 

 

The technological advancement which leads to the creation of technological devices made the transmission of whatever type of information available anytime and anywhere.  Such information may be accessed and obtained by anyone, as long as he has the device and internet to access the sites. Hence, the easy circulation of information made the word privacy more complex and diverse. Although these technologies, wires, cables, devices are not really the main subject of privacy, they however carry the information across the cyber highway where the risk of interception or being linked to other unprotected data sharing devices or sites is considerably high.

 

Hence, it becomes imperative both on the part of the government and every citizen to be more cautious with the use of different information mediums, for to ignore such would be to put our personal privacy at risk. It is not new to read stories of people whose credit card numbers are being used by identity thieves. It is also common for us to read email messages from our friends soliciting money for emergency’s sake. Nevertheless, many people seem unaware of the consequences of a stolen identity or

we choose to ignore the possibility that maybe tomorrow or right at this very moment, without our knowledge, we already exhausted our credit limit ,or worst, somebody-on the net- has made us their cyber beggars. The movie Identity thief is a perfect demonstration of how cruelly the identity thieves destroy someone’s life.

 

Identity thief, this is an American film about stolen identity of a man named Sandy Patterson. It all started with a phone call from an identity protection service asking for his name, birth date and social security number. What he didn’t know was that the person on the line is a fake caller who prints out credit cards and uses them at the expense of others. One day Sandy’s credit card was cut off in a gasoline station for insufficiency of funds. Later on, he found out from his credit card company that he has spent a lot of money using his credit card and that he has exhausted his credit limit. Few days after, he got arrested.  Sandy wanted to clear his name and so he made a deal with the police officer to find the identity thief and present her before him. He got his approval and from there, the chasing adventure started.

 

So far, this is the new world, everything may be stolen, including our identity. This is not just a simple disguise, for all we know, the person using our identity looks breathlessly different from us. So how does this end? Of course it will always end up in the good hands of a lawyer. But is this the only way to resolve the problem?

 

In my point view, legal action is just a remedy. Identity thieves maybe avoided if we reduce our cyber appetite and limit the information we share or post on the cyber world. When we speak of cyber world, it is bigger than the World Wide Web- it includes telephone system- including mobile phones, online and wireless services, communication satellites, personal computers, ipad and other devices where we can store, send, receive, disclose and create information or data.

 

We cannot however deny the fact that in the age of information revolution, disclosure of information is almost inevitable in work, in business or even in our ordinary day encounters. For instance, if we apply for a post-paid contract with telecommunication networks, we will notice that we are asked to disclose every detail of our personal information- including our annual salary, the same is true with other service-oriented organizations. They require information to ascertain whether we can pay additional monetary obligations in exchange for the services they will provide.

 

So how do we reconcile the underlying issues in the preceding discussions? Well, there is still no limit as to what information we want to disclose personally or online, as the government does not prohibit but rather it encourages the free expression of every person in the ground of human activities.

 

This is when the Law comes in. At present, there is existing law that protects the disclosure of an individual’s personal information against organizations or persons having control over the said information or data, still, the same law admits certain exception. Fair use is the most common defense used by these information controllers. The law allows these organizations, more so the government, to gather information regarding a certain individual if said information would be used fairly and not prejudicial to the individual.

 

What is fair use of information and data. Fair use means that the use of information will not subject an individual to harassment, embarrassment or it will not do injustice to him. For instance, in a post-paid contract entered by an individual with a telecommunication network, the requisite of disclosing the annual salary of an applicant is necessary in order to ascertain whether he is capable of paying the monthly bills. Is the requirement fair?  Yes it is fair, although some find it embarrassing; still, the disclosure is fair and reasonable.

 

The law also allows the collection of personal information if such shall be used for legitimate purpose only, so that after you file your income tax return to the BIR, they will assess your income tax return by looking into your record books, receipts and other relevant documents that would reflect your final return.  They will also conduct an investigation to check for possible tax deficiencies. Is this a violation of privacy? Of course not, such is legitimate act of the taxing authorities in order to reflect the right amount of tax due on your annual tax return. It would be different however if the taxing authority, after you have paid your taxes, asks for the contact numbers of your family members, such is irrelevant and unnecessary..

 

Another circumstance would be an employer who asks for your transcript or copy of grades from your primary, secondary, tertiary up to graduate school .This is a legitimate and fair act of your employer, for some of them choose only the best and competent employees.

 

The same is also valid in cases such as when a psychiatrist or psychologist reasonably asks a copy of his patient’s previous psychological examination from the school’s guidance counselor or human resource person. These records are very critical to the employment, as well as to the social relationship of the patient. Hence, it shall be kept by the doctor with utmost confidentiality and shall be used according to the purpose known to the patient. Thus, it would be different if an employer would ask for a copy of an applicant’s previous psychological exam. To allow such would be to violate his right to privilege communication.  

 

The law also allows the gathering of personal information for litigation purposes. Said personal information may be presented as evidence before the court, and the court finding it admissible and with probative value, may admit the information gathered.

 

I can discuss as many circumstances regarding the use and misuses of information but before I move to my next point, let me reiterate what is mentioned in the preceding paragraph concerning Data Privacy Act. The creation of the Privacy Act is aimed to protect the personal information of an individual from those organizations or persons who might have the privilege to gain access to their personal data.  The direct purpose of the government is the preservation of human privacy, as an inherent consequence of democracy. It allows each and every person to live in liberty- far from a society that is always in quest of human illegal activities.

 

Earlier we already talked about technology and privacy, for some people, the rush to stay online and be connected with the whole world is a type of liberty that cannot be controlled by legislation. But of course, all the liberty we enjoy has limits. When I speak of limits, it referrers to the prohibition prescribed by law or the legal action and punishment for the person who committed certain acts in violation of the law- which in this case is the Data Privacy Act or Republic Act 10173. 

Technology as I mentioned above also includes mobiles or phone gadgets. We hear complaints about online issues regarding privacy, but we hear little issues regarding violation of privacy on mobile phones. So, are mobile phones protected by Republic Act 10173? The answer is yes; the law did not categorically exclude or specify which devices are covered by law. Section 4 of the said law provides for the Scope of the protection which states the following:

 “This Act applies to the processing of all types of personal information and  to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with”.

Hence, it is clear from the above stated law that any equipment used for the processing of information or data are covered by the protection. So why am I focusing on mobile phones? Many, especially those who remain to be traditional in their medium of communication, stick with mobile phones. One practical reason is that they find the communication in cellular phones more personal and direct. Although video call is available online, some choose the most conventional – if not personal- way of communication trough mobile calls and text. Although this is no longer the latest trend, still, there are people who give greater weight on mobile phones than online oriented devices.

Moving on to my next point, Is it acceptable to disclose someone else’s mobile number to a third person without the former’s consent? In my point of view, it depends, for we often encounter situations when we can’t say no to the person seeking for that piece of information, maybe because that person is our superior at work, or someone closely related to us like our family members. In this case, if we set aside the privacy issue we may choose to disclose the information.

If we entertain issues on privacy in relation to the question above, my answer would remain the same- it depends on the purpose of the recipient. If the third party has a fair and legitimate cause for acquiring the said information, then, the same principle would apply in this instance- there will be no violation of privacy because the information was disclosed in substantial compliance with Section 5 of Data Privacy Act, also known as Republic Act 10173.

Very briefly, the law requires that the information must be acquired for legitimate purpose or it shall be possessed fairly and legitimately, it must be accurate and relevant to the purpose for which it was collected, it shall not exceed to the purpose for which the data or information was gathered and it may be retained only within a reasonable time.

Citing as basis the above exceptions, we can infer that the law is not limiting but rather liberal.  It provides us the manner and discipline of handling personal information belonging to other person. Hence, using the above criteria, if we enter into a post-paid contract with a telecommunication service provider, the later may use our number to send in their advertisement and promos. They may also disclose our mobile number to their sister companies so that they can promote their company and services directly to us. Such has been the common practice of some telecommunication networks. The law allows this kind of process because it is necessary and relevant to the business.

It is also possible for government employees to receive messages from their office regarding notices, warnings and updates in their office. It is also possible for an employee from PAG-ASA to receive weather updates, while those who are employees of Red Cross may receive first aid tips in cases of natural disasters, all of these are possibilities which if existing- would not constitute a violation of our privacy.

Unlike our facebook accounts, twitter and email address where videos and photos of us may be viewed in just one click, phone numbers on the other hand does not reflect any information other than the numbers appearing on screen. To add further, a cell number although considered part of our information- is not really the main source of our personal and confidential data; it is rather a medium to collect or gather information from the person owning the number.

Thus, moving on to my last point,  cell phone numbers are just numbers anyway, if we give it to a third person, they will get nothing but numbers, no more no less. Thus, the only information disclosed are those eleven numbers which if disclosed to another person-would still depend on the fate of their call.