INFRINGEMENT  &  THE  INTERNET

MANILA, NOVEMBER 9, 2006
  (STAR) HINDSIGHT By Josefina T. Lichauco - I continue to receive e-mails requesting that I write about Internet law and/or the Internet in general. Many say they have come to read my column to learn more about the Internet, its laws and efficiencies, complexities and frailties.

I was particularly interested in a letter from Markham Barclay of Edmonton, Canada, who pointed out that there are some dangers associated with the use of Internet materials, so it is important to be selective and careful. Mr. Barclay’s e-mail is the inspiration for my article today.

As early as May 1989, when the computer was coming onto the global telecom scene with increasing frequency, I remember a good meeting I had with a very impressive lady from Senegal, whose tall figure in her native costume cut an impressive sight within the halls of a large telecom conference in Nice, France. She was not only very attractive but also very sharp and friendly. That was about 17 years ago. That early, her insights on the prudent use of computer materials were very useful.

She had mentioned that it is important to understand the legal risks inherent in accessing, using, and distributing materials gathered and culled from the computer. Not only has her advice become more relevant, but in this age when the Internet increasingly dominates the lives of functionaries – not only in business and law, but all professions and disciplines, for that matter – there is also every reason to be cautious. Internet business leaders like IBM have prepared and distributed guidelines for distribution to assist employees with respect to valuing, protecting, and respecting the intellectual property rights of Internet-related property.

Individual country statutes and international treaties protect most Internet content. Copyright protection is easy to obtain, and since it exists in a work, whether or not a copyright notice is included in the material, most of the legal protections for Internet material are derived from copyright law. As a result, Internet users who use, copy, or distribute these materials must do so with the consent of the owner, or they will be violating the copyright holder’s rights under the law. There must, at all times, never be an assumption that just because there was no copyright notice, the Internet user has the right to freely copy and distribute materials obtained from the Internet.

Sometime in 2003, the book Life on the Cusp was published and launched at an afternoon tea at the Manila Polo Club, with two extremely nice ladies, Rita Ledesma and Mert Loinaz, as editors. Rita had asked me to write – along with 21 others, including Randy David, Jaime Augusto Zobel, Joy Virata, Lourdes Montinola, Alfredo Roces, Fr. Benedict Perez OSB, etc. – about "life on the cusp."

It was a great experience for me, and I titled my work "Passion Transformed."

One day, at the beauty parlor, someone handed me a local magazine, pointing to the inside pages where my article (with the exception of a few paragraphs), was reproduced verbatim. It occupied several pages of a magazine I was not crazy about, and depicted two full-page sketches of a woman obviously in ecstasy with red roses all over the picture (on the next page, another woman was behind a wire fence with thorns, imprisoned and desolate). I was shocked and aghast at the interpretation, until anger took over.

"Passion" had obviously been interpreted as sexual ecstasy and the woman depicted was imprisoned in her life before deliverance. Not only was the interpretation incorrect and demeaning, the reproduction almost in toto was a clear violation of my rights under the law. And, to add insult to injury, on the opening pages of the magazine was the usual notice that no part of the magazine could be copied, and would be a violation of Philippine copyright laws.

I was revolted not only by the entire interpretation, but at the effrontery and gall of the magazine editors and publishers. The fact that my name was there as the author did not erase nor lessen the criminal nature of the act. It was a clear violation of my rights as an author and those of my publishers, and I could very well have claimed for damages.

What made me decide to desist from pursuing any action of a judicial nature was when I found out through a press release that the person I was going to sue (the editor and publisher of the magazine) was the donor of a room in a charity hospital where I found myself one day. The room had been named after the son of the person I was going to sue. Her little boy had died of cancer, and she was donating similar rooms to other hospitals in the country.

Immediately I discarded any intent to sue for damages and told her so. It was providential for my intended respondent and also for me, because my shock and anger were replaced by peace of heart.

As far as the Internet is concerned, the same rules apply. Remember that the circulation of the Internet is sweeping and widespread, hits millions of people right away, and can really be damaging. However, the owners of some material want it to be available to all Internet users. This sort of material, when distributed via the Internet, is known in the advanced Western world as "shareware" or "freeware."

But Internet users should be aware that even shareware may be restricted in the manner it is used. The three most common restrictions are: a) it should not be used for commercial purposes, b) it should not be sold to others, and c) copyright and/or ownership notices must be attached to every copy made by a user. Failure to abide by such restrictions is just as unlawful as using illegally copied Internet material.

Ronnie Reposo, a balikbayan computer expert from Las Vegas, e-mailed me about materials in what is called the "public domain," which of course can be used freely. But this is not always the case, because sometimes material placed in a public-domain site may have been put there by a party with no legal right to do so. For example, a copy of IBM’s OS/2 WARP was placed on a public-domain site without IBM’s permission.

Most large firms like IBM, Intel, and NTT-Docomo have Internet sites that employees use on a regular basis. But bear in mind that just because an employee takes information from his or her own firm’s Internet site solely for use in his or her work does not eliminate the possibility of copyright infringement. Of course, the legal risks associated with using materials from a firm’s own Internet site for internal or company purposes is less than the risk of infringement from using, copying, and distributing Internet material for use outside the company. But copyright infringement may still occur. This is particularly true for software, technical material, or databases.

In order to be able to prevent such infringement, companies have, as a rule, reviewed any relevant restrictions associated with Internet materials on the company’s site. The most common restriction is associated with the commercial use of Internet material found on the company’s site. In cases like this one, the restriction identifies the owner of the material and suggests how to proceed in the event that the material is to be used commercially.

Quite a number of businesses and firms have created a hyperlink (I wrote about hyperlinking in my June 20, 2005 article), from the restriction notice to the web page displaying the applicable Internet material license. This Internet page has instructions related to copying, using, and distributing the material in question. Infringement in relation to the Internet really need not be a dirty word if the rules and provisions of law are in order on a global and national basis.


Chief News Editor: Sol Jose Vanzi

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