Tech Law Digests


Expert Travel &Tours Inc. vs CA

GR 152392, May 26, 2005

Callejo Sr. J.

Facts: Korean Air Lines (KAL) filed a complaint against Expert Travel & Tours Inc (ETI) with the RTC of Manila for collection of sum of money plus attorney’s fees and damages. The verification and certification against non-forum shopping was signed by Atty. Mario Aguinaldo, who indicated therein that he was the resident agent and legal counsel of KAL and had caused the preparation of the complaint. ETI moved to dismiss the complaint on the ground that said lawyer was not authorized to execute the verification and certification against non-forum shopping as required by Section 5 Rule 7 of the Rules of Court. KAL opposed the motion, contending that Atty. Aguinaldo was its resident agent and was reported as such with the SEC as required by the Corporation Code of the Philippines. Also, it further alleged that Atty. Aguinaldo was the Corporate Secretary of KAL.

At the hearing, Atty. Aguinaldo claimed that thru a resolution of KAL Board of Directors approved during a special meeting, he was authorized to file the complaint. Thru an affidavit submitted by its general manager, it was alleged that a special teleconference was held and and in that same teleconference the Board approved a resolution authorizing him  to execute the certification against non-forum shopping and to file the complaint. However, the general manager provided no written copy of the said resolution.

The trial court gave due credence to the claim of Atty. Aguinaldo and the general manager. ETI filed a motion for reconsideration, contending that the court cannot take judicial notice of the said teleconference without any hearing, which was denied by the RTC. CA also denied the appeal.

Issue: Whether or not the court can take judicial notice of the said teleconference.

Held: Things of “common knowledge” of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestionable determination. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge.

In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing. Teleconferencing is interactive group communication through an electronic medium, bringing people together under one roof even though they are separated by hundreds of miles.

In the Philippines, teleconferencing and videoconferencing of members of the board of directors of private corporation is is a reality, in light of RA 8792. The SEC issued SEC memorandum Circular No. 15, on November 30, 2001, providing the guidelines to be complied with related to such conferences.

The Court is not convinced that one was conducted; even if there had been one, the Court is not inclined to believe that a board resolution was duly passed specifically authorizing Atty. Aguinaldo to file the complaint and execute the required certification against non forum shopping.

Petition granted.

Aznar vs CITIBANK

GR 164273 March 28, 2007

Austria-Martinez, J.

Facts: Emmanuel Aznar, a known businessman, is a holder of a Preferred Mastercard credit card issued by CITIBANK. He made a total advanced deposit with CITIBANK with the intention of increasing his credit limit. During his Asian Tour with his wife and grandchildren, his CITIBANK credit card was not honored in some establishments in Malaysia, Singapore and Indonesia. He tried to use the same in Ingtan Tours and Travel Agency in Indonesia to purchase plane tickets to Bali, but was dishonored because his credit card was allegedly blacklisted by CITIBANK. Such dishonor forced him to buy the tickets in cash.

Aznar filed a complaint for damages against CITIBANK. To prove that CITIBANK blacklisted his card, he presented a computer print out (Exh. G) which shows that his card in question was declared over the limit. CITIBANK denied the the allegations and presented the warning cancellation bulletin which contained the list of its cancelled cards covering the period of Aznar’s trip. RTC dismissed the complaint for lack of merit.

Aznar filed a motion to re-raffle the case alleging impartiality of the president judge. The new judge ruled in favor of Aznar. On appeal, CA ruled in favor of CITIBANK and held that Aznar had no personal knowledge of the blacklisting of his card and only presumed the same when it was dishonored in certain establishments; that such dishonor is not sufficient to prove that his card was blacklisted; and that Exh G is an electronic document which must be authenticated pursuant to Section 2 Rule 5 on the Rules on Electronic Evidence or under Section 20 of Rule 132 of the Rules of Court, by anyone who saw the documents executed or written. Aznar failed to prove the authenticity of Exh G.

Issue: Whether or not Aznar has established his claim against CITIBANK.

Held: Aznar failed to prove with a preponderance of evidence that CITIBANK blacklisted his card or place the same on the “hot list”. Aznar in his testimony admitted that he had no personal knowledge that his card was blacklisted by CITIBANK and only presumed such fact from the dishonor of his card.

The prevailing rule at the time of the promulgation of the RTC Decision is Section 20 of Rule 132 of the Rules of Court. Aznar, who testified on the authenticity of Exh G, did not actually see the document executed or written, neither was he able to provide evidence on the genuineness of the signature or handwriting of Nubi, who handed him said computer print out.

Even if examined under the Rules on Electronic Evidence, which is being invoked by Aznar in this case, the authentication of Exh G would still be wanting. Aznar claims that his testimony complies with Rule 5 Section 2 (c) of the Rules on Electronic Evidence. The Court is not convinced. Aznar’s testimony that the person from Ingtan Agency merely handed him the computer print out Andy that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print out’s integrity  and reliability. As pointed out by the first judge in his decision, Exh G does not show on its face that it was issued by Ingtan Agency as Aznar merely mentioned in passing how he was able to secure the print out from the agency. Aznar also failed to show the specific business address of the source of the computer print out because while the name of Ingtan Agency was mentioned by Aznar, it’s business address was not reflected in the print out.

Petition denied.

Torres vs PAGCOR

GR 193531, December 14, 2011

En Banc. Peralta, J.

Facts: Petitioner was a Slot Machine Operations Supervisor of respondent PAGCOR. On the basis of an alleged Operations Supervisor of respondent PAGCOR. On the basis of an alleged intelligence report of padding of the CMR of the slot machines at PAGCOR – Hyatt Manila, respondent PAGCOR’s CIU discovered the scheme of CMR padding which was committed by adding zero after the 1st digit of the actual CMR of a slot machine or adding a digit before the 1st digit of the actual CMR. CIU identified petitioner as one of the members responsible for such CMR padding. Petitioner was dismissed from the service.

Petitioner filed with the CSC a complaint for illegal dismissal and nonpayment of back wages and other benefits against PAGCOR; alleging among others that he tried to persuade respondent PAGCOR to review and reverse its decision in a letter of reconsideration addressed to the Chairman, the members of the Board and the Merit Systems Protection Board.

CSC denied the appeal; it did not give credit to petitioner’s claim that he sent a facsimile transmission of his letter reconsideration within the period prescribed. It found out that one of the telephone numbers where petitioner allegedly sent his letter reconsideration did not belong to PAGCOR’s office of the Board of Directors; and that petitioner should have mentioned about the alleged facsimile transmission at the first instance where he filed his complaint.

On appeal, CA dismissed the petition for it found insufficient to merit consideration petitioner’s claim that he had sent through a facsimile transmission a letter reconsideration addressed to PAGCOR chair, members of the Board and the Merit Systems Protection Board, and assuming that a letter was indeed sent, such facsimile transmission is inadmissible as electronic evidence under the E-Commerce Act of 2000; and that the telephone number where petitioner claimed stop be the recipient of the faxed document sent was not that of the PAGCOR’s office of the Board of Directors.

Issue: whether or not the CSC erred in ruling that there was no valid letter reconsideration submitted.

Held: The mode used by the petitioner in filing his reconsideration is not sanctioned by the Uniform Rules on Administrative Cases in the Civil Service. As stated earlier, the motion for reconsideration may be filed only in two ways, either by mail or personal delivery.

” A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by them party and his counsel. It may, in fact, be a sham pleading.xxx” (Garvida vs Sales, Jr.)

“We, therefore, conclude that the terms “electronic data message” and “electronic document” as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence.” (MCC Industries Sales Corporation vs Ssangyong Corporation)

Petition denied.

Ang vs CA

GR 182835, April 20, 2010

Abad, J.


Facts: Complainant Irish Sagud and accused Rustan Ang were sweethearts. However, Irish broke up with him when she learned he had taken a live-in partner whom he had gotten pregnant. Rustan convinced her to elope with him for he did not love the woman whom he was about to marry, but Irish rejected the proposal. She changed her cellphone number but Rustan managed to get hold of it and send her text messages.

Irish received through multimedia message a picture of a naked woman with spread legs and with her face superimposed on the figure. The sender’s cellphone number, stated in the message, was one of the numbers used by Rustan. After she got the obscene picture, she received text messages from Rustan threatening her that he will spread the picture he sent through the Internet.

Under police supervision, Irish contacted Rustan through the cellphone number he used in sending the picture and text message. She asked him to meet her at a resort and he did. Upon parking his motorcycle and walking towards Irish, the police intercepted and arrested him. The police seized his cellphone and several SIM cards.

Issue:
 whether or not the RTC properly admitted in evidence the obscene picture presented in the case.

Held: Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules of Electronic Evidence.

The objection is too late since he should have objected to the admission of the pictures on such ground at the time it was offered in evidence. He should be deemed to have waived such ground for objection.

Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings.

Petition denied.

Nuez vs Cruz-Apao

AM CA 04-18-P, April 12, 2005

En Banc. Per Curiam

Facts: This is an administrative case for Dishonesty and Grave Misconduct against the respondent, Executive Assistant II of the Acting Division Clerk of Court of the 15th Division, Court of Appeals. The complaint arose out of respondent’s solicitation of P1Million from complainant Zaldy Nuez in exchange for a speedy and favorable decision of the latter’s pending case. This led to the conduct of an entrapment operation by elements of the PAOCTF and the apprehension of the respondent by the PAOCTF agents in the course of the entrapment operation.

Complainant’s case referred to had been pending with the CA for more than 2 years. Desiring for an expeditious decision of his case, complainant sought the assistance of respondent. Through phone conversation and series of text messages exchanged via SMS, complainant informed respondent of the particulars of his case. Allegedly, complainant thought that respondent would be able to advise him on how to achieve an early resolution of his case. It turned out that respondent told complainant that a favorable and speedy disposition of his case was attainable but the person who was to draft the decision was in return asking for P1Million Pesos.

Complainant negotiated to reduce the amount but respondent held firm asserting that the price had been set, not by her, but by the person who was going to make the decision. With the help of Imbestigador and the PAOCTF, an entrapment operation was set which led to the apprehension of respondent.

Issue: Whether or not what transpired was instigation and not entrapment which led to the apprehension of the respondent.

Held: Complainant’s narration of the incidents which led to the entrapment operation are ore in accord with the circumstances that actually transpired and are more credible that respondent’s version.

Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly presented that the latter asked for 1Million Pesos in exchange for a favorable decision of the former’s pending case with the CA. The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules of Evidence.

Under Section 2, Rule 11of the Rules on Electronic Evidence, “Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof….” In this case, complainant was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainant’s cellphone from which the messages originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant. In administrative cases, technical rules of procedure and evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof off respondent in this case.

Respondent found guilty of Grave Misconduct. Dismissed from service.

Garcillano vs House of Representatives Committee on Public Information,
Public Order and Safety, National Defense and Security, Information and
Communications Technology, and Suffrage and Electoral Reforms

GR 170338, December 23, 2008

En Banc. Nachura, J.



Facts:
 These are two (2) consolidated cases regarding the tapes ostensibly containing a wire tapped conversation purportedly between the President of the Philippines and a high-ranking official of the Commission on Elections (COMELEC). The tapes, notoriously referred to as the “Hello Garcia” tapes, allegedly contained the President’s instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings were to become the subject of heated legislative hearings conducted separately by committees of both House of Congress.

Petitioner in GR 170338,Virgilio Garcillano, filed a petition to restrain the House Committees from using the tape recordings of the “illegally obtained” wiretap led conversations in their committee reports and for any purpose and be ordered that the said recordings be stricken off the records of the inquiry, and that respondent house committees desist from further using the recordings in any of the House proceedings.

Petitioners in GR 179275, both retired justices in the CA, filed a petition seeking to bar the Senate from conducting its scheduled legislative inquiry, arguing that the inquiry violates RA 4200 and the Constitutional mandate regarding the publication of its rules of procedure in the conduct of inquiries in aid of legislation.

Respondents in this particular case justified their non-observance of the constitutional mandate  by arguing that the rules have never been amended since 1995 and despite that, they are published in booklet form available to anyone for free and accessible to the public at the Senate’s Internet web page.

Issue:  Whether or not publication, in the Internet and in pamphlet form, of the Senate Rules of Procedure is deemed valid as publication mandated by the Constitution.

Held: Absence of any amendment to the rules cannot justify the Senate’s defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The organic law instructs, without more, that the Senate or it’s committees may conduct inquiries in aid of legislation only in accordance with duly published rules of procedure, and does not make any distinction whether or not  these rules have undergone amendments or revisions. The constitutional mandate to publish the said rules prevails over any custom, practice, or tradition followed by the Senate.

The invocation by the respondents of the provisions of RA 8792 or the E-Commerce Act of 2000, to support their claim of valid publication through the Internet is all the more incorrect. RA 8792 considers an electronic data message or an electronic document only for evidentiary purposes. The law merely recognizes the admissibility in evidence (for being original) of electronic data messages and/or electronic documents. It does not make the Internet a medium for publishing laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do so only “in accordance with its duly published rules of procedure.”

Petition in GR 170338 is dismissed and petition in GR 179275 is granted.

Vidallon-Magtolis vs Salud

AM CA-05-20-P, September 9, 2005

En Banc, Callejo Sr., J.

Facts: Respondent Cielito Salud, Clerk IV, Mailing Section of the Judicial Records Division, Court of Appeals, stands charged with Inefficiency and incompetence of official duty, Conduct grossly prejudicial to the best interest of the serivce, and Directly and indirectly having financial and material interest in an official transaction, related to the service of resolution and order of release of Melchor Lagua upon bail.

Culled from the facts, Lagua’s petition for bond was approved in a Resolution dated November 6, 2003. The resolution was brought to the office of Atty. Madarang, Division Clerk of Court, for promulgation. On November 7, 2003, respondent served the resolution and order of release of Lagua at the National Penitentiary, where Lagua was detained for homicide.

Meanwhile, Atty. Madarang received a call from a certain Melissa Melchor, who introduced herself as Lagua’s relative, asking how much more they had to give to facilitate Lagua’s
provisional liberty, and that they sought the help of a Rhodora Valdez of RTC Pasig, but was told that they still had a balance to be given to Justice Magtolis and Atty. Madarang through the respondent.

Disguising as Lagua’s relative, Atty. Madarang found out thru exchanges of text messages that respondent demanded money from Lagua’s relatives in connivance with Rhodora Valdez, Process Server of RTC Pasig where the case originated. Later, Atty. Madarang learned that the respondent did not properly serve the copies of the resolution and order of release upon the accused and his counsel, but gave them to a certain Art Baluran, allegedly Lagua’s relative.

Lagua denied the charges, and that his name had been used by someone and was, thus, a mere victim of the circumstances.

Issue: Whether or not the admission of text messages as evidence against the respondent constitutes a violation of his right to privacy.

Held: Text messages have been classified as “ephemeral electronic communication” under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and “shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof.” Any question as to the admissibility of such messages is now moot and academic, as the respondent himself, as well as his counsel, already admitted that he was the sender of the first three messages on Atty. Madarang’s cellphone.

This was also the same ruling of the Court in the recent case of Zaldy Nuez vs Elvira Cruz-Apao. In that case, the Court, in finding the respondent therein guilty of dishonesty and grave misconduct, considered text messages addressed to the  complainant asking for a million pesos in exchange for a favorable decision in a case pending before the CA.

National Power Corporation vs Codilla, Jr.

GR 170491, April 4, 2007

Chico-Nazario, J.

Facts: M/V Dibena Win, a vessel of foreign registry owned and operated by private respondent Bangpai Shipping Co., allegedly bumped and damaged petitioner’s Power Barge 209 which was then moored at Cebu International Port. Thus, petitioner filed before the Cebu RTC a complaint for damages against private respondent Bangpai Shipping Co., for alleged damages caused on the petitioner’s power barges. Subsequently, petitioner impleaded herein private respondent Wallem Shipping Inc. as additional defendant.

After adducing evidence during the trial of the case, petitioner filed a formal offer of evidence before the lower court. Private respondents filed their respective objections to petitioner’s formal offer of evidence.

Public respondent judge issued the assailed order denying the admission and excluding from the records some of petitioner’s exhibits and submarkings on the ground that the documents formally offered as evidence were photocopies, not the originals. Respondent Wallem Shipping invoked that Xerox copies do not constitute the electronic evidence defined in Section 1 of Rule 2 of the Rules of Electronic Evidence. Further, respondent judge ruled that the information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically, and that electronic evidence must be authenticated, which the petitioner failed to do. Finally, the required Affidavit to prove admissibility and evidentiary weight of the alleged electronic evidence was not executed, much less presented in evidence. On petition for certiorari, CA ruled in favor of respondent judge.

Issue: Whether or not petitioner is correct in its contention that the photocopies it offered as formal evidence before the trial court are the functional equivalent of their original based on its inimitable interpretation of the Rules of Electronic Evidence.

Held: An “electronic document” refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved or affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced eletronically. It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document. The rules use the word “information” to define an electronic document received, recorded, transmitted, stored, processed, retrieved or produced electronically. This would suggest that an electronic document is relevant only in terms of the information contained therein, similar to any other document which is presented in evidence as proof of its contents. However, what differentiates an electronic document from a paper-based document is the manner by which information is processed; clearly the information contained in an electronic document is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the contents therein, such as signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. Hence, the argument of the petitioner that since these paper printouts were produced through electronic process, then these photocopies are electronic document as defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having thus declared that the offered photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of their original as decreed in the law.

Petition denied.

MCC Industrial Sales Corporation vs Ssangyong Corporation

GR 170633, October 17, 2007

Nachura, J.

Facts: Petitioner MCC, a domestic corporation, is engaged in the business of importing and wholesaling stainless steel products. One of its suppliers is respondent Ssangyong, an international trading company with head office in Korea and regional office in Makati City. The two corporations conducted business through telephone calls and facsimile or telecopy transmission. Ssangyong would send the pro forma invoices containing the details of the steel product order to MCC; if the latter conforms thereto, it’s representative affixes his signature on the faxed copy and sends it back to Ssangyong, again by fax.

Respondent sent, by fax, a letter addressed to petitioner’s Manager to confirm petitioner’s order of 220 metric tons of hot rolled stainless steel under a preferential rate of US$1,860/MT. Petitioner assented and affixed his signature on the conforme portion of the letter. Respondent forwarded to petitioner the Pro Forma Invoice containing the terms and condition of the transaction, which, petitioner sent back by fax containing the conformity signature. As stated in the invoice, payment for the ordered steel product would be made through an irrevocable letter of credit at sight in favor of respondent. Following their usual practice, delivery of the goods was to be made after the L/C had been opened.

The order for 220MT of steel was split into two. For failure of the petitioner to open the second letter of credit upon demand, respondent filed a civil action for damages due to breach of contract.

Petitioner, in their Demurrer to Evidence, alleged that respondent failed to present the original copies of the pro forma invoices on which the civil action was based. The court denied the demurrer, ruling that the documentary evidence is admissible pursuant to RA 8792 and that both testimonial and documentary evidence tended to substantiate the material allegations in the complaint, suffice for the purposes of prima facie case. On appeal to the CA, the appellate court affirmed the ruling of the trial court. It found the invoices admissible in evidence , although they were mere facsimile printouts of the steel orders.

Issue: Whether or not the print out and/or photocopies of facsimile transmissions are electronic evidence and admissible as such.

Held: 
The ruling of the CA is incorrect RA 8972 considers an electronic data message or an electronic document as the functional equivalent of a written document for evidentiary purposes. The Rules on Electronic Evidence regards an electronic document as admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws, and is authenticated in the manner prescribed by the said Rules. An electronic document is also the equivalent of an original document under the Best Evidence Rule, if it is a print out or output readable by sight or other means, shown to reflect the data accurately. Thus, to be admissible in evidence as an electronic data message or to be considered as he functional equivalent of an original document under the Best Evidence Rule, the writing must foremost to be an”electronic data message ” or an “electronic document”.

There is no question that when Congress formulated the term” electronic data message” it intended the same meaning as the term “electronic record” in the Canada law. To construction of the term “electronic data message” which excludes telexes or faxes, except computer-generated faxes, is in harmony with the E-Commerce Law’s focus on “paperless” communications and the “functional equivalent approach” that it espouses. Facsimile transmissions are not, in this sense, “paperless”, but verily are paper-based.

A fax machine is essentially an image scanner, a modem and a computer printer combined into a highly specialized package. The scanner converts he content of a physical document into a digital image, the modem sends the image data over a phone line, and the printer at the other end makes a duplicate of the original document.

In a virtual or paperless environment, technically there is no original copy to speak of , as all direct printouts of the virtual reality are the same, in all respects, and are considered as originals. The law’s definition of “electronic data message” which is interchangeable with “electronic document” could not have included facsimile transmissions which have an original paper-based copy  sent and a paper-based facsimile copy as received. While Congress anticipated future developments in communications and computer technology when it drafted the law, it excluded the early forms of technology, like telegraph, telex and telecopy (except computer generated faxes) when it defined the term “electronic data message”.

A facsimile transmission cannot be considered as electronic evidence – it is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence.

Since a facsimile transmission is not an “electronic data message” or an “electronic document” and cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such a fax transmission not electronic evidence.

Petition partially granted.

Diamond vs Diehr

450 US 175 (1981)

Facts: The patent application at issue was filed by the respondents on August 6, 1975. The claimed invention is a process for molding raw, uncured synthetic rubber into cured precision products. The process uses a mold for precisely shaping the uncured material under heat and pressure and then curing the synthetic rubber in the mold so that the product will retain its shape and be functionally operative after the molding is completed.

Respondents claim that their process ensures the production of molded articles which are properly cured. Achieving the perfect cure depends upon several factors, including the thickness of the article to be molded, the temperature of the molding process, and the amount of time that the article is allowed to remain in the press. According to the respondents, the industry has not been able to obtain uniformly accurate cures, because the temperature of the molding press could not be precisely measured, thus making it difficult to do the necessary computations to determine cure time.

Respondents characterized their contribution to the art to reside in the process of constantly measuring the temperature inside the mold and feeding the temperature measurements into a computer that repeatedly recalculates the cure time by use of the mathematical equation and then signals a device to open the press at the proper time.

When the recalculated time equals the actual time that has elapsed since the press was closed, the computer signals a device to open the press. According to the respondents, the continuous measuring of the temperature inside the mold cavity, the feeding of this information to a digital computer which constantly recalculates the cure time, and the signaling by the computer to open the press are all new in the art.

The patent examiner rejected respondents’ claims on the ground that they were drawn to nonstatutory subject matter under 35 U.S.C. § 101, which provides for the issuance of patents to”[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. . . .”

He determined that those steps in respondents’ claims that are carried out by a computer under control of a stored program constituted nonstatutory subject matter under this Court’s decision in Gottschalk v. Benson, 409 U. S. 63 (1972). The remaining steps — installing rubber in the press and the subsequent closing of the press — were “conventional and necessary to the process, and cannot be the basis of patentability.” The examiner concluded that respondents’ claims defined and sought protection of a computer program for operating a rubber-molding press.

The Patent and Trademark Office Board of Appeals agreed with the examiner, but the Court of Customs and Patent Appeals reversed. In re Diehr, 602 F.2d 892 (1979). The court noted that a claim drawn to subject matter otherwise statutory does not become nonstatutory because a computer is involved. The respondents’ claims were not directed to a mathematical algorithm or an improved method of calculation, but rather recited an improved process for molding rubber articles by solving a practical problem which had arisen in the molding of rubber products.

The Commissioner of Patents and Trademarks sought certiorari, arguing that the decision of the Court of Customs and Patent Appeals was inconsistent with prior decisions of this Court. Because of the importance of the question presented, we granted the writ. 445 U.S. 926 (1980).

Issue: Whether or not a process for curing synthetic rubber which includes in several of its steps the use of a mathematical formula and a programmed digital computer is patentable subject matter under 35 U.S.C. § 101.

Held: We view respondents’ claims as nothing more than a process for molding rubber products, and not as an attempt to patent a mathematical formula. We recognize, of course, that, when a claim recites a mathematical formula (or scientific principle or phenomenon of nature), an inquiry must be made into whether the claim is seeking patent protection for that formula in the abstract. A mathematical formula, as such, is not accorded the protection of our patent laws, Gottschalk v. Benson, 409 U. S. 63 (1972), and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment. Parker v. Flook, 437 U. S. 584 (1978). Similarly, insignificant post-solution activity will not transform an unpatentable principle into a patentable process.To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection. On the other hand, when a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e.g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101. Because we do not view respondents’ claims as an attempt to patent a mathematical formula, but rather to be drawn to an industrial process for the molding of rubber products, we affirm the judgment of the Court of Customs and Patent Appeals.

Sent from my iPad

 

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Downloading as Copyright Infringement

Generally, the downloader is infringing copyright if he downloads or store copyrighted materials in his computer without the permission of the copyright owner, unless fair use or another exemption under copyright laws applies. If you download a song, yfilm, game or software from a file-sharing website or another website (such as a page on a social-networking site) where it’s made available, and you do not pay for the item or otherwise obtain it under license from the copyright holder, then you are infringing someone’s copyright. Most downloading of commercially available copyrighted works, such as music or movies, through file sharing is illegal. In a US case, a Federal Court of Appeals held that users of Napster were infringing copyright when they shared MP3 files of copyrighted music.

However, purchasing of licensed softwares such as Microsoft Office and remaining in compliance with the terms of the license, as well as downloading music or other copyright able materials in accordance with the terms of a license, or having the permission of the copyright owner to download or keep a copy of the owner’s works exempts the downloaded from any liability.

The law also exempts the use of copyrighted materials from infringement, the so-called “fair use”. Fair use is an important part of copyright law, but is limited in scope and it’s application sometimes uncertain.

Copyright also allows making a copy of CD for personal use. However, giving a copy to another person is not allowed. Many people believe that if no money is involved, then no law has been broken. This is false. Whether giving away the copy or selling it, this is still a violation of copyright law.

The main dangers of infringing copyright in this way are (i) the potential for civil liability to the copyright holder, and (ii) the introduction of spyware, viruses or other unwelcome items to your computer as part of the download process.

It is also possible for a person to face criminal prosecution for copyright infringement, although the copyright statutes in the UK in effect limit the offense to the large-scale distribution of pirated material for financial gain. An individual who occasionally downloads songs via a peer-to-peer sharing site is unlikely to face criminal liability, and in fact the prosecuting authorities failed in at least one recent attempt to prosecute an individual who was operating a file-sharing website in the UK.

Civil liability, on the other hand, is a distinct possibility. Copyright holders frequently seek to identify and obtain compensation from individuals whodownload copyright material in a way that infringes the copyright. They do this by obtaining records from internet service providers (ISPs) and then getting their lawyers to write to people who have, according to the records, infringedtheir copyright. Ordinarily the lawyers’ letters demand a sum of money as compensation for the copyright infringement.

In the Philippines, RA 8792 or the E-Commerce act, particularly Section 33 (b), punishes with either fine or imprisonment any “unauthorized copying, reproduction, dissemination distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recordings or phonograms or information material or protected works.”

These unauthorized acts are penalized when committed through “the use of telecommunication networks,” including the Internet, when they infringe intellectual property rights.

The laws of the US, France, New Zealand and United Kingdom (SOPA/PIPA, HADOPI law, Three Strike Rule and Digital Economy Act, respectively) on copyright infringement, particularly when done through the Internet, attaches its liability not only on the Internet subscribers, but also on the Internet Service Providers / websites. Should similar laws be adapted in the Philippines, illegal downloading will not only pose liabilities on the internet users but on the websites and internet providers as well. It would surely benefit our artists, website designers and providers and website users.

The enforcement of copyright is the responsibility of the copyright holder. Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries enable courts to remedy copyright infringement with injunctions and the destruction of infringing products, and award damages. Copyright holders have started to demand through the ACTA trade agreement that states act to defend copyright holders’ rights and enforce copyright law through active policing of copyright infringement.It has also been demanded that states provide criminal sanctions for all types of copyright infringement and pursue copyright infringement through administrative procedures, rather than the judicial due process required by TRIPs.

Similarly, the ratification of the ACTA Treaty by the Philippines will further strengthen our fight against illegal downloading and consequently, minimize, if not totally eradicate online piracy. The provisions in the ACTA enjoins not only public awareness but active participation of the citizens in fighting copyright infringement though information about the procedures as well as the relevant laws in enforcing copyright laws, among others, aside from the active policing of copyright infringement.This could mean the end to a lot of local sites — sites that offer streaming TV shows (telenovelas, news, etc), blogs that offer downloads to cracks and hacks to software, forums that provide avenues for users to share copyrighted content like songs or mobile apps, and many more.

Similar laws, like those mentioned, as well as adherence to ACTA, be pursued in the Philippines, should not pose a threat to our freedom of free expression and privacy. While our Constitution safeguards these rights, bear in mind that such rights are not absolute, and are subject to police powers when public order is at stake. Copyright infringement, digital or otherwise, is a crime against public order, for it is the unauthorized use of works under copyright, infringing the copyright holder’s “exclusive rights”. It is copying “intellectual property” without written permission from the copyright holder. In a way, it is similar to theft. Freedom of expression and privacy should not be invoked, and rightly so, when it deprive copyright holders of their legitimate right to gain profit out of their creations. Article XIV Section 13 of the Constitution guarantees the protection of the exclusive rights of copyright owners of their intellectual property and creations, for a period as may be provided by law. Creative work is to be encouraged and rewarded. The immediate effect of these copyright laws is to secure a fair return for an author’s creative labour and at the same time to stimulate artistic creativity for the general public good.

 

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Downloading as Copyright Infringement

Generally, the downloader is infringing copyright if he downloads or store copyrighted materials in his computer without the permission of the copyright owner, unless fair use or another exemption under copyright laws applies. If you download a song, yfilm, game or software from a file-sharing website or another website (such as a page on a social-networking site) where it’s made available, and you do not pay for the item or otherwise obtain it under license from the copyright holder, then you are infringing someone’s copyright. Most downloading of commercially available copyrighted works, such as music or movies, through file sharing is illegal. In a US case, a Federal Court of Appeals held that users of Napster were infringing copyright when they shared MP3 files of copyrighted music.

However, purchasing of licensed softwares such as Microsoft Office and remaining in compliance with the terms of the license, as well as downloading music or other copyright able materials in accordance with the terms of a license, or having the permission of the copyright owner to download or keep a copy of the owner’s works exempts the downloaded from any liability.

The law also exempts the use of copyrighted materials from infringement, the so-called “fair use”. Fair use is an important part of copyright law, but is limited in scope and it’s application sometimes uncertain.

Copyright also allows making a copy of CD for personal use. However, giving a copy to another person is not allowed. Many people believe that if no money is involved, then no law has been broken. This is false. Whether giving away the copy or selling it, this is still a violation of copyright law.

The main dangers of infringing copyright in this way are (i) the potential for civil liability to the copyright holder, and (ii) the introduction of spyware, viruses or other unwelcome items to your computer as part of the download process.

It is also possible for a person to face criminal prosecution for copyright infringement, although the copyright statutes in the UK in effect limit the offense to the large-scale distribution of pirated material for financial gain. An individual who occasionally downloads songs via a peer-to-peer sharing site is unlikely to face criminal liability, and in fact the prosecuting authorities failed in at least one recent attempt to prosecute an individual who was operating a file-sharing website in the UK.

Civil liability, on the other hand, is a distinct possibility. Copyright holders frequently seek to identify and obtain compensation from individuals whodownload copyright material in a way that infringes the copyright. They do this by obtaining records from internet service providers (ISPs) and then getting their lawyers to write to people who have, according to the records, infringedtheir copyright. Ordinarily the lawyers’ letters demand a sum of money as compensation for the copyright infringement.

In the Philippines, RA 8792 or the E-Commerce act, particularly Section 33 (b), punishes with either fine or imprisonment any “unauthorized copying, reproduction, dissemination distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recordings or phonograms or information material or protected works.”

These unauthorized acts are penalized when committed through “the use of telecommunication networks,” including the Internet, when they infringe intellectual property rights.

The laws of the US, France, New Zealand and United Kingdom (SOPA/PIPA, HADOPI law, Three Strike Rule and Digital Economy Act, respectively) on copyright infringement, particularly when done through the Internet, attaches its liability not only on the Internet subscribers, but also on the Internet Service Providers / websites. Should similar laws be adapted in the Philippines, illegal downloading will not only pose liabilities on the internet users but on the websites and internet providers as well. It would surely benefit our artists, website designers and providers and website users.

The enforcement of copyright is the responsibility of the copyright holder. Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries enable courts to remedy copyright infringement with injunctions and the destruction of infringing products, and award damages. Copyright holders have started to demand through the ACTA trade agreement that states act to defend copyright holders’ rights and enforce copyright law through active policing of copyright infringement.It has also been demanded that states provide criminal sanctions for all types of copyright infringement and pursue copyright infringement through administrative procedures, rather than the judicial due process required by TRIPs.

Similarly, the ratification of the ACTA Treaty by the Philippines will further strengthen our fight against illegal downloading and consequently, minimize, if not totally eradicate online piracy. The provisions in the ACTA enjoins not only public awareness but active participation of the citizens in fighting copyright infringement though information about the procedures as well as the relevant laws in enforcing copyright laws, among others, aside from the active policing of copyright infringement.This could mean the end to a lot of local sites — sites that offer streaming TV shows (telenovelas, news, etc), blogs that offer downloads to cracks and hacks to software, forums that provide avenues for users to share copyrighted content like songs or mobile apps, and many more.

Similar laws, like those mentioned, as well as adherence to ACTA, be pursued in the Philippines, should not pose a threat to our freedom of free expression and privacy. While our Constitution safeguards these rights, bear in mind that such rights are not absolute, and are subject to police powers when public order is at stake. Copyright infringement, digital or otherwise, is a crime against public order, for it is the unauthorized use of works under copyright, infringing the copyright holder’s “exclusive rights”. It is copying “intellectual property” without written permission from the copyright holder. In a way, it is similar to theft. Freedom of expression and privacy should not be invoked, and rightly so, when it deprive copyright holders of their legitimate right to gain profit out of their creations. Article XIV Section 13 of the Constitution guarantees the protection of the exclusive rights of copyright owners of their intellectual property and creations, for a period as may be provided by law. Creative work is to be encouraged and rewarded. The immediate effect of these copyright laws is to secure a fair return for an author’s creative labour and at the same time to stimulate artistic creativity for the general public good.

 

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Legality of Fan…

Legality of Fan Art

Fan art or fan art is artwork that is based on a character, costume, collage, item, or story that was created by someone other than the artist, such as a fan, from which the word is derived from. The term, while it can apply to art done by fans of characters from books, is usually used to refer to art derived from visual media such as comics, movies or video games. Meanwhile, a fan artist is anyone who drew from a genre because they are a fan of the genre rather than a professional employed to create art for the genre.
Technically, the term “fan art” encompasses art in every medium just as the word “art” does, including but not limited to drawing, painting sculpture, photography, photo manipulation, video, crafts, textiles, metal smiting, and fashion. Within these broad medium types, fan art also created types of art always specific to itself, such as icons.
In the artistic community, fan art is often not seen as a legitimate form of artistic expression. The argument against fan art made by some artists, as well as some other fans, is that artwork is derivative and not original. Therefore, it does not show as much individuality and artistic sensibilities as original artwork would.
Derivative works are creations that are based in an existing work. A derivative work is by definition substantially similar to the underlying work and would be copyright infringement in the absence of a license. Thus, if the underlying work is in copyright one who wishes to exploit the derivative work needs a copyright license from the owner of copyright of the underlying work. The aspects of a derivative work added by the derivative authors are that author’s property, but the elements drawn from the pre-existing work remains on grant from the owner of the pre-existing work. If there is no such license, then the use of the underlying work in the derivative work is illegal under copyright laws.
According to copyright law, copyright holders have the sole right to distribute derivative works based on original creation. This includes sequels and other works that includes copyrightable elements from the original creation. Characters can be granted copyright protection from creation as can many non-expression elements of the original work. This is furthered that most form of creations are built upon plot elements and other copyrightable parts of the original materials.
That being said, fair use may protect some fan creations from being an infringement, but that is handled on a case to case basis, looking at the facts of the actual work. However, most fan creations, by their very nature, don’t parody or mention the source material, which would provide a great deal of protection, nor are they highly transformative, meaning, that they are likely to win in the event that such a suit takes place.
Fan art is not often the subject of legal controversy; from a copyright holder’s viewpoint, fan fiction and art is usually not very harmful. In fact, fan creations serves as free promotions and as a way to grow the brand without cost or effort, hence, copyright owners benefit from fan communities. For as long as fan communities do not hurt the original creator’s ability to profit from the work, and the proper attribution is given to the copyright holder, their symbiotic relationship is preserved.
Fan fiction and fan art are usually an infringement of the right of the copyright holder to prepare and license derivative works based on the original. This is almost without exception. They serve as a reminder that fan art is not necessarily the legal property of the fan artist and that copyright law and fair use and transformative defenses vary from country to country. It is best to study the rules of each community and obey them closely; that fan art creations exists only thru the good graces of the copyright holders and can put in force their right against infringement. While many copyright holders, for good reasons, tolerate fan art and even encourage it, it should not be interpreted that fan creators can do as they please with the source material, lest they end in court battle.

References:
1. http://www.plagiarismtoday.com/2010/05/13/the-messy-world-of-fan-art-and-copyright/
2. http://en.wikipedia.org/wiki/Fan_art
3. Amador, Vicente. Intellectual Property Fundamentals.C&E Publishing Inc. 2007

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Data Privacy Act of 2011 – Reaction

The Philippine Senate has approved Senate Bill 2965 or the Data Privacy Act of 2011. The Senate claims that the bill aims to strengthen the protection of personal data in information and communication systems both in the public and private sectors by establishing fair practices and regulate the collection and use of personal data stored in the computer systems. The bill is also expected to attract IT-related investments in the country and encourage IT-related professionals and skilled workers to look for opportunities within the country.

While it may help prevent misuse of personal information in the computer system, including identity theft,  and further boost our business process outsourcing (BPO) industry in the country, the inclusion of certain types of data, mainly sensitive personal information and privileged information, as among those types of information covered by the bill, seemingly violates the Constitutional right of the individual to privacy as well as violates the provisions of the Rules of Court pertaining to privileged communication. 

 
Article III Section 3 (1) of the 1987 Constitution provides:
 
Section 3.(1) The privacy of communication and correspondences shall be inviolable except upon lawful order of the court, or when public security or order requires otherwise as prescribed by law.
 
The repealing clause of this bill (Section 43) states that it amends Section 7 of RA 9372 or the Human Security Act, which states that:

 

SEC. 7. Surveillance of Suspects and Interception and Recording of Communications.  The provisions of Republic Act No. 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

 

Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.” (Italics supplied)

 
Being so, it only means that communications between the above mentioned professional relationships may be included and processed by third parties, be it individual or entity. In my opinion, personal information controller and processors may be considered third parties, since they control or regulate the information gathered from the person. They gain access and information about an individual in the process.
 
Since this bill  applies to privileged communications mentioned, it might limit clients, patients in disclosing information to their prejudice.
 
Likewise, inclusion of sensitive personal information as among those data to be processed might be used to discriminate the individual on account of his race, ethnic origin, color, religious or political affiliations, genetic or sexual life, etc.
 
In terms of storage of data, there should be a definite period for storing the information to protect the data. In case the period of storing the data expires and the transaction with the data subject is not yet over, request for the retrieval should be seeked from the Commission. Further, these processors or controllers should be accredited by the  Commission to ensure their standards are regulated by the Commission. 
 
Finally, how will this bill, in case it becomes a law, in anyway connect with the writ of Habeas Data? 
 
The Writ of Habeas Data provides:
 
“Sec. 1. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.” (Italics supplied).
 
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Hello World!

Just created my very first blog! Hello fellow bloggers!

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Hello world!

Welcome to WordPress.com! This is your very first post. Click the Edit link to modify or delete it, or start a new post. If you like, use this post to tell readers why you started this blog and what you plan to do with it.

Happy blogging!

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