Bawal na ba ang pasalubong from your Tita in San Francisco?

There is some hoopla happening right now about that law saying balikbayans can't bring in movies, TV shows and coloring books anymore when they return to the Philippines.

That "law" would be House Bill No. 3841, 15th Congress, making some amendments to current Intellectual Property Code of the Philippines.

So, bawal na ba talaga to bring home your pabilin of the boxed set of Lord of the Rings from your Tita in San Francisco?

To put it plainly: No, it's not bawal. What is bawal now is how many your tita can bring home, and in fact this law says your tita or any balikbayan relatives can bring in more than they did before according to the change in law.

Yes, more.

Related story: Intellectual Property Code changes approved

Don’t be scared, because I will now be posting some legal stuff in the next few paragraphs to illustrate this. Scroll down a bit if you want to skip it.

The now-to-be-deleted provision reads like this:

SEC. 190. Importation for Personal Purposes
190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances:
b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed three (3).

The soon-to-be-public provision will be like this:

SEC. 190. Importation and exportation of infringing materials
Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation or exportation of articles, the importation or exportation of which is prohibited under this Act and under treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported or before they are exported.

Stop scrolling here. Welcome back!

Also read: Palace: Thou shall not fear cybercrime law

Seriously, I believe that this proposed law actually made it easier for us. The old provision allowed us to import for "personal use" at most three (3) copies of a work.

That means you can bring one (1) copy of ten (10) books. Or two (2) copies of five (5) movies and so on. The old provision gave us — balikbayans or returning residents to the Philippines an exemption.

Now with the new law, the exemption has been removed. I submit that some dental extraction has happened.

The Customs now has a weaker bite. Let me explain how the teeth fell off.

First, this provision is titled: "The importation of INFRINGING materials". (All caps mine)

Under Copyright Law, only the owner of the work can declare what is infringing.

As in only Peter Jackson can declare what DVD's of his has been infringed, to violate the director's copyright of the work he owns.

Copyright is a private right and can only be enforced if there is a complaint lodged. (May nagreklamo ba na fake a kopya mo ng Lord of the Rings?)

The Customs at the airport has NO knowledge of what is infringing or not.

Will he have copy of all the complaints filed by every copyright owner in the world? How can he tell if it's a copy or original?

That is why the police can't automatically confiscate or raid the DVDs in the stalls. There has to be a complaint filed by the movie owners.

Secondly, the limit to three (3) copies has been removed.

That means, I can bring in twenty (20) copies of "Glitter" as pasalubong to 20 friends, who will now be considering me an "ex-friend" because of my baduy taste. (Okay, hypothetical only!)

But as long as they are not prohibited (non-infringing) under the IP Code, my name as a contact will hopefully not be deleted from twenty phones.

Is this interpretation of the law strained? Maybe. But that's what we lawyers do.

If you have any doubts, take me with you next time you fly out and travel back, with bilins on hand. I am ok with the cheap fares. I don’t ask much.

——————————
Rod Vera is an attorney practicing intellectual property law. You may contact him at attyvera@ymail.com

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