Reaction paper on “STOP ON LINE PIRACY” and determine the feasibility of enforcing it in the Philippines

Reaction paper on “STOP ON LINE PIRACY” and determine the feasibility of enforcing it in the Philippines


SOPA or Stop on line piracy bill is an anti-piracy bill introduced in the United States.  Its major purpose was to help internet provider better protect their creative and ingenious creations in the virtual world.

This SOFA provide internet provider enormous power such as shutting down all possible infringers from pirating or infringing with their creations, but then again, we are now facing a constitutional problem of what is the limitation of this enormous power and what will be the guiding ground for its implementation?

In the Philippines, provisions of the fundamental law or the Constitution were very much an issue, such as human rights violations and extrajudicial killings.  Such issues boil down into one topic, due process.  Applying such into the scenario being drawn by this anti-piracy bill, it will highly violative of the due process clause of the fundamental law that a mere letter with a view of possible good faith will be enough to shut an internet provider without even knowing the veracity of such claim and determine who has a better right to the said virtual creations.

Moreover, such unlimitless power can and will end a person or even companies virtual presence without affording the latter due process before the court.  On this note, politicking in a virtual world will be highly promoted.  The strong and the influential will survive and retain his presence in the virtual world.  This will evidently and definitely defeat its purpose of protecting the copyrightable creation of talented and artistic individuals since their works in a virtual world can be deleted by power ones.

SOFA as an anti-piracy bill was envisioned by the framers of the law to protect U.S. from external threats.  Having said that, it will be more conducive for our country to focus more in addressing internal issues and determine its ability to solve and cater the country’s need.

In conclusion, for such bill to be feasible in our country, their s a need to determine first the limit of powers to be conferred to internet providers.  There is a need for procedure on how to address such problems and should conforme with the provision of the due process clause of the constitution, for the simple reason that such law in itself will violate the most essential right of a person to life, liberty and property.
There is a need for the possible endorser of the bill into the country to expressly provide that the major focus or goal of the bill was to protect first internal issues regarding infringement; and from that point further development on how to better protect and secure each and everyone’s creation in the virtual world can be put in place.



Prepared by:

Jayson A. Ramos, CPA

Submitted to:

Atty. Berne Michael Guerrero
Prof. Tech and the Law

Feasibility of AFTA or ASEAN Free Trade Area in the Philippines

Feasibility of AFTA or ASEAN Free Trade Area in the Philippines

AFTA stands for ASEAN Free Trade Area which involves the removal of
obstacles to freer trade among member states. This includes the
abolition of high tariffs or taxes on traded goods and the scrapping
of quantitative restrictions (QR’s) and other non-tariff barriers
(NTB’s) that limit the entry of imports.

AFAT envisioned that member states of ASEAN has to lower down its
tariffs or taxes for export materials to 0-5% up to 2003.  The basic
purpose of such reduction of taxes was to make it more productive to
member states to socialize in terms of exchanges of manufactured
products.  Such act will make the prices of commodities not within the
exceptions; will make other member countries of ASEAN compete
globally, although it will start within its ASEAN neighbours.  AFTA
will promote harmonious relationship among member states since, those
countries not actively involved in exporting their products to a
specific state because of high tariffs or taxes will now be given an
opportunity to compete or market its products in a larger scale.

Such decline of tariffs, though will definitely affect the profit of
the manufacturers and business establishment in the member states, but
on the whole, there will be more positive impact such as more export
business that will emerge within the member sates, as well as more
interrelations and opportunity for small scale business establishments
to compete a larger scale of marketing arena.

The AFTA convention highlighted possible areas for conflicts such as
the following:

Among the factors to be considered in determining whether injury to
the domestic industry is serious are:

1.      Decline in sales or prices; downward trends in production, profits,
wages, or productivity;

2.      Inability to generate capital for modernization or maintain
existing levels of expenditures on research and development;

3.      Inability of significant number of firms to carry out production at
a profit; significant idling of production facilities including the
closure of plants or underutilization of production capacity;

4.      Significant unemployment/ underemployment; significant reduction in
market share as a proportion of market demand; and

5.      nrowing inventories of subject article, whether maintained by
domestic producers, importers, wholesalers or retailers.

For threat of serious injury, the following factors are considered:

1.      significant increase in imports (evidenced, among others, by the
existence of letters of credit, supply/sales contracts, awards of a
tender, irrevocable offers or other similar contracts);

2.      Decline in sales, prices or market share and downward trends in
production, profits, wages, productivity or employment;

3.      Inability to generate capital for modernization or maintain
existing levels of expenditures on research and development;

4.      Sufficient freely disposable, or an imminent substantial increase
in production capacity of foreign exporters including access
conditions they face in third country markets indicating the
likelihood of substantially increased exports to the Philippines; and

5.      Growing inventories of subject article, whether maintained by
domestic producers, importers, wholesalers or retailers.

Despite the numerous possible negative implications of lowering the
tariffs and amounts to decline of manufacture products prices that may
cause shot down of some establishments and just rely on affordable
products, still AFTA has to be viewed as milestone to now be able to
globally compete with the market, to let people know that products of
a country at a minimal price with a high quality.

In the end it will open new doors for business opportunity as well as
employments since more investors will not offer to merge if not
consolidate with our home-grown business firms.
It is about time that the Philippines have to accept changes in terms
of global competition in the world market.  We have to face the fact
that exportation and inviting investors in the country will solve
poverty.  More people will be given a chance to afford basic needs as
well as companies be given an opportunity to compete its products in a
larger scale.
Let us embrace these new change in our conservative marketing strategy.





Prepared by:


Jayson A.Ramos, CPA



Submitted to:


Atty.  Berne Michael Guerrero
Prof. Tech and the Law

Digest 10: MCC INDUSTRIAL SALES CORPORATION vs. SSANGYONG CORPORATION

MCC INDUSTRIAL SALES CORPORATION, petitioner, 

vs.

SSANGYONG CORPORATION, respondents.

Facts:  On April 13, 2000, the petitioner MCC Industrial Steel Corp., a  domestic corporation engaged in the importation and wholesale of stainless steel in the country, contracted with the herein private respondent, Ssangyon Corporation, a manufacturer of stainless steel with a head office in Seoul South Korea.  MCC ordered 220 metric ton of stainless steel for $1,860 metric ton.  It was arranged that the respondent will issue the sales invoices through fax, and once the petitioner conforme to such then MCC through its general manager and president George Chan, the latter has to fax the same with his signature.  On the time the petitioner had a hard time to open the latters of credit, Ssangyong decided to negotiate with its mother company in korea to grant MCC a discount and to extend for a while the opening of letters of credit.  Such request was accede by respondent.  The first $70,000 letter of credit was issued by MCC but the remaining $170,000 was not.  On this note, the respondent was compelled to filed a complaint for breach of contract and prayer for damages.  The lower court acceded with the prayer of the respondent, that indeed petitioner failed comply with their contract despite discounts given as well as extension for opening of letter of credit, under the strong protest of the petitioner that the fax copies presented as document cannot be relied upon as the best evidence.

Issue: Whether the print-out and/or photocopies of facsimile transmissions are electronic evidence and admissible as such?

Held:  Electronic Commerce Act of 2000 (R.A. No. 8792) vis-à-vis the Rules on Electronic Evidence.

Although the parties did not raise the question whether the original facsimile transmissions are "electronic data messages" or "electronic documents" within the context of the Electronic Commerce Act (the petitioner merely assails as inadmissible evidence the photocopies of the said facsimile transmissions), we deem it appropriate to determine first whether the said fax transmissions are indeed within the coverage of R.A. No. 8792 before ruling on whether the photocopies thereof are covered by the law. In any case, this Court has ample authority to go beyond the pleadings when, in the interest of justice or for the promotion of public policy, there is a need to make its own findings in order to support its conclusions.

Admissibility of Pro Forma

Invoices; Breach of Contract

by Appellants

Turning first to the appellants' argument against the admissibility of the Pro Forma Invoices with Reference Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F", pp. 215-218, Records), appellants argue that the said documents are inadmissible (sic) being violative of the best evidence rule.

The argument is untenable.

The copies of the said pro-forma invoices submitted by the appellee are admissible in evidence, although they are mere electronic facsimile printouts of appellant's orders. Such facsimile printouts are considered Electronic Documents under the New Rules on Electronic Evidence, which came into effect on August 1, 2001. (Rule 2, Section 1 [h], A.M. No. 01-7-01-SC).

"(h) 'Electronic document' refers to information or the representation of information, data, figures, symbols or other modes 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 and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term 'electronic document' may be used interchangeably with 'electronic data message'.

An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule, as long as it is a printout or output readable by sight or other means, showing to reflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC)

The ruling of the Appellate Court is incorrect. R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, 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 printout 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 the functional equivalent of an original document under the Best Evidence Rule, the writing must foremost be an "electronic data message" or an "electronic document."

The Electronic Commerce Act of 2000 defines electronic data message and electronic document as follows:

Sec. 5. Definition of Terms. For the purposes of this Act, the following terms are defined, as follows:

xxx

c. "Electronic Data Message" refers to information generated, sent, received or stored by electronic, optical or similar means.

xxx

f. "Electronic Document" refers to information or the representation of information, data, figures, symbols or other modes 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 and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

The definitions under the Electronic Commerce Act of 2000, its IRR and the Rules on Electronic Evidence, at first glance, convey the impression that facsimile transmissions are electronic data messages or electronic documents because they are sent by electronic means. The expanded definition of an "electronic data message" under the IRR, consistent with the UNCITRAL Model Law, further supports this theory considering that the enumeration "xxx [is] not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy." And to telecopy isto send a document from one place to another via a fax machine.

Indeed the court proved that it was within the intention of the framers of the law to consider that original printout or the electronic data store in computer or electronic gadget reduced in a readable form, will be considered as written instrument provided that proper authentication be made and proved, to which the respondent managed to do so.

The high court ruled in favor of the respondent.

Digest 9: NATIONAL POWER CORPORATION vs. HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY, and WALLEM SHIPPING, INCORPORATED

G.R. No. 170491 April 4, 2007

NATIONAL POWER CORPORATION, Petitioner, 

vs.

HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY, and WALLEM SHIPPING, INCORPORATED, Respondents.

Facts:  On april 20, 1996, M/V DibenaWinm being operated and owned by the herein private respondent Bangpai shipping company under its hip agent Wallen shipping Inc., accidentally bumped the power barge of the herein petitioner, NAPOCOR.  The latter filed a complaint for damages on april 26, 1996 before the sala of the herein public respondent judge.  During the presentation of evidence, the petitioner presented as pieces of evidence Xerox copies, to which such was admitted by the court.  Hoever, a motion to strike out the evidence was filed before the court to which the court ordered that such pieces of evidence be stricken out of the records but has to be attached to the documents for proper disposition by the appellate in case of appeal before the latter. The petitioner aver that such documents be admitted for the basic reason that such is within the purview of the electronic evidence.

Issue:  Whether or not thepeices of evidence submitted by the petitioner be regarded within the purview of the electronic evidence for the court be compelled to admit?

Held:  No, the Supreme Court mentioned the following?

Section 1 of Rule 2 of the Rules on Electronic Evidence as follows:

"(h) "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 and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document. For the purpose of these Rules, the term "electronic document" may be used interchangeably with "electronic data message".

On the other hand, 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 and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.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 the 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 the signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. By no stretch of the imagination can a person’s signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced through an electronic process, then these photocopies are electronic documents 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.

Section 2, Rule 130 of the Rules of Court:

"SECTION 2. Original writing must be produced; exceptions. — There can be no evidence of a writing the contents of which is the subject of inquiry, other than the original writing itself, except in the following cases:

(a) When the original has been lost, destroyed, or cannot be produced in court;

(b) When the original is in the possession of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original is a record or other document in the custody of a public officer;

(d) When the original has been recorded in an existing record a certified copy of which is made evidence by law;

(e) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole."

When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. The offeror of secondary evidence is burdened to prove the predicates thereof: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of documents; (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the document in the proper place or places. However, in the case at bar, though petitioner insisted in offering the photocopies as documentary evidence, it failed to establish that such offer was made in accordance with the exceptions as enumerated under the abovequoted rule. Accordingly, we find no error in the Order of the court a quo denying admissibility of the photocopies offered by petitioner as documentary evidence.

Indeed the documents presented by the petitioner as evidence before the court were not within the purview electronic document or electronic data message.  It will be highly unacceptable to regard an information manually written down to be regarded as electronic message.  The petitioner cannot aver now to submit the original copies of the documents since they were given enough time to submit such but they refused to do so and insist that the photocopies be admitted instead.

The high court denied such petition.

Digest 8:A.M. No. CA-05-18-P April 12, 2005 ZALDY NUEZ vs. ELVIRA CRUZ-APAO

A.M. No. CA-05-18-P April 12, 2005

ZALDY NUEZ, Complainant, 

vs.

ELVIRA CRUZ-APAO, respondent.

Facts:  Zaldy Nuez, filed a complaint for illegal dismissal against PAGCOR when the latter accused him of using illegal drugs.  The lower acceded with the prayer and contention of Zaldy but eventually the appellate court reversed the initial favorable decision of the court a quo.  In this regard, Zaldy was in desperate need of help that can spped up his case before the CA.  He contacted, Elvira Cruz-Apao, an Executive Assistant II of the acting Division Clerk of Court of CA, whom he learned from his sister-in-law.  Elvira texted Zaldy, that a favorable decision can be made provided P1Million be given to her.  Zaldy bargained for a lower amount but Elvira refused, mentioning that it is the flat rate the person who will make the favorable decision.  Elvira texted Zaldy that they have to meet at times Plaza Un Avenue.  Zaldy and Elvira met and negotiated for a lower price, but to no avail.  They arranged for a nother meeing, but now, Zaldy coordinated to matter with GMA 7 Imbestigador, where assistance from PAOCTF was sought for an entrapment operation.  During the meeting, marked money was prepared.  Agents of PAOCTF were in position to execute the entrapement.  When Elvira arrived, she was anxious that an entrapment will be made.  Eventually the PAOCTF operators executed the entrapment and investigated the respondent. 

Issue:  whether or not ephemeral communications can be used as evidence before the court?

Held:  Yes, the Supreme Court mentioned the following: 

Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) 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 on Electronic Evidence which provides:

"Ephemeral electronic communication" refers to telephone conversations, text messages . . . and other electronic forms of communication the evidence of which is not recorded or retained."

Under Section 2, Rule 11 of 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 who 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. It is also well to remember that 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 of respondent in this case.

Indeed the text messages of Elvira can be used as an evidence before court proceeding and even in administrative proceedings as in the case at hand.  Zaldy is one of the recipient of th txt messages, to which he has personal knowledge of the communication. 

Moreover, the person to whom the respondent confessed made a written report before Justice Villarama as to the actuations made by Elvira.

The high court reiterated that being an employee, she has a burden of presenting before the public, honesty and probity as en employee of the department that confer judgment and justice.

The high court dismissed the employee for grave abuse of discretion.

Digest 7:DIAMOND v. DIEHR, 450 U.S. 175 (1981) 450 U.S. 175 DIAMOND, COMMISSIONER OF PATENTS AND TRADEMARKS v. DIEHR ET AL. CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS

U.S. Supreme Court

DIAMOND v. DIEHR, 450 U.S. 175 (1981)

450 U.S. 175

DIAMOND, COMMISSIONER OF PATENTS AND TRADEMARKS v. DIEHR ET AL.
CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS.

No. 79-1112. 

Facts: The herein private respondent Diehr, applied before the US patent office for the registration of his new processor of molding raw synthetic rubber to cured precision products. But such application was not acceded by the office on the ground that such has failed to observe the qualifications as provided by the patents office such as it is not a new invention making such a patentable product.

Issue: whether or not Diehr managed to comply with the requirements for the proper registration of his process?

Held: Yes, the Supreme Court mentioned the following:

A "process" is "an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery. . . . The machinery pointed out as suitable to perform the process may or may not be new or patentable.

Indeed the high court was persuaded that the process being asked by the private respondent to be patented complies with the requirement of the US law such as the one being applied for was not the law of nature, but the new process of treating the mold into cured precision products.

The high court ruled in favour of the respondent.

Digest 6:VIRGILIO O. GARCILLANO vs. THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL REFORMS

G.R. No. 170338 December 23, 2008
VIRGILIO O. GARCILLANO, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL REFORMS, respondents.
x - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 179275 December 23, 2008
SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,
vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.
x - - - - - - - - - - - - - - - - - - - - - - x
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention
x - - - - - - - - - - - - - - - - - - - - - - x
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON, PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F. TRILLANES, respondents-intervenors

Facts:  During the hype of Arroyo administration, a new controversy arises.  During the 2007 election the conversation of President Arroyo and the herein petitioner Virgilio Garciliano, COMELEC regional director, regarding the desire of the president to have a favourable outcome in terms of his senatoriables.  Such conversation was recorded and was played during the house of representative investigation.  Because of such turn of events, a petition was filed before the court praying that such playing of the illegally seized communication was in violation of RA 4200 or the anti-wire tapping law.  Also such petition for injunction prays that the Senate committee be prevented from further conducting such investigation for the basic reason that there was no proper publication of the senate rules, empowering them to make such investigation of the unlawfully seized documents.

Issue:  Whether or not there was proper publication of the rules as to empower the senate to further proceed with their investigation?

Held:  No, the Supreme Court mentioned the following:

The Senate cannot be allowed to continue with the conduct of the questioned legislative inquiry without duly published rules of procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that "the Senate or the House of Representatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure." The requisite of publication of the rules is intended to satisfy the basic requirements of due process.Publication is indeed imperative, for it will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or rule of which he had no notice whatsoever, not even a constructive one.What constitutes publication is set forth in Article 2 of the Civil Code, which provides that "laws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines."

Respondents justify their non-observance of the constitutionally mandated publication 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.

The Court does not agree. The 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 its 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 revision. 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 R.A. No. 8792,otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes.In other words, the law merely recognizes the admissibility in evidence (for their being the 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."

Indeed the inquiry to be conducted by the senate in aid of legislation cannot proceed for the reason that the rules that they will observe was not properly published as provided by the Fundamental Law of the land.  Such inquiry if allowed without observance of the required publication will put a person’s life, liberty and property at stake without due process of law.  Also, the further assertion of the senate that they already published such rules through their web page, in observance of the RA 8792 or the Electronic Commerce Act was only viewed by the court as matter of evidence and still does not conforme with what the constitution propounded.
In this regard the high court granted the petition for injunction preventing the senate to conduct such inquiry in aid of legislation.

Digest 5:EMMANUEL B. AZNAR vs. CITIBANK, N.A., (Philippines)

G.R. No. 164273 March 28, 2007
EMMANUEL B. AZNAR, Petitioner,
vs.
CITIBANK, N.A., (Philippines), Respondent.

Facts:  The herein petitioner, Emmanuel B. Aznar, is a prominent businessman and entrepreneur in Cebu.  He decided to treat his wife together with their grandchildren for an Asian Tour using his Citibank credit card.  He deposited P485,000 to his account to increase his ordinary credit limit from P150,000 to P635,000.  He bought tickets to Kuala Lumpur amounting to P235,000.  When they were in Kuala Lumpur, they decided to purchases things to which the credit card was dishonoured for over the limit.  Eventually the agency further dishonoured the card and even mentioned that the petitioner be a swindler.  In that note, they decided to go back Philippines and instantly filed a complaint for damages.  The lower court initially dismissed the complaint on the ground that their was no proper authentication as to the print out of the computer generated document presented as evidence before the court.  The petitioner filed a motion for the re-raffle of the case, raising the contention that the judge was also a holder of Citibank credit card.  The judge later acceded with the contention of petitioner and ordered for the company to pay enormous amount of damages to the plaintiff.  When the case was elevated before the CA the latter denied such.

Issue:  Whether or not the print out of the computer generated document was properly authenticated to be admissible before the court?

Held:  No, the Supreme Court mentioned the following:
Section 5, Rule 10 of the Rules of Civil Procedure cannot be excluded as it qualifies as electronic evidence following the Rules on Electronic Evidence which provides that print-outs are also originals for purposes of the Best Evidence Rule;

Section 20 of Rule 132 of the Rules of Court. It provides that whenever any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either by (a) anyone who saw the document executed or written; or (b) by evidence of the genuineness of the signature or handwriting of the maker.

Pertinent sections of Rule 5 read:
Section 1. Burden of proving authenticity. – The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule.
Section 2. Manner of authentication. – Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means:
(a) By evidence that it had been digitally signed by the person purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or
(c) By other evidence showing its integrity and reliability to the satisfaction of the judge.

Indeed there was no proper authentication of the electronic evidence presented by the petitioner before the court which is the print out of the computer generated document where on it printed that the card was over the limit.  During the trial the petitioner mentioned that desk officer phoned someone and eventually the hard copy was given to him signed by one named Nubi, however such was not witnessed by the petitioner or he does not have personal knowledge of such authentication.
The high court denied the petition.

Digest 4: RUSTAN ANG y PASCUA vs. THE HONORABLE COURT OF APPEALS and IRISH SAGUD

G.R. No. 182835 April 20, 2010
RUSTAN ANG y PASCUA, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents.

Facts:  The herein petitioner, Rustan Ang and the private respondent, Irish Sagud were lovers during their college days in Wesleyan University in Maria Aurora Province of Aurora.  Eventually, Irish heard that Rustan has a live-in-partner whom Rustan got pregnant.  Because of this, Irish decided to broke up with Rustan.  The latter asked Irish to elope with him, since he does not love the other girl, to which Irish refused.  To pressure Irish to get back with him he send multimedia messages to Irish, bearing a picture of a naked woman, who spread her legs with a face of Irish superimposed on it.  Rustan even added in the text message that it is easy for him to spread those pictures in the internet.  Because of this scenario, Irish, asked help from the Vic-Mayor of the municipality, to which coordination with the local police was made.  Entrapment operation was conducted and arrested Rustan.

Issue:  Whether or not Rustan’s contention that the multimedia messages should not be made admissible for the basic reason that such was not properly authenticated as provided by the Rules on Electronic Documents?

Held:  No, the Supreme Court mentioned the following:
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 on Electronic Evidence (A.M. 01-7-01-SC).
But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the first time before this Court. The objection is too late since he should have objected to the admission of the picture on such ground at the time it was offered in evidence. He should be deemed to have already 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.
Indeed the assertion of Rustan will not be given merit for the basic reason that such contention was only raised before this court to which the latter had a presumption that Rustan has waived his right to question the authenticity of the pictures.  Moreover, the court avers that such assertion of Rustan cannot be made possible in criminal case; such can only be made before, civil and administrative actions.
The high court denied the petition.

Digest 3: UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS STATE STREET BANK AND TRUST COMPANY v. SIGNATURE FINANCIAL GROUP, INC., CIVIL ACTION NO. 94-11344-PBS

• UNITED STATES DISTRICT COURT
  DISTRICT OF MASSACHUSETTS

• STATE STREET BANK AND TRUST COMPANY, Plaintiff

v.

SIGNATURE FINANCIAL GROUP, INC., Defendant

CIVIL ACTION NO. 94-11344-PBS

Facts: The herein private respondent, Signature Financial Group and state Street Bank & Trust Company were engaged in the creation and promotion of accounting software especially that will deal with the proper handling of mutual fund. The herein private respondent, managed to creat a new system which is "Data Processing System for Hub and Spoke Financial Services Configuration," which provides a data processing system and method for monitoring and recording the information flow and data, and making all calculations, necessary for maintaining a partnership portfolio and partner fund (Hub and Spoke) financial services configuration." In order to assess the scope and nature of the claimed invention, it is first necessary to discuss briefly the financial configuration which the data processing system is designed to service.

Such patent was questioned by the herein petitioner on the ground that such patent was within the prohibition as to non-patentability of computer software and mathematical equation.

Issue: whether or not the accounting software created by Signature is patentable within the provision of U.S. Patent law?

Held: No, the U.S. Supreme Court mentioned the following:

Section 101 of Title 35 of the U.S. Code provides:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Thus, the statute sets out four categories of subject matter -- process, machine, manufacture, and composition of matter -- that are entitled to patent protection provided that the other requirements of patentability (i.e., novelty and non-obviousness under 35 U.S.C. §§ 102-103) are satisfied. Although § 101 has been broadly construed to "include anything under the sun that is made by man," Diamond v. Chakrabarty, 447 U.S. 303, 309-10 (1980) (quoting legislative history of 1952 recodification), "[t]his is not to suggest that § 101 has no limits or that it embraces every discovery." Id. "To include some things [in § 101] is to exclude others." In re Warmerdam, 33 F.3d 1354, 1358 (Fed. Cir. 1994).

"An idea is itself not patentable, but a new device by which it may be made practically useful is." Rubber-Tip Pencil Co. v. Howard, 87 U.S. (20 Wall.) 498, 507 (1874). Over time, the Supreme Court further explained this limit to subject matter patentability:

The laws of nature, physical phenomena, and abstract ideas have been held not patentable. Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are "manifestations of . . . nature, free to all men and reserved exclusively to none."

Chakrabarty, 447 U.S. at 309 (quoting Funk Bros. Seed Co. v. Kalo Innoculant Co., 333 U.S. 127, 130 (1948)) (citations omitted). Therefore, "[w1hile a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of scientific truth may be." Mackay Radio & Telegraph Co., Inc. v. Radio Corp. of America, 306 U.S. 86, 92-94 (1939).

The reason for this rule is simple, "[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work."Gottschalk v. Benson, 409 U.S. 63, 67 (1972). Granting a patent monopoly on the use of a scientific principle, rather than on its particular practical application, would impede rather than "promote the Progress of Science and useful Arts." U.S. Const. Art. I, cl. 8 (patent and copyright clause).

The creation of signature is within the prohibition as propounded by the U.S. Law on patent. Such software or mathematical formula limits people from using such to invent industrially applicable outputs.

The high court ruled that such software was non-patentable.

Digest 2: ELLERY MARCH G. TORRES vs. PHILIPPINE AMUSEMENT and GAMING CORPORATION, represented by ATTY. CARLOS R. BAUTISTA, JR.

G.R. No. 193531 December 14, 2011

ELLERY MARCH G. TORRES,Petitioner,

vs.

PHILIPPINE AMUSEMENT and GAMING CORPORATION, represented by ATTY. CARLOS R. BAUTISTA, JR.,Respondent.

Facts:  the herein petitioner, Ellery March G.Torres, was a slot machine machine operator supervisor before the herein public respondent company, PAGCOR.  Within the period November 2066 to March 2007, there was a complaint filed before the office of the HR department of the respondent for the involvement of Torres in the allege padding of the credit meter reading of the slot machines.  The investigation conducted affirmatively proved that Torres was involved with the said crime.  The administrative tribunal adjudge for the dismissal of Torres.  Torres filed a motion for reconsideration for the said judgment through facsimile transmission.  The Administrative tribunal denied such motion, affirmed by the CSC and further affirmed by the appellate court.

Issue:  whether or not the transmission of the motion for reconsideration through facsimile should be regarded as equivalent of filing as envision of the framers of the law taking into consideration the advancement of technology?

Held:  No, the Supreme Court mentioned the following:

Sections 37, 38, 39, and 43 of the Revised Uniform Rules on Administrative Cases in the Civil Service, which are applicable to this case, respectively provide, to wit:

Section 37. Finality of Decisions - A decision rendered by heads of agencies whereby a penalty of suspension for not more than thirty days or a fine in an amount not exceeding thirty (30) days' salary is imposed, shall be final and executory. However, if the penalty imposed is suspension exceeding thirty days or fine in an amount exceeding thirty days’ salary, the same shall be final and executory after the lapse of the reglementary period for filing a motion for reconsideration or an appeal and no such pleading has been filed.

Section 38. Filing of motion for reconsideration. - The party adversely affected by the decision may file a motion for reconsideration with the disciplining authority who rendered the same within fifteen days from receipt thereof.

Section 39. When deemed filed. - A motion for reconsideration sent by mail shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case and in case of personal delivery, the date stamped thereon by the proper office.

Section 43. Filing of Appeals. - Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities imposing a penalty exceeding thirty (30) days suspension or fine in an amount exceeding thirty (30) days’ salary, maybe appealed to the Commission Proper within a period of fifteen (15) days from receipt thereof.

Clearly, a motion for reconsideration may either be filed by mail or personal delivery. When a motion for reconsideration was sent by mail, the same shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case. On the other hand, in case of personal delivery, the motion is deemed filed on the date stamped thereon by the proper office. And the movant has 15 days from receipt of the decision within which to file a motion for reconsideration or an appeal there from.

In Garvida v. Sales, Jr., we found inadmissible in evidence the filing of pleadings through fax machines and ruled that:

A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade. The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile.

x x x 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 the party and his counsel. It may, in fact, be a sham pleading. x x x

Moreover, a facsimile transmission is not considered as electronic evidence under the Electronic Commerce Act. In MCC Industrial Sales Corporation v. Ssangyong Corporation, We determined the question of whether the original facsimile transmissions are "electronic data messages" or "electronic documents" within the context of the Electronic Commerce Act, and we said:

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.

Indeed the transmission made by the petitioner through facsimile was not within the intention of the framers of the law.  The law expressly provide that submission of motion be made through mail personally or through post office and not through fax.  We have to be mindful that appeal is not a constitutional right, but rather it is a statutory right, unless the law provides it is within the discretion f the court to allow.

The high court denied the petition.

reaction paper on the legality of fan art in the philippines

Reaction paper on the

“The Legality of Fan Art in the Philippines”

Intellectual Property Law was enacted with the sole intention of protecting the intellectual talents of Filipinos such as inventions, innovations, development in a product, process or any enhancement on a product of process.

Intellectual Property Law expressly provided to the creator or author of a product or process or enhancement of a product or process sole use or exploitation and exclusive distribution of such, subject to certain limitations as the law provides such as fair use, unless the creator or author assign his right to somebody else for profit or not.

Literary and artistic creations of authors of books, artworks and the like were also within the sphere of protection of the Intellectual Property Law as to encourage artists and those interested and with inclination to art to express themselves in this forum and improve their God given talents.

Such protection of the law allow the creator or author to have exclusive use of their artwork. The emergence of fan art in the Philippines which is based on the premise that amateur artists, who are not earning profits from their fan creations, create fan labor artworks without intention of committing copyright infringement, such as character, costume, collage, item or story.

These fan art indeed is an infringement of the intellectual right of the creator or author, an express defiance of what the law has provided.

We have to ask, why are we promoting this medium of art development in our country?

The simple answer is to have a harmonious relationship for the fan and the creator in terms of art. Such fan arts, is a medium how a fan express his patronage to the creator's original work. This should not be seen or viewed as a threat to possible profit but should be regarded as avenue for the promotion of his artwork.

A fan who made an art of the original artwork not for profit simply mean the original work, works with him. He was moved by the work for him to express in his own way his awesome likeness to the original work. Of course, such act of a fan has to be controlled by certain limitations as the provide such as not to compete or diminish the possible profit of the creator, author or his assignees. Instead of limiting this fan art in our country why don’t we support these individuals provided certain guidelines has to be imposed.

Prepared by:

Jayson A. Ramos, CPA

Submitted to:

Atty: Berne Guerrero

reaction paper on the legality of fan art in the philippines

Reaction paper on the

“The Legality of Fan Art in the Philippines”

Intellectual Property Law was enacted with the sole intention of protecting the intellectual talents of Filipinos such as inventions, innovations, development in a product, process or any enhancement on a product of process.

Intellectual Property Law expressly provided to the creator or author of a product or process or enhancement of a product or process sole use or exploitation and exclusive distribution of such, subject to certain limitations as the law provides such as fair use, unless the creator or author assign his right to somebody else for profit or not.

Literary and artistic creations of authors of books, artworks and the like were also within the sphere of protection of the Intellectual Property Law as to encourage artists and those interested and with inclination to art to express themselves in this forum and improve their God given talents.

Such protection of the law allow the creator or author to have exclusive use of their artwork. The emergence of fan art in the Philippines which is based on the premise that amateur artists, who are not earning profits from their fan creations, create fan labor artworks without intention of committing copyright infringement, such as character, costume, collage, item or story.

These fan art indeed is an infringement of the intellectual right of the creator or author, an express defiance of what the law has provided.

We have to ask, why are we promoting this medium of art development in our country?

The simple answer is to have a harmonious relationship for the fan and the creator in terms of art. Such fan arts, is a medium how a fan express his patronage to the creator's original work. This should not be seen or viewed as a threat to possible profit but should be regarded as avenue for the promotion of his artwork.

A fan who made an art of the original artwork not for profit simply mean the original work, works with him. He was moved by the work for him to express in his own way his awesome likeness to the original work. Of course, such act of a fan has to be controlled by certain limitations as the provide such as not to compete or diminish the possible profit of the creator, author or his assignees. Instead of limiting this fan art in our country why don’t we support these individuals provided certain guidelines has to be imposed.

Prepared by:

Jayson A. Ramos, CPA

Submitted to:

Atty: Berne Guerrero