Wednesday, November 4, 2015
Philippines criminal copyright case finally decided - and the case is thrown out!
A Supreme Court (SC) decision has issued concerning ABS-CBN news footage covering the homecoming on 22 July 2004 of Angelo delay Cruz, an expatriate worker kidnapped by Iraqi militants. ABS-CBN allowed Reuters to air the news footage for international subscribers only. GMA, a Reuters subscriber, received the live video feed from Reuters and broadcasted the footage for about 5 seconds. ABS-CBN took action GMA for criminal copyright infringement.
The public prosecutor found probable cause to indict GMA’s Program Manager and Head of News Operations. GMA appealed to the DOJ which ruled in its favor of GMA holding that good faith may be raised as a defense. The Prosecutor and ABS/CBN sought reconsideration of the ruling (anyone can seek reconsideration of most Philippines decisions without any penalty - a longstanding problem with the legal system). Subsequently the DOJ reversed its earlier ruling, found probable cause to charge the two people and indicted them. GMA appealed that ruling to the CA, which ruled in favor of GMA and declared that since GMA only aired 5 seconds of the footage and had no notice of the “No Access Philippines” restriction, there could be no criminal liability as it wasn’t intentionally committed. So ABS-CBN filed the appeal before SC.
The SC ruled news footage is copyrightable. GMA argued 5-seconds may be considered fair use. This is a matter of a defense which should be evaluated at the trial but the SC took note of the high value of broadcasts and the limited time periods seen in other media such as Instagram, Vine and 1 Second Everyday. But the SC ruled that although “any person” may be guilty of infringement criminal liability of a corporation’s officers or employee’s stems from their active participation in infringement. GMA’s officers were thus not liable for infringement as they had no knowledge so could not be personally liable.
The case illustrates 2 problems. One is the length of time the Philippines criminal system takes - 10 years here to throw the case out. The primary reason is the huge number of appeal levels and lack of penalty for getting it wrong (i.e. costs, bad reputation for prosecutors who make mistakes). Secondly this was really a civil case over a royalty fee for use of footage. It was waste of time and public money. The damage to society was so limited that the prosecutors and DoJ should have refused the cases as having no wide effect on society, so referred them to civil action. Then they could focus on 'real' criminal IP cases.