Optical Media Act of 2003

Introduction

What is optical media?

Media, in the computer world, refers to various types of data storage. For example, hard drives, CDs, DVDs, and USB drives are all different types of media. Optical media refers to discs that are read by a laser. This includes CD-ROMs, DVD-ROMs, and all the variations of the two formats -- CD-R, CD-RW, DVD-R, Blu-ray, and many others.

Section 3. Definition of Terms

— For the purpose of this Act, the following terms shall mean:

R.A. No. 9239. Optical Media

Act of 2003

(a) Economic Zone — the Special Economic Zones, Industrial Estates, Export Processing Zones and Free Trade Zones as defined in Republic Act No. 7916 or the PEZA Law including the Clark Special Economic Zone, the Cagayan Special Economic Zone, the Zamboanga City Special Economic Zone, the Subic Bay Freeport and other economic zones now in existence in the Philippines or as may be established in the future;

AN ACT REGULATING OPTICAL MEDIA, REORGANIZING FOR THIS PURPOSE THE VIDEOGRAM REGULATORY BOARD, PROVIDING PENALTIES THEREFOR, AND FOR OTHER PURPOSES

(d) Magnetic Media — a storage medium or device characterized by a base, usually plastic, coated with ferric oxide powder, in which visual and/or aural information, or software code, may be recorded or stored, including, but not limited to, magnetic tape, cassettes, video tape, diskettes, and floppy discs;

(b) IP Code — Republic Act No. 8293 also known as the Intellectual

Property Code of the Philippines;

(e) Manufacture — the actor business of producing optical media or devices containing sounds and/or images, or software code, including any work protected in Part IV of the IP Code, by mastering and/or replication. In relation to equipment, "manufacture" shall refer to the assembly or integration of various

components into any equipment useful for the mastering, manufacture and/or replication of optical media; benchCDTA

(c) License — the authority granted by the Optical Media Board (OMB) to establishments or entities registered with the OMB to engage in the business of mastering, manufacture, replication, importation or exportation of optical media;

(k) Replication — the process of manufacturing optical media by reproducing or generating copies of the stamper in an injection molding machine or other forms of replicating equipment; and

(l) Source Identification Code or SID Code — a system of codes to identify the source of all optical media mastered, manufactured or replicated by any establishment or entity.

(h) Mastering — the act or business of producing a stamper made of glass, metal or other material, intended for the manufacture of optical media;

(i) Optical Media — a storage medium or device in which information, including sounds and/or images, or software code, has been stored, either by mastering and/or replication, which may be accessed and read using a lens scanning mechanism employing a high intensity light source such as a laser or any such other means as may be developed in the future. The term shall include, but not be limited to, devices which shall be listed in the IRR of this Act, or as prescribed by the OMB;

(j) OMB — the Optical Media Board;

(f) Manufacturing Equipment — any and all equipment, machine or device, now known or to be known in the future, intended or designed for the production or manufacture, by mastering and/or replication of optical media, optical media masters, or production parts thereof, including but not limited to, those which shall be listed in the Implementing Rules and Regulations (IRR) of this Act or as prescribed by the OMB. For the purpose of this Act, optical disc writers and such other devices used in personal computers not for commercial purposes shall not be considered as manufacturing equipment;

(g) Manufacturing Material — any material such as, but not limited to, optical grade polycarbonate or polycarbonate substitutes with physical properties suitable for the manufacture of optical media;

CONSTRUCTION

Article XIV. Section 12 of Philippine Constitution

Summary/Conclusion/Recommendation

Section 6. The Board

states that...

— The OMB shall be composed of four (4) ex officio members and five (5) regular members to be appointed by the President. The Chairperson shall be appointed by the President from among the five (5) regular members.

The State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.

The ex officio members of the Board shall be composed of the Secretary of the Department of Trade and Industry (DTI) or his duly authorized representative; the Secretary of the Department of the Interior and Local Government (DILG) or his duly authorized representative; the Secretary of the Department of Finance (DOF) or his duly authorized representative; and the Director-General of the Intellectual Property Office (IPO) or his duly authorized representative: Provided, That the authorized representatives shall have a rank not lower than Assistant Secretary.

The five (5) regular members shall be composed of three (3) representatives from the private sector, each of whom shall be appointed from an identified industry relying on intellectual property protection, one (1) representative from the consumer organizations and one (1) representative from the academe. The regular members shall be nominated by their nationally recognized associations or organizations.

The members of the Board shall elect from among themselves the Vice Chairperson.

The Chairperson and the regular members of the Board shall hold office for a term of three (3) years, unless sooner removed by the President for cause: Provided, That the Chairperson and the regular members may not serve for more than two (2) consecutive terms: Provided, further, That if any member fails to complete his or her term, the person appointed to fill the vacancy shall serve only for the unexpired portion of the term.

REQUIREMENTS

a) The Optical Media Board shall be composed of four (4) ex officio members and five (5) regular members and a Chairperson from among the 5 members to be appointed by the President.

b) The ex officio members shall be composed of the Secretary of DTI, DILG, DOF, and the Director-General of IPO, and their duly authorized representative provided that authorized representatives shall have a rank not lower than Assistant Secretary.

c) The five members shall be composed of three (3) representatives from private sector, each appointed from an identified industry depending on intellectual property protection, one (1) representative from consumer organizations, and one (1) representative from the academe.

d) The Vice Chairperson shall be elected from among the members of the Board.

e) The Chairperson and the regular members of the Board shall hold office for a term of three (3) years, unless sooner removed by the President for cause.

Modernizing the operations of businesses were made possible because of electronic commerce for it essentially consists of electronic systems such as the internet, computer networks, mobile phones, and many others for the provision of products and services.

The construction of Laws, Rules and Regulations governing the Electronic Commerce entails the complex contract and tax issues, security, and privacy issues. For the reason that technology changes quickly and the laws regulating it shall also be developing as time passes by.

Optical media provides an economical and forward-compatible way to transfer our files which is a very helpful way for us to be able to have backups for our important archives.

The Laws, Rules and Regulations governing the Optical Media is aimed to promote and protect intellectual property rights. Also, it imposes an undue burden on optical media in its bid to give more protection to the content owners.

The Electronic Commerce Act of 2000 and the Optical Media Act of 2003 are both directed to building connections between different entities through technology, upholding them to have an orderly transactions and dodging them to make any criminal movements.

SECTION 7. Qualifications

REQUIREMENTS

— The regular members of the Board shall be Filipino citizens, at least twenty-one (21) years old, of good moral character and standing in the community, and with proven competence in the industry they represent: Provided, That the Chairperson shall be at least thirty-five (35) years old, of known probity and managerial and administrative competence: Provided, finally, That at least two (2) members of the Board must be members of the Philippine Bar.

a) The regular members of the board shall be Filipino citizens, at least twenty-one (21) years of age, of good moral character, and with proven competence in the industry they represent.

b) The Chairperson shall be at least thirty-five (35) years old, of known probity and managerial and administrative competence.

c) At least two (2) members of the Board must be members of the Philippine Bar.

SECTION 13. Licensing and Registration

.— Any person, establishment or entity shall, prior to engaging in one or more of the businesses or activities enumerated hereunder, register with, and secure the appropriate licenses from the OMB:

REQUIREMENTS

(a) Importation, exportation, acquisition, sale or distribution of optical media, manufacturing equipment, parts and accessories and manufacturing materials used or intended for use in the mastering, manufacture or replication of optical media;

(b) Possession or operation of manufacturing equipment, parts and accessories, or the possession, acquisition, sale or use of manufacturing materials for the mastering, manufacture or replication of optical media; and

(c) The mastering, manufacture, replication, importation or exportation of optical media.

a) The license shall be cancel or suspend by the OMB if it is requested by the license holder.

b) The license shall be cancel or suspend by the OMB if the license holder has ceased to engage in the activities authorized under the license or in the place, location or premises indicated in the license.

c) The license shall be cancel or suspend by the OMB if the license holder has been convicted of an offense under this Act or under any other law relating to the protection of intellectual property rights.

d) The license shall be cancel or suspend by the OMB if the license bolder is in breach of, or is unable to comply with any of the conditions prescribed in the license.

SECTION 16. Grounds for Suspension or Cancellation of License

— The OMB may, motu proprio or upon motion of any interested party, after notice and bearing, suspend or cancel a license on any of the grounds provided in the preceding section, and on any of the following grounds:

(d) With respect to the preceding paragraph (c), the licenses issued by the OMB are conditions precedent for securing the necessary business permits, licenses or registration from the appropriate authorities, and shall also be a necessary requirement to the release of manufacturing equipment, parts and accessories, and materials intended for use in mastering and/or manufacturing optical media, from customs or economic zones exercising independent customs laws.

(e) Those engaged or intending to engage in more than one of the above mentioned activities and/or conduct or intend to conduct business in more than one location shall separately register with and secure the license from the OMB for every business activity at each place of business.

(f) No business activity registered and licensed by the OMB for a specific place of business shall be conducted in a place and/or location other than that indicated in the license, without the prior written approval of the OMB. The registration and license issued by the OMB shall be prominently displayed at the designated place of business.

REQUIREMENTS

(a) when requested by the license holder;

(b) when the license holder has ceased to engage in the activities authorized under the license or in the place, location or premises indicated in the license;

(c) when the license holder has been convicted of an offense under this Act or under any other law relating to the protection of intellectual property rights; or

(d) when the license bolder is in breach of, or is unable to comply with any of the conditions prescribed in the license.

d) Securing the necessary business permits, licenses or registration from the appropriate authorities, and shall also be a necessary requirement to the release of manufacturing equipment, parts and accessories, and materials intended for use in mastering and/or manufacturing optical media, from customs or economic zones exercising independent customs laws.

e) Those engaged or intending to engage in more than one activity and/or conduct or intend to conduct business in more than one location shall separately register with and secure the license from the OMB for every business activity at each place of business.

f) No business activity registered and licensed by the OMB for a specific place of business shall be conducted in a place and/or location other than that indicated in the license w/o the approval of OMB.

g) The registration and license issued by the OMB shall be prominently displayed at the designated place of business.

a) Any person, establishment or entity shall register with, and secure the appropriate licenses for Importation, exportation, acquisition, sale or distribution of optical media, manufacturing equipment, parts and accessories and manufacturing materials used or intended for use in the mastering, manufacture or replication of optical media from OMB.

b) Any person, establishment or entity shall register with, and secure the appropriate licenses for Possession or operation of manufacturing equipment, parts and accessories, or the possession, acquisition, sale or use of manufacturing materials for the mastering, manufacture or replication of optical media from OMB.

c) Any person, establishment or entity shall register with, and secure the appropriate licenses for the mastering, manufacture, replication, importation or exportation of optical media from OMB.

Section 19. Offenses and Penalties

(a) Imprisonment of at least three (3) years but not more than six (6) years, and a fine of not less than Five Hundred thousand pesos (Php 500,000.00) but not exceeding One Million five hundred thousand pesos (Php 1,500,000.00), at the discretion of the Court, shall be imposed on any person, natural or juridical, who shall:

(1) Engage in the importation, exportation, acquisition, sale or distribution of, or possess or operate manufacturing equipment, parts and accessories without the necessary licenses from the OMB;

(2) Engage in the mastering, manufacture, replication, importation or exportation of optical media without the necessary license from the OMB;

(3) By himself, or through another, cause the mastering, manufacture or replication of any intellectual property in optical media intended for commercial profit or pecuniary gain without authority or consent of the owner thereof;

(4) Engage in the Mastering, manufacture, or replication of optical media without affixing or installing in the resulting products the SID Code, and/or such other codes prescribed, assigned and authorized by the OMB. The absence of the codes prescribed, assigned and authorized by the OMB in any optical media shall be prima facie evidence that said optical media are in violation of this Act;

(5) Engage in the mastering, manufacture, or replication of optical media using, affixing or installing in the resulting products false SID or other codes. The presence of false or unauthorized codes shall be prima facie evidence that said optical media are in violation of this act;

(6) Engage in the mastering, manufacture, or replication of optical media using, affixing or installing in the resulting products false SID or other codes that have been assigned by the OMB to another person, or, having been assigned and authorized said codes by the OMB, allow or authorize another person, establishment or entity to use, affix or install such codes in the latter's products;

For purposes of this subsection, violators who will employ armed resistance against agents of the OMB shall be penalized under other applicable laws in addition to those provide in this Act; and

(a) Imprisonment of at least 30 days but not more than 90 days or a fine of not less than 25,000.00 pesos but not exceeding fifty thousand pesos at the discretion of the court:

(1) Knowingly possess items of the same content or title, produced in violation of this Act, and used for the purpose with the intent to profit;

(2) Engaging in the sale, rental, distribution, importation, exportation of, or any other commercial activity involving optical media that are in violation of this Act.

(b) Imprisonment of at least one year but not more than three years and a fine not less than one hundred thousand pesos, but not exceeding five hundred thousand pesos, at the discretion of the court, for the following offenses:

For this purpose, any person, establishment or entity that is licensed by the OMB to engage in the above mentioned activities shall be considered to have acted in good faith in respect of any transaction entered into by him in respect to the preceding paragraph, if he notifies the OMB of such transaction within five working days from receipt of the order, furnishing to the OMB all material information thereof;

(3) Refusing to submit to inspection by the OMB, or surrender for preventive custody any optical media, equipment, manufacturing materials, including parts, accessories and paraphernalia found during inspection operations to be in violation of the provisions of this Act;

The offenses listed under this section shall be punished without prejudice to the application of appropriate penalties or sanctions provided under Section 216 and such other appropriate sections of the IP Code or Republic Act No. 8792 also known as the Electronic Commerce Act, the Revised Penal Code or other applicable laws.

Optical Media Act of 2003

(1) Engaging in the importation, exportation, sale or distribution of, or possess or acquire in commercial quantities manufacturing materials used or intended for use in the mastering, manufacture or replication of optical media without the necessary licenses from the OMB;

(2) Knowingly performing or rendering the service of mastering, manufacture or replication of optical media, after having been licensed by the OMB, to any person, in respect of any intellectual property, who does not have the consent by the owner of the intellectual property or his representatives or assigns;

(b) For subsequent offenses in Section 19(a), uniform imprisonment of six (6) years but not more than nine (9) years and a fine of not less than One Million five hundred thousand pesos (Php 1,500,000.00) but not exceeding Three million pesos (Php 3,000,000.00) at the discretion of the Court, shall be imposed.

(c) For subsequent offenses in Section 19(b), uniform imprisonment of three (3) years but not more than six (6) years and a fine of not less than Five hundred thousand pesos (Php 500,000.00) but not exceeding One million five hundred pesos (PHp 1,500,000.00) at the discretion of the Court, shall be imposed.