ACTS OF VIOLENCE AGAINST WOMEN
25 May
Family

The Acts of Violence against Women and Children

VAWC is a prevalent issue worldwide. It takes many forms, including physical, sexual, psychological, and economic abuse. In the Philippines, the government enacted the “Anti-Violence Against Women and Their Children Act of 2004” (RA 9262) to protect women and children from all forms of violence and hold perpetrators accountable for their actions. In this blog post, we will discuss the acts of violence against women and children that are punishable under the law under the provisions of RA 9262 and its Implementing Rules and Regulations (IRR) in order to raise awareness and assist women and children who may be experiencing VAWC.

VAWC IS A PUBLIC CRIME

Under Rule III of the IRR, VAWC is considered a public offense. Anyone with personal knowledge of the circumstances involving the commission of the crime can report it to authorities and file a complaint. The government is then obligated to investigate and prosecute the perpetrator.

ACTS CONSIDERED AS VAWC

The IRR of RA 9262 provides a comprehensive list of acts considered as VAWC. These acts include:

  1. Causing physical harm to the woman or her child; 
  2. Threatening to cause the woman or her child physical harm; 
  3. Attempting to cause the woman or her child physical harm; 
  4. Placing the woman or her child in fear of imminent physical harm; 
  5. Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or to desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman’s or her child’s freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or her child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman’s or her child’s movement or conduct:
    • a. Threatening to deprive or actually depriving the woman or her child of custody or access to her/his family; 
    • b. Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman’s children insufficient financial support; 
    • c. Depriving or threatening to deprive the woman or her child of a legal right; 
    • d. Preventing the woman in engaging in any legitimate profession, occupation, business or activity, or controlling the victim’s own money or properties, or solely controlling the conjugal or common money, or properties; 
  6. Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; 
  7. Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; 
  8. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to the following acts: 
    • a. Stalking or following the woman or her child in public or private places; 
    • b. Peering in the window or lingering outside the residence of the woman or her child; 
    • c. Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; 
    • d. Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; 
    • e. Engaging in any form of harassment or violence; and
  9. Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children or denial of access to the woman’s child/children.

PENALTIES

If found guilty of the acts mentioned above, the offender may face imprisonment ranging from one month and one day up to twenty years. Apart from imprisonment, they will also be required to pay a fine ranging from One hundred thousand pesos (P100,000.00) to Three hundred thousand pesos (P300, 000.00). Additionally, they will have to undergo mandatory psychological counseling or psychiatric treatment and provide proof of compliance to the court.

PRESCRIPTION PERIOD

Criminal complaints for acts falling under Sections 7(a) to 7(f) may be filed within twenty (20) years from the occurrence or commission. While, punishable acts falling under Sections 7(g) to 7(i) shall prescribe within ten (10) years. However, it is important to note that timing can be a crucial factor in these cases, and taking prompt legal action may help ensure a stronger case.

As a law firm dedicated to protecting the rights of victims, we know how difficult it can be to come forward and seek justice after suffering from a traumatic event. However, it is important to remember that you are not alone and that help is available.

If you have been a victim of any type of VAWC as described above, it’s important to speak up and take action. Our firm is here to help anyone undergoing VAWC to navigate this difficult situation and assist in seeking justice and holding the responsible parties accountable for their actions. Don’t hesitate to reach out to us for assistance. Together, we can create a safer space for everyone.

Prepared by Aira Nikka Montemayor.

03 Apr
Family

Violence Against Women and their Children: The After Story

The passing of R.A. 9262 or what is commonly known as the “Anti-Violence Against Women and their Children Act of 2004” shows that there has been some development to prevent cases of violence against women and their children. While the development on this matter is welcomed, the sad reality is that women all over the Philippines still continue to face the threat of violence against their person and their children. Day by day, cases of violence against women and their children continue to pile up. 

One must think, what happens to the VAWC Victim-Survivors after the act of violence was committed? Do they just move on and proceed to go back living their normal lives? It does not stop there. Violence against women may have long-term effects on the overall physical, emotional, and mental well-being of the victims. This effect does not only pertain to the health of the VAWC Victim-Survivors, but it also affects other aspects of their lives. R.A. 9262 recognizes that acts of violence against women and their children have long-term effects which require intervention in different forms. 

What are the health programs and services that a VAWC Victim-Survivor may avail of?

To address the immediate needs and concerns of the VAWC Victim-Survivor, the law provides access to several health programs and services to address the possible side effects on the physical and mental health of the VAWC Victim-Survivor. This also helps in preventing the possible worsening of the effects of violence against women and their children. 

Section 40 of the Implementing Rules and Regulation (“IRR”) of R.A. 9262 made available to VAWC Victim-Survivor the following services:

Section 40. Medical Assistance. The following health programs and services shall immediately be provided through a socialized scheme by the Women and Children Protection Unit (WCPU) in DOH-retained hospitals or in coordination with LGUs or other government health facilities:

a) Complete physical and mental examinations;

b) Medical/Surgical treatment;

c) Psychological and psychiatric evaluation and treatment;

d) Hospital confinement when necessary;

e) Referral to specialty hospital and other concerned agency as needed;

f) Manage the reproductive health concerns of victim-survivors of VAWC; and

g) If necessary, contact the DSWD or social worker of the LGU for emergency assistance to the woman and her child/children, or the police women and children concerns protection desk officer.

What are the other services that a VAWC Victim-Survivor may avail of?

Medical services are not the only services that a VAWC Victim-Survivor may avail of. There are also programs that are developed to help VAWC Victim-Survivor to recover in other aspects of their lives. 

Section 39 of the IRR of R.A. 9262 enumerated the mandatory services and entitlements for VAWC Victim-Survivors, to wit:

Section 39. Mandatory Services and Entitlements for VAWC Victim-Survivors. The following programs, benefits and appropriate services shall be available to victim-survivors and their children in order to facilitate their healing, recovery and social reintegration:

The DSWD and the LGUs shall:

a) Provide emergency shelter, psycho-social counseling and other rehabilitation services to victim-survivors of VAWC;

b) Ensure that service providers in institutions/centers for women and children are gender sensitive and uphold the rights of women and children;

c) Make available relevant skills training and other livelihood development services to victim-survivors of violence against women;

d) Ensure the successful social reintegration and after-care of victim-survivors and their children; and

e) Continue to develop relevant programs and strategies to ensure protection, healing, recovery and social reintegration and address emerging needs and concerns of victim-survivors of violence.

Interestingly, these services and entitlements mandated by law do not only seek to provide a band-aid solution to the possible negative effects of the acts of violence. It recognizes the negative economic, mental, and social effects arising from acts of violence. These programs and services are designed to help women to get back on their feet and help them recover socially and economically. 

What are the counseling and treatment programs that an offender should undergo?

Under the IRR of R.A. 9262, even the offender themselves are entitled to undergo a rehabilitation program. It appears that the law aims to implement a holistic approach to preventing cases of violence against women and their children. 

Section 41 of the IRR of R.A. 9262 mandates the development of programs for the benefit of the offenders, to wit:

Section 41. Counseling and Treatment of Offenders. The DSWD in partnership with non-government organizations (NGOs) and LGUs shall ensure effective psychosocial rehabilitation of perpetrator of VAWC, which includes but not limited to the following:

a) Development of policies and procedures relative to the delivery of rehabilitation services to offenders/perpetrators of violence, ensuring its effectiveness and efficiency;

b) Provision of appropriate training to City/Municipal Social Workers and other service providers who are implementing rehabilitative/treatment programs for offenders/perpetrators; and

c) Establishment of system of accreditation of counselors and rehabilitation programs in coordination with concerned institutions and the academe for regulatory purposes.

When necessary, the offender/perpetrator shall be ordered by the Court to submit to psychiatric treatment or confinement. Specifically, offenders/perpetrators who were issued protection orders by the Barangay or the courts shall be subjected to mandatory rehabilitative counseling and treatment.

Why develop programs for these offenders though? Even the most undeserving deserve to be treated like humans and have the opportunity to reform. The programs will hopefully help them reform and resolve any issues.  

The Power of Community

The intervention provided by law is for the individual. However, the law also acknowledges that the fight on recovering from any form of violence against women and their children includes the community. This community intervention may take the form of a group education that aims to promote awareness of the rights and recourse of VAWC Victim-Survivors. 

Community intervention may likewise take the form of other people making themselves readily available should their help be needed in fighting for the rights of VAWC Victim-Survivor. It is comforting to know that women and even non-women nowadays are empowered to fight not only for themselves but also for other women who continues to be a victim of violence. 

AJA Law is one with the community in its fight to end violence against women and their children. True to its commitment, AJA Law will continue and will never get tired of informing women of their rights under the law. We are all in this together. Be one with us. Our collective actions will eventually result in a greater good. 

Prepared by CJ Sabile.

21 Mar
Family

Anti-Violence Against Women and their Children: An Overview

The National Commission on the Role of Filipino Women (NCRFW) reported that, for the years 2000-2003, “female violence comprised more than 90% of all forms of abuse and violence and more than 90% of these reported cases were committed by the women’s intimate partners such as their husbands and live-in partners.” 

After nine (9) years of spirited advocacy by women’s groups, Republic Act (R.A.) No. 9262 was enacted, entitled “An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes.” The law took effect on March 27, 2004.1

In 2008 it was reported that 20.1% of women aged 15-49 years old reported having experienced physical violence at the age of 15, in 2013 the figure was lowered to only 19.6%. When asked if they have experienced violence in the past year, the figure in 2008 is at 7.3%, there has been a slight decrease in this figure to 5.6% in 2013. 2

While the Philippines had progressed with the passing of the law, we still have a long road ahead to end cases of violence against women and their children. Information dissemination is an important part of this fight. Hence, this article will provide an overview of what R.A. 9262 is about. 

What are considered acts of violence against women and children?

“Violence against women and their children” refers to any act or a series of acts committed by any person 

  • against a woman who is his wife;
  • former wife;
  • against a woman with whom the person has or had a sexual or dating relationship,
  • with whom he has a common child;
  • against her child whether legitimate or illegitimate, within or without the family abode

which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment, or arbitrary deprivation of liberty.3

It is important to highlight that the common denominator for those who would be considered victims under this law is that the victim has some sort of relationship with the perpetrator. This is a unique and essential requisite in determining whether the case will be considered as a violation of R.A. 9262. 

Take note that the definition provided above is just a general definition of what are considered as acts of violence against women and their children. A discussion of the specific acts of violence under the law will be released in a separate article. 

An interesting question would be, is violence against women and their children committed by men alone? A perusal of the definition shows that the act may be committed by “any person“. There is no distinction as to whether this person is a male or female. It is therefore submitted that even a female may commit acts of violence against women and their children as long as the perpetrator had a dating or sexual relationship with the victim.

Who may file a complaint for violation of R.A. 9262?

Section 7 of R.A. 9262 provides that the Regional Trial Court designated as a Family Court shall have original and exclusive jurisdiction over cases of violence against women and their children under this law. In the absence of such court in the place where the offense was committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of the compliant.

What are the rights of the victims?

Aside from availing of the legal remedies provided under R.A. 9262 such as, but not limited to, Permanent Protection Order (PPO) and Temporary Protection Order (TPO) which shall be discussed in detail in a subsequent article, the law vested victims of violence with certain rights. 

Section 35 of R.A. 9262 provides that in addition to their rights under existing laws, victims of violence against women and their children shall have the following rights:

  1. To be treated with respect and dignity;
  2. To avail of legal assistance from the PAO of the Department of Justice (DOJ) or any public legal assistance office;
  3. To be entitled to support services from the DSWD and LGUs’
  4. To be entitled to all legal remedies and support as provided for under the Family Code; and
  5. To be informed of their rights and the services available to them including their right to apply for a protection order.

Employed victims are also entitled to additional leaves. Section 43 of R.A. 9262 provides that victims under this Act shall be entitled to take a paid leave of absence up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations, extendible when the necessity arises as specified in the protection order.

In addition to this, the DSWD, LGUs, and DOH are mandated by law to provide certain services to the victims. Particularly, Section 40 of R.A. 9262 provides that the DSWD, and LGUs shall provide the victims temporary shelters, provide counseling, psycho-social services and/or, recovery, rehabilitation programs, and livelihood assistance. The DOH shall provide medical assistance to victims.

Cases of Violence against Women and their Children today

Nineteen (19) years after the enactment of the law, cases of violence against women remain prevalent. In fact, under the 2022 Philippine National Demographic and Health Survey, it was reported that eighteen percent (18%) of women have experienced any form of physical, sexual, or emotional violence by their current or most recent husband/intimate partner. 

Two in five women (41%) aged 15-49 who have experienced physical or sexual violence have never sought help to end the violence or told anyone about the violence.4 It is evident that to date, most women who are victims of violence have never sought the help of anyone and this might partly be due to the fact that the services they can avail of to protect themselves are not readily available or inefficient. 

AJA Law aims to be a part of the solution in putting an end to the cases of violence against women. Should you need any help, our lawyers are readily available to help you and protect you, we are here for you. Together, we will put an end to the country’s long fight against violence against women.

Prepared by CJ Sabile.

FOOTNOTES

  1. Garcia vs. Drilon, G.R. No. 179267, 25 June 2013
  2. Clarissa C. David; Jose Ramon G.; Albert; Jana Flor V. Vizmanos. 2017. Rising to the challenge of eliminating all forms of violence against women and girls. © Philippine Institute for Development Studies. http://hdl.handle.net/11540/8070.
  3. Section 3(a), R.A. 9262.
  4. 2017 National Demographic and Health Survey
Divorce
04 Mar
Family

Divorced Abroad? How To Have It Recognized In The Philippines

Philippine laws do not provide for absolute divorce, and hence, the courts cannot grant the same.1 However, in case of a mixed marriage between a Filipino citizen and a foreign citizen, the Family Code of the Philippines allows the estranged Filipino spouse to remarry in case the divorce is “validly obtained abroad by the alien spouse capacitating him or her to remarry.”2

The following elements must concur in order for said law to apply:

  1. There is a valid marriage celebrated between a Filipino citizen and a foreigner;3 and
  2. A valid divorce is obtained abroad, capacitating the parties to remarry, regardless of who between the spouses initiated the divorce proceedings.4

Thus, pursuant to Republic v. Manalo,  foreign divorce decrees obtained to nullify marriages between a Filipino and an alien citizen may already be recognized in Philippine jurisdiction, regardless of who between the spouses initiated the divorce; provided, that the party petitioning for the recognition of such foreign divorce decree- presumably the Filipino citizen- must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.

As a matter of procedure, a case must be filed in court to secure a judgment recognizing the foreign divorce between a Filipino and a foreigner. In terms of evidence, both the foreign divorce decree or judgment and the foreign divorce law need to be proven during the trial. Following a favorable judgment, the divorce would be recorded in the civil registry and the estranged Filipino spouse would be deemed allowed to remarry.

The requirement for recognition of foreign divorce is simply that at least one of the spouses was a non-Filipino at the time of the divorce. This follows from the second paragraph of Article 26 of the Family Code of the Philippines to wit:

“Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino Spouse shall likewise have capacity to remarry under Philippine law.”

Q: WHY IS IT IMPORTANT TO FILE A PETITION FOR RECOGNITION OF FOREIGN DIVORCE IN THE PHILIPPINES?

There are a number of reasons why it is important to file a petition for recognition of foreign divorce in the Philippines, to wit:

  1. Unless the foreign divorce is judicially recognized, the divorce decree will not be registered with the Civil Registrar and the Philippine Statistics Authority (PSA); consequently, a Certificate of No Marriage (CENOMAR) will not be issued should a divorced Filipino plan to remarry;
  2. Without a judicial recognition of the foreign divorce, the previous marriage is deemed to subsist; contracting another marriage in the Philippines may constitute the crime of bigamy; and
  3. If the foreign divorce decree is not judicially recognized in the Philippines, the divorced spouse may still exercise his or her rights to the community or conjugal property as an heir in case of the death of the other spouse.

Q: HOW ARE FOREIGN DIVORCE DECREES JUDICIALLY RECOGNIZED IN THE PHILIPPINES?

A petition for a judicial recognition of a foreign divorce in the Philippines shall be filed before the Regional Trial Court (RTC) in the city or province where the corresponding civil registry to be corrected is located. If the marriage is celebrated abroad, the petition shall be filed before the RTC which has jurisdiction over the place of residence of the petitioner.

The following are the documents required to be attached to the petition. For documents issued or made abroad, they must either be (a) an official publication of such document or (b) a copy attested by the officer having the legal custody of the document, or by his deputy. Additionally, there must be an accompanying certificate that such officer has the custody, which may be issued by the embassy or consular office of the Philippines and authenticated by the seal of its office.5 Any foreign document attached to the petition needs to be apostilled by the competent authority or authenticated by the Philippine Embassy in the foreign country.

Proof of Marriage

The petitioner needs to present to the court a certified true copy of the marriage certificate registered in the Philippines issued by the Philippine Statistics Authority (PSA).

If the marriage was celebrated abroad, the official marriage certificate or record from the foreign country shall be presented. If a copy of the marriage certificate or record was filed with the Philippine Consulate, a copy of the Report of Marriage of a Filipino Married Abroad shall also be presented.

Proof of Divorce

The petitioner needs to present to the court a certified copy of the divorce decree, order, or decision. 

The petitioner must present to the Court the official copies of his or her foreign divorce documents such as the divorce decree which should be duly translated to English if it was written in a foreign language.

Countries have different laws and policies when it comes to divorce. Thus, documents used or issued may also be different. An example is the pronouncement of the Supreme Court in Republic v. Kikuchi, 6 where it was established that Mayors in Japan are authorized to accept divorce. The Supreme Court in this case considered the duly authenticated Certificate of Acceptance issued by City Mayor of Sakado City as sufficient evidence of divorce obtained in Japan.

Proof of Law on Divorce Abroad

The foreign law capacitating the foreign spouse to remarry must be proven as a fact during trial and in accordance with the Rules of Court. 

The petitioner must present to the Court a certified copy of the specific law on divorce in the country where it was obtained. It must be apostilled or authenticated by the Philippine Consulate and must come with an official translation to the English language if written in a foreign language. Said divorce law must indicate that parties to the divorce can remarry.

OCA Circular No. 157-2022 issued on 23 June 2022, announced that foreign divorce laws that have been officially translated into English language may be obtained on the Supreme Court website, and thus, petitioners need not prove it during the trial, to wit:

“…the Family Courts are advised to take judicial notice of this compilation of the laws of foreign countries on marriage and divorce in the resolution of cases requiring the presentation of the laws of foreign countries on marriage and divorce.”

However, OCA Circular No. 157-2022-A issued on 7 July 2022 supersedes the said Circular. It states the following:

“To address this matter, the Department of Foreign Affairs (DFA), upon request of the OCA, furnished the OCA with a compilation of several foreign laws on marriage and divorce, for reference and use of the judiciary in resolving petitions for recognition and enforcement of foreign decree of divorce, subject to prevailing jurisprudence and/or applicable Court issuances related thereto.” 

Simply put, the trial court cannot take judicial notice of a foreign divorce law posted on the Supreme Court website. In Arreza v. Toyo,7  the prevailing jurisprudence, states that:

“Philippine courts do not take judicial notice of foreign judgments and laws. They must be proven as fact under our rules on evidence. A divorce decree obtained abroad is deemed a foreign judgment, hence the indispensable need to have it pleaded and proved before its legal effects may be extended to the Filipino spouse.”

Proofs of Citizenship and Residence of the Parties (the spouses), and the Children, if any.

In order to prove the citizenship of the parties (the spouses), and the children if any, the petitioner needs to present to the court their birth certificates and/or passports.

It must be established that one of the parties is an alien or a foreigner at the time of the divorce for Article 26 of the Family Code to apply.

PUBLICATION

After filing the petition, the RTC branch where the case is raffled will order that the substance of the petition be published in a random newspaper of general circulation in the city or province once a week for three (3) weeks.

POST-JUDGMENT PROCEDURE

After trial and after the court renders its decision granting the petition, the decision shall be registered before the Local Civil Registrar (LCR) where the marriage was recorded, the Local Civil Registrar (LCR) of Manila if marriage was celebrated and registered overseas, and the Philippine Statistics Authority (PSA).

If you have questions on this, feel free to contact our team.

Prepared by Jermile Salor.

FOOTNOTES

  1. Garcia v. Recio, 366 SCRA 437 (2001). 
  2. Art. 26 (2), Family Code of the Philippines.
  3. Republic v. Orbecido III, 472 SCRA 114 (2005).
  4. Republic v. Manalo, 862 SCRA 580 (2018).
  5. Rules of Court, Rule 132, Sec. 24.
  6. Republic v. Kikuchi,  G.R. 243646, 22 June 2022.
  7. Arreza v. Toyo, G.R. No. 213198, 1 July 2019.
Lost your land title?
15 Feb
Property

What To Do When You Lose Your Land Title in the Philippines

A land title is an important document that landowners need to safe keep all the time. It is the best evidence of ownership. It protects your property rights and allows you to enter into transactions involving your land (e.g. sale, lease, mortgage). Without it, questions regarding ownership may arise, especially when other persons have different claims and interests in the land. It will also be difficult, if not impossible, to sell, lease, or mortgage your land.

However, a land title is still a paper document that is very much susceptible to getting lost, stolen, or destroyed. There are different scenarios wherein this could happen, including such natural causes such as fire or flood. What should you do then? Check out this quick guide on how to secure a new owner’s duplicate copy of your land title.

Q: How do I secure a new owner’s duplicate copy of my land title?

Both the owner and the Registry of Deeds (“RD”) are supposed to have a copy of the land title. The legal remedy of an owner depends on which copy is lost. 

If the lost or destroyed copy is the one on file with the RD, the remedy is a Petition for Reconstitution of Title, governed by Republic Act No. 26. On the other hand, if it is the owner’s duplicate copy that is lost, the remedy is a Petition for Reissuance of Title, governed by Section 109 of the Property Registration Decree (Presidential Decree No. 1529).1

In this article, we will focus our discussion on filing a Petition for Reissuance of Title.

Q: What is the procedure with the Registry of Deeds?

STEP 1NOTICE TO THE REGISTRY OF DEEDS – The notice shall be made in the form of an Affidavit of Loss filed with the RD where the property is located. In the Affidavit, it should be explained how the title was lost.
STEP 2ANNOTATION OF THE AFFIDAVIT OF LOSS  – The RD will annotate the Affidavit of Loss to the RD’s copy of the title. 
STEP 3SECURE A CERTIFIED TRUE COPY OF THE TITLE WITH THE ANNOTATION OF THE AFFIDAVIT OF LOSS  – You will need this in the next step.

Q: After going to the Registry of Deeds, what do I do next?

Filing a Petition for Reissuance of Title is a judicial process, which means that you will need to go to court. The Petition must be filed with the Regional Trial Court, the only court which has exclusive jurisdiction over these kinds of cases.2

Q: What is the procedure with the Regional Trial Court?

STEP 1FILE A PETITION WITH THE REGIONAL TRIAL COURT –  The Petition shall be filed with the Regional Trial Court where the property is located. REMEMBER: You must be able to show that you exerted diligent efforts to look for the owner’s duplicate copy, to no avail. 
STEP 2THE COURT WILL NOTIFY ALL OTHER INTERESTED PARTIES AND SET THE PETITION FOR HEARING – The Court will give notice to the RD and all other interested parties, if there are any, as can be determined in the examination of the land title. 
STEP 3THE COURT WILL ISSUE A DECISION – After notice to all other interested parties and hearing, the court will issue an order directing the issuance of a new owner’s duplicate copy of the land title. The new owner’s duplicate copy is as good as the original copy on file with the RD. 
STEP 4FINALITY – Request for a: (1) copy of the court decision and (2) a Certificate of Finality of Decision. File these with the RD for the issuance of the new owner’s duplicate copy. 
BONUS TIPUPGRADE TO E-TITLE – Stay tuned for a more comprehensive discussion on how to upgrade to e-title. 

If you need assistance and representation with securing a new owner’s duplicate copy of your land title, you may contact our team as the initial consult is always free.

Prepared by Cheza Marie Biliran.

FOOTNOTES

1. Heirs of Spouses Ramirez vs. Joey Abon; 910 SCRA 216 (2019)

2. Section 2, Presidential Decree 1529

07 Feb
Business

How To Properly Close A Business And Avoid Penalties

Business closure in the Philippines entails the need to secure clearances from different government agencies, including the Securities and Exchange Commission (SEC), Bureau of Internal Revenue (BIR), Local Government Unit (LGU), and other regulatory agencies such as DOLE, SSS, PhilHealth, and Pag-IBIG.

Never assume that non-operation will automatically relieve an owner from regulatory compliance because failure to properly close a business can result in penalties for unprocessed tax filings, business permits and licenses, reportorial requirements, mandatory contributions, etc. Worse, it can expose the owners to potential lawsuits!

So if you ever find the need to close your business, here’s a quick guide to help you with the entire process.

Q: Where do I go to officially close my business?

The process of officially closing a business in the Philippines involves many government agencies, including: SEC, BIR, LGU, and DOLE/SSS/PhilHealth/Pag-IBIG.

Q: HOW DO I CLOSE MY BUSINESS WITH THE DOLE/SSS/PHILHEALTH/PAG-IBIG?

You have to first give a written notice to your employees and DOLE at least one month prior to the intended date of closure.

Next, you must notify SSS, PhilHealth, and Pag-IBIG of the closure to stop the company’s obligations as a contributing employer.

Here are the usual requirements:

Q: What is the process in LGU and what do I bring?

You have to start by submitting your requirements to the Barangay Hall of your business location. After paying the fees, await the release of your Barangay Clearance and Certificate of Closure. 

The next step is to head to the City Hall of your business location to submit the requirements, pay the fees, and await the release of your Certificate of Closure.

Here are the usual requirements:

Note that procedure and requirements among LGUs may vary so be sure to confirm with your LGU first.

Without proper business closure, a company will have to continue securing its annual permits and ancillary clearances. Failure to do so will result to penalties prescribed by these LGUs.

Q: What is the process in BIR and what do I bring?

This is more challenging. There are more requirements and the process is much longer with the BIR, but you have to go through it regardless to avoid open cases and legally stop filing tax returns. 

Note that the penalty for unfiled NIL tax returns could reach up to P25,000/calendar year in addition to any tax deficiency if any. These open cases do not prescribe and will continue to accumulate until settled.

Revenue Memorandum Circular No. 57-20201 prescribes the updated policy and revised checklist of documentary requirements for business closure and TIN cancellation in the BIR.

To start, you have to bring your requirements to the regional district office (RDO) of the place where your business is located and to apply for the cancellation of your business TIN. After obtaining clearance from all section of the RDO, BIR will conduct a tax audit on your operations to identify any unsettled open cases and tax liabilities. Should there be any tax deficiencies found, you have to settle them and pay for the closure fees before you can claim your Tax Clearance Certificate.

Here are the usual requirements:

  • Request-letter for business closure BIR Form 1905
  • List of ending inventory of goods, supplies, including capital good
  • Inventory of unused official receipts and sales invoices
  • Unused sales invoices/official receipts and all other accounting forms (These will destroyed before BIR personnel and officials.)

For those transacting through a representative:

  • Board Resolution or Secretary’s Certificate
  • SPA

After securing the Tax Clearance Certificate, you can now head to SEC or DTI depending on what business organization you are.

Q: What is the process in DTI and what do I bring?

Sole proprietorships can head to DTI to cancel their business name in a few easy steps: submit requirements, pay fees and claim Certificate of Cancellation.

The usual requirements include:

  • BN-Related Application Form
  • One (1) Valid ID of the BNR owner 
  • Affidavit of Cancellation that BNR owner gave notice, has no intent to defraud creditors or subsisting financial obligation. 
  • SPA/Board Resolution for representatives

Q: What is the process in SEC and what do I bring?

Corporations and partnerships can then apply with SEC to get a Certificate of Dissolution.

SEC Memorandum Circular No. 5, Series of 20222 provides for the revised guidelines on corporate dissolution. The process and requirements vary depending on the mode of dissolution. Generally, the process can be summarized in a few steps:

  1. Secure clearance/s from other regulatory agencies of the business (i.e. FDA, PEZA, BOI etc.)
  2. Submit the requirements and follow up status
  3. Pay the assessment
  4. Claim Certificate of Dissolution

Note that SEC MC No. 5 also allows Dissolution by Shortening Corporate Term pursuant to Section 136 of the Revised Corporation Code. Here, the company’s Articles of Incorporation is amended to reflect the date of the shortened term and upon its expiration, the corporation is deemed dissolved. 

In sum, the main requirements are:

If you wish to consult our experienced team and save on potential lawsuits and issues, feel free to contact us at info@aja.law.

Prepared and written by Jann Mahinay.

FOOTNOTES

  1. Revenue Memorandum Circular No. 57-2020.
  2. SEC Memorandum Circular No. 5, Series of 2022.
GUIDE TO BUSINESS PERMIT RENEWAL AND ANNUAL TAX PAYMENT
21 Jan
Business

A Guide To Business Permit Renewal and Annual Tax Payment

DID YOU KNOW THAT LATE RENEWAL OF BUSINESS REGISTRATIONS CAN RESULT IN PENALTIES INCLUDING CONFISCATION OF ASSETS AND EVEN IMPRISONMENT1?

A business permit is a license necessary for all businesses to operate legally in the Philippines2. This is a requirement before a business begins its operations and is valid only for the year it was applied for. Thus, it must be renewed annually. Traditionally, business permits must be renewed by January 20 of every year. As such, the first month of every year is a critical period for all business owners. Operating with an expired business permit may subject you and your business to a (1) Closure Order, (2) fines amounting to twenty-five percent (25%) of the taxes/fees not paid on time and an interest rate of a maximum of two percent (2%) per month of non-payment3, (3) confiscation of assets and other penalties prescribed by your Local Government Unit (LGU).

This year, several LGUs have extended their deadline for the application for renewal of business permits without surcharges and penalties. Among these LGUs are:

  1. Makati City – 31 January 2023
  2. Muntinlupa City – 31 January 2023
  3. Cebu City – 31 January 2023
  4. Marikina City – 31 March 2023

Another registration that is required annually is the registration with the Bureau of Internal Revenue (BIR) which is due on January 31 of every year. This is a yearly tax filing requirement for all businesses which, if not done, will result in a penalty of a fine of not more than One Thousand Pesos (Php1,000.00) or imprisonment of not more than six (6) months4.

The application for renewal commonly requires one to secure several documents and information, compile the requirements and process the same manually by going to the Local Government Unit (LGU) office in person. While some LGUs have launched online platforms, the majority of LGUs still mandate the filing to be done physically. The following sections will summarize the most common requirements to be prepared for each application.

HOW CAN I RENEW MY BARANGAY BUSINESS CLEARANCE?

Business Permit Renewal typically begins with the application of a Barangay Business Clearance with the Barangay Hall having territorial jurisdiction over the registered address of the business. Present the original and a photocopy of all requirements to the Barangay Hall. Each Barangay may have its own variations on the specific requirements; however, these are the most common requirements:

  1. Application Form
  2. Barangay Business Permit for the previous year
  3. Official Receipt for the previous year
  4. Latest Cedula or Community Tax Certificate
  5. Payment of Fee

The processing time for this varies from LGU to LGU which usually ranges from one (1) day to one (1) week. Also, note that the closer to the deadline for renewal of the application is, the longer the lines are which may equate to a longer processing time for the permit.

WHAT SHOULD I BRING FOR MY MAYOR’S PERMIT RENEWAL?

After the issuance of the Barangay Business Clearance, one can begin applying for the renewal of the Business Permit from the Mayor’s Office. Unless exempt, registered businesses in the Philippines must renew their respective business permits each year within their local Municipality or City hall. The most common requirements for the application for business permit renewal are as follows:

  1. Application Form
  2. Barangay Business Clearance for the Current year
  3. Mayor’s Permit for the previous year
  4. Official Receipt for the Mayor’s Permit for the previous year
  5. Audited Financial Statement /Income Tax Return/Monthly or quarterly Value Added Tax Returns or Affidavit of No Operations, if your business did not operate in the previous year
  6. Notarized Contract of Lease if renting
  7. Comprehensive General Liability Insurance
  8. Community Tax Certificate/Cedula
  9. Payment of Fees (Local Business Tax, Mayor’s Permit Fee, Sanitary Inspection Fee, and other fees as may be imposed by your LGU)

Check with your local Municipality or City the specific requirements and verify any additional requirements which may be required by reason of the nature of your business

The application for business permit renewal must be submitted on or before 20 January of each year. The deadline applies notwithstanding the date of your business registration with Department of Trade and Industry (DTI) or Securities and Exchange Commission (SEC). 

Upon submission of the complete requirements to your local Municipality or City Hall, the processing time for the issuance of the permit ranges from one (1) week to two (2) weeks depending on the LGU. 

HOW CAN I PAY THE ANNUAL BIR REGISTRATION FEE TO AVOID PENALTIES?

The last leg for the renewal is the renewal of the registration with the BIR. Yes, you need to renew your BIR registration annually. All businesses are required to pay the Php500.00 Annual Registration Fee (ARF) on or before 31 January of each year5.

To apply for BIR registration renewal, you can prepare BIR Form No. 0605 using the Electronic BIR Forms (eBIRForms) Package6. Fill in your BIR registration details based on your Certificate of Registration and submit the validated form. You should be able to receive an email notification from the BIR that the return has been received.

Finally, you can now pay the ARF of Php500.00 in an authorized bank or via any online facilities such as GCASH, Paymaya, DBPPay, Peso Net, Landbank, and Unionbank.7

Once the BIR Form No. 0605 has been filed and paid, it must be displayed in the business establishment or office premises together with other business licenses and permits.

Indeed, the filing for the renewal of business permits and registrations can be quite tedious and lengthy. But keep in mind that operating without legal permits could lead to closure of business, fines, and even imprisonment. Should you need guidance and/or assistance in renewing your business permits and registrations, or even applications for new business registrations, you may contact us for help.

Prepared and written by Aira Montemayor and Gerwin Ortega.

FOOTNOTES

  1. Disclaimer: The penalties vary from one LGU to another.
  2. Local Government Code, Sections 444(b)(3)(iv) and 455(b)(3)(iv)
  3. Local Government Code, Section 168.
  4. Revenue Memorandum Order (RMO) No. 7-2015 Annex A and National Internal Revenue Code, Section 275.
  5. National Internal Revenue Code, Sec. 236(B).
  6. Bureau of Internal Revenue, Electronic BIR Forms https://www.bir.gov.ph/index.php/eservices/ebirforms.html
  7. Bureau of Internal Revenue, ePay https://www.bir.gov.ph/index.php/eservices/epay.html
AJA with IPO x IPAP Event
02 Nov
News, Technology

NFT Art as an Avenue to Showcase Philippine Talent

On the photo: Top row (L-R): AJA Law’s Managing Partner Atty. Joseph James Joaquino Jr., Mr. Luis Buenaventura, IPO Director General Rowel S. Barba, IPAP President Atty Alex Ferdinand S. Fider, IP Academy Director Frederick Romero

Bottom row (L-R): AJA Law’s Partner Atty. Mercedes Torrijos Joaquino, AJA’s Law’s Partner Atty. Pearl Ganzon Alcantara, IPAP Corporate Secretary Atty. Katrina V. Doble, and IPAP External Vice President Atty. Abelaine T. Alcantara

“The Philippines is at the start of the NFT Art Story, with NFTs democratizing entry in the art field and allowing Filipinos to showcase their talent globally.”

– Luis Buenaventura, NFT artist and entrepreneur

In the Philippines, an ongoing survey by finance platform Finder states that around 2 million Filipinos own NFTs, with men twice more likely to own an NFT than women.1 In the United States, ownership of NFTs has doubled since 2021 with approximately 9 million saying they have owned NFTs, according to a recent survey by Security.org.2

Why have NFTs grown so popular, and what does this mean for Filipino artists?

The rise in non-fungible tokens or NFTs has attracted the attention of creatives who want to publish their art online, enthusiasts who are looking to invest in digital assets and intellectual property (IP) practitioners, and regulators who seek to protect the ownership and rights of artists and buyers alike. 

Virtual assets such as NFTs are described by the Bangko Sentral ng Pilipinas (BSP) as digital units that can be digitally traded, transferred, or used for payment or investment purposes.3 An NFT is a unique digital asset which could be a photo, painting, short video clip, animated GIF, collectible, etc. that can be bought with cryptocurrency. An original receipt or token is coded to the artwork, which causes the artwork to be non-fungible or non-replaceable. Once a sale is done, the transaction is recorded in a massive public ledger of cryptocurrency transactions or the blockchain.4

NFT webinar brings together crypto and IP experts

The Intellectual Property Office of the Philippines (IPOPHL), in partnership with the Intellectual Property Association of the Philippines (IPAP), organized a hybrid webinar event entitled “NFTs 101: How to Take Your Artwork to the Digital World” on September 29, 2022, which was attended by over 250 participants onsite and online.

IPOPHL Director General Rowel Barba welcomed the audience of lawyers, entrepreneurs, compliance officers, and IP practitioners. Entrepreneurs Mr. Luis Buenaventura of Yield Guild Games and Mr. Brian Poe Llamanzares of minting platform Artifract.io were invited as panel speakers to share their perspectives on cryptocurrency and selling NFT art. Attorneys Joseph James Joaquino, Jr. and Pearl Alcantara, founding partners of Alcantara Joaquino Alcantara Law (AJA Law), a law firm specializing in tech, media, e-commerce, and intellectual property rights, imparted insights on NFT limited use licenses, intellectual property rights and potential regulatory frameworks to navigate the crypto landscape.

When an artist wants to create an NFT, they can upload their artwork to NFT platforms like OpenSea, NiftyGateway, or MakersPlace. Similar to galleries or marketplaces, these platforms promote and curate their different artists who can mint the NFT, subject to “gas fees” which is paid to blockchain miners to process the transaction into the blockchain.5 Since NFT art is secured by blockchain technology, once an NFT is sold, the sale and all succeeding resales or transfers of ownership are recorded on the blockchain. Even if a reproduction of the artwork is posted somewhere on the Internet without the owners’ consent, the receipt coded to the non-fungible token will prove that the original NFT is with the buyer. Certain NFTs also give artists Droit de suite,6 the ability to receive royalties or a share from the resale value of their work in case of subsequent sales as stated in the Intellectual Property Code of the Philippines.7 

Atty. Alcantara, who has extensive experience in IP and corporate law, was quick to point out that when a buyer purchases an NFT, the buyer owns the token but does not own the underlying asset or the artwork. The copyrights of the underlying asset, whether a digital painting, video clip, or a photo, are retained by the artist. The buyer can enjoy limited use of the NFT art depending on rights granted by the NFT creator, e.g. downloading the artwork and reusing it as one’s avatar or as Facebook profile image. 

Promotion and Protection of NFT Artists encouraged by AJA Law

While access to cultural hubs like Tokyo or New York is somewhat limited for Filipino artists, Mr. Buenaventura believes that the entry of budding local talents can be democratized through NFT art. He started the CryptoPop Art Guild to boost support for over 200 underprivileged local artists: the organization provides artists the materials to create art, and host training on how artists can promote themselves in the crypto landscape.8

When Atty. Joaquino was asked about the future of NFTs in the country, he said that Filipinos are crypto-savvy and highly adaptable to new technology. With enterprises also entering the NFT scene, there has to be regulatory certainty and regulatory adaptability for blockchain technology to prosper. Having regulations in place will bring clarity and stability to businesses – they would have guidelines on how to operate legally in the country.

According to BSP Circular 1108, Virtual Asset Service Providers (VASPs) would need to secure a Certificate of Authority to operate as a money service business.3 However, a 3-year moratorium on VASP registration was imposed by the central bank starting September 1, 2022. BSP Governor Felipe Medalla said that the halt in accepting new registrations would shift the focus to “assessing existing VASPs’ overall performance and risk management systems”.9

Aside from regulatory uncertainty, another challenge NFT creators face is security. Atty. Joaquino warned that smart contracts, which contain the agreement and enforce ownership of the NFT, 10  could be hacked or exploited due to a loophole. Additionally, NFTs could be stolen in multiple ways such as a hacker getting access to one’s crypto wallet or an NFT creator mistakenly entering a phishing site that mirrors the legitimate NFT platform. Due to the anonymity of wallets, it is therefore difficult to detect if the NFT uploader is the original creator or if they have a full and absolute title to the artwork. In these instances, the rise of crypto insurance could be beneficial to the NFT creators.

For NFT enthusiasts who want to support artists or grow their crypto art collection, Atty. Alcantara encouraged buyers to conduct due diligence when purchasing NFT art and understand the rights that they are entitled to once they purchase an NFT. Mr. Llamanzares gave tips on selecting NFTs, “Look at the companies behind them. What are they trying to do? Who are the people that they are working with?”

PH still at the start of NFT Art Story

There is much uncertainty regarding NFTs and their utility as blockchain technology matures further and regulatory frameworks are established. NFT creators should be clear on the scope and usage that they are extending to their buyers, and are encouraged to consult IP professionals regarding their rights on the underlying assets. For anyone looking to begin their NFT art journey, the panel speakers shared some questions to ponder on,

“What type of project do I want to do?”

“What kinds of rights do I extend to my buyers for the NFTs I create?”

“What is my purpose in creating NFTs – to make money? To build a brand? To create a community? To democratize art?”

Despite the uncertainty, one thing is for sure: creativity will find a way to be discovered and shared. Whether that is through NFTs, social media, or more traditional channels, Filipino talent always shines through.

We hope this helped provide information on NFTs and how you can get started. Stay tuned for more articles. 

On the photo (L-R): AJA Law’s Lawyers; Atty. Jermile L. Salor, Atty, Mercedes Torrijos Joaquino, Atty. Pearl Ganzon Alcantara, and Atty. Joseph James Joaquino Jr.

If you have questions or would like to know more about NFTs, get in touch with us.

FOOTNOTES

1. Richard Laycock, (4 October 2022), [Key Filipino NFT adoption trends for September 2022], [Report] https://www.finder.com/ph/nft-statistics

2. Aliza Vigderman, (26 July 2022), [NFT Awareness and Adoption report], [Media report] https://www.security.org/digital-security/nft-market-analysis/#:~:text=In%202022%2C%20four%20percent%20of,100%20percent%20increase%20from%20202

3. Bangko Sentral ng Pilipinas, (21 January 2021), [Circular No. 1108, Series of 2021: Guidelines for Virtual Asser Service Providers], [Circular] https://www.bsp.gov.ph/Regulations/Issuances/2021/1108.pdf

4. Ethereum.org, [Sec. How do NFTs work?, Non-fungible Tokens] https://ethereum.org/en/nft/

5. Randy Ginsburg, (1 June 2022), [What are Gas Fees and How can we Fix Them?], [Blog post] https://nftnow.com/guides/what-are-gas-fees-and-how-can-we-fix-them/

6. AJA Law, (6 October 2022), [An Artist’s Right], [Article] https://www.ajalaw.ph/an-artists-right/

7. (6 June 1997) [Id. Sec. 2(m), Rule I. of Republic Act no. 8293 An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Power and Functions and for Other Purposes], [Law] https://www.officialgazette.gov.ph/1997/06/06/republic-act-no-8293/

8. Waren de Guzman, ABS-CBN (28 April 2022), [Filipino artists seen to benefit from NFT art: stakeholders], [News Article] https://news.abs-cbn.com/business/04/28/22/filipino-artists-seen-to-benefit-from-nft-art

9. Rappler.com, (12 August 2022), [BSP imposes 3-year moratorium on virtual asset service providers licensing] [Article] https://www.rappler.com/business/bangko-sentral-pilipinas-imposes-moratorium-virtual-asset-service-providers-licensing/

10. Binance.com, (5 August 2022) [All You Need to Know About NFT Smart Contracts], [Blog Post] https://www.binance.com/en/blog/nft/all-you-need-to-know-about-nft-smart-contracts-568745413587703085

14 Oct
News

5 Things You Need to Know About the SIM Registration Act

The Subscriber Identity Module (SIM) Registration Act is a new law that aims to mitigate the proliferation of text scams in the country. This is the first law signed by President Ferdinand “Bongbong” Marcos Jr.

The original bill was approved by the 18th Congress, however, former President Rodrigo R. Duterte vetoed the bill last April 2022 due to the last-minute insertion of the mandatory social media registration provision that required users to disclose their real name and phone numbers upon creation of the account. This provision is no longer in the current SIM Registration Act.

Under the current measure, all SIM cards sold are in a deactivated state, and end-users are required to register their SIMs with the concerned Public Telecommunication Entity (“PTE” or “Telcos”). 

Here’s what you need to know:

What information should you provide?

All new and existing SIM subscribers should fill out and provide the following details in an electronic registration form provided by Telcos:

  1. Full name
  2. Address
  3. Date of birth
  4. Sex
  5. Assigned mobile number and its serial number

To verify the identity of the SIM subscribers, they should also present a government-issued ID.

When buying a SIM for someone else, you must be authorized through a duly notarized Special Power of Attorney and present an original and true copy of any valid identification document with a photo of both the principal and representative.

Foreign nationals are required to register their name, nationality, passport number, and address in the Philippines. 

In case of Tourists visiting for not more than thirty (30) days, they are required to present their passport, proof of address in the Philippines, and return ticket to their own country or any other ticket showing the date and time of their departure from the Philippines.

For foreign nationals in the country who either work or study in the Philippines, they must present their passport, proof of address in the Philippines, Alien Employment Permit from the Department of Labor and Employment, Alien Certificate of Registration Identification Card or ACRI-Card from the Bureau of Immigration, school registration ID for students, or other pertinent documents.1 

For minors, the registration of a SIM shall be under the name of the minor’s parent or guardian, provided that the minor’s parent or guardian shall give their consent and register the SIM.

When should you register?

Since it is the responsibility of the Telco to provide the SIM Register, we are to wait for further announcements from them on when and how to register.

New SIM subscribers must register their SIMs as a prerequisite to its activation. 

On the other hand, all existing SIM subscribers must also register their SIMs within 180 days from the effectivity of the law. 

Failure to register will authorize immediate deactivation of the SIM. Deactivated SIM may only be revived after registration.

Who keeps your information?

The SIM Registration Act requires Telcos to keep the electronic registration form in their database. The database shall strictly serve as a SIM Register to be used by Telcos to process, activate or deactivate a SIM or subscription and shall not be used for any other purpose.

What are the safeguards in place to protect my information?

Telcos are mandated to ensure at all times the security and protection of the subscribers’ data. The Telcos shall comply with the minimum information security standards prescribed by the DICT consistent with internationally accepted cybersecurity standards and relevant laws, rules, and regulations.

The DICT shall establish and perform an annual audit on Telcos’ compliance with information security standards

Pursuant to SIM Registration Act, any information and data obtained in the registration process are treated as absolutely confidential and shall not be disclosed to any person.

How can someone access your records?

Notwithstanding the confidentiality clause, disclosure can be made in any of the following instances:

  1. In compliance with any law obligating the Telcos to disclose such information in accordance with the provisions of the Data Privacy Act of 2012;
  2. In compliance with a court order or legal process upon finding of probable cause;
  3. Upon the issuance of a subpoena by a competent authority pursuant to an investigation based on a sworn complaint that a specific mobile number was or is being used in the commission of a crime or that it was utilized as a means to commit a malicious, fraudulent or unlawful act, and that the complainant is unable to ascertain the identity of the perpetrator.
  4. With the written consent of the subscriber. 

More information on the workings of the law should be answered in the implementing rules and regulations to be issued by the National Telecommunications Commission (NTC), in close coordination with the DICT, Department of Trade and Industry (DTI), the National Privacy Commission (NPC), PTEs, and major consumer groups.2

FOOTNOTES

  1. Philstar Global, (10 October 2022), [A new law now requires SIM card registration. What happens next?], [News Article] ​https://www.philstar.com/headlines/2022/10/10/2215656/new-law-now-requires-sim-card-registration-what-happens-next
  2. Abarca, Charie Mae F., (10 October 2022), [IRR of SIM Registration Act to be crafted, polished in 60 days – NTC], [News Article] https://mb.com.ph/2022/10/10/implementing-rules-and-regulations-of-sim-registration-act-to-be-crafted-polished-in-60-days-ntc/​
06 Oct
Intellectual Property

An Artist’s Right

[Spoliarium by Juan Luna]1

The Philippine art scene has always been strong in the country- producing renowned artists from the time of Juan Luna and until this day where the likes of BenCab have gained global popularity. Emerging contemporary artists and even well-established ones have grown their own following through the fast growth of social media. Nowadays, collectors and art enthusiasts have unlimited access to art at their fingertips. Likewise, there are almost a hundred galleries around the country, with multiple major art fairs happening throughout the year. In fact, several galleries did not see a decline in sales during the pandemic, while some even recorded the same income.2 Likewise, those in the music and film industries have continued to create and release their works as access to distribution widened through various online platforms. Pitches to producers abroad have been accessible through emails and Zoom calls– truly, now is such an inclusive time to be in the art scene!

While creating art is truly liberating and, for many, hugely profitable,- there are several decades-old laws that may be unfamiliar to artists. After all, creating the art and being on top of its business side are two different tasks that could feel unnatural to artists. One may find deep satisfaction coming up with pieces that the world could see and appreciate but what some artists may not know is that their financial rights over their work does not end on their art’s first paycheck.

“What?! I can still make money eventually even after my music has been paid for by the broadcast network?” An artist would be surprised to know that the answer is yes!

Fortunately, the Philippines has laws crafted specifically for the protection of artists and their works. One of the rights available to artists is droit de suite, this article is here to help you know more about this specific right.

UNDERSTANDING DROITE DE SUITE

Droit de suite is the French term for “resale right”, or the right of artists or their heirs to receive a share from the resale value of their work in case of a subsequent sale or lease 3.  It is not uncommon for the value of an artist’s work to increase over time and for that work to be sold again or leased, and as trade increases for each artwork, the artist shall remain compensated throughout time. This means that as the art value goes up, the artist may continue to reap benefits from his work.

In the Philippines, the resale right is embodied in Section 200 of the Intellectual Property Code. It is there to ensure that artists or their heirs benefit from the sale or lease of their works even after the first disposition by receiving a share, or what we call a “resale royalty”. An artist’s resale rights exist during his/her lifetime. And guess what, this extends for another 50 years after his/her death. If the work is made by two or more artists, the resale right belongs to all of them as co-owners and protects them from the moment of creation and for another 50 years after the death of the last surviving artist4. The law seeks to take care of the artist and his next generation when you think about it.

WORK AND ARTISTS COVERED

Huntington Jeff [Great Rizal Collage], [Photograph]5

The resale right covers Filipinos and citizens of other countries who are members of the Berne Convention, which have resale rights incorporated in their national copyright laws. The works protected include original works of painting, sculpture, and manuscript 6.

On the other hand, printings, etchings, engravings, works of applied art, and works of a similar kind wherein artists earn from the proceeds of reproductions are not covered7. Reproduction of original works are not covered- this means postcards or shirts using original paintings will not be paying a share to the artists.

If a private individual subsequently sells or leases the work directly to another private individual without the assistance of an art market professional, the resale right also does not apply. This means that if a sale happens privately between individuals (no transfer of certificates or no receipts issued), then it will not be paying a share to the artists.

A direct subsequent sale or lease by a private individual to a public museum is also not covered.

An art market professional, sometimes called a “professional party” or an “intermediary”, is an individual or an entity engaged in the business of dealing with artworks. It may refer to places where buying and selling of art happens such as auction houses, art galleries, art salerooms, or any art dealer in general. A public museum, on the other hand, is an institution with a permanent collection of artworks, existing for the purposes of taking care of the permanent collection and educating the public about it. Museums do not sell art.

resale royalty rates

The following rates determine the amount that will go to the artist or his/her heirs as their resale royalty in case of a subsequent sale or lease 8:

Gross Selling Price (PhP)Percentage Amount
Up to 150,000.005%
150,000.01 – 350,000.004%
350,000.01 – 600,000.003%
600,000.01 – 1,000,000.002%
1,000,000.01 – 2,000,000.001.5%
2,000,000.01 – above1%

If the work is sold in a different currency, the price shall be converted into Philippine Peso based on the Bangko Sentral ng Pilipinas reference rate prevailing on the contract date.

FIRST DISPOSITION AND SALE

When an artist transfers ownership of his/her work for the first time, it may or may not be for a fee. It can either be a transfer from the artist to the person who commissioned the work, or to his/her heirs by way of succession. It can also be the disposal of the work for purposes of administering the artist’s estate, or for the realization of his/her estate in case of bankruptcy (let us hope this never has to happen!). All these scenarios are considered “first disposition” or “first transfer of ownership”.

Sorilla, Franz IV, (2016 July 05) [“Filipinos in Gilded Age, ”Leon Gallery Highlights 19th Century Filipino Art Masterpieces] {Photograph]9

A sale or lease after the first disposition is called “resale”. This is when the law on resale right comes in handy. To ensure that artists get to enjoy their resale right, certain safeguards were implemented and need to be followed when making a subsequent sale or lease. They are the following:

  1. The subsequent sale or lease must involve an art market professional;
  2. In case of lease, the same must be for a period of more than one (1) year and with a written contract; and
  3. The work must be enrolled and registered in the Registry of Qualified Works.

HOW RESALE RIGHTS ARE MANAGED

Management of the resale right includes the monitoring and collection of the resale royalty. There are two ways to do this – collective management or individual management. Collective management means that there is a collective management organization which will do the monitoring and collection on behalf of the artist, in exchange for a fixed fee or a percentage of the resale royalty. An artist can also do all of this him/herself through individual management.

the local art scene

Riccardo (2015 November 16) [Exhibit Painting Display], [Photograph]10

Art galleries often hold art exhibits to feature the works of various local and international artists. Their relationship with the artists is of a give and take nature – the art galleries become an avenue for artists to display their works, market and eventually sell them, the artists then create the works that shall be displayed, help promote their show by way of inviting their followers and network.

Once a work is launched through an exhibit, the gallery and artist agree on a price. Over time, the value of the work may increase as the artist establishes his/her practice in the world of arts. The work, whether in the hands of a collector or still in the gallery, may continually rise as the artist rises in value too. The first sale usually takes place in art galleries, during art fairs, or through the own efforts of the artist. Nowadays, many artists are on social media and they are able to reach out to art enthusiasts and collectors who notice them and might want to acquire their work. For most artists, as a courteous practice, the sale happens through the gallery that represents the artists. This also protects an artist’s long-term relationship with galleries.

The subsequent sale or lease of the work is where it gets tricky. Some works are resold at auction houses and art galleries, but some are sold through private transactions. At this point, it is important for an artist to know his/her resale rights. As mentioned above, an artist has the right to a percentage of the revenue of the resale except for transactions that were mentioned above that are excluded from the law.

Truly, being able to witness an artist’s perspective through layers of color, texture, shapes and curves, hearing the subtle and loud messages of his/her works, is something special. It is not a surprise why people love collecting art, or for some, understanding the growing value in investing in art. But while we bask in the beauty or art, it will not hurt to keep in mind the rights of artists and invoke them if need be. After all, so much heart and tears have gone into creating each piece, artists deserve to receive what is rightfully theirs.

Besides the appreciation for beauty, there is a lot of commercial value in the production, selling and trading of artworks. If you are in this industry already or if you plan to start now, it will be to your advantage to be informed and protected by having the proper legal counsel and legal framework in place. Many of the stories of artists being taken advantage of happen because of lack of preparation in the business and legal aspects, we can help you maximize and protect you and the commercial benefits of your work for you and your next generation.

FOOTNOTES

  1. [Spoliarium by Juan Luna], [Photograph] https://commons.wikimedia.org/wiki/File:Spoliarium_by_Juan_Luna_High_Res.jpg
  2. Potenciano, Toni, (21 March 2021) [People Are Still Selling and Buying Art- even through Viber], [Article] https://www.cnnphilippines.com/life/culture/arts/2021/5/21/buying-art-through-viber.html
  3. (6 June 1997) [Id. Sec. 2(m), Rule I. of Republic Act no. 8293 An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Power and Functions and for Other Functions], [Law]  https://www.officialgazette.gov.ph/1997/06/06/republic-act-no-8293/
  4. (3 July 2020) [Implementing Rules and Regulations on Resale Rights, IPOPHL Memorandum Circular No. 2020-023, Sec. 2(l), Rule I.], [Memorandum] https://drive.google.com/file/d/17evcmv4mIz5zyTOJcdkJUxi4EUd8s_Zm/view
  5. Huntington Jeff [Great Rizal Collage], [Photograph] https://www.coursehero.com/file/81246743/Great-Rizal-Collage-Art-by-Jeff-Huntingtonjpg/
  6. (6 June 1997) [Id. Sec. 5, Rule I. of Republic Act no. 8293 An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Power and Functions and for Other Functions], [Law]  https://www.officialgazette.gov.ph/1997/06/06/republic-act-no-8293/
  7. (6 June 1997) [ Id. Sec. 4, Rule I. Republic Act no. 8293 An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Power and Functions and for Other Functions], [Law]  https://www.officialgazette.gov.ph/1997/06/06/republic-act-no-8293/
  8. (6 June 1997) [ Id. Sec. 14.1, Rule III. Republic Act no. 8293 An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Power and Functions and for Other Functions], [Law]  https://www.officialgazette.gov.ph/1997/06/06/republic-act-no-8293/
  9. Sorilla, Franz IV, (2016 July 05) [“Filipinos in Gilded Age, ”Leon Gallery Highlights 19th Century Filipino Art Masterpieces] {Photograph] https://www.tatlerasia.com/culture/arts/leon-gallery-highlights-19th-century-filipino-art-masterpieces?gallery=true&slide=0&type=carousel
  10. Riccardo (2015 November 16) [Exhibit Painting Display], [Photograph] https://www.pexels.com/photo/exhibit-painting-display-69903/