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A persons right to express himself is as much a social construct as it is a legal one.

It

is a social construct in the sense that expression stems from a persons internal being,

and his ability to communicate and to act out his thoughts in order to reach out to

others; and at the same time, a legal one, since it is an aspect of the human experience

which is explicitly regulated by law. The fact that laws in general are meant to

regulate the social facets of human life, however, provides a certain conflict between

the two, as it seems that in imposing the former, the latter may become restrained, and

its full extent may not be actualized.

In todays highly technologically-immersed world, the most mainstream means of

expressing oneself is undeniably through the use of social media. Aptly assigned,

then, for our final paper / blog entry, is the following issue: Does the current setup of

the Intellectual Property Code stifle your behaviour (expression) in Social Media? If

so, how do you resolve that? To address this issue, I try to find out which parts of

RA 8293, as amended, are seemingly in conflict with a persons right to the freedom

of expression, and propose recommendations therefor.

Behavior and Expression in Social Media

Since the emergence of social media, it has become one of the fastest-growing

avenues for self-expression and self-determination. It has since then transcended

traditional tri-media (print, radio, and television), and has established itself as the all-

inclusive fourth form of mass media, encompassing within its wide range of
functionality not only all the usages of the aforesaid traditional forms of media, but

setting forth and further improving one critical aspect that sets it apart from the other

three: the intertwining communications and interconnections system it provides not

only to one side of the communication model, but to all participants thereto. This

aspect of social media has given rise to a certain self-sustaining phenomenon unique

to it: the proliferation of user-generated content, which is mostly the production and

communication of original works, the modification of such works, and its re-

transmission into the same social media circle thereafter. For the purposes of our

discussion, we shall refer to this phenomenon as the modification-retransmission

system, which essentially defines the critical act which sustains the user-generated

content set-up.

For an ordinary individual, his behavior toward the traditional tri-media platforms

would be limited merely to consumption, and sometimes, if the system employed so

provides, generation of feedback. The communication model is restricted only to a

one-to-many situation, wherein the consumers sole communication partner is the

content generator. There is no means for him to communicate with other consumers,

and no system in place to allow him to establish for himself a similar one-to-many

communication model with other consumers with him as the content generator

(unless of course he avails of any of the services of the three traditional forms media

aforementioned, but at his own cost).


However, because of the emergence of social media platforms, the mere consumer

has become empowered, and has been given an avenue to exercise his freedom of

expression. Through social media, he is able to establish not only a one-to-many

communication model, but rather a many-to-many communication model with other

consumers and content generators alike. The modification-retransmission system

allows whatever content originally created by one user to be modified and/or

retransmitted by the next, to no foreseeable end or restriction, barring any legal

repercussions. This functionality of social media platforms has allowed the user to

break free from being merely an end-consumer, and become a content generator

himself.

Furthermore, a salient part this system is the allowance of community sharing of

works, and the unadulterated opportunities for further transmission of the works

outside those communities. What was once merely confined to certain geographical

regions may now be transmitted through social media to reach practically any place in

the world. It has the elitist nature of some cultures, and has allowed difference

practices and beliefs to mingle and bleed-through. Disregarding any applicable law,

the potential of social media platforms for interconnection and transmission of

expression through such interconnections is extensive and almost immeasurable.

However, as with any aspect of human life, laws are in place to regulate and protect

our rights from possible abuse. Generally, the purpose of the law is to provide for a

reasonable interference against a persons rights, so as to protect not only him, but all

parties which may possibly become involved or affected, and their respective rights.
Taken in to context, an ordinary persons behavior in and exercise of expression

through social media may be curtailed in order to protect and balance the rights of all

parties involved. The essential thing to know here then is whether the actual use by

social media users, as discussed in the preceding paragraphs are compatible with the

allowable usage under the Intellectual Property Law, as amended, specifically

regarding the kinds of protection it accords to copyright holders, and the acts it

consequently prohibits others from exercising.

Behavior and Expression under the intellectual Property Code

Under RA 8293, three specific umbrella rights are protected: patents, marks, and

copyright. Generally speaking, all these rights pertain to subjects which may be

considered in a broad sense as forms of expression, but it is only copyright which

explicitly identifies expression as one of its elements1. Moreover, put in the context

of social media and its more typical usage, the expressions as herein mentioned would

more likely pertain to artistic and literary works, which are subjects covered by the

law on copyright2.

Expression under the Law on Copyright

1
Republic Act 8293, Sec. 172.2 provides: Works are protected by the sole fact of their
creation, irrespective of their mode or form of expression, as well as of their content, quality
and purpose.
2
Sec. 172.1: Literary and artistic works, hereinafter referred to as works, are original
intellectual creations in the literary and artistic domain protected from the moment of their
creation
No exact definition of the term expression is provided under the law. It may be

culled from its provisions, however, that what the law intends to protect are original

literary, scholarly, scientific, and artistic works3, in general, as well as derivatives of

such original works4. Should there be a work created that falls outside of any of the

four classifications aforementioned, or falls within the coverage of Section 1755, then

the same would not be protected under copyright. Nevertheless, the classifications are

so broad that almost all kinds of expressions could be covered, especially under the

term artistic, which, even discounting the lack of specific delimitations set by the

law, is already a very subjective, thus difficult, area of human experience to define.

And given the typical use of social media today, as discussed in the prior sections,

such acts performed and works shared by users through social media platforms would

most likely fall within this blanket term of literary and artistic works.

Kinds of Protection Accorded

3
Sec. 172.1 (o)
4
Sec. 173.1. The following derivative works shall also be protected by copyright:
Dramatizations, translations, adaptations, abridgments, arrangements, and other
alterations of literary or artistic works; and
Collections of literary, scholarly or artistic works, and compilations of data and other
materials which are original by reason of the selection or coordination or
arrangement of their contents. (Sec. 2, [P] and [Q], P.D. No. 49)
5
Sec. 175: Unprotected Subject Matter. Notwithstanding the provisions of Sections 172
and 173, no protection shall extend, under this law, to any idea, procedure, system, method
or operation, concept, principle, discovery or mere data as such, even if they are expressed,
explained, illustrated or embodied in a work; news of the day and other miscellaneous facts
having the character of mere items of press information; or any official text of a legislative,
administrative or legal nature, as well as any official translation thereof .
Be that as it may, the fact that a work is eligible for protection does not automatically

mean absolute protection. The law accords two sets of rights to a copyright holder:

Economic rights under Section 177 (and the corresponding Neighboring Rights for

Performers, Producers of Sound Recordings, and Broadcasting Organizations6), and

Moral rights, under Section 193. The former essentially reserves unto the copyright

owner the right to produce, alter, exploit, and disseminate his work, to the exclusion

of all others7, while the latter pertains more to his rights of paternity and attribution

for works originated by him, and non-attribution for works he did not create, or for

distorted versions of his work as adapted by others8. Acts outside those rights

6
Covered by Chapter XII of RA 8293
7
Section 177. Copyright or Economic Rights. Subject to the provisions of Chapter VIII,
copyright or economic rights shall consist of the exclusive right to carry out, authorize or
prevent the following acts:
177.1. Reproduction of the work or substantial portion of the work;
177.2. Dramatization, translation, adaptation, abridgment, arrangement or other
transformation of the work;
177.3. The first public distribution of the original and each copy of the work by sale or
other forms of transfer of ownership;
177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work
embodied in a sound recording, a computer program, a compilation of data and other
materials or a musical work in graphic form, irrespective of the ownership of the original or
the copy which is the subject of the rental; (n)
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a)
8
Section 193. Scope of Moral Rights. The author of a work shall, independently of the
economic rights in Section 177 or the grant of an assignment or license with respect to such
right, have the right:
193.1. To require that the authorship of the works be attributed to him, in particular, the
right that his name, as far as practicable, be indicated in a prominent way on the copies, and
in connection with the public use of his work;
193.2. To make any alterations of his work prior to, or to withhold it from publication;
193.3. To object to any distortion, mutilation or other modification of, or other derogatory
action in relation to, his work which would be prejudicial to his honor or reputation; and
193.4. To restrain the use of his name with respect to any work not of his own creation or
in a distorted version of his work. (Sec. 34, P.D. No. 49)
accorded to him are not covered by his copyright, and may thus be performed by

others without violation of the law.

With respect to moral rights, there is no argument, legal or otherwise, that the

originator of a work should be credited for creatively bringing into being something

which, in one way or another, ultimately contributes to the self-determination and

self-actualization of a certain society. It is a civil right which flows from the

constitutional freedom of expression, that is, to be free to express oneself without

prior censure, or fear thereof, and be thusly properly credited for such an expression.

The issue lies however, with the extent of the economic rights granted to right

holders, and the manner through which the law protects such rights.

Protection Accorded by Economic Rights

Section 177 provides for seven so-called economic rights, which can be summed in

the following manner: the right holder, generally the originator or the author of the

work, is entitled to the exclusive exercise of the right to reproduce his work, the right

to transform his work or make alternations thereto, the right to the first public

distribution of the work and other subsequent communications of the work to the

public, the right to perform the work to the public, and most specially, the right to

derive profit from the work. It may even be argued that the exact point of providing

for these economic rights is so that the right holder has, for a certain period of time,

exclusive enjoyment of all and any pecuniary interest in the work. This is vastly
different from the protection accorded by the moral rights also vested upon him;

while the latter pertains to a civil right to paternity and attribution, or non-attribution

as the case may be, the former protects the property rights of the right holder, and

prevents others from encroaching thereupon without the right holders express

consent, or that of the governing law.

Exclusive Reproduction, Transformation, and Performance

Of particular notice is the right to the exclusive reproduction, transformation,

performance, and communication of the work to the public. While the other rights

under Section 177 protect the holder against acts which directly infringe upon his

enjoyment of the pecuniary benefits of his copyright (as in the first public

communication and distribution of the work, or substantial portions thereof, without

his authority, thus depriving him of the opportunity to do so for himself, and

removing from his reach certain parts of the market which he could have capitalized

upon, had the infringing act not been committed), the four aforesaid acts cannot be

conclusively said to automatically deprive him of his pecuniary interests, as they may

be performed without denying him the profit he might make from the said market

share. In fact, even the law itself recognizes certain exceptions to the exclusivity of

the exercise of these rights, as embodied in Chapter VIII9. For the purposes of this

paper however, and as delimited by the available functions and uses of social media,

9
Entitled, Limitations on Copyright, covering Sec. 184 to 190, specifically Sec. 184-185 for
the purposes of our discussion.
we limit our discussion to the reproduction, transformation, and transmission of

copyrighted material.

Limitations of Copyright

Section 184 provides a list of acts, which although are prima facie contrary to the

economic rights discussed in the previous section, do not, under the law, infringe

upon the rights of the holder10. It must be said however that the list is exclusive, and

10
Sec. 184.: Limitations on Copyright. 184.1. Notwithstanding the provisions of Chapter
V, the following acts shall not constitute infringement of copyright:
(a) The recitation or performance of a work, once it has been lawfully made accessible to
the public, if done privately and free of charge or if made strictly for a charitable or religious
institution or society; (Sec. 10(1), P.D. No. 49)
(b) The making of quotations from a published work if they are compatible with fair use and
only to the extent justified for the purpose, including quotations from newspaper articles
and periodicals in the form of press summaries: Provided, That the source and the name of
the author, if appearing on the work, are mentioned; (Sec. 11, third par., P.D. No. 49)
(c) The reproduction or communication to the public by mass media of articles on current
political, social, economic, scientific or religious topic, lectures, addresses and other works
of the same nature, which are delivered in public if such use is for information purposes and
has not been expressly reserved: Provided, That the source is clearly indicated; (Sec. 11, P.D.
No. 49)
(d) The reproduction and communication to the public of literary, scientific or artistic works
as part of reports of current events by means of photography, cinematography or
broadcasting to the extent necessary for the purpose; (Sec. 12, P.D. No. 49)
(e) The inclusion of a work in a publication, broadcast, or other communication to the
public, sound recording or film, if such inclusion is made by way of illustration for teaching
purposes and is compatible with fair use: Provided, That the source and of the name of the
author, if appearing in the work, are mentioned;
(f) The recording made in schools, universities, or educational institutions of a work included
in a broadcast for the use of such schools, universities or educational institutions: Provided,
That such recording must be deleted within a reasonable period after they were first
broadcast: Provided, further, That such recording may not be made from audiovisual works
which are part of the general cinema repertoire of feature films except for brief excerpts of
the work;
(g) The making of ephemeral recordings by a broadcasting organization by means of its own
facilities and for use in its own broadcast;
as such, acts which are not therein explicitly included are deemed to be infringing

acts, no matter how similar in characteristics or elements.

Of particular interest are the following: (b), which allows the use of quotations, as

compatible with Section 185; (c), which limits its application to releases made

through mass media for the purpose of giving information not otherwise expressly

reserved; and (d), which limits its application to reporting of current events. It seems

that under the law, reproduction of copyrighted material for the sole purpose of non-

commercial news reporting or information dissemination, when such information is

imbibed with public interest and has not been expressly reserved, is the only

exception allowed, and even then, provided that there is attribution to the source. It

gives no room for other non-commercial acts which may be premised on other

purposes; and even assuming arguendo that these provisions are sufficient limitations

on copyright for acts constituting reproduction and further communication of the

(h) The use made of a work by or under the direction or control of the Government, by the
National Library or by educational, scientific or professional institutions where such use is in
the public interest and is compatible with fair use;
(i) The public performance or the communication to the public of a work, in a place where
no admission fee is charged in respect of such public performance or communication, by a
club or institution for charitable or educational purpose only, whose aim is not profit
making, subject to such other limitations as may be provided in the Regulations; (n)
(j) Public display of the original or a copy of the work not made by means of a film, slide,
television image or otherwise on screen or by means of any other device or process:
Provided, That either the work has been published, or, that the original or the copy
displayed has been sold, given away or otherwise transferred to another person by the
author or his successor in title; and
(k) Any use made of a work for the purpose of any judicial proceedings or for the giving of
professional advice by a legal practitioner.
(l) The reproduction or distribution of published articles or materials in a specialized format
exclusively for the use of the blind, visually- and reading-impaired persons: Provided, That
such copies and distribution shall be made on a nonprofit basis and shall indicate the
copyright owner and the date of the original publication.
[11-RA10372[2013].adwss] 32
work to the public, it fails to cover one behavior which proliferates in the realm of

social media, and might even be considered to be its life-blood: the modification-

retransmission system, which was discussed in the prior sections.

Actual Use vs. Allowable Use Copyright Restricts Expression

A comparison of the foregoing discussions between the unmitigated actual exercise of

the freedom of expression through social media, and the allowable use of the same, in

light of the law on copyright clearly shows that the latter does indeed curtail the

former. By comprehensively granting to a specific person the exclusivity of

exercising the so-called economic rights and neighboring rights, it effectively

prohibits others from utilizing a copyrighted work, even though such use would

essentially not be incompatible with the right holders pecuniary interests. Even

taking into consideration the limitations on copyright, the effect is the same, as the

limitations are very few, and cover only a very limited range of acts. The fluidity and

ephemeral nature of social media, which has become the point of such platforms, and

of the expressions made therein through the so-dubbed modification-retransmission

system, become greatly restrained, caused greatly by the uncertainty of users on

whether the content and the manner they want to communicate such content to others

may be legally allowed, in light of the limitations imposed by the law.


Given that there indeed exists a curtailment of the right to exercise the freedom of

expression, the question now becomes whether the same is still within the reasonable

limits set by the constitution.

The Freedom of Expression under the Constitution

The protection granted specifically for the freedom of expression is a novel one under

the 1987 Constitution. Previous constitutions did not provide the phrase of

expression, and simply clumped the protection for other kinds of expressions under

the freedom of speech and of the press. The amendment, however, now provides a

broader formula inclusive of all forms of expression11, and should cover those

communicated through social media platforms, which do not strictly fall within the

traditional notion of the freedom of speech and of the press.

What constitutes Expression

The freedom of expression has been said to embrace a number of cognate rights,

including but not limited to the freedom of speech and of the press, the freedom of

assembly, the freedom of petition, freedom of religion, the right of association, the

right to access to information on matters of public concern, and the right not to be

detained solely by reason of ones political beliefs and aspirations. The underlying

11
Bernas, S. J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 231
(2009).
concept is that its aim is to insure the free and effective communication of ideas from

mind to mind12, which basic for the growth of a free and democratic society.

Traditionally, the freedom of expression is conceived to have two elements: the

freedom from previous restraint, and the freedom from subsequent punishment.

Previous Restraint

The idea of imposing a measure of restraint previous to the communication of the

expression or work, or in other words, prior censorship, is one which is contradictory

to the concept and nature of the freedom of expression. It is precisely the point of

expression to promote the free flow of ideas, and the mitigation posed by a prior

censorship would be an unlawful curtailment of the same. As Cruz puts it, such

authority is anathema in a free society,13 the authority herein referring not only to

rules and regulations which may be imposed by executive and administrative bodies,

but even to statutes passed by the legislative. It is the requirement of the law for an

author to submit his work prior to publication so that the State may decide whether

such work may or may not be published which is considered contrary to the freedom

herein discussed, and is thus, unconstitutional.

Consideration must be given, however, to the numerous cases decided by our

Supreme Court, wherein the freedom from previous restraint was not strictly

12
Cruz, I. A., Constitutional Law, 199 (2007)
13
Ibid.
observed, in light of supervening circumstances specific to each case, and/or the

existence of a public policy or of public interest, which tempered the hand of the

Court.

Subsequent Punishment

While there is [supposed to be] absolute prohibition against prior censorship, the

same cannot be said for subsequent punishment. Admittedly, no person would freely

engage in the expression of his ideas, even without the existence of prior censorship,

if he were in fear of being punished after the fact. But as succinctly put by Bernas,

citing Blackstone, Every free man has an undoubted right to lay what sentiments he

please before the public, but if he publishes what is improper, mischievous, or

illegal, he must take the consequences of his own temerity.14 The freedom from

subsequent punishment is not as absolute as the freedom from previous restraint, and

should be qualified by tests discussed in the following section.

Delimitations

The State may rightfully impose limitations curtailing the freedom of expression,

under the exercise of police power, or in pursuance to legitimate public policy or

public interest, which as mentioned in the preceding paragraph, includes

14
Bernas, S. J., supra, 232 (2009)
considerations of impropriety, mischief, or illegality; additionally, good morals, good

customs, and public order. In determining whether the imposed limitations are

constitutional, three tests have evolved throughout the years, and are discussed in the

subsequent sections of this paper.

The Clear and Present Danger Rule

Under this test, the determining question is whether the words used are used in such

circumstances and are of such a nature as to create a clear and present danger that

they will bring about the substantive evils that the State has a right to prevent. It

becomes a question of proximity and degree, wherein the character of every act

depends upon the circumstances in which it is done15. For the test to be applicable,

the danger must be clear, or must present a causal connection with the danger of the

substantive evil arising from the utterance questioned; and must also be present, or

must identify with an imminent and immediate danger, which must not only be

probable, but very like inevitable16. Given the parameters of this rule, it would seem

that it finds no application with the subject matter of our discussion, since it

concerned mainly with preventing expressions from bringing about the danger sought

to be prevented; whilst in our discussion, it is not the effect of the expressions which

is the issue, but the manner by and through which they are reproduced, modified,

and/or thereafter retransmitted.

15
Schenk v. U.S., 249 U.S. 97
16
Gonzales v. COMELEC, 27 SCRA 835
The Dangerous Tendency Rule

On the other hand, the Dangerous Tendency test focuses more on determining

whether the words uttered creates a dangerous tendency which the State has a right to

prevent. It is sufficient if the natural tendency and probable effect of the utterance be

to bring about the substantive evil which the legislative body seeks to prevent17.

While this test is inherently different from the previous, as it actually leans more in

favor of authority rather than liberty, it similarly finds no application in our

discussion, as it still concerns the censorship of expressions thought to bring about the

danger being sought to be protected by legislation.

The Balancing of Interests Test

The applicable test is the Balancing of Interests Test, as applied in the case of

American Communications Association v. Douds18. In that case, the Court had the

opportunity to utilize a test different from the two foregoing, taking into consideration

the following circumstances: when a particular conduct is regulated in the interest

f public order, and the regulation results in an indirect, conditional, partial abridgment

of speech, the duty of the court is to determine which of the two conflicting interests

demands the greater protection under the particular circumstances presented to

17
Cabansag v. Fernandez, 102 Phil. 152
18
339 U.S. 282
weigh the circumstances, and to appraise the substantiality of the reasons advanced in

support of the regulation of the free enjoyment of rights Therefore, in determining

whether there is curtailment of the freedom of expression with respect to certain

provisions of the law on copyright, the solution is to balance the rights being pitted

against one another in this case, on one hand, the civil rights flowing from the

constitutional right of a person to exercise the freedom of expression, and on the

other, the protection accorded to a persons property rights, which includes copyright

in its sphere of application.

Application to Restricting Provisions

What the law on copyright, specifically the provisions discussed a priori, protects are

ultimately property rights, whereas the freedom of expression protects civil rights. In

applying the test in the foregoing section, focus is given in weighing the two warring

rights against each other, with preference given to the free enjoyment of the right to

express oneself, absent any reasonable showing of any reason to rule in favor of

regulation. In this case, the freedom of expression must be upheld, since civil rights

enjoy preference over property rights in the universally accepted principle of the

hierarchy of rights. This is not to say however, that the provisions in question are

inherently unconstitutional, or are unconstitutional per se; rather, the proper

interpretation should be this: each case must be resolved based on the specific

circumstances therein, that is, in the absence of any applicable limitations set forth in

Chapter VIII of the law, and provided the acts committed do not in any way interfere
against the economic interests of the right holder, and/or the moral rights of the

originator, and are not against good morals, public order, or public policy, the court

must be guided by the hierarchy of rights, barring any other overriding state interest.

Other Recommendations

Recommendations on how to interpret the seemingly conflicting provisions of law

and the Constitution aside, there are other ways to guarantee both the exercise of the

freedom of expression, and the protection of the property rights of the right holder.

Linking: A simple solution to the issue of Re-transmission

In his paper19, Garon suggests a very simple solution to avoid the issue presented

above. He posits that our accustomed behavior of unwittingly and indiscriminately re-

transmitting content we see online on an as-is basis to others in our social media

circle, without giving thought to the consequences of using words, images, sounds,

and other forms of expression, and the lack of permission of the originator is what

basically gets us into trouble. However, by simply transmitting the link or URL of the

material we want to share, instead the material itself, we are then able to avoid

19
Garon, Jon, Social Media in the Workplace From Constitutional to Intellectual Property
Rights (November 1, 2013). Available at
SSRN: http://ssrn.com/abstract=2348779 or http://dx.doi.org/10.2139/ssrn.2348779.
Retrieved on November 26, 2014
violations of any copyright provisions, as copyright apparently does not attach to link

addresses, as these are considered mere facts and ideas within the work20.

Amendment of IP Code by adding Social Media related provisions

It is important to note that the current Intellectual Property Code was originally

drafted prior to the emergence and proliferation of social media platforms. It took

effect on January 1, 1998, and was amended in August 6, 2001 by Republic Act 9105,

and again on June 6, 2008 by Republic Act 9602, and further on February 28, 2013

by Republic Act 10372. And in the past 16, almost 17 years of its existence, and even

taking into considerations the amendments thereto, no provisions have been added

which specifically target the fourth classification of mass media. Contextually

speaking, the provisions of the act were designed by legislators generally with the

traditional tri-media in mind, and while most provisions of the law are coached in

sufficiently broad enough terms to cover the emergence of social media, there are still

certain facets of it which are inherently different from tri-media, and are thus outside

the protection and regulation of the law.

Argument could be made that with the rate technology is further evolving, the social

media we know today may not be the same in the next 10, maybe even five years, and

as such, trying to address this seemingly transient issue now might result in a form of

20
Garon, supra,citing Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990)
short-sightedness in the legislation. In such a case, it might probably be more prudent

to wait for the emergence of new international treaties to which Philippines would be

inevitably a signatory, and thereafter craft the appropriate law. But on the other hand,

while legislators play the waiting game, violations of both copyright and related

rights, as well as the freedom of expression, are being committed, and the public is

being opened to vulnerabilities that would otherwise be addressed by statute. In the

interest of protecting all rights available to the people, legislators should look into the

possibility of incorporating the newest form of mass media even without international

pressure, as this platform is no longer being used merely for personal expression and

gratification, but has already sufficiently evolved to encompass all aspects of human

life, most specially business and commerce.