ASEAN INTEGRATION and
how it affects the INTELLECTUAL PROPERTY LAW OF THE PHILIPPINES.
“One Vision, One Identity, One Community” [i]this
is the Motto of the Association
of Southeast Asian Nation (ASEAN) that was founded on August 8, 1967 in
Bangkok, Thailand by Indonesia, Malaysia, Philippines, Singapore and Thailand.
Brunei, Burma, Cambodia, Laos and Vietnam also joined the political and
economic organization. Upon signing the ASEAN declaration known as the Bangkok
declaration, the purpose of the association is focused:
1.
To
accelerate the economic growth, social progress and cultural development in the
region through joint endeavours in the spirit of equality and partnership in
order to strengthen the foundation for a prosperous and peaceful community of
Southeast Asian Nations;
2.
To
promote regional peace and stability through abiding respect for justice and
the rule of law in the relationship among countries of the region and adherence
to the principles of the United Nations Charter;
3.
To
promote active collaboration and mutual assistance on matters of common
interest in the economic, social, cultural, technical, scientific and
administrative fields;
4.
To
provide assistance to each other in the form of training and research
facilities in the educational, professional, technical and administrative
spheres;
5.
To
collaborate more effectively for the greater utilisation of their agriculture
and industries, the expansion of their trade, including the study of the
problems of international commodity trade, the improvement of their
transportation and communications facilities and the raising of the living
standards of their peoples;
6.
To
promote Southeast Asian studies; and
7.
To
maintain close and beneficial cooperation with existing international and
regional organisations with similar aims and purposes, and explore all avenues
for even closer cooperation among themselves.[ii]
The Fundamental
principles they follow as stated in the Treaty of
Amity and Cooperation in Southeast Asia (TAC) of 1976:
1.
Mutual
respect for the independence, sovereignty, equality, territorial integrity, and
national identity of all nations;
2.
The
right of every State to lead its national existence free from external
interference, subversion or coercion;
3.
Non-interference
in the internal affairs of one another;
4.
Settlement
of differences or disputes by peaceful manner;
5.
Renunciation
of the threat or use of force; and
6.
Effective
cooperation among themselves.[iii]
In
line with the principles and purpose of the association they form various
approach on issues affecting the various countries it is composed of. One of
the issues is Intellectual Creations, which the ASEAN addresses through the
ASEAN Working Group on Intellectual Property Cooperation (AWGIPC). The AWGIPC is mandated to develop, coordinate, and
implement all Intellectual Property-related regional programmes and activities
in ASEAN.[iv] The countries composing
the ASEAN consented on the integration through ASEAN Framework Agreement on
Intellectual Property Cooperation last December 1995. As provided in the
framework ASEAN is Desiring to foster closer cooperation in the field of
intellectual property and related fields in order to provide a firm basis for
economic progress, the expeditious realization of the ASEAN Free Trade Area and
prosperity among the Member States of ASEAN[v]
Through
the years ASEAN is providing goals to improve the intellectual property system.
The AWGIPC created a Work Plan known as ASEAN Intellectual Property Right
Action Plan 2011-2015. The plan is composed of 5 strategic goals such as:
Strategic
Goal 1:
A balanced IP system that takes into account the varying
levels of development of Member States and differences in institutional
capacity of national IP Offices to enable them to deliver timely, quality, and
accessible IP services to promote the region as being conducive to the needs of
users and generators of IP.
Strategic
Goal 2:
Developed national or regional legal and policy
infrastructures that address evolving demands of the IP landscape and AMSs
participate in global IP systems at the appropriate time.
Strategic
Goal 3:
The interests of the region are advanced through systematic
promotion for IP creation, awareness, and utilization to ensure that IP becomes
a tool for innovation and development; support for the transfer of technology
to promote access to knowledge; and with considerations for the preservation
and protection of indigenous products and services and the works of their
creative peoples in the region.
Strategic
Goal 4:
Active regional participation in the international IP
community and with closer relationships with dialogue partners and institutions
to develop the capacity of Member States and to address the needs of
stakeholders in the region.
Strategic Goal 5:
Intensified cooperation among AMSs and increased
level of collaboration among them to enhance human and institutional capacity
of IP Offices in the region.
This
Plan is designed to meet the goals of the ASEAN Economic Community by
transforming ASEAN into an innovative and competitive region through the use of
Intellectual Property for their nationals and ensuring that the region remains
an active player in the international Intellectual Property community.[vi]
Intellectual
creations are recognized as the source of success in an economy. Ones creation
of the mind may be regarded as a new hit in its form or industry. All
successful personalities started from scratch, they thought of an idea and thus
embody themselves of these ideas and took action to reach more than what they
thought of. Intellectual property has a broad coverage which is need of
protection, it may be a technical solution of a problem in any field of human
activity which is new, involves an inventive step and is industrially
applicable[vii],
an original work, an adaptation of a previous design, a literary or artistic
work, a distinguishable sign of ownership and many more.
In
the Philippines intellectual property rights consist of Copyrights and Related
Rights, Trademarks and Service Marks, Geographical Indications, Industrial
Designs, Patents, Lay-out designs (Topographies) of Integrated Circuits and
Protection of Undisclosed Information. The promulgation of RA 8293 otherwise
known as Intellectual Property Code of the Philippines shows the importance of
intellectual creations, “The State recognizes that an effective intellectual
and industrial property system is vital to the development of domestic and
creative activity, facilitates transfer of technology, attracts foreign
investments, and ensures market access for our products. It shall protect and
secure the exclusive rights of scientists, inventors, artists and other gifted
citizens to their intellectual property and creations, particularly when
beneficial to the people, for such periods.”[viii]
The
Intellectual Property Office administers the Intellectual Property Rights. To
secure efficiency the office is being composed of this bureaus: Bureau of
Patents, Bureau of Trademarks, Bureau of Copyright and other related rights,
Bureau of Legal Affairs, Documentation, Information and Technology Transfer
Bureau, Management Information System and EDP Bureau
and Administrative, Financial and Personnel Services Bureau.
According to the statistics
of the Intellectual Property Office[ix] last 2013, the
Philippines has a total of 22,108 trademark filings, 10,963 trademark
registrations, 3,074 invention patent filings, 1,913 invention patent grants,
673 utility model filings, 489 utility model registrations, 1,337 industrial
design filings, 1,343 industrial design registrations, 714 copyright filings
and 648 copyright registration. The statistics also show that there is a
gradual increase on persons filing be it a resident of the Philippines or not.
This expresses that the competitiveness of persons on creating innovative ideas
for profit or not is increasing.
The Philippines Intellectual Property law is encouraging its scope
not to be afraid in doing more for it provides protection on their behalf.
Protection of intellectual property is also provided in the Philippine Constitution Section 13,
Article XIV provides that “The State shall protect and secure the exclusive
rights of scientists, inventors, artists, and other gifted citizens to their
intellectual property and creations, particularly when beneficial to the
people, for such period as may be provided by law.”[x]
As
success in commercializing intellectual property increases, the infringers,
pirates and violators will be tempted to act. The Intellectual Property Office
formed a partnership to other institutions to mandate the intellectual property
enforcement. The institutional partnership with the National Bureau of Investigation-
Intellectual Property Rights Division from the period of 01 January 2013 to 31
December 2013 produced 675 search warrants in violation of the intellectual
property law, which has an estimated value of 3,793,742,096.00 pesos. The sum
is composed of 2,168 Victoria Secret products about 2,000,000 pesos worth,
5,576 Louis Vuitton products about 664,721,000 pesos worth, and 2,406,000 Snow
Bear Menthol Candy about 2,400,000 pesos worth. Talk about the sum of money
that can be gathered from imitating an idea of another more over see the effect
and the value of an idea of someone. More ideas, innovations and creations the
more successful the economy is and when this success is intercepted with false
representation or imitation the underground economy rises. There will be a
lesser income for the country and lesser idealistic persons. The importance of
intellectual property is need for further improvement therefore RA 10372 was
approved last February 28, 2013. This amendment focuses more on the copyright
laws.
Discussing
further the Philippines intellectual property law in connection with
international related provisions. It is provided under section 3 of the
Intellectual Property Code the principle of reciprocity “Any person who is a
national or who is domiciled or has a real and effective industrial
establishment in a country which is a party to any convention, treaty or
agreement relating to intellectual property rights or the repression of unfair
competition, to which the Philippines is also a party, or extends reciprocal
rights to nationals of the Philippines by law, shall be entitled to benefits to
the extent necessary to give effect to any provision of such convention, treaty
or reciprocal law, in addition to the rights which any owner of an intellectual
property right is otherwise entitled by this Act.”[xi]
It is also provided that “Any condition,
restriction, limitation, diminution, requirement, penalty or any similar burden
imposed by the law of a foreign country on a Philippine national seeking
protection of intellectual property rights in that country, shall reciprocally
be enforceable upon nationals of said country, within Philippine jurisdiction.”[xii]
The
Philippines also provided a right of priority in patent application as stated
in section 31, “ An application for patent filed by any person who has
previously applied for the same invention in another country which by treaty,
convention, or laws affords similar privileges to Filipino citizens, shall be
considered as filed as of the date of filing the foreign application: Provided,
That: (a) the local application expressly claims priority; (b) it is filed within
twelve (12) months from the date the earliest foreign application was filed;
and (c) a certified copy of the foreign application together with an English
translation is filed within six (6) months from the date of filing in the
Philippines.”[xiii]The
right of priority is also granted on the law on trademark under Section 131:
131.1. An application for registration of a mark filed in
the Philippines by a person referred to in Section 3, and who previously duly
filed an application for registration of the same mark in one of those
countries, shall be considered as filed as of the day the application was first
filed in the foreign country.
131.2. No registration of a mark in the Philippines by a
person described in this section shall be granted until such mark has been
registered in the country of origin of the applicant.
131.3. Nothing in this section shall entitle the owner of a
registration granted under this section to sue for acts committed prior to the
date on which his mark was registered in this country. Provided, That,
notwithstanding the foregoing, the owner of a well-known mark is defined in
Section 123.1 (e) of this Act, that is not registered in the Philippines, may,
against an identical or confusingly similar mark, oppose its registration, or petition
the cancellation of its registration or sue for unfair competition, without
prejudice to availing himself of other remedies provided for under the law.
131.4. In like manner and subject to the same conditions and
requirements, the right provided in this section may be based upon a subsequent
regularly filed application in the same foreign country: Provided, That any
foreign application filed prior to such subsequent application has been
withdrawn, abandoned, or otherwise disposed of, without having been laid open
to public inspection and without leaving any rights outstanding, and has not
served, nor thereafter shall serve, as a basis for claiming a right of
priority. [xiv]
In addition there is also an agreement affected the Philippine
intellectual property, the World Trade Organization, which the Philippines is a
member through the Trade-Related Aspects of Intellectual Property Rights
(TRIPS) provided that “Each Member shall accord to the nationals of other
Members treatment no less favourable than that it accords to its own nationals
with regard to the protection of intellectual property”[xv] and “With regard to the
protection of intellectual property, any advantage, favour, privilege or
immunity granted by a Member to the nationals of any other country shall be
accorded immediately and unconditionally to the nationals of all other Members”[xvi] this provisions of
course are subject to exemptions. The members may, but not obliged to,
implement in their law more extensive protection than is required by this
Agreement, provided that such protection does not contravene the provisions of
this Agreement. Members shall be free to determine the appropriate method of
implementing the provisions of this Agreement within their own legal system and
practice.[xvii]
Hence this coverage extends the rights of a person’s intellectual creation.
Technically, ASEAN integration helps the Philippines intellectual
property to be more competitive and more significant in other countries. The
ASEAN provides strategic planning to utilize a persons right and the public
rights towards intellectual creation in line with our Intellectual Property
Code, after the lapse of the period granted for the enjoyment of his creation
to the creator it the product becomes part of public domain. The ASEAN also encourages
the people to participate in the field of business for their protection is
given locally and internationally.
In connection with the strategic goals, the Philippines is put
into pressure to do well in the improvement of the Intellectual Property Code
and of course its system. The public has online access to the statistics
relating to the enforcement of intellectual property laws and other related
data, clearly a deliverable delivered by the ASEAN. The awareness of the people
on the crimes that they might commit concerning intellectual property is transparently
known through the mass media and the internet and the amendment made on
Copyright exceptions and limitations for the visually impaired and persons with
disabilities are some of the deliverables delivered under the strategic goals.
ASEAN, at the same time, recognizes the need to continue its
partnerships with other institutions and organizations to improve regional and
national capacity and for ASEAN to fulfill its commitments aimed further improving
relationships with trading partners and building new relationships with future
partners.[xviii].
Some established partnerships established are with Europe-ASEAN (EU-ASEAN),
Japan Patent Office (JPO), State Intellectual Property Office (SIPO), European
Patent Office (EPO), ASEAN-Australia-NewZealand Free Trade Agreement (AANZFTA),
World Intellectual Property Office (WIPO), This concept in the business aspect
might give rise to a global competitiveness of the Philippines own.
Though it has been reported that it is unlikely to achieve all the
targets by 2015 but we can still see the significant change in our Intellectual
Property through the amendments made and efforts done by the IPO and our
Legislature.
Other sources[xix]
[i] “ASEAN-MOTTO”, ASEAN, http://www.asean.org/asean/about-asean/asean-motto
RETRIVED: 24 MAY 2014
[ii] “ASEAN-overview”,
ASEAN, http://www.asean.org/asean/about-asean/overview
RETRIVED: 24 MAY 2014
[iii]“Treaty of Amity and Cooperation
in Southeast Asia Indonesia, 24 February 1976”, ASEAN, http://www.asean.org/news/item/treaty-of-amity-and-cooperation-in-southeast-asia-indonesia-24-february-1976-3
RETRIVED:
24, MAY 2014
[iv] ASEAN IPR Action Plan
2011-2015
[v]ASEAN Framework
Agreement on Intellectual Property Cooperation, Bangkok, 15 December 1995
[vi] ASEAN IPR Action Plan
2011-2015
[vii] Section 21, RA 8293
“Intellectual Property Code of the Philippines, as amended”
[viii] Section 2, Ibid
[ix] “IP Statistics”,
Intellectual Property Office, http://www.ipophil.gov.ph/images/IPOffice/IPStatistics2005-2014March2014.pdf
RETRIEVED 26 MAY 2014
[x] 1987 Philippine
Constitutuion
[xi] RA 8293 “Intellectual
Property Code of the Philippines, as amended”
[xii] Section 232, Ibid
[xiii] Section 31, Ibid
[xiv] Section 131, Ibid
[xv] Article 3, Agreement on
Trade-Related Aspects of Intellectual Property Rights
[xvi] Article 4, Ibid
[xvii] Article 1, Ibid
[xviii] ASEAN IPR Action Plan
2011-2015
[xix] “IP ENFORCEMENT DATA”, NBI-IPRD
http://www.ipophil.gov.ph/images/IPEnforcement/statistics/CounterfeitGoodsandPiratedItems/2013/2013EnforcementDataNBI.pdf
RETRIEVED 26 MAY 2014
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