ASEAN
AS HOW IT AFFECTS YOUR INTELLECTUAL PROPERTY (IP)
“Intellectual
property, more than ever, is a line drawn around information, which asserts
that despite having been set loose in the world - and having, inevitably, been
created out of an individual's relationship with the world - that information
retains some connection with its author that allows that person some control
over how it is replicated and used.
In other words, the
claim that lies beneath the notion of intellectual property is similar or identical
to the one that underpins notions of privacy. It seems to me that the two are
inseparable, because they are fundamentally aspects of the same issue, the need
we have to be able to do something by convention that is impossible by force:
the need to ringfence certain information. I believe that the most important
unexamined notion - for policymakers and agitators both - in these debates is
that they are one: you can't persuade people on the one hand to abandon
intellectual property (a decision which, incidentally, would mean an even more
massive upheaval in the way the world runs than we've seen so far since 1990)
and hope to keep them interested in privacy. You can't trash privacy and hope
to retain a sense of respect for IP.”
― Nick Harkaway,
The Blind Giant
INTRODUCTION
One of the
main legal bases of the Philippine IP System is the Constitution because it
includes the protection of property, which is safeguarded under the law. It
provides that “no person shall be deprived of life, liberty, or property
without due process of law.. xxx”[i] If
we recall, there are two (2) classifications of property,[ii]
namely, immovable or real property, and movable or personal property. Further
classifications would include tangible and intangible as to susceptibility to
touch. For “tangible, it is an asset that has a physical existence and is
capable of being assigned a value whereas intangible is something that lacks a
physical form; an abstraction, such as responsibility; esp., an asset that is
not corporeal, such as intellectual property.”[iii]
Rights are also property and would include intellectual property rights because
we can touch and see the inventions.
Each
country has its own protection for the inventors to keep their property as a
result of their creative minds. Furthermore, “the importance of intellectual
property was first recognized in the Paris Convention for the Protection of
Industrial Property (1883) and the Berne Convention for the Protection of
Literary and Artistic Works (1886). Both treaties are administered by the World
Intellectual Property Organization (WIPO).[iv] Intellectual
property rights are “the rights given to persons over the creations of their
minds. They usually give the creator an exclusive right over the use of his/her
creation for a certain period of time.”[v] In
this regard, it would encourage the authors, owners and creators of the works to
produce more innovations and ideas that can be protected and obtain exclusive
rights when they have decided to disclose their inventions and put in the market.
The Intellectual Property Rights (IPR) are inline with the Universal
Declaration of Human Rights, which provides that “xxx (2) everyone has the
right to the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author.”[vi]
EVOLVING MARKETS IN INTELLECTUAL PROPERTY (IP)
Intellectual
Property such as patents, copyrights, trademarks and trade secrets play an
important role in the international economic development nowadays. It does not
only contribute to our marketplaces, but also to promote advancement in
establishing the value and potential growth of the new products and innovations
as well as to secure the works or inventions of the creators, authors, or
owners of the works from imitating, copying, using, manufacturing or selling
that would result to infringement. Intellectual Property has been defined as
“the term used to describe intangible assets resulting from the creative work
of an individual or organization. IP also refers to creations of the mind, such
as inventions, literary and artistic works, and symbols, names, images and
designs used in commerce.”[vii]
The ideas, processes, improvements and discoveries that come from a persons
mind are also part of intellectual property. These assets are protected under
the law, which gives the owners, creators and authors an exclusive right over
their innovations. Aside from encouraging individuals to create more invention,
it can also be used as an investment by providing them a financial incentive
and a royalty from the works they have done.
There are
four (4) key forms of Intellectual property, which include patents, copyrights,
trademarks and trade secrets. “Trademark means any visible sign capable of
distinguishing the goods or services of an enterprise and shall include a
stamped or marked container of goods.”[viii]
On the other hand, “Patentable Inventions is any technical solution of a
problem in any field of human activity which is new, involves an inventive step
and is industrially applicable shall be patentable. It may be, or may relate
to, a product, or process, or an improvement of any of the foregoing.”[ix]
While “Copyright is confined to 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.”[x]
Whereas “Trade secret law is
a branch of intellectual property law that is concerned with the protection of
proprietary information against unauthorized commercial use by others.”[xi]
However, “trade secrets are not currently recognised by all IPR systems in the
ASEAN region, but there are practical steps your business can take to keep your
crucial information secret.”[xii]
Amongst these forms, patent is the most important intellectual property because
of its technicality.
Additionally,
in running a business, an individual must be aware of his own as well as
other’s intellectual property rights because as we can see, these multinational
companies have been combatting over their respective intellectual property
rights. Besides, this has gained commercially in the past few years since enticements
from each individual are enormously increasing. Therefore, these corporate societies
must implement voluminous experimental approaches in order to protect their
intellectual property rights. For this reason, it will come up for the purpose
of intellectual property laws which specifies that“[xiii]
to strengthen intellectual and industrial property system in the Philippines as
mandated by the country’s accession to the Agreement Establishing the World
Trade Organization (WTO).”
The
Association of Southeast Asian Nations (ASEAN) is composed of ten countries,
which includes Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar,
Philippines, Singapore, Thailand and Vietnam. “The ASEAN Working Group on
Intellectual Property Cooperation (AWGIPC) is
the sectoral group responsible for IP issues in the region. It is composed of
the IP offices of the ASEAN Member States. The work of the AWGIPC is based on the
ASEAN IPR Action Plan 2011-2015.”[xiv]
Correspondingly, the ASEAN has just formally launched an intellectual property (IP) portal that
will perform as a core for ASEAN on IP – related issues. It provides:
“The ASEAN IP Portal (www.aseanip.org) was launched today, in
conjunction with World IP Day. Comprising information on ASEAN IP systems,
comparative IP-related data, and web links to ASEAN IP Offices, stakeholders of
ASEAN Member States can now obtain IP information for the entire ASEAN region
via a consolidated platform. This one-stop portal facilitates information flow
within the region's IP knowledge network and enables stakeholders to access
relevant information such as notices and procedures on the ASEAN Patent Examination
Co-operation (ASPEC) – a new work sharing initiative for patent search and
examination in ASEAN, in a more efficient manner. The increased accessibility
to information will help strengthen IP systems of ASEAN Member States and raise
the level of IP awareness in the region.”
“The lack
of physical parameters by which most of these assets can be defined or
identified does not preclude the recognition of their innate value and the need
to protect them from theft or unauthorized use, just like tangible assets. This
is the primary reason for the establishment of IP Offices throughout the
world.”[xv]
Registration
is one of the most important things to accomplish in order to protect the
inventor’s asset. Otherwise, his invention can steal by another person and have
it registered in his name. In this sense, he will be prejudiced by the
invention he have studied and worked hard in a long time without benefiting
from it. But if anyone would like to report an identical innovation, his works
have already been safeguarded in his local territory thus this would prevent
his works from counterfeiting, piracy and infringement. On the other hand, the
creators, owners or authors must first register his invention to the country of
his origin before securing another registration to foreign countries.
Previously,
patent application requires an extensive procedure to determine whether it has
been granted or not. For example, what if the inventor wants to apply his
invention in several countries? How can it be protected? Thus, he has three (3)
choices:
“1. You can file separate patent
applications at the same time in all of the countries in which you would like
to protect your invention (for some countries, regional patents may be
available);
2. You can file a patent application
in a Paris Convention country (one of the Member States of the Paris Convention
for the Protection of Industrial Property), and then file separate patent
applications in other Paris Convention countries within twelve (12) months from
the filing date of that first patent application, giving you the benefit in all
those countries of the filing date of the first application; and
3. You can file an application under
the PCT, which is simpler, easier and more cost-effective than either (a) or
(b).”[xvi]
In the above-mentioned options, Patent Cooperation Treaty (PCT) is the most efficient
way in filing for an international patent application since it has been
simultaneously recognized in different countries where you envisioned applying.
Patent Cooperative Treaty (PCT), which “assists
applicants in seeking patent protection internationally for their inventions,
helps patent Offices with their patent granting decisions, and facilitates
public access to a wealth of technical information relating to those
inventions. By filing one international patent application under the PCT,
applicants can simultaneously seek protection for an invention in 148 countries throughout the world”[xvii] and is also managed by the World Intellectual Property
Organization (WIPO).
In filing
for an application, if an inventor has filed the priority application to his
local territory, he has to wait for another one (1) year before he can file for
a PCT application in another country. This is not a guarantee that he could
attain his international patent protection. Instead, it is commended that the creators,
owners or authors of the works must register his inventions in the country of his
origin before applying to the country where he intended to have his patent
protected before entering the market. This involves filing a separate
application at the national stage, which would occur in thirty (30) or thirty
one (31) months after the filing of the priority application date. In this
phase, he has to think whether to continue his application. Why? Because the
application for each country does not only take a long process, but it would
also require huge amount of money, as he has in need to engage an IP lawyer in
each country to aid him with his application. In this case, the inventor will
be having second thoughts on whether to continue with the application or stick
to his country of origin. Similarly, the inventor must adhere to the rules and
regulations mandated by the treaties since every country has its own patent
law.
For
instance, A, invented an electric wheelbarrow, after registering to his local
territory (Philippines), he decided to apply his patented invention in other
countries such as Singapore, United States of America, Malaysia, Korea and
Indonesia. Therefore, he has to apply in each country and wait for his patent
application to be granted. However, there are certain countries, which do not
examine the inventor’s application that would make it reasonably fast. But then
again, there are also countries that have a strict implementation. Hence, the
officers-in-charge or the committees have to scrutinize the documents and
examine his application on whether the subject of the patent application is
useful, novel and not obvious. This is one of the disadvantages in filing to
foreign countries because ASEAN members are sometimes being discriminated that
would result to slow emerging new products and technologies.
CONCLUSION
With the
ASEAN Intellectual Property Rights Action Plan, 2011 – 2015 will be of great
advantage not only to the multinational companies here in the Philippines, but
also more importantly to the Filipino owners, creators and authors in
pertaining to their inventions as it would be less burdens, since they only
have to file one application to ASEAN region. Nonetheless, “some ASEAN
countries, which require a three-step process to legalize documents:
Notarization; Certification by the Ministry of Foreign Affairs; and Certification
by the consulate office of the respective ASEAN country.”[xviii] This, however, would only be necessary if it
is a prerequisite in selected countries.
This was
articulated in an IPR Action Plan “to help accelerate the pace and scope of IP
asset creation, commercialization and protection; to improve the regional
framework of policies and institutions relating to IP and IPRs, including the
development and harmonization of enabling IPR registration systems; to promote
IP cooperation and dialogues within the region as well with the region’s
Dialogue Partners and organizations; to strengthen IP-related human and
institutional capabilities in the region, including fostering greater public
awareness of issues and implications, relating to IP and IPRs.”[xix]
Furthermore,
it must be pushed in the coming years so that new skills must be completely
recognized internationally. The Philippines must attain to the standards of the
other nations in order for the Filipino inventors to be recognized not only in our
local territory but as well as in other countries. While they reaped from their
creative and intellectual labors, they should be given exclusive rights for the
inventions they have made. Moreover, they must continue to expand their knowledge
on how to make it new so that it may become successful in the future. Accordingly,
these innovations must have a positive reputation that would cultivate an
impact to other citizens and make it as their investments. Besides, ASEAN
countries must adhere to the goals they have created, as it would have been a
competitive advantage to different categories of industries and in order to
fully implement the IP System globally.
“To achieve the 2015 goal of economic
integration, the AWGIPC will build on past accomplishments, intensify the level
of cooperation among AMSs by building on each other’s strengths, and continue
partnering with organizations and institutions in order to move forward
collectively towards a single direction, albeit at varying paces.”[xx]
Thus, without
intellectual property, the creators, owners or authors of the works maybe
contemplated as a common property. Therefore, it would be disregarded as it is
not protected and may not be acknowledged which eventually can suffer lost, as
they cannot be fully compensated. Thus, the query on how Intellectual Property
affects the Association of Southeast Asian Nation, also known as ASEAN, would
be contingent mostly on economic development of every nation. Nevertheless, it
can either play a progressive function in strengthening the creation and
acquisition of the invention or may cause damage by allowing the owners to
monopolize it.
[i] Philippine Constitution, Article
III, Section 1.
[ii] The Civil Code of the Philippines,
Book II, Article 414.
[iii] BRYAN A. GARNER, Black’s Law
Dictionary, pp. 135 and 879, 9th ed.
[iv] World Trade Organization, What are
Intellectual Property Rights?, available at http://www.wto.org/english/tratop_e/trips_e/intel1_e.htm,
last accessed May 26, 2014.
[v] Ibid.
[vi] The Universal Declaration of Human
Rights, Article 27 available at http://www.un.org/en/documents/udhr/index.shtml#a27,
last accessed May 26, 2014.
[vii] Republic Act No. 10055, Sec. 4
(2010).
[viii] Republic Act No. 8293, Part III,
Section 121.1.
[ix] Republic Act No. 8293, Part II,
Section 21.
[x] Republic Act No. 8293, Part IV,
Section 172.1.
[xi]Sally Kane, Trade Secret Law,
available at http://legalcareers.about.com/od/legalspecialties/a/tradesecretlaw.htm,
May 26, 2014.
[xii] ASEAN Briefing, Intellectual
Property Rights Strategies in Southeast Asia: Know Before You Go, available at http://www.aseanbriefing.com/news/2014/02/18/intellectual-property-rights-strategies-southeast-asia-know-go.html,
last accessed May 28, 2014.
[xiii] Mirpuri v. CA, GR No. 114508,
November 19, 1999.
[xiv] ASEAN Intellectual Property Portal,
About AWGIPC, available at http://www.aseanip.org/ipportal/index.php?option=com_content&view=article&id=80&Itemid=294,
last accessed May 28, 2014
[xv] ASEAN Intellectual Property Rights
Action Plan 2011 – 2015, available at http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf,
last accessed May 28, 2014
[xvi] World Intellectual Property
Organization (WIPO), Protecting Your Inventions Abroad: Frequently Asked
Questions About the Patent Cooperation Treaty (PCT), available at http://www.wipo.int/export/sites/www/pct/en/basic_facts/faqs_about_the_pct.pdf,
last accessed May 28, 2014.
[xvii] World Intellectual Property
Organization (WIPO), PCT – The International Patent System, available at http://www.wipo.int/pct/en/,
last accessed May 28, 2014.
[xviii] EY, Trade Secrets ASEAN Economic
Community and Inward Investment, available at http://www.ey.com/Publication/vwLUAssets/Trade_Secrets:_ASEAN_economic_community_and_inward_investment/$FILE/EY-trade-secrets.pdf,
last accessed May 28, 2014
[xix]ASEAN Action Plan, 2011 – 2015,
available at http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf,
last accessed May 28, 2014.
[xx] Ibid.
