“ASEAN Integration on how it affects Philippine Intellectual Property Law”

“ASEAN Integration on how it affects Philippine Intellectual Property Law”

Since the Philippines was granted independence almost all citizens therein aspired and longed for development. This independence would mean a free society bound of course by law and that development would entail a holistic view on social, economic, political aspect. At present and here in the Philippines, Filipinos still want that kind of aspiration that would somehow help him as an individual, the public for being interconnected-with-others and also to the country where he resides. These aspirations he aims to improve or if not to come up with something new so as to create a better society. To put it simple, he aims for this holistic development that is why he thinks of ways and means so as to come up with new things, both tangible and intangible. To expand it further, it is inevitable that other countries or persons would somehow recognized and appreciate the ingenuity of other’s works. These will lead either in two ways, recognition of one works as this will further award the person’s efforts for its usefulness to the public. On the other hand, it will create an injurious effect to the inventor or author of the work as to make his invention or work imitated or copied without his consent. This is the reason why in the Philippines, the congress or law-making body created a law that would somehow protect the rights of an author or an inventor. This is called ‘The Intellectual Property code of the Philippines, as amended’. Under section 2 of the said code it gives its state policy to wit:

“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 as provided in this Act….shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good….and to enhance the enforcement of intellectual property rights in the Philippines.”[i]

This extensive state policy covers not only the rights of each individual towards their inventions but also geared towards the enforcement of these rights so much so that there are certain consequences when one violates these rights. It also takes into consideration the sincerity in making this law a possibility with the assumption that it will have a big effect towards national growth and progress within the Philippines and to this end it will be able to compete with other countries internationally or if not our neighbouring countries. This is the reason why from the state policy of the code it also entices foreign investments so that the Philippines can be able to grow economically and be at par to those highly developed countries like United States. In connection with this, because the Filipino citizens want progression and holistic development, the Philippines, through the direction of Philippine government, have integrated to other countries specifically, with neighbouring countries to further enhance development of the country and be abreast with their Intellectual property laws and incorporate it with the Intellectual Property laws in the Philippines if such law is not yet existing. This integration comes the emergence of the so called Association of South East Asian Nations (ASEAN) where its members are: Philippines, Indonesia, Myanmar, Thailand, Singapore, Brunei, Cambodia, Laos, Malaysia, and Vietnam. It also expands to other countries as well. The existence of ASEAN has its purpose for the reason that “The ASEAN was set up to advance mutual interests in the region, including the acceleration of economic growth, social and cultural progress, and regional peace and stability.”[ii] Indeed, if this purpose is put into action then there will be progressed and development to what the Philippines longs to aim for. Considering its effects to each and every country, there will be growth in economy and progress as far as Intellectual Property is concern. However, still, these aims and agreements, poses a big question as to its advantages and disadvantages.

Under Section 3 of Intellectual Property, it speaks of International Conventions and Reciprocity wherein it considers and takes into account the laws of the Philippines in any other country who is a party to any convention, treaty or agreement in so far as intellectual property is concerned. This is also exemplified in Section 131.1 of the priority right which states that “An application for the 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.”[iii] Since there is this reciprocity, Filipino citizens will have his rights enforceable if he wishes to file his inventions or works to other countries which is of course a party to an agreement, convention and treaty. The provisions in the Intellectual Property code of the Philippines are not only intended for domestic purposes but also internationally. One should take note that:

 “Intellectual property (IP) is an asset that a person can own, sell, license, or even give away at pleasure.... However, 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…. Protection of intellectual property rights (IPRs) stimulates further creativity and innovation, which in turn spur progress in industries and ultimately leads to national development.”[iv]

Indeed, emergence of Intellectual Property could flourish a country’s economy. In the Philippines, intellectual property has an enormous effect to an inventor, scientist, and even artist such that they are being recognized from the work they made, how complicated the invention is, the greater the recognition and in the end when it will be available to the public, the greater the market value. Also, the greater its usefulness in a country will develop the country better. This is one of the reasons why ASEAN included Intellectual property rights as one of its aims because somehow it would induce a rippling effect of development not only in intellectual property of the Philippines but also to the ASEAN members. But ASEAN members cannot set aside their cultural differences; differences on how each country will view things; their perspective on issues regarding their own country’s development even though they aimed for such in the general aspect. ASEAN members cannot set aside the fact that they want their country to prosper more than any member of the ASEAN. They are guilty of that notion for the argument that, how can one country in the ASEAN be satisfied if one country belonging to the ASEAN is prospering while the other country is not. Somehow, it is a sort of political interest, whims and caprices, rather than genuine political will and vision.

            Furthermore, “ASEAN also recognizes that to encourage foreign direct investments in the region, it needs to ensure the protection and enforcement of IPRs of trading partners”[v] In the Philippines the acknowledgement of foreign investors and its enticement of their investments is being clearly stated not only under Intellectual Property Code but also under Article 12, section 10 of the Constitution as well. Since it is in the Constitution, it must be respected both by Filipino citizens and by foreign country who wish to invest in the Philippines. Moreover, foreign direct investments are investments which are being put to the industries or corporations by way of investments being directly distributed from the country where he sought to invest. This usually happens in the Philippines where some businesses or businessmen enters into a joint venture agreement with other big businesses, usually in the foreign countries, or wealthy businessmen wherein they merge their companies and become partners. Other Philippine industries would let foreigners deposit or lend their monies so much so that they become stakeholders or given a substantial amount that they become stockholders. Whatever may be the reasons, foreign investments is needed in the Philippines because:

            “Given the present state of the economy and the inadequacy of domestic savings, and with the government faced with so many competing demands on its meager financial resources, foreign capital is needed to fill the gap in the country’s investment requirements, and to be able to acquire the technology and managerial expertise needed to survive in the globalized economy we are now in. Since financial aids are not easy to come by, aside from being associated with mendicancy and our country is already heavily burdened with a huge foreign indebtedness, the only option left is foreign direct investment especially in enterprises that significantly expand employment opportunities for Filipinos, promote exports, transfer relevant technologies.”[vi]

            From this it may be inferred that foreign direct investment can be of big help in the economy of the Philippines considering the aspect that it may become a source of income in the country, and an opportunity for employment to some people. Of course, with the coming of foreign direct investments, it is inescapable that domestic corporation will be competing with them and as expected bankruptcy will have its way or if not they will merge to other foreign investors so that their company will survive. In the end, it can be a threat in the Philippine industry that soon not even one business or industry are owned solely by a Filipino because almost all, if not all industries are now with partnership with foreign investors. Another is the practice of unfair competition. Since “many of the patent applications at developing country patent offices are filed by foreign multinational corporations and thus represent foreign ownership of IP.”[vii] This is because a lot of Filipino citizens do not know their intellectual property rights, worse is for those who have less in life. They are being made to believe that their privilege has been taken away from them and only those who are wealthy are given the chance to apply where in fact and in truth their privilege have been removed because of the mandate or procedures of the law which a Filipino citizen does not know for he is not well informed about his intellectual property rights. One concrete example would be a Filipino citizen who has an invention. For the past years, he did not file for an application for the patent of such invention. Now, here comes another individual, Filipino or a foreigner for that matter applying and filing at the Intellectual Property Office an application for a patent over the same invention of the former inventor. The Filipino who applied for such patent has the right to such patent because of the first-to-file rule and to a foreigner under Section 3 of the Intellectual Property Code. Legally, the former Filipino inventor’s rights are not injured. He has no cause of action for he is not complying with the intellectual property code. He is not complying with the requirements and processes of the law. He cannot justify himself that he did not know that there is such application for a patent for under the law ‘ignorance of the law excuses no one for compliance therewith’. It can also be that a foreign corporation will be the one who will file for any application (trademarks or patent) in the Intellectual Property Office in the Philippines and becomes now the owner of such patent or trademark because a Filipino inventor cannot afford to file for an application due to poverty. There are many scenarios that would entail on this matter, this is the reason why through ASEAN, it will provide for the protection of the rights of each member state towards their inventions or work and this rights are hopefully, be enforceable. In the Philippines it is clearly in connection with Section 11.3 and 11.4 of the intellectual property code where it states:

 “Section 11. The Documentation, Information and Technology transfer Bureau shall have the following functions:

xxx          

11.3 Educate the public and build awareness on intellectual property through the conduct of seminars and lectures, and other similar activities;

11.4 Establish working relations with research and development institutions as well as with local and international intellectual property professional groups and the like;

xxx

11.6 promote the use of patent information as an effective tool to facilitate the development of technology in the country;”[viii]

            Through ASEAN Integration, Filipinos would be able to know his rights as far as intellectual property is concerned and will be able to fully equip him with the information concerning his rights towards Intellectual Property. Somehow this will cause a reduction against unfair competition, trademark infringement, and any other forms of unfair business practice. Through the visions of the ASEAN member states, not only the Philippines will somehow protect their intellectual property rights, it will also benefit and give an exclusive right to an inventor or creator of a thing so that he will be able to make use of the thing he invented or created privately. It will also benefit the public since the public can be able use it on a certain period or when the public so demand. Through ASEAN integration, it will also take into “considerations for the preservation and protection of indigenous products and services and the works of their creative peoples in the region.”[ix] This is a noble plan for ASEAN because inventions by creative thinkers no matter how simple as long it serves to be useful will have its recognition and appreciation in the region where it belongs. In the Philippines, consider it a challenge to a Filipino individual to come up with a complicated invention because if the invention is just simple and not attractive in the eyes of the public, surely the invention will turn to naught. Filipino citizens are oftentimes attracted to things which are not the product of their own country just like buying i-phones and other materials which is creative inventions of other countries. Because of ASEAN integration Filipino citizens can now present their invention no matter how simple, as long as it is useful hoping that in their inventions they will be able to get a higher market value of their work. The reason behind this is that one of the aims of ASEAN integration is the free flowing of goods within the 10 ASEAN members which is called ‘Single Regional Market’. “A single regional market means that member states promote trade competition within the region and that restrictions preventing free movement of goods must be eliminated.”[x] Thus, for example, before, if a Filipino citizen wants to file for an application of patent he should file it in the Intellectual Property Office in the Philippines, follow certain requirements for the validity of its application and pay a certain amount of fees. If he decides to file an application for patent to other member states, he may do so and he will still go through the process of filing an application of patent and will still pay another amount of fees. On the other hand under single regional market of ASEAN, if a Filipino citizen wants to file for an application for a patent, he may do so and will still go through the process of filing and will still pay a certain amount of fees but the wonderful thing here is that his application for a patent is now being recognized by ASEAN members so that he will not anymore worry for another filing of an application for a patent and will go through another process and will pay another filing fees. This will saved time and effort in filing for such an application and will also reduce the amount of filing fees. Another is the form of ASEAN to allure inventors over their invention and allow them to have it patented. “ASEAN needs to continuously attract the inflow of cutting-edge technology through patent filings by assuring inventors and innovators that patents granted in any of the AMSs have a high presumption of validity and enforceability. With more patent filings in the region, there will be better opportunity for technological information to eventually be diffused to local businesses, which, in turn, will spur the growth of the technological and innovative capacity of the region.”[xi] Here, it encourages individuals of every ASEAN member states to have their inventions patented so that in the end, every region will have technological growth and their innovative ways developed. However, due to cultural differences, who will decide whether such inventions or innovations are patentable or not. It may be patentable to the Philippines but to other countries not. If a national of the Philippines wants his invention to be patented under this ASEAN concept and this invention is patentable to other ASEAN members but under the Philippines it is not, then other countries will benefit from that invention because for them it is patentable while the Philippines is not simply because it is not patentable which is why “ASEAN needs to continue to participate in discussions in international fora, such as standing committees in the WIPO, and in bodies such as the World Trade Organization, in order to maintain not only national, but more importantly, regional presence and to help ASEAN find its voice in the international IP community.”[xii] This would strengthen more the foundation of IP laws and rights as far as the Philippines is concerned as this would imply a greater knowledge to what is lacking on Philippine IP laws and to further improve the IP laws if there is already an existing law. This will also make the Philippines aware of others intellectual property rights. Considering that knowledge is power, to be able to participate with international forums, the Philippines will be able to widen its horizon towards Intellectual Properties of other countries internationally. The Philippines should not confine only to its own intellectual property codes and rights nor in the ASEAN too. It must also participate in an internationally progressive country. Though ASEAN should participate internationally, there is still the need for ASEAN members to rely on each other in order to strengthen their relationship on each other and promote mutual respect. This is the reason why ASEAN becomes a possibility. Furthermore, because of such dream to have a holistic development “ASEAN continues to acknowledge the important role played by IP in social, technological, and economic progress…. the AWGIPC has designed a unique approach toward regional cooperation which takes into account different levels of capacity of the Member States in development and integration, balances access to IP and protection of IPRs, and responds to the current needs and anticipates future demands of the global IP system.”[xiii] In this ideology, the question arises of what are the means or methods to identify each capacity of the members? If for example, the Philippines and Singapore have some similarities on their intellectual property laws and if basing on economy the Singapore is more progressive than the Philippines then which country will decide or which law will be adopted? Does it mean that one country is inferior to the other or their laws are far richer as that of the other? On the positive side, it will affect the intellectual property laws of the Philippines because the plans of ASEAN through ASEAN working group of IP committee is of great importance, considering that some of innovations being brought about by technology is always changing. Thus, there is the need to foresee what will happen in the near future causing each region to address the matter ahead of time. Just like the IPR Action Plan of 2011-2015 which fortify the matter on IP laws and rights not just in the present moment but also in the future issues that they will be dealing with, both internationally and to each region of ASEAN member states. This affects each members of the ASEAN to attain their goals towards development as far as intellectual property rights and laws are concerned.

            Another is on the matters regarding offices of each ASEAN members. It states that: “Each national office in ASEAN will provide higher quality, efficient, and cost-effective systems to protect IPRs.”[xiv] Through this notion it will protect the rights of each individual towards their invention, to presume that the inventor, owner or author of such creation or invention will be supported by Intellectual Property Office (IPO), after its careful examination of such invention done by the IPO. The quality of such invention is also one of the aspects that ASEAN will have to face. Considering the fact in the Philippines, people are being sceptics after the invention is now being brought to the public for use because of the notion that its reproduction and distribution will be on a low standard. Another is the efficiency and effectiveness so much so that in the Philippines, persons are towards utilitarian views on how this invention might be useful after such is being made known to the public, it can also consider the durability of such invention. By ASEAN views on each national office in ASEAN it would somehow bring forth and strengthen more the trust and confidence of the inventor and the public to the IPO. One comment on the Intellectual Property rights is that “….formal IP rights are often not the most effective way to protect proprietary knowledge. Patents for example, require a long application process and public disclosure of the technological content of the innovation. It is also costly to enforce patents after they are granted.”[xv] In the formal process of IP, it would take a lot time and effort to register your innovation to the extent that if discovered by others, they have the tendency to copy it and reproduce it for the general public, like in the case of pirating in the Philippines which proliferates even though it is subjected to criminal and civil actions. The point here is that others tend to imitate the works of others by a non-IP way of registering it because it gains more of profit for the reason that it is new. On the other hand, those that are in good faith complying from the formal IP registration are left empty handed for their works are already imitated and brought to the public for use thus affecting the potential market value of his work which will be injurious to him. Therefore innovators will become more sceptical of formally registering their innovations.

            With regard to the issues affecting Intellectual Property rights “Espousing a common position on IP issues is increasingly becoming important in the light of the trend for regional cooperation programmes…. Having a single negotiating position is also important to preserve the needed flexibilities of Member States and to ensure that ASEAN does not commit to obligations that would pose difficulties for some Members.”[xvi] Common position would be difficult because region would collate such issues given by AMS knowing fully that the members in the ASEAN are of different laws regarding their different notions in their IP laws and rights. What would be the best interest of one country would be different to the other. IP laws and rights is not only the reason why there is difference, there are also variations regarding other countries’ Intellectual Property law and enforceability or applicability to other countries. There is also a difference in economic development with the 10 ASEAN members. Thus, even though the ASEAN members have one common goal and that is economic development, there will still be a country in the ASEAN that will be far more progressive than other ASEAN members. With this it is difficult to merge what is not capable of merging. Another is that “The ASEAN IP Offices will be stakeholder-centric and will espouse a culture of openness to the publics they serve. Through a culture of openness, the AWGIPC will contribute towards building respect for the IP system in the region, which will encourage more IP owners to bring their businesses to ASEAN.”[xvii] The problem here is the function of ASEAN of the so called non-interference wherein ASEAN members will not criticize publicly other ASEAN members on what it does on its own country. What if one country commented or made a critique on an individual’s invention (as to the Philippines when it says that it is not patentable) and where the individual belongs to other ASEAN member (Cambodia for example). Thus, criticism is a relative word to use in situations where there are different countries involved for it will be possible that such opinion, critique or comments of one country will be a criticism to the other.

            On the matters of disputes, the most common means or method that helps in resolving such issue in Intellectual Property is that of a court trial where courts hear, try and decide a case. Of course, this is also subject to extrajudicial resolutions. In connection with this “the national IP Offices will work with the judiciary and other government institutions to improve the disposition of IP cases that have served as disincentives to IP owners not only in protecting their IP, but also in continuing their trade activities in the region.” Thus, this will help prevent and reduce the clogging of docket fees in the Philippines which is the problem of the said country because there are actually several cases that would involve Intellectual Property disputes like infringement of patent, trademark, copyright and there are also cases which would involve unfair competition or undesirable business practices which are all injurious to the Intellectual property rights of a true owner of such patent, trademark and copyright.  

            From all the foregoing discussion, the ASEAN integration wants to imprint in the minds of the public on the assurance and benefits that they can obtain specifically on the concept of Intellectual Property laws and rights of every member of the ASEAN. It because of its philosophy “Underlying the move towards unity and integration is its new motto: one vision, one identity, one community.”[xviii] However, due to different countries involve in this ASEAN integration it is noticeable that they indeed have different Intellectual Property Laws and rights, have different levels in economic development and have different political views so that one may wonder how this ASEAN integration could be possible. On the concept of Intellectual Property rights, how can they have one common understanding on the matter if from the very beginning ASEAN member states have different law regarding Intellectual property law? Will they be introducing new law, if this is so, what if it contradicts the laws of other ASEAN members, what will inventors or creators of such invention follow if they will file for their application with regard to their invention? Is it their law or the new law of the ASEAN? Lack of public awareness in the information of Intellectual property and poverty of some inventors or creators have also brought hindrances towards economic, political and social development which is the very aim of ASEAN member states. This is why “ASEAN needs to keep track of international developments in IP and determine what best practices can be adopted at the regional level.”[xix] By this remarkable intention ASEAN member may open its doors towards development as far as Intellectual Property is concerned. It can also strengthen what already exists under their Intellectual Property laws or rights and if international law on Intellectual Property is not yet known by the ASEAN members, they may incorporate it with their laws subject to its suitability. In the Philippines, it can have a great impact towards fighting disputes on intellectual property matters and let the inventors and the public know their rights.

           

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[i] Republic Act No. 8293, Sec. 2 (2009).

[ii] WiseGeek, What Is ASEAN, available at http://www.wisegeek.org/what-is-asean.htm (last accessed May 17, 2014).

[iii] Republic Act No. 8293, Sec. 131.1 (2009).

[iv] Ecap-project, 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 19,2014).

[v] Ibid.

[vi] HECTOR S. DE LEON, Textbook on the PHILIPPINE CONSTITUTION, p541, 2008 ed., 2008.

[vii] WIPO-ASEAN STUDY The Strategic Use of Intellectual Property to Enhance Competitiveness in Select Industries in ASEAN, available at http://www.wipo.int/export/sites/www/freepublications/en/intproperty/953/wipo_pub_953.pdf (last accessed May 19, 2014).

[viii] Republic Act No. 8293, Sec. 11 (2009).

[ix] Ecap-project, 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 19,2014).

[x] ALEX FERDINAND S. FIDER, Regional Agreement Affecting Intellectual Property Protection in ASEAN, available at https://www.aippi.org/download/reports/forum/forum09/12/ForumSession12_Presentation_Fider.pdf (last accessed May 19, 2014).

[xi] Ecap-project, 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 19,2014).

[xii] Ibid.

[xiii] Ibid.

[xiv] Ibid.

[xv] WIPO-ASEAN STUDY The Strategic Use of Intellectual Property to Enhance Competitiveness in Select Industries in ASEAN, available at http://www.wipo.int/export/sites/www/freepublications/en/intproperty/953/wipo_pub_953.pdf (last accessed May 19, 2014).

[xvi] Ecap-project, 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 19,2014).

[xvii] Ibid.

[xviii] Han Feng, Cheng Ji, Yuan Bo, Zhang Xuegang , Shen Shishun , Liu Lin, Li Huimin, Xiong Wei, ASEAN Integration and Its Effects, available at http://carnegieendowment.org/2008/11/28/asean-integration-and-its-effects/1t6j (last accessed May 19,2014).

[xix] Ecap-project, 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 19,2014).