The Association of Southeast
Asian Nations (ASEAN) was formed in 1967 by Indonesia, Malaysia, the
Philippines, Singapore, and Thailand to promote political and economic
cooperation and regional stability. Brunei joined in 1984, shortly after its
independence from the United Kingdom, and Vietnam joined ASEAN as its seventh
member in 1995. Laos and Burma were admitted into full membership in July 1997
as ASEAN celebrated its 30th anniversary. Cambodia became ASEAN’s tenth member
in 1999.
The ASEAN Declaration in 1967,
considered ASEAN’s founding document, formalized the principles of peace and
cooperation to which ASEAN is dedicated. The ASEAN Charter entered into force
on 15 December 2008. With the entry into force of the ASEAN Charter, ASEAN
established its legal identity as an international organization and took a
major step in its community-building process.
The ASEAN Community is comprised
of three pillars, the Political-Security Community, Economic Community and
Socio-Cultural Community. Each pillar has its own Blueprint approved at the
summit level, and, together with the Initiative for ASEAN Integration (IAI)
Strategic Framework and IAI Work Plan Phase II (2009-2015), they form the Roadmap
for and ASEAN Community 2009-2015.[1]
The ASEAN region is highly
diverse and its transformation as a single bloc with a harmonized set of laws
and procedures in IP has been a challenge. ASEAN continues to acknowledge the
important role played by IP in social, technological, and economic progress. At
the same time, recognizing that for ASEAN to fully utilize the benefits of IP
as a tool that would help the region achieve economic integration by 2015, the
AWGIPC has designed a unique way of contributing to this goal. Instead of
trying to formulate a single set of laws and designing a harmonized regional
system in IP, the AWGIPC has crafted its own means of integrating through a
higher level of cooperation by undertaking programs and activities together,
with AMSs strengthening linkages with each other to improve their capacity, and
participating in global IP structures, subject to the capacity and readiness of
each AMS.
ASEAN will move towards the
agreed goals as a region even while preserving its diversity, without
compromising the varying levels of development of Member States, but charting
for the region a unique brand of an ASEAN IP System. 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.
This Action Plan recognizes the
challenges that continue to face IP Offices in the region, such as modernizing
their office infrastructures and constantly improving their operations, the
struggle with backlogs in both patents and trademarks, the growing need for
work sharing in order to ease workloads. Over the past years, ASEAN has
experienced difficulties in utilizing IP as a tool to develop the innovative
capacity of the region, raise awareness among its nationals so that they could
protect their inventions and creations, and make use of IP to jumpstart
innovation and encourage technological advances in the region.[2]
Intellectual Property Rights in
the Philippines
Intellectual property (IP) has become a
central element in economic and cultural policy in a world in which the source of
wealth is increasingly intellectual, as opposed to physical, capital and which
markets are distributed across the globe. It is as an intangible asset for a
company which has created innovation goods and services to access the global
market.
In this situation, IP policy in
ASEAN countries can also help to incubate a vibrant culture of creativity and
invention for facing global competition in international trade. Furthermore, IP
policy can influence the volume and quality of external trade and investment,
the transfers of advanced as well as proprietary technologies. Thus, IP
creativity is a major determinant of local value added and external
competitiveness. IP protection and enforcement have come to the forefront as a
key international trade issue for many countries including in ASEAN countries.
It is very crucial issue after signing the agreement of establishing the world
trade organization (WTO )where all ASEAN countries are WTO member. WTO
Agreement can be used as an embryo of law umbrella on IPR because it contained
Trade-Related Aspects of Intellectual Property Rights agreement (WTO-TRIPS) in
which sets minimum standards on IPRs protection and enforcement.[3]
It
is expressly stated in the Intellectual Property Code of the Philippines 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.
With the State Policy of the
Intellectual Property Code of the Philippines it aims to protect the rights of
the people who have discovered new ideas and invented things that are
beneficial to society.
However,
it seems that the government is lacking the capabilities to fulfill such goal.
It is one of the issues that our country is facing. Foreign investors are
having second thoughts in investing in the country on the ground that their
investments might not be given the right protection that it needed.
One good example of Intellectual
Property case is Fredco Manufacturing Corporation vs President Fellows of
Harvard College (Harvard University). In this case petitioner Fredco filed for
the cancellation of registration against respondents resident and Fellows of
Harvard College (Harvard University), a corporation organized and existing
under the laws of Massachusetts, United States of America, petitioner alleged
that it is the lawful owner of the name and mark “Harvard’.
The Supreme court ruled against
Fredco. Fredco’s use of the mark “Harvard,” coupled with its claimed origin in
Cambridge, Massachusetts, obviously suggests a false connection with Harvard
University. On this ground alone, Fredco’s registration of the mark “Harvard”
should have been disallowed.
Indisputably, Fredco does not
have any affiliation or connection with Harvard University, or even with
Cambridge, Massachusetts. Fredco or its predecessor New York Garments was not
established in 1936, or in the U.S.A. as indicated by Fredco in its oblong
logo. Fredco offered no explanation to the Court of Appeals or to the IPO why
it used the mark “Harvard” on its oblong logo with the words “Cambridge,
Massachusetts,” “Established in 1936,” and “USA.” Fredco now claims before this
Court that it used these words “to evoke a ‘lifestyle’ or suggest a ‘desirable
aura’ of petitioner’s clothing lines.” Fredco’s belated justification merely
confirms that it sought to connect or associate its products with Harvard
University, riding on the prestige and popularity of Harvard University, and
thus appropriating part of Harvard University’s goodwill without the latter’s
consent.
Section 4(a) of R.A. No. 166 is
identical to Section 2(a) of the Lanham Act,20 the trademark law of the United
States. These provisions are intended to protect the right of publicity of
famous individuals and institutions from commercial exploitation of their
goodwill by others.21 What Fredco has done in using the mark “Harvard” and the
words “Cambridge, Massachusetts,” “USA” to evoke a “desirable aura” to its products
is precisely to exploit commercially the goodwill of Harvard University without
the latter’s consent. This is a clear violation of Section 4(a) of R.A. No.
166. Under Section 17(c)22 of R.A. No. 166, such violation is a ground for
cancellation of Fredco’s registration of the mark “Harvard” because the
registration was obtained in violation of Section 4 of R.A. No. 166.
Second, the Philippines and the
United States of America are both signatories to the Paris Convention for the
Protection of Industrial Property (Paris Convention). The Philippines became a
signatory to the Paris Convention on 27 September 1965. Articles 6bis and 8 of
the Paris Convention.[4]
Another issue that is ranging in
the country is the rampant piracy; it is one of the reasons why foreign
investors are scared in investing in the Philippines. The government has been
trying to eradicate such violation of intellectual property right for quite
some time.
In an article of the Manila Times last May 11,
2014 representatives from the government’s Intellectual Property Office (IPO),
Optical Media Board (OMB), the Philippine National Police (PNP), and the
Philippine Association of the Record Industry (PARI) came together to reinstate
and reaffirm their commitment to curb piracy, illegal cam-cording and other IPR
violations.
Working with the theme “Movies: A
Global Passion,” the government aims to fully protect the integrity of local
and international films by going after vendors of pirated movies and violators
who illegally download films online.
“We are not only using ‘iron
fists’ in reprimanding violators. We are going to the root of the problem by
sitting down in discussion with vendors [of pirated material] and also working
with different schools to discuss the importance of intellectual property,” informed
Dennis Pinlac, the executive director of the OMB in a press conference.
For the public’s information,
there have already been successful convictions of IP violators in the country.
The PARI recently shut down Kickass Torrents (KAT.ph), “a torrent site that
hosts illegal music and film download for free.”
“We filed a case in the IPO
instead of regular courts because we felt that being the agency tasked to
oversee the protection of intellectual property, the IPO would be in the best
position to understand the issues. Just six months later, we succeeded in
taking down the KAT.ph domain name through a temporary restraining order that
IPO granted against Kickass Torrents,”
(Atty. Marivic Benedicto, legal
counsel of PARI.)
ASEAN
Cooperation with the Intellectual Property Rights
The creation, commercialization
and protection of intellectual property (IP) and IP Rights (IPRs) can be a
significant source of comparative advantage for ASEAN companies and a major
driver of regional economic growth and social development.
IP infrastructure and expertise
vary considerably among AMSs. There is a significant gap between ASEAN-6 and
ASEAN-4 (Cambodia, Lao PDR, Myanmar and Viet Nam). Such differences have
implications on the nature and intensity of regional cooperation and technical
assistance needs within ASEAN as well as between different sub-groups of AMSs.
There is a very limited supply of
IP-related skilled and experienced human resources and institutional capacity
in ASEAN. Efforts have been made to implement an “ASEAN-helps-ASEAN” approach
wherever feasible, including the exchange of policy lessons learned by Member
States from signing on to international treaties and implementing programs to
protect IPRs.[5]
IPR protection is the foundation
for building innovative and competitive economic environment. At the same time,
IP system is traditionally a sovereign system and thus can be a challenge for
trade in goods associated with high technology, technological trade, and hence
regional economic integration in general. To overcome this challenge, several
regional blocs (Europe, Andean Community and MERCOSUR) have a common system for
IPR examination, and/or common IPR rules. The ASEAN Intellectual Property Right
Action Plan 2004-2010, and the recent 2011-2015 Action Plan provide the framework
and work program for the advancement of IPR regimes in ASEAN. To this end, ASEAN
has taken regional cooperative measures with several targets including
developing a framework for simplification, harmonization, registration and
protection of IPRs.[6]
With the ASEAN Integration it will
help our government to attract foreign investors and to draw them to trust our
country with respect to their inventions and discoveries. The ASEAN has
provided an Action Plan which identifies five (5) strategic goals that will
serve as framework for its work in the next five years. The implementation of
the activities and the achievement of deliverables identified under each of the
five strategic goals will be monitored and regularly evaluated according to
measurable performance indicators that will be agreed among AMSs.
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.[7]
ASEAN continues to acknowledge
the important role played by IP in social, technological, and economic progress
and regional integration. With this ASEAN IPR Action Plan 2011-2015, 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.
The initiatives and deliverables
identified under each of the five goals of this Action Plan will help AMSs meet
the objectives of the AEC by transforming ASEAN into an innovative and
competitive region through the use of IP for their nationals, and ensuring that
the region remains an active participant in the international IP community and
the world economy. The strategic goals embody a higher level of regional
cooperation with AMSs acting as champions for areas that will be more focused
and with specific deliverables that will move the region closer to its goals of
development and integration.[8]
With the help of the government and
the upcoming ASEAN Integration in 2015 issues concerning intellectual property
rights will be given priority because one of the goals of the ASEAN is to
provide protection of the products of each member states.
REFERENCES:
http://www.state.gov/p/eap/regional/asean/
http://www.aseanip.org/ipportal/index.php?option=com_content&view=article&id=168:asean-cooperation-in-intellectual-property-rights&catid=218:key-documents&Itemid=653
http://dirp4.pids.gov.ph/ris/dps/pidsdps1301.pdf
[1]
http://www.state.gov/p/eap/regional/asean/
[2]
http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf
[3]
http://www.iiste.org/Journals/index.php/JLPG/article/viewFile/8494/8433
[4]
http://sc.judiciary.gov.ph/jurisprudence/2011/june2011/185917.html
[5] http://www.aseanip.org/ipportal/index.php?option=com_content&view=article&id=168:asean-cooperation-in-intellectual-property-rights&catid=218:key-documents&Itemid=653
[6]
http://dirp4.pids.gov.ph/ris/dps/pidsdps1301.pdf
[7]http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf
[8] http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf
