ASEAN INTEGRATION: HOW IT AFFECTS INTELLECTUAL PROPERTY
INTELLECTUAL PROPERTY LAW: BRIEF INTRODUCTION.
We use to have many ideas that cross our mind all the time accidentally, and/or intentionally. The best example for this is due to our expression, work or profession, whether in writing, painting, drawing, inventing, composing, innovating, etc. And we wanted this to be protected because it is our own creation, and we don’t want such to be copied or used by other people without consent from us, right? And that is the simplest way to explain why the Intellectual Property Right was created and how important it is for us, as an individual, as an entity or as a country.
Republic Act No. 8293 or the “Intellectual Property Rights of the Philippines is the governing law regarding this matter, which took effect January 1, 1998. It’s primary purpose – to protect Intellectual Property.
RA No. 8293 was amended by Republic Act No. 10372 (mostly on the provisions of the Copyright).
Below is the declaration of the State Policies on Intellectual Property, as stated under Section 2:
“Section 2. Declaration of State Policy. – 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.”
The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good.
It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines. (n)”
It is clear as stated above that the Philippines is recognizing the importance of IPL for the development, more so on the economy of one country.
In addition, the Philippines recognizing as well the importance of International Conventions and Reciprocity with other neighboring countries as stated under Sections 3 and 231 respectively 1:
“Section 3. International Conventions and 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 to which any owner of an intellectual property right is otherwise entitled by this Act. (n)”
“Section 231. Reverse Reciprocity of Foreign Laws. – 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. (n)” 1
ASEAN: INTEGRATION
As we all know, the Philippines is under the developing country category. And in order for our country to enhance competitiveness around the world, we are in urge and want to be aligned with developed countries. Compare to the latter who usually used to easily adapt on fast-pacing changes, it is unfortunate that we cannot do the same, there’s so much that we need to improve and develop on in many aspects, such as in trade, transport, infrastructure, etc. Our failure to resolve issues on these really affects our very slow economy. To add, the laws, rules and regulations that supposed to be implemented and yet to avail none.
I will set an example in trade aspect – the importation and exportation for it is related to my profession as a Licensed Customs Broker and I must say I know how it works.
Smuggling is one of the main problems of the Bureau of Customs, we are losing so much revenue we supposed to collect due to the importers. One instance of committing smuggling is importing of fake or imitation of branded items/products. Definitely it is prohibited and should not be allowed to be sold here for it affects the market and sale of the original ones. Unfortunately, there are some corrupt government officials under the BoC who are being paid to allow the entry of these unwanted products.
In order for us to be competitive and to be trusted by other countries to make trade agreements, we must change our systems first. In the present administration, we are somehow seeing the changes we wanted in our country, one of which is fighting corruption which is one of the reasons of above cited issue. The Department of Finance with the extended help of the Bureau of Internal Revenue, they are now screening all the legitimate Importers and Customs Brokers, by checking their records and backgrounds before allowing to import (for Importer) and release shipment (for Customs Broker).
This is just one side of the IPR issues we face in the country.
There’s so much to be done, but the Philippines is up for the change.
But before we can be harmonized with the develop countries, it is better for us to work hand in hand and to be integrated first with our neighboring countries – the ASEAN Countries. This is to ensure that we are going to have a long term or better, a permanent strong relation and penetration these countries who also had the same vision for their respective countries. Association of South East Asia Nation or ASEAN are composed by Malaysia, Thailand, Singapore, Laos, Indonesia, Cambodia, Brunei, Vietnam, Myanmar and the Philippines.
Below is an overview of the history of integration being taken by the ASEAN countries, in order to be competitive and harmonized with developed countries in the near future:
“Since its inception in Bangkok in 1967, ASEAN has steadily evolved from being a loose forum for exchanging official views to an organization with stronger bonds and a distinct identity underpinned by the unique “ASEAN” way. Despite the limitations of the non-confrontational and “consensual” nature of ASEAN, it has moved forward on many issues, particularly regional security. One benefit of the “ASEAN way” has been the cohesion and solidarity developed among the Member States. In this context, it is but logical that ASEAN leaders also looked to establish an ASEAN community (Yap and Medalle 2008).
Thus, at the Bali Summit held in October 2003, the ASEAN Leaders decided to establish the ASEAN Community by 2020, including the ASEAN Economic Community (AEC), under the Declaration of ASEAN Concord II. At the 12th ASEAN Summit held in January 2007, the ASEAN Leaders committed to accelerate the establishment of the ASEAN Community, including its AEC pillar, to 2015. They then adopted the AEC Blueprint at the 13th ASEAN Summit held later that year, to serve as the master plan to guide the establishment of the AEC. The aim was to “transform ASEAN into a single market and production base, a highly competitive economic region, a region of equitable economic development, and a region fully integrated into the global economy.” In addition in presenting then vision of an AEC, the AEC Blueprint also identified work plans and strategic schedules to guide the establishment of the AEC. Box 1 shows the key characteristics / pillars of the AEC Blueprint. Each characteristic / pillar consists of several core elements, with each core element having its own objectives, action plans and strategic schedules. The end goal of economic integration by 2015 is to be accomplished in 4 stages: 2008-2009. 2010-2011, 2012-2013, and 2014-2015.
Box 1. Four key characteristics / pillars and core elements of the AEC Blueprint. 2
A1. Free flow of goods (9 Strategic approaches) A2. Free flow of services (3 Strategic approaches) A3. Free flow of investment (5 Strategic approaches) A4. Free flow of capital (7 strategic approaches) A5. Free flow of skilled labor A6. Priority integration sectors A7. Food, agriculture and forestry
B1. Competition policy B2. Consumer protection B3. Intellectual property rights B4. Infrastructure development (10 strategic approaches) B5. Taxation B6. E-commerce
C1. SME development C2. Initiative for ASEAN Integration
D1. Coherent approach toward external economic relations D2. Enhanced participation in global supply networks |
As above cited, Intellectual property right is part of the AEC Blueprint:
“A key component under the AEC Blueprint’s competitiveness-related measures is Intellectual Property Rights (IPR). 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.
The MTR thus included a survey of private sector firms on IPR. In particular, the survey aimed to generate knowledge from actual users on intellectual property systems, particularly of trademarks, on their perception on the administration of patent offices, as well as their international application.
In the Philippines, Intellectual Property Rights (IPR) is administered by the Intellectual Property Office of the Philippines (IPOPHL) by virtue of Republic Act (R.A.) no. 8293 enacted in 1998, otherwise known as the Intellectual Property Code of the Philippines. The office is composed of six bureaus: Bureau of Patents; Bureau of Trademarks; Bureau of Legal Affairs; Documentation, Information and Technology Transfer Bureau; Management Information System and EDP Bureau; and Administrative, Financial and Personnel Services Bureau. Its main office is located in Taguig City, it has 8 satellite offices throughout the country. IPOPHL is a separate independent agency under the Department of Trade and Industry (DTI). Previously, the IP system in the Philippines was administered by DTI’s Bureau of Trademarks, Patents, and Technology Transfer.” 3
ASEAN IPR ACTION PLAN:
“The AWGIPC (ASEAN Group on Intellectual Property Cooperation) has served as a consultative body for ASEAN cooperation on IP since 1996. Such cooperation has continued to build on the simplification, harmonization, registration and protection of IPRs in ASEAN.
In meeting the scheduled commitments under the ASEAN Blueprint, a series of country and regional studies on the economic contribution of copyright industries have been conducted in AMS. Meetings have also been convened on accession to the Madrid Co-operation (ASPEC) and the ASEAN “IP DIRECT”. In addition, concerted efforts have been made by the AWGIPC to share policy experiences and to monitor regularly, the TRIPS compliance of laws and regulations in AMS.” 4
Also,
“This Action Plan identifies five strategic goals that will contribute to the collective transformation of ASEAN into a competitive region with the use of IP. With this new plan, acting as leads for initiatives that will be more focused and with specific deliverables that will move the region closer to its goal. The AWGIPC will ownership and accountability by AMSs of the projects to be undertaken and heightened collaboration in the implementation of regional activities and projects.” 5
I have read the research study that recognizing the good quality of our IP system as one of the effective IP system among ASEAN members:
xxxxxxx
“Other ASEAN member states which is viewed has an effective system in trademark registration are Philippines and Malaysia. Philippines is also a member of Madrid Protocol. Thus, the trademark owner who has registered in the Philippines will get protection in several countries simultaneously.
Furthermore, trademark protection in the Philippines is regulated by Republic Act No. 8293 Intellectual Property Code. The Philippines IP office provide system of “trademark search and trademark online” so that it allows the applicant search trademark database and register through online filing system.” 6
xxxxxxx
EFFECT:
Although I’ve read some articles that stating some flaws on the strategic plans on IPR system, and there’s a lot of rooms need for improvement or there are some areas that has not been addressed that will give no effect on implementing the integration, still, I believe that it will give a good credit for its member states for taking the step to move forward to attain further growth, the want to be recognized globally. Whatever will be its flaws, for sure it will be cited and be resolved. It is not that easy to implement a balanced IP system for all member states for it has its own capacity, system and level of development
Below is worth quoting to describe the effect of the integration:
“ xxxx (1) to help accelerate the pace and scope of IP asset creation, commercialization and protection; improve the regional framework of policies and institutions relating to IP and IPRs, including 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.” 8
A simple way to put it, is that the integration will help streamline the IP system of the member states. It will help to simplify the system which is effective and efficient for all the users.
Although this blog focuses only on IPR, there are also a lot of areas this integration covers, which I think has its connection with IPR. Such as, what I have mentioned above regarding trade, if the NSW (National Single Window) / ASW (ASEAN Single Window) will be fully implemented among our government agencies, there will be no more corruption in terms of importation and exportation, for it all has to be done on-line, the application, the approval, etc.
The ASEAN integration which will be implemented by next year, 2015, is a milestone that will affect its economic growth and recognition around the world.
FOOTNOTES:
- As mentioned by Ernesto C. Salao on his Book “Essentials of Intellectual Property Law”, p. 4
- Philippine Institute for Development Studies (Aldaba et. al.), The ASEAN Economic Community and the Philippines: Implementation, Outcomes, Impacts, and Ways Forward (Full Report) Discussion Paper Series No. 2013-01 (2013), (PDF format) p. 1
- supra, p. 70
- ASEAN Secretariat (Jakarta), ASEAN Economic Community Factbook (February, 2011), (PDF Format), p. 55
- Ecap-project.org,ASEAN IPR Action Plan 2011-2015 FINAL 31 July 2011 (PDF Format), p. 3
- Edy Santoso, et. al., ASEAN’s Lack of Integration in Trademark Registration Related to ASEAN Economic Community (AEC) by 2015, (Vol 18, 2013) (PDF Format), p. 18-19
- supra, p. 16
- Ecap-project.org,ASEAN IPR Action Plan 2011-2015 FINAL 31 July 2011 (PDF Format), p. 1
Technology and the Law Blog: Situational Gray Area of RA 10173 – Data Privacy Act of 2012
Posted on: May 7, 2014
ICT. IMPORTANCE. EFFECT.
To begin this, it is better for us to look back on the reason why the law was passed.
We are now in what many people are saying as “I.C.T. or I.T. generation”, where if not all, most of the details you need or seek is just one click away from obtaining information, better and faster communication. And through this new technology, things are now easy for everybody, whether for individual, for the government agencies and the private sectors. And we cannot deny that this innovation should be adopted by all, in order for us not be left behind, and to have growth in many aspects.
As what the Delta University in Nigeria described it:
“According to Anyakoha (1991), information tenchnology is “the use of man made tools for the collection, generation, communication, recording, re-management and exploitation of information. It includes those applications and commodities, by which information is transferred, recorded, edited, stored, manipulated or disseminated”. Hawkridge (1983) described information technology as a revolution which has pene-trated almost all fields of human activity, thus transforming economic and social life. UNDP (2001) asserts that even if sustainable economic growth facilities the creation and diffusion of useful innovations, technology is not only the result of growth but can be used to support growth and development. xxx At the heart of technology lie two main or branches of technology: computing and telecommunication. The technologies covered are the computer system, Internet / electronic mail (e-mail), mobile phone, and fax machine.” 1
Also:
“Information and Communication Technologies (ICTs) are often associated with the most sophisticated and expensive computer-based technologies. But ICTs also encompass the more conventional technologies such as radio, television and telephone technology. While definitions of ICTs are varied, it might be useful to accept the definition provided by United Nations Development Programme (UNDP): ‘ICTs are basically information-handling tools- a varied set of goods, applications and services that are used to produce, store, process, distribute and exchange information. They include the ‘old’ ICTs of radio, television and telephone, and the ‘new’ ICTs of computers, satellite and wireless technology and the Internet.” 2
But because everything now can be obtain easily and immediately, an individual’s privacy with regards to his/her private information or details are being compromised, can be accessed and can be known to public through exposing it to everyone, most especially to those persons that has the intention to seek one’s information.
Just like my personal experience, I obtained a car loan from a well-known bank, the only bank I had loan with, to my surprise, I started to received calls and text messages relating to money, car, housing and other kinds of loans. At first, I was wondering where and to whom did they get my mobile number, I don’t even have credit cards for I don’t want headache of paying monthly debt and the hustle of plenty of callers following up payments due to them, because that’s what I used to see and hear from my friends and relatives, so I don’t have any. And then I realized, that loan is sort of “SALE” business, once a sales person obtained a target market, he/she will keep the information and will carry it to any company he/she will be employed with. Or, there’s a possibility that they are sharing the information to the other department within their company.
I’m sure that we have no issue in providing our personal information or details to a person or entity, most especially if it is necessary in order to facilitate what we wanted to obtain, such as licenses, and the like. But what is unacceptable is upon giving such informations, it is prone to be exposed by whom we’ve been entrusted by such to anyone.
This is a clear violation of our privacy as being exposed just for the sake of personal gain for their part. And such should be immediately ended up for its unconstitutionality.
CONTITUTIONAL GUARANTEE
As guaranteed by the Constitution, our privacy should be respected. Particularly stated under Section 3, (1) under Article III:
“The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.” 3
This has become the foundation to make this law passed and implemented. Anyone should NOT disclose any information or details of anybody without their consent, even the same has been given to them for a particular matter.
DATA PRIVACY ACT OF 2012, IT’S FRAMEWORK. SCOPE. APPLICABILITY.
In connection with Section 3 (1) of Article III of the Constitution, its Declaration of Policy stated:
“Section 2. Declaration of Policy. – It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications system in the government and in the private sector are secured and protected.”
Section 2 of Data Privacy Act upheld the constitutional guarantee of our privacy in relation to our personal information and details. That such cannot be exposed or disclosed by those entrusted except upon the consent of the data subject (as defined under Section 3 (c)).
The scope of its applicability is stated under Section 4:
“Section 4. Scope. – This Act applies to the processing of all types of personal information and to any natural or juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.
This Act does not apply to the following:
(a) Information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including:
(1) The fact that the individual is or was an officer or employee of the government institution;
(2) The title, business address and office telephone number of the individual;
(3) The classification, salary range and responsibilities of the position held by the
individual; and
(4) The name of the individual on a document prepared by the individual in the course of employment with the government;
(b) Information about an individual who is or was performing service under contract for a government institution that relates to the services performed, including the terms of the contract, and the name of the individual given in the course of the performance of those services;
(c) Information relating to any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit;
(d) Personal information processed for journalistic, artistic, literary or research purposes;
(e) Information necessary in order to carry out the functions of public authority which includes the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. Nothing in this Act shall be construed as to have amended or repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No. 9510, otherwise known as the Credit Information System Act (CISA);
(f) Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and
(g) Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines.”
SITUATIONAL GRAY AREAS.
Section 12. Criteria for Lawful Processing of Personal Information. – The processing of personal information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:
(a) The data subject has given his or her consent;
(b) The processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract;
(c) The processing is necessary for compliance with a legal obligation to which the personal information controller is subject;
(d) The processing is necessary to protect vitally important interests of the data subject, including life and health;
(e) The processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or
(f) The processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.
- What if the Data Subject consented only a particular information, not the whole information provided, will the processing prosper?
Section 16. Rights of the Data Subject. – The data subject is entitled to:
(c) Reasonable access to, upon demand, the following:
(1) Contents of his or her personal information that were processed;
(2) Sources from which personal information were obtained;
(3) Names and addresses of recipients of the personal information;
(4) Manner by which such data were processed;
(5) Reasons for the disclosure of the personal information to recipients;
(6) Information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the data subject;
(7) Date when his or her personal information concerning the data subject were last accessed and modified; and
(8) The designation, or name or identity and address of the personal information
controller;
- In the above cited provision, as stated, these are some of the rights of the Data Subject, and I believe it is given mostly if the Data Subject is a natural person, they more or less doesn’t aware of this Act, and possibly they have no idea what they are entitled to, why not the Personal Information Controller voluntarily inform the Data Subject instead the latter demands for it? Just like Section 16 (b), which is the latter is being furnished of informations. Both are equally important.
Section 20. Security of Personal Information. –
(c) The determination of the appropriate level of security under this section must take into account the nature of the personal information to be protected, the risks represented by the processing, the size of the organization and complexity of its operations, current data privacy best practices and the cost of security implementation. Subject to guidelines as the Commission may issue from time to time, the measures implemented must include:
(1) Safeguards to protect its computer network against accidental, unlawful or unauthorized usage or interference with or hindering of their functioning or availability;
(2) A security policy with respect to the processing of personal information;
(3) A process for identifying and accessing reasonably foreseeable vulnerabilities in its computer networks, and for taking preventive, corrective and mitigating action against security incidents that can lead to a security breach; and
(4) Regular monitoring for security breaches and a process for taking preventive, corrective and mitigating action against security incidents that can lead to a security breach.
- Upon security breach, without knowing the culprit, will the Personal Information Controller be responsible for it? Let’s remember, it is considered one violation, disclosing the information of the Data Subject, only, unintentional.
- There’s no mention here if the Personal Information Controller must inform the Data Subject of such breach.
Section 21. Principle of Accountability. – Each personal information controller is responsible for personal information under its control or custody, including information that have been transferred to a third party for processing, whether domestically or internationally, subject to cross-border arrangement and cooperation.
(a) The personal information controller is accountable for complying with the requirements of this Act and shall use contractual or other reasonable means to provide a comparable level of protection while the information are being processed by a third party.
(b) The personal information controller shall designate an individual or individuals who are accountable for the organization’s compliance with this Act. The identity of the individual(s) so designated shall be made known to any data subject upon request.
- In case of juridical person that has plenty of departments / divisions with one Personal Information Controller, transfer from one department to another with different duties is allowed?
This is vital as this protects our right to privacy. I just hope that this will not be the same as the other laws that was passed and not fully implemented as to its purpose.
FOOTNOTES:
- http://unllib.unl.edu/LPP/ogbomo2.htm
- http://www.unesco.org/education/aladin/paldin/pdf/course01/unit_13.pdf
- Section 3 (1), Article III of the Philippine Constitution
Powerful
Posted on: July 9, 2009
Our generation now, I could say, is very powerful. Also, I feel powerful, it’s like everything now is reacheable in most aspects. Actually, I’m specifically referring to our communication technology, it’s really great!! For me, I feel powerful coz I’ve got the chance to express myself to everybody all over the world, which, I’m doing right now… This is my first time to do my blog and post in here, and it’s quite cool!! hahaha!! Hope I could get use to this asap and enjoy it. ^_^
Hello world!
Posted on: July 9, 2009
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