Defending the Philippine IP Law system

In a recent conference held at Fordham University in New York entitled "Recent development in and enforcement of Asian IP Law," I was privileged to be invited as the Philippine resource speaker. The invitation came from Prof. Gerald Dworkin, my professor in Copyright Law at Queen Mary College, University of London.

Prof. Dworkin is currently the head of the IP Academy of Singapore. The conference was jointly organized by the IP Academy of Singapore and Fordham Law School. It was a prelude to the prestigious annual International Intellectual Property Law and Policy seminar organized by Fordham Law School.

The conference was a real eye-opener on the level of knowledge of practitioners and the academe on the state of the IP system in different countries worldwide. A speaker from the UK revealed no knowledge of Philippine patent laws. I recall her saying that "no patent laws exist in the Philippines, and if there was one, it is not functioning."

Prof. Dworkin, the moderator, called my attention to clarify the matter. I said that among the Southeast Asian countries, the Philippines is among the first to adopt a patent law system. As early as the Spanish period during the 1800s, a patent system was already in place. The American period in the 1900s introduced US patent laws in the Philippines. As early as 1947, the Philippine legislature passed the Patent Act. The Patent Act was the governing law on patents until 1998 when the Intellectual Property Code took effect. Also, a fairly recent Supreme Court decision involved a patent issue. Hence, I took strong exception to the observation of the UK speaker.

The conference also discussed the issue of countries being listed in the Priority Watch List of the US government (PWL). The PWL is an indication from the US government that a country does not provide an adequate level of protection or enforcement of intellectual property rights. The Philippines continues to be in the PWL.

I reported that the Philippine government has called "unfair" the inclusion of the country in the PWL. Based on press reports, the Secretary of Trade and Industry said that the US simply accepted the claims of the International Intellectual Property Alliance (IIPA) about the rampant piracy in the Philippines, particularly in the area of digital reproduction of audio, video and software compact discs. The Intellectual Property Office likewise expressed disappointment over the decision.

I said in my report that the Philippine Congress enacted laws from compliance with the provisions of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The law providing for the protection of layout-designs (topographies) of integrated circuits was promulgated on Aug. 6, 2001 while the law providing for the protection of plant varieties was promulgated on July 7, 2002.

The Philippine Supreme Court likewise issued new rules on Feb. 15, 2002 giving courts the authority to order the seizure of pirated material without notice to the suspected infringer, as required by the TRIPS Agreements. The Bureau of Customs, on the other hand, issued Customs Administrative Order No. 6-2002 to enhance the country’s existing customs procedures, in conformity with international standards specifically set in the TRIPS Agreement on special border control.

At one point in the conference, a presentation was made on "The Problem of Piracy from a Western Perspective." The speaker highlighted rampant violations of copyrights in countries that include China, the Philippines and Indonesia. With respect to the Philippines, it was reported that 89 percent of the movie CDs in the market are pirated; 40 percent of musical CDs are pirated; 60 percent of business software are pirated; and 95 percent of the entertainment software are pirated. Countries such as Singapore and Hong Kong have comparatively low figures in percentage points.

I had to clarify with the speaker that if a western perspective of piracy is to focus on violations in countries such as the Philippines, China, Indonesia, India etc., the approach is definitely unfair and one-sided. His report should have also taken into consideration efforts of the governments of the said countries in improving their IP system such as the enactment of new laws to conform to international treaties and conventions or improving enforcement of IP rights. While problems in certain areas of enforcing IP laws do exist, it is unfair to just overlook the positive actions taken by governments of these countries.

A participant from China likewise reacted and said something to this effect: "Rome was not built in one day. The fact that your report mentions that an enforcement action took place in China is already a significant development. At least, something is being done about the problem. Give us a few more years and China will be free from cases of infringement."

This conference should give our government another perspective when addressing the problems of piracy in the Philippines. IP rights holders may not appreciate efforts taken by governments of developing countries when these efforts do not result in actual benefit to them, such as a marked improvement in enforcing their rights or simply expediting the registration of their IP rights.

Our government may forever claim it is doing its best to improve the situation. However, and unless the benefits accruing from these government initiatives are realized by the IP rights holders, Philippine resource speakers like myself may end up forever defending the Philippine IP law system before international fora. I pray not.

(Atty. Fider is a partner of Angara Abello Concepcion Regala & Cruz Law Offices. He can be contacted at telephone number 8308000 or e-mail address: [email protected])