INTELLECTUAL PROPERTY RIGHTS
BY DR. LEONARDO DELIZO, PhD., MSBA, SLH – JHS
CEO & PRESIDENT
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Intellectual property (IP) is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.
Although many of the legal principles governing intellectual property have evolved over centuries, it was not until the 19th century that the term intellectual property began to be used, and not until the late 20th century that it became commonplace in the United States. The British Statute of Anne 1710 and the Statute of Monopolies 1623 are now seen as the origins of copyright and patent law respectively.
History
Main articles: History of patent law and History of copyright law
Modern usage of the term intellectual property goes back at least as far as 1867 with the founding of the North German Confederation whose constitution granted legislative power over the protection of intellectual property (Schutz des geistigen Eigentums) to the confederation. When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they located in Berne, and also adopted the term intellectual property in their new combined title, the United International Bureaux for the Protection of Intellectual Property. The organisation subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations. According to Lemley, it was only at this point that the term really began to be used in the United States (which had not been a party to the Berne Convention), and it did not enter popular usage until passage of the Bayh-Dole Act in 1980.
"The history of patents does not begin with inventions, but rather with royal grants by Queen Elizabeth I (1558-1603) for monopoly privileges... Approximately 200 years after the end of Elizabeth's reign, however, a patent represents a legal [right] obtained by an inventor providing for exclusive control over the production and sale of his mechanical or scientific invention... [demonstrating] the evolution of patents from royal prerogative to common-law doctrine."
In an 1818 collection of his writings, the French liberal theorist, Benjamin Constant, argued against the recently introduced idea of "property which has been called intellectual." The term intellectual property can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears." (1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414). The statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years." In Europe, French author A. Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.
The concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as property does not seem to exist – notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century. The Talmud contains the prohibitions against certain mental crimes (further elaborated in the Shulchan Aruch), notably Geneivat da'at (גניבת דעת, literally "mind theft"), which some have interpreted as prohibiting theft of ideas, though the doctrine is principally concerned with fraud and deception, not property.
Objectives
Financial incentive
These exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of and investment in intellectual property, and, in case of patents, pay associated research and development costs. Some commentators, such as David Levine and Michele Boldrin, dispute this justification.
Economic growth
The existence of IP laws is credited with significant contributions toward economic growth. Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to intangible assets.Template:Http://www.sonecon.com/docs/studies/0807 thevalueofip.pdf "IP-intensive industries" are estimated to generate 72 percent more value added (price minus material cost) per employee than "non-IP-intensive industries".
A joint research project of the WIPO and the United Nations University measuring the impact of IP systems on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth." Other models, such as the Nash equilibrium, would not expect that this correlation necessarily means causation: The Nash equilibrium model predicts that patent holders will prefer to operate in countries with stronger IP laws.[neutrality is disputed] In some of the cases, as was shown for Taiwan after the 1986 reform, the economic growth that comes with a stronger IP system might be due to an increase in stock capital from direct foreign investment.
Criticism
The term itself
Free Software Foundation founder Richard Stallman argues that, although the term intellectual property is in wide use, it should be rejected altogether, because it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion." He claims that the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues" and that it creates a "bias" by confusing these monopolies with ownership of limited physical things, likening them to "property rights". Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term.
Lawrence Lessig, along with many other copyleft and free software activists, have criticized the implied analogy with physical property (like land or an automobile). They argue such an analogy fails because physical property is generally rivalrous while intellectual works are non-rivalrous (that is, if one makes a copy of a work, the enjoyment of the copy does not prevent enjoyment of the original).
Limitation
Some critics of intellectual property, such as those in the free culture movement, point at intellectual monopolies as harming health, preventing progress, and benefiting concentrated interests to the detriment of the masses,[18][19] and argue that the public interest is harmed by ever expansive monopolies in the form of copyright extensions, software patents and business method patents.
Some libertarian critics of intellectual property have argued that allowing property rights in ideas and information creates artificial scarcity and infringes on the right to own tangible property. Stephan Kinsella uses the following scenario to argue this point:
[I]magine the time when men lived in caves. One bright guy—let's call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (e.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies in the face of the first-user homesteading rule, arbitrarily and groundlessly overriding the very homesteading rule that is at the foundation of all property rights.
Other criticism of intellectual property law concerns the tendency of the protections of intellectual property to expand, both in duration and in scope. The trend has been toward longer copyright protection (raising fears that it may some day be eternal). In addition, the developers and controllers of items of intellectual property have sought to bring more items under the protection. Patents have been granted for living organisms, (and in the US, certain living organisms have been patentable for over a century) and colors have been trademarked. Because they are systems of government-granted monopolies copyrights, patents, and trademarks are called intellectual monopoly privileges, (IMP) a topic on which several academics, including Birgitte Andersen and Thomas Alured Faunce have written.
In 2005 the RSA launched the Adelphi Charter, aimed at creating an international policy statement to frame how governments should make balanced intellectual property law.
INTELLECTUAL PROPERTY RIGHTS IN THE PHILIPPINES
Brief Background
Brief Background
The Philippine government has made it a State policy to protect and promote intellectual property rights. This policy was enshrined both in the 1973 Constitution which provides that “the exclusive right to inventions, writings and artistic creations shall be secured to inventors, authors, and artists for a limited period” and in the 1987 Constitution which explicitly mandates that the State shall protect intellectual property. The Philippines became a member of the World Intellectual Property Organization [WIPO] in 1980. It was a signatory to a number of significant multilateral international agreements and treaties for the protection and promotion of intellectual property rights. The first laws protecting intellectual property rights were enacted in the Philippines in 1947, to wit:  Republic Act No. 165 otherwise known as “An Act Creating a Patent Office, Prescribing its Powers and Duties, Regulating the Issuance of Patents and Appropriating Funds Therefor”. Republic Act No. 166 otherwise known as “An Act to Provide for the Registration and Protection of Trade Marks, Trade Names and Service Marks, Defining Unfair Competition and False Marking and Providing Remedies Against the Same, and for other Purposes”. Subsequent to the foregoing, additional laws were enacted and issuances promulgated to further promote and protect intellectual property rights, to wit: Republic Act No. 422 transferring the examination of copyright applications to the Bureau of Public Libraries. Republic Act No. 623 regulating the use of duly stamped or marked bottles, boxes, casks, kegs, barrels, and other similar containers; providing, in the case of foreign applicants, for reciprocity and recognition of their priority rights; establishing, in the case of trademarks, principal and supplemental as well as interference proceedings; extending protection of utility models and industrial designs under the patent system; and providing, in the case of trademark registration, for reciprocity arrangement with other countries. Republic Act No. 5434 providing for a uniform procedure for appeals from the decision of quasi-judicial officers including the Director of Patents. Administrative Order No. 94 [November 20, 1967] creating a committee to review the Philippine patent system and recommend amendatory laws to further upgrade it. Presidential Decree No. 721 creating the Legal Services Division and the Research and Information Division in the Philippine Patent Office. Subsequently, major reorganization of the various Divisions was made in the 1980's. The General Organic Chemistry Division and the ChemicalTechnology Division were merged to form the Chemical Division. The Mechanical-Electrical Divisionwas merged with the Mechanical, Design, Utility Model Division and Electrical Division to form the Mechanical and Electrical Examining Division. Presidential Decree No. 1263 amending Republic Acts Nos. 165 and 166, granting authority to the Philippine Patent Office to increase its fees and to spend a portion of its income for priority projects; exempting indigent inventors who filed their application for patent through the Philippine Inventor's Commission from all fees charged by the Philippine Patent Office; and shortening the period for thegrant of a compulsory license from one hundred eighty [180] days to one hundred twenty [120] daysfrom the date the petition is filed in cases where the compulsory license applied for is on a patented product or process involving any project approved by the Board of Investments [BOI]. Executive Order No. 133 [February 27, 1987] merging the Philippine Patent Office with the then Technology Transfer Board thereby creating the Bureau of Patents, Trademarks and Technology Transfer [BPTTT]. Executive Order No. 60 was issued in 1993 creating the Inter-Agency Committee on Intellectual Property Rights [IAC-IPR] under the Office of the President of the Philippines. Department Administrative Orders Nos. 5 and 6 introduced amendments to the Rules of Practice in Patent and Trademark Cases and the Rules of Procedures of the Technology Transfer Registry effective on March 15, 1993. Republic Act No. 8293 otherwise known as the Intellectual Property Code of the Philippines was enacted and signed into law in 1997. It took effect on January 1, 1998. |
OTHER SIGNIFICANT DEVELOPMENTS
On March 8, 1988, the first issue of the BPTTT Official Gazette was launched.
In 1992, the Philippine Association of Certified Patent Agents [PACPA] was incorporated thereby recognizing and promoting the patent agent profession in the Philippines.
In the same year, the CD-ROM Version of the bibliographic data of registered Philippine patents was introduced.
In 1993, the Kantor-Navarro Agreement was signed as a result of the negotiations between the Philippines and the United States for the purpose of delisting the Philippines from the Priority Watch List of Countries covered by the Super 301 List under the United States Trade Act.
In October of the same year, the Philippine component of the EC-ASEAN Programme on Patents and Trademarks was officially launched thereby strengthening the capability of Industrial Property Offices in ASEAN to administer their respective patents and trademarks systems and to further facilitate the exchange of patent information among ASEAN members. Under this program, a Patent Documentation Center was established in Cebu in 1994.
In 1994, the patent and trademark search and examination procedures were modernized through the assistance of the European Commission. Made available were 2 CD-ROM work stations and a complete set of ESPACE CD-ROM containing the abstracts, first page and full text of the applications filed from 1988 to 1994 with the European Patent Office.
In 1995, special courts were designated by the Philippine Supreme Court to hear cases involving intellectual property rights.
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