Doomed to be Free

How to Make a Living from Music in the Philippines

2013-07-29T17:14:00.000+08:00

Last week, I participated in a WIPO-IPOPHL seminar on 'How to Make a Living from Music'.

The key lecturer was Mr. David Stopps, author of the book with the same name. Stopps has had a long experience in music management in the UK, having worked with some of very best acts in the world like U2, the Police and David Bowie among many others.

What Stopps discussed were both familiar and new. Conceptually, I had been trained to understand copyright and collective management to the closest detail. But Stopps was able to drive the nail home by talking about his real-life experiences and how he witnessed independent artists earn income in so many different ways, as long as intellectual property was respected and complied with.

Stopps discussed how music is placed in advertisements, films, TV shows, video games, apps and others, earning royalty income for the artist and the producer. He also talked about making derivate income from selling merchandise and product placement during shows.

This was very interesting stuff that reminded me of how much time and sacrifice we need to put in to elevate the Philippine music business up to that level.

Mark Thursday Alciso of the Filipino Society of Composers, Authors and Publishers, Inc. (FILSCAP) talked about collective management of copyright and the challenges faced, including the unwillingness of businesses to pay license fees and the confusion caused by having several different organizations collect license fees for different rights over the same music.

Royalty collection also gets harder when one has to deal with large networks or organizations that have a ton of leverage. Artists in the Philippines seldom get paid for the use of their music in films, TV shows or advertisement, a common practice in more developed economies. What ought to be a significant source of income is reduced to zero and a shallow promise of 'artist exposure'... something they would get anyway whether or not they're paid.

Many other concerns were raised like the massive competition we get from foreign acts, the lack of radio airplay and the proliferation of substandard music in the mass market.

In the end, we find ourselves back where we started. If we want this country to be a source of and a hub for great music, we need to make real changes in our understanding and respect for intellectual property and business. No more pushovers. No more compromise. As artists, we mean business.

_____

For those who missed the seminar, you may still benefit from David Stopp's experience by reading his book, published by the World Intellectual Property Organization (WIPO):

Download the PDF version of David's book from the WIPO Website

Pinoy Blogfest 3.0

2012-09-20T14:26:00.000+08:00

Plagiarism & Copyright Infringement: Do They Apply to Legislative Speeches?

2012-08-18T12:32:00.000+08:00

During the legislative debates on the Reproductive Health Bill in the Philippines, a certain Senator delivered a speech containing passages lifted from an American health blog.

The blogger found out about this and accused the Senator and his staff of plagiarism and copyright infringement.

So what is plagiarism? What is copyright infringement? Allow me to repost an old guide for you here:

Plagiarism is the use of another person's work without proper citation or credit. Copyright infringement, on the other hand, is the use of another person's copyright-protected work without permission.

In this particular case, the Senator and his staff failed to do both. They did not cite their sources and they did not obtain permission to use the blogger's original post, which is still protected by copyright.

So does the Senator have a good excuse for doing this?

Under the Intellectual Property Code of the Philippines (Republic Act No. 8293), the best defense against copyright infringement is Fair Use:

Section 185. Fair Use of a Copyrighted Work. - 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright.

xxx

In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work.

On the count of copyright infringement, I believe the Senator was able to exercise fair use when he included the blogger's work in his speech because:

a) The use was for a public purpose;

b) the nature of the copyrighted work consisted of scientific data and analyses relevant to the public interest;

c) the amount of the work used may be significant but by nature, data was taken as a whole; and

d) There was no apparent damage to the business or reputation of the blogger.

Having said that, the Senator still stands guilty of plagiarism. He failed to cite his sources and breached a very simple academic and professional precept.

But who can punish the Senator? Plagiarism, being a professional and ethical offense is beyond the powers of any civil or criminal court in the Philippines.

The only bodies that may be able to punish the Senator for plagiarism are:

1) The Senate (can discipline its members);

2) His Alma Mater (may revoke his degree); and

3) Any professional organization that he is a part of (may revoke his membership or discipline him).

Outside of these bodies, the public can only respond through media and through their 2013 votes (the Senator is up for re-election) if they feel strongly enough about the plagiarism issue.

In any case, this is not so much a legal matter as it is a professional one. There is great shame in failing to acknowledge your sources in professional and academic circles. In legislative bodies, however, I know that this is not the first time this has happened. But for some reason, people are taking notice this time.

Optimistically, this is can be seen as an increased demand for government accountability.

Pessimistically, this is just another lobbying tactic to steer attention away from the real debate.

Finally, this whole issue has nothing to do with the medium being used. Works on the Internet are NOT automatically part of the public domain, contrary to popular misunderstanding. All original works are protected by copyright in whatever shape or form they take, subject to very limited exceptions. Remember that the public domain is composed of works with expired copyrights and those that were never protected by copyright. Thus, it consists mostly of very old works of art and literature. Not blog entries.

Is Human Rights Your Business?

2012-08-03T18:48:00.000+08:00

"For the past 33 years, I have looked in the mirror every morning and asked myself: 'If today were the last day of my life, would I want to do what I am about to do today?' And whenever the answer has been 'No' for too many days in a row, I know I need to change something."

- Steve Jobs

I remember back in law school when a commercial law professor told us that a corporation had no obligation other than to make a profit for its shareholders. I was not persuaded then and I strongly oppose the view now.

Profitability might be measured by dollars and cents but getting to the bottom line is more complicated than that. A company may make millions in a few short years while depleting the resources necessary for its business operations, grabbing a quick buck while leaving communities damaged forever. Industries like mining, gas and lumber have learned this the hard way and few corrections have been made thus far. But if you were to look deeper into the future, you may understand how protecting and preserving communities and their environment will yield long-term, sustainable and meaningful wealth for the company and all its stakeholders (not just its stockholders).

So why do businesses need to protect human rights? Professor John Ruggie of Harvard’s Kennedy School of Government laid down a deceptively simple answer known as the ‘Protect, Respect and Remedy Framework’. This was adopted by the UN Human Rights Council as its ‘Guiding Principles on Business and Human Rights’. The framework highlights three things:

States’ existing obligations to respect, protect and fulfill human rights and fundamental freedoms;
The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights;
The need for rights and obligations to be matched to appropriate and effective remedies when breached.

The elegance of this framework is that it creates no new laws, rights or obligations. It simply combines existing international law and shared general principles to guide us on how to conduct business responsibly.

Forget about Corporate Social Responsibility (CSR) programs, foundations and charities. These are all good and noble but they are always voluntary. Even worse, they have sometimes been used merely as vehicles for tax cuts and good publicity. CSR programs have been abused as a way for the left corporate hand to give publicly while the right hand takes away much more in private. Money spent giving scholarships to a few poor children might have been taken from funds withheld from the company’s laborers, denying them a fair living wage.

The Ruggie Principles hold businesses accountable for all its activities. It does not care about how you spend corporate money for philanthropy but how the business makes money in the first place. With what I like to call ‘Due Diligence Plus’, one is able to monitor basic human rights concerns like labor practices of a company or the environmental impact caused by its business operations. These factors are not limited by local laws but should conform to international standards of human rights protection.

Now, this is not voluntary.

These principles have also been echoed under the ‘Guidelines for Multinational Enterprises’ of the Organization for Economic Cooperation and Development (OECD), in the human rights chapter of the ‘Guidance on Social Responsibility’ from the International Organization for Standardization (ISO 26000), and in the revised ‘Sustainability Framework and Performance Standards’ of the International Finance Corporation (IFC) and are quickly becoming the international gold standard for responsible business.

Businesses are powerful movers of society. They can influence policies, win elections and destroy regimes. Businesses create wealth that can either build great opportunities or attract great evil. This time, we must hold them truly accountable under the toughest human rights standards.

The quicker we learn these principles and adopt them, the quicker we eliminate child labor, human trafficking, war profiteering, environmental damage, displacement of local communities, corruption and unbridled greed. These things are stoppable. I believe this generation has an opportunity to do so.

Read Professor Ruggie's Report here.

Geographical Indications (GI): Tayabas Lambanog

2012-02-24T20:53:00.000+08:00

Marketed as "Philippine Vodka", the VuQo brand lambanog has made it to Hollywood: http://www.abs-cbnnews.com/lifestyle/02/24/12/filipino-vodka-makes-it-oscar-gift-bags

Priced at $24 (about P1,032) a bottle in California, very few Filipinos will get to enjoy this beautifully assembled product in its final form. But in essence, we Filipinos of legal age all know this to be the Tagalog lambanog or more specifically, the Tayabas Lambanog.

Lambanog is a powerful liquor created from the fermented nectar of the coconut flower. This nectar is then distilled and collected as Lambanog. The final product is a clear white liquid containing around 20% to 40% alcohol (40 to 80 proof) and is drank on its own or mixed with tropical fruit juices like mango, calamansi, lime, orange or pineapple.

So how did this P200 per gallon power liquor turn into a luxury? Simple. Proper intellectual property management and marketing.

First, the VuQo brand was developed and registered as a trademark. This allows the producer to have exclusive intellectual property rights over the brand and market it freely without the fear of counterfeits.

Second, the producer packaged the liquor with elegantly-designed, world-class frosted bottles. This adds class and mystique to an otherwise unromantic ordinary drink. The bottles themselves are protected by industrial design intellectual property rights.

Third, the producer highlighted the Philippine origin of the liquor, making it exotic, unusual and exciting to the American market. The indication of origin itself may be used as a brand and helps improve the marketability of a product as authentic.

Finally, the story of how lambanog is made and the cultural rituals associated with the drink is spread to promote the authenticity and tradition attached to the drink. These traditional stories become part of the product and part of the experience. Traditional knowledge over the creation of the product, its history and rituals may be protected as intellectual property.

These strategies used helped transform this simple barrio drink into a young celebrity among the drinks of the world.

Back home, the Philippine government and private industries are working hard to set standardized practices for the production of lambanog. This way, we will be able to have the Tayabas Lambanog recognized as a Geographical Indication.

A Geographical Indication or GI is a collective brand like Champagne Wine (France), Praewa Silk (Thailand) or Idaho Potatoes (USA) that is commonly used by producers to certify the authenticity of their product. An internationally accepted GI will help products fetch a higher price in the global market because the producers are subjected to strict product standards that guarantee quality.

We hope to establish the Lambanog GI, among other Philippine GIs, in the world market and have our brand stand proudly alongside the Scotch Whisky and the Stolichnaya Vodka.

So we work hard to make this dream happen... but since it's a Friday night, allow me to down my first glass of triple-distilled Tayabas Lambanog with a little calamansi juice. Tagay na!

Healing Hilot: Protecting Indigenous Massage Techniques

2011-10-14T14:59:00.000+08:00

The Dagdagay Hilot is an ancient massage technique that was developed by the indigenous cultural communities (ICCs) of Mountain Province in the Philippines. Here, the masseuse uses uniquely shaped sticks to massage the soles of the feet in order to stimulate blood circulation. This technique is often paired with the use of virgin coconut oil and other herbs. It is believed to be effective therapy for hypertension, hormonal imbalance, depression and stress.

Today, many health spas and massage establishments employ this technique as part of their services. Cropping up alongside them are schools or training facilities that offer to teach these techniques and issue certificates for successful students. Much money changes hands in this industry, yet there has been no reported benefit to the communities of Mountain Province from which these techniques were copied. This is also true for all other indigenous hilot techniques and the communities from which they originate.

Under the Indigenous Peoples Rights Act (IPRA), ICCs have the right to exercise ownership over their health practices, among other things.[1]

The law reads: “they shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations…”

Unfortunately, this provision presently treated as a mere declaratory statement and it will continue to be one up until the National Commission on Indigenous Peoples (NCIP) shall have properly defined and operationalized these 'special measures'.

A different provision of the law offers more clarity by saying that Community Intellectual Rights (CIRs) may not be taken without ‘Free Prior and Informed Consent (FPIC)’ or ‘in violation of their laws, traditions and customs’.[2]

These rights may be used as a basis for community ownership over a health practice like massage techniques. This community property may then be the subject of a contract for the use of the technique and its name. Franchising this knowledge and brand could be a good and steady source of revenue for a community for as long as there is a properly executed contract, compliant with the dual requirements of FPIC and conformity with the community’s laws, traditions and customs.

Schools and training facilities must also be subject to the quality standards set by the community’s master practitioners. Certificates issued will no longer simply be a result of x number of hours spent in class but an authentic stamp of approval by the communities themselves of the proper application of the technique.

Trademark law can be used to support this business model by registering certification marks that may be used authenticate spas, health establishments or schools that wish to use the community’s brand.

A “DAGDAGAY” certified establishment assures the public of the quality and authenticity of the service being offered while everybody else is prohibited from using the brand or mark. Any violator will then be liable for both trademark infringement and violation of the provisions of IPRA.

This combination of protective measures under IPRA and the Intellectual Property Code can help create a system that would give life to the ideals set by IPRA to protect the cultural integrity of our ICCs and to help them maintain control over and benefit from their knowledge, systems and practices.

Perhaps someday we can enjoy our massages with real peace of mind, knowing that our patronage is helping our indigenous peoples in a very real way.

[1] Sec. 34. Right to Indigenous Knowledge Systems and Practices and to Develop own Sciences and Technologies. - ICCs/IPs are entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights. They shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives of these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge of the properties of fauna and flora, oral traditions, literature, designs, and visual and performing arts.

[2] Sec. 32. Community Intellectual Rights. - ICCs/IPs have the right to practice and revitalize their own cultural traditions and customs. The State shall preserve, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation of their laws, traditions and customs. (emphasis supplied)

Copyright and the Visual Artist

2011-09-20T20:20:00.002+08:00

FOR IMMEDIATE RELEASE

Contact: Precious Leano, FILVADRO Executive Director

Mobile: 0917 828 8690

Email: precious.leano@gmail.com

FILVADRO UPHOLDS COPYRIGHT OF VISUAL ARTISTS

Collective Management Organization to be launched in Copyright Forum at the CCP

The Filipino Visual Arts and Design Rights Organization (FILVADRO), the country’s collective management organization (CMO) for the visual arts, will be launched in a copyright forum at the Cultural Center of the Philippines (CCP) on 22 September, 2-5 pm.

International copyright expert Atty. KT Ang from the Confederation of International Societies of Authors and Composers (CISAC) will speak to visual artists about how to manage the licensing of artworks and how CMOs, with focus on models abroad, support the visual artist’s work. Also speaking during the forum will be Atty. Mark Robert Dy of the Intellectual Property Office of the Philippines who will present the Copyright law including, the national system of Registration.

FILVADRO was organized by key visual artists and cultural workers after a series of consultations was conducted in 2009 by the Intellectual Property Office of the Philippines. Visual artists, including painters, photographers, sculptors, and graphic artists, have stated in the consultations that there is a need for a visual arts CMO that would assert copyright for the individual. An informal survey conducted during the consultations showed that 100% of visual artists who participated in the survey have not received resale royalties.

“FILVADRO acts on behalf of its members to address copyright concerns, mainly the collection of resale rights for artwork sold after the first purchase, the licensing of art images for publication on all kinds of print and digital media, and the reproduction of art on items used for profit and promotion. It will represent artists in the collection of royalties from copyright users and will be able to extend this representation to other countries where FILVADRO has partner CMOs,” said Karen Ocampo Flores, noted visual artist and President of FILVADRO.

FILVADRO has recently signed a sister society agreement with the French La Societies Des Auteurs Dans Les Arts Graphiques Et Plastiques (ADAGP), the oldest visual arts CMO in the world. Likewise, FILVADRO is working closely with BONO, the Norwegian CMO for the visual arts.

FILVADRO was founded by noted artists Alex Baluyut, Yael Buencamino, Tina Colayco, Noel Cuizon, Egai Talusan Fernandez, Karen Ocampo Flores, Emmanuel Garibay, Jeannie Javelosa, and cultural worker Precious Leano. Sculptor and new media artist Josephine Turalba and ceramicist Rita Badillo has recently joined the current Board of Trustees of FILVADRO.

The FILVADRO Forum and Launch is supported by the Cultural Center of the Philippines, Intellectual Property Office of the Philippines, CISAC, and the Norwegian Copyright Development Association (NORCODE).

IRS journeys on to 7

2011-09-12T17:12:00.000+08:00

and just like that... we are back.

School-branded Money

2011-09-07T10:06:00.000+08:00

Good education is good business.

Filipino Brands... Chilling

2011-09-05T15:40:00.000+08:00

Filipino brands can be quite chilling...

This one's for an ice cream stall in Market Market, Taguig City.

The Stylistic Mr. Lee

2011-09-02T13:47:00.001+08:00

Clearly, our trademark system has failed.

This shop is in Taguig.

iSchools SAPOT develops IP sensitive Content for Students; IPO status Scored

2011-08-11T17:13:00.000+08:00

Original article found at:

http://www.ischools.ph/project_updates/ischools-sapot-develops-ip-sensitive-content-for-students-ipo-status-scored.html

by: Kairos Dela Cruz

“Safeguarding the rights of others is the most noble and beautiful end of a human being”.

We all know our rights, sometimes we even overshoot on assuming them. The latter even makes some of us neglect the existence of others and the rights that are intrinsic to them. In cases of violence, people know about their human rights. In cases of trials, even the accused parties have the guts to assume their rights to remain silent. In the cases wherein students duplicate or photocopy resource materials, the Philippines appear to be blatant in transgressing intellectual property issues.

Should this be the case and future of Philippine education? Students stealing to become educated?

iSchools Project says NO.

iSchools Project, a government-funded ICT-education integration program, seeks to educate students not just by giving them free computer laboratories and training workshops; but also by providing them with intellectual property- sensitive educational materials.

SAPOT Participants (institutional/individual partners and project staff) pose for a group pick at Angels' Hills, Tagaytay last July 20-22, 2011.

The project seeks to provide high-quality educational content to the project’s high school recipients through its Content Mapping Initiative (CMI), more popularly coined as Supplementary Academic Philippine Online Treasury (SAPOT). The initiative is part of the project’s thrust in empowering the major stakeholders (teachers, students, and community members) of its recipient schools.

Representatives from iSchools partner institutions meet up with iSchools Project Manager, Toni Torres (in maroon) to insure the smooth flow of SAPOT.

As Toni Torres, iSchools Project Manager, puts it “iSchools Project believes that ICT can propel the Philippine education system but the project will not compromise any values in doing so.

Content, especially in education, comes at a price that not everyone can afford. To help in solving the problem, iSchools would provide free content materials in different subjects, materials that will undergo rigorous academic scrutinizing. Permissions from the “whose” end of these content materials will be coordinated and negotiated by the project”.

In the recent outlining and primary mapping workshop for CMI, iSchools Project joined hands with major academic, cultural and legal institutions at Angels’ Hills, Tagaytay City last June 20-22, 2011. Among the many subject matter experts, Atty. Mark Dy of the Intellectual Property Office (IPO-Phils.) was given the chance to explain the need and implications of insuring that CMI would not transgress any level of the intellectual property rights of the proponents of the content materials that the initiative wishes to include in the final content map.

According to Atty. Dy, “Respect for intellectual property is a strong indicator of quality creative & educational content. Designing world-class educational material always includes proper referencing, attribution and copyright clearance for all the components used in the project. This way, credit is given to those who deserve it and the entire project is kept fresh and original”.

iSchools SAPOT will distribute the content materials to project recipient high schools tentatively through three major media- an online portal, portable external hard disk, and a magazine-type catalog. All of these materials will be distributed free of charge.

Atty. Mark Dy from the Intellectual Property Office (IPO) briefs SAPOT participants about the possible IP implications of the initiative.

During Atty. Dy’s lecture he came across why initiatives such as SAPOT are pushing a holistic change for intellectual property in the Philippines. iSchools SAPOT is one of the first of its kind but it would not be the last of iSchools’ attempts in bridging the digital divide.

“The creative, scientific and academic communities must demand greater institutional support for copyright in the Philippines if we want our creative content to flourish. Senate Bill 2487, once passed into law, will create the Bureau of Copyright under the Intellectual Property Office, dedicated to copyright policies and programs. Presently, our Intellectual Property Office only has an ad hoc team composed of two lawyers and about 10 support personnel manning the entire copyright system of the country. In contrast, South Korea has about 800. We urge everyone to support the passing of Senate Bill 2487 and lift Filipino creativity to the very top”, Dy added.

Attributing the author with due recognition is a basic in respecting intellectual property; here is an example.

Khalil Gibran, an internationally acclaimed philosopher, and author may sound too noble and too ideal when he published the opening line. In all honesty, maybe the world can use a little of this nobility and idealism.

Jollibean

2011-08-08T17:03:00.000+08:00

from www.jollibean.com

Yes, Singapore copies too.

I don't know the real story... whether Jollibee has ever tried to sue or whether they can even win this case.

This can certainly be an interesting debate about protecting well-known Filipino marks.

If Jollibee can't be protected as THE well-known mark, then all others might as well be lost in overseas commerce.

Have a cup of Jollibean while you think about it...

from www.jollibean.com

Breaking the Myth in Taguig City

2011-08-02T16:51:00.000+08:00

It's not every day that we get the chance to come to terms with our own humanity and mortality in a very real way.

In resistance to all the philosophical, moral & religious debate clouding the matter, I invite everyone to go and see the exhibit called The Myth of the Human Body housed at the Neobabylon Building in Taguig City, Philippines.

The exhibit exposes the complex beauty of the human body and the appalling horrors caused by our failure to respect it.

photo from Wikipedia.org

Through plastination, a modern mummification technique developed by German doctor & scientist, Gunther von Hagens, the designers of this exhibit can give us the ultimate biology lesson.

Real human bodies and body parts, preserved in their pristine appearance, show the different systems of the human anatomy and how each part functions, develops and deteriorates.

Categorized according to different Greek deities (e.g. Zeus for the nervous system, Eros for the reproductive system, etc...), the designers cleverly immersed the entire exhibit into the myth it ultimately seeks to destroy.

I personally assure you that you will leave that building changed. All the books you ever read, all the documentaries you ever saw, all you ever knew about your own body cannot stand in comparison to the two-hour experience in that fascinating place.

Upon exiting the building, I just thought to myself, "God, I'm glad I quit smoking."

N.B. Out of respect for the dead, cameras are prohibited inside the building. Just as well... you'll have to see the exhibit yourself.

Shangri-La Restaurant Lives

2011-07-30T14:13:00.000+08:00

Shangri-La Restaurant in Times Street, Quezon City, Philippines

From the trademark-junkie favorite Shangri-La International v. Developers Group (G.R. 159931, March 31, 2006 and January 22, 2007) case.

_____

Read the two Shangri-La cases in the Philippine Supreme Court here:

first case:

http://www.lawphil.net/judjuris/juri2006/mar2006/gr_159938_2006.html

second case:

http://www.lawphil.net/judjuris/juri2007/jan2007/gr_159938_2007.html

Diner Dash in the Flesh

2011-07-30T12:57:00.000+08:00

Copyright & Trademark Infringement in One Strike

spotted along Bayani Road, Taguig City, Philippines

Guidelines on Copyright Registration and Deposit

2011-07-04T15:33:00.024+08:00

The Copyright Registration and Deposit System (CoRDS) of the Intellectual Property Office of the Philippines (IPOPHL) will be operational by July 14, 2011. You may then begin registering your copyright-protected works at IPOPHL or any of our ten IP Satellite Offices.

The Guidelines have been published online today at the IPOPHL Website.

You may download a PDF copy of the Guidlelines here.

Copyright is the legal protection over an original literary, scholarly, scientific or artistic work. Registration is not necessary to gain copyright-protection but your registration certificate may serve as evidence of such protection. Registration is also needed to complete the records of the National Library of the Philippines (NLP).

To learn more about copyright and how to protect your original creations, you may email me at markrobertdy@gmail.com

Philippine Jurisprudence: The Skechers Trademark Case (2011)

2011-05-19T11:14:00.009+08:00

Skechers, USA, Inc. v. Inter-Pacific Industrial Trading Corp.

G.R. No. 164321 (2011)

Skechers, USA Inc. is the owner of the registered trademarks “Skechers” and “S within an oval logo”.

Skechers filed a criminal case for trademark infringement against several store-owners that were selling shoes branded as “Strong” and bearing a similar “S” logo. The Regional Trial Court (RTC) issued search warrants, allowing the National Bureau of Investigation (NBI) to raid the stores and confiscate 6,000 pairs of shoes.

The accused moved to quash the warrants, saying that there was no confusing similarity between the “Skechers” and the “Strong” brands.

The RTC granted the motion to quash and ordered the NBI to return the seized goods. The court said that the two brands had glaring differences and that an ordinary prudent consumer would not mistake one for the other.

On certiorari, the Court of Appeals (CA) affirmed the RTC ruling.

The matter was elevated to the Supreme Court (SC).

Issue: Did the accused commit trademark infringement?

Yes, the accused is guilty of trademark infringement.

Under the IP Code (RA No. 8293), trademark infringement is committed when:

Remedies; Infringement. — Any person who shall, without the consent of the owner of the registered mark:

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or

155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth: Provided, That the infringement takes place at the moment any of the acts stated in Subsection 155.1 or this subsection are committed regardless of whether there is actual sale of goods or services using the infringing material. (emphasis supplied)

There is trademark infringement when the second mark used is likely to cause confusion. There are two tests to determine this:

1. Dominancy Test – the court focuses on the similarity of the dominant features of the marks that might cause confusion in the mind of the consumer. Duplication or imitation is not necessary. Even accidental confusion may be cause for trademark infringement. More consideration is given to the aural and visual impressions created by the marks on the buyers and less weight is given to factors like price, quality, sales outlets and market segments.

Applied to this case: The SC found that the use of the “S” symbol by Strong rubber shoes infringes on the registered Skechers trademark. It is the most dominant feature of the mark -- one that catches the buyer’s eye first. Even if the accused claims that there was a difference because the “S” used by Skechers is found inside an oval, the fact that the accused used the dominant “S” symbol already constitutes trademark infringement.

The SC disagreed with the CA reasoning that the “S” symbol is already used for many things, including the Superman symbol. Even if this is true, the fact that Strong used same stylized “S” symbol as that of the Skechers brand makes this a case of trademark infringement. The same font and style was used in this case. The Superman “S” symbol is clearly different from the “S” in this case.

2. Holistic or Totality Test – the court looks at the entirety of the marks as applied to the products, including the labels and packaging. You must not only look at the dominant features but all other features appearing on both marks.

Applied to this case: Both RTC and CA used the Holistic Test to rule that there was no infringement. Both courts argued the following differences:

The mark “S” found in Strong Shoes is not enclosed in an “oval design.”

The word “Strong” is conspicuously placed at the backside and insoles.

The hang tags and labels attached to the shoes bears the word “Strong” for respondent and “Skechers U.S.A.” for private complainant;

Strong shoes are modestly priced compared to the costs of Skechers Shoes.

Also using the Holistic Test, the SC corrected the lower courts and ruled that the striking similarities between the products outweigh the differences argued by the respondents:

Same color scheme of blue, white and gray;

Same wave-like pattern on the midsole and the outer sole;

Same elongated designs at the side of the midsole near the heel;

Same number of ridges on the outer soles (five at the back and six in front);

Same location of the stylized “S” symbol;

The words "Skechers Sport Trail" at the back of the Skechers shoes and "Strong Sport Trail" at the back of the Strong shoes, using the same font, color, size, direction and orientation;

Same two grayish-white semi-transparent circles on top of the heel collars.

The features and overall design of the two products are so similar that there is a high likelihood of confusion.

Two products do not need to be identical, they just need to be similar enough to confuse the ordinary buyer in order to constitute trademark infringement (Converse Rubber Corporation v. Jacinto Rubber & Plastic Co., 186 Phil. 85 [1980]). Also, the difference in price cannot be a defense in a case for trademark infringement (McDonald’s Corporation v. L.C. Big Mak Burger, Inc., 480 Phil. 402, 434 [2004]).

There are two types of confusion:

Product Confusion – where the ordinary prudent purchaser would be induced to purchase on product in the belief that he was buying another.
Source or Origin Confusion – although the goods are different, the use of the mark causes the consumer to assume that both products originate from the same source.

Trademark law protects the owner not only from product confusion but also from source confusion. Protection is not limited to the same or similar products but extends to all cases where:

The consumer is misled into thinking that the trademark owner extended his business into a new field;

The consumer is misled into thinking that the trademark owner is in any way connected to the infringer’s activities; or

The infringement forestalls the normal potential expansion of the trademark owner’s business.

Trademark law does not only protect the owner’s reputation and goodwill, it also protects the consumers from fraud and confusion.

In this case, it is clear that there was an attempt to copy the trademark owner’s mark and product design. In trademark infringement cases, you do not need to copy another's mark or product exactly. Colorable imitation is enough.

An Important Letter to Anvil Publishing

2011-04-26T13:40:00.011+08:00

Dear Ms. Galvez & Anvil Publishing,

Greetings.

My name is Mark, a creative industries lawyer working for the Intellectual Property Office of the Philippines (IPOPHL).

Last April 15, 2011, at the World Book and Copyright Day held at the UP Technohub, I bought a book from you entitled 100 Kislap by Abdon M. Balde, Jr. Since Mr. Balde was beside me during that time, I took the opportunity to have him personally sign the copy that I bought.

While talking to Mr. Balde, I absentmindedly grabbed the wrong (unsigned) copy of the book and took it home with me.

The following day, I received a text message from your employee, Nelson or 'Nhyl' Eleda. He informed me that I left my signed copy and offered to deliver the book for swapping at the nearest National Book Store. I thanked him for his efforts and told him to leave the book at NBS Buendia cor. Makati Ave. (the one near the gas station).

This morning, I was able to swap the wrong copy I had for the one signed by Mr. Balde, which I consider personally valuable.

For all these things, I commend Mr. Eleda and thank Anvil Publishing for having such a diligent and customer-centered employee. I appreciate the effort Mr. Eleda took to find my contact number, inform me of my mistake and deliver the book to a place most convenient for me.

I realized that the least I could do was write this letter of commendation to the company for Mr. Eleda's outstanding work. I have never experienced such care and diligence from someone working in this industry. This is the kind of person you want in management. I hope that he will be given that opportunity someday.

On the surface, this may appear to simply be about a P200 book, but for me, it's another story worth telling -- a reminder that there are people out there who do their work excellently no matter how simple they may seem on the outside. There's a lesson here somewhere.

God bless you all and best regards.

Respectfully,

Mark Robert A. Dy, J.D.

P.S. To share this story, I am furnishing Mr. Abdon Balde, Jr. (the author of the said book), Atty. Louie Calvario (Copyright Head of IPOPHL), Atty. Andrea Pasion-Flores of NBDB and Mr. Alvin Buenaventura of FILCOLS.

Gatorade: A cautionary and success story on the importance of having a university IP Policy

2011-02-16T19:57:00.257+08:00

I just came back from a very productive trip to Cebu and Dumaguete. My mission there was to teach university administrators and faculty members about intellectual property rights (IPRs) and why every school should have its own IP Policy.

Conducting Basic Orientation Seminar on Intellectual Property Rights to university administrators and faculty members from different schools all over the Visayan islands.

It was no surprise that there wasn't much accurate knowledge about IPRs floating around. I have been visiting schools all over the country for some time now and the same old recurring theme always comes to greet us: educators need to be educated about their IP rights and those of their students. They need to learn how their copyrights, trademarks, industrial designs, trade secrets, utility models and patents figure into their daily work.

After the basics, we then go into the more difficult task of crafting IP Policies for each individual school, institution or university.

So what is an IP Policy and why is it so important when we already have the IP Code?

IP Policies are rules set by a group, institution or even an individual to govern the ownership, management and transfer of IPRs. It's important for institutions and schools because the people working for them need to know how much of their IPRs they get to keep and how much they need to give up to be part of that group.

Even if the IP Code is sufficient to provide protection of IPRs, the law also leaves us with a wide latitude of contractual freedom so that people and institutions get to decide how IPRs are managed among them. Upon this wide space, institutions need to craft a predictable rulebook on IPRs so that those who create them can manage their expectations as to how much money and credit they will receive for their work.

Universities and colleges are IP manufacturers of the highest grade. It's only a matter of time before that student stumbles upon that formula to destroy that formerly incurable disease or that professor invents human teleportation. What we believe to be science fiction is explored and made real every day in these schools. With such prolific intellectual activity, there is great potential for creation and commercialization of intellectual assets.

The classic success and cautionary story on the importance of IP Policies is the story of how Gatorade came to be.

What we recognize today as the gold standard in sports drinks was created in the laboratories of the University of Florida in 1965 by a team of university researchers, upon the request of Florida Gators assistant coach Ray Graves -- the drink, of course, was later named after the team.

Taken from Wikipedia.org and used for educational & historical illustration only.

This drink was designed to quickly hydrate a player and replenish the carbohydrates and electrolytes lost during physical exertion. The invention was a massive success and was considered to be the tipping point that led the Gators to win their first Orange Bowl championship against the Georgia Tech Yellow Jackets.

Word would then spread to the different schools and the different states and sports teams started ordering Gatorade by the truck. Gatorade was then purchased by the Quaker Oats Company and then by PepsiCo. It would be marketed worldwide and was accepted as the official sports drink of the NFL, the NBA, the NHL and even NASCAR. Today, Gatorade makes roughly a billion dollars in revenue each year. From this, the University of Florida has received $100 million in royalty payments alone. (http://www.gatorade.com/history/default.aspx)

Taken from www.gatorade.com and used for educational & historical illustration only.

So what's the problem here?

Well, for starters, there were several lawsuits concerning the ownership of the Gatorade formula. Because there was no clear IP Policy in place during the time of its creation, the government was said that the researchers had no proprietary rights over the formula because they were using federal money to fund their research. The University of Florida also claimed IP rights over the formula because its facilities were used for its creation.

After the bloody legal battle, a settlement was reached awarding 20% of the royalties to the university.

Indeed, the story seems to end well. But one can't help but wonder how much more the university could have received if it only had an IP Policy in place.

Going even further, could the researchers have had a larger share in the revenue? could the coach who initiated the project have received a small cut? could the student assistants who helped the researchers have received a portion of the rewards or at least credit for the invention?

All these things could have been clarified a school's IP Policy. A mere chapter in the student handbook could have spelled the difference between a million dollars and nothing.

Here in the Philippines, these same questions and conflicts arise every day. Each time a student submits a thesis or dissertation, the faculty member who spent long hours refining the work and advising the student wonders if he or she should get credit for the extra effort. Such credit could have been used to secure a professorial promotion or a study grant had there been a policy in place.

Each time a professor publishes a book that was edited by a team of students, they wonder if they should be credited as co-authors or if they deserve a tiny bit of the royalties as a reward for their work. Such acknowledgement could have been included in the student's CV, giving him or her a chance at better employment and further studies.

Fair is only fair if you agree upon a set of rules before playing the game. People working in a university setting miss so many opportunities to improve their careers, their portfolios and their incomes because no IP Policy exists to manage their rights. I have been a victim of this. If we had an IP policy when I was still in college and law school, I could properly claim to be an author of at least three books. Right now, I don't even know what rights I have over my thesis.

We have been travelling the country from Baguio to General Santos City and have found the response of the different schools to be very encouraging. Today we have over 30 colleges and universities with active IP Policies and 20 others that are drafting theirs. This gold mine is slowly being excavated one school at a time.

Genius is everywhere. We simply have to manage it.

_____

To know more about formulating your own IP Policies, you may email IPOPHL: mail@ipophil.gov.ph

According to 2010 figures, the following schools have active IP Policies:

Aklan State University
Batangas State University
Benguet State University
Bicol University
Camarines Sur Polytechnic College
Camarines Sur State Agricultural College
Carlos Hilado Memorial State College
Central Philippines University
De La Salle University-Manila
Eulogio Amang Rodriguez Institute of Science and Technology
Laguna State Polytechnic University - Siniloan Campus
Mariano Marcos State University
Mindoro State College of Agriculture and Technology
Naval Institute of Technology
Northern Iloilo Polytechnic State College
Northern Negros State College of Science and Technology
Notre Dame University - Mabel
Polytechnic University of the Philippines
Samar State College of Agriculture and Forestry
Southern Leyte State University
Southern Luzon State University
St. Jude College
Tarlac College of Agriculture
Tarlac State University
Technological University of the Philippines
University of Rizal System
University of San Carlos
University of Sto. Tomas
University of the Philippines - Diliman
Visayan State University
West Visayas State University
Western Philippines University
Western Visayas College of Science and Technology
Xavier University - Ateneo de Cagayan

The following schools are in the process of drafting their IP Policies:

Abra State Institute of Sciences and Technology - Main Campus
Ateneo de Naga University
Bataan Peninsula State University
Bulacan State University
Capiz State University
Cebu Institute of Technology
Cebu State College of Science and Technology - FIZ Camotes, Tuburan and AIFC Campuses
Eastern Samar State University
Eastern Visayas State University
Ifugao State College of Agriculture and Forestry
Kalinga Apayao State College
Leyte Colleges
Notre Dame of Dadiangas University
Partido State University
Ramon Magsaysay Memorial Medical Center
Samar State University
University of Northern Philippines
University of Southern Mindanao

Fruit of our Land: Dreaming a Philippine GI System

2011-02-02T15:04:00.000+08:00

Just last week, I was in Bangkok to attend a regional seminar called ASEAN-ECAP III Regional Workshop on the control of Geographical Indications (GIs).

This seminar was designed to discuss the GIs of the different ASEAN and European countries.

Before I go further, I am obliged to discuss the concept of GIs to the general public --

The TRIPS Agreement defines Geographical Indications (GIs) as

...indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.

(Trade-Related Aspects of Intellectual Property Rights under the General Agreement on Tariffs and Trades, § 3, art. 22.1.)

Simply put, GIs are marks or labels that tell you where a good or service comes from. In order to qualify as a GI product or service, it must come from that place and that place alone. This might be because of some special physical characteristic of that territory or it can be as simple as the reputation of the product itself or the people producing it.

Image found at www.thewinedoctor.com

The most popular example would be the wine coming from the Champagne province of France. The grapes, soil, and climate from this particular region have certain unique qualities that allow the production of the high-quality Champagne wine as we know it. Because of its popularity, the term Champagne once became generic as a term to describe any type of white wine, but because of GI protection, no wine can bear the name Champagne except those that are produced from the Champagne Province. Others will have to be called sparkling wine.

The Philippines, along with all the other states that signed the TRIPS Agreement, is bound by international law to protect GIs as intellectual property. Under our system, GIs would be protected under the trademark system, although with substantial modifications.

Nakorchaishri Pomelo protected by the Thai GI System.

Regionally, GIs are starting to be protected and promoted across the ASEAN. Our visit to Thailand gave us a chance to visit the pomelo farms of the Nakorchaishri province, where the producers explained to us how these fruits are to be planted, tended and harvested in order to meet GI standards.

At a glance, it's clear that the Philippines has a wealth of local products that deserve GI recognition because of their quality and reputation. The mangoes of Cebu and Guimaras have been well received in Europe and the US for many years. The Barako coffee of Batangas is legendary among Filipino consumers. From these islands, we have so many food products, beverages crafts, and services that have the reputation and quality that could make potential GI-protected assets.

So what are the advantages of using GIs?

Quality Control and Consumer Protection. For products to qualify for GI protection, the producers have to follow standards and specifications. This may include the use of organic fertilizers, avoidance of pesticides and the respect for normal seasonal changes.
Price Increase. Because quality control increases, so does price. The consumer does not only buy the product but also the guarantee that the product is of good quality. This is true for both the domestic and the international market. In effect, this improves the reputation of a certain region or town, providing better jobs and opportunities locally.
Market Access. Some countries, especially those of the European Union require very strict quality control measures for products entering their countries. Having GI protection helps in meeting these standards. Although it is not an assurance of market access, GI-protection effectively guides producers into the right direction of producing quality products rather than mediocre ones that would be rejected outright.
Promotion. Because the GI system is well-known in the global market, having your product qualify as a GI-protected product instantly includes it in the marketing scheme of GIs globally.

All in all, it is predicted that this system has the potential to supply tremendous benefits to local producers by bolstering the marketability and quality of their goods. It can also protect these producers by providing them with a niche market that can withstand competition from large companies that attempt to invade the industry. This secures both the identity of their products and the commercial success of their enterprises.

So why haven't we established a GI system yet?

Because we are caught between adapting the sui generis system of EU & ASEAN and the certification/collective mark system used by the United States. It's a battle of IP systems that mirror our own history and foreign policy. Adapting the EU system would give us better market access to the old world, while inviting the ire of our largest trading partner. Using the US system will isolate us from the rest of our ASEAN neighbors and prevent regional harmonization of IP laws and the integration of markets.

Difficult choice. But we need to make it soon. Our neighbors are waiting.

______

More on Collective and Certification Marks on my next post.

Who You Calling Spineless? -- The Collective Management of Copyright for Books in the Philippines

2011-01-21T22:53:00.001+08:00

I just came from a forum by the Filipinas Copyright Licensing Society (FILCOLS) where they presented a solution to illegal photocopying of copyright-protected works.

FILCOLS Executive Director Alvin Buenaventura says that copyright is a human right and is necessary to protect the way of life and dignity of the author.

Entitled 'Copyright: Empowering the Research University', the forum was actually a pitch to De La Salle University (DLSU) to convince them to become the first university in the Philippines to enter into a licensing agreement with FILCOLS, as the Philippines' recognized Reprographic Rights Organization (RRO). If the negotiations proceed as planned, DLSU would effectively be the first institution in the country to declare its respect for the intellectual property of authors.

It all sounds so grand, but several questions must come to mind. What is an RRO? What is the deal all about? Why is it so important?

An RRO is an organization that acts as an agent for publishers and authors in order to manage their copyrights. Also known as a Collective Management Organization (CMO), these organizations are tasked to collect royalties from users of copyright-protected works and distribute the same to the authors of these works. This way, the user obtains the freedom to make copies of works without the fear of committing copyright infringement, while the authors receive income for the use of their work.

An example of a working CMO in the Philippines is the Filipino Society of Composers, Authors, and Publishers (FILSCAP), which manages the copyright-protected works in the music business. FILSCAP has successfully collected income on behalf of artists and composers for several years and now FILCOLS is seeking to do the same for the publishing industry.

The basis for creating RROs or CMOs is found in our IP Code:

Section 183. Designation of Society. - The copyright owners or their heirs may designate a society of artists, writers or composers to enforce their economic rights and moral rights on their behalf.

So what does FILCOLS offer the university? The freedom to photocopy any material from any publication without fear of incurring liability for copyright infringement. In exchange, the university will pay a per-student fee to FILCOLS per semester, which will be passed on to the students as a minimal increase in their tuition fees (about P100 or $2 per semester). This money will then be used to pay for the administrative costs of FILCOLS and then the remaining amount shall be distributed to the authors being represented by the organization.

In addition, the FILCOLS license acts as a quasi-insurance against liability for copyright infringement because FILCOLS will absorb liability up to a certain amount, even for works they do not represent. This effectively shields the university from legal liability and reputation damage. Theoretically, this license will even cover orphaned works, over which FILCOLS will hold the royalties in trust for the benefit of the missing author, in case he or she turns up.

Mr. Paul Wee, CEO of the Singapore-based Copyright Licensing and Administration Society of Singapore (CLASS), says that they are entering into an agreement with FILCOLS to protect Filipino works being used in Singapore and Singaporean works being used in the Philippines.

This elegant solution to copyright management has been found to be effective in the UK, France, Norway, Singapore, and many other countries. FILCOLS is a member of the International Federation of Reprographic Rights Organisations (IFRRO), which is a global network of CMOs for the publishing industry. To protect foreign works, FILCOLS has entered into agreements with RROs from the United States, Singapore, UK, and other countries to protect the works of their authors here in the Philippines. In turn, these foreign RROs have agreed to protect Filipino works used in their countries and hold any collected royalties in trust for them.

The licensing activities of FILCOLS is an effective first step in promoting respect for copyright in the academe. It bears noting, however, that this license is directed at university-sanctioned copying (e.g. the production of course packs or handout compilations) and does not limit legitimate fair use activities by students and faculty under our IP Code.

Ms. Karen Pitt, General Counsel of the Australia-based Copyright Agency Limited (CAL), says that the educational system in Australia takes copyright very seriously. You cannot be considered a serious institution unless you are copyright compliant.

In the international academic community, respect for intellectual property rights has become an essential condition to be considered among the very best. Quality education requires intellectual honesty, which in turn, demands respect for other people's copyright and hard work.

In this country, where photocopiers and "book-alike" services abound, a major attitudinal change has to yet to be put in place.

FILCOLS is attempting to destroy the myth that respecting copyright is too expensive for a third world country. By spreading out the cost among the entire student population, the personal expense we incur to support our authors and publishers becomes minuscule compared to what we spend on notebooks, pens or mobile phone credit.

Our authors need to feed their families too. We simply cannot choose to pay for electricity and food but not pay for our music, books, art and other intellectual creations. Ignoring the plight of our talented brothers and sisters is to sentence the creative and intellectual industries to a slow and painful death.

As intelligent and talented as we are, unless we are paid fairly for our hard work, we will never be anything more than slaves.

... and there's no dignity in that.

My Lakbayan Grade as of December 20, 2010 = B

2010-12-20T14:05:00.000+08:00

My Lakbayan grade is B!

How much of the Philippines have you visited? Find out at Lakbayan!
Created by Eugene Villar.

_____

I'm up to a B.

Jungian Stress

2010-12-19T20:19:00.001+08:00

Thought for the day:

The artist's life cannot be otherwise than full of conflicts, for two forces are at war within him (or her) -- on the one hand the common human longing for happiness, satisfaction and security in life, and on the other a ruthless passion for creativity which may go so far as to override every personal desire... There are hardly any exceptions to the rule that a person must pay dearly for the divine gift of creative fire.

- CARL JUNG

Is Copyright a Human Right?

2010-12-17T17:56:00.000+08:00

Some writers are convinced that copyright is merely a statutory benefit -- that is, it cannot exist without the law.

Like many writers from Europe, however, I subscribe to the old world philosophy that copyright is a human right -- that it transcends business interests and embraces the sacred relationship between the creator and the creation -- the author and the work.

Although domestic laws and treaties do contain provisions on protecting intellectual property, they cannot be considered the ultimate source of these rights. They do not arise from agreements or legislation, but from human nature as creator.

Two important pieces of international law articulate this philosophy:

1. Article 27 (2) of The Universal Declaration of Human Rights (UDHR), known to be the document of authority for human rights, reads:

Everyone has the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author;

2. Article 15 (1) of The United Nations Covenant on Economic, Social and Cultural Rights (UNCESCR) also reads:

The State Parties to the present Covenant recognize the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Like any other person of any other profession, artists, authors and scientists deserve to make a living from their talents. More importantly, they must be acknowledged as the creators of their work.

So is copyright a human right? To give a yes or no answer to the issue would be a serious oversimplification that ignores the history and philosophy behind copyright.

The right answer would have to be "partially" -- copyright is partially a human right. At least in the Philippine legal system, it has to be understood this way. Why? Because our law fuses (or confuses) the concept of copyright in the civil law and the common law sense.

Civil law traditions treat copyright or author's rights (droit d'auteur to the French; Urheberrecht to the Germans) as a sacred bond between the author and the work. These rights form what we call in the Philippine IP Code as moral rights. Moral rights, particularly the right of paternity, ought to last forever (e.g. William Shakespeare's authorship to Hamlet will never expire by mere passage of time).

This is the part of copyright which I am inclined to declare as a human right -- the right of paternity. Like any other human right, it is imprescriptible, inherent, inalienable and universal. Authorship, therefore, must be likened to a status rather than a right. For a right often disappears after the death of the owner while a status of paternity lasts forever.

So what is the right of Paternity? Section 193.1 of the Philippine IP Code describes it as

the right to require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work

The old intellectual property law (PD 49) correctly declared that the right of paternity lasts forever. The new law downgraded the right to last only for as long as the economic rights (generally the author's lifetime plus 50 years). This is unacceptable because it limits that part of copyright that is a human right. Today, a bill is being discussed in the Philippine House of Representatives to revert back to the old rule. I hope that the fruit of these discussions finds its way into law very soon.

Common law traditions, on the other hand, tend to focus on the economic benefits of copyright and how it can be used to generate wealth. In Philippine law, these are called economic rights. Economic rights necessarily last only for a certain period of time because they are only statutory grants used to secure a return on investment plus profits for the creator of a work and his or her heirs.

This is the part of copyright that I consider merely a temporary grant by law, which may be removed or suspended for a greater public purpose. They are not imprescriptible, inherent, inalienable or universal. They, therefore, do not possess the essential characteristics of human rights.

So here we have the Philippine copyright system. By way of Spain, we carry the long-standing traditions of civil law going back to the Roman Empire -- a philosophy which treats authorship with unique but well-deserved reverence. By way of America, we carry enterprising prowess of the common law tradition -- a philosophy grounded more on giving each creator a livelihood and a chance at survival. And somewhere in the middle of all this, we find ourselves still trying to figure out what to do with our inexhaustible creativity and how it can lift us up to better places.

For now, we can rest better knowing that we do possess human rights as creators... Partially.

_____

For further reading:

See Mark Robert A. Dy, Teach the World to Sing: Restructuring Philippine Copyright Law under a Regime of Free Expression and Culture (2009) (unpublished J.D. Thesis, Ateneo de Manila University School of Law) (on file with the Ateneo Professional Schools Library).