ASEAN INTEGRATION ON INTELLECTUAL PROPERTY

ASEAN INTEGRATION ON INTELLECTUAL PROPERTY

Having been born in a third world country has its advantages and also numerous disadvantages. One thing I can say that is advantageous to me is that I learned to live my life to its fullest, making possibilities with everything that surrounds you. However, one of the biggest disadvantages of being a third world country is the lack of better opportunities for the citizens caused by insufficiency of wealth. The majority of the people living in our country are below average, unlike western countries that they almost have no real problems regarding how to survive our everyday struggle. I was raised in a province way up north, a very populated poor province. Life is simple there; we wake up really early, and sleep early too. I think it’s just that way how living in the province works. We don’t have hangout places, clubs or bars the people go to after a hard days work. People just go to stores, have a quick snack and then go straight back to their families. My ascendants lived in the same province since my great grandfather who migrated from Mainland China during the war; therefore I can say that our family knew a lot of people living in the same area. I as well, met and grew up with plenty of my kids there my age. Many of them are bright and talented, and if given enough support, may someday make a contribution that this country will appreciate. However, one of the biggest problems in our province is the lack support needed to continue to nurture and develop our skills and potentials. As I grew up, I realized that not everybody are born equal, some blessed with riches and good families, and unfortunately, many are born with only the blessing of a family. I saw a lot of my friends struggled with their family to try and support to maintain their lives. Some get the chance to study and improve, while others accept the fact that they cannot be supported by their parents financially.

          Our world has now entered a modern era where learning how to use a computer or an electronic device is no longer for those who are interested but a must for everybody. Everything that we do now is closely related to electronic devices. From your everyday grind to the luxury of vacation and leisure comes with along something that was brought by innovative technologies. However, this new educational need for us also comes with a price. To learn, you have to have the device, and to have to that device, you have to pay for it. With what being said, let us look again into the lives of those poor people living in the suburbs. If learning these things is now a must for everybody, how can they cope up with no money to fund their needs? These are the questions pondering me when people talks about how the evolution for the need of technology drastically increases. How about the little guys? Are we just going to let them be ignorant about these things?

          And now comes the integration of the Association of Southeast Asian Nation or ASEAN. It was created as a group of countries cooperating for the fast growth and development of each. It also enhances the peace and unity of the members of the association. This act mainly synchronizes the norms of the members to a single system. The question now is “upon the integration of the ASEAN to the Philippines, would it help those who are really in need, the little guys, or would it only take advantage of their ignorance and crush them into ground? And in relation to Intellectual property rights of the citizen, upon the ASEAN integration, citizens from the association’s members are permitted to practices their profession with the any member country. One example here is the profession of being a lawyer, a lawyer is only entitled to practice inside the jurisdiction of the state where such lawyer is a member of the bar, however, upon this integration, the lawyers of a member nation are permitted to practice within another member nation’s jurisdiction without the need to be member of their bar. In this case, the situation is both advantageous and at the same time, disadvantageous. In one aspect, a person is permitted to practice his profession on a wider scale and is given more opportunity, on the other hand, a person who lacks the ability expand and merely wants to maintain obtains more competition, not only with his fellow citizens, but also with the citizens of the member nations of the association. Is this act of will eventually help with our economic growth and development, or will it be just another way for other nations to get ahead of us?

            The Association of Southeast Asian Nation

Forty-seven years ago, five foreign ministers of 5 countries met together and sat down in the hall of the Department of Foreign Affairs building located in Bangkok, Thailand. They talk about the differences and similarities of their respective countries and come up with a great idea to unite and develop each Nation side by side with the other. They organized and devised a system where the establishment and continuance of great and innovative plans and ideas which will enhance and develop the economical status of one country will greatly benefit the other, hence the ASEAN was created. On August 8, 1967, The Association of Southeast Asian Nation, or ASEAN, a document signed by the 5 Foreign Ministers of Philippines, Singapore, Malaysia, Thailand and Indonesia. This well thought plan signed by Narciso Ramos of the Philippines, Adam Malik of Indonesia, Thanat Khoman of Thailand, Tun Abdul Razak of Malasia, and Rajaratnam of Singapore has been building a reputation of probably the most booming and successful inter-country governmental organization in twentieth century.

The ASEAN Declaration, a simple and short document, having only a few articles attached to it. The declaration discusses about the establishment of a collaboration of its members to an inter-nation cooperation to promote economical, social, cultural, technical, educational and other fields enhancement and stability. Another aspect is to promote peace and unity of its members, respect and abide the rules of law and principles of the signatories.

The Association of Southeast Asian Nations, or ASEAN, was established on 8 August 1967 in Bangkok, Thailand, with the signing of the ASEAN Declaration (Bangkok Declaration) by the Founding Fathers of ASEAN, namely Indonesia, Malaysia, Philippines, Singapore and Thailand. Brunei Darussalam then joined on 7 January 1984, Viet Nam on 28 July 1995, Lao PDR and Myanmar on 23 July 1997, and Cambodia on 30 April 1999, making up what is today the ten Member States of ASEAN.[1]

The document containing the articles declared the establishment and creation of an Association for Regional Cooperation among the Countries of Southeast Asia to be known as the Association of Southeast Asian Nations (ASEAN) and indicated the aims and purposes of that Association.

 As set out in the ASEAN Declaration, the aims and purposes of ASEAN are:

1) To accelerate the economic growth, social progress and cultural development in the region through joint endeavors in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of Southeast Asian Nations;

2) To promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter;

3) To promote active collaboration and mutual assistance on matters of common interest in the economic, social, cultural, technical, scientific and administrative fields;

4) To provide assistance to each other in the form of training and research facilities in the educational, professional, technical and administrative spheres;

5) To collaborate more effectively for the greater utilization of their agriculture and industries, the expansion of their trade, including the study of the problems of international commodity trade, the improvement of their transportation and communications facilities and the raising of the living standards of their peoples;

6) To promote Southeast Asian studies; and

7) To maintain close and beneficial cooperation with existing international and regional organizations with similar aims and purposes, and explore all avenues for even closer cooperation among themselves.[2]

In their relations with one another, the ASEAN Member States have adopted the following fundamental principles, as contained in the Treaty of Amity and Cooperation in Southeast Asia (TAC) of 1976:

1) Mutual respect for the independence, sovereignty, equality, territorial integrity, and national identity of all nations;

2) The right of every State to lead its national existence free from external interference, subversion or coercion;

3) Non-interference in the internal affairs of one another;

4) Settlement of differences or disputes by peaceful manner;

5) Renunciation of the threat or use of force; and

6) Effective cooperation among themselves[3]

The integration of the ASEAN declaration to our country has its own advantages and also its disadvantages; one of the issues involved with such integration is the protection of the people regarding their intellectual property rights. Many are concerned that with this incorporation, its effect would lessen the constitutional protection for their intellectual property.

Under the Philippines Constitution of 1987, Article XIV:

Section 12.“The State shall regulate the transfer and promote the adaptation of technology from all sources for the national benefit. It shall encourage the widest participation of private groups, local governments, and community-based organizations in the generation and utilization of science and technology”,

Section 13. “The State 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 period as may be provided by law” ;and

Section 14. “The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression.”[4]

In addition to the Constitutional provisions regarding the protection of intellectual property of every individual, the Philippine government also enacted Republic Act 8292, also know as the Intellectual Property Code. This code is made for the protection and assertion of the rights of people regarding their ideas, inventions and creations. It focuses mainly on the right of the citizens to have exclusive use of their creation for a specified number of years, may it a copyright, trademark or patent protection.

The right of the people to their exclusive use and ownership of their creation not only protects them from future appropriation of the idea by another, but also encourage individuals to strive to develop and create new and innovative ideas. In the same way, the ideas brought by the people will eventually assist for the improvement and development of the country. In that sense, it may also further attract future foreign investments that will increase the economic status of the country. This is accordance to the declaration of policies written under the Intellectual Property Code or Republic Art 8293:

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.[5]

Upon the creation of ASEAN, the consideration on the how to maintain the Intellectual property rights of the citizens of the members raised a lot of questions. Question about the protection of such rights and questions on how to take advantage of this act to increase the opportunity regarding given to the people.

Intellectual property and Intellectual Property Rights creation, commercialization, and protection have been a significant source of comparative advantage of enterprises and economies and a major driver of their competitive strategies. Indeed, ASEAN is fully aware of the pressing need for a long-term policy commitment to collectively transform the region into one, which is largely based on knowledge, driven by innovation and sustained by life-long learning. Member Countries have pledged to work together to help accelerate the pace and scope of IP asset creation, commercialization and protection; to improve the regional framework of policies and institutions relating to IP and IPRs, including the 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. The new action plan on IPRs for 2004-2010 would cover all these aspects.

The Experts Group on Trademark has finalized the ASEAN Filing Form for Trademarks and the Notes for the Completion of the Application. These achievements, together with the completed ASEAN Common Form and the consolidated ASEAN list of ethnic goods and services, represent important steps forward in the regional cooperation in IP. Despite its inherent complexities, Member Countries have continued their efforts in the harmonization of the trademark filing requirements. This is a process of significant importance towards the establishment of a regional filing system.Meanwhile, the Experts Group on Patents continues to examine the many substantive differences in design laws and procedures that need harmonization in ASEAN. The deliberations of the Expert Group have been greatly assisted by various detailed consultations with private-sector organizations as well as the experiences of the European Community Design (CD) system in the EU.

Collaboration among Member Countries is now extended to copyright and related rights and preparatory work on a cooperation program in this regard has been initiated. Member Countries have also made substantive progress in ensuring the conformance of their IP legislations to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. Concerted efforts have also been made to better monitor, enforce and prosecute IPR infringements. Of considerable assistance in this connection are the regular exchanges of IP policy experiences and developments among Member Countries and promotion of greater public awareness of issues and implications relating to IP and IPRs.

ASEAN continues its active cooperation in the IP sector with the Dialogue Partners, donor countries and agencies and private sector organizations – including the ASEAN Intellectual Property Association, the International Trademark Association, Office for Harmonization in the Internal Market (OHIM), World Intellectual Property Organization (WIPO), Australia, EU, and Japan Patent Office. A medium-term cooperation program in the field of IPRs for 2004-2006 between ASEAN and the United States Patent and Trademark Office has been adopted.[6]

Ron Mikhail Uy

2013-0428

Atty. Berne Guerrero

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[1] http://www.asean.org/asean/about-asean/overview

[2] http://www.asean.org/asean/about-asean/overview

[3] http://www.asean.org/asean/about-asean/overview

[4] Article XIV, Philippine Constitution 1987

[5] Intellectual Property Code

[6] http://www.asean.org/communities/asean-economic-community/category/intellectual-property