Dynamics of Economy, Intellectual Property Rights and Regional Integrations
Economy nowadays do not just pertain to the Economics term- supply and demand curve, the Gross Domestic Product (GDP) Or Gross National Product (GNP), cost opportunity, marginal utility and other antiquated terms and concepts in Economics, but Economy now is affected by trans-national or regional integrations and concepts in technology such as intellectual property.
During the 19th Century, science and technology brought about great inventions. The world witnessed how the night can be illuminated by the light bulb invented by Thomas Alva Edison. Motors were created. The invention of telephone by Alexander Graham Bell made communication convenient at that time.
Sometime 1873, a science convention held on Vienna Austria was sponsored by the Government of Hungary wherein participants from other countries were invited to exhibit their inventions. However, the participants were not willing to exhibit their inventions due to the inadequacy of legal protection provided at that time[1]. Conventions were then organized with this view in mind. Vienna Reform Act of 1873, Paris Conventions, Berne Convention, Trade Related aspects of Intellectual Property Rights (TRIPS Agreement) and other related conventions and agreements with the help of organizations such as World Trade Organizations in one way or another made a break-through in providing for protection to the said intellectual property rights.
Protection of the said right is important in securing the exclusive rights of the owner over the intangible property which he created. IPR is an essential part of research and development for industries in economic and technological standpoint.
In view of the foregoing, it can therefore be inferred that a nation’s economy is affected or is related to IPR. Let us first take a look at Gross Domestic Product as an indicator of a nation’s income. In interpreting the formula for computing GDP, it pertains to the summation of the personal consumption (variable C) of products , the investments (variable I), the government consumption (variable G) and the net exports (pertains to the deduction of imports from exports that is: “X-M”) within a country for a certain period [to illustrate GDP= C+I+G+ (X-M)][2]. Therefore, investment has a great role in determining the nation’s income or wealth. Investment in Economics parlance pertains to the value of machinery, plants, and buildings that are bought by firms for production purposes[3]. Machineries, plants and buildings are called fixed assets. These assets, as used in today’s production, are imbedded with technologies or creations with protected IPRs. Moreover, an effective IPR protection can boosts foreign direct investment. Hence, there is a correlation between a nation’s economy and IPR protection.
A nation’s economy and IPR protection is also related to or is affected by growing globalization. States join trade blocks and regional integrations in order to harmonize their economic policies in order to achieve not just national economic stability but regional economic stability. In doing so, they draft agreements and treaties to harmonize each of their national laws with the intention to standardize with the international laws.
States, relative to IPR, may adopt certain conventions such as Paris and Berne Convention. And, in adherence to regional integrations, States on the other hand, need to accede to other treaties and conventions imposed by the said integration such as the Madrid Protocol Accession and Hague Agreement.
Thus, there is interplay among the nation’s economy, IPR protection and regional integration. They are not just simple terms with plain dictionary meaning, but are dynamic and changing.
ASEAN Integration, In General
One of the regional integrations is the ASEAN or the Association of South East Asian Nations. It set to achieve economic integration on 2015. The said regional integration consists of the ten countries which are: Brunei Darussalam, Cambodia,Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam[4]. It was established on August 8, 1967 with only five member countries[5]. Its aim is to hasten ASEAN Economic Community (AEC) into a region with free movement of goods, services, investment, skilled labour and freer flow of capital[6].
ASEAN Integration and Intellectual Property Rights Action Plan
Relative to the free movement mentioned above and specifically on IPR, ASEAN framed its Intellectual Property Rights Action Plan (IPRAP)[7]. The said plan provides for five (5) strategic goals in providing for harmonization of IPR among member countries. In achieving the strategic goals, it provides for action plan, among others, the following strategies[8]: (1) improving the efficiency of the administration and protection of IPRs and promoting enforcement of IPRs in the region within the context of development which includes effective IP registration, improvement of IP (Intellectual Property) Offices and information sharing of stakeholders in the region; (2) participating in global IP protection systems as well as adapting to the changes in the IP landscape for the development needs of the region’s stakeholders which includes accession to international agreements such as Madrid Agreement Concerning the International Registration of Marks, Hague Agreement Concerning the International Registration of Industrial Designs and Patent Cooperation Treaty; (3) providing for means in raising IPR awareness which includes the provision for patent libraries and campaign for IP awareness, technology transfers and commercialization; (4) participating in the international IP community which includes cooperation in World Intellectual Property Organization(WIPO) regional level and participation of ASEAN Member States (AMSs) in international fora; and (5) intensifying cooperation among AMSs and increased level of collaboration among them to enhance human and institutional capacity of IP Offices in the region which includes capacity building for patent examiners and industrial designs and patents, and modernization of ASEAN IP Offices. Member countries called the leads or champions were designated with specific task in order to carry-out the said strategies[9].
Intellectual Property Rights as Generally Provided in ASEAN Member State IP Laws
In order that there be a better understanding of the ASEAN IPRAP, it is necessary that there be a dichotomy of the IP Laws in each AMSs. Moreover, it is also necessary that IPR be classified. With this regard, the classification shall deal with the major IPRs: Copyright, Patents, Utility Model and or Industrial Designs, and Trademarks.
Based on European Commission (EC) on ASEAN-IPR Helpdesk[10], in Brunei Darussalam, Copyright is a right given automatically by law to the owner without the need for him/her to register the right. However, there is no registry or any department in Brunei that accepts registration of copyright. Since there is no registry of copyrights, there is a viable difficulty in providing for protection to copyright owners, more so in providing for remedies to the copyright owners against the infringement of their rights. For Patents, protection is obtained by registration with the Brunei Intellectual Property Office (BruIPO)[11]. As provided by EC, Brunei law and rules regarding patents is relatively new and, as such, it is possible that the legislation will develop in an unpredictable manner. Earlier Application pursuant to any application under Paris Convention and World Trade Organization shall be given priority rights[12]. As to Trademarks, EC provides that marks may be registered if it meets the definition provided under the Brunei IP Law.
On the other hand, in Cambodia, based on EC, the case of copyright is an automatic protection which arises as soon as the work is created and without any registration requirements[13]. However, works may be voluntarily registered with the Ministry of Culture and Fine Arts. As for patents, Cambodia Patent Law provides that an invention in order to be patentable it must be novel, involves inventive step and has industrial applicability. The same law provides for protection to Utility Model. The said model is the same with patent, however, it does not involve inventive step. Cambodia IP Law also provides protection to Industrial Designs which pertains to any composition of lines, colours, three-dimensional shapes, or material, provided that the composition is new. For patents, utility model and industrial design, Cambodia affords protection to the first applicant filing based on either filing date or priority date. With regard to Trademarks, though the IP law relative thereto was only adopted in 2002, affords protection to applicants who are first filers[14].
For Indonesia, its IP Laws provide protection upon the creations of copyrightable items[15]. Moreover, should an applicant is a national of a member-country of Berne Convention, Indonesia grants the same protection since it is a member-country[16]. As to patents, EC on its ASEAN IPR Helpdesk provides that publication of the application which had complied with the documentaries and formalities provided, is necessary; after which when no opposition or claims were provided, the application shall be substantively examined. Indonesia IP Laws also provides for first-to-file system. With regard to Industrial Designs, it is somewhat the same with patent registration as to the compliance with documentary requirements and as to the importance of publication and opposition[17]. On Trademarks, Indonesia affords protection relative to first-to-file system where registration is done with their Trade Mark Office[18].
As for Lao PDR, Copyrights and rights relating to copyright is immediately protected after the artistic works and literary works including the scientific works are created[19]. Patents, in general, are afforded protection when it is shown that it is a new invention, it has inventive step and industrial applicability[20]. Based on the Lao PDR IP Laws of 2008, no provision was provided for Utility Models. It does provide, however for Industrial Designs. In applying for the grant, it must be shown that the design is new in accordance with the provision of the said law. And for Trademarks, registration shall only be granted upon compliance with the requirements of the law.
In Malaysia, there is no formal requirement for the work to be registered in order for copyright to be claimed or recognised. However, it is convenient to voluntarily register for enforcement of rights[21]. As for patent, the invention must be new and involves an inventive step and is industrially applicable. On Trademarks, registration is prohibited if its use is likely to deceive or cause confusion to the public.
While in Myanmar, Copyright for written work, film, music or software may be difficult for foreign companies to enforce under the current Myanmar Copyright Act of 1914[22]. Copyrights from other countries are not recognized and there are no procedures for registering foreign copyrights. There is presently no law or at least no law in operation for patents and industrial designs[23]. Due to the said legal issues, intellectual property right owners resort to Trademarks for protection, although there is still neither particular statute nor law on trademarks nor specific provisions regarding registration of trademarks; but nonetheless, Myanmar’s Penal Code provide for its necessary definition[24].
In the Philippines, Copyright is protected from the moment of its creation provided that the author is a natural person. However, voluntary registration should be availed in order to facilitate the enforcement of the said protection. The registry for Copyright is the Philippine National Library. As to patents, rights shall be granted upon showing that the invention is new or novel, has inventive step, and industrial application. Moreover, patent registration is granted based on first-to-file- system. Certifications for Utility Model and Industrial Design shall be granted upon the compliance with the provisions of the IP Law of the Philippines. The same goes for Trademarks, provided further, it must be shown that it does not fall into the provision on marks that cannot be registered.
While in Singapore, as provided by EC on ASEAN-IPR Helpdesk[25], there is no system of registration of copyright. Works that qualify for copyright protection under the Copyright Act do not need to be registered, because copyright protection is conferred automatically to the author. As to patents, it shall be granted upon showing that the invention is novel, having an inventive step, and industrial applicability[26]. Moreover, patent registration is granted based on first-to-file- system[27]. For Trademarks, Singapore IP Law provides for circumstances which are ineligible for the protection[28]. The said commission also provides that Trade Marks Act provides for suppletory protection to grantees.
Whereas in Thailand, Copyright is granted to creators who are nationals or residents of Thailand, or when the work is first published in a member country of the Berne Convention or of TRIPS agreement[29]. Meanwhile, for a Patent or a Utility Model is an exclusive right temporarily granted for an invention, which is a product or a process that generally offers a new technical solution to a problem. Specifically for Patent, the invention must be new, inventive and industrially applicable. Moreover, Thailand follows first-to-file system. For Trademarks, it is registrable when the sign is distinctive, non-deceptive and available. First-to-file system is also adopted for Trademarks.
And in Vietnam, the creator of copyrightable work is automatically granted Copyright upon creation since it is a member of the Berne Convention[30]. However, registration will facilitate convenience should there be any court proceedings. For patents, the applicant must show that the invention has inventiveness, novelty and industrial applicability. And for Trademarks, marks are eligible for protection under Vietnamese law provided that these are visible signs in the form of letters, words, drawings or images including holograms, or a combinationof these, represented in one or more colours. Moreover, the same law provides for circumstances for ineligibility for registration such as the said mark is identical with or confusingly similar to national flags, names of political organisations and real names, or would cause misunderstanding or confusion as to the origin.
In summation, it can be gleaned that there is a great similarity in the IP Laws of the AMSs. This can be seen IP Laws specifically providing for protection on Copyright and Patents. However, this similarity does not facilitate any more ease to AMSs.
In contrast, it is necessary to note that they differ on enforcement as some AMSs have more streamlined procedures for application and registration, whereas some do not provide for any statute relative thereto. Further, some States have registry for certain IPRs, and some do not. These issues, however does not hinder the integration provided in ASEAN. Since the AMSs adhere to the ASEAN IPRAP such the accession to international agreements such as Madrid Agreement Concerning the International Registration of Marks (MACIRM), Hague Agreement Concerning the International Registration of Industrial Designs (HACIIRD) and Patent Cooperation Treaty (PCT).
Accessions Necessary for ASEAN Integration IPR
Article 2 of the Protocol[31] relating to MACIRM provides for measures in securing protection of marks through international registration. Pursuant to the said article, an application for the registration of a mark has been filed with the Office [IP Offices of State party to the Protocol] of a Contracting Party, or where a mark has been registered in the register of the Office of a Contracting Party, the person in whose name that application or that registration stands may secure protection for his mark in the territory of the Contracting Parties by obtaining the registration of that mark in the register of the International Bureau of the World Intellectual Property Organization. Application for international registration, as provided in Article 2(2) of the same Protocol, shall be filed with the International Bureau through the intermediary of the Office with which the basic application was filed or by which the basic registration was made. Hence, IP Offices of each AMSs shall be construed, in this sense, as branch IP Office of the International Bureau. These said IP Offices shall then certify the particulars appearing in the international application. The International Bureau, as provided in Article 3(4) of the said Protocol, shall register immediately the marks filed in accordance with Article 2.
The difficulty that can be inferred from a general evaluation of the provisions of the Protocol shows that there might be redundancies in the registration of the application. IP Offices shall have repository of the local applications and then provide the same to the International Bureau. Moreover, there is a separate fee imposed in the local application vis-a-vis with the fees imposed under the International Bureau. This situation then provides for added cost to applicants.
As requisite to the ASEAN Integration, Member-States should accede to the Protocol of MACRIM. Therefore it is a must that in adopting the Protocol, AMSs should carefully integrate in their IP Laws the provisions Madrid Protocol.
Borrowing from the working philosophy of a global energy company[32], AMSs should, eliminate, simplify, standardise and automate. In this sense, AMSs should eliminate any redundancy in the application process such as lessening any lead and slack time, in effect shortening the turnaround time of the process. Simplify the procedures by providing clear-cut guidelines through a viable information system. Standardise application among AMSs necessary for the setup of a reliable database of application for automation, whereby such database shall be the repository of the International Bureau for international application.
With regard to the Hague Agreement Concerning the International Registration of Industrial Designs (HACIIRD), as provided by WIPO, the Hague Agreement offers the possibility of obtaining protection for industrial designs in several Contracting Parties by means of a single international application filed with the International Bureau[33]. WIPO further provides that the Agreement then provides for a one international application for series of application replacing multiple applications with different national IP Offices[34].
In comparison to the MACRIM Accession, the Industrial Design application under the Hague Agreement facilitates more ease for applicants since it is a single filing system. However, in similar vein as to MACRIM, Hague Agreement provides examination of the application by the national IP Offices. The International Bureau shall then examine if the application had complied for the formal requirements. The application shall be transmitted to International Board through e-filing system where the paper-based application shall be filed to the national IP Office[35].
The Patent Cooperation Treaty (PCT) [36], on the other hand provides that, the application shall be in triplicate, where one shall be kept by the national IP Offices, another will by kept International Bureau and the last copy shall be kept by International Searching Authority.
It may seem from reading Article 13 of the PCT, the International Bureau is the initial place of application, since copies of the application shall only be transmitted to the national IP Offices through a request or through the initiative of the applicant.
After the formal compliance examination by the receiving office of the said application, international application shall be subject to international search this is to determine whether the same is a prior art (or as provided by the AMSs IP Laws- novel). This provision of the treaty provides for amplified protection for inventors or creators, compared to the AMSs IP Laws since, in general, the Madrid Protocol and Hague Agreement do not provide for any international search feature same as PCT.
An overview treaties and agreements to which AMSs must adhere, shows some difficulties. Not all ASEAN national IP Laws are readily harmonized to the said treaties and agreements. The latter and its provisions may not even prove to be applicable to a certain ASEAN member-nation, since they provide for general applications. Each and every member-nation has its own culture and industrial landscape which should be attended to in implementing the provisions of the said treaties and agreements. Some may not be as streamlined as they should be.
With this regard, it might seem that ASEAN Integration is still far-off the mark of becoming a real integration relative to IPR. Firstly, many argue that the AMSs do not have a relatively similar economy as some might have high GDP in comparison with other Member-States. Some may have low. Surely, level of economy has its role in controlling the permeability of trade of goods, services, capital and technology. Higher levelled economies tend to afford more protection to IPR since they have the excess income to invest to more effective and efficacious policy enforcement, while low levelled economies tend to focus their resources in stabilizing the economy itself and other concerns such as national security and public services. Trade security and protection is less prioritized. Industries therein may just opt to infringe others IPR since the same is less costly. Less cost means giving bigger margin for profit. Also, industry competition will come into play. But with regard to economy, it all boils down to the effectiveness and efficiency of policy enforcement and how committed a certain government is in adhering to their international agreements. A country’s wealth is a factor but it does not necessarily determine its inability to enforce laws. It can effectively enforce laws by committing to its obligations and adherences.
In addition, level of knowledge about the ASEAN Integration, specifically about IPR may also affect the implementation. Perceptibility of the public of each AMSs can affect the realization of free trade and economic integration. But, the same issue is being addressed in the ASEAN IPR Action Plan providing for information dissemination.
With those criticisms in mind, it might really prove that ASEAN Integration as to IPR be impossible. However, critiques should understand is that, what is necessary now is that there are blueprints made. Important meetings, forums, trainings were and are still conducted. Strategic Planning has already been made. Studies and Forecast are conducted and evaluated. Timelines were set. Absolutely, these preparations were made bearing in mind the said criticisms. Just like in a scientific research- controls are setup and margin of errors are accounted for. Evaluations were made on want will go right and what will go wrong. Solutions were then provided.
ASEAN Integration is not just an idea that sprung out of the blue. It has its own codification of rights and obligations. It has its own guidelines and implementing rules, where changes are made if need be. It is a carefully drafted execution. The criticisms can only provide information, but only the ASEAN Member States can spell-out the success or failure of the integration.
[1] The Paris Convention. Press Information Bureau (PIB).Government of India. http://pib.nic.in/focus/foyr98/fo1298/fo3012981.html. Retrieved May 24, 2014
[2] CFA Level 1. Investopedia. http://www.investopedia.com/exam-guide/cfa-level-1/macroeconomics/gross-domestic-product.asp. Retrieved May 25, 2014.
[3] Valentino Piana. 2001. Investment. http://www.economicswebinstitute.org/glossary/invest.htm. Retrieved May 25, 2014.
[4] ASEAN Member States. Association of South East Asian Nations (ASEAN). http://www.asean.org/asean/asean-member-states. Retrieved May 24, 2014.
[5] Association of Southeast Asian Nations (ASEAN). Nuclear Threat Initiative (NTI). http://www.nti.org/treaties-and-regimes/association-southeast-asian-nations-asean/. Retrieved May 24, 2014.
[6] ASEAN Economic Community 2015, “Thinking Globally, Prospering Regionally “. ASEAN. http://www.asean.org/images/resources/2014/May/AECKeyMessagesBooklet_FINAL30Apr2014.pdf. Retrieved May 25, 2014.
[7] ASEAN IPR Action Plan, 2011-2015. EC-ASEAN Patent (ECAP)-Project. http://www.ecap-project.org/sites/default/files/IP_resources/ASEAN%20IPR%20Action%20Plan%202011-2015.pdf. Retrieved May 25, 2014.
[8] Ibid.
[9] Ibid.
[10] Brunei: ASEAN IPR SME Helpdesk IP Country Factsheet. European Commission. http://www.asean-iprhelpdesk.eu/sites/default/files/publications/Brunei%20Factsheet.pdf. Retrieved May 25, 2014.
[11] Ibid.
[12] Ibid.
[13] Cambodia: ASEAN IPR SME Helpdesk IP Country Factsheet. European Commission. http://www.asean-iprhelpdesk.eu/sites/default/files/publications/Cambodia%20Factsheet.pdf. Retrieved May 25, 2014
[14] Ibid.
[15] Indonesia: ASEAN IPR SME Helpdesk IP Country Factsheet. European Commission. http://www.asean-iprhelpdesk.eu/sites/default/files/publications/Indonesia%20Factsheet.pdf. Retrieved May 25, 2014.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Intellectual Property Laws. Lao People’s Democratic Republic National Assembly. January 14, 2008. http://www.jpo.go.jp/shiryou_e/s_sonota_e/fips_e/pdf/lao_e/e_tizaihou.pdf. Retrieved May 25, 2014.
[20] Ibid.
[21] Malaysia: ASEAN IPR SME Helpdesk IP Country Factsheet. European Commission. http://www.asean-iprhelpdesk.eu/sites/default/files/publications/Malaysia%20Factsheet.pdf. Retrieved May 25, 2014.
[22] Myanmar: ASEAN IPR SME Helpdesk IP Country Factsheet. European Commission. http://www.asean-iprhelpdesk.eu/sites/default/files/publications/Myanmar%20Factsheet.pdf. Retrieved May 25, 2014.
[23] Ibid.
[24] Ibid.
[25] Singapore: ASEAN IPR SME Helpdesk IP Country Factsheet. European Commission. http://www.asean-iprhelpdesk.eu/sites/default/files/publications/Singapore%20Factsheet_1.pdf. Retrieved May 25, 2014.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Thailand: ASEAN IPR SME Helpdesk IP Country Factsheet. European Commission. http://www.asean-iprhelpdesk.eu/sites/default/files/publications/Thailand%20Factsheet.pdf. Retrieved May 25, 2014.
[30] Vietnam: ASEAN IPR SME Helpdesk IP Country Factsheet. European Commission. http://www.asean-iprhelpdesk.eu/sites/default/files/publications/Vietnam%20Factsheet.pdf. Retrieved May 25, 2014.
[31] Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. WIPO. http://www.wipo.int/wipolex/en/wipo_treaties/text.jsp?file_id=283484#P48_1966. Retrieved May 25, 2014.
[32] A streamlined approach. Shell Global. http://www.shell.com/global/products-services/solutions-for-businesses/globalsolutions/special-supplements/winning-in-the-downturn/streamlined-approach.html. Retrieved May 26, 2014.
[33] Guide to the International Registration of Industrial Designs. WIPO. http://www.wipo.int/export/sites/www/hague/en/guide/pdf/hague_guide_part_a.pdf. Retrieved May 26, 2014.
[34] Ibid.
[35] Ibid.
[36] Patent Cooperation Treaty. WIPO. http://www.wipo.int/pct/en/texts/articles/a12.htm. Retieved May 26, 2014
law as opined 