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In Partial Fulfillment of the requirements in

Intellectual Property law

History of Intellectual Property Law


in the Philippines

By: Nikki Pamela Nadine M. Ignacio

Professor: Atty. Dot Ramos Balasbas-Gancayco

Introduction

As we end another year of the 20 th century, it would be indifferent for us not to


say that times have indeed changed and alongside that is our society and modernity.
Everything is happening so fast with only an ample amount of time and yet look at
where the human race is right now. Look at how much we have accomplished and
created by giving life to inventions that used to be only mere ideas of the human brain.
Through modernity, creations and innovations are born each day to improve human
life and convenience the human race of any endeavor. This has always been the case
since time immemorial. Human beings tend to create each and every day. From the
day that the homo sapiens carved their first hunting instruments to the latest iPhone7
plus that Apple created, it is a testament that human beings are wired with a brain that
would tend to create in order to aim for that life of artistry and amenity.
With the topic of this paper involves the connection of three concepts that such
would lead us to how important history is in the Law on Intellectual property. These
three concepts are Modernity, Globalization and Intellectual property law itself. Once
one would understand thoroughly the individual meaning of such concepts and their
connection with each other, then there would be such a conclusion that would lead our
discussion to the International Conventions and lastly the History of Intellectual
Property in the Philippines. It is important to talk about such concepts in order for us
to better understand the topic and how these have molded our Intellectual Property
Law of today or how things have indeed changed throughout time.

By the word modernity, it means of or relating to the present time or what is


happening, existing or developing at the moment. It is a term of art used to designate
both the historical period and the socio-cultural norms that has develop throughout the
passing of time. In connection to creations, it displays a great vary of changes that
occurred in all inventions. Our innovations have reached this long as history molded a
lot of inventions and improved it. When you look at the present or modern world, you
can compare the differences between what was lacking before and what we have
created now. Modernity is a good example to see how far inventors have gone and it is
thanks to history that we can look back at the differences and compare the inventions
of the past to the improvements of the future.

And with modernity comes the concept of globalization. Globalization is the


process of international integration arising from the interchange of world views,
products, ideas, and other aspects of culture. In other words, the world has become
technically smaller. This word has been coined by many depending on the usage of the
term but initially the term came out in a 1930 publication about education. By the
1960s, the term was used as a synonym or associated with the concept of economist.
In a 1983 article on business, the term became widely popular as Theodore Levitt,
who was an economist, popularized such and anticipated it with terms on business and
the market. With globalization, each nation is opening its doors to the world, giving an
easier access to other countries with regards to its products along with its culture,
cities, society, international participation and innovations. Each country has its own
identity, culture, history, resources and inventions made by its own people. With

globalization, the doors of the country are thus open and this would mean that the
country welcomes the idea of sharing its creation to other countries with the proper
regulation and laws that would eventually protect the open country.
Although the concept of intellectual property came even before the term of
globalization was coined, there was already an existing relationship of barter and
exchange between different cultures and countries. Intellectual property was just
temporarily defined in order to protect the rights of others.

So what is Intellectual Property?


By the definition of Intellectual Property, it refers to the creations of the mind,
such as inventions; literary and artistic works; designs; and symbols, names and
images used in commerce. It is a right protected by law through patents, copyrights
and trademarks, which enables a person to earn recognition or financial benefit from
what they invent or create. By striking the right balance between the interests of
innovators and the wider public interest, the IP system aims to foster an environment
in which creativity and innovation can flourish. 1
Intellectual Property gives reason to a creator to create and innovate something
new because the law has been enacted allowing the rights of the latter to be
recognized. Such rights would give full credentials to him along with fame and

1 http://www.wipo.int/about-ip/en/

I. HISTORICAL BACKGROUND OF PATENT LAW, TRADEMARK LAW AND


COPYRIGHT LAW
Paris Convention

Before Intellectual Property Law was born and introduced to the Philippines,
international treaties were first convened by only a few nations. Although barter and
exchange internationally was already practiced, it was only during the Paris
convention that the participating nations took notice of the recognition of the rights of
such creators to the point of enacting an international agreement with regards to the
problem. It is important to know and understand the history and principles of both the
Paris Convention and Berne Convention so as to draw a line towards the birth of the
history of Intellectual Property in the Philippines. It enables us to see where and how
did the Philippines came to its recognition of Intellectual Property.
When one hears the famous Paris convention, they would immediately
associate the agreement to the protection of Industrial property of creators. The
convention came into light during the time that exchange between nations was
growing and yet it was very hard to acquire protection for industrial property rights in
different countries because other countries were already copying the inventions of
others without proper acknowledgement, accreditation or compensation to borrow the
idea. There is a diversity of laws in different countries that created problems for
everyone. It was a problem because everyone was already aiming to open its doors in
the international arena but they want to be protected of their inventions without fear
for any losses. Since every country has a different law regarding protection on

patency, people were having a hard time which law to follow if the exchange of goods
involved different countries with different laws. Thus obtaining protection for
recognition and rights became difficult especially when the application for such
patency had to be done in every country to prevent the cancellation of novelty of the
invention.
Later on, international trade and developing countries created more and more
technology that made the need for an international agreement of utmost emergency in
order to conform all of the laws of different countries and in turn respect the
individuality of each existing law as well.
Another instance that called for the necessity of the agreement was in an
international exhibit of inventions held in Vienna on 1873 when foreign visitors no
longer wanted to display their creation for the lack of protection on their offered
exhibits. This urged Austria to create a special law for that event to temporarily protect
the inventions of the foreign participants. Immediately after that, the Congress of
Vienna for Patent Reform was convened in order to persuade countries to bring about
an international understanding upon patent protection as soon as possible. 2 This was
the initial move for the first international convention on Industrial Property as the
Congress gave life to the results if countries were to agree to an international treaty on
Industrial Property.
After the Vienna Congress, a number of meetings ensued to prepare for the
Paris Convention. The first of it was the International Congress on Industrial Property
in 1878. This aimed to suggest that a country should lead the convention that would
emphasis on the need to put a uniform legislation in the field of industrial property so
2 http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch5.pdf

as to conform all the different laws and principles of participating countries on


activities of International exchange. Since the Congress was held in France, the task to
convene the said congress was given to the French Government who prepared and sent
the final draft for the international convention that would secure Industrial rights. In
1883, 11 states approved and signed for the Paris Convention for the Protection of
Industrial Property held during the Diplomatic Conference in Paris. These 11 states
were Belgium, Brazil, El Salvador, France, Guatemala, Italy, the Netherlands,
Portugal, Serbia, Spain and Switzerland. Great Britain, Ecuador and Tunisia only
followed after the treaty came into effect on July 7, 1884. This gave these 14 foreign
governments the protection of uniformity and recognition for their Industrial Property
in the International Arena. It was only after World War II however that the Convention
grew in members as the nations began to open its doors again to another after the War.
The Paris Convention has 4 main categories and these are basic rights one 1)
National treatment; 2.) right of priority; 3.) rights and obligations of natural persons
and legal entities; and 4.) administrative framework of the Convention. These
categories allow the members to protect and recognize their own rights of which they
can contest if ever such right is overstepped.
The Paris Convention contains the concept of National Treatment, which
according to the treaty, means that
as regards to the protection of industrial property, each country party to the
Paris Convention must grant the same protection to nationals of the other
member countries as it grants to its own nationals.3

3 http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch5.pdf

National treatment allows the nationals to experience common courtesy from other
member countries as well. The rule guarantees a protection on foreigners as well as to
prevent any discrimination to them in any way possible. National treatment is
recognized worldwide whether the country is a party to the Convention or not. And
with this is applies first of all to the nationals of member countries and that according
to Article 2(1), the national treatment rule shall apply to all advantages that the various
national laws grant to nationals. However there is no requirement of reciprocity of
protection as there are different recipients of protection with regards to the legal
meaning of a national that was determined by the convention. The consideration of
the convention as to who are nationals and the legal entities of a member country are
various, ranging from State-owned enterprises to those under private law.
The right of priority on the other hand is a basic right that means that, on the basis of
a regular application for an industrial property right filed by a given applicant in one
of the member countries, the same applicant may, within a specified period of time
(six to twelve months) apply for protection in all the other countries. Later
applications enjoy a priority status with respect to all applications relating to the same
invention filed after the date of the first application. 4
This right allows the members filing the application a status wherein they do not have
to handle the qualms of a late or amended application for their inventions. More so
that the said inventions are already protected in several countries with just the earlier
application for patency filed.

Berne Convention
4 http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch5.pdf

As the Paris Convention focused on the recognition and protection of Industrial


patents, the Berne convention focused on the protection of copyright in the
international level. On September 9, 1886, the Berne Convention was signed after
much discussion that bilateral treaties were not providing enough protection or
uniformity on copyright as it was not the area of focus in previous international
agreements. The Berne Convention has been revised several times in order to improve
the international system of protection that the Convention provides. Said revisions
happened in 1908, 1928, 1948, 1967 and 1971 in countries of Berlin, Rome, Brussels,
Stockholm and Paris consecutively. Why were there such changes over time? It is
because there were also developing and changing enhances on technology and
industrial works. Copyright of authors needed to cope up with the fast paced changes
occurring in the industrial field. These revisions also allow the author to recognize
their new rights that has been developing over the years.

There are 3 basic principles in the Berne Convention. These are 1.) the
principle of national treatment; 2.) automatic protection, and; 3.) independence of
protection.
National treatment, as in the Paris convention allows the works originating in
one of the member States the grant of the same protection in each of the member
States. These works are recognized and their rights are protected in the international
level. Automatic protection on the other hand does not depend on national treatment
because protection is automatically given. To acquire protection does not require one

to submit a formality of application, payment and the like. The creation of any literary
work entitles the author to a protection that does not have to go through tedious
processes just to acquire security over their works. Lastly, Independence of work is an
enjoyment and exercise of the rights granted to the author is independent of the
existence of protection in the country of origin of the work.

II. DEVELOPMENT OF INTELLECTUAL PROPERTY LAW IN THE


PHILIPPINES
Intellectual Property in the Philippines

It was in 1947 that the Philippines first enacted a law on protecting intellectual
property rights. Republic Act No. 165 or An Act creating a Patent Office Prescribing
its Powers and Duties, Regulating the issuance of Patents an Appropriating Funds
Therefor. Other Acts ensued to recognize the protection on Intellectual Property.
In 1973, the Philippine government has recognized the importance of
intellectual property rights and that it has made a State policy to protect and promote
it. This was the time that Philippines under the incumbency of former President
Ferdinand Marcos was becoming the Rising tiger of Asia and that International Trade
and exchange was his main focus as a growing economic goal for the Philippines.
Thus the policy of intellectual property rights has been enshrined in the 1973
Constitution and continued to be encapsulated in the 1987 Constitution as it mandates
that the State will continue to protect and secure the rights of inventors, artist, writers
and scientists who are creators of intellectual property.

In 1980, the Philippines became a member of the World Intellectual Property


Organization or also known as WIPO. The country signed into multilateral
international agreements and treaties for the continuation of the protection and
promotion of intellectual property rights. 5
From 1947, laws were enacted to further the protection of intellectual property
rights and these are as follows:

Republic Act No. 165 or An Act Creating a Patent Office, Prescribing


its Powers and Duties, Regulating the Issuance of Patents and

Appropriating Funds Therefor.


Republic Act No. 166 or An Act to Provide for the Registration and
Protection of Trademarks, Trade names and Service Marks, Defining
Unfair Competition and False Marking and Providing Remedies

Against the Same and for other Purposes.


Republic Act No. 422 transferring the examination of copyright

applications to the Bureau of Public Libraries.


Republic Act No. 623 that regulates the use of duly stamped or marked

bottles, boxes, casks, kegs, barrels, and other similar containers.


Republic Act No. 5434 that provides for a uniform procedure for
appeals from the decision of quasi-judicial officers including the

Director of Patents
Administrative Order No. 94 which creates a committee to review the
Philippine patent system and recommend amendatory laws to further
upgrade it.

5 http://www.chanrobles.com/legal7history.htm#.WG5VDWUQhPM

Presidential Decree No. 721 that created the Legal Services Division
and the Research and Information Division in the Philippine Patent

Office.
Presidential Decree No. 1263, which amended RA Nos 165 and 166, in
order to grant authority to the Philippine Patent Office to increase its

fees and to spend a portion of its income for priority projects.


Executive Order No. 133 that created the Bureau of Patents,

Trademarks and Technology Transfer.


Executive Order No. 60 that created the Inter- Agency Committee on
Intellectual Property Rights under the Office of the President of the

Philippines.
Department Administrative Orders Nos. 5 and 6 that amended the Rules
on Practice in Patent and Trademark cases and the Rules of Procedure

of the Technology Transfer Registry.


Republic Act No. 8293 or known as the Intellectual Property Code of
the Philippines.

Aside from the laws that have been passed to protect intellectual property
rights, there were other developments that ensued like the first issue of the BPTTT
Official Gazette being launched on March 8, 1988. In 1992, the Philippine Association
of Certified Patent Agents (PACPA) was incorporated and also the CD-ROM Version
of the bibliographic data of registered Philippine patents was introduced. In 1993, two
important events also happened. One is that the Kantor-Navarro Agreement was
signed between the country and the United Stated. Two, the Philippines component of
the EC-ASEAN Program on Patents and Trademarks was officially launched. Patent
and trademark examination procedures were improvised in 1994. Lastly, in 1995, the

Supreme Court of the Philippines designated special courts that cover cases on
intellectual property.
These developments were passed as Associations and Offices were established to
continue the protection of Intellectual Property in the country as we garnered the
knowledge in the International Level. The country joined international seminars and
conventions and took cognizance into securing intellectual Property more.

III. CONCLUSION

When the country entered into global trade and exchange, we immediately
took cognizance of the rights of our own people. Seemingly as intellectual rights was
widely recognized by the time that the country had its own identity, it was not hard for
us to adapt to the by-laws that is followed by other countries because we just had to
mold ourselves into what was already laid before us and adopt what is already a
custom. That is why our trade and acknowledgement of intellectual rights is so much
alike with other countries. To wit, we did not partake in the signing of the Paris
Convention or the Berne Convention in the 1900s because our trade did not go as
geographically far as such. But as the law molded and developed internationally by
setting standards and offices and procedures, a lot came to adopt it. When the
Philippines already took cognizance of multilateral conventions and agreements, the
intellectual property law was already set and developed, we need only to adopt within
its by-laws in order for us to transact with others and respect their creations as theirs.
As a colonial state of the United States of America, it is not hard to see how our ways

and laws enacted are pretty much like our colonizing country. Therefore it is not hard
to see that the same actuations apply to the adoption of intellectual property and
international agreements on such.
The law on the protection of intellectual property has been enshrined and
emphasized by it being literally mentioned first in the 1973 Constitution. If we
remember clearly, this was the time of the Marcos regime when he was turning the
country into the rising tiger of Asia as he allowed more international exchanges and
economic transactions in the international level. He recognizes our own rights as a
nation and that it needs to be protected first by acknowledging the Filipino ingenuity
that brings about our innovations and identity into our creations. This also served as a
protection with regards to our natural resources and what we create with it and thus the
application of the intellectual property gave rise to the recognition of such work of the
Filipino men.
When Marcos was ousted, the country was still at the peak of international
recognition and economic trade, it is only reasonable that the intellectual property law
would still be enshrined in the 1987 Constitution on Article 12. Further developments
and reinstatement of offices would be needed to cater to the needs of patency and
rights since, like I said at the beginning of the introduction, that we are entering into a
world wherein which it is growing smaller. That one can no longer hide and with such
influx of information and products that such recognition of rights on intellectuality and
creation must first and foremost be protected. To be enshrined in the Constitution
means that our rights as a person and as an active member of society allows us to

wallow in the depths of the commercial pool without the fear of anything being stolen
from us.
Learning the importance and the history of Intellectual Property allows us to
see how the knowledge of such right has been established within the country and
where did such recognition come from if not without the influence of others. To know
that such rights are acknowledged and exists is one thing, but to understand how it
came into the country is another because it lets us understand why our country moves
so much like our neighboring countries.

To seek out the birth of intellectual property in the Philippines is a time


machine that answers that question of how?