IP LAW: General Concepts

 

INTELLECTUAL PROPERTY - GENERAL CONCEPTS

ART. XIV, SEC. 13, 1987 PHILIPPINE CONSTITUTION 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.

SEC. 2, IP CODE 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. 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.

Intellectual property protection is merely a means towards the end of making society benefit from the creation of its men and women of talent and genius. This is the essence of intellectual property laws, and it explains why certain products of ingenuity that are concealed from the public are outside the pale of protection afforded by the law. It also explains why the author or the creator enjoys no more rights than are consistent with public welfare. (ABS-CBN Broadcasting Corp. v. Philippine Multi-Media System, Inc., G.R. Nos. 175769-70, 2009)

Intellectual Property

Intellectual property shall include the rights relating to:

1. Literary, artistic, and scientific works;

2. Performances of performing artists, phonograms, and broadcasts;

3. Scientific discoveries;

4. Industrial designs;

5. Trademarks, service marks, and commercial names and designations;

6. Protection against unfair competition; and

7. All other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. (Art. 2 (viii), World Intellectual Property Organization)

Intellectual Property as Property

Ownership is acquired by occupation and by intellectual creation.

Ownership and other real rights over property are  acquired and transmitted by law, by donation, by testate and intestate succession, and in consequence of certain contracts, by tradition. They may also be acquired by means of prescription.

Ownership may be exercised over things or rights. (Art. 427, NCC)

Intellectual Property Rights

The term “intellectual property rights” consists of (Sec. 4.1., IPC):

a. Copyright and Related Rights;

Exists over original and derivative intellectual creations in the literary and artistic domain protected from the moment of their creation. (Sec. 172.1, IPC)

b. Trademarks and Service Marks;

Any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods. (Sec. 121.1, IPC)

c. Geographic Indications;

Indications which identify a good as originating in the territory of a Member of the Agreement, 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. (Art. 22, TRIPS Agreement)

d. Industrial Designs;

Any composition of lines or colors or any threedimensional form, whether or not associated with lines or colors, provided that such composition or form gives a special appearance to and can serve as pattern for an industrial product or handicraft. It must be new or ornamental. (Secs. 112 & 113, IPC)

e. Patents;

Any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable. It may be, or may relate to, a product, or process, or an improvement of any of the foregoing. (Sec. 21, IPC)

f. Layout-Designs (Topographies) of Integrated Circuits; and

Synonymous with ‘Topography' and means the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture. (Sec. 112(3), IPC)

g. Protection of Undisclosed Information.

Protection of information lawfully held from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information: (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) has commercial value because it is secret; and (c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. (Art. 39, TRIPS Agreement)

 

COPYRIGHT VS. TRADEMARKS VS. PATENTS

	COPYRIGHT	TRADEMARKS	PATENTS
Rationale	1. To promote creativity; 2. To encourage creation of works.	1. To indicate origin or ownership of the articles to which they are attached; 2. To guarantee that those articles come up to a certain standard of quality; 3. To advertise the articles which they symbolize.	1. To foster and reward invention; 2. To promote disclosures of inventions to stimulate further innovation; 3. To ensure that ideas in the public domain remain there for the free use of the public.
Subject matter	Original intellectual creations in the literary and artistic domain (literary and artistic works)	Any visible sign capable of distinguishing the goods	A product, process or any improvement thereof which is a technical solution of a problem
Elements	1. Literary or artistic work; 2. Independently created (originality); 3. Involves minimal or a modicum of creativity.	1. Visible sign; 2. Capable of distinguishing [distinctive] the goods or services of an enterprise	1. Technical solution of a problem in a field of human activity; 2. Must be new (novelty); 3. Involves an inventive step (non-obvious); 4. Industrially applicable.
When protection begins	Upon creation (but registration needed only to recover damages in cases of infringement)	Upon grant of trademark registration	Upon grant of patent
Term of protection	Generally, during the life of the author and for 50 years after his death	10 years, renewable for periods of 10 years after the expiration of the original term (perpetual protection as long as renewed)	20 years from grant