imitation is the best form of flattery

I believe that all the ideas that has ever been thought of has already been sent out into the universe and it is the constant quest for change that has forced us to recycle trends and fads. This is why there is a premium given to ideas which are claimed by those who first thought of it, or at least those who first lined up to apply for an intellectual property registration.

Intellectual property law was established to protect the interests of those who have stumbled upon a good idea and are planning to cash in on it. Unfortunately, those who originally create the idea are not the ones who apply for the patent. Take nata de coco for example. Nata de coco has been around since (or waaay before) I was a child. It is sold in streets by toothless men with iceboxes full of ice candy and chilled nata de coco. But who was he to think of going up to an office to apply for the idea of making nata de coco or to claim that the process of making it should be named after him? A nobody. In fact, nobody in the Philippines thought of getting a patent for the filipino treat. It was the Japanese who applied for a patent and were thankfully decent enough to keep the name. What about ylang ylang, flower of which the perfume we have used since our pre-colonial period? Yves Saint Laurent, a French company, beat us to the 400 year punch and patented the scent but not the name.

Is there something wrong with this picture? Definitely.

I think that its the lack of information dissemination about the law and its effects that restricts our creativity and intelligence to be classified as legally ours. We should be known as the makers of these things rather than just those who thought of it first.

addendum:just this Christmas i bought myself a BLUEberry. it is a chinese version of the blackberry minus BBM and all other stuff. the BLUEberry however has a TV tuner, neat :)

by Vann dela Cruz entry # 6

The concept of piracy has evolved from the 1500s in the Atlantic to its mainstream 21st century equivalent. In a world where the “intangibles” (i.e. copyright, patent) form an integral part of the economy, it is inevitable that the shift in piracy has taken new grounds.

From the good old-fashioned gold to merchandise for trade, the hot item in terms of piracy today, especially in the Philippines is the piracy of copyrighted material – from movies, software to music. From the MRT station to Makati Cinema Square to old school Quiapo, the pirated copies are everywhere. From the recent Cannes Film or Venice Film Festival entries to the uber popular Twilight series, name it and they have it.

For the old media, this is indeed a serious problem. The basic premise for the problem of movie piracy is that if you want to enjoy entertainment, you have to pay. For them, people who do not want to pay the exorbitant prices of DVDs, cinemas and music are cheapstakes who simply do not want to pay. Multi-million firms claim that artists suffer, that the government loses income because of unpaid taxes generated by this underground trade. Moreover, film quality may become compromised.

My heart goes to those multi-billion corporations. Surely, they have the right to earn billions for their firms. After all, we are in a democratic setting. One has the right to maintain its profits for the year, because you see, that very nice vacation spot in St. Barts or in Monaco is not going to maintain itself. Furthermore, it is said that the use of Intellectual Property Law should promote and protect the artist/creator’s rights, both personal and economic. The copyright protection given to them should ensure his attainment of some form of personal satisfaction and economic reward from the work he produced. *

But how about Mr. Magbabalot who can only afford to buy those bootleg DVDs to get a piece of entertainment? Or how about Mr./Ms.Sidewalk vendor who has no other choice but to buy pirated copies of Filipino Movies produced by film outfits that insist on giving us same old plot every December in the Metro Manila Film Festival? Should we demand that they pay for the original version, which is roughly about 1000 pesos? Or should we just tell them not to desire getting a piece of the entertainment the rich people are having?

In a third world country where majority of the people earn less than 5 dollars a day, the concept of giving movie artists, their pampered executives and these movie outfits their due is like explaining to a religious bigot the difference between atheism and agnosticism. They simply do not care. Therein lies the problem. Because the concept of copyright infringement is in itself a first world problem.

I am not for piracy. I am for the effective implementation of our IPL but I am also for making entertainment affordable. After all, filmmaking is not only about earning profits. It is also about giving entertainment to people.

_____________

*Habana vs. Robles 310 SCRA 511 (1999)

Entry #6

Pia Augustha G. Agatep

Mediation and the Protection of Designs

A couple of months ago, I attended a mediation in the Department of Trade and Industry (DTI) office in behalf of my father's company. My father owns an export company, focusing on products made out of indigenous materials. Most of what we export include baskets and other kinds of furniture, most of which are designed by either local suppliers or our in-house designers. In certain cases, however, our international buyers send their own design, which we give to our suppliers to make. It becomes our company's obligation, as exporter, to protect the design coming from them.

In this particular mediation process with the DTI, our company filed a complaint against one of our suppliers, alleging that they have reproduced the designs of the buyers, and have exhibited and sold them locally. Ensuring the protection of our designs and our buyer's design has always been a problem for our company. We have made a name for ourselves for pioneering the use of a particular indigenous weave and design. However, over time, we saw the propagation of the use of the same weaving style and design. This is not uncommon. How many times have we seen the latest designs, for example, of our fashion designers being sold in its cheap knock-off version in stores from the opposite side of the globe in a matter of only a few days? It is for this reason that our company has become wary of posting our designs on the web or allowing suspicious persons to take pictures of our products during trade shows.

Globalization and the percolation of thoughts and ideas have allowed for our indigenous products to be sold at the international market. But this has come with a challenge to protect our designs from those who take advantage of the latest technology which has allowed for cheating. It is a relief, therefore, that DTI accommodated our request for mediation, especially since mediation in the DTI is usually reserved for disputes involving consumer welfare. I am optimistic that this particular mediation will end well. In any case, it is good to know that certain administrative agencies have taken seriously the fight to protect fashion and furniture designs.

Domain Name vs. Trademark Registration

Cybersquatting is the act of using or registering a domain name which infringes upon a registered trademark for the purpose of earning profit from the goodwill of the trademark. In 2009, Verizon was awarded an incredible $33M against a domain registrar who issued more than 600 domain names which were confusingly similar or identical to Verizon's trademark.

In the Philippines, PLDT was able to shut down a site registered by Philippine League for Domestic Telecommunications, Inc. (PLDTI) under the domain name www.pldt.com. More than using an identical domain name, PLDTI used its site to upload harsh comments and criticisms against PLDT, intentionally smearing PLDT's reputation. Rightly, PLDT prevailed. Try entering PLDTI's former domain name and you will automatically be redirected to www.pldt.com.ph which is PLDT's real website.

The above cases show us that both in the international and national sphere, trademark registration wins over domain name registration in cybersquatting cases.

But note, the trademark registration system in the Philippines is not only a first-to-file system but is also a registration-required system. In other jurisdictions, there are trademarks which don't require registration but these don't exist in the Philippines. Therefore, absent a trademark registration, a product or service name can't win over a domain name. This brings us to the case of Air Philippines.

The domain name www.airphilippines.com (see the left image) doesn't belong to nor is it commissioned by Air Philippines (AirPhil). The site only has links to websites of international air carriers for other Asian countries. Is this cybersquatting? NO. Why? An element is missing. There was no registered trademark! A quick online search on the IPO website shows that AirPhil either failed to maintain its old trademark or to register its new logo. Thus, Airphil had to settle for a harder-to-associate domain name: airphilexpress.com (see the right image in the above picture). Happily, AirPhil learned its lesson and the trademark application for its current domain name is under way.

Cybersquatting continues both nationally and internationally. Businesses of whatever size - as long as they are or can be affected by the online community - should learn from the mistakes of the past and start applying for trademarks!

Maricris L. Real
Entry No. 6

A Recipe for Intellectual Property

After having a string of bacchanalian festivities, a far cry from my monastic law school existence, I am having a hard time weaning myself away from all the glorious food and drink consumed over the holidays. Indeed it would be a shame if some enterprising attorney give the idea to an equally enterprising chef the idea that the latter’s creation would be subject to intellectual property. And as with all proprietary systems, the IP lang-grabbing begins as in the case of a food writer seeing this fine print attached to his food item:

“Confidential property and copyright of the Chef. Patent Pending. No further use or disclosure is permitted without prior approval of the chef”.

The difficulty in copyrighting food is that it belongs to that same category as ideas (non-copyrightable) that serve as building blocks to other, independent ideas. Take custard, a mixture of egg yolks and sugar: add condensed milk, steam, and you have leche flan. On the other hand, broil it, sprinkle the top with sugar, use a blowtorch, then you have crème brulee.

In the realm of patents, the standards are high: new, there is an inventive step, industrial application. Cooking methods are generally universal and are not as progressive. There is really only one way to sauté an onion, whether you use a stainless steel or non-stick pan. I would dread the day when the IPO would reject Yaya Judith’s application on her version of adobo and accept someone else’s. Obviously, everyone else will have their own take and taste on what the best adobo is, whether they use real vinegar or pineapple juice.

It is said that patentability issues only arise in molecular food technology not in traditional food making (which everyone can do and put their own “take on it”). So unless you’re Dr. Dyhaneshwar Chawan, a scientist who received a patent approval for a technology that processes cereal and grain-based products at a slower rate, hence cutting the carbohydrate consumption at a slower rate, wchich in turn, decreases sugar intake. This technology truly meets the industrial step standard, especially for diabetics. Your batidor for making Tsokolate eh doesn’t.

Most IP issues on the food industry are confined to trademarks, where the issue of the product’s source is paramount and any “passing-off as another’s” by using confusingly similar marks is infringement. In this sense, intellectual property is important for food, if you have a name, brand, or certain quality standards you want to uphold. Obviously, Royce, the chocolatier, will have a problem when someone else, say “Boyce”, manufactures a similar chocolate covered potato chip product. Hence, the Real Big Mac won against the local LC Big Mak.



The big question in IP and food will face is enforcement. Do you seize the infringer’s fridge, equipment or both? By the time you would have won your case in court, tastes in food will have already changed.

The food industry seems to be one of the faster-paced ones and even if you do get to copyright your menu (which I believe you won’t to begin with as a menu is just a list of ideas), a static menu may not be suitable for some restaurants since people always want something new. Unless you’re Jollibee and people expect you to have the same Filipino-style spaghetti all the time.

The problem in subjecting food to IP is, like other art forms, food-making thrives on innovation. Besides, everything nowadays is a product of inspiration. This low IP threshold gives a lot room for creativity, and allows me to deconstruct a Beef Wellington by using a cheaper cut of meat instead of tenderloin, wrapped in pre-made puff pastry – who cares if it looks like a Jamaican patty.

Artists accepting the Digital Age

A little less than two years ago, in a radio interview here in the country, Nine Inch Nails’ one-man band Trent Reznor made an interesting point about how it is the record labels that are most affected by the digital piracy. Contrary to popular opinion, artists are not really that much affected because the bulk of their earnings come from tours and appearances. The record labels however, are affected because it is their sales that are directly affected by the illegal digital sharing of the music albums.

Reznor is an advocate of the dispensing with the record labels and going independent. At one point during one of his concerts, appalled by the high price tag his record label put on his latest album then, he encouraged the fans to steal his music. During his interview in the country, he explained how the artists can find other avenues to earn. He suggested selling products such as shirts, posters, CDs, or even their music through the internet instead of selling their music in record bars. He further adds that it’s a way for the fans to support the artists for producing good music for “free”. I think he’s accepted the fact that “free” music is here to stay, for now, and that artists have to go with the change. He even went as far as to distribute his new “album” for free through the internet.

I think Trent Reznor makes a good point in so far as accepting that digital sharing is here to stay, for now. As an artist, he finds other creative means to support himself and so he would not need to depend on album sales. In fact, there is nothing new to this. Appearances, official merchandise, and live concerts are some of the many ways to earn from their music. Instead of looking at the internet as a tool for stealing or piracy, it can be viewed as an avenue to introduce an artist to a wider audience. The internet can also be an avenue to distribute their music through the public instead of going the usual route of album sales in the local record bars. File sharing is here to stay. Artists shouldn’t be as worried as there are other avenues for them. It is indeed the record labels who should be worried.

sources:

http://acursoryglance.net/tag/digital-distribution/

http://news.cnet.com/8301-1023_3-10202752-93.html

http://www.behyped.com/205/trent-reznor-knows-what-hes-talking-about/

entry no. 6

The Anti-Commons

The basic premise of creating an intellectual property regime is to allow innovation and give incentives to these innovators but at the same time balancing these private interests with the need for the advancement and free use of information of the people.

Hence a person creates a new literary work or invents a new technology, obtains rights over its reproduction and/or exclusive use albeit for a limited time to get back their investment, and when the right expires the work or technology can now be freely used by anyone.

The logic seems impeccable, the private party is given incentives to create and innovate but at the same time the public also benefits first because of the new work or technology and second, in the long run, because the information is now available to the people.

Michael Heller, author of Gridlock Economy, thinks otherwise. Observing a new phenomenon he calls anti-commons, he argues that intellectual property rights particularly patents create a situation which deters innovation and leads to the loss of new drugs and medicines.

The term anti-commons is derived from the tragedy of the commons wherein because no property rights are defined and resources are free for everyone to use, the consumers end up abusing the resource and destroying it eventually. In an anti-commons scenario, the opposite happens, too much property rights lead to stagnation and underutilization of the resource.

Heller gives as an example the pharmaceutical industry wherein because different companies own different patents advancement in medicines is stifled since for a company to develop a new drug, it must first obtain all the licences for the different patents it will be using and failure to do so might lead to a protracted litigation or a huge settlement. The transaction cost of developing new drugs skyrockets and companies are disincentivized from pursuing further research.

Clearly, a property rights regime though at first sparks innovation and development by giving incentives can lead to stagnation when the very building blocks of further innovation and development are stuck in a gridlock.

Paul Obmina- entry no. 6