My Pilgrimage in the Holy Land

Through  the assistance of several clerics  (Bishop Cantillas, Fr. Fernando, Fr. Ison, Fr. Neuhaus) and with the written permission of my local ordinary, His Eminence, Gaudencio Cardinal Rosales, I arrived in Tel Aviv on April 14, 2011.  I would like to visit and pray in the places made holy by Our Lord Jesus Christ.  Because faith without works is dead (James 2:26), I shall also serve the Filipinos in Tel Aviv, my base.  I shall be happy to share my knowledge and education in the faith with the Filipinos at DMC.  I hope that they would accept joyfully and with open hearts my teaching for their growth and development in the faith.  Such is the essence of discipleship.

I facilitated two groups for their Recollection during the Holy Week.  Tackled in the first group was their individual growth in the faith based on their particular situations.  The second group focused on the different aspects of the Holy Mass and how these make present the Paschal Mystery (the Passion, Death, and Resurrection of Jesus Christ).  I was pleased that the participants appeared truly interested and learned something significant from their Recollection.  It seems, however, that they will need follow-up seminars to sustain their continuing education in the faith.  I have placed the decision in their hands.  I suggested that they discuss among themselves and arrive at a decision and inform me as to their concrete needs for future seminars.

Seminar workshops have been lined up for those actively involved at DMC and for all those interested to attend.  For interested parties, there is a sign-up sheet on the bulletin board at DMC. To deepen the knowledge, understanding, appreciation and love of those at DMC for the Sacred Scriptures and for them to prepare well for the celebration of the liturgy at DMC, especially on Saturday evening and Sunday morning,  it will be good and beautiful for them to learn the Basic Ecclesial Community (BEC) style of Bible study. It will be nice to do this on Friday evening after the novena and Mass at DMC.  As the envisioned different groups grow, they can have the Bible study in their residence.

 

During this short span of my sojourn in Tel Aviv, I feel like a newly-ordained priest all over again. This is because, like a newly-ordained and newly-assigned priest,  I have to do tasks for myself and for the liturgy: do my laundry, cook my food, clean my room and other places and things that need to be cleaned, dispose of the garbage, prepare the things needed for the liturgy when no one is available to do it.  I have no complaints, however.  For my body aches and pains and the sacrifices I do are nothing compared to the great suffering of Our Lord Jesus Christ.  In my pilgrimage in Jerusalem and the different parts of Galilee, I think and feel how lucky I am to tread at my own pace on the places sanctified by the footsteps of Our Lord Jesus Christ  and those of his first disciples.  Indeed, to those who receive the Spirit of the Resurrection, a new day is a new beginning.

The Missing Link in the Cultural Competence Continuum

Fr. Fidel P. Palísoc, M.A. (Counseling), S.T.D., J.C.D.  

           

Cultural competence, defined by Sue (2001) as the ability to engage in actions or create conditions that maximize the optimal development of client and client systems, is an important topic in au courant counseling circles and service groups that are sensitive to cultural differences.  As a matter of justice in general and of human rights in particular, it is right and just that cultural competence be paid attention to and practised.

            No one is born culturally competent.  The harsh reality is that many, if not all, have been trained and socialized to be culturally incompetent.  “Don’t talk to strangers” is a common illustration of this reality.  The more serious realities are the continuing existence of blatant discrimination against foreigners.  News items about foreign workers being actively discriminated against are too numerous to cite.  For the sad reality is that “[t]oo often, lip service is given to multicultural concerns, without the commitment to translate them into ethical standards and see that they become part of the accreditation criteria” (Sue et al., 1992, 480).

            Sue et al. (1982, 1992) have laid the foundations in the discussion on cultural competence.  Sue (2001) refined the Multiple Dimensions of Cultural Competence (MDCC).  Because cultural competence is a developmental process, Cross’ (2001) cultural competence continuum, even though conceptually applied specifically to agencies, is a wonderful contribution to the intelligent discussion on cultural competence.

            Cross’ (2001) cultural competence continuum has five points.  King et al. (no date, In http://www.air-dc.org/cecp/cultural/Q_integrated.htm) briefly enumerated “six possibilities” along the cultural competence continuum.  But according to Susan E. Collins, Program Director of the NYS Citizens’ Coalition for Children, Inc., “there are only five points along the [cultural competence] continuum” (personal communication, July 20, 2004).  The five points are 1) cultural destructiveness, 2) cultural incapacity, 3) cultural blindness, 4) cultural pre-competence, and 5) advanced cultural competence or proficiency.

            Cultural destructiveness is characterized by the presence of attitudes, policies and practices that are destructive to cultures and consequently to the individuals within the culture.  Examples are programs which actively participate in cultural genocide.

            Cultural incapacity is characterized by extreme bias, belief in the racial superiority of the subdominant group, and a condescending posture towards “lesser” races.  Ignorance and an unrealistic fear of people of whatever color exist.  Discrimination is a tell-tale sign of cultural incapacity.  News about this are too numerous for citation.  The latest is the is the murder of a Mexican immigrant in Pennsylvania (cf. http://news.yahoo.com/s/ap/20110223/ap_on_re_us/us_ immigrant_killing_students (Accessed February 24, 2011 at 15:37 Hours).

            Cultural blindness is characterized by the belief that helping approaches traditionally used by the dominant culture are universally applicable.  There is an expressed philosophy of being unbiased.  The assumption is that color or culture makes no difference and that all people are the same.  Consequently, cultural strengths are ignored.  Assimilation is discouraged.  The “victims” are blamed for their problems.  Outcome is usually measured by how closely the client approximates a middle class non-minority existence.

            “It has been suggested that at best, most human service agencies providing services to children and families fall between the cultural incapacity and cultural blindness on the continuum.” (King et al., no date, In http://www/.air-dc.org/cecp/cultural/Q_integrated.htm). 

            Cultural pre-competence is characterized by acceptance and respect for difference, continuing self-assessment regarding culture, careful attention to the dynamics of difference, continuous expansion of cultural knowledge and resources, and a variety of adaptations to service models in order to meet the needs of minority populations.  The culturally pre-competent agency works to hire unbiased employees, seeks advice and consultation from the minority communities, and actively decides what it is and is not capable of providing to minority clients.

            Advanced cultural competence or proficiency holds culture in high esteem.  It seeks to add to the knowledge base of culturally competent practice by conducting research, developing new therapeutic approaches based on culture, and publishing and disseminating the results of demonstration projects.  It advocates for cultural competence throughout the system and improved relations between cultures throughout society.

            Does the developmental process jump from cultural pre-competence (point 4) to advanced cultural competence (point 5)?  Where is “cultural competence” in this cultural competence continuum?  How can these concepts be applied to individuals?  What will it take to design and develop an instrument using Cross’ concepts?  What will it take to make a research determining the growth of individuals in cultural competence using this instrument?  How will Filipinos fare in this process?  Are the individuals in the “minority populations” at the receiving end of cultural competence as implied in cultural pre- competence?  Are there empirical data to support this?

References

Cross. T. L.  2001.  “Cultural competence continuum.”  In www.nysccc.org/T-Rarts/CultCompCont.html (Accessed July 19 and 26, 2004).

King, M. A., A. Sims, and D. Osher.  no date.  “How is cultural competence integrated in education?”  In http://www.air-dc.org/cecp/cultural/Q_integrated.htm.  (Accessed July 12 and 26, 2004).     

Sue, D. W., J. E. Bernier, A. Durran, L. Feinberg, P. Pedersen, E. J. Smith, and E. Vasquez-Nuttall.  1982.  “Cross-cultural counseling competencies.”  The Counseling Psychologist 10: 45-52.

Sue, D. W., P. Arredondo, and R. McDavis.  1992.  “Multicultural counseling competencies and standards: A call to the profession.”  Journal of Counseling and Development 70: 477-486.

Sue, D. E.  2001.  “Multitudinal facets of cultural competence.”  The Counseling Psychologist 29: 790-821.

“Saudi slammed for treating OFWs like slaves.”  Philippine Daily Inquirer.  July 16, 2004: A1, A9.

“Brains not welcome here – The difficulty of changing a policy that drives talent away.”  The Economist.  May 1, 2004: 48.

The Intellectual Property Right of Indigenous Peoples

By Fr. Fidel P. Palísoc, S.T.D., J.C.D. 

  

            This paper deals with the intellectual property rights (IPRs) of indigenous peoples (IPs).  It is a sequel to the author’s paper on the effects of piracy on the Philippine society (CBCP Monitor, February 14-27, 2011, B4, B7)  This project is intended to inspire advocacy for indigenous peoples’ rights all over the world in general and in the Philippines in particular.

In addition to the United Nations (UN) Universal Declaration of Human Rights, the human rights concerns of indigenous populations are covered by the Sub-commission on Prevention of Discrimination and Protection of Minorities [changed to Sub-Commission on the Promotion and Protection of Human Rights in 1999] under the UN Commission on Human Rights [changed to UN Human Rights Council on March 15, 2006], which is under the UN Economic and Social Council, established on December 10, 1946 (Alston 1996).  Likewise the recognition and promotion of the rights of indigenous peoples is enshrined in the 1987 Constitution of the Philippines (Article II, Section 22).  IPR, however, is considered as “a ‘non-human right’.”(Romero 2006, 146)

Intellectual property rights and legal protection

            Intellectual property (IP) law deals with IPRs and their protection.  IPRs can be broadly classified under two categories, namely: primary rights and sui generis rights.  Under primary rights are copyright and related rights, patents including the protection of new varieties of plants, trademarks including service marks, geographical indications including appellations of origin, industrial designs, the layout-designs of integrated circuits, and undisclosed information including trade secrets and test data.  Under sui generis rights are databases, mask works, fashion designs, indigenous intellectual property and others. 

            Concomitantly, two systems of international IP protection exist.  The first is the system of primary intellectual property rights enshrined in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [http://wto.org/English/tratop_e/trips_e.htm], which recognize the individual nature of IPRs.  The second is the recognition and protection in several countries of communal traditional knowledge rights, which recognize “indigenous knowledge systems – traditional knowledge, including [. . .] traditional cultural expressions and traditional ecological knowledge (sometimes called ethnobotanical knowledge.” [Visser In Finger and Schuler  2004] 

            In the Philippines, primary rights, notably patent, trademark, and copyright are covered by the Intellectual Property Code of the Philippines (Republic Act No. 8293 of 1997) whereas the sui generis rights of indigenous peoples are covered by the Indigenous Peoples Rights Act (Republic Act No. 8371 of 1997).

Factors that led to this growing interest

            Several factors led to this focus on the IPRs of indigenous peoples.  First is the realization that the indigenous peoples have been taken advantage of, if not robbed blind, by multinational pharmaceutical (mostly Western) companies.[Endeshaw 2004, 140]  In the Philippines this realization was articulated in 2003 by Associate Justice Angelina Sandoval – Gutierrez of the Supreme Court:

“[T]he Philippines continues to be the victim of what is known as biopiracy.  Foreign pharmaceutical companies have successfully acquired patents over biological resources found only in the Philippines [. . .] the Philippine sea snail has [. . .] been patented by Neurex, Inc., a U. S. based pharmaceutical company, and has earned millions of dollars for the company.  Neurex, with the help of scientists, has been isolating from a snail a toxin called SNX-111 or Ziconitide [,] which is a pain killer [. . .] 1,000 times more powerful than morphine.  [. . .] “[A]mpalaya” or bitter gourd i[s] now [. . .] owned by the US National Institute of Health.  Meanwhile, Cromak Research, Inc. in New Jersey has started raking in profits reaching to as high as [US] $500 million from an antidiabetic product extracted from “ampalaya” and “talong” or eggplant.  Piracy has also claimed the Philippine Yew Tree [,] which has been reported by the DENR as having been patented by the University of Philadelphia.  The tree, which can be found only in Mt. Pulag, contain[s] taxol, a cancer-curing chemical.” [Sandoval-Gutierrez 2003].

Four years later this issue in broad strokes was featured in Time magazine:

“Firms that sell prescription drugs and over-the-counter medicines and supplements collect revenues as high as [US] $30 billion a year from products inspired by the traditional knowledge of indigenous communities [. . .] according to bio-diversity organizations like the Canada-based ETC Group [i. e., Action Group on Erosion, Technology, and Concentration, a Canadian advocacy organization].  Researchers view jungles from South America to Southeast Asia as bountiful sources of new treatments for cancer, AIDS and other diseases.  According to the U. S. National Cancer Institute, more than 25 % of the ingredients in cancer medicines today were either discovered in rain forests or synthesized in labs from discoveries made there.  But the tribal shamans, who lead corporate and academic researchers to therapeutic flora and fauna, rarely see a penny of the pharmaceutical industry’s profits, which are the highest of any business in the world as a percentage of revenues.” [Padgett et al. 2007, emphases added]

Ten Kate and Laird have cast this issue in bolder relief:

“[G]enetic resources and associated traditional knowledge continue to provide leads in the discovery, development, and manufacture of products.  Annual global markets for products in the healthcare, agriculture, horticulture, and biotechnology sectors derived from genetic resources lie between US$500 billion and US$800 billion (ten Kate and Laird 1999).  In the case of healthcare, there are still sales of between US$75 billion and US$150 billion of pharmaceuticals and between US$20 million and US$40 billion worth of botanical medicines derived from genetic resources each year.  Direct links can still be made between many products on the market and knowledge systems dating back millennia.  For example, of the approximately 120 pharmaceutical products derived from plants in 1985, 75 percent were discovered through the study of their traditional medical use (Farnsworth and others 1985).  Grifo and others (1986) demonstrated that for the base compound in most of the top 150 plant-derived prescription drugs, commercial use correlates with traditional medical use [. . .] companies continue to access ethnobotanical knowledge as part of discovery programs, although the manner in which different sectors make use of it varies greatly, so that benefit-sharing arrangements are comparatively rare.” [ten Kate and Laird In Finger and Schuler 2004, emphases added]

No wonder there is “the assertion by developing countries [in Asia and Africa] that intellectual property rights [. . .] are imposed by Western countries via international agreements in their own economic interests.” [Antons In Antons et al. 2004]

The second contributory factor is the passage of the Convention on Biological Diversity (CBD) by the UN Conference on Environment and Development in 1992.  Article 15.1 of the CBD recognizes “the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.” [http://www.cbd.int/convention/articles/?2=cbd-15].  Article 15.3 states that “access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.”  Article 15.7 provides for “sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources [. . .].”

            Jerome elaborates:

            “Although the CBD is not a binding agreement, the notion of state sovereignty over genetic resources lent significant legitimacy to the debate over the ownership and control of indigenous peoples’ resources. [. . .] the very idiom of ownership, property and hence compensation that the Convention introduced in relation to biological resources was essential to the emergence of the notion that indigenous people possessed rights to what now were considered “their resources” and “their knowledge.”  In the context of this logic, the idea that IP rights might be the appropriate vehicle for the compensation of such knowledge and resources appeared as a natural next step.” [http://regionalworlds.uchicago.edu/IntellPropJerome.pdf]

A factor related to CBD is the realization that indigenous peoples “embody and nurture 80% of the world’s cultural and biological diversity.” [http://www.umn.edu/humanrts/edumat/studyguides/indigenous.htm]

The third contributory factor was the Agreement on Trade-Related Aspects of Intellectual Property Rights in1994.  Taking the IP laws of the developed countries as the criteria of IP law “brought IPR[s] to the attention of social activists in both developed and developing countries [and] the attempt to compensate indigenous knowledge using international patent law highlighted the difficulty of protecting one kind of cultural knowledge by another culture’s legal standards.” [Jerome n.d.]  Moreover, there is the position that “save for the United States and the European Union, other members ‘as well as civil society’ hold that the CBD and the TRIPS are incompatible.” [Endeshaw 2004]

The fourth factor, for some countries, is the introduction of laws that regulate access to traditional knowledge, regardless of whether or not this is obtained in conjunction with genetic resources.  The Philippine Indigenous Peoples Rights Act (IPRA) of 1997 recognized a wide range of rights held by indigenous peoples:

“ICCs/IPs [i.e., Indigenous cultural communities/indigenous peoples] are entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights.  They shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives of these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge of the properties of flora and fauna, oral traditions, literature, designs and visual and performing arts.” [R. A. No. 8371, Sec. 34, emphases added]

R. A. No. 8371 Article 35 stipulates that “access to biological and genetic resources and to indigenous knowledge [. . .] shall be allowed within ancestral and domains of the ICCs/IPs only with a free and prior informed consent of such communities, obtained in accordance with customary laws of the concerned community.”  In the face of the biopiracy of biological resources, however, this law, no matter how well-meaning its advocates are, seems to be inutile.

Possible courses of action 

Several scholars have already addressed this issue.  Visser discussed Reichman’s proposal for a “compensatory liability” regime, [In Finger and Schuler 2004] which will make the indigenous people’s corporation entitled to a reasonable royalty from second comers [those who build on the indigenous community’s cultural heritage] who commercially exploit their ecological knowledge without authorization.  This right to “equitable compensation” subsists for twenty (20) years from registration.

The second idea Visser [in Finger and Schuler 2004] discussed is Drahos’ proposal for the establishment of a global bio-collection or bio-collecting society (GBS).  Membership will be open on a voluntary basis to both companies and groups that have claims to traditional ecological knowledge and genetic resources.  The GBS will act as the repository for community registers of such knowledge and as the custodian of these registers under strict obligations of confidentiality.  A more practical arrangement is to establish regional groupings of this bio-collection or bio-collecting societies.  To facilitate research and contact by interested parties, the table of contents of the databases needs to be made available online.

For these ideas, however, to become workable among the indigenous peoples, they need to adopt the Western approach of registering copyrights to their cultural knowledge. [cf. Liebl and Roy In Finger and Schuler 2004]  For this to be accomplished, they need to get together, designate a committee of trusted individuals for the documentation and fixation of their indigenous knowledge, construct a fiduciary relationship, and establish an incorporated body to act in their name.[cf. Layton In Finger and Schuler 2004]  For this they would need the pro bono services of a good civil lawyer and other selfless and competent social scientists.

Many indigenous peoples are privy to a lot of information about the therapeutic qualities of some of their biological resources.  They need to realize the requirements for patentability. [cf. Koepsell 2010]  A patent, however, protects active ingredients that have been isolated and tested.  The incorporated body established to act in their name may enter into contract with a pharmaceutical or research company to whom they divulge in secret their ecological knowledge and from the proceeds of the research, the corporation will receive a royalty.

From his study of the biopiracy of neem [Azadiracthta indica]-derived biopesticides, turmeric [Curcuma longa], Ayahuasca [Banisteriopsis caapi], basmati rice, and yellow beans [Enola beans in the US – U. S. patent 5,894,079  and U. S. Plant Variety Protection Certificate 9700027; Mayacoba in Mexico] Schuler puts as first on his list of solutions to “harmonize IPR laws.”[in Finger and Schuler 2004]  This “implies introducing rich country IPR regimes into poor countries.”[Ibid.]  Countries in the different regions need to agree to harmonise their IP laws.  For this to happen the member states need to achieve parity in the levels of their IP systems.  Such regional grouping has begun in the ASEAN [Association of Southeast Asian Nations] with the 1992 Agreement to establish an ASEAN Free Trade Area and the 1995 ASEAN Framework Agreement on Intellectual Property Cooperation.[cf. Endeshaw 2004]

Finally, lawyers, social scientists, and other professionals of good will need to examine the sources of their legal and other assumptions and “question the cultural assumptions upon which western IP law is based.”[Jerome n.d.]  This means, among others, understanding that “it is commerce, rather than intellect, which is the principal factor in the development of [IP] law.”[Eastaway et al. 2008]

REFERENCES

Alston, P., ed.  The United Nations and Human Rights (A Critical Appraisal).  Oxford: Clarendon Press, 1996.

Antons, C.  “Legal culture and its impact on regional harmonization.”  Intellectual Property Harmonisation within ASEAN and APEC.  C. Antons, M. Blakeney, and C. Heath, eds.  The Hague: Kluwer Law International, 2004, 29-32.

Bautista, L. B.  “Bioprospecting or biopiracy: Does the TRIPS Agreement undermine the interests of developing countries?”  Philippine Law Journal 82 (2007), 14-33.

Eastaway, N., R. Gallafent, V. Dauppe, and J. Kimber, Intellectual Property Law and Taxation, seventh ed.  London: Thomson Reuters, 2008.

Endeshaw, A. “The momentum for review of TRIPs and harmonization of intellectual property in ASEAN.”  Intellectual Property Harmonisation within ASEAN and APEC. C. Antons, M. Blakeney, and C. Heath, eds.  (The Hague: Kluwer Law International, 2004).

Jerome, J. S.  “IP rights and indigenous peoples: A history of the topic as an object of study.”  In http://regionalworlds.uchicago.edu/IntellPropJerome.pdf.  Accessed February 24, 2011 at 12:17 Hours.

Koepsell, D.  “Authorship and artefacts: Remaking IP Law for future objects.”  The Monist 93 (July 2010), 482.

Leonen, M. M.V.F.  “Law at its margins: Questions of identity, rights of indigenous peoples, ancestral domains and the diffusion of law”  Philippine Law Journal 83 (2009), 787-820.

Padgett, T., W. Johnson, and U. Amahuaja.  “Jungle Medicine” (November 4, 2007) In http://www.time.com/magazine/article/o.9171.1003761-3.00html#ixzz/9SoZppeM.  Accessed January 17, 2011 at 16:36 Hours.

Raysman, R. E. A. Pisacreta, K. A. Adler, and S. H. Ostrow.  “Intellectual property licensing: forms and analysis” In http://books.google.com/books?id=OCGsutgMdPIC&pg=SA3-PA4&dq=sui+generis+rights+under+intellectual+property+law&source=6bl&ots. . Accessed February 24, 2011 at 12:05 Hours.

Romero, F. R. P., “Legal challenges of globalization,” Philippine Law Journal 81 (2006), 137-86.

Sandoval-Gutierrez, A.  “Access and Ownership: Intellectual Property and Biotechnology.”  The Court Systems Journal 8 (September 2003), 32-36.

ten Kate, K. and S. A. Laird.  “Bioprospecting agreements and benefit sharing with local com-munities.”  Poor People’s Knowledge.  J. M. Finger and P. Schuler, eds. Washington, DC: World Bank and Oxford University Press, 2004, 133-156.

Visser, C. J.  “Making intellectual property laws work for traditional knowledge,” Poor People’s Knowledge, J. M. Finger and P. Schuler, eds. Washington, DC: World Bank and Oxford University Press, 2004, 207-234.

“Agreement on Trade Related Aspects of Intellectual Property Rights.”  In http://en.wikipedia.org/wiki/Agreement_on_Trade_Related_Aspects_of _Intellectual_ Property_Rights.  Accessed December 10, 2010 at 13:41 Hours.

“Indigenous Peoples, Democracy and Political Participation” (October 13, 2006) In http://pdba.georgetown.edu/Indigenous Peoples/demographics.html.  Accessed February 28, 2011 at 18:23 Hours

“1987 Constitution of the Republic of the Philippines” In http://www.lawphil.net/consti/cons 1987.htm.  Accessed February 28, 2011 at 19:10 Hours.

“Republic Act No. 8371.”  In http://www.livinginthephilippines.com/philippines_republic_ act_8371f.html.  Accessed February 19, 2011 at 13:50 Hours.

“Study Guide: The Rights of Indigenous Peoples.”  In http://www.umn.edu/humanrts/edumat/studyguides/indigenous.htm.  Accessed February 28, 2011 at 18:32 Hours.

“Text of the Convention on Biological Diversity” In http://www.cbd.int/convention/articles/?a= cbd-15.  Accessed February 24, 2011 at 13:20 Hours.

“TRIPS.”  http://www.wto.org/english/tratop_e/trips_e/trips_e.htm.  Accessed December 6, 2010 at 14:45 Hours.

About the author

Fr. Fidel P. Palísoc is a priest of the Archdiocese of Manila.  He holds Master’s degrees in Oriental Religions and Cultures (UST – Manila) and Counseling (DLSU – Manila).  He studied Spiritual Theology and obtained his Doctorate in Sacred Theology (S.T.D.) from the Pontificia Studiorum Universitas A Sancto Thoma Aquinate in Urbe (Rome, Italy).  He is currently finishing his Doctorate in Canon Law at the UST Faculty of Canon Law in Manila.  His previous assignments include serving as major seminary professor; college seminary administrator and professor; DLSU recollection master for freshmen and DLSU-CSB chaplain.  A certified CPE Supervisor (2002) in the U. S., he is the founding director and supervisor of the Archdiocesan Clinical Pastoral Education Program in Manila (2002 - 2006).  He is the author of Paano ba mangumpisal? [trans.: How to confess?] a catechetical guide on the Sacrament of Penance for the laity (2007).

What are the effects of piracy in the Philippines?

DIFFERENT forms of piracy thrive not only in the South but also in the North.  This article deals only with two forms of piracy:  the piracy of intellectual property and biopiracy.

Intellectual property rights

The concept of intellectual property (IP), broadly defined as products of the human mind and creativity protected by law (cf. http:www.wipo.int/about-ip/en), originated from the North.  The general assumption is that the objective behind the protection of intellectual property is the promotion of intellectual creativity and innovation, which propels scientific advancement that purportedly contributes to the common good of mankind.  The idea behind the Paris Convention for the Protection of Industrial Property (March 20, 1883), which protects against trademark and patent infringement, and the Berne Convention for the Protection of Literary and Artistic Works (September 9, 1886), which protects against copyright infringement, is intellectual property rights (cf. Biron, 2010, 382-84; Wilson, 2010, 540-63; F. Romero, 2006, 146 ).  But membership in these Conventions was voluntary on the part of the member-countries.

The United States of America, Japan, the European Union, and other developed nations lobbied for the international protection of IP rights to be added to the agenda of the Uruguay Round of General Agreement on Tariffs and Trade (GATT) in 1994 (http:wn.wikipedia.org/wiki/Timeline_of_the_World_Trade_Organization).  

The Agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPs), which was adopted in Marrakech, Morocco on April 15, 1994, sets down minimum standards for many forms of intellectual property regulation as applied to nationals of World Trade Organization (WTO) members (http:en.wikipedia.org/wiki/Agreement_on_Trade_Related_Aspects_of_Intellectual_Property_Rights). 

A country that wishes to accede to the WTO must agree to abide by the TRIPs Agreement, which seeks to impose and universalize the levels and forms of IP protection existing in the North.  Because the ratification of the TRIPs Agreement is a compulsory requirement of WTO membership, any country seeking to obtain access to markets opened by the WTO, must enact the strict IP laws mandated by TRIPs.  Thus the Senate of the Philippines ratified the TRIPs Agreement on December 14, 1994 and Republic Act No. 8293, The Intellectual Property Code of the Philippines, was enacted on June 6, 1997 primarily to give effect and in deference to the TRIPs Agreement (cf. Defensor Santiago, 1995, 18-20).  

Piracy of intellectual properties

            But the problem is the piracy of IPs by transnational organized crime groups (cf. Sandoval-Gutierrez, 2006, 149).  These organized criminal groups know that “[e]nforcement is the weakest aspect of international law.”(F. Romero, 2006, 149).  That is why they continue to prosper.  What is involved are infringements of IP from North-South as well as South-South.  The director general of the Intellectual Property Office of the Philippines (IPOPHL) “said as of November 2010, P4.369 billion worth of pirated products have been confiscated by authorities, lower than the more than P5 billion worth of fake goods seized last year.” (Osorio, 2010, B-1)  This seems like a token enforcement because pirated CDs, DVDs—most notably pornographic—wrist watches, wallets and bags, and other products are openly sold seemingly unabated anytime of the day in Quiapo, Divisoria, Baclaran and other parts of the greater Manila area.  For individuals with weak moral values, limited income, and who want to stretch the value of their hard-earned peso, buying pirated products, e.g., a CD, which costs from 8% (P25.00) to 17% (P50.00) of its real market value, is a real temptation.  But this cheap purchase of pirated products injures the moral fiber of the individual. 

On the other hand, because many pirated products seem ingeniously real, even moneyed buyers will think hard, informed by the knowledge of piracy, about the true nature of the products they intend to buy in a country where pirated goods abound.  Some, ultimately, like the writer, will refuse to make a purchase, unless it is a question of urgent necessity.  Investors are aware of this attitude.  That is why “piracy also scares away potential investors,”(Penna et al., 2004, 101) thereby further exacerbating unemployment in the country.  Multinational corporations opt to invest in and/or transfer their investments to “friendly” countries, where piracy of IPs likewise exist but, unlike the Philippines, offer incentives in subsidized fuel and energy and free use of vast tracts of land for a certain number of years, e.g., Vietnam.

Furthermore, in a climate of poverty, if not destitution, not only of material resources but also of moral values, TOCGs easily influence the morally and spiritually bankrupt.  A brilliant retired Associate Justice of the Supreme Court of the Philippines describes the operation of transnational criminal organizations:

            The ordinary TOC [transnational organized crime], much like terrorism, is a serious global threat that has evolved into a sophisticated and even legitimate means of perpetuating criminal activities and shadowy nefarious operations across borders.  It continues to threaten the future and the very existence of every man, woman, and child because of its innate voraciousness.  No one is spared [. . .]  It destabilizes economies and creates a façade of stability and progress to conceal the erosion of the moral fabric of modern society on which it feeds.  Globalization and the growing popularity and application of the Internet have made it possible for the TOCGs to expand their activities at an alarming rate under a cloak of legitimacy and to establish bases of operations beyond their normal and traditional confines.  States with high poverty levels are particularly vulnerable to such incursions because of the staggering amounts these groups are willing to invest in employing offshore managers and in gaining the goodwill of some well-placed corrupt local law enforcers and officials.  Many countries fit this profile, including [. . .] the Philippines.(F. Romero, 2006, 170) 

That is why a congressman from Eastern Samar who “is calling for the imposition of stiffer penalties not only for ‘pirates’ of Filipino movies, but fines and jail time for people caught actually buying pirated copies of local films” (P. Romero, 2020, 15) has not only a parochial worldview but grossly dark ignorance of the evil forces behind the piracy of IPs in the Philippines.

Biopiracy of Philippine flora and fauna

            Biopiracy is “a term that describes the means by which corporations from the industrialized nations claim ownership of, free ride on, the genetic resources and traditional knowledge and technologies of developing countries.”(Calan, 2006 In Bautista, 2007, 16)  The Philippines continues to be the victim of biopiracy.  Associate Justice Angelina Sandoval-Gutierrez of the Supreme Court of the Philippines enumerates the concrete instances of biopiracy of Philippine biological resources:

Foreign pharmaceutical companies have successfully acquired patents over biological resources found only in the Philippines.  For one, the Philippine sea snail has already been patented by Neurex, Inc., a U. S. based pharmaceutical company, and has earned millions of dollars for the company.  Neurex, with the help of scientists, has been isolating from the snail a toxin called SNX-111 or Ziconitide [,] which is a pain killer that is reported to be 1,000 times more powerful than morphine.  [. . .] 

For another, “ampalaya” or bitter gourd is now privately owned by the US National Institute of Health.  Meanwhile, Cromak Research, Inc., in New Jersey has started raking in profits reaching to as high as $500 million from an anti-diabetic product extracted from “ampalaya” and “talong” or eggplant.  Piracy has also claimed the Philippine Yew Tree [,] which has been reported by the DENR [Department of Environment and Natural Resources] as having been patented by the University of Philadelphia.  The tree, which can be found only in Mt. Pulag, contained taxol, a cancer-curing chemical. (Sandoval-Gutierrez, 2003, 33-34)

Associate Justice Sandoval-Gutierrez continues:

            The biopiracy of plants and animals [from the Philippines] placed ownership of these valuable resources into the hands of the few companies [,] which can control their storage, patenting, licensing, reproduction and sale.  More often, biopiracy is committed by multinational firms and [g]overnments of developed countries which patent and map chromosomes of genetic resources without informing, consulting, acknowledging and duly compensating the poor countries which own the resources.  [sic] (Sandoval-Gutierrez, 2003, 34; cf. Bautista, 2007, 26-27).

In the end, the biopiracy of Philippine resources wreaks more havoc on Philippine society than the piracy of songs and films on CDs and DVDs from the North to South and South-South because in biopiracy the whole country is robbed, not merely individual owners of IPs.  Moreover, many of these songs and films are easily accessible and downloadable on the internet free of charge.

Recommendations

The first one is education in justice from the earliest stage of growth and development of a child in the family.  The child is taught at home the value of justice, i.e., to render to each his or her due, and integrity.  This value formation should be reinforced in the schools and should be observable in the lives of people around the growing child.  As he or she grows older, there is a need for a more explicit education on the reality of piracy of IPs, the detection of pirated goods, and the weighing of the pros and cons of buying pirated goods.  Such education will promote mores of behavior based on honesty, integrity, responsibility, and a will to excel.

            Because there will always be individuals who are morally bankrupt and who will try to make a living out of other people’s ignorance and moral weakness, legitimate business establishments should “provide difficult-to-counterfeit hologram stickers to protect”(Penna et al., 2004 ,104, their IPs.  As it is, the businesses with interests in IPs need to be vigilant about infringements on their IPs.  To discourage potential buyers of pirated domestic products, Filipino entrepreneurs and businessmen need to find a way to make copies of their CDs and DVDs affordable to the daily wage earners.

            On the level of the Philippine government, retired Associate Justice Romero noted that the government “has taken some crucial steps”(F. Romero, 2006 149) in the direction of proper and adequate enforcement.

The country’s judges are already being trained through programs designed by the Philippine Judicial Academy, and the Departments of Justice and Interior and Local Government have their own training modules for prosecutors and law enforcers.(F. Romero, 2006, 149)

The Armed Forces of the Philippines and the Office of the President of the Philippines need to make better use of their intelligence funds through updated education of the concerned agencies and responsible individuals on the latest information and communication technologies, which are being used by TOCGs for their illegal and morally destructive activities, which for the most part remain uncurbed in the Philippines. 

The government and the academic community should encourage scholars to document the many biological resources in the country and their medicinal and other uses.  This literature can be used as evidence against novelty when multinational corporations from the North acquire patent on genetic resources obtained from exclusively Philippine flora or fauna. 

Everybody should work hand in hand towards the elimination of material and moral poverty, which is a threat to intellectual property anywhere (cf. http: //www.ilo.org/ilolex/English/constq.htm http: //www.ilo.org/ilolex/English/constq.htm).  Better still, instead on focusing on the concept of property be it of token or type, there is a need to make a paradigm shift to the concept of stewardship of IPs and other forms of property and its equitable sharing in the global village for the material and moral well-being of all, thereby establishing “a society of equals.” (Wilson, 2010, 460)