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)
