THE SHIELD AND THE SWORD: The Intellectual Property Code in Cohort with the International TreatiesIN PARTIAL FULFILLMENT FOR THE REQUIREMENTS OF INTELLECTUAL PROPERTY LAW

Submitted By: Rommelito Francisco E. Macarayo, AUF JD2

Submitted To: Attorney John Paul M. Gaba, IPL ProfessorAugust 3, 2013In the hands of the altruistic, the law becomes a shield to defend the oppressed and a sword to slay the evildoers.- Anonymous -In a general sense, the law acts as both a sword and a shield. As a shield, the law protects those whose rights are oppressed and upholds the integrity of the law towards would-be abusers. As a sword, the law prosecutes the violators and abusers that prey upon the masses, making sure that no one escapes the long arm of the law inasmuch as possible. The Intellectual Property Code (IPC) [footnoteRef:1] acts in the same way, protecting and investing in the rights of inventors and artists while providing a delicate balance of upholding justice whenever there would be disputes regards ownership of ideas and creativity. It also prosecutes those who would want to take unfair advantage of the original ideas of others towards their own benefit. [1: "R.A. 8293 AN ACT PRESCRIBING THE INTELLECTUAL PROPERTY CODE AND ESTABLISHING THE INTELLECTUAL PROPERTY OFFICE, PROVIDING FOR ITS POWERS AND FUNCTIONS, AND FOR OTHER PURPOSES."Lawphil.net. Arellano Law Foundation, n.d. Web. 19 July 2013.]

The IPC has gotten more support in the legal aspect by the International Treaties that our Philippine Government has signed. Because of these international treaties, there is a broader scope of protection and prosecution for everyone to take advantage of.The Berne[footnoteRef:2], Paris[footnoteRef:3], and Rome[footnoteRef:4] Conventions all have that aspect of greater protection towards the artists, performers, and industrial property owners. They provide an all-encompassing shield of international scope towards the works and products of musicians, artists, performers, and industrial property owners; which creates a better transition of rights and procedures towards exporting their works and products overseas while being shielded from potentially-potestative obligations & actions that will hinder the profitability or originality of the work and/or product. Much like the Intellectual Property code protects our local artists, inventors, and creators, these international treaties serve to protect also their works on a global scale for those countries who signed also with the treaties. [2: "Berne Convention for the Protection of Literary and Artistic Works."Berne Convention for the Protection of Literary and Artistic Works. World Intellectual Property Organization, n.d. Web. 19 July 2013.] [3: "Paris Convention for the Protection of Industrial Property."Paris Convention for the Protection of Industrial Property. World Intellectual Property Organization, n.d. Web. 19 July 2013.] [4: "Summary of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961)."Treaties and Contracting Parties: Rome Convention. World Intellectual Property Organization, n.d. Web. 19 July 2013.]

The World Intellectual Property Organization (WIPO)[footnoteRef:5] is created in order to be the bastion for the protection of intellectual property in an international scale. For countries that are part of the WIPO, it serves as the international standard for IP law and the newest developments & progressions of the IP law for every convention held. The WIPO also makes sure that all national legislations regarding the protection of intellectual property are harmonized with each other. Not only that, they also seek to foster further research & development of the IP law in order to ensure that the IP laws of the countries involved stay open for improvement. Since our country is part of the WIPO, this certifies that we are up-to-date towards new developments in the IP realm of law in a global aspect and we remain compliant with the latest progressions in IP law. [5: "About World Intellectual Property Organization."Wipo.int. World Intellectual Property Organization, n.d. Web. 19 July 2013.]

The Budapest Treaty[footnoteRef:6] of 1981 deals with the international recognition of the deposit of microorganisms for the purpose of patent procedure. Since microorganisms require highly specialized means of transportation and storage in order to avoid contamination and reactions, this treaty proposes one international depository authority regardless of territory in order to prevent costly reoccurrence of storage and transportation (saving funds in the process) and to provide a one single depository for the benefit of all those who would want to reproduce the microorganism or have it protected under the IDA. Similar to what the IP code provides for everyone in the Philippines, both the Budapest Treaty and IP code aim to make all things efficient and economically-sound so that investors and inventors will be further motivated to align their resources to our country. [6: "Budapest Notification No. 15 Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure."TREATY/BUDAPEST/15: [Budapest Treaty] Communication of Japan Relating to the Acquisition of the Status of International Depositary Authority by the Fermentation Research Institute. World Intellectual Property Organization, n.d. Web. 02 Aug. 2013.]

The WTO (World Trade Organization)[footnoteRef:7] agreements encompass services, goods, and intellectual property while having emphasis on the principles of liberalization (with the permitted exceptions). These include the different commitments of various countries to lower their customs tariffs and other barriers of trade, and to open and remain open markets of services. Settling disputes using the proper procedure is also included. Moreover, there are also provisions that help aid developing countries in furthering their economic trade. Transparency of trade policies made by the various countries respective government for overseeing their compliance with the WTO agreements is also enforced. [7: "WORLD TRADE ORGANIZATION."WTO. World Trade Organization, n.d. Web. 02 Aug. 2013]

For the goods aspect, the GATT (General Agreement on Tariffs and Trades)[footnoteRef:8] contains the provisions and topics of various countries who have participated in the creation of the agreement. Such areas of concern that are present in the GATT are agriculture, textiles, product standards, anti-dumping measures, methods for customs valuation, safeguards, and others. For the service aspect, we have the GATS (General Agreement on Trade in Services)[footnoteRef:9] that primarily deals with the movement of natural persons, air transport, financial services, shipping, and telecommunications. Both goods and services have now the benefit of having more freedom to conduct their businesses without fearing unfair costs in trade services and tariffs because of the aforementioned agreements. For the intellectual property aspect, we have the TRIPS (Trade-Related Aspect of Intellectual Property Rights) Agreement[footnoteRef:10] that sets down the baseline standards for many forms of IP regulation as applied and enforced to WTO members while having dispute procedures and promotion of disseminated information for all. [8: "General Agreement on Tariffs and Trades."WTO. World Trade Organization, n.d. Web. 02 Aug. 2013.] [9: "General Agreement of Trade in Services."WTO. World Trade Organization, n.d. Web. 02 Aug. 2013.] [10: "WTO | Intellectual Property (TRIPS) - Agreement Text - Contents."WTO | Intellectual Property (TRIPS) - Agreement Text - Contents. World Trade Organization, n.d. Web. 02 Aug. 2013.]

The IP code is congruent with the WTOs objectives plus its GATT, GATS, and TRIPS agreements since all of them have a protective and promoting attribute. These have protective attributes in the sense that they aim to shield the original ideas of people with goods, services, and intellectual properties by providing dispute resolution proceedings. Furthermore, the promoting attributes can be seen by the incentive of the WTO in lowering tariffs and customs expenses for the participating countries and the special procedures that they have for developing countries to progress further with their assistance.The PCT (Patent Cooperation Treaty)[footnoteRef:11] provides a unified procedure for filing patent applications to protect inventions in each of its contracting states[footnoteRef:12]. Since there is uniformity, it helps in avoiding the usual confusions and legal impediments when patenting an invention that has a conflict with another. Much like in the IP code where most of the steps needed to protect an idea or an invention, everything follows a strict procedure to the letter in order to make sure everything is organized and legal. Uniformity is important in the easier compliance of the masses for having the IP codes cloth of protection. [11: "Patent Cooperation Treaty."PCT Resources. World Intellectual Property Organization, n.d. Web. 02 Aug. 2013.] [12: Cees Mulder,The Cross-Referenced Patent Cooperation Treaty, updated yearly, Helze Publisher.]

The WIPO Internet Treaties[footnoteRef:13] are further copyright protection granted towards performers, phonogram producers, literary works, broadcasters, and those with similar profession. These treaties do not grant rights automatically, but require the participating countries to grant certain rights towards the aforementioned on a nondiscriminatory basis. Much like a shield, the IP code also provides equal protection towards the innovators and the distributors by affording them specific rights and privileges that both parties can use to their advantage. [13: "WIPO Internet Treaties."National Seminar on the WIPO Internet Treaties and the Digital Technology. World Intellectual Property Organization, n.d. Web. 02 Aug. 2013.]

All of the aforementioned international treaties only serve to sharpen the sword and toughen the shield of the IP code towards its constituents by broadening its perspective not only in the local realm, but in the international scale as well. As a law student, we must always be armed to the teeth with knowledge if we are to fully use the IP code and its international treaties towards both protecting our future clients and prosecuting those would-be violators of intellectual rights!