Tyrone Hernandez

ATTITUDE, DISCIPLINE, FAMILY, HONOR, LOYALTY, RESPECT. OSS!!!

Lessig’s lecture and RA 8293

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LESSIG’S LECTURE AND INTELLECTUAL PROPERTY CODE

 

RA 8293 or the “Intellectual Property Code of the Philippines is actually a codification of the country’s various intellectual property laws. The law repealed all Acts and parts of Acts inconsistent with it, more particularly RA 165 that established an independent patent system, RA 166 that governs Trademark and Presidential Decree No. 49 known as the “Decree on Intellectual Property,” and Articles 188 and 189 of the Revised Penal Code.

The law is a consolidation of Senate Bill No. 1719 and House Bill No. 8098. It was approved by then President Fidel V. Ramos on June 6, 1997 and became effective on January 1, 1998. This law was enacted to give effect to the Agreement of Trade-Related Aspects of the Intellectual property Rights and what was referred to as TRIPS that was ratified by the Philippine Senate on December 14, 1994.[1]

Under RA 8293 defined intellectual property rights as that consisting of Copyright and Related Rights, Trademarks and Services Marks, Geographic Indications, Industrial Designs, Patents, layout Designs of Integrated Circuits and Protection of Undisclosed Information.

Arguably patents, trademark, and copyright are the most talked about and a plethora of jurisprudence. As ruled in the case of Kho vs Court of Appeals, G.R. No. 115758, March 19, 2002, trademark, copyright and patents are different intellectual property rights that cannot be interchanged with one another. A trademark is 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. In relation thereto, a trade name means the name or designation identifying or distinguishing an enterprise. Meanwhile, the scope of a copyright is confined to literary and artistic works which are original intellectual creations in the literary and artistic domain protected from the moment of their protection. Patentable inventions, on the other hand, refer to any technical solution of a problem in any field of human activity which is new, involves, an inventive step and is industrially applicable.

Patents

First I will discuss about patents which is a set of exclusive rights granted by a state to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an invention. The term originates from the Latin word patere which means “to lay open” (i.e., make available for public inspection) and the term letters patent, which originally denoted royal decrees granting exclusive rights to certain individuals or businesses.[2] The elements of which are it must be new, an inventive step, and it must be industrially applicable.

I think that the law on patent is a way of giving appreciation and recognition for the inventors in creating them and that their creation is really a big boost for the improvement of the lives of people and in also making things much more easier and simpler. Under Sec. 21 of the Code speaks of patentable inventions as any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable shall be patentable. It may be, or may relate to, a product, or process, or an improvement of any of the foregoing.”

The reason I said that patent is a way of recognizing inventions id due to the fact that not everyone has the knowledge or even the foresight of creating them that it will be such a use to the society.

Also, as ruled in the case of Pearl &Dean (Phil), Inc vs. Shoemart , Inc., G.R. No. 148222, August 15, 2003, it promotes disclosures of inventions to stimulate further invention and to permit the public to practice the invention once the patent exercises. I think the reason behind it is that by disclosing it to the public, inventors will be enticed to invent something which is related to it and is industrially applicable. Of course it is for public consumption and such is a big help for society who is clamoring things which will make their lives easier for we are already consumed physically and mentally of our work and balancing it with our own families.

Moreover as held in the said case, the goal of patent law is that the stringent requirements for patent protection seek to ensure that ideas in the public domain remain there for the free use of the public. But the ultimate goal of a patent system is to bring new designs and technologies into the public domain through disclosure.

 

Trademarks

It has been defined as a distinctive mark of authenticity through which the merchandise of a particular producer or manufacturer may be distinguished from that of others, and its sole function is to designate distinctively the origin of the products to which is attached.[3]

A trademark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol.

Mc Donalds has the “M’, Nike has the swoosh, Apple has the fruit, they are just of the many trademarks we see today. If ever we go to the malls and shop, the first thing we look forward to is the brands we love. As a sports-minded person, I tend to go to athletic shops first, and even from 20 meters I can already see that the store I am looking is already Nike because of the huge swoosh mark or the check logo. The moment I see it I already envision what is inside, do they have the new basketball shoes and gear of basketball stars such as Michael Jordan, LeBron James, Kobe Bryant, and Kevin Durant to name a few. Football or soccer in the United States has also started to grow on Filipinos thanks to the popular Philippine Azkals, with brand recognition of their endorsers such as Cristiano Ronaldo of the Spanish Club Giant Real Madrid and Manchester United’s own Wayne Rooney. Arguably, when we think of these brands the logo has a way selling it to our minds that what we are buying is their product.

A lot of issues stem out of trademark and one of them is unfair competition which means the employment of deception or any other means contrary to good faith by which a person shall pass off the goods manufactures by him or in which he deals, or his business, or services, for those of another who has already established goodwill for his similar goods, business, or any acts calculated to produce the same result. [4]

Another one is trademark infringement which to establish it there must be validity of plaintiff’s mark, plaintiff’s ownership of the mark, and use of the mark or its colorable imitation by the alleged infringer results in the likelihood of confusion.[5]

In terms of likelihood of confusion, we can see everywhere this happens. I personally have seen stores whose names are “Star-Buko”, Mc Ronald’s Tapsilogan, Jollibebot KTV, even though it is funny to see those names you can right away know that they are banking on the name they are using for profits. But are we doing something to prevent them or are we just so apathetic as long as it does not involve ourselves we would not do anything. In my personal opinion, this creates confusion because some people who works for the “real” stores underwent training to work as efficient as the brand name they are trying to portrait.

There are two tests in determining the likelihood of confusion, the dominancy test and the holistic test. The latter is clearly explained in a case where it ruled that the question is not whether the two articles are distinguishable by their label when set side by side but whether the general confusion made by the article upon the eye of the casual purchaser who is unsuspicious and off his guard, is such as to likely result in his confounding it with the original. The general impression of the ordinary purchaser buying, buying under the normally prevalent conditions in trade and giving the attention such purchasers usually give in buying under the normally prevalent conditions in trade and giving the attention such purchasers usually give in buying that class of goods is the touchstone.[6]

I think men should not buy grocery for their families because us men don’t tend to double check what we are buying. We have no idea if that particular brand is good or good for savings. I am a living proof of it because I don’t spend so much time in deciding which one is better, if I am goinf shopping for let’s say hotdog, there is only one brand for me and that is Purefoods and the same goes for corned beef and the others. But we have no idea of other brands out there which they say is really good also. Men tend to be always in the rush when it comes to grocery shopping and we end up sometimes getting the brand which is not really the one we are suppose to buy to. We thought that was the brand but end up buying something identical to the brand and that leads to confusion of goods which means the ordinarily prudent purchaser would be induced to purchase one product in the belief that he was purchasing the other.

 

 

Copyright

It is a legal concept that gives the creator of an original work exclusive rights to it, usually for a limited period of time. At its most general, it is literally “the right to copy,” but also gives the copyright holder the right to be credited for the work, to determine who (if anyone) may adapt the work to other forms, to determine who may perform the work, to benefit financially from the work, and other related rights.[7]

Copyright is purely a statutory right. As such the rights are limited to what the statute confers. It may be obtained and enjoyed only with respect to the subjects and by the persons, and on terms and conditions specified in the statute. Accordingly, it can cover only the works falling within the statutory enumeration or description.[8]

As ruled in the case of Joaquin vs. Drilon, 302 SCRA 225 (1999), copyright refers to finished works, not concepts. The mere format of a show, explained solely through words, doesn’t encompass the whole spectrum of possible audio and visual effects that the actual show would produce; thus the written words in no sense finish the concept or idea of the show. Hence, without production of the master tapes of both shows, even the determination of probable cause for infringement is not possible.

At first glance, whenever you hear copyright the things that come to your mind are books, literary works, and artistic.

A few weeks ago, on a Sunday I was watching UFC and before it started there was an announcement that ‘this show is copyright protected under United States Law and the illegal broadcast of this show will be criminally liable under United States law. When I heard it, it suddenly hit me that before I was watching all this live streaming of pay-per-view matches of different sports, are those websites violating U.S. laws. Incidentally, I tried to log in to those websites that offer them some are already seized by homeland security and law enforcers for violating intellectual property laws. Then suddenly I thought that would I or the millions of the viewers of that site will ever be penalized with such acts.

To encapsulate RA 8293, for me, it is a great law for it covers patents, trademarks, and copyright. The artists, musicians, inventors are all protected from their works from unauthorized use of it without their consent. But the only thing I noticed is that the law will be very hard to understand to the ordinary Juan dela Cruz due to the fact of the choice of words or the terminology of the words are very hard to understand even me a law student find it hard to understand some of the provision but thankfully we have all the resources to understand and the books to guide us. But for the ordinary person, they might encounter some legal problems concerning any of the three for the law does not really promote itself in a way that people will be very enticed to learn. Looking back without the law I believe there will be very few inventors, musicians, who will continue to do their work knowing their works will never be protected and will not earn profits out of it. But thanks to the law they will have a much needed protection to continue what they love most.

 

Lessig’s Lecture

The 57 minute Youtube lecture featuring CC’s Mr. Lessig opened my eyes to they say endless possibilities of information sharing by social media, youtube. In the video, he showed different music videos featuring his and his children’s parodies, Carly Jepsen’s Call Me Maybe, Psy’s Oppa Gangnam Style and Beyonce’s Single Ladies to name a few. In some parts of the lecture he told about how information is power by imitating and being influenced by it to the point of making their own version in Youtube. For me what he is trying to say is whether or not by “remixing” the original videos whether there is any liability romf it. As he explained that it is a cultural form of expression should be a general human right to remix and to share and to burn it for other people to use it legally. They push that there must be sharing and the person must use it for Fair Use.

He also mentioned that Creative Common prepares a culture for solution to show the world what creators choose. For me it means that they empower the creators to make it public the works they are using and to prevent legal disputes arising from it. It’s funny when he mentioned the story of a singer named Prince who filed action against a mother who used the song in the video while capturing her daughter walking and dancing. It is as if they are using it in a bad way and I think it is even good for people will still remember the artist’s music for he has been forgotten by the world of his music. Moreover, he mentioned that even Youtube was about to prepare to file legal actions against him for illegal use but he countered it by it is his constitutional right and he is protected out of it. Also I did not know that it is very costly to have a lawsuit concerning his advocacy and that it will take so much time.  Lastly, they even support some colleagues of theirs who are imprisoned because of the violation of law.

In my opinion I strongly believe by the use of Fair Use when using other’s work. I may be wrong for others but I think it is the simplest way of using something that would not incur any liability.


[1] Salao. (2012). Essentials of Intellectual Property law. (Second ed., p. 2). REX Book Store.

[3] Arce Sons and Company vs. Selecta Biscuit Company, G.R. No. 14761, January 28, 1961

[4] Asia Brewery Inc. vs Court of Appeals, G.R. No. 103543

[5] McDonald’s Corporation vs LC Big Mak Burgers Inc. G.R. No. 143993

[6] Del Monte Corp. vs. Court of Appeals,

[7] Kho vs. Court of Appeals, G.R. No. 115758, March 19, 2002

[8] Salao. (2012). Essentials of Intellectual Property law. (Second ed., p. 242). REX Book Store.

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