Impacts of National Information Technology Environments on Business
Legal Environment
The Intellectual Property Rights Regime of the Philippines
There is quite a rigid Intellectual Property code written up for the Philippines stating, in detail, Philippine laws and policies (as well as incredible consequences for infringement on the laws) on Intellectual Property within this country. The most recent of Intellectual Property Code of the Philippines is relatively new, taking effect on January 1, 1998. The Intellectual Property Office was created and organized on or before June 5, 1998.
The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and craetive activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act.
The use of intellectual property bears a social function. To this end, the State shall promot the diffusion of knowledge and information for the promotion of national development and progress and the common good.
It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines.
Who is protected
Any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is a party to any convention, treaty or agreement relating to intellectual property rights or the repression of unfair competition, to which the Philippines is also a party, or extends reciprocal rights to nationals of the Philippines by law, shall be entitled to benefits to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of an intellectual property right is otherwise entitled by this Act.
The term Intellectual property rights under the IP code includes
Copyright and Related Rights;
Trademarks and Service Marks;
Geographic Indications;
Industrial Designs;
Patents;
Layout-Designs [Topographies] of Integrated Circuits; and
Protection of Undisclosed Information.
The term technology transfer arrangements refers to:
...contracts or agreements involving the transfer of systematic knowledge for the manufacture of a product, the application of a process, or rendering of a service including management contracts; and the transfer, assignment or licensing of all forms of intellectual property rights, including licensing of computer software except computer software developed for mass market.
Government Agencies
The agency of the government in charge of the implementation of the Intellectual Property Code is the Intellectual Property Office which replaced the Bureau of Patents, Trademarks and Technology Transfer. It is divided into six [6] Bureaus, namely:
Bureau of Patents;
Bureau of Trademarks;
Bureau of Legal Affairs;
Documentation, Information and Technology Transfer Bureau;
Management Information System and EDP Bureau; and
Administrative, Financial and Personnel Services Bureau.
Functions of the Intellectual Property Office
Examine applications for the grant of letters patent for inventions and register utility models and industrial designs;
Examine applications for the registration of marks, geographic indication and integrated circuits;
Register technology transfer arrangements and settle disputes involving technology transfer payments covered by the provisions of Part II, Chapter IX on Voluntary Licensing and develop and implement strategies to promote and facilitate technology transfer;
Promote the use of patent information as a tool for technology development;
Publish regularly in its own publication the patents, marks, utility models and industrial designs, issued and approved, and the technology transfer arrangements registered;
Administratively adjudicatecontested proceedings affecting intellectual property rights; and
Coordinate with other government agencies and the private sector efforts to formulate and implement plans and policies to strengthen the protection of intellectual property rights in the country.
Significant features of the law
A 'first-to-file' system (rather than 'first-to-invent')
For inventions, the period of grant is 20 years from date of filing
For utility models, the grant is 7 years without renewal
For industrial designs, the grant is 5 years plus renewals of 5 years
The examination is made only upon request
Publication is effected after 18 months from filing date or priority date
Penalties of infringement range from PhP100,000 ($2,500) to PhP300,000 ($7,500) and/or 6 months to 3 years of imprisonment and the offense prescribes in 3 years.
Significant changes in the trademark law
The element of use has been eliminated as a requirement for application
The term is for 10 years, renewable for 10-year periods
Proof of use within 3 years from the filing of the application is required and the affidavit of use should be filed within 1 year from the 5th anniversary
A Supplemental Register is no longer required
The penalties for infringement, unfair competition, false designation of origin and false description or representation range from fines of PhP50,000 ($1,250) to PhP200,000 ($5,000) and/or 2 to 5 years of imprisonment.
Significant changes in the copyright law
It is now required that after the first public dissemination of performance by authority of the copyright owner of certain specified work, there shall, for the purpose of completing the records of the National Library and the Supreme Court library, within three (3) weeks, be registered and deposited with it, by personal delivery or by registered mail, two (2) complete copies or reproductions of the work in such form as the directors of said libraries may prescribe.
The current range of penalties are as follows:
For first offenders fine of PhP50,000 ($1,250) to PhP150,000 ($3,750) and/or imprisonment of 1 to 3 years
For second offenders fine of PhP150,000 ($3,750) to PhP500,000 ($12,500) and/or imprisonment of 3 to 6 years
For third and subsequent offenders fine of PhP500,000 ($12,500) to PhP1.5 Million ($37,500) and/or imprisonment of 6 to 9 years
In case of insolvency, the offender shall furthermore suffer subsidiary imprisonment.
Transborder Data Flows and Privacy
Privacy International, along with the Electronic Privacy Information Center, put together an International Survey of Privacy Laws and Developments in the world, and at specific countries in more detail. This is an assessment of privacy laws in general and not specifically transborder data flow policies. The Philippines was one of those countries surveyed. These findings are reported in the Privacy and Human Rights 1999 International Survey of Privacy Laws and Developments.
Privacy and Human Rights 1999
An International Survey of Privacy Laws and Developments
"Article III of the 1987 Constitution protects the right of privacy. Section 2 states "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized."
Communications and Correspondences
"Section 3 of the Constitution states: "(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding."
Access to Information
"Section 7 states: "The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law."
Data Protection
There is no general data protection law but there is a recognized right of privacy in civil law. Bank records are protected by the Bank Secrecy Act. The Senate debated a proposal in March to force three million citizens to file an annual "Statement of Assets and Liabilities (SAL)"
Wiretapping Laws (and interesting story)
Wiretapping is not allowed unless ordered by the court.
The Anti-Wiretapping Law requires a court order to obtain a telephone tap. In April 1999, The National Bureau of Investigation and the Ombudsman started investigations after reports that police had tapped at least 3,000 telephone lines including top government officials, politicians, religious leaders, businessmen and print and television journalists. In May 1998, Director Gen. Santiago Alino, chief of the Philippine National Police, ordered an investigation of the alleged electioneering and illegal wiretapping activities by members of the National Police's Special Project Alpha (SPA). Matillano said that his office received information that the former SPA men had been using the office as their "monitoring center" against Vice-President Estrada's political opponents. Five recorders used to monitor wiretaps were found at the offices. The House and the Senate held investigations in August 1997 after officials of the telephone company admitted that their employees were being paid to conduct illegal wiretaps.
National Computerized Identification Reference System
"The Supreme Court ruled in July 1998 that Administrative Order No. 308, the Adoption of a National Computerized Identification Reference System, introduced by former President Ramos in 1996, was unconstitutional. The Court said that the order, "will put our people's right to privacy in clear and present danger . . . No one will refuse to get this ID for no one can avoid dealing with government. It is thus clear as daylight that without the ID, a citizen will have difficulty exercising his rights and enjoying his privileges." Government lawyers asked the court to reconsider its decision in August, and President Joseph Estrada reiterated his support for the use of a national identification system in August 1998 stating that only criminals are against a national ID. Justice Secretary Serafin Cuevas authorized the National Statistics Office (NSO) to proceed to use the population reference number (PRN) for the Civil Registry System-Information Technology Project (CRS-ITP) on August 14, claiming that it is not covered by the decision."
Cryptography and Liberty 1999
An International Survey of Encryption Policy
The 1999 Cryptography and Liberty report put together by EPIC (Electronic Privacy Information Center) found at: www2.epic.org/reports/crypto1999.html, reveals that few countries restrict encryption technologies and that there has been more relaxation of restrictions on encryption by major industrialized countries in the previous year.
Findings for the Philippines in particular showed a "Green" status for both 1998 and 1999. A "Green" designation signifies that the country promotes or has expressed support for a policy that allows for unhindered legal use of cryptography, such as adopting the OECD Guidelines. The 1997 OECD Guidelines on Cryptography Policy and the European Commission expressed strong support for the unrestricted development of encryption products and services. The use of cryptographic hardware and software is not currently controlled in the Philippines and so the domestic use of encryption by citizens is not restricted. This is a forward step for the Philippines as the government has noted the importance of security of electronic information for electronic commerce, the threats of economic espionage, and the need to protect privacy online.
Censorship in the Philippines?
While researching censorship within the Philippines I came across two letters written to regulating bodies within the Asian Nations. I am sure there are countless other correspondences sent on this issue. The first is a letter written a few years ago by several members of various committees against censorship within the Philippines (and other Asian countries). The second letter was very similar, written to the Asia-Pacific Economic Cooperation (APEC) a year later by the Canadian Committee to Protect Journalists (CCPJ), the Institute for the Studies on Free Flow of Information (ISAI) and other freedom of speech organizations.
In early March 1996, member nations of the Association of Southeast Asian Nations (ASEAN) said they planned to set up a regulatory body to deal with the flood of information technology; they also voiced concern about pornography and disinformation. In the Philippines, Internet censorship measures were introduced in the legislature.
Apparently, ASEAN, the Association for Southeast Asian Nations, of which the Philippines is a member, decided in 1996 to collectively regulate member nationsš communication on the Internet which was spurred by Singaporešs recent established Internet Code of Practice. Content-based restrictions were to be put on online communications coming in and flowing out of these member nations. The various organizations that put together this letter to the Philippines Department of Science and Technology are against this regulation of communication on the grounds that this type of censorship violates peoplešs freedom of speech and expression.
Though the Philippines may have been in agreement with some parts of the regulation of online communication, the letter states that the Philippines was not interested in censorship of political discussions or political control. Besides political agendas, a main concern for ASEAN was preserving cultural values and national sovereignty, yet again, it is unclear how ASEAN will accomplish reaching an agreement on what content should and should not be censored or regulated.
Unfortunately, I have not yet been able to verify this information through the ASEAN site.
The second communication cites countries directly about their actions on censorship, stating that in the Philippines in particular, in 1996, at the request of the Department of Justice, the National Telecommunications Commission of the Department of Transportation and Communications sent a memo to all service providers asking for their comments and suggestions on the matter of barring or blocking pornographic materials on the Internet.
Like the first, this letter is also against the control of free flow of information and free expression on the Internet. It warns governments that policies do not stop with the first anti-pornographic directives but continue into more censorship of material. The letter reminds member nations that content-based restrictions of online communications violates internationally guaranteed rights of free expression. Likewise, the letter addresses the idea of conserving cultural values by stating that censorship does not ensure the respect of cultural norms or values.
