The ASEAN Community 2015: A Brief Study of its Possible Implications on Intellectual Property

1. History of ASEAN & Introduction

 

On August 8, 1967, the foreign ministers, with the authority of their respective Heads of State/Government, of the Republic of Indonesia, Malaysia, the Republic of Philippines, the Republic of Singapore and, the Kingdom of Thailand, aware of their mutual interests and common issues given their shared history and geography, have signed what is now known as the ASEAN (Bangkok) Declaration[1]. The declaration aimed to “to establish a firm foundation for common action to promote regional cooperation in South-East Asia in the spirit of equality and partnership and thereby contribute towards peace, progress, and prosperity in the region”[2]. Since then, the number of the member-nations/states has increased to ten which now include Brunei Darussalam (1984)[3], the Kingdom of Cambodia (1999)[4], the Lao People’s Democratic Republic (1997)[5], the Union of Myanmar (1997)[6], and the Socialist Republic of Viet Nam (1995)[7].

By 2015, the ASEAN member nations aim to create what would be known as ASEAN Economic Community (AEC) in order to further their goals of creating a more globally competitive and a more regionally cooperative ASEAN economy. The precursor to this planned AEC in 2015 is the Common Effect Preferential Tariff (CEPT) Scheme within what came to be known as Asian Free Trade Area (AFTA)[8].

Aiming to form the ASEAN Economic Community (AEC) by 2015, ASEAN has released an “ASEAN Intellectual Property Rights Action Plan, 2011-2015” to serve as a guide in the intellectual property sector in the creation of an ASEAN Economic Community. The said action plan stated specific goals to serve as its framework in creating AEC 2015. The specific goals are the following:

“Strategic Goal 1:

A balanced IP system that takes into account the varying levels of development of Member States and differences in institutional capacity of national IP Offices to enable them to deliver timely, quality, and accessible IP services to promote the region as being conducive to the needs of users and generators of IP.

 

Strategic Goal 2:

Developed national or regional legal and policy infrastructures that address evolving demands of the IP landscape and AMSs [ASEAN Member States] participate in global IP systems at the appropriate time.

 

Strategic Goal 3:

The interests of the region are advanced through systematic promotion for IP creation, awareness, and utilization to ensure that IP becomes a tool for innovation and development; support for the transfer of technology to promote access to knowledge; and with considerations for the preservation and protection of indigenous products and services and the works of their creative peoples in the region.

 

Strategic Goal 4:

Active regional participation in the international IP community and with closer relationships with dialogue partners and institutions to develop the capacity of Member States and to address the needs of stakeholders in the region.

 

Strategic Goal 5:

Intensified cooperation among AMSs and increased level of collaboration among them to enhance human and institutional capacity of IP Offices in the region.”[9]

 

This paper aims to do a brief study of the possible implications of the implementation of three of the five strategic goals with respect to the intellectual property rights of Filipinos in the road to creating the ASEAN Economic Community of 2015.

 

1. Importance of the Protection of Intellectual Property Rights

 

The importance of ensuring the protection of intellectual property rights within the region lies with the fair conduct of business. Without such protection, the citizens of the ASEAN member states would not be encouraged to create more innovative products and processes because of the uncertainty that they will be credited nor have rights over their hard earned work and reap the benefit that would come with its success. This in turn would result to degradation of the region because of the lack of improvement in the region.

A perfect example of such a situation is the piracy of the products of the film industry in the region. When the issue of piracy first came into the lime-light, the said industry had suffered such huge losses which took quite awhile to recover when it first became a victim of piracy. However, due the recent efforts of the countries in the region to thwart the said issue, the film industry in the region has slowly recovered and started to make new materials again as it did in the past.

As simply stated, “the role of law for IPRs [intellectual property rights] protection is to trigger the birth of creativity”[10].

Futhermore, beyond its economic utilization, the protection of intellectual property rights must also be seen as a method to preserve one’s culture and heritage that is surely endemic to that region. The lack of protection of one’s culture and heritage may result to into creating an identity that is a mishmash of characteristics which were originally considered to be alien.

 

1. A Balanced Intellectual Property System

 

“Strategic Goal 1:

A balanced IP system that takes into account the varying levels of development of Member States and differences in institutional capacity of national IP Offices to enable them to deliver timely, quality, and accessible IP services to promote the region as being conducive to the needs of users and generators of IP.”[11]

 

Seeing the need to be in the fore-front of technology regionally and globally, this strategic goal “focuses on registration, protection, and enforement of IPRs [intellectual property rights] and the programmes that will enable the region to provide simple and user-friendly protection frameworks, and improve the quality and accessibility of IP services”[12] in order to “continuously attract the inflow of cutting-edge technology through patent filings by assuring inventors and innovators that patents granted in any of the AMSs have a high presumption of validity and enforceability.”[13] The ASEAN Member States’ national IP offices would be expected to work with the different branches of their respective governments in order to deter intellectual property violations within their respective jurisdictions. This is the case because the authors of this action recognizes the impossibility of trying to create a unified patent court, unlike in the case of the a number of European Union member states[14].

The problem with the above-stated goal is that it aims to create a balanced IP system of its member states but in the same time recognizes the disparity in their levels of development and institutional capacity and resources of the national IP offices to implement the goals aimed for, wih respect to intellectual property rights. Such disparity may result in a situation wherein a number of member countries have already achieved the goals within their respective countries while other member countries are left behind.

 

 

1. Raising Regional Awareness of Intellectual Property Rights

 

“Strategic Goal 3:

The interests of the region are advanced through systematic promotion for IP creation, awareness, and utilization to ensure that IP becomes a tool for innovation and development; support for the transfer of technology to promote access to knowledge; and with considerations for the preservation and protection of indigenous products and services and the works of their creative peoples in the region.”[15]

 

The protection of intellectual property rights in the region is essential as these rights may be used as a tool in advancing the ASEAN region’s economical and cultural landscape and in turn, affect the political landscape of the region. The need for an increased number of trademark and patent filings within the region would help in ensuring that the fruits of the the work of the citizens of member countries are reaped and utilized by their creators and eventually, the ASEAN region itself.

This aimed increase in the number of trademark and patent filings within the region would not be successful if the information and awareness campaigns and projects with regard to intellectual property rights aren’t intensified[16]. Citizens of the member states would not be able to utilize this right if they are unaware of its existence or the process that are involved with it.

 

1. Enhancing the Capacity of Intellectual Property Offices in the Region

 

“Strategic Goal 5:

Intensified cooperation among AMSs and increased level of collaboration among them to enhance human and institutional capacity of IP Offices in the region.”[17]

 

For several years now, the ASEAN “has relied heavily on partners and institutions to enhance human and institutional capacity of national IP Offices”[18] which lead to the current situation wherein the national IP offices in the region have been unable to progress independently. The solution that is being envisioned by the ASEAN through its AEC 2015 is it should be the ASEAN member states that should be helping the national IP offices within the region[19] as ths would supposedly “result in the success of ASEAN projects”[20] and  “will also build confidence in the capacity of member states to provide the assistance needed by other member states.”[21]

It would be vital that the national IP offices would slowly start to distance themselves from these partners and institutions as this affects  their credibility and standing as independent government agencies.

 

1. Conclusion

 

In keeping up with the times, it is vital that the intellectual property rights of the citizens of ASEAN member states be protected in order to create and sustain a ASEAN region that has a innovative and competitive edge in protecting the ever-flowing ideas of its citizens.

In providing for the strategic goals that may be found in “ASEAN Intellectual Property Rights Action Plan, 2011-2015”, the ASEAN was able to present to the public its concrete plans in order to achieve the ASEAN Economic Community 2015 with respect to intellectual property rights which in turn would improve the awareness of its member states to be able to do their respective tasks effectively creating an even more cooperative ASEAN region.

The improved cooperation between ASEAN member states would further allow its citizens to create and innovate break-through products and processes that would benefit the general public while ensuring the rights of the creator are upheld and protected which in turn will make room for more demand of unique products and processes that can be identified with the region.

To sum up all of these, it will be highly beneficial for all ASEAN member states to participate in the implementation of the action plan, as this will benefit the entire ASEAN region and its protection of its intellectual property rights.

 

[1]“The Asean Declaration (Bangkok Declaration) Bangkok, 8 August 1967”. Association of Southeast Asian Nations. http://www.asean.org/news/item/the-asean-declaration-bangkok-declaration. Retrieved May 25, 2014.

[2] Id.

[3]“Overview”. Association of Southeast Asian Nations. http://www.asean.org/asean/about-asean/overview. Retrieved May 26, 2014.

[4]Id.

[5]Id.

[6]Id.

[7]Id.

[8]“Asean Free Trade Area (AFTA Council)”.Association of Southeast Asian Nations. http://www.asean.org/communities/asean-economic-community/category/asean-free-trade-area-afta-council. Retrieved May 25, 2014.

[9] “ASEAN Intellectual Property Rights Action Plan, 2011-2015”. Association of Southeast Asian Nations. http://www.aseanip.org/ipportal/index.php?option=com_content&view=article&id=142:asean-intellectual-property-rights-action-plan-2011-2015&catid=84:resources&Itemid=455. Retrieved May 24, 2014.

[10]Santoso, E. & Roestamy, M.. “Asean’S Lack of Integration in Trademark Registration Related

to Asean Economic Community (AEC) by 2015”. http://www.iiste.org/Journals/index.php/JLPG/article/viewFile/8494/8433. Retrieved May 24, 2014.

[11]Id.

[12]Id.

[13]Id.

[14]“What is the Unified Patent Court (UPC)?”. Unified Patent Court. http://unified-patent-court.org/about-the-upc/14-category-a. Retrieved May 25, 2014

[15] “ASEAN Intellectual Property Rights Action Plan, 2011-2015”. Association of Southeast Asian Nations. http://www.aseanip.org/ipportal/index.php?option=com_content&view=article&id=142:asean-intellectual-property-rights-action-plan-2011-2015&catid=84:resources&Itemid=455. Retrieved May 24, 2014.

[16]Id.

[17] “ASEAN Intellectual Property Rights Action Plan, 2011-2015”. Association of Southeast Asian Nations. http://www.aseanip.org/ipportal/index.php?option=com_content&view=article&id=142:asean-intellectual-property-rights-action-plan-2011-2015&catid=84:resources&Itemid=455. Retrieved May 24, 2014.

[18]Id.

[19]Id.

[20]Id.

[21]Id.

Data Privacy Act of 2012 (R.A. 10173): A Brief Study of Possible Ambiguous Areas and Viable Remedies of R.A. 10173

Introduction

Aware of the need to adapt to the rapidly evolving age of Information Technology, President Benigno S. Aquino III signed into law on August 15, 2012, Republic Act No. 10137, otherwise known as the “Data Privacy Act of 2012”[1], which aims to “protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth.”[2] Together with the newly enacted R.A. 10175, otherwise known as the “Cybercrime Prevention Act of 2012”[3], this shines into light the State’s commitment to adapt to our ever-changing times while ensuring the basic rights of the Filipinos found in our Constitution and other laws are still upheld.

This brief study of the Data Privacy Act of 2012 aims to highlight seemingly ambiguous areas that may possibly give rise to legal questions in the near future when they are raised in the proper courts. The importance of the study of such ambiguous areas may help in lessening the confusion of the general public and lessen, if not eradicate, possible abuses that may be derived from these grey areas found in the Data Privacy Act of 2012.

The ambiguous areas that will be discussed in this brief study are the following: (1) Section 3(b) that covers the statutory requirement of consent of the data subject, (2) Section 4(a) that covers the scope of limitations concerning government official and employees, (3) Section 17 that covers the transmissible rights of the State as a legal heir, and lastly, (4) Section 20(f) that covers the prompt notification of data subjects by personal information controller in the event of a breach or a leakage of information.

 

Agreeing to the Terms and Conditions of Privacy without reading it in its entirety

Section 3(b) of R.A. 10173 provides for the definition of the “consent of the data subject”. It states that:

“Consent of the data subject refers to any freely given, specific, informed indication of will, whereby the data subject agrees to the collection and processing of personal information about and/or relating to him or her. Consent shall be evidenced by written, electronic or recorded means. It may also be given on behalf of the data subject by an agent specifically authorized by the data subject to do so.”[4]

The above-mentioned provision requires that the consent of the data subject is a “freely given, specific, informed indication of will”. I would like to expound on the requirement of the law for the data subject to have an “informed indication of will”.

Whenever a person registers for a service or purchases something off the internet and fills out the necessary information required from the person, the person is usually required  to check a box which reads something like this: “I have read and agree to the the privacy terms and conditions of this website”. If left unchecked, the person would not be able to conclude the registration for a service or the purchase of a product or service from the internet so the person would most likely click on the box to agree to it. However, since the contents of the privacy terms and conditions of websites are often published in very fine print and written in a language that a layman would have a difficulty in  understanding its contents, there is a good chance that the person would forego reading the said terms and condition and just check on the box so he can already make use of the service or enjoy the product purchased. After all, most people do the same thing, don’t they?

Now consider this situation: a website of a Filipino-owned and locally-based Company X offers the service of notifying its subcribers through email or text message free of charge when there is an on-going sale or marked-down sale of goods or services in a number of establishments which the subscriber may filter according to his preference or lifestyle. However, before a person may successfully subscribe to the free service being offered, he must agree to the privacy terms and conditions that provides his personal information, at the discretion of the said company, may be disclosed to the establishments offering the discounted goods or services. Given the said provision in the privacy terms and conditions, will the company violate its obligation as a personal information controller in disclosing personal information of its subscribers?

In determining whether its subscribers have consented to such a practice, the consent of the data subject, in this case the subscribers of the services offered by Company X, must be a freely given, specific, informed indication of will.

First, regarding the issue whether consent was freely given, it may be said that the consent was freely given as there was no coercion on the part of Company X to ensure people would subscribe to their service. Second, regarding the issue whether the consent given was specific to the service being offered by Company X, it may also be said that the consent was specific because subscribers are aware that they are signing-up for the free service being offered by Company X. Lastly, regarding the issue whether there was informed consent from the subscribers in permitting the company to transmit personal information to other establishments, the answer to this element, unlike the previous two, must be expounded.

The quantum of informed consent to meet the statutory requirement may be either be (1) that it is already enough that the potential subscriber was informed of the existence of the privacy terms and conditions and that he agreed to it freely and specifically, or (2) that the privacy terms and conditions must be fully read by the potential subscriber in order for his consent to be considered “informed”. Given these two quanta of informed consent, the former one must be adhered to because if the latter one is allowed to be used as a defense to nullify the consent given, it will open flood-gates that could damage that sanctity of contracts between the parties since the contract’s “validity or compliance cannot be left to the will of one of them.”[5]

 

 Government Officials and Employees with Sensitive Job Descriptions:

Section 4(a) of R.A. 10173 provides for the scope and limitations of the law. It states that the law does not cover information regarding government institutions’ officers and employees regarding the following matters:

“(1) The fact that the individual is or was an officer or employee of the government institution;

 (2) The title, business address and office telephone number of the individual;

 (3) The classification, salary range and responsibilities of the position held by the individual; and

 (4) The name of the individual on a document prepared by the individual in the course of employment with the government.”[6]

The above-mentioned provision covers “any individual who is or was an officer or employee of a government institution”[7]. The said provision did not provide any exceptions hence, I can be said that no officer or employee of a government institution is exemption from the limitation provided.

A possible issue may occur when the subject of inquiry is an officer or an employee of a government institution holding an office which is sensitive in nature but not covered by R.A. 10173. Because of the all in compassing provision stated above, such government officer or employee may not be protected by the said law regardless of the weight and value of the information and knowledge he may possess. The very life of the government officer or employee and the people close to him may be endangered if his “classification, salary range and responsibilities of the position” are divulged.

Take this situation for example: Person Y is an intelligence officer of the Optical Media Board tasked to investigate where pirated movie disks are produced in Metro Manila and, if need be, order the raid of the suspected facilities and the seizure of the illegal goods found therein. Since government officials and employees of government institution are not protected by R.A. 10173, the information regarding Person Y’s “classification, salary range and responsibilities of the position” may be acquired by anyone prudent enough to look into him, leaving him vulnerable to harassment and even threat to his own life and the people close to him.

I find the absolute provision covering all officers and employees of government institution problematic because people occupying sensitive positions in government (The Armed Forces, The Police, Government-owned Public Utilities, etc.) are left vulnerable which in turn, leaves the entire country vulnerable.

 

 The State as an Intestate Legal Heir in Right of the Data Subject

Section 17 of R.A. 10173 provides for the transmissiblity of the right of the data subject in case of the his death or incapacity to exercise his rights. It states that:

“The lawful heirs and assignees of the data subject may invoke the rights of the data subject for, which he or she is an heir or assignee at any time after the death of the data subject or when the data subject is incapacitated or incapable of exercising the rights as enumerated in the immediately preceding section.”[8]

The above-mentioned provision states that the rights of the date subject are transmitted to legal heirs and assignees and may be invoked by them anytime after the death or incapacity of the data subject.

It is said in our laws in succession that, Article 1011 of the New Civil Code of the Philippines, as amended, that “in default of the persons entitled to succeed in accordance with the provisions of the Sections, the State state shall inherit the whole estate”[9] making the state a legal heir in the event a person dies without any other legal heir but the State. This situation does not go against the basic human right of privacy found in our Constitution as this is all found in R.A. 10173 making access to the information and data legal with respect to the data subject decedent.

However, a problem may arise when information and data from the private sector made available to the State by virtue of the transmissible rights found in Section 17 of R.A. 10173 include transactions that may violate the privacy rights of third persons who had dealings with the data subject decedent which may go against Section 2, Article 3 of the 1987 Philippine Constitution which states that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure of whatever nature”[10] and, possibly, bank secrecy laws such as the R.A. 1405 (Secrecy of Bank Deposit Act).

This situation may further be illustrated by this example: Person Z died intestate without any legal or voluntary heir but the State. He has left, among other properties, a bank account with the Bank of the Philippine Islands. The State, by virtue of the Section 17 of R.A. 10173, was able to get hold of Person Z’s list of all of his bank transactions since he opened an account with the said bank in 1980. Based on the records that was passed on by the bank to State, the latter found out all the transactions of Person Z and to whom the money was given or received from. Absent any probable cause to investigate them for crimes like money-laundering or tax evasion, would the State’s actions, acquiring knowledge of the bank transactions of Person Z with third parties, effectively amount to an unlawful search on the part of the third parties?

This issue is quite tricky as the law does not qualify which information or data may be transmitted to the legal heirs. It only provided for the rights which the data subject and his legal heirs or his assignees may do to enforce the rights found in R.A. 10173.

 

The Method of Notification to Data Subjects In case of a Breach of Information

Section 20(f) of R.A. 10173 provides the personal information controller shall promptly notify the Commission and the affected data subjects in the event of a breach that may cause a real risk that may affect the data subjects. It states that:

“(f) The personal information controller shall promptly notify the Commission and affected data subjects when sensitive personal information or other information that may, under the circumstances, be used to enable identity fraud are reasonably believed to have been acquired by an unauthorized person, and the personal information controller or the Commission believes that such unauthorized acquisition is likely to give rise to a real risk of serious harm to any affected data subject.”[11]

In case of a breach or a leakage of information, the personal information controller is obligated to notify the Commission and the data subjects that may be possibility affected. However, the law failed to specify or at least give a minimum statutory requirement on how data subjects must be notified in case of a breach because the notification requirement would vary depending on the size of population of the data subjects affected by a breach or a leakage of information. For example, if the breach of information happened in a small retail company employing 20 people, then there would be a slim chance that their personal information controller would have a hard time disseminating the notification and ensuring all the data subjects received the notification. However, if the breach occurred in a major telecommunications company which has 20 million subscribers then, the task of notifying the data subjects and making sure they were able to get hold of the new would be challenging to say the least. It would have been helpful of the law gave a minimum statutory requirement there would not have been a grey area concerning the manner of notifying the data subjects.

Also, another issue that may be pointed out in the same provision is the lack of substantiation with regard to the period in which the personal information controller is obligated to notify the Commission and the affected data subjects. It merely said the “the personal information controller shall promptly notify the Commission and affected data subjects.”[12] Similar to the issue stated above, it would have been helpful of the law gave a minimum statutory requirement there would not have been a grey area concerning the period of notifying the data subjects.

Conclusion

While the intent of Republic Act No. 10173,otherwise known as the “Data Privacy Act of 2012” is noble and pioneering as it brings into light the need of our law to adapt to our ever-changing times while ensuring the basic rights of the Filipinos found in our Constitution and laws are still upheld, the said law still needs to be improved either through an amendment or further elucidated by its Implementing Rules and Regulations.

Lastly, it must be stressed that the importance of the study of such ambiguous areas may help in lessening the confusion of the general public and lessen, if not eradicate, possible abuses that may be derived from these ambiguous areas found in the Data Privacy Act of 2012.

 

[1]Section 1 of R.A. 10173, otherwise known as the “Data Privacy Act of 2012”.

[2]Section 2 of R.A. 10173, otherwise known as the “Data Privacy Act of 2012”.

[3]Section 1 of R.A. 10175, otherwise known as the “Cybercrime Prevention Act of 2012”.

[4]Section 3(b) of R.A. 10173, otherwise known as the “Data Privacy Act of 2012”.

[5]Article 1308 of R.A. 386, as amended, otherwise  known as the “ Civil Code of the Philippines”.

[6]Section 4(a) of R.A. 10173, otherwise known as the “Data Privacy Act of 2012”.

[7]Id.

[8]Section 17 of  R.A. 10173, otherwise  known as the “Data Privacy Act of 2012”.

[9]Article 1011 of R.A. 386, as amended, otherwise known as the “ Civil Code of the Philippines”.

[10]Section 2, Article 3 of the 1987 Philippine Constitution .

[11]Section 20(f) of  R.A. 10173, otherwise  known as the “Data Privacy Act of 2012”.

[12]Id.