CLIMATE CHANGE LITIGANTS WIN IN SOUTH AFRICA and GETS STARTED IN INDIA and S.KOREA

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
9 April 2017

S. Africa’s climate activists taking action related to their climate suit  against their government and a coal-fired power plant company

from : http://thegreentimes.co.za

A news article heralded one of the first climate change litigation efforts in South Africa whereas in India, a 9-year old girl sued the Government so it may speed up its climate change efforts, while in South Korea, a woman who is suffering from asthma along with her children, sued her government and China, so that the two countries will undertake common efforts to reduce the fine particulate dust resulting from the two country’s numerous cars and industries that exacerbate mainly air pollution in the two countries.

On 8 March 2017, the North Gauteng High Court handed down a landmark ruling in Earthlife Africa Johannesburg’s (ELA) case against the Minister of Environmental Affairs, the Department of Environmental Affairs (DEA), and Thabametsi Power Company (Pty) Limited.

The court said that Earthlife Africa (ELA) was correct in claiming that the Minister should have considered the new power station’s climate change impacts before deciding whether to authorise it.

The report also noted that no appeal has been lodged by any of the parties against the judgment, and the deadline for the lodging of an appeal has now expired, which makes such ruling, barring any other development, for all purposes, final.

In South Korea, Choi Yul, president of the Korean Green Foundation along with his attorney Ahn Kyung-jae, motivated five other individuals to lodge a joint lawsuit against Seoul and Beijing on Wednesday for physical and mental damages caused by the “fine dust” particles filling the air.

Each of the plaintiffs are demanding 3 million South Korean won ($2647) in compensation, but they say the money is only symbolic — what they really want to accomplish is to induce the two governments to reduce toxic smog, a result of too much dependency on carbon fuels and millions of cars.

In India, a 9-year old child, Ridhima Pandey, filed a petition with the National Green Tribunal (NGT), a special court for environment-related cases, asking the tribunal to direct the government “to take effective, science-based action to reduce and minimize the adverse impacts of climate change.”

These actions should encourage like-minded citizens all over the world to also take their own similar initiatives to spur their governments into action in addressing climate change.

oOo

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Designs Found in Cheerleader Uniforms are Copyrightable, says US Supreme Court

CURRENT INNOVATION CONCERNS
Elpidio V. Peria
2 April 2017

from ://fortune.com

 

 

 

The US Supreme Court recently held last 22 March 2017 that designs incorporated in cheerleading uniforms are copyrightable, making it now difficult for small entrepreneurs to just mimic these same designs and pass these designs off as their own, if they were not able to apply for copyright on them first.

Of all things that may be subjected to litigation, this case involved the lines, chevrons (a line or a shape in the form of a V or an inverted V, especially one on the sleeve of a uniform indicating rank or length of service- from http://www.google.com ) and colorful shapes on a uniform worn by cheerleaders, which was copied by a smaller company, in this case Star Athletica LLC, from that of a bigger company, Varsity Brands, Inc.

Writing for the majority, Justice Clarence Thomas, applied the text of the US Copyright law here, saying :

A feature incorporated in the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated. This test is satisfied here.

The US Supreme Court found the designs, lines and shapes have a distinct existence or is separable, even if they are placed in another two-dimensional medium, like a wall, for example, thus making them copyrightable.

While this seems straightforward, intellectual property law experts consulted by the fashion magazine Vogue said that while copyright law protects certain types of artistic and creative expressions, patent law protects innovations based on their usefulness and novelty. This case dealt with a tricky middle ground : copyright law can protect aesthetic features of a design for a useful article, but only if they are distinct enough from the article’s useful or functional aspect. The question then becomes how do we define what is useful and what is not? The expert said that this will only be clarified only later when this ruling is eventually applied in the cases that will follow it.

In a further analysis done while the case was pending in the US Supreme Court, Cornell University presented two contending views :

One, with public advocacy group Public Knowledge which said that copyrighting a useful article’s design features without a stringent inquiry into separability will stifle individual creativity, as individual consumers depend upon their ability to take existing products and adapt them. Strong copyright protection will dampen this creative energy and will negatively affect the economy. The group also pointed out that the fashion industry has been fine thus far without extended garment design feature protection and in fact demonstrates a “pirates paradox” where rampant copying facilitated creativity. Even other industries, like cuisine and comedy flourished without broad copyright protection. Law school professors cited by Public Knowledge also argue that allowing Varsity to copyright these designs will enable Varsity to have a monopoly since with copyright protection of its designs, only Varsity will be able to create cheerleader uniforms with such designs.

The other view is by the Council of Fashion Designers in America, Inc. (CFDA), which argues that broader copyright protection is necessary for the fashion industry to grow. They point out that advancing technology has allowed people to copy fashion designs at a higher rate with reduced costs, as a result, copyists can cut all of the costs that emerging designers often need to put into their business. CFDA maintains that these factors may contribute to a decrease in fashion innovation.

Now that the US Supreme Court has decided, Filipino lawyers would very easily invoke this in our local Philippine setting and our concern here should be on those tailoring shops that mimic the uniforms of famous NBA or PBA teams, even the numbers of famous players, like Michael Jordan’s number “23” which is found in many shirts of wannabe basketball players pounding the hardcourt, will these players and tailoring shops be stopped from doing what they are usually doing now? Most likely, it will be companies abroad, like in the US, who may have copyrighted these designs, who will stop these tailoring shops and players, Or these may spur entrepreneurial companies to start a copyright application frenzy to capitalize on Pinoy’s taste for foreign designs.

What about those unique features of festival attire in our year-long fiesta celebrations? Will they be copyrighted too? Perhaps the Department of Tourism should pre-emptively copyright them so that it belongs to all Filipinos and not to greedy entrepreneurial types who will only profit not from the creativity of others but may have the foresight to make money on these existing designs.

Or perhaps the Copyright Bureau of the Intellectual Property Office should just not follow this ruling and come up with a uniquely Filipino solution to this soon-to-be copyright conundrum in our side of the globalized intellectual property world.

oOo

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This US Supreme Court case may make illegal the buying and selling of computer printer toner refill

CURRENT INNOVATION CONCERNS
Elpidio V. Peria
26 March 2017

from : http://store.atlanticinkjet.com

A US Supreme Court case, Impression Products, Inc. v. Lexmark International, Inc,  may soon either extinguish or sustain the practice of using computer printer toner cartridge refill and considering the popularity of these types of refills here in the Philippines, this will surely have an impact on businesses that rely on the secondary market on refilled toner cartridges.

Last 21 March 2017, Impression Products, Inc., a US company engaged in the remanufacture of toner cartridges by acquiring used Lexmark toner cartridges, refurbishes them and sells these cartridges again in competition with new and refurbished cartridges sold by Lexmark, filed a petition for certiorari before the US Supreme Court as the federal appeals court ruled against Impression for its acts of reselling Lexmark toner cartridges.

The original cartridge manufacturing company, Lexmark International, Inc, would prefer that its customers return their empty cartridges to it for refurbishment and resale, rather than sell the cartridges to a remanufacturer. It offers its customers the option to purchase a “Return Program Cartridge” at a discount of roughly 20%, subject to a single use/no-resale restriction. These cartridges contain a restriction that “the buyer may not reuse the cartridge after the toner runs out and may not transfer it to anyone but Lexmark once it is used.”

The key question in this case is : is the patent over the toner cartridges exhausted once the cartridges are sold with a condition that constitutes a post-sale restriction, or to put it in other words, when does the rights of a patent holder over the patented product stop, at the point when it is sold, or can the patent holder still claim monopoly rights over the patented product provided the patent holder communicated to the buyer that such monopoly rights still remain because the patent holder said so?

` A key principle of patent law is the “first sale” doctrine or the doctrine of “exhaustion”, where the authorized sale of a patented article gives the purchaser, or any subsequent owner, a right to use or resell that article. This is because the initial authorized sale of a patented item terminates all patent rights to that item. The unresolved item here is whether the principle of exhaustion will apply when the patent holder expressly communicated to the buyer that it is trying to restrict the further sale of the patented article.

This is a big issue since many Filipinos, or even in the US, depend on these refillers so that they may be able to keep up with the very high prices of these computer printer toner. If the patent owner wins this case, then the monopoly of the toner cartridge manufacturer becomes absolute it will often lead to abuse by way of lousy after-service or even atrociously high prices of toner cartridges.

How will the US Supreme Court decide? We will soon find out and will report on this here in this blog.

oOo

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4 Questions on General Santos City’s Draft Environment Code Chapter on EIA

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
22 March 2017

Hon. Beth Bagonoc, Envt Cttee Chair, SP Gen.Santos City

from : http://spgensantos.ph

 

The Environment Committee of the Sangguniang Panlungsod of General Santos City, led by Hon. Beth Bagonoc, led the 23rd hearing of the Committee on the agenda item concerning the Environmental Impact Assessment or EIA Chapter of the draft Environment Code of General Santos City and the good Kagawad invited the Passionist Center-Justice, Peace and Integrity of Creation, Inc., a non-stock, non-profit organization among its invitees to the public hearing for the draft ordinance.

We have attached below in an Annex to this post, the draft Chapter, so that interested readers may be guided on the issues that we have raised during the public hearing, which may also serve as a documentation of the exchange and perhaps may also be useful for future reference if what we have suggested will be carried out, which is up to the Honorable legislators of the city, if they see there is a wisdom in doing so. The issues, packaged as questions, we raised today were :

1) What is the policy objective of the Sanggunian in coming up with this chapter on the EIA?

The question was asked so that it will be clear what is the purpose of the provisions laid out in the Chapter which reads suspiciously like a rehashed re-wording of what are already in existing laws on EIA, which the Chapter copiously cites.

In this seemingly repetitive re-reading of what’s already in our existing rules and regulations, what then will this chapter of EIA accomplish, just to say that existing rules on EIA apply or to carry out the policy objective of the City on matters relating to EIA in General Santos City’s history.

In our explanation, to see how the City may benefit whether there needs to be a further specification of the rules on EIA in the City, it may be useful to gather the experience of the City in previous environmental battles the City has had, like the policy fight in late 90s on whether to approve genetically-modified corn in the City, and this we failed to mention this morning, but is also relevant in the discussion, how did the City learn from its attempt to clarify whether the EIA for the coal-fired power plant that is now already operating in Kamanga, Maasim, has been approved and the way the proponents of the coal-fired power plants tried to, what some legislators then dubbed as a mis-direction (if it can be recalled, the Sanggunian then was told that the EIA was approved but this was approved in the DENR Central Office, but no copy can be given to those legislators who were asking for that document during a Sanggunian hearing) is some lesson that the City legislators may want inputted in the draft Chapter on EIA.

The point of this recall of the City’s history with EIA is to see what is the space for the city to come in and ask for a specific EIA for a project to which the city has some environmental concerns, does the city have to do it separately or the city only comes in when the other national agencies decide this is not needed but the city wishes to have it done separately. Answering this question will lead us to the next question, actually.

2) Will the EIA requirement of the City be an additional EIA requirement on top of what the DENR is already requiring under existing regulations ?

Depending on the policy objective of the draft Envi Code or the Chapter on EIA, it may be that the EIA requirement in this Chapter of the draft Envi Code may be in addition to the EIA that is already required by existing DENR rules. Or it may only come in during specific circumstances like when the national agencies EIA is not necessary and the city decides to do EIA in spite of that, for its own policy reasons. If it’s the latter, this has to be spelled out in the Chapter, which for now does not clearly appear in the current wording of the Chapter in our Annex below.

At this juncture during the hearing, we brought forward an opportunity where the city may innovate and lead the way forward in matters relating to environmental assessment, and this is to do instead a distinct and separate process called Strategic Environmental Assessment, which is similar in content but not in approach to an EIA and its focus is on reviewing existing policies of the city, like its investment ordinances, or even its implementing of its own ordinance on solid waste management, which, based on the updates of PC-JPIC on its partners in Calumpang this City, is not being implemented well, if all the smelly dumping sites of companies operating in Calumpang would be an indicator.

3) How will social acceptability be determined ?

During the hearing, there were some discussion on whether social acceptability should be a part of the Chapter on EIA, and while it was not denied by the resource person that it is a difficult thing to do, what we said is that there are various approaches on how a social acceptability of a project is done and in the Philippines, at least during my time working with NGOs, there are myriad ways to determine that like community juries, community consultations, including technology assessments, just to broaden the various approaches this is done, though ultimately the goal should be to determine accurate what is the sentiment of the affected communities about an activity to be subjected to EIA

4) What about the precautionary principle?

Finally, we pointed out that EIA is a tool to determine when action should be taken on an activity that may harm the environment and one of the principles that may help to make the EIA a useful process is to include the precautionary principle such that whenever there’s a potential harm to the environment in General Santos City, this is one way the Sanggunian can respond to the challenge.

The precautionary principle tells the City when an activity should be stopped if it appears that an activity is about to harm the environment, there are ways this can be done but this is a key principle that will make the EIA a useful chapter in the draft Environment Code of the City.

oOo

ANNEX

ARTICLE XVII
ENVIRONMENTAL IMPACT ASSESSMENT

SECTION. 1. This Article shall be known as the “ENVIRONMENTAL IMPACT ASSESSMENT”.
SEC. 2.SCOPE OF EIA SYSTEM. The implementation of environmental impact assessment by local government units refer to the powers, duties and functions of the Municipal Mayor, City Mayor and Provincial Governor to adopt adequate measures to safeguard and conserve land, mineral, marine, forest and other resources, as provided under Sections 389(b)(9), 444(b)(3)(v), and 465(b)(3)(v) of RA 7160, Section 12, of the NIPAS Act or RA 7586; Section 17(b)(3)(iii) and Section 17(b)(4) to the provincial and city government, respectively; and RA 10654 or the Fisheries Code of the Philippines.
Subdivided into our (4) categories:
Category A: For Environmentally Critical projects (ECP’s) which will require an ECC.
Category B: For Environmentally Critical Areas (ECA’s) which will require and ECC.
Category C: Projects not falling under Category A or B intended to directly enhance the quality environmental problems. It only require a Project Description Report of which the EMB Office will issue a letter stating theat the project is within category C.
Category D: Artificial Reef restoration/deployment, Pollution Control Devices or facilities required on ECC condition, Pollution control devices or similar facilities intended to prevent emission or discharged beyond allowable limits, preventive of proactive measures against potential natural hazard (e.g. shore protection, embarkment, private dredging, seawall, etc.)
SEC. 3.GOVERNING LAWS. The pertinent laws governing environmental impact assessment are:
a.) Presidential Decree 1152, entitled “Consolidating the Philippine Environment Code”;
b.) RA 7160, otherwise known as the Local Government Code of 1991;
c.) Presidential Decree No. 1586 (Environmentally Critical Areas-ECAS: Areas frequently visited by natural calamities, Prime Agricultural Lands, Water bodies, Mangrove Areas and Coral Reefs, Areas declared Certificate of Ancestral Land Titles/Certificate of Ancestral Domain Certificate; Areas with Critical Slopes; Recharged Areas for Aquifers; Watershed Reserves and all protected areas)
d.) Environmental Critical Projects (ECPs): Heavy industries – metal industries, iron and steel mills, petroleum and petro-chemical industries including oil and gas and smelting plants; Resource Extractive Industries – Major mining and quarrying industries, forestry projects, fishery products.
e.) RA 7586 or “The National Integrated Protected Areas System Act), Sec. 12
f.) RA 6969 or “The Toxic and Hazardous Waste Law”

SEC. 4. OPERATIVE PRINCIPLES. The City government recognizes the need for an effective instrument for ensuring environmental soundness of agro-industrial and ecotourism projects thereby maintaining a rational and orderly balance between economic growth and community development in the city and, as such, hereby adopts the Environment Impact Statement (EIS) system provided under Presidential Decree No. 1586.
Specifically, the following basic process for ensuring environmental soundness of all development projects as identified under PD 1586 are hereby adopted:
a.) EIS Preparation and Approval. The stage in the EIS system wherein an environmental impact assessment (EIA) is undertaken and data are gathered using accepted scientific methods to clarify key issues and concerns, characterize the environmental setting of the project, predict the impact of the project on the setting, and measure the social acceptability of the project. The resulting EIA document will be reviewed by DENR EIA. The ECC may be granted under certain conditions and includes the implementation of an environment management plan.
The City mayor shall fully exercise his powers to ensure that a public hearing shall be conducted for all projects defined under PD 1586, as a condition precedent to ECC issuance.
b.) Scoping refers to the stage in the EIS system where information and assessment requirements are established to provide the proponent with a scope of work for the EIS.
c.) EIA Monitoring. There is hereby created a seven-member multipartite EIA Monitoring Team which shall be organized and headed by the Governor or his duly authorized representative and whose permanent members include one representative from DENR EMB 12, project operator/developer and two (2) on-call members from the private sectors determined by the City Mayor on a project-specific basis.

SEC. 5. FUNCTIONS OF THE MULTI-PARTITE MONITORING TEAM (MMT).
1) The team shall monitor compliance of project based on the Environmental Management Plans, conditions set forth in the ECC and permits issued by DENR-EMB 12;
2) Gather relevant information to determine cause of damage and respond to public complaints about the project; prepare, integrate and disseminate monitoring status reports; and undertake community information and education dissemination. Further, the team shall:
a.) Participate in scoping activities;
b.) Validate scoping sessions;
c.) Participate in public consultation and hearing;
d.) Conduct regular inventory of establishments, and
e.) Submit written monthly status report to the City Mayor
3) Serve as secretariat and assist EIA preparers

SEC. 6.CONDUCT OF SCOPING SESSIONS. The concerned agencies shall assist the EIA preparers in identifying the stakeholders that shall be involved in the scoping sessions.
SEC. 7. CONDUCT OF PUBLIC CONSULTATION AT THE BARANGAY LOCAL GOVERNMENT UNIT (BLGU). The Stakeholders and concerned agencies shall be invited for public consultation on the proposed project to be concurred by the Sangguniang Panlungsod.
SEC. 8.LAW ENFORCEMENT AND MONITORING. The MMT and the DENR shall work together to ensure the compliance of Environmental Compliance Certificate (ECC) and Environmental Management Plan (EMP) including annual inventory of existing establishments and projects within the City to ascertain whether these have complied with the EIA and ECC requirements.
SEC. 9. IEE COMPLIANCE FOR PROJECTS NOT COVERED BY THE EIA SYSTEM. All projects defined under PD 1586 which are proposed to be undertaken in the city , including those not required by national law to secure ECC and therefore not covered by the EIA System pursuant to PD 1586, shall be subject to an Initial Environment Examination (IEE), in addition to submission of additional environmental safeguards pursuant to DENR Administrative Order 37-96; PROVIDED, that the City Mayor shall issue a circular identifying those projects not covered by the EIA System which shall be the subject to IEE in accordance with this provision; PROVIDED FURTHER, that the City Mayor shall also submit his proposed measure for legislative enactment to the Sangguniang Panlungsod, including recommendations for sanctions, penalties, and /or charges for violation of this provision, within nine (9) months upon the effectivity of this Code.
SEC. 10.TRAINING. The members of the MMT shall be required to undergo training on the different aspects of monitoring work as prescribed by law.
SEC.11. ENVIRONMENT GUARANTEE FUND AND ENVIRONMENTAL MONITORING FUND. The MMT shall participate in the negotiation and review of the Memorandum of Agreement (MOA) between the project developed and concerned parties as prescribed by law for the establishment of an Environmental Guarantee Fund (EGF) and Environmental Monitoring Fund (EMF) for projects creating significant public risk.

oOo

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Digong Should Take the Hint on Labor Sector’s Rejection of His ENDO Policy

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
19 March 2017

from : http//www.bulatlat.com

When all labor groups in the country from the conservative ones (TUCP, which calls it “loss-loss”) to the radical (KMU rejects it outright) raise their collective howl and the employers’ groups only issue tepid statements warning of job losses and the most telling here is the statement of an SM official, SM being one of the country’s largest mall operator and is seen as an active practitioner of “endo”, who said the new policy has no impact to their group, then something is seriously wrong with the recently-issued Department Order No. 174 of the Department of Labor and Employment which is supposed to stop the practice of “endo”, a term which describes the nature of short-term employment in the country which usually lasts for five months maximum and avoids all the mandatory benefits usually given to a regular employee.

We have compared the contents of Department Order No. 174 with its predecessor, Department Order No. 18-A issued in 2011, and we can confirm the labor groups are correct in saying the two government issuances are largely the same since the evil they have long wanted to stamp out, the contractualization of labor, has remained, no wonder there is not much serious objection on DO 174 from the employers’ groups, as they said they can largely live with it, which means in real terms, they can continue with what they were doing even after DO 174 goes into effect.

Take for example, their guiding principles, while DO 18-A talks about contracting and subcontracting arrangements as expressly allowed by law and are subject to regulations and explicitly stating that “labor-only” contracting shall be prohibited, DO 174 talks about non-permissible forms of contracting and subcontracting arrangements undermine the Constitutional and statutory right to security of tenure of workers. This statement about non-permissibility is legal gobbledygook or nonsense since what it means is that its opposite, the permissible forms of contracting and subcontracting arrangements will remain, and they are basically what DO 18-A talks about.

Going to the essence of the rules, both DO 18-A (in its sec. 6) and DO 174 (sec. 5) prohibit “labor-only” contracting, though as if to add intensity or magnification of the rules which are totally uncalled-for as they will have the same effect, thus they are all a charade which will only convince fools, DO 174 adds adjectives like “absolute” in the title of the section thus making it “absolute” prohibition while putting in the operative provision the word “totally”, thus making the enumeration of various labor-only contracting forms “totally” prohibited. What does the DOLE think about labor groups, “uto-uto”? There is a better Tagalog word for this : “ginagago” or to make pun of the President’s nickname on this, how about : “ginagagong”?

Anyway, enough of that wordplay, what this boils down to are the exceptions to the prohibitions and if we compare what DO 18-A and DO 174 are allowing employers to do, let’s list them down for our perusal. DO 18-A allows these kinds of contracting, when the following circumstances occur:

a) The contractor must be registered in accordance with these Rules and carries a distinct and independent business and undertakes to perform the job, work or service on its own responsibility, according to its own manner and method, and free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof;

b) The contractor has substantial capital and/or investment; and

c) The Service Agreement ensures compliance with all the rights and benefits under Labor Laws.

What DO 174 allows as forms of labor contracting are the following :

a) The contractor or subcontractor is engaged in a distinct and independent business and undertakes to perform the job or work on its own responsibility, according to its own manner and method;

b) The contractor has substantial capital to carry out the job farmed out by the principal on his account, manner and method, investment in the form of tools, equipment, machinery and supervision;

c) In performing the work farmed out, the contractor or subcontractor is free from the control and/or direction of the principal in all matters connected with the performance of the work except as to the result thereto; and

d) The Service Agreement ensures compliance with all the rights and benefits for all the employees of the contractor under the labor laws

Our observation is that DO 18-A and DO 174 practically allows the same contracting practices, the item (a) in DO 18-A is now item (a) and (c) in DO 174 and some parts of it are in item (b) of DO 174 and the item (b) in DO 18-A is the same item (b) in DO 174 and the former item (c) in DO 18-A is the same item (d) in DO 174, and in fact, in writing them, we merely did a copy-paste of what’s stated in the Service Agreement and there were just some minor innocuous additions in DO 174 which actually means the same thing.

What is the next step here ? It should not be difficult for President Duterte to throw this draft in the waste-basket and start all over again and our suggestion is to do away with any of the allowable contracting practices both permitted by DO 18-A and DO 174 that we have compared and found to be largely intact, which is what we discussed above.

Summing up, what this exercise has shown us is that it merely zeroed in on the nefarious practices on the contractualization practices of employers, and perhaps the labor groups were clear about it, they don’t want contractualization of labor, but our DOLE officials were just acting by force of habit and they brought to the fore the prohibition on labor-only contracting, which has long been prohibited by the Secretary of Labor back in 1997.

oOo

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What Has the Philippines Recently Offered for Negotiations in Trade in Services with the EU?

CURRENT TRADE CONCERNS
Elpidio V. Peria
15 March 2017

from : http://www.ustr.gov

We have recently come across a document which somehow points to Philippine offers in its start of negotiations with the European Union on the proposed EU-Philippines Free Trade Agreement and among the trade sectors that will be negotiated by the two trading partners (PH and EU) is the sector on services.

What does trade in services mean and how is it important to the growth and development of the two economies (EU and Philippines)?

According to UNCTAD, the United Nations body that keeps track of global trends in trade and development, the services sector plays an increasingly important role in the global economy and the growth and development of countries and it cited as an example the 2011 World Development Indicators which show that the services sector accounted for almost 71% of global GDP in 2010 and is expanding at a quicker rate than the agriculture and the manufacturing sectors. Moreover, trade in services is growing at a pace faster than trade in goods since the 1980s and in 2011, commercial services exports grew 11% to US$ 4.1 trillion.

Explaining further, the UNCTAD also described International trade in services which includes tradeables that are intangibles (or trade in intangibles), unlike goods, such as peoples’ skills . Services trade is carried out through four modes of supply namely cross-border supply, consumption abroad, commercial presence and presence of a natural person. International trade in services through these modes does not physically cross national border and thus is not affected by customs tariffs and other taxes applied to merchandise trade.

Before we tackle the question of what sort of rules on trade in services the Philippines will put forward in its negotiations with the EU, let us first ask what the Philippines will put into play in the negotiations that will later on be covered by these rules.

From the text that we have seen, the Philippines has proposed to include “measures by Parties affecting trade in services and taken by central, regional or local governments and authorities as well as by non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities . It shall apply to all services sectors except services supplied in the exercise of governmental authority .”

This sentence can be broken down into two key components, namely:

a) Measures by Parties affecting trade in services and taken by central, regional or local governments and authorities as well as by non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities and

b) All services sectors except services supplied in the exercise of governmental authority.

This measure in (a), as per the WTO GATS Training Manual indicates, can be “in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form, … in respect of:

– the purchase, payment or use of a service;
– the access to and use of, in connection with the supply of a service, services
which are required by those Members to be offered to the public generally;
– the presence, including commercial presence, of persons of a Member for the
supply of a service in the territory of another Member”.

The second component in (b), does not include “services supplied in the exercise of governmental authority” and this is in turn defined in art. 1, para. 3 (c) of GATS as any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.

These two components (a) and (b) as described above are actually included in the scope and definition of the WTO General Agreement on Trade in Services, so there is no problem having that kind of formulation being offered to the EU.

While these concepts may give an idea of what may be included in the negotiations, one will now have to look at what the Philippines tried to exclude, meaning, not part of the free trade negotiations with the EU, which are the following :

a. in respect of air transport services, measures affecting air traffic rights, however granted; or to measures affecting services directly related to the exercise of air traffic rights, other than measures affecting:

(i) aircraft repair and maintenance services;
(ii) the selling and marketing of air transport services; and
(iii) computer reservation system services;

b. subsidies provided by a Party or a state enterprise thereof, including grants, government-supported loans, guarantees and insurance;

c. cabotage in maritime transport services;

d. measures pursuant to immigration laws and regulations; and

e. measures affecting natural persons seeking access to the employment market of a Party, or measures regarding nationality or citizenship, or residency or employment market of a Party, or measures regarding nationality or citizenship, or residency or employment on a permanent basis .

What this means is that what are not included in the exclusion list are now part of the offers being made by the Philippines to EU, which in turn, as based in a UNESCO briefing material are the following 12 GATS service sectors, namely Business; Communication; Construction and Engineering; Distribution; Education; Environment; Financial; Health; Tourism and Travel; Recreation, Cultural, and Sporting; Transport; “Other”, which may mean any kind of service that does not yet have any concrete categorization.

Given that the textual offers of the Philippines tracks what is already in the GATS, these then are the possible sectors that may be subjected to negotiations with the EU in the coming months.

Government should be able to thoroughly discuss with the public the nitty-gritty aspects of these negotiations so that the affected services sectors, which are fairly broad, may be able to comment and make their concerns known to the negotiators of the Philippine government with the EU.

The civil society groups monitoring the negotiations should also be able to track closely the negotiations so that it can offer timely comment and suggestions which hopefully should improve the Philippine offers and make for a better deal.

This last part of our comment on improving the Philippine offers is surely wishful thinking on our part as it is contingent on the Philippine negotiators listening in and taking into consideration in their positions, these civil society comments. This will also require that government and civil society including the professional sectors will work together. Let’s see if that is what will happen in the coming weeks.

OoO

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International Rice Research Institute Patents an Indonesian Rice Variety

CURRENT INNOVATION CONCERNS
Elpidio V. Peria
12 March 2017

from : http://global-inst.com

Edward Hammond of the Third World Network recently reported (TWN Information Service on Sustainable Agriculture, Biodiversity/TK and Intellectual Property, March 10, 2017) that the well-known International Rice Research Institute (IRRI) in Los Baños, Philippines is seeking patents on a valuable yield-boosting gene identified in a farmers’ variety (“landrace”) of rice from Indonesia held in the Institute’s international gene bank.

Patents are a form of intellectual property right, usually given to inventions that are new, possessed of an inventive step and are capable of being industrially applicable and while this development (of international gene banks seeking patents on the crops under their custody ) is not really that new, for a supposedly philanthropy money-supported international organization (Ford Foundation and Rockefeller Foundation) like the IRRI to now seek to monetize the assets in its gene banks appears to be a pattern of behavior that will continue for the foreseeable future, the only question now is whether IRRI will follow certain international rules when they do these things.

One basic rule that the IRRI needs to clarify here is whether they have notified the Indonesian Government of their plan since the Third World Network report shows that the yield-boosting rice gene called SPIKE that the IRRI is now trying to patent is from an Indonesian farmers’ variety of rice named “Daringan”.

According to the Third World Network report, Daringan (IRGC-17446) is held by IRRI in trust for the world’s farmers and is part of the Multilateral System (MLS) of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).

While the said Multilateral System (MLS) prohibits the patenting of the seeds that are part of the system in the form that they are received, researchers may apply for patents on other characteristics that they may find in the seed that they have taken out from the MLS.

What bears watching here henceforth is the action of the Indonesian Government in this situation, if they get to know of this action by IRRI and they will then take steps to get more information from IRRI on its action and act accordingly.

oOo

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