CURRENT INNOVATION CONCERNS
Elpidio V. Peria
31 May 2015
The business newspaper Business World recently reported that Lake Sebu weavers of T’nalak cloth are getting help from the European Union (EU), through the Trade Related Technical Assistance Project 3 (TRTA 3), to have their traditional designs protected under the Intellectual Property Office of the Philippines (IPOPHL) in preparation for increased exports.
The 85-member Lake Sebu Women Weavers Association, Inc. (LASIWWAI) led by their president, Jenita Eko, tried to patent the T’nalak a few years ago but were denied on the grounds that the weaves have become generic and part of the public domain after having been in production for a long time.
Last year, the IPOPHL listed the T’nalak as a pilot Geographical Indication (GI) product to be promoted and protected in the course of the implementation of TRTA 3.
This recent development however raises questions that would have to be answered by the agencies concerned, if they had been presented in an even-handed manner to the weavers:
1. Were the weavers made aware of the various limitations of the intellectual property instrument (geographic indication) that were presented as an option to them?
Geographic indications are a kind of a trademark, interpreted by the Intellectual Property Office as a “collective mark” defined in sec. 121.1 of the Intellectual Property Code (IP Code) but if one examines the entirety of the IP Code, there is nothing there specifically mentioning geographic indications as a species or category of intellectual property under the IP Code.
Notwithstanding the unclear legality of using the notion of “collective mark” as an approach to protect t’nalak weavings, what the EU’s TRTA 3 project team or the IPOPhil could have mentioned to the weavers is that protection under the category of trademarks in the IP Code has a time limitation of ten years, as mentioned in sec. 145 of the IP Code, though this is renewable for a similar period, with certain conditions as laid out also in the IP Code.
Besides, there are costs to maintaining the trademark, though this may have been absorbed already by the project, just to demonstrate the feasibility of the scheme of protection under geographic indication. To guide other groups who may be interested in pursuing this approach of protection, all associated costs related to the filing and maintenance of the trademark must be fully disclosed and assessed as to whether they are commensurate to the monopoly gains that may be attained from such an effort.
2. Was the National Commission on Indigenous Peoples (NCIP) given the chance to explain to the weavers the various non-intellectual property options that the weavers have under the Indigenous Peoples’ Rights Act?
It was not clearly indicated in the news report if the National Commission on Indigenous Peoples (NCIP) was able to participate in the orientation of the weavers but had they done so, perhaps the NCIP could have mentioned that the t’nalak weavings would have been protectable also under specific provisions of the Indigenous Peoples Rights Act (IPRA) particularly, such as the following:
Section 32. Community Intellectual Rights. – ICCs/IPs have the right to practice and revitalize their own cultural traditions and customs. The State shall preserve, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation of their laws, traditions and customs.
Section 34. Right to Indigenous Knowledge Systems and Practices and to Develop own Sciences and Technologies. – ICCs/IPs are entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights. They shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives of these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge of the properties of fauna and flora, oral traditions, literature, designs, and visual and performing arts.
One advantage of using these options is that they could have overcome the problem of expiration of intellectual property rights protection under the scheme of collective marks and made use of the weaver’s own customary norms and customary laws as a mechanism to establishing and recognizing the rights and ownership by the weavers of their cultural heritage. This would have also laid down the basis for the enforcement of such rights utilizing the provisions of the Indigenous Peoples’ Rights Act or IPRA.
In addition, given that there is no such limitation specifically mentioned in the IPRA, these non-intellectual property based approach could have been applied simultaneously or cumulatively with the intellectual property approach and this would have strengthened the claim of the community over these creations while taking advantage of the strength of enforcement of the trademark using the country’s strong enforcement framework for intellectual property rights.
Of course, the customary laws of the T’boli indigenous peoples would resolve the question on how the benefits of securing the export markets would redound to the well-being of the entire T’boli community.
Given that these provisions of law have been un-elaborated by the NCIP for many years now since the effectively of IPRA back in 1998, this instance of the Lake Sebu weavers would have been an opportunity for the NCIP to also pilot the implementation of these provisions, much like the IPOPHIL is piloting the implementation of collective marks as a form of geographic indication in the Philippine setting.
3. Was it made clear to the Lake Sebu weavers that their breaking into the EU market would not really be for the long term since for that to happen, the Philippines would need to have a full-blown free trade agreement with the EU, which may carry further conditionalities on these types of products?
As this could be a one-off affair, specifically so that this is a pilot effort to see how lessons in future policy or administrative measures on protecting indigenous peoples cultural heritage may evolve, it should have been made clear to the Lake Sebu weavers that for them to become regular exporters to the EU market, it will become necessary that the Philippines enter into negotiations with the EU for a full-blown free trade agreement for such status to be sustained, of course, with some consideration for inclusion in the EU’s own Generalized System of Preferences or GSP scheme, a trading concession for developing country export products granted by the EU at some time intervals, also with certain conditionalities.
So the Philippines may be guided what further conditionalities may be imposed on the country so the Lake Sebu weavers may sustain their export market in the EU, a review of the free trade agreement the EU entered into with S. Korea in 2011, could be instructive as a guide as to what the text of such agreement on intellectual property rights with special focus on geographic indications might contain.
One of the key features of such S.Korea-EU free trade agreement is acquiescence by S. Korea on what the elements of geographic indications would be, which are the following, from art. 10.18.6 :
The European Union and Korea agree that the elements for the registration and control
of geographical indications referred to in paragraphs 1 and 2 are the following:
(a) a register listing geographical indications protected in their respective territories;
(b) an administrative process verifying that geographical indications identify a good as originating in a territory, region or locality of either Party, where a given quality, eputation or other characteristic of the good is essentially attributable to its geographical origin;
(c) a requirement that a registered name shall correspond to a specific product or products for which a product specification is laid down which may only be amended by due administrative process;
(d) control provisions applying to production;
(e) legal provisions laying down that a registered name may be used by any operator marketing the agricultural product or foodstuff conforming to the corresponding specification; and
(f) an objection procedure that allows the legitimate interests of prior users of names, whether those names are protected as a form of intellectual property or not, to be take into account.
From this example of S. Korea, it is clear that the EU will demand that the Philippines pass a law on the protection of geographic indications , which will enable the protection of European agricultural products that require such protection. From the Korea-EU portal on their FTA, this is equivalent to two products from Austria (ham and horseradish roots), five products from Czech republic (mainly beer and hops), twelve products from France (mainly cheese, duck fatty liver, ham, plums, essential oil and olive oil), two products from Germany (beer), three products from Greece (olives, gum and cheese), one product from Hungary (salami), sixteen products from Italy (mainly cheese, pork meat, ham), one product from Portugal (cheese), and eighteen products from Spain (mainly olive oils, ham, sausage, cheese, citrus, nougat, confectionary, saffron).
Facing these various agricultural products, S. Korea’s matching list consists of around 63 various products (from green tea, ginseng products, some vegetables, even sweet potato, etc).
That list did not even include the wines and spirits category.
What this exercise in enumeration would indicate is that if we only have the t’nalak as our counter-offer to the EU’s considerable list of products for protection under geographic indication, it will be a lopsided arrangement that will only favour the European products entering the Philippine market. The benefit gained by the t’nalak weavers may not even be enough to offset the heavy losses of agricultural producers who may lose their markets from the entry of these EU agricultural products.
What the Philippines may wish to do is to either expand the list of products it will have to protect under geographic indication and pass an amendment to the IP Code so a specific chapter on protection of geographic indications is put in place.
But first, it should think long and hard, whether going the route of geographic indications without having developed the culture and practice for producing such products may be beneficial in the long-run for the country as a whole.