Overcoming Obstacles to the Quest for Genuine Accountability for Drug-Related EJKs in the Philippines

The article of Atty. Mario Jr Cerilles was recently published in the Ateneo Law Journal’s issue on “Developments in Criminal Law”.
In his article entitled, “Overcoming Obstacles to the Quest for Genuine Accountability for Drug-Related EJKs in the Philippines”, Mario analyzes the weaknesses of the country’s legal framework on the investigation and prosecution of EJKs, and suggests concrete ways to exact genuine accountability for the victims of the drug war.

Intellectual property solutions to our COVID-19 woes

It bears noting that IP flexibilities are not limited to the use of compulsory licenses for local manufacturing. For example, the TRIPS Agreement, the most comprehensive multilateral agreement on intellectual property, allows a country with no sufficient logistical capabilities to gain access to finished products by asking another country to manufacture the medicine in its stead. The Intellectual Property Office of the Philippines (IPOPHL) and the Department of Health recently issued draft guidelines on how to avail of so-called special compulsory licenses which would pave the way for this type of manufacturing.

We may also pursue parallel importation and purchase medicines at lower rates. The Cheaper Medicines Act allows us to import medicine from countries with low-cost manufacturers, instead of buying directly from patent owners.

Why—or why not—Cha-cha?

Cha-cha, or Charter change, has always been a controversial subject. A survey conducted in mid-2018 revealed that majority of Filipinos were against amending the Constitution, and this unpopularity may have historical underpinnings. Many Filipinos still recall how former President Ferdinand Marcos passed the 1973 Constitution through a haphazard process that what was widely viewed as an attempt to prolong his stay in power. This move gained even more notoriety as the Supreme Court upheld the document’s validity in the landmark case of Javellana vs Executive Secretary. Marcos was eventually deposed, but the negative perceptions of Cha-cha continued, plaguing many outgoing presidents from Gloria Macapagal-Arroyo to Benigno Aquino III.

Read more: https://opinion.inquirer.net/137209/why-or-why-not-cha-cha#ixzz6oV7QzVpt

Do you have to pay whenever you play Christmas songs in public?

With the holidays fast approaching, we are once again exposed to familiar songs that warm our Christmas-loving hearts. Nowadays, it is not uncommon to catch Mariah’s All I Want for Christmas is you, Britney’s My Only Wish (This Year), and Jose Mari Chan’s Christmas in our Hearts (and uhm, a bunch of his other songs), playing in our favourite malls, stores and restaurants. 

To many customers, listening to Christmas songs is a pleasant experience. And if you happen to own a store, it is tempting to play these songs in order to attract visitors. After all, studies show that listening to certain songs could affect purchasing behaviour.[1] However, how do you know if a song could be played to the public, free-of-charge?

I. Applicable Laws

Songs are covered by copyright. Our law treats musical compositions as original intellectual creations that are protected from the moment of creation.[2] For instance, song composers hold exclusive rights to public performances of their works.[3] Performers, producers of sound recordings and broadcast organizations also hold other exclusive rights over the publication of their respective works.[4] As a consequence, an establishment may have to secure licenses and pay royalties in the form of license fees in order to play copyrighted songs in public.[5] Failure to do so may result in a finding of infringement, which entails imprisonment for one to three years and payment of a fine ranging from P50,000 to P150,000 for the first offense alone.[6]

II. Exceptions

It must be noted, however, that the Intellectual Property Code lists down a number of limitations to this rule. Some acts are not considered as infringement. An example is where the recitation or performance is made strictly for a charitable institution and involves a work that has previously been lawfully made accessible to the public.[7] There is also no infringement where the use of copyrighted works amounts to fair use, as when a song is played in public for purposes like research, criticism and teaching.[8]  Notably, a recent case decided by the Court of Appeals went further and held that certain food service and drinking establishments that have  limited areas, seating capacities and speakers, are exempted from paying license fees.[9] It remains to be seen, however, whether the Supreme Court will adopt this ruling.

III. Public Domain

Most importantly, not all songs are subject to copyright. In a case, the Supreme Court held that although playing the combo in a restaurant for the purpose of entertaining and amusing customers are acts constitutive of performance for profit as contemplated by our Copyright Law, there can be no infringement if the songs played form part of the public domain.[10] Songs, whose copyright protection have already expired, move to the public domain and may henceforth be played and performed in public without liability.[11] Examples of these are Christmas classics like Jingle Bells, We Wish You a Merry Christmas and Silent Night.[12] In the Philippines, copyright protection over a work generally extends until 50 years after the author’s death.[13]

In summary, if you wish to impart the Christmas vibe to your customers, it would be wise to apply for the necessary licenses or to simply choose songs that are available in the public domain. Better yet, why not create your own Christmas jingles?

For questions regarding this article, please email us at inquiry@cfiplaw.com.

Note: The article above is for informational purposes only and does not constitute legal advice.

[1] https://www.psychologistworld.com/behavior/ambient-music-retail-psychological-arousal-customers.

[2] Sec. 172.1 (f) IP Code (1997).

[3] Sec. 177.6 IP Code (1997).

[4] Secs. 203, 208, 211 IP Code (1997).

[5] https://filscap.org/frequently-asked-questions/.

[6] Secs. 217.1 (a) IP Code (1997).

[7] Sec. 184.1 IP Code (1997).

[8] Sec. 185.1 IP Code (1997).

[9] https://www.manilastandard.net/lgu/luzon/237697/ca-upholds-ruling-vs-filscap.html.

[10] Filipino Society of Composers, Authors and Publishers, Inc. vs Benjamin Tan, G.R. No. L-36402.

[11] https://www.ipophil.gov.ph/news/how-to-perform-and-play-songs-in-public-the-legal-way/.

[12] https://library.osu.edu/site/copyright/2018/12/21/public-domain-christmas-songs/.

[13] Sec. 213.1 IP Code (1997).

Are those secret recipes protected?

Among the consequences of the ongoing community quarantine is the avalanche of home-baked goods that suddenly became available at our doorsteps. As our favourite restaurants closed down, talented chefs and bakers strived to continue satisfying our food cravings. However, do you ever wonder if the secretly kept recipes for these goods are protected from copycats? Let us explore ways by which our laws protect those recipes:

  1. Trade Secrets and Contracts

We believe that secret recipes may fall under the category of “trade secrets”. Trade secrets include secret formulas or non-patented processes, used in the creation of commercially valuable products, which are known only to the individuals using them.[1] Relatedly, our Intellectual Property Code (IP Code) explicitly mentions the protection of undisclosed information. However, it does not prescribe specific means by which to protect such information.

One way to protect recipes from third parties is through contracts such as non-disclosure agreements. These are particularly helpful for restauranteurs whose staff members regularly handle secret recipes. Notably, laws such as the Philippine Competition Act and the Consumer Act of the Philippines have effectively recognized the validity of agreements that protect trade secrets.[2]

  1. Patent or Utility Model (UM)

Theoretically, patents could be used to protect recipes. However, due to strict requirements,[3] they are often availed of only by scientists and food technologists.  To begin with, it must be shown that a recipe involves a step that will result to non-obvious results.[4] However, many recipes do not satisfy this requirement. Merely adding sugar to a cookie recipe, for instance, is expected to make the cookie sweeter and, is therefore not patentable. Similarly, applying for a UM would be a challenge due to the requirement of novelty.[5] For recipes to be registrable as UMs, they should be new, or they should not have been previously made available to the public.[6] Unfortunately, most recipes are obvious variations of past recipes.

  1. Copyright

A U.S. Court once considered recipes that were attached to a food product, as original compositions that were copyrightable.[7] However, the strength of this decision has waned over the years and a recent decision has held that a recipe that is not accompanied by substantial literary expression is not copyrightable.[8] In either case, copyright protection extends only to the recipe as expressed on a certain medium (i.e., paper). It does not prevent anyone from following a recipe and replicating a certain food product, making one wonder if disclosing the recipe in a cookbook is even advisable.[9]

  1. Trademarks

Trademarks do not protect recipes. However, they could be used to protect the packaging for goods.[10] Considering that some food packages are so unique that they become synonymous with famous goods (think Toblerone), trademarks remain very useful to business owners.

Currently, there are calls to give ample protection to trade secrets through the enactment of a comprehensive trade secret law. It is unclear, however, whether this will ever happen. In the meantime, we just have to rely on other remedies.

For questions regarding this article, please email us at inquiry@cfiplaw.com.

Note: The article above is for informational purposes only and does not constitute legal advice.

[1] Air Philippines Corporation vs. Pennswell, Inc., G.R. No. 172835

[2] R.A. 10667, Section 15(e)(2)

[3] https://www.uspto.gov/learning-and-resources/newsletter/inventors-eye/can-recipes-be-patented

[4] Intellectual Property Code, Section 26

[5] Intellectual Property Code, Section 109.1

[6] Intellectual Property Code, Section 23

[7] Fargo Mercantile Co. v. Brechet & Richter Co., 295 F. 823 (8th Cir. 1924)

[8] Barbour v. Head, 178 F. Supp. 2d 758 (S.D. Tex. 2001)

[9] https://www.bradley.com/insights/publications/2019/07/intellectual-property-protection-for-recipes

[10] https://cfiplaw.com/2020/10/can-your-trademark-be-registered/; Sec. 121, IP Code of the Philippines.

4 Easy Steps to Follow in Registering Your Trademark

A mark is any visible sign that is capable of distinguishing the goods or services of an enterprise.[1] Company logos, marketing taglines, and even the entire packaging design on goods and services, are examples of trademarks. Some of the most famous brands in the market today are identified through their trademarks. For this reason, it is vital that you register your trademark. We outlined below simple steps to follow in registering your trademark.

1. SUBMIT. Make sure to have the following ready: your name and contact details, a reproduction of the mark that you wish to register, and a list of the goods or services that your mark would cover.[2] Other information could be necessary depending on your specific circumstances. You may then submit all relevant information to thePhilippine Intellectual Property Office (IPO).[3] With the pandemic, you might prefer filling-in these details through the online portal which can be accessed at https://www.ipophil.gov.ph/etm-file-trademark/.

2. PAY. As with other government transactions, filing trademark applications entail costs.[4]  Government fees could reach around Php 3,500 to 5,700.[5] Note that the IPO recently disallowed the option to pay manually through its office cashier. Instead, you may pay online through the IPO’s partner institutions such as Dragonpay.

3. RESPOND. After successful payment, the IPO will look into the sufficiency of the application,[6] and check if the trademark complies with the requisites for registrability.[7] Should the IPO need any clarification, it may send you a registrability report which contains questions concerning your application. You need to respond to this not later than two months from its mailing date.[8]

4. WAIT. Once the IPO is satisfied with your trademark application, it will issue a Notice of Allowance which will require you to pay the publication fees. Once paid, the IPO will cause the publication of the application in the IPO Trademark Electronic Gazette.[9] For a period of 30 days, any person who believes that he would be damaged by the registration may file an Opposition.[10] If nothing is filed or if the IPO denies the Opposition, you will receive a Notice of Issuance requiring you to pay the second publication fee and the fee for the issuance of the Certificate of Registration. Once paid, your Certificate of Registration will be issued.[11]

Register your trademark in four easy steps: submit, pay, respond and wait.

For questions regarding the article “4 Easy Steps to Follow in Registering your Trademark”, email us at inquiry@cfiplaw.com.

Note: The article above is for informational purposes only and does not constitute legal advice.

[1] Sec. 121, IP Code of the Philippines.

[2] Sec. 127.1, IP Code of the Philippines.

[3] Sec. 127.1, IP Code of the Philippines.

[4] Sec. 127.2, IP Code of the Philippines.

[5] https://www.ipophil.gov.ph/services/schedule-of-fees/trademark-related-fees/

[6] Sec. 132.1, IP Code of the Philippines.

[7] Sec. 123, IP Code of the Philippines.

[8] Rule 610, Implementing Rules and Regulations on Trademarks

[9] Sec. 133.5, IP Code of the Philippines.

[10] Sec. 134, IP Code of the Philippines.

[11] Sec. 136, IP Code of the Philippines.

Philippine Human Rights in the Time of Pandemic: Analyzing the Challenges to the Effectiveness of the Commission on Human Rights as an NHRI in the Midst of COVID-19

Created before the United Nations adopted the Paris Principles, and after a dictatorship engulfed the Philippines, the Commission on Human Rights (CHR) seemed poised to lead NHRIs across the globe. The CHR, with its constitutional mandate, was seen as the long-term solution to the country’s human rights woes. However, the current pandemic has revealed cracks within the CHR’s system. This study will demonstrate that, despite its perceived strengths, the CHR suffers from institutional weaknesses that limit its effectiveness during the pandemic. An analysis of the international framework on NHRIs, the legal structure of the CHR, and the effects of the state of emergency on Philippine bureaucracy will reveal that structural deficiencies, such as lack of independence, an incomplete mandate, and inadequate investigatory powers, make the Philippine NHRI vulnerable at a time when it is needed most by Filipinos.

Being a UP graduate

Recently, a Facebook post by an official of the University of the Philippines went viral. In a rant directed at students waiting for the results of the UP College Admission Test, the official thrice proudly invoked his connection to the university, bragging that he took his undergraduate and postgraduate studies there, and ended his post by displaying his position in the UP administration.