Developments
on
Emerging
Intellectual Property Rights in the
Philippines
DEVELOPMENTS ON EMERGING
INTELLECTUAL PROPERTY RIGHTS
IN THE PHILIPPINES
Bienvenido I. Somera, Jr. and Jade A. Andaman
Introduction
Further to the Philippine Report submitted last year in the Asian
Patent Attorneys Association Council Meeting in Fukuoka, Japan on
emerging intellectual property rights in the Philippines, hereunder is an
update on the status of the laws and regulations on the matter, together
with a discussion on Traditional and Alternative Medicines Act of 1997
which was not included in last year’s report.
I. THE TRADITIONAL AND ALTERNATIVE MEDICINES ACT
Republic Act No 8423 otherwise known as the “Traditional and
Alternative Medicines Act (TAMA) of 1997” provides for the acceleration of
the development of traditional and aItemative health care in the Philippines.
TAMA declares it a state policy to seek a legally workable basis by
which indigenous societies would own their knowledge of traditional
medicine. When such knowledge is used by outsiders, the indigenous
societies can require the permitted users to acknowledge its source and can
demand a share of any financial return that may come from its authorized
commercial use.1

Senior Partner, Villaraza & Angangco Law Offices, Philippines
Junior Associate, Villaraza & Angangco Law Offices, Philippines
1
Article I, Section 2 paragraph two of TAMA

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Developments
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In this regard, TAMA defines intellectual property rights as the legal
basis by which the indigenous communities exercise their rights to have
access to protect, control over their cultural knowledge and product,
including but not limited to, traditional medicines, and includes the right to
receive compensation for it.2
Hence, among TAMA’s objectives is to formulate policies for the
protection of indigenous and natural health resources and technology from
unwarranted exploitation, for approval and adoption by the appropriate
government agencies.3
To implement TAMA, the Philippine Institute of Traditional and
Alternative Health Care (PITAHC) has been established and functions as an
attached agency of the Department of Health.4
Pursuant to its Section 19, the Department of Health-Traditional
Health Unit formulated the rules and regulations (“IRR”) necessary for the
implementation of TAMA.
The IRR recognizes the existence of community intellectual rights,
and defines the same as a sui generis or unique set of rights which provides
the legal basis for the indigenous and local communities to control, protect,
and regulate access to their knowledge systems concerning plants and
biological resources used in traditional and alternative health care practices
and includes the right to receive benefits from its sustainable utilization as
well as the commercialization of products that may be derive from it.5
2
Article II, Section 4(j) of TAMA
Article I, Section 3 (e) of TAMA
4
Article III, Section 5
5
Rule II, Section 1(10) of the IRR
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In order to protect the biological and genetic resources including
indigenous knowledge systems associated herein, their exploration and
utilization shall be done with the free and prior informed consent of the
communities possessing these knowledge systems and living where these
resources may be found.6 For this purpose, the Board of Trustees of the
Philippine Institute of Traditional and Alternative Health Care (PITAHC)
shall endeavor to develop workable mechanisms, in accordance with the
customary practices of the place, for the identification and documentation of
indigenous knowledge systems relevant to the utilization of biological and
generic resources that re applied in traditional and alternative health care
practices of the community.7
In addition, the PITAHC shall endeavor to monitor and inventory
Philippine natural health products that have been inappropriately applied
for intellectual property rights protection in the Philippines and abroad
without complying with applicable laws and regulations and shall make
representations with the appropriate international institutions and agencies
of the Government of the Philippines, to cancel this rights or to renegotiate
the terms and conditions thereof that are favorable to Philippine interest.8
Moreover, the application of existing forms of intellectual property
rights on biological and genetic resources as well as indigenous knowledge
systems shall be without prejudice to the application of whatever sui generis
rights that may be provided by law to the appropriate local and indigenous
communities.
The Board or other appropriate governmental bodies shall
also intervene, whenever it becomes necessary for the protection of the
general welfare of the communities involved, to protect and ensure the
rights of the communities during the negotiations for benefit sharing.9
6
Rule IX, Section 1 of the IRR
Rule IX, Section 3 of the IRR
8
Rule IX, Section 4, paragraph 3
9
Rule IX, Section 4, paragraph 4
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II. DEVELOPMENTS ON EXECUTIVE ORDER NO. 247 AN THE WILDLIFE
RESOURCES AND CONSERVATION PROTECTION ACT
On 12 January 2005, the Joint DENR-DA-PCSD-NCIP Administrative
Order
No.
1,
Series of
2005,
also
known
as
the
Guidelines
for
Bioprospecting Activities in the Philippines (the “Guidelines”) was approved.
The Guidelines was jointly signed by the Secretaries of the Department of
Environment and Natural Resources (DENR) and the Department of
Agriculture (DA), and the Chairmen of the Palawan Council for Sustainable
Development (PCSD) and the National Commission on Indigenous People
(NCIP).10
The Guidelines was formulated and approved pursuant to the
obligations of the Philippines under the Convention on Biological Diversity
and other relevant international agreements, the provisions of Executive
Order No. 247 as amended by Section 14 of the Wildlife Act and Section 35
of the Indigenous Peoples’ Rights Act and the TAMA, among others.
The Guidelines provides that the State shall ensure that the prior
informed consent is obtained from resource providers11 before allowing any
bioprospecting12 activity. The State shall also ensure the fair and equitable
sharing with the resource providers of benefits derived from the utilization of
biological resources.
With respect to its scope, the Guidelines shall apply to bioprospecting
activities conducted by resource users,13 including government agencies, on
10
www.pchrd.dost.gov.ph
In Section 5 of the Guidelines, resource provider refers to the local community, indigenous peoples,
Protected Area Management Board, private land owner from where the biological resources were collected.
12
In Section 5 of the Guidelines, bioprospecting means the research, collection and utilization of biological
and generic resources for purposes of applying the knowledge derived therefrom solely for commercial
purposes.
13
In Section 5 of the Guidelines resource user refers to the local or foreign individual, company,
organization, institution, or entity, either public or private that will utilize biological resource; a given area
in the Philippines for bioprospecting purpose on the basis of a Bioprospecting Undertaking it entered with
appropriate agencies.
11
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any biological resources found in the Philippines, including wildlife,
microorganism, domesticated or propagated species and exotic species.14
The Guidelines shall also apply to all ex-situ collections of biological
resources sourced from the Philippines, except for collections currently
accessed under international agreements where the Philippines is a party.15
Under 3.2 of the Guidelines, scientific studies conducted by
researchers with no commercial interests and purely for academic purposes,
using biological resources for taxonomy or solely for the characterization of
biological, chemical or physical properties of the biological resources, shall
not be covered by the Guidelines
but by Section 15 of the Wildlife Act
provided that subsequent transfer of these biological resources and use of
research
findings
for
commercial
purposes,
shall
be
considered
bioprospecting and subject to the requirements or the Guidelines.
Under Section 6.1 of the Guidelines, bioprospecting shall be allowed
only upon execution of a Bioprospecting Undertaking (BU) between the
resource user and the Secretary of the DA and/or DENR, and the
Chairperson of the PCSD when the bioprospecting activity is to be
conducted in the Province of Palawan.
The Guidelines also provides that the Protected Areas and Wildlife
Bureau of the DENR, the Bureau of Fisheries and Aquatic Resources or
other concerned regulatory agencies of DA shall provide separate assistance
to resource providers in evaluating proposals for purposes of prior informed
consent and in effectively negotiating for benefit-sharing.16
On the other
hand, the NCIP shall lead in assisting indigenous peoples who are resource
14
Section 2.1 of the Guidelines.
Section 2.1 of the Guidelines.
16
Section 7.3 of the Guidelines
15
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providers in documenting free and prior informed consent and in negotiating
for benefits under the BU.17
The Guidelines also provides for the general procedure for securing a
BU,18 guidelines for prior informed consent19 and provisions for benefitsharing
arrangement.20
The
resource
provider
shall
designate
a
representative to negotiate with the resource user provided that only one BU
containing the negotiated terms with all provider-groups shall be executed
between the resource user and the appropriate signatories. The resource
user and providers shall come to an agreement regarding payments of
monetary and non-monetary benefits in accordance with the following:
a.
The Bioprospecting fee21 shall accrue to the national
government, payable to the implementing agencies;
b.
Up-front
payments
shall
accrue
to
the
resource
between
the
national
providers;
c.
Royalties
shall
be
shared
government and the resource providers; and
17
Section 7.4 of the Guidelines
Chapter III, Section 8 of the Guidelines
19
Under Section 13.2 of the Guidelines, the prior informed consent shall be secured from the concerned
resource providers through the following procedures: (1) notification; (2) sectoral consultation; and (3)
issuance of the prior informed consent Certificate.
20
Chapter VI of the new guidelines
21
In accordance with Section 15 of the new guidelines, the minimum bioprospecting fee shall be
US$3,000.00 for each BU and the maximum bioprospecting fee shall be three times the minimum and will
depend on the following criteria:
18
a.
b.
c.
d.
e.
That the sampling method involves the killing or destruction of wildlife;
That the species collected is rare, or reproduces/recovers slowly;
That the species to be collected is known to have a better than average commercial potential
based on previous researches;
That the species to be collected is a pest or vector of diseases, ad that the research is geared
towards controlling the pest or vector; and
That the bioprospecting involves access to traditional knowledge.
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Developments
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d.
Local governments shall share in the amounts received
by
the
national
government,
consistent
with
the
provisions of the Local Government Code.
To monitor whether the benefit sharing agreement can be considered
fair and equitable, a checklist of process and content indicators can be used
by the contracting parties and other stakeholders.22
With respect to sanctions and penalties under Section 31 of the new
guidelines, non-compliance with the provisions in the BU shall result in the
automatic cancellation/revocation of the said agreement and confiscation of
collected materials in favor of the government, forfeiture of bond and
imposition of a perpetual ban on access to biological resources in the
Philippines by the violator.
Such breach is considered a violation of the
Wildlife Act and shall be subject to the imposition of administrative and
criminal sanctions under existing laws.
Any person who shall conduct
bioprospecting without a BU shall be subject to penalties for collection
without permit.
III. APPLICATION
Pilot projects promoting implementation of legislation on access and
benefit-sharing have been undertaken since 1999. For instance, the nongovernmental
organization
South
East
Asia
Regional
Institute
for
Community Empowerment (SEARICE) worked with indigenous and local
communities to prevent illegal bioprospecting and to conclude equitable
bioprospecting
contracts.23
This
enabled
the
Talaandig
indigenous
community in Mt. Kitanglad to assert their ownership over their resources
by developing their own prior informed consent mechanisms, taking as legal
22
23
Section 24.1 of the new guidelines
www.gtz.de/biodiv/english/genres.htm
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basis the provisions of the IPRA on free and prior informed consent and its
legal command to indigenous communities to formulate these in consonance
with existing community rules and practices.24
A Cultural Impact
Assessment (CIA) Framework, within which to evaluate any application for
any developmental activity, has been established by the Talaandig
indigenous community within the Mt. Kitanglad Protected Area in addition
to their community’s free and prior informed consent procedures under
IPRA.25 In the province of Palawan, the Palawan NGO Network (“PNNI”)
successfully lobbied for the adoption of the city ordinance in the local
implementation of the Executive Order 247 in Puerto Princesa City, the
capital city of Palawan.26
The same is true with the local government of
Lantapan in Bukidnon.27
Update on emerging IP rts@IP14/JAA
24
www.biodiv.org/programmes/socio-eco/benefit/project.aspx
www.biodiv.org/programmes/socio-eco/benefit/project.aspx
26
www.biodiv.org/programmes/socio-eco/benefit/project.aspx
27
www.biodiv.org/programmes/socio-eco/benefit/project.aspx
25
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