The Courts & the Creative Spirit: Facing the Challenges of Intellectual Property Adjudication

Article excerpt

HON. Justice Ameurfina Melencio Herrera,

Chancelor of the Philippine Judicial Academy,

Hon. Adrian S. Cristobal Jr., Director General of Intellectual Property Philppines,

Hon. Jayin Sunthornasingkarn, Judge and Secretary, Central Intellectual Property and International Trade Court,

Honorable colleagues, fellow judges from the commercial courts:

As a young man studying in the United States in the 1960s, I came across some courses on intellectual property (IP) at the Boalt Law School in the University of California at Berkeley. One look at their mystic content dissuaded me from studying them. The fear of the unknown is one emotion difficult to subdue.

That was about four decades ago, when IP was an obscure subject and the exclusive domain of lawyers specializing in the field. In business, IP was just one of those things in a corporation that was passed down to a legal unit in the bowels of the bureaucracy, so that the proper registrations could be obtained.

In a span of a little more than a decade, however, all that has changed radically. Since the 1990s when the international trading system came under the World Trade Organization (WTO), and with it the Agreement on Trade. Related Aspects of Intellectual Property Rights (TRIPS), IP has moved to the forefront of world trade and commerce. The bulk of goods crossing sovereign borders relies on intellectual property rights - from software programs to drugs and medicines, from books to biotech products, from films to robots.

With the rapid development in technology and the power of the Internet to make knowledge and information easily accessible, the wealth generated by intangibles has grown tremendously. For instance, in just one decade (from 1990-2000) total worldwide revenues from patent licensing increased from US$15 billion to US$110 billion. (Source: Kamil Idris IP: A Power Tool for Economic Growth).

Worldwide, the information technology industry alone employs more than nine million people and raises more than US$700 billion in taxes per year; and between 1996 and 2000, it grew by 26%, creating 2.6 million new jobs and contributing US$6 trillion to economies worldwide. (Source: Business Software Alliance)

Just looking at the United States economy, we see the trend and the potential of wealth creation using IP. In the United States today, IP is valued at US$5 trillion to US$5.5 trillion - equivalent to about 45% of the US gross domestic product (GDP) and greater than the GDP of other countries. (Source: Robert J. Shapiro and Kevin Hasset, The Economic Value of Intellectual Property, October 2005)

This irreversible trend was observed over ten years ago by the former chairperson of the US Federal Reserve, Alan Greenspan, who said that "(i)n recent decades, the fraction of the total output of the US economy that is essentially conceptual rather than physical has been rising. The trend has, of necessity, shifted the emphasis in asset valuation from physical property to intellectual property and to the legal rights inherent in intellectual property.''

By no means is technology the only source of economic growth and development in the global economy. The creative industries, those that rely on copyright protection like art, literature, media, entertainment, industrial design and other literary and artistic works, are the fastest-growing sectors in economies worldwide. Studies from the World Intellectual Property Organization (WIPO) show the contribution of copyright to the economy as ranging from 4.8% (Philippines) to 11.5% (US), thus providing a significant number of jobs.

From developments of the past decade or so, we have seen the rise and power of ideas in today's knowledge-based economy, ideas that cut across so many aspects of human civilization,:The arts, literature, science and technology, business and industry. So profound is the development that last year The Economist declared that "ideas and innovation have become the most valuable resource replacing land, energy and raw materials. …