Screen Shot 2019-03-12 at 4.55.33 PMBy Raymond C. Sanchez, Jr., ACCRA Law



Indigenous peoples (IPs) and indigenous cultural communities (ICCs), though explicitly protected under the constitution itself, sadly remain one of the most marginalised and forgotten sectors in Philippine society. Most often than not, IPs and ICCs are known for their mineral-rich ancestral lands and domains that are the usual targets for mining development projects. Unknown to many, however, IPs and ICCs possess other valuable resources, specifically their indigenous knowledge systems and practices (IKSP) consisting of accumulation of age-old traditional cultural methods and beliefs in medicine, genetic resources, ecology, art and language, among others.

Under Republic Act No. 8371 or the Indigenous Peoples Rights Act (IPRA), the law acknowledges that IPs and the ICCs have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including their IKSP.

Pursuant to this legal mandate, the National Commission on Indigenous Peoples (NCIP), the primary government agency tasked to formulate and implement programmes, plans and policies to promote and protect the rights and well-being of the ICCs and IPs, and the Intellectual Property Office (IPO), the main government agency that administers and implements rules governing the registrations of intellectual property rights applications, issued on October 28, 2016, Joint Administrative Order No. 01, 2016 (JAO), which provided the rules and regulations on intellectual property rights application and registration protecting the IKSPs of the IPs and ICCs.

The primary thrust of the JAO is to prevent the misappropriation of the IKSPs of the IPs and ICCs, and encourage tradition-based creations and innovations. Recognising the nature of the ICCs, the JAO reflects two important principles unique to the laws on IPs: the concept of communal property and the free prior and informed consent (FPIC). Rule 4 (b) of the JAO defines “Community Intellectual Rights” as the rights of the IPs and ICCs to own, control, develop and protect the following:

  • the past, present and future manifestations of their cultures, such as but not limited to, archaeological and historical sites, artefacts, designs, ceremonies, technologies, visual and performing arts, and literature as well as religious and spiritual properties;
  • science and technology including, but not limited to, human and other genetic resources, seeds, medicine, health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, resource management systems, agricultural technologies, knowledge of the properties of fauna and flora, oral traditions, designs, scientific discoveries; and
  • language, script, histories, oral traditions and teaching and learning systems.

Notice that, unlike conventional intellectual property rights such as patents, copyrights and trademarks, which are registered to a specific entity or individual, the intellectual properties of IPs and ICCs are communally owned. Individuals can only act as custodians of the IKSPs, but the intellectual property rights are collectively owned by the ICCs. In addition, the JAO makes references to collective management of the intellectual properties of the ICCs. Rule 7 of the JAO provides that:

“If the author of an artistic and literary creation or the inventor of an invention cannot be identified, but an indigenous cultural community is recognised to have created and owned the artistic or literary work, or invention, this community is entitled to the collective management of their intellectual property rights over these works. These artistic and literary works and inventions of the indigenous peoples refer to tangible and intangible forms in which their IKSP are expressed, communicated or manifested and include traditional music, performances, narratives, names and symbols, designs, and technological innovations.”

As regards FPIC, a major protective measure mentioned in the JAO is that intellectual property registrants must disclose any IKSP that is used in the subject matter of the application and that FPIC was secured from the ICCs concerned. Rule 6 of the JAO states that if this condition is not observed, the registration of the intellectual property which uses IKSP in its subject matter will not be effected. In case a registration has been issued in violation of the JAO, the IPO may, in accordance with its rules and regulations, cancel the registration. Further, notwithstanding the lack of declaration of the use of an IKSP in an intellectual property right application, the IPO may, motu proprio or upon request by any person and after initial evaluation by the IPO, refer the application to the NCIP for purposes of verifying the use or ownership of the IKSP and compliance to the FPIC requirement.

To assist the IPO in determining the use of the IKSP, the NCIP, together with other cultural government agencies, is tasked to establish an IKSP registry. In the absence of such registry, the NCIP or IPs recognised or accredited by NCIP is authorised to certify the ownership of the IKSP by the ICCs. The certification shall also include information on the FPIC compliance.


The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes, and not offered as, and does not constitute, legal advice or legal opinion.

(Note: This article first appeared in Business World, a newspaper of general circulation in the Philippines.)










T: (632) 830 8000

Related Articles by Firm
Developments in the Philippine Competition Commission’s enforcement activities
Early this year, the Philippine Competition Commission (PCC) Enforcement Office launched a leniency/whistleblower programme offering immunity from suit and reduction of fines to cartel members who will provide information that will help the PCC investigate and prosecute cartels ...
Revisiting the AMLA in light of transnational money laundering
For several decades, money laundering has extended the reach of transnational organised crime throughout various nations ...
Revisiting important concepts in arbitration
Philippine courts are keen on making arbitration and other modes of ADR the staple in settling disputes domestically.
Keeping your mobile number for a lifetime
A new law facilitates the easy movement of subscribers from one service provider to another.
The right to know: Freedom of information in the Supreme Court
Like all other rights, the “right to know” is not an absolute right.
The Philippines 11th Foreign Investment Negative List and its impact on online businesses
A more liberalised foreign participation may change the internet-based business landscape in the Philippines ...
The Philippine Competition Commission bares its teeth
For the first time since its inception in 2015, the Commission has blocked a merger after conducting its review.
A peek into the revised Corporation Code of the Philippines
On February 20, 2019, President Rodrigo Duterte signed into law Republic Act No. 11232, otherwise known as the Revised Corporation Code of the Philippines (the New Code) ...
Philippines: The right to know – Freedom of information in the Supreme Court
Freedom of Information is a right enshrined in our fundamental law ...
Investments for the environment
In a recent report released by the leading international body for assessment of climate change, the UN Intergovernmental Panel on Climate Change (UN IPCC), established a target global warming limit of 1.5°C ...
The PCC’s Joint Venture Guidelines
The Philippine Competition Commission must strive to strike a balance ...
How the Mental Health Act affects employees
Mental health conditions, which include anxiety and panic disorders, depression, eating disorders, substance abuse and addictions, have become a pervasive issue which permeates our present society ...
The Ease of Doing Business Act tapers red tape
RA 11032 is a welcome step towards achieving the quality government services that Filipinos deserve.
Much EndO about nothing
President Duterte says he has put an end to the “Endo” or the practice of engaging employees on a contractual basis. But has he?
Philippines: Proposed rules and regulations on crowdfunding
Crowdfunding (CF) platforms have proven to be a popular way to solicit charitable donations and to raise funds for projects or business ventures ...
Virtual currency in the Philippines: Recognition and regulation
Bitcoin is essentially a virtual currency (VC), which is any type of digital unit that is used as a medium of exchange — a veritable currency that exists in the digital world. Since it is electronic currency, VC is easily transferable ...
Protection of women employees in the Philippines
According to the World Economic Forum’s Global Gender Gap (GGG) Report conducted in 2016, the Philippines is the most gender-equal country in the Asia-Pacific region, having closed nearly 79 percent of its gender gap ...
Anti-Trust & Competition: Philippines - Towards robust yet balanced competition in the Philippines
The state of Philippine competition regulation has been slowly taking shape barely over two years after the passage of the Philippine Competition Act (RA 10667) ...
PHILIPPINES: The internet and doing business in the Philippines
Earlier this year, the Philippines Securities and Exchange Commission (SEC) issued an opinion stating that an online gaming system with absolutely no physical presence in the Philippines shall be considered as “doing business” in the Philippines and was thus required ...
Philippines: Psychological disorders in the workplace
The problem of mental health presents a particular conundrum under labour relations and standards ...
Clarifying the role of contractors and subcontractors
Recent changes to labour laws in the Philippines attempt to clarify the status of contractors and subcontractors in certain industries ...
Fake news and its web of legal issues in the post-truth era
Oxford Dictionaries’ Word of the Year for 2016 is “post-truth” — an adjective defined as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief”. ...
Dollar-denominated securities in relation to Corporation Code’s provisions on capital
The Philippines Stock Exchange (PSE) issued rules on December 2, 2016 governing the listing, trading and settlement of US dollar-denominated securities (DDS)....
Cyber bullying in the Philippines
The pen is mightier than the sword or so the adage goes. When this was once said, it was to highlight the power of thoughts and ideas over brute force and violence as a way to effect change. Today, the ...
Uber/GrabCar drivers: Independent contractors or employees?
The buzz about the legality of Uber and GrabCar operating in the Philippines might have died down, but now there is another legal issue surrounding them: whether their drivers are employees or ...
Price fixing in the context of the Philippine Competition Act
In light of the enactment of the Philippine Competition Act (PCA) in 2015, competitors, manufacturers, retailers and sellers or suppliers, in general, should be ...
Implementation of the data privacy act in Philippines now in full swing
Since 2012, the Philippines has had a comprehensive law governing personal data privacy. However, full implementation ...
Taxability of service fees received by non-resident foreign companies from online advertising in the Philippines
The use of the internet for the promotion of goods and services, particularly social media (Facebook, Twitter and ...
Levelling the playing field in the Philippines
Before the enactment of the Philippine Competition Act in 2015, the Philippines was the only founding member of Asean that did not have a comprehensive competition law in place. Francisco Ed Lim, Patricia-Ann T Prodigalidad, Eric R Recalde of <...
Age discrimination in the workplace
Republic Act No. 10911 (also known as the ‘Anti-Age Discrimination in Employment Act’) lapsed into law on 21 July ...
Green jobs: greening the Philippine labour sector
With the threat of climate change, the international community created the Paris Agreement which aims to stop global warming and preserve ...
Interplay of domestic law on compulsory licensing and international agreements on medicine prices
The price of pharmaceutical products in the Philippines appears to be on the high side compared to that in other Asian ...
Restrictive covenants in employment contracts
One of the means of keeping afloat in today’s competitive market is to hire employees who are ‘fit’ for a particular job. However, before employers ...
Make our system work: litigation practice expedited
The perception that litigation is a slow and arduous process has drawn many of us closer to the idea of alternative modes of dispute resolution. ...
Department of Labor and Employment (DOLE) Department Order No. 18-A: The Rules and Regulations on Contracting
On December 4, 2011, Department of Labor and Employment (DOLE) Department Order No. 18-A (D.O. 18-A), the new Rules Implementing Articles 106 to 109 ...
An overview of Philippine Data Privacy Law
Republic Act No. 10173, or the Philippine Data Privacy Act of 2012 (RA10173), was signed into law on August 15, 2012. This is the ...
New competition law for the Philippines
The Philippine Competition Act (PCA) went into effect on August 5, 2015. The law applies not only to acts committed in the Philippines but ...
Related Articles
Ministerial Regulation removing back office services from the Foreign Business Operations Act announced
Certain back office service businesses will no longer require a foreign business licence.
Changes are coming!
Five factors to consider when reviewing your Canadian trademark strategy in 2019.
Forensic investigations, the role of corporate counsel and the rise of information governance
Head of Forensics – Erick Gunawan, discusses the Role of Corporate Counsel in the context of litigation or investigation and the increasing importance of information governance ...
Related Articles by Jurisdiction
Law passed promoting ease of doing business in the Philippines
A law promoting the ease of doing business and efficient delivery of government services took effect this June 2018.
Clarifying the role of contractors and subcontractors
Recent changes to labour laws in the Philippines attempt to clarify the status of contractors and subcontractors in certain industries ...
The Ease of Doing Business Act tapers red tape
RA 11032 is a welcome step towards achieving the quality government services that Filipinos deserve.
Latest Articles
Ministerial Regulation removing back office services from the Foreign Business Operations Act announced
Certain back office service businesses will no longer require a foreign business licence.
Changes are coming!
Five factors to consider when reviewing your Canadian trademark strategy in 2019.
Herbies goes to Shanghai FTZ
Herbert Smith Freehills is adding local law capabilities in China through a joint operation with Kewei Law Firm.