The Regional Comprehensive Economic Partnership (RCEP) Agreement is the world’s biggest regional trade agreement encompassing the 10 ASEAN member states and 5 of its regional partners (Australia, New Zealand, Japan, South Korea, and China). Coming into force only at the beginning of this year on the 1st January 2022, there is much of its content to unpack[1]. It is too early to have any clear-cut evaluations on its efficacy, but the implications on its provisions to the Asia-Pacific region is something to be taken note of. One of the most interesting parts of the RCEP is its Chapter 11 on Intellectual Property Rights (IPR) which is built upon various existing multilateral frameworks on IP protection, namely the TRIPS Agreement, the WIPO Performance and Phonograms Treaty, the Paris Convention for the Protection of Industry Property, and the Berne Convention of Literary and Artistic Works[2]. This chapter of the agreement seeks to promote harmonization of IPR protection, reduce trade and investment barriers by providing the necessary provisions for IPR protection, and introduces a concept of balance between rights holder’s private interests with public interests.
Generally speaking, most of the provisions in Chapter 11 are not too different from the existing provisions on IPR in other multilateral trade agreements. It covers typical IP-issues including copyright, geographical indications, trademarks, industrial designs, patents, and domain names[3]. Since all 15 parties to the RCEP have already ratified the TRIPS Agreement, these signatories to the RCEP have generally already fulfilled most of Chapter 11’s provisions. For Australia for example, there would only be minor impact since they have already signed all the mandatory treaties as a pre-requisite to the RCEP. Since some of the RCEP’s parties are already parties to other IPR agreements, it is interesting to note of the revisions and impact the RCEP brings towards these countries in their attempts to harmonize regulation in the regional level. For example, China has amended its Copyright Law and Patent Law corresponding to RCEP provisions on partial design and electronic rights management information. Thailand is also conducting amendments to its Copyright Act following provisions for Technological Protection Measures (TMPs) and its Patent Act following provisions for partial design. Thailand’s Ministry of Commerce has also drafted a law on the Determination of Goods Infringing Trademark and/or Copyright to be Prohibited for Export, Import and Transit through the Kingdom to complement RCEP’s IPR provisions[4]. It is likely that among ASEAN countries, many will have to undergo IP Laws amendments or extensions, aside from Malaysia and Singapore[5]. It can be inferred that though the RCEP does not require parties to undergo extensive changes in their IPR regimes, it does encourage examination mechanisms for parties to re-evaluate their existing IP protection laws and conduct amendment or creation of new supplementary IP laws. This effort on harmonization further ushers’ predictability within the regional IPR regime.
Another interesting thing to note is its statement for a balance and comprehensive approach which is stated in the first article of Chapter 11, whereby the IPR protection and enforcement must promote technological transfers and innovation for the benefit of rights-holders and socio-economic wellbeing[6]. In this sense, the RCEP commits itself to preventing IPR abuses that restricts international technological transfers. Though much of the idea also derives from the TRIPS Agreement, its practice under the TRIPS Agreement was met with challenges from developed countries who seek to protect their IPR despite socio-economic costs[7]. Hence, RCEP’s provision vouch for international cooperation, since it exists within a context of a region with myriad development levels and capacity differences. This is particularly noticeable in its Section K on Cooperation and Consultation and its Section M on Transition Periods and Technical Assistance where countries like Vietnam, Myanmar, Lao PDR, and Cambodia are calling for technical assistance relating to electronic application system for trademark registration, processing, and maintenance, improving qualifications for internalizing IPR treaties, and capacity building for IPR enforcement as noted in Appendix 11B[8].
There is much enthusiasm that the provisions will increase certainty for businesses in operating their IPR since the RCEP requires its signatories to ratify key multilateral agreements on IPR. Chapter 11’s modest provisions (though its level for IPR commitment is higher than commitments in ASEAN+1 treaties) is aimed at bringing up RCEP parties to the standards of already existing IPR agreements while at the same time maintaining flexibility[9]. It also requires for member states to digitalize their IPR by providing publicly accessible IP databases for IP trademark registration and application on a country-to-county basis. This is also known as the ASEAN IP Portal which is a digital inventory to find information regarding country-to-country IP regimes as well as accessing point to the ASEAN Patent Examination Cooperation (ASPEC) program which a hub for information between IP Offices and ASEAN’s Intellectual Property Working Group[10]. This will increase transparency and decrease market barriers which decreases business uncertainty. Increased transparency would also push for an increase of participation, particularly by MSMEs which will benefit from being able to access cost-effective international filling systems and streamlined applications[11]. Moreover, this also enables more investment in technological sectors since the simplification of procedures is attractive for foreign investors due to its convenience[12] (ASL Law Firm, 2022).
Noting that the RCEP derives much inspiration from the TRIPS Agreement, it recognizes the need for flexibilities as noted in its preamble. Its requirement for member parties to catch up with other IPR treaties is approached by giving member parties grace periods and concrete timelines for adoption and ratification through a case-by-case basis, as seen in how it gives Malaysia, Thailand, Cambodia, Myanmar, and Lao PDR three to ten years to follow-through (Ministry of Trade and Industry Singapore, 2022, pp.10-12). It allows the use of flexibility under the Doha Declaration on the TRIPS Agreement on Public Health to address public health concerns and new additional measures to follow-up the TRIPS’s Three-Step Test principle in regards to provisions on limitations and exceptions to copyright. Article 11.18 states that “Each Party shall endeavor to provide an appropriate balance in its copyright and related rights system… For greater certainty, a Party may adopt or maintain limitations or exceptions to the rights referred to in paragraph 1 for fair use, as long as any such limitation or exception is confined as stated in paragraph.”
This is not to say that the RCEP is not compatible with the Three-Step Test principle, but differing from the CPTPP it acknowledges the need for fair-use exceptions and the balance between copyright protection and legitimacy reasons[13]. However, some of the RCEPs articles are also much more specific and restrictive than the TRIPS Agreement, as seen in Article 11.40 on the experimental use of patents exceptions—an issue the CPTPP have failed to reach consensus on—compared to Article 30 of the TRIPS Agreement on patent rights exceptions[14]. There are certain sections in the RCEP commitments that are not covered in the TRIPS Agreement mainly on sanctions for violations on technological protection, digital environment, and provisions on criminal sanctions of trade in counterfeited goods[15]. On the latter bit, the RCEP also has strong provisions for on enhanced border measures for IPR holders to request seizure of counterfeited goods at point of entry as well as provisions for civil remedies—something that is not found in the AANZFTA[16].
Additionally, the RCEP also included several suspended CPTPP articles on TMPs circumvention and the freedom to determine TMPs limitation and exceptions. But it also excludes issues like patent linkage, supplementary pharmaceuticals patent protection, and data exclusivity hence it is not the most pharma-friendly trade agreement out there[17]. Another unique feature of the RCEP when compared to other IPR agreements is its section on Unfair Competition, Genetic Resource, Traditional Knowledge, and Folklore under Section G[18]. In a region rich with natural resources and a diversity of culture, these provisions will mostly benefit Southeast Asia’s rights holders[19]. It also encourages its members to accede the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Disabled[20].
However, there are some things missing in RCEP’s approach towards IPR protection. For one, it does not address environmental sustainability issues within the realm of IP even if its preamble states that economic partnership is a driver towards environmental sustainability. It also does not have an investor-state settlement mechanism in relations to IP[21]. But the saliency of incorporating an IP Chapter in the RCEP is resounding; over the three million patent applications in 2019, 75% of them came from RCEP countries (though around roughly a million came from China)[22]. Though the provisions perhaps are not as revolutionary in IPR norm-making, its efforts for fair-use and its attempts to proliferate a balanced approach towards rights-holders and socio-economic welfare should be appreciated.
[1] AsiaIP (2022). RCEP and its Implications for the Asia-Pacific. [online] Asia IP. Available at: https://www.asiaiplaw.com/article/rcep-and-its-implications-for-the-asia-pacific
[2] Yu, P.K. (2017b). The RCEP and Intellectual Property Normsetting in the Asia-Pacific. Texas A&M Law Scholarship, [online] pp.1–20. Available at: https://core.ac.uk/download/pdf/217217456.pdf.
[3] ASL Law Firm (2021). Intellectual Property As Regulations Of The Regional Comprehensive Economic Partnership Agreement (RCEP) And Implementation Prospect For Vietnam. [online] Lexology. Available at: https://www.lexology.com/library/detail.aspx?g=3f9efa11-d26f-4402-b51b-99cfb2640afa
[4] AsiaIP (2022). RCEP and its Implications for the Asia-Pacific. [online] Asia IP. Available at: https://www.asiaiplaw.com/article/rcep-and-its-implications-for-the-asia-pacific
[5] Ministry of Trade and Industry Singapore (2022). Understanding the RCEP Intellectual Property Chapter: Benefits for Business. [online] pp.5–12. Available at: file:///C:/Users/ASUS/Downloads/Understanding%20the%20RCEP%20Intellectual%20Property%20Chapter.pdf.
[6] Can, Z. (2020). What’s special about RCEP’s IP chapter? [online] news.cgtn.com. Available at: https://news.cgtn.com/news/2020-11-23/What-s-special-about-RCEP-s-IP-chapter–VERx4otQCA/index.html
[7] ASL Law Firm (2021). Intellectual Property As Regulations Of The Regional Comprehensive Economic Partnership Agreement (RCEP) And Implementation Prospect For Vietnam. [online] Lexology. Available at: https://www.lexology.com/library/detail.aspx?g=3f9efa11-d26f-4402-b51b-99cfb2640afa
[8] Can, Z. (2020). What’s special about RCEP’s IP chapter? [online] news.cgtn.com. Available at: https://news.cgtn.com/news/2020-11-23/What-s-special-about-RCEP-s-IP-chapter–VERx4otQCA/index.html
[9] Can, Z. (2020). What’s special about RCEP’s IP chapter? [online] news.cgtn.com. Available at: https://news.cgtn.com/news/2020-11-23/What-s-special-about-RCEP-s-IP-chapter–VERx4otQCA/index.html
[10] Ministry of Trade and Industry Singapore (2022). Understanding the RCEP Intellectual Property Chapter: Benefits for Business. [online] pp.5–12. Available at: file:///C:/Users/ASUS/Downloads/Understanding%20the%20RCEP%20Intellectual%20Property%20Chapter.pdf.
[11] AsiaIP (2022). RCEP and its Implications for the Asia-Pacific. [online] Asia IP. Available at: https://www.asiaiplaw.com/article/rcep-and-its-implications-for-the-asia-pacific
[12] ASL Law Firm (2021). Intellectual Property As Regulations Of The Regional Comprehensive Economic Partnership Agreement (RCEP) And Implementation Prospect For Vietnam. [online] Lexology. Available at: https://www.lexology.com/library/detail.aspx?g=3f9efa11-d26f-4402-b51b-99cfb2640afa
[13] Callo-Müller, M.V. and Upreti, P.N. (2021). RCEP IP Chapter: Another TRIPS-Plus Agreement? GRUR International Oxford University Press, [online] 70(7), pp.1–11. Available at: https://deliverypdf.ssrn.com/delivery.php?ID=757114096124125125083091003011093023030092050084043069014029067120089119098115070110018011103047026000040100126120087005123125045037034011050080091087069102082086007063022004068114065001006105022112082067119028079020118115127004095084066002099125002087&EXT=pdf&INDEX=TRUE
[14] Callo-Müller, M.V. and Upreti, P.N. (2021). RCEP IP Chapter: Another TRIPS-Plus Agreement? GRUR International Oxford University Press, [online] 70(7), pp.1–11. Available at: https://deliverypdf.ssrn.com/delivery.php?ID=757114096124125125083091003011093023030092050084043069014029067120089119098115070110018011103047026000040100126120087005123125045037034011050080091087069102082086007063022004068114065001006105022112082067119028079020118115127004095084066002099125002087&EXT=pdf&INDEX=TRUE
[15] ASL Law Firm (2021). Intellectual Property As Regulations Of The Regional Comprehensive Economic Partnership Agreement (RCEP) And Implementation Prospect For Vietnam. [online] Lexology. Available at: https://www.lexology.com/library/detail.aspx?g=3f9efa11-d26f-4402-b51b-99cfb2640afa
[16] Ministry of Trade and Industry Singapore (2022). Understanding the RCEP Intellectual Property Chapter: Benefits for Business. [online] pp.5–12. Available at: file:///C:/Users/ASUS/Downloads/Understanding%20the%20RCEP%20Intellectual%20Property%20Chapter.pdf.
[17] Callo-Müller, M.V. and Upreti, P.N. (2021). RCEP IP Chapter: Another TRIPS-Plus Agreement? GRUR International Oxford University Press, [online] 70(7), pp.1–11. Available at: https://deliverypdf.ssrn.com/delivery.php?ID=757114096124125125083091003011093023030092050084043069014029067120089119098115070110018011103047026000040100126120087005123125045037034011050080091087069102082086007063022004068114065001006105022112082067119028079020118115127004095084066002099125002087&EXT=pdf&INDEX=TRUE
[18] ASL Law Firm (2021). Intellectual Property As Regulations Of The Regional Comprehensive Economic Partnership Agreement (RCEP) And Implementation Prospect For Vietnam. [online] Lexology. Available at: https://www.lexology.com/library/detail.aspx?g=3f9efa11-d26f-4402-b51b-99cfb2640afa
[19] Can, Z. (2020). What’s special about RCEP’s IP chapter? [online] news.cgtn.com. Available at: https://news.cgtn.com/news/2020-11-23/What-s-special-about-RCEP-s-IP-chapter–VERx4otQCA/index.html
[20] Callo-Müller, M.V. and Upreti, P.N. (2021). RCEP IP Chapter: Another TRIPS-Plus Agreement? GRUR International Oxford University Press, [online] 70(7), pp.1–11. Available at: https://deliverypdf.ssrn.com/delivery.php?ID=757114096124125125083091003011093023030092050084043069014029067120089119098115070110018011103047026000040100126120087005123125045037034011050080091087069102082086007063022004068114065001006105022112082067119028079020118115127004095084066002099125002087&EXT=pdf&INDEX=TRUE
[21] Callo-Müller, M.V. and Upreti, P.N. (2021). RCEP IP Chapter: Another TRIPS-Plus Agreement? GRUR International Oxford University Press, [online] 70(7), pp.1–11. Available at: https://deliverypdf.ssrn.com/delivery.php?ID=757114096124125125083091003011093023030092050084043069014029067120089119098115070110018011103047026000040100126120087005123125045037034011050080091087069102082086007063022004068114065001006105022112082067119028079020118115127004095084066002099125002087&EXT=pdf&INDEX=TRUE
[22] Ministry of Trade and Industry Singapore (2022). Understanding the RCEP Intellectual Property Chapter: Benefits for Business. [online] pp.5–12. Available at: file:///C:/Users/ASUS/Downloads/Understanding%20the%20RCEP%20Intellectual%20Property%20Chapter.pdf.
BY Marsha Phoebe – moderndiplomacy
