[Asia] RCEP and IP: raising the minimum standards

The Regional Comprehensive Economic Partnership is a free trade agreement between 15 Asia-Pacific nations.

Conceived at the 2011 ASEAN Summit in Bali, it was signed on November 15th, 2020 at a virtual ASEAN Summit hosted in Vietnam with the main goal to be put into force in the middle of 2021. 

This agreement expected to eliminate about 90% of the tariffs on imports between its signatories within 20 years of coming into force, and establish common rules for e-commerce, trade, and intellectual property.

The Chapter 11 of RCEP further provides in relation to intellectual property and fixes in several areas the minimum standard of protection that each country taking part to RCEP undertakes to implement.

We might also say that – except few advanced IP systems – in most of cases RCEP raises the standards of IP protection and enforcement in all participating countries. 

Aside from securing the protection rights for copyright, and trademark in the normal sense, it also goes further to protect non-traditional trademarks (sound marks, wider range of industrial designs) and forms of digital copyright.

In terms of IP protection, besides the basic principles that are strictly complied with, Chapter 11 of RCEP bears its own uniqueness compared with those of the United States–Mexico–Canada Agreement (USMCA), Trans Pacific Partnership (TPP) and CPTPP-Comprehensive Progressive Trans-Pacific Partnership (CPTPP). A prominent feature is that the it focuses more on the balance of rights and obligations to prevent the abuse of IP rights.

The first article of the IP Chapter declares that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare.

Chapter 11, also requires RCEP its contracting members to adopt appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology. Further provisions can be found in the enforcement part of this chapter, which establishes that these procedures shall be applied to avoid the creation of barriers to legitimate trade and to provide for safeguard against their abuse.

Although the principle of the balance of interests had been stipulated in TRIPS, its function has been diminished by some developed countries who have the most IP resources and endeavor to preserve their global competitiveness by excessively stressing the importance of the protection of the rights of rights holders.

A further goal of the RCEP agreement is to change the member states situation by increasing and emphasize the significance of fair use, the transfer of technology and socio-economic welfare in the international community.

Another significant feature of RCEP's IP chapter is that it has spared a specificsection to include the international rules with respect to the protection of genetic resources, traditional knowledge and folklore.

Eventually, Section G requires each party to establish appropriate measures to protect them, which is the first time for these issues to be written in the IP Chapter of such a trade agreement.

This develop marks a significant progress in the international IP protection field in terms of caring about the interests of the developing and the least developed countries who are known as rich in traditional and cultural resources, but lacking in industrial property, such as pharmaceutical patents, industrial designs and business secrets.

Laura Batzella

HFG Law&Intellectual Property