The Regional Comprehensive Economic Partnership (RCEP) is a free trade agreement between ASEAN member countries and Australia, China, Japan, Korea, and New Zealand. RCEP promises to provide the necessary momentum for businesses and people in the region to recover, particularly in light of the current COVID-19 pandemic. RCEP has introduced regulations aimed at minimizing impacts and obstacles to trade and investment in order to open up the prospect of cooperation and investment between countries. In which the establishment, use, protection, and full and effective enforcement of intellectual property rights, as mentioned in Chapter 11, are also considered important ways to achieve the Agreement’s common goal. This article discusses the main contents of IP and IPR enforcement in RCEP.
The RCEP provides a balanced and comprehensive approach to intellectual property rights protection and enforcement
The introduction of a balanced and comprehensive approach to the protection and enforcement of IP rights in the region is one of the most notable points in RCEP Chapter 11 on IP. The protection and enforcement of intellectual property rights must contribute to promoting innovation, technology transfer, and dissemination, for the mutual benefit of manufacturers and knowledge users, as well as in ways that promote social and economic well-being, according to the Chapter’s first article. As a result, the RCEP requires members to take appropriate measures to prevent intellectual property rights holders from abusing their rights or engaging in practices that unreasonably restrict trade or harm international technology transfer.
The Chapter’s enforcement section, in particular, requires that these procedures be applied in a way that avoids creating barriers to lawful trade and protects against their abuse. Essentially, RCEP is committed to harmonizing the level of protection and enforcement of IPRs based on the TRIPS Agreement provisions. Despite the fact that the principle of balance of interests was enshrined in the TRIPS Agreement, its function was reduced as some developed countries sought to maintain their competitive position. Especially since a number of RCEP member countries are also signatories to other bilateral and multilateral agreements that necessitate a high and difficult level of enforcement and owner rights protection.
As a result, RCEP is attempting to change this situation by emphasizing the importance of fair use, technology transfer, and socioeconomic well-being in the international community.
The TRIPS agreement and the RCEP
It is clear that the TRIPS content has been used by RCEP in the IP Regulation Chapter. For example, under the headings ‘Objectives’ and ‘Principles’ of the IP Chapter, RCEP primarily borrows the text of TRIPS Agreement Articles 7 and 8. In principle, RCEP appears to assume all of the TRIPS tradeoffs and flexibility. The Doha Declaration on the TRIPS Agreement and Public Health is also recognized by RCEP, and the Parties confirm the use of flexible capabilities to promote public health. This is also consistent with the provisions in the RCEP Preamble, where the Parties recognize that appropriate forms of flexibility are required based on the Parties’ levels of development.
In the event of a conflict between the provisions of this treaty and TRIPS, the provisions of TRIPS take precedence.
Furthermore, a new feature of RCEP is a more flexible provision regarding copyright exceptions and limitations. Article 11.18 of the RCEP states, after reiterating the applicable principle of the Three-Step Test (an important principle in TRIPS), that:
“3. Each Party shall endeavor to provide an appropriate balance in its copyright and related rights system, among other things by means of limitations and exceptions consistent with paragraph 1, for legitimate purposes, which may include education, research, criticism, comment, news reporting, and facilitating access to published works for persons who are blind, visually impaired, or otherwise, print disabled.
4. 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.”
Furthermore, the RCEP recognizes that fair use restrictions and exceptions may be compatible with the TRIPS three-step test (as opposed to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)).
Moreover, RCEP differs in that it stipulates that in some cases, the language used in some provisions can be interpreted in a limited way, limiting TRIPS’ flexibility. Article 11.38 on exceptions to patent rights, for example, provides limited exceptions to exclusivity as long as the exceptions do not conflict unreasonably with normal exploitation by inventing. The provisions outlined above are similar to Article 30 of the TRIPS agreement. This demonstrates that this provision does not limit any type of exception. Furthermore, Article 11.40 addresses the experimental use of inventions.
The inclusion of a patent trial use exception is a remarkable step, given that previous agreements, such as the CPTPP, failed to reach a consensus.
