The Regional Comprehensive Economic Partnership: intellectual property and trade in the Asia-Pacific

ABSTRACT

This article considers the evolution of the Regional Comprehensive Economic Partnership (RCEP) – with a particular focus on intellectual property, trade, and sustainable development. This narrative concentrates on the position of Australia – while also discussing the interests of other participating nations. This article charts the aims and objectives of the intellectual property chapter of RCEP. It explores the copyright provisions of RCEP – considering the implications for access to knowledge, innovation, and competition. This article examines the treatment of trade mark law, Internet Domain Names, and geographical indications. It evaluates the regime for patent law and related rights such as data protection, trade secrets, and biologics – with a particular concern for access to medicines and the COVID-19 crisis. It also explores sui generis regimes of intellectual property – such as plant breeder's rights, access to genetic resources, and Indigenous intellectual property. The conclusion considers the future of RCEP – especially given competing mega agreements such as the Trans-Pacific Partnership (TPP); the Belt Road Initiative; and the Indo-Pacific Economic Framework for Prosperity.

KEYWORDS:

• Regional Comprehensive Economic Partnership (RCEP)
• intellectual property
• trade
• sustainable development
• innovation

I. Introduction

This article provides a critical analysis of the recently passed Regional Comprehensive Economic Partnership (RCEP)¹ – focusing in particular upon intellectual property, trade, and sustainable development from the perspective of Australia.

There have been longstanding concerns about the secretive nature of treaty-making in Australia – with calls over the last two decades for greater transparency, accountability, and oversight. The negotiation of the TRIPS Agreement 1994 prompted the Productivity Commission to take an early interest in the impact of trade agreements upon intellectual property rights.² Much like the Trans-Pacific Partnership (TPP),³ there have been misgivings about the secret nature of the negotiations regarding RCEP.⁴ As such, legislators, civil society, and the wider public have not had access to the negotiating texts in respect of RCEP. The civil society group Knowledge Ecology International sought to overcome such problems by publishing leaked drafts of the Intellectual Property Chapter and the Investment Chapter of RCEP in 2016.⁵ The full text of the agreement was not made publicly available until it was finalized in 2020. Knowledge Ecology International has been concerned about the ‘power of right-holder groups to use secret trade negotiations to limit democratic decisions that impact access to knowledge, the freedom to innovate and the right to health, in negative ways’.⁶ Jeremy Malcolm of the Electronic Frontier Foundation laments: ‘Like the TPP before it, the RCEP is being negotiated in a secretive fashion, behind closed doors, without adequate input from Internet users or any other of the stakeholders whose lives and livelihoods it will affect’.⁷

Academics worried that RCEP has escaped the scholarly scrutiny and critical analysis that other mega-trade deals have received. During the negotiations, Peter Yu commented that the agreement has unduly received less attention than the TPP or the proposed Trans-Atlantic Trade and Investment Partnership (TTIP).⁸ He has emphasized: ‘In view of these immense challenges and the high stakes involved, it is high time that policymakers, commentators, activists, consumer advocates and civil society organizations paid greater attention to the RCEP negotiations’.⁹ In 2017, Yu predicted that one could ‘easily anticipate three scenarios concerning the future of the RCEP intellectual property chapter’.¹⁰ The first scenario was one in which there was no intellectual property chapter – because of disagreement amongst ASEAN+6 members. The second scenario was a TPP-like Intellectual Property Chapter. This model presumes that Japan, Singapore, South Korea, Australia, and New Zealand would prevail in the negotiations. The third scenario was that a TPP-Lite Intellectual Property Chapter. In this scenario, China and India will be dominant in influencing the progress of the negotiations. In conclusion, Peter Yu comments:

Regardless of which future scenario one finds the most likely, the RCEP will raise important questions about the future of intellectual property norm-setting in the Asia-Pacific region and about the future levels of protection and enforcement that will be found in intellectual property systems across this region.¹¹

Yu notes that are certainly benefits involved with the harmonization of intellectual property regimes in the Asia-Pacific:

Given that intellectual property will remain a crucial part of the twenty-first-century economy and that its importance can only grow with time, ASEAN+6 members will squander a major opportunity to harmonise regional intellectual property standards if the RCEP Agreement does not include an intellectual property chapter.¹²

However, he also notes that there are significant risks as well: ‘If the standards in this chapter are set too high, however, they will also hurt themselves by impeding future development, eroding global competitiveness and jeopardising access to essential medicines, educational materials and information technology’.¹³ Yu has subsequently further developed his thoughts upon the progress of the RCEP negotiations.¹⁴ In the end, the final text of RCEP included an intellectual property chapter – with a mixture of TRIPS and TRIPS+ provisions. In the language of Peter Yu, this regime constitutes a TPP-lite approach to intellectual property.

There is a growing academic literature on RCEP – in terms of its politics and economics; its legal framework; its implementation; and its future evolution. Julien Chaisse and Pasha Hsieh have sought to rethink Asia-Pacific regionalism and new economic agreements, such as the RCEP and the TPP.¹⁵ Chien-Huei Wu has explored how ASEAN nations have responded to entreaties to join the RCEP and the TPP.¹⁶ Shiro Armstrong and Peter Drysdale have considered the potential of RCEP to foster economic co-operation.¹⁷ Xu Qian and Yan Zhang have considered the treatment of science, technology, and innovation in Asia-Pacific's legal framework.¹⁸ Felicity Deane and her collaborators have considered how RCEP deals with electronic commerce.¹⁹ Lin Lifei has sought to decipher the financial services treaty language of RCEP.²⁰ Michelle Limenta has analysed RCEP's potential and limitations in the trade of goods relevant to renewable energy generation.²¹ There has also been interest in how RCEP deals with investment law.²² In this context, this particular article seeks to contribute to this growing academic literature on RCEP – by analysing the intellectual property chapter and its implementation by member states.

This article provides an overview of the treatment of intellectual property and innovation policy under RCEP – with a critical commentary about the final nature of the framework. It is argued that RCEP could and should have promoted sustainable development within its intellectual property framework. This study approaches this topic from the viewpoint of Australian law and policy. Part II charts the aims and objectives of the intellectual property chapter of RCEP. It highlights the emphasis on the interests of private intellectual property rights holders in the overview – with a lack of proper recognition of the public interests served by intellectual property law and policy. Part III analyses the copyright provisions of RCEP, particularly highlighting questions in respect of access to knowledge. Part IV focuses on trade mark law and related rights in respect of Internet domain names and geographical indications. Part V looks at patent law and related rights, such as data protection, trade secrets, and biologics. Part VI explores intellectual property and sustainable development. It examines plant breeders’ rights, access to genetic resources, and Indigenous intellectual property. The Conclusion focuses upon the future of RCEP – particularly given the rival, competing mega trade agreements, such as the TPP, the Belt Road Initiative, and the Indo-Pacific Economic Framework for Prosperity.

II. Aims and objectives of RCEP

At the outset, it is useful to outline the debate over the public policy objectives of RCEP in respect of intellectual property law, policy, and practice. It is also helpful to canvass the criticism of RCEP – both in terms of the process of negotiating the agreement, and the substantive themes of the agreement.

A. Public policy objectives

Intellectual property law plays a significant role in respect of public policy objectives regarding creativity, innovation, and competition policy.

The leaked draft text displayed a range of public policy objectives in respect of intellectual property mooted for the agreement.²³ ASEAN, India, Australia, New Zealand, and South Korea called for text on general provisions and principles. South Korea has called for stronger IP rights language ‘to provide certainty for rights holders and users of intellectual property over the protection and enforcement of intellectual property rights’.²⁴ Japan has opposed the text on general provisions and principles in this section. Japan instead called for the confirmation of the objectives and principles provided for in Article 7 and 8 of the TRIPS Agreement 1994. There seemed to be deep disagreements between the nation states as to the role and function of intellectual property. This perhaps speaks to very different visions of intellectual property across the ASEAN states, and the other negotiating partners in RCEP.

In the end, Article 11.1 of the final text of RCEP contains a list of objectives in respect of intellectual property law, policy, and practice.²⁵ Article 11.1 (1) provides:

The objective of this Chapter is to reduce distortion and impediments to trade and investment by promoting deeper economic integration and cooperation through the effective and adequate creation, utilisation, protection, and enforcement of intellectual property rights, while recognising: (a) the Parties’ different levels of economic development and capacity, and differences in national legal systems; (b) the need to promote innovation and creativity; (c) the need to maintain an appropriate balance between the rights of intellectual property right holders and the legitimate interests of users and the public interest; (d) the importance of facilitating the diffusion of information, knowledge, content, culture, and the arts; and (e) that establishing and maintaining a transparent intellectual property system and promoting and maintaining adequate and effective protection and enforcement of intellectual property rights provide confidence to right holders and users.²⁶

Article 11.1 (2) provides:

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, and to a balance of rights and obligations.²⁷

Article 11.2 of RCEP concerned the Scope of Intellectual Property:

For the purposes of this Chapter, “intellectual property” means copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs (topographies) of integrated circuits, protection of plant varieties, and protection of undisclosed information, as referred to in Sections 1 through 7 of Part II of the TRIPS Agreement.²⁸

Article 11.3 of RCEP considered the relationship to other agreements: ‘In relation to intellectual property, in the event of any inconsistency between a provision of this Chapter and a provision of the TRIPS Agreement, the latter shall prevail to the extent of such inconsistency’.²⁹

In its statement of Principles, Article 11.4 (1) of RCEP provides:

A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance to its socio-economic and technological development, provided that such measures are consistent with this Chapter.³⁰

There has been increasing concern about intellectual property rights being used for anti-competitive purposes to build and sustain monopolies in the marketplace. Article 11.4 (2) provides:

Appropriate measures, provided that they are consistent with this Chapter, may be needed 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.³¹

Chapter 11.4 (3) states: ‘Further to paragraph 2, the Parties recognise the need to foster competition’.³² Vitor Henrique Pinto Ido of the South Centre has highlighted a lack of focus on competition policy in the intellectual property regime of RCEP:

A notable absence in the IP Chapter to any mention to the control of anti-competitive conducts in contractual licensing (Article 40, TRIPS) and more broadly the need to “prevent the abuse of IPRs by rights holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology” (Article 8, Principles, TRIPS Agreement).³³

Article 11.9 deals with ‘Multilateral Agreements’³⁴ Peter Yu has commented that RCEP represents an effort to build upon multilateral agreements:

The draft RCEP intellectual property chapter includes the usual language found in free trade agreements (FTAs) requiring the accession to the two Internet treaties of the World Intellectual Property Organization (WIPO) – the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (Draft Article 1.7.6(g)–(h)). Going beyond the terms of the TPP Agreement, the draft chapter also requires accession to the Beijing Treaty on Audiovisual Performances, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. (Draft Articles 1.7.6(h)–(ibis))³⁵

The draft text of the RCEP represented a muddle of various copyright models. There are elements from the TRIPS Agreement. There are features from WIPO Internet Treaties.³⁶ Some aspects resemble TRIPS + agreements. Some countries have been pushing for TRIPS++ standards in RCEP. There has also been a push for an investment model – in which intellectual property and investment are tied together. There has been a call for a Development Agenda in respect of RCEP and copyright law. There has also been a call for a flexible and differential approach to take into account the interests of least developed countries.

Iman Pambagyo, the trade negotiating committee chief for RCEP, has warned against turning the agreement into a new TPP.³⁷ He has suggested that a number of developed countries will need to temper their demands in RCEP, and agree to compromises.

In the end, María Vásquez Callo-Müller, and Pratyush Nath Upreti comment that the final agreement does ‘consolidate in a single agreement various intra-ASEAN FTAs and other Pacific FTAs’.³⁸ However, in their view, ‘the significance of the RCEP is more geo-political rather than a classical norm-maker – norm-taker relationship’.³⁹

In its regulatory impact statement, the Australian Government contends that the intellectual property chapter of RCEP will boost business confidence in the Asia-Pacific:

RCEP will provide increased certainty to rights’ holders and users by establishing a strong platform for the development of consistent Intellectual Property (IP) rules throughout the region, including rules that will help create an enabling environment for business to trade digitally.⁴⁰

The Australian Government maintained that RCEP was a ‘balanced’ agreement:

RCEP will establish balanced rules for the effective creation, utilisation, protection, and enforcement of intellectual property rights, including copyright and related rights, trademarks, geographical indications, industrial designs, patents, and protection of plant varieties, without requiring any changes to Australia's existing IP settings.⁴¹

The Government of Singapore has boosted RCEP's intellectual property regime as providing ‘benefits for businesses’ in the region.⁴² The Government of Singapore has maintained: ‘The expanded and standardised protections stipulated by RCEP will enhance IP regimes in the region, which will benefit business and encourage innovation’.⁴³ The Government of Singapore has promised: ‘For Singapore businesses, they can be confident that innovation will be rewarded and branding protected’.⁴⁴ The Government of Singapore maintained that the regime would boost Singapore's music industry; its agricultural biotechnology sector; and its advanced manufacturing fields.

The Asian Trade Centre has argued that ‘the countries negotiating RCEP are at the heart of the world's most mobile-focused region, with hundreds of thousands of developers and startups building apps and Internet platforms for an increasingly global market’.⁴⁵ The Asian Trade Centre has maintained: ‘A balanced copyright framework can enable these SMEs in ASEAN and emerging markets to grow quickly and compete on an international stage with established players’.⁴⁶ The Asian Trade Centre has argued that ‘copyright flexibilities, limitations, and safe harbours are critical to spurring investment in startups in this region’.⁴⁷

The Australian Law Reform Commission highlighted a number of framing principles for copyright law reform.⁴⁸ The first principle was the importance of acknowledging and respective authorship and creation. The second principle focused on maintaining incentives for creation and dissemination. The third principle talked about promoting fair access to content. The fourth principle was that rules should be flexible, clear, and adaptive. The fifth principle was that there was a need that rules be consistent with international obligations.

Moreover, the Australian Law Reform Commission stressed that Australian copyright law should be contextualized in terms of the digital economy, innovation, and productivity. There was a need to contemplate the role of copyright law in the digital economy, and the opportunities for innovation leading to national economic and cultural development created by the emergence of new digital technologies. The Australian Law Reform Commission also observed that copyright law had a key role in respect of consumer rights and competition policy. The inquiry also acknowledged that copyright law directly affects a broad range of cultural activity, and raised larger implications in respect of cultural policy.

The Harper Review expressed concerns that there was a lack of guiding objectives to Australia's negotiation of intellectual property in trade agreements: ‘The Panel is concerned that Australia has no overarching IP policy framework or objectives guiding changes to IP protection or approaches to IP rights in the context of negotiations for international trade agreements’.⁴⁹

The Productivity Commission was likewise dismayed by the lack of policy coherence in respect to Australia's intellectual property regime:

Clear articulation of a policy objective would help to ensure that all elements of the IP system are consistent and ‘pulling in the same direction’, while providing regulators, government and the judiciary a common understanding of what the IP system is meant to achieve. But the Commission has found little consensus as to what the objective of the IP system should be, beyond some broad themes.⁵⁰

The Productivity Commission contended that ‘the IP system's overarching objective should be to recognise and encourage the creation of new and valuable ideas and innovations in a way that maximises the wellbeing of all Australians’.⁵¹ The Productivity Commission identified four principles that were essential to a balanced and well-functioning intellectual property regime – ‘effectiveness’, ‘efficiency’, ‘adaptability’, and ‘accountability’.

In terms of intellectual property principles and objectives, RCEP promotes foreign investment and trade, and intellectual property protection and enforcement. The agreement needs a stronger emphasis on public policy objectives – such as access to knowledge; the protection of public health; technology transfer; and sustainable development.

B. The secrecy of treaty-making

There have been tensions between Australia's domestic copyright law reform process and Australia's international trade negotiations.

Much like the TPP, there have been concerns about the secret nature of the negotiations regarding RCEP.⁵² As such, legislators, civil society, and the wider public have not had access to the negotiating texts in respect of RCEP – until the publication of the final text in 2020.

In 2016, the civil society group Knowledge Ecology International sought to overcome such problems by publishing leaked drafts of the Intellectual Property Chapter and the Investment Chapter of RCEP.⁵³ Knowledge Ecology International has been concerned about the ‘power of right-holder groups to use secret trade negotiations to limit democratic decisions that impact access to knowledge, the freedom to innovate and the right to health, in negative ways’.⁵⁴

Jeremy Malcolm of the Electronic Frontier Foundation laments: ‘Like the TPP before it, the RCEP is being negotiated in a secretive fashion, behind closed doors, without adequate input from Internet users or any other of the stakeholders whose lives and livelihoods it will affect’.⁵⁵

Academics have worried that RCEP has escaped the scholarly scrutiny and critical analysis that other mega-trade deals have received. Peter Yu has commented that the agreement has unduly received less attention than the TPP or TTIP.⁵⁶ He has emphasized: ‘In view of these immense challenges and the high stakes involved, it is high time that policymakers, commentators, activists, consumer advocates and civil society organizations paid greater attention to the RCEP negotiations’.⁵⁷

A group of 60 intellectual property professors issued a declaration, expressing concern that the intellectual property protection standards proposed for the RCEP IP Chapter ‘may cause unintended effects of stifling creativity, free speech, and economic growth’.⁵⁸ The group urged that the new rounds of RCEP negotiations reconsider those standards by applying three principles. First, the intellectual property professors said that there was a need to integrate the public interest as a core value for intellectual property negotiations - especially in respect of copyright law. Second, the academics said that there is a demand to increase transparency of negotiations for the public interest. Third, the group of intellectual property professors wanted to institute changes in provisions for the public interest.

In terms of procedure, the academics called for a release of information about the negotiations:

The RCEP should take affirmative measures to make all negotiating texts and other relevant documents publicly available as soon as possible. For this purpose, the RCEP should learn from the example of the World Intellectual Property Organization (WIPO), which carried out transparency measures that facilitated the successful conclusion of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. WIPO publicly released draft negotiating documents promptly. It also publicly webcast the negotiating process.⁵⁹

The professors also called for greater stakeholder engagement: ‘When considering critical issues, the RCEP should open up channels through which the relevant stakeholders can submit their opinions’.⁶⁰ In particular, the academics wanted greater civil society involvement: ‘When necessary, the RCEP should organize public hearing meetings where various stakeholders can discuss the merits and demerits of draft proposals and negotiators can explain decision-making processes’.⁶¹

The professors were idealistic and hopeful that the ‘RCEP negotiations would produce the largest mega-regional free trade agreement to procedurally and substantially protect the public interest in copyrighted works’.⁶² In their view, ‘the RCEP copyright provisions, therefore, stand to benefit nearly 50 per cent of the world's population, who live in the sixteen RCEP participating countries’.⁶³

In November 2016, hundreds of civil society groups urged negotiators to reject efforts to model elements of RCEP on the TPP.⁶⁴ The letter was particularly concerned about the intellectual property measures in the agreement: ‘In the leaked RCEP intellectual property (IP) chapter, Japan, South Korea and some others are pushing many of the main substantive stronger IP provisions of the TPP’.⁶⁵ The civil society organizations argued that there should be a new model of trade, which is ‘based on cooperation and not competition, one that puts the development needs of the region above that of corporations’.⁶⁶

AFTINET has raised concerns that RCEP is the TPP by another name.⁶⁷ The civil society organization has complained: ‘But despite the TPP's demise, global corporations and some governments including the Australian government are pushing to repeat the same failed model in other trade agreements’.⁶⁸

Nation states excluded from the scope of the TPP have voiced their concern about the impact of mega-regional agreements upon flexibilities in respect of intellectual property – including those relating to copyright law, education, and development. In 2017, the delegations of Brazil, China, India, South Africa, and Fiji tabled a paper to the WTO's TRIPS Council entitled ‘Intellectual Property and the Public Interest’.⁶⁹ The paper complained that ‘A slew of regional trade agreements containing “TRIPS plus” standards of IP protection and enforcement have the potential to significantly affect the policy space available for effective and full use of the TRIPS flexibilities’.⁷⁰ The delegations highlighted how increased ‘copyright protections create similar problems of access to knowledge goods, limiting the ability of many people around the world to access print, audio, or visual works of education or entertainment that we take for granted’.⁷¹ Moreover, the delegations maintained: ‘Investor-State disputes under regional or bilateral investment protection agreements are also emerging as significant threats to the use of TRIPS flexibilities in the public interest’.⁷²

In its consideration of Australia's intellectual property arrangements, the Productivity Commission in 2016 has mooted a number of possible reforms to the process of trade negotiations.⁷³ Chapter 18 of the final report deals with international co-operation in intellectual property.⁷⁴ The report recognized: ‘International cooperation can reduce the transaction costs of seeking and licensing intellectual property (IP) in multiple jurisdictions, improve the quality of examination of applications for IP rights and facilitate trade of IP-intensive goods and services’.⁷⁵ The report also noted: ‘Slow progress in multilateral forums has led to increasing reliance on IP provisions in preferential trade agreements (PTAs)’.⁷⁶

The Productivity Commission warned that ‘Some PTAs embody stronger standards of protection than multilateral agreements, tipping the balance in favour of rights holders and elevating the costs of IP protection’.⁷⁷ The Commission commented: ‘This imposes greater costs on Australia as a net importer of IP, and impedes further creation and innovation’.⁷⁸ The Commission warned: ‘IP provisions in PTAs substantially constrain domestic policy flexibility and increase the complexity and costs of negotiating IP arrangements in international agreements’.⁷⁹

In its view, ‘Changes to standards of IP protection should be pursued in multilateral forums – where outcomes are less likely to be driven by the interests of a few – and pursued separately to efforts to align administrative processes’.⁸⁰ The Productivity Commission suggested: ‘In line with good practice, international IP agreements should be periodically and independently reviewed’.⁸¹ It noted: ‘There is scope for the Australian Government to achieve more balanced IP arrangements within the confines of existing international obligations’.⁸²

In recommendation 18.2, the Productivity Commission recommended that ‘the Australian Government should play a more active role in international forums on intellectual property policy’.⁸³ The Productivity Commission suggested that the Australian Government should call for ‘a review of the TRIPS Agreement (under Article 71.1) by the WTO’.⁸⁴ Moreover, the Productivity Commission suggested that Australia should be ‘identifying and progressing reforms that would strike a better balance in respect of copyright scope and term’.⁸⁵

The closed, secretive negotiations behind RCEP highlight the need for a reform of the treaty-making process in Australia, as well as the need for a greater supervisory role of the Australian Parliament.

III. Copyright law

It is worthwhile considering how RCEP deals with copyright law – as well as industrial forms of property. In particular, it is useful to discuss thematic concerns such as economic rights and collective management of copyright; copyright limitations and exceptions; technological protection measures and electronic rights management information; broadcast copyright and satellite signals; intermediary liability; and government use of software.

A. Economic rights and collective management of copyright

Section 2 of the Draft Intellectual Property Chapter of RCEP concerned copyright law and related rights. The agreement represented an ambitious effort to harmonize copyright laws across the Asia-Pacific. There was a discussion as to the standards and norms in RCEP in respect of the protection of economic rights under copyright law. Draft article 2.1 of RCEP dealt with economic rights.

Article 11.10 of the final text deals with ‘Exclusive Rights of Authors, Performers, and Producers of Phonograms’.⁸⁶ Article 11.10 (1) provides:

Each Party shall provide to authors of works the exclusive right to authorise any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.⁸⁷

Article 11.10 (2) states:

Each Party shall provide to performers and producers of phonograms the exclusive right to authorise the making available to the public of their performances fixed in phonograms and phonograms, respectively, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.⁸⁸

Article 11.10 (3) provides: ‘Each Party shall provide to authors, performers, and producers of phonograms the exclusive right to authorise or prohibit the reproduction of their works, performances fixed in phonograms, and phonograms in any manner or form’.⁸⁹

On the question of copyright duration, RCEP follows the standard international norms under the Berne Convention for providing copyright protection for life plus 50 years. The agreement does not propose a copyright term extension like the TPP. Jeremy Malcolm comments:

An important change from the previous leaked text, and an important distinction from the TPP, is that the current text of RCEP contains no requirement for countries to extend the copyright term beyond the minimum specified in the Berne Convention, which is usually the life of the author plus 50 years. This means that for countries that have not already extended their copyright term—and have not signed and ratified the TPP—RCEP would allow them to maintain their existing copyright term.⁹⁰

This is a significant and important development – given the concerns about the impact of copyright term extensions upon education, the public domain, and the cultural commons.

Domestically, in Australia, the Productivity Commission expressed concerns about the economic costs associated with copyright term extensions.⁹¹ The copyright term extension wrought by the Australia-United States Free Trade Agreement 2004 has been particularly expensive for Australia.⁹² There remains a lack of clear possible solutions for the problem of orphan works – where it is difficult to identify or locate the copyright owner.

Draft Article 2.2 focused upon collective management of copyright. Draft Article 2.2.1 proposes:

Each Party shall {may} foster the establishment of appropriate bodies for the collective management of copyright [JP/AU/IN/KR propose; ASN/CN/NZ oppose: and related rights] and encourage such bodies to operate in a manner that is [JP/ASN/NZ/AU/IN/KR propose; CN oppose: fair,] efficient, publicly transparent and accountable to their members [JP/AU/IN/KR propose; ASN/CN/NZ oppose: including [ASN/NZ propose: which may include] open and transparent record keeping of the collection and distribution of revenues].⁹³

Draft Article 2.2.2 states:

[KR/AU/IN propose; ASN/NZ oppose:] 2. The Parties shall [AU propose: {may} where appropriate,] endeavour to [AU propose: foster cooperation] [AU oppose: facilitate the establishment of arrangements] between their respective collecting societies for the purposes of mutually ensuring easier [IN propose: management of rights, and] licensing of content between the Parties, [AU/IN oppose: as well as ensuring mutual transfer of royalties for use of the Parties’ works or other copyright-protected subject matters.]]⁹⁴

There has been a long history of inquiries into the operation of copyright collecting societies in Australia, but little substantive in the way of reformation. There has been an awkward, fragmented oversight of the copyright collecting societies by the Australian Government, the Australian Competition and Consumer Commission, the Copyright Tribunal, and the code reviewer.

The 2016 Productivity Commission report discussed questions about the best practice regulation of copyright collecting societies.⁹⁵ In a 2017 speech, Commissioner Karen Chester expressed reservations about the transparency and accountability of Australia's network of copyright collecting societies: ‘There have been questions in this inquiry about the effectiveness of the Code of Conduct for Collecting Societies’.⁹⁶ She said that the Productivity Commission:

recommended that the ACCC review arrangements for collecting societies with a view to strengthening governance and transparency, ensuring that the current code represents contemporary best practice (in substance and form), balances the interests of societies and licensees, and whether the code should be made mandatory.⁹⁷

Karen Chester suggested that there could be scope for further improvement in respect of the governance structures of copyright collecting societies.

There has since been significant controversy over the Copyright Agency diverting funds meant for authors to a fighting fund against the introduction of copyright reforms in Australia.⁹⁸

Article 11.13 of the final text of RCEP deals with Collective Management Organisations.⁹⁹ Article 11.13 (1) provides: ‘Each Party shall endeavour to foster the establishment of appropriate organizations for the collective management of copyright and related rights’.¹⁰⁰ Article 11.13 (1) states: ‘Each Party shall encourage such organizations to operate in a manner that is fair, efficient, publicly transparent, and accountable to their members, which may include open and transparent record keeping of the collection and distribution of royalties’.¹⁰¹ Article 11.13 (2) provides:

The Parties recognise the importance of fostering co-operation between their respective collective management organisations for the purposes of mutually ensuring easier licensing of content among the Parties, as well as encouraging mutual transfer of royalties for use of works or other copyright-protected subject matters of the nationals of another Party.¹⁰²

Ideally, there should be a better system of regulating copyright collecting societies in the Pacific Rim.

B. Copyright limitations and exceptions

There is a spectrum of models of copyright exceptions in the Asia-Pacific. The negotiations over RCEP sought to consider whether there was any common ground in this field.

Draft Article 2.5 deals with copyright limitations and exceptions. There has been a significant debate within the region as to whether to follow an English-style regime of a purpose-specific defence of a fair dealing, or a more inclusive American model of a defence of fair use. Korea has adopted a hybrid model. There have been a number of inquiries in Australia – held by the Copyright Law Review Committee,¹⁰³ the parliamentary IT pricing inquiry,¹⁰⁴ Australian Law Reform Commission,¹⁰⁵ the Harper Review,¹⁰⁶ and the Productivity Commission,¹⁰⁷ amongst others – which have recommended that the government should adopt a defence of fair use. There have been recent complaints by a range of stakeholders about the limitations of Australia's copyright exceptions. However, the Australian Government has preferred to stick with the model of the defence of fair dealing.

The draft text has suggested that there has been effort by Australia to push for stronger language on copyright limitations and exceptions beyond just the 3-step test in the TRIPS Agreement 1994. Australia has apparently suggested that

[e]ach party shall endeavour to provide an appropriate balance in its copyright and related rights system by providing limitations and exceptions … for legitimate purposes including education, research, criticism, comment, news reporting, libraries and archives and facilitating access for persons with disability.

Such language, though, does not necessarily prescribe a fair dealing or a flexible dealing or a fair use approach.

Ironically, while the New Zealand Government has been pushing for stronger copyright standards in regional trading agreements, the ruling National Party has embroiled in an embarrassing piece of copyright litigation over one of its election advertisements. Eminem has been suing the National Party for copyright infringement over its ‘Eminem-esque’ music during a previous election campaign.¹⁰⁸

The Asian Trade Centre – run by Deborah Elms – has made the case for a more expansive approach to copyright exceptions.¹⁰⁹ The Centre contends:

There are many socially and economically productive activities that Internet and other technology companies in the region seek to undertake – e.g. the caching and indexing of websites to create more efficient search engines, text and data mining for research purposes, machine learning, and new forms of creative expression for both commercial and non-commercial purposes. Certain exceptions are critical to supporting online creativity and emerging artists as well as providing broader audiences easier access to knowledge and education. From an economic standpoint, exceptions to copyright can enable innovation and increase investment in Internet services.¹¹⁰

There is significant variation within the region on copyright exceptions. The Centre comments: ‘Korea, Malaysia, the Philippines, and Singapore all have copyright exceptions with statutory factors that a court must apply to determine whether a person has used copyrighted material in a non-infringing way’.¹¹¹ The Centre observes that ‘Australia, Brunei, India, and New Zealand also have exceptions that allow a degree of flexibility’.¹¹² Indeed, India – which eventually left the RCEP negotiations – has had some broad readings of copyright exceptions in the courts.¹¹³

The final text in RCEP remains unclear. Jeremy Malcolm laments that ‘the RCEP negotiators have failed to avail themselves of this obvious opportunity for improvement of the TPP’.¹¹⁴ In the final text, Article 11.18 of RCEP dealt with Copyright Limitations and Exceptions.¹¹⁵ Article 11.18 (1) provides: ‘Each Party shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder’.¹¹⁶ Article 11.18 (2) provides: ‘Nothing in paragraph 1 shall reduce or extend the scope of applicability of the limitations and exceptions available to a Party as a party to the TRIPS Agreement, the Berne Convention, the Rome Convention, the WCT, or the WPPT’.¹¹⁷ Article 11.18 (3) observes:

Each Party shall endeavour 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.¹¹⁸

Article 11.18 (4) elaborates: ‘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 1’.¹¹⁹

Martin Skladany has contended that there should not be a one-size fits all approach to the design of copyright regimes.¹²⁰ He has contended that there is a need to shape copyright limitations and exceptions to take into account sustainable development issues in particular countries. Tanya Aplin and Lionel Bently have argued that there should be a broader recognition of a global mandatory fair use.¹²¹ Ruth Okediji has maintained that there is a need for developing countries to overcome some of the limitations of international copyright exceptions.¹²² She laments:

The pressure to harmonize copyright law – and the long practice of doing so-only in the direction of strengthening exclusive private rights - has made it unnecessarily difficult to adjust the system to accomplish goals that are important for the welfare of developing and least-developed countries.¹²³

The agreement does not though enhance copyright flexibilities and defences – particularly in terms of boosting access to knowledge, education, innovation, and sustainable development.

C. Technological protection measures and electronic rights management information

There has been a concerted push over the last two decades to globalize the protection of technological protection measures and electronic rights management through bilateral trade agreements and regional trade agreements.¹²⁴

Under Article 2.3, the agreement also addresses technological protection measures and digital rights management information. There is deep disagreement between the negotiating parties. Japan has been pushing for extensive protection of technological protection measures. ASEAN nations have been resisting such demands. Korea has proposed an alternative, in-between model of protection for technological protection measures. Australia has complicated interests in this debate – in light of the High Court of Australia ruling in Stevens v Sony,¹²⁵ and the 2006 amendments passed in the wake of the Australia-United States Free Trade Agreement 2004.¹²⁶ The situation is further complicated by the constitutional challenge against the technological protection measures regime in the United States (which has been the template for countries, such as Singapore, Australia, and Korea).

Jeremy Malcolm of the Electronic Frontier Foundation reflects upon the RCEP provisions on digital rights management:

The RCEP proposals on Digital Rights Management (DRM) in Article 2.3 are a little more flexible than the equivalent Article 18.68 of the TPP. While RCEP still requires legal protection and remedies against the circumvention of DRM, this only covers DRM that constrains uses of the work that are not otherwise authorized or permitted by law. Thus under RCEP, it would probably not be against the law to circumvent DRM in order to view DRM-protected content on a device of your choosing, or to copy parts of it for a fair use purpose, or for other purposes that are consistent with copyright law.¹²⁷

In contrast to the TPP, there are not criminal penalties for the supply of devices or services that are primarily to be used for DRM circumvention.

Article 11.14 of RCEP concerns the Circumvention of Effective Technological Measures, providing that:

Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers, or producers of phonograms in connection with the exercise of their rights referred to in this Section and that restrict acts, in respect of their works, performances, or phonograms, which are not authorised by the authors, the performers, or the producers of phonograms concerned or permitted by the laws and regulations of that Party.¹²⁸

There has also been debate over the regime in RCEP for electronic rights management information in draft Article 2.3ter.

Article 11.15 of RCEP concerns the Protection for Electronic Rights Management Information, providing:

To protect electronic rights management information (hereinafter referred to as “RMI” in this Chapter)14, each Party shall provide adequate and effective legal remedies against any person knowingly performing without authority any of the following acts knowing, or with respect to civil remedies with reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any copyright or related rights referred to in this Chapter: (a) removing or altering any electronic RMI; or (b) distributing, importing for distribution, broadcasting, communicating, or making available to the public copies of works, performances fixed in phonograms, or phonograms, knowing that electronic RMI has been removed or altered without authority.¹²⁹

Article 11.16 concerns ‘Limitations and Exceptions to Providing Protection and Remedies for Technological Measures and RMI [Rights Management Information]’¹³⁰ Article 11.16 (1) provides: ‘Each Party may provide for appropriate limitations and exceptions to measures implementing Article 11.14 (Circumvention of Effective Technological Measures) and Article 11.15 (Protection for Electronic Rights Management Information) in accordance with its laws and regulations’.¹³¹ Article 11.16 (2) provides:

The obligations set forth in Article 11.14 (Circumvention of Effective Technological Measures) and Article 11.15 (Protection for Electronic Rights Management Information) are without prejudice to the rights, limitations, exceptions, or defences to infringement of any copyright or related right under a Party's laws and regulations.¹³²

There has been concern about the impact of broad protection of technological protection measures and electronic rights management information for research, innovation, and competition.¹³³

D. Broadcast copyright and satellite signals

Draft article 2.6 looks at broadcast copyright. RCEP could provide broadcasters with a 50 year protection over the retransmission of broadcast signals, including retransmission of those signals over the Internet. This is highly controversial – especially as there has been a lack of consensus in respect of the WIPO Broadcasters Treaty.¹³⁴

Digital rights defenders such as the Electronic Frontier Foundation have been deeply concerned about such measures. Jeremy Malcolm warns that RCEP is ‘potentially providing broadcasters with a 50 year monopoly over the retransmission of broadcast signals, including retransmission of those signals over the Internet’.¹³⁵ He comments:

India's preferred language for this proposal would even provide broadcasters with a right to prohibit the reproduction of fixations (that is, recordings) of broadcasts, independent of the rights of the copyright owner over that same content. This is such an extreme proposal that it is currently considered off the table in the ongoing negotiations for a broadcasters’ treaty at the World Intellectual Property Organization (WIPO).¹³⁶

The Electronic Frontier Foundation oppose the inclusion of such measures:

These proposals for new monopoly powers for broadcasters are unnecessary, since broadcast content is already protected by copyright in most cases, and in those cases where it isn't—such as the broadcast of public domain material—there are very good reasons why such content ought to be freely available for retransmission, fixation, and reuse.¹³⁷

Article 11.11 of the final text of RCEP deals with the Right to Remuneration for Broadcasting.¹³⁸ The clause provides that ‘Performers and producers of phonograms shall enjoy the right to a single equitable remuneration, or alternatively the right to receive royalties, for the direct or indirect use of phonograms published for commercial purposes for broadcasting’.¹³⁹ Article 11.12 deals with the ‘Protection of Broadcasting Organisations and Encrypted Programme-Carrying Satellite Signals’.¹⁴⁰ Article 11.12 (1) provides: ‘Each Party shall provide to broadcasting organizations the exclusive right to prohibit the re-broadcasting of their broadcasts by at least wireless means, the fixation of their broadcasts, and the reproduction of fixations of their broadcasts’.¹⁴¹ Article 11.12 (2) provides:

Each Party shall endeavour to provide measures, in accordance with its laws and regulations, against at least one of the following acts: (a) wilful reception (b) wilful distribution; or (c) wilful reception and further distribution, of a programme-carrying signal that originated as an encrypted programme-carrying satellite signal, knowing that it has been decoded without the authorisation of the lawful distributor of the signal¹⁴²

E. Intermediary liability

The intellectual property enforcement regime also looks at intermediary liability – which has been a hotly contested topic.¹⁴³ There has been a range of proposals in respect of safe harbours and takedown-and-notice in RCEP.

The Asian Trade Centre makes the case for more expansive safe harbours protection in the Pacific Rim:

Internet service providers may need relief from potential liability for the infringing activities of their users if they are to invest in the development and deployment of new services. A recent survey of global investors – covering seven RCEP negotiating countries – found that 71% of investors ‘are uncomfortable investing in Internet businesses where the intermediaries could be held liable for third party content or actions’. Thus, safe harbours are critical to Internet services such as Internet access providers, cloud services, social media platforms, and search engines.¹⁴⁴

The Asian Trade Centre comments that there are mixed approaches to intermediary liability across the region. The Centre noted: ‘As a result of free trade agreements, Singapore included safe harbour provisions for Internet service provides for copyright infringement in domestic law, while Australia and Korea introduced partial safe harbour provisions’.¹⁴⁵ The Centre commented: ‘Japan also has a safe harbour in place, although court rulings have been somewhat contradictory’.¹⁴⁶

Peter Yu has noted: ‘The draft RCEP chapter also does not include detailed TPP-like provisions on Internet service providers, secondary liability for copyright infringement, and the notice-and-takedown mechanism’.¹⁴⁷

South Korea proposed language requiring countries to ‘take effective measures to curtail repetitive infringement of copyright and related rights on the Internet or other digital network’ (Draft Article 9quinquies.3).

Japan called for the disclosure of information concerning the accounts of allegedly infringing Internet subscribers (Draft Article 9quinquies.4). It also included a footnote supporting ‘a regime providing for limitations on the liability of, or on the remedies available against, online service providers while preserving the legitimate interests of [the] right holder’ (Draft Article 9quinquies.2, fn. 43).

The final text of RCEP does not have an elaborate regime dealing with intermediary liability in respect of copyright law. There is instead a general provision in Article 11.75 which concerns ‘Effective Action against Infringement in the Digital Environment’.¹⁴⁸ The provision states:

Each Party confirms that the enforcement procedures set out in Subsection 2 (Civil Remedies) and Subsection 4 (Criminal Remedies) shall be available to the same extent with respect to acts of infringement of copyright or related rights and trademarks, in the digital environment.¹⁴⁹

F. Government use of software

There has been concern about software piracy in the Asia-Pacific, particularly amongst developed nations and information technology companies. Draft Article 2.4 focused upon government use of software. Article 11.17 of RCEP deals with Government Use of Software, providing:

Each Party confirms its commitment to: (a) maintain appropriate laws, regulations, or policies that provide for its central government to use only non-infringing computer software in a manner consistent with this Chapter; and (b) encourage its regional and local governments to adopt or maintain measures similar to those referred to in subparagraph (a).¹⁵⁰

G. Copyright enforcement

In his useful overview, Peter Yu also reflects upon the copyright enforcement measures.¹⁵¹ He observed: ‘The draft RCEP intellectual property chapter includes the usual provisions concerning civil, criminal and administrative procedures and remedies, as well as provisional and border measures (Draft Section 9)’.¹⁵² He noted:

Although a considerable portion of the draft language in the enforcement section merely reaffirms the existing rights and obligations under the TRIPS Agreement, the proposed language increases the obligations concerning the seizure and destruction of allegedly infringing goods, including the grant of authority to take ex officio action (Draft Article 9ter.5) and to seize or destroy the materials or implements used to create infringing goods (Draft Articles 9bis.5, 9bis.6, 9bis.10 and 9quater.6).¹⁵³

Moreover, ‘The draft chapter also seeks to empower judicial authorities to determine damages for intellectual property infringement based on lost profits, the market price or the suggested retail price (Draft Article 9bis.2(i))’¹⁵⁴ Yu noted: ‘Like the TPP intellectual property chapter, the draft RCEP chapter calls for criminal procedures and penalties for unauthorised camcording in cinemas (Draft Article 9quinquies.5)’. Peter Yu counterpoints the text under negotiation in RCEP with the text on intellectual property enforcement under consideration in the TPP: ‘Unlike the TPP, however, the draft RCEP provisions on criminal procedures and penalties are not extensive’.¹⁵⁵

Section J of the final text of Chapter 11 of RCEP focuses upon the enforcement of intellectual property rights.¹⁵⁶ This regime could be considered to be a TRIPS-Plus system – particularly with some of the measures around criminal penalties and procedures, border measures, and search and seize procedures. Subsection 1 focuses on general obligations. Article 11.58 concerns general obligations.¹⁵⁷ Subsection 2 looks at civil remedies. Article 11.59 looks at fair and equitable procedures.¹⁵⁸ Article 11.60 examines damages.¹⁵⁹ Article 11.61 explores court costs and fees.¹⁶⁰ Article 11.62 considers the destruction of infringing goods and materials and implements.¹⁶¹ Article 11.63 explores confidential information in civil judicial proceedings.¹⁶² Article 11.64 deals with provisional measures.¹⁶³

Subsection 3 concerns border measures. The detailed focus on border measures is reminiscent of the Anti-Counterfeiting Trade Agreement (ACTA)¹⁶⁴ and the TPP. Article 11.65 concerns the suspension of the release of suspected pirate copyright goods or counterfeit trademark goods by right holder's application.¹⁶⁵ Article 11.66 deals with applications for suspension or detention.¹⁶⁶ Article 11.67 relates to security or equivalent assurance.¹⁶⁷ Article 11.68 deals with information provided by competent authorities to right holders.¹⁶⁸ Article 11.69 concerns the suspension of the release of suspected pirated copyright goods or counterfeit trademark goods by ex officio action.¹⁶⁹ Article 11.70 concerns information provided by rights holders to competent authorities in case of ex officio action.¹⁷⁰ Article 11.71 deals with an infringement determination within a reasonable period by competent authorities.¹⁷¹ Article 11.72 focuses on destruction orders by competent authorities.¹⁷² Article 11.73 deals with fees.¹⁷³

Subsection 4 addresses criminal remedies. Article 11.74 (1) provides that each party shall provide for criminal procedures and penalties in cases of wilful copyright or related rights piracy, and trademark counterfeiting on a commercial scale.¹⁷⁴ Article 11.74 (2) concerns the wilful importation of pirated copyright goods, and counterfeit trademark goods.¹⁷⁵ Article 11.74 (3) details a range of penalties – including sentences of imprisonment; monetary fines which have a deterrent effect; forfeiture and destruction.¹⁷⁶ Article 11.74 (4) addresses the unauthorized copying of a film on a commercial scale from a performance in a movie theatre.¹⁷⁷

RCEP provides for a wide range of remedies for intellectual property enforcement – which include civil remedies, criminal offences and procedures, border measures, technological protection measures, and electronic rights management information. Such measures could be characterized as TRIPS+ obligations.

There has been discussion as to how ASEAN nations will frame intellectual property rights on the digital age.¹⁷⁸ Particular countries – such as Singapore,¹⁷⁹ South Korea,¹⁸⁰ Indonesia,¹⁸¹ Malaysia,¹⁸² the Philippines,¹⁸³ and Viet Nam¹⁸⁴ – have made initial efforts to recalibrate their regimes. There has also been interest in the role of RCEP in boosting China's digital economy.¹⁸⁵ There has also been interest in the implications of RCEP for India (even though it was not a member of the final agreement).¹⁸⁶

IV. Trademark law and related rights

The intellectual property chapter of the RCEP also has text on trademark law and related rights, such as industrial designs, Internet Domain Names, and geographical indications.

A. Trademark law, industrial designs, and internet domain names

There has been a push to expand the protection available for trade marks and related rights in the Asia-Pacific.

Amongst other things, the TPP was designed to enhance the rights of famous and well-known trade mark holders, and expand the range of remedies available for trade mark infringement.¹⁸⁷

In the consultation process over RCEP, the International Trademark Association made various submissions as to the design of trade mark provisions in the agreement.¹⁸⁸ The organization maintained: ‘INTA hopes that the agreement will deliver stronger, easier and more accessible IPRs for the benefit of businesses of all sizes, the economy and consumers’.¹⁸⁹ The Association hoped that the 16 negotiating countries would not only fully implement their obligations under the TRIPS Agreement 1994 – but they also wanted the adoption of TRIPS+ measures.

Section C of Chapter 11 of RCEP focuses upon trade mark law. Article 11.19 concerns the protection of trademarks.¹⁹⁰ Article 11.20 focuses on collective and certification trade marks.¹⁹¹ Article 11.21 deals with the trademarks classification system.¹⁹² Article 11.22 concerns trade mark registration.¹⁹³ Article 11.23 deals with trade mark rights conferred.¹⁹⁴ Article 11.24 addresses trade mark exceptions.¹⁹⁵ Article 11.25 focuses on the protection of trade marks, which predate geographical indications.¹⁹⁶ Article 11.26 focuses on the protection of well-known trade marks.¹⁹⁷ Article 11.27 deals with bad faith trade marks.¹⁹⁸ Article 11.28 concerns ‘One and the Same Application Relating to Several Goods or Services’.¹⁹⁹

As discussed previously, there is provision for a suite of remedies for intellectual property enforcement – including criminal procedures and penalties for trademark counterfeiting on a commercial scale.²⁰⁰

There will be complex challenges for developing nations in ASEAN to develop high standards of trade mark protection and enforcement.²⁰¹

Section F of Chapter 11 of RCEP deals with industrial designs. In Australia, the field of designs law and practice²⁰² has been the subject of various reviews and inquiries to rejuvenate the industrial property field.²⁰³ RCEP, though, provides little guidance as to the modernization of designs law. Article 11.49 of RCEP concerns the protection of industrial designs.²⁰⁴ Article 11.49 (1) of RCEP concerns the threshold requirements in respect of industrial designs.

There is an acknowledgement in Article 11.49 (4) of RCEP that:

each Party may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.²⁰⁵

Disappointingly, given the inquiry of the Australian Productivity Commission into the right to repair, there is no reference to the importance of the right to repair in RCEP.²⁰⁶ There has been a significant push in Australia to recognize the right to repair in intellectual property law, consumer rights, and competition policy.²⁰⁷ There is a private member's bill in New Zealand – the Consumer Guarantees (Right to Repair) Amendment Bill 2024 (NZ) – which seeks to recognize the right to repair as a consumer guarantee.²⁰⁸ The recognition of a right to repair could help promote a circular economy in the Asia-Pacific region.

Section H focuses upon unfair competition. Article 11.54 of RCEP concerns effective protection against unfair competition.²⁰⁹ For its part, Australia seeks to deal with such matters under passing off and consumer law. Article 11.55 of RCEP focuses upon Internet Domain Names.²¹⁰ The clause provides:

In connection with its system for the management of its country code top-level domain (ccTLD) domain names and in accordance with its laws and regulations and, if applicable, relevant administrator policies regarding protection of privacy and personal data, each Party shall make the following available: (a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, as approved by the Internet Corporation for Assigned Names and Numbers, or that: (i) is designed to resolve disputes expeditiously and at a reasonable cost; (ii) is fair and equitable; (iii) is not overly burdensome; and (iv) does not preclude resort to judicial proceedings; and (b) appropriate remedies, at least in cases in which a person registers or holds, with a bad faith intent to profit, a domain name that is identical or confusingly similar to a trademark.²¹¹

RCEP provides for protection in respect of trade mark law, unfair competition, designs protection, Internet Domain names, and country names. There has been discussion as to whether RCEP will be a driver of harmonization in these areas of legal regulation.

B. Tobacco control, plain packaging of tobacco products, and the tobacco endgame

During the course of the RCEP negotiations, Australia defended its pioneering public health initiative of plain packaging of tobacco products in a number of forums.²¹² The Australian Government defeated a constitutional challenge by Big Tobacco companies in the High Court of Australia.²¹³ The Australian Government also triumphed against an investor-state despite settlement action brought by Philip Morris under an investment agreement between Australia and Hong Kong.²¹⁴ The Australian Government was also successful in defending plain packaging of tobacco products against the complaints of a number of countries in the World Trade Organization – at first instance and on appeal.²¹⁵ It is notable that one of the complainants was Australia's neighbour, Indonesia – a fellow member of RCEP.

It is striking that, though, a number of RCEP members have followed Australia's lead in taking public health measures to combat the global tobacco epidemic. New Zealand²¹⁶ and Singapore²¹⁷ have introduced plain packaging of tobacco products. Thailand is also in an advanced stage of implementing plain packaging of tobacco products.²¹⁸ Malaysia is considering the adoption of plain packaging of tobacco products.²¹⁹ Myanmar has been planning to introduce plain packaging of tobacco products – but political instability has made that transition uncertain.²²⁰

The final text of RCEP does not include an investor-state dispute settlement system. (The TPP contained a clause excluding investor-state dispute settlement actions against tobacco control measures). However, there remains the possibility of state-versus-state disputes over tobacco control under RCEP. International trade and investment agreements – including RCEP – should ensure that tobacco control measures contemplated by the WHO Framework Convention on Tobacco Control 2003 should not be subject to challenge under trade and investment dispute settlement mechanisms.²²¹

It is important to ensure as well that various tobacco endgame policies and strategies being initiated by countries in the Asia-Pacific are not subject to trade and investment actions.

The Albanese Government in Australia has been seeking to build upon the foundation of plain packaging of tobacco products.²²² In 2023, the Australian Government passed a new suite of tobacco control reforms, which sought to consolidate and modernize Australia's tobacco control legislation into one act.²²³ The Health Minister Mark Butler reflected:

Today marks a new era as Australia returns to the forefront of the global fight against smoking. Tobacco has caused immeasurable harm and cost us countless lives. We cannot stand by and allow another generation of people to be lured into addiction and suffer the enormous health, economic and social consequences. Together with the strong measures we’re taking against vaping, these reforms will help us keep pace with the cynical marketing strategies of Big Tobacco. The laws passed today will save lives.²²⁴

In 2024, the Australian Government has been introducing a series of vaping reforms to provide for the strict regulation of e-cigarettes.²²⁵ The Australian Government is seeking to ‘prevent the domestic manufacture, advertisement, supply and commercial possession of non-therapeutic and disposable single-use vapes to ensure comprehensive controls on vapes across all levels of the supply chain’.²²⁶

Under Jacinda Ardern's Government, New Zealand introduced a new regime to achieve smoke-free generations.²²⁷ Associate health minister Ayesha Verrall reflected: Smoking is still the leading cause of preventable death in New Zealand and causes one in four cancers’.²²⁸ he observed: ‘We want to make sure young people never start smoking … people aged 14 when the law comes into effect will never be able to legally purchase tobacco’.²²⁹ The Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Act 2022 (NZ) sought to reduce the number of retail outlets allowed to sell smoked tobacco products. The legislation also aimed to reduce the amount of nicotine allowed in smoked tobacco products. The regime also aimed to prohibit the sale of tobacco products to anyone born on or after 1 January 2009. However, the new Conservative Coalition Government led by Christopher Luxon has sought to repeal these tobacco endgame laws.²³⁰ There have been concerns about tobacco interference in New Zealand's policy-making in respect of public health.²³¹

As well as providing safeguards against trade and investment action by tobacco companies and tobacco-friendly states, RCEP should do more to address the tobacco epidemic in the Asia-Pacific.

C. Geographical indications

In the Asia-Pacific, there have been tensions between competing models for the protection of geographical indications promoted by the United States and European Union. Even though the United States departed the TPP negotiations, the text of the TPP remains firmly based upon an American approach to geographical indications.²³²

As William van Caenegem from Bond University has noted, there is a complex range of positions of trade mark law and geographical indications in the Asia-Pacific region.²³³ There has been significant adoption and adaption of geographical indications amongst ASEAN nations.²³⁴

ASEAN has developed guidelines on protection of geographical indications in ASEAN member states.²³⁵ ASEAN has observed: ‘As the agriculture sector remains a key driver of the ASEAN's economic development, the protection of GIs is considered as an effective means to add value to agricultural products, local identity and traditional knowledge in the region’.²³⁶ Most ASEAN states have implemented a sui generis regime in respect of geographical indications – a few nations rely just on collective marks and certification marks under the trade mark system. The European Union has been interested in the development of geographical indications in the ASEAN region.²³⁷

In the end, RCEP has some limited provisions on geographical indications in Section D of Chapter 11 on Intellectual Property. Article 11.29 provides: ‘Each Party shall ensure in its laws and regulations adequate and effective means to protect geographical indications’.²³⁸ Article 11.29 notes: ‘Each Party recognises that such protection may be provided through a trademark system, a sui generis system, or other legal means, provided that all requirements under the TRIPS Agreement are fulfilled’.²³⁹ Article 11.30 focuses upon domestic administrative procedures for the protection of geographical indications.²⁴⁰ Article 11.31 looks at grounds for opposition and cancellation.²⁴¹ Article 11.32 addresses multi-component terms.²⁴² Article 11.33 relates to the date of protection of a geographical indication.²⁴³ Article 11.34 addresses the protection of recognition of geographical indications pursuant to international agreements.²⁴⁴ Article 11.35 focuses upon the protection or recognition of geographical indications under concluded international agreements.²⁴⁵

Vitor Henrique Pinto Ido commented:

The IP Chapter's option to explicitly acknowledge that Parties may adopt different approaches to the protection of GIs seems to suggest the intent of internalizing various previous commitments by RCEP Parties on the matter rather than seeking to find a common position.²⁴⁶

The New Zealand Parliamentary inquiry discussed the topic of geographical indications in the context of RCEP. The Committee noted: ‘MFAT observed that RCEP reinforces the importance of GIs, but does not offer any additional platforms for developing them’.²⁴⁷ The Committee observed:

Some submitters commented that GIs are not used very widely in New Zealand, as companies tend to use trademarks instead. One example referred to was Kāpiti Kahurangi Creamy Blue cheese, which has been trademarked by Fonterra. There were concerns that GIs could be misused to monopolise commonly known product varieties that New Zealand produces, but that could be claimed as GIs from other countries, or other geographic regions. This could have a negative economic effect on New Zealand producers in future agreements.²⁴⁸

Much like Australia, New Zealand is caught between the demands of the European Union for a stronger agenda on geographical indications for food and wine, and the preference of the United States for a reliance upon trade marks, rather than geographical indications.

In 2023, New Zealand agreed to higher standards of protection of geographical indications as part of a trade agreement with the European Union.²⁴⁹ Australia remains under pressure to adopt higher standards of protection of geographical indications in ongoing negotiations with the European Union.²⁵⁰ In contrast to Australia and New Zealand, India has had a much more expansive vision of geographical indications under intellectual property.²⁵¹ Thailand has also developed an extensive system of protection for geographical indications.²⁵²

Section I focuses upon country names. Article 11.57 of RCEP provides: ‘Each Party shall provide the legal means for interested persons to prevent commercial use of the country name of a Party in relation to a good in a manner that misleads consumers as to the origin of that good’.²⁵³ There have been previously intellectual property disputes over country names, such as that of New Zealand.²⁵⁴ There is a larger discussion in international intellectual property over trade marks, country names, and misappropriation of national identity.²⁵⁵

RCEP has a limited array text on geographical indications, taking a rather neutral position in the larger geopolitical debate on the topic between the European Union and the United States.

V. Patent law and related rights

RCEP has text on patent law – which has a bearing upon larger public policy concerns, such as public health and access to essential medicines. There was also discussion in the negotiations over RCEP over related rights, such as confidential information, trade secrets, biologics, and data protection.

A. Patent law, access to medicines, and the COVID-19 crisis

Chapter 11 of RCEP contains Section E on Patents – which covers thirteen articles. There are provisions on patentable subject matter;²⁵⁶ patent rights;²⁵⁷ patent exceptions;²⁵⁸ and other uses of patents without the authorization of the patent holder.²⁵⁹ There is explicit recognition of an exception of allowing for the experimental use of a patent.²⁶⁰ After a long policy debate, the Australian Government recognized a defence of experimental use²⁶¹ – no doubt, it was happy for that domestic outcome to be reflected in the international text of RCEP. There are also some procedural provisions on examination and registration;²⁶² grace periods;²⁶³ electronic patent application systems;²⁶⁴ patent publication;²⁶⁵ prior art;²⁶⁶ expedited examination;²⁶⁷ and patent classification.²⁶⁸ As Markus Nolff has noted, ‘RCEP has considerably fewer patent provisions than CPTPP and USMCA’.²⁶⁹ Furthermore, Nolff remarks: ‘Unlike CPTPP/USMCA, RCEP has no provisions address any of the substantive ‘constructive ambiguity’ and omissions present in TRIPS’.²⁷⁰

There has been concern about the impact of bilateral and regional trade agreements, with provisions laying down standards above and beyond the TRIPS Agreement 1994, upon the provision of affordable medicines.²⁷¹ There was an intense debate over the text of the TPP and the TPP-11 and its ramifications for public health.²⁷²

There has been prolonged discussion about the impact of RCEP on access to affordable medicines. Burcu Kilic has discussed the dangers for access to essential medicines in RCEP.²⁷³ There has also been concern by public health researchers about the effects of RCEP upon access to medicines – particularly for developing countries and least developed countries.²⁷⁴

In its statement of Principles, Article 11.4 (1) of RCEP provides:

A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance to its socio-economic and technological development, provided that such measures are consistent with this Chapter.²⁷⁵

Such Principles could no doubt apply to an understanding of patent law, public health, and access to medicines.

Article 11.8 of RCEP deals with the TRIPS Agreement and Public Health.²⁷⁶ Article 11.8 (1) of RCEP provides: ‘The Parties reaffirm the Doha Declaration on the TRIPS Agreement and Public Health adopted on 14 November 2001’.²⁷⁷ Article 11.8 (1) of RCEP elaborates:

In particular, the Parties have reached the following understandings regarding this Chapter: (a) the Parties affirm the right to fully use the flexibilities as duly recognised in the Doha Declaration on the TRIPS Agreement and Public Health; (b) the Parties agree that this Chapter does not and should not prevent a Party from taking measures to protect public health; and (c) the Parties affirm that this Chapter can and should be interpreted and implemented in a manner supportive of each Party's right to protect public health and, in particular, to promote access to medicines for all.²⁷⁸

Article 11.8 (2) of RCEP provides:

In recognition of the Parties’ commitment to access to medicines and public health, this Chapter does not and should not prevent the effective utilisation of Article 31bis of the TRIPS Agreement, and the Annex and Appendix to the Annex to the TRIPS Agreement.²⁷⁹

Article 11.8 (3) states: ‘The Parties recognise the importance of contributing to the international efforts to implement Article 31bis of the TRIPS Agreement, and the Annex and Appendix to the Annex to the TRIPS Agreement’.²⁸⁰

The Joint Leaders’ Statement in 2020 maintained:

In light of the adverse impact of the pandemic on our economies, and our people's livelihood and well-being, the signing of the RCEP Agreement demonstrates our strong commitment to supporting economic recovery, inclusive development, job creation and strengthening regional supply chains as well as our support for an open, inclusive, rules-based trade and investment arrangement.²⁸¹

The Joint Leaders’ Statement commented: ‘We acknowledge that the RCEP Agreement is critical for our region's response to the COVID-19 pandemic and will play an important role in building the region's resilience through inclusive and sustainable post-pandemic economic recovery process’.²⁸² There has also been some economic research on the topic of RCEP and the COVID-19 pandemic recovery in East Asia.²⁸³

The text of RCEP, though, does not address critical issues related to COVID-19 in the Asia-Pacific. At an international level, there has been debate over intellectual property flexibilities in the context of access to essential medicines and the COVID-19 public health crisis. The World Health Organization has established the ACT-Accelerator to speed up the distribution of vaccines, therapeutics, and diagnostics. The C-TAP has been established to share intellectual property.²⁸⁴ The Medicines Patent Pool has expanded its mandate to cover technologies related to the coronavirus.²⁸⁵ There has been discussion of the options of compulsory licensing and crown use. There has been a debate around public sector licensing. The model of open licensing has also been discussed. There has been a call for a TRIPS Waiver led by South Africa and India.²⁸⁶ There has been a discussion of the need for a People's Vaccine.²⁸⁷ The WTO has agreed to a Ministerial Decision in 2022, which is designed to help the export of essential vaccines during the COVID-19 crisis through the regime of compulsory licensing.²⁸⁸ However, the WTO has not been able to reach agreement as yet on extending that Ministerial Decision to diagnostics and therapeutics.²⁸⁹ There is an ongoing discussion in the World Health Organization about the formation of a Pandemic Treaty – but there may not be sufficient consensus to reach a final agreement.²⁹⁰

In Australia, the Productivity Commission has been conducting an inquiry into vulnerable supply chains, in the wake of the COVID-19 crisis.²⁹¹

In New Zealand, Jane Kelsey questions whether RCEP is well-adapted for a COVID-19 response and recovery:

It is time for New Zealand to revisit the failed hyper-globalisation model of the past four decades, especially after COVID-19 has exposed our vulnerability to deeply integrated supply chains we can't control and ‘services exports’ that depend on international travel.²⁹²

RCEP does not adequately respond to the issues in respect of patent law and access to essential medicines during the COVID-19 crisis. Likewise, RCEP is not well prepared for future epidemics, pandemics, and public health emergencies.

B. Biologics, data protection, and trade secrets

Article 11.56 of RCEP concerns the Protection of Undisclosed Information.²⁹³ Article 11.56 (1) of RCEP states: ‘Each Party shall provide protection of undisclosed information in accordance with paragraph 2 of Article 39 of the TRIPS Agreement’.²⁹⁴ Article 11.56 (2) of RCEP provides: ‘Further to paragraph 1, the Parties recognise the importance of protecting undisclosed information in relation to the objectives specified in paragraph 2 of Article 11.1 (Objectives)’.²⁹⁵ This minimalist approach to confidential information and trade secrets in RCEP is a stark contrast to the maximalist approach to confidential information and trade secrets in the TPP.²⁹⁶ Nonetheless, it is worth reflecting that there has been much litigation of late over the breach of confidential information emanating by government and commercial entities in China. Even though RCEP sets a basic template for the protection of undisclosed information, there could well be further litigation in this space in the Asia-Pacific.

In stark contrast to the TPP,²⁹⁷ RCEP does not provide for any additional sui generis obligations in respect of data protection and biologics.

RCEP provides limited protection of confidential information and trade secrets – even though there has been much litigation in this field in the Asia-Pacific.

VI. Intellectual property and sustainable development

The RCEP agreement also has some text on some sui generis areas of intellectual property protection – such as plant breeders rights, access to genetic resources, Indigenous intellectual property and traditional knowledge. There has been a larger discussion as to whether the agreement is adequate in its treatment of the Sustainable Development Goals.

A. Plant breeder's rights and plant intellectual property

In the Asia-Pacific, there have been tensions between farmers’ rights, and the introduction of various forms of agricultural intellectual property.

There was extensive discussion of the norms and standards for agricultural intellectual property in the debate over the TPP.²⁹⁸

As observed by Jay Sanderson of the University of the Sunshine Coast, there has been fierce debate over plant variety protection, agricultural patents, and farmers’ rights during the RCEP negotiations.²⁹⁹ The NGO GRAIN feared: ‘RCEP will usher in a wave of corporate concentration and take over of Asia's food and agriculture sector’.³⁰⁰ Christoph Antons has charted the expansion of intellectual property in agriculture across the Asia-Pacific.³⁰¹ He noted the divisions between parties in the RCEP negotiations: ‘With some minor variations in the individual positions, Australia, Japan and Korea are seeking a TRIPS-plus text on plant varieties, but they are facing formidable opposition from the ASEAN countries, China, India, and New Zealand’.³⁰²

Article 11.36 (3) (b) of RCEP provides that ‘a Party may also exclude from patentability’ ‘plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes’.³⁰³ Article 11.36 (3) (b) of RCEP states that ‘each Party shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof’.³⁰⁴ Article 11.36 (3) (b) of RCEP provides that ‘the Parties shall review this subparagraph upon any amendment to subparagraph 3(b) of Article 27 of the TRIPS Agreement with a view to deciding whether to adopt a similar amendment to this subparagraph’.³⁰⁵

Some civil society groups remain aggrieved about the final text of RCEP in respect of intellectual property and agriculture. People over Profits have argued that:

the RCEP will undermine the farmers’ right to use and share farm saved seeds, as well as their right to the protection of traditional knowledge and to share in the benefits from the use of plant genetic resources for agriculture.³⁰⁶

People over Profits has contended: ‘It is through intellectual property that the RCEP can also allow giant pharmaceutical companies and agro-corporations to rake in profits at the expense of people's access to affordable healthcare and seeds’.³⁰⁷

S. Ali Malik has examined the uneven recognition of farmers’ rights in India, and its implications for food security and food sovereignty.³⁰⁸ Christoph Antons has explored the recognition of farmers’ rights in Indonesia.³⁰⁹ Kamalesh Adhikari and his colleagues organized a research workshop, which called for a better articulation of farmers’ rights – both in the Asia-Pacific region, and globally.³¹⁰

B. Access to genetic resources, the environment, and climate change

There has been long concern about unauthorized exploitation of genetic resources in the Asia-Pacific. In particular, the Government of India has been concerned about the biopiracy of its biodiversity.³¹¹ There have been a number of famous oppositions in respect of patent applications in respect of the Neem Tree, and Basmati rice.³¹² There have also been other concerns about biopiracy in the Asia-Pacific region.³¹³

Jean-Frederic Morin from Laval University has been charting the treatment of the environment across various preferential bilateral and regional trade agreements.³¹⁴ In this context, RCEP seems an anomaly. The regional trade agreement does not have a dedicated chapter on the environment. There are some vestiges of provisions in the text of the agreement. It is strange and peculiar that RCEP does not substantively address biodiversity, the protection of the environment, or climate change.

Article 17.10 of RCEP briefly refers to the Convention on Biological Diversity 1992, noting that ‘Each Party affirms its rights and responsibilities under the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992’.³¹⁵ This minimalist clause is inadequate and unenforceable. RCEP represents a missed opportunity to take a regional approach to the regulation of access to genetic resources – especially given the large scale bioprospecting work being carried out in the region.³¹⁶

In the New Zealand Parliament, the Foreign Affairs, Defence, and Trade Committee considered the failure to address the environment and climate change in RCEP.³¹⁷ The Committee observed:

Some of us noted that an environmental chapter is absent from RCEP. We asked whether this would have an effect on upholding New Zealand's environmental principles. MFAT explained that it faced strong opposition from other members over including a chapter on environmental standards. We were assured that New Zealand's environmental interests are protected throughout the agreement, despite the lack of a specific environmental chapter.³¹⁸

The committee noted: ‘Some submitters expressed concern that joining regional agreements without enforcing environmental standards could damage New Zealand's domestic goals in that area’.³¹⁹ While acknowledging ‘the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) has a legally binding environmental chapter’, the Committee said that ‘the lack of one in RCEP seems inconsistent with advancing New Zealand's environmental aims’.³²⁰ The Committee said that there was a need to be ‘wary of smaller parties in agreements sacrificing principles in order to appease more dominant parties’.³²¹ The Committee observed: ‘Some commented that smaller parties may feel pressured to sacrifice domestic standards in order to remain involved in negotiations of current, and future, agreements’.³²²

In contrast to RCEP, the TPP does have an Environment Chapter, although its value has been questioned as being merely symbolic, rather than substantive.³²³ In terms of its trade policy, the European Union has been pushing for a stronger connection between trade, sustainable development, and the environment.³²⁴ RCEP fails to provide substantive protection of the environment, biodiversity, or climate in the Asia-Pacific. The Center for Environmental Concerns fears that ‘RCEP's drive for profit and disregard for environmental protection will worsen natural resource extraction, pollution and destruction of the ecosystems’.³²⁵

C. Indigenous rights and indigenous intellectual property

It is problematic that RCEP involved little in respect of consultations and negotiations with Indigenous peoples in the Pacific Rim – falling short of the standards established by the United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP).³²⁶ Moreover, it is significant that RCEP fails to address Indigenous rights in a substantive way. There is only aspirational text in respect of Indigenous intellectual property. Much like the TPP, RCEP has a saving clause in the general exceptions to address New Zealand, Indigenous Rights, and the Treaty of Waitangi.³²⁷

Article 11.53 of the final text of RCEP deals with ‘Genetic Resources, Traditional Knowledge, and Folklore’.³²⁸ Article 11.53 (1) states: ‘Subject to its international obligations, each Party may establish appropriate measures to protect genetic resources, traditional knowledge, and folklore’.³²⁹

Article 11.53 (2) provides:

Where a Party has disclosure requirements relating to the source or origin of genetic resources as part of its patent system, that Party shall endeavour to make available its laws, regulations, and procedures with respect to such requirements, including on the internet where feasible, in such a manner as to enable interested persons and other Parties to become acquainted with them.³³⁰

Article 11.53 (3) comments:

Each Party shall endeavour to pursue quality patent examination, which may include: (a) that when determining prior art, relevant publicly available documented information related to traditional knowledge associated with genetic resources may be taken into account; (b) an opportunity for third parties to cite, in writing, to the competent examining authority, prior art disclosures that may have a bearing on patentability, including prior art disclosures related to traditional knowledge associated with genetic resources; and (c) if applicable and appropriate, the use of databases or digital libraries which contain relevant information on traditional knowledge associated with genetic resources.³³¹

These provisions follow a similar format to the discretionary language on Indigenous intellectual property in the TPP.

Noting that such language is extremely limited, Vitor Henrique Pinto Ido observed: ‘The developed countries that are part of RCEP are also opponents of the creation of a mandatory disclosure requirement in the context of negotiations for a treaty for the protection of GRs, TK and folklore in WIPO’.³³²

Article 17.16 of RCEP considers the Treaty of Waitangi.³³³ Article 17.16 (1) of RCEP provides:

Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, trade in services and investment, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Māori in respect of matters covered by this Agreement, including in fulfilment of its obligations under the Treaty of Waitangi.³³⁴

Article 17.16 (2) of RCEP provides:

The Parties agree that the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. Chapter 19 (Dispute Settlement) shall otherwise apply to this Article.³³⁵

Article 17.16 (2) of RCEP also adds: ‘A panel established under Article 19.11 (Establishment and Reconvening of a Panel) may be requested to determine only whether any measure referred to in paragraph 1 is inconsistent with a Party's rights under this Agreement’.³³⁶

There has been concern in the context of the TPP-11 that such a general exceptions clause is insufficient and inadequate to deal with Indigenous rights in the context of New Zealand.³³⁷

In the New Zealand Parliament, the Foreign Affairs, Defence, and Trade Committee considered the topic of RCEP and the Treaty of Waitangi.³³⁸ The Committee discussed its misgivings about the regime:

Some of us are concerned that the Treaty of Waitangi exception clause is outdated and no longer fit for purpose. There has been criticism that it does not accurately reflect the best interests of Māori. Some submitters expressed this view and shared their concerns about how the treaty exception would apply when it comes to implementing legislation to ratify the agreement. The treaty exception clause is present in all of New Zealand's trade agreements. The ministry told us that it is aware of criticism about the exception, but asserted that it remains effective. The ministry added that changing it would only be necessary if a serious flaw was identified and a change would affect how the exception clause works in previous agreements.³³⁹

The committee concluded: ‘Some of us would like to see reference to different perspectives on the treaty exception included in future NIAs’.³⁴⁰

The new conservative Government in New Zealand led by Christopher Luxon has come under criticism for its approach to Indigenous rights.³⁴¹ The Government has sought to dismantle the Maori Health Authority,³⁴² and repeal tobacco endgame laws,³⁴³ with little consultation with Indigenous communities. An array of challenges have been raised in the Waitangi Tribunal to legal changes which impact the procedural and substantive rights of Indigenous communities in New Zealand.³⁴⁴ The junior coalition partner ACT has put forward a Treaty Principles Bill, which could undermine the Treaty of Waitangi. In his Waitangi Speech, the Prime Minister Christopher Luxon said:

The Treaty is our past, present and future. It has shaped the country we have become, and the obligations it imposes on both sides will always be with us. However, we must aspire to go forward not as two sides, but together as New Zealanders because there is more that unites us than divides us.³⁴⁵

It remains to be seen how such political contests over the Treaty of Waitangi will affect Indigenous intellectual property rights in New Zealand.

Moreover, there is a failure in RCEP to consider the matter of Indigenous rights across the Pacific-Rim – including in Australia. It is striking that there is an ongoing debate about the Uluru Statement from the Heart in Australia, with its trilogy of a voice, a treaty, and a truth-telling process.³⁴⁶ A referendum to recognize an Indigenous voice under the Australian Constitution in 2023 was unsuccessful.³⁴⁷ Nonetheless, the Albanese Government is pressing ahead, with some law reforms to provide for better recognition of Indigenous intellectual property.³⁴⁸

There does need to be a better institutional presence within the Australian Parliament for an Indigenous voice on the topic of international trade and investment. Given that regional trade agreements such as the TPP and RCEP impact upon Indigenous rights, there is a need to properly involve Indigenous communities in the negotiations of such agreements, and ensure that Indigenous rights are properly protected and safeguarded. The Department of Foreign Affairs and Trade has sometimes used the rhetoric of ‘inclusive trade’ with reference to Indigenous Communities.³⁴⁹ However, in practice, the Australian Government has not necessarily consulted Indigenous communities on trade agreements, or put forward negotiating positions, which would enhance Indigenous rights.

It is worthwhile noting that a number of other jurisdictions in RCEP have significant policy debates over Indigenous intellectual property and traditional knowledge. The Government of Indonesia has sought to protect Communal intellectual property.³⁵⁰ Daniel Robinson has observed that there is a complex relationship in Thailand between intellectual property and customary law.³⁵¹ He comments: ‘In Thailand, there have been some attempts to limit the scope of patentability over plants, and a traditional medicines law has been established to provide forms of copyright-like protection for traditional formulae’.³⁵² The Government of Japan has often been hostile to proposals in respect of Indigenous intellectual property and traditional knowledge at an international level.³⁵³ The Ainu people have pushed for recognition of traditional knowledge and cultural heritage within Japan.³⁵⁴

There has been discussion about regional co-operation within ASEAN on the protection of traditional knowledge and Indigenous intellectual property.³⁵⁵ There has been workshops on the protection of genetic resources, traditional knowledge, and traditional cultural expressions in the region.³⁵⁶ There have complaints, though, that Indigenous voices have been missing from ASEAN discussions.³⁵⁷ There has been slow action to implement UNDRIP in Asian-Pacific nations.

In this context, RCEP does not adequately consider Indigenous rights – including those in the Asia-Pacific.

D. United Nations sustainable development goals

During the negotiations for RCEP, the United Nations General Assembly adopted the 2030 Agenda for Sustainable Development – comprising 17 sustainable development goals.³⁵⁸

The final preamble of RCEP emphasizes ‘that the three pillars of sustainable development are interdependent and mutually reinforcing, and that economic partnership can play an important role in promoting sustainable development’.³⁵⁹ The preamble of RCEP also discusses the need to take

account of the different levels of development among the Parties, the need for appropriate forms of flexibility, including provision for special and differential treatment, especially for Cambodia, Lao PDR, Myanmar, and Viet Nam as appropriate, and additional flexibility for Least Developed Country Parties.³⁶⁰

The preamble of RCEP also seeks to consider:

the need to facilitate the increasing participation of Least Developed Country Parties in this Agreement so that they can more effectively implement their obligations under this Agreement and take advantage of the benefits from this Agreement, including expansion of their trade and investment opportunities and participation in regional and global supply chains.³⁶¹

However, in spite of this aspirational language in the preamble, there is little substantive in RCEP, which would boost the sustainable development goals. It is notable, in the context of intellectual property, that developed countries sought to limit and restrict text on sustainable development in the negotiation of RCEP.

In its statement of Principles, Article 11.4 (1) of RCEP provides:

A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance to its socio-economic and technological development, provided that such measures are consistent with this Chapter.³⁶²

Draft Article 12 of RCEP dealt with the question of whether there should be special and differential treatment – particularly for least developed countries. The leaked text provides an indication of the bargaining positions of various nations and groups.³⁶³ ASEAN Nations, India, New Zealand and China supported a section on special and differential treatment, transitional periods, and transitional arrangements. Australia instead argued for language on additional flexibilities for least developed countries. Japan opposed the text on special and differential treatment, transitional periods, and transitional arrangements. Japan instead proposed some different exemptions in respect of least developed countries recognized by the United Nations.

There has been a concern and a complaint that RCEP will be disadvantageous for developing countries and least developed countries – particularly when it comes to intellectual property.³⁶⁴

There is a need to ensure that international intellectual property promotes global justice.³⁶⁵ Anupam Chander, and Madhavi Sunder are critical that RCEP fails to address developmental issues – such as access to education and access to essential medicines.³⁶⁶ They contended that ‘the RCEP should create a new model of intellectual property agreement, devoted not to promoting intellectual property first and foremost and for its own sake, but to promoting health, education, and innovation’.³⁶⁷ There has been concern that the RCEP fails to embed the new United Nations Sustainable Development Goals into the agreement.³⁶⁸

Nobel Laureate Joseph Stiglitz and his colleagues have called for a reformation of intellectual property law, policy, and practice in line with the United Nations Sustainable Development Goals.³⁶⁹ Margaret Chon has highlighted the need for public-private intellectual property partnerships to accelerate the United Nations Sustainable Development Goals.³⁷⁰ Sara Bannerman has argued that there is a need to move beyond technocratic understandings of intellectual property and development, and put forward a substantive agenda for intellectual property law reform in light of the United Nations Sustainable Development Goals.³⁷¹ Martin Skladany has also argued that the design of intellectual property regimes should vary between countries, following an arc across the development spectrum.³⁷² A recent Elgar companion has provided a host of blueprints for law reform in respect of intellectual property and sustainable development.³⁷³

Showing a lack of imagination, RCEP does little to reform intellectual property in line with the sustainable development goals. More generally, RCEP fails to integrate the United Nations Sustainable Development Goals into its framework. The European Union has highlighted how to better integrate environmental agreements, climate discussions, and labour conventions into trade agreements.³⁷⁴

VII. Conclusion

This article has considered the RCEP, particularly it pertains to intellectual property and related rights in the Asia-Pacific. It has been particularly concerned with the intersection of intellectual property with trade and sustainable development.

During the negotiations of the agreement, there were various projections and scenarios as to the nature of the Intellectual Property Chapter in RCEP (particularly in terms of Peter Yu's analysis). In the end, the RCEP did not avoid intellectual property altogether (Scenario 1), as there was agreed-upon text on the topic of intellectual property. However, the RCEP chapter on intellectual property was not a TPP model, with TRIPS++ standards, as advocated by some of the negotiating countries, such as Singapore, Japan, Australia and New Zealand (Scenario 2). Perhaps, the Intellectual Property Chapter in RCEP might be described as a TRIPS-lite model (Scenario 3), as does have some TRIPS+ text. However, by and large, the agreement adopts a TRIPS model. While the RCEP might not have reached high standards of intellectual property protection at present, it could well ratchet up the levels of protection and enforcement in the future. Much will also depend upon national implementation of the agreement.

The Intellectual Property Chapter in RCEP is wide-ranging, covering the full gamut of intellectual property regimes. As discussed in this article, there are extensive provisions on general regimes, such as copyright law, designs law, trade mark law, patent law, and trade secrets. There also some basic provisions on sui generis emerging fields of intellectual property, such as plant breeders’ rights, geographical indications, access to genetic resources, and Indigenous intellectual property.

The Intellectual Property Chapter in RCEP certainly does not follow a model, which promotes the Sustainable Development Goals. Perhaps one of the reasons why India declined to join RCEP was that the agreement lacked sufficient intellectual property flexibilities to deal with global challenges such as education and literacy, access to essential medicines, and climate action. India has certainly elsewhere been a champion of a Sustainable Development Agenda in the realm of intellectual property, and a co-sponsor of a TRIPS Waiver. RCEP is certainly deficient in this area. Vitor Henrique Pinto Ido of the South Centre has questioned whether RCEP retains sufficient policy space for intellectual property flexibilities.³⁷⁵ He has contended that ‘RCEP could have forged a more resourceful framework in … fields conducive to developmental goals’.³⁷⁶

There has been some discussion as to how the intellectual property regime may interact with other parts of RCEP. The electronic commerce chapter may also impact upon consumer rights, privacy, and data protection. There was initially fear that RCEP would contain an investor-state dispute settlement clause, and intellectual property owners would be able to bring investor actions, where their intellectual property rights had been adversely affected by government regulation. However, in the end, the investment chapter was somewhat more modest – lacking an investor-state dispute settlement system. There have also been some larger human rights concerns as to the inclusion of members states in RCEP, with poor human rights records.³⁷⁷ RCEP seems to represent a regression away from the development of progressive fair trade agreements. RCEP does not contain a comprehensive chapter on labour rights. Moreover, there is a failure to contemplate the intersection between trade and human rights in the agreement. RCEP does not have a proper chapter on the environment or the protection of biodiversity or climate change. RCEP does not adequately consider the inter-relationship between trade and public health – which is problematic given that the region of the Asia-Pacific has been affected by the epidemic of COVID-19. RCEP does not seem to have involved substantive consultations with First Nations – and does little to protect Indigenous rights.

As a regional model, the ASEAN-based RCEP is also going to have to contend for influence with other regional initiatives affecting the Asia-Pacific – such as the TPP,³⁷⁸ the Belt Road Initiative of China,³⁷⁹ and the emerging Indo-Pacific Economic Framework for Prosperity,³⁸⁰ amongst others. This proliferation of regional agreements is going to generate possible tensions and conflicts between the various competing frameworks for the Asia-Pacific.³⁸¹ In the context, India will no doubt be courted by various regional groupings. In particular, in the future, India will be once again invited to consider joining RCEP.³⁸² India will have to contemplate whether the Intellectual Property Chapter and the other parts of RCEP are well aligned with its national interests. India may well be of the view that its national interest is that it will not be assimilated into another structure.

Acknowledgements

This paper is based on an initial presentation on the Regional Comprehensive Economic Partnership at the QUT Conference, ‘Intellectual Property and Trade in the Pacific Century’, on the 22 June 2017, and a subsequent submission to the Joint Standing Committee on Treaties on the Regional Comprehensive Economic Partnership in 2021. The author is also grateful for the helpful feedback of the anonymous peer reviewers.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Regional Comprehensive Economic Partnership [2022] ATS 1 (RCEP).

2 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994). See John Revesz, ‘Trade-Related Aspects of Intellectual Property Rights’, (Productivity Commission, 1999), <https://www.pc.gov.au/research/supporting/intellectual-property/trips.pdf>.

3 Comprehensive and Progressive Agreement for Trans-Pacific Partnership [2018] ATS 23.

4 Peter Martin, ‘And You Thought the TPP was Secret. The RCEP is even Worse’ (The Sydney Morning Herald, 5 November 2016), <http://www.smh.com.au/comment/and-you-thought-the-TPP-was-secret-the-regional-comprehensive-economic-partnership-is-even-worse-20161104-gsiaaw.html> (all Internet references accessed 15 April 2024).

5 Knowledge Ecology International, ‘RCEP: Regional Comprehensive Economic Partnership’, <http://keionline.org/RCEP>.

6 Ibid.

7 Jeremy Malcolm, ‘RCEP: The Other Closed-Door Agreement to Compromise Users’ Rights’, (Electronic Frontier Foundation, 20 April 2016), <https://www.eff.org/deeplinks/2016/04/RCEP-other-closed-door-agreement-compromise-users-rights>.

8 Peter Yu, ‘The RCEP and Intellectual Property Norm-Setting in the Asia-Pacific’, Intellectual Property Rights and Mega-Regional Trade Agreements, (SSRN, April 2017), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2810579> See also United States Trade Representative, Transatlantic Trade and Investment Partnership (TTIP), <https://ustr.gov/ttip>.

9 Ibid.

10 Peter Yu, ‘The RCEP and Intellectual Property Norm-Setting in the Asia Pacific’ (2017) 50 Vanderbilt Journal of Transnational Law 673, 720.

11 Ibid., 740.

12 Ibid.

13 Ibid.

14 Peter Yu, ‘The RCEP Negotiations and Asian Intellectual Property Norm Setters’ in Liu Kung-Chung and Julien Chaisse (ed.), The Future of Asian Trade Deals and IP (Hart Publishing, 2019), 85.

15 Julien Chaisse and Pasha Hsieh, ‘Rethinking Asia-Pacific Regionalism and New Economic Agreements’ (2023) 31(2) Asia Pacific Law Review 451.

16 Chien-Huei Wu, ‘ASEAN at the Crossroads: Trap and Track Between CPTPP and RCEP’ (2020) 23 Journal of International Economic Law 97.

17 Shiro Armstrong and Peter Drysdale, ‘The Economic Cooperation Potential of East Asia's RCEP Agreement’ (2022) 26(1) East Asian Economic Review 3.

18 Xu Qian and Yan Zhang, ‘Science, Technology, and Innovation: The Next Frontier in Asia-Pacific's Legal Framework’ (2024) 32(1) Asia Pacific Law Review 239.

19 Felicity Deane et al., ‘Trade in the Digital Age: Agreements to Mitigate Fragmentation.’ (2024) 14(1) Asian Journal of International Law 154.

20 Lin Lifei, ‘Deciphering RCEP: A Deep Dive into Financial Services Treaty Language in the Asia-Pacific’ (2024) 32(1) Asia Pacific Law Review 213.

21 Michelle Limenta, ‘Shaping Trade in Goods Relevant to Renewable Energy Generation: the RCEP's Potential and Limitation’ (2023) 31(2) Asia Pacific Law Review 469.

22 Julien Chaisse, Manfred Elsig, Sufian Jusoh, and Andrew Lugg, ‘Drafting Investment Law: Patterns of Influence in the Regional Comprehensive Economic Partnership (RCEP)’, (2022) 25(1) Journal of International Economic Law 110.

23 Knowledge Ecology International, ‘RCEP: Regional Comprehensive Economic Partnership’, <http://keionline.org/RCEP>.

24 Ibid.

25 Article 11.1 of the RCEP.

26 Article 11.1 (1) of the RCEP.

27 Article 11.1 (2) of the RCEP.

28 Article 11.2 of the RCEP.

29 Article 11.3 of the RCEP.

30 Article 11.4 (1) of the RCEP.

31 Article 11.4 (2) of the RCEP.

32 Article 11.4 (3) of the RCEP.

33 Vitor Henrique Pinto Ido, ‘TRIPS Flexibilities and TRIPS-plus Provisions in the RCEP Chapter on Intellectual Property: How Much Policy Space is Retained?’, (2021) Research Paper 131, The South Centre, 25.

34 Article 11.9 of the RCEP.

35 Yu (n 8).

36 WIPO Copyright Treaty 1996 and the WIPO Performances and Phonograms Treaty 1996. See Gareme Dinwoodie, ‘The WIPO Copyright Treaty: A Transition to the Future of The WIPO Copyright Treaty: A Transition to the Future of International Copyright Lawmaking International Copyright Lawmaking’ (2007) 57(4) Case Western Reserve Law Review 751.

37 Rosalind Mathieson, ‘Asia Trade Talks Chief Warns against Turning Pact into New TPP’, (Bloomberg, 22 March 2017), <https://www.bloomberg.com/politics/articles/2017-03-22/asia-trade-talks-chief-warns-against-turning-pact-into-new-tpp>.

38 María Vásquez Callo-Müller, and Pratyush Nath Upreti, ‘RCEP IP Chapter: Another TRIPS-Plus Agreement?’ (2021) 70(7) GRUR International 667.

39 Ibid.

40 Australian Government, ‘Regulatory Impact Statement on the Regional Comprehensive Economic Partnership’, (Australian Government, 2021), <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/RCEP/Treaty_being_considered>.

41 Ibid.

42 Ministry of Trade and Industry, Understanding the RCEP Intellectual Property Chapter: Benefits for Business, Government of Singapore, 2023, <https://www.mti.gov.sg/Trade/Free-Trade-Agreements/RCEP>.

43 Ibid.

44 Ibid.

45 Asian Trade Centre, ‘Fostering Innovation and Growth in Asia: IP, Copyright and Digital Trade’, Working Paper, RCEP Perth Round, April 2016, <https://static1.squarespace.com/static/5393d501e4b0643446abd228/t/5752a6c2c2ea515ccf6d8f76/1465034436088/RCEP+IP+Working+Paper.pdf>.

46 Ibid.

47 Ibid.

48 Australian Law Reform Commission. Copyright and the Digital Economy (ALRC Report 122), 13 February 2014, 41–56, <http://www.alrc.gov.au/publications/copyright-report-122>.

49 Ian Harper, Peter Anderson, Sue McCluskey and Michael O’Bryan, Competition Policy Review: Final Report, March 2015, 41, <http://competitionpolicyreview.gov.au/files/2015/03/Competition-policy-review-report_online.pdf>.

50 Productivity Commission, Intellectual Property Arrangements, Report No. 78), 2016, 54, <http://www.pc.gov.au/inquiries/completed/intellectual-property/report>.

51 Ibid., 54.

52 Martin (n 4).

53 Knowledge Ecology International, ‘RCEP: Regional Comprehensive Economic Partnership’, <http://keionline.org/RCEP>.

54 Ibid.

55 Malcolm (n 7).

56 Yu (n 8).

57 Ibid.

58 Statement of Public Interest Principles for Copyright Protection under the Regional Comprehensive Economic Partnership (RCEP), Law and Technology Centre, the University of Hong Kong, <https://www.eff.org/files/2017/02/23/rcep_statement_for_the_public_interest_final.pdf> and Haochen Sun, ‘Statement of Public Interest Principles for Copyright Protection under the Regional Comprehensive Economic Partnership (RCEP)’ (2017) 48(3) IIC – International Review of Intellectual Property and Competition Law 334.

59 Ibid.

60 Ibid.

61 Ibid.

62 Ibid.

63 Ibid.

64 IP Watch, ‘Hundreds of Civil Society Groups Urge RCEP Negotiators to Reject Imported TPP Clauses’, (IP Watch, 30 November 2016), <https://www.ip-watch.org/2016/11/30/hundreds-civil-society-groups-urge-rcep-negotiators-reject-imported-tpp-clauses/> and <http://www.bilaterals.org/?civil-society-open-letter-to>.

65 Ibid.

66 Ibid.

67 AFTINET, ‘Is the RCEP the TPP by another Name?’, (AFTINET, 19 April 2017), <http://aftinet.org.au/cms/1612-rcep-tpp-different-name>.

68 Ibid.

69 Knowledge Ecology International, ‘WTO TRIPS Council: Brazil, China, Fiji, India, and South Africa Table Agenda Item On IP and the Public Interest’, (Knowledge Ecology International, 6 June 2017), <http://keionline.org/node/2800>.

70 Ibid,

71 Ibid.

72 Ibid.

73 Productivity Commission, Intellectual Property Arrangements (Inquiry Report No. 78), 23 September 2016, <http://www.pc.gov.au/inquiries/completed/intellectual-property/report>.

74 Ibid., 527.

75 Ibid., 527.

76 Ibid., 527.

77 Ibid., 527.

78 Ibid., 527.

79 Ibid., 527.

80 Ibid., 527.

81 Ibid., 527.

82 Ibid., 527.

83 Ibid., 550.

84 Ibid., 550.

85 Ibid., 550.

86 Article 11.10 of the RCEP.

87 Article 11.10 (1) of the RCEP.

88 Article 11.10 (2) of the RCEP.

89 Article 11.10 (3) of the RCEP.

90 Malcolm (n 7).

91 Productivity Commission, Intellectual Property Arrangements, Inquiry Report No. 78, 23 September 2016, <http://www.pc.gov.au/inquiries/completed/intellectual-property/report>.

92 Australia-United States Free Trade Agreement (Washington, 18 May 2004) [2005] ATS 1; and Shiro Armstrong, ‘The Economic Impact of the Australia-United States Free Trade Agreement’, (Australia-Japan Research Centre, Crawford School of Public Policy, Australian National University, 2015), <https://crawford.anu.edu.au/pdf/ajrc/wpapers/2015/201501.pdf>.

93 Knowledge Ecology International, ‘RCEP: Regional Comprehensive Economic Partnership’, <http://keionline.org/RCEP>.

94 Ibid.

95 Productivity Commission, Intellectual Property Arrangements, Inquiry Report No. 78, 2016, <https://www.pc.gov.au/inquiries/completed/intellectual-property#report>.

96 Karen Chester, ‘What is Fair?’, Australian Digital Alliance Forum, Canberra, 24 February 2017, <http://www.pc.gov.au/news-media/speeches/fair>.

97 Ibid.

98 Peter Martin, ‘Copyright Agency Diverts Funds Meant for Authors to $15m Fighting Fund’, (The Sydney Morning Herald, 24 April 2017), <http://www.smh.com.au/federal-politics/political-news/copyright-agency-diverts-funds-meant-for-authors-to-15m-fighting-fund-20170420-gvol0w.html>.

99 Article 11.13 of the RCEP.

100 Article 11.13 (1) of the RCEP.

101 Article 11.13 (1) of the RCEP.

102 Article 11.13 (2) of the RCEP.

103 Copyright Law Review Committee, Simplification of the Copyright Act 1968. Part 1: Exceptions to the Exclusive Rights of Copyright Owners, 1998.

104 House Standing Committee on Infrastructure and Communications, At What Cost? IT Pricing and the Australia Tax, Australian Parliament, 2013, <https://www.aph.gov.au/parliamentary_business/committees/House_of_Representatives_Committees?url=ic/itpricing/report.htm>.

105 Australian Law Reform Commission. Copyright and the Digital Economy (ALRC Report 122), 13 February 2014, <http://www.alrc.gov.au/publications/copyright-report-122>.

106 Ian Harper, Peter Anderson, Sue McCluskey and Michael O’Bryan, Competition Policy Review: Final Report, Australian Government, March 2015, <http://competitionpolicyreview.gov.au/files/2015/03/Competition-policy-review-report_online.pdf>.

107 Productivity Commission, Intellectual Property Arrangements, Inquiry Report No. 78, 2016, <http://www.pc.gov.au/inquiries/completed/intellectual-property/report>.

108 ABC News, ‘Eminem in Court Battle against New Zealand Political Party over Lose Yourself Copyright’, ABC News, 1 May 2017, <http://www.abc.net.au/news/2017-05-01/eminem-in-court-battle-with-nz-political-party/8486746>; Eight Mile Style, LLC v New Zealand National Party [2017] NZHC 2603; and New Zealand National Party v Eight Mile Style, LLC [2018] NZCA 596.

109 Asian Trade Centre (n 45).

110 Ibid.

111 Ibid.

112 Ibid.

113 University of Oxford v Rameshwari Photocopy Service (2016) 16 DRJ (SN) 678.

114 Malcolm (n 7).

115 Article 11.18 of the RCEP.

116 Article 11.18 (1) of the RCEP.

117 Article 11.18 (2) of the RCEP.

118 Article 11.18 (3) of the RCEP.

119 Article 11.18 (4) of the RCEP.

120 Martin Skladany, Copyright's Arc (Cambridge University Press, 2020).

121 Tanya Aplin and Lionel Bently, Global Mandatory Fair Use: The Nature and Scope of the Right to Quote Copyright Works (Cambridge University Press, 2020).

122 Ruth Okediji, ‘The Limits of International Copyright Exceptions for Developing Countries’ (2018) 21(3) Vanderbilt Journal of Entertainment & Technology Law 689.

123 Ibid., 736.

124 Matthew Rimmer, ‘Back to the Future: The Digital Millennium Copyright Act and the Trans-Pacific Partnership’ (2017) 6(3) Laws <http://www.mdpi.com/2075-471X/6/3/11>.

125 Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58.

126 Australia-United States Free Trade Agreement (Washington, 18 May 2004) [2005] ATS 1.

127 Malcolm (n 7).

128 Article 11.14 of the RCEP.

129 Article 11.15 of the RCEP.

130 Article 11.16 of the RCEP.

131 Article 11.16 (1) of the RCEP.

132 Article 11.16 (2) of the RCEP.

133 Tarleton Gillespie, Wired Shut: Copyright and the Shape of Digital Culture (The MIT Press, 2007); Cory Doctorow, Information Doesn't Want to Be Free: Laws for the Internet Age (McSweeney's, 2014); and Glyn Moody, Walled Culture: How Big Content Uses Technology and the Law to Lock Down Culture and Keep Creators Poor (BTF Press, 2022).

134 The WIPO Treaty on the Protection of Broadcasting Organisations 2008 <http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109212>.

135 Malcolm (n 7).

136 Ibid.

137 Ibid.

138 Article 11.11 of the RCEP.

139 Article 11.11 of the RCEP.

140 Article 11.12 of the RCEP.

141 Article 11.12 (1) of the RCEP.

142 Article 11.12 (2) of the RCEP.

143 Graeme Dinwoodie (ed.), Secondary Liability of Internet Service Providers (Springer, 2017); Tarleton Gillespie, Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions That Shape Social Media (Yale University Press, 2018); and Stefan Kulk, Internet Intermediaries and Copyright Law: EU and US Perspectives (Kluwer Law International, 2019).

144 Asian Trade Centre (n 45).

145 Ibid.

146 Ibid.

147 Yu (n 8).

148 Article 11.75 of the RCEP.

149 Article 11.75 of the RCEP.

150 Article 11.17 of the RCEP.

151 Yu (n 8).

152 Ibid.

153 Ibid.

154 Ibid.

155 Ibid.

156 Section J of Chapter 11 of the RCEP.

157 Article 11.58 of the RCEP.

158 Article 11.59 of the RCEP.

159 Article 11.60 of the RCEP.

160 Article 11.61 of the RCEP.

161 Article 11.62 of the RCEP.

162 Article 11.63 of the RCEP.

163 Article 11.64 of the RCEP.

164 Anti-Counterfeiting Trade Agreement (opened for signature 31 March 2011) (not yet in force) [2011] ATNIF 22; and Pedro Roffe and Xavier Seuba (ed.), The ACTA and The Plurilateral Enforcement Agenda: Genesis and Aftermath (Cambridge University Press, 2014).

165 Article 11.65 of the RCEP.

166 Article 11.66 of the RCEP.

167 Article 11.67 of the RCEP.

168 Article 11.68 of the RCEP.

169 Article 11.69 of the RCEP.

170 Article 11.70 of the RCEP.

171 Article 11.71 of the RCEP.

172 Article 11.72 of the RCEP.

173 Article 11.73 of the RCEP.

174 Article 11.74 (1) of the RCEP.

175 Article 11.74 (2) of the RCEP.

176 Article 11.74 (3) of the RCEP.

177 Article 11.74 (4) of the RCEP.

178 Lurong Chen and Fukunari Kimura (ed.), Intellectual Property Rights and ASEAN Development in the Digital Age (Routledge, 2021).

179 Kung Chung Liu and Wenting Cheng, ‘IPR Protection for Asian Development: Opportunities and Challenges from Global Value Chains and the Digital Economy – Singapore’, in Lurong Chen and Fukunari Kimura (ed.), Intellectual Property Rights and ASEAN Development in the Digital Age (Routledge, 2021), 29.

180 Keon-Hyung Ahn, ‘Korea's Intellectual Property Strategy and its Implications for ASEAN’ in Lurong Chen and Fukunari Kimura (eds), Intellectual Property Rights and ASEAN Development in the Digital Age (Routledge, 2021), 171.

181 Poppy Winanti, ‘The Challenges of Digital Economy and Copyright Protection in Indonesia’ in Lurong Chen and Fukunari Kimura (eds), Intellectual Property Rights and ASEAN Development in the Digital Age (Routledge, 2021), 51.

182 Nurhidayah Binti Abdullah and Hanira Binti Hanafi, ‘Copyright Protection in Malaysia: Development and Challenges of the Digital Economy’ in Lurong Chen and Fukunari Kimura (eds), Intellectual Property Rights and ASEAN Development in the Digital Age (Routledge, 2021), 97.

183 Christopher Cruz et al., ‘Assessing IPR Protection in the Semiconductor and Electronics Industry in the Philippines’ in Lurong Chen and Fukunari Kimura (eds), Intellectual Property Rights and ASEAN Development in the Digital Age (Routledge, 2021), 114.

184 Duong Anh Nguyen, Thanh Tri Vo, and Hang Thu Dinh, ‘Enforcing IPR to Leverage Viet Nam's Benefits from the GVCs and the Digital Economy’ in Lurong Chen and Fukunari Kimura (eds), Intellectual Property Rights and ASEAN Development in the Digital Age (Routledge, 2021), 144.

185 Tao Hong, Sijia Tao, Sihan Lu and Tao Ma, ‘Promoting the Role of RCEP in Boosting the High-Quality Development of China's Digital Economy’ (2022) 17(3) Frontiers of Economics in China 456.

186 Seemantani Sharma, ‘RCEP and Trans-Pacific Intellectual Property Norms: Implications for India’ (2019) 22(5-6) The Journal of World Intellectual Property 313.

187 Matthew Rimmer, The Trans-Pacific Partnership: Intellectual Property and Trade in the Pacific Rim (Edward Elgar Publishing, 2020), 180.

188 International Trademark Association, ‘INTA Comments and Recommendations Regarding the Negotiation of the Regional Comprehensive Economic Partnership (RCEP)’, <https://www.dfat.gov.au/sites/default/files/international-trademark-association-submission-to-rcep.pdf>.

189 Ibid.

190 Article 11.19 of the RCEP.

191 Article 11.20 of the RCEP.

192 Article 11.21 of the RCEP.

193 Article 11.22 of the RCEP.

194 Article 11.23 of the RCEP.

195 Article 11.24 of the RCEP.

196 Article 11.25 of the RCEP.

197 Article 11.26 of the RCEP.

198 Article 11.27 of the RCEP.

199 Article 11.28 of the RCEP.

200 Article 11.74 of the RCEP.

201 Alvin Hoi-Chun, ‘The Challenges of a New Trademark Law in an ASEAN Developing Country: Designing Strategies to Protect American Brand Names and Trademarks in Myanmar’ (2023) 103(2) Journal of the Patent and Trademark Office Society 143.

202 Tyrone Berger, Australian Design Law and Practice (Thomson Reuters, 2022).

203 Productivity Commission, Intellectual Property Arrangements, Melbourne: Productivity Commission, Report No. 78, 2016, 331 <http://www.pc.gov.au/inquiries/completed/intellectual-property/report> and IP Australia, ‘Designs Initiatives’, <https://www.ipaustralia.gov.au/about-us/our-agency/our-research/design-initiatives>.

204 Article 11.49 of the RCEP.

205 Article 11.49 (4) of the RCEP.

206 Productivity Commission, Right to Repair: Report No. 97, Melbourne: Productivity Commission, 2021, <https://www.pc.gov.au/inquiries/completed/repair/report>.

207 Matthew Rimmer, ‘Shane Rattenbury, The Productivity Commission, and The Right To Repair: Intellectual Property, Consumer Rights, and Sustainable Development in Australia’ (2023) 37(3) Berkeley Technology Law Journal 989; and Kayleen Manwaring, ‘“Slowing Down the Loop”: Smart Devices and the Right to Repair’, (2024) International Review of Law, Computers & Technology 1 <https://doi.org/10.1080/13600869.2024.2324535>.

208 Marama Davidson, ‘Opportunity to Build a More Sustainable Economy’, (New Zealand Greens, 11 April 2024), <https://www.greens.org.nz/opportunity_to_build_a_more_sustainable_economy>.

209 Article 11.54 of the RCEP.

210 Article 11.55 of the RCEP.

211 Article 11.55 of the RCEP.

212 Simon Chapman and Becky Freeman, Removing the Emperor's Clothes: Australia and Tobacco Plain Packaging (Sydney University Press, 2014); and Matthew Rimmer (ed.), The Plain Packaging of Tobacco Products (2017) 17(2) QUT Law Review 1.

213 JT International SA v Commonwealth of Australia [2012] HCA 43, High Court of Australia, Order August 15, 2012, Reasons October 5, 2012.

214 Philip Morris Asia Ltd v Australia, PCA Case No. 2012-12, Award on Jurisdiction and Admissibility (17 December 2015). <http://www.pcacases.com/web/view/5> Ruling <http://www.pcacases.com/web/sendAttach/1711> and Jarrod Hepburn, and Luke Eric Peterson, ‘Australia Prevails in Arbitration with Philip Morris Over Tobacco Plain Packaging Dispute’, Investment Arbitration Reporter, 17 December 2015, <https://www.iareporter.com/articles/breaking-australia-prevails-in-arbitration-with-philip-morris-over-tobacco-plain-packaging-dispute/>.

215 Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS435/R, WT/DS441/R, WT/DS458/R, WT/DS467/R, (28 June 2018); and Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS435/AB/R and WT/DS441/AB/R, (9 June 2020).

216 New Zealand Ministry of Health, ‘Tobacco Standardised Packaging’ <https://www.health.govt.nz/our-work/regulation-health-and-disability-system/smoked-tobacco-products/information-manufacturers-and-importers-smoked-tobacco-products/tobacco-standardised-packaging> and Smoke-Free Environments Regulations 2017 (NZ).

217 Singapore Ministry of Health, ‘Standardised Packaging and Enlarged Graphic Health Warnings for Tobacco Products from 1 July 2020’, Press Release, Government of Singapore, 1 July 2019, <https://www.moh.gov.sg/news-highlights/details/standardised-packaging-enlarged-graphic-health-warnings-for-tobacco-products-from-1-july-2020/>.

218 World Health Organization, ‘Thailand Becomes First In Asia To Introduce Tobacco Plain Packaging; WHO Commends Efforts’, Press Release, World Health Organization, 28 April 2019, <https://www.who.int/thailand/news/feature-stories/detail/thailand-becomes-first-in-asia-to-introduce-tobacco-plain-packaging-who-commends-efforts>.

219 CodeBlue, ‘MOH's Big Plans For Tobacco Control: Plain Packaging For Cigarettes, Standard Packaging For Vape And Restricted Flavours’, (CodeBlue, 14 March 2024), <https://codeblue.galencentre.org/2024/03/14/mohs-big-plans-for-tobacco-control-plain-packaging-for-cigarettes-standard-packaging-for-vape-and-restricted-flavours/>.

220 SEATCA, ‘Myanmar Government Delays Implementation of Standardised Tobacco Packaging’, (Eco-Business, 28 April 2022), <https://www.eco-business.com/press-releases/myanmar-government-delays-implementation-of-standardised-tobacco-packaging/>.

221 WHO Framework Convention on Tobacco Control 2003 (opened for signature 21 May 2003, entered into force 27 February 2005) 2302 UNTS 166.

222 Hon. Mark Butler, ‘Consultation Opens on Next Generation Tobacco Control Legislation: On World No Tobacco Day the Australian Government is releasing the draft of the Proposed Tobacco Control Legislation’, Department of Health and Aged Care, Australian Government, 31 May 2023, <https://www.health.gov.au/ministers/the-hon-mark-butler-mp/media/consultation-opens-on-next-generation-tobacco-control-legislation> and Matthew Rimmer, ‘The Tobacco Endgame Avengers: Strategies for a Smokefree Future in Australia’ in Belinda Bennett and Ian Freckelton (eds), Australian Public Health Law (Federation Press, 2023), 361.

223 Public Health (Tobacco and Other Products) Act 2023 (Cth) and Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Act 2023 (Cth).

224 Hon. Mark Butler MP, ‘Laws Begin a New Era of Tobacco Control’, Press Release, Department of Health and Aged Care, Australian Government, 7 December 2023, <https://www.health.gov.au/ministers/the-hon-mark-butler-mp/media/laws-begin-a-new-era-of-tobacco-control>.

225 Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024 (Cth).

226 Hon. Mark Butler MP, ‘Next Steps of Vaping Reform and Launch of Influencer-led Youth Vaping Campaign’, Press Release, Department of Health and Aged Care, Australian Government, 28 February 2024, <https://www.health.gov.au/ministers/the-hon-mark-butler-mp/media/next-steps-of-vaping-reform-and-launch-of-influencer-led-youth-vaping-campaign>.

227 Tess McClure, ‘New Zealand Passes World-First Tobacco Law to Ban Smoking for Next Generation’, (The Guardian, 13 December 2022), <https://www.theguardian.com/world/2022/dec/13/new-zealand-passes-world-first-tobacco-law-to-ban-smoking-by-2025>.

228 ABC News, ‘New Zealand's Smokefree Legislation to Ban People Born After 2010 From Ever Buying Tobacco’, (ABC News, 9 December 2021), <https://www.abc.net.au/news/2021-12-09/new-zealand-smokefree-2025-plan-ban-tobacco-sales/100686806>.

229 Ibid.

230 Shweta Sharma, ‘New Zealand repeals World-first Smoking Ban passed by Jacinda Ardern’, (Yahoo! News, 27 February 2024), <https://au.news.yahoo.com/zealand-repeals-world-first-smoking-065626606.html>.

231 Janet Hoek, Richard Edwards and Andrew Waa, ‘Tobacco Industry Interference: Is The New Government Meeting Its International Obligations?’, (Public Health Communication Centre Aotearoa, 1 February 2024), <https://www.phcc.org.nz/briefing/tobacco-industry-interference-new-government-meeting-its-international-obligations>.

232 Rimmer (n 187), 244.

233 William van Caenegem, ‘Geographical Indications and Trademarks in the Asia-Pacific Region’, Intellectual Property and Trade in the Pacific Century’, QUT IP and Innovation Law Research Symposium, 22 June 2017, <https://www.youtube.com/watch?v=l02ZD3QmmTo>.

234 Delphine Marie-Vivien, ‘Protection of Geographical Indications in ASEAN countries: Convergences and challenges to awakening sleeping Geographical Indications’ (2020) 23(3-4) The Journal of World Intellectual Property 328.

235 ASEAN, ‘Guidelines on Protection of Geographical Indications in ASEAN Member States’, <https://www.aseanip.org/docs/default-source/asean-ip-publications/asean-gi-guidelines.pdf?sfvrsn=af962a7a_1>.

236 Ibid.

237 ARISE+, ‘Promoting Intellectual Property Rights in the ASEAN Region’, 2019, <https://internationalipcooperation.eu/sites/default/files/arise-docs/2019/ASEAN_GI-Booklet.pdf>.

238 Article 11.29 of the RCEP.

239 Article 11.29 of the RCEP.

240 Article 11.30 of the RCEP.

241 Article 11.31 of the RCEP.

242 Article 11.32 of the RCEP.

243 Article 11.33 of the RCEP.

244 Article 11.34 of the RCEP.

245 Article 11.35 of the RCEP.

246 Pintor Ido (n 33)., 17.

247 Foreign Affairs, Defence and Trade Committee, International Treaty Examination of the Regional Comprehensive Economic Partnership, New Zealand Parliament, 2021, <https://www.parliament.nz/en/pb/sc/reports/document/SCR_109371/international-treaty-examination-of-the-regional-comprehensive>.

248 Ibid.

249 EU-New Zealand Free Trade Agreement 2023 <https://policy.trade.ec.europa.eu/eu-trade-relationships-country-and-region/countries-and-regions/new-zealand/eu-new-zealand-agreement/text-agreement_en>.

250 Catie McLeod, Kimberley Caines, and Andrew Brown, ‘Australia prepared to walk away from EU FTA over dispute on Geographical Indicators for Agricultural Products’, (Countryman, 13 June 2023), <https://www.countryman.com.au/countryman/news/australia-prepared-to-walk-away-from-eu-fta-over-dispute-on-geographical-indicators-for-agricultural-products--c-10962591>.

251 Office of the Controller General of Patents, Designs & Trademarks, ‘Geographical Indications of Goods’, Government of India, 2023, <https://ipindia.gov.in/gi.htm>.

252 World Intellectual Property Organization, ‘Thailand Leads the Way to GI Registration in ASEAN Countries’, IP Advantage, 21 February 2023, <https://www.wipo.int/web/ip-advantage/w/stories/thailand-leads-the-way-to-gi-registration-in-asean-countries>.

253 Article 11.57 of the RCEP.

254 Matthew Rimmer, ‘Virtual Countries: Internet Domain Names and Geographical Terms’ (2003) 106(1) Media International Australia 123.

255 Natalie GS Corthesy, ‘Trade Marks, Country Names and Misappropriation of National Identity’ (2017) 12(4) Journal of Intellectual Property Law & Practice 297. See also Natalie GS Corthesy, International Intellectual Property Protection of Country Names: Balancing Nation Brands and Geographic Commons in a Competitive Global Marketplace (Ian Randle Publishers, 2023).

256 Article 11.36 of the RCEP.

257 Article 11.37 of the RCEP.

258 Article 11.38 of the RCEP.

259 Article 11.39 of the RCEP.

260 Article 11.40 of the RCEP.

261 S 119C of the Patents Act 1990 (Cth) – as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth). For policy debate, see Australian Law Reform Commission, Genes and Ingenuity: Gene Patenting and Human Health, 2004, <https://www.alrc.gov.au/publication/genes-and-ingenuity-gene-patenting-and-human-health-alrc-report-99/13-an-experimental-use-exemption/the-trips-agreement-and-experimental-use/> and Advisory Council on Intellectual Property, Patents and Experimental Use, 2005. For a discussion of the Australian debate, see Matthew Rimmer, ‘The Freedom to Tinker: Patent Law and Experimental Use’ (2005) 15(2) Expert Opinion on Therapeutic Patents 167.

262 Article 11.41 of the RCEP.

263 Article 11.42 of the RCEP.

264 Article 11.43 of the RCEP.

265 Article 11.44 of the RCEP.

266 Article 11.45 of the RCEP.

267 Article 11.46 of the RCEP.

268 Article 11.47 of the RCEP.

269 Markus Nolff, ‘Patent Provisions of the Regional Comprehensive Economic Partnership Agreement Soon at Our Shores?’ (2022) 102(2) Journal of the Patent and Trademark Office Society 337, 351.

270 Ibid., 351.

271 Ruth Dreifuss, and others, Report of the United Nations Secretary-General's High Level Panel on Access to Medicines: Promoting Innovation and Access to Health Technologies, September 2016, <http://static1.squarespace.com/static/562094dee4b0d00c1a3ef761/t/57d9c6ebf5e231b2f02cd3d4/1473890031320/UNSG+HLP+Report+FINAL+12+Sept+2016.pdf>.

272 Matthew Rimmer, ‘The Trans-Pacific Partnership: Intellectual Property, Public Health, and Access to Essential Medicines’ (2017) 29 Intellectual Property Journal 277; and Rimmer (n 187), 312–348.

273 Burcu Kilic, ‘Dangers for Access to Affordable Medicines in RCEP’, QUT IP and Innovation Law Research Symposium, 22 June 2017, <https://www.youtube.com/watch?v=ev7TlNMFhWk>.

274 Belinda Townsend, Deborah Gleeson, and Ruth Lopert, ‘The Regional Comprehensive Economic Partnership, Intellectual Property Protection, and Access to Medicines’ (2016) 28(8) Asia Pacific Journal of Public Health 682; and Belinda Townsend, Deborah Gleeson and Ruth Lopert, ‘Japan's Emerging Role in the Global Pharmaceutical Intellectual Property Regime: A Tale of Two Trade Agreements’, (2018) 21(1-2) The Journal of World Intellectual Property 88.

275 Article 11.4 (1) of the RCEP.

276 Article 11.8 of the RCEP.

277 Article 11.8 (1) of the RCEP.

278 Article 11.8 (1) of the RCEP.

279 Article 11.8 (2) of the RCEP.

280 Article 11.8 (3) of the RCEP.

281 Department of Foreign Affairs and Trade, ‘Joint Leaders’ Statement on the Regional Comprehensive Economic Partnership (RCEP)’, Press Release, 15 November 2020, <https://www.dfat.gov.au/trade/agreements/not-yet-in-force/rcep/news/joint-leaders-statement-regional-comprehensive-economic-partnership-rcep>.

282 Ibid.

283 Shandre Thangavelu, Shujiro Urata, and Dionisius Narjoko, ‘The Post COVID-19 and RCEP: Pandemic Recovery in East-Asia’, (Economic Research Institute for ASEAN and East Asia, 15 August 2022), <https://www.eria.org/publications/the-post-covid-19-and-rcep-pandemic-recovery-in-east-asia/>.

284 World Health Organization, ‘WHO COVID-19 Technology Access Pool (C-TAP)’, <https://www.who.int/initiatives/covid-19-technology-access-pool>.

285 Medicines Patent Pool, <https://medicinespatentpool.org/>.

286 India and South Africa, ‘Waiver from Certain Provisions of the TRIPS Agreement for the Prevention, Containment and Treatment of COVID-19’, TRIPS Council, World Trade Organization, IP/C/W/669, 2 October 2020.

287 The People's Vaccine, <https://peoplesvaccine.org/> For commentary, see Matthew Rimmer, ‘The People's Vaccine: Intellectual Property, Access to Essential Medicines, and COVID-19’ (2022) 5(1) Journal of Intellectual Property Studies 1; and Siva Thambisetty et al. ‘Addressing Vaccine Inequity During the COVID-19 Pandemic: The TRIPS Intellectual Property Waiver Proposal and Beyond’ (2022) 81(2) The Cambridge Law Journal 384.

288 Ministerial Decision on the TRIPS Agreement, World Trade Organization, WT/MIN(22)/30/WT/L/1141, adopted 17 June 2022. See Carlos Correa, ‘Lessons From a Narrow TRIPS Waiver’ (2024) 73(2) GRUR International 97.

289 Knowledge Ecology International, ‘WTO: Prospects to Adopt Proposed Decision Text on the Extension of the 17 June 2022 Ministerial Decision to COVID-19 Therapeutics and Diagnostics Appear Grim’, (Knowledge Ecology International, 13 December 2023), <https://www.keionline.org/39300> and Nirmalya Syam and Muhammad Zaheer Abbas, ‘TRIPS Waiver Decision for Equitable Access to Medical Countermeasures in the Pandemic: COVID-19 Diagnostics and Therapeutics’ (2024) South Centre, Research Paper 191, <https://www.southcentre.int/research-paper-191-25-january-2024/>.

290 World Health Organization, ‘WHO Member States Agree to Resume Negotiations Aimed at Finalizing the World's First Pandemic Agreement’, Press Release, World Health Organization, 28 March 2024, <https://www.who.int/news/item/28-03-2024-who-member-states-agree-to-resume-negotiations-aimed-at-finalizing-the-world-s-first-pandemic-agreement>.

291 Productivity Commission, Vulnerable Supply Chains, 2021, <https://www.pc.gov.au/inquiries/current/supply-chains>.

292 Jane Kelsey, ‘RCEP - A Wake Up Call To Rethink The Failed Hyperglobalisation Model’, Scoop NZ, 16 November 2020, <https://www.scoop.co.nz/stories/WO2011/S00110/rcep-a-wake-up-call-to-rethink-the-failed-hyperglobalisation-model.htm>.

293 Article 11.56 of the RCEP.

294 Article 11.56 (1) of the RCEP.

295 Article 11.56 (2) of the RCEP.

296 Rimmer (n 187), 380–411.

297 Rimmer (n 187), 349–378.

298 Rimmer (n 187), 278–311.

299 Jay Sanderson, ‘The RCEP and Plant Variety Rights: Is it in the Interest of Farmers and Food?’ QUT IP and Innovation Law Research Symposium, 22 June 2017, <https://www.youtube.com/watch?v=7mpNGUX-vBc&t=1s> See also Jay Sanderson, Plants, People and Practices: The Nature and History of the UPOV Convention (Cambridge University Press, 2017).

300 GRAIN, ‘How RCEP Affects Food and Farmers’, 19 June 2017, <https://grain.org/en/article/5741-how-rcep-affects-food-and-farmers>.

301 Christoph Antons, ‘Intellectual Property in Plant Material and Free Trade Agreements in Asia’ in Liu Kung-Chung and Julien Chaisse (eds), The Future of Asian Trade Deals and IP (Hart Publishing, 2019), 229.

302 Ibid., 243.

303 Article 11.36 (3) (b) of the RCEP.

304 Article 11.36 (3) (b) of the RCEP.

305 Article 11.36 (3) (b) of the RCEP.

306 People over Profit, ‘RCEP, a Threat to our Rights’ (Bilaterals, 17 November 2020), <https://www.bilaterals.org/?rcep-a-threat-to-our-rights-pop>.

307 Ibid.

308 S. Ali Malik, ‘SDG 2: Zero Hunger, Food and Plant-Related Intellectual Property, and Access to Plant Genetic Resources’ in Bita Amani, Caroline B. Ncube, and Matthew Rimmer (eds), The Elgar Companion to Intellectual Property and the Sustainable Development Goals (Edward Elgar Publishing, 2024), 50–73.

309 Christoph Antons, Yunita Winarto and Adlinanur Prihandiani, ‘Farmer-Plant-Breeders and the Law on Java, Indonesia’, (2020) 52(4) Critical Asian Studies 589; and Christoph Antons and Amrithnath Sreedevi Babu, ‘Plant Variety Protection and Farmers’ Rights in India and Indonesia’, in Estelle Derclaye (ed.), Research Handbook on Empirical Studies in Intellectual Property Law (Edward Elgar Publishing, 2023), 74.

310 Kamalesh Adhikari et al., ‘What Should Farmers’ Rights Look Like? The Possible Substance of a Right’, (2021) 11(2) Agronomy <https://www.mdpi.com/2073-4395/11/2/367>.

311 VK Gupta, ‘Protecting Indian Traditional Knowledge from Biopiracy’, Indian Council of Scientific and Industrial Research, 2011, <https://www.wipo.int/meetings/en/2011/wipo_tkdl_del_11/pdf/tkdl_gupta.pdf>; Vandana Shiva, Biopiracy, North Atlantic Books, 2016; and Jayanta Boruah and Farzin Naz, ‘Prevention of Biopiracy under Indian Legal Regime for Better Conservation of Biodiversity’ (2021) 1(1) Indian Law and Policy Review <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3814732>.

312 Ikechi Mgbeoji, Global Biopiracy: Patents, Plants, and Indigenous Knowledge (UBC Press, 2014).

313 Daniel F Robinson, ‘Locating Biopiracy: Geographically and Culturally Situated Knowledges’ (2010) 42(1) Environment and Planning A: Economy and Space 38; and Daniel F. Robinson, Confronting Biopiracy: Challenges, Cases and International Debates (Routledge, 2011).

314 Jean-Frédéric Morin and Corentin Bialais, Strengthening Multilateral Environmental Governance through Bilateral Trade Deals, CIGI Policy Brief No. 123, 28 February 2018, <https://www.cigionline.org/publications/strengthening-multilateral-environmental-governance-through-bilateral-trade-deals>; Sikina Jinnah and Jean-Frédéric Morin, Greening through Trade: How American Trade Policy Is Linked to Environmental Protection Abroad (MIT Press, 2020; Jean-Frédéric Morin, Amandine Orsini, and Sikina Jinnah, Global Environmental Politics: Understanding the Governance of the Earth (Oxford University Press, 2020); and Dominique Blumer, Jean-Frédéric Morin, Clara Brandi and Axel Berger, ‘Environmental Provisions in Trade Agreements: Defending Regulatory Space or Pursuing Offensive Interests?’ (2020) 29(5) Environmental Politics 866.

315 Article 17.10 of the RCEP.

316 Matthew Rimmer, ‘The Sorcerer II Expedition: Intellectual Property and Biodiscovery’ (2009) 6 Macquarie Journal of International and Comparative Law 147.

317 Foreign Affairs, Defence and Trade Committee, International Treaty Examination of the Regional Comprehensive Economic Partnership, Wellington: New Zealand Parliament, 2021, <https://www.parliament.nz/en/pb/sc/reports/document/SCR_109371/international-treaty-examination-of-the-regional-comprehensive>.

318 Ibid.

319 Ibid.

320 Ibid.

321 Ibid.

322 Ibid.

323 Matthew Rimmer, ‘Greenwashing the Trans-Pacific Partnership: Fossil Fuels, the Environment, and Climate Change’ (2016) 14(2) Santa Clara Journal of International Law 488.

324 European Union, ‘Sustainable Development in EU Trade Agreements’, <https://policy.trade.ec.europa.eu/development-and-sustainability/sustainable-development/sustainable-development-eu-trade-agreements_en>.

325 Center for Environmental Concerns, The Regional Comprehensive Economic Partnership (RCEP) and its Impacts on the Environment, 27 February 2023, <https://www.cecphils.org/read-the-regional-comprehensive-economic-partnership-rcep-and-its-impacts-on-the-environment/>.

326 United Nations Declaration on the Rights of Indigenous Peoples 2007, 61st sess, UN Doc A/61/L.67, adopted by the General Assembly Resolution 61/295 on 13 September 2007. For commentary, see Matthew Rimmer (ed), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar Publishing, 2015); Mauro Barelli, Seeking Justice in International Law: The Significance and Implications of the UN Declaration on the Rights of Indigenous Peoples (Routledge, 2016); and John Borrows, Larry Chartrand, Oonagh Fitzgerald, and Risa Schwartz (ed.) Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (Centre for International Governance Innovation, 2019).

327 The Treaty of Waitangi/ Te Tiriti o Waitangi, 6 February 1840, <https://waitangitribunal.govt.nz/treaty-of-waitangi/te-reo-maori-version/>; and Matthew Rimmer, ‘The Trans-Pacific Partnership and Sustainable Development: Access to Genetic Resources, Informed Consent, and Benefit-Sharing’ in Charles Lawson and Kamalesh Adhikari (eds), Biodiversity, Genetic Resources and Intellectual Property: Developments in Access and Benefit Sharing (Routledge, 2018), 151; and Rimmer (n 187), 486–524.

328 Article 11.53 of the RCEP.

329 Article 11.53 (1) of the RCEP.

330 Article 11.53 (2) of the RCEP.

331 Article 11.53 (3) of the RCEP.

332 Pinto Ido (n 33), 20.

333 Article 17.16 of the RCEP.

334 Article 17.16 (1) of the RCEP.

335 Article 17.16 (2) of the RCEP.

336 Article 17.16 (2) of the RCEP.

337 Rimmer (n 187), 486–524.

338 Foreign Affairs, Defence and Trade Committee, International Treaty Examination of the Regional Comprehensive Economic Partnership, New Zealand Parliament, 2021, <https://www.parliament.nz/en/pb/sc/reports/document/SCR_109371/international-treaty-examination-of-the-regional-comprehensive>.

339 Ibid.

340 Ibid.

341 Michael Duff, ‘‘A Massive Unravelling’: Fears for Māori Rights as New Zealand Government Reviews Treaty’, (The Guardian, 2 December 2023), <https://www.theguardian.com/world/2023/dec/02/fears-for-maori-rights-as-new-zealand-government-reviews-waitangi-treaty>.

342 RNZ, ‘Bill disestablishing Māori Health Authority to go through Parliament under urgency today’, (RNZ, 27 February 2024), <https://www.rnz.co.nz/news/te-manu-korihi/510271/bill-disestablishing-maori-health-authority-to-go-through-parliament-under-urgency-today>.

343 RNZ, ‘Smokefree Generation Law Scrapped by Coalition Government’, (RNZ, 28 February 2024), <https://www.rnz.co.nz/news/political/510439/smokefree-generation-law-scrapped-by-coalition-government>.

344 Jamie Tahana, ‘Māori Anger at Moves to Unravel Decades of Progress Isn't Just on the Streets. It's in the Courts’, (The Guardian, 3 February 2024), <https://www.theguardian.com/world/2024/feb/03/waitangi-day-treaty-events-new-zealand-maori-policies-unwind>.

345 Hon. Christopher Luxon MP, ‘Waitangi Speech’, New Zealand Government, 5 February 2024, <https://www.beehive.govt.nz/speech/rt-hon-christopher-luxon-waitangi-speech>.

346 Uluru Statement from the Heart, <https://ulurustatement.org/>.

347 National Indigenous Australians Agency, Referendum on an Aboriginal and Torres Strait Islander Voice, <https://www.niaa.gov.au/indigenous-affairs/referendum-aboriginal-and-torres-strait-islander-voice>.

348 Australian Department of Infrastructure, Transport, Regional Development, Communications and the Arts, Indigenous Cultural and Intellectual Property Rights, 2024, <https://www.infrastructure.gov.au/have-your-say/indigenous-cultural-and-intellectual-property-rights>.

349 Department of Foreign Affairs and Trade, ‘Inclusive Trade: Ensuring Australia's Indigenous Entrepreneurs Benefit from the Global Trading System’, Australian Government, February 2022, <https://www.dfat.gov.au/about-us/publications/trade-investment/business-envoy/business-envoy-february-2022/inclusive-trade-ensuring-australias-indigenous-entrepreneurs-benefit-global-trading-system>.

350 Miranda Risang Ayu Palar, Laina Rafianti and Helitha Novianty Muchtar, ‘Inclusive Rights to Protect Communal Intellectual Property: Indonesian Perspective on its New Government Regulation’ (2023) 9(2) Cogent Social Sciences Article No. 2274431.

351 Daniel Robinson, ‘Legal Geographies of Intellectual Property, “Traditional” Knowledge and Biodiversity: Experiencing Conventions, Laws, Customary Law, and Karma in Thailand’ (2013) 51(4) Geographical Research 375.

352 Ibid.

353 See for instance, World Intellectual Property Organization, ‘Comments on the List of Issues from Japan (Traditional Knowledge)’, <https://www.wipo.int/tk/en/igc/docs/japan_tk.pdf>.

354 Erik Larson, Zachary Johnson, and Monique Murphy, ‘Emerging Indigenous Governance: Ainu Rights at the Intersection of Global Norms and Domestic Institutions’ (2008) 33(1) Alternatives: Global, Local Political 53.

355 Bakhtiar Bandial, ‘Safeguarding Our Traditions Through Intellectual Property Rights’, (2023) 32-33 The ASEAN <https://theaseanmagazine.asean.org/article/safeguarding-our-traditions-through-intellectual-property-rights/>.

356 AANZFTA, ‘AANZFTA Protects and Promotes Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions in AANZFTA’, Press Release, 9 August 2021, <https://aanzfta.asean.org/media-releases/understanding-and-developing-national-policies-and-laws-on-genetic-resources-traditional-knowledge-and-traditional-cultural-expressions-in-the-aanzfta-region>.

357 Sochea Pheap, ‘Indigenous Voices are Missing from ASEAN’, (The Diplomat, 11 November 2022), <https://thediplomat.com/2022/11/indigenous-voices-are-missing-from-asean/>.

358 UN General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development, A/RES/70/1, 21 October 2015, <https://sdgs.un.org/2030agenda>.

359 Preamble of the RCEP.

360 Ibid.

361 Ibid.

362 Article 11.4 (1) of the RCEP.

363 Knowledge Ecology International, ‘RCEP: Regional Comprehensive Economic Partnership’, <http://keionline.org/RCEP>.

364 Catherine Saez, ‘Leaked IP Chapter of Asian FTA Reveals Tough Rules for Poorer Partners, Civil Society Says’, (Intellectual Property Watch, 20 April 2016), <http://www.ip-watch.org/2016/04/20/leaked-ip-chapter-of-asian-fta-reveals-tough-rules-for-poorer-partners-civil-society-says/>.

365 Madhavi Sunder, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press, 2012).

366 Anupam Chander, and Madhavi Sunder, ‘The Battle to Define Asia's Intellectual Property Law: TPP to RCEP’ (2018) 8 UC Irvine Law Review 331.

367 Ibid., 360–361.

368 United Nations Sustainable Development Goals, <http://www.un.org/sustainabledevelopment/sustainable-development-goals/>.

369 Mario Cimoli, Giovanni Dosi, Keith Maskus, Ruth Okediji, Jerome Reichman, and Joseph Stiglitz (eds), Intellectual Property Rights: Legal and Economic Challenges for Development (Oxford University Press, 2014); Dean Baker, Arjun Jayadev and Joseph Stiglitz. Innovation, Intellectual Property, and Development: A Better Set of Approaches for the 21st Century, 2017, <http://ip-unit.org/wp-content/uploads/2017/07/IP-for-21st-Century-EN.pdf>.

370 Margaret Chon, Pedro Roffe and Ahmed Abdel-Latif (eds), The Cambridge Handbook of Public-Private Partnerships, Intellectual Property Governance, and Sustainable Development (Cambridge University Press, 2018).

371 Sara Bannerman, ‘The World Intellectual Property Organization and the Sustainable Development Agenda’ (2020) 122 Futures 102586.

372 Martin Skladany, Copyright's Arc (Cambridge University Press, 2020).

373 Bita Amani, Caroline B. Ncube and Matthew Rimmer (eds), The Elgar Companion to Intellectual Property and the Sustainable Development Goals (Edward Elgar Publishing, 2024).

374 European Union, ‘Sustainable Development in EU Trade Agreements’, <https://policy.trade.ec.europa.eu/development-and-sustainability/sustainable-development/sustainable-development-eu-trade-agreements_en>.

375 Vitor Henrique Pinto Ido (n 33).

376 Ibid., 27.

377 Patricia Ranald, ‘RCEP Has Limited Trade Gains and Ignores Labour and Human Rights’, (Australian Institute of International Affairs, 27 November 2020), <https://www.internationalaffairs.org.au/australianoutlook/rcep-has-limited-trade-gains-and-ignores-labour-and-human-rights/>.

378 Jane Kelsey (ed), No Ordinary Deal: Unmasking the Trans-Pacific Partnership Free Trade Agreement (Routledge, 2011); Tania Voon (ed), Trade Liberalisation and International Co-operation: A Legal Analysis of the Trans-Pacific Partnership Agreement (Edward Elgar Publishing, 2013); Scott Sinclair and Stuart Trew, The Trans-Pacific Partnership and Canada: A Citizen's Guide (Lorimer, 2016); Pratyush Nath Upreti, ‘From TPP to CPTPP: Why Intellectual Property Matters’ (2018) 13(2) Journal of Intellectual Property Law & Practice 100; Rimmer (n 187); and Jorge Huerta-Goldman and David Gantz, The Comprehensive and Progressive Trans-Pacific Partnership: Analysis and Commentary (Cambridge University Press, 2021).

379 Peter Yu, ‘China, “Belt and Road” and Intellectual Property Cooperation’ (2019) 14 Global Trade and Customs Journal 244; Xiaoling Tian, ‘On China's Strategy in Belt and Road International Intellectual Property Cooperation’ in Giuseppe Martinico and Xueyan Wu (eds), A Legal Analysis of the Belt and Road Initiative: Towards a New Silk Road? (Palgrave Macmillan, 2020), 171; Peter Rimmer, China's Global Vision and Actions: Reactions to Belt, Road and Beyond (Edward Elgar Publishing, 2020); and Maria Adele Carrai, Jean-Christophe Defraigne and Jan Wouters (eds), The Belt and Road Initiative and Global Governance (Edward Elgar Publishing, 2020).

380 Markus Nolff, ‘The Patent Provisions of the United States - Mexico – Canada Agreement: A Template for the Announced "Indo-Pacific Economic Framework" Initiative?,’ (2021) 102(1) Journal of the Patent and Trademark Office Society 72.

381 Deeparghya Mukherjee (ed), Economic Integration in Asia: Key Prospects and Challenges with the Regional Comprehensive Economic Partnership (Routledge, 2019); and Asian Development Bank, The Regional Comprehensive Economic Partnership Agreement: A New Paradigm in Asian Regional Cooperation?, 2022.

382 Monika Jain, ‘Validating India's Withdrawal from RCEP and Its Regional Future’, (2024) Journal of International Commerce, Economics and Policy <https://doi.org/10.1142/S1793993323500229>; and Arshid Iqbal Dar, ‘Understanding India's Exit from RCEP: A “Two-Level” Game Conundrum’ (2024) 64(1) Asian Survey 1; and Srabani Roy Choudhury, The Indo-Pacific Theatre: Strategic Visions and Frameworks (Routledge, 2024).