The RCEP and trans-pacific intellectual property norms.

• Author: Yu, Peter K.
• Position: Regional Comprehensive Economic Partnership

ABSTRACT

This Article examines the Regional Comprehensive Economic Partnership (RCEP) with a focus on the intellectual property norms that it seeks to develop. The first half of the Article focuses on the RCEP Agreement as a mega-regional agreement. It begins by briefly discussing the historical origins of the RCEP. It then explores three possible scenarios in which the RCEP Agreement will help shape trade and intellectual property norms in the Asia-Pacific region. Specifically, the Article evaluates the scenarios in which the agreement will function as a rival pact, a building block, and an alternative path. The second half of this Article turns to a more specific focus on intellectual property norms that are being established through the RCEP negotiations. It not only discusses the latest leaked draft of the RCEP intellectual property chapter, but it also closely analyzes this chapter in five distinct areas: copyright, trademark, patent, trade secret, and intellectual property enforcement. This Article then tackles the question concerning whether the RCEP Agreement will contain an intellectual property chapter--and, if so, whether such a chapter will look like the intellectual property chapter in the Trans-Pacific Partnership (TPP) Agreement. The Article concludes by exploring whether the RCEP intellectual property chapter will, and should, contain high or low protection and enforcement standards.

Table of Contents I. Introduction II. Historical Origins III. Three Possible Scenarios A. Rival Pact B. Building Block C. Alternative Path D. Summary IV. Draft Intellectual Property Chapter A. Copyright B. Trademark C. Patent D. Trade Secret E. Intellectual Property Enforcement F. Summary V. Final Intellectual Property Chapter A. No Chapter B. TPP-Like Chapter C. TPP-Lite Chapter VI. Intellectual Property Policy Dilemma A. Lower Standards B. Higher Standards VII. Conclusion I. INTRODUCTION

In the past few years, the Trans-Pacific Partnership (1) (TPP) has garnered considerable media, policy, and scholarly attention. (2) Although the TPP Agreement was signed in Auckland, New Zealand on February 4, 2016, and has been described as the Obama administration's "cardinal priority and a cornerstone of [its] Pivot to Asia," (3) the agreement received very limited support, if any, from the presidential candidates representing both the Democratic and Republican Parties.

On the campaign trail, Donald Trump made his opposition loud and clear by lambasting the TPP as "another disaster, done and pushed by special interests who want to rape [the] country." (4) After he entered office, he followed through by signing a memorandum directing the United States Trade Representative to "withdraw[] [the United States] as a signatory of the TPP and ... from the TPP negotiating process." (5) Released on the first day of his first full week in office, the document stated, "it is the intention of [his new] Administration to deal directly with individual countries on a one-on-one (or bilateral) basis in negotiating future trade deals." (6) Not only did the Trump administration abandon the TPP Agreement after six years of exhaustive negotiations, but it also shifted policy emphasis away from regional and plurilateral trade agreements. (7)

While the TPP was catching public attention, another equally important regional pact, the Regional Comprehensive Economic Partnership (RCEP), has slowly emerged in the Asia-Pacific region. This agreement is currently being negotiated between Australia, China, India, Japan, New Zealand, South Korea, and the ten members of the Association of Southeast Asian Nations (ASEAN). (8) Launched in November 2012 under the ASEAN+6 framework, the RCEP negotiations built on past trade and non-trade discussions between ASEAN and its six major Asia-Pacific neighbors. (9)

Although the RCEP is rarely analyzed and only occasionally mentioned, its negotiations deserve greater media, policy, and scholarly attention for at least three reasons. First, this partnership is important globally. The sixteen RCEP negotiating parties "account for almost half of the world's population, almost 30 per cent of global GDP [gross domestic product] and over a quarter of world exports." (10) These figures compare favorably with those relating to the TPP, which covers "40% of global GDP and some 30% of worldwide trade in both goods and services." (11)

Second, the RCEP is highly important within the Asia-Pacific region. Once established, this partnership will cover not only China and India, two of the most economically powerful BRICS countries (Brazil, Russia, India, China, and South Africa,12) but it will also include two high-income Asian economies (Japan and South Korea) and six other TPP partners (Australia, Brunei Darussalam, Malaysia, New Zealand, Singapore, and Vietnam).

Third, the RCEP could serve as a viable alternative to the TPP (13) and has become quite important following the United States' withdrawal. Given the Trump administration's position and the other TPP partners' inability to resuscitate the agreement, (14) the TPP has now been put on life support. (15) It will likely meet the same fate as the widely-criticized Anti-Counterfeiting Trade Agreement (16) (ACTA). Despite its adoption in April 2011, ACTA has thus far been ratified by only one country--Japan, the country of depository. (17)

This Article examines the RCEP with a focus on the intellectual property norms that it seeks to develop. Part II briefly discusses the partnership's historical origins. Part III explores three possible scenarios in which the RCEP Agreement will help shape trade and intellectual property norms in the Asia-Pacific region. This Part evaluates the scenarios in which the agreement will function as a rival pact, a building block, and an alternative path. Part IV focuses specifically on the latest leaked draft of the RCEP intellectual property chapter. (18) It closely analyzes this chapter in five distinct areas: copyright, trademark, patent, trade secret, and intellectual property enforcement.

Part V tackles the question concerning whether the RCEP Agreement will contain an intellectual property chapter--and, if so, whether such a chapter will look like the intellectual property chapter in the TPP Agreement. Part VI turns to a much harder question concerning whether the RCEP intellectual property chapter will, and should, contain high or low protection and enforcement standards. This Part explores the pros and cons of high intellectual property standards in the Asia-Pacific region. Taken together, these two Parts seek to highlight the complexities of intellectual property norm setting in the region and the challenging policy dilemmas confronting the RCEP negotiating parties.

2. HISTORICAL ORIGINS

   Although the RCEP negotiations were launched in November 2012 (19)--more than two years after the beginning of the TPP negotiations--they were not established solely as a reactive response to the latter. Instead, the RCEP negotiations built on prior negotiations at various fora in the Asia-Pacific region: ASEAN+3 (ASEAN, China, Japan, and South Korea), ASEAN+6, and the AsiaPacific Economic Cooperation (APEC) Forum. (20)

   Within ASEAN+3 and ASEAN+6, countries in the Asia-Pacific region have actively explored ways to facilitate greater regional economic integration and cooperation. In October 2001, in a report to ASEAN+3 leaders, the East Asian Vision Group, which was charged with "develop[ing] a road map to guide future regional cooperation," (21) recommended the establishment of the East Asia Free Trade Area. (22) Although China strongly supported this proposal, Japan and other Asian countries had serious reservations about China's potential dominance in this pact. (23)

   In August 2006, Japan advanced an alternative proposal concerning the Comprehensive Economic Partnership in East Asia. (24) Covering not only ASEAN+3 members but also the three remaining ASEAN+6 members (Australia, India, and New Zealand), this partnership would dilute China's influence in the regional pact while adding to the mix a major source of natural resources--namely, Australia. (25)

   Around that time, APEC members also actively explored regional integration and cooperation efforts. In November 2006, APEC began studying the concept of a Free Trade Area of the Asia-Pacific (FTAAP). (26) Three years later, APEC leaders pledged to create an agreement to realize this conceptual vision. As Fred Bergsten observed at that time, the proposed pact could

   * catalyse a substantively successful Doha Round [Doha Development Round of Trade Negotiations];

   * offer an alternative "Plan B" to restore the momentum of liberalization if Doha does falter badly;

   * prevent a further, possibly explosive, proliferation of bilateral and subregional [preferential trade agreements] that create substantial new discrimination and discord within the Asia-Pacific region;

   * avoid renewed risk of "drawing a line down the middle of the Pacific" as East Asian, and perhaps Western Hemisphere, regional initiatives produce disintegration of the Asia-Pacific rather than the integration that APEC was created to foster:

   * channel the China-U.S. economic conflict into a more constructive and less confrontational context that could defuse at least some of its attendant tension and risk; and

   * revitalize APEC itself, which is now of enhanced importance because of the risks of Asia-Pacific and especially China-U.S. fissures.27

   Since then, APEC leaders have endorsed various declarations laying down the incremental steps needed to realize the FTAAP. These documents include the Pathways to FTAAP, (28) which was adopted in November 2010, and the Beijing Road map for APEC's Contribution to the Realization of the FTAAP29 (Beijing Roadmap), which was released four years later.

   In November 2011, ASEAN, with the support of both China and Japan, proposed to merge the initiatives concerning the East Asia Free Trade Area and the...