A Submission to the Joint Standing Committee on Treaties on the Regional Comprehensive Economic Partnership (RCEP)

Abstract

This submission provides a critical analysis of the proposed Regional Comprehensive Economic Partnership (RCEP) – focusing in particular upon intellectual property and innovation policy.Recommendation 1 RCEP has a broad membership – even with the departure of India from the negotiations. Nonetheless, there remain outstanding tensions between participating nations – most notably, Australia and China. The re-emergence of United States into trade diplomacy will also complicate the geopolitics of the Asia-Pacific.Recommendation 2 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.Recommendation 3 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.Recommendation 4 RCEP establishes TRIPS-norms in respect of economic rights under copyright law.Recommendation 5 The agreement does not though enhance copyright flexibilities and defences – particularly in terms of boosting access to knowledge, education, innovation, and sustainable development.Recommendation 6 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 characterised as TRIPS+ obligations.Recommendation 7 The electronic commerce chapter of RCEP is outmoded and anachronistic. Its laissez-faire model for dealing with digital trade and electronic commerce is at odds with domestic pressures in Australia and elsewhere for stronger regulation of digital platforms.Recommendation 8 RCEP provides for protection in respect of trade mark law, unfair competition, designs protection, Internet Domain names, and country names.Recommendation 9 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.Recommendation 10 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.Recommendation 11 RCEP has provisions on plant breeders’ rights and agricultural intellectual property. There is a debate over the impact of such measures upon farmers’ rights in the Asia-Pacific.Recommendation 12 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.Recommendation 13 RCEP provides limited protection of confidential information and trade secrets – even though there has been much litigation in this field in the Asia-Pacific.Recommendation 14 RCEP is defective because it fails to consider the inter-relationship between trade, labor rights, and human rights.Recommendation 15 RCEP fails to provide substantive protection of the environment, biodiversity, or climate in the Asia-Pacific.Recommendation 16 RCEP does little to reform intellectual property in line with the sustainable development goals.Recommendation 17 RCEP does not adequately consider Indigenous rights – including those in the Asia-Pacific.Recommendation 18 RCEP does not contain an investor-state dispute settlement mechanism. However, the Investment Chapter does have a number of items, which are problematic.