IP criticism grows around Asia-Pacific’s historic trade deal
The world’s largest trade agreement was signed yesterday, November 15, but the deal has been dogged by concerns over provisions covering pharma patents, traditional knowledge, and copyright.
The Regional Comprehensive Economic Partnership (RCEP), which was eight years in the making, was signed by the ten members of the Association of Southeast Asian Nations (ASEAN), as well as South Korea, China, Japan, Australia and New Zealand.
A joint statement from the leaders of the countries involved said: “As an agreement that would cover a market of 2.2 billion people, or almost 30% of the world’s population, with a combined GDP of $26.2 trillion or about 30% of global GDP, and accounts for nearly 28% of global trade (based on 2019 figures), we believe that RCEP, being the world’s largest free trade arrangement, represents an important step forward towards an ideal framework of global trade and investment rules.”
While the RCEP was an ASEAN initiative, many see it as a China-backed alternative to the Trans-Pacific Partnership (TPP), a proposed deal that excluded China but included many Asian countries.
The RCEP deal was praised by Rena Lee, chief executive of the Intellectual Property Office of Singapore (IPOS). Lee said the RCEP will “broaden and deepen economic linkages across the Asia Pacific, ease trade in goods and services, facilitate the flow of foreign investments, and enhance protection in IP and e-commerce”.
Access to medicines
However, some of the IP provisions—comprising one of the deal’s 20-chapters—have come under fire during negotiations.
Access Campaign, which is part of humanitarian organisation Médecins Sans Frontières (MSF), had previously claimed that RCEP’s provisions threaten access to medicines.
A leaked draft of the IP provisions revealed that Japan and South Korea had proposed several provisions which sought to extend patent monopolies of pharma corporations, according to Shailly Gupta, deputy head of the MSF Access Campaign (India).
Last July, MSF announced that the negotiating countries had confirmed the withdrawal of two provisions relating to medicines: patent term extensions and data exclusivity.
However, a “range of damaging IP enforcement provisions proposed by Japan remain on the negotiating table”, warned MSF.
This included a provision for extending patent terms for an additional five years beyond the present 20-year limit.
“Another proposed harmful provision is the introduction of data exclusivity to defer the registration or marketing approval of generic versions of medicines by several years which will effectively provide a backdoor monopoly status to pharma corporations—even for older medicines that do not deserve a patent,” added MSF.
Leena Menghaney, South Asia Head of MSF’s Access Campaign, told WIPR that one of the most important steps to protect access to medicines happened when India opted out of the trade agreement in late 2019.
MSF had warned that the agreement could have a detrimental impact on the availability of price-lowering generic medicines, of which India is a major supplier.
Menghaney added: “Secondly, some of the harmful provisions have been taken out, but many of the harmful IP enforcement provisions remain. They may continue to hurt access to medicines, particularly if generic medicines can be seized or injunctions are granted without checking the validity of the patent.”
Some civil societies have argued that the provision that, when determining damages, judicial authorities shall have the authority to consider “any legitimate measure of value the right holder submits” should have been rejected.
“This consideration negatively affects local small and medium-sized companies. Generic suppliers may face disproportionate damages as the right holder may seek as damages such as lost profits or its retail price which could be exorbitant as seen in the case of hepatitis C medicine sofosbuvir that was priced at $84,000 per course of treatment,” said an open letter from more than 70 societies.
The deal also appears to encourage members towards the accession of the 1991 Act of International Convention for the Protection of New Varieties of Plants. According to some, this law provides monopoly rights to plant breeder rights at the cost of farmers’ rights.
Copyright and traditional knowledge
In 2016, the civil liberties group Electronic Frontier Foundation (EFF) claimed that a leaked draft of the agreement contained “quite simply the worst provisions on copyright that we had ever seen in a trade agreement”.
The first leaked text required a copyright term extension, but this has been dropped from the chapter.
EFF was less critical of a subsequently leaked draft, stating that the RCEP does manage to avoid some of the “worst excesses” of the TPP in relation to copyright, such as the extension of copyright term.
The CPTPP suspended a number of IP provisions in the original TPP agreement, including those on copyright terms and patent-term adjustment.
“By the same token, RCEP fails to improve much on the TPP in areas where it quite easily could; most notably in the language on limitations and exceptions, which fails to require countries to include an equivalent to fair use in their copyright laws,” said EFF.
In 2017, EFF also hosted an open letter from a group of law professors, who claimed that they were “deeply concerned about the copyright protection standards” proposed in the agreement.
The group urged the RCEP negotiators to apply three principles: integrate the public interest as a core value for copyright negotiations; increase the transparency of negotiations for the public interest; and institute changes in copyright provisions for the public interest.
However, while the group recommended that the negotiators consider exempting Internet service providers from legal liability for copyright infringement committed by users and including an effective counter-notice procedure, the RCEP remains quiet on the matter.
Kathy Bowrey, professor of law at the University of New South Wales and one of the letter’s signatories, told WIPR that the agreement has a “20th-Century trade and IP agenda”, which ignores that in the world today, IP is really about the connection between cultures, economics and production, ecosystems and communities.
“It has a very disappointing and narrow understanding of Indigenous rights across the region—all largely symbolic clauses and relatively meaningless, without building any momentum or encouragement to respect Indigenous rights within and between nations of the region,” she added.
Under the RCEP, each party may establish appropriate measures to protect genetic resources, traditional knowledge, and folklore, but there is no set definition of appropriate measures.
The agreement also stated that some parties require in their patent systems, “evidence of prior informed consent and access and benefit-sharing for genetic resources and associated traditional knowledge”, but again, did not lay down any specific rules.
Enhancing IP
Not all commentators feel the same way about the agreement, which will come into force once six ASEAN members and three partners work on their respective ratification processes.
“The first significant enhancement in IP protection, which will benefit companies, is that companies only need to file a patent or trademark application in one RCEP member country which will also be accepted for further processing in other RCEP member countries,” said Lee.
Next, enhanced IP protection will be provided for non-traditional trademarks such as sound marks and a wider range of industrial designs, with IP protection for such marks and designs extended throughout all RCEP member countries.
“These IP enhancements are expected to catalyse innovation in the region and spur more business activity,” Lee added.
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