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

(DFAT, Flickr, 2019, Creative Commons Attribution https://www.flickr.com/photos/dfataustralianaid/48492623767)

Submission

Matthew Rimmer, ‘A Submission to the Joint Standing Committee on Treaties on The Regional Comprehensive Economic Partnership, Canberra: Joint Standing Committee on Treaties, Australian Parliament, April 2021, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/RCEP , QUT ePrints: https://eprints.qut.edu.au/210126, BePress Selected Works: https://works.bepress.com/matthew_rimmer/376/, SSRN: https://papers.ssrn.com/abstract=3893279 and OSF: https://osf.io/3mvd9

Inquiry

Joint Standing Committee on Treaties, ‘The Regional Comprehensive Economic Partnership’, Canberra: Joint Standing Committee on Treaties, Australian Parliament, 2021, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/RCEP

Old Customs House, Rockhampton, (Author’s photograph)

Executive Summary

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.

Biography

Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Business and Law, at the Queensland University of Technology (QUT). He has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, Indigenous Intellectual Property, and intellectual property and trade. He is undertaking research on intellectual property and 3D printing; the regulation of robotics and artificial intelligence; intellectual property and public health (particularly looking at the coronavirus COVID-19). His work is archived at QUT ePrints, SSRN Abstracts, Bepress Selected Works, and Open Science Framework.

Rimmer wrote his dissertation on The Pirate Bazaar: The Social Life of Copyright Law (2001). He is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod (2007), Intellectual Property and Biotechnology: Biological Inventions (2008), Intellectual Property and Climate Change: Inventing Clean Technologies (2011) and The Trans-Pacific Partnership: Intellectual Property and Trade in the Pacific Rim (2020). Rimmer edited the thematic issue of Law in Context, entitled Patent Law and Biological Inventions (2006), Indigenous Intellectual Property (2015), the special issue of the QUT Law Review on The Plain Packaging of Tobacco Products (2017), and Intellectual Property and Clean Energy: The Paris Agreement and Climate Justice (2018), and co-edited Incentives for Global Public Health: Patent Law and Access to Essential Medicines (2010), Intellectual Property and Emerging Technologies: The New Biology (2012), and 3D Printing and Beyond: Intellectual Property and Regulation (2019).

Rimmer is a member of the QUT Centre for the Digital Economy — which is part of the QUT Centre for Future Enterprise; the QUT Digital Media Research Centre (QUT DMRC), the QUT Centre for Behavioural Economics, Society, and Technology (QUT BEST); the QUT Centre for Justice; the QUT Australian Centre for Health Law Research (QUT ACHLR); and the QUT Centre for Clean Energy Technologies and Processes. Rimmer was previously the leader of the QUT Intellectual Property and Innovation Law Research Program from 2015–2020 (QUT IPIL). Rimmer is a chief investigator in the NHMRC Centre of Excellence for Achieving the Tobacco Endgame (CREATE) — led by the University of Queensland.

Reference

Matthew Rimmer, ‘A Submission to the Joint Standing Committee on Treaties on The Regional Comprehensive Economic Partnership’ Canberra: Joint Standing Committee on Treaties, Australian Parliament, April 2021, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/RCEP , QUT ePrints: https://eprints.qut.edu.au/210126, BePress Selected Works: https://works.bepress.com/matthew_rimmer/376/, SSRN: https://papers.ssrn.com/abstract=3893279 and OSF: https://osf.io/3mvd9

Professor of Intellectual Property and Innovation Law, QUT. #Copyright #Patent #Trademark #plainpacks #Access2meds #SDGs #Climate #IndigenousIP #trade #TPP