The Battle to Define Asia's Intellectual Property Law: from TPP to RCEP
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Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2018 The Battle to Define Asia’s Intellectual Property Law: From TPP to RCEP Anupam Chander Georgetown University Law Center, [email protected] Madhavi Sunder Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2109 https://ssrn.com/abstract=3295812 8 U.C. Irvine L. Rev. 331 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Intellectual Property Law Commons First to Printer_Chander & Sunder (Do Not Delete) 9/10/2018 10:41 AM The Battle to Define Asia’s Intellectual Property Law: From TPP to RCEP Anupam Chander* and Madhavi Sunder** A battle is under way to decide the intellectual property law for half the world’s population. A trade agreement that hopes to create a free trade area even larger than that forged by Genghis Khan will define intellectual property rules across much of Asia and the Pacific. The sixteen countries negotiating the Regional Comprehensive Economic Partnership (RCEP) include China, India, Japan, and South Korea, and stretch to Australia and New Zealand. A review of a leaked draft reveals a struggle largely between India on one side and South Korea and Japan on the other over the intellectual property rules that will govern much of the world. The result of this struggle will affect not only access to innovation in the Asia-Pacific, but also across Africa and other parts of the world that depend on generic medicines from India, which has been called the “pharmacy to the developing world.” Surprisingly, the agreement that includes China as a pillar may result in stricter intellectual property rights than those mandated by the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Perhaps even more surprisingly, such TRIPS-plus rights will be available in the RCEP states to the United States and European companies equally by somewhat recondite provisions in TRIPS. In sum, the RCEP draft erodes access to medicines and education across much of the world. * Professor of Law, Georgetown University Law Center; A.B., Harvard College; J.D., Yale Law School. This author is grateful for a Google Research Award for related research. ** Professor of Law, Georgetown University Law Center; A.B., Harvard College; J.D., Stanford Law School. We are grateful to Dean Kevin Johnson and the UC Davis School of Law school of law for support, and to Marisela Bernal, Wade Green and Anujan Jeevaprakash for excellent research assistance. This article benefitted from presentations to the Georgetown law faculty, the UC Davis law faculty, the International IP Roundtable at Duke, and at a UC Irvine Law Review conference and the European Policy for Intellectual Property annual conference. We are grateful for many helpful comments, including from Irene Calboli, William Fisher III, Jennifer Hillman, Peter Lee, Jeff Price, Jerome Reichman, Haochen Sun, and Peter Yu. The views represented herein, as well as any errors, are the authors’ alone. 331 First to Printer_Chander & Sunder (Do Not Delete) 9/10/2018 10:41 AM 332 UC IRVINE LAW REVIEW [Vol. 8:331 Introduction ..................................................................................................................... 332 I. Threats to Health and Education ............................................................................. 336 A. Access to Medicines ................................................................................... 340 B. Access to Education ................................................................................... 347 II. Accidental Beneficiaries of the RCEP: United States and European Multinationals ..................................................................................................... 350 III. The International Treaty-Making Process............................................................ 354 A. Idiosyncratic ................................................................................................. 355 B. Secret .............................................................................................................. 358 Conclusion ........................................................................................................................ 360 INTRODUCTION Two competing mega-trade agreements seek to write the rules for intellectual property for half of the world. One agreement anchored till recently by the world’s largest economy, the United States, offers intellectual property rules that are generally stricter than those in the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This treaty, the Trans-Pacific Partnership (TPP), was negotiated by twelve nations—Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam.1 When the United States pulled out, the remaining nations suspended a number of its provisions, especially those involving intellectual property, and proceeded with a treaty now dubbed the Comprehensive Progressive Trans-Pacific Partnership (CPTPP).2 A second agreement, the Regional Comprehensive Economic Partnership (RCEP), anchored by the world’s second largest economy, China, is the focus of a struggle between those who seek stronger intellectual property rights and those who seek to carve out greater limitations and exceptions to intellectual property.3 Initially conceived by the Association of Southeast Asian Nations (ASEAN), which consists in Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, 1. The Obama Administration’s description of the treaty is still available on the official government site. See The Trans-Pacific Partnership, OFF. U.S. TRADE REPRESENTATIVE, https://ustr.gov/TPP/ [ https://perma.cc/Z738-TERN] (last visited June 14, 2018). 2. New Zealand’s trade negotiators have detailed the suspended provisions. CPTPP Vs TPP, N.Z. FOREIGN AFF. & TRADE, https://www.mfat.govt.nz/en/trade/free-trade-agreements/free- trade-agreements-concluded-but-not-in-force/cptpp/tpp-and-cptpp-the-differences-explained/ [ https://perma.cc/5EAV-UU2B] (last visited June 14, 2018). Because the agreement has been known popularly as the “TPP,” we will use that short form in the remaining paper, except where the text is known to differ between the TPP and the CPTPP. 3. Seven states are members of both the TPP and RCEP groupings—Australia, Brunei, Japan, Malaysia, New Zealand, Singapore, and Vietnam. The RCEP would create history’s largest free trade zone, larger even than Genghis Khan’s. See JACK WEATHERFORD, GENGHIS KHAN AND THE MAKING OF THE MODERN WORLD xix (2004) (crediting Khan with creating “history’s largest free-trade zone”). First to Printer_Chander & Sunder (Do Not Delete) 9/10/2018 10:41 AM 2018] THE BATTLE TO DEFINE 333 Singapore, Thailand, and Vietnam, the RCEP includes the six states with which ASEAN has existing free trade agreements, namely, Australia, China, India, Japan, New Zealand, and South Korea.4 Yet to be finalized, this agreement seeks to write the intellectual property rules that would govern the lives of nearly half of the world’s population and a third of the world’s gross domestic product.5 Both treaties hope to ultimately attract many other countries, especially in Asia. The proponents of the TPP hope that it will lead to broader adoption in Asia and Latin America.6 The proponents of the RCEP too hope that it will serve as a stepping stone towards an even broader Free Trade Area of the Asia-Pacific. Before the exit of the United States from the TPP, the contest between the two mega- regional agreements was often characterized as a struggle to bring the bulk of Asia into the American or the Chinese sphere of influence, as other states would vie for membership on terms that had already been decided by the original parties. But there is another crucial struggle that is almost entirely overlooked: a battle to define the intellectual property law for Asia in the twenty-first century. 4. For a history of RCEP negotiations, see Peter K. Yu, The RCEP and Intellectual Property Normsetting in the Asia-Pacific, TEX. A&M U. SCH. L. LEGAL STUD. RES. PAPER NUMBER 1774 (2017). 5. James Love, 2015 Oct 16 Version: RCEP Draft Text for Investment Chapter, KNOWLEDGE ECOLOGY INT’L (April 22, 2016), https://www.keionline.org/23065 [ https://perma.cc/79EH- 73AQ] (“Collectively these sixteen countries have a population of 3,488,410,867 in 2014, which was 48 percent of the world population of 7,260,710,677, according to the World Bank.”). 6. From the Office of the U.S. Trade Representative: To that end, it contains clear rules and procedures for expanding participation to other countries that are able to fully implement and enforce the full range of TPP obligations. It also creates useful precedents for both broader Asia-Pacific economic integration and new initiatives that could revitalize plurilateral and multilateral trade talks in the WTO. OFFICE OF THE U.S. TRADE REPRESENTATIVE, THE REPORT OF THE ADVISORY COMMITTEE FOR TRADE POLICY AND NEGOTIATIONS 5 (2015). The TPP’s proponents hope to ultimately include other countries in Latin America as well: “It will encourage the further evolution of free markets in Latin America through the inclusion of Chile and Peru and possibly others going forward.”