[Ip-health] Meet RCEP, a Trade Agreement in Asia That's Even Worse Than TPP or ACTA

Shailly Gupta shailly.gupta at geneva.msf.org
Wed Jun 10 00:45:54 PDT 2015


It's been a big few weeks for leaked trade agreements. Just when we thought
we had seen all the leaked text of the Trade in Services Agreement (TISA),
Wikileaks went ahead and published some more yesterday. And on the same day,
a leaked draft of the intellectual property chapter of yet another trade
agreement, the Regional Comprehensive Economic Partnership (RCEP) was leaked
by Knowledge Ecology International (KEI).

If we described TISA as a treaty you've never heard of, RCEP has been even
more obscure. RCEP can be compared with the Trans-Pacific Partnership (TPP),
except that rather than being driven by the United States, it is being
driven by the ten-member Association of South East Asian Nations (ASEAN),
with the addition of their trading partners from the broader Asia-Pacific
region including most notably India and China, who are absent from the TPP

We might then, expect that RCEP could be the “anti-TPP”; a vehicle for
countries to push back against the neo-colonial ambitions of the United
States, by proposing alternative, home-grown standards on the TPP's
thorniest issues such as copyright, patents, and investor protection. Some
members of RCEP have indeed spoken out against the TPP because of its
unbalanced promotion of strict copyright and patent laws, and some
commentators have characterized RCEP and the TPP as competitors.

But based on yesterday's leaks, the promise of RCEP pushing back against the
TPP is being squandered. Instead, its IP chapter is turning out as a carbon
copy. The text for the chapter that South Korea proposes, which KEI rightly
and succinctly describes as “terrible”, calls for many of the same
provisions and more, including:

• Copyright terms of life plus 70 years.
• Prohibiting temporary copies of works in electronic form (a thoroughly
misguided and anti-innovation provision that has even been erased from the
• Confining copyright limitations and exceptions to those which comply with
the three-step test, which ignores exceptions, such as the quotation right,
that are exempted from that test under international law.
• Remuneration rights to performers for radio airplay, which goes beyond
U.S. law.
• A prohibition on the Internet retransmission of broadcasts, mirroring
proposals for a Broadcast Treaty that would inhibit the free use of public
domain material.
• A prohibition on trafficking in devices used to circumvent DRM, even if
the circumvention is for fair use purposes.
• Inflated awards for copyright or patent infringement, by calculating
damages payable for the infringing works on the assumption that they were
sold at full retail market value.
• Granting ex officio authority to customs authorities that allows them to
seize goods suspected of being infringing at the border, without even the
need for a complaint by the claimed rightsholder.
• Criminal penalties for “commercial scale” copyright and trademark
infringement, even where the infringer has not sought or made any profit
from the activity.
• Criminal penalties against those who record any part of an audiovisual
work in a cinema, regardless of whether the clips recorded would amount to
fair use, for example because they are to be used in criticism or review.
• Suspension of the Internet accounts of repeat infringers, and censorship
of bulletin boards that are “considered to seriously damage the sound use of
copyrighted works” (whatever that means).
• Authorizing a fast-track process for rightsholders to obtain personal
information of alleged infringers from their ISP, without a judicial order.
This draft is much worse than a previous leaked Japanese proposal that
was earlier publishedby KEI. It's far worse than ACTA, and is even worse
than the most recent leaked draft of the TPP. Far from setting up a positive
alternative to the TPP, South Korea is channeling the USTR at its worst
here—what on earth are they thinking? The answer may be that, having been
pushed into accepting unfavorably strict copyright, patent, and trademark
rules in the process of negotiating its 2012 free trade agreement with the
United States, Korea considers that it would be at a disadvantage if other
countries were not subject to the same restrictions.

There are other examples of this kind of vicious cycle; for example, when
negotiating its FTA with the United States, Australia resisted increasing
its copyright term to life plus 70 years (knowing that it would derive no
benefit from doing so), before eventually capitulating. Now Australia (along
with Chile and Singapore, both of which were also forced into increasing
their copyright terms in similar circumstances), are amongst those pushing
extended copyright terms to other countries in the TPP. (We know this from
the first leaked text of the TPP IP chapter, which reveals them as
proponents of a life plus 70 year term.)

Since RCEP is shaping up as even more extreme than the TPP, one might well
ask with resignation whether concluding a trade agreement with balanced IP
rules is actually impossible. Surprisingly, it isn't. Consider
the Trans-Pacific Strategic Economic Partnership[PDF] (TPSEP), yet another
trade agreement in the so-called “noodle bowl” of bilateral and multilateral
Asian FTAs. If the TPSEP sounds like a relative of the TPP, that's because
it is. In fact, it's the predecessor of that broader agreement, that was
concluded in 2006 between Chile, New Zealand, Brunei, and Singapore, and
remains in force between those countries.

For those of us used to FTAs that ratchet up standards of copyright, patent
and trademark protection, the TPSEP is somewhat remarkable. It explicitly
acknowledges “the need to achieve a balance between the rights of right
holders and the legitimate interests of users and the community with regard
to protected subject matter,” but goes further than this to give some
specific examples of user-friendly policies that countries should be
permitted to adopt, including:

• Respecting the first sale doctrine, even for works sold across borders.
• Prohibiting companies from removing your fair use rights through small
print in license agreements.
• Allowing users to bypass DRM for fair use purposes.

These are the kind of pro-user rules that could have differentiated RCEP
from the TPP, if its members were bold enough to think outside the box. And
since RCEP is still at an earlier stage of discussion, they still can:
Korea's proposed rules are an opening gambit, not an agreed text.

Unfortunately, the process of negotiation of the RCEP is just as closed as
that of the TPP, which makes it the wrong place for IP rules altogether. But
now that the text has been leaked and it has been revealed to be so
atrocious, we can begin to build pressure for the negotiating countries to
open up the process. If, heaven forbid, the TPP eventually passes—and
perhaps even more so if it doesn't—the Asia-Pacific region needs to ensure
that its trade regime doesn't lock in restrictive and punitive copyright,
patent, and trademark rules.

Shailly Gupta
MSF Access Campaign
New Delhi

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