General

In trade disputes between countries or regions, the protection of intellectual property rights has become one of the main focuses of trade frictions. The coordinated protection of intellectual property rights has been frequently written into international, regional multilateral and even bilateral free trade agreements and has received more attention.

The North American Free Trade Agreement (NAFTA), which came into effect on January 1, 1994, is the world's first regional free trade agreement covering intellectual property rights. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which came into effect on January 1, 1995, has in fact expanded the issue of intellectual property protection internationally to include trade, investment, technology transfer and other broad economic fields. With the increasing importance of intellectual property rights in the world trade system, free trade agreements (FTAs) have become, to a considerable extent, an effective platform and approach to coordinate the protection of intellectual property rights of the parties to the agreement.

1. Coordinated protection and highlights of intellectual property rights under the RCEP framework

1. The basic situation of RCEP

The Regional Comprehensive Economic Partnership (RCEP) is generally regarded as the free trade agreement in the world with the largest population, the largest economic and trade scale, and the most potential for development. It covers 29.7% of the global population, 28.9% of global GDP, about 30% of total global trade, and 38.3% of the global share in attracting net foreign direct investment inflows. RCEP has entered into force on January 1, 2022 in 10 member states that have completed ratification including: Australia, China, Japan, New Zealand and Thailand, Vietnam, Singapore, Laos, Brunei and Cambodia. On February 1, March 18 and May 1, it came into effect in South Korea, Malaysia and Myanmar respectively. The effective implementation of RCEP is a broader and in-depth market opening on the basis of the WTO, which will help the expansion and extension of the economic scope of member states and regions, and bring greater business opportunities to enterprises in the region.

2. Arrangements for Participation in International Intellectual Property Treaties under the RCEP Framework

The full text of RCEP consists of a preface, 20 chapters, and 4 annexes to the market access commitment table. Among them, the intellectual property chapter (Chapter 11) contains 83 clauses and 2 annexes such as transitional arrangements and technical assistance. It is the chapter with the most content and the longest length in RCEP, and it is also the most content in the FTA signed by China so far. Comprehensive intellectual property chapter.

A country's needs and awareness of intellectual property protection fundamentally depend on its level of development and development needs. There are significant differences in economy, technology and culture among the negotiating parties of RCEP, and they must have different attitudes and opinions in the field of intellectual property rights. In the end, the parties reached a consensus after thorough discussion, and expressed the main international intellectual property treaties under the RCEP framework into three categories: 1) those that should be ratified or acceded to (ie: mandatory obligations); 2) should be committed to ratification or accession (ie: advocacy obligations); 3) may seek cooperation with other parties to support their ratification or accession and implementation (ie: optional obligations).

3. The inheritance and highlights of intellectual property protection under the RCEP framework compared to TRIPS

The "objectives" and "principles" of RCEP in the intellectual property chapter mainly refer to the texts of Articles 7 and 8 of TRIPS. In terms of overall content, it can be seen that RCEP has inherited all the balance and flexibility contained in TRIPS. RCEP also stipulates that although the contracting parties agree that the protection of intellectual property rights in this chapter goes beyond the provisions of TRIPS, if a provision of this chapter is inconsistent with the corresponding provisions of TRIPS, the latter provisions shall prevail.

The chapter on intellectual property rights of RCEP not only includes the main topics of traditional intellectual property rights, but also reflects the new trend of intellectual property protection development. For example, Article 53 stipulates genetic resources, traditional knowledge and folklore as the subject matter of intellectual property protection, and interprets and refines them accordingly. However, the content of this clause has no similar provisions in TRIPS or other international treaties such as CPTPP, and is a very distinctive leading norm in RCEP intellectual property rules. In addition, RCEP also highlights "China's experience" in intellectual property protection. The bad-faith trademark regulation clauses and trademark electronic application regulations in this chapter all reflect to a certain extent that China's experience in intellectual property protection is gradually becoming an international intellectual property rule, and it also reflects the improvement of my country's participation in regional intellectual property governance.

It should be emphasized that, like the TRIPS agreement, the RCEP intellectual property clauses also stipulate the minimum obligations of the contracting parties. Many clauses give the contracting parties the freedom and choice to formulate higher protection standards according to their respective development stages and other actual conditions.

2. The accessibility of the coordinated protection of intellectual property rights under the RCEP framework

Compared with other regional free trade agreements that have entered into force, RCEP members have great differences in the level of economic development and are more diverse. In addition to 5 developed countries including Japan, South Korea, Australia, New Zealand and Singapore and 7 developing countries including China, Indonesia, the Philippines, Malaysia, Thailand, Brunei and Vietnam, it also includes 3 least developed countries including Cambodia, Laos and Myanmar.

Generally speaking, the strong intellectual property protection in the Free Trade Agreement (FTA) has a more significant effect on the optimization of the export trade structure of developed countries than developing countries. Cooperation under the RCEP framework faces practical challenges such as the large differences in the level of intellectual property protection and legislation among members, and the lack of intrinsic motivation for some countries to participate in the coordinated protection of intellectual property rights in the agreement. Therefore, RCEP needs to actively explore the system and rules for the integrated protection of regional intellectual property within the scope allowed by TRIPS.

In order to ensure the accessibility of the coordinated protection of intellectual property rights under the RCEP framework, first of all, RCEP has added some flexible clauses to the implementation of intellectual property rights. The wording of these flexible clauses mostly uses optional words such as "may" and "at least", and their meanings are non-specific, selective and non-mandatory, and directly or indirectly exclude the mandatory obligations of contracting parties to implement intellectual property rights. Secondly, in order to bridge the differences in the development level and intellectual property protection capabilities of different members, more specific provisions have been formulated on the application of specific provisions to Cambodia, Laos, Myanmar and other least developed countries and ASEAN countries that have joined later (including Malaysia, the Philippines, Thailand and Vietnam). The meticulous transition period reduces the difficulty for these countries to join the IP coordination protection mechanism under the RCEP framework. Thirdly, RCEP has also set more clear and operable terms of technical assistance and technology transfer, so that the above-mentioned countries are truly capable of moving forward from low-level protection of intellectual property rights to high-level protection in the future, fulfilling the specific requirements under the RCEP framework. Commitment to intellectual property protection, so as to effectively achieve the accessibility of the harmonized protection of intellectual property rights.

3. Further thoughts and suggestions on the coordinated protection of intellectual property rights under the RCEP framework

Innovation and intellectual property protection are important driving forces to promote scientific and technological progress, promote industrial upgrading and achieve sustainable development. With the deepening of economic and trade exchanges between countries around the world, intellectual property rights have become the focus of trade and investment activities. According to the 2021 Global Innovation Index released by the World Intellectual Property Organization, five Asian economies have entered the top 15 in the world. Currently, about 70% of the world's intellectual property applications come from Asia, and 60% of R&D funds are invested in the Asian market. Therefore, RCEP, as a modern, comprehensive, high-quality and reciprocal free trade agreement with the most influence in the Asia-Pacific region, all parties give full play to their respective roles and translate the commitment to intellectual property protection consensus into practice, so as to achieve intra-regional free trade The virtuous circle of development and intellectual property protection is of particular importance.

1. China should actively promote the coordinated protection of intellectual property rights under the RCEP framework

RCEP is by far the most important regional multilateral free trade area agreement between China and other countries or regions. This is first determined by the closeness of the trade ties between RCEP members and China. According to the latest statistics from the customs, in 2021, among the top 20 countries (regions) in the total value of imports and exports with China, the RCEP parties plus Hong Kong, China, will already occupy half of the country. In addition, in terms of regional trading partners, ASEAN has surpassed the EU to become China's largest trading partner since 2020. Therefore, under the complicated international situation, strengthening trade relations with RCEP parties is an important reliance for my country to implement the dual economic cycle and the direction of efforts to ensure stable and long-term economic growth. This requires China to continue to play a low-key but firm role in the formulation and implementation of rules under the RCEP framework.

In international conventions or free trade agreements involving intellectual property, China has basically played the role of a "later accedor" or a "rule acceptor" rather than a "former". However, as the Chinese side solemnly declared in Chapter 1, Section 1 "General Obligations" of the Economic and Trade Agreement between the Government of the People's Republic of China and the Government of the United States of America: Today, China is "transforming from an important intellectual property consumer to an important intellectual property producer." "Continuously strengthening intellectual property protection and enforcement is conducive to building an innovative country, developing innovative enterprises, and promoting high-quality economic development." This means that in the future, China will need to take into account the situation and assume more responsibilities and obligations in the formulation and implementation of intellectual property rules.

Undoubtedly, China's current level of intellectual property creation and protection ranks first among RCEP contracting parties. Moreover, our current laws already provide broader protection than the RCEP intellectual property provisions require. The regulations on malicious squatting of trademarks, the protection of well-known trademarks, the rapid patent authorization system, and the losing party's legal fees stipulated by RCEP have become the actual system and practice in China's intellectual property legislation, administration and judiciary. At the same time, it should be noted that the IP commitments in RCEP are more comprehensive and higher-level than those in agreements signed by some parties (such as the ASEAN+1 agreement). This requires us to truly demonstrate our responsibility as a major country, give full play to the important roles of participants and contributors in the RCEP system, and help all relevant parties in the RCEP region to promote the innovation, protection, transfer and dissemination of intellectual property rights, and achieve mutual benefit. , and promote the establishment of new rules for the coordination and protection of intellectual property rights that are open, inclusive, fair and reasonable.

2. Specific recommendations for the coordinated protection of intellectual property rights under the RCEP framework

In order to seek a solution acceptable to all members, the intellectual property chapter under the RCEP framework has undergone many rounds of arduous negotiations, and the final consensus text reflects flexibility and balance, fully demonstrating the oriental wisdom of seeking common ground while reserving differences and pursuing a win-win situation. However, it should also be recognized that the existence of too many flexible clauses in the coordinated protection of intellectual property will inevitably increase the difficulty of implementing the RCEP rights implementation clauses in the future, and the flexibility of flexible clauses may not meet the practical needs of specific law enforcement in various countries to a certain extent. As a result, it is difficult to effectively enforce the rights enforcement clause. This requires RCEP parties to fully implement the terms of cooperation and mutual assistance, and at the same time actively coordinate the construction of various forms of intellectual property protection and relief mechanisms, and increase the communication and exchange of intellectual property enforcement at the technical level. Specific recommendations are as follows:

1) In order to more quickly and effectively resolve intellectual property trade disputes among enterprises in the RCEP region, it is possible to consider the establishment of an authoritative intellectual property mediation and arbitration center with mutual recognition and cooperation within the region led by the chambers of commerce of various countries. The Intellectual Property Mediation and Arbitration Center compiles a set of guidelines recognized by all parties to avoid and resolve cross-border intellectual property disputes on the basis of thorough regional research. Enterprises from various countries conduct professional mediation on intellectual property disputes.

2) Establish the RCEP cooperation secretariat or a corresponding permanent organization to provide enterprises or operators in the region with services related to data processing such as retrieval, inquiry, comparison, identification, and output of intellectual property-related information of each contracting party. Build an early warning system for trade intellectual property rights of all parties in the region, establish an intellectual property database and continuously update it dynamically. Using modern network technology, timely follow up and disclose international intellectual property news and trends, provide multi-angle and multi-dimensional intellectual property infringement relief methods, and reduce the risk of intellectual property infringement in the operation of enterprises in the domain.

3) Pay full attention to the challenges and opportunities brought by the development of e-commerce in the RCEP domain. With the reduction of trade barriers and frictions in the RCEP region, it means that counterfeit goods can also be circulated and traded more freely in the market, especially through e-commerce. Due to the characteristics of e-commerce, the difficulty of online traceability and effective investigation and punishment of counterfeit goods will also increase. This requires RCEP parties to strengthen exchanges and cooperation in the coordinated protection of intellectual property rights in the field of e-commerce, work together to formulate online intellectual property enforcement strategies, and ensure that difficult problems that arise at any time can be solved at the technical work level. Ultimately, seek to build a unified, effective and balanced intellectual property e-commerce enforcement mechanism under the RCEP cooperation framework.

Conclusion

As an international strategy to stimulate innovation and development, intellectual property protection has become a general consensus in Asian countries and even in countries around the world. RCEP has well adhered to the concept of seeking common ground while reserving differences and win-win cooperation, balancing the needs of promoting multilateral trade exchanges and the coordinated protection and development of intellectual property rights. RCEP contracting parties should continue to strive to continuously improve and deepen this system, and play an active role in maintaining economic integration and shaping the international order of intellectual property rights. Therefore, by further deepening pragmatic cooperation, sharing development opportunities, and jointly creating a more dynamic and effective intellectual property ecosystem, it will bring new opportunities for regional and even global economic recovery in the post-epidemic era and for the common development of countries and regions within and outside the region. Hope and momentum.