Copyright Data Exclusivity Patent

RCEP leaks reveal disastrous FTA brewing in Asia

Another round of RCEP negotiations concluded last week. The negotiations continue in a secretive vein- there is no official word on the results of the rounds, nor any official text available for the public to read. However, KEI did manage to spite the dozen odd member countries by releasing a version of the text, right before the negotiations were about to begin. When the only two ways of knowing about your government’s deals are either to become a negotiating official or hope that leaks from channels like KEI and WikiLeaks are authentic and latest versions, you know things are murky for sure. For more background on RCEP, please read my previous post here.

As far as the RCEP texts reveal, each negotiating round has added more draconian elements to the previous one. With the latest leak, RCEP has also outdone the Trans Pacific Partnership (TPP). The trade agreements game has always been about creating regional partnerships to exercise exclusive influence – notice that China is excluded from TPP and the US is excluded from RCEP.

As far as India’s participation goes, reports suggested that it would only accept TRIPS compliant provisions. An Indian official stated,”We are clear about our red lines in the negotiation and we are not going to talk beyond TRIPS.”

More specifically, last week’s leak concerned a version of the Draft Text, of the IP Chapter, tabled by South Korea in the negotiations in October. KEI must also be credited for leaking Japan’s proposals on IP in the past.

Quickly, Japan’s proposal (the first leak) sought, inter alia-

  • Grant of pure software patents.

  • Patent term extensions: Provide compensatory term of patent protection for the period that the invention can’t be worked due to market approval procedures.

  • Ever-greening: “…Party shall ensure that a claimed invention is not excluded from the patentable subject matter solely on the ground that the invention is a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or that the invention is a new use for a known substance.”

  • Undoing the requirement for regular submission of commercial working of an invention.

  • Permit a concurrent and independent inventor to work on an invention similar to the subject of the patent application.

  • Data exclusivity: “… Party shall prevent applicants for marketing approval for pharmaceutical products which utilize new chemical entities from relying on or from referring to test or other data submitted to its competent authority by the first applicant for a certain period of time counted from the date of approval of that application.”

  • Border control measures: The measures sought include extending powers of determination of infringement to non-judicial authorities, and granting seizure powers on mere suspicion.

  • TPM/DRM protections, and also introduce adequate exceptions and limitation.

  • Criminalising recording of movies.

The provisions of the second leak make the TPP provisions look lame in comparison. The highlights of this document tabled by South Korea include (which include and further Japan’s proposal, for the worse) are:

  • Extending the term of copyright to 70 years+lifetime of the author.

  • Compensatory patent protection terms (similar to Japan’s text)

  • Power to rights holders to authorize reproductions in electronic form (including temporary storage!).

  • Blanket Prohibition on re-transmission of content over the internet: “No Party may permit the retransmission of television signals(whether terrestial, cable, or satellite) on the Internet without the authorization of the right holder or right holders, if any, of the content of the signal and of the signal.”

  • Tracking circumvention of DRM/TPM unequivocally – no exceptions or limitations here for fair use.

  • Stringent Border control measures and penalties for criminalising movie recording (regardless of fair-use).

For a more comparative analysis (RCEP v. TPP v. ACTA v. TPSEP), click here. It is unfortunate that all FTAs(except TPSEP) are competing in a race to kill public interest, consumer rights, innovation and free speech. As Jeremy Malcolm suggests, RCEP could have been designed to be 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. While the leaks have ensured massive public outrage over the deals, governments are still determined to push these deals through. Obama left no stone unturned to appeal for the Congressional vote on TPP, fortunately, the Democrats denied him negotiating authority last week. As far as RCEP goes, it is due to be concluded by end of this year. I think that hoping to see the official text released by RCEP members would be too much of a stretch – I can only hope the next leaked version looks more promising than this one.

Anubha Sinha

Anubha Sinha - @anubhasinha_ on Twitter — is a graduate of Dr. RML National Law University, Lucknow, and presently works at the Centre for Internet and Society. She also blogs on

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