Assessment and Prospects of Intellectual Property Rights Provisions in RTAs

Author Name SUZUKI Masabumi  (Professor, Nagoya University)
Creation Date/NO. March 2008 08-J-005
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This paper examines intellectual property rights (IPR) provisions in regional trade agreements (RTAs) and attempts to clarify the significance and problems of these provisions in terms of their relationship with 1) ongoing efforts toward building international IPR laws and 2) the World Trade Organization regime.

As a preliminary examination, the paper first summarizes the general characteristics of IPR systems and the significance of building an international institutional IPR system. This is followed by clarification and analysis of existing IPR provisions in RTAs. Specifically, the paper attempts to identify tendencies or patterns observable in the structure of IPR regimes provided for under major RTAs, demonstrating that the IPR provisions can be classified into four types: 1) agreement on the substance of IPR protection, 2) agreement on procedures for IPR protection, 3) agreement on obligations under relevant multilateral agreements, and 4) agreement on cooperation. The significance and problems of TRIPS-plus provisions in RTAs are then examined in terms of their relationship with rules under multilateral agreements. RTAs, in some aspects, contribute to the international harmonization of IPR regimes and thus can be considered constructive. However, as a prerequisite any IPR provisions in RTAs must be consistent with most favored nation and national treatment principles that constitute the fulcrum of multilateral rules. Regarding the question of consistency with the multilateral principles, the paper points out the possibility that TRIPS-plus provisions, particularly those governing substantive rules, may: 1) result in discriminatory treatment among the members of the multilateral trade regime, 2) force RTA member countries to accept excessive concessions, and 3) turn out to be detrimental to the international harmonization of IPR regimes. At the same time, however, the paper acknowledges the significance of certain TRIPS-plus provisions in RTAs. Specifically, provisions governing procedural rules for ensuring enforcement, those calling for accession to and compliance with existing multilateral agreements, and those providing for cooperation in the examination of patents and other IPRs are (so long as agreed to by parties based on their circumstances and reality) are noted as beneficial to parties concerned and conducive to ongoing efforts toward building an international IPR regime.

Lastly, with respect to Japan's response to IPR provisions in RTAs, the paper points out that first, in negotiating RTAs, Japan should proactively promote the inclusion of IPR provisions complementary in procedural aspects to TRIPS and other multilateral rules. In setting any new substantive IPR rules in RTAs, the validity and appropriateness of the rules should be carefully examined, not only in terms of advantages and disadvantages for the parties concerned, but also from the viewpoint of establishing an international IPR regime. IPR provisions included in RTAs to which Japan is not party also need to be monitored. Furthermore, it is useful and beneficial for international agencies to undertake research and studies on how IPR provisions in RTAs will affect the development of an international IPR regime and Japan should consider proposing specific research initiatives in this regard.