Please find below a CSO letter on Intellectual Property in connection with RCEP negotiations, signed by more than 70 CSOs from countries involved in the negotiations.
Civil Society Letter on Intellectual Property to RCEP Negotiators
24th September 2019
We are writing concerning the present on-going negotiations on the Regional Comprehensive Economic Partnership Agreement (RCEP).
It is crucial that nothing in the RCEP text goes beyond the minimum requirements of the World Trade Organisation Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement). In short, RCEP must not include any TRIPS-plus provisions. And neither should RCEP text in anyway undermine or limit policy space and the rights of least developed countries (LDCs) and other countries accorded by the TRIPS Agreement.
We are concerned about TRIPS-plus proposals concerning intellectual property enforcement. Intellectual property are “private” rights, to be enforced by the IP holder. However, we note with concern that there are a number of proposals shifting the burden of enforcement onto the government and according greater enforcement rights in favour of the IP holder at the expense of equity, rights of third parties and public interests.
For instance, in determining damages, a proposal under consideration is that the judicial authorities shall have the authority to consider, inter alia “any legitimate measure of value the right holder submits”. This consideration negatively affects local small and medium sized companies. Generic suppliers may face disproportionate damages as the right holder may seek as damages such as lost profits or its retail price which could be exorbitant as seen in the case of hepatitis C medicine sofosbuvir that was priced at US$84,000 per course of treatment. Hence putting the generic companies out of business. The proposal goes beyond Article 45 of the TRIPS Agreement, it is TRIPS-plus and should be rejected.
Another example is the proposal requiring the courts to have authority to order the infringer to pay court costs or fees and reasonable attorney’s fees. This provision goes beyond the TRIPS Agreement. Article 45.2 of the TRIPS Agreement only requires that courts have authority to order the infringer to pay the right holder expenses, which may include attorneys’ fees. IP infringement suits are usually costly as it involves multinational companies that hire highly paid lawyers. Legal costs can pose a significant burden for defendants such as generic companies leading to bankruptcy or settling out for fear. It would have a huge negative impact especially on small and medium sized entities. Hence while awarding of right holder expenses should be within the court’s discretion as found in Article 45.2 of the TRIPS Agreement, courts need not have the authority to require payment of court costs, fees or even reasonable attorney’s fees.
The RCEP proposal on “Destroying Infringing Goods and Materials and Implements” is TRIPS-plus. Any measure on this must not go beyond Article 46 of the TRIPS Agreement which allows disposal of infringing goods outside channels of commerce (eg, to charity). Provisions that require destruction are wasteful and cause environmental harm. In the context of public health patients will suffer if their life-saving medicines are seized and the active pharmaceutical ingredients (API) and machinery used to make them are destroyed. Importantly the TRIPS Agreement requires that when a right holder requests destruction of infringing goods and implements, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be considered.
Similarly, provisions on border measures should not be TRIPS-plus and should not undermine safeguards and policy space contained in Articles 52 to 60 of the TRIPS Agreement such as with respect to indemnification of the importer and the owner of the goods, duration of suspension, notice of suspension, right to judicial review and de minimis imports.
We are also concerned about IP enforcement procedures in the digital environment. Given that the implications of application of such procedures are not well-understood, we believe that this area should be deleted from the text.
With respect to provisions on cooperation and dialogue we are concerned especially that they will be used as a future basis by developed countries to further pressure implementation of TRIPS-plus measures or pursue harmonization. Hence caution should be exercised in adoption of any text on these matters. Any provision on cooperation and dialogue should not be obligatory or TRIPS-plus. For example, there should not be a requirement to cooperate on border measures. If included, it should be non-obligatory and limited to importation of counterfeit trademark and pirated copyright goods.
In addition, any text on cooperation should not be focused on the protection and enforcement of IP but should also recognize the importance of exploitation of its flexibilities, limitations and exceptions. Importantly there should not be any provision that aims to harmonize patent policies, practices or procedures as internationally such efforts are rejected by developing countries.
We would be concerned about any requirement to cooperate in the area of plant variety protection given the efforts of developed countries especially Japan to promote adoption of UPOV 1991. Hence, we object to any requirement for cooperation in this area. Countries implementing alternative sui generis plant variety protection (PVP) systems should be free to implement their systems as per national needs and interests.
We also question the need for a Committee on Intellectual Property Rights as it allows continuous pressure for adoption of TRIPS-plus measures. We call for its deletion.
Finally, with respect to Least Developed Countries, transition periods granted by the TRIPS Council with respect to general implementation of the TRIPS Agreement (currently until 1 July 2021) and on pharmaceutical products as well as WTO General Council’s decision with respect to Article 70.8 and 70.9 of the TRIPS Agreement (currently until 1 January 2033) must not be undermined. It is also crucial that LDCs right to request for further transition periods under Article 66 of the TRIPS Agreement is safeguarded without any limitation.
In addition, we also urge that LDCs should be allowed leeway to not implement any provision of the IP Chapter until the LDC achieves the level of development comparable to that of developed countries that are part of the negotiation process.
In conclusion we would also recall that the recent United Nations Secretary General’s High-Level Panel on Access to Medicines Report recommends “Governments engaged in bilateral and regional trade and investment treaties should ensure that these agreements do not include provisions that interfere with their obligations to fulfil the right to health.”
Asia Pacific Women, Law & Development (APWLD), Regional, Asia