“If Malaysia were to delay the ratification, the country would be left behind in enjoying the benefits and preferential treatment as contained in the agreement”[1]
Summary
The Dewan Negara recently approved three bills pertaining to Intellectual Property (“IP”) rights: the Patent (Amendment) Bill 2021, the Copyright (Amendment) Bill 2021, and the Geographical Indications Bill 2021[2]. These amendments were said to be essential in preparing Malaysia for its accession to the Marrakesh Treaty, realigning intellectual property standards in accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and to comply with Malaysia’s broader obligations under the Regional Comprehensive Economic Partnership (hereafter referred to as “RCEP”). This article will begin by briefly exploring the background of the RCEP along with its overall benefits. The primary components of the RCEP’s IP rules will then be discussed, and finally the significance and influence of these IP provisions on Malaysia’s IP landscape shall be considered.
Background Of RCEP
The RCEP is a free trade deal involving the Association of Southeast Asian Nations (ASEAN) member nations including Australia, China, Japan, Korea, and New Zealand. Being the first trade agreement between the Asian economic powerhouses including Korea, Japan, and China, it would be the largest deal in the world with an estimated 30% of GDP and more than 27% of global merchandise trade.
As the US-China trade dispute and the COVID-19 pandemic continue to put a strain on the global supply chain, RCEP is expected to create the necessary momentum for companies to recover through deepening their trade relations, whilst simultaneously promoting countries with small economies in the region and reducing the development gap between ASEAN members. As such, the RCEP has enacted regulations targeted at mitigating the adverse impacts and barriers to trade and investment. The RCEP will enter into force on 1st January 2022[3].
RCEP consists of 20 chapters and annexes and over 14,000 pages, which is a comprehensive agreement in both scope and depth of commitments. In addition to the general provisions in Chapter 1 and Chapter 20, the main content of the Agreement is the provisions related to trade in goods (Chapter 2); rules of origin (Chapter 3); customs procedures and trade facilitation (Chapter 4); sanitary and phytosanitary measures (Chapter 5) so on and forth. In addition, the Agreement is accompanied by a list of member-specific transition periods and technical assistance requirements.
What’s Special About RCEP’s IP Chapter?
Establishing, using, preserving, along with fully and effectively enforcing intellectual property rights (as defined in Chapter 11 of the RCEP) is also seen as a vital step toward fulfilling the Agreement’s common goal. With the advancement of globalization, technology and innovation have become the primary determinants of a country’s or region’s comparative advantage and competitiveness in the market. As a consequence, IP protection on a worldwide scale has become a global concern. The RCEP, being the world’s biggest free trade deal, is no exception to this trend. Having acknowledged this, Chapter 11 deals with ways to eliminate trade and investment obstacles and problems in relation to IP. It essentially builds on the WTO and the TRIPS Agreement. The RCEP’s IP provisions are comprehensive and has a higher threshold than those in previous ASEAN agreements (for example, the ASEAN+1 Agreements).
Key Features
- Accession to international treaty – To standardize IP standards to global standards among RCEP countries. Malaysia to ratify the Marrakesh Treaty within 5 years.
- Streamline and align processes – Instead of putting pressure to upgrade the system of protection and enforcement of intellectual property rights for members to a new level, requiring members to exchange benefits in negotiation, IP in RCEP is built according to the mechanism based on the IP foundation, the level and the inherent superstructure of the member countries.
- Goes Beyond TRIPS – Provisions protects technological measures and protection of electronic rights management.
- Reinforcement – This chapter reaffirms important aspects of IP enforcements.
Key Benefits
- Economic Integration – Reducing IP-related barriers to trade and investment by promoting economic integration.
- Cooperation – Cooperation in utilization, protection and enforcement of IP rights.
- Standardising – Facilitate a better access for IP-related product and service.
- Balance of Interests – The RCEP has a unique character in that it focuses more on the balance between rights and obligations to prevent the abuse of intellectual property rights.
- Cost Efficiency – Lower cost of doing business.
- Greater Protection – Commitment to renewing enforcement efforts.
Key Contents of IP Rights and Enforcement in RCEP
Chapter 11 covers many aspects (ranging from Section B – Section J) related to IP and IP rights such as:
- copyrights (Section B),
- trademarks (Section C),
- geographical indications (Section D),
- patents (Section E),
- industrial designs (Section F),
- genetic resources, traditional and folklore knowledge (Section G),
- unfair competition (Section H),
- country names (Section I),
- enforcement of IP rights (Section J).
Obliging the RCEP – Highlights of IP Efforts by Malaysia
The recent approval of the Patents and Copyright Amendment Bills would make significant revisions to the current Patents Act 1983 and Copyright Act 1987 respectively. Meanwhile, the Geographical Indications Bill offers changes to the existing Geographical Indications Act 2000. It aims to protect and register geographical indications used in connection with goods as well as to implement applicable treaties and other relevant matters.
Patents (Amendment) Bill 2021
- Primarily, the Bill was introduced to make microbiological process products patentable innovations.
- Furthermore, it grants the federal or state governments the ability to patent their inventions.
Copyright (Amendment) Bill 2021
- A prominent subsection of this Bill is one which states that no person shall commit or facilitate copyright infringement in any work, including selling, hiring or importing streaming technology.
- On conviction, any person who violates this provision faces a fine of not less than RM10,000 and not more than RM200,000, or imprisonment for a period not exceeding 20 years, or both.
- Deputy Domestic Trade and Consumer Affairs Minister Datuk Rosol Wahid stated that the amendment provides suitable copyright protection including implementing allowed exceptions of rights and international ratification.
- Additionally, the amendment was said to prepare Malaysia to join the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh Treaty) to acknowledge the rights of visually impaired individuals to obtain works in accessible format copy.
Geographical Indications Bill 2021
- The Geographical Indications Bill 2021 contains 15 sections including 101 clauses per schedule. It was explained that the Geographical Indications Act 2000 (Act 602) was enacted in line with the need to protect registered or unregistered geographical indications in Malaysia, in line with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement which was effective on January 1, 1995.
- Geographical indication (GI) is an indicator that may comprise one or more words which identifies any goods as having originated in a certain nation or territory. Typically, a particular quality, reputation, or other features of the goods are primarily linked to their geographical origin.
- This Bill would enable owners to submit an application for registration of a geographical indicator for any goods in the form required by the registrar, together with the required fee. It may be viewed as a direct response to Section D, Article 11.29 (RCEP), whereby countries are required to ensure its laws and regulations adequately and effectively protect GI.
Conclusion
Successfully ratifying the RCEP, the world’s biggest free trade agreement, would represent a watershed moment in the process of economic integration for Malaysia. RCEP has created an export market with several prospective, steady, and long-term opportunities for the enterprise system. Additionally, the agreement establishes a legally enforceable framework, assisting in the establishment of a fair playing field for nations. Malaysia, in particular, stands to profit significantly from the RCEP.
For the entire legal system in general, and IP in particular, RCEP does not appear to be a significant challenge for Malaysia, as the Agreement’s commitments are not particularly new and are primarily based on the vision of cooperation for mutual development, as opposed to an imposition of stringent requirements on its members’ legal systems. According to the Singapore Ministry of Trade and Industry, only Singapore and Malaysia met the RCEP’s Chapter 11 minimum criteria, out of ten ASEAN member nations. As a result, Malaysia may take use of this chance to further enhance the country’s legal system, with an eye toward becoming one of the region’s and world’s developed economies.
By Gayathri Sivananthan (Paralegal) and Ameet Kaur Purba (Partner, Intellectual Property Practice Group).