TPP, RCEP, and the Crossvergence of Asian Intellectual Property Standards

Abstract

The debate on convergence and divergence has garnered considerable attention from policymakers and commentators involved in regulatory developments in Asia. The developments surrounding the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP) have added fuel to this debate. Given the different leadership in these two megaregional agreements and the exclusion of many RCEP parties from the TPP negotiations, it will be interesting to see how the agreements will affect the future efforts to set regional intellectual property standards. It will also be curious to see whether the draft and finalized standards could reveal policy preferences of the participating countries. In January 2017, U.S. President Donald Trump signed a memorandum directing the United States to withdraw from the TPP, putting the megaregional pact on life support. A year later, however, the eleven remaining TPP partners signed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). While this transition instrument suspended some provisions in the TPP intellectual property chapter, many original provisions remain. This chapter begins by examining the regulatory convergence narrative, focusing on efforts to harmonize Asian intellectual property standards through the WTO TRIPS Agreement and TRIPS-plus bilateral, regional and plurilateral agreements. The chapter then turns to the regulatory divergence narrative, discussing the region's inherent nation-based differences, the development considerations involved in developing Asian intellectual property laws and policies, and the growing rivalry between the TPP/CPTPP and the RCEP. This chapter concludes by suggesting that neither the convergence narrative nor the divergence narrative presents a complete and convincing story for a region as large, complex, diverse and internally inconsistent as Asia. Instead, the chapter contends that the region is likely to see "regulatory crossvergence"—a simultaneous convergence and divergence of regulatory standards. Such crossvergence not only has resulted in the region's development of compromising standards but has also been highly indicative of the ongoing and future standard-setting efforts in Asia.