This chapter examines the efforts to set intellectual property standards in the Asia-Pacific region through the development of the Trans-Pacific Partnership (TPP), the Regional Comprehensive Economic Partnership (RCEP), and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). It begins by examining the regulatory convergence narrative, focusing on efforts to harmonize Asian intellectual property standards through the Agreement on Trade-Related Aspects of Intellectual Property Rights (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 satisfactory story for a region as large, complex, and diverse 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.
Peter K. Yu
The history of intellectual property laws in China is a history of legal transplants. From the introduction of intellectual property laws during the late Qing dynasty and the Republican era to the recent laws and amendments adopted by the People’s Republic, legal transplant was the primary means by which the modern Chinese intellectual property regime was established. This chapter begins with a brief history of the transplant of intellectual property laws in China. It then examines the drawbacks and benefits of legal transplants. The chapter further discusses four key questions that policymakers should consider when transplanting laws from abroad. The answers to these questions, in turn, may result in not only the transplant, but also transformation, of these laws. Although this chapter focuses on China, the discussion here is likely to be relevant to other jurisdictions.
Peter K. Yu
Since its inception, copyright law has been developed around the concept of “copy”. Although copyright began mostly as a right vested in copies, and therefore a right to prevent others from multiplying copies, the emphasis has now been dramatically shifted to the act of copying itself. The terms “copy” and “copies” have also been slowly re-conceptualised to respond to changing technology and to expand the scope of copyright protection. The first half of this chapter takes a historical perspective. It recounts the use of the concept of “copy” by the Stationers’ Company and in the Statute of Anne. It also addresses two different sets of challenges to this foundational concept: (1) the US Supreme Court case of White-Smith Music Publishing Co v Apollo Co and (2) the efforts in the mid-1990s to update the concept to meet the needs of the digital environment. The second half of this chapter is forward-looking. It examines four areas in which digital technology has posed major challenges to the concept of “copy”: reproduction, distribution, public performance and making available. The chapter concludes with six observations concerning the future development of copyright law in the digital environment.
Peter K. Yu
In recent years, Australia, Canada, the United States, Ireland, the United Kingdom and other members of the European Union have been busy exploring ways to modernize their copyright laws. In many of these jurisdictions, new copyright exceptions have been introduced or proposed to promote internet users’ access to digital content. Meanwhile, the copyright industries have uniformly opposed the introduction of these exceptions. This chapter scrutinizes seven of the industries’ most widely used arguments. Drawing on examples from digital copyright reform in Hong Kong and other jurisdictions, the chapter explains why the industries’ arguments have thus far been unconvincing. It also calls on policymakers and legislators to critically evaluate these arguments, lest they lead to wrong policy choices that harm internet users and the public at large.
Peter K. Yu
This chapter examines China’s rise in the international intellectual property regime. It begins by revisiting the typology scholars have used to chart the progress a country has made in its engagement with international norms: (1) norm breaker; (2) norm taker; (3) norm shaker; and (4) norm maker. Although China has been widely considered a norm breaker or a norm taker in the intellectual property arena, it has now slowly taken on the roles of both a norm shaker and a norm maker. This chapter then examines three notable developments that have enabled China to shape future international intellectual property norms: (1) the negotiation of free trade agreements; (2) the development of the Regional Comprehensive Economic Partnership; and (3) the establishment of the Belt and Road Initiative. The chapter further explains why China has now assumed a more assertive role in the intellectual property arena. It concludes by identifying four sets of questions for future research.
Peter K Yu
This chapter critically examines the intellectual property rights holders’ growing use of investor-state dispute settlement (ISDS) to resolve international intellectual property disputes. It begins by highlighting the criticisms of ISDS, including those that are related to the arbitration process, the arbitrators’ interpretations and final arbitral outcomes. The chapter then examines the various upgrades that the Trans-Pacific Partnership Agreement has provided to the ISDS mechanism. It concludes by outlining the conceptual and institutional improvements that could strengthen ISDS.