Issues, Constraints and Practical Options
Edited by Sisira Jayasuria, Donald MacLaren and Gary Magee
Chapter 8: Intellectual Property in a Possible China–Australia Free Trade Agreement
Kimberlee Weatherall INTRODUCTION Intellectual property (IP) laws – laws which grant and protect copyright, patent and trade mark, among other rights – are laws designed chiefly to promote creativity and innovation by providing creators and inventors with exclusive rights. A key feature of IP laws is that they are national in scope: patents or trade marks, for example, must be registered (and, if necessary, enforced) separately in each country where exclusivity is sought. IP law and the systems for registration and enforcement also vary from country to country. These facts create complications for IP-intensive and innovative industries, which have since the early 1980s pressed for the raising and harmonization of IP standards via trade negotiations. Today, countries negotiating bilateral trade agreements face several questions: should IP be included? If so, what, of the several kinds of IP provisions which could be included, will be useful? As this chapter shows, these issues are particularly complex and interesting in a negotiation between two countries such as Australia and China. From an Australian perspective, while IP-raising provisions may not be attainable, a more realistic, and still helpful alternative is to focus on creating obligations in dispute resolution and cooperation which are as specific as possible, and which seek to ensure that Australian IP owners are not disadvantaged by any future negotiations which China may have on IP matters with other, more powerful countries. THE INCLUSION OF IP PROVISIONS IN BILATERAL FREE TRADE AGREEMENTS: MAPPING THE POSSIBILITIES A question which commentators, particularly economists, often ask is...
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