Provisions on intellectual property in ASEAN free trade agreements: Issues and implications in policy and implementation

ASEAN, a latecomer to extra-ASEAN free trade agreements, has concluded six bilateral agreements with seven of its dialogue and trade partners; it is negotiating a mega, plurilateral agreement currently. Notably, ASEAN’s free trade agreements with East and South Asian partners have no specific provisions on intellectual property. This is among the many policy and technical areas reserved for mutual economic cooperation and facilitation. In the agreement between ASEAN and Australia plus New Zealand, however, several provisions on intellectual property carry higher standards of protection. But these clauses are not always erroneous, far and few in number, and limited mainly to copyright and related rights. In addition, the related stipulations give due account to the significant differences in parties’ domestic development and institutional capacity, and in national legal systems and practices. ASEAN’s approach represents thus far a ‘middle’ or a ‘third’ way in the design of free trade obligations and commitments on intellectual property between developed and developing countries. In these contexts, however, intellectual property creativity and innovations in ASEAN deserve greater emphasis in the crafting of future free trade agreements as well as in the implementation of collaborative activities under the current agreements.