A Harmonisation of Intellectual Property Law in EU and ASEAN

Abstract

This thesis is a comparative study analysing the development of intellectual property (IP) harmonisation in the EU and ASEAN. The purpose of this study is to investigate whether there is a need for ASEAN to harmonise its IP laws at a regional level and, if there is the need, what would be a feasible way for ASEAN to achieve a greater level of IP harmonisation and further develop a harmonised regional IP system. ASEAN had a strong commitment to deepen and broaden economic integration through the establishment of the ASEAN Economic Community (AEC), which enables the free flow of goods, services, capital and workers. The establishment of the AEC in 2015 is considered to be a milestone in ASEAN’s history of moving towards a highly integrated community. Consequently, a harmonisation of the IP laws of the ASEAN members has become more necessary in order to ensure a well-functioning common market and a move towards a highly competitive economic region. IP harmonisation has been prioritised as one of the essential tasks that needs to be accomplished. Notwithstanding, due to the disparities of the member states’ backgrounds, especially in economic, social, and legal aspects, standardising the IP laws of the member states remains challenging.

To examine the prospect of ASEAN achieving a higher degree of IP harmonisation, and thereby be able to propose an appropriate solution for ASEAN to develop a regional IP regime, a comparative approach is required and inevitable, while using the EU as a point of reference. The major factors which are impeding and delaying an IP harmonisation process in ASEAN, the disparities in IP standards among the ASEAN members, the development gap between the older and newer members, and ASEAN’s practice and institutional structure, are discussed. At the end, a strategic plan providing a framework for developing an ASEAN regional IP system is proposed. Firstly, it is suggested that the traditional ‘ASEAN Way’ should be modified in order to serve as facilitator of regional cooperation. Secondly, more assistance from well-off countries in helping less developed members to catch up with the rest of ASEAN is needed to promote prosperity of the region as a whole. Thirdly, national IP laws of the member states should be approximated to be in line with international standards. Fourthly, an ASEAN-wide IP system should be incrementally developed through the combined use of hard and soft laws. Finally, a regional IP court should be established to move towards a more rule-based organisation. This would help ASEAN finally move towards achieving its goals of establishing a well-functioning common market and deepening regional economic integration.