Reunión-almuerzo con Líderes de APEC que forman parte del TPP by Gobierno de Chile (CC BY 2.0)

Reunión-almuerzo con Líderes de APEC que forman parte del TPP by Gobierno de Chile (CC BY 2.0)


The Trouble With the TPP, Day 23: On Signing Day, What Comes Next?

Later today, the 12 countries that make up the Trans Pacific Partnership, a massive global trade deal that includes Canada, the United States, and Japan, will gather in New Zealand to formally sign the agreement (the official signing day is February 4th, but with time zone differences, the signing ceremony starts at 5:30 pm ET on the 3rd). Signing the TPP is a major step forward for the controversial treaty, but questions still abound over whether it will be ratified and take effect. The Trouble with the TPP series, which I initially planned to wrap up today having examined issues ranging from copyright term extension to the weak cultural exception, takes a one-day break from substantive concerns to focus on the future. However, given that there are still some important issues to be considered, the series will continue well into this month.

While the Liberal government has been cautious about expressing its support – International Trade Minister Chrystia Freeland has been consistent in calling for consultation not conclusions – the decision to sign the TPP was never much in doubt. The agreement contains incentives to be an “original signatory”, since only those countries qualify for the rules related to entry into force of the agreement. To stay on the sidelines at this early stage might have kept Canada out of the TPP for good.

Moreover, as Freeland emphasized in a public letter released last week, signing a treaty does not create binding legal obligations. Indeed, Canada has a fair number of international treaties that it has signed but not ratified, including a 1988 Convention on International Bills of Exchange and International Promissory notes. The same is true for the United States, which has signed the United Nations Convention on the Rights of the Child, but has not ratified it.

The big question was never whether Canada would sign, but rather what comes next. The TPP will not take effect for at least two years, giving the government ample time to engage in the consultation and study that was largely absent during a negotiation process that was notable primarily for its secrecy. Proponents of the TPP will urge the government to implement quickly, yet there is no advantage to do so and considerable risk that Canada would bear the costs of the agreement without ever realizing the benefits.

Freeland and her Parliamentary Secretary David Lametti have already engaged in more public consultations on the TPP in two months than the Conservative government did during years of negotiations.

My weekly technology law column (Toronto Star version, homepage version) notes that there is far more work to be done.

First, Canadians must understand the costs and benefits of the TPP in order to provide useful feedback. The government summaries released last fall frequently present a misleading picture of the agreement. For example, the documents claim that Canada secured a broad exception for the cultural industries. However, on closer inspection it turns out that Canada did not get a full cultural exception as the TPP mandates unprecedented restrictions on policies to support the creation of Canadian content.

The shocking cultural restrictions are the tip of the TPP iceberg. The summaries on copyright and patent reform fail to mention significant legislative changes that would could raise education and health care costs. There is no reference to the privacy implications of the deal and no acknowledgement that other countries obtained protections not granted to Canada. The government should go back to the drawing board to present a more balanced, accurate picture of the agreement and its implications for Canada.

Second, the Liberal government should conduct the economic and legal studies that were seemingly missing from the negotiations. Unlike countries such as New Zealand that have estimated the costs of some TPP reforms, Canadians have been left to guess at the real price of the agreement. In fact, several recent reports have projected very modest benefits for Canada that rank among the lowest in the TPP.

Third, the government’s emphasis on transparency must extend to the TPP consultations. That requires more than just listing consultation events or inviting the public to email their views. There should be public events streamed online and outcomes from other meetings should be posted online. Moreover, Canadians should have access to consultation submissions (with individual privacy protected as desired) to allow them to better gauge the public response.

Fourth, the TPP consultation should go beyond whether to support or reject the deal. Walking away remains a possibility, but if the agreement moves toward ratification, the government should explore flexibilities within the treaty or negotiate side letters to limit the negative consequences. Moreover, a late push to revisit issues such as dispute resolution (as is happening with the Canada – European Union agreement) should remain on the table. Even as Canada signs the TPP, implementation remains far from a done deal.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight)


  1. Pingback: Singpolyma » What happens after Canada signs the #TPP?

  2. Tainted Witness says:

    Good entry to the series. Glad to hear there’s still more to come.

  3. As Balsillie noted, in a few decades “possession of intellectual property will be the only competitive advantage for nations and businesses.” Our advantage is that a startup in Canada can advance the practice of cultural curation and sharing with unique exceptions to copyright, without fear of criminal penalty, and without risk of losing their domain at the mere accusation of infringement. The Periscopes and Yik-yaks and Kiks of the future won’t stand a chance under this TPP regime.

    If we are to consider this we should consult not only with those in the business of trading physical goods, or those who have established portfolios of patents and copyrights, for they will naturally be more or less in accord with the TPP. Instead we should consider all of the ways in which the freedoms that we stand to lose here could, in the future, bring us first-mover advantage, and the intangible advantage of the respect and admiration of the world for the stand we took.

    At this juncture, let me thank you again, Professor, for being the voice we needed.

  4. Devil's Advocate says:

    I don’t see anyone asking, “What happened to that public discussion?”

    The “official text” was released 90 days before signing was to happen, with the stated purpose of giving 90 days to allow public debate about aspects of the agreement. Well, that 90 days has passed, and no meaningful public debate has been sought after, nor arranged, and the TPP is being signed.

    I sincerely hope that people start insisting on inserting their input, before this thing gets ratified.

  5. THE TPP, like copyright, will choke+kill more than it develops.
    irrelevant rant follows…

    money is the root of all evil here…
    and the underground eco has quietly disappeared into the background.
    the cashless society (trade, barter + manufacturing)

    you CAN get better in the parking-lot. (pot meds, linux, entertainment)

    so why have I got steam-power machine guns in mind?
    line of sight rail guns
    (bb ammo, nifty. home made supercapatiors, 7.2 ,miles range.)

    Time to look for new com systems again. what are the refs-from-the-ghettos
    using for pron?

    that’s the TPP buster.

  6. Michael writes: “Canadians must understand the costs and benefits of the TPP in order to provide useful feedback.”
    A Canadian Press report yesterday noted: “That signature comes before the government has finished assessing the economic costs and benefits the deal potentially holds for Canada, she (Freeland) acknowledged.”
    U.S. physicist and TPP critic Stan Sorscher notes: “Trade agreements are about so much more than trade. They also serve as political, social, cultural and moral documents, which set political and social standards for countries and communities.”
    Three viewpoints with considerable implications for the selection of an assessment approach to tease out the pros and cons of the TPP. Is it to be as yet undefined “costs and benefits”, or solely “economic costs and benefits” or a qualitative and quantitative assessment of the extent to which the TPP serves “political, social, cultural and moral values and sets political and social standards”?
    A little clarity would help.

    • Devil's Advocate says:

      “A little clarity would help.”

      And clarity is something that we’re obviously being denied, in order to keep the inconvenient truth from becoming a problem.