Geographical indications (GI) are signs used on goods – frequently food, wine, or spirits – that have a specific geographical origin and are said to possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Given the quality associated with the product, proponents of GI protection argue that it is needed to avoid consumer confusion as well as to protect legitimate producers.
Europe has the most extensive geographical indication protections in the world. These include Protected Designation of Origin (PDO), which covers agricultural products produced, processed and prepared in a given geographical area using recognized know-how; Protected Geographical Indication (PGI), which covers agricultural products linked to the geographical area; and Traditional Speciality Guaranteed (TSG), which highlights traditional character, either in the composition or means of production.
The net effect of the European system is that hundreds of items enjoy special legal protection.
What does this have to do with the TPP?
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The ongoing financial struggles of Canadian businesses that have traditionally delivered the news – particularly newspapers and local broadcasters – have generated considerable discussion and consternation over the past month. With significant layoffs, newspaper closures, and testimony before Canada’s broadcast regulator that the cost of delivering local news is unsustainable, there have been mounting calls for new funding programs, studies, or other measures to address the issue.
My weekly technology law column (Toronto Star version, homepage version) notes that much of the commentary emphasizes the critical link between a strong, independent media and holding governments at all levels to account for their actions. While there is little debate over the essential role of journalism, the tougher question is whether emerging digital alternatives can provide an effective substitute.
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This week’s lengthy Trouble with the TPP post focused on the likelihood that efforts to require online video providers to pay mandatory Cancon contributions would be challenged under the TPP. While I am not a supporter of extending contributions to companies like Netflix, including such a restriction within a trade agreement is bad policy. Today’s post continues with the culture theme, by examining the risk that other new policy innovations might also be stymied by the TPP.
The Globe and Mail’s Kate Taylor recently wrote a column arguing that Canadian cultural production is in crisis and calling for reforms to address the issue. For example, Taylor cited the possibility of tax credits for advertising on websites that meet a Canadian content threshold similar to the policy for television and radio broadcasters. ACTRA has long called for a similar policy, noting the benefits of tax deductions for advertising on Canadian-owned websites that give prominence to Canadian content.
But would such a policy pass muster on the TPP? It’s not totally clear that it would.
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Yesterday’s Trouble with the TPP post examined some of the uncertainty created by the surprising e-commerce provision that involves restrictions on source code disclosures. KEI notes that governments have not been shy about requiring source code disclosures in other contexts, such as competition worries. Yet this rule will establish new restrictions, creating concerns about the implications in areas such as privacy. For example, security and Internet experts have been sounding the alarm on the risks associated with exploited wifi routers and pointing to source code disclosures as potential solution.
Dave Farber, former Chief Technologist of the Federal Communications Commission, warns:
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Another Trouble with the TPP is its foray into the software industry. One of the more surprising provisions in the TPP’s e-commerce chapter was the inclusion of a restriction on mandated source code disclosure. Article 14.17 states:
No Party shall require the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory.
The provision is subject to some limitations. For example, it is “limited to mass-market software or products containing such software and does not include software used for critical infrastructure.” The source code disclosure rule is not found in any other current Canadian trade agreement, though leaked documents indicate that it does appear in a draft of the Trade in Services Agreement (TISA).
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