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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The intersection between the TPP and Canadian cultural policies is likely to emerge as one of the more controversial aspects of the TPP, particularly given the government’s emphasis on a stronger cultural policy in its election platform. Earlier in the Trouble with the TPP series, I wrote that the TPP fails to protect Canadian cultural policy. I pointed to U.S. lobby pressure to limit Canadian protection of cultural policies as well as provisions that restrict Canada’s ability to consider expanding Cancon contributions to entities currently exempt from payment. I have not been a supporter of mandating Cancon contributions to online video provides such as Netflix, but restricting Canada’s right to do so in a trade agreement is shortsighted, bad policy.
Peter Grant has written a careful response to my post on Barry Sookman’s blog. He argues that Canada can still “maintain or enhance our cultural policies.” He opens by stating that “I am not entirely wrong” about the TPP being a departure from Canada’s traditional approach to culture in trade agreements. However, he argues that the TPP approach is not unique since the Canada – EU Trade Agreement adopts a similar approach. Yet CETA contains numerous cultural exceptions within the chapters for Cross-Border Trade in Services, Domestic Regulation, Government Procurement, Investment, and Subsidies. In the TPP, there are only seven provisions in the entire agreement that are subject to the cultural exception and many of the issues addressed by CETA are not covered. Further, the TPP has exceptions to the cultural exception not found in CETA and (as Grant notes) Canada did not get an explicit exception to allow for measures to allow domestic audio-visual content to be reasonably available as did Australia.
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This week’s signing of the TPP in New Zealand provides a useful reminder that a potential ratification means committing to far more than just one (very large) trade agreement. One of the Troubles with the TPP is that the intellectual property chapter requires all countries to ratify or accede to as many as nine international IP treaties. In other words, the treaties within the treaty are a core part of the obligations that come with TPP.
Article 18.7 specifies that all countries have already ratified or acceded to three IP treaties: the Patent Cooperation Treaty, Paris Convention, and Berne Convention. More notably, there are as many as six additional treaties that must be ratified or acceded in order to ratify the TPP:
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Last month, I wrote about the battle over the future of broadband in Canada with Toronto Mayor John Tory and Ottawa Mayor Jim Watson writing to the federal cabinet to support a Bell appeal to overturn a CRTC decision designed to foster increased competition for fast fibre Internet services. On the CRTC ruling, I noted that:
The upshot of the ruling was that companies such as Bell would be required to share their infrastructure with other carriers on a wholesale basis. The companies would enjoy a profit on those wholesale connections, but the increased competition would facilitate better services, pricing, and consumer choice. Indeed, the policy approach is similar to the one used for slower DSL broadband connections that has been instrumental in creating a small but active independent ISP community that serves hundreds of thousands of Canadians.
Bell marshalled opposition to the CRTC decision, including letters from Tory and Watson. By contrast, the City of Calgary and its mayor, Naheed Nenshi, filed a lengthy submission supporting the CRTC approach.
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I appeared yesterday on Bloomberg Television to discuss the impact of the TPP on Canadian intellectual property law. The discussion focused on the need for consultation and to take a closer look at the provisions in the agreement.
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