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The Trans Pacific Partnership IP Chapter Leaks: Canada Pushing Back Against Draconian U.S. Demands

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Wednesday November 13, 2013
Wikileaks released an updated version of the secret Trans Pacific Partnership intellectual property chapter this morning (background on the TPP from my appearance before the House of Commons Standing Committee on International Trade earlier this year). The leaked text, which runs 95 pages in length and is current to August 2013, provides a detailed look not only at the chapter - it includes the full text - but also the specific positions being taken by all negotiating countries.

From a Canadian perspective, there is good news and bad news.  The good news is that Canada is pushing back against many U.S. demands by promoting provisions that are consistent with current Canadian law. Canada is often joined by New Zealand, Malaysia, Mexico, Chile, Vietnam, Peru, and Brunei Darussalam. Japan and Singapore are part of this same group on many issues. Interestingly, Canada has also promoted Canadian-specific solutions on many issues. The bad news is that the U.S. - often joined by Australia - is demanding that Canada rollback its recent copyright reform legislation with a long list of draconian proposals.

It is instructive to see how different the objectives of the U.S. are on intellectual property when compared to virtually all other countries. With the exception of the U.S., Japan, and Australia, all other TPP countries have proposed an objectives article (Article QQ.A.2) that references the need for balance, promotion of the public domain, protection of public health, and measures to ensure that IP rights themselves do not become barriers to trade.  The opposition to these objective by the U.S. and Japan (Australia has not taken a position) speaks volumes about their goals for the TPP.

Canada is also part of a large group (which includes New Zealand, Malaysia, Peru, Brunei, Vietnam, Chile, Japan, and Mexico) that opposes a U.S. and Australian demand that all TPP countries ratify ten other intellectual property treaties by the time the TPP takes effect (Article QQ.A.6).  Canada has ratified some, but not all, of the listed treaties.

Canada has also proposed (together with New Zealand, Singapore, Chile, and Malaysia) a principles article that would permit provisions "to prevent the abuse of intellectual property rights by rights holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology."  This principle is reflected in Article QQ.A.9, which safeguards the right of countries to adopt measures to prevent abuse of IP rights and anti-competitive practices from such abuse. The U.S. and Japan oppose this article.

Chile, Vietnam and Peru have proposed an article (Article QQ.A.13) focused on the public domain, including the development of public databases that identify works in the public domain. Canada does not appear to have taken a position on this article.

The majority of chapter focuses on reforms to virtually all aspects of intellectual property including patents, copyright, trademarks, and geographic indications. There are also detailed proposals for Internet enforcement, including liability of Internet service providers. These require careful study and I will examine them in subsequent posts.
Comments (15)add comment

anonymouse said:

mickey
Thanks for the information Michael. Look forward to further reading on the subject.
November 13, 2013

Mouny said:

'Murica!!
Guess who is up to their old tricks again.
November 13, 2013

wd said:

...
I've always wondered when the Canadian public would wake up....seems like they never will....so many environmental issues to deal with, and all the politicians seem to care about is obeying their corporate masters. There is a solution though....QUIT CONSUMING....good luck on that one.
November 13, 2013

sdfad said:

...
So is Canada pushing against the extension of the life +50 years to life+75 years before a work becomes public domain?
November 13, 2013

Devil's Advocate said:

@wd:
"I've always wondered when the Canadian public would wake up....seems like they never will..."

Public?? All these "trade deals" are conducted completely out of the Public view. Only when information gets leaked to us, do we see anything at all. The Public is not given any opportunity to actually read any formal drafts, let alone vote on what gets finalized.
November 13, 2013

Chris Brand said:

Shocking
So who's surprised that the US is opposed "to prevent[ing] the abuse of intellectual property rights by rights holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology." ? That's pretty much the business model of the people telling the USTR what to do...
November 13, 2013

Ray said:

...
We owe the usual debt of thanks to Wikileaks.

From the material released Canada does seem to be pushing back against the excessive demands of the US, but I can't muster enough confidence in the Harper government to believe that they will stick to their positions.
November 13, 2013

Ravi said:

...
Thanks for the update with underlying critical insights. Looking forward for the further discussion.
November 13, 2013

Sarge Misfit said:

Sahring
Thanks, Michael. Good to know that Canada isn't buckling to the US. Doctors Wihtout Borders has also responded: http://www.doctorswithoutborde...field-news

I've been sharing this and other responses across social media.
November 13, 2013

Concerned said:

We don't know
While it currently looks like Canada is resisting, don't forget that there are still a few open issues with the US, for instance the Keystone XL pipeline.

The question is: can the US Copyright Industry use their enormous political power to bear on these issues, and can their Canadian Resource Industry brethren do the same on our side of the border?

We can see a growing divide between North America (US more so than Canada) and Western Europe. It was refreshing to see that under "copyright reform" a group of European politicians (of mixed political backgrounds) understand legalizing file sharing for personal use, not "reform" as in: tightening the thumbscrews even further.

TPP should be stopped, so much is certain.
November 14, 2013

Dwight Williams said:

Oh, we're awake alright...
...but whether that's going to be allowed to matter is a matter being argued. At length, it seems.
November 14, 2013

Bruno said:

Add your voice
Open Media is hosting a petition/letter regarding the TPP which you can view and sign here:

https://openmedia.org/censorship?utm_source=131114blast&utm_medium=email&utm_campaign=tppleak
November 14, 2013

kevin said:

Good
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November 16, 2013

John Casey said:

I Dont Care
Good or bad, but I think there is more bad, I don't care, bottom line, this deal was created in secret. We as Canadians have to stand up to politicians governing in secrecy and shoving bills through the system they know damn well are not popular to the general population. Same thing happened in the U.S. with the patriot act. It is time we all yell in one voice NO MORE! We pay for the government, the government is supposed to serve it's citizens, not corporations and special interest groups with deep pockets. If a policy that benefits a corporation is truly in the best interest of the countries citizens, then explain it to us and let us decide. For example, the XL pipeline, explain what will happen if it is not built, explain the benefits to us if it is built. Should be simple if it is more beneficial than detrimental, right? Don't BS and say things like the TPP will be beneficial to us, and by us you mean people like yourself, investors. Tell us how TPP will be beneficial to people with jobs and people who like clean air and water. Yea, can't say it with a straight face can ya?!?! I advise everyone to watch the documentary Death by China 2012 and then decide if how free trade has been handled so far is in our best interest before passing judgement on TPP.
November 19, 2013

Star said:

How Devious....
It's not a coincidence that they leak the single chapter that was already leaked (and have reformed it some)....Where's the rest of this heinous draconian treaty which is nothing more than a corporate constitution for subjugating the world.
November 21, 2013

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