The U.S. Trade Representative is conducting a hearing today on the Special 301 report, its annual list of countries it claims have inadequate intellectual property protections. Several countries will appear alongside many lobby groups. I’ve previously posted on how the report from the IIPA, which represents the movie, music, software and publishing industries, badly misstates Canadian law. Indeed, with recent court decisions, Canada now has one of the toughest anti-piracy rules in the world.
I recently obtained documents under the Access to Information Act that confirm the Canadian government’s rejection of the Special 301 process. Canada will not bother appearing today largely because it rejects the entire process. According to a memorandum drafted for Canadian Heritage Minister Melanie Joly after last years’ report:
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President-Elect Donald Trump has ended any further speculation about the future of the Trans Pacific Partnership by announcing that he plans to formally withdraw from the agreement on his first day in office. I’ve written extensively about why ratification for Canada would be a mistake and argued last week in the Globe that Canada should use the death of the TPP as an opportunity to re-examine its approach to trade agreement negotiations including working toward greater transparency, focusing on tariff reduction rather than regulations, and dropping controversial ISDS provisions.
The need for Canada to wait on the U.S. has been readily apparent for months. As currently structured, the TPP cannot take effect without the U.S. since entering into force requires ratification by at least six signatories who represent at least 85 percent of the GDP of the countries in the original deal. That provision effectively gives both the U.S. and Japan veto power. With the U.S. pulling out, the agreement will not enter into force no matter what Canada (or anyone else) does.
The central role of the U.S. in the TPP is no accident. For most TPP countries, access to the U.S. market was the primary reason for entering into the agreement and as Japanese Prime Minister Shinzo Abe said over the weekend, “the TPP would be meaningless without the United States.” Indeed, the reason Canada, Japan, and Mexico all joined the TPP talks late was that without a clear commitment from the U.S., the agreement was of limited value.
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Donald Trump’s stunning win of the U.S. Presidency on Tuesday night has sparked numerous articles speculating about the implications for various policies and issues. Given how little Trump said about digital policy, predictions about telecom or IP policy are little more than educated guesses. Trade policy was a major Trump issue, however, as his opposition to the Trans Pacific Partnership and vow to renegotiate NAFTA was repeated at virtually every campaign stop. Senate Majority Leader Mitch McConnell confirmed yesterday that the TPP would not be brought up for a vote this year, leaving Trump to decide on its future. Officials in other TPP countries such as Australia, New Zealand, and Malaysia have now acknowledged that the TPP is likely dead.
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Supporters of the TPP have been at pains to argue that the agreement is largely business as usual, reflecting standards and approaches that are already commonly found in existing Canadian law and agreements. Yet according to a document obtained under the Access to Information Act, that is not how government officials describe the TPP in their own analysis. Internal analysis drafted in late August 2015 shows officials described the IP chapter as covering “a much broader scope of issues than any recent Canadian FTA” and noting that the TPP goes beyond agreements such as TRIPS and NAFTA.
Indeed, here is how the IP chapter was described by Canadian officials weeks before an agreement was formally concluded:
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Today is World IP Day, which marks the creation of the World Intellectual Property Organization. Canadian policy has long preferred the use of international bodies like WIPO to advance its IP objectives, yet the intellectual property provisions in recently concluded trade deals such as the TPP and CETA run counter to Canadian strategy. That isn’t just the opinion of the many critics of those agreements. It is what government officials told International Trade Minister Chrystia Freeland as part of her briefing materials.
The briefing document on intellectual property and the trade agenda, released under the Access to Information Act, leaves little doubt that trade officials are well aware that the Canadian position on IP in the TPP is inconsistent with our preferred position and that it will lead to IP trade deficits. The document states:
Canada’s preferred strategy is to establish international IP rules through multilateral forums such as the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). However, in the context of the Canada-EU Comprehensive Economic Trade Agreement (CETA) and the Trans-Pacific Partnership (TPP), Canada negotiated trade obligations that, while reflective of recent domestic reforms, are beyond those standards set through multilateral forums, and which will likely require amendments to domestic practice, such as in the areas of geographical indications (GIs) and patent protection for pharmaceuticals.
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