Cooperation in the Pacific Rim by Jakob Polacsek, World Economic Forum (CC BY-NC-SA 2.0) https://www.flickr.com/photos/worldeconomicforum/48179628441

Digital Trade

Reunión-almuerzo con Líderes de APEC que forman parte del TPP by Gobierno de Chile (CC BY 2.0) https://flic.kr/p/Bc8mWf

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.

February 3, 2016 — 7 comments — Columns

Klondike Highway border by James Brooks (CC BY 2.0) https://flic.kr/p/pW8DqP

The Trouble with the TPP, Day 22: Expanding Border Measures Without Court Oversight

The Trouble with the TPP series continues with IP enforcement and border measures provisions, which are illustrative of Jim Balsillie’s concern about Canada’s failure to set its own IP policy. Yesterday’s post noted that the U.S. demanded that Canada provide a report card every six months on its customs activities, meet on the issue whenever the U.S. demands, and face the possibility of a dispute settlement complaint for failing to comply with these rules. The TPP goes further, however, as it will require Canada to create a system to allow for the detention of goods with “confusingly similar” trademarks.

Article 18.76 of the TPP establishes “special requirements related border measures” which includes allowing for applications to detain suspected confusingly similar trademark goods as well as procedures for rights holders to suspend the release of those goods. The required change is striking since Canada just overhauled its rules for border measures under pressure from the U.S. The Canadian approach did not include “confusingly similar” trademark goods, recognizing that such goods are not counterfeit and that requiring border guards (who rarely have legal training) to make exceptionally difficult judgments about whether imported goods violate the law is bad policy.

February 2, 2016 — 1 comment — News

Entering Canada Sign by Jimmy Emerson, DVM (CC BY-NC-ND 2.0) https://flic.kr/p/cB7FRQ

The Trouble with the TPP, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card

This weekend, former Research in Motion co-CEO Jim Balsillie wrote a must-read opinion piece in the Globe and Mail on the TPP. Balsillie makes a compelling case for how Canadian IP policy has failed in light of decisions to consistently cave to foreign pressures:

Starting in the 1980s, Canadian policy makers and politicians blindly bought the narrative lobbied by foreign corporations, first in the pharmaceutical industry and then across all sectors, that stronger IP protection would lead to more domestic innovation and prosperity.

Three decades later, our pharma R&D has declined dramatically and drug prices for Canadian consumers are among the highest in the world. Our largest technology companies are much smaller now than 10 years ago and we have zero growth in innovation outputs over the past 30 years.

We should have learned our lesson by now, and yet the same outdated thinking from the 1980s is back on display from today’s TPP proponents: Focus on aligning our domestic IP laws with the U.S. system and hope for the best. TPP needs to be assessed not for its legal purity or alignment to U.S. laws, but for the economic impacts colonial IP policies have on Canada. After all, Canada has aligned its laws with the United States both directly and indirectly in several international treaties over the past three decades, and our innovation performance always faltered thereafter.

The Trouble with the TPP series has already reviewed how the TPP offers more of the same through policies such as copyright term extension and locking in extended patent protections. The agreement also addresses IP enforcement and border measures, just months after Canada changed its rules to provide more protections and enforcement.

February 1, 2016 — 20 comments — News

Protest at the White House for Net Neutrality by Joseph Gruber (CC BY-ND 2.0) https://flic.kr/p/p294TD

The Trouble with the TPP, Day 20: Unenforceable Net Neutrality Rules

One of President Barack Obama’s selling points for the TPP has been claims that it helps preserve “an open and free Internet.” The references to an open and free Internet, which is closely linked to net neutrality, may strike a chord with those concerned with digital issues. However, the Trouble with the TPP is that a close examination of the text and a comparison with existing net neutrality rules in many TPP countries reveals that it doesn’t advance the issue. In fact, the standards are so weak and unenforceable that at least half of the TPP countries already far exceed them.

Article 14.10 of the TPP provides:

Subject to applicable policies, laws and regulations, the Parties recognise the benefits of consumers in their territories having the ability to:
(a) access and use services and applications of a consumer’s choice available on the Internet, subject to reasonable network management;
(b) connect the end-user devices of a consumer’s choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of a consumer’s Internet access service supplier.

As a starting point, this is not mandated obligation. The TPP countries merely “recognize” the benefits of some net neutrality provisions. For those countries without net neutrality rules, there is no requirement to implement anything in order to comply with the agreement. In fact, if there was any doubt about the lack of enforceability, the entire provision is prefaced by the reference to “subject to applicable policies, and regulations.” In other words, the provision doesn’t advance anything for countries without net neutrality provisions.

January 29, 2016 — 6 comments — News

this, this, and this... by Khoi Nguyen (CC BY 2.0) https://flic.kr/p/6sKxJy

The Trouble with the TPP, Day 19: No Canadian Side Agreements to Advance Tech Sector

The Trouble with the TPP series this week has focused on issues such as the failure to obtain a full cultural exception and the weak e-commerce rules that do little to assist online businesses, particularly small and medium sized enterprises. Yet the Canadian digital failure goes even further. While other countries saw the opportunity to use the TPP to advance their domestic online sector through side agreements, Canada remained on the sidelines. Indeed, as some leading critics such as Jim Balsillie have noted, the Canadian government did little to even consult with Canada’s technology sector.

Consider a side letter on online education between Australia and Vietnam. The side letter opens the door to technical assistance and pilot programs for online education between the two countries, providing for assistance on distance education delivery models, assessing applications from Australian providers to deliver online education, and work to recognize the qualifications obtained from such courses. Moreover, the letter states that:

January 28, 2016 — 1 comment — News