The debate over the merits of the Trans Pacific Partnership is likely to play out in Canada and other TPP countries throughout 2016. While it seems likely that the treaty will be signed in early February (February 4th is the earliest possible date for the U.S. to sign), decisions on whether to ratify the agreement will extend into 2017 and beyond. I’ve already posted some thoughts on the TPP’s digital policy implications (and spoken about the issue in this speech and on this panel) but wanted to expand on the trouble with the TPP in more detail. With that goal in mind, I plan to post each weekday until February 4th on problems associated with the TPP. The series will include posts on copyright, privacy, Internet governance, and many other issues.
The Trouble with the TPP series starts with the slimmed down objectives of the intellectual property chapter. Leaked versions of earlier drafts shows that most TPP countries (including Canada) were supportive of expanded objectives that emphasized balance, the public domain, and timely access to affordable medicines. The full objectives provision, supported in full or in principle by New Zealand, Chile, Peru, Vietnam, Brunei, Malaysia, Singapore, Canada, and Mexico stated:
The objectives of this Chapter are:
- enhance the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the [PE: generation,] transfer and dissemination of technology and trade;
- reduce impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights, taking into account the different levels of economic development and capacity as well as differences in national legal systems;
- maintain a balance between the rights of intellectual property holders and the legitimate interests of users and the community in subject matter protected by intellectual property;
- protect the ability of Parties to identify, promote access to and preserve the public domain;
- ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;
- promote operational efficiency of intellectual property systems, in particular through quality examination procedures during the granting of intellectual property rights.]
- the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
- Support each Party’s right to protect public health, including by facilitating timely access to affordable medicines.]
This balanced list of objectives was opposed by the U.S. and Japan. The final text indicates that Canada and the rest of the TPP caved on the issue with only one objective surviving as Article 18.2:
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
The final objectives provision removes references to maintaining balance across all IP rights, the legitimate interests of users, promoting access to and preserving the public domain, ensuring that IP rights do not create barriers to legitimate trade, and facilitating access to affordable medicines (there are references to some of these issues elsewhere within the text but not in the objectives provision and often with more limited language than the original proposal).
The objectives provision may not carry the same weight as positive obligations in the treaty, but they are important, reflecting the goals of the negotiating parties and providing a lens through which all other provisions can be interpreted. Canada and many other countries wanted to ensure that the lens promoted maintaining a balance between rights holders and users on all IP provisions. The exclusion from the objectives provision sets the tone for the IP chapter and highlights how user interests and the priorities of countries such as Canada were given limited weight within the final text.