The day after Canada signed the TPP (and a Leger poll found huge opposition to the agreement’s IP and ISDS provisions), the shift toward consultation and study can continue in earnest. Chrystia Freeland, Canada’s Minister of International Trade, used the signing to emphasize once again that signing is not the same as ratifying and that the government is committed to a robust Parliamentary and public review of the agreement.
The Trouble with the TPP series continues today with another example of the lack of balance in the text. An earlier post noted how in the TPP rights holders’ provision are often mandatory, while those for users are treated as optional. The lopsided approach is also evident in the border measures rules. This week I discussed the expansion of border measures provisions without court oversight, which could lead to customs officials being asked to make difficult legal assessments on whether to detain goods entering the country.
Canadian law currently includes several safeguards to mitigate the risk of detention for importers and other businesses. Given the possibility that detention can be used by competitors to delay entry of legitimate goods into the country, limitations are an important part of any legislative package. For example, Canadian law limits detention periods in the Copyright Act:
Subject to subsection (3), the customs officer shall not detain, for the purpose of enforcing section 44.01, the copies for more than 10 working days – or, if the copies are perishable, for more than five days - after the day on which the customs officer first sends or makes available a sample or information to the copyright owner under subsection (1). At the request of the copyright owner made while the copies are detained for the purpose of enforcing section 44.01, the customs officer may, having regard to the circumstances, detain non-perishable copies for one additional period of not more than 10 working days.
Similarly, Canadian law allows for damages against the copyright owner who commenced proceedings if they are dismissed or discontinued, recognizing the potential harm to a legitimate business:
The court may award damages against the owner of copyright who commenced proceedings referred to in subsection 44.04(3) to the owner, importer, exporter or consignee of the copies who is a party to the proceedings for losses, costs or prejudice suffered as a result of the detention of the copies if the proceedings are dismissed or discontinued.
These safeguards are consistent with provisions found in the TRIPS Agreement, but are not included in the TPP. In fact, Kim Weatherall identifies seven TRIPS border measures balancing provisions that are not found in the TPP.
Proponents of the TPP will argue that there is nothing to stop TPP countries from adding these safeguards to their national laws (as Canada has done in some instances). Yet the benefits of the treaty are supposed to provide Canadian businesses with consistent rules and protections when they sell into other TPP markets. Without mandated safeguards, Canadian exporters face the prospect of unbalanced border measures when they sell IP-related products into the rest of the TPP. As with copyright and patents, the TPP rules move in one direction: more restrictions and few enforceable safeguards or limitations to ensure a balanced legal framework.
(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?)