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.
The position within the government bears repeating: the TPP and CETA go beyond international standards and require changes to Canadian law. Indeed, as critics have consistently argued, the Canadian IP approach on the TPP is a loss for Canada. Again, here is what Canadian officials advised Minister Freeland:
Canada provides a high level of protection and enforcement for IP. However, key trading partners such as the United States and European Union can be expected to be critical of Canadian policy, particularly with regard to their export interests in the copyright and pharmaceutical sectors where their view of the appropriate policy balance differs from Canada. Canada is a net importer of IP meaning that there is a net loss on intellectual tech transfer and patent licensing payments as well as a trade deficit in IP-intensive industries.
The briefing continues by acknowledging that Canada has accepted IP requirements that exceed multilateral benchmarks in the TPP and CETA. Officials anticipate that these demands for further change will continue.
What is particularly striking about the briefing materials is that they are entirely consistent with criticism of the TPP and the argument that the IP provisions do not serve Canada’s national interest. Canadian officials plainly state that Canada faces a net loss in technology transfers and patent licensing payments as well as a trade deficit in IP intensive industries. Yet despite the express acknowledgement of the situation by Canada’s own trade officials (and the obvious awareness of Canadian leaders), they not only agreed to those provisions, they expect more of the same in the future.
The tone of the memo is defensive. It puts us in a bad light when it should not.
It says “trading partners such as the Untied States and European Union can be expected to be critical of Canadian policy”
“Be Critical Of” suggests we have done something wrong. In fact, greed on the part of our trading partners is the basis of their complaint.
The correct wording of the memo should have been:
“trading partners such as the Untied States and European Union can be expected to ‘demand the right to gouge us even more by requiring more exploitative changes to’ Canadian policy.”
The document also highlights the ratchet effect. Once we give a concession on IP – extend patent protection for a drug – to any country through one of these trade deals, we must give it to all countries.
The correct analysis then is not how the concession affect our economic balance with the countries in the deal, but with all countries in the world.
These bilateral and plurilateral deals are a mistake. We make small concessions in return for what we think is a unique situation and suddenly the status quo shifts under our feet and we have made the concession everywhere.
The more you know about the Harper government’s trade deals, the worse it gets.
The memo is just addressing the motivation not the validity.
It is saying they can be expected to be critical of our policy because they stand to gain from our loss if we do so rather than any good reason we should listen to.