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.
From a Canadian perspective, the end of the TPP should mean renewed efforts to negotiate bi-lateral trade agreements with Japan, India, and other leading Asian economies. While those agreements could result in more traditional trade agreements focused on tariff reduction, the U.S. trade relationship seems likely to be dominated by the possible renegotiation of NAFTA. No one is sure if Trump will really demand a NAFTA renegotiation, but Canadian Ambassador to the U.S. David McNaughton has already said that Canada is prepared to talk about revisiting aspects of the 1994 agreement.
If NAFTA is reopened, the U.S. will likely use the opportunity to reinsert the TPP intellectual property provisions into the agreement. NAFTA contains some IP provisions, but it is not nearly as detailed or prescriptive as today’s typical U.S. trade deal which place an enormous emphasis on exporting U.S. copyright rules, expanding patent protections, and increasing IP enforcement provisions. Consistent with those policy goals, the TPP contains IP rules that would require amendments to Canadian law, notably extension in the term of copyright, patent law changes, expanded border measure rules, criminalization of trade secret law, and trademark reforms.
The TPP may be stalled for now, but a re-opening of NAFTA would likely be used by Trump Administration to advance the same IP policies (which some in the U.S. argue do not go far enough). In other words, when it comes to IP and digital policies, a new NAFTA could become Canada’s own private TPP.