In June 2016, I appeared at one of the government’s public town hall meetings on the TPP. Alongside then-International Trade Minister Chrystia Freeland (now Global Affairs minister), C.D. Howe’s Daniel Schwanen, and Unifor’s Jerry Dias, I had the chance to raise concerns with the TPP’s IP and e-commerce provisions and then hear from dozens of people who raised a wide range of issues. The town hall was part of a broad public consultation that was frequently derided by critics as a stalling tactic, yet the impact of the consultation was felt with yesterday’s announcement of a deal on a slightly re-worked TPP that includes suspension of many of the most controversial IP provisions.
The consultation ran for months, but data released under the Access to Information Act from the period from November 2015 to June 2016 indicate that the government received over 18,000 emails during that period alone, the majority of which were sent through OpenMedia and emphasized concerns with intellectual property, e-commerce, and ISDS. Of the remaining emails, the top two concerns were ISDS and intellectual property.
It does not appear that the inclusion of IP and ISDS rules on the list of suspended TPP provisions is coincidental. Prime Minister Justin Trudeau cited changes to the IP provisions in his Davos speech as one example of how the government worked to make the agreement more progressive, a positive signal for future copyright reforms given the implicit acknowledgement of the problems with copyright term extension and digital locks. Moreover, International Trade Minister François-Philippe Champagne specifically referenced the public feedback yesterday within the context of the IP changes to the TPP, noting the “suspension of many intellectual property provisions of concern to Canadian stakeholders.” The “stakeholders” is the broader public that responded to the consultation and the statement should be viewed as an admission that the results of those efforts had an impact on government policy.
The combination of suspended provisions and the side letter addressing concerns over a less-than-complete cultural exemption demonstrate the importance of reading the fine print in trade deals and largely ignoring government talking points designed to drum up public support. The Conservative government materials on the TPP dismissed many of the concerns raised by the public. After the text was released, I wrote a 50 part blog series on the trouble with the TPP with more than a dozen posts directly focusing on provisions that are now suspended or the subject to amendment via side letters.
The Liberal government inherited a flawed agreement and even with the changes, the TPP (or CPTPP) remains a flawed deal. Indeed, in my area, there are serious problems with e-commerce chapter and its weak privacy protections and potential barriers to data localization and data transfer rules. Others have pointed to concerns with the labour provisions and the rules pertaining to the auto sector. However, it is a better deal than the one the government was stuck with on election day.
Further, there is no reason to be naive. The government likely wanted to put its own stamp on the deal and the IP provisions found a receptive audience among many other TPP countries. The cultural changes will play well politically in parts of the country. Despite insistence that the TPP and NAFTA are separate deals, the government may have also wanted to strengthen (not weaken as some have speculated) its negotiating position on NAFTA by suspending IP provisions that could yet re-appear in that agreement. It should also be noted that the government is also far from perfect on consultation given the insider access to NAFTA information it has granted to select business groups. In other words, the trade file and the TPP have considerable room for improvement.
With all that said, give credit where credit is due. The government said it wanted to hear from Canadians on the TPP and it established multiple venues for feedback. Thousands took the opportunity to speak out and some of what they said became reflected in the government’s negotiating position and the final agreement. That makes for a better deal and provides a valuable reminder that sometimes consultations count.