The intellectual property chapter has not been a focal point of the NAFTA negotiations this week in Montreal, but the successful conclusion of the TPP11 (or CPTPP) serves as a reminder that it is likely to emerge as a contentious issue in the months ahead. The U.S. position on the NAFTA IP chapter is clear: it wants to replicate the original TPP IP chapter. Yet Canada now stands opposed to that chapter having backed the suspension of many of its provisions including copyright term extension, digital locks, notice-and-takedown, patent protections, biologics protections, and pharmaceutical plan rules. In fact, Prime Minister Justin Trudeau this week cited changes to the IP provisions as one example of how the government worked to make the TPP more progressive.
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Don’t Make the TPP Mistake Again: Why Canada Needs to Maintain a Progressive Approach on IP in NAFTA
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.
While the NAFTA negotiations in Montreal were expected to be the lead trade story this week, the Trans Pacific Partnership talks in Tokyo have stolen the show with the remaining 11 countries reaching agreement on a deal that is likely to be signed in March. Canada faced intense criticism last year from some TPP partners (particularly Japan and Australia) over its demands to address concerns with the agreement. That sparked some Canadian business groups to quickly call on the government to simply cave in order to conclude a deal. Global Affairs Minister Chrystia Freeland and International Trade Minister François-Philippe Champagne rightly argued that capitulation is not a negotiating strategy and they now come away with an improved (albeit still flawed) agreement.
Canadian Position on Data Localization Rules in Trade Deals Revealed: Protection for Government Data Only
Data localization rules, which require data to be stored locally, have emerged as an increasingly popular legal method for providing some additional assurances about the privacy protection for personal information. Although heavily criticized by those who fear that it harms the free flow of information, requirements that personal information be stored within the local jurisdiction is an unsurprising reaction to concerns about the lost privacy protections if the data is stored elsewhere. Data localization requirements are popping up around the world with European requirements in countries such as Germany, Russia, and Greece; Asian requirements in Taiwan, Vietnam, and Malaysia; Australian requirements for health records, and Latin America requirements in Brazil. Canada has not been immune to the rules either with both British Columbia and Nova Scotia creating localization requirements for government data.
Bursting the IP Trade Bubble: Canada’s Position on IP Rules Takes Shape With Suspended TPP Provisions
In the months following the conclusion of the Trans Pacific Partnership, critics pointed to many specific problems in the text with respect to intellectual property, culture, privacy, and dispute resolution. TPP defenders consistently dismissed those concerns, yet last week’s successful Canadian demand to suspend many of the most problematic IP provisions (along with holding out for reforms to the cultural exemption) confirms that the government has recognized the validity of the criticisms. The government may yet cave to U.S. pressure in the NAFTA renegotiation, but it has established a clear position on culture and IP that better reflects the national interest.