Cooperation in the Pacific Rim by Jakob Polacsek, World Economic Forum (CC BY-NC-SA 2.0) https://www.flickr.com/photos/worldeconomicforum/48179628441

Digital Trade

Happily Ever After? by Lauri Heikkinen (CC BY-SA 2.0) https://flic.kr/p/ovhrFB

The Trouble With the TPP, Day 37: Breaking Digital Locks For Personal Purposes

The Trouble with the TPP series has featured several posts on the impact of the agreement on copyright law, including copyright term extension and changes to the digital lock rules. The potential changes to Canadian copyright law do not end there, however. For the next three days, I will focus on concerns arising from the TPP’s damages provisions that might restrict future Canadian copyright policies or require legislative change.

The first involves the TPP damages requirements associated with the anti-circumvention rules. As with many aspects of the TPP, the rules get very complicated, very quickly. The analysis starts with the TPP requirements. Article 18.68 establishes the rules for technological protection measures. The mandatory penalties for circumvention can be found in Article 18.84 (17):

February 24, 2016 — 1 comment — News

Uber Lift Departure by Paul Sableman (CC BY 2.0) https://flic.kr/p/AwiQtG

The Trouble With the TPP, Day 36: Why the TPP Could Restrict Uber Regulation

Yesterday’s Trouble with the TPP post focused on the possibility that the agreement could restrict the ability for the Quebec government to regulate online gambling, as it is currently seeking to do in Bill 74. While that might be a good outcome – the Quebec bill is ill-advised and sets a dangerous precedent – it raises the question of whether a trade agreement is the right way to dictate provincial laws.

In fact, the TPP leaves behind a complex array of regulations for services industries that is almost certain to result in unintended consequences. Many trade agreements feature obligations to specific service sectors based on commitments from negotiating parties. These are relatively clear and make it easy for business to understand the new rules and for governments to identify their regulatory requirements. The TPP adopts a much different approach that is likely to lead to confusion and regulatory complexity. It features a series of generally applicable restrictions or requirements for services (the big four are national treatment, most favoured nation, market access, and no local presence requirements) and then seeks to exclude specific sectors in the hope of identifying problems with the general rules. As the Quebec gambling example illustrates, however, there are invariably new sectors or new issues that fall through the cracks.

Another possible complication could come from demands to regulate ride sharing services such as Uber.

February 23, 2016 — Comments are Disabled — News

GAMBLING by JulieFaith (CC BY-NC-ND 2.0) https://flic.kr/p/9vjSHP

The Trouble With the TPP, Day 35: Gambling With Provincial Regulation

Last year, the Quebec government introduced legislation that would require Internet service providers to block access to unlicensed online gambling sites. It provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The Quebec bill, which is currently before the provincial legislature, is a terrible idea that has been opposed by ISPs and consumer groups. The government views this initiative as a revenue enhancing measure because it wants to direct gamblers to its own Espacejeux, the Loto-Québec run online gaming site. The mandated blocking legislation is unprecedented in Canada and if enacted, it will surely be subject to legal challenge, including the possibility of a constitutional challenge.

The legal challenge may not be limited to constitutional issues, however. The Quebec bill may also be blocked by the TPP, which may be a good outcome, but raises the question of whether a trade agreement is the right way to dictate provincial laws.

How might the TPP apply to provincial online gambling regulation?

February 22, 2016 — 4 comments — News

The Trouble With the TPP, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage

Price of Entry, one of the early Trouble with the TPP series posts, discussed some of the conditions of entry for Canada into the TPP negotiations. These included the absence of “veto authority”, which meant that Canada could not hold up any chapter if it was the only country opposing a provision. This ultimately had a significant impact on the intellectual property chapter, where Canada had little choice but to cave on several issues.

Conditions of entry were not the only disadvantage faced by the Canadian negotiators. According to an internal email I recently obtained under the Access to Information Act, Canadian officials were aware that they were at a disadvantage relative to the U.S. in the late stages of the negotiations. The email dated July 9, 2015, was sent to Kirsten Hillman, Canada’s lead TPP negotiator, and Christine Hogan, the International Trade Deputy Minister. It notes that the U.S. had cleared access to the full negotiating text for a wide range of advisors, including business groups and public advocates, but infers that Canada had not done the same. It continues:

I hope the political side lets you do something similar or at least hold technical briefings, or the US will effectively drive the narrative and put you at a disadvantage.

February 19, 2016 — 20 comments — News

Migraine Meds by Tanya (CC BY-NC-ND 2.0) https://flic.kr/p/eaDjxg

The Trouble With the TPP, Day 33: Setting the Rules for a Future Pharmacare Program

Earlier Trouble with the TPP posts focused on the health care implications of the agreement, focusing on patent term extensions, biologics protection, and limits on medical devices and pharma data collection. There is another health-related aspect of the TPP worthy of examination, but it is easy to miss. Chapter 26 of the TPP addresses transparency and anti-corruption, which is not the place you would expect to find provisions with a direct impact on health care. Yet Annex 26-A contains a full section on “transparency and procedural fairness for pharmaceutical products and medical devices.” What does this section do? The key aspect is to establish mandatory requirements for a national pharmacare program:

February 18, 2016 — 3 comments — News