The Trouble with the TPP series this week has focused on issues such as the failure to obtain a full cultural exception and the weak e-commerce rules that do little to assist online businesses, particularly small and medium sized enterprises. Yet the Canadian digital failure goes even further. While other countries saw the opportunity to use the TPP to advance their domestic online sector through side agreements, Canada remained on the sidelines. Indeed, as some leading critics such as Jim Balsillie have noted, the Canadian government did little to even consult with Canada’s technology sector.
Consider a side letter on online education between Australia and Vietnam. The side letter opens the door to technical assistance and pilot programs for online education between the two countries, providing for assistance on distance education delivery models, assessing applications from Australian providers to deliver online education, and work to recognize the qualifications obtained from such courses. Moreover, the letter states that:
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Culture and the TPP has yet to garner much attention, but that is a mistake. The TPP departs from longstanding Canadian policy by not containing a full cultural exception and creates unprecedented restrictions on policies to support the creation of Canadian content. The Canadian position on trade and culture has been consistent for decades with successive governments requiring a full exemption for the cultural industries. The exemption, which is found in agreements such as NAFTA and CETA, give the government full latitude to implement cultural policies to support the creation of Canadian content.
The TPP’s approach to culture is different from Canada’s other trade agreements. Rather than include an exception chapter or provision, the TPP contains several annexes that identify “non-conforming measures.” This allows countries, including Canada, to list exceptions to specific TPP rules. Without an exception for the cultural industries, the TPP rules banning local presence requirements and national treatment for service providers would place Canadian cultural rules at risk. Annex II includes a Canadian exception for the cultural industries. The exception is promoted in the government’s summary of the TPP, which claims that the agreement:
includes a broad reservation under Services and Investment for existing and future programs and policies with respect to cultural industries that aim to support, directly or indirectly, the creation, development or accessibility of Canadian artistic expression and content.
That led to media coverage reporting that Canada had obtained a full exception to protect cultural policies. A closer look at the actual text, however, reveals that Canada did not obtain a full cultural exception. Rather, there are two notable exceptions to the general cultural exception, which state:
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As part of the U.S. effort to drum up support for the TPP, President Barack Obama enlisted the support of eBay, sending an email to 600,000 merchants that claimed that the agreement would help e-commerce and small merchants. That message was repeated by Andrea Stairs, the managing director of eBay Canada, who wrote an op-ed in the Financial Post that similarly pointed to the e-commerce rules, de minimis customs rules, and the benefits for small and medium sized business. The Trouble with the TPP is that a closer look at the text reveals that the benefits from the e-commerce provisions, de minimis rules, and the much-touted SME chapter are practically non-existent.
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The Trouble with the TPP series explores Internet-related issues this week, starting with the surprising inclusion of Internet governance in a trade deal. The debate over Internet governance for much of the past decade has often come down to a battle between ICANN and the ITU (a UN body), which in turn is characterized as a choice between a private-sector led, bottoms-up, consensus model (ICANN) or a governmental-controlled approach. Canada (along with countries like the U.S. and Australia) have consistently sided with the ICANN-model, arguing for a multi-stakeholder approach with limited government intervention. In fact, at the 2014 NetMundial conference, the Canadian government stated:
The multistakeholder model of Internet governance has been a key driver in the success of the Internet to date. Canada firmly supports this model and believes it must continue to be the foundation for all discussions in order to preserve the Internet’s open architecture. Canada firmly supports strengthening this model. Government centric approaches would stifle the innovation and dynamism associated with the Internet.
The Trouble with the TPP is that it contradicts Canada’s longstanding policy on Internet governance. While Canada, the U.S. and other TPP countries urge the governments of the world to take a hands-off approach to the Internet, the TPP opens the door to country-code domain intervention (note that I am on the board of the Canadian Internet Registration Authority, which manages the dot-ca domain).
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The Trouble with the TPP and privacy, which includes weak privacy laws, restrictions on data localization, bans on data transfer restrictions, and a failure to obtain privacy assurances from the U.S., also includes the agreement’s weak anti-spam standards. Given the fact that nearly all TPP countries have some form of anti-spam law (with the exception of Brunei), the inclusion of anti-spam provision in the TPP was not surprising, yet the agreement sets the bar far lower than that found in many countries. Article 14.14 states:
Each Party shall adopt or maintain measures regarding unsolicited commercial electronic messages that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages;
(b) require the consent, as specified according to the laws and regulations of each Party, of recipients to receive commercial electronic messages; or
(c) otherwise provide for the minimisation of unsolicited commercial electronic messages.
The TPP provision features two key requirements: anti-spam laws that provide for a binding unsubscribe mechanism and some form of consent. Yet with the standard of consent left wide open, countries are free to adopt weak, ineffective standards and still comply with the TPP requirements. In fact, since spam raises global concerns that frequently requires cross-border co-operation, the TPP would have been an ideal mechanism to strengthen international anti-spam rules and enforcement.
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