Desperate for a Partnership?

Desperate for a Partnership?

Canada has been lobbying to enter the Trans-Pacific Partnership (TPP), and its efforts have seemingly paid off with an exclusive invite to the secretive nine-member club on June 19, 2012. With Ottawa championing its economic benefits and potential, there are many asking a simple question – what have we given up?

The answer to this question is complex, and its ramifications are difficult, if not impossible to predict so close to the entrance of this partnership. There is no doubt, however, that the TPP will affect many areas of the Canadian economy – from agriculture, to foreign competition, to intellectual property rights. The exact provisions negotiated by the TPP are not known, though the draft versions of the intellectual property chapter are worth noting.

While there are numerous differences – here are the major highlights (courtesy of InfoJustice): 

Canada: Sound recordings' term of copyright last 50 years from recording. TPP: 95 years from recording in most cases.

Canada: Copyright Act criminalizes certain types of copyright infringement for profit. TPP: Criminalization would extend to cases without any direct or indirect motive for financial gain, including cases of aiding and abetting, which would apply to internet service providers (see related articles on IPOsgoode).

Canada: C-11 contains restrictive provision on technological protection measures, but includes the ability to identify new exceptions (C-11 § 41.21(2)). TPP: Increases penalties for circumventions and prevents new exceptions.

Canada: C-11 distinguishes between commercial and non-commercial infringement. TPP: Requirements apply to both.

Canada: C-11 requires a service provider to retain records of individuals against whom they have received notice of infringement. TPP: Allows identifying information to be turned over to copyright holders “expeditiously” upon “effective notification of claimed infringement”.

Canada: C-11 creates a notice-and-notice system for online infringement. TPP: Requires a notice-and-takedown system similar to American DMCA.

There is little doubt that the TPP’s intellectual property provisions will likely increase the restrictions and level of enforcement when dealing with copyright infringement. Furthermore, legal experts have criticized the US of forcing many of these excessively restrictive provisions on behalf of the copyright owners that largely reside in the US. These differences have far-reaching implications on privacy – the TPP significantly lowers the threshold by which content owners are allowed to access sensitive and private information on Internet users. Upon “effective notification” of a claimed infringement, ISPs would be placed under obligation to the content owner.

While there are issues of privacy at stake, partners also have concerns over the effect on global healthcare and pharmaceuticals. In a letter to the US Trade Representative, Ron Kirk, five members of the US Congress stated their concerns over the TPP undermining other countries current or prospective non-discriminatory drug reimbursement policies (ex. Medicare, Medicaid, and other programs). Other congressmen have questioned TPP’s stringent patent protection provisions – at the expense of previous agreements (ex. TRIPS Agreement) that have attempted to balance IP interests with global public health concerns. This may not affect Canada directly, but it is important to understand that by becoming a member of this partnership, Canada is explicitly accepting these provisions as well.

Negotiations within the TPP have been criticized as excessively secretive. Many suggest that the Office of the United States Trade Representative has been responsible for this, as they have lobbied for talks hidden under a shroud of secrecy in order to impress many US-biased provisions upon TPP members.

As a new member entering a partnership that has been largely negotiated, Canada’s membership comes with one hand tied behind its back, these provisions are expected to be accepted without question. With 12 rounds of TPP negotiations completed in near-silence, and only draft versions of two chapters (investment and intellectual property) leaked, one has to wonder what Canada has signed onto.

Byron Tse is a JD candidate at the Western University Faculty of Law.