Trade agreements have emerged in recent years as one of the federal government’s most frequently touted accomplishments. Having concluded (or nearly concluded) free trade deals with the likes of the European Union and South Korea, senior government ministers such as International Trade Minister Ed Fast and Industry Minister James Moore have held dozens of events and press conferences across the country promoting the trade agenda.
The next major agreement on the government’s docket is the Trans Pacific Partnership, a massive proposed trade deal that includes the United States, Australia, Mexico, Malaysia, Singapore, New Zealand, Vietnam, Japan, Peru, and Chile. While other trade talks occupy a prominent place in the government’s promotional plans, the TPP remains largely hidden from view. Indeed, most Canadians would be surprised to learn that Canada is hosting the latest round of TPP negotiations this week in Ottawa.
My weekly technology law column (Toronto Star version, homepage version) argues the secrecy associated with the TPP – the draft text of the treaty has still not been formally released, the precise location of the Ottawa negotiations has not been disclosed, and even the existence of talks was only confirmed after media leaks – suggests that the Canadian government has something to hide when it comes to the TPP.
Since this is the first major TPP negotiation round to be held in Canada, there was an opportunity to build public support for the agreement. Yet instead, the Canadian government approach stands as one of the most secretive in TPP history. Why the secrecy?
The answer may lie in the substance of the proposed agreement, which leaked documents indicate often stands in stark contrast to current Canadian policy. The agricultural provision may attract the lion share of TPP attention, but it is the digital issues that are particularly problematic from a Canadian perspective.
For example, late last month the government announced that new copyright rules associated with Internet providers would take effect starting in 2015. The Canadian system, referred to as a “notice-and-notice” approach, is widely viewed as among the most balanced in the world, providing rights holders with the ability to raise concerns about alleged infringements, while simultaneously safeguarding the privacy and free speech rights of users.
The government rightly described its approach as a “made in Canada” solution. However, according to leaked text from drafts of the TPP, the U.S. is demanding that Canada abandon notice-and-notice in favour of rules that could lead to terminating subscriber access, content blocking, and even monitoring of online activities.
The same is also true for the term of copyright protection. Canadian law currently provides protection for the life of the author plus an additional 50 years. That meets the international standard, yet the U.S. wants all TPP countries to extend the term to life plus 70 years, effectively keeping works out of the public domain for decades.
The TPP could also lead to significant changes to Canadian patent law by altering the standard of utility under Canadian law, expanding protections to plants and animals with few safeguards, and extending the term of patents in a manner that would keep cheaper generic drugs off the market. The net effect could be to sharply increase health care costs.
The digital concerns are not limited to intellectual property. The TPP also contains privacy-related provisions, including potential restrictions on local server requirements designed to ensure that Canadian personal information is hosted within Canada. A ban on such requirements would place Canadian data at risk and run counter to the government’s own policies on the storage of its email data.
The Canadian desire to maintain current policies becomes more apparent when the TPP is contrasted with the Canada – South Korea free trade agreement. That agreement permits the use of the notice-and-notice system and contains no reforms to copyright term, key patent issues, or privacy protections. The TPP may ultimately require major changes, however, which helps explain why the government would prefer that Canadians pay no attention to the secret negotiations taking place this week a few blocks from Parliament Hill.