The TPP and Intellectual Property: Tilting at the Wrong Windmill

Don-Quixote-Windmill-e1424097291880( Balsillie, former co-CEO and founder of RIM, now Blackberry, has saddled up, mounted his horse and pointed his lance squarely at the Trans-Pacific Partnership (TPP). Charge! One of his recent opinion pieces, in Canada’s national newspaper, the Globe and Mail, is headlined, “For Canadian innovators, will TPP mean protection – or colonialism?” Not content with this coverage, he has taken his message beyond the print media to national radio, reiterating earlier criticisms in which he said that that Canada’s decision to sign the TPP would be the “worst thing in policy that Canada’s ever done” because of provisions hidden in the Intellectual Property (IP) chapter. Balsillie’s criticism was quickly picked up by arch-TPP critic Michael Geist who has made a cottage industry of criticizing the TPP. His creativity knows no bounds; so far he is on his 49th blog as to why the TPP is a bad idea from an intellectual property, privacy, cultural, internet, etc., etc. perspective. When will he make it a nice round 50? One could be forgiven for believing that Prof. Geist subscribes to the “every sparrow that falls” syndrome, used to describe critics of the original Canada-US Free Trade Agreement back in the 1980s.

But let’s get back to Mr. Balsillie for a moment. He is quoted as saying Canada’s TPP negotiators were “outfoxed”, and “profoundly failed Canadians”. His main concern seems to be that Canada is not sufficiently innovative as a country and is mired in the last century in terms of its economy, whereas the TPP is a 21st century agreement focusing on innovation, the digital economy and the importance of intellectual property. His assessment of Canada’s innovation track record may or may not be correct, but when it comes to the TPP he is tilting at the wrong windmill, just as Prof. Geist is off the mark with his criticisms of the Agreement’s impact on Canadian IP and cultural policy.

If Canada has an innovation or cultural deficit, this can hardly be blamed on the TPP although the Agreement could be part of the solution. As Nathaniel Lipkus, an IP litigator with a prominent Canadian law firm, has pointed out, “the IP chapter puts Canadian innovators on a level playing field with innovators throughout the TPP region”. Its primary achievement is to simplify and harmonize the rules protecting IP and to expand protection for intellectual property in those TPP countries where such protection is weak. Canada is not one of these countries, and virtually all of the TPP’s IP provisions are fully consistent with current Canadian law. One change the TPP will introduce is a lengthened term of copyright protection for Canadian creators, giving more protection to their works in Canada as well as in other TPP markets, through extending the duration of protection from 50 to 70 years. Despite Prof. Geist’s complaints about term extension, and his complete distortion of the alleged cost to Canada of this measure, term extension is good news for the creative community and will strengthen Canadian culture.

According to Mr. Balsillie, the “TPP clearly demarks the shift in global value creation from tangible to intangible goods”. It follows that those holding and producing intellectual property (IP) will thrive in this new world of innovation. Balsillie has this right. However his corollary, that Canada should therefore reject the TPP, is a complete non-sequitur. Rather than encouraging Canadians to seize the opportunity and rise to the challenge of being more creative and innovative in order to take advantage of these new economic realities, his solution is to call for rejection of the TPP– despite its strengthened framework to reward and protect creativity and innovation–and despite the many advantages it offers to Canada in other non-IP sectors. If Canada has a less than stellar record in commercialization of innovation, the answer is not to plant its head firmly in the sand and to deny itself the benefits of an agreement that enhances respect and protection for innovators and creators.

Yes, the TPP will benefit knowledge-based economies, like the US and Japan, and other countries that invest in and leverage innovation, artistic expression, creativity and knowledge. Canada is certainly one of those countries, although it could do better. Embracing the opportunities presented by the TPP and taking advantage of the clearer rules for protection of intellectual property is where Canada should be going, not running away from reality.

Innovation in the sciences and creativity in the arts are often linked. A society that values, encourages, provides incentives to and protects the development and expression of new ideas and concepts is well equipped to win in the knowledge based economy of today. The US, for example, is a leader in both. In the area of artistic creativity and cultural expression, Canadians do well and perhaps perform better than they do when it comes to commercializing innovation. From music to literature to the silver screen, Canadians have proven time and again that they can hold their own on the global stage, although Prof. Geist and the cultural lobby continue to insist that the TPP will somehow undermine Canadian culture. In fact, not only is Canadian culture thriving but the increased incentive offered to creators through the extension of copyright protection will strengthen it further. Copyright term extension is strongly supported by the artistic community in Canada, as was made clear when the previous government extended the term of protection for sound recordings from 50 to 70 years. While welcomed by this segment of the music industry, there was an immediate outcry from the composers and songwriters requesting the same benefit.

The TPP will provide Canadian innovators and creators levels of IP protection analogous to those enjoyed by their counterparts in the US, and will extend those provisions to other TPP countries. And if it is true that Canada has an innovation deficit or that Canadian culture is at risk, conclusions that are questionable at best, rejecting the TPP will do nothing to address these problems. Attacking the TPP and its IP provisions is not only tilting at windmills, like Cervantes’ errant knight Don Quixote, but it is tilting at the wrong windmill. Canada needs to join the TPP. For innovators and creators in Canada it is part of the solution, not part of the problem.

© Hugh Stephens, 2016. All rights reserved.

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