The TPP (and its Copyright Provisions): There’s still a Chance

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Source: wikimedia commons

Will the Lame Duck Waddle?

The Trans-Pacific Partnership (TPP) may be a political pariah in the current US Presidential election, with both Mrs. Clinton (who ironically was Secretary of State at the time it was being negotiated) and Mr. Trump condemning it, despite endorsement from a wide range of business groups, but at least it still has the support of the Obama Administration. President Obama has reaffirmed his support for the agreement and has indicated that his Administration will go all out to try to get it ratified by Congress in this fall’s “lame-duck” session. If the TPP is not ratified before the new Congress elected in November takes office in early 2017 it will either be dead, or at the very least frozen in limbo, for a considerable period no matter who wins the White House. If the US does not ratify the agreement, it cannot come into force as there is a requirement that prior to implementation it must be ratified by at least six countries representing 85 percent of the total GDP of participating economies (2013 numbers). In effect, this gives both the US and Japan a veto over the entry into force of the agreement they have both signed.

Ragging the Puck in Canada

The chances of passage of the TPP in the US have declined considerably as the election rhetoric has ratcheted up. Other TPP participants, all of whom face some degree of opposition to the agreement at home, have been carefully watching. In Canada, a new Liberal government inherited the agreement negotiated by its predecessor, the Conservative government of Stephen Harper. Mr. Trudeau’s Liberals, while stressing their free-trade credentials, have refused to take a definitive stance on the TPP, instead preferring to “rag the puck” by engaging in cross-country consultations with Canadians. The wide open nature of the consultations has predictably resulted in those in favour of the agreement extolling its benefits while opponents of every stripe—especially the opponents of globalization generally—have come out of the woodwork to criticize just about every conceivable aspect of the TPP. The government has sat back and listened, and so far has done nothing other than to sign the agreement in February, which has kept its options open.

Mr. Trudeau and the Liberals don’t have to do anything just yet. It all depends on what happens in Washington because if the US walks away from the agreement the Liberals won’t have to take a stand. If the US somehow gets its act together and Congress ratifies the deal, the Liberals will have no choice but to sign on. Canada cannot afford to stay out of a deal that includes major trading partners like the US, Mexico and Japan, among others. All the talk about “improvements” or changes to the agreement will be just that—talk. No matter whether or not a particular lobby or advocacy group in Canada would like to see certain things changed in the TPP, it is not going to happen if the agreement, as signed, is ratified by the US Congress. If it is not ratified, or ratified subject to certain changes in the final text demanded by Congress, that is a different question. At that point, any re-opening of the agreement to meet US demands for changes would allow other countries to try to gain or claw back a concession or two.

Commentary on the TPP

In the meantime, there has been some thoughtful commentary on the role and importance of the TPP for Canada from experts such as John Weekes, Canada’s former ambassador to the WTO and Chief Negotiator for NAFTA. In an article for the Canadian Global Affairs Institute (CGAI)-Ambassador Weekes has outlined succinctly why the TPP is important and why Canada needs to be in it. (Full disclosure—I am a Fellow at CGAI). Despite his strong endorsement of the Agreement, even a pro-trade commentator like Weekes is compelled to also outline a Plan B for Canada if the TPP fails to come into being. (In this case, his suggestion is for a negotiation of a bilateral Canada-Japan agreement, and opening trade talks with China and ASEAN).

A Litany of Supposed Negatives

While commentators like Weekes are highlighting the advantages for Canada—and indeed the global trading system—of an agreement like the TPP that addresses new trade barriers beyond tariffs, the anti-globalization folks, led by organizations such as the Council of Canadians and the Canadian Centre for Policy Alternatives (CCPA), continue to blame the TPP for everything but bad breath. As I pointed out in a previous blog, back in the days of the original US-Canada Free Trade Agreement, this was known as the “every sparrow that falls” phenomenon. CCRA has produced a series of analyses attacking the TPP by constructing “worst possible case scenarios” involving just about every aspect of the economy, from drug prices to the environment to migrant workers and foreign investment, even to the postal service and, of course, to copyright. (Yes, this is a copyright blog).

The Copyright Provisions

To add to their inventory of TPP sins, the CCPA turned to Michael Geist of the University of Ottawa to provide commentary on the copyright provisions of the TPP—and of course to explain why they are bad for Canada! Prof. Geist was a logical contributor since on his personal blog he has managed to write (so far) 49 blogs on “the Trouble with the TPP”. Geist has also taken what I call the “cave man” approach to the agreement—whenever the outcome is something that he doesn’t agree with, Canada “caved” and gave other negotiating partners (meaning the US) what they wanted. In his recent contribution to the CCPA’s compilation of “bad news” on the TPP, he brings up three particular objections to the copyright provisions. First, he objects to the extension of the copyright protection term from 50 to 70 years (after the death of the author). To support his argument, he cites a discredited New Zealand report that projected term extension in that country would cost the New Zealand economy $55 million dollars per year. He then goes on to state, without a shred of evidence, that “the cost to Canada will undoubtedly be much higher”. Apart from the New Zealand study having been shown to be based on bad math, faulty projections and omission of key factors, there is no basis for calculating alleged losses to Canada based on the situation of the publishing industry in another country like New Zealand.

Term Extension: Unproven Assertions

Moving on, Geist claims that the extension of an additional period of protection for Canadian authors and their estates will “create a massive blow to access to Canadian heritage”. Why this is so is not really explained. There is a quote from an academic publisher who bemoans the fact that his publishing house would not be able to publish works that remain under copyright protection because he doesn’t have the rights. But how does this block access? Publishers who produce works in the public domain, and thus avoid having to acquire the rights and pay license fees to copyright holders, would understandably like to be able to have free access sooner. However, for every publisher who wants to avoid payment of royalties, there is another publisher who has paid to license the copyright and who has every economic interest in ensuring the widest possible dissemination of the work. How does this block access to the public?

Prof. Geist lists 22 Governor-General award winning fiction and non-fiction Canadian authors whose work would be delayed in entering the public domain. So what? Aren’t these books still going to be available to the public? Of course they are! The only impact of term extension is that the works will be marketed by a publisher who holds and has paid for the rights, which will flow back to the estate of the author, rather than a publisher who is waiting for works to enter the public domain before breaking into print.

“Notice and Notice” (and notice and notice and notice….)

He also objects to the provisions in the agreement on Technological Protection Measures (TPMs), programs that prevent hacking of access controls to get at copyrighted content, (and which protect rights holders in Canada just as much as they do foreign rights holders), and to the online “enforcement” regime, despite the fact that under the TPP Canada retains its rather clunky so-called “notice and notice” regime. Under this process, internet service providers are required by law to pass on to their subscribers notices received from copyright holders where there is alleged infringement of copyright (e.g. posting unauthorized copyrighted material on their networks), based on the ISP address of the infringer. The ISPs are not required to block or take down infringing content or to sanction the alleged infringer in any way. It is questionable whether this “educational” process is really effective in curtailing copyright abuse but it is the route that Canada has chosen to take. There are other arguably more effective regimes, such as the “notice and takedown” system in the US–although this system is also far from being really effective. There are calls in the US for a “notice and staydown” system in view of the whack-a-mole nature of the process where infringing content is removed only to reappear again almost immediately under a slightly different guise. Still, effective or not, under the TPP, Canada retains “notice and notice”; Geist however is clearly not happy with the fact that the rather ineffectual Canadian system was not adopted by other TPP countries

Most of the provisions that Geist and other critics complain about in the TPP are already part of Canadian copyright law, although they would now become treaty obligations. (The notable exception is the extension of the term of copyright protection which will require a legal amendment). But will the TPP become a reality?

Missed Opportunities?

Notwithstanding the CCPA’s long list of supposed TPP failings, and the views of Professor Geist, the outcome will depend on what happens in Washington this fall rather than debates in Canada about the impact of the TPP on copyright, the postal system—or anything else. If the TPP is not ratified and implemented, an opportunity—in fact a number of opportunities—will have been missed. Missed will be the opportunity to update the rules governing international trading agreements and to bring them into the 21st century to reflect the new issues (services, investment, intellectual property, the environment, etc) affecting the global trading system. Likewise, the opportunity to strengthen the role of open markets in the Asia Pacific will have been squandered. And last, but surely not least, a golden opportunity will have been lost to improve the standard of copyright protection for the benefit of rights holders, cultural diversity and the general public throughout the TPP countries. Let’s keep our fingers crossed that the lame duck learns how to waddle across the finish line.

© Hugh Stephens, 2016. All Rights Reserved.

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