Technology and the TPP: What’s at Stake?

Posted on Wednesday, December 9, 2015

Heather Cameron*

On November 30, 2015 experts in trade and technology met at University of Ottawa to discuss the impact of technology provisions of the Trans-Pacific Partnership (TPP), a 6000 page agreement between 12 countries negotiated with the goal of developing a 21st century trade regime. Speakers included Burcu Kilic (Legal and Policy Director, Global Access to Medicines Program, Public Citizen); Carolina Rossini (Vice President, International Policy and Strategy, Public Knowledge); Jeremy de Beer (Professor, University of Ottawa); Michael Geist (Professor and Canada Research Chair in Internet and E-Commerce Law, University of Ottawa); and Tamir Israel (Staff Lawyer, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic). The discussion was moderated by Loris Mirella, Deputy Director of Department of Foreign Affairs and International Trade.

Speakers first discussed the general effects of trade on technology. Ms. Rossini described the extensive TPP provisions that affect technology: Chapters exist on E-Commerce, Intellectual Property (IP), Services, Telecommunications, and in application Enforcement, Investment, Dispute Settlement, and Regulatory Coherence. Professor Geist observed that the TPP moves beyond previous trade agreements that did not include such extensive IP provisions. Mr. Israel explained the criticism of incorporating technology in trade agreements because technology law is still expanding and a specific regime provided in the TPP will be difficult to amend in the future as technology changes. Dr. Kilic noted that the content regulated by trade agreements is expanding because they provide a way to get things done outside of multilateral fora, where achieving consensus has become more difficult as developing countries gain more power. However, the question remains as to who is served by these agreements as TPP’s IP provisions maintain existing knowledge monopolies through closed negotiations and conservative rules.

Concerning ambiguity in the TPP allowing parties flexibility in their implementation, Mr. Israel stated that data localisation provisions in the TPP, while more flexible than previous versions, are still very rigid for any country that wants to deviate from them. Dr. Kilic noted that the language concerning cross-border data transmission incorporated a WTO standard and asked why a better standard was not created. Although Ms. Rossini argued that flexible provisions are beneficial and allow countries to implement their own laws, Professor Geist countered that in effect larger countries will place pressure on smaller countries to adopt provisions they support. Eli Lily’s patent claim against Canada under NAFTA was used as an example of pressure placed on Canada to prevent other countries from adopting Canadian patent standards. Professor Geist further discussed US pressure in the TPP to prevent other countries from adopting Canada’s notice and notice approach to internet service provider liability by only allowing countries that had this system in place at the time of agreement to retain it.

The panelists then addressed issues of implementation and next steps following the TPP. Professor de Beer explained that Canada’s federal system will complicate implementation, because some provisions of the TPP deal with subject matter under provincial jurisdiction and cannot be implemented by the federal government. Some issues, such as trade secrets, were not given as much attention in negotiations because of more controversial topics. Mr. Israel argued that addressing these concerns later through carve outs to the agreement pose problems because it will prevent countries from passing more protective laws in the future. Concerning biologics, Dr. Kilic described how the US set a 12-year term for their protection during the passage of Obamacare, and then tried to get other countries to adopt the rule during TPP negotiations without having enough data to justify this term. Ms. Rossini noted that the TPP further jeopardizes open innovation by preventing researchers from sharing data that is protected under patent provisions.

Looking forward, Mr. Mirella asked panelists what research should be conducted to create a framework promoting innovation in the TPP and future agreements. Mr. Israel discussed the options of doing an impact analysis on the agreement’s effects during negotiations and opening negotiations to other stakeholders. Professor Geist stated that the government should engage in detailed studies and economic analysis if Canada does sign the agreement. As Dr. Kilic stated, signing and implementing the TPP are two very different stories and this is not the end of discussions. Although the text of the TPP is available, changes are still being made through the legal scrub and side letters between countries. When the TPP is implemented it will be a living agreement that allows additional countries to join and will represent the minimum standard for new members. Therefore, it is important to conduct further research to allow policy makers to understand the agreement and create a better implementation model.

* Heather Cameron is a 2L in the Common Law Section at University of Ottawa completing a Canadian-American Dual JD with American University Washington College of Law. She is an Intern at CIPPIC where her research focuses on the effects of the TPP on Canadian copyright law and a Researcher for Open AIR.

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