With The US Out, Canada Gets Copyright Out Of TPP And Moves Closer To Agreement

from the but-we-thought-it-couldn't-be-done... dept

We've been talking about the Trans Pacific Partnership (TPP) agreement for many, many years. And one point that we've made over and over again about the TPP and other trade agreements, is that there actually is a lot of good and important stuff in those agreements, and we don't understand why the US (mainly) keeps insisting on two issues that don't belong in these agreements at all: (1) "intellectual property" chapters, which are almost always the opposite of "free trade" in that they focus on ratcheting up government protectionism and monopolies for a few specific industries and (2) a section on what we refer to as corporate sovereignty, which which the trade world calls "investor state dispute settlement" or "ISDS." That's where companies can demand an private tribunal judge if a country unfairly treated that company poorly and order the country to pay the company millions or sometimes billions of dollars.

Of course, the US has been a major driver of both of those provisions -- but over and over again we were told that these kinds of agreements were "impossible" without an intellectual property chapter and corporate sovereignty. Turns out, once you get the US out of the way, things aren't so impossible. Just a couple weeks ago, we noted that many countries around the world (including the new USTR, Robert Lighthizer) appear to be souring on corporate sovereignty provisions, but the really big news is the TPP.

Right after Donald Trump became President, the US officially dropped out of the TPP negotiations, leading many to believe that the entire process was dead. Instead, the other countries have continued to negotiate, and on Friday agreed in principle on key aspects of a deal, for the newly renamed Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)

One of the stumbling blocks, on which Canada allegedly played hardball, was removing much of the intellectual property chapter (including basically all of the really bad stuff). As Michael Geist notes:

The Liberal government demonstrated genuine leadership in demanding significant changes to the flawed TPP intellectual property chapter and refusing to back down under intense pressure from some of the negotiating parties. The result isn’t perfect, but the newly named Comprehensive and Progressive Agreement for the Trans Pacific Partnership (CPTPP), which still requires considerable negotiation, features a significantly improved IP chapter that suspends some of the most problematic provisions.

Weeks after the release of the TPP text in 2015, I wrote a lengthy series on the Trouble with the TPP.  Many of the most problematic provisions, including copyright term extension, digital lock rules, and intermediary liability have been suspended from the CPTPP at the insistence of the Canadian delegation. Their removal is a remarkable victory for those that argued against overbroad, restrictive copyright provisions in the TPP and maintained that there was no reason to include unbalanced copyright provisins in a modern trade agreement.

The new version also appears to remove some of the corporate sovereignty/ISDS provisions.

There's still a lot of work to be done on the agreement, but it certainly appears that Canada has taken the lead with the US out of commission. This is particularly amusing, as Canada was a late entrant into the TPP negotiations, and part of that involved the US demanding that Canada accept the text as it was and not reopen negotiations on key points already agreed upon. And now, the end result is that the US has withdrawn and Canada led the way in ditching some of the key provisions the US had demanded.

And, again, the current deal still has some serious problems. For one, it notes that it's possible that the worrisome intellectual property provisions could re-emerge, zombie-like, at a later date. It also notes that there's still enough of the corporate sovereignty provision to be worried about (and same with telecommunications services provisions). But, on the whole, it appears that the new CPTPP is moving in a much, much better direction, in large part by dumping the intellectual property elements.

Meanwhile, later this week, NAFTA renegotiations will be taking place and intellectual property issues are on the agenda. Perhaps Canada can do the same thing it did with the TPP and convince everyone else to take that issue off the table entirely.

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Filed Under: canada, copyright, corporate sovereignty, cptpp, ip chapter, isds, patents, tpp