Years of disappointment in trade negotiations have left many Canadian intellectual property watchers hoping for the best, but expecting the worst when it comes to the IP provisions in trade deals. In earlier talks, Canadian negotiators would often advocate balanced positions during the negotiations, but ultimately cave to (primarily) U.S. pressures during the final round of talks. Given that history, this week’s outcome of the TPP11 is reason for celebration as the second largest economy in the TPP finally acted like it. 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 full list of suspended IP provisions, with links to my original posts on the issues in the Trouble with the TPP series, include:
- Patentable Subject Matter – Article 18.37.2 and 18.37.4 (Second Sentence)
- Patent Term Adjustment for Unreasonable Granting Authority Delays – Article 18.46
- Patent Term Adjustment for Unreasonable Curtailment – Article 18.48
- Protection of Undisclosed Test or Other Data- Article 18.50
- Biologics – Article 18.51
- Term of Protection for Copyright and Related Rights – Article 18.63
- Technological Protection Measures (TPMs) – Article 18.68
- Rights Management Information (RMI) – Article 18.69
- Protection of Encrypted Program-Carrying Satellite and Cable Signals – Article 18.79
- Legal Remedies and Safe Harbours – Article 18.82 and Annexes 18-E and 18-F
- Conservation and Trade (measures ‘to combat’ trade) – Article 20.17.5 – suspend “or another applicable law” and footnote 26
- Transparency and Procedural Fairness for Pharmaceutical Products and Medical Devices – suspend Annex 26A – Article 3 on Procedural Fairness
In addition to the IP provisions, the CPTPP includes suspension of some ISDS provisions, resolution of telecommunications disputes, and the need to address Canadian concerns on cultural protections (analyzed here, here, and here). What remains isn’t perfect – many of the concerns associated with the e-commerce chapter are left untouched – but the IP changes are very important. They restore some balance to that chapter and signal that Canadian officials are prepared to give more than just lip service to the issue when it comes to negotiating contentious IP provisions with our trading partners.
Thank you. Thank you.
The value of your help
cannot be exaggerated.
You are epically heroic.
A definite step in the right direction. Looks like Trudeau is using warm relations with Mexico to good effect:
https://www.nationalnewswatch.com/2017/11/11/how-canada-turned-to-mexico-to-fend-off-tpp-pressure-from-japan-australia/#.WgeUGWgkGEd
However, “suspended” is not good enough. All that means in TPP parlance is that it won’t come into effect until the US re-joins the agreement …which they will be looking to do as soon as a new and saner Administration replaces Trump. Then we are right back where we started with the IP problems, save only for the fact that TPP nations’ political leaders will have been able to pass the agreement as a bait-and-switch: they will be able to tell their voters that IP provisions don’t apply anymore, when in fact they will in a couple of years. A handy way to avoid opposition and scrutiny.
Suspending the IP Chapter is not enough. It has to be eliminated entirely.
It is unfortunate that the article 14.17 “source code disclosure” apparently remains intact. Given software is increasingly critical and included in medical and transportation devices, disclosure should be considered a basic part of health and safety. Typical of these policy laundering agreements they increase protectionism of outdated business models at the expense of all the countries that sign onto it.
Gone are the days that “free trade” agreements were about reducing protectionism, reducing barriers to trade, or increasing accountability for government procurement. It is comical that these spin doctors have added the word “progressive” to try to further obfuscate this policy laundering.
Have the data localization provisions have also been removed? Those being killed off would be good news with regards to keeping IT jobs in Canada.
Thanks.
Talking about this
http://www.cbc.ca/news/business/michael-geist-tpp-1.3316691
I think it is counterproductive to think of data localisation provisions as being about jobs. The location of the systems administrators isn’t the concern, but the legal jurisdiction that the equipment managing the data is under. I can work from Ottawa on servers anywhere in the world (I already mange servers in Victoria, Edmonton, Toronto, and Halifax), and the same is true of people elsewhere in the world working on servers in Canada.
Also — lets not give people cause to dismiss this important concern by suggesting data localisation rules are anti-free trade — they aren’t.
I also have this question. Data localization to me is about protection of personal data, especially medical and student data. With US courts ruling that Microsoft must hand over data hosted abroad due to its status as a US company, there is a big opportunity for Canadian companies to tout this as a competitive advantage.
Eventually the legal profession will get their collective minds around the nature of software, and understand that software vendors have nearly as much control over the data when their software is running on someone elses hardware as when remotely managing on their own hardware. Physical access to hardware means very little in the modern networked software world.
If US vendors of cloud services are being forced to disclose data stored outside the US, it is only a matter of time before they demand access to data stored by US operating system vendors as well.
To be clear, this isn’t only about Microsoft, Google and other vendors as cloud service providers, but about some of these same companies as operating system and application vendors as well — cloud, workstation/desktop, chromeos/mobile, and even some smaller percentage of servers (Most servers already run Open Source which doesn’t have that vendor control as the software is transparent/accountable to the software user).
Pingback: No Deal is Better than a Bad Deal: Why Canada Won the TPP By Standing Up for Balanced IP, Culture, and the Auto Sector - Michael Geist
Personally have little stake apart from access to public domain ebooks currently available from Australia and New Zealand sources, that are currently well ahead of NorAm and UK protections: I’ve been stocking up on freed-up books by Virginia Woolf, the Moncriff Proust, etc. expecting those free sources to be curtailed by the TPP (and cheap Kindle and other high-quality editions to become much more expensive.)
14. Term of Protection for Copyright and Related Rights – Article 18.63
seems to suspend the craven coddling of mega-publishing, hopefully forever.
Pingback: With The US Out, Canada Gets Copyright Out Of TPP And Moves Closer To Agreement OPUS IP Patent Agents/Attorneys Manchester Stockport North-west UK
Pingback: Rethinking IP in the TPP: Canadian Government Plays Key Role in Suspending Unbalanced Patent and Copyright Rules | Don't trade our lives away
Pingback: This Week’s [in]Security – Issue 34 - Control Gap | Control Gap
Pingback: Our Daily Reading List – 21/11/2017 – Blog – Clausehound