Still not done yet: Michael Geist unearths the Trouble with the TPP Pt. 3

Join us for the third installment of our roundup of Michael Geist's "The Trouble with the TPP" series. You won't want to miss this!

I’d like to start this blog with a huge thanks to Professor Michael Geist, who has been tirelessly blogging about his biggest concerns with the Trans-Pacific Partnership agreement. OpenMedia relies on experts like Professor Geist to help examine this 6000-page, mammoth document so that we can speak to Canadians from coast to coast  threats posed by the TPP to our digital future.

We’re back for round three – the knockout round – of recapping the Trouble with the TPP, as penned by Canada Research Chair in Internet and E-Commerce Law, Professor Michael Geist.

ICYMI, click here to read Part 1 of our roundup, and click here to read Part 2. Or check out all the pieces at MichaelGeist.ca

We left off with with Professor Geist having penned 30 blogs on the topic, and he’s been busy as ever in the last two weeks, working to continue his exploration of the text and how he sees it impacting our digital future. He’s now clocking in at 49 pieces on the Trouble with the TPP. (In case you’re wondering, we have no doubt he’ll make it to 50, the question is: will he make it to 100?)

Check out some of the highlights from his continued work on this file:

• We’re in for additional changes on how trademarks are protected and regulated in Canada. Much like our digital lock rules, Canada recently underwent a major overhaul on trademark rules (with a trademark amount of consultation, read: none). The changes appear to be have been done, as Geist opines, “in anticipation of the TPP requirements.” It would appear that throughout the TPP process, and even before, drastic changes are being made to Canadian law in order to placate the TPP powers that be, or to bring us into line with the agreement before it is even ratified or in force.
   

• Despite assurances that the TPP would actually stop government agencies from demanding weakening of encryption technologies or the creation of backdoors, Geist highlights just how weak and ineffective these safeguards really are, pointing to a clause in an annex dealing with cryptography that kills the agreement’s own attempts to stop governments from backdooring devices. The TPP is full of these seemingly contradictory line items. In one breath, put limitations on this privacy-eroding practice, and in the next, effectively hamstring the rule by stating that governments can still do things like demand the breaking of cryptography, similar to the demands being made of Apple on behalf of the FBI. More on this from EFF.
   

• As we’ve mentioned before, Canada entered the TPP at a disadvantage. In his recent blog, Geist expands upon just how much of a disadvantage. As it so happens, Canadians stakeholders were not privy to the same level of disclosure and coordination with negotiators as some other countries. Perhaps this explains why after opposing so many provisions in the IP chapter, at the close of the agreement, Canadian negotiators caved on key issues like copyright term extensions, and were unable to even negotiate the phase-in period like some of the other parties. (If you read only one of the original blog posts from Geist in this installment of the Trouble with the TPP roundup, this one would be my pick!)
   

• There is a provision in the Canadian Copyright Act that that limits the ability to collect statutory damages for digital lock circumventions made by private citizens. Exceptions for non-commercial infringement of this type, Geist explains, were an important piece of the puzzle for Canadians, who wanted to see that they weren’t going to be charged for getting past the digital locks on their CD or DVD collection. The TPP contains no such exception, and digital lock rules under the TPP apply even to private citizens.
   

• In his series, Geist highlights several discrepancies between the Canadian rules and the TPP, suggesting that we might be in for bigger changes to our copyright regime than we originally thought. One of the more recent changes, picked up on by Geistand the EFF, came in the so-called “legal scrub” of the final text. This is the part of the process where lawyers take a fine-tooth comb to the agreement and make sure to omit any duplicate words, copyedit, and ensure there are no errors. There are no major changes that are supposed to be made to the text at this point, because at this point, the agreement is done negotiating. In the legal scrub, a sneaky change of one word – from ‘paragraph’ to ‘subparagraph’ – has great implications for the extension of criminal penalties for copyright infringement. As Geist notes, the Canadian government has yet to respond to requests for clarification on this issue, but if the experts at the EFF are right, this change during the legal scrub greatly impacted the way that the this clause would be interpreted.
   

• Some of the touted benefits of the TPP may not be so rosy as they’ve been portrayed by governments who are keen to show the positives of the TPP. Geist points to the attempt to address the high cost of mobile roaming charges as one of these instances, where upon closer inspection, the language employed to oblige countries to be transparent and to keep these costs down is terribly lacking. As Geist notes, “The “shall endeavour to cooperate” is the weakest of the TPP requirements as it is not a requirement at all.”
   

• Investor State Dispute Settlement or ISDS is the piece of the TPP that has perhaps attracted the most attention from concerned citizens in every country where the TPP is on the table. In Canada, individuals concerned over environmental protections, to Canadians worried about increased drug and healthcare costs, to those who want to see Canadian copyright continue to evolve and shift to suit the digital age, ISDS poses a huge threat to laws made in Canada being challenged by companies which see the possibility that they could lose out on future profits. We’ll be digging deeper into the implications of ISDS in the coming weeks, but one of the issues that Geist highlights is that these provisions are even being challenged in other agreements that Canada is party to, in particular CETA. If the Canadian government can work to soften or change the details of this contentious dispute mechanism in other agreements, then presumably there is room to revisit (or remove?) these provisions in the TPP as well.

As always, we encourage you to check out Professor Geist’s blog for more details on the specifics of these threats. And in the coming week we’ll be launching a new tool to help you respond to a public consultation on the TPP where you’ll be able to raise for yourself what you see as the biggest issues, and speak directly to the Parliamentary committee tasked with examining the agreement.

In the meantime, take action with us at act.openmedia.org/finalbattle to stay in the loop.