Digital freedoms in danger: What does the Trans-Pacific Partnership mean for free expression in Canada?

Saturday, May 03, 2014
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By A.T. Kingsmith

Shrouded in secrecy, the Trans-Pacific Partnership (TPP) has the potential to radically alter how Canadians express themselves both online and off.

The TPP is a relatively unknown multilateral agreement aimed at reducing tariffs and addressing emerging trade issues in the 21st century. But it has far broader implications than the trade of goods: the TPP has the power to restrict your ability to share and receive information and communicate freely. By increasing the cost of accessing content online, monitoring private communications, banning the use of materials for educational purposes, blocking websites that challenge these new rules, and instituting criminal penalties for those willing to speak out, the TPP has the potential to erode free expression in Canada. How did we come to be in this mess?

The TPP was established in 2005 as the Trans-Pacific Strategic Economic Partnership Agreement (TPSEP or P4); negotiations for an expanded version, the TPP, began in 2010. According to a leaked 2013 draft of its Intellectual Property (IP) Chapter, if ratified, the TPP will further liberalize trade by restructuring trade remedies, technical barriers, intellectual property, government procurement and competition policies.

In November 2011, the TPP signatories—Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, the United States and Vietnam (Canada, Mexico and Japan joined negotiations in 2012 and 2013)—announced the broader objectives of the unprecedented agreement, which would incorporate over 792 million people and a combined GDP of $27.5 trillion.

“We are delighted to have achieved this milestone in our common vision to establish a comprehensive, next-generation regional agreement that liberalizes trade and investment and addresses new and traditional trade issues and 21st-century challenges. We are confident that this agreement will be a model for ambition for other free trade agreements in the future, forging close linkages among our economies, enhancing our competitiveness, benefitting our consumers and supporting the creation and retention of jobs, higher living standards, and the reduction of poverty in our countries.”

In a statement justifying Canada’s place in the TPP, the Government of Canada contended, “being part of the TPP enables Canada to not only strengthen partnerships in Asia-Pacific but also to help develop an initiative that is driving regional economic integration and setting new rules for how trade is negotiated on a broader scale.”

Yet as is the case with all multifaceted trade agreements, official statements can be ambiguous and enigmatic. Since the TPP has the potential to transform everything from trade and unemployment to investment and intellectual property, the only way to understand its implications for free expression is to dissect what little we know about it.

For starters, the Canadian government lobbied heavily for two years to secure Canada’s spot at the table, believing the TPP to be an opportunity to boost our economic profile; however, admission came with serious strings attached. Sight unseen, the Canadian government had to agree to accept all previously negotiated text, including all unbracketed text within chapters still open for negotiation. As only one chapter has been closed to date, the government will be forced to implement policies Canadians had no say in shaping, as well as policies yet to be drafted.

What’s more, TPP negotiations take place behind closed doors, meaning only those directly involved—appointed government representatives and industrial advisors—are privy to the policies being debated. Media, academics and citizen lobby groups will be unable to access TPP-related documents until four years after negotiations have concluded.

Analyses of the TPP’s leaked IP Chapter reveal two articles and an overarching U.S.-based coercive legal framework that, when implemented concurrently, could severely restrict how Canadians express themselves online.

Article 4.1 calls for the increased regulation and restriction of temporary copies—files that computers automatically copy into their random access memory (RAM) during routine processor operations such as web browsing. Since it is necessary to download a temporary version of everything we view on our devices, such copies are essential to Internet usage. A definitive international standard on temporary copies would not only create an intricate layer of copyrights, but also impact the cost of accessing licensed content.

Article 16.3 posits that all signatories must force their domestic Internet service providers (ISPs) to act as copyright monitors, meaning that the companies that provide Canadians with Internet access would be forced to act as digital watchdogs. Inspired by the Digital Millennium Copyright Act (DMCA) and Anti-Counterfeiting Trade Agreement (ACTA), this policy would require ISPs to block access to websites that allegedly facilitate copyright infringement and screen private communications for copyrighted materials.

And, as mentioned above, Canada could be forced to amend dozens of democratically instituted laws and policies to bring them in line with the TPP’s status quos. Some of these potential amendments include: bans on unlocking private devices such as mobile phones, 20-year increases to posthumous patents for artistic works, criminalizing petty copyright infringement for non-profit, non-commercial and educational purposes, and harsher criminal penalties for Internet users who refuse to comply with content takedown orders.

The fact that these negotiations have disregarded appeals for multilateralism, public consultation and transparency show the TPP definitely has something to hide. Check out openmedia.org/censorship for ways to get involved in fighting back, and follow CJFE as we work to counter this secrecy by keeping you informed as the negotiation process continues.

A.T. Kingsmith is a member of CJFE’s Digital Issues Committee and a PhD candidate in political science at York University. Follow him on Twitter @akingsmith.

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