What does the Trans-Pacific Partnership mean for free expression in Canada?

Wednesday, August 14, 2013
Internet cables in a server room in Warsaw, Poland. PHOTO: REUTERS/Kacper Pempel
By Adam Kingsmith Born out of various regional agreements in the Asia-Pacific region, the Trans-Pacific Partnership (TPP) is a multilateral trade agreement aimed at both reducing tariffs and addressing emerging trade issues in the 21st century. According to an original draft of the agreement from 2006, the TPP seeks to further liberalize trade by restructuring trade rules of origin, trade remedies, technical barriers to trade, trade in services, intellectual property, government procurement and competition policy. In November of 2011, leaders of the TPP countries–Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, the United States and Vietnam–released a statement announcing the broader objectives of the unprecedented agreement, which would encompass over 792 million people and a combined GDP of 27.5 trillion dollars.
“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.”
As of summer 2013, Canada and Mexico (October 2012), as well as Japan (July 2013), have officially joined the negotiations. Additionally, if South Korea – who is actively pursuing entry for later this year, succeeds in gaining membership, the TPP will comprise 40 per cent of the global GDP, and nearly a third of world exports. 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 – rhetorical language games aside, the only way to understand the TPP’s implications for free expression in Canada is to dissect what little we currently know about the partnership. To start, 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. Admission however, came with some serious strings attached. Sight unseen, the Canadian government had to agree to accept all negotiated text on which current members have already reached a consensus. According to the United States Trade Representative (USTR), this includes all un-bracketed text within chapters that are still open for negotiation. As only one chapter has been officially closed to date, the federal government will essentially be forced to implement policies Canadians had no say in shaping, as well as policies yet to be drafted up. What’s more, all TPP negotiations take place behind closed-doors, meaning only those directly involved in the process – appointed government representatives and industrial advisors, are privy to the policies being debated. Public interest groups, media, academics, and concerned citizens alike will be unable to access any TPP-related documents until a full four years from the close of the negotiation process. Due to this apparent lack of transparency, the only sources for information about how the TPP will affect free expression in Canada are leaked documents such as the February 2011 draft of the TPP’s chapter pertaining to intellectual property rights. Analyses of this TPP draft reveal two articles, as well as an overarching US-based coercive legal framework that when implemented concurrently, have the potential to severely restrict the ways Canadians express themselves – particularly online. Article 4.1 calls for the increased regulation and restriction of temporary copies–files that are automatically copied by computers into their random access memory (RAM) during the course of routine processor operations such as web browsing. Since it is technically necessary to download a temporary version of everything we view on our devices, temporary copies are essential to Internet usage. A definitive and inflexible international standard on temporary copies would not only create a new intricate layer of copyrights, it would also impact the cost of accessing licensed content, as well as raise concerns about how this provision could affect privacy. Article 16.3 posits that all signatories must force their domestic Internet Service Providers (ISPs) to act as copyright monitors, meaning the private companies that provide Canadians with Internet access would be expected to act as digital watchdogs. Inspired by policies such as the Digital Millennium Copyright Act (DMCA) and Anti-Counterfeiting Trade Agreement (ACTA), this policy would require ISPs to block access to websites that allegedly infringe or facilitate copyright infringement, filter private communications for copyrighted materials, and initiate a three-strikes law terminating users’ Internet access on repeat allegations of copyright infringement. Additionally, as mentioned above, agreeing to policy harmonization based upon an American legal framework is a precondition for any country joining the TPP. This means that Canada could be forced to amend dozens of democratically instituted laws and policies in order to bring them in line with the partnership’s status quos. Some of the TPP revisions to Canadian law could include a ban on unlocking private digital devices such as mobile phones, 20-year increases to posthumous patents for written and recorded works, the criminalizing of all petty copyright infringement for non-profit, non-commercial and educational purposes, as well as harsher criminal penalties for Internet users who refuse to comply to content takedown orders. In short, Article 4.1 could effectively restrict the use of citizen-driven social media platforms and blogging sites, while Article 16.3 might turn our ISPs into watchdogs that could warrantlessly monitor Internet traffic for instances of alleged copyright infringement or dissent, as well as surrender our information to regulatory bodies. If we combine these articles and US-inspired TPP policy harmonization with the fact that negotiations have apprehensively disregarded all appeals for multilateralism, public consultation, or basic transparency, it seems Canadians have some very valid reasons to be concerned about how the TPP will affect their everyday lives online. There is still so little we know about the TPP, and with leaks revealing many ways in which our avenues for free speech and actions are being shut down, it is clear that Canadians need to pressure our government for more consultation and information.
Adam is a member of CJFE’s Digital Issues Committee, freelance writer and PhD student in political science at York University, where his research explores the intersections of technology, governance and media theory. For more of his work, visit adamkingsmith.com or follow him on Twitter: @akingsmith.

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