I'll do my best. Thank you, Chair.
Good morning. As you've heard, my name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law. I appear today in a personal capacity, representing my own views.
There is a lot to say about the TPP. I've written dozens of articles and posts on the agreement, and I'm currently working on a book on point, but I have limited time, as you heard, so I'll focus on four issues.
The first issue is Canada's price of admission and weakness during the negotiations. As I'm sure you know, Canada was not an initial participant in the TPP talks. U.S. lobby groups urged the U.S. government to keep Canada out of the negotiations until a copyright bill was passed that satisfied its demands. Those demands had a significant impact on the contents of the 2012 Canadian copyright bill, particularly the retention of restrictive digital lock rules that were at the very top of the U.S. policy priority list.
Once the U.S. was convinced that Canada would meet its IP and anti-counterfeiting demands, it set further conditions for entry, including a commitment that Canada could not hold up any chapter if it was the lone opponent. That concession became important in the IP chapter, where there were some issues where Canada ultimately did stand alone and on which it was forced to cave.
As the negotiations neared a conclusion, senior Canadian officials were advised that Canada was at a disadvantage in the negotiations, given the lack of coordination and transparency between government negotiators and interested stakeholders. We went ahead anyway and agreed to the deal.
Second, what did we agree to?
I'll start first with the changes to intellectual property law. One of the best-known examples of this is the term of copyright, where in Canada the present term is the life of the author plus an additional 50 years, which is consistent with the international standards set by the Berne convention. It's also the standard that you find in half of the TPP, including countries such as Japan, Malaysia, New Zealand, Brunei, and Vietnam. The TPP requires an extension by an additional 20 years, which represents a major windfall for the United States and a net loss for Canada.
In fact, New Zealand, which faces a similar requirement, conducted its study on the cost of the extension alone, which it estimated at $55 million New Zealand per year. Some have taken issue with that study, but just last week a draft report from the Australian government's productivity commission pointed to estimates of their term extension, which occurred several years ago, and pegged it at $88 million Australian per year. The Canadian cost could even be higher.
The IP changes don't stop there. The TPP includes changes to digital lock rules, longer patent protections, criminalization of trade secret law, changes to trademark law, new border measures, and requirements for ratification by all TPP countries of as many as nine international IP treaties.
Third, it's not just about IP. In fact, the TPP of course goes far beyond that. It touches, for example, on culture, restricting the ability to expand CanCon contribution policies. This means, despite the fact of Canadian Minister of Heritage Joly's recent promise to review cultural policies, that contributions to support the creation of Canadian content may be effectively locked into place, with the TPP blocking new policies aimed at new services and technologies.
The agreement also leaves behind a complex array of regulations for service industries that is almost certain to result in unintended consequences. Hot button issues such as the regulation of online gambling, or ride-sharing services such as Uber, in the news just yesterday and today, may be decided by the TPP, not by Canadian governments, whether at the municipal or provincial levels.
On the Internet, it reverses our long-standing hands-off approach on Internet governance, and it fails to meet our standards on issues such as net neutrality. It even touches on privacy, restricting the ability for governments to implement restrictions on data transfers or data localizations while setting a very low threshold for privacy protection and anti-spam rules. This could place Canada between the proverbial rock and a hard place on privacy, sitting on the one hand between European demands and, on the other, TPP requirements.
Health is also directly affected, with increases for pharmaceutical pricing likely, locking in protections for biologics, and even sketching out rules for a national pharmacare program if Canada were to adopt one.
Fourth, the risks and potential costs of getting implementation wrong are enormous. The TPP was negotiated behind closed doors and presented to the public on a take-it-or-leave-it basis.
I've read references from some MPs claiming that Canada has already consulted on the deal, but I know few experts, if any, who were consulted during the negotiations. In fact, when I appeared before this committee in June 2013, I was told by government MPs that concerns related to the TPP were premature and that I and others should wait until the negotiations were complete.
Now that they are complete, I hear some saying that we've had enough consultation, yet we must recognize that the risks of getting implementation wrong are enormous. The investor-state dispute settlement provisions in the TPP point to the possibility of significant liability from corporate claims.
Minister Freeland has described the ISDS rules that are found in the Canada-EU trade agreement as the gold standard, but the TPP does not meet that standard. Moreover, even crafting our own rules within the TPP may be a non-starter since the U.S. maintains that it gets to decide for Canada how to ratify the agreement through its certification process. In sum, Canada was at a distinct disadvantage in the TPP negotiations, and it shows, with major losses on intellectual property, digital and cultural policies, as well as the prospect of significant liability through ISDS and U.S. certification into how we implement the deal. The issue isn't about being pro- or anti-free trade. In my estimation, it's about a bad deal that should be renegotiated or rejected and other trade alternatives pursued.
I welcome your questions.
