Thank you, Mr. Chairman.
I am a senior partner with the law firm of McCarthy Tétrault, and the former chair of its intellectual property group. I'm an adjunct professor of intellectual property law at Osgoode Hall Law School, where I teach IP.
I'm here today in my personal capacity, not representing any clients.
The TPP has been heralded as a 21st century trade agreement. In my view, both the e-commerce and the IP chapters reflect that.
The e-commerce chapter is truly innovative in that it reduces non-tariff barriers to the use of the Internet and other networks to conduct trade. This gives Canadian businesses the opportunity to do business in the 11 other TPP countries from Canada, and to maintain jobs here in Canada.
Some of the highlights of the e-commerce chapter are as follows:
There are no customs duties on electronic transactions, although taxes can still be imposed.
There are provisions that remove the impediments to the recognition of electronic documents and signatures, something that Canada has already adopted. This is very important for Canadian businesses that want to transact electronically from Canada at a distance.
There are provisions that prevent blocking of market access with respect to trans-border data flows, which in my view again are very important.
These provisions, some of which are related to privacy, have been criticized. In my view, there is flexibility in the TPP to pursue legitimate public policy objectives. The exceptions that are permitted in GATT have been preserved in the TPP. The parties are required to have minimum standards for protection of personal information and anti-spam. Some have claimed that the treaty doesn't go far enough, but this is not a privacy treaty and not an anti-spam treaty, so where the parties landed is what you would expect in a treaty of this sort.
There are robust provisions that protect Canadian culture in the cultural exemption, contrary to what was suggested by Professor Geist.
The TPP prescribes minimum standards for intellectual property protection. Canada played an active role in those negotiations.
The IP chapter, as you heard today, has been subject to criticism. Those criticisms are that the TPP requires significant changes to Canadian law, and will lock Canada into an undesirable IP framework.
In assessing these claims, I submit that this committee should consider the following:
There really are minimal changes to the treaty that are required by Canadian law.
The impacts that had been publicly identified in the aggregate are not very significant, especially in relation to the overall context of the treaty and when you take into consideration the agreements we made in CETA.
Canada is already committed to many of the TPP's IP requirements, including through other international agreements. It seems unlikely that Canada would repudiate or unwind these obligations or need to materially change how they have been implemented here. It also seems unlikely that any particular change we might want to make would merit pulling Canada out of its existing treaty obligations or would merit Canada not joining the TPP.
Intellectual property laws promote innovation and commercialization of IP products. The 21st century, and the fourth industrial revolution, which we have to engage in, rely on intellectual property protection to raise capital, and to foster innovation and commercialization.
The Canadian market, by itself, is too small for Canadian businesses to succeed. Canadian businesses need to compete internationally, including with our largest trading partners, Japan and the United States. Accordingly, Canadian businesses will need to compete in foreign markets under those IP regimes in place in those foreign markets whether Canada joins the TPP or not, and whether a Canadian business moves to the United States or not; that's the regime under which they have to compete to be successful.
