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The Trouble With the TPP, Day 23: On Signing Day, What Comes Next?

Later today, the 12 countries that make up the Trans Pacific Partnership, a massive global trade deal that includes Canada, the United States, and Japan, will gather in New Zealand to formally sign the agreement (the official signing day is February 4th, but with time zone differences, the signing ceremony starts at 5:30 pm ET on the 3rd). Signing the TPP is a major step forward for the controversial treaty, but questions still abound over whether it will be ratified and take effect. The Trouble with the TPP series, which I initially planned to wrap up today having examined issues ranging from copyright term extension to the weak cultural exception, takes a one-day break from substantive concerns to focus on the future. However, given that there are still some important issues to be considered, the series will continue well into this month.

While the Liberal government has been cautious about expressing its support – International Trade Minister Chrystia Freeland has been consistent in calling for consultation not conclusions – the decision to sign the TPP was never much in doubt. The agreement contains incentives to be an “original signatory”, since only those countries qualify for the rules related to entry into force of the agreement. To stay on the sidelines at this early stage might have kept Canada out of the TPP for good.

Moreover, as Freeland emphasized in a public letter released last week, signing a treaty does not create binding legal obligations. Indeed, Canada has a fair number of international treaties that it has signed but not ratified, including a 1988 Convention on International Bills of Exchange and International Promissory notes. The same is true for the United States, which has signed the United Nations Convention on the Rights of the Child, but has not ratified it.

The big question was never whether Canada would sign, but rather what comes next. The TPP will not take effect for at least two years, giving the government ample time to engage in the consultation and study that was largely absent during a negotiation process that was notable primarily for its secrecy. Proponents of the TPP will urge the government to implement quickly, yet there is no advantage to do so and considerable risk that Canada would bear the costs of the agreement without ever realizing the benefits.

Freeland and her Parliamentary Secretary David Lametti have already engaged in more public consultations on the TPP in two months than the Conservative government did during years of negotiations.

My weekly technology law column (Toronto Star versionhomepage version) notes that there is far more work to be done.

First, Canadians must understand the costs and benefits of the TPP in order to provide useful feedback. The government summaries released last fall frequently present a misleading picture of the agreement. For example, the documents claim that Canada secured a broad exception for the cultural industries. However, on closer inspection it turns out that Canada did not get a full cultural exception as the TPP mandates unprecedented restrictions on policies to support the creation of Canadian content.

The shocking cultural restrictions are the tip of the TPP iceberg. The summaries on copyright and patent reform fail to mention significant legislative changes that would could raise education and health care costs. There is no reference to the privacy implications of the deal and no acknowledgement that other countries obtained protections not granted to Canada. The government should go back to the drawing board to present a more balanced, accurate picture of the agreement and its implications for Canada.

Second, the Liberal government should conduct the economic and legal studies that were seemingly missing from the negotiations. Unlike countries such as New Zealand that have estimated the costs of some TPP reforms, Canadians have been left to guess at the real price of the agreement. In fact, several recent reports have projected very modest benefits for Canada that rank among the lowest in the TPP.

Third, the government’s emphasis on transparency must extend to theTPP consultations. That requires more than just listing consultation events or inviting the public to email their views. There should be public events streamed online and outcomes from other meetings should be posted online. Moreover, Canadians should have access to consultation submissions (with individual privacy protected as desired) to allow them to better gauge the public response.

Fourth, the TPP consultation should go beyond whether to support or reject the deal. Walking away remains a possibility, but if the agreement moves toward ratification, the government should explore flexibilities within the treaty or negotiate side letters to limit the negative consequences. Moreover, a late push to revisit issues such as dispute resolution (as is happening with the Canada – European Union agreement) should remain on the table. Even as Canada signs the TPP, implementation remains far from a done deal.

(prior posts in the series include Day 1: US Blocks Balancing Provisions,Day 2: Locking in Digital LocksDay 3: Copyright Term ExtensionDay 4: Copyright Notice and Takedown RulesDay 5: Rights Holders “Shall” vs. Users “May”Day 6: Price of EntryDay 7: Patent Term ExtensionsDay 8: Locking in Biologics ProtectionDay 9: Limits on Medical Devices and Pharma Data CollectionDay 10: Criminalization of Trade Secret LawDay 11: Weak Privacy StandardsDay 12: Restrictions on Data Localization RequirementsDay 13: Ban on Data Transfer RestrictionsDay 14: No U.S. Assurances for Canada on PrivacyDay 15: Weak Anti-Spam Law StandardsDay 16: Intervening in Internet GovernanceDay 17: Weak E-commerce RulesDay 18: Failure to Protect Canadian Cultural PolicyDay 19: No Canadian Side Agreement to Advance Tech SectorDay 20: Unenforceable Net Neutrality RulesDay 21: U.S. Requires Canadian Anti-Counterfeiting Report CardDay 22: Expanding Border Measures Without Court Oversight)

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at www.michaelgeist.ca.