Canadian Officials Pushing TPP Provisions Ahead of Consultations

The status of the Trans-Pacific Partnership (TPP) in Canada may not exactly be clear. The Canadian government has signaled it is launching consultations. Unfortunately, this comes shortly after documents reveal that some of the controversial copyright provisions in the trade deal are already being pushed behind closed doors.

Politics is muddying the waters of the future of the highly controversial trade deal. The TPP would that bring in numerous highly criticized laws. This includes ratifying numerous other controversial copyright treaties, killing privacy for domain name registrations, adding criminal liability for circumvention of copy protection even when the use is for otherwise legal reasons, cracking down on VPN’s, and mandating ISP level spying on users Internet activities are among many other controversial provisions. Essentially, it’s a laundry list of policies that guts consumer protections to the point where it’s even difficult to believe.

Already, political gridlock in the US is making the goal of US ratification before the elections anything but clear. Meanwhile, mixed signals from Canada is also muddying the waters of the TPP’s future.

A report from the Globe and Mail is currently citing government sources that the Liberals intend on holding public consultations on the trade agreement. From the report:

The Liberal government, under pressure from labour unions fretting about what they fear will be big job losses once TPP comes into effect, have launched widespread consultations on the deal. This could take considerable time, said the government, which strongly advocates the idea of free trade.

One source directly familiar with government thinking said Canada has effectively decided it would sign, even though resistance in the U.S. Congress means the prospects for eventual ratification are unclear.

“As it stands, Canada will most likely sign the treaty but won’t move to ratify it until the situation in Congress becomes clearer,” said the source.

The story gained traction among some observers. Techdirt responded favorably to the news saying:

The other major trade deal involving Canada, TPP, is much more complex, since there are 11 other nations to consider. Although that limits the Candian government’s scope for changing course, it appears that it is nonetheless taking a radically different approach compared to its predecessor. Where Stephen Harper’s government was unwilling to involve the public in any way, Justin Trudeau’s team seems willing at least to ask for their views

The article suggests that because of issues such as this, the TPP ratification process may be grinding to a halt.

Unfortunately, this may only be part of the story regarding Canada and the TPP. Last month, the Liberal Party of Canada also remarked that they wouldn’t be changing the text of the agreement. Both Prime Minister Trudeau and Agriculture Minister Lawrence MacAulay have expressed favorable views of the agreement. MacAulay, for his part, was more direct with his support saying that he saw nothing wrong with the agreement in question.

All this leads to the question: If the party is fully supportive of the agreement, and has no intention on changing any of the text (not necessarily the party’s fault given provisions in the agreement prevents tinkering), what would the purpose of the consultations be? Logically, this may amount to little more than political maneuvering to prevent the controversy surrounding the TPP from sticking to the government.

To make matters worse, it appears tat government officials are pushing the government to ratify some of the copyright provisions in the treaty before Trudeau even signs on the dotted line of this agreement. According to documents obtained by Michael Geist, officials are pushing the Culture Minister, Mélanie Joly, into bringing in Internet censorship and a crackdown of VPN providers. From the report:

The document identifies three issues, each likely to be exceptionally controversial. The first involves the use of virtual private networks (VPN) for copyright infringing purposes. VPNs are widely used in corporate environments to ensure secure communications and by a growing number of individual Internet users seeking technological tools to better safeguard their online privacy.

The same technologies can be used to hide infringing activity, however. Those activities raise genuine issues, though the prospect of targeting the technology itself would quickly generate robust opposition from those who rely on VPNs for a myriad of legitimate purposes.

Officials point to “hybrid legal/illegal offer of online content” as another emerging issue. The reference to hybrid offering may be a reference to those accessing U.S. Netflix, which is a legal service, but raises concerns when a non-U.S. subscriber accesses content that is not licensed in their country. The popularity of accessing U.S. Netflix attracted considerable attention earlier this year when a Bell Media executive said that that Canadians who access the U.S. version of Netflix are stealing.

If targeting VPNs and U.S. Netflix were not enough, department officials also focus on website blocking, stating that “Internet service provider blocking of illegal sites hosted outside Canada” is an emerging issue.

As recently highlighted in the context of Quebec’s plans to require blocking of unlicensed online gambling sites, mandating website blocking raises serious legal concerns including who determines whether a site is “illegal”, how to force Internet providers to block access to foreign sites, and how to address the inevitable constitutional concerns over government-backed blocking requirements. Indeed, the prospect of considering expanded blocking for copyright purposes validates the fears of civil liberties groups that the introduction of blocking requirements invariably expands to cover a wider net of content.

If you’ve studied the Intellectual Property chapter of the TPP as intently as us, a lot of this sounds quite familiar. Here are two passages of this:

1. The Parties recognise the importance of facilitating the continued development of legitimate online services operating as intermediaries and, in a manner consistent with Article 41 of the TRIPS Agreement, providing enforcement procedures that permit effective action by right holders against copyright infringement covered under this Chapter that occurs in the online environment. Accordingly, each Party shall ensure that legal remedies are available for right holders to address such copyright infringement and shall establish or maintain appropriate safe harbours in respect of online services that are Internet Service Providers. This framework of legal remedies and safe harbours shall include:

(a) legal incentives149 for Internet Service Providers to cooperate with copyright owners to deter the unauthorised storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorised storage and transmission of copyrighted materials

Internet Service Provider means:

(a) a provider of online services for the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, undertaking the function in Article 18.82.2(a) (Legal Remedies and Safe Harbours); or

(b) a provider of online services undertaking the functions in Article 18.82.2(c) or Article 18.82.2(d) (Legal Remedies and Safe Harbours).

The cracking down on VPN’s for allowing access to geo-blocked content would fall into these provisions given the word “transmission” in the first passage and definition of “Internet Service Provider” in the second passage.

In addition, the Internet censorship being proposed be these officials also falls in line with these passages.

The risk here is that Canada may act unilaterally on bringing laws (such as copyright laws) more in line with what is contained in the TPP. Both proposals of cracking down on VPNs and calling for ISP level censorship fall in line with these provisions. At this point, there is no indication that we are aware of that the minister in question plans on acting on the advice of these unnamed “officials”, however, it seems the lobbying efforts of major corporation are already very close to the top. One source of the lobbying likely comes from Music Canada, the Canadian arm of the RIAA (Recording Industry Association of America).

All this seems to point to a familiar refrain on the status of TPP in Canada. On the public side, the Canadian government is hearing everyone’s concerns and is willing to partake in consultations so that everyone’s voices are heard. Behind closed doors, however, the government is simply looking for ways of pushing the trade deal through while being inflicted with the least amount of political damage possible in the process.

How it all plays out from here isn’t exactly clear. What is known is that the pieces are moving around the board – some pieces more quickly than others. What the timetable is for certain events to occur (i.e. ratification, signing off, etc) is anyone’s guess.

Drew Wilson on Twitter: @icecube85 and Google+.



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