On October 5, 2015, Canada and the following 11 Pacific Rim countries: Australia, Brunei Darussalam, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam, have reached a deal on the content of new free-trade agreement covering the Pacific region, the Trans-Pacific Partnership Agreement (the “TPP”). Although the final treaty text has yet to be settled and released, some information about the agreement has been released by many of the participating governments, including Canada. The content of the TPP covers a wide variety of economic activities and sectors, including, among others, telecommunications, e-commerce and intellectual property.
The provisions on telecommunications are all based on a general objective among the TPP countries that there should be more regulatory certainty for telecommunications service providers operating and investing in the TPP countries. As such, the TPP countries have agreed to ensure access to telecommunications facilities under fair and reasonable terms, to allocate scarce resources (such as frequencies) in a non-discriminatory manner, and to be transparent in their regulatory process.
It will be interesting to see what influence such rules may have on regulatory policies aimed at promoting competition in the telecommunication sector, such as mandatory wholesale access to wireline facilities and preferential spectrum allocations in the wireless sector, as well as on the cluster of policy issues which fall under the broad heading of network neutrality.
The TPP countries have also addressed the issue of international mobile roaming charges and have agreed to allow telecommunications service providers from TPP countries that do not regulate rates on wholesale international roaming services to benefit from lower rates offered in TPP countries which do not regulate such rates.
The TPP provisions on telecommunications do not contain rules on broadcasting services (other than to ensure access to telecommunications services by broadcasters). However, the Canadian government notes that it has included a “broad reservation” under the Services and Investment chapters to protect cultural sector programs and policies aimed at promoting the creation, development or accessibility of Canadian artistic expression. So the treaty may not have any direct impact on restrictions on foreign ownership in the broadcasting sector, or on Canadian content rules and subsidies.
As for e-commerce, the TPP countries have agreed to facilitate the use of electronic commerce as a means of trade.
The TPP countries have agreed to not discriminate against or impose custom duties or other charges on online digital products, to promote the free flow of information across borders, to not require the use of local servers for data storage and to maintain measures to protect users from unauthorized disclosure of personal information and from spam.
It will certainly be interesting to see how these requirements will be implemented in British Columbia and Nova Scotia, which both have privacy legislation requiring public bodies to access and store their data in Canada, with limited exceptions.
The TPP chapter on intellectual property covers patents, trademarks, copyrights, industrial designs, enforcement, geographical indications, pharmaceuticals, public health concerns as well as satellite and cable signals. The TPP also contains a general cooperation commitment between the TPP countries in the intellectual property sector.
The provisions on copyright include some of the key aspects of the Canadian copyright regime, such as the exceptions and limitations framework, the Notice-and-Notice regime on Internet service providers’ role in online alleged infringement of copyright and the enforcement measures against circumvention of technological protection measures (commonly known as “digital locks”).
The provisions on trademarks are described by the government as consistent with Canada’s current regime and are in line with Canada’s projected amendments to the Trade-marks Act in light of its intent to sign and ratify the Madrid Protocol and the Nice Agreement.
The provisions on patents are based on the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property and are said to be consistent with Canada’s current criteria regarding patentability exclusion. The TPP’s provisions on patents also ensure patent protection for inventions in all fields of technology.
On the enforcement side, it is worth mentioning that the TPP contains strong civil and criminal enforcement provisions, notably as regards to copyright piracy and trademarks counterfeiting.
Finally, as the final text of the TPP has yet to be settled between the TPP countries and then be ratified and implemented by the 12 TPP countries before it takes effect, it remains to be seen how these provisions will be enforced in each country and interact with the local law.
A technical summary of the TPP by the Canadian government is available at: http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/tpp-ptp/understanding-comprendre/index.aspx?lang=eng.