John: So on the topic of patents, the initial US proposal for data exclusivity period (which gives researchers a monopoly on their work) was 12 years It has since been brought down to 8. I’ve heard that it was Canada that helped bring this about. Is this true?

Ed: Yes. Canada is a kinder, gentler nation. We come to negotiations with a better appreciation for flexibility and asymmetrical outcome in bilateral and interregional negotiations. People understand that Canada plays a very valuable role in the TPP regional negotiations by being a trusted party that the less developed country could come to, to try to arrive at outcomes that represent a common denominator.

That required the less mature economies to scale up in terms of IP protection, but that also required the United States to come down from it’s high perch, and accept something lesser than they would have ideally wanted.

Canada played a very significant role in brokering that, and coming up with outcomes that everyone can live with.

J: One of biggest criticisms of the data exclusivity period is that it will of potentially life-saving drugs. How do you respond to that?

We have to understand the other side of the equation. The reason we have these world leading medicines and cutting-edge technologies that can now be deployed to address certain serious diseases, is because countries like Canada, the United States, and those in the European Union actually had strong intellectual property protection. That provided incentives for the brand-name companies to actually develop medicines that really are cutting edge.

It’s always about finding the appropriate balance, between providing an incentive to making billions of dollars of investment required to come up with leading edge solutions to healthcare challenges, and on the other side, making sure that we can get these medicines to Canadians and the rest of the world in an affordable manner.

J: And do you think such a balance has been struck with the current iteration of the Trans-Pacific Partnership?

E: Where the balance lies is never quite clear. That is where the debate takes place.

J: In 2007, Canada temporarily . It was the first time ever that a country has done something like that. Has our capacity to do so changed with the implementation of the TPP?

E: Canada’s ability to do that has not changed. But there has been very little success in getting generic products to countries that cannot afford these medicines. We do have provisions to allow that to happen. Canada has done it. But it has not done it often.

The challenge is this: the more you open up those opportunities, the more you open up opportunities to game the system. It’s been happening all over the world. Whenever there is any opportunity to exploit weaknesses in the system, people do.

But to answer your question: no, Canada’s ability to help developing nations, in the case of an emergency, has not been diminished.

J: Moving on the issue of copyright, one of the big changes is that there will be an extension on the term of copyright for 20 years after the creator's death (bringing it to a total of 70). Some have cited this as an we have made to appease the US, which is by far the largest producer of copyrighted material. Do you see this having a big impact?

E: No. Which is why we agreed to increase our copyright terms by 20 years. I think it should be kept in mind that we secured some real concessions in the TTP as well, in terms of copyright.

Because the standard that the TTP partners established before for internet probity was a notice and takedown provision. If someone posts something on the internet, and someone says “listen you're violating our intellectual property rights”, the US system, which was proposed in the TPP, says “provide notice to the ISP (Internet Service Provider), and they have to take it down”. This is before the plaintiff has even made their case in court. That is called notice and takedown.

In Canada, the debate lasted well over a decade. I was on the committee that studied copyright, and we had decided that in Canada's national interest to not go with notice and takedown, but to go with . So when someone posts something on the internet, and someone else complains about whether they had the rights to post it, the complainant can provide notice to the ISP. However it is up to the complainant to go to court and get the injunctive relief it needs to get the ISP to actually remove that material from the internet.

So this is a clear distinction, and under it (the notice and notice regime), we felt that our system still protected IP. It put the onus on the complainant to make case in court before the offending material was removed. Where in the United States and elsewhere you can submit a notice, and the ISP, without there having been any consideration, has to remove the material.

So it’s where the onus lies: is it on the offender, or the complainant? Canada says listen it is the complainant that has to make its case in court before the material has to be removed by the ISP. We were able to secure Canada's position, and our position was grandfathered in the TPP. So when we look at adding another 20 years to copyright protection, we felt that this was something that we could easily do in the national interest.

J: While we are on the topic, what are some other successes that Canada has achieved in the TPP negotiations?

E: Some of the biggest proponents of TPP in Canada are industries like agriculture and forestry. Through the agreement, they’ve been better access to markets like Japan.

We've also done something quintessentially Canadian. We have a system in place in Canada that is is an anomaly, and that is . We have free trade with the rest of the world in virtually every commodity except chicken, eggs, hatching eggs, turkeys, and dairy. Back in the 1960s, under Trudeau, Canada implemented the system which is effectively a national monopoly. Effectively we do not allow countries from around the world to export into our country any product under those 5 categories.

Now there are small amounts that we do allow under the WTO (World Trade Organization) rules. And our negotiations with the EU provided extra room for the EU to export cheeses into Canada. The TPP provides some extra room for the Americans and New Zealand to export products like dairy and other commodities into our market, but in very small quantities.

There are many people who had hoped that supply management will be dismantled under TPP. That did not happen. We believe that will be horrifically expensive for Canadian taxpayers because the investments that has gone into supply management totals to approximately $45 billion dollars. If you dismantle that system, someone has to pay that $45 billion dollars. That is the taxpayers.

J: Going back to the topic of IP, are there any other concession grounds that we really fought for?

E: It's not a matter of fighting hard for. It's about preserving Canada's existing system of IP protection and we did that. Because, remember, many of the countries that a part of TPP had IP protection standards that were much much lower than Canada's, such as Peru and Chile. And they are being forced to coming up to a much higher standard. We've basically been able to maintain our standard, what we already had in place.
The most significant shift in the standard actually did not happen under the place of TPP but happened in negotiations with EU.

J: I should probably dig in EU then.

E: Yes, definitely. The surprising thing is that a lot of naysayers in the IP side didn't have much to say about what was happening in the EU negotiations. They accepted it was an outcome that was in Canada's interest. But in the TPP, there's somehow, there's a really small number that has been very outspoken.

J: Yes, I have noticed that. Prominent amongst these naysayers is Jim Balsillie, former-CEO of BlackBerry. He recently wrote calling the TPP the “worst deal ever”. What do you say to that?

E: Yes. Jim Balsillie has been very outspoken. We have to understand that Jim Balsillie has a very narrow interest that he is promoting. He has a history with trying to compete with the United States. His company made a decision to compete in the consumer handset market, which was not a core strength of BlackBerry, and it ended up being a disaster. So obviously Jim Balsillie does not have a favourable take on doing business with the United States. This doesn't make the TPP bad.

He has a very narrow interest ... which reflects a bit of a chip on his shoulder. I don't think that should be reflected with what is happening in IP with the TPP.

J: I see. Thank you very much for your time Ed. These are some great insights you’ve shared.

E: No problem John. All the best.

John C.H. Wu is an IPilogue editor and a JD/MBA Candidate at Osgoode Hall Law School and the Schulich School of Business.

The post The Deal of the Century: An Interview with Ed Fast, Former Canadian Trade Minister - Part 2 appeared first on IPOsgoode.

The Trans-Pacific Partnership (TPP) is the largest trade agreement ever, made between 12 nations comprising 40% of the world’s economy. In an written by Barack Obama, who championed the agreement, he claims the TPP will “write the rules of the road for trade in the 21st century”. On February 4, 2016, after seven years of negotiations, the document was finally signed.

To get an in depth perspective on the deal, which has stirred much in the legal community and beyond, I reached out to , Member of Parliament, former Trade Minister, and Canada’s representative throughout much of the TPP negotiations.

John: The TPP’s slogan is “high quality, twenty-first century”. Has the final version of TPP lived up to this goal, particularly in terms of its intellectual property (IP) rules?

Ed: Absolutely. The future we want is one in which there are clear and strong rules protecting IP. When the partners of the TPP got together, they had one common objective: to establish 21st-century trading rules for the Asia-Pacific region. I think we have done that, understanding full well that there is a broad diversity of economic maturity amongst the partners.

What we have done is land on outcomes that reflect a commonly shared understanding of not only the trade rules that will prevail, but also an understanding of the value of IP. Much of our future will be driven by the knowledge economy. We have to ensure that we have are tough rules in place that will protect the efforts of our innovators.

J: My research turned up a lot of comparisons between the TPP and NAFTA (). Care to comment?

E: Well, the TPP is a different kind of agreement. NAFTA was primarily a goods only agreement. It primarily focused on tariff elimination. The TPP goes far beyond that. It addresses in a far more comprehensive way, non-tariff barriers to trade. It is the first time Canada has signed a trade agreement with a chapter dedicated to small and medium sized enterprises. And, of course, it deals with issues like intellectual property in a much more comprehensive way.

J: So when detractors call the TPP “NAFTA, on steroids”, is that necessarily a bad thing?

E: Well, when you look at the total amount of trade that happens amongst the three countries in NAFTA, it has increased quite significantly. For example, since Canada entered into the FTA (), our trade with the United States has almost tripled. And of course, investment flows have increased dramatically.

Back when we first signed the FTA (which was superseded by NAFTA), American investment in Canada was probably around a hundred billion dollars. Today it’s closer to four hundred billion. So it’s not just an increase to the amount of trade, but also the amount of investment that Canada attracted as a result of the agreement, because we had strong investment rules, and had investor-state dispute settlement.

J: While we’re on the topic, investor-state dispute settlement is a very . There is a general fear that such mechanisms, bundled with agreements like the TPP, can invalidate a nation’s sovereignty and subject it foreign interests. Any comments?

E: That is hogwash. These agreements can be cancelled with 6 months notice. You are not ceding your sovereignty. What you are saying is, we will, during the period of the agreement, agree to specific mechanisms to resolve our disputes. They don not in anyway cede sovereignty. What they do is agree, if there is an independent neutral party that rises above national interests, to resolve issues accordingly, and arrive at outcomes that are deemed fair, independent, and non-arbitrary.

J: I see. Going back to NAFTA, you would say that it has been a generally successful venture for all its members?

E: NAFTA has created significant increases to investment flow— certainly to Canada— and bilateral trade with Mexico has septupled since 1995. The agreement essentially established the North American production platform, which remains the envy of the world. We have these almost-seamless supply chains stretching across our borders, allowing us to do trade in a much more efficient manner than if we were still balkanized and had our tariffs in place. I think the general agreement is that NAFTA has been a benefit to all three parties.

J: Currently, the US government, particularly congress, is still split on whether to ratify the TPP. If the US fails to ratify, other countries may start to back out. What are your thoughts?

E: Now from time to time, the benefits of these trade agreements gets caught up in political ideology. Right now in the US, we have the presidential primaries taking place. And people like Hillary Clinton, who used to be a huge supporter of the TPP, are suddenly not. And it all has to do with internal politics.

But at the end of the day, I am confident that the US will ratify the TPP. Simply because it is in the US’ self-interest to be the one, as part of the TPP, to establish 21st-century trade rules within the Asia-Pacific region. Because if we do not do it as a group, someone else will. And those may be rules we are not happy with.

J: So President Obama has taken a similar stance in an I read. He warns that if the US does not pass the TPP, countries like China will be set the rules for the Pacific region.

E: I did not mention China … but if there is going to be a set of rules for trade established in the Asia-Pacific region, why not let it be [done by] economies that understand freer and open trade the best? Countries like Canada and the other NAFTA partners, joined by other free markets like Australia, Japan, New Zealand, and Chile, along with markets like Vietnam, which have historically not been open. But even [Vietnam] recognizes that their future prosperity lies within in a larger Asia-Pacific region in which freer and more open trade takes place under 21st-century rules.

J: There are some (including the University of Ottawa’s ) who claim that the TPP’s increase to IP protection was made to protect the interests of certain corporations— particularly those belonging to the big pharmaceuticals, consumer technology, and Hollywood. Your thoughts?

E: I am confident that this is not corporate driven. The , although it’s not what the US had hoped for, represents a common landing zone where all 12 countries agree to collectively raise the level of protection for IP, understanding that much of our future prosperity will lie with ensuring that the innovators within our economies have their efforts protected in a way that reflects 21st-century standards.

In that sense, this is no different from our negotiations with the European Union. The EU had tougher IP rules than Canada did. When we finalized our negotiations with the EU on our trade agreement with them, we agreed to make some marginal adjustments to raise our IP protection.

The TPP broadly speaking does not significantly change Canada’s existing IP regime... if you compare what our IP protection looks like post-TPP, compared to what it looks like now,  there is very little change. The significant part of the change has already happened in our negotiations with the EU.

J:  Others, like RIM’s , expressed the fear that Canada is compromising itself to the United States with the agreement. After all, the vast majority of IP is produced there, so a stronger system of protection will mean more money in their pockets.

E: There has been a lot said about the US having basically locked in trade advantages by ensuring that there are higher IP protections. In fact, there is very little that changes with respect to Canada. The suggestion that Canada has compromised itself does not hold out when you actually do an analysis on the TPP.

The naysayers are saying that the IP provision of the TPP impairs our ability to catch up to partners like the US or Japan. That is nonsense. But what they really want in Canada is continue to remain in the wild west of IP, where you can still try to gain an advantage by cheating the system. That is not who Canada is. In fact, Canada is one of the most knowledge-oriented economies in the world, and it is to our benefit to product the innovation that comes out of here.

The fact that the US is doing better than better than anyone else in the world is no reason for us to not want protections similar to what is provided in the US. The reason for their success is strong IP protection.

J: Any final remarks on the importance TPP?

E: It is absolutely critical that Canada be a part of the TPP. If we are not a part of TPP, but the US and Mexico are, it represents a huge erosion of Canada's participation within the North American production platform. Because they that have tariff free access into the Pacific region, and Canada will not. Think about where investments dollars will flow. We have to protect our North American production advantages as a part of the TPP.

Join us next week for part 2 of the interview, in which Ed and I discuss healthcare, digital piracy, and Canada’s role in the TPP negotiations.

John C.H. Wu is an IPilogue editor and a JD/MBA Candidate at Osgoode Hall Law School and the Schulich School of Business.

The post The Deal of the Century: An Interview with Ed Fast, Former Canadian Trade Minister appeared first on IPOsgoode.