No 1539 Posted by fw, December 13, 2015
This post is organized in three sections —
1/ Repost of Article about the Event — The article — Technology and the TPP: What’s at Stake? By Heather Cameron, Centre for Law, Technology and Society, uOttawa, December 9, 2015 — summarizes the topics discussed by the panelists. Be prepared for a dose of jargon, including terms such as: “multilateral fora”, “data localisation”, “Canada’s notice and notice approach to internet service provider liability”, “biologics”, and “legal scrub and side letters”. If this article doesn’t intimidate you, you’re ready for the video.
2/ The Video — The embedded 75-minute video including a brief written introduction.
3/ Panel Participants – a brief introduction to each of the experts on the panel
NOTE — The audio-video quality and coverage of the panel discussion could have been better. The audio quality was uneven especially when people from the audience posed questions without the aid of a microphone. Only the first question was audible; all others were hard to hear or fully understand. Unfortunately, the moderator did not repeat the questions for the benefit of those who would be relying on video coverage. A second camera to capture audience questions and occasional reactions would have been a plus.
1/ The Article
On November 30, 2015 experts in trade and technology met at University of Ottawa to discuss the impact of technology provisions of the Trans-Pacific Partnership (TPP), a 6000-page agreement between 12 countries negotiated with the goal of developing a 21st century trade regime. Speakers included Burcu Kilic (Legal and Policy Director, Global Access to Medicines Program, Public Citizen); Carolina Rossini (Vice President, International Policy and Strategy, Public Knowledge); Jeremy de Beer (Professor, University of Ottawa); Michael Geist (Professor and Canada Research Chair in Internet and E-Commerce Law, University of Ottawa); and Tamir Israel (Staff Lawyer, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic). The discussion was moderated by Loris Mirella, Deputy Director of Department of Foreign Affairs and International Trade.
Speakers first discussed the general effects of trade on technology. Ms. Rossini described the extensive TPP provisions that affect technology: Chapters exist on E-Commerce, Intellectual Property (IP), Services, Telecommunications, and in application Enforcement, Investment, Dispute Settlement, and Regulatory Coherence. Professor Geist observed that the TPP moves beyond previous trade agreements that did not include such extensive IP provisions. Mr. Israel explained the criticism of incorporating technology in trade agreements because technology law is still expanding and a specific regime provided in the TPP will be difficult to amend in the future as technology changes. Dr. Kilic noted that the content regulated by trade agreements is expanding because they provide a way to get things done outside of multilateral fora, where achieving consensus has become more difficult as developing countries gain more power. However, the question remains as to who is served by these agreements as TPP’s IP provisions maintain existing knowledge monopolies through closed negotiations and conservative rules.
Concerning ambiguity in the TPP allowing parties flexibility in their implementation, Mr. Israel stated that data localisation provisions in the TPP, while more flexible than previous versions, are still very rigid for any country that wants to deviate from them. Dr. Kilic noted that the language concerning cross-border data transmission incorporated a WTO standard and asked why a better standard was not created. Although Ms. Rossini argued that flexible provisions are beneficial and allow countries to implement their own laws, Professor Geist countered that in effect larger countries will place pressure on smaller countries to adopt provisions they support. Eli Lily’s patent claim against Canada under NAFTA was used as an example of pressure placed on Canada to prevent other countries from adopting Canadian patent standards. Professor Geist further discussed US pressure in the TPP to prevent other countries from adopting Canada’s notice and notice approach to internet service provider liability by only allowing countries that had this system in place at the time of agreement to retain it.
The panelists then addressed issues of implementation and next steps following the TPP. Professor de Beer explained that Canada’s federal system will complicate implementation, because some provisions of the TPP deal with subject matter under provincial jurisdiction and cannot be implemented by the federal government. Some issues, such as trade secrets, were not given as much attention in negotiations because of more controversial topics. Mr. Israel argued that addressing these concerns later through carve outs to the agreement pose problems because it will prevent countries from passing more protective laws in the future. Concerning biologics, Dr. Kilic described how the US set a 12-year term for their protection during the passage of Obamacare, and then tried to get other countries to adopt the rule during TPP negotiations without having enough data to justify this term. Ms. Rossini noted that the TPP further jeopardizes open innovation by preventing researchers from sharing data that is protected under patent provisions.
Looking forward, Mr. Mirella asked panelists what research should be conducted to create a framework promoting innovation in the TPP and future agreements. Mr. Israel discussed the options of doing an impact analysis on the agreement’s effects during negotiations and opening negotiations to other stakeholders. Professor Geist stated that the government should engage in detailed studies and economic analysis if Canada does sign the agreement. As Dr. Kilic stated, signing and implementing the TPP are two very different stories and this is not the end of discussions. Although the text of the TPP is available, changes are still being made through the legal scrub and side letters between countries. When the TPP is implemented it will be a living agreement that allows additional countries to join and will represent the minimum standard for new members. Therefore, it is important to conduct further research to allow policy makers to understand the agreement and create a better implementation model.
2/ The Video
Last month, [November 30, 2015]the University of Ottawa hosted a standing room only panel on technology and the TPP featuring. From left to right in the above photo: Tamir Israel, Carolina Rossini, Michael Geist, Burcu Kilic, Jeremy deBeer, and Loris Mirella, moderator.
3/ Panel Participants (Listed below according position (L to R) in photo and video)
Tamir Israel is a staff lawyer with the Canadian Internet Policy & Public Interest Clinic (CIPPIC), a law and technology clinic based at the Centre for Law, Technology & Society at the University of Ottawa’s Faculty of Law in Canada. CIPPIC’s mandate is to advocate in the public interest on diverse issues arising at the intersection of law and technology. In pursuit of its public mandate, CIPPIC regularly provides expert testimony before Canadian parliamentary committees.
Tamir joined CIPPIC as staff lawyer after articling with the clinic. He conducts research and advocacy on various digital rights-related issues, with a focus on online privacy and anonymity, net neutrality, intellectual property, intermediary liability, electronic surveillance, spam, e-commerce, and Internet governance generally. His advocacy activities have taken him before the courts, various regulators, parliamentary committees, and international Internet governance fora.
For more information about Tamir and CIPPIC click on the above link.
Carolina Rossini is an international associate at Global Partners Digital Associate, supporting GPD’s work in the US and Latin America and a research advisor for the The Global Commission on Internet Governance. She is a member of the advisory board of Open Knowledge Foundation, and of Saylor Foundation in the USA. Previously, she was a Project Director at New America Foundation’s Open Technology Institute, the International Intellectual Property Director at Electronic Frontiers Foundation (EFF), a fellow at the Berkman Center at Harvard University.
Carolina has more than 13 years of experience in international law, contractual transactions and policy, with a specific focus on access to information, internet, telecom, intellectual property and human rights. In May 2014 she joined Public Knowledge, where she will lead PK’s international work.
For more information about Carolina, click on her personal website at http://carolinarossini.net/
Michael Geist obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School. Dr. Geist is a syndicated columnist on technology law issues with his regular column appearing in the Toronto Star, the Hill Times, and the Tyee. He is the editor of several copyright books including The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013, University of Ottawa Press). He is the editor of several monthly technology law publications, and the author of a popular blog on Internet and intellectual property law issues.
Dr. Geist serves on many boards, including the CANARIE Board of Directors, the Canadian Legal Information Institute Board of Directors, the Canadian Internet Registration Authority, and the Electronic Frontier Foundation Advisory Board. In 2010, Managing Intellectual Property named him on the 50 most influential people on intellectual property in the world and Canadian Lawyer named him one of the 25 most influential lawyers in Canada in 2011, 2012 and 2013.
For more information about Dr. Geist click here http://www.michaelgeist.ca/about/
Burcu Kilic is legal counsel for Public Citizen Global Access to Medicine Program. An expert on legal, economic and political issues surrounding intellectual property law, policy, development and innovation, she provides technical and legal assistance to governments and civil society groups around the world and promotes their participation in international rule making. She has performed research and written extensively on these subjects.
She completed her Ph.D. at Queen Mary, University of London as a School of Law Fellow, where she taught International and Comparative Patent Law and Policy. She holds Masters degrees from University of London and Stockholm University in Intellectual Property Law and Law and Information Technology. During her studies, she received numerous awards and honors from the British Foreign and Commonwealth Office, European Union, Swedish Institute and Central Research Fund, University of London.
Her article, US push on intellectual property conflicts with international norms was published by Aljazeera America, December 1, 2013.
Jeremy deBeer is a tenured Full Professor of law at the University of Ottawa’s Centre for Law, Technology and Society, where he creates and shape ideas about technology innovation, intellectual property, and global trade and development. As a practicing lawyer and expert consultant he has argued numerous cases before the Supreme Court of Canada, advised businesses and law firms both large and small, and consulted for agencies from national governments and the United Nations. His current work helps solve practical challenges related to innovation in the digital economy, life science industries, clean technology sector.
His recent articles include: Canada’s Copyright Tariff-Setting Process, Best Practices for Intellectual Property in International Trade Deals and Innovation Appropriation: A Role for IP in the Informal Sector?
University degrees and distinctions include: B.C.L. (First Class) University of Oxford Law 2004; Barrister & Solicitor Law Society of Upper Canada Professional 2002; LL.B. (Silver Medalist, with Great Distinction) University of Saskatchewan Law 2001; and B.Comm. (Great Distinction) University of Saskatchewan Business 2000.
Loris Mirella is the Deputy Director, Intellectual Property Enforcement of Foreign Affairs, Trade and Development Canada. Mirella is the lead IP negotiator on the TPP for the Canadian government.
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