Citizen Action Monitor

Legal expert Michael Geist shares his concerns about the TPP agreement

Right now “we just don’t know enough to know whether or not this [TPP] makes any sense”

No 1541 Posted by fw, December 15, 2015

“In the world of cultural complexity there is, to use a colloquial expression, no free lunch. More complex societies are costlier to maintain than simpler ones and require higher support levels per capita.”Joseph Tainter (Source: Complexity, Problem Solving, and Sustainable Societies.)

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“But what’s important is, I think, it’s critical that the government recognize that this has not been well studied, that it has been conducted, from a negotiation perspective, as we’ve heard, almost entirely in secret, which is undoubtedly going to lead to all sorts of unintended consequences…. But even more fundamentally it also tells me that we just don’t know enough to know whether or not this makes any sense. And what we really need is a government that says — even if we sign, because it makes sense for us to sign here, we make a real genuine commitment to do detailed studies and economic analysis and public participation in all of this so that we ultimately make a Canadian choice.”Michael Geist

Two days ago I published a post titled, VIDEO — Panel of experts in Ottawa discuss complexities of technology and the TPP.

To augment that video, below is the first in what will be a series of transcribed excerpts of selected key comments made by the panelists participating in that panel discussion.

Today’s post highlights a transcribed excerpt of the TPP concerns that Michael Geist shared with the panel. Geist is the Canada Research Chair in internet and E-commerce Law at the University of Ottawa.

The question I have is this — Is the TPP too big, too complex, not to fail?

Subheadings have been added to add emphasis to Geist’s concerns. His astute remarks came towards the end of the discussion, beginning at the 1:02:13 mark, ending at 1:06:30. To facilitate a re-viewing of Michael’s remarks, the embedded 75-minute video is presented at the end of this post.

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Technology and the TPP A Panel Discussion by Michael Geist et al, www.michaelgeist.ca, December 11, 2015

~ MICHAEL GEIST VIDEO TRANSCRIPT SEGMENT 1:02:13 – 1:06:30 ~

Start

Nobody yet knows what the TPP costs are, and to date there have been no attempts to calculate costs

I was going to comment because there’s a couple of things quickly. First off, it’s clear there are costs. I don’t think anybody really knows many of the costs and it’s clear they haven’t been well studied, right. So, in this country we had promises from the prior government for large giveaways to diary farmers and I think it was a billion dollars for the auto sector. Japan’s talking about some support from some of their affected sectors. So that’s like a very narrow slice with what seemed like for them [Harper’s Conservatives], at least, to be a political winner at the time – although it turned out it wasn’t.

In terms of… I’ll try to address the issue. For the most part, on almost all these issues, there have been nothing (unintelligible). So, Howard* just made a reference to New Zealand. So, New Zealand did a cost study on what term extension would mean, and we can try to extrapolate the Canadian side. And there’ll be those who say, well the New Zealand study is flawed, and so it doesn’t really give us a good number. But the point is, there are, at least, there have not been significant attempts to try to identify some of these costs.

There’s so much to talk about you can’t do it in a 75-minute discussion

And when we come back to the fact that we are talking about an enormous agreement… I mean we’re sitting here with 10 minutes left on this panel and we had a long list of stuff that we thought we were going to do deep dives into, and it turns out we’re not going to do deep dives into practically any of those things because there’s just so much to talk about that you can’t do it in an hour and a half it turns out. I mean, I don’t… (interrupted by panel laughter). The question we’re going to face is — can you do it in two years?

Even if we don’t know if we will ratify the agreement, it makes sense to sign it in February

Because what we are going to face is… (Carolina interrupts – A yes/no vote in the American Congress) … from a Canadian perspective, we’re going to… we, for all intents and purposes, we’ll sign alongside all the other TPP countries in early February. And there is an argument to be made that that makes sense – that there are benefits to being an original signatory, and if you are not part of that then you don’t count for other purposes within the treaty. And so even if you don’t know if you’re necessarily going to ultimately ratify the treaty and implement it, it’s still is the case that signing it may make sense. There’s an argument…and so my suspicion is the government will say — it makes sense to at least keep ourselves in the game. That is why we got into this in the first place. To walk away now undermines at least our ability to be at the front of the line if we choose to move forward.

“It’s critical that the government recognize that this has not been well studied”

But what’s important is, I think, it’s critical that the government recognize that this has not been well studied, that it has been conducted, from a negotiation perspective, as we’ve heard, almost entirely in secret, which is undoubtedly going to lead to all sorts of unintended consequences.

Provisions to the text that Canada was allowed to keep during negotiations can still be misinterpreted

We had one even in the notice and notice** provision that I made reference to earlier where the provision that was designed to allow Canada to stay… to keep it’s notice and notice could be interpreted in a manner that actually wouldn’t have allowed us to keep it because there was some language missing. And between Atlanta on the one hand and the text being released a month later, they made subtle… they made a slight change that tried to address the issue.

Since the US is trying to make changes to some provisions, surely others are open to make changes

My question would be how many other instances are there where there are similar kinds of things? There are even reports in the last week that the US is using what’s known as the “legal scrubbing process” right now to make some changes within some of the IP [intellectual property] provisions before they actually sign in February. So that tells me (a) there is still room to make changes – to Howard’s question: Is there room? – well the US is trying to make changes and if they’re trying to make changes then surely it’s open to others.

To ensure in-depth understanding of this massive treaty, the government needs to commit to detailed studies, economic analysis, and public participation

But even more fundamentally it also tells me that we just don’t know enough to know whether or not this makes any sense. And what we really need is a government that says — even if we sign, because it makes sense for us to sign here, we make a real genuine commitment to do detailed studies and economic analysis and public participation in all of this so that we ultimately make a Canadian choice.

We’ve got at least a couple of years so let’s do the kind of study that the TPP deserves

And it might be that we choose to say — you know what, this does benefit us and we are going to do it notwithstanding some of the costs. But at the moment we’re left with an agreement that practically no one has read in its entirety. Nobody, for the most part, was even aware what was in there at a true legal level because it was all conducted in secret. And we’re hearing from some, well of course you’ve got to sign it so go ahead. No. What we really need to do is to say — we’ve got at least a couple of years to do the kind of study that you [Loris Mirella] referenced and go ahead and do it.

End

** ‘Gordon’ is the first name of a person in the audience who asked a question about whether or not the TPP agreement could still be revised

** ‘Notice and notice’Harper Government Announces the Coming into Force of the Notice and Notice Regime, June 17, 2014 — Industry Minister James Moore and Minister of Canadian Heritage and Official Languages Shelly Glover today announced the coming into force of the Notice and Notice regime. This is the final step in implementing the Copyright Modernization Act, the Government’s balanced approach to modernizing Canada’s copyright laws to better protect the rights of creators and innovators in the digital age. The Notice and Notice regime is a made-in-Canada solution and will formalize a voluntary system that some copyright owners and Internet service providers (ISPs) have already been participating in for many years. It will legally require Internet intermediaries, such as ISPs and website hosts, to take action upon receiving a notice of alleged infringement from a copyright owner.

Video

 

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