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Getting past the secrecy: Could the Trans-Pacific Partnership threaten free expression in Canada?

There has been a great deal of talk over the past few years about the Trans-Pacific Partnership (TPP). But how much do you really know about it? What is it? What threats does it pose to free expression in Canada and abroad?

In an attempt to uncover the answers to these questions and more, CJFE hosted a live chat, “Decoding the Trans-Pacific Partnership.” The engaging and informative discussion, moderated by Macleans' technology affairs critic and CJFE Digital Issues Committee member Jesse Brown, featured an in-depth conversation with University of Ottawa law professor and Internet and e-commerce specialist, Dr. Michael Geist.

Some of the highlights from the event are as follows.

Brown: “Let's assume that people are giving us about five minutes to explain why they should care about the TPP. What headline can you provide that'll convince them this is worth sticking around to learn more about?”

Geist: “Good first question. If – and that's a big if – the TPP comes to fruition, it will dramatically reshape Canadian law in a wide range of areas. While there is much attention on issues such as agriculture, my primary concern focuses on intellectual property and privacy. On both issues, the TPP would reshape Canadian law in very troublesome ways.”

Brown: “Troublesome how? What's the potential impact on free expression on the Internet?”

Geist: “In the case of the TPP, the potential for new rules that could lead to kicking people off the Internet (known as three strikes) or creating onerous new liability for intermediaries such as ISPs and search engines is very real. If included in the treaty, it is hard to think of a bigger impact on free expression than removing access to the Internet altogether.”

As the conversation progressed, the event also incorporated questions from public viewers of the live chat. One such question, reiterated time and again by our guests, was a concern surrounding the total secrecy of the TPP negotiation process.

Geist: “Secrecy is a massive issue with the TPP. Anything we know about the substance of the treaty is still based on leaks, since no government has provided the public with actual text. Moreover, we know that there is two-tier access to TPP information. The Canadian government has established a TPP Consulting Group with members signing non-disclosure agreements. It would appear they get access, but the rest of us don't. In fact, Members of Parliament have even noted they don't have access, even though politicians in other countries do.”

One of the primary issues addressed was how exactly the TPP would directly affect Canadians' right to free expression and information online. According to Dr. Geist, there are at least three obvious ways digital freedom would deteriorate:

1) Canada would be forced to drop its notice-and-notice approach – a system that protects the privacy of subscribers and doesn't result in takedowns of content based on mere allegations – in favour of a takedown system that could stifle free speech by forcing the removal of content without the need for any proof of infringement.

2) The TPP would require Canada to add an additional 20 years to copyright terms – presently set at the life of the author plus an additional 50 years after their death. This extension of terms would mean no new works would enter the public domain in Canada until at least 2034 – assuming an agreement takes effect in 2014.

3) Canadian copyright law includes an important distinction regarding statutory damages as it features a cap of $5000 for all non-commercial infringements. Yet the TPP would require Canada to drop the non-commercial cap and restore statutory damages that could climb into the millions of dollars for individual Canadians.

Beyond focusing on how the TPP will erode Canadian legal institutions and drastically restrict the everyday online activities of Canadians, the chat also sought to highlight some of the main spaces for opposition against the agreement.

Geist: “I think governments can form important coalitions in the negotiating room and it's crucial to ensure that our government represents our interests in that regard. However, the real pressure will come from NGOs, opposition parties, and others that raise public awareness and pressure all the governments to back off the most troubling aspects of the treaty.”

Brown: “So what would you like to see coming from the public in order to drag this debate out into the open? What can people do?”

Geist: “I wish there was an easy recipe, but there isn't. I think it starts with writing to our MPs, demanding greater transparency as part of the process. I also think we should be prodding opposition MPs to make this an issue in the House of Commons and to devote more committee time to studying the implications of the treaty. Finally, we need to be on the ground during the negotiations. There are opportunities to meet with negotiators, raise concerns, and try to have some impact - however small - on the outcome.”

Brown: “If people want to stay connected to this issue, where can you point them?”

Geist: “There are several organizations and groups that are active. Open Media and the Council of Canadians both regularly cover the TPP, and I also frequently blog about it on my own site – Michaelgeist.ca. Outside of Canada, the Electronic Frontier Foundation, Knowledge Ecology International, and Public Knowledge are good sources on the digital issues.”

Finally, CJFE wanted the discussion to leave the public with a clearer sense of the murky timeline surrounding the final drafting and ratification of the TPP.

Geist: “There is no shortage of false deadlines. Until recently, Canada and US officials were claiming the talks would wrap up by the end of this year. More recently, there have been acknowledgements that won't happen. Ironically, as it gets bigger – more countries participating – it both grows in importance and becomes tougher to bring to a conclusion. Japan recently joined and South Korea just this week indicated that it might want in as well. As more significant economies join the talks, reaching consensus will be tough. The current target seems to be 2014, but even that is probably unrealistic.”

Once again, CJFE extends a big thank you to Michael and Jesse for generating such an informative and engaging live chat, as well as to our guests for contributing questions, comments and participating in the event. Be sure to keep an eye out for more stimulating live chats from CJFE in the future!

Want to learn more about the TPP?
• Follow Jesse Brown on Twitter @jessebrown
• Follow Michael Geist on Twitter @mgeist
Read our TPP background article for more on why Canadians should be concerned

See the full discussion on CJFE's website
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