Canada, Mexico Tilt Weight West In Trans-Pacific Partnership Talks

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A complex trade negotiation among several countries bordering the Pacific Ocean just got more weighted toward the west as Canada and Mexico joined their North American partner the United States in the talks. They may also infuse new energy into the talks, which are about to enter their 13th round, but may make intellectual property demands tougher to achieve.

Existing countries negotiating the TPP are: Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, the United States and Vietnam. Japan also has expressed interest in joining.

According to USTR, the 18 and 19 June invitations to Mexico and Canada, respectively, to join the TPP talks set in motion 90-day consultation periods with the US Congress on US negotiating objectives with respect to those countries. And a notice seeking public comments will be published in the Federal Register, it said.

USTR issued similar press releases on Mexico and Canada.

The US has a longstanding trilateral trade agreement with Canada and Mexico in the North American Free Trade Agreement (NAFTA), and may be looking to improve on terms of that deal. This could include intellectual property rights protection, such as copyright laws in Canada.

University of Ottawa law professor Michael Geist, a critic of escalating IP rights, raised several questions about Canada’s entrance into the talks, including its possible second-class status and take-it-or-leave-it acceptance of what has already been negotiated.

The announcement about Canada and Mexico comes as the outward tenor of the plurilateral Trans-Pacific Partnership (TPP) talks may be shifting slightly to try to accommodate public interest groups in light of strong resistance recent similar agreements (like ACTA, the Anti-Counterfeiting Trade Agreement) and legislation (like SOPA, the Stop Online Piracy Act, and PIPA, the Protect IP Act) have run into for lack of public accountability.

Like a private-sector venture discussed among corporate bosses before it is released to shareholders, details of the TPP talks have been kept tightly behind closed doors. But in recent weeks, the US Trade Representative’s office has sought to create a sense of inclusiveness, inviting interested civil society representatives to briefings and insisting they are acting openly.

Still, it remains to be seen whether any substantive details at all will be shared with the public before the negotiations are over. In May, several dozen law professors issued a letter calling for great transparency in the TPP talks.

Last week a draft of the investment chapter of the agreement was leaked and was published by Public Citizen [pdf], whîch said it “provides stark warnings about the dangers of “trade” negotiations occurring without press, public or policymaker oversight.” For instance, it reveals that negotiators already have agreed to many radical terms granting expansive new rights and privileges for foreign investors and their private corporate enforcement through extra-judicial “investor-state” tribunals.”

Tougher on IP Chapter?

The invitation to Mexico to join the talks may complicate negotiations on the intellectual property chapter, said Sean Flynn, associate director of American University Washington College of Law Program on Information Justice and Intellectual Property.

“Bringing Mexico into the TPP negotiation will make the negotiation of the intellectual property chapter that much harder,” Flynn said in a 18 June statement. He said Mexico participated in the ACTA negotiations, but that “ACTA will never go into force in Mexico; the Mexican Senate rejected that agreement in an overwhelming vote while it was being negotiated and there is no indication that it will be asked to change its vote now that ACTA is finished.”

In the TPP, the US is “asking for disciplines on domestic intellectual property laws far in excess of ACTA, which have virtually no chance of being accepted in that Mexico,” Flynn said. And after NAFTA, the US does not have more market access benefits to offer Mexico “in exchange for accepting the onerous U.S. intellectual property demands – a similar context that is driving the resistance of Chile, Australia, Peru and Singapore to the U.S. proposals,” he said.

Flynn said similar barriers will be faced with Canada. “Canada is currently amending its copyright law in ways directly at odds with the U.S. demands for a TPP intellectual property chapter – including by implementing a ‘notice and notice’ brand of internet copyright enforcement that does not rely on private take downs of allegedly infringing content,” he said.

But another source raised several factors in relation to Mexico, including that Mexican negotiators may have learned from the ACTA experience, but the current legislature will turn over in August, the administration will change in December, and the negotiating rounds may be kept within the United States (the last one was in Dallas and the next one in San Diego).

USTR Ron Kirk suggested in his statement that this may be a way to take the relationship further and extract change from Canada on cutting-edge areas like IP rights. “Inviting Canada to join the TPP negotiations presents a unique opportunity for the United States to build upon this already dynamic trading relationship. Through TPP, we are bringing the relationship with our largest trading partner into the 21st century,” he said. “We look forward to continuing consultations with the Congress and domestic stakeholders regarding Canada’s entry into the TPP as we move closer to a broad-based, high-standard trade agreement in the Asia-Pacific region.”

The next round of negotiations is scheduled to take place on 2-10 July in San Diego, California.

Supporting Cast in Congress

Trade-supporting congressional leaders were quick to signal their support for the inclusion of Mexico and Canada. House Ways and Means Committee Chairman Dave Camp of Michigan, and Trade Subcommittee Chairman Kevin Brady of Texas, both Republicans, applauded the invitation to Mexico. They signalled the geopolitical aspect of the decision.

“The TPP talks are critical to establishing strong economic footing for the United States in the Pacific region and providing a counterbalance to China,” said Camp.

“Mexico is our third largest trading partner, and its participation creates an opportunity to further deepen and strengthen our economic ties as we expand the TPP’s breadth,” said Brady. “Today’s action increases the value of TPP negotiations…. I hope that the negotiations are concluded as quickly as possible this year so that we can begin creating jobs through expanded trade in the fastest-growing region of the world.”

Ways and Means Committee Ranking Member Sander Levin of Michigan and Trade Subcommittee Ranking Member Jim McDermott of Washington, both Democrats, welcomed Canada, and put Japan on a different track.

Canada’s inclusion will “give us the opportunity to correct the mistakes of NAFTA, especially on labor and the environmental standards,” said Levin. “Japan continues to be in a wholly separate category from both Canada and Mexico. With our long history of fruitless attempts to open Japanese markets through negotiations, what we need from Japan is action not commitments to act, comprehensive action before – not after – joining TPP.”

“Canada is our single largest trading partner,” McDermott said. “It gives us a good opportunity to fix some of the broken parts of NAFTA, to create more American jobs, and build an even better relationship with an important neighbor.”

More on Canada’s decision to join, including some insight into likely resistance, is here and here.

William New may be reached at wnew@ip-watch.ch.

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