Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at firstname.lastname@example.org or online at michaelgeist.ca.
Canadian digital policy over the past decade has been marked by a “made-in-Canada” approach that ensures consistency with international law but reflects national values and norms. On a wide range of issues – copyright rules, Net neutrality, anti-spam legislation and privacy protection among them – the federal government has carved out policies that are similar to those found elsewhere but with a more obvious emphasis on striking a balance that includes full consideration of the public interest.
As with many issues, the burning question for the Liberal government is whether the Canadian digital-policy approach can survive the Donald Trump administration. Trade pressures are likely to present Canada with an enormous challenge in maintaining its traditional policy-balancing act since the United States is already using tough talk to signal demands for change. This suggests many Canadian policies will be up for negotiation, although there are some potential opportunities that reside outside of the trade-talk spotlight.
The starting point – as Prime Minister Justin Trudeau recognized with his recent cabinet shuffle – is the future of the North American free-trade agreement (NAFTA).
Mr. Trump has made it clear the agreement will be renegotiated under an “America First” framework. While some commentators have suggested that Canada could emerge from the talks relatively unscathed given the more prominent focus on Mexico, it is far more likely U.S. companies will use the reopening of the deal to push for changes across a wide range of issues.
Softwood lumber, “Buy America” programs and dispute resolution rightly attract attention, but buried in the fine print will almost certainly be demands that Canada remove cultural protections, eliminate foreign-ownership restrictions in telecommunications, reduce privacy safeguards and more closely align copyright and patent rules with U.S. law.
The United States has not been shy about focusing on these issues in the past. Many made their way into the Trans-Pacific Partnership (TPP) and, while that deal will die under the Trump administration, its provisions could live on in other agreements such as a Trump-inspired NAFTA.
A renegotiated NAFTA might, therefore, reshape the Canadian digital-policy landscape. Copyright discussions could lead to demands for Internet takedown rules that were rejected during the 2012 Canadian copyright-reform process, pressure for further patent-law reforms are likely to lead to higher pharmaceutical costs, and the possibility of weakened privacy safeguards would make it tougher for Canada to restrict data transfers to protect sensitive personal information.
If Canada’s bilateral negotiations with the United States seem certain to be defensive, there are digital opportunities that lie beyond the United States. New International Trade Minister François-Philippe Champagne has hinted at the possibility of reviving the TPP with the remaining partners, but the final text was largely a product of U.S. demands and it makes little sense to make major concessions for limited market gains.
The TPP should head back to the drawing board, but more interesting possibilities lie outside the trade portfolio.
For example, late last year, the Internet Archive, a California-based online library that has stored billions of Web pages, announced it is planning to establish a backup of the archive in Canada (I am a member of the Internet Archive Canada board). Internet Archive founder Brewster Kahle pointed to comments from Mr. Trump during the campaign in which he discussed “closing up the Internet” and characterized free-speech concerns as talk from “foolish people.”
Mr. Trump’s position on Internet freedoms remains an unknown, but the risk of a shutdown was enough to spur the Internet Archive to look for a safe haven for its data in Canada. Should Mr. Trump continue to speculate about more restrictive Internet rules, Canada could emerge as an attractive destination for data storage.
Net neutrality represents another Canadian digital-policy opportunity. Mr. Trump has named a long-standing Net-neutrality opponent as chair of the U.S. Federal Communications Commission, indicating the U.S. approach to an open Internet will soon be reversed. Canadian Net-neutrality rules remain in place, however, opening the door to enticing digital businesses that rely on those regulations to set up shop in Canada.
The arrival of the Trump administration brings considerable uncertainty and risk to Canadian trade policy that will trickle down to domestic digital policy. The goal should be to preserve made-in-Canada policies in trade talks, while leaving open the possibility of benefiting from a strong commitment to an open, neutral Internet.Report Typo/Error
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