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Economic Insight Tech concerns with Trans-Pacific Partnership overblown, critics say

The Trans-Pacific Partnership could be the most complex trade treaty ever reached. It spans more than 6,000 pages and includes dozens of annexes and side agreements involving the deal's 12 member countries.

The result is a web of overlapping rules, exclusions, footnotes and tariff schedules. It's a bit like a mash-up of various bilateral agreements in one volume. The TPP makes the North American free-trade agreement, at a mere 1,200 pages, look like a condensed SparkNotes edition.

Anti-trade foes have predictably faulted the agreement for favouring corporations over individuals, driving up prescription drug costs, and undermining the ability of governments to enforce environmental and safety laws.

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But heads really turned in this country when Jim Balsillie, the former co-chief executive officer of BlackBerry who now chairs the Centre for International Governance Innovation, called the TPP the "worst thing in policy that Canada has ever done."

"We've been outfoxed," Mr. Balsillie complained to The Canadian Press soon after a text of the agreement was made public. "I think our trade negotiators have profoundly failed Canadians and our future innovators."

His concern is the deal's intellectual property (IP) and e-commerce rules. That someone from the tech sector would come out so strongly against the TPP suggested perhaps Canadian negotiators had screwed up badly.

Mr. Balsillie's main argument is that the world's leading generator of patents and IP – the United States – has gamed the new trade rules to suit its own commercial interests.

But experts in trade and IP law who have analyzed the deal say Mr. Balsillie's concerns are alarmist and mostly unfounded. Lawyer Richard Owens, a leading Canadian expert in technology law and former head of the University of Toronto's Centre for Innovation Law and Policy, accuses Mr. Balsillie of "clouding the future of a meritorious trade deal with aspersion and error."

Part of the problem is that Mr. Balsillie, like other critics, bases his concerns "not on what the TPP is, but rather on what it is not," Mr. Owens argues in a recent Macdonald-Laurier Institute report.

The United States long ago became the main battleground for establishing IP rights, for better or for worse. And it will still be after TPP, whether Canada ratifies the deal or not.

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The TPP "largely reinforces the status quo" – at least for developed countries, such as Canada and the United States, according to Mr. Owens. The greatest impact of the deal's IP rules will be on TPP countries with less-developed IP regimes, including Malaysia and Vietnam. But for Canadian innovators, he says the deal is a good one because it forces these countries to raise their standards.

"The IP provisions of the TPP are not … particularly new or unique," he writes. "They incorporate much of the IP law already widely harmonized, and require nations that are behind in this harmonization endeavour to catch up over time."

Canada laws already meet the TPP standards "almost entirely," says Mr. Owens, adding that Canadian technology will benefit as other TPP countries come into compliance with these higher standards.

The deal would extend copyright protection of such things as books and movies in Canada to 70 years from 50 years. But it's unclear how that would squelch innovation, as some critics suggest.

Mr. Balsillie may wish the deal would do much more, such as rein in the abusive power of so-called patent trolls – IP holding companies that sue tech companies for patent infringement. But nothing in the TPP prevents countries from introducing "anti-troll" provisions," Mr. Owens points out.

Toronto trade lawyer Lawrence Herman has reached similar conclusions about the TPP's intellectual property rules. Yes, they are highly complex. But he says many of the concerns raised by critics won't affect Canada because its rules are mostly in the line with TPP standards.

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"It's not clear how the agreement, in and of itself, inhibits innovation in Canada," Mr. Herman writes in a recent blog post.

Overlooked in all the criticism of the TPP is that Canadian tech and biotech companies stand to gain enhanced protection of their patented IP in foreign markets, Mr. Herman points out.

The Liberal government has promised a thorough review of the TPP agreement reached by the Conservatives.

But Ottawa must ensure its evaluation focuses on what's actually in the deal, not some utopian idea of what the deal could be.

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