Macdonald-Laurier InstituteIt has become fashionable to declare the Trans-Pacific Partnership intellectual property provisions a disaster for innovation in Canada, writes Richard C. Owens. But that doesn’t make it right.

By Richard C. Owens, May 13, 2016

Even in the law and innovation communities it has become fashionable in Canada to be critical of intellectual property. The intellectual property provisions of the Trans-Pacific Partnership, which when implemented will strengthen IP rules generally among signatories, are prey to this fashion.

While the right sometimes will criticize IP as monopolistic, the left, perhaps because it tends to be critical of property in general, is the more common breeding ground of critics. The Broadbent Institute, Professor Michael Geist of the University of Ottawa, Joseph Stiglitz of Columbia University, Munk Centre denizens Dan Breznitz and David Wolfe, Brock University Professor Blayne Haggart and of course, Jim Balsillie, all have recently published or had reported criticisms of the TPP IP chapter. I extensively critiqued such criticism in a paper published by the Macdonald-Laurier Institute, Debunking Alarmism Over the TPP and IP. Alas, that paper did not stem the critical flow. TPP negativism has been abetted by the media who uncritically report it, often without balancing perspectives. As we can see from the US election debate, the neo-liberal orthodoxy of the benefits of free trade is not so securely ensconced in public opinion that it, and the reason and research behind it, do not need restatement and reinforcement.

Various arguments are raised against the TPP. One broad class of argument is that Canada lacks innovation capability and will therefore be disadvantaged in the world in which the TPP is implemented. This is premised on the notions that additional IP protection will stymie innovation (not so), and that Canada is in a negative balance of trade position in IP-protected goods and therefore will suffer economically if IP rights are extended. Most simply, and like so many arguments against the IP provisions of the TPP, this one falls down on the fact that the TPP makes virtually no significant changes to Canada’s IP regime. Moreover, by strengthening the IP regimes of our trading partners it can only help Canadians and improve the balance of trade. And, studies show the implementation of the TPP to have a minimal negative or a positive effect on Canada economically.

It is also suggested that the way to address the problem of insufficient innovation in Canada is to weaken its IP legal regime. From this perspective, the TPP is seen to be problematic for locking us into excessive IP rights, preventing future loosening to spur innovation. But in fact Canada, while admittedly having a great deal to improve upon, has an innovative economy ranking surprisingly high in some criteria — for instance, R&D investment and attractiveness to venture capital — in the recent (4th) edition of the U.S. Chamber of Commerce’s annual International IP Index. To suggest that Canada’s innovation would be spurred by cutting back on IP protection is counterintuitive and not borne out by the literature. Moreover, to cut back our IP regime is unrealistic and would conflict with existing treaties.

Critics often seem not to fully grasp the admittedly complex provisions of the TPP and of Canada’s background IP regime. Sometimes their criticisms are deliberately evasive, other times they seem to stem from insufficient attention to the TPP text. Critics seem to feel free to speak fairly broadly against the TPP. One critic for instance states simply in the Globe that “the sections on intellectual property rights, foreign investment rules and trade secrets are particularly troubling.” without elaboration. It seems to be simply taken as read.

Whatever makes it fashionable to oppose property rights and free trade, it has become especially important for IP and trade scholars to continue to articulate disciplined insights and empirical study over ideological and political rhetoric. The great importance of IP rules to the innovation economy will be extensively analyzed in an upcoming report on Canada’s IP regime to be published by the MLI. There is not space here for a comprehensive rebuttal of TPP iconoclasm. But it is fair to ask why critics should make easy, populist slanders of the TPP, while it falls to those of us who actually have read it carefully to muster a point by point defence. It is time for more balance in the debate of trade and IP.

Richard C. Owens is an adjunct professor at the University of Toronto Faculty of Law.