Wednesday, October 7, 2015
visiting professor matthew rimmer

Distinguished Visiting Professor Matthew Rimmer researches and teaches intellectual property and innovation law at the Queensland University of Technology (QUT) in Brisbane, Australia, and was named one of Managing IP's 50 most influential intellectual property people in 2014. At the Faculty of Law this fall, he taught the intensive course, The Trans-Pacific Partnership: Intellectual Property and Trade. Nexus executive editor Lucianna Ciccocioppo interviewed Prof. Rimmer for his perspectives on this 12-member Pacific Rim agreement--approximately 40 per cent of the world's economic output--which he calls 'transformative': 

 

LC:  What was your immediate reaction when the Trans-Pacific Partnership was signed on October 5, 2015?

MR:  It's quite dramatic and striking that the deal was finalized after many delays of the Atlanta talks, and after the Hawaii talks had previously collapsed.  There was a lot of controversy about whether or not there would be a conclusion to the Trans-Pacific Partnership. It looked like, in Atlanta, there were last-minute battles on a number of different issues that were stalling the signing of the agreement. From a Canadian perspective, it seemed at 5 AM, just before the deal was signed, there were still arguments going on in relation to dairy and agriculture. From an Australian perspective, there seemed to be a very serious battle on the question of intellectual property protection of biologics. The Australian prime minister, Malcolm Turnbull, and the Australian trade minister, Andrew Rob, were resisting to accede to the demands of Obama and his trade representative, [Michael] Froman for longer protection for biologics.

 

LC:  Our prime minister, Stephen Harper, has called the TPP the ‘new gold standard’ of global trade agreements. Do you agree?

MR:  I think that the Trans-Pacific Partnership is quite a radical agreement in the sense that it covers not only traditional matters of market access and trade, but it also covers a whole host of other topics, including intellectual property, public health and the environment, financial regulation and questions about investment. The agreement is certainly ambitious in terms of the broad scope of the subject matter covered and also in terms of the membership. It does have the potential to be quite transformative, in terms of laws and regulations and policies across the Pacific Rim.

It's been very interesting to watch the debates in Canada over the TPP as Canada is in the grip of an election. The Canadian minister of trade, Ed Fast, was defending the country’s participation in the negotiations during the election, saying that it was a necessity. Stephen Harper has been busy trying to sell the deal as part of his pitch to protect the economy. He also quite notably had made promises of several billion dollars worth of compensation to dairy farmers in particular.

 

MORE THAN 'COWS AND CARS'

LC:  And the auto industry as well.

MR:  Yes. The auto industry is the other sector that is quite sensitive. I think he has been somewhat nervous about some of the public protests that have taken place over the Trans-Pacific Partnership, notably dairy farmers ringing the Parliament of Canada with their cows and tractors, which obviously caused some consternation amongst the Conservatives.

It seems that the NDP’s Thomas Mulcair is trying to seize the opportunity, and he's busy saying that he won't be bound by a secret deal negotiated by Stephen Harper. He has been raising concerns about the impact upon family farms and auto workers and medicines and local content rules. He has argued that he will oppose it.

The Liberal's Justin Trudeau has been somewhat more circumspect. He has criticized the very secretive process adding the Trans-Pacific Partnership, but he said that he's unwilling to commit himself to a position before he's actually seen the text. He has said, nonetheless, his party supports free trade.

I think the Green's Elizabeth May has been quite critical of the Trans-Pacific Partnership and the way that it would impact upon environment and climate change. There's a full spectrum of views in terms of the Canadian election on what the Trans-Pacific Partnership might mean.

As [U of T law professor] Ariel Katz points out, the Trans-Pacific Partnership is much more than cows and cars. Really, the agreement raises much larger issues about sovereignty, questions about intellectual property and matters about how democracy works. His perspective is that some dimensions of the debate of the Trans-Pacific Partnership haven't really been part of the public debate in Canada.

 

LC:  What has the debate been like in Australia?

MR:  Lots of echoes of similarity between Canada and Australia. Australia has a new prime minister, Malcolm Turnbull, our fifth prime minister in five years. He leads the party called the Liberals, but really, it's a conservative party. He was quite enthusiastic about the Trans-Pacific Partnership, saying that it was a foundation stone for the future prosperity of Australia. Nonetheless, he certainly, as I said before, tried to protect Australia on some sort of health issues, like biologics, but there was also a lot of concern about Big Tobacco bringing investor actions against Australia over our  pioneering plain packaging of tobacco products. There don't seem to be an exclusion of tobacco control measures from being attacked in foreign investment tribunals.

But the coalition are very enthusiastic, generally, about the deal, and I think that will provide Australia with a lot of opportunities. The main opposition party concerned, the Labor Party, a bit like Justin Trudeau, have complained about the secrecy surrounding the deal. They've raised some reservations in terms of health impacts and impacts upon an investor-state dispute settlement. But they haven't necessarily committed themselves to a position.

The Australian political system gives, constitutionally, the power to negotiate agreements to the executive. The Parliament only has a role in terms of dealing with implementing legislation. In Australia, a lot will depend on what the Australian Labor party will do, than amongst the other parties agreeing to propose the Trans-Pacific Partnership and they're very concerned about its impact upon the environment.

There's also a very powerful independent senator, Nick Xenophon. He has said the Trans-Pacific Partnership is a dud. He comes from South Australia and South Australia was rather decimated in terms of its car industry after Australia didn't do deals with Korea and Japan. So he's somewhat more skeptical.

 

LC:  What about Australian farmers? Does this open up access for them into Canadian and US markets?

MR:  Kind of mixed responses. I think the dairy farmers are happy that they all have greater access to the Canadian markets. I don't think they've been really told yet about the billions of dollars of compensation going to the Canadian farmers. The sugar industry is very upset because they didn't really get much more market access to the United States. The US sugar lobby is very strong. I think beef producers were quite happy. But the trade minister has a particular interest in agricultural issues, so I think that was a strong emphasis. A lot will depend on US politics as well. Obama still needs to get Congress to support the deal as a package. Presidential candidate Bernie Sanders is busy saying that he will use the Senate as a platform to attack the Trans-Pacific Partnership…So, it will be interesting to see whether or not a deal can be done before the end of the presidency of Barack Obama.

 

THE GEOPOLITICS OF THE DEBATE

LC:   What happens if our Parliament or the US Congress rejects the deal? Does the whole deal fall apart?

MR:  Not necessarily. I think we can still have a deal if there are a number of merchants who are willing to subscribe to it. I think that a dozen different nations will have their own unique processes. In some countries, there are also some special issues as well. In New Zealand, there's an action being brought by Maori communities under the Treaty of Waitangi. I can bet the New Zealand government has not consulted them properly. Some of the issues play out quite differently in different jurisdictions, which is quite interesting. But it depends a little bit upon the constitutional systems in place.

In Canada, [Minister] Ed Fast was busy saying that the new Parliament after the election would decide on the Trans-Pacific Partnership. It's striking that Canadians are voting at the election and they won't be able to see the Trans-Pacific Partnership before they vote, because the text will not be made public.

The TPP will transform a wide range of different legal regimes across the Pacific Rim, and it will affect many different aspects of our legal systems. In terms of intellectual property, the Trans-Pacific Partnership will have a very radical impact on Canadian copyright law.

Disney and Hollywood have been pushing for a copyright term extension for Canada. Australia has life plus 70 years as part of a trade agreement with the United States. Canada, I think, provides protection for life plus 50 years at the moment. So Canada will be forced to provide for 20 years extra protection for all copyright works. That will have a significant impact upon consumer rights and competition policy and public domain. That will be a very notable impact.

And, obviously, there's a lot of interest in terms of how some of the other copyright measures will impact upon Canadian laws. At the recent Copyright Conference, Ariel Katz spoke about whether the package of measures in relation to the Trans-Pacific Partnership and IP would raise larger issues about Charter and Canadian rights and freedoms. There are some interesting questions about the compatibility of the copyright model being presented to the Canadians with their local constitutional system. That will be an interesting issue.

Obviously, patents will be a particularly prominent issue, with respect to pharmaceutical drugs. Lots of controversies in Canada with respect to drug companies trying to get protection in relation to the pharmaceutical drugs. Notably, Eli Lilly has brought an investor action against the government of Canada complaining that the rejection of its drug patents affects its investor rights under NAFTA. Canada is in a particularly sensitive position because it's also had some strong drug manufacturers like Apotex. Also, there's been quite a bit of debate about biotechnology as well. .. In Canada, a hospital, CHEO [Children’s Hospital of Eastern Ontario], is bringing an action against doing patents in Canada. There are lots of next generation debates, too, over gene patents.

There's going to be stronger protection for trademarks. So all the luxury brands that you can see down Bloor Street—Tiffany's and Louis Vuitton and Nike and Co.— will get additional protection under the regime…Intellectual property, as a discipline, will be completely transformed, but lots of other areas of law will also be significantly impacted. The TPP will impinge upon environmental law and climate policy. [Canadian author and commentator] Naomi Klein has been busy complaining that the White House has been greenwashing the Trans-Pacific Partnership and making bogus claims that it's good for the environment. There's a lot of concern amongst the climate activists that the deal will lock in certain fossil fuel investments at a time in which the world should be divesting itself from all of carbon gas. Very contentious battles ... I think the Canadian mining association was quite happy with the deal.

 

LC:  Take me back a bit please. What was the impetus for this 12-member trade agreement which left out China?

MR:  It has curious origins. Initially, it started off as small little arrangement between New Zealand and few other countries. The impetus for New Zealand was to try to get a deal with the United States. Initially, the negotiations really started under George W. Bush, and then Obama came to power and decided to commit to the negotiations. That expanded in terms of their membership in scope ever since. There are a number of motivations for the Trans-Pacific Partnership, some economic and some strategic. Others say the United States is very frustrated that China and some of the other basic nations like Brazil and India and South Africa and Russia have been blocking their trade initiatives in the World Trade Organization and in other most lateral forms. The strategy of the United States is to build a coalition of the willing, as it were, and establish stronger standards in relation to trade in key regions. In addition to the Trans-Pacific Partnership, they're also negotiating a big deal with Europe. That's called the Trans-Atlantic Trade and Investment Partnership, or TATIP.

And then, there is a third one called the Trade and Services Agreement. They have a triangulated strategy, the Unites States, in terms of pushing three big regional deals to try to transform global roles in relation to trade. Obama sometimes says different things about China and the TPP. Sometimes he says it has nothing to do with China but he's just concerned about our own conflict of interest. Other times he says, unless we take action, China will be the dominant player and influence in the region. The United States talk about the ‘Asia Pacific pivot’ and the Trans-Pacific Partnership being a key part of that Asia Pacific pivot.

Often, there's some very interesting myths and games going on as well. The Secretary of State, John Kerry, was busy talking about the strategic importance of the Trans-Pacific Partnership. As part of his pitch to countries like Japan, he was emphasizing that closer economic ties with the United States would also bring with it other forms of security. It also seems that the United States is seeking to strengthen its diplomatic and strategic position against China as well.

There are interesting politics playing out. For its part, China has quite a sophisticated counter-diplomatic game to the TPP. China has been heavily investing in Vietnam, and Vietnam is meant to be one of the members of the Trans-Pacific Partnership. So, even if companies outsource their businesses to Vietnam, China might still stand to benefit. China has also been busy pursuing its own trade agreements, like the China-Australia Free Trade Agreement. And I think there's a big investment bickering between China and Canada. They've been also promoting RCEP, the Regional Comprehensive Economic Partnership. China has the same diplomatic strategies in play to counteract the United States. So, complex trade games are being played out internationally in terms of the geopolitics of the debate.

But there are also been some sensitive issues, too, about labour rights and human rights and human trafficking. There's been disquiet about labour rights standards in Vietnam, and whether the TPP will do anything to improve those; disquiet about Brunei's criminal code and its treatment of lesbians, gays and transgender persons under the criminal code; and Malaysia’s woeful record on human trafficking. There have been a lot of calls from human rights activists and various politicians for Malaysia to be excluded from the Trans-Pacific Partnership. So discussions about trade and human rights, and the relationship between those topics. There's also been quite an interesting debate about trade and development. Emma Alberici, who interviewed me from Australian television (ABC), was asking if the deal would be good in terms of living conditions in the Pacific Rim or would it exacerbate inequality, as [American economist] Joseph Stiglitz has argued.

 

LC:  And, how did you answer?

MR:  Well, I'm not sure the deal is very well designed to promote development, just because it's very patchy in terms of the countries who are a part of it. There are many developing countries and most developed countries and small island states in the Pacific Rim who are not members of the Trans-Pacific Partnership. I guess there are few genuine developing countries: Peru; Chile; Vietnam; Brunei, perhaps. But that doesn't necessarily provide you coverage and doesn't necessarily mean that it will help in terms of development issues, like access to essential medicines, HIV/AIDS and malaria and tuberculosis, which is a very big issue, or tackling climate change or addressing questions about poverty.

 

LC:  What does the TPP mean for the average Canadian citizen or Australian citizen?

MR:  Well, the big question is whether or not the agreement will be a creator or destroyer of jobs. It's been notable back in Canada and Australia—lots of debate about the impact of the agreement upon employment and wages and working conditions. They consider the governments in power in both countries to have a very similar line about how the Trans-Pacific Partnership will create a great deal of opportunities, but then there have also been complaints about over-hyping the benefits of the trade deals. In Australia, the productivity commissioner's been very critical of some of the claims that they made about trade agreements and the tendency to oversell the benefits and under-report the costs. One of our economists, Peter Marsh, had pointed out that in relation to the China-Australia Free Trade Agreement, the Australian government had made a statistical error and had artificially inflated the jobs and that would be protected in terms of their economic modeling.

That's kind of a really interesting debate about whether the Trans-Pacific Partnership will have a big impact or a much smaller impact or be much more nominal. Economists have been busy debating that issue. It depends a little bit in terms of how you view the reduction of tariffs as well and what kind of economic impact that might have in terms of the agreement. I think there are lot of interesting questions about whether or not these regional agreements will be productive in terms of reducing prices and creating more opportunities. The complexity, of course, is with things like creating intellectual property rights that enables the owners to charge higher prices for some sorts of things like tea products and medicines and luxury branded goods. It's quite a complex equation.

Some market barriers are being taken down, but there's a new monopoly has also been created. I guess the agreement is not necessarily a comprehensive free trade agreement. There does seem to have been elements of protectionism in most of the participants. Even the United States was busy protecting its sugar industry from competition in terms of the deal. It's not necessarily an easy one to consider in terms of the usual blend or terms of free trade versus protectionism. Something more complicated is perhaps happening in terms of the agreement.

There was a lot of focus particularly upon Japan and getting access to Japanese markets, so kind of a significant protection streak in Japan, which was a bit of a concern. But it's kind of fascinating to see how it will all play out.

 

LC:  So what happens now?

MR:  Well, they're still busy scrubbing the texts. So there still might be some final textural deals and arrangements that have been made between the parties. It's pretty much dictated by the rules that exist in different parliaments around the Pacific Rim. The US Congress requires a few months before they can vote on or consider something like a new trade agreement. The Australian Parliament normally holds inquiries into new agreements and new treaties. Each country has its own particular process. I think many opposition parties will be waiting for the publication of the text. But the texts are going to be so voluminous. For my course, we'll just cover, basically, one chapter, and that's taken us a couple of weeks to consider in detail. I think it will be very challenging for policy makers to digest the complex detailed trade deals that were done in relation to the Trans-Pacific Partnership.

 

LC:  Was there any doubt that it would have been signed?

MR:  Yeah, I think there was doubt about the conclusion of the agreement. Particularly in the United States, Congress has a constitutional power in relation to trade matters, so Obama needed to get a fast-track authority from the US Congress. He was able just to secure that, barely. That was an important hurdle overcome. Secondly, it was such a sweeping agreement with such a diverse array of different nations. It was always going to be quite challenging in terms of whether or not such an ambitious agreement could be the subject of consensus. There was some discussion about whether or not the agreement would fall, like some other previous broken agreements like the Anti-Counterfeit and Trade Agreement, ACTA, which was very secretive and also very controversial.

It has been striking and a bit peculiar that Obama has invested so much time and energy into the Trans-Pacific Partnership. When he was running for president, he said it was very critical for trade agreements like NAFTA and he was going to revise and/or appeal them. Since becoming president, he's pursued these ambitious regional agreements that are far more sweeping than even NAFTA. So, there's something very curious there that Obama came to power promising that he was going to change politics and he was going to leave the presidency with a legacy of the Trans-Pacific Partnership, which is quite a plutocratic agreement in its own way, and mainly supported by the Republicans rather than his own party.

It is quite curious to me that President Barack Obama should have invested so much time and energy into the Trans-Pacific Partnership, particularly when many of his own party were so opposed to it. It's one of the many mysteries of the Obama presidency. But he seemed to take a very personal interest into getting the deal up, personally going to Congress and lobbying politicians to give him the numbers for fast track, and also personally calling many of the leaders of the countries across the Pacific Rim to get them to finalize the deal And, in the case of Australia, trying to pressure Australia to submit to its demands in relation to biologics.

 

LC:  So, lawyers and law students around the Pacific Rim will be busy for quite a few years?

MR:  Well, there's something for everyone there. International relations students and all the students up at the Munk School will be kept very busy. Lots of issues in terms of public health and the environment, and labour rights and financial regulations. A wide range of different vehicles of public policy will be impacted. Lawyers can play quite an important role in translating such agreements. But, particularly for many small to medium business and enterprises, they will often need assistance to make sense of the agreement and try to work out what the opportunities and risks are. I think, as a result, Canadian law students and lawyers will have to be more cosmopolitan in terms of thinking about dealing with other countries and some of the opportunities available and trying to think about what they can get out of the agreements’ terms if they arrived at deals.

 

LC:  What will you take back to Australia watching this from a Canadian perspective?

MR:  I think Canada is in a quite a unique position because under NAFTA, there is an investor state dispute summit regime. Canada has had to fight numerous investor actions.

One of the reasons why I was keen on visiting Canada was to understand more about how those investor disputes were playing out. For instance, Long Pine, a gas company, has brought an investor action against the government of Canada over a fracking moratorium and the St. Lawrence River in Quebec. That's a really interesting flash point over the environment and water and land. Also, as I said before, Eli Lilly, a big Canadian drug company have brought an action against the government of Canada. The Federal Court in Canada rejected some of its drug patents. And the Supreme Court of Canada refused to hear a challenge to that, so Eli Lilly are complaining that such a rejection of its patents is in breach of the investor clauses in NAFTA and also the intellectual property chapter.

It's notable that the chief justice of the High Court of Australia has been very interested in the investor actions going on. In a speech he gave to the judges of Australia, Chief Justice French cited the Eli Lilly case, as one to consider and be aware of. He was very concerned about how investor clauses would impact upon domestic courts and the judiciary in the world of law.

The High Court of Australia, of course, found that plain packaging of tobacco products was constitutional under the Australian constitution after an action by tobacco companies. He is very concerned that there is an investor tribunal now considering whether applying packaging of tobacco products in Australia is legitimate. He said that is a collateral attack upon the authority of the court system in Australia, because the highest court in the land has ruled on the constitutionality of plain packaging of tobacco products. In his view, that should be definitive. Companies should not be able to have second chances to challenge domestic court decisions in foreign tribunals. So, there's been a lot of interest in Australia about the experience of Canada in dealing with investor clauses in terms of their risks and opportunities.

 

Matthew Rimmer recently completed an Australian Research Council Future Fellowship, working on intellectual property and climate change. He has been an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales.

He is the author of Digital Copyright and the Consumer Revolution: Hands off my iPodIntellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological InventionsIncentives for Global Public Health: Patent Law and Access to Essential MedicinesIntellectual Property and Emerging Technologies: The New Biology, and Indigenous Intellectual Property: A Handbook of Contemporary Research. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, clean technologies, and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works.

Rimmer has been an active participant in public policy debates over intellectual property and trade – in respect of the TRIPS Agreement, NAFTA, the Australia-United States Free Trade Agreement, the Anti-Counterfeiting Trade Agreement, investor-state dispute settlement, and the Trans-Pacific Partnership.