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Home / Business / Economy

Brian Fallow: TPP digital impact yet to surface

Brian Fallow
By Brian Fallow
Columnist·NZ Herald·
8 Oct, 2015 10:00 PM5 mins to read

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Illustration / Anna Crichton

Illustration / Anna Crichton

Brian Fallow
Opinion by Brian Fallow
Brian Fallow is a former economics editor of The New Zealand Herald
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Let’s hope the deal allows NZ to compete in the new world of e-commerce.

The Trans-Pacific Partnership, we are told, is a 21st century agreement which addresses "next generation" issues including the digital economy.

Not much of that was on display, admittedly, in the fraught closing phase of the negotiations, which were all about old-fashioned agricultural protectionism and rent-seeking by Big Pharma. We are in Australia's debt for hanging tough on that one.

But while we await the final text of the agreement it may be worth reflecting on the big picture, and the importance of the 90 per cent of the TPP iceberg that has remained below the surface of media attention.

The great enabling technology of our times, digital ICT, does not just make globalisation irreversible. It also serves to mitigate the tyranny of distance and that is a profoundly positive thing for a country as small and remote as New Zealand.

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We need to back ourselves to be competitive in such a world. We need to be able to claim our fair share of the business which depends on what people have between their ears, rather than the traditional mainstays of rainfall and humus.

But that requires the rules governing international commerce to allow comparative advantage to prevail.

Governments' tendency to protect incumbent producers or providers at the expense of their own consumers, as well as more efficient foreign competitors, must be constrained. It is too easy to pander to vested but influential local interests, just as Canada's supply management system, so successfully defended in Atlanta, does in dairy and other agricultural trades, to the detriment of the Canadian consumer.

Weightless exports are increasingly important. A lot of cross-border commerce occurs at the speed of light, not of a container ship.

It remains to be seen, however, to what extent TPP will liberalise trade in services. Will it do what it says on the can?

How far will the general principle of national treatment, which requires governments to treat service providers from other TPP countries the same as local ones, be limited and stymied by carve-outs?

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The provisions on mutual recognition of licensed professionals, a growing source of weightless exports, sound weak, with talk of "encouraging co-operative work" on the subject, no more.

The high-level language on e-commerce, on the other hand, sounds good: "TPP parties commit to ensuring free flow of the global information and data that drive the internet and the digital economy, subject to legitimate public policy objectives such as personal information protections." It will prohibit the imposition of customs duties on electronic transmissions and prevent TPP governments from favouring national producers or suppliers of such products through discriminatory measures or outright blocking.

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But again, individual TPP countries have reserved the right to carve things out of those provisions.

In telecommunications, the TPP will have "pro-competitive network access rules", the trade ministers assure us, which will cover mobile suppliers.

Where licensing is required, the regulatory processes are to be transparent and technologically neutral.

In the vexed area of intellectual property protection, the language of the ministerial summary out of Atlanta is, to say the least, opaque. An example: "The [IP] chapter includes an obligation for parties to continuously seek balance in copyright systems through, among other things exceptions and limitations for legitimate purposes including in the digital environment." Close scrutiny of the text, when it becomes available, will be warranted.

Only to identify where the minefields are, of course; clearing the mines is no longer possible.

Some early threats on the IP front appear to have been seen off, however.

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New Zealand will not have to change its laws on parallel importing or require internet service providers to terminate accounts for copyright infringements, the Ministry of Foreign Affairs and Trade assures us.

"In addition, TPP will not affect current New Zealand law on software patents or require methods of medical treatment to be patentable."

To the dismay of librarians, copyright terms have been extended by 20 years. But New Zealand will maintain its current copyright exceptions and will not be prohibited from adopting new ones in the future, the ministry says.

Among service sectors, finance is conspicuously large and, as the global financial crisis made clear, dangerous when inadequately regulated.

The TPP allows financial services providers from one member country to sell services in another without having established an operation in that country.

That is subject, naturally, to registration or other authorisation needed for appropriate regulatory oversight.

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The TPP also has rules on when governments can impose temporary safeguard measures, such as capital controls in the context of a balance of payments crisis, for example.

It seems to anticipate that financial services will be an area where its generic investor/state dispute resolution measures may not be adequate and it provides for an overlay of additional provisions. A bit of a red flag, you may think.

It is clear even from the sketchy information available since the negotiations ended this week that there is a lot more to TPP than conventional trade issues like market access for goods and commodities.

In the fast-growing area of the digital economy and services trade more generally, there are both opportunities and risks likely to dwarf the gains from tariff reductions.

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