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Flawed Arguments and Inappropriate Analogies: Why Netflix Taxes and Cancon Requirements Should be Rejected

Michael Geist Law RSS Feed - Tue, 2019/02/12 - 10:10

CBC President Catherine Tait recently sparked a firestorm with comments to an industry conference that likened Netflix, the popular online video service, to the British Raj in India and French in Africa, warning about “imperialism and the damage that it can do to local communities.” The comments were rightly criticized as shockingly inappropriate, as if any video service can be reasonably compared to the subjugation of millions.

My Hill Times op-ed notes that some in the Canadian creator community rushed to defend Tait, however, viewing the comments as a strong assertion for Netflix regulation, the creation of a “level playing field”, and the need for all stakeholders to contribute to the broadcast system. Supporters of Netflix taxes and content requirements – who were joined in the Hill Times last week by Sheila Copps – present a vision of Canadian content at risk without regulatory intervention, leading to the loss of Canada’s “authorial voice” from film and television production.

Industry leaders promised that regulation will come, yet a closer examination of the arguments for Netflix taxes and Cancon requirements reveal that they are based on five deeply flawed premises.

First, there is no existential crisis for Canadian content film and television production. According to the most recent numbers from the Canadian Media Producers Association, the total annual value of the Canadian film and television production sector exceeds $8-billion, its largest amount ever. Spending on Canadian content production has hit an all-time high at $3.3-billion.

In fact, the sector has experienced a huge increase in foreign investment in Canadian production. Before Netflix began investing in original content in 2013, total foreign investment (including foreign location and service production, Canadian theatrical production, and Canadian television) was $2.2-billion. That number has since more than doubled to nearly $4.7-billion.

Second, Cancon regulations are a poor proxy for Canada’s “authorial voice”. The not-so-secret reality of the Canadian system is that Canadian authors are often missing entirely from productions. Films and shows based on Canadian fiction do not count toward meeting the necessary points for Cancon accreditation and even Canadian screenplay writers are not a mandatory requirement.

Unlike many other countries, which adopt flexible standards to determine domestic content, Canada’s rigid approach means that generic police or courtroom dramas may qualify as Canadian content while the television adaptation of Margaret Atwood’s Handmaid’s Tale does not. Moreover, co-production agreements with dozens of countries ensure that many productions qualify for Canadian support despite limited Canadian participation.

Third, if the playing field lacks balance, it is the regulated sector – not Netflix – that is the prime beneficiary. The broadcasting and broadcast distribution sectors receive a wide range of regulatory benefits, making their mandated contributions effectively a quid pro quo for policies such as simultaneous substitution rules, which allow Canadian broadcasters to replace foreign signals and advertising with their own, and copyright retransmission rules, which allow for the retransmission of signals without infringing copyright.

Unlike Netflix, the regulated sector also benefits from must-carry regulations, which mandate the inclusion of many Canadian channels on basic cable and satellite packages; market protection, which has shielded Canadian broadcasters from foreign competition such as HBO or ESPN for decades; and eligibility for Canadian funding programs and tax credits, for which many foreign services are frequently ineligible.

Fourth, notwithstanding the oft-heard insistence that everyone must contribute the system – Canadian Heritage Minister Pablo Rodriguez has declared “there is no free ride” –contributions to the system stem from an era of scarcity, in which broadcasting featured limited channels using public spectrum with licences granted to a handful of companies. It was that privileged access that led to contributions, not mere participation in the Canadian market.

That is why broadcasters must feature Canadian programming, but movie theatres do not. Or why broadcast distributors contribute a percentage of revenues to support Cancon, but book stores face no such requirement. Indeed, mandated contributions to an economic sector is the exception, not the rule: Canada does not require McDonald’s to contribute a portion of its revenues to support Canadian farmers or Nike to sell a certain percentage of Canadian-made shoes. In an era of abundance in which Internet streaming does not rely on scarce spectrum, the justification for a mandated contributions falls apart.

Fifth, Canadian content is already readily available and easily “discoverable” on the Netflix service. Alongside “official” Cancon, there are programs filmed in Canada, starring Canadian actors, or featuring Canadian stories. Some might argue that only official Cancon counts. Regardless of how it is measured, however, the reality is that Netflix already has a sizeable Canadian library, giving subscribers the option to watch hundreds of hours of Canadian content with little more than a simple search for “Canada.”

Cancon support remains an important ingredient in a vibrant Canadian cultural sector. Yet support such as grants, tax benefits, and other measures should come from general revenues as a matter of public policy, not through cross-subsidization models grounded in flawed arguments and inappropriate analogies.

The post Flawed Arguments and Inappropriate Analogies: Why Netflix Taxes and Cancon Requirements Should be Rejected appeared first on Michael Geist.

CRTC on OpenMedia’s Site Blocking Campaign: “Contributed to a Better Understanding of the Issues”

Michael Geist Law RSS Feed - Fri, 2019/02/08 - 10:10

The CRTC released four cost awards yesterday arising from the Bell coalition’s proposal for a site blocking system. The Commission rejected the proposal last year on jurisdictional grounds and has now followed up with significant cost awards to public interest groups that participated in the process. The FairPlay coalition challenged the cost awards to OpenMedia and CIPPIC, arguing that its citizen engagement was “deliberately misleading and cannot represent responsible participation in the proceeding.” It also argued that the Public Interest Advocacy Centre’s participation was “irresponsible in nature” since it included arguments questioning the harm of piracy, which FairPlay maintained encouraged the Commission “to disregard the basic tenets of the Copyright Act.”

The CRTC soundly rejected these arguments, ordering the FairPlay coalition to pay over $130,000 in costs as part of four applications (OpenMedia/CIPPIC, PIAC, FRPC, UDC). The Commission’s analysis on the value of the OpenMedia/CIPPIC public campaign is particularly noteworthy given efforts by some commentators to question it:

the Commission considers that their respective public interest mandates and the online engagement campaign demonstrate that they represent the interests of Canadian Internet service subscribers. CIPPIC/OpenMedia have also satisfied the remaining criteria through their participation in the proceeding. In particular, the Commission considers that the online engagement campaign facilitated the broad and direct participation of thousands of Canadians in the proceeding. Importantly, a significant number of those who used the online engagement campaign to submit an intervention to the Commission also customized the text to include their personal views on the proposal put forward by FairPlay. This broad facilitation, as well as the opportunity for an individual response, created a diverse evidentiary record that contributed to a better understanding of the issues before the Commission. While FairPlay may consider certain content of the campaign to be misleading, the overall participation encouraged by the campaign contributed to a better understanding of the issues before the Commission and did not constitute irresponsible participation by CIPPIC/OpenMedia.

Further, the fact that CIPPIC/OpenMedia did not expand on the online engagement campaign evidence in their own intervention does not mean that they participated in the proceeding in an irresponsible way. Additional interpretive analysis of the evidence from the campaign within CIPPIC/OpenMedia’s intervention would have been preferable, both in assisting the Commission in analyzing the numerous individual interventions, and in making the direct link between the campaign and the content of CIPPIC/OpenMedia’s intervention. However, the failure to do so in this case was not irresponsible, and the clear link between the campaign and the content of the intervention on issues such as network neutrality ensured that the entirety of CIPPIC/OpenMedia’s participation contributed to a better understanding of the issues before the Commission.

The CRTC similarly rejected claims that PIAC’s participation was irresponsible:

PIAC’s copyright submissions, although novel, remained relevant and assisted the Commission in developing a better understanding of the matters that were considered. FairPlay’s application itself proposed a novel use of the Telecommunications Act, so the proceeding should have been expected to result in the advancement of unconventional or otherwise innovative arguments by interveners.

The CRTC decisions are welcome, confirming the value of public interest campaigns that encourage the public to participate in proceedings and ensure their voices are heard. While there has been considerable criticism of the Commission in recent months regarding its treatment of civil society, it deserves credit for thoroughly rejecting FairPlay’s attempt to avoid paying the costs associated with responding to its now-defeated proposal.

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Government Service Delivery in the Digital Age: My Appearance Before the Standing Committee on Access to Information, Ethics and Privacy

Michael Geist Law RSS Feed - Thu, 2019/02/07 - 10:56

Last week, I appeared before the House of Commons Standing Committee on Access to Information, Privacy and Ethics as part of its study on government services and privacy. The discussion touched on a wide range of issues, including outdated privacy rules and the policy complexity of smart cities. I concluded by noting:

“we need rules that foster public confidence in government services by ensuring there are adequate safeguards, transparency and reporting mechanisms to give the public the information it needs about the status of their data, and appropriate levels of access so that the benefits of government services can be maximized. That is not new. What is new is that this needs to happen in an environment of changing technologies, global information flows, and an increasingly blurry line between public and private in service delivery.”

My full opening remarks are posted below.

Appearance before the House of Commons Standing Committee on Access to Information, Privacy and Ethics, January 29, 2019

Good afternoon. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law, and I am a member of the Centre for Law, Technology, and Society.

My areas of speciality include digital policy, intellectual property, and privacy.  I served for many years on the Privacy Commissioner of Canada’s External Advisory Board and I have been privileged to appear before multiple committees on privacy issues, including PIPEDA, Bill S-4, Bill C-13, the Privacy Act, and this committee’s review of social and media privacy.

I am also the chair of Waterfront Toronto’s Digital Strategy Advisory Panel, which is actively engaged in the smart city process in Toronto involving Sidewalk Labs.

As always, I appear in a personal capacity as an independent academic representing only my own views.

This committee’s study on government services and privacy provides an exceptional opportunity to tackle many of the challenges surrounding government services, privacy and technology today. Indeed, I believe that what makes this issue so compelling is that it represents the confluence of public sector privacy law, private sector privacy law, data governance, and emerging technologies.

The Sidewalk Labs issue is a case in point. While it is not about federal government services – it is a municipal project – the debates are fundamentally about the role of the private sector in the delivery of government services, the collection of public data, and the oversight or engagement of governments at all levels. For example, the applicable law to the project remains somewhat uncertain: is it PIPEDA?  Provincial privacy law? Both? How do we grapple with new challenges when even determining the applicable law is not a straightforward issue.

My core message today is that looking at government services and privacy requires more than just a narrow examination of what the federal government is doing to deliver services, assessing the privacy implications, and identifying what rules or regulations could be amended or introduced to better facilitate services that meet the needs of Canadians and provide them with the privacy and security safeguards that they rightly expect.

I believe that the government services of tomorrow will engage a far more complex ecosystem that involves not just the conventional questions surrounding the suitability of the Privacy Act in the digital age. Rather, given the overlap between public and private, federal, provincial, and local, domestic and foreign, we need a more holistic assessment that recognizes that service delivery in the digital age necessarily implicates more than just one law.

Those services will involve questions about the sharing of information across government, the location of data storage, the transfer of information across borders, and the use of information by governments and the private sector for data analytics, artificial intelligence, and other uses.

In other words, we are talking about the Privacy Act, PIPEDA, trade agreements that feature data localization and data transfer rules, the GDPR, international treaties such as the forthcoming work at the WTO on e-commerce, community data trusts, open government policies, crown copyright, private sector standards, and emerging technologies.

It is a complex, challenging, and exciting space. I’d be happy to touch on any of these issues during questions, but in the interests of time, I will limit my slightly deeper dive to the Privacy Act, which as you know is the foundational statute for government collection and use of personal information.

There have been multiple studies and successive federal privacy commissioners who have tried to sound the alarm on the legislation that is viewed as outdated and inadequate. Canadians understandably expect that the privacy rules that govern the collection, use, and disclosure of their personal information by the federal government will meet the highest standards. For decades, we have failed to meet that standard. As pressure mounts for new uses of data collected by the federal government, the necessity of a law fit-for-purpose increases.

I’d like to point to three issues in particular with the federal rules governing privacy and their implications:

i.    Reporting Power

The failure to engage in meaningful Privacy Act reform may be attributable in part to the lack of public awareness of the law and its importance.  The Privacy Commissioner has played an important role in educating the public about PIPEDA and broader privacy concerns.  The Privacy Act desperately needs to include a similar mandate for public education and research.

Moreover, the notion of limiting reporting to an annual report reflects a by-gone era.  In our current 24 hour, social media driven news cycle, restrictions on the ability to disseminate information – particularly information that touches on the privacy of millions of Canadians – cannot be permitted to remain out of the public eye until an annual report can be tabled.  Where the Commissioner deems it in the public interest, the Office must surely have the power to disclose in a timely manner.

ii.    Limiting Collection

The committee has heard repeatedly that the Privacy Act falls woefully short in meeting the standards of a modern privacy act.  Indeed, at a time when government is expected to be the model, it instead requires less of itself than it does of the private sector. A key reform in my view is the limiting collection principle. A hallmark of private sector privacy law, the government should similarly be subject to collecting only that information that is strictly necessary for its programs and activities.

This is particularly relevant with respect to emerging technologies and artificial intelligence. The Office of the Privacy Commissioner of Canada recently reported on the use of data analytics and AI in delivering certain programs. For example, it cited:

•    the Immigration, Refugees and Citizenship Canada (IRCC) Temporary Resident Visa Predictive Analytics Pilot Project which uses predictive analytics and automated decision-making as part of the visa approval processes

•    the CBSA’s use of advanced analytics in its National Targeting Program to evaluate the passenger data of all air travelers arriving in Canada, as well as its planned expanded use of analytics in risk assessing individuals;

•    the Canada Revenue Agency’s (CRA’s) increasing use of advanced analytics to sort, categorize and match taxpayer information against perceived indicators of risk of fraud and non-compliance.

These technologies offer great potential, but they also may also encourage greater collection, sharing and linkage of data. This requires robust privacy impact assessments and considerations of the privacy cost-benefits.

iii.    Data Breaches and Transparency

Breach disclosure legislation has become commonplace in the private sector privacy world and it has long been clear that similar disclosure requirements are needed within the Privacy Act. Despite its importance, it took more than a decade for Canada to pass and implement data breach rules for the private sector. As long as that took, we are still waiting for equivalent legislation at the federal government level.

As this committee knows, the data indicates that hundreds of thousands of Canadians have been affected by breaches of their private information. The rate of reporting these breaches remains low. If the public is to trust the safety and security of their personal information, there is a clear need for mandated breach disclosure rules within government.

Closely related to the issue of data breaches are broader rules and policies around transparency.  In a sense, the policy objective is to foster public confidence in the collection, use, and disclosure of their information by adopting a transparent, open approach about policies, safeguards, and instances where we fall short.

Recent emphasis has been on private sector transparency reporting.  Large Internet companies such as Google and Twitter have released transparency reports and they have been joined by some of Canada’s leading communications companies such as Rogers and Telus.  Remarkably, there are still some holdouts – notably Bell – that do not release transparency reports.

However, these reports represent just one side of the picture. Public awareness of the world of requests and disclosures would be far more informed if government also released transparency reports.  These need not implicate active investigations, but there is little reason that government not be subject to the same expectations on transparency as the private sector.

Ultimately, we need rules that foster public confidence in government services by ensuring there are adequate safeguards, transparency and reporting mechanisms to give the public the information it needs about the status of their data, and appropriate levels of access so that the benefits of government services can be maximized. That is not new.  What is new is that this needs to happen in an environment of changing technologies, global information flows, and an increasingly blurry line between public and private in service delivery.

I look forward to your questions.

The post Government Service Delivery in the Digital Age: My Appearance Before the Standing Committee on Access to Information, Ethics and Privacy appeared first on Michael Geist.

The Real Over-the-Top: CBC President Likens Netflix to Cultural Imperialism Such As the British in India or French in Africa

Michael Geist Law RSS Feed - Thu, 2019/01/31 - 16:05

CBC President Catherine Tait appeared on a panel of Canadian media leaders earlier today at the Prime Time in Ottawa conference devoted to “a look ahead.” After cutting off the Netflix representative at one point and complaining that his comments were running too long, Tait concluded with a stunning and wholly inappropriate analogy to characterize the impact of Netflix in Canada:

I was thinking of the British Empire and how if you were there and you were the viceroy of India you would feel that you were doing only good for the people of India. Or similarly, if you were in French Africa, you would think I’m educating them, I’m bringing their resources to the world, and I’m helping them. There was a time where cultural imperialism was absolutely accepted and, in fact, if you were a history student you would be proud of the contribution that these great empires gave.

I would say we are at the beginning of a new empire and just as it is probably the most exciting time in terms of screened entertainment, that I certainly in my career that I’ve ever experienced in terms of quality. When I watched “My Brilliant Friend” I was so moved to see a fantastic Italian language show with an Italian dialect. So unbelievable to be able to experience this cultural sharing. So for this we are very grateful to Netflix. However, fast forward, to what happens after imperialism and the damage that can do to local communities. So all I would say is let us be mindful of how it is we as Canadians respond to global companies coming into our country.

While it may be tempting to dismiss the comments as a mere error of judgement (Tait started the comment by noting she was “going off-script”), the reality is the CBC has become exceptionally hostile toward the Internet and Internet services. It was a prominent supporter of the website blocking proposal that was rejected last year by the CRTC, making it an outlier among public broadcasters that have typically worked to counter site blocking. In fact, an access-to-information request I filed revealed that CBC executives admitted that “this really isn’t our fight and it will cost us.”

However, the CBC doubled-down on its position in its submission to the Broadcast and Telecommunications Legislative Review panel, calling for an expansion of site blocking to also include “blocking of websites that disseminate manipulated content, including news.” The proposal confirms fears that a site blocking system would quickly expand beyond copyright.

The CBC submission also calls for the establishment a new Internet taxes, applicable to both broadband and wireless services to fund Canadian programming. It envisions a full Internet regulation structure with the CRTC empowered to licence and regulate online services to contribute to the discoverability of Cancon, including regulations on “digital media undertakings to ensure the promotion and discoverability of Canadian content.” It would also like to see requirements that online services provide Canadian rightsholders with data on how their content is used.

Tait tweeted out a portion of her cultural imperialism remark – “we are at the beginning of a new empire. Let’s be mindful when responding to global companies coming to Canada – confirming that this was no lapse. Rather, it represents a shocking lack of historical awareness and a regulatory mindset that is completely out-of-touch with millions of Canadians who both pay for the CBC through their tax dollars and subscribe to Netflix.

The post The Real Over-the-Top: CBC President Likens Netflix to Cultural Imperialism Such As the British in India or French in Africa appeared first on Michael Geist.

Hidden in Plain Sight?: The Search For Canadian Content on Netflix

Michael Geist Law RSS Feed - Thu, 2019/01/31 - 10:05

The call for Internet and Netflix taxes are not the only demands raised by Canadian cultural groups regarding online video services. Many groups argue that the services should be required to make Canadian content more prominent, citing the challenge of “discoverability” of Canadian content in a world of seemingly unlimited choice. While the ACTRA call for government sanctions against search engines that refuse to prioritize Cancon in search results is an extreme example, many have asked the Broadcast and Telecommunications Legislative Review panel to either mandate that a certain percentage of the Netflix library consist of Canadian content or that it more actively promote Cancon on the service.

For example, Unifor wants to mandate that 20 per cent of Netflix television content be Canadian:

That 20 per cent of non-feature film programming available to subscribers be Canadian; that no less than 5 per cent of English language feature films be Canadian; and that no less than 8 per cent of French-language features films be Canadian.

Meanwhile, ACTRA calls for a 20 per cent across the board requirement:

All services offering on-demand programming content to Canadian consumers, including OTT services and music streaming services – regardless of the technology used to distribute the content – maintain a minimum of 20 per cent of Canadian content in the program selections offered to consumers.

Others focus on greater prominence for Canadian content. The CBC recommends:

Players operating in the Canadian system should provide appropriate prominence to Canadian content choices through search, menus and recommendations.

The CRTC hints at a similar requirement in the name of discoverability:

Whether it be music, podcasts, short‑form video, a one-hour drama series, feature-length film or any other type of content, regardless of what platform it is offered on, all stakeholders should be obligated and incented to promote and make content by Canadians discoverable, including government funding supports.

But how hard is it to find Canadian content on Netflix?  It turns out, not very.  Last weekend, I created a new Netflix account to see what someone with no algorithmic viewing history would find. I started with a simple search for Canada, which provided the following result featuring several Canadian shows (Kim’s Convenience, Frontier, and Schitt’s Creek).

Netflix Canada Search

The result also included the option to click on links for Canadian TV Shows, Canadian Movies, and more. Once I clicked on those links, dozens of shows and movies popped up.

 

Netflix Canada Search Results

After streaming about ten hours of Canadian shows – Schitt’s Creek, Kim’s Convenience, Frontier, and Heartland – I noticed that my main Netflix page now featured Canadian shows in the Popular on Netflix tab.

Popular on Netflix

and a new Celebrating Canadian People, Places, and Stories tab appeared on the main page.

Netflix Celebrating Canadian People, Places, and Stories

Not all of this content is strictly Cancon under the points system. Alongside “official” Cancon, there are programs filmed in Canada, starring Canadian actors, or featuring Canadian stories. Some might argue that only official Cancon counts. However, Canadian actors or local film production does matter: much of it counts toward Cancon points, benefits the country economically, and reflects a connection to the country. Regardless of how it is measured, however, the reality is that Netflix already has a sizable Canadian library, giving subscribers the option to watch hundreds of hours of Canadian content. Apparently, all it takes is a simple search for “Canada.”

The post Hidden in Plain Sight?: The Search For Canadian Content on Netflix appeared first on Michael Geist.

ACTRA Wants Government To Penalize Search Engines that Refuse to Promote Canadian Content in Search Results

Michael Geist Law RSS Feed - Wed, 2019/01/30 - 10:59

The escalating battle being waged for new Internet taxes to fund Canadian content does not stop with proposals for new fees on Internet access and online video services. Cultural groups also want to increase the “discoverability” of Canadian content by mandating its inclusion in search results. According to the ACTRA submission to the broadcast and telecom legislative review panel, it has been calling for search engine regulation for the past 20 years:

ACTRA stated during the 1999 CRTC process that Internet search engines would become the gateway for consumers to access the vast array of entertainment and information now available from around the world. We argued then the CRTC should regulate them.

It now argues for mandated inclusion of Canadian content in search results for cultural content under threat of economic sanction:

Regulating search engines would be difficult, but ACTRA recommends the government approach search engines like Google, Bing and others, and request they ensure Canadians are offered some Canadian choices in their search results. While it is neither possible nor appropriate to interfere in the final selection made by individuals, Canadian consumers should have a real choice, including Canadian films, television programs and music. We expect companies would concur with the government’s reasonable request to be seen as good corporate citizens. If a particular search engine does not agree to this request, the government should impose an appropriate regulatory constraint or burden, such as amending the Income Tax Act to discourage Canadians from advertising on search engines that fail to comply.

In other words, ACTRA wants the government to threaten search engines with regulatory constraints it they refuse to tinker with their algorithms to ensure that Canadian content appears when Canadian search for cultural or artistic content.

There is no doubt that search engines would refuse the government’s “request”, noting that governments should have no role in determining search results of lawful content in a free and democratic society. Indeed, ACTRA would rightly reject a government policy to condition grants or other public support for Canadian creators on the inclusion of approved messages within the content of a show. Yet it thinks that it is acceptable for the Canadian government to dictate search results to advance a government cultural policy under threat of economic penalties. It isn’t and the proposal should be firmly rejected.

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Building a Digital Wall: What Lies Behind The Emerging Battle Over New Taxes to Support Canadian Content

Michael Geist Law RSS Feed - Tue, 2019/01/29 - 10:07

The battle over the future of Canadian broadcasting and telecommunications is quickly emerging as a hot-button policy issue, with a government-mandated review of the law recently garnering thousands of public responses. My Globe and Mail op-ed notes that while recommendations from an expert panel are not expected for months, Canada’s broadcast regulator, the CBC, and several high-profile cultural groups are lining up behind a view that Canadian culture is facing an existential crisis. Among the ideas being proposed are new taxes on internet and wireless services, mandated Cancon requirements for Netflix and the prioritization of Canadian content in search results from online services to enhance its “discoverability.”

There are unquestionably real communications policy issues in Canada for Innovation, Science and Economic Development Minister Navdeep Bains and Canadian Heritage Minister Pablo Rodriguez to grapple with: Some of the world’s highest wireless prices hamper adoption and usage, privacy safeguards have failed to keep pace with online threats and public-interest voices say they don’t feel heard at the Canadian Radio-television and Telecommunications Commission (CRTC) under chair Ian Scott.

At the same time, Canadian cultural groups are raising dystopian fears that if Canada maintains an open market for online video services, it could mean the end of Canadian content and bankruptcy for Canadian broadcasters.

These fears are not new. For decades, the prospect of U.S. content flowing across the Canadian border has been viewed as a threat, leading to policies that amounted to creating a Canadian broadcast wall. Canada adopted rules that permitted replacing U.S. television signals with Canadian ones (so-called simultaneous substitution), the blocking of U.S. satellite television services and tight restrictions on foreign investment in the broadcasting sector.

Many of those same arguments for protecting the domestic industry are today repackaged for the internet, with Netflix viewed as an unregulated behemoth that threatens to overwhelm the Canadian broadcasting sector and destroy some of the funding mechanisms that have been used to support Canadian film and television production.

Yet the data indicate that there is no Cancon funding crisis. According to the most recent numbers from the Canadian Media Producers’ Association, the total annual value of the Canadian film and television production sector exceeds $8-billion, its largest amount ever. Spending on Canadian content production has hit an all-time high at $3.3-billion. In fact, the increase in foreign investment in production in Canada has been staggering. Before Netflix began investing in original content in 2013, total foreign investment (including foreign location and service production, Canadian theatrical production, and Canadian television) was $2.2-billion. That number has more than doubled in the past five years to nearly $4.7-billion.

Not only is there no crisis, but much like U.S. President Donald Trump’s pledge that someone else will pay for his border wall, Canadian creator groups similarly posit that their new funding proposals will be paid for by big telecom companies or foreign internet giants. Their recommendations are replete with plans to regulate online video services and require that they contribute millions toward Cancon creation funding. They also want a new tax imposed on both broadband and wireless services to fund Cancon, arguing that those taxes would replace the declining support from Canadian broadcasters, as well as direct financial support for the CBC from companies such as Google and Facebook.

There surely remains an important role for public support of Cancon, but the subsidization model of the past in which cable companies and broadcasters paid to support Canadian content production was at least premised on the fact that a cable subscription provides no more than access to broadcast content. Yet the internet offers a limitless array of possibilities that have nothing to do with broadcasting, making it difficult to justify a levy on service providers.

Plans for the government’s assistance to the news-media sector remain controversial, but they rightly adopt the position that if the media need public support and the government believes it is in the public interest to do so, funding should come from general revenue as part of broader government policy, not through a myriad of taxes and levies that run counter to other policy goals.

The unsurprising reality is that the new tax and regulation proposals will ultimately leave Canadian consumers paying the bill. New digital sales taxes would be paid by consumers, not companies that merely collect the applicable taxes. New taxes on Netflix to pay for Cancon would invariably lead to increased monthly subscriber costs and/or smaller content libraries to meet the new Cancon quotas. New taxes on ISPs or wireless services would lead to even higher prices and reduced affordability.

In other words, rather than embracing the opportunities that come from unprecedented global demand for scripted television programming and competing for the attention of Canadian viewers, some prefer to place their bets on a digital wall consisting of new taxes and regulations. And Canadian consumers are going to pay for it.

The post Building a Digital Wall: What Lies Behind The Emerging Battle Over New Taxes to Support Canadian Content appeared first on Michael Geist.

Bell Urged Canadian Government To Ban Some VPN Services in NAFTA Submission

Michael Geist Law RSS Feed - Mon, 2019/01/28 - 11:24

Last year, Bell and its supporters denied that its “Fairplay” site blocking plan would apply to virtual private networks (VPNs). Yet as first reported by the Wire Report (sub required), Bell asked the Canadian government to target some VPNs in its submission on the NAFTA re-negotiations. Throughout the site blocking debate, many cited concerns that the Bell coalition plan would expand beyond certain websites to VPNs. For example, I posted:

Once the list of piracy sites (whatever the standard) is addressed, it is very likely that the Bell coalition will turn its attention to other sites and services such as virtual private networks (VPNs). This is not mere speculation. Rather, it is taking Bell and its allies at their word on how they believe certain services and sites constitute theft. The use of VPNs, which enhance privacy but also allow users to access out-of-market content, has been sore spot for the companies for many years.

Just days after Bell spoke directly with a CRTC commissioner in the summer of 2017 seeking to present on its site blocking proposal to the full commission, it asked Canadian Foreign Affairs Minister Chrystia Freeland to target VPNs as Canada’s key copyright demand in the trade talks. Its submission to the government stated:

The Canadian cultural industry has long been significantly harmed by the use of virtual-private-network (VPN) services, which facilitate the circumvention of technological protection measures put in place to respect copyright ownership in other jurisdictions such as Canada…When the ability to enforce rights in national markets breaks down it inevitably favours the largest markets (which become the de facto “global” market) at the expense of smaller open economies like Canada. This harms Canada both economically and culturally.

Canada should seek rules in NAFTA that require each party to explicitly make it unlawful to offer a VPN service used for the purpose of circumventing copyright, to allow rightsholders from the other parties to enforce this rule, and to confirm that is a violation of copyright if a service effectively makes content widely available in territories in which it does not own the copyright due to an ineffective or insufficiently robust geo-gating system.

This is precisely the concern that was raised in the context of the Bell coalition blocking system given fears it would expand to multi-use services such as VPNs just as a growing number of Internet users are turning to the technology to better safeguard their privacy and prevent online tracking.

In fact, the Bell submission went even further than just VPNs, urging the government to consider additional legal requirements on ISPs to enforce copyright rules:

Notice-and-notice has been a very incomplete solution to the problem of widespread digital piracy. While we do not believe it should be eliminated, the Government should explore other ways to secure the cooperation of service providers whose services are used for piracy (such as the site-blocking regimes required in Europe and also in place in many other countries throughout the world).

I’ve written before about how Bell is a global outlier among telecom companies with its aggressive lobbying for increased obligations for telecom companies with respect to copyright enforcement. Its secret attempt to target VPNs leaves little doubt that the now-defeated site blocking proposal would have invariably expanded far beyond a narrow group of websites and should be considered as part of the renewed emphasis on site blocking as part of the copyright review and the broadcast and telecom review.

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“Immediate War Footing”: Phil Lind Recounts the Big Three Battle Against Wireless Competition in Canada

Michael Geist Law RSS Feed - Thu, 2019/01/24 - 11:51

This week’s report that Canada is an outlier on wireless services with carriers generating more revenue per SIM than carriers in other countries and Canadian consumers on the low end of data usage, represents the latest in a long line of similar independent reports that confirm Canada’s status as a high-cost, low usage wireless market. Indeed, a government-commissioned comparative study, CRTC data, OECD data, and Rewheel Research all tell a similar story. Given that there is little to debate about the state of Canadian wireless pricing, the big question is now what Innovation, Science, and Economic Development Minister Navdeep Bains is prepared to do about it.

A new book from long-time Rogers executive Phil Lind provides insights into the backlash that any significant efforts to inject more competition into the market is likely to face from the incumbent carriers. The book contains several pages recounting the carrier battle in 2013 against Verizon entering the Canadian market with the active support of the then-Harper government. The story pulls back the curtain on lobbying efforts that involve active coordination by top tier executives at each company, active lobbying of MPs, journalists, and market analysts, as well as advertising campaigns designed to fight back against market-opening policy measures. Lind starts the story:

“In 2013, halfway through its mandate, Stephen Harper’s government was looking tired and bereft of captivating political ideas for the next election. It was then that the Conservative MP wrapped himself in his “Captain Consumer” cape and launched an assault upon Canada’s big three wireless phone companies: Rogers, Bell and Telus. He and his government were going to lower monthly wireless bills by cracking the cartel.”

Leaving aside the fact that the Harper government began focusing on wireless competition six years earlier in 2007 with a spectrum set-aside, Lind continues by explaining the government’s effort to convince Verizon to enter the market, which he characterizes as “inviting Goliath in and taking the slingshot away from David. When word of this leaked to Nadir Mohamed [then Rogers CEO], it put Rogers on an immediate war footing. (I’m sure Bell and Telus were, too).”

Lind points to Rogers’ investment in wireless and states:

“But Harper and government decided to put it all in jeopardy, from Canadian jobs to investment and retirement income, by offering Verizon Wireless spectrum – for which Rogers, Bell and Telus weren’t even allowed to bid – and by allowing Verizon to buy smaller Canadian wireless operating we were prohibited from buying. He was changing the rules, and badly. We moved to DEFCON 3, not quite all-out-war but ready for immediate action.”

The description of opening the Canadian wireless to foreign investment is quite something, but when the the initial meetings did not change the government’s mind, the company upped the ante:

“We moved to DEFCON 2. In the summer of 2013, the CEOs at Rogers, Bell and Telus appointed internal teams to coordinate a publicity campaign, called for Fair for Canada, through which we’d inform as many Canadians as possible about the dangers of Harper’s policy. I was the head of the Rogers team, Joe Natale (Rogers’s current CEO) led the Telus team; and Wade Oosterman led Bell’s. Jan Innes, as the fourth member of this tri-party team, coordinated media relations and advertising. Each of the three companies had people reporting to us, and we’d meet weekly, either in person or via conference call, to discuss tactics and overall strategy. We worked extremely well as a team.

The media was the lowest hanging fruit. Executives and high-profile experts like former communications minister Francis Fox penned opinion pieces supporting us and calling on the government to make the rules fair. We also held news conferences in cities and towns across Canada. Heidi [Bonnell] had us out meeting MPs on their own turf in ridings all over the country. Our unions explained the risk to jobs. Investor-relations people talked to telecom analysts about the potential impact. We lobbied the CRTC asking for their support. And we hired an advertising and marketing firm to blast out our messages.”

If this sounds familiar, it is precisely the same playbook used by Bell and Rogers last year in their campaign for site blocking, even using a similar name (Fairplay Canada). The use of the same tactics is unsurprising given that it worked in the Verizon case and the companies, which control the vast majority of media outlets in the country, have enormous leverage in conducting publicity and lobbying campaigns.

While none of this is secret – the lobbying efforts are readily apparent – it is rare to have an an on-the-record discussion of the strategies and combined efforts of companies who view foreign competitors as a bigger risk that domestic competition. For Innovation, Science and Economic Minister Navdeep Bains, it serves as a reminder that significant efforts to inject competition into the Canadian wireless market will likely place the big three incumbents on a war footing with efforts to scuttle any such policy plans.

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The Updated Canada Food Guide: New Advice, Old Restrictive Copyright Rules

Michael Geist Law RSS Feed - Wed, 2019/01/23 - 11:07

The Canadian government released a new Canada Food Guide yesterday, the first major update in 12 years to what is reported to be one of its most-requested publications. The guide is viewed as very influential, with copies often found in medical facilities, schools, and other community spaces. Yet despite the demands for distribution, the government has disappointingly adopted a restrictive copyright approach with respect to its reproduction, adaptation or translation. The guide is subject to crown copyright rules and public uses that extend beyond fair dealing require government permission. In fact, Health Canada has posted a lengthy permission form that asks for the following information for those seeking to reproduce, translate or adapt the guide:

  • Name, contact information, website
  • Purpose (reproduction, adaptation, revision, translation)
  • Format (paper, Internet, video/film, audio, DVD, other)
  • Number of copies to be produced or expected URL
  • End Use (commercial, educational, non-commercial, free distribution, advertising/promotion)
  • Cost (if any)
  • Territory where the work will be distribution (Canada, worldwide, other)
  • Precise description of material to be used

As Amanda Wakaruk points out, the restrictive approach creates a disincentive for Canadians to engage with the publication. Moreover, it stands in direct contrast in approach to many other countries: the U.S. dietary guidelines are public domain, the UK’s Dietary Recommendations are licensed under an Open Government licence that allows for copying, publishing, distribution, and adaptation for commercial and non-commercial purposes, Australia’s food guide can be freely displayed, printed or reproduced, and Ireland’s food pyramid publications can be freely copied, published or translated.

Ensuring that the public can freely use, translate, and adapt government materials designed for public education would seem to be a natural as it opens the door to innovative videos, translations and other means of extending the message. Yet the Canadian government, which has also oddly adopted a closed-by-default approach with respect to image use, is similarly restrictive with one of its most popular and important publications. A great deal of thought went into updating the Canada Food Guide. It would appear that far less thought went into the copyright rules that govern its use.

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The Canadian Wireless Story: Comparative Data Shows World’s Highest Carrier Revenues Per SIM

Michael Geist Law RSS Feed - Tue, 2019/01/22 - 10:51

Tefficient, a European-based consultancy on the wireless market, released its latest report this morning comparing pricing and usage in the global wireless market. The data, which incorporates the most recent CRTC numbers on the Canadian market, shows Canada as a global outlier when it comes to the revenues generated by wireless carriers. The report notes the unsurprising correlation between high prices and low data usage:

There is a prerequisite for continued data usage growth, though: The total revenue per gigabyte can’t be too high – like in Canada and Belgium. The total revenue per gigabyte here is roughly 70 times higher than in India and 23 times higher than in Finland. And consequently, mobile usage is lower than average.

The charts show where Canada stands relative to other countries with carriers generating more revenue per GB than anywhere else in the world and consequently Canada lagging behind many other countries in wireless usage.

Tefficient – Revenue per GB https://tefficient.com/wp-content/uploads/2019/01/tefficient-industry-analysis-3-2018-mobile-data-usage-and-revenue-1H-2018-per-country-final-17-Jan-2019.pdf

The link between data usage and total revenue per SIM is even more dramatic, with Canada standing alone.

 

https://tefficient.com/wp-content/uploads/2019/01/tefficient-industry-analysis-3-2018-mobile-data-usage-and-revenue-1H-2018-per-country-final-17-Jan-2019.pdf

Given the recent Canadian-government commissioned study that also found Canadian wireless pricing among the highest in the world, the issue is not whether Canadian consumers pay some of the highest rates for wireless services anywhere in the developed world (in fact, Telus suggests Canada should have the highest prices in the world). Rather, it is what, if anything, Innovation, Science and Economic Development Minister Navdeep Bains and the CRTC are prepared to do about it.

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Sunlight on the Submissions: Why the Broadcasting and Telecommunications Legislative Review Panel Should Reverse Its Secretive Approach

Michael Geist Law RSS Feed - Fri, 2019/01/18 - 12:24

The Broadcasting and Telecommunications Legislative Review panel’s surprising decision to keep the 2,200 public submissions secret for months has had immediate repercussions. Some organizations are refusing to disclose their submissions until the panel does and others have noted the missed opportunity for public discussion of a vitally important issue. To date, about 30 submissions have been posted, a tiny percentage of the total. The decision has had an impact on university courses and predictably created an information asymmetry with some companies cherry-picking who gets to see their submission.

The approach runs counter to the government’s support for open, transparent policy making processes and the standard used within the sector by the CRTC. When one report indicated that the secrecy was at the request of ISED Minister Navdeep Bains, chair Janet Yale issued a public statement:

Any suggestion of ministerial direction concerning the release of written submissions made to the Panel is flatly incorrect. All submissions will be published along with the Panel’s ‘What We’ve Heard Report’ to be released no later than June 30th. That decision was taken by the panel alone as is to be expected of an independent, arms-length panel. Interested parties are free to make their submissions public.

This represents a change in language from the panel’s own press release on the consultation, which stated “these written submissions will be publicly available after the deadline for submissions on November 30, 2018.” The release did not say submissions would only be available once the panel’s interim report was released and few reasonably thought that “after the deadline” was a half-a-year or more after.

I followed up with a request for an explanation of why the panel has chosen secrecy over public disclosure. The response in full:

The Panel wants to take time to read, review, and digest the submissions, and will make all submissions public when it releases the What We’ve Heard Report. Interested parties are welcome to make their submissions public and many have already done so.

Here is their initial statement clarifying:

January 11th marked the deadline for written submissions to the Panel – this is the extended deadline we set after accommodating requests for more time to prepare submissions.

The Panel members wish to extend our sincere appreciation to the 2,000 interested parties who took the time and dedicated the effort to prepare submissions.

In addition to the submissions, the Panel met with over 100 interested parties.

We will now take a period of time to review and evaluate these submissions, along with our other outreach activities. These inputs will form the backbone of our What We’ve Heard Report which we plan to publish no later than June 30th. At that time, all written submissions will also be posted on the Panel’s website.

This response doesn’t really answer the question since the panel can obviously “read, review and digest the submissions” while the submissions are public and being assessed by those interested in communications policy.

Yet the decision is more troubling for what it says about the panel (which, it must be said, brings decades of experience and has committed an enormous amount of time to this challenging work). Diverting from established transparency norms should not happen without a strong justification. In this case, at best the panel seems to suggest that public discussion, debate, or even rebuttals of submissions might distract from its efforts to engage in a fair assessment process.

This hardly represents a strong justification. First, such a response would be viewed as entirely unacceptable by CRTC commissioners, politicians, regulators, or government policy makers, who all frequently engage in policy review with a public record readily available (less redacted confidential information). If panelists do not want to consider public debate on submissions, they can mute the discussion on social media or ignore public postings and media coverage. Establishing a panel publication-style ban on submissions for months goes far beyond what is necessary for their assessment process.

Second, the panel’s report in June is only a “what we’ve heard” report, not the report’s actual recommendations. There will be no insulating the panel from public commentary about the submissions and perspectives in the period from the initial report in June 2019 to the final report in 2020. Indeed, if the panel has concerns about coping with public debate about submissions during the development of a factual report summarizing its meetings and public submissions, how will it handle the more critical phase that leads to its recommendations?

The submissions that are currently available provide a pretty wide range of perspectives, but without Bell, Rogers, Netflix, Facebook, the CMPA, dozens of other organizations, and hundreds of individuals, it is incomplete. The panel should reconsider its ill-advised approach and move to quickly release all submissions without further delay.

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Why So Secret?: Government’s Communications Law Panel Plans to Keep Public Submissions Under Wraps for Months

Michael Geist Law RSS Feed - Tue, 2019/01/15 - 10:10

The deadline for submissions to the government’s Broadcasting and Telecommunications Legislative Review Panel passed last week. I posted my submission yesterday, joined by several other organizations representing differing perspectives (CRTC, CBC, Friends of Canadian Broadcasting, Writers Guild of Canada, Internet Society Canada Chapter, CMCRP). However, public availability of submissions will apparently be the exception for the foreseeable future. The panel has rejected an open and transparent policy making process in which public submissions are publicly available, choosing instead to keep the submissions secret for months.

Parties submitting to the review process were advised that their submissions would be made public (“Written submissions will be made publicly available through the Panel website after the deadline.”). Yesterday, the panel’s website was updated to list the 124 organizations that have met with the panel behind closed doors (I met with the panel last fall) and to note that they have received 2,000 submissions. Yet despite the notification that submissions would be made public after the deadline, the panel has decided to make it long after the deadline with no intention of public posting until after the panel has released its initial report, which could come as late as June 30th.

The secrecy associated with a panel that already conducts most of its activities in secret is contrary to the open-by-default approach promised by the current government. Public availability of the submissions is typically the standard: submissions to the House of Commons committees conducting the copyright review are posted online, the CRTC posts the submissions it receives online, ISED posted responses to its public consultation on Copyright Board reform soon after the deadline closed, and Canadian Heritage posted submissions to its digital Cancon consultation within two weeks of the submission deadline. The notion of waiting months to post submissions to a public consultation would rightly be rejected by the CRTC or House committees as inconsistent with a transparent policy process.

Indeed, keeping the submissions secret for months benefits no one. Rather, it fuels concern about the secrecy of the panel process, it means that stakeholders are unable to assess and consider data and policy proposals from other stakeholders, and it leaves everyone wholly dependent on the panel for an accurate summation of thousands of submissions. What did Netflix say to the government? What about Bell or Rogers? What about the report commissioned by the CMPA from PricewaterhouseCoopers that purports to propose a new broadcast distribution system? How about submissions from individual Canadians concerned with communications policy?

For the responsible ministers – ISED Minister Navdeep Bains and Canadian Heritage Minister Pablo Rodriguez – this is a bad look that signals the panel is more interested in secrecy than sharing the substance behind what Canadians are saying about their communications law. I have filed an Access to Information request for the submissions (and would be happy to update this post with links to other publicly posted submissions), but ATIPs should not be required for public submissions. The panel should reconsider its approach and post all submissions as soon as possible.

[Update: Submissions also posted by:

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All About the Internet: My Submission to the Broadcasting and Telecommunications Legislative Review Panel on the Future of Canadian Communications Law

Michael Geist Law RSS Feed - Mon, 2019/01/14 - 11:12

The deadline for submissions to the Broadcasting and Telecommunications Legislative Review Panel closed on Friday with a handful of organizations such as the CRTC, CBC, and Friends of Canadian Broadcasting posting their submissions online. My full submission can be found here.  I argue that Canada’s regulatory approach should be guided by a single, core principle: communications policy, whether telecommunications or broadcasting, is now – or will soon become –  Internet policy. This emerging communications world is mediated through the Internet and communications regulatory choices are therefore fundamentally about regulating or governing the Internet. My submission identifies four goals that should guide Canadian communications law and regulation:

1.    Universal, affordable access to the network
2.    Level regulatory playing field
3.    Regulatory humility
4.    Fostering competitiveness in the communications sector

The executive summary on each of the four issue is posted below, followed by a list of 23 recommendations contained in the submission. In the coming days, I’ll have posts that unpack some of the key issues.

Executive Summary

Universal Affordable Access to the Network

In a world in which Internet access is the gateway to communications, culture, commerce, education, and community participation, the single most important policy goal of communications legislation is universal, affordable Internet access. This submission discusses five issues central to a developing a legislative framework premised on universal, affordable Internet access.

The challenge associated with the Canadian access issue is well-known: a large geographic footprint that makes providing access to some rural and remote communities challenging, competitive shortcomings that have left Canada with an intractable digital divide that results in adoption rates that lag behind access rates, and regulatory and government policies that have consistently failed to achieve the goal of universal, affordable access. The panel should deliver a clear statement in support of universal access at the more ambitious speeds. Moreover, it should recommend mandated broadband obligations in support of affordability, limits on data caps, prioritization of adoption rates to close the digital divide, and establish a clear timeline for all stakeholders on achieving the universal, affordable access goal.

New policy measures to enhance Canadian wireless competition are also needed. The panel should recommend policies that support greater wireless competition. These include encouraging foreign investment, continuing to set aside spectrum for new entrants and smaller providers, and opposition to further marketplace consolidation on competition grounds. Moreover, a mandated MVNO policy, which would support nimble, low-cost competitors leading to more innovative pricing and services, is long overdue.

The panel should also recommend the implementation of a new policy direction that requires all decisions be assessed through the lens of their impact on affordable access. Policies that are likely to increase consumer costs on Internet access should be reviewed with goal of amendment to develop cost-neutral alternatives. Moreover, the Commission should be required to develop an Internet access impact assessment, akin to a privacy impact assessment, to fully explain the implications of decisions on the foundational goal of affordable access.

The panel should recommend binding consumer protection rules, truth in advertising requirements, safeguards against unfair charges or above-market roaming fees, mandated service disclosure requirements, and clear options for redress for aggrieved consumers. Transparency and a complaints mechanism are important, but the communications law framework should strengthen current consumer protections.

Ensuring that the affordability issue is an integral part of the policy process should not be limited to the policy direction. Effective and fair regulatory and consultative processes depend upon a myriad of perspectives and voices, particularly for those groups who often find themselves under-resourced and under-represented. The panel should recommend the establishment of consistent, stable funding for public interest participation in regulatory and policy proceedings. This should include the possibility of multi-year support for established organizations and proceeding-specific support for all eligible groups.

Level Playing Field for Policy: Equality Of Opportunity And Access

The Internet offers remarkable opportunities for all Canadians to create, communicate, and engage in civic activities. While Canadian communications law has long sought to identify “policy objectives” for the broadcast or telecom system, the Internet is far bigger than either of those systems. The panel should instead ensure that Canadian law offers a level playing field from a policy perspective thereby prioritizing equality of opportunity and access for all.

Despite the political affirmations of support for net neutrality, the panel should recommend an unequivocal legislative direction to support and enforce net neutrality.

A level playing field for policy should also include measures to enhance competition in the provision of access services. Given the enormous advantages wielded by incumbent providers, Canada suffers from insufficient competition, which leads to high prices, low usage rates relative to other developed countries, and affordability concerns for consumers with low household income. The panel should recommend a mandated MVNO system and an enhanced third-party access model that seeks to eliminate delays, establishes benchmarks for access, and features independent reviews of reported problems in facilitating consumer access.

The emergence of new online audio and video services has sparked considerable debate over whether or how to regulate services that typically fall outside the current regulatory framework. The panel should ensure that like is treated as like, with sufficient differentiation to treat similar services in an equivalent manner for regulatory purposes.

Humility In Regulation: Recognize The Limits Of Communications Law And Regulation

The Internet is not the equivalent of the broadcasting system and efforts to cast it as such for regulatory purposes are enormously problematic. Indeed, this submission argues that the panel should recognize the importance of regulatory humility as a fundamental principle, guided by the view that communications law should not be used as a regulatory mechanism when other, more appropriate regulatory or legal tools are available nor should it be relied upon as a critical funding mechanism to support other policy objectives.

Humility in regulation touches on numerous issues, but this submission is limited to two types: (i) overlapping regulation that engages issues such as freedom of expression, copyright and privacy; and (ii) cross-subsidization, in which communications law is used to subsidize policy goals in other sectors such as the sustainability of the media and support for Canadian cultural production.

There is unquestionably a need for laws that address expression online that are consistent with the Canadian Charter of Rights and Freedoms. However, speech regulation through communications law licensing or other mandated requirements cannot be easily justified when there are other, more appropriate and less invasive avenues to address online expression. The panel should therefore recommend that communications law defers to generally applicable laws to the maximum extent possible when addressing expression online.

The panel should reject any effort to revive a site blocking system within Canadian communications law, leaving the issue to copyright policy makers. Consistent with the benefits of reducing overlapping regulation, the panel should also recommend the elimination of privacy rules within Canadian communications law accompanied by a more robust, enforceable PIPEDA that could be used to address privacy safeguards within the sector.

Cultural cross-subsidization has been a hallmark of the Canadian communications system, with mandated contributions from broadcasters and broadcast distributors (BDUs) used to support the creation of Cancon. Rather than expanding the cross-subsidization approach, however, the panel should recommend its gradual elimination. This does not mean that there should not be public support for Cancon. Cancon support remains an important ingredient in a vibrant Canadian cultural sector. Rather, public support such as grants, tax benefits, and other measures should come from general revenues as a matter of public policy, not through cross-subsidization.

The panel should recommend emulating the government’s support for the media sector, which rightly adopts the position that if the media needs public support and the government believes it is in the public interest to do so, funding should come from general revenues as part of broader government policy, not through cross-subsidization and a myriad of levies that run counter to other policy goals such as affordable Internet access and marketplace innovation.

With respect to film and television production, the panel should recommend implementing a level playing field with regard to taxation by supporting the application of sales taxes and general income taxes to Internet services. These taxes of general application should be applied to all businesses doing business in Canada with the resulting revenues available to help fund support programs for Canadian content creation. While supporting the application of general taxes, the panel should reject the implementation of new taxes or mandated contributions on OTT services and Internet providers, the latter of which would increase the costs of access counter the foundational policy of affordable, universal access. Extending the cross-subsidization model to the Internet raises significant concerns associated with both over-regulation and increased Internet access costs.

Fostering Competitiveness in the Communications Sector

When the Broadcasting Act was crafted, broadcasters occupied a privileged position, since the creation of video was expensive and the spectrum needed to distribute it scarce. As a result, the government established a licensing system complete with content requirements and cultural contributions designed to further a myriad of policy goals. Yet among the more than 40 policy goals found in the current law, the word “competition” does not appear once. The absence of competition may have made sense when there was little of it, but in today’s world of abundance featuring a seemingly unlimited array of content and distribution possibilities, fostering competition among broadcasters and BDUs is essential to long-term marketplace success.

The panel should recommend several reforms that would help solidify the competitiveness of the sector. These include the removal of foreign ownership restrictions, enhancing consumer choice, the gradual elimination of simultaneous substitution, and limitations on the CBC’s acceptance of digital advertising to decrease overlap with the private sector advertising-based models. The submission does not recommend the elimination of mandated contributions by broadcasters and BDUs given the ongoing benefits those sectors enjoy, though it recognizes that the impact of those contributions is likely to diminish over time.

Summary of Recommendations

Universal, Affordable Internet Access

1.    The panel should deliver a clear statement in support of universal access at the more ambitious speeds.

2.    The panel should recommend mandated broadband obligations in support of affordability, limits on data caps, prioritization of adoption rates to close the digital divide, and establish a clear timeline for all stakeholders on achieving the universal, affordable access goal.

3.    The panel should recommend policies that support greater wireless competition. These include encouraging foreign investment, continuing to set aside spectrum for new entrants and smaller providers, and oppose further marketplace consolidation on competition grounds. Moreover, a mandated MVNO policy, which would support nimble, low-cost competitors leading to more innovative pricing and services, is long overdue.

4.    The panel should recommend the implementation of a new policy direction that require all decisions to be assessed through the lens of their impact on affordable access.

5.    The panel should recommend binding consumer protection rules, truth in advertising requirements, safeguards against unfair charges or above-market roaming fees, mandated service disclosure requirements, and clear options for redress for aggrieved consumers.

6.    The panel should recommend the establishment of consistent, stable funding for public interest participation in regulatory and policy proceedings

Level Playing Field for Policy: Equality Of Opportunity And Access

7.    The panel should ensure that Canadian law offers a level playing field from a policy perspective.

8.    The panel should recommend an unequivocal legislative direction to support and enforce net neutrality.

9.    The panel should recommend an enhanced third-party access model that seeks to eliminate delays, establishes benchmarks for access, and features independent reviews of reported problems in facilitating consumer access.

10.    The panel should ensure that like is treated as like, with sufficient differentiation to treat similar services in an equivalent manner for regulatory purposes.

Humility In Regulation: Recognize The Limits Of Communications Law And Regulation

11.    The panel should recognize the importance of regulatory humility as a fundamental principle, guided by the view that communications law should not be used as a regulatory mechanism when other, more appropriate regulatory or legal tools are available nor should it be relied upon as a critical funding mechanism to support other policy objectives.

12.    The panel should recommend that communications law defers to generally applicable laws to the maximum extent possible when addressing expression online.

13.    The panel should reject any effort to revive a site blocking system within Canadian communications law, leaving the issue to copyright policy makers.

14.    The panel should recommend the elimination of privacy rules within Canadian communications law accompanied by a more robust, enforceable PIPEDA that could be used to address privacy safeguards within the sector.

15.    Rather than expanding the cross-subsidization approach, the panel should recommend its gradual elimination.

16.    The panel should recommend emulating the government’s approach to assistance to the media sector as funding should come from general revenues as part of broader government policy, not through cross-subsidization and a myriad of levies that run counter to other policy goals such as affordable Internet access and marketplace innovation.

17.    The panel should recommend implementing a level playing field with regard to taxation by supporting the application of sales taxes and general income taxes to Internet services.

18.    The panel should reject the implementation of new taxes or mandated contributions on OTT services and Internet providers

Fostering Competitiveness in the Communications Sector

19.    The panel should recommend the elimination of foreign ownership restrictions in the licensed broadcasting sector.

20.    The panel should recommend establishing more robust, mandated options to enhance consumer choice and drive increased competitiveness in the sector.

21.    The panel should recommend the gradual elimination of simultaneous substitution policies.

22.    The panel should recommend requiring the public broadcaster to adopt an ad-free approach to its online news presence.

23.    The panel should recommend an even bigger goal for the CBC to capture the public’s imagination. That could include requiring the CBC to open its content for public reuse or embarking on a comprehensive digitization initiative that provides the foundation for a national digital library.

The post All About the Internet: My Submission to the Broadcasting and Telecommunications Legislative Review Panel on the Future of Canadian Communications Law appeared first on Michael Geist.

Celebrating High Wireless Prices: Telus-Backed Report Claims Comparing Consumer Costs for Wireless Services is “Meaningless”

Michael Geist Law RSS Feed - Wed, 2019/01/09 - 10:49

Several years ago, Telus had a message for consumers discouraged by repeated studies that found Canadians pay some of the highest wireless rates in the world. In a blog post responding to an OECD study, company executive Ted Woodhead argued “Canada really should be the most expensive country for wireless service in the Organization for Economic Co-operation and Development (OECD), but we’re not. That’s a great success story we should be celebrating.” Celebrating anything less than the world’s highest wireless prices recently came to mind as Telus  tried to sow doubt in a Canadian government commissioned study that highlighted yet again the uncompetitive realities of the Canadian wireless market. The company commissioned its own report that implausibly concludes that “communications services in Canada are cheaper than the prices foreign providers would charge for the same plans.”

In fact, the Telus backed study acknowledges that the Canadian wireless plans may leave consumers paying more, yet it argues that those “absolute costs” are meaningless:

although a Canadian plan might be more expensive in absolute terms (i.e., the monthly out-of-pocket expenses incurred by a subscriber) than a plan abroad, or vice versa, observing absolute prices is meaningless as it fails to recognize that the plans are not identical. The regression methodology adjusts (normalizes) for differences in plans and thus compares identical plans, offered on identical networks, in identical countries.

The study therefore rejects comparing actual prices for similar plans (ie. the way a consumer would compare wireless costs and affordability), opting instead to estimate what foreign carriers would charge for the same plans once a selective group of additional factors are taken into account. In doing so, it tries to incorporate the Telus view that indicia such as geography, labour costs, and the weather should be factored into a “normalized” cost for wireless services.

The Telus-backed report makes two primary claims: the Canadian government commissioned study is flawed and its own conclusions provide a better pricing comparison. It cites numerous concerns with the Canadian government commissioned study, starting with the claim that it is “meaningless” because it does not feature a testable hypothesis. It maintains that the study must start from a certain position and seek to prove or disprove the hypothesis. Yet the Canadian government commissioned study is merely a fact-gathering exercise that supports evidence-based policy making, not a report designed to advocate for a particular policy.

The report also suggests the Canadian government commissioned study is flawed because it features too few countries and does not account for network differences (speeds), country differences (geography, labour costs, weather), and differences in caller pay vs. receiver pay systems. However, some of the baskets used in the government-commissioned study include unlimited talk and text rendering the caller-pay differences irrelevant. Moreover, as noted in a post yesterday, the consistent comparison of plans enables tracking of pricing differences over many years, which show that the gap in wireless affordability is growing, not shrinking. As to a broader comparison, recent data from Tefficient suggests that expanding the comparisons only makes the Canadian situation appear worse.

With respect to its own methodology, the Telus backed report says it uses the same approach as the FCC for broadband (not general wireless services). It oddly also points to the UK’s Ofcom research, which uses price comparisons much like the Canadian government commissioned report (the Telus backed report says it is “similar but not identical”). Rejecting the actual costs consumers pay for wireless services, the report proceeds to incorporate the cherry-picked factors identified above to “forecast” what foreign providers would charge for the Canadian plans. While it says this dispels claims that Canadians pay some of the highest prices in the world, it does no such thing. It merely argues that other countries would theoretically have higher prices if they featured the same self-selected marketplace conditions as Canada.

The selective choice of factors is presumably designed to lead to higher “normalized” prices for foreign carriers. Yet the study does not include many other factors that might have the opposite effect: there is nothing on restrictions on foreign investment, nothing on mandated free roaming, nothing on the shared networks between two of Canada’s largest providers, and nothing on the competitive intensity of the market. It is almost as if the Telus study picked the factors designed to “prove” its hypothesis.

While Telus undoubtedly hopes to use the study to lobby against much-needed reforms to inject competition into a sector that even the Competition Bureau says raises concerns with market power, the study is more likely to be viewed by the government and consumers as a partisan document (the references to MVNO policy is a giveaway) that does little to temper lingering frustration with high wireless pricing and the effects of limited competition. Given that Canadian consumers pay actual bills – not normalized ones subject to regression analysis – the data from the vast majority of studies that point to Canadians facing some of the highest wireless prices in the world still stands.

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More Steps Needed: Government Commissioned Report Shows Canadian Wireless Pricing Remains Among Highest in the Developed World

Michael Geist Law RSS Feed - Tue, 2019/01/08 - 11:10

The Canadian government released the 2018 price comparison of wireless pricing just before the holidays, promoting the report with a press release trumpeting “greater competition leads to reduced mobile wireless price plans for Canadians.” Despite the optimism from Innovation, Science and Economic Development Minister Navdeep Bains, a closer look at the data shows that Canadians continue to pay some of the highest wireless prices in the world. In fact, a comparison of pricing changes since the Liberals won the 2015 election reveals that Canada lags badly behind peer countries in the reduction of pricing of common wireless plans.

Consider the two baskets (or levels) that many consumers encounter when they consider a wireless plan: unlimited talk and text plus either 2 GB or 5 GB of data. In each case, Canadian prices are either the highest or second highest among the reviewed countries. Not only are the prices high, they are typically falling more slowly than in those other countries. In other words, the gap between Canada and other countries on wireless affordability is growing, not shrinking.

Level 4 – 2 GB, unlimited talk and text

Country
2015
2018
Percent change
Canada 83 75 -9% US 92 61 -34% UK 62 27 -56% France 48 31 -35% Germany 72 46 -36% Italy 63 21 -67% Australia 78 25 -68% Japan 82 NA

 

Level 5 – 5 GB, unlimited talk and text

Country
2015
2018
Percent change
Canada 107 87 -28% US 131 98 -25% UK 69 31 -55% France 61 34 -44% Germany 103 65 -37% Italy 77 30 -61% Australia 97 27 -72% Japan 103 NA

 

While the Canadian carriers seem determined to adopt a climate change denier style approach by injecting dubious data into the debate (more on that in a post tomorrow), the reality is that comparison data overwhelmingly points to Canadian wireless prices as uncompetitive, leading to reduced usage and harming the innovation economy. As Meghan Sali points out in her excellent Globe and Mail op-ed, the lack of wireless competitiveness is emerging as a political issue. With an election only months away, the time for real policy reform – including mandated MVNOs to encourage greater competition – is long overdue.

The post More Steps Needed: Government Commissioned Report Shows Canadian Wireless Pricing Remains Among Highest in the Developed World appeared first on Michael Geist.

Looking Back at 2018: My Top Ten Posts

Michael Geist Law RSS Feed - Thu, 2018/12/27 - 10:07

With 2019 nearly upon us, many sites are taking a moment to reflect back on the past year and the posts and issues that attracted the most attention. On my site, the top issues are easy to spot: the Bell coalition website blocking proposal, wireless costs, copyright reform, and digital trade dominate the top ten. My top ten new posts published in 2018:

  1. Thousands Slam Bell Coalition’s Website Blocking Proposal in Submissions to the CRTC
  2. World’s Worst Wireless Pricing?: Report Finds Canadian Wireless Broadband Pricing Offers Least Bang for the Buck in Developed World
  3. From Copyright Term to Super Bowl Commercials: Breaking Down the Digital NAFTA Deal
  4. The State of Canadian Wireless in One Chart: No One Has Carriers That Generate More Revenue With Less Usage
  5. Canadian Government Banning Settlement Demands in Copyright Notice-and-Notice System
  6. Bell to Employees: Click Here To Support Our Website Blocking Proposal at the CRTC
  7. Regulate Everything: The CRTC Goes All-In on Internet Taxation and Regulation
  8. Fair Play for FairPlay?: Bell Presented Its Site Blocking Plan to the CRTC Months Before It Became Public
  9. Canada’s SOPA Moment: Why the CRTC Should Reject the Bell Coalition’s Dangerous Internet Blocking Plan
  10. Canada’s Tough Anti-Piracy Copyright Law: Federal Court Awards Millions in Damages Against Unauthorized Streaming Site

Just outside the top ten was a post from the misleading on fair dealing series and one that made the case that Canadian privacy law is in need of an update.

It was an exceptionally busy year and with the broadcast and telecom review, the copyright review report, implementation of the USCMA, and a federal election, 2019 is sure to be just as active. Happy new year to all and thanks for reading!

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The Consequence of Uncompetitiveness: Canadians Ration Wireless Data As Monthly Usage Ranks Among the Lowest in the OECD

Michael Geist Law RSS Feed - Fri, 2018/12/21 - 10:25

The CRTC released its overdue 2018 Communications Monitoring Report for the telecom sector yesterday, providing fresh data that confirms what millions of consumers already know: the Canadian wireless sector remains uncompetitive, leaving a dominant big three providers whose subscribers use less data than consumers in most other OECD countries. While the carriers long ago shifted away from arguments on price toward one of “quality” (ie. Canada may not be cheap for wireless but you get what you pay for), the data strongly suggests that high prices leave consumers worried about using those networks.

The global comparative data is unequivocal with consumers in many OECD countries using double or triple the amount of monthly data.

 

CRTC CMR 2018, OECD Broadband https://crtc.gc.ca/eng/publications/reports/PolicyMonitoring/2018/cmr2018-mobile.pdf

Moreover, data usage with the higher priced big three is considerably lower than with the competition, suggestive of the impact of pricing on usage.

CMR 2018, https://crtc.gc.ca/eng/publications/reports/PolicyMonitoring/2018/cmr2018-mobile.pdf

The CRTC data also highlights yet again to how overage charges remain another quiet source of massive consumer wireless spending. Last year, the CRTC specifically pointed to overage spending at more than a billion per year. This year, the data is buried in the data tables but it tells much the same story with more than $1.2 billion in revenue generated from mobile overage charges.

Taken together, the data points to a market dominated by three big carriers with retail pricing that create all the wrong incentives for a country focused on innovation. Rather than encouraging data use, the current marketplace forces consumers to ration their data and to subscribe to cheaper data plans with the hope of not running into overage charges.

Unfortunately, Canadian consumers are being hit with the worst of both worlds: less data use per month than the vast majority of OECD countries alongside over a billion dollars in overage fees. For Innovation, Science and Economic Development Minister Navdeep Bains, the CRTC report is further evidence that “steps in the right direction” have not resulted in significant change, suggesting it is the government’s wireless policy that is in dire need of refresh.

The post The Consequence of Uncompetitiveness: Canadians Ration Wireless Data As Monthly Usage Ranks Among the Lowest in the OECD appeared first on Michael Geist.

Bryan Adams Warns Canadian Heritage Committee on Copyright Term Extension: Enriches Large Intermediaries, Not Creators

Michael Geist Law RSS Feed - Fri, 2018/12/21 - 10:15

Canadian artist Bryan Adams captured headlines earlier this year when he appeared before the Standing Committee on Canadian Heritage and urged reform to the reversion provision that seeks to remedy the bargaining imbalance between creators and music labels/publishers by reverting the rights many years later. Adams noted that creators never experience the benefit of reversion since it applies decades after their death. Instead, he proposed a 25 year reversion rule, which he argued was plenty of time for copyright to be exploited by an assignee.

Despite the attention – the Adams appearance garnered more press than any other copyright hearing all year – the Canadian music industry embarrassingly acted as if it never occurred. Yet Adams is back with a submission to the committee that fleshes out the proposal. Aided by former Copyright Board of Canada general counsel Mario Bouchard, the submission recommends that the Copyright Act be amended to allow creators to terminate all copyright transfers 25 years after the date of transfer.

The submission notably issues a warning on copyright term extension, which was included in the CUSMA deal with the U.S. and Mexico, stating:

Canada is now more or less duty-bound to increase copyright protection by 20 years, to “life + 70”. Extending the duration of copyright essentially enriches large firms of intermediaries. It does not to put money in the pockets of most creators.

Economists argue that copyright already lasts too long. Canada should respect its treaty obligations. However, unless Parliament intends copyright to be a law for distributors and not creators and wishes that the rhetoric about creators merely help intermediaries to gain strong exploitation rights with little or no benefit for creators, it should do something to ensure that more of the benefits from copyright extension flow to creators.

Adams raises two key concerns. First, he notes that copyright term extension provides little or no benefit to creators, who will have died decades before the extended protection kicks in. Indeed, as I stated to the Industry committee during my appearance, there is no evidence that creators today drop creative activities due to a perceived lack of incentive that comes from protection that runs for 50 years after their death rather than 70 years.

Second, Adams rightly distinguishes between creators and intermediaries, which presumably include music labels, publishers, distributors, and copyright collectives. It is those intermediaries – not individual creators – who have persistently lobbied for copyright term extension. In fact, while the Standing Committee on Canadian Heritage chaired by MP Julie Dabrusin painted itself as being chiefly concerned with assisting creators, the reality is that its witness list was dominated by intermediaries. The full witness list included a few artists and authors, but industry associations, copyright collectives or other intermediaries were far more prevalent. A key test for the committee as it crafts its recommendations will be whether it heeds Adams’ call to distinguish between creators and those that purport to speak on their behalf amid his reminder on who really benefits from copyright term extension.

The post Bryan Adams Warns Canadian Heritage Committee on Copyright Term Extension: Enriches Large Intermediaries, Not Creators appeared first on Michael Geist.

Copyright and Culture: My Submission to the Canadian Heritage Committee Study on Remuneration Models for Artists and Creative Industries

Michael Geist Law RSS Feed - Thu, 2018/12/20 - 11:05

The Canadian Heritage committee study on remuneration models for artists and creative industries, which was launched to support the Industry committee’s copyright review, wrapped up earlier this month. I appeared before the committee in late November, where I focused on recent allegations regarding educational copying practices, reconciled the increased spending on licensing with claims of reduced revenues, and concluded by providing the committee with some recommendations for action. My formal submission to the committee has yet to be posted (the committee has been slow in posting submissions), but it expanded on that presentation by focusing first on the state of piracy in Canada, followed by an examination of three sectors: (i) educational copying; (ii) the music industry and the value gap; and (iii) film and television production in Canada. The full submission can be found here.

Of particular note may be the recommendations for action and the appendix, which features links to relevant posts on all issues raised in the brief. The recommendation section states:

Recent Canadian copyright developments have addressed many of the key concerns from the creative industries and artists. For example, the extensive Copyright Board of Canada reforms contained in Bill C-86 comprehensively address longstanding concerns with the administration of copyright. The bill received royal assent on December 13, 2018.

Moreover, the copyright provisions in the Canada-US-Mexico Agreement significantly alter the copyright balance by extending the term of copyright by additional 20 years beyond our current law and the international standard found in the Berne Convention. By doing so, there is a need to recalibrate Canadian copyright law to restore the balance.

There are additional reforms that would benefit the creative sector. The government should work with Canadian publishers to ensure their works are available for digital licensing either in bundles or through transactional licenses. Given that digital licenses are sometimes the only source of revenue – Access Copyright’s Payback does not compensate for older works and print sales of old books is typically non-existent – embracing the digital opportunities with a forward looking approach may be the only revenue source for some authors.

 Governments should continue to pursue alternative publishing approaches that improve both access and compensation. For example, the government’s recent announcement of funding for creative commons licensed local news should be emulated with funding for open educational resources that pays creators up front and gives education flexibility in usage. This would be consistent with a study commissioned for the Association of Canadian Publishers, which found:

“The OER movement continues to grow and is becoming a cornerstone of the Canadian K–12 educational system. The proliferation of OER content is evident across the country and there are numerous initiatives that support the development, access, and distribution of content.”

Further transparency in creator remuneration is also needed. This would include greater transparency for payments from Internet platforms and streaming services as well as from payments and the administration of copyright collectives.

The committee should also recommend greater support for artists in addressing the contractual imbalances between creators and publishers or record labels. For example, Bryan Adams’ recommendation on reversion rights should be adopted to address one-sided creator-music label contracts. Further, a closer consideration of author royalties from publishers arising from new digital licences is needed.

Non-copyright policies should also be examined. For example, Canadian content rules for film and television production currently treat Canadian book authors as irrelevant for Cancon qualification. Reforms to the criteria of qualification for Canadian content are long overdue to ensure that the benefits designed to support Cancon creation accrue to all Canadian creators.

Relevant links include:

The State of Piracy in Canada

Canadian Piracy Rates Plummet as Industry Points to Effectiveness of Copyright Notice-and-Notice System

Government-Backed Study Finds Piracy Fight a Low Priority for Canadian Rights Holders

Fake Data on Fakes: Digging Into Bell’s Dubious Canadian Piracy Claims

The Case Against the Bell Coalition’s Website Blocking Plan, Part 2: Weak Evidence on the State of Canadian Piracy

The Case Against the Bell Coalition’s Website Blocking Plan, Part 3: Piracy Having Little Impact on Thriving Digital Services and TV Production

Springer Nature Opens Up on Educational Publishing: “E-Piracy” Sites Do Not Replace Traditional Subscription Services, Business Risks Primarily Stem from Marketplace Changes

Why Canada is Now Home to Some of the Toughest Anti-Piracy Rules in the World…And What Should Come Next

Canadian DMCA in Action: Court Awards Massive Damages in First Major Anti-Circumvention Copyright Ruling

Canadian-backed report says music, movie, and software piracy is a market failure, not a legal one

Educational Copying and Fair Dealing

Canadian Copyright, Fair Dealing and Education, Part One: Making Sense of the Spending,

Canadian Copyright, Fair Dealing and Education, Part Two: The Declining Value of the Access Copyright Licence

Canadian Copyright, Fair Dealing and Education, Part Three: Exploring the Impact of Site Licensing at Canadian Universities

Canadian Copyright, Fair Dealing and Education, Part Four: Fixing Fair Dealing for the Digital Age

Misleading on Fair Dealing, Part 1: Access Copyright’s Inconsistent Claims on the Legal Effect of the 2012 Fair Dealing Reforms

Misleading on Fair Dealing, Part 2: Why Access Copyright’s Claim of 600 Million Uncompensated Copies Doesn’t Add Up

Misleading on Fair Dealing, Part 3: Data Shows Books Are Rapidly Declining as Part of Coursepack Materials

Misleading on Fair Dealing, Part 4: The Shift from Coursepacks to Digital Course Management Systems

Misleading on Fair Dealing, Part 5: The Multi-Million Dollar Educational Investment in E-Book Licensing

Misleading on Fair Dealing, Part 6: Why Site Licences Offer Education More than the Access Copyright Licence

Misleading on Fair Dealing, Part 7: My Appearance Before the Standing Committee on Canadian Heritage

Misleading on Fair Dealing, Part 8: The Access Copyright Fight Against Transactional Licensing

Misleading on Fair Dealing, Part 9: The Remarkable Growth of Free and Open Materials

Misleading on Fair Dealing, Part 10: Rejecting Access Copyright’s Demand to Force Its Licence on Canadian Education

Fair Dealing and the Right to Read: The Case of Blacklock’s Reporter v. Canada (Attorney General)

Fair Dealing Support for News Reporting and Public Debate: The Case of Warman and National Post v. Fournier

Why Fair Dealing Safeguards Freedom of Expression: The Case of the Vancouver Aquarium

Why Fair Dealing Benefits Creators: The Case of a Room Full of Spoons

Access Copyright Calls for Massive Expansion of Damage Awards of Up To Ten Times Royalties

Value Gap and the Music Industry

Music Industry’s Canadian Copyright Reform Goal: “End Tech Companies’ Safe Harbours”

Who Needs an iPhone Tax: Canadian Music Industry Instead Calls for $40 Million Annual Handout

Music Canada Data Confirms Huge Increase in Streaming Revenues and Sharp Decline of Music Listening from Pirated Sources

SOCAN Financial Data Highlights How Internet Music Streaming is Paying Off for Creators

Broken Record: Why the Music Industry’s Secret Plan for iPhone Taxes, Internet Tracking and Content Blocking is Off-Key

Canadian Music Industry Seeks New Fees, Content Blocking, and Right to Renegotiate Deals Despite Generating Record Digital Revenues

Canada’s Tough Anti-Piracy Copyright Law: Federal Court Awards Millions in Damages Against Unauthorized Streaming Site

Film and Television Production in Canada

No Panic: Canadian TV and Film Production Posts Biggest Year Ever Raising Doubts About the Need for Site Blocking and Netflix Regulation

The Netflix Effect?: Foreign Sources Outspend Canadian Broadcasters and Distributors for English TV Production

The Case Against the Bell Coalition’s Website Blocking Plan, Part 1: Canada’s Current Copyright Law Provides Effective Anti-Piracy Tools

The Case Against the Bell Coalition’s Website Blocking Plan, The Finale

UN Special Rapporteur for Freedom of Expression: Website Blocking Plan “Raises Serious Inconsistencies” With Canada’s Human Rights Obligations

Coalition Featuring Google, Amazon, GoDaddy and CogecoPeer1 Warn Against Canadian Site Blocking Plan: Lost Jobs, Stifled Innovation

No Need for New Internet Injunctions: Why Canadian Copyright Law Already Provides Rights Holders with the Legal Tools They Need

Global Internet Takedown Orders Come to Canada: Supreme Court Upholds International Removal of Google Search Results

Recommendations for Action

Cuts Like a Knife: Bryan Adams Calls for Stronger Protections Against One-Sided Record Label Contracts

Australian Copyright Scandal Points to the Need for Greater Oversight of Copyright Collectives

From Copyright Term to Super Bowl Commercials: Breaking Down the Digital NAFTA Deal

USMCA sends Canada back to the drawing board on copyright law

Canadian Publisher on the Term of Copyright: Life Plus 50 Years is “Already Too Long”

Why Copyright Term Matters: Publisher Study Highlights Crucial Role of the Public Domain in Ontario Schools

The Trouble With the TPP’s Copyright Rules

Canadian Government Commits $50 Million to Creative Commons Licensed Open News Content

Digital Trends and Initiatives in Education: The Study the Association of Canadian Publishers Tried To Bury

Canadian Copyright, OA, and OER: Why the Open Access Road Still Leads Back to Copyright

Canada’s National Digitization Plan Leaves Virtual Shelves Empty

Canada May Be Nearing the Open Access “Tipping Point”

Swartz’s Death Places Spotlight on More Open Access To Information

Setting the Stage for the Next Decade of Open Access

Why the Government’s Commitment to “Open by Default” Must Be Bigger Than Open Data

The post Copyright and Culture: My Submission to the Canadian Heritage Committee Study on Remuneration Models for Artists and Creative Industries appeared first on Michael Geist.

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