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Fictional Claims: Why Kids Are Not Suffering With Canada’s Copyright Fair Dealing Rules

Michael Geist Law RSS Feed - Thu, 2016/06/23 - 08:50

In recent weeks, there has been some media coverage claiming that Canadian educational materials are disappearing in the face of copyright fair dealing rules. For example, several weeks ago, Globe and Mail writer Kate Taylor wrote a column on copyright featuring the incendiary headline that “Kids Will Suffer if Canada’s Copyright Legislation Doesn’t Change.” This week, the CBC provided coverage of a writer’s conference panel with a piece titled “Copyright-free material edging out Canadian texts” that speaks of sales falling off a cliff.

These articles are the latest shots in the battle launched by Canadian publisher and writer groups against fair dealing. The campaign includes regular meetings with Members of Parliament from all parties (speak to almost any MP and they will tell you that they have heard horror stories about Canadian copyright), international letter writing campaigns, and commissioned studies that feature unsubstantiated claims about the state of licensing revenues in Canada (the PWC study comes with the caveat that “we provide no opinion, attestation or other form of assurance with respect to the results of this Assessment”).

While there have been some notable responses from people such as Meera Nair, many copyright watchers have remained largely silent, perhaps assuming that the reliance on false rhetoric will fail to find an audience. It is true that the claims have fallen flat with key independent decision makers such as the Supreme Court of Canada, the Copyright Board of Canada, and the Australian government’s Productivity Commission, but the persistent rhetoric could lead to an inaccurate view of Canadian copyright just as a review of the law is planned for 2017.

The Taylor column effectively summarizes the main claims of anti-fair dealing supporters. First, that the educational publishing business is in decline due to fair dealing practices. Second, that those fair dealing practices are the result of 2012 legislative reforms. Third, that teachers are increasingly turning to free, Internet-based alternatives to the detriment of Canadian students.

Each argument is simply wrong.

The Decline of Educational Publishing in Canada

There have been a wide range of claims about the decline of educational publishing in Canada in recent years. While some have been demonstrably false (for example, an Access Copyright lawyer reportedly told a conference earlier this year that Broadview Press cannot publish anymore, a claim vigorously denied by the publisher), the reality is that educational publishing is in decline worldwide for reasons that have little to do with copyright law.

Ariel Katz has previously debunked claims regarding Oxford University Press, which figures prominently in the Taylor column. In fact, more recent annual reports from companies such as OUP acknowledge changing market conditions around the world, with the company noting:

“the Higher Education textbook market shrank in important markets such as the UK, Canada, and the US, illustrating the contrasting array of market conditions to which OUP needed to adapt in 2014.”

Nelson Education is the largest Canadian educational publisher and its President and CEO Geoff Nordal identified the primary economic challenges in an affidavit:

In Canada, each province and territory has authority over curriculum development and education funding for the K-12 Market. Following a historic high in Canada in 2006 with respect to new curriculum development and spending, the K-12 Market contracted. The K-12 Market has been negatively affected by reduced spending on new curriculum by Canadian schools over the last five years, and in particular the spending decline in Ontario which represents the largest proportion of educational spending in Canada.

In the higher education market, Nordal focused on the following issues:

The Higher Education Market has been negatively affected by, among other things: a lack of clarity at universities with respect to ‘ancillary fees’; with certain institutions banning digital homework solutions with added fees; increased traction in the open textbook movement due in part to government funding in a number of provinces; and the use of used books, rental books and peer-to-peer sharing, impacting the demand for new textbooks at universities and colleges in Canada. The impact caused by used books and rental books is mitigated by revisions cycles and new textbook editions, the adoption of digital materials and increased use of custom and indigenous products. In addition, the Higher Education Market is in transition from traditional books to digital products, which is having a transformative effect on the business.

Nordal’s emphasis on reduced provincial spending (for K-12) and the digital shift (for higher education) is consistent with the data from other sources. The 2010 report on K-12 publishing commissioned by Canadian Heritage also pointed to the long pilot periods delaying purchasing decisions and the increased use of alternative and digital resources.

These findings are also consistent with a 2015 study that offers a far more insightful analysis on the state of book publishing than the Access Copyright commissioner PWC work. Reading the Tea Leaves was also commissioned by the industry – it was prepared for Creative BC and the Association of Book Publishers of British Columbia – but unlike the PWC study it features original research and interviews of publishers throughout the province. The study characterizes the challenge for educational publishing as follows:

Scholarly and educational publishers share some of the same issues as trade publishers, but they face other unique challenges. Tablet and other nonprint use will increase in the school systems here and abroad, changing how educational materials are bought, used and updated. Scholarly publishers and trade publishers that sell into the academic market are struggling with the impact on their sales of Open Access and fair use policies, tailored subscription services such as Scribd’s Edelweiss, used book sales, student piracy and increased library use for class reading lists.

Simply put, claims that the challenges facing scholarly publishers are primarily a function of copyright law is false.

Canadian Fair Dealing Guidelines Are Not the Result of 2012 Reforms

A consistent theme in claims about the impact of fair dealing is that there is a direct link between the addition of “education” as a fair dealing purpose in the 2012 reforms and the fair dealing practices within Canadian educational institutions. Yet the reality is that the guidelines have very little to do with the 2012 reform. First, fair dealing includes multiple purposes that can be relied upon by educational institutions, including research and private study.  The addition of education was always evolutionary rather than revolutionary. Indeed, the proof is in the Supreme Court of Canada’s fair dealing copyright decisions, which ruled against Access Copyright without the benefit of an education fair dealing purpose.

Second, the widely used fair dealing guidelines are based primarily on decisions from the Supreme Court of Canada and (now) the Copyright Board of Canada. Both have provided detailed guidance the scope of fair dealing, the appropriate test, and the applicability of insubstantial copying. Current practices have been influenced by what courts and tribunals have ruled, not what the government implemented in 2012. In fact, Canadian educators could rely far more on the 2012 reforms, including the use of Internet exception for education and the exception for non-commercial user generated content.

Third, it is important to note that Canadian fair dealing practices are not inconsistent with many jurisdictions around the world. For example, the U.S. fair use provision is clearly far broader than fair dealing with recent fair use decisions involving the legality of university copying, digitization practices, and use of APIs. Fair use can be found in other countries, some of which have practices that involve far more generous copying than Canada. For instance, copying 20% of a book is viewed as fair use in Israel, double the Canadian guideline. Most recently, the Australian Productivity Commission, a government-backed think-tank, recommended the adoption of fair use in that country.

Internet-Based Alternatives

As the B.C. study on the publishing industry notes, open access and free online alternatives do represent a business threat to the conventional publishing industry. Yet the notion that this leads to a lack of quality control is demonstrably false. First, several provinces have invested heavily in developing quality, peer-reviewed online materials that can be freely used by any school. For example, Open School BC, backed by the province, has modules in the sciences, social sciences, and languages. The B.C. Open Textbook Project has over 150 open textbooks that has saved students millions of dollars. E-learning Ontario has an online resource bank featuring thousands of resources from students from kindergarten to Grade 12. In fact, the shift to online educational resources, which offers the promise of free online materials that can be used by schools anywhere, represents a great opportunity to enhance access to Canadian-specific materials.

Second, as open access publishing grows in popularity – the European Union just announced plans to ensure that all publicly-funded scientific papers will be freely available by 2020 and Canada now has a similar open access policy in place for government-funded research – the majority of new research publications will soon be freely online and accessible to all. This too should be celebrated as it creates equality of access and better ensures that the work of researchers is made available to everyone, including teachers and students.

The post Fictional Claims: Why Kids Are Not Suffering With Canada’s Copyright Fair Dealing Rules appeared first on Michael Geist.

Ignore the Scare Tactics: The Real Future of Bell Investment in Fibre Networks

Michael Geist Law RSS Feed - Wed, 2016/06/22 - 08:45

Bell’s defeat this week at the Federal Court of Appeal over its MobileTV service marked the second high profile regulatory loss in recent months for Canada’s largest communications company. Last month, the government rejected Bell’s cabinet appeal of a CRTC decision on broadband infrastructure. The CRTC ruling means that companies such as Bell will be required to share their fibre networks with other carriers on a wholesale basis.

Bell’s appeal (and accompanying lobbying effort) was premised on the notion that CRTC regulation would force the company to reconsider its fibre investment. Indeed, its cabinet appeal stated:

There should be no doubt that going forward, as a result of the CRTC’s decision, each fibre-to-the-home investment opportunity will be reviewed and the pace and scale of our investment will unequivocally be affected. Where a project’s projected return on investment is uncertain, capital will not be allocated to it. The CRTC’s decision means that investment will be stopped or delayed for years in areas where the return on investment can no longer be justified. This is simply the commercial consequence of the CRTC’s decision to mandate network unbundling in order to foster resale competition.

This version of the Bell fibre story was repeated to many municipalities, who wrote letters on behalf of the company. It included claims that the investment could decline by hundreds of millions of dollars if the CRTC decision was upheld.

Yet that is only one version of the Bell story on fibre investment. As attendees last week at the TD Securities Telecom and Media Forum learned, there is another version. With a far different audience – investors rather than regulators – the company’s message delivered by Glen LeBlanc, BCE’s Executive Vice-President and Chief Financial Officer, was much different (transcribed from webcast):

No bigger part of our strategic imperatives than that of fibre and enhancing our fibre footprint.  We have about 2.5 million premises covered with fibre today and we see ourselves at 3 million by the end of calendar 2016.  The focus right now is Toronto. We made an announcement that will build fibre to 1.1 million homes here in Toronto. That will be virtually complete the end of 2017, early 2018.

That’s about a third of premises that we would ultimately like to cover with fibre. Out of the 10 to 11 million homes we serve, we think we can bring fibre to about 9 million of that.  Frankly, that’s going to take 8 – 10 years to get there and do that.  But we’re a third of the way there...This is going to continue. It’s paramount to us to have a network of tomorrow. That’s what we’re building now.  A future-proof network, whether than be offering gig service to ultimately 2 gig, 10 gig, 40 gig service. That’s a network that for us is critical to long-term success.

Why are the fibre networks so critical? According to Leblanc, the cost savings that come from reduced service expenses is a huge factor:

We have experience now and I can speak to my experience in Atlantic Canada when we built out fibre optic in Atlantic Canada when I was CFO of Bell Aliant.  Now the benefits that we’re seeing 6 or 7 years down the road. Lower customer churn, higher ARPU per household, we’re seeing significant cost reductions in the network, lower truck rolls, lower calls to the contact centre. Ultimately, when you fast forward through the next decade, we’re going to end up with a very different cost structured telco in the future. There’s no electronics in the field. That’s one thing that I can’t overstate of how important that is. Whether that be a copper network that quite frankly over time in Canada does not age well in humidity and rain in Canadian weather. Or even fibre to the node or networks that have electronics in the field – DSLAMS or nodes. Those nodes ultimately lead to trouble, which leads to service troubles with customers and truck rolls and calls to the call centre.

Fibre is all about elimination of all of that. It’s a glass strand from our office to your home. There are no active electronics in the field.  It’s a passive network. The cost savings for that in the long term are very substantial. Payback is 7 to 10 years we would say on average. This is about reinventing who were are.  A 135 year old company that has lived off of copper networks for most of that having another 135 years on the network of tomorrow.

In fact, Leblanc went further, noting that the end goal is the elimination of the existing copper network:

The numbers we’re seeing from Verizon are absolutely achievable [30% cost expenditure reduction once a city has fibre] and we’re seeing that. But I want to separate the cost savings you see today with the cost savings you ultimately see in the long run.  The first cost savings I’ve already alluded to: that’s the lower truck rolls and better customer experience. The network performance savings, lower calls to the call centre. We’re absolutely enjoying that right out of the gate. We see about 40-50% lower truck rolls on a fibre network than our historic fibre to the node network. The great savings – the ultimate euphoria – is when you can shut down your copper network. That’s where I think you see the telco of tomorrow. 

In other words, Bell’s plan is to extend fibre to the vast majority of its existing network given the enormous cost savings, the potential for increased revenues, and prospect of shutting down its existing copper network. Bell may rely on scare tactics in regulatory proceedings to claim that fibre investment will be jeopardized by regulation, but it saves the real story for the investment community.

The post Ignore the Scare Tactics: The Real Future of Bell Investment in Fibre Networks appeared first on Michael Geist.

Federal Court of Appeal Upholds CRTC Ruling That Bell Mobile TV Service Violated Telecom Law

Michael Geist Law RSS Feed - Tue, 2016/06/21 - 08:45

In the fall of 2013, Ben Klass, a graduate student in telecommunications, filed a complaint with the CRTC over how Bell approach to its Mobile TV product. Klass noted that Bell was offering a $5 per month mobile TV service that allowed users to watch dozens of Bell-owned or licensed television channels for ten hours without affecting their data cap. By comparison, users accessing the same online video through a third-party service such as Netflix would be on the hook for a far more expensive data plan since all of the data usage would count against their monthly cap.

In January 2015, the CRTC released its decision in the case, siding with Klass. The Commission expressed concern that the service “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.”  While Bell argued that the mobile TV service was subject to broadcast rather than telecom regulation, the CRTC ruled that mobile television services effectively invoked both broadcast and telecom regulation, since a data connection was required to access the service.

In light of the applicability of telecom regulation, the CRTC considered whether the Bell service (and a similar service by Videotron) constituted an undue preference, ruling that it did:

the Commission finds that the preference given in relation to the transport of Bell Mobility’s and Videotron’s mobile TV services to subscribers’ mobile devices, and the corresponding disadvantage in relation to the transport of other audiovisual content services available over the Internet, will grow and will have a material impact on consumers, and other audiovisual content services in particular.

The decision generated both supportive and critical commentary with the focus squarely on the issue of broadcast and/or telecom regulation of the mobile TV service. When Bell appealed the ruling to the Federal Court of Canada, that was unsurprisingly the key issue. Yesterday, the court issued its decision, rejecting the Bell appeal.

The decision once again affirms the applicability of telecom regulation to the service, providing some helpful language on distinguishing between broadcasting (which involves a transmission of programs for reception by the public) and a broadcasting undertaking (which has some control over the programming). The court concludes that “a person who has no control over the content of programs and is only transmitting programs for another person, would not be transmitting such programs as a broadcasting undertaking.”

The court proceeds to emphasize the separation of content and carriage:

In my view it was reasonable for the CRTC to determine that Bell Mobility, when it was transmitting programs as part of a network that simultaneously transmits voice and other data content, was merely providing the mode of transmission thereof – regardless of the type of content – and, in carrying on this function, was not engaging the policy objectives of the Broadcasting Act. The activity in question in this case related to the delivery of the programs – not the content of the programs – and therefore, the policy objectives of the Telecommunications Act related to the delivery of the ‘intelligence’ were engaged.

A concurring opinion went further, concluding that both the Telecommunications Act and the Broadcasting Act could apply to the different Bell activities within the same service:

In light of these provisions, in my view the CRTC reasonably concluded on the evidence before it that customers accessed Bell Mobile TV through data conductivity and transport services governed by the Telecommunications Act. At the same time, the acquisition, aggregation, packaging and marketing of Bell Mobile TV involved a separate broadcasting function governed by the Broadcasting Act.

The decision provides an important affirmation of the CRTC ruling, which was grounded in net neutrality principles that will be tested again this year in a hearing on much the same issue (zero rating). It also serves a reminder that efforts to bring broadcasting law into the Internet world – perhaps through ISP levies or CanCon contributions – faces significant legal barriers.

The post Federal Court of Appeal Upholds CRTC Ruling That Bell Mobile TV Service Violated Telecom Law appeared first on Michael Geist.

Why the Federal Court Crackdown on Set-Top Boxes Threatens to Chill Canadian Tech Innovation

Michael Geist Law RSS Feed - Mon, 2016/06/20 - 10:59

The ability to record television programs is a feature that most consumers take for granted today, but when the Sony Betamax was first introduced in the 1970s, it revolutionized television and sparked high profile lawsuits by the major Hollywood studios who wanted to block its availability. The battle between Universal Studios and Sony ultimately made its way to the U.S. Supreme Court, which ruled that Sony was not liable for contributing to copyright infringement since its product had substantial non-infringing uses.

My weekly technology law column (Toronto Star version, homepage version) notes that the battle between established players and distributors of disruptive technologies has since played out many times in courtrooms and legislatures around the world. From the introduction of the portable MP3 player (which the recording industry tried to stop in a 1999 case) to disputes over the availability of virtual private network services, judges and policy makers often return to the U.S. Supreme Court’s recognition that stopping the distribution of new technologies merely because they are capable of infringing copyrights would create an enormous barrier to new products and services that have many different uses.

While there have been fewer Canadian cases, the federal government has understood the need for an innovation balance that provides effective copyright protection and ensures that the law does not unduly inhibit new innovation. For example, the 2012 copyright reforms included a provision that targets Internet services that “enable” infringement, but limited its applicability to services that are “primarily” provided for the purpose of copyright infringement.

A recent federal court ruling could alter the innovation balance, however, by targeting a disruptive technology that everyone agrees has both legitimate and infringing uses. The case was launched by three of Canada’s largest communications and media companies – Bell, Videotron, and Rogers – against several distributors of the television set-top boxes that compete with the broadcasters’ own services and technology.

The set-top boxes turn standard televisions into “smart TVs”, enabling users to access a wide range of video content found online. By all accounts, this includes authorized content such as YouTube, Netflix or other online video providers, as well as unauthorized streaming services that offer access to unlicensed content. The set top box providers do not make the content available themselves, but rather sell a device preloaded with software that can be used to access both infringing and non-infringing content.

According to the ruling, Bell, Videotron, and Rogers have become increasingly concerned with the emergence of competing set top boxes, claiming that the pre-loaded software makes it easy to access infringing streaming content. Although the same could be said of most personal computers, they argue that the set top boxes increase the likelihood of consumers cancelling their cable or satellite service (often referred to as “cord cutting”) and infringing their copyrights.

Given their concerns, the companies asked the court to issue an injunction banning several companies from distributing any set top boxes with pre-loaded software, characterizing the technology as an “existential” threat to their business models.

The federal court surprisingly issued the injunction, ruling that the companies met the legal standard of demonstrating “irreparable harm.” Since recent data indicates that cord cutting is still a small part of the Canadian market and the competition from authorized services such as Netflix is widely viewed as a far greater competitive threat, the ruling is difficult to square with marketplace realities.

The set top box distribution companies have unsurprisingly appealed the ruling on those grounds, but the bigger issue revolves around the court’s willingness to block technologies with substantial non-infringing uses. Indeed, the court acknowledges that the set top boxes “display numerous legal applications and generally have the effect of turning a standard television into a ‘smart TV’.”

If the decision stands, the case has the potential to create a Canadian chill over new, disruptive technologies leaving courts to decide what can and cannot be preloaded onto computers and other electronic devices. With Minister Navdeep Bains launching a major new initiative last week on innovation, he will need to keep a close eye on a court case that could alter the innovation balance and convince some companies to stay out of the Canadian market.

The post Why the Federal Court Crackdown on Set-Top Boxes Threatens to Chill Canadian Tech Innovation appeared first on Michael Geist.

Set-top box crackdown will chill Canada’s tech innovation

Michael Geist Law RSS Feed - Mon, 2016/06/20 - 10:56

Appeared in the Toronto Star on June 20, 2016 as Set-Top Box Crackdown Will Chill Canada’s Tech Innovation

The ability to record television programs is a feature that most consumers take for granted today, but when the Sony Betamax was first introduced in the 1970s, it revolutionized television and sparked high profile lawsuits by the major Hollywood studios who wanted to block its availability. The battle between Universal Studios and Sony ultimately made its way to the U.S. Supreme Court, which ruled that Sony was not liable for contributing to copyright infringement since its product had substantial non-infringing uses.

The battle between established players and distributors of disruptive technologies has since played out many times in courtrooms and legislatures around the world. From the introduction of the portable MP3 player (which the recording industry tried to stop in a 1999 case) to disputes over the availability of virtual private network services, judges and policy makers often return to the U.S. Supreme Court’s recognition that stopping the distribution of new technologies merely because they are capable of infringing copyrights would create an enormous barrier to new products and services that have many different uses.

While there have been fewer Canadian cases, the federal government has understood the need for an innovation balance that provides effective copyright protection and ensures that the law does not unduly inhibit new innovation. For example, the 2012 copyright reforms included a provision that targets Internet services that “enable” infringement, but limited its applicability to services that are “primarily” provided for the purpose of copyright infringement.

A recent federal court ruling could alter the innovation balance, however, by targeting a disruptive technology that everyone agrees has both legitimate and infringing uses. The case was launched by three of Canada’s largest communications and media companies – Bell, Videotron, and Rogers – against several distributors of the television set-top boxes that compete with the broadcasters’ own services and technology.

The set-top boxes turn standard televisions into “smart TVs”, enabling users to access a wide range of video content found online. By all accounts, this includes authorized content such as YouTube, Netflix or other online video providers, as well as unauthorized streaming services that offer access to unlicensed content. The set top box providers do not make the content available themselves, but rather sell a device preloaded with software that can be used to access both infringing and non-infringing content.

According to the ruling, Bell, Videotron, and Rogers have become increasingly concerned with the emergence of competing set top boxes, claiming that the pre-loaded software makes it easy to access infringing streaming content. Although the same could be said of most personal computers, they argue that the set top boxes increase the likelihood of consumers cancelling their cable or satellite service (often referred to as “cord cutting”) and infringing their copyrights.

Given their concerns, the companies asked the court to issue an injunction banning several companies from distributing any set top boxes with pre-loaded software, characterizing the technology as an “existential” threat to their business models.

The federal court surprisingly issued the injunction, ruling that the companies met the legal standard of demonstrating “irreparable harm.” Since recent data indicates that cord cutting is still a small part of the Canadian market and the competition from authorized services such as Netflix is widely viewed as a far greater competitive threat, the ruling is difficult to square with marketplace realities.

The set top box distribution companies have unsurprisingly appealed the ruling on those grounds, but the bigger issue revolves around the court’s willingness to block technologies with substantial non-infringing uses. Indeed, the court acknowledges that the set top boxes “display numerous legal applications and generally have the effect of turning a standard television into a ‘smart TV’.”

If the decision stands, the case has the potential to create a Canadian chill over new, disruptive technologies leaving courts to decide what can and cannot be preloaded onto computers and other electronic devices. With Minister Navdeep Bains launching a major new initiative last week on innovation, he will need to keep a close eye on a court case that could alter the innovation balance and convince some companies to stay out of the Canadian market.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Set-top box crackdown will chill Canada’s tech innovation appeared first on Michael Geist.

Democracy in Action: Reflecting on the Toronto TPP Town Hall

Michael Geist Law RSS Feed - Thu, 2016/06/16 - 09:08

Yesterday I had the pleasure of appearing as a panelist at the government’s town hall meeting in Toronto on the Trans Pacific Partnership. The town hall, held in a packed auditorium at the University of Toronto, featured International Trade Minister Chrystia Freeland (in listening mode) along with three panelists (myself, C. D. Howe’s Daniel Schwanen, and Unifor’s Jerry Dias) and moderator Dan Breznitz of the Munk School.

It is easy to become cynical about the government’s emphasis on public consultations. They are happening everywhere – innovation, digital CanCon, TPP, and soon copyright to name a few. But to attend yesterday’s TPP town hall was to witness the remarkable passion and enthusiasm for public engagement on critical public policy issues. The event ran nearly 2 1/2 hours with dozens of speakers from an incredible range of ages, backgrounds, and interests. There were librarians and archivists focused on copyright term extension and digital locks; several doctors spoke to the impact of the TPP on public health and access to medicines, food experts highlighted the dangers associated with food security, environmental activists focused on the TPP and climate change, and speakers of all ages (including a 92 year old woman) expressed concern with the investor-state dispute resolution provisions. Some speakers quoted from Freeland’s book on plutocrats to note the inconsistency between the TPP and the Minister’s prior writing. An aboriginal student nearly broke down speaking about the need to consult first nations, bringing the room to its feet.

While there has been a tendency to dismiss critics of the TPP, there is an informed public anxious to make their views on the agreement known to the government. The audience was knowledgeable, citing specific issues and their potential impact. Conservative MPs have been urging the government to simply get on with TPP ratification, falsely claiming that they engaged in widespread consultation. The audience made it very clear that no one in the prior government had ever asked for their opinion as the negotiations unfolded.

Freeland emphasized that there is no rush to ratify the TPP as no country has done so and everyone has until at least 2018 before the agreement can take effect. The government seems content to listen, study the deal, and adopt a neutral approach to the question of ratification. In fact, the deadline for submissions to the Standing Committee on International Trade has been extended once again, with October 31st now the last date for submissions. That suggests that there will still be ample opportunities to speak out and if the Toronto TPP town hall is any indication, a willingness of the government to listen.

The post Democracy in Action: Reflecting on the Toronto TPP Town Hall appeared first on Michael Geist.

Canada’s Surveillance Crisis Now Hiding In Plain Sight

Michael Geist Law RSS Feed - Tue, 2016/06/14 - 14:27

Three years ago this month, Edward Snowden shocked the world with a series of disclosures that revealed a myriad of U.S. government-backed surveillance programs. The Snowden revelations sparked a global debate over how to best strike the balance between privacy and security and led to demands for greater telecom transparency.

My weekly technology law column (Toronto Star version, homepage version) notes that the initial Canadian response to the surveillance debate was muted at best. Many Canadians assumed that the Snowden disclosures were largely about U.S. activities. That raised concerns about Canadian data being caught within the U.S. surveillance dragnet, but it did not necessarily implicate the Canadian government in the activities.

Within months, it became clear that Canadian securities agencies were enthusiastic participants in numerous surveillance initiatives. Canadians played a lead role in projects focused on tracking travellers using airport Wi-Fi networks, monitoring millions of daily uploads and downloads to online storage sites, aggregating millions of emails sent by Canadians to government officials, and targeting mobile phones and app stores to implant spyware.

Moreover, the U.S. collection and mining of “metadata” – the data about data that covers geographic information and details about social links – was also at the heart of Canadian activities with a ministerial authorization granting officials the power to capture the potentially sensitive personal information with minimal oversight.

While these programs attracted attention for a day or two, it was the Conservatives’ introduction of Bill C-51, the anti-terrorism legislation that granted the government a host of new powers, that finally succeeded in generating a sustained focus on Canadian surveillance law.

The bill became law with few amendments, but emerged as the public’s shorthand for the need for reforms to surveillance activities. Public Safety Minister Ralph Goodale and the new Liberal government have promised changes, with expectations that they will focus initially on a new “super” oversight body for security agencies and later open the door to further amendments.

Yet despite assurances that improved oversight will provide adequate safeguards against intrusive surveillance, in recent months it has become apparent that weak oversight represents only a small part of the problem.

Consider this year’s report from the Communications Security Establishment (CSE) commissioner, who uses legal language to obscure an otherwise clear admission that there are ongoing metadata violations within the CSE. The report notes that metadata activities were “generally conducted in compliance with operational policy” and that the “CSE has halted some metadata analysis activities” that were the subject of previous criticisms.

The use of words like “generally” and “some” are no accident. The CSE Commissioner could have just as easily written that the CSE still does not conduct its metadata activities in full compliance with the law and that it has refused to stop some activities that were the subject of complaints. Yet the soft framing turns what should be a major story and source of concern into something largely ignored by the general public.

The same is true for a series of admissions related to “privacy breaches” at the CSE. In plain language, this suggests that Canadian security intelligence agencies revealed information to foreign agencies in a manner that violates the law. Indeed, reports indicate that this includes identifying information arising from phone calls and Internet usage.

These are not privacy breaches in the conventional sense of an inadvertent loss of information or a malicious hack into government systems. Those are privacy breaches largely beyond the control of the holder of the information. Rather, these are unlawful disclosures that run afoul of the law. In fact, rather than come clean about the violations, the CSE has refused to disclose the number of “privacy breaches” since 2007 and the government has said it cannot identify those affected.

Three years after Snowden thrust surveillance onto the public agenda, it is time for Canada to reshape how its securities agencies operate. The desperate need for a full airing of Canadian surveillance practices comes not from what was hidden for many years, but what has been happening in plain sight.

The post Canada’s Surveillance Crisis Now Hiding In Plain Sight appeared first on Michael Geist.

Security Agencies Need to Fess Up About Illegal Privacy Breaches

Michael Geist Law RSS Feed - Tue, 2016/06/14 - 14:25

Appeared in the Toronto Star on June 13, 2016 as Security Agencies Need to Fess Up About Illegal Privacy Breaches

Three years ago this month, Edward Snowden shocked the world with a series of disclosures that revealed a myriad of U.S. government-backed surveillance programs. The Snowden revelations sparked a global debate over how to best strike the balance between privacy and security and led to demands for greater telecom transparency.

The initial Canadian response to the surveillance debate was muted at best. Many Canadians assumed that the Snowden disclosures were largely about U.S. activities. That raised concerns about Canadian data being caught within the U.S. surveillance dragnet, but it did not necessarily implicate the Canadian government in the activities.

Within months, it became clear that Canadian securities agencies were enthusiastic participants in numerous surveillance initiatives. Canadians played a lead role in projects focused on tracking travellers using airport Wi-Fi networks, monitoring millions of daily uploads and downloads to online storage sites, aggregating millions of emails sent by Canadians to government officials, and targeting mobile phones and app stores to implant spyware.

Moreover, the U.S. collection and mining of “metadata” – the data about data that covers geographic information and details about social links – was also at the heart of Canadian activities with a ministerial authorization granting officials the power to capture the potentially sensitive personal information with minimal oversight.

While these programs attracted attention for a day or two, it was the Conservatives’ introduction of Bill C-51, the anti-terrorism legislation that granted the government a host of new powers, that finally succeeded in generating a sustained focus on Canadian surveillance law.

The bill became law with few amendments, but emerged as the public’s shorthand for the need for reforms to surveillance activities. Public Safety Minister Ralph Goodale and the new Liberal government have promised changes, with expectations that they will focus initially on a new “super” oversight body for security agencies and later open the door to further amendments.

Yet despite assurances that improved oversight will provide adequate safeguards against intrusive surveillance, in recent months it has become apparent that weak oversight represents only a small part of the problem.

Consider this year’s report from the Communications Security Establishment (CSE) commissioner, who uses legal language to obscure an otherwise clear admission that there are ongoing metadata violations within the CSE. The report notes that metadata activities were “generally conducted in compliance with operational policy” and that the “CSE has halted some metadata analysis activities” that were the subject of previous criticisms.

The use of words like “generally” and “some” are no accident. The CSE Commissioner could have just as easily written that the CSE still does not conduct its metadata activities in full compliance with the law and that it has refused to stop some activities that were the subject of complaints. Yet the soft framing turns what should be a major story and source of concern into something largely ignored by the general public.

The same is true for a series of admissions related to “privacy breaches” at the CSE. In plain language, this suggests that Canadian security intelligence agencies revealed information to foreign agencies in a manner that violates the law. Indeed, reports indicate that this includes identifying information arising from phone calls and Internet usage.

These are not privacy breaches in the conventional sense of an inadvertent loss of information or a malicious hack into government systems. Those are privacy breaches largely beyond the control of the holder of the information. Rather, these are unlawful disclosures that run afoul of the law. In fact, rather than come clean about the violations, the CSE has refused to disclose the number of “privacy breaches” since 2007 and the government has said it cannot identify those affected.

Three years after Snowden thrust surveillance onto the public agenda, it is time for Canada to reshape how its securities agencies operate. The desperate need for a full airing of Canadian surveillance practices comes not from what was hidden for many years, but what has been happening in plain sight.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Security Agencies Need to Fess Up About Illegal Privacy Breaches appeared first on Michael Geist.

preparation

Fair Duty by Meera Nair - Mon, 2016/06/13 - 08:38

When the Copyright Act was last amended in 2012, the government of the day sought to accomplish a number of objectives. The summary of Bill C-32 (unveiled for first reading on 10 June 2010) detailed the legislative intent:

(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

The language of (c) and (d) is clear; “greater use” implies greater than what had previously been feasible. The specific mention of of education as a permissible purpose of fair dealing and the introduction of exceptions to facilitate digital distribution by libraries or distance education programs, suggested that educators, libraries and students could enjoy greater use of copyright materials. With respect to (e), the implementation of exceptions for time or format shifts, the making of backups, and the creation of non-commercial user-generated content were all to the advantage of consumers. Yet the previous government’s insistence that digital locks reign supreme, rendered many of the new exceptions inert and reduced previous possibilities for unauthorized use of copyright material.

In 2010, it was no secret that the digital locks provision of Bill C-32 was modeled on the United States’ Digital Millennium Copyright Act of 1998. Since its inception, the supremacy of locks in the United States has been systematically challenged through triennial reviews. Advocates for the lifting of blanket prohibition on circumvention could plead their case to the Librarian of Congress; if successful, they were granted a three-year lifting of the prohibition. (A notable reprieve occurred in 2006, in relation to educational uses of audio-visual works.) The latest review occurred in 2015; Mila Owen and Henry Thomas describe the outcome.

By the time C-32 was under discussion in Canada, it was abundantly evident that American overreach in protection of digital locks was impeding legitimate unauthorized uses (such as fair use) under American law.

Michael Geist declared Bill C-32 as “flawed but fixable.” However, the government refused to entertain thoughts of adjusting the prohibition on breaking digital locks; despite the logic that breaking a lock for a non-infringing use, should not trigger a charge of infringement. At a Standing Committee meeting on 25 November 2010, Minister of Canadian Heritage James Moore appeared unconcerned about the wider implications of casting locks as sacrosanct; in response to a question posed by Liberal Member of Parliament Marc Garneau, about the inconsistency in the government’s actions, Moore gave a peculiar answer:

[It] is a question about balance, and as far as my personal digital media consumption habits, I personally choose to buy products that don’t have digital locks. It’s my right as a consumer to be able to do that. As we’re seeing increasingly with technology, certainly the music industry, the television industry, and the film industry are creating products where people have the right to shift things from one format to another. … if you look at all the submissions we have received–we’re talking about music, television, video, video games, the software industry–everybody believes that if they’ve invested money, labour, and effort to create products and decide to protect those products by whatever mechanisms they choose to digitally, they should be allowed to do that. And consumers are free to purchase or not purchase those devices.

Garneau then questioned Jean-Pierre Blais (Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage) about digital locks, with specific reference to fair dealing:

I would like to ask for clarification on the issue of digital locks and fair dealing. Would you say that in this bill digital locks trump everything? For example, if somebody wants to produce educational materials under fair dealing but they have digital locks on them, would the person be prevented from doing so?

It required repeating the question, but Garneau was finally given an answer:

Garneau: Let me ask specifically about education. That’s the one I brought up. Do digital locks trump the use of material, copyrighted material, for educational purposes under “fair dealing”?
Jean-Pierre Blais: In the bill, as drafted, the answer is yes.

As we approach 2017, perhaps Minister Marc Garneau could share his past experiences with Minister Mélanie Joly and Minister Navdeep Bains as they prepare for the mandated review of the Copyright Act.

 


Why the Privacy Commissioner Doesn’t Need Legal Reforms To Require Transparency Reports

Michael Geist Law RSS Feed - Fri, 2016/06/10 - 08:45

Privacy Commissioner of Canada Daniel Therrien was in the news this week as he expressed concern with the evasiveness of Canada’s spy agencies and the ongoing refusal of some of Canada’s telecom companies (namely Bell) to issue transparency reports. I’ll have more to say about privacy and government agencies in my technology law column next week, but on the issue of telecom transparency reports, I believe that Therrien already has the necessary legal mandate to act now. Therrien urged all telecom companies to release transparency reports, noting:

“I think Canadians are telling us, first of all, that they would much prefer that data be shared from telcos to government only with a warrant, with a court authorization. But when that does not happen, Canadians expect that there be transparency…frankly, if there’s not more progress I will continue to call for legislation on this issue.”

I wrote about why Canada’s telecom transparency reporting still falls short late last month, emphasizing that a non-binding approach to transparency reporting has been a failure. I indicated that there is a strong argument that the law already requires companies to issue transparency reports as part of their obligation to be accountable and open under PIPEDA. Principle 4.1.4(d) establishes the following requirement under the law:

Organizations shall implement policies and practices to give effect to the [privacy] principles, including:
(d) developing information to explain the organization’s policies and procedures

Moreover, Principle 4.8.1 states that:

Organizations shall be open about their policies and practices with respect to the management of personal information.

To date, discussion of these provisions has focused on the need for publicly-available privacy policies. Yet there is no reason to think that they are limited merely to those policies. Ensuring that an organization is fully accountable for the information it collects, uses, and discloses should include reports that explain policies, procedures, and practices around information disclosures to law enforcement.

Commissioner Therrien does not need to lobby for legal reforms or wait for the government to act. There are no legal barriers to disclosure and any decision to withhold such information is a choice made by telecom providers such as Bell. The Privacy Commissioner should launch an immediate investigation, demand that Bell (and any other holdouts) explain why they have not issued transparency reports and revealed their disclosure practices to date, and issue findings on whether they are violating the law.

The post Why the Privacy Commissioner Doesn’t Need Legal Reforms To Require Transparency Reports appeared first on Michael Geist.

Former Copyright Board Chair Vancise Takes Aim at the Board Critics

Michael Geist Law RSS Feed - Thu, 2016/06/09 - 08:45

The Honourable William Vancise, the former Chair of the Copyright Board of Canada, recently delivered a combative (and entertaining) speech at an ALAI conference in which he took the critics of the board head on. Although the conference was focused on the future of the Copyright Board, many lawyers who regularly appear before the board seemed reluctant to air their concerns in public. Instead, it fell to Vancise to liven the proceedings. The board has posted the speech online and it is well worth a read. I was in the audience and came in for criticism for this 2013 article titled It’s Time to Admit the Copyright Board is Broken.

Vancise reserved his strongest criticism for Music Canada and its lobbying campaign against Tariff 8:

Let me say that I found it completely unacceptable and totally inappropriate for such an association to lobby the Chairman of the Board, an independent quasi-judicial tribunal- and I am certainly not alone in this view. It showed a lack of respect for the institution. The proper forum for dealing with a decision that Music Canada’s clients don’t like is to take it to judicial review. I can go on at great length on the lobbying efforts of Music Canada but I think you get the picture. The real reason for the outrage is not so much its concern for the purity of the process or consistency in decision-making but rather the fact that Music Canada doesn’t like the tariff. It’s a question of whose ox is being gored.

Vancise was similarly unimpressed with Access Copyright’s criticism of recent decisions:

This brings me to Access Copyright, another organisation that is unhappy about some of the recent decisions of the Board as mentioned previously. This led Access Copyright to state in its latest annual report that: ‘In the Provincial – Territorial tariff decision and recent K-12 decision, the Copyright Board’s troubling opaque assessments led to outcomes that are simultaneously unfair for rights holders and impractical for users,’ although I don’t think Access Copyright speaks for users. The annual report went on to say that these decisions highlight the systemic dysfunction in the Canadian copyright landscape and highlight the need for legislative reform. Once again what matters here is whose ox is being gored. This time it is the ox of Access.

Vancise noted that this time I was supportive of the Board’s decision, responding to Access Copyright that “the solution to its problems does not lie in further litigation nor in making claims based on what it would like the law to be. Rather, it comes from rapidly changing its business model to reflect what Parliament, the Supreme Court, and now the Copyright Board have ruled with respect to fair dealing.”

The post Former Copyright Board Chair Vancise Takes Aim at the Board Critics appeared first on Michael Geist.

The TPP’s Impact on Canadian Culture Emerging as Political Issue

Michael Geist Law RSS Feed - Wed, 2016/06/08 - 08:45

Earlier this year, I posted on the cultural implications of the TPP, noting that the agreement represents a departure from trade deals by creating restrictions on Canadian cultural policy. Assuming services such as Netflix argue that any mandated Cancon contribution is discriminatory if they do not also receive the benefits accorded to established broadcasters or broadcast distributors, the TPP will effectively ban applying Cancon contributions to exempt entities.

Now it appears that the implications of the TPP for Canadian cultural policy are beginning to attract attention. Question period in the House of Commons featured the following exchange this week:

Mr. Pierre Nantel (Longueuil – Saint-Hubert, NDP):  Mr. Speaker, the trans-Pacific partnership also raises concerns for cultural industries. The TPP explicitly prevents the government from developing policies to support Canadian content on digital platforms. On one hand, we have a Minister of Canadian Heritage holding consultations on digital media, and on the other hand we have her government signing a treaty that will limit its own capacity to intervene online. Despite all her fine words, the minister’s hands will be tied. However, she promised to protect our cultural diversity in these trade agreements. How will the minister defend such an absurdity to our cultural industries?

Hon. Mélanie Joly (Minister of Canadian Heritage, Lib.):  Mr. Speaker, Canadian content and support for creators of content are a priority for our government. For years, our approach during trade talks has always been to maintain our capacity and to support cultural and creative industries. That remains unchanged today, especially during our talks on the TPP. We also want to seize the opportunities offered through our various trade talks. That is why our government is determined to listen to Canadians on the issue and that is why the Minister of International Trade is –

Minister Joly may have run out of time to respond, but the issue remains a major problem for a government that has focused on the need to update Canadian cultural policy in the digital age. Such a policy initiative will be difficult when the TPP creates limitations on the scope of potential policies, including clear restrictions on the extension of Canadian content contribution requirements.

The post The TPP’s Impact on Canadian Culture Emerging as Political Issue appeared first on Michael Geist.

Industry Canada to Foreign Affairs After CETA Leaks: Can We Get a Copy of the Text?

Michael Geist Law RSS Feed - Tue, 2016/06/07 - 10:34

As the Canada – EU Trade Agreement faces mounting opposition in Europe, it is worth looking back at the late stages of CETA negotiations that occurred after an October 2013 announcement that a deal had been reached. That announcement did not include a release of the text, which was still the subject of months of negotiations. In fact, long after the initial announcement, there were reports that European concerns with investor-state dispute settlement provisions were about to derail the entire agreement. By July 2014, it was obvious that CETA was in jeopardy. In August 2014, there were more assurances from the Canadian government about an agreement, but still no text. That same month, the agreement finally did become public, but only after a German public television leaked it online.

Documents obtained under the Access to Information Act show that Canadian government officials scrambled to respond. While the official line will be familiar – “Canada does not comment on the leaks of purported negotiating texts” – internally, officials were left scrambling as the agreement leaked in real time. In fact, after learning that additional appendices and materials had leaked online, Canadian official joked that “they’re scanning as fast as they can.”

The government officials may have sought to downplay the leaks, but more interesting is the response from Industry Canada:

“Given that the CETA text has already been leaked, could we get a copy of the consolidated text with attachments (annexes, side letters etc.)?”

In other words, even Canadian departments responsible for specific issues within CETA were kept in the dark about the overall text. This approach confirms consistent criticisms of Canadian negotiations during CETA and TPP.  Namely that there is little overall strategy and that departments are often unaware of the actual text of the agreement. When your own government officials are reliant on leaks for information about the deal, perhaps it is time to acknowledge that a change in approach is needed.

The post Industry Canada to Foreign Affairs After CETA Leaks: Can We Get a Copy of the Text? appeared first on Michael Geist.

Why an Australian Study Could Provide Canada with an Innovation Roadmap

Michael Geist Law RSS Feed - Mon, 2016/06/06 - 11:22

From the moment that the Liberal government renamed Industry Canada as Innovation, Science, and Economic Development it sent a clear signal that innovation is a top policy priority. Indeed, in recent months Minister Navdeep Bains has repeatedly called for bold policies focused on addressing Canada’s dismal innovation record.

My weekly technology law column (Toronto Star version, homepage version) notes that while the specifics of the Canadian innovation policy have yet to be revealed, a recent Australian government backed study provides a potential roadmap. The Australian Productivity Commission, which functions as an independent “think tank” for the government, released a 600 page draft report in April that proposes a myriad of changes to its intellectual property system.

The government asked the Commission to report back on whether the current legal frameworks “ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.” The result is a comprehensive report based on hundreds of submissions and consultations representing a broad range of views.

Canada and Australia may be geographically distant, but the similarities between the two countries on innovation and intellectual property are unmistakable. Both countries are net importers of intellectual property, meaning that current policies may benefit foreign companies and rights holders far more than domestic enterprises. With that in mind, the draft report recommends significant reforms to encourage innovation and strike a better balance.

For example, Australia faces the same problem as Canada with respect to patents and pharmaceutical drug innovation. The report notes that patent reforms designed provide longer protections and encourage more innovation within the country have actually failed to increase investment in research and development. Canada has experienced much the same problem with steadily declining research and development investment ratios despite promises from the industry that legal reforms would do the opposite.

In light of these results, the report recommends moving away from increased patent protections (as envisioned by trade agreements such as the Trans Pacific Partnership) and focusing instead on greater data sharing. The changes to pharmaceutical patents are just part of a wider series of proposed reforms that designed to limit patents that may inhibit new innovations.

The report’s copyright recommendations similarly find fault with overly restrictive rules that limit new innovation. It concludes that the term of copyright is too long, particularly since the commercial viability of most work largely ends years before copyright protection expires. It calls for a reduction in the term of copyright (the TPP would require an extension) and the adoption of a “fair use” provision, similar to that found in the U.S.

Many technology and Internet companies rely on the flexibility of fair use to create new businesses and the report expresses concern that Australian businesses are placed at a disadvantage with their fair dealing system. Canada’s fair dealing approach is more flexible than the current Australian law, but remains more restrictive than the fair use model found in the U.S. and recommended in the report.

Australian and Canadian consumers also encounter similar frustrations with many Internet-based services that offer less content at higher prices. The Australian report recommends addressing the issue by enacting legislation clarifying that it is not a violation of the law for consumers to bypass geo-blocking technologies. It believes that the change would create more competition and significantly reduce consumer costs.

As Canada crafts its innovation strategy, the Australian report points to the benefits of evidence-based policies that move beyond conventional rhetoric. When combined with
bold thinking – the Commission does not feel constrained by established practices – the draft report highlights how Canada and Australia share a discouraging record of adopting restrictive laws that may ultimately hamper domestic innovation and provides some innovative solutions to address the problems.

The post Why an Australian Study Could Provide Canada with an Innovation Roadmap appeared first on Michael Geist.

Looking Down Under for a Roadmap to Innovation

Michael Geist Law RSS Feed - Mon, 2016/06/06 - 11:16

Appeared in the Toronto Star on June 6, 2016 as Looking Down Under for a Roadmap to Innovation

From the moment that the Liberal government renamed Industry Canada as Innovation, Science, and Economic Development it sent a clear signal that innovation is a top policy priority. Indeed, in recent months Minister Navdeep Bains has repeatedly called for bold policies focused on addressing Canada’s dismal innovation record.

While the specifics of the Canadian innovation policy have yet to be revealed, a recent Australian government backed study provides a potential roadmap. The Australian Productivity Commission, which functions as an independent “think tank” for the government, released a 600 page draft report in April that proposes a myriad of changes to its intellectual property system.

The government asked the Commission to report back on whether the current legal frameworks “ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.” The result is a comprehensive report based on hundreds of submissions and consultations representing a broad range of views.

Canada and Australia may be geographically distant, but the similarities between the two countries on innovation and intellectual property are unmistakable. Both countries are net importers of intellectual property, meaning that current policies may benefit foreign companies and rights holders far more than domestic enterprises. With that in mind, the draft report recommends significant reforms to encourage innovation and strike a better balance.

For example, Australia faces the same problem as Canada with respect to patents and pharmaceutical drug innovation. The report notes that patent reforms designed provide longer protections and encourage more innovation within the country have actually failed to increase investment in research and development. Canada has experienced much the same problem with steadily declining research and development investment ratios despite promises from the industry that legal reforms would do the opposite.

In light of these results, the report recommends moving away from increased patent protections (as envisioned by trade agreements such as the Trans Pacific Partnership) and focusing instead on greater data sharing. The changes to pharmaceutical patents are just part of a wider series of proposed reforms that designed to limit patents that may inhibit new innovations.

The report’s copyright recommendations similarly find fault with overly restrictive rules that limit new innovation. It concludes that the term of copyright is too long, particularly since the commercial viability of most work largely ends years before copyright protection expires. It calls for a reduction in the term of copyright (the TPP would require an extension) and the adoption of a “fair use” provision, similar to that found in the U.S.

Many technology and Internet companies rely on the flexibility of fair use to create new businesses and the report expresses concern that Australian businesses are placed at a disadvantage with their fair dealing system. Canada’s fair dealing approach is more flexible than the current Australian law, but remains more restrictive than the fair use model found in the U.S. and recommended in the report.

Australian and Canadian consumers also encounter similar frustrations with many Internet-based services that offer less content at higher prices. The Australian report recommends addressing the issue by enacting legislation clarifying that it is not a violation of the law for consumers to bypass geo-blocking technologies. It believes that the change would create more competition and significantly reduce consumer costs.

As Canada crafts its innovation strategy, the Australian report points to the benefits of evidence-based policies that move beyond conventional rhetoric. When combined with
bold thinking – the Commission does not feel constrained by established practices – the draft report highlights how Canada and Australia share a discouraging record of adopting restrictive laws that may ultimately hamper domestic innovation and provides some innovative solutions to address the problems.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Looking Down Under for a Roadmap to Innovation appeared first on Michael Geist.

WIPO indigenous peoples' representation still lacking

Sara Bannerman - Fri, 2016/06/03 - 14:11
Nelson Kantule, from the Kuna Peoples in Panama (Kunas unidos por la madre tierra), and Preston Hardison, policy analyst for the Tulalip Tribes in the United States, were interviewed recently by IP-Watch about the current ongoing negotiations about intellectual property and traditional knowledge at the World Intellectual Property Organization (WIPO).

WIPO traditional knowledge negotiations have long failed to include sufficient representation by indigenous peoples, and have been ongoing for many years with few, if any, results.  Chapter 9, "The role and inclusion of indigenous peoples in international copyright", of my book International Copyright and Access to Knowledge,  recounts this history of failure and places it in the context of indigenous peoples' representation in the United Nations more broadly.  
I note that in 2007,  the Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly.  Article 18 of that declaration provides that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

WIPO’s efforts to implement Article 18 have been deemed inadequate by some indigenous peoples, and WIPO has been called on by the United Nations Permanent Forum on Indigenous Issues to improve its implementation of the declaration.
Indigenous peoples' representation at WIPO has been so bad that in February 2012 most indigenous observer delegates to the IGC stood and walked out of IGC negotiations in protest of “the continuing reduction in the quantity and level of their participation.”

In May 2012, the United Nations Permanent Forum on Indigenous Issues chastised WIPO, issuing a number of recommendations to WIPO aimed at addressing some of the problems that had been identified.  It called on states “to organize regional and national consultations to enable indigenous peoples to prepare for and participate effectively in sessions of the Intergovernmental Committee” (p. 9-10).

As of my last check, the Forum's recommendations had not yet been addressed by WIPO, and Kantule and Hardison's account seems to confirm that WIPO's response has been inadequate.


Canada Post Drops Lawsuit Over Crowdsourced Postal Codes

Michael Geist Law RSS Feed - Fri, 2016/06/03 - 08:35

Geocoder, the Ottawa-based company that managed to develop a database of postal codes using crowdsourcing techniques, has settled a controversial lawsuit brought by Canada Post. Canada Post sued in 2012 claiming intellectual property rights in postal codes. Geocoder did not copy the postal codes, however.  Instead, it used crowdsourcing to develop a database containing over one million Canadian postal codes after asking people to submit their postal codes with their address. The database is freely available under a Creative Commons licence and is enormously valuable for organizations that need access to the data but are unable to pay the steep fees levied by Canada Post. While many open data advocates have long argued that this information should be available under government open data initiatives, Canada Post has steadfastly refused.

The Canada Post lawsuit has been simmering for several years, but late last month the parties reached a settlement. Canada Post has agreed to discontinue the lawsuit and Geocoder will continue to make its database available to the public. The settlement statement acknowledges:

The postal codes returned by various geocoder interface APIs and downloadable on geocoder.ca, are estimated via a crowdsourcing process. They are not licensed by geocoder.ca from Canada Post, the entity responsible for assigning postal codes to street addresses.

The settlement represents a big win for open data in Canada, as the lawsuit raised serious concerns about over-broad copyright claims given suggestions that Canada Post owned the copyright in all postal codes. As Geocoder notes, CIPPIC and Ridout & Maybee provided support in contesting the lawsuit.

The post Canada Post Drops Lawsuit Over Crowdsourced Postal Codes appeared first on Michael Geist.

Canadian Government’s Internal TPP Analysis: IP Rules Much Broader Than Any Canadian FTA

Michael Geist Law RSS Feed - Thu, 2016/06/02 - 08:35

Supporters of the TPP have been at pains to argue that the agreement is largely business as usual, reflecting standards and approaches that are already commonly found in existing Canadian law and agreements. Yet according to a document obtained under the Access to Information Act, that is not how government officials describe the TPP in their own analysis. Internal analysis drafted in late August 2015 shows officials described the IP chapter as covering “a much broader scope of issues than any recent Canadian FTA” and noting that the TPP goes beyond agreements such as TRIPS and NAFTA.

Indeed, here is how the IP chapter was described by Canadian officials weeks before an agreement was formally concluded:

The TPP IP chapter is more detailed and covers a much broader scope of issues than any recent Canadian FTA, including the CETA. While much of its scope overlaps with the WTO TRIPS and the NAFTA, TPP goes beyond these agreements in a number of respects. The TPP IP chapter touches in many additional areas including:

  • the term of copyright protection
  • explicit protection and offences for circumventing technological protection measures and rights management information
  • patent term adjustment
  • data protection for clinical trial data generated for the marketing approval of pharmaceutical drugs
  • explicit protection for clinical data for new biologic drugs
  • patent linkage
  • patent term restoration for delays in marketing approval of drugs protected by patents
  • extensive rules regarding TPP members ability to provide protection for future geographical indications
  • agreement to cooperate in the area of genetic resources and traditional knowledge
  • protection for industrial design elements
  • trademark protection for non-traditional marks, such as scent and sound trademarks
  • extensive enforcement measures in the areas of civil, criminal, and border enforcement, including the availability of statutory damages for copyright infringement, criminal offences related to commercial scale trademark counterfeiting and copyright piracy
  • ex officio authority for border officers to detain suspected infringing goods and measures to enable cooperation with rights holders as well as protection and remedial measures for trade secrets
  • government use of software
  • unauthorized decryption of encrypted satellite and cable signals
  • a suite of provisions relating to Internet Service Provider liability.

While supporters of the TPP have recently sought to downplay the impact of the agreement, it turns out that the government itself has acknowledged internally that the TPP goes much further than existing international agreements and any other Canadian free trade agreement.

The post Canadian Government’s Internal TPP Analysis: IP Rules Much Broader Than Any Canadian FTA appeared first on Michael Geist.

Why Telecom Transparency Reporting in Canada Still Falls Short

Michael Geist Law RSS Feed - Mon, 2016/05/30 - 12:15

Canadian telecom company privacy practices were back in the spotlight this month with the release of a transparency report from Rogers Communications. The report provides new insights into how much – or how little – Canadians know about when their personal information is disclosed to government agencies.

For Rogers customers, the good news is that recent changes in the law, including court decisions that set limits on the disclosure of mass data from cellphone towers and that protect Internet subscriber information – are having a significant effect. Law enforcement agencies are still able to obtain data on hundreds of thousands of people, but warrantless access to basic subscriber information has stopped.

My weekly technology law column (Toronto Star version, homepage version) notes that the latest Rogers report is the first from the company since the release in 2015 of telecom transparency guidelines that garnered support from the federal privacy commissioner, Industry Canada, and the telecom sector. The guidelines attempt to provide a common framework for disclosure so that the public will be better able to compare privacy protections and policies among Canada’s major telecom companies.

The Rogers report (along with a similar report recently released by Telus) demonstrates a much-needed willingness to defend customer privacy in cases where the companies believe law enforcement has overreached.

Despite some emerging privacy friendly practices, however, there is still room for improvement. According to documents obtained under the Access to Information Act, during the development of the guidelines, many companies resisted recommendations from the privacy commissioner to include specific detail on warrants for subscriber information.

For example, Rogers noted that certain details would require significant system changes and it therefore urged that those details be made optional. Similarly, SaskTel argued that “customers are interested in the broader question of disclosure rather than minute detail.” Multinational companies such as Google and Microsoft emphasized the need for Canadian guidelines to be consistent with global standards given that those companies release data for dozens of countries.

While current reports would benefit from more fulsome disclosure, astonishingly, some companies have yet to release any transparency reports. The list of transparency holdouts include Bell, Canada’s largest telecom company.

The problem lies with the non-binding approach to transparency disclosures. After an industry-wide meeting organized by the privacy commissioner held in April 2015, Rogers noted that “it was indicated at this meeting that any guidelines adopted would fall short of regulation, but would regarded as more substantive than voluntary guidelines.” Yet if the non-regulatory approach does not work, it falls to the federal privacy commissioner to take action.

Canadian privacy law requires all organizations to be accountable for the personal information they collect, use, and disclose. Given the standardization of transparency reporting, there is a strong argument that non-disclosure represents a failure to meet the accountability requirements found in the law.

Even with the potential for enforcement action against transparency holdouts, another major shortcoming will remain: the government and law enforcement agencies themselves. The documents indicate that the privacy commissioner recognized the need for those agencies to participate in the transparency process so that Canadians could also learn about requests for their information from those doing the requesting.

However, the government agencies rejected the request. Public Safety Canada, speaking on behalf of other departments, indicated that transparency was important but that it was not prepared to join the discussion at that time. Interestingly, Rogers appeared prepared to accept a mandatory reporting requirement, but only if a similar obligation was placed on requesting bodies, such as law enforcement.

That position opens the door to fixing the current weakness in the transparency reporting system. Telecom reporting consistent with the guidelines should be made mandatory and given the Liberal government’s commitment to openness and transparency, it should be ready to add disclosure of government requests for personal information to the list of transparency reforms.

The post Why Telecom Transparency Reporting in Canada Still Falls Short appeared first on Michael Geist.

Telecom Transparency Reporting Guidelines Need Clarity

Michael Geist Law RSS Feed - Mon, 2016/05/30 - 12:13

Appeared in the Toronto Star on May 30, 2016 as Telecom Transparency Reporting Guidelines Need Clarity

Canadian telecom company privacy practices were back in the spotlight this month with the release of a transparency report from Rogers Communications. The report provides new insights into how much – or how little – Canadians know about when their personal information is disclosed to government agencies.

For Rogers customers, the good news is that recent changes in the law, including court decisions that set limits on the disclosure of mass data from cellphone towers and that protect Internet subscriber information – are having a significant effect. Law enforcement agencies are still able to obtain data on hundreds of thousands of people, but warrantless access to basic subscriber information has stopped.

The latest Rogers report is the first from the company since the release in 2015 of telecom transparency guidelines that garnered support from the federal privacy commissioner, Industry Canada, and the telecom sector. The guidelines attempt to provide a common framework for disclosure so that the public will be better able to compare privacy protections and policies among Canada’s major telecom companies.

The Rogers report (along with a similar report recently released by Telus) demonstrates a much-needed willingness to defend customer privacy in cases where the companies believe law enforcement has overreached.

Despite some emerging privacy friendly practices, however, there is still room for improvement. According to documents obtained under the Access to Information Act, during the development of the guidelines, many companies resisted recommendations from the privacy commissioner to include specific detail on warrants for subscriber information.

For example, Rogers noted that certain details would require significant system changes and it therefore urged that those details be made optional. Similarly, SaskTel argued that “customers are interested in the broader question of disclosure rather than minute detail.” Multinational companies such as Google and Microsoft emphasized the need for Canadian guidelines to be consistent with global standards given that those companies release data for dozens of countries.

While current reports would benefit from more fulsome disclosure, astonishingly, some companies have yet to release any transparency reports. The list of transparency holdouts include Bell, Canada’s largest telecom company.

The problem lies with the non-binding approach to transparency disclosures. After an industry-wide meeting organized by the privacy commissioner held in April 2015, Rogers noted that “it was indicated at this meeting that any guidelines adopted would fall short of regulation, but would regarded as more substantive than voluntary guidelines.” Yet if the non-regulatory approach does not work, it falls to the federal privacy commissioner to take action.

Canadian privacy law requires all organizations to be accountable for the personal information they collect, use, and disclose. Given the standardization of transparency reporting, there is a strong argument that non-disclosure represents a failure to meet the accountability requirements found in the law.

Even with the potential for enforcement action against transparency holdouts, another major shortcoming will remain: the government and law enforcement agencies themselves. The documents indicate that the privacy commissioner recognized the need for those agencies to participate in the transparency process so that Canadians could also learn about requests for their information from those doing the requesting.

However, the government agencies rejected the request. Public Safety Canada, speaking on behalf of other departments, indicated that transparency was important but that it was not prepared to join the discussion at that time. Interestingly, Rogers appeared prepared to accept a mandatory reporting requirement, but only if a similar obligation was placed on requesting bodies, such as law enforcement.

That position opens the door to fixing the current weakness in the transparency reporting system. Telecom reporting consistent with the guidelines should be made mandatory and given the Liberal government’s commitment to openness and transparency, it should be ready to add disclosure of government requests for personal information to the list of transparency reforms.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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