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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.

The post Sunlight on the Submissions: Why the Broadcasting and Telecommunications Legislative Review Panel Should Reverse Its Secretive Approach appeared first on Michael Geist.

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:

The post Why So Secret?: Government’s Communications Law Panel Plans to Keep Public Submissions Under Wraps for Months appeared first on Michael Geist.

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.

The post Celebrating High Wireless Prices: Telus-Backed Report Claims Comparing Consumer Costs for Wireless Services is “Meaningless” appeared first on Michael Geist.

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.

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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!

The post Looking Back at 2018: My Top Ten Posts appeared first on Michael Geist.

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.

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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.

excerpts

Fair Duty by Meera Nair - Wed, 2018/12/19 - 20:06

Last week marked the end of submissions to the committees of Industry and Heritage. It now falls to analysts to sift through data and testimony, and assist Members of Parliament as they consider the next steps for Canada and copyright.

The most disturbing aspect of this review to-date, has been observing the predominantly uncritical response to two fabrications: (1) that Canadian Literature is in peril; and (2) that a collective license via Access Copyright is the seeming solution to the seeming problem.

(Note: In a recent column, Kate Taylor conveys this happy news: “Canada’s literary culture is healthy: Writers keep writing and Canadian-owned publishers are publishing as many titles as ever, while independent bookstores are also stable.”)

Left under-articulated is the very real risk that Canada will remain on the sidelines in a world governed by knowledge economies. This is not merely about the unfairness of holding students captive to a market that is no longer relevant, it is about the regressive attitudes to creative activity that students are subjected to.

And so, I hastened to submit one more brief, this time to the Standing Committee on Canadian Heritage, before the deadline. What follows are some excerpts.

I commend this department’s interest in supporting Canadian artists across the spectrum of creative endeavor. However, I ask that you expand your scope of inquiry to include not only the artists we have today, but those to come tomorrow. Given the tenor of dialogue so far, students are particularly vulnerable to assume costs that are irrelevant to their studies, and irreconcilable to their means. Moreover, our youth are not being afforded the fullest opportunity to further their creative instincts through measures already available under the law. Copyright chill and abuse are real.

I reminded the Committee of our past history with the system of copyright, that it was designed to the advantage of other nations. The stunning success of Canadian Literature, with both writers and publishers deserving praise, is due to efforts outside the arena of copyright. Nick Mount, Canada’s leading authority on the subject, has been unequivocal on this point. (See also his submission to the copyright review.)

I then sought to clarify the misconception that the decline in educational collective licensing was principally due to the 2012 amendments; that in fact,

The catalyst for the exodus from collective licensing occurred two years prior. In 2010, Access Copyright sought a 1300% fee increase. Granted, the earlier fee was out of date; an increase commensurate with inflation would not have attracted much attention. But given the extent of the increase, coupled with not only heightened requirements of reporting (which raised concerns of privacy) but also an effort to redefine the very nature of copyright (something only Parliament may do), many institutions began to give serious consideration to the viability of managing their operations internally.

Drawing from a talk I gave in 2011 (based on academic literature and the publicly released Friedland report), I emphasized that Access Copyright’s operation had been challenged from the very start. It sought to serve two masters (writers and publishers); but as publishers held most of the cards,

Access Copyright bolstered payments [to writers], regardless of whether works were used in educational institutions. Unfortunately, that set the stage for an unsustainable operation. Despite some evolution, it continues today. The payments provided by Access Copyright to its creator affiliates through its Payback system, rely on creation of work, rather than the use thereof. As Access Copyright’s creator affiliates grow in number, one should expect that fees will escalate just to keep pace with distribution payments.

Yet, today, many parties have called for compulsory collective licensing of educational copying.

This is particularly disturbing given the volume of evidence that detail the rise in direct licensing between educational institutions and third-party publishers, licenses that include both journals and books, and allow for both access and reproduction. Furthermore, Canadian institutions are increasing their selection of open educational resources as primary textbooks. Taken together, we see not only the present, but a future where Access Copyright’s services are relied on less and less, but would cost more and more.

Let there be no mistake: compulsory collective licensing would place an unnecessary and unfair burden on students. When too many students are financing their education through debt, it is more than cavalier to dismiss the cost as merely that of a case of beer. Governments and educational institutions have an ethical obligation not to impose waste on students’ meagre resources.

Further to students’ disadvantage are ongoing misunderstandings about legitimate, unauthorized use of protected material. Some of the instances of copyright chill and abuse that have been brought to my attention:

  1. A parent informed me that her twelve-year-old had come home “scared to death,” all because of a strident lecture at school. A teacher had forbidden the students from engaging with content found via the Internet, a prohibition expounded in the name of copyright. 
  2. A parent informed me that her daughter’s creative efforts, posted to YouTube, had been removed. This budding filmmaker said to her mother: “I didn’t know it was wrong.” To be clear, she did nothing wrong. YouTube’s overzealous content-identification system had resulted in the take-down of her lawful creation.
  3. A group of worried students showed me a notice from a copyright-owner, threatening them with serious consequences if they had the temerity to quote from his father’s work, without first seeking his permission and making payment.
  4. A parent sent me a Use of Technology agreement required at the local high-school. Parents were asked to give consent such that the school may search a student’s smartphone if the school “feels” that a rule has been broken. Among the rules listed: “honour copyright.” This may be due to the misplaced fear that schools could be liable for the activity of students; it speaks to the reality that administrations prefer to play it safe and discourage young people from lawful uses of copyright-protected materials.

Such misinformation spread among our nascent creators is not what will place Canada in positions of strength in decades to come:

If we train generations of Canadians into believing that creative effort, scientific inquiry, technological advancement, or a free press, are all predicated on a system of permission-then-payment, Canada’s creative future looks bleak.

This will be all the more painful when we consider that current technology and current modes of engagement offer promise to young creators today. They now enjoy what eluded Canadian creators in the nineteenth century: the capacity to promote themselves at minimal cost. Upcoming creators have the opportunity to find their own audience;[1] a lack of publisher no longer limits awareness of Canadian talent.

Given that our Prime Minister has particular interest in fostering the next generations, it would be entirely appropriate for the Department of Canadian Heritage to give particular attention to how youth, students, and amateur creators, fare under the system of copyright, as it exists now and how it may change next year.

As Minister of Youth, it’s my job to make sure young people’s voices are counted when we make plans that shape this country’s future. Good meeting with CASA to hear directly from students on what matters to them – and how we can help better equip them for the jobs of the future. pic.twitter.com/ECV0ckYo3S

— Justin Trudeau (@JustinTrudeau) December 11, 2018

I closed with six recommendations. As the Heritage website has not yet been updated, my complete brief is here.

As I write this, my daughter is finishing her third year of engineering studies. The outcome of the copyright review is not likely to have any direct bearing on her remaining time as an undergraduate student, but there are many more like her to come.

 

[1] Canada’s Instagram poet Rupi Kaur comes to mind; her own self-promotion led to a publisher and then 77 weeks on the New York Times’ best-seller list; see Tariro Mzezewa, New York Times. Similarly, 2011 Canada Reads’ winner Terry Fallis began his successful journey via his own podcasts; see Shannon Rupp, The Tyee. Martin Kerr is a much-loved singer/songwriter/musician based in Edmonton; through his own talent and hard work, he has been independently producing music for ten years. Kerr began by singing in markets and festivals; today he sells out the Winspear Centre. One generation earlier that would have been an impossibility. With dreams of making it big, too many musicians were conscripted by record companies and emerged with only debt to show for it.

Stepping In It: Why Navdeep Bains’ Failing Wireless Strategy is Not a Step in the Right Direction

Michael Geist Law RSS Feed - Tue, 2018/12/18 - 10:32

The CRTC’s low-cost data-only plan decision released yesterday was as unsurprising as it was uninspired. Under CRTC Chair Ian Scott, the Commission has abandoned any pretense of consumer focus, reverting to the days when Canadians perceived the regulator as a guardian of industry interests. The low-cost data-only decision, which is ostensibly designed to address a serious gap in affordable wireless services, will do little to solve the problem. Indeed, even the CRTC admitted that “none of the revised plans on their own would necessarily be enough to fill the gap identified by the Commission with respect to lower-cost data-only plans.” Those revised plans, which CRTC largely supported, would be laughably uncompetitive in most developed countries (as one expert noted yesterday, $30 for 1 GB is not a low cost data plan).

None of this should come as a surprise. As I noted last week, the Scott CRTC has effectively excluded consumer groups from the Internet code proceeding, threatened the viability of those groups with lengthy delays in cost awards, rejected an inquiry into misleading sales tactics, weakened ambitious broadband targets, and supported an Internet tax. My prediction that “with a decision due on low-cost data plans before the end of the year, it would not surprise if the CRTC adopted the latest proposals from the wireless companies that many consumer groups deemed inadequate” did not require much imagination.

Yet the blame is not Scott’s alone. Navdeep Bains, the Innovation, Science and Economic Development Minister, is ultimately responsible for the wireless file. The previous Conservative government may not have solved the wireless competition problem, but no one doubted that it prioritized affordability and was unafraid to challenge the major telecom companies along the way. Bains, on the other hand, responded with what has become the “thoughts and prayers” version of Canadian wireless, implausibly claiming that the decision was “a step in the right direction.” That has become the go-to response for Bains on wireless developments that do little to address the systemic problems with high Canadian wireless prices:

  • When Bell introduced Lucky Mobile, a “low cost” flanker brand, Bains said “it was a step in the right direction.”
  • When Shaw introduced lower cost mobile plans, Bains said “it was a step in the right direction”
  • When the CRTC rejected calls to mandate MVNOs and settled instead on pursuing low-cost data-only plans, Bains said “it was a step in the right direction.”
  • When the CRTC adopted low-cost data plans promoted by telecom giants that consumer groups say will do little to address wireless affordability, Bains said “it was a step in the right direction.”

With all these supposed steps in the right direction (even Scott was calling yesterday’s decision “a step in the right direction”), one would have thought that Canada would be closer to more affordable and competitive wireless services. However, the reality is that no one has carriers that generate more revenue with less usage than Canada, with consumer pricing that offers the least bang for the buck in the developed world.

Further, the suggestion that the CRTC will conduct a comprehensive wireless review by 2020 provides little reason for optimism. Given its anti-consumer approach, the Scott CRTC seems far more likely to accept the litany of “usual suspects” telecom arguments: investments in new 5G networks requires avoiding regulatory measures to facilitate competition, Canada has some of the best networks in the world, and net neutrality rules should not apply to 5G. Moreover, with consumer groups such as PIAC on the verge of collapse due to CRTC delays in cost awards, the steady marginalization of consumer voices at the Commission will in any event erode the presence of public interest perspectives at the review.

If the basic test for a government minister is to leave the situation better than they found it, Bains’ wireless strategy to date is a failure. Canadians still pay among the highest prices in the world and now face an industry-captured regulator that has demonstrated little regard for consumer concerns. Steps in the right direction are leading nowhere. Bains placed considerable hope in low-cost data-only plans as a response to concerns about wireless affordability but the disappointing outcome suggests that a more robust response is needed. Mandated MVNOs, a consumer-focused, universal access policy direction to the CRTC, aggressive use of order-in-council powers, measurable targets on wireless affordability and competitiveness, as well as a program to support public interest voices in the regulatory process are among the measures that are all long overdue.

The post Stepping In It: Why Navdeep Bains’ Failing Wireless Strategy is Not a Step in the Right Direction appeared first on Michael Geist.

a guest post from Carys Craig

Fair Duty by Meera Nair - Mon, 2018/12/17 - 22:09

In connection to the current review of Canada’s Copyright Act, I was recently invited to appear before the Standing Committee on Industry, Science and Technology. Dr. Meera Nair also testified at the televised meeting, and her insightful comments are available here. My remarks to the Committee—which focused on technological neutrality, balance, user rights and the public domain—are posted below, with thanks to Meera.

Thanks to the Committee. My name is Carys Craig. I’m a professor at Osgoode Hall Law School at York University, and I have been teaching and researching in the copyright field for almost 20 years. I’m a co-signatory of the Canadian IP Scholars Brief, about which you heard last week. The views I’ll express here are my own.

I’m going to begin by speaking to some guiding principles underlying Canada’s copyright system, which I hope might inform the Committee’s thinking about a variety of issues before it, and then I’ll highlight a few key proposals that I believe reflect these principles.

The Committee has heard from certain stakeholders that Canada’s copyright laws have fallen behind the pace of technological development, and that urgent reforms are needed in order to ‘catch up’. I would urge the Committee to be skeptical of such claims, and to resist pleas for technology-specific statutory amendments that will protect market incumbents while hampering the use and development of information technologies.

I have written about the principle of technological neutrality at length.[1] The best way to ‘future proof’ our law is not to regulate the technical minutiae in response to the pleas of industry lobbyists, but to seek to ensure the consistency of the legislation, in its purpose and effect, across time and technologies. This requires steady reliance on guiding principles, functional standards, and core concepts; not narrow, technical, and inaccessible rules that will require constant revisiting.

The task, then, is to keep the policy focus on copyright’s overarching purpose as technologies evolve, maintaining the balance between protection and the public domain that best supports the creation and dissemination of expressive works, and a vibrant cultural sphere.

Indeed, in the 2012 case of Entertainment Software v SOCAN, the Supreme Court of Canada agreed with my statement that technological neutrality requires that “the traditional balance between authors and users should be preserved in the digital environment.”[2]

As Justice Abella wrote in the earlier case of Robertson v Thompson, this means that, when confronting questions about copyright and the internet,  “the public benefits of this digital universe should be kept prominently in view.”[3]

If copyright law is a lever to encourage learning and creative exchange, the Internet and digital technologies have advanced this goal enormously. Unduly curtailing their use in the name of protecting authors typically flies in the face of copyright’s rationale.

This hints at the absurdity of much of today’s copyright rhetoric. Consider how strange it is — how facially false it should be — to portray, as the self-interested antagonists of Canadian authors, our public educational institutions, students and the scholarly and research community, librarians, archivists and academics (all the while casting a handful of commercial publishers, collectives, and content industry representatives as the natural allies of Canadian authors and the arts.)

This is the same tired narrative that powerful interests have employed to justify ever-stronger copyright protection for centuries. It’s time to see past it and imagine a better functioning system of incentives and rewards, offering more public benefits and imposing fewer social costs.

The reality is that copyright does a disservice to today’s creators not because of its limits and exceptions, but because of the restrictions that it places on creativity and sharing, the monopolistic interests that it helps to preserve, and its failure to actually attend to the real needs of the artists it is said to serve.

Today, more than ever before, the line between creators and users, between authors and the public, is more rhetorical than it is real. Today’s users are authors and authors are users, authors are students and educators, they are consumers and curators.

The task for lawmakers is not to ‘reprioritize authors’, as some have said, but to recognize the changing nature of authorship and the shifting realities of the information economy.

And so this big picture brings me to my more concrete proposals:

First, this should mean resisting calls to further strengthen owners’ rights and remedies. If the objective is to assist authors, copyright is a blunt tool indeed — and with stronger copyright there is, inevitably, collateral damage to the public domain, to free expression, public education and the functioning of the internet.

Secondly, this must mean recognizing and safeguarding copyright limits and exceptions, and respecting user rights, consistent with the internationally acclaimed jurisprudence of our Supreme Court and the constitutional right of free expression.

This takes a variety of forms.

It supports the move to an open, flexible and general fair use defence that is not limited to particular purposes but capable of evolving to embrace new uses that are consistent with the objectives of the Copyright Act (for example, by adding “such as” to the fair dealing provisions and codifying the Supreme Court’s fairness factors).[4]

It supports shielding fair uses from the chilling effects of potential moral rights liability by clarifying that fair dealing and other exceptions are also defences to moral rights claims.

It means ensuring that neither digital locks[5] nor boilerplate contracts[6] are permitted to override user rights by foreclosing otherwise lawful uses.

It also means protecting and preserving the public domain (in the same sense that one might protect a nature preserve from private appropriation).[7]

This must include finding ways to minimize the harmful impacts of any term extension (for example, by imposing additional formalities or costs on those who would claim protection beyond Berne’s ‘life plus fifty years’).

It also includes finding ways to support the creation of accessible intellectual or knowledge commons (for example, by providing a right of retention for authors to deposit publicly funded research in accessible online repositories,[8] and by opening up government works to the public domain.)

As a final thought, I would note that this government prides itself on its feminist agenda, and should consider what that means in the copyright context.[9] Good copyright policy is concerned not only with providing economic incentives but also with advancing equality; and equality requires access to affordable education, access to knowledge, and supports an ethics of sharing and collaboration.

Leadership in this field cannot mean simply reinforcing 20th century models of private profit and control; it must mean preparing the copyright system to embrace the potential of the 21st century while reflecting Canadian values.

With that, I thank you for your attention, and look forward to your questions.

 

[1] E.g., Carys J. Craig, “Technological Neutrality: Recalibrating Copyright in the Information Age” 17.2 Theoretical Inquiries in Law. 601 (2016); Carys J. Craig, “Technological Neutrality: (Pre)Serving the Purposes of Copyright Law” in Geist (ed), The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2014).

[2] Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 34, at para. 8.

[3] Robertson v. Thomson Corp. 2006 SCC 43 at para. 79.

[4] I wrote in support of adopting fair use in Canada in, e.g., Carys J. Craig, “The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform” in Geist (ed.), In the Public Interest: The Future of Canadian Copyright Law (2005).

[5] Footnote 64 of the USMCA’s Article  20.67(1) potentially gives Canada a small window of time to improve its anti-circumvention provisions in this way. We should take this opportunity to ensure that appropriate limits and exceptions are grandfathered from the Treaty’s highly restrictive TPM provisions. I argued against such anti-circumvention measures, and in favour of digital lock exceptions and user protections, in Carys J. Craig, Digital Locks and the Fate of Fair Dealing in Canada: In Pursuit of ‘Prescriptive Parallelism,  13 Journal of World Intellectual Property 503 (2010).)

[6] The UK’s Copyright, Designs and Patents Act, s.30A(2) offers an example that Canada should follow of the statutory protection of fair dealing against contractual override.

[7] I wrote about how to best conceptualize the public domain and its protection in, e.g., Carys J. Craig, “The Canadian Public Domain: What, Where, and to What End?” 7 Canadian Journal of Law and Technology 221 (2010).

[8]  Belgian copyright law offers one example of such a provision (though I would recommend shortening any permitted embargo period).

[9]  I wrote about this in my blog post for Education International: ‘Ready for Real Change? Copyright, Education and the Quest for Equality’ (25-04-18). See also Craig, Turcotte and Coombe, “What is Feminist About Open Access?: A Relational Approach to Copyright in the Academy”  1.1 Feminists@law 1 (2011).

No More Settlement Demands: New Rules for Canadian Copyright Notice-and-Notice System Receive Royal Assent

Michael Geist Law RSS Feed - Mon, 2018/12/17 - 10:10

Bill C-86, the Budget Implementation Act that includes extensive copyright reforms, passed the Senate and received royal assent last week. With little fanfare, the rules for Canada’s copyright notice-and-notice have now changed. The law no longer requires Internet providers to forward notifications that include the following:

(a) an offer to settle the claimed infringement;
(b) a request or demand, made in relation to the claimed infringement, for payment or for personal information;
(c) a reference, including by way of hyperlink, to such an offer, request or demand; and
(d) any other information that may be prescribed by regulation

In short, the law now excludes notices that contains an offer to settle, a payment demand or a link to a payment demand. Any notices that include that information do not need to be forwarded and ISPs will not face any penalties for failing to do so. The key remaining question is whether ISPs will crackdown on non-compliant notices. Since there is no penalty associated with sending non-compliant notices, subscribers are dependent upon ISPs carefully reviewing notices to ensure that they only forward those that fully comply with the law.

The government has been a strong supporter of the notice-and-notice system – it insisted that it remain in place as part of recent trade negotiations on the CPTPP and CUSMA – and has now taken long overdue steps to stop the abuse by establishing requirements that effectively ban the inclusion of settlement demands.

The post No More Settlement Demands: New Rules for Canadian Copyright Notice-and-Notice System Receive Royal Assent appeared first on Michael Geist.

my remarks to the Industry Committee

Fair Duty by Meera Nair - Sun, 2018/12/16 - 11:50

Last Wednesday I had the pleasure of appearing before the Standing Committee on Industry, Science and Technology, to speak on the subject of the copyright review.  Also participating were Carys Craig (Associate Professor of Law at Osgoode Hall Law School) and Patti-Anne Tarlton (Chief Operating Officer of Ticketmaster, Canada).

Due to internal delays, the meeting was quite late in starting. Unfortunately, Carys and I had flights to catch that evening and so were unable to fully participate in discussion with Members of Parliament.

My remarks drew from the brief I submitted some months ago. In my allotted time I endeavored to place emphasis on the importance of supporting our next generations as they hone their capacity for creative and innovative thought—a capacity that Canada needs. I also reminded the Committee that altering copyright law must be placed in the context of Canada’s particular copyright history–a history where our law was designed to support foreign corporations.

Good afternoon. My name is Meera Nair, I am the copyright officer for the Northern Alberta Institute of Technology, but I am here in my capacity as an individual. For nearly fifteen years, my research interest has been with systems of copyright, both contemporary and historical.

One of the challenges in dealing with copyright is that people tend to forget that it was designed to regulate industries. Because of an accident of vocabulary, it now includes individuals. People also forget the baggage we have carried for 150 years; that our system was largely designed by other countries, to serve their advantage. To the extent that we have successful writers, musicians, artists and publishers, those gains came despite the system, not because of it.[1]

So, what are we talking about? The system of copyright is composed of two parts; there are rights of control and there are rights of use. Why do we have it? For a very long time, we had no purpose. Copyright was simply one of 29 responsibilities handed to the Federal Government in 1867, with no explanation attached. But if we look at our multicultural roots—the influence of both civil law and common law—we see a shared goal: to protect the process of creativity.[2] While our Supreme Court has operationalized this as seeking a balance between creators and users,[3] it might be helpful to take one step back and simply think about this process; how do we enhance it? How do you assist individuals to maximize their creative potential? And from that, there is reasonable historical data to believe that larger social wellbeing will follow.

I am drawing from the work of B. Zorina Khan, an economist who explored American intellectual property policies at the time of their nation building years. The U.S. deviated from the IP norms of the day, and instead focused on educating its people and creating a framework which encouraged everyone to enter the arena of creativity.[4]

A part of that framework was the theft of other nations’ work—to be clear, I am not recommending that. But we could adopt the best aspect of current American policy: their structure of fair use. It would give leeway for new ideas to take form. It bears remembering that the United States has capitalized on this, with repeated development of billion-dollar industries.[5]

A speaker from an earlier meeting alluded to challenges faced by Americans with respect to fair use; he quoted Lawrence Lessig as saying: “Fair Use was simply the right to hire a lawyer.” Just to put that in context; Lessig wrote those words after losing a pivotal Supreme Court case in the United States. He had led a constitutional challenge, arguing that Congress had overstepped its bounds by lengthening copyright term. The loss was hard to take; while fair use is meaningful, it is no substitute for shorter copyright terms.

Adding to Lessig’s distress was likely the reality that the United States had made a bit of mess of fair use in later 20th century. They are correcting that misstep; but at the time, their courts began treating fair use as simply a response to market failure.

Fortunately, the Canadian judiciary has already ensured that Canada can avoid such a self-defeating approach.[6] Creativity is a cumulative affair; whether we are talking about books, music, software, medicines or a free press, creativity relies on exposure to and use of prior work. Some uses must remain above the cycle of permission and payment, if creativity is to be sustainable.

In 2012 we came up short on fair use.[7] But one pleasant addition stood out: Section 29.21 (known as the YouTube/MashUp exception). I would have called it the Creativity exception. It gives future Canadian creators some reassurance that their government does not wish them to be prosecuted for doing what Canada needs them to do–which is to hone their creative skills.

We need our next generations to be at their best to address the intractable problems that are being left for them to solve. Drawing from the combined wisdom of Julie Cohen and the late Oliver Sachs, it is important for individuals to play with whatever content they are interested in, to cultivate a capacity to see something that others cannot, to build the curiosity and determination that we hope will carry them into ground-breaking intellectual effort across all disciplines.[8] Much is being made of our innovation agenda—we will not get innovation just for the asking, we need to nurture it.

Regardless of whether we have strictly enumerated exceptions, or a more flexible condition of fair use, we cannot gain the fullest potential on either unless we adjust the current language of digital locks.

This Committee has been asked repeatedly to do more to support Canadian writers and Canadian publishers; this is a worthy goal. But I hope proposed solutions will not include billing students for materials already paid for, or worse, billing students for works that are not prescribed at all.

Moreover, if we want to target Canadian operations, copyright is not an effective means. More money will leave the country than will stay in. As I wrote in my brief: “Copyright is a blunt instrument; it cannot distinguish between literary superstars and novice writers, between fostering a homegrown operation and serving an international conglomerate, or, between writing for an audience and writing for financial gain.”

As I mentioned at the start, our Act draws from both our common-law and civil-law ancestry. The Copyright Act has long been recognized as being bi-jural; we cannot help but see two of our Founding Nations in it. However, the third is present. Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today.[9]

Acknowledging this will not solve the difficulties encountered by Indigenous communities with respect to protecting their intellectual property. But given the objectives of the Truth and Reconciliation Commission, we ought to recognize that the Copyright Act is tri-jural.

I would like to close by acknowledging that we have gathered on the lands of the Algonquin people.

I look forward to your questions. Thank you.

 

[1] Meera Nair, “History begins with geology (a response to Margaret Atwood),” Fair Duty, 20 September 2016.

[2] “Where social utility meets with natural rights is in the belief that creativity itself is valued. Otherwise, the underlying purpose of copyright in either tradition becomes meaningless, raising the question of why have such laws at all? Therefore, natural rights must apply to everyone, including past, present, and future creators. Likewise, consideration of societal benefit must ensure that future creative processes are not stifled by the system purporting to encourage creative effort;” Meera Nair, “Copyright and Ethics—an Innisian Exploration,” (2009) Global Media Journal (Can. Ed.) Vol. 2, Iss. 1, (23-39) 30, .

[3] “…a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator …;” Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 at para 30.

[4] Those policies fostered American ascendency from, “an undistinguished developing country with an agricultural economy to world leader in less than one century;” B. Zorina Khan. The Democratization of Invention: Patents and Copyright in American Economic Development, 1790-1920. (Cambridge: Cambridge University Press, 2005) 5.

[5] Meera Nair, “Outdated copyright law hinders innovation and growth,” Edmonton Journal, 12 September 2018. Details here.

[6] Fortunately, Canada has already taken steps to avoid falling down this rabbit hole; “The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests;” CCH Canadian v. Law Society of Upper Canada, 2004 SCC 13 [CCH] at para 70.

[7] Numerous organizations sought to discredit fair use; “… to each objection raised, a nuanced explanation or rebuttal exists;” see Meera Nair, “Fair Dealing at a Crossroads,” From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda, ed. Michael Geist (Toronto: Irwin Law, 2010): 90-120 (103).

[8] “Both copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole (348).” See Julie Cohen,“The Place of the User in Copyright Law,” Fordham Law Review, Vol. 74, (347-374) 348, 2005. “Imitation and mastery of form or skills must come before major creativity;” see Oliver Sacks, “The Creative Self” in The River of Consciousness (2017) 137.

[9] Meera Nair, “Indigenous paradigms,” Fair Duty, 25 June 2018.

Telecom Train Wreck: Why It Is Time for the Government to Address the Mess That Is The CRTC

Michael Geist Law RSS Feed - Thu, 2018/12/13 - 08:40

The continuing consumer group boycott of the CRTC’s Internet code proceeding was raised directly with Prime Minister Justin Trudeau during Question Period in the House of Commons yesterday. NDP MP Brian Masse noted “the CRTC says it wants to establish a consumer Internet code of conduct, but has failed to provide sufficient time for consumer groups and the public. The result is a boycotted and broken system.” Trudeau’s responded that the government was proud of working with the CRTC and included a parting shot at the NDP, commenting on its support of a taxes on Internet usage. Regardless of the NDP position on an Internet tax (Masse says he opposes one), what is notable is that it is the CRTC that has emerged as a vocal supporter of an ISP tax. CRTC Chair Ian Scott’s decision to back an ISP tax as part of a larger scheme to regulate Internet-based services not only runs counter to Trudeau’s opposition to an Internet tax but it also points to a regulator that is increasingly anti-consumer in approach.

The consumer group boycott of an Internet code ostensibly designed for consumers is a case in point. Soon after the launch of the proceeding, the Public Interest Advocacy Centre wrote to the CRTC to request that the Commission delay it until after completion of a review on deceptive telecom sales practices (which itself only occurred after the CRTC rejected a call for an investigation and the government stepped in to order an inquiry). In practice, that would mean moving the comment period to April 2019. The PIAC request was supported by several groups, including the Forum for Research and Policy in Communications, Union des consommateurs, CNOC, and the Consumers’ Association of Canada – Manitoba Branch. The CRTC denied the request, concluding that 40 days (which includes weekends) was sufficient time to provide comments regardless of other activities.

The CRTC denial has sparked a groundswell of opposition from consumer groups with many announcing that they will boycott or not participate in the CRTC proceeding (including PIAC, FRPC, Concordia University’s ACT, and the Consumers’ Association of Canada – Manitoba Branch, CIPPIC, Open Media). Indeed, as Concordia’s ACT told the Commission:

The CRTC’s denial of PIAC’s reasonable request perpetuates digital divides in Canada as it prevents non-profit and research organizations – many of whom represent older and vulnerable populations – from participating in public proceedings that are foundational to a healthy democracy and fair media policy.

The boycott has been joined by Canada’s leading telecom academics and has been the subject of repeated debate on the floor of the House of Commons. Given the Canadian government’s emphasis on consultation – it has been the hallmark of the government since the Liberal election in 2015 – it is hard to think of a more out-of-touch approach for the CRTC.

In fact, the CRTC’s antipathy toward consumer groups is not limited to effective exclusion from the Internet code proceeding. As the Forum for Research and Policy in Communications recently documented, its cost-orders process, which consumer groups rely upon to participate in CRTC proceedings, has been marked by increasing delays that have left some in a desperate financial situation. The FRPC research notes:

An analysis of 135 orders issued by the CRTC in response to applications for costs made by public-interest participants found that from 2013 to November 10, 2017 the time between the filing of costs applications and the CRTC’s publication of costs orders more than doubled, from an average of 3.7 months in 2013, to an average of 8.6 months in 2017.

The situation is particularly troubling for PIAC, which in recent years has experienced lengthier delays than any other consumer group.  Earlier this week, PIAC sent out a notification warning that its ability to operate has been put at risk by the CRTC cost order delays.

Not only has the CRTC’s approach toward consumer groups under Scott imperiled the ability to ensure that the public interest in adequately considered as part of the policy process, but its substantive approach has also evidenced a marked shift away from consumer concerns. In addition to supporting an ISP tax that would invariably raise access costs and initially rejecting an investigation into misleading sales tactics, the Commission has weakened its support for ambitious broadband targets in its broadband fund decision, mused about flexible approaches to net neutrality consistent with telecom talking points that support exceptions to the principle, and rejected a mandated MVNO system to support greater wireless competition. With a decision due on low-cost data plans before the end of the year, it would not surprise if the CRTC adopted the latest proposals from the wireless companies that many consumer groups deemed inadequate.

The CRTC operates at arms-length to the government, but with the caveat that the government can issue policy directions or require reconsideration of Commission decisions. The government has already been forced to step in on affordable wireless services and deceptive telecom practices. Given the government’s emphasis on wireless competition, consumer interests, and robust public consultation, it is time for the responsible ministers – including Innovation, Science and Economic Development Minister Navdeep Bains and Canadian Heritage Minister Pablo Rodriguez – to take a closer look at the CRTC in an effort to fix a mess that has rekindled fears of a industry-captured regulator with little regard for consumers or the public interest.

The post Telecom Train Wreck: Why It Is Time for the Government to Address the Mess That Is The CRTC appeared first on Michael Geist.

In Support of Evidence-Based Copyright Reform: My Industry Committee Copyright Review Submission

Michael Geist Law RSS Feed - Wed, 2018/12/12 - 10:10

Earlier this week, I submitted my copyright review brief to the Industry Committee. The brief tracks my opening comments to the committee closely, focusing on the data arising from five issues: educational copying, site blocking, the so-called value gap, the impact of the copyright provisions of the CUSMA, and potential reforms in support of Canada’s innovation strategy. Due to a 2,000 word limit, the committee version will be a slightly condensed version of my original. I’ve posted both online (original version, submitted version).

The brief relies extensively on the many posts and articles I’ve written in recent years on copyright issues in Canada. Those posts are listed in an appendix and posted below:

Educational Copying and Fair Dealing

Website Blocking

Value Gap


The Effect of CUSMA


Pro-Innovative Reforms

The post In Support of Evidence-Based Copyright Reform: My Industry Committee Copyright Review Submission appeared first on Michael Geist.

The State of Canadian Copyright: My Copyright Review Appearance Before the Industry Committee

Michael Geist Law RSS Feed - Tue, 2018/12/11 - 10:10

With the Industry committee’s copyright review winding down, I appeared yesterday before the committee to discuss the state of Canadian copyright. The wide ranging two hour discussion focused on everything from fair dealing to crown copyright to concerns that publishers don’t fairly compensate authors for their digital licensing revenues. My opening statement placed the spotlight on five issues: educational copying, site blocking, the so-called value gap, the impact of the copyright provisions of the CUSMA, and potential reforms in support of Canada’s innovation strategy. An audio version and transcript of the opening statement is posted below.

Appearance before the House of Commons Standing Committee on Industry, Science and Technology, December 10, 2018

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

I have been closely following the committee’s work and have much to say about copyright reform in Canada. Given limited time, I’d like to quickly highlight five issues: educational copying, site blocking, the so-called value gap, the impact of the copyright provisions of the CUSMA, and potential reforms in support of Canada’s innovation strategy. My written submission includes links to dozens of articles I’ve written on these issues.

Educational Copying

First, the issues associated with educational copying. Notwithstanding the oft-heard claim that the 2012 reforms are to “blame” for current educational practices, the reality is the current situation has little to do with the inclusion of “education” as a fair dealing purpose. You need not take my word for it. Access Copyright was asked in 2016 by the Copyright Board to describe the impact of the legal change. It told the Board that the legal reform did not change the effect of the law. Rather, it said, it merely codified existing law as interpreted by the Supreme Court.

Further, the claim of 600 million uncompensated copies – which lies at the heart of the allegations of unfair copying – is the result of outdated guesswork using decades-old data and deeply suspect assumptions. The majority of the 600 million – 380 million – involve K-12 copying data that goes back to 2005. The Copyright Board warned years ago that the survey data is so old that it may not be representative. The remaining 220 million comes from a York University study, much of which as old as the K-12 data. Regardless of its age, however, extrapolating some old copying data from a single university to the entire country does not provide a credible estimate.

In fact, the committee has received copious data on the state of educational copying. It is unequivocal: the days of printed coursepacks have largely disappeared in favour of digital access. As universities and colleges shift to digital course management systems, the content used changes too. An Access Copyright study at Canadian colleges found that books comprised only 35% of materials. Moreover, the amount of copying that occurs with CMS is far lower than with print.

Most importantly, CMS allows for the incorporation of licensed e-books, open access materials, and hyperlinks to other content. At the University of Ottawa, there are now 1.4 million licensed e-books, many of which involve perpetual licences that require no further payment and can be used for course instruction. Further, governments have invested tens of millions in open educational resources and educational institutions spends millions annually on transactional, pay-per-use licences, even where those schools have a collective licence.

What this means is that the shift away from the Access Copyright licence is not grounded in fair dealing. Rather, it reflects the adoption of licences that provide both access and reproduction rights. These licences provide universities with access to the content and the ability to use it in their courses. The Access Copyright licence offers far less, granting only copying rights for previously acquired materials.

Therefore, efforts to force the Access Copyright licence on educational institutions by restricting fair dealing or by implementing statutory damages reforms should be rejected. The prospect of restricting fair dealing would represent an anti-innovation, anti-education step backward and run counter to the experience over the past six years of increased licensing, innovation, and choice for both authors and educational users.

With respect to statutory damages, supporters argue that a massive escalation in potential damage awards is needed for deterrence and to promote settlement negotiations. Yet there is nothing to deter: educational institutions are investing in licensing in record amounts. Promoting settlement negotiations amounts to little more than increasing the legal risk to students and educational institutions so that they have no other viable alternative than to pay for an unnecessary licence.

Site Blocking

Second, site blocking. This committee has heard from several witnesses who have called for the inclusion of an explicit site blocking provision in the Copyright Act. I believe this would be a mistake. First, the CRTC proceeding into site blocking earlier this year led to thousands of submissions that identified serious problems with the practice including from the UN Special Rapporteur for Freedom of Expression who raised freedom of expression concerns and technical groups who cited risks of overblocking and net neutrality violations. Second, even if there is support for site blocking, it already exists under the law with much-needed oversight as the Supreme Court’s Google v. Equustek decision demonstrates.

Value Gap

Third, the so-called value gap. Two issues are not in dispute: the music industry is garnering record revenues from Internet streaming and subscription streaming services pay more to creators than ad-based ones.

The question for the copyright review is whether Canadian copyright law has anything to do with this.  The answer is no. The notion of a value-gap is premised on some platforms or services taking advantage of the law to negotiate lower rates. Those rules – such as notice-and-takedown – do not exist under Canadian law. That helps explain why industry demands to this committee focus instead on taxpayer handouts such as new taxes on iPhones. Those demands should be rejected.

CUSMA

Fourth, the impact of the CUSMA. The copyright provisions in this new trade agreement significantly alter the copyright balance by extending the term of copyright by additional 20 years, a reform Canada has rightly long resisted. By doing so, the agreement represents a major windfall that could run into the hundreds of millions for rights holders and creates the need to recalibrate Canadian copyright law to restore the balance.

Pro-Innovative Reforms

Fifth, there are important reforms that would help advance Canada’s innovation strategy. For example, greater fair dealing flexibility – adopting the “such as” approach – would make the current list of fair dealing purposes illustrative rather than exhaustive and would place Canadian innovators on a level playing field with fair use countries such as the U.S. That reform would still maintain a full fairness analysis along with longstanding jurisprudence to minimize uncertainty. In the alternative, an exception for informational analysis is desperately needed by the AI sector.

Canada should also establish new exceptions for our digital lock rules, which are among the restrictive in the world. Canadian business is at a disadvantage relative to the U.S., including in the agriculture sector, where Canadian farmers do not have the same rights as those found in the U.S.

Moreover, given the government’s support for open government – including its recent funding of Creative Commons licensed local news and support for open source software – the committee should recommend addressing a open government  copyright barrier by removing the crown copyright provision from the Copyright Act.

I look forward to your questions.

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A Failure of Enforcement: Why Changing the Law Won’t Fix All That Ails Canadian Privacy

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

Canadian Privacy Commissioner Daniel Therrien renewed his call for an overhaul of Canada’s private-sector privacy legislation this week. Responding to a national data consultation launched by Innovation, Science and Economic Development Minister Navdeep Bains, Therrien recommended enacting a new law that would include stronger enforcement powers, meaningful consent standards and the extension of privacy regulations to political parties. My Globe and Mail op-ed argues that while the need for a modernized privacy statute has been evident for some time, Canada’s privacy shortcomings are not limited to a decades-old legal framework struggling to keep pace with technological change.

Therrien has been increasingly focused on legislative reform, but too often his office fails to fully utilize the existing powers found in the law. For example, the Privacy Commissioner does not have order-making power, but does have the right to ask the federal court to issue binding orders. The extra step may be time consuming and inconvenient, but effective enforcement frequently depends upon going beyond issuing non-binding findings.

Therrien is not unique in shying away from confrontational enforcement. Previous commissioners were reluctant to name names in investigations and the office was only willing to investigate foreign companies after the federal court ruled that it could do so. Yet despite mounting public concern about privacy, complaints under the law have steadily declined during his tenure. There were were 426 accepted complaints (complaints that proceed to the investigation stage) in Therrien’s first annual report in 2013 under the Personal Information Protection and Electronic Documents Act. That has dropped every year since: 402 for 2014, 381 for 2015, 325 for 2016 and only 297 in the latest report for 2017.

A consistent decline in the number of complaints could mean that the public is satisfied with the protection of their privacy and has fewer issues to complain about. Polling data suggest otherwise, however, making it just as likely the public is either unaware of the law or left with the impression that the complaint system is ineffective.

Frustration with privacy enforcement is typified by a case involving Jet Airlines discussed in Therrien’s most recent annual report. The airline removed two passengers with physical disabilities after a disagreement with a member of the flight crew over the handling of service animals. The passengers used Canadian privacy law to request access to their personal information held by the airline, including details about the incident. Jet Airlines refused to disclose the information, initially advising the Privacy Commissioner that it treats all incidents as potential sources of litigation and therefore refuses to comply with any related access requests on the grounds that it could be subject to litigation privilege in the future.

Therrien rightly concluded that this interpretation of the law was far too broad and that the airline was in violation of the law. Rather than seeking to enforce the law through the federal courts, however, the office merely “encouraged” Jet Airlines to disclose the documents. While the Privacy Commissioner might argue that it would be easier if the law included order-making power that the office could use to compel disclosure, a blatant refusal to comply with the law cries out for a trip to the federal court. The unwillingness to pursue a court order is a failure of enforcement, not a shortcoming in the statute.

In fact, Therrien has already put the public on notice that he does not believe his office can effectively enforce the mandatory data-breach disclosure rules that took effect last month. He warns in his annual report that “with no funding for this activity and an already full plate, it will not be possible for us to devote the time necessary to properly review breaches and investigate.”

The situation seems little better with enforcement of the Privacy Act, which governs public-sector privacy issues. The privacy commissioner’s office is visible on legislative reform proposals with frequent appearances before parliamentary committees, but seems reactive rather than pro-active on key issues. For example, the office was notified months before the media reports on the recent proposal involving Statistics Canada and the collection of banking records, but only responded with an investigation once public outrage emerged.

Therrien unquestionably faces an enormous challenge. The days of a Canadian privacy commissioner staring down Facebook (as the office did in 2009) seem like a bygone era. Meanwhile, large Canadian companies such as Bell still adamantly refuse to issue transparency reports detailing their disclosures of personal information to law enforcement and pursuant to court orders years after the office negotiated a standardized approach with government and the private sector.

Meeting the privacy needs of Canadians requires a privacy commissioner willing to stand up to the government and corporate giants, ready to back up its demands by deploying every enforcement tool at his or her disposal. A modernized privacy law is necessary, but it is not sufficient.

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“Why Are You Recommending Notice and Takedown?”: The Canadian Bar Association’s Puzzling Position at the Copyright Review

Michael Geist Law RSS Feed - Thu, 2018/12/06 - 10:02

The Canadian Bar Association appeared before the Standing Committee on Industry, Science and Technology earlier this week as part of the nearly-concluded copyright review. The CBA submitted an odd brief that focused on a mix of issues, including anti-counterfeiting, notice-and-notice, and artists’ resale rights. The notice-and-notice comments captured the attention of at least one MP, who was left puzzled by the position.

The CBA’s brief contains no evidence on the efficacy of either notice-and-notice or notice-and-takedown, limiting its analysis to how the systems are “viewed.” In doing so, it ignores evidence that notice-and-notice has been effective in educating the public on copyright. More notably, it acknowledges that “a notice-and-takedown regime can result in internet service providers removing content following an allegation, without evidence or warning to the alleged infringer.” While that might sound like a good reason to reject the system – removing content without warning or evidence ought to be considered problematic by the bar association – it recommends adopting the approach primarily on the grounds that it is available in the United States.

That did not strike Liberal MP Celina Caesar-Chavannes as a particularly compelling reason and the CBA, represented by Steven Seiferling, responded with questions of his own:

Mrs. Celina Caesar-Chavannes: To the Canadian Bar Association, your recommendation is to
consider implementation of the notice and takedown system, if I’m reading this correctly.
In the written statement you’ve provided—you say that neither system—notice and notice or notice
and takedown—is perfect. You go on to say that a notice and takedown regime can result in Internet
service providers removing content following an allegation without evidence or warning to the
alleged infringer. Why are you recommending notice and takedown, and not to improve the effectiveness of notice and notice to redress online infringement?

Mr. Steven Seiferling: That’s an interesting question. I would turn it back to you and say what do
you mean by improving the effectiveness of notice and notice? So, are you proposing something like I heard a comment earlier saying, the international treaties govern what we can do with people who are posting or infringing copyright from overseas. I don’t know of an international treaty that lets me enforce against somebody who is overseas. I don’t know where you’re going with improving the notice and notice –

Mrs. Celina Caesar-Chavannes: I’m just asking a question.

Mr. Steven Seiferling: It’s an interesting question, but I think when it comes to…. Yes, we
acknowledge that neither system is perfect. You’re never going to find a perfect system. You’re
always striving for perfection. The more effective system of the two is going to be notice and takedown, because it gives the rights holders the strongest protection they can have against the use of infringing content online, and potentially problematic infringing content online.

While it seems very unlikely the committee will recommend adoption of a notice-and-takedown approach given the government’s commitment to notice-and-notice in Bill C-86 (which addresses some of the abuses) and the CUSMA, the CBA missed a valuable opportunity to raise important copyright reform issues by instead providing an evidence-free recommendation for a system that it plainly admitted raised policy concerns.

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Boycott: What If The CRTC Launched a Consumer Internet Code and Consumer Groups Refused to Participate in its Development?

Michael Geist Law RSS Feed - Tue, 2018/12/04 - 10:16

Last month, the CRTC announced plans to create an Internet Code of Conduct. The CRTC promised that the code would establish “consumer friendly business practices, provide consumers with easy-to-understand contracts, ensure consumers have tools to avoid bill shock, and make it easier for consumers to switch providers.” The code attracted some initial criticism due to the wide range of exclusions – everything from net neutrality to privacy to broadband speeds falls outside its scope – but in recent days an even bigger concern has emerged with several leading Canadian consumer groups actively boycotting the proceeding.

Soon after the launch of the proceeding, groups filed a request with the CRTC for an extension in the deadline for comments. The Commission announced the plan on November 8th and said that all comments were due by December 19th. The tight timeline would be challenging under any circumstances, but when coupled with the current Broadcasting and Telecom Legislative Review (original deadline of December 10th, extended to January 11, 2019) and the CRTC inquiry into misleading or aggressive telecom practices, consumer groups feared that they could not effectively participate in the proceeding.

The Public Interest Advocacy Centre wrote to the CRTC immediately after the announcement to request that the Commission delay the proceeding until after completion of the sales practices inquiry. In practice, that would mean moving the comment period to April 2019. The PIAC request was supported by several groups, including the Forum for Research and Policy in Communications, Union des consommateurs, CNOC, the Consumers’ Association of Canada – Manitoba Branch, and the Canadian Association of the Deaf. The CRTC denied the request, concluding that 40 days (which includes weekends) was sufficient time to provide comments regardless of other activities.

The CRTC denial has sparked a groundswell of opposition from consumer groups with many announcing that they will boycott or not participate in the CRTC proceeding (PIAC, FRPC, Concordia University’s ACT, and the Consumers’ Association of Canada – Manitoba Branch, CIPPIC, Open Media). In addition, I am advised that others will speaking out against the Commission approach in the coming days. The boycott has resulted in an odd dynamic in which the CRTC professes to establish a consumer-oriented Internet code yet it simultaneously effectively excludes consumers from actively participating in its development.

The message from consumer groups is clear. Despite a near-overwhelming power imbalance and scarce resources, the groups keep coming back to CRTC proceedings in the hope of injecting missing perspectives, data, and analysis. But those efforts take time and the Commission’s determination to place the Internet code on a rocket docket without reference to other initiatives is incompatible with developing high quality submissions. Unfortunately, the CRTC’s message seems equally clear. For the current Commission, the consultation process is little more than theatre, a box-ticking exercise in which the importance of a diversity of voices takes a back seat to a desire to justify decisions by claiming that “everyone had their chance” to participate.

The public interest community frustration with CRTC Chair Ian Scott has been mounting over the past year with delays in cost awards, the denial of new wireless competition through mandated MVNOs, doubts about net neutrality, disappointing Internet service targets, and Commission calls for new Internet taxes. However, the rush to establish a consumer Internet code that will not include many notable consumer voices sends a signal of a Commission badly out-of-touch with consumer concerns and out-of-step with Innovation, Science and Economic Development Minister Navdeep Bains’ priorities for the sector.

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