Feed aggregator

A Peek at A/B Testing in the Wild

Freedom to Tinker - Thu, 2016/05/26 - 09:40
[Dillon Reisman was previously an undergraduate at Princeton when he worked on a neat study of the surveillance implications of cookies. Now he’s working with the WebTAP project again in a research + engineering role. — Arvind Narayanan] In 2014, Facebook revealed that they had manipulated users’ news feeds for the sake of a psychology study […]

Government-Mandated Website Blocking Comes to Canada as Quebec’s Bill 74 Takes Effect

Michael Geist Law RSS Feed - Thu, 2016/05/26 - 08:34

With little fanfare, Quebec passed website blocking legislation last week. Bill 74 took effect on May 18th, setting up a likely court showdown between the Quebec and federal governments. As discussed in several articles and posts over the past year (here and here), Quebec’s Internet blocking legislation requires Internet service providers to block access to a list of online gambling sites to be identified by the government-backed Loto-Québec. The government now characterizes the legislation as a matter of consumer protection, but it did not initially hesitate to emphasize that its primary goal was to increase revenues for Espace-Jeux, its officially sanctioned online gambling service.

The website blocking plans are now in the hands of Loto-Québec, which must generate the block list and make it available to Internet service providers. The ISPs will have 30 days to comply or face fines of up to $100,000 for failure to block access to the content. The law does not identify a specific technology that must be used for the website blocking. Before initiating any blocking, however, it seems likely that the ISPs will file a legal challenge over the validity of the Quebec blocking law. Legal challenges may focus on several issues, including the exclusive federal jurisdiction over telecommunications and the Charter of Rights and Freedoms implications of government-mandated Internet blocking.

The ISPs may be joined in their challenge by the federal government. The Quebec bill was raised in the House of Commons last month, with Canadian Heritage Minister Mélanie Joly pointing to the government’s support for net neutrality, which would be violated by mandated blocking of websites. Joly invited further discussion, but with the law now in force, the time to talk is over as Canada’s first government-mandated website blocking law will surely head to the courts.

The post Government-Mandated Website Blocking Comes to Canada as Quebec’s Bill 74 Takes Effect appeared first on Michael Geist.

In Search of a Plan B for the TPP

Michael Geist Law RSS Feed - Wed, 2016/05/25 - 08:29

The government’s public consultation on the Trans Pacific Partnership (TPP) has stopped in Vancouver, Calgary, and Montreal in recent weeks as a growing number of people speak out on the agreement. Tens of thousands have also written to the government on the issue with some beginning to consider trade strategy alternatives.

My weekly technology law column (Toronto Star version, homepage version) argues that the interest in other trade options stems from three developments. First, the TPP may not have sufficient support to take effect since under the terms of agreement both Japan and the United States must be among the ratifying countries. Implementation has been delayed in Japan where politicians fear a political backlash and seems increasingly unlikely in the U.S., where the remaining presidential candidates have tried to outdo one another in their opposition to the deal.

Both Donald Trump and Bernie Sanders have been outspoken critics of the TPP from start of their campaigns. Meanwhile, Hillary Clinton has shifted her position from supporter to critic, recently unequivocally stating that “I oppose the TPP agreement and that means before and after the election.” Some TPP supporters have held out hope that the TPP could be passed during the “lame duck” session in Congress that occurs immediately after the U.S. election, but with all presidential candidates campaigning against it, finding the necessary political support will be exceptionally difficult.

Second, economic analysis of the TPP suggests that there are few benefits for Canada. For example, a recent C.D. Howe study found that the Canadian gains may be very modest, with some gains offset by losses on issues such as copyright and an outflow of royalties. Given the limited effect of staying out (the study describes the initial impact as “negligible”), some have suggested that killing the agreement might be a good thing for the country.

The C.D. Howe study, which is consistent with several other reports that found that TPP benefits to Canada are among the lowest of the 12 countries, should not come as a surprise. Canada already has free trade deals with several key agreement partners, including the U.S., Mexico, Chile, and Peru. Moreover, some Canadian business sectors have told the government they would be better off removing inter-provincial trade barriers before working to open markets like Vietnam and Malaysia.

Third, at hearings across Canada, there has been consistent concern with the TPP’s potential impact on many other issues, including health care costs, copyright, digital rights, labour rights, and environmental protections (I was invited as a witness earlier this month at a hearing in Ottawa). Some of these issues may be more difficult to quantify, but the growing chorus of criticism points to risks popping up throughout the fine print of the agreement.

If the TPP dies – or Canada decides not to ratify – what might a “Plan B” look like?

Canada already has an alternate blueprint for a trade strategy to open up key markets throughout Asia. By the government’s own admission, the Canada – EU Trade Agreement offers a better investor-state dispute settlement system than the TPP, while the Canada – South Korea free trade agreement, which was concluded in 2014, eliminates tariffs without requiring an overhaul of Canadian or South Korean laws. There are criticisms of both of those deals, but they offer better models than the TPP.

The target markets are easy to identify. The Canadian government has begun to rethink its engagement with China and has already made some progress on trade negotiations with Japan and India, two of the most important Asian markets. Concluding those deals will not be easy, but they do point to the potential for expanding Canada’s trade presence in Asia without the need for the TPP.

Chrystia Freeland, Canada’s International Trade minister, has been placed in a tough position, inheriting an increasingly unpopular agreement her government did not negotiate. As the TPP consultation continues – a public town hall is planned for Toronto next month – a Plan B focused on opening markets through bi-lateral trade deals that better represent Canadian interests may emerge as the preferred alternative trade strategy.

The post In Search of a Plan B for the TPP appeared first on Michael Geist.

Time for Plan B Instead of Trans Pacific Partnership?

Michael Geist Law RSS Feed - Wed, 2016/05/25 - 08:21

Appeared in the Toronto Star on May 23, 2016 as Time for Plan B Instead of Trans Pacific Partnership?

The government’s public consultation on the Trans Pacific Partnership (TPP) has stopped in Vancouver, Calgary, and Montreal in recent weeks as a growing number of people speak out on the agreement. Tens of thousands have also written to the government on the issue with some beginning to consider trade strategy alternatives.

The interest in other trade options stems from three developments. First, the TPP may not have sufficient support to take effect since under the terms of agreement both Japan and the United States must be among the ratifying countries. Implementation has been delayed in Japan where politicians fear a political backlash and seems increasingly unlikely in the U.S., where the remaining presidential candidates have tried to outdo one another in their opposition to the deal.

Both Donald Trump and Bernie Sanders have been outspoken critics of the TPP from start of their campaigns. Meanwhile, Hillary Clinton has shifted her position from supporter to critic, recently unequivocally stating that “I oppose the TPP agreement and that means before and after the election.” Some TPP supporters have held out hope that the TPP could be passed during the “lame duck” session in Congress that occurs immediately after the U.S. election, but with all presidential candidates campaigning against it, finding the necessary political support will be exceptionally difficult.

Second, economic analysis of the TPP suggests that there are few benefits for Canada. For example, a recent C.D. Howe study found that the Canadian gains may be very modest, with some gains offset by losses on issues such as copyright and an outflow of royalties. Given the limited effect of staying out (the study describes the initial impact as “negligible”), some have suggested that killing the agreement might be a good thing for the country.

The C.D. Howe study, which is consistent with several other reports that found that TPP benefits to Canada are among the lowest of the 12 countries, should not come as a surprise. Canada already has free trade deals with several key agreement partners, including the U.S., Mexico, Chile, and Peru. Moreover, some Canadian business sectors have told the government they would be better off removing inter-provincial trade barriers before working to open markets like Vietnam and Malaysia.

Third, at hearings across Canada, there has been consistent concern with the TPP’s potential impact on many other issues, including health care costs, copyright, digital rights, labour rights, and environmental protections (I was invited as a witness earlier this month at a hearing in Ottawa). Some of these issues may be more difficult to quantify, but the growing chorus of criticism points to risks popping up throughout the fine print of the agreement.

If the TPP dies – or Canada decides not to ratify – what might a “Plan B” look like?

Canada already has an alternate blueprint for a trade strategy to open up key markets throughout Asia. By the government’s own admission, the Canada – EU Trade Agreement offers a better investor-state dispute settlement system than the TPP, while the Canada – South Korea free trade agreement, which was concluded in 2014, eliminates tariffs without requiring an overhaul of Canadian or South Korean laws. There are criticisms of both of those deals, but they offer better models than the TPP.

The target markets are easy to identify. The Canadian government has begun to rethink its engagement with China and has already made some progress on trade negotiations with Japan and India, two of the most important Asian markets. Concluding those deals will not be easy, but they do point to the potential for expanding Canada’s trade presence in Asia without the need for the TPP.

Chrystia Freeland, Canada’s International Trade minister, has been placed in a tough position, inheriting an increasingly unpopular agreement her government did not negotiate. As the TPP consultation continues – a public town hall is planned for Toronto next month – a Plan B focused on opening markets through bi-lateral trade deals that better represent Canadian interests may emerge as the preferred alternative trade strategy.

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

The post Time for Plan B Instead of Trans Pacific Partnership? appeared first on Michael Geist.

Canada’s Copyright Lobby Revolving Door Raises Fairness Concerns Ahead of 2017 Review

Michael Geist Law RSS Feed - Fri, 2016/05/20 - 16:40

The revolving door between government and lobby groups has long been a source of concern in the United States, where lead government IP officials have regularly jumped to lobby groups representing music, movies, and software interests and vice versa. In recent years, that has included the USTR official responsible for copyright in ACTA and the TPP moving the MPAA, the lead software industry lobbyist joining the USTR, and the general counsel of the Copyright Office joining the top international music association.

The Lobby Monitor reports that the revolving door has apparently migrated to Canada, with the former Director of Regulatory Affairs for Music Canada joining the government to play a key role in copyright policy, only to be replaced by the former Director of Parliamentary Affairs within the Prime Minister’s Office, who was the lead on the surprise copyright term extension for sound recordings passed in 2015.

The moves started with Tanya Peatt, who was once James Moore’s Director of Policy and lead on the copyright file. Peatt’s LinkedIn page still references her position as Director of Regulatory Affairs at Music Canada and provides assurances that she was blocked from lobbying the government due to the Federal Accountability Act. However, as Canadaland reported earlier this week, Peatt has now left Music Canada to return to government, where she will work on copyright policy within the Department of Innovation, Science, and Economic Development (formerly Industry Canada).

Peatt’s replacement at Music Canada? None other than Patrick Rogers, the former Director of Parliamentary Affairs at the PMO, who was the central government figure in the 2015 copyright extension for sound recordings. As the Lobby Monitor reports, Rogers recently received a waiver from the Ethics Commissioner to begin work with Music Canada. Rogers had been unable to find a job since the fall election and the Commissioner ruled that the recent announcement regarding a Canadian culture review as sufficient to remove concerns about information being held on future policy directions. Yet Rogers played a key role in Music Canada’s lobbying efforts to obtain a copyright term extension for sound recordings in the 2015 budget. As I reported last year, Rogers (then the Director of Policy for the Minister of Canadian Heritage) held near monthly meetings with Music Canada which ultimately led to the copyright extension without any public consultation.

With a copyright review scheduled for 2017, there is considerable concern among many stakeholders about the direct move of a senior official from one of the most powerful copyright lobby groups in the country to the very government department responsible for leading the policy review. This revolving door – and the willingness of the department of Minister Navdeep Bains to actively participate in it – raises enormously troubling questions about the upcoming copyright review and assurances that all stakeholders will be treated in a fair and balanced manner.

The post Canada’s Copyright Lobby Revolving Door Raises Fairness Concerns Ahead of 2017 Review appeared first on Michael Geist.

Fair dealing and course packs: Canadian and international challenges

Sara Bannerman - Fri, 2016/05/20 - 11:30
A draft study presented last week at the World Intellectual Property Organization (WIPO) is of particular relevance to Canada.  The revision of the Canadian Copyright Act's fair dealing provisions in 2012 to include dealing for educational purposes, as well as a Supreme Court of Canada decision of the same year relating to classroom materials, have led many Canadian universities to conclude, and to adopt the policy, that the inclusion of articles or book chapters, for example, in hard copy and electronic course packs, is fair dealing that does not require permission or payment of copyright fees.  This interpretation is currently being challenged in a Canadian lawsuit against York University.

Is the Canadian universities' interpretation of fair dealing in line with the policies adopted in other countries?  Professor Seng's study should shed some light on this question.  He notes that "Educational anthology limitations and exceptions are found in 94 provisions from 85 member states" (Sheng, 22).  However, some states place restrictions on course pack copying; 12 provisions, according to Sheng, require equitable remuneration to be paid to copyright holders (Sheng, 22).

Seng's study was introduced in the context of discussions toward a possible international instrument on copyright provisions for educational and research institutions.  Numerous states have made proposals for new international norms, some of which relate to the question of course packs.  Finland, for example, has made the main proposal on course packs.  It is very restrictive, in that it would require payment of remuneration, restrict anthologies to print anthologies only, and would allow only the use of works more than five years old (p. 26; see also p. 14).

Many of the proposals currently on the table at WIPO  (relating not only to course packs, but also to the use of copyright works in the classroom, in distance learning, in research, and in reverse engineering) are far more restrictive than current interpretations of Canadian educational fair dealing.  They are, therefore, important to watch.

Canadian universities' current interpretations of fair dealing as it relates to course packs could face two challenges: the first arises from the York University lawsuit, which may take ten years to wind its way to the Supreme Court of Canada.  The second comes from a possible WIPO international treaty or instrument that could reinforce or, just as possibly, restrict educational user rights in Canada.

Canada should take an active role in the negotiations, promoting robust and fair user rights for education.


--
NB: Chapter 4 of my book International Copyright and Access to Knowledge (discount code:Bannerman2015) addresses the history and present politics of copyright in educational works.  Titled "Access to education, libraries, and traditional knowledge," the chapter notes that while, at national levels, the history of Western copyright is strongly tied to the principle of access to education, the same is not true of the international copyright system, Rather, the international system, with its mission civilisatrice, served to restrict copyright provisions for the encouragement of education.

The Trouble With the TPP: Cost to the Canadian Economy Garnering Increasing Attention

Michael Geist Law RSS Feed - Fri, 2016/05/20 - 10:13

Earlier this month, I appeared before the Standing Committee on International Trade alongside Jim Balsillie to discuss the TPP. My opening statement can be found here and a full transcript of the session here. A second panel of Barry Sookman and Lawrence Herman followed to support the TPP. The following exchange was one of the most noteworthy:

Mr. Sukh Dhaliwal: Do you see any negative impacts of the TPP on an average middle-class Canadian?
The Chair: It’ll have to be a short answer.
Mr. Barry Sookman: I don’t see any.
Mr. Lawrence Herman: I don’t either.

The responses were unsurprising given that supporters simply ignore multiple studies that have found negative impacts. NDP MP Tracey Ramsey picked up on this immediately with a follow-on question:

Ms. Tracey Ramsey: I think it’s probably appropriate that my colleague just asked that question, because I think there are grave implications, in particular in my riding of Essex, where we have a hub of manufacturing in terms of auto manufacturing. The 58,000 jobs that have been projected to be lost in Canada under the Tufts University study economic model, 12,000 of those would occur in southwestern Ontario. So it has massive implications to average Canadians and to working Canadians, to be quite honest.

We hear that you feel that this would maintain the jobs here in Canada and, of course, it’s hard to see how a Canadian business would be disadvantaged in the TPP, but we’ve had others that present here and explain to us how Canadians would be disadvantaged in the TPP. So while businesses may be a beneficiary of the Trans-Pacific Partnership, average middle-class Canadians, lower-income Canadians, would actually end up having to pay more for pharmaceutical drugs. There would be implications to them. I did read one of your articles, Mr. Sookman, and you said, “The costs of being left behind could be staggering for Canada in the long term”, so I’m wondering what economic modelling you’re basing that on.

When called out on the economic evidence and the emphatic claim that are no negative effects from the TPP, the following exchange ensues:

Mr. Barry Sookman: Thank you very much for your question.
Like Mr. Balsillie, I’m not an expert in the auto industry, so I can’t comment on that. There are people who—
Ms. Tracey Ramsey: Just simply that you thought there would be no implications to people is what I was referring to.
Mr. Barry Sookman: I was commenting from the IP provisions. I wasn’t commenting from the other section. I assumed that was the context of the question.
Ms. Tracey Ramsey: I thought it was more general. It was more general, yes.
Mr. Barry Sookman: I was focusing on that, so sorry if that wasn’t clear.

In fact, the negative effects of the TPP have begun to receive increasing attention. The Globe and Mail’s Barrie McKenna recently wrote a column concluding that the failure of the TPP might be good news for Canada given its economic effects. That column cites a C.D. Howe study that finds very limited gains for Canada. describing the deal as ending in a “small and unbalanced outcome.” The study points to some agricultural benefits for Canada, but finds the initial cost of staying out of the TPP as “negligible.” It also identifies some of the negative costs of the deal, including increased copyright costs and outflows of royalties.

Focus on the limited benefits of the TPP are not limited to Canada. This week, the U.S. International Trade Commission released its study of the economic impact of the TPP on the U.S. economy, finding that it would barely boost its annual GDP. The EFF points to the shortcomings of the study (including a misleading citation of a CIPPIC study), but even if taken at face value, the report finds very limited gains for the U.S.  As the CATO Institute notes, the study does not account for many factors that could wipe out projected benefits.

The post The Trouble With the TPP: Cost to the Canadian Economy Garnering Increasing Attention appeared first on Michael Geist.

remembering Brian Dickson (1916-1998)

Fair Duty by Meera Nair - Thu, 2016/05/19 - 09:04

Brian Dickson, more precisely The Right Honourable Robert George Brian Dickson, was born on 25 May 1916. Appointed to the Supreme Court of Canada in 1973, he became Canada’s 15th Chief Justice in 1984. The centenary of his birth is a fitting time to remember his contribution to what many of us take for granted: the capacity of our legal system to adapt to the changing mores of Canadian society. Dickson also brought the subject of law closer to all Canadians, he championed clear, effective writing that was comprehensible on a wider scale. “We are not writing simply for legal academics or other judges. The cases we deal with … affect every man, woman, and child in the country.”

Robert J. Sharpe has written extensively about Brian Dickson in journal articles, and together with Kent Roach, authored a book (A Judge’s Journey, 2003). From the personal and professional details published, it is apparent that Dickson’s perspective on law was shaped by many chapters of his own life. As a child, he was confronted with the spectacle of ill-fated Prairie farmers who laboured for a lifetime, only to lose everything in the Depression. Following his studies in law, Dickson served in WWII; there, a severe injury resulted in an amputated leg and constant residual pain. Post WWII, he coupled a successful career as a corporate lawyer with constant public service. At the height of his corporate career, he chose to forsake it and immerse himself entirely in public service by accepting an appointment as a trial judge in Manitoba. A later appointment to the appellate court of Manitoba eventually led to his Supreme Court tenure.

Dickson’s life experiences abetted and honed his concern for maintaining harmony between the dignity of the individual and the well-being of the community. That dual priority, coupled with a brilliant mind, enriched Canadian public life for generations to come. As Chief Justice, Dickson set the tone during the early years of constitutional interpretation following the adoption of the Charter of Rights and Freedoms in 1982.

The Charter marked a prominent moment in the journey towards Canadian sovereignty. It defined our rights and freedoms, and placed ownership of those qualities firmly in Canadian hands. The Charter protected citizens against legislation enacted by governments that, despite perhaps best intentions, compromise the larger purpose of having a constitution. In the days following his appointment as Chief Justice, Dickson was keenly aware of the role of the Supreme Court as guardian of Canadians’ constitutional rights:

When there is breach of the fundamental rights and freedoms under the Charter of rights, we have been given the right, the duty and the responsibility to deal with it and it is our duty to strike [the violation] down.
–  quoted by John Hey, “The New Face of the Law,” Macleans, Vol 97, Issue 18, 1984

More than thirty years have passed since the Charter was unveiled; many Canadians are likely unaware of how contentious that desire for a Made-In-Canada constitution had been, and with what mistrust the Charter had been eyed when it did arrive. Some Canadians resisted decoupling the nation from the British yoke of sovereignty over Canadian affairs. Others worried that the courts would become too powerful, disrupting the role of Parliament. Another anxiety was that Canada was merely aping the mantra of rights emanating from our southern neighbors. But in a speech in 2013, Chief Justice Beverley McLachlin (who has described her own early perspective of the Charter as “disinterested curiosity”) gave the definitive outcome: the Charter has stood the test of time and has helped forge a uniquely Canadian society.

[The Charter] reflected the kind of society Canadians wished to build for themselves and for generations to come. While patriation symbolized the raw fact of self-determination, the Charter made a statement about the ideals to which Canada should dedicate itself. Every nation needs a basic statement of what it stands for. For Canada, the Charter was that statement. …

[T]hirty years on, I think most would say that the patriation of the constitution was vital and that the Charter has stood the test of time. Canadians, polls consistently tell us, take pride in their Charter of Rights and Freedoms. It has, quite simply, become part of the Canadian identity. And it does not hurt that in the years since its adoption the principles enunciated in the Charter have been emulated abroad and the decisions of the Supreme Court interpreting them studied by courts and scholars throughout the world.

The distinctiveness of our Charter, and its capacity to foster balance among rights for all, may very well lie in its preamble. Our cherished constitution begins with a disclaimer:

S.1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Our guaranteed rights are limited. That statement is not as paradoxical as it sounds; in terms of individual interaction, it is not difficult to foresee that an unbridled enjoyment by individuals of their rights could lead to the violation of others’ rights.

But those justifiable limits must be carefully handled. Early on, Dickson set the standard for application of the limiting clause. In R. v. Big M. Drug Mart Ltd. (1985) he wrote:

At the outset, it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles will have to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Once a sufficiently significant government interest is recognized then it must be decided if the means chosen to achieve this interest are reasonable‑‑a form of proportionality test. The court may wish to ask whether the means adopted to achieve the end sought do so by impairing as little as possible the right or freedom in question.

Shortly thereafter, Dickson went further in defining the role of courts when consideration of the Charter itself is required. In R. v. Oakes (1986) he wrote:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

Even before the Charter, Dickson had championed broader consideration of the social context of disputes, decisions and penalties. Sharpe describes a particularly poignant element of Dickson’s approach to law; in his early days as a trial judge, “… before passing sentence, he spent a day at Stoney Mountain Penitentiary and then proceeded to visit the Selkirk Mental Hospital (p.15).”

Along with situating the law within Canadian life, Dickson also ensured that decisions were accessible to all Canadians. Accessibility in this sense meant comprehensible. Dickson eschewed the formalistic, jargon ridden prose of the courts of the day; he championed clear prose, within reach of those outside of the legal sphere.

For Dickson, it was no longer sufficient for courts to rely solely on a mechanical recitation of precedent; a good judgment began from principle and was substantiated by reason. Dickson led by example and set a new standard for the Canadian judiciary. Even his criticism of the poor quality of existing judgments is precise, evocative, and leaves a reader wanting more: “Thoughts straggle across the printed page like a gaggle of geese, without form, without beginning or end, lacking in coherence, convincingness, conciseness (quoted in Sharpe and Roach, p.204).”

It may be overstating it, to say that but for Dickson most Canadians outside the purview of Law would have been unable to participate in matters of law. However, it is more than reasonable to claim that Brian Dickson’s stance hastened our opportunity.


House of Commons Fast Tracks Copyright Bill To Implement Marrakesh Treaty

Michael Geist Law RSS Feed - Wed, 2016/05/18 - 17:40

Bill C-11, the copyright bill that will allow Canada to accede to an international copyright treaty that will improve access for the blind and visually impaired, was fast tracked on Tuesday with unanimous approval to consider the bill read, studied, and passed three times. There will be no House of Commons committee hearings on the bill, which now heads to the Senate for approval. The bill received first reading at the Senate today. With no hearings and little debate, the bill will pass quickly without any changes.  I wrote about Bill C-11 last month, noting that it is a positive step forward but that some provisions may be unduly restrictive when compared to the implementation approach recommended by some copyright groups.

One of the most notable provisions (which was raised by Carla Qualtrough, the Minister of Sport and Persons with Disabilities) is that the bill amends Canada’s anti-circumvention rules by expanding the exception on digital locks. NDP MP Charlie Angus, a veteran of the copyright battles on Parliament Hill, seized on the issue to ask whether the government would address the remaining digital lock restrictions. The answer from Minister Qaultrough: yes.

Charlie Angus: Mr. Speaker, I was on the copyright committee when the last legislation was put forward and the government absolutely refused to make the changes in the provisions that would have made it possible for people with sight issues to access materials. There was one fundamental principle, which was that the digital lock was sacrosanct. The problem is that this has affected university institutions, research, libraries, and digital archives.
   
However, it is not just sighted students who are affected in these situations. Universities will tell students who have hearing disabilities that the Copyright Act overrides their right to have closed captioning. Given the fact that these changes have been made, which are good changes, there is the issue of establishing a clear balance in the provisions of the digital locks, which will still be WIPO compliant, to ensure that libraries can do their work without facing punishment and that the rights of other individuals with perceptual disabilities not related to sight can supersede the sacrosanct provisions of the digital lock provisions in the present Copyright Act. Will those changes be brought forward?

Hon. Carla Qualtrough: Mr. Speaker, that is a very important question. We know that Marrakesh focuses primarily on the visually impaired, the blind, and others with more perceptual disabilities related to font size in accessible material. I have met with a lot of leaders in the deaf and hard-of-hearing communities who have brought that very issue to my attention. I am very keen to move forward with figuring out a way to address it. I am very excited that the deaf and hard of hearing are going to be an integral part of our consultations as we move forward on accessibility legislation. I respect the cultural aspect of deafness and being hard of hearing, and I assure the House we will ensure that question is addressed in the future.

The digital lock issue was raised several times during the debate as even the Conservative MPs noted the importance of the changes, despite the fact that it was their bill that caused the problem in the first place. The bill should pass through the Senate quickly, but the House of Commons debate may have opened the door to further digital lock changes in the future.

The post House of Commons Fast Tracks Copyright Bill To Implement Marrakesh Treaty appeared first on Michael Geist.

The Princeton Web Census: a 1-million-site measurement and analysis of web privacy

Freedom to Tinker - Wed, 2016/05/18 - 11:59
Web privacy measurement — observing websites and services to detect, characterize, and quantify privacy impacting behaviors — has repeatedly forced companies to improve their privacy practices due to public pressure, press coverage, and regulatory action. In previous blog posts I’ve analyzed why our 2014 collaboration with KU Leuven researchers studying canvas fingerprinting was successful, and […]

Is Tesla Motors a Hidden Warrior for Consumer Digital Privacy?

Freedom to Tinker - Wed, 2016/05/18 - 07:00
Amid the privacy intrusions of modern digital life, few are as ubiquitous and alarming as those perpetrated by marketers. The economics of the entire industry are built on tools that exist in shadowy corners of the Internet and lurk about while we engage with information, products and even friends online, harvesting our data everywhere our […]

Canada’s New Telecom Policy Begins to Take Shape With Rejection of Bell Appeal, Support for Net Neutrality

Michael Geist Law RSS Feed - Tue, 2016/05/17 - 08:25

For the first six months of the new Liberal government, telecom watchers were unsure about whether Navdeep Bains, the Minister of Innovation, Science, and Economic Development, would maintain the pro-consumer and competition approach that typified the previous government. The Bains ministerial mandate letter referenced the importance of competition, choice, and investment in communications, leaving enough wiggle room to shift in a new direction.

My weekly technology law column (Toronto Star version, homepage version) notes that the full policy remains a mystery, but developments over the past two weeks suggest that a major change in approach is unlikely. With several big issues still to be decided – a plan for universal broadband access and review of the proposed Bell acquisition of MTS among them – getting a better sense of government policy is essential for business and consumers.

Last week, the government ended months of speculation by rejecting a Bell cabinet appeal of a Canadian Radio-television and Telecommunications Commission (CRTC) decision on broadband infrastructure. In July, the Commission extended open access measures to fast fibre connection services, which it hopes will create a more competitive marketplace for Internet access.

The CRTC decision means that companies such as Bell will be required to share their fibre networks with other carriers on a wholesale basis. The approach matches the one used for slower DSL services that plays a key role in enabling an independent ISP community, leading to better services, pricing, and consumer choice.

The Bell appeal received controversial support from the mayors of Toronto and Ottawa, though Toronto City Council voted overwhelmingly to support the CRTC decision and more competition.

While supporters of the CRTC decision feared that the government might break with the past emphasis on competition, overturning the ruling never made much political sense. There was little to be gained by angering the hundreds of thousands of Canadians that rely on services from independent Internet providers and few believe that the major telecom companies will stop investing in new networks, particularly since they are still paid for usage on a wholesale basis. Implementing the CRTC ruling will take months, but the government’s decision to uphold it paves the way for future fibre competition.

While the Bell appeal captured the lion share of telecom policy attention, not to be overlooked is a recent exchange in the House of Commons in which the government affirmed its support for net neutrality. The issue arose in response to a question over Quebec’s plan to force Internet providers to block access to unlicensed online gambling websites.

Conservative MP Dan Albas asked how the government plans to respond to the Quebec bill, which he noted raises concerns about state-backed Internet censorship. Canadian Heritage Minister Mélanie Joly replied that the government believes in net neutrality, an affirmation that Canadians should have the right to access content and applications of their choice online.

The reliance on net neutrality in response to the Quebec bill is notable, given that there are alternative arguments such as exclusive federal jurisdiction over telecom policy and Charter of Rights issues. The Quebec government seems determined to pass the legislation, setting up a certain court challenge by Internet providers and perhaps the federal government. In the meantime, the Liberal government has confirmed that net neutrality remains a key part of its telecom policy position.

If government support for broadband competition and net neutrality remains intact, the next big question is whether the goal of four wireless competitors in every market is still part of the policy toolkit. That principle is at stake in the Bell – MTS merger review.

Manitobans enjoy some of the lowest wireless costs in Canada, as the presence of a fourth carrier in that province creates more competition and better pricing. With MTS out of the way, costs are bound to increase to levels more commonly found in the rest of the country, leaving the government with a crucial competition decision that will impact the future of wireless services in Canada.

The post Canada’s New Telecom Policy Begins to Take Shape With Rejection of Bell Appeal, Support for Net Neutrality appeared first on Michael Geist.

Rejecting Bell’s Broadband Fight Sends a Clear Signal

Michael Geist Law RSS Feed - Tue, 2016/05/17 - 08:10

Appeared in the Toronto Star on May 16, 2016 as Rejecting Bell’s Broadband Fight Sends a Clear Signal

For the first six months of the new Liberal government, telecom watchers were unsure about whether Navdeep Bains, the Minister of Innovation, Science, and Economic Development, would maintain the pro-consumer and competition approach that typified the previous government. The Bains ministerial mandate letter referenced the importance of competition, choice, and investment in communications, leaving enough wiggle room to shift in a new direction.

The full policy remains a mystery, but developments over the past two weeks suggest that a major change in approach is unlikely. With several big issues still to be decided – a plan for universal broadband access and review of the proposed Bell acquisition of MTS among them – getting a better sense of government policy is essential for business and consumers.

Last week, the government ended months of speculation by rejecting a Bell cabinet appeal of a Canadian Radio-television and Telecommunications Commission (CRTC) decision on broadband infrastructure. In July, the Commission extended open access measures to fast fibre connection services, which it hopes will create a more competitive marketplace for Internet access.

The CRTC decision means that companies such as Bell will be required to share their fibre networks with other carriers on a wholesale basis. The approach matches the one used for slower DSL services that plays a key role in enabling an independent ISP community, leading to better services, pricing, and consumer choice.

The Bell appeal received controversial support from the mayors of Toronto and Ottawa, though Toronto City Council voted overwhelmingly to support the CRTC decision and more competition.

While supporters of the CRTC decision feared that the government might break with the past emphasis on competition, overturning the ruling never made much political sense. There was little to be gained by angering the hundreds of thousands of Canadians that rely on services from independent Internet providers and few believe that the major telecom companies will stop investing in new networks, particularly since they are still paid for usage on a wholesale basis. Implementing the CRTC ruling will take months, but the government’s decision to uphold it paves the way for future fibre competition.

While the Bell appeal captured the lion share of telecom policy attention, not to be overlooked is a recent exchange in the House of Commons in which the government affirmed its support for net neutrality. The issue arose in response to a question over Quebec’s plan to force Internet providers to block access to unlicensed online gambling websites.

Conservative MP Dan Albas asked how the government plans to respond to the Quebec bill, which he noted raises concerns about state-backed Internet censorship. Canadian Heritage Minister Mélanie Joly replied that the government believes in net neutrality, an affirmation that Canadians should have the right to access content and applications of their choice online.

The reliance on net neutrality in response to the Quebec bill is notable, given that there are alternative arguments such as exclusive federal jurisdiction over telecom policy and Charter of Rights issues. The Quebec government seems determined to pass the legislation, setting up a certain court challenge by Internet providers and perhaps the federal government. In the meantime, the Liberal government has confirmed that net neutrality remains a key part of its telecom policy position.

If government support for broadband competition and net neutrality remains intact, the next big question is whether the goal of four wireless competitors in every market is still part of the policy toolkit. That principle is at stake in the Bell –    MTS merger review.

Manitobans enjoy some of the lowest wireless costs in Canada, as the presence of a fourth carrier in that province creates more competition and better pricing. With MTS out of the way, costs are bound to increase to levels more commonly found in the rest of the country, leaving the government with a crucial competition decision that will impact the future of wireless services in Canada.

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

The post Rejecting Bell’s Broadband Fight Sends a Clear Signal appeared first on Michael Geist.

Libraries, archives' role in making orphan works accessible up for debate at WIPO

Sara Bannerman - Thu, 2016/05/12 - 12:46
Discussion of the internationalization of copyright limitations and exceptions, such as expanded exceptions to copyright for libraries, educational institutions, and people with disabilities, continue this week at the World Intellectual Property Organization (WIPO)'s Standing Committee on Copyright and Related Rights.

Discussions of access provisions in international copyright have been ongoing since 2004 and have, so far, resulted in the establishment of the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Today's discussions focused on building on the work done under the Marrakesh Treaty to see the possible establishment of an international instrument internationalizing copyright limitations and exceptions for libraries and archives.  International provisions are necessary because, as I note in chapter 4 of my book, International Copyright and Access to Knowledge (Cambridge UP, 2016):
libraries face a number of problems as they attempt to provide both traditional and new services to their users – many related to new technologies. Digitization, license agreements imposed by publishers of electronic journals and books, and Technological Protection Measures (TPMs) all introduce problems of access, preservation,and maintaining copyright exceptions. Moreover, the globalized possibilities of resource sharing, which take place increasingly across borders, are undermined by the territoriality of copyright law. IFLA, the ICA, and others suggest that a treaty is the best way to ensure that a minimum set of limitations and exceptions for libraries and archives exist, and that they apply in cross-border environments. (76)*One focus of today's WIPO discussions was on the topic of orphan works, or copyright works where the copyright owner can't be found.  Libraries and archives are often the "adoptive parents" of orphan works; they are in a position to facilitate access to these works, especially through digital means.  However, copyright regimes often stand in the way, as can differing national regimes.  The International Federation of Library Associations and Institutions (IFLA), which is active at the meetings, notes that:
...there is a lot of progress to be made, with as many different copyright regimes there as there are states, each giving different types and degrees of protection if any at all. Moreover, as digital technologies bring about radical change in the information environment, a failure to act is the same as going backwards. This is why IFLA is engaging in support of change both at the global (WIPO) level, and nationally.SCCR delegates. © WIPO 2016. Photo: Emmanuel Berrod.

 IFLA is asking for "changes which would give libraries the right to work across borders, to give access to orphan works, and to import books which are available in other countries."  For them, "the goal – an international framework which frees up libraries and librarians – is worth the effort."  After all, IFLA explains, "it’s through exceptions and limitations to copyright that we can do our job."

Current proposals that are on the table for orphan works (see page 34-39 of the current working document) would allow entities such as libraries to reproduce, make available to the public, and otherwise use orphan works.  Some proposals apply these provisions, as well, to retracted works (African Group, Equador, India), and some would require remuneration to authors or copyright owners who are subsequently identified (Equador).  However, there is no consensus among states on such proposals, with the United States and the European Union among the key detractors.

The chair's summary of today's discussion is expected to be disseminated tonight.

Tomorrow's discussions are expected to focus on the internationalization of exceptions and limitations for educational and research institutions and for persons with other disabilities.

For those following the discussion, a number of groups are blogging and tweeting from WIPO:
My June 2015 post about these negotiations is here.
* Discount code for International Copyright and Access to Knowledge: Bannerman2015

Canadian Government Officials Confirm TPP Will Raise Pharmaceutical Costs

Michael Geist Law RSS Feed - Wed, 2016/05/11 - 08:32

Critics of trade agreements such as the TPP and the Canada-EU Trade Agreement has emphasized that a key concern is that deals will lead to increased costs for pharmaceutical drugs. At a recent Standing Committee on Health hearing on the development of a national pharmacare program, officials with Health Canada confirmed that they expect prices to increase but remain unsure about how much (hat tip: Blacklock’s Reporter). The exchange came from questions by NDP MP Don Davies:

Mr. Davies: Canada has just signed two trade deals, CETA and the TPP, which have new intellectual property provisions. All the literature and opinions I’ve read indicate that this will delay the introduction of generics to market for some time. I’m seeing estimates of two years as about what it’s going to take. Ms. Hoffman, has the department done some analysis on the likely impact of TPP and CETA, and is it true that those trade deals will likely increase the prices that Canadians pay for pharmaceuticals and add a little bit of mud to that already dirty picture?

Ms. Hoffman [Health Canada]: Yes, some analysis has been done. There’s a large number of people, not the least of whom are in the generics industry, who are attempting to estimate what incremental costs will be. The maximum amount of extended protection that brand drugs could get in the Canadian marketplace would be two years. In reality, given the intersection of data protection, patent remaining, patent life, and so on, it’s likely to be considerably less, on average, for most products. But every day that a patent product remains in the marketplace beyond what is currently the case is a day when the generic equivalent is not in the marketplace. One can calculate the incremental cost. This is why measures such as the work being done through the pCPA , and some changes that may be in the offing for PMPRB, are so important.
   
It is difficult to estimate the global cost. We can do modelling based on drugs that are in the marketplace today and try to imagine what would happen with the same mix of data protection and patent life remaining, but we’re actually talking about drugs that will be in the marketplace five, six, seven, eight, ten years and beyond. The profiled drugs and their costs and whether or not there even are generics that could replace them will depend on what’s going on in that drug marketplace.

Mr. Davies:  Is it fair to say, Ms. Hoffman, that it’s the department’s position that those two trade deals will likely increase the costs of drugs in Canada and we just don’t know how much?

Ms. Hoffman: That’s correct.

The acknowledgement that costs will go up but that the government isn’t sure how much provides further evidence that the full costs of the TPP (and CETA) are not known. Estimates of gains from the agreement are difficult to square with government evidence that there will be increased consumer costs with payments to go to foreign pharmaceutical companies.

The comments from Health Canada are also not a surprise. KEI obtained a document last month sent by the Obama Administration describing how the TPP will increase protections for pharmaceutical companies, leading to higher consumer costs. The TPP is opposed by dozens of health care groups.

Not only will the TPP and CETA lead to increased prices, but comments from the Patented Medicine Prices Review Board, an independent, quasi-judicial body created by Parliament in 1987, paint a disturbing picture of current Canadian pharmaceutical pricing. Officials from the PMPRB told the committee:

Canadian drug prices are the fourth highest of the 31 countries in the OECD, and on average Canadian prices are 26% higher than the OECD median. Canada spends more on drugs per capita and as a percentage of GDP than most other OECD countries. On the other hand, R and D in Canada continues to decline and currently stands at 5% of sales. This is the lowest recorded figure since 1988, when the PMPRB first began reporting on R and D. In contrast, the average R and D ratio for the PMPRB7 countries has held steady at about 20%.

In other words, Canada’s already high pharmaceutical costs are about to get even higher.

The post Canadian Government Officials Confirm TPP Will Raise Pharmaceutical Costs appeared first on Michael Geist.

Forget a Netflix Tax: How The Digital CanCon Review Can Shake Up the Status Quo

Michael Geist Law RSS Feed - Tue, 2016/05/10 - 08:42

Canadian Heritage Minister Mélanie Joly’s digital CanCon consultation is likely to spark calls from the cultural establishment for new levies and taxes to fund the creation of domestic content. The Internet will be the primary target with demands for a Netflix tax along with legislative reforms that would open the door to additional fees on Internet providers.

Yet an unimaginative approach that seeks to regulate the Internet imposes costs that would make Internet access less affordable and create a regulatory environment that runs counter to fundamental principles of freedom of speech and access to information. Joly should reject efforts to recycle stale policies and instead embrace the opportunity to shake up Canadian cultural policy.

My weekly technology law column (Toronto Star version, homepage version) argues that the starting point should be a shift in funding for Canadian content creation. The current model, which relies heavily on mandatory contributions from the Canadian broadcasting community, is in decline as revenues from the sector slowly shrink (the Canadian Radio-television and Telecommunications Commission recently reported that conventional television revenues declined by 2.4 per cent in 2015).

With the broadcasting sector struggling to compete against unregulated Internet services, Joly should drop mandatory contributions altogether. In their place, support for the content industries could come from four sources: federal granting programs funded through general tax revenues, benefits packages from industry mergers, allocations from spectrum licensing, and targeted tax credits that benefit Canadian producers. The change would provide more stable funding for production and marketing, while leaving broadcasters more competitive.

Online services should remain unregulated and free from mandatory contributions, but should be subject to general sales taxes. Levying GST or HST on Canadian online video services such as Shomi or CraveTV while leaving Netflix tax-free creates a tax revenue shortfall and places domestic services at a disadvantage compared to their foreign counterparts.

Canadian broadcasting and telecommunications law must also keep pace with the changing digital environment. Rules that grant the CRTC the power to determine which channels may operate in Canada should be repealed. Instead, the Commission should concentrate on consumer protection and marketplace competition.

The consumer protection issues include regulations maintaining maximum consumer choice through pick-and-pay models, truth in advertising on communications services, and guaranteed Internet access for all Canadians.

Competition encompasses an even broader range of issues including enforceable net neutrality rules to ensure that creators and consumers benefit from neutral network service without unfair preferences, safeguards against vertically integrated media giants unfairly favouring their own content, and the possibility of structural separation for companies that own significant content and carriage businesses.

As for Canada’s public broadcaster, one of the most contentious issues in recent years has been the CBC’s emphasis on digital delivery of news content. Reconciling the need for the CBC to remain relevant by embracing digital delivery with the financial impact on private sector news services could be addressed by requiring the public broadcaster to adopt an ad-free approach to its online news presence. That would ensure that it reaches digital audiences but does not directly compete with the private sector for advertising dollars. The private news services could also benefit from a change to allow tax deductions for advertising on Canadian websites.

While these changes would dramatically shift the legal and regulatory environment for Canadian culture, Joly’s initiative needs an even bigger goal to capture the public’s imagination. That could include requiring the CBC to open its content for public reuse (the government is opening its national parks, why not its national content?) or embarking on a comprehensive digitization initiative that provides the foundation for a national digital library.

Joly has encouraged Canadians to think big about Canadian cultural policy. It now falls to the government to reject the regulatory models of the past by embracing a future-focused strategy that emphasizes competition, consumer access, and the export and promotion of Canadian content for a global audience.

The post Forget a Netflix Tax: How The Digital CanCon Review Can Shake Up the Status Quo appeared first on Michael Geist.

Forget a Netflix Tax. Here’s How to Shake Up Canada’s Culture

Michael Geist Law RSS Feed - Tue, 2016/05/10 - 08:38

Appeared in the Toronto Star on May 9, 2016 as Forget a Netflix Tax. Here’s How to Shake Up Canada’s Culture

Canadian Heritage Minister Mélanie Joly’s digital CanCon consultation is likely to spark calls from the cultural establishment for new levies and taxes to fund the creation of domestic content. The Internet will be the primary target with demands for a Netflix tax along with legislative reforms that would open the door to additional fees on Internet providers.

Yet an unimaginative approach that seeks to regulate the Internet imposes costs that would make Internet access less affordable and create a regulatory environment that runs counter to fundamental principles of freedom of speech and access to information. Joly should reject efforts to recycle stale policies and instead embrace the opportunity to shake up Canadian cultural policy.

The starting point should be a shift in funding for Canadian content creation. The current model, which relies heavily on mandatory contributions from the Canadian broadcasting community, is in decline as revenues from the sector slowly shrink (the Canadian Radio-television and Telecommunications Commission recently reported that conventional television revenues declined by 2.4 per cent in 2015).

With the broadcasting sector struggling to compete against unregulated Internet services, Joly should drop mandatory contributions altogether. In their place, support for the content industries could come from four sources: federal granting programs funded through general tax revenues, benefits packages from industry mergers, allocations from spectrum licensing, and targeted tax credits that benefit Canadian producers. The change would provide more stable funding for production and marketing, while leaving broadcasters more competitive.

Online services should remain unregulated and free from mandatory contributions, but should be subject to general sales taxes. Levying GST or HST on Canadian online video services such as Shomi or CraveTV while leaving Netflix tax-free creates a tax revenue shortfall and places domestic services at a disadvantage compared to their foreign counterparts.

Canadian broadcasting and telecommunications law must also keep pace with the changing digital environment. Rules that grant the CRTC the power to determine which channels may operate in Canada should be repealed. Instead, the Commission should concentrate on consumer protection and marketplace competition.

The consumer protection issues include regulations maintaining maximum consumer choice through pick-and-pay models, truth in advertising on communications services, and guaranteed Internet access for all Canadians.

Competition encompasses an even broader range of issues including enforceable net neutrality rules to ensure that creators and consumers benefit from neutral network service without unfair preferences, safeguards against vertically integrated media giants unfairly favouring their own content, and the possibility of structural separation for companies that own significant content and carriage businesses.

As for Canada’s public broadcaster, one of the most contentious issues in recent years has been the CBC’s emphasis on digital delivery of news content. Reconciling the need for the CBC to remain relevant by embracing digital delivery with the financial impact on private sector news services could be addressed by requiring the public broadcaster to adopt an ad-free approach to its online news presence. That would ensure that it reaches digital audiences but does not directly compete with the private sector for advertising dollars. The private news services could also benefit from a change to allow tax deductions for advertising on Canadian websites.

While these changes would dramatically shift the legal and regulatory environment for Canadian culture, Joly’s initiative needs an even bigger goal to capture the public’s imagination. That could include requiring the CBC to open its content for public reuse (the government is opening its national parks, why not its national content?) or embarking on a comprehensive digitization initiative that provides the foundation for a national digital library.

Joly has encouraged Canadians to think big about Canadian cultural policy. It now falls to the government to reject the regulatory models of the past by embracing a future-focused strategy that emphasizes competition, consumer access, and the export and promotion of Canadian content for a global audience.

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

The post Forget a Netflix Tax. Here’s How to Shake Up Canada’s Culture appeared first on Michael Geist.

The Interconnection Measurement Project

Freedom to Tinker - Mon, 2016/05/09 - 19:25
Building on the March 11 release of the “Revealing Utilization at Internet Interconnection Points” working paper, today, CITP is excited to announce the launch of the Interconnection Measurement Project. This unprecedented initiative includes the launch of a project-specific website and the ongoing collection, analysis, and release of capacity and utilization data from ISP interconnection points. […]

The Trouble with the TPP: My Appearance Before the International Trade Committee

Michael Geist Law RSS Feed - Fri, 2016/05/06 - 08:23

Yesterday I appeared alongside Jim Balsillie, former co-CEO of Research in Motion, at the House of Commons Standing Committee on International Trade public consultation on the TPP. There were some interesting exchanges that I will highlight once the transcript is released. My opening remarks are posted below.

Appearance before the House of Commons Standing Committee on International Trade, May 5, 2016

Good morning. 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. I appear today in a personal capacity representing only my own views.

There is lots to say about the TPP – I have written dozens of articles and posts on the agreement and I am currently working on a book on point – but I have limited time so I’ll focus briefly on four issues.

First, Canada’s price of admission and weakness during the negotiations.

Canada was not an initial participant in the TPP negotiations. U.S. lobby groups urged the U.S. government to keep Canada out of the negotiations until a copyright bill was passed that satisfied its demands. Those demands had a significant impact on the contents of the 2012 Canadian copyright bill, particularly the retention of restrictive digital lock rules that were at the very top of the U.S. policy priority list.

Once the U.S. was convinced that Canada would meet its IP and anti-counterfeiting demands, it set further conditions for entry, including a commitment that Canada could not hold up any chapter if it was the lone opponent. This concession became important in the IP chapter, where there were several issues were Canada ultimately did stand alone and for which it was forced to cave.

As the negotiations neared a conclusion, senior Canadian officials were advised that Canada was at a disadvantage in the negotiations given the lack of coordination and transparency between government negotiators and interested stakeholders. We went ahead anyway and agreed to the deal.

Second, what did we agree to? The TPP leads to significant changes in Canadian IP law. 

For example, the term of copyright in Canada is presently life of the author plus an additional 50 years, a term consistent with the international standard set by the Berne Convention. This is also the standard in half of the TPP countries with Japan, Malaysia, New Zealand, Brunei, and Vietnam also providing protection for life plus 50 years. The TPP will require an extension by 20 more years. That is a major windfall for the U.S. and a net loss for Canada (and most other TPP countries). In fact, New Zealand, which faces a similar requirement, has estimated that the extension alone will cost its economy NZ$55 million per year. Last week, a draft report from the Australian government’s Productivity Commission pointed to estimates of AU$88 million per year for term extension. The Canadian cost may be higher without any real benefit.

The IP changes don’t stop there. The TPP includes changes to digital lock rules, longer patent protections, criminalization of trade secret law, changes to trademark law, new border measures, requirements for ratification by all TPP countries of as many as 9 international IP treaties.

Third, It is Not Just IP

The TPP goes far beyond IP. It touches on culture, restricting the ability to expand CanCon contributions policies. This means that despite Minister Joly’s recent promise to review Canadian cultural policies, contributions to support the creation of Canadian content are effectively locked into place with the TPP blocking new policies aimed at new services and technologies.

The TPP also leaves behind a complex array of regulations for services industries that is almost certain to result in unintended consequences. Hot button issues such as regulation of online gambling or regulating ride sharing services such as Uber may be decided by the TPP, not Canadian governments, whether at the municipal or provincial levels.

On the Internet, it reverses our longstanding hands-off approach on Internet governance and fails to meet our standards on issues like net neutrality.

The TPP even touches on privacy, restricting the ability for governments to implement restrictions on data transfers or data localization, while setting a very low threshold for privacy protection and anti-spam rules. This could place Canada between a proverbial rock and hard place on privacy sitting between European demands and TPP requirements.

Health is directly affected with increases to pharmaceutical pricing, locking in protections for biologics, and even sketching out the rules for a national pharmacare program if Canada were to adopt one.

Fourth, the risks and potential costs of getting implementation wrong are enormous.

The TPP was negotiated behind closed doors and presented to the public on a take-it-or-leave-it basis. I’ve read references from some MPs claiming Canada has already consulted on the deal. I know of few, if any, experts in these areas that were consulted. In fact, when I appeared before this committee in June 2013, I was told by government MPs that concerns about the TPP were premature and that we should wait until the negotiations were complete. Now that they are complete, I hear some saying there has been enough consultation.

Yet we must recognize that the risks of getting implementation wrong are enormous. The investor-state dispute settlement provisions in the TPP point to the possibility of massive liability from corporate claims. Minister Freeland has described the ISDS rules in the Canada-EU Trade Agreement as the “gold standard”, but the TPP rules do not meet that standard. Moreover, even crafting our own standards within the TPP may be a non-starter since the US maintains that it gets to decide for Canada how to ratify the agreement through a certification process.

In sum, Canada was at distinct disadvantage in the TPP negotiations and it shows with major losses on intellectual property, digital and cultural policies, as well as the prospect of significant liability through ISDS and US certification into how we implement . The issue isn’t about being pro or anti-free trade.  It is about a bad deal that should be renegotiated or rejected and trade alternatives pursued.  I welcome your questions.

The post The Trouble with the TPP: My Appearance Before the International Trade Committee appeared first on Michael Geist.

The TPP, IP, and Digital Policy: My CABE Presentation

Michael Geist Law RSS Feed - Wed, 2016/05/04 - 08:45

Earlier this week, I delivered a webinar for the Canadian Association of Business Economics on the implications of the TPP. The talk touched on a wide range of concerns including copyright, privacy, culture, and digital policies. A video of the talk can be found here.

 

The post The TPP, IP, and Digital Policy: My CABE Presentation appeared first on Michael Geist.

Syndicate content