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CBC Seeks Takedown of Conservative Ad, Claims “No One” Can Re-Use Its News Clips Without Permission

Michael Geist Law RSS Feed - 14 hours 45 min ago

Last week, the Conservative party posted an offensive advertisement on YouTube and Facebook titled Justin Trudeau on ISIS. The ad starts with ISIS music and images of prisoners about be drowned or beheaded before running short edited clips from a 13 minute interview with Trudeau and the CBC’s Terry Milewski. The advertisement has rightly generated a backlash with questions about whether it violates Bill C-51′s prohibitions on terrorist propaganda. Conservative Party campaign spokesman Kory Teneycke argues that it is little different than newscasts involving ISIS, but watching the combination of music and imagery, it clearly goes well beyond conventional news reporting on ISIS. Indeed, even if it fall short of violating Bill C-51, the ad is in terrible taste, treating images of victims as mere props for political gain.

Beyond the C-51 issue, the CBC waded into the issue late on Friday, as Jennifer McGuire, the CBC News Editor-in-Chief, posted a blog indicating that the broadcaster has asked YouTube and Facebook to take down the ad. The ostensible reason?  Copyright. The CBC has again raised the issue of re-use of news coverage in political advertising, claiming that it is determined to limit re-use since “our integrity as providers of serious, independent coverage of political parties and governments rests on this.” In light of this position, the CBC says its guiding principle is:

No one – no individual candidate or political party, and no government, corporation or NGO – may re-use our creative and copyrighted property without our permission. This includes our brands, our talent and our content.

The CBC is simply wrong. Its guiding principle is wrong and its attempt to use copyright to take down an offensive advertisement is wrong. The claim brings to mind the story from last fall involving a government proposal (that was shelved) to create a specific copyright exception for the use of news content in political advertising.

I argued then that no exception was needed because copyright already provides latitude for political parties to use works without permission. That is because copyright does not provide the absolute rights suggested by the CBC. The CBC obviously has rights as the copyright owner in its broadcast, but those rights are constrained by limitations and exceptions under the law that allow for use of its work without the need for further permission. The CBC itself (like all broadcasters) regularly relies upon those exceptions to use the work of others without permission. Similarly, I just used the exceptions to quote the CBC policy in this blog post without their permission.

In this case, there are several arguments that the use is permitted under the Copyright Act.  First, the clips run for about 22 seconds out of a 13 minute interview. As the Copyright Board of Canada discussed in a recent decision, an infringement claim only arises where the copying involves a substantial part of the work. By implication, an insubstantial amount does not give rise to a copyright claim. The Copyright Board ruled that 2.5% of a written work was insubstantial. In this case, the total of 22 seconds are about 2.8% of the total interview. There is a plausible argument that the clips involved are insubstantial and do not even trigger a copyright claim.

Second, in the event that the clips are viewed as a substantial part of the work, there are exceptions that may apply. The most important is fair dealing, which is the Canadian equivalent of fair use. Fair dealing involves a two-step test. The first is whether the dealing or use is for an appropriate purpose. This requires one of the purposes in the Act: research, private study, news reporting, criticism, review, education, parody, or satire. In this case, criticism, research (on Trudeau’s political positions), or even news reporting (of those positions) might apply. The second part of the test involves an examination of six factors: the purpose or goal of the dealing, the character, the amount copied, alternatives, the nature of the dealing, the its effect (which often involves consideration of the economic impact). Given the qualifying purpose, the limited amount copied, the lack of alternatives, and the limited economic effect, there is a strong fair dealing argument here.

In fact, there are other exceptions that might also apply, including the new non-commercial user generated content provision that is explicitly designed to allow for the use of copyrighted works to create new works for non-commercial purposes. The UGC provision is available to individuals (which might preclude its use by the Conservative party), though there is an argument that the four criteria can be met and the person who created the video can rely on the exception.

The CBC could raise some interesting moral rights arguments to counter the exceptions (if their employees have not waived their moral rights). However, the larger point is that its claim that no one can use any clips of its broadcasts without permission is inconsistent with the state of the law. There is much to criticize about the Conservatives’ ISIS ad, but copyright isn’t one of them.

The post CBC Seeks Takedown of Conservative Ad, Claims “No One” Can Re-Use Its News Clips Without Permission appeared first on Michael Geist.

Getting OMNI’d: Why Many Canadian TV Channels May Be Headed for the Chopping Block

Michael Geist Law RSS Feed - Thu, 2015/06/25 - 09:27

Rogers Media’s recent decision to slash 110 jobs and end all newscasts at OMNI, its multicultural channel, has sparked outrage among many ethnic communities, who have lamented the cancellation of local news programs in Italian, Punjabi, Cantonese, and Mandarin. Supporters argue that OMNI programming is essential to those communities and worry that the cancellations will mean that viewers become less politically engaged.

Last week, a House of Commons committee held a hearing on the OMNI cuts as members of Parliament from each party took Rogers executives to task. Rogers was unsurprisingly unapologetic, noting that the decision was based on simple economics as it pointed to declining advertising revenues that made the programming unsustainable.

Although MPs offered up a series of suggestions to stave off the cuts, the reality is that the changes at OMNI foreshadow a far bigger upheaval within the Canadian broadcasting world. Indeed, both the government (with its emphasis on pick-and-pay channels) and the Canadian Radio-television and Telecommunications Commission (with its TalkTV decision) have embraced change with the full knowledge that many channels will face elimination under the emerging framework.

Canadian broadcasters face at least three simultaneous pressures, creating a perfect storm that is likely to lead to many more cutbacks and cancellations.

First, channels reliant on highly profitable U.S. programming are finding that the audiences for reruns of previously popular shows are shrinking given their widespread availability from other sources, resulting in a major drop in advertising revenue. Rogers Media executive Keith Pelley told the House of Commons committee that OMNI advertising revenues had declined from $80 million to $22 million over the past four years. Profits from the U.S. shows had been used to subsidize money-losing Canadian programming, but with revenues dropping by tens of millions, that formula looks increasingly shaky.

Second, original Canadian programming may not fare well either. While critics have been vocal about the OMNI changes, Pelley revealed that ratings for the Italian language newscasts were down by 68 per cent over the past year.

With few people watching the programs – there are plenty of online alternatives – the audience is no longer there.

Shrinking audiences are likely to cause significant changes at conventional channels that rely solely on advertising revenues that are shifting to other media. But the biggest change within the Canadian broadcasting landscape will be among specialty channels that rely upon the bundling of channels to generate sizable subscription revenues despite small audiences.

As the accompanying chart illustrates, there is no shortage of channels that have thrived largely on the backs of those bundles to which consumers have been forced to subscribe as part of larger packages. That has yielded strong profits for Canadian broadcasters, but with pick-and-pay options on the way, the inability to generate advertising or audiences may mean those channels come to an end.

Channel
Subscriber Revenue (2014)
Advertising Revenue (2014)
Profit Margin
Staff
Book Television (BCE) $4,577,395 $29,525 66.0% 0 Cottage Life (Blue Ant) $3,913,117 $780,806 14.8% 0 Discovery Velocity (BCE) $24,772,293 $585,057 57.8% 2.5 Documentary (CBC) $6,277,020 $270,325 12.9% 8.5 ESPN Classic (BCE) $2,827,170 $208,014 34.9% 2 Fashion Television Channel (BCE) $4,511,730 $172,552 34.5% 1 G4 (Canada) (Rogers) $8,369,274 $959,159 47.8% 13 MTV2 (BCE) $4,955,132 $122,920 37.8% 0 Odyssey (formerly OTN) (Odyssey) $2,192,522 $229,462 21.6% 10 The Brand New ONE Body, Mind, Spirit, Love Channel (Zoomer) $4,604,750 $70,973 24.6% 17

Source: CRTC

For example, BCE’s Book Television garnered $4.5 million in subscriber fees in 2014, but only $29,525 in advertising revenue. Its profit margin was 66 per cent and it employed no staff. Book Television may sound like an anomaly, but it isn’t. BCE’s MTV2 generated $4.9 million in subscriber revenues with only $122,920 in advertising earnings and no staff, while a Zoomer channel garnered $4.6 million in subscriber revenues but only $70,973 in advertising dollars.

Pick-and-pay will not spell the end of all subscription-reliant channels, but with advertising revenues typically linked to viewership, many may no longer be viable. In fact, assuming Canadians opt for pick-and-pay and the trend toward watching Internet video continues, House of Commons hearings on the disappearing channels could become regular programming.

The post Getting OMNI’d: Why Many Canadian TV Channels May Be Headed for the Chopping Block appeared first on Michael Geist.

Why Many Canadian TV Channels May Be Headed for the Chopping Block

Michael Geist Law RSS Feed - Thu, 2015/06/25 - 09:25

Appeared in the Toronto Star on June 20, 2015 as More Canadian TV Channels May Be on the Chopping Block

Rogers Media’s recent decision to slash 110 jobs and end all newscasts at OMNI, its multicultural channel, has sparked outrage among many ethnic communities, who have lamented the cancellation of local news programs in Italian, Punjabi, Cantonese, and Mandarin. Supporters argue that OMNI programming is essential to those communities and worry that the cancellations will mean that viewers become less politically engaged.

Last week, a House of Commons committee held a hearing on the OMNI cuts as members of Parliament from each party took Rogers executives to task. Rogers was unsurprisingly unapologetic, noting that the decision was based on simple economics as it pointed to declining advertising revenues that made the programming unsustainable.

Although MPs offered up a series of suggestions to stave off the cuts, the reality is that the changes at OMNI foreshadow a far bigger upheaval within the Canadian broadcasting world. Indeed, both the government (with its emphasis on pick-and-pay channels) and the Canadian Radio-television and Telecommunications Commission (with its TalkTV decision) have embraced change with the full knowledge that many channels will face elimination under the emerging framework.

Canadian broadcasters face at least three simultaneous pressures, creating a perfect storm that is likely to lead to many more cutbacks and cancellations.

First, channels reliant on highly profitable U.S. programming are finding that the audiences for reruns of previously popular shows are shrinking given their widespread availability from other sources, resulting in a major drop in advertising revenue. Rogers Media executive Keith Pelley told the House of Commons committee that OMNI advertising revenues had declined from $80 million to $22 million over the past four years. Profits from the U.S. shows had been used to subsidize money-losing Canadian programming, but with revenues dropping by tens of millions, that formula looks increasingly shaky.

Second, original Canadian programming may not fare well either. While critics have been vocal about the OMNI changes, Pelley revealed that ratings for the Italian language newscasts were down by 68 per cent over the past year.

With few people watching the programs – there are plenty of online alternatives – the audience is no longer there.

Shrinking audiences are likely to cause significant changes at conventional channels that rely solely on advertising revenues that are shifting to other media. But the biggest change within the Canadian broadcasting landscape will be among specialty channels that rely upon the bundling of channels to generate sizable subscription revenues despite small audiences.

As the accompanying chart illustrates, there is no shortage of channels that have thrived largely on the backs of those bundles to which consumers have been forced to subscribe as part of larger packages. That has yielded strong profits for Canadian broadcasters, but with pick-and-pay options on the way, the inability to generate advertising or audiences may mean those channels come to an end.

Channel
Subscriber Revenue (2014)
Advertising Revenue (2014)
Profit Margin
Staff
Book Television (BCE) $4,577,395 $29,525 66.0% 0 Cottage Life (Blue Ant) $3,913,117 $780,806 14.8% 0 Discovery Velocity (BCE) $24,772,293 $585,057 57.8% 2.5 Documentary (CBC) $6,277,020 $270,325 12.9% 8.5 ESPN Classic (BCE) $2,827,170 $208,014 34.9% 2 Fashion Television Channel (BCE) $4,511,730 $172,552 34.5% 1 G4 (Canada) (Rogers) $8,369,274 $959,159 47.8% 13 MTV2 (BCE) $4,955,132 $122,920 37.8% 0 Odyssey (formerly OTN) (Odyssey) $2,192,522 $229,462 21.6% 10 The Brand New ONE Body, Mind, Spirit, Love Channel (Zoomer) $4,604,750 $70,973 24.6% 17

For example, BCE’s Book Television garnered $4.5 million in subscriber fees in 2014, but only $29,525 in advertising revenue. Its profit margin was 66 per cent and it employed no staff. Book Television may sound like an anomaly, but it isn’t. BCE’s MTV2 generated $4.9 million in subscriber revenues with only $122,920 in advertising earnings and no staff, while a Zoomer channel garnered $4.6 million in subscriber revenues but only $70,973 in advertising dollars.

Pick-and-pay will not spell the end of all subscription-reliant channels, but with advertising revenues typically linked to viewership, many may no longer be viable. In fact, assuming Canadians opt for pick-and-pay and the trend toward watching Internet video continues, House of Commons hearings on the disappearing channels could become regular programming.

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 Why Many Canadian TV Channels May Be Headed for the Chopping Block appeared first on Michael Geist.

Guess Who Claims Canadian Music May Go Silent Without Another Copyright Extension?

Michael Geist Law RSS Feed - Wed, 2015/06/24 - 09:34

The government’s gift to the recording industry wrapped up yesterday as Bill C-59 received royal assent and with it, the term of copyright for sound recordings was extended from 50 to 70 years. I’ve chronicled in detail how the extension of the copyright term without public consultation or discussion hurts Canadian consumers, reduces competition, and is a direct result of record label lobbying (surprise, cost to consumers, limited competition, reduced access to Canadian heritage, lobbying impact).

As an added bonus, groups have started to use the extension to argue that the government should also extend the term of copyright for authors from the current term of life plus an additional 50 years to life plus 70 years. Randy Bachman has an op-ed in the Globe and Mail today calling for a copyright term extension that must be read to be believed. The piece was not only a day late (he calls for the government to extend term in the same budget bill that already received royal assent), but contains some of the most absurd claims about copyright in recent memory.

The piece starts by suggesting that Canadian music may go silent if the government doesn’t extend the term of copyright. Bachman oddly cites as an example Glenn Gould, who died in 1982 and was best known as a performer with relatively few completed compositions. In fact, Gould’s best known works are performances of Bach and Brahms, works that are in the public domain. Obviously, neither Gould’s performance nor the Bach and Brahms works would be affected by Bachman’s proposed term extension.

To ensure that Canadian music doesn’t die, Bachman’s solution is to extend the term of copyright:

In the most recent federal budget, the government proposed to increase the length of copyright protection for sound recordings to 70 years from 50 years to be closer to international standards. This would be great if it also always covered the songwriters and composers who actually wrote the music, but it does not. It helps only those who performed on the recordings. The creators’ copyright protection is frozen at the life of the author plus 50 years. This would leave Canada lagging behind most other G20 countries, including the United States, the U.K., and almost all of the European Union.

Bachman neatly uses “70 years” to suggest that songwriters and composers are somehow mistreated in light of the extension for sound recordings to 70 years. Yet the reality is that songwriters and composers typically get far more than 70 years since their work is protected for their entire lives plus an additional 50 years.

In Bachman’s case, Takin’ Care of Business was written in 1973. That means it has already been protected for 42 years. It is entitled to another 50 years after Bachman dies, meaning that it is guaranteed to get at least 92 years of protection and the clock will hopefully continue to run for many more years for the 71 year old Bachman. Indeed, with the exception of Gould, the artists cited in Bachman’s op-ed (including Joni Mitchell, Neil Young, and Sarah McLachlan) will all have copyright protection on what they’ve written until at least 2065.

Not only does Bachman mislead on the term of protection, but in calling for international standards, he fails to note that the international standard for term of protection as found in the Berne Convention is life of the author plus 50 years (or exactly what Canada already provides).

While that alone would have been quite enough, to quote Bachman, you ain’t seen nothin’ yet. His piece concludes by again emphasizing the prospect of no further Canadian music:

Writing music that connects with people and evokes emotion takes work, passion and an unwavering focus, and carries a high risk of failure. Society should pay the creators what they have rightfully earned, so that a middle-class career (at least) can be the reward for solid songwriting skills, and so that they can keep creating – in Canada. Otherwise, Canadian music could stop being made.

Canadian law ensures that songwriters like Bachman maintain copyright protection for their entire lives plus their heirs benefit for another 50 years. It is difficult to see how that protection is insufficient to ensure that Canadian music is made. Does Bachman seriously believe that there are any Canadians songwriters, composers, or authors who would decide not to write because they receive copyright protection for their entire lives and their heirs get 50 years of protection rather than 70 years? Would Gould have completed his composition only if there was an extra 20 years of protection after he died? The claim is simply not credible.

While Bachman has proposed innovative copyright reforms in the past – he was an inaugural member of the Canadian Music Creators Coalition that opposed suing fans and he has supported a proposal for the legalization of file sharing – his support for term extension based on conjuring up implausible claims about the end of music is sad way for an acclaimed musician to celebrate a major lobbying victory that handed record labels millions at the expense of Canadian consumers.

The post Guess Who Claims Canadian Music May Go Silent Without Another Copyright Extension? appeared first on Michael Geist.

B.C. Court of Appeal Rules Facebook’s Fine Print Trumps Privacy Law

Michael Geist Law RSS Feed - Mon, 2015/06/22 - 10:05

One week after the B.C. Court of Appeal ruled that it could order Google to remove websites from its global index, the same court (but different judges) ruled that a privacy class action lawsuit against Facebook could not proceed in the province because the Facebook terms and conditions provide that all disputes must be resolved in a court in Santa Clara, California. The decision should provide a wake-up call to users and policy makers because an absolute approach to terms and conditions not only means that Canadian courts may be unable resolve consumer disputes involving companies like Facebook, but that Canadian law will not apply either.

The current Facebook terms and conditions state:

You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions.

While this appears to be slightly different from the terms that governed the dispute before the B.C. courts (it referenced courts in Santa Clara county), the key takeaway from the decision goes well beyond a proposed class action lawsuit over a Facebook “sponsored stories” program that no longer exists. The trial judge rightly noted that the heart of the case is whether online terms and conditions override domestic legal protections (in this case, the B.C. Privacy Act).

The trial court judge ruled that the terms did not, citing provisions in the B.C. Privacy Act that confer exclusive jurisdiction on the B.C. Supreme Court. The B.C. Court of Appeal rejected both the analysis of the BC Privacy Act and the broader public policy considerations of whether online terms should trump local law. The court ruled that the Facebook terms were “valid, clear, and enforceable”. It then fell to the plaintiff to demonstrate why the court should decline to enforce the forum selection clause. The court cites as a possible example evidence that the case could not be heard in the California court (which would have the effect of creating a limitation of liability for Facebook). Without such evidence, the court ruled that the Facebook terms were binding. Moreover, it rejected the argument that the B.C. Privacy Act is intended to trump valid contracts.

Interestingly, a class action lawsuit over Facebook’s sponsored stories launched in the State of Illinois raised similar questions about the enforceability of the Facebook terms and conditions. The court also sided with Facebook, ruling that its forum selection clause was enforceable. The court identified three situations where the clause might not be enforced:

  • if their incorporation into the contract was the result of fraud, undue influence or overweening bargaining power;
  • if the selected forum is so gravely difficult and inconvenient that the complaining party will for all practical purposes be deprived of its day in court; or
  • if enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decision.

The public policy discussion was interesting as the court ruled that California was fully capable of addressing the issue. That case was one of several that have upheld Facebook’s terms and conditions.

From a Canadian perspective, the public policy issue might well be whether California law offers the same level of privacy protection as that found in Canada. The Privacy Commissioner of Canada’s well-known 2009 investigation against Facebook did not focus on jurisdictional issues (the OPC maintains that the collection, use or disclosure of Canadian personal information triggers the law), but this case provides a reminder that Facebook believes that its terms and conditions ensure that California law and California courts govern any dispute or cause of action.

There is obvious value in contractual certainty and the benefits for online businesses, who can look to this case to more confidently rely on their terms and conditions. However, there is also a significant public policy risk, since it opens the door to contractual terms that trump local laws and protections. This is particularly true for online consumer contracts that involve no negotiation and are presented on a “take it or leave it” basis. In fact, few expect consumers to actually read the detailed fine print of every online contract, meaning that the clicking “I agree” may result in being bound by terms that trump Canadian law and the Canadian courts.

The post B.C. Court of Appeal Rules Facebook’s Fine Print Trumps Privacy Law appeared first on Michael Geist.

Why the Liberal Party Defence of Its Support for Bill C-51 Falls Flat

Michael Geist Law RSS Feed - Fri, 2015/06/19 - 08:26

Bill C-51, the anti-terrorism bill, became law yesterday as it received royal assent. As polls continue to suggest that the Liberal support for the bill is shifting potential voters to the NDP, Liberal leader Justin Trudeau has conducted several interviews defending his position as the “right move for Canadians.” Trudeau’s arguments, which have been echoed by other Liberal MPs such as Marc Garneau, boils down to three key claims: he doesn’t want to play politics with security, there are elements in Bill C-51 he likes including greater information sharing, and he will fix the problems with the bill if elected.

For those Canadians looking for an alternative to the Conservative position on Bill C-51, Trudeau’s defence falls flat.

First, the claim that the Liberals do not want to play politics with Bill C-51 is simply not credible. Indeed, the decision to support the bill was all about politics. The Conservatives introduced Bill C-51 on January 30, 2015, with both opposition parties saying they were reviewing the legislation and would seek “robust” parliamentary hearings. Several days later, the Liberals had apparently seen enough, indicating that they were ready to support the bill but push for greater oversight. Given that leading experts such as Craig Forcese and Kent Roach took weeks to comprehensively assess the impact of the legislation, it simply was not possible to assess all the implications of the bill in a few days.

The decision to support the bill was surely the result of a political calculation based on the fear of being labeled as weak on security. Indeed, Trudeau acknowledged precisely that a month later, telling students at UBC that the government was hoping the opposition would reject the bill so that it could “bash people on security.” Trudeau added that “this conversation might be different if we weren’t months from an election campaign, but we are.”

Trudeau also claims that he won’t politicize the issue by calling out the NDP opposition to the bill, stating “you won’t hear me say, ‘Mr. Mulcair, who voted against physical security, doesn’t care about Canadians’ safety.’” Perhaps not, but his MPs have done pretty much that. For example, last month in the House of Commons, MP Joyce Murray responded to criticism of Liberal support for Bill C-51 by stating “I would ask the member whether he would want it on his conscience should there be an attack that leads to deaths of Canadians because of the loopholes that the bill is attempting to fix?”

Second, the Liberal position on Bill C-51 has consistently cited the information sharing provisions in the bill as a reason to support it. Yet the information sharing provisions are among the most problematic aspects of the bill drawing criticism from the Privacy Commissioner of Canada and numerous experts. In supporting those provisions, the Liberals are not only siding with the government, but they are also rejecting the analysis of the Privacy Commissioner of Canada.

Third, the promise to fix the bill by adding accountability provisions and a sunset provision if elected does not address the fundamental concern with supporting the bill. Since the bill’s introduction, Trudeau has delivered major speeches and policy positions on liberty and freedoms and on fair and open government. There is much to like about those positions. But talking the talk is the easy part. Walking the walk is far harder. Speaking about defending liberty, while voting for a bill that every civil liberties group in the country opposed is difficult to reconcile. Similarly, calling for major parliamentary reforms while effectively giving tacit approval to the shameful hearings on Bill C-51 (chronicled here and here) by supporting the outcome is tough to square.

The Conservative record on digital issues is far more balanced than Harper’s critics would like to admit. For most issues, there is good and bad: the government has been a strong supporter of consumer interests on telecom and broadcast policy, it has passed good copyright laws (elements of 2012 reforms) and bad (digital locks, copyright extension in a budget bill), and it has enacted privacy reforms that at that their best provide new safeguards (security breach rules) and at their worst could have been worse (lawful access). Yet Bill C-51 was emblematic of the very worst of the government: constitutionally suspect legislation, the rejection of oversight or accountability, embarrassing hearings, exclusion of expert analysis, and the persistent demonizing of critics.

The Liberal position on Bill C-51 is similarly reminiscent of the worst fears of past Liberal governments that sought middle of the road positions based on politics rather than principle. Given the way the debate on Bill C-51 unfolded, all parties were forced to pick between being labeled as weak on security or characterized as weak on privacy and civil rights. The Liberals made the wrong choice.

The post Why the Liberal Party Defence of Its Support for Bill C-51 Falls Flat appeared first on Michael Geist.

SOCAN Reports Canadian Internet Music Streaming Copyright Revenues Soar 525%

Michael Geist Law RSS Feed - Thu, 2015/06/18 - 09:17

SOCAN, Canada’s largest music copyright collective, released its annual report this week, reporting record revenues and a massive increase in earnings from Internet streaming services. SOCAN reports that copyright revenues from Internet streaming hit $21.3 million, a 525% increase over the $3.4 million generated in 2013. The huge increase in Internet streaming revenues in Canada points to why persistent criticism about Tariff 8, a Copyright Board tariff for Internet streaming misses the mark. As I pointed out last year, Tariff 8 is only part of a larger ecosystem of royalties paid for Internet music streaming.

Indeed, the fact that songwriters, composers, and music publishers are successfully generating new revenues from Internet music services has actually been a target of criticism by the Canadian Recording Industry Association, which has intervened in tariff proceedings involving SOCAN to argue that its tariff proposals are “grossly excessive.”

The post SOCAN Reports Canadian Internet Music Streaming Copyright Revenues Soar 525% appeared first on Michael Geist.

Suck on This: Canadian Government Rejects IP Lobby’s Concerns on Dot-Sucks Domain

Michael Geist Law RSS Feed - Wed, 2015/06/17 - 10:28

As new top-level domains continue to enter the marketplace, one of the most controversial has been dot-sucks. The new top-level domain has generated criticism for its business model as much as for the websites that are likely to use it, with the intellectual property community describing the model behind dot-sucks as “illicit” and “predatory, exploitive, and coercive”. That recently led to a complaint to ICANN, which took the unusual step of writing to the U.S. and Canadian governments to determine whether the company behind dot-sucks was violating any national laws, claiming it “was very concerned about any possible illegality.”

The decision to include the Canadian government in the letter stems from the fact that dot-sucks is owned by a subsidiary of Momentous Corp., an Ottawa-based company. This week, the Canadian government responded to the ICANN letter, making it clear that it has absolutely no intention of intervening in the case. The key paragraph in the letter signed by Industry Canada Deputy Minister John Knobley:

Canada’s laws provide comprehensive protections for all Canadians. Canada has intellectual property, competition, criminal law and other relevant legal frameworks in place to protect trademark owners, competitors, consumers and individuals. These frameworks are equally applicable to online activities and can provide recourse, for example, to trademark owners concerned about the use of the dotSucks domain, provided that trademark owners can demonstrate that the use of dotSucks domains infringes on a trademark. Intellectual property rights are privately held and are settled privately in the courts.

In other words, the Canadian government will not intervene on behalf of the intellectual property lobby’s efforts to curtail critical speech using dot-sucks domains. Unlike the U.S. response, which criticized ICANN’s policies on new gTLDs, the Canadian response hits the right tone, leaving potential private disputes to the courts, not government intervention.

The post Suck on This: Canadian Government Rejects IP Lobby’s Concerns on Dot-Sucks Domain appeared first on Michael Geist.

WIPO to discuss library and archive copyright provisions

Sara Bannerman - Tue, 2015/06/16 - 13:43
Some interesting proposals will soon be under discussion at the World Intellectual Property Organization that could free libraries, archives, educational and research institutions, and people with disabilities from copyright provisions that hamper their ability to make use of copyright works.

The World Intellectual Property Organization's committee on copyright meets this upcoming June 29 to July 3.  Three main topics will be under discussion: first, the possible establishment of a treaty granting intellectual property protection for broadcasting organizations; second, the possible establishment of an international instrument setting out copyright limitations and exceptions for libraries and archives; and, third, the possible establishment of an international instrument setting out limitations and exceptions for educational and research institutions and for persons with other disabilities.[1]

The need for limitations and exceptions by libraries was laid out in 2011 by a number of library organizations, which noted that:
  • preservation of print and digital materials is a matter of increasing concern as "born digital" documents must be retained, print documents must be preserved and sometimes repaired, and digital lock increasingly make the job of preservation difficult or impossible.
  • libraries and archives must increasingly collaborate across institutions and borders, and copyright law must "catch up" to reflect this.
They suggested that an international treaty could enable libraries and archives to better preserve works; to support education, research, private study; and to support people with disabilities in accessing content (p. 5)
Currently two sets of proposals, one by the USA, and the other by the African Group, Brazil, Ecuador, India and Uruguay, are on the table for discussion. Both sets of proposals would: 
  • encourage copyright regimes that would enable preservation;
  • encourage legal deposit regimes; and
  • encourage limitations on liability for libraries and archives acting in good faith.
However, the proposals of the African Group, Brazil, Ecuador, India and Uruguay go much further to also encourage countries to enable:
  • acquisition of works by libraries via parallel import where a member state does not provide for international exhaustion;
  • cross-border use of works between library and archive institutions;
  • libraries and archives to reproduce and make available orphan works;
  • circumvention of digital locks for the purposes of making use of limitations and exceptions outlined in the instrument;
  • elimination of the contractual overrideability of limitations and exceptions; and
  • libraries and archives to translate works for the purposes of teaching, scholarship and research.
It is expected that at the next session discussion will continue on these proposals, and that an additional document by the chair will also be discussed (13).

---
[1] Knowledge Ecology International provides extensive information on the first topic.
The broadcasting discussions have been ongoing for ten years, as was noted by the Brazilian delegate at the last meeting of the committee (Draft report, p. 17).  The latter two sets of discussions have gathered some momentum after the successful adoption of WIPO's first treaty on limitations and exceptions for the visually impaired.

How the Budget Bill Quietly Reshapes Canadian Privacy Law

Michael Geist Law RSS Feed - Mon, 2015/06/15 - 09:07

A budget implementation bill is an unlikely – and many would say inappropriate – place to make major changes to Canadian privacy law. Yet Bill C-59, the government’s 158-page bill that is set to sweep through the House of Commons, does just that.

The omnibus budget bill touches on a wide range of issues, including copyright term extension and retroactive reforms to access to information laws. But there are also privacy amendments that have received little attention. In fact, the Privacy Commissioner of Canada was not even granted the opportunity to appear before the committee that “studied” the bill, meaning that privacy was not discussed nor analyzed (the committee devoted only two sessions to external witnesses for study, meaning most issues were glossed over).

My weekly technology law column (Toronto Star version, homepage version) notes that the bill raises at least three privacy-related concerns. First, the retroactive reforms to access to information, which are designed to backdate the application of privacy and access to information laws to data from the long-gun registry, has implications for the privacy rights of Canadians whose data is still contained in the registry. By backdating the law, the government is effectively removing the privacy protections associated with that information.

Second, the government plans to expand its collection of biometric information, including fingerprints and digital photos, to visitors from 150 countries. The law currently applies to 29 countries and one territory, meaning this constitutes a massive expansion in the amount of personal data the government collects.

The regulations associated with the biometric data collection have yet to be released, but the expansion raises privacy concerns over how the information is stored, the potential for false matches, and the need for appropriate notices about the collection, use and potential disclosure of the information.

Third, the government is expanding the scope of Personal Information Protection and Electronic Documents Act (PIPEDA), the private sector privacy law, to include non-commercial organizations. That raises questions about whether the changes are constitutional. The bill allows the government to specify organizations to which PIPEDA applies and it immediately adds one organization: the Montreal-based World Anti-Doping Agency (WADA).

The change is designed to address European criticism that WADA, which is currently subject to Quebec’s private sector privacy law, is not governed by privacy laws that meet the adequacy standard under European law. The European goal appears to be to deem Montreal unfit to host WADA and to transfer its offices. The Canadian government wants to stop the privacy criticisms by applying the federal law to the global organization.

While these issues sound very technical, the problem with the government’s proposed reform is that it is an obvious target for a constitutional challenge.

When PIPEDA was first introduced in the late 1990s, the government was careful to limit its scope to commercial activities. The reason was that the Constitution Act grants provinces powers over property and civil rights, which is where privacy fits in. To get around provincial jurisdiction, the federal government sought to regulate privacy on a national basis by relying on its trade and commerce power. In fact, Quebec viewed even that justification as an encroachment on its powers and quickly launched a constitutional challenge against the law, but that case has remained dormant for years.

By extending the law to cover WADA, the government is reviving the constitutional issue by changing the entire scope of the law. If PIPEDA now also covers some non-commercial activities, it will need a different constitutional basis.

By including constitutionally suspect privacy provisions within Bill C-59, the government is proposing to solve one problem by creating a much bigger one. Indeed, critics would argue that is precisely the risk of introducing significant privacy reforms within a fast-tracked omnibus budget bill and not allocating any time to discussing it at committee.

The post How the Budget Bill Quietly Reshapes Canadian Privacy Law appeared first on Michael Geist.

How Bill C-59 Reshapes Canadian Privacy Law

Michael Geist Law RSS Feed - Mon, 2015/06/15 - 09:05

Appeared in the Toronto Star on June 13, 2015 as How the Budget Bill Quietly Reshapes Privacy Law

A budget implementation bill is an unlikely – and many would say inappropriate – place to make major changes to Canadian privacy law. Yet Bill C-59, the government’s 158-page bill that is set to sweep through the House of Commons, does just that.

The omnibus budget bill touches on a wide range of issues, including copyright term extension and retroactive reforms to access to information laws. But there are also privacy amendments that have received little attention. In fact, the Privacy Commissioner of Canada was not even granted the opportunity to appear before the committee that “studied” the bill, meaning that privacy was not discussed nor analyzed (the committee devoted only two sessions to external witnesses for study, meaning most issues were glossed over).

The bill raises at least three privacy-related concerns. First, the retroactive reforms to access to information, which are designed to backdate the application of privacy and access to information laws to data from the long-gun registry, has implications for the privacy rights of Canadians whose data is still contained in the registry. By backdating the law, the government is effectively removing the privacy protections associated with that information.

Second, the government plans to expand its collection of biometric information, including fingerprints and digital photos, to visitors from 150 countries. The law currently applies to 29 countries and one territory, meaning this constitutes a massive expansion in the amount of personal data the government collects.

The regulations associated with the biometric data collection have yet to be released, but the expansion raises privacy concerns over how the information is stored, the potential for false matches, and the need for appropriate notices about the collection, use and potential disclosure of the information.

Third, the government is expanding the scope of Personal Information Protection and Electronic Documents Act (PIPEDA), the private sector privacy law, to include non-commercial organizations. That raises questions about whether the changes are constitutional. The bill allows the government to specify organizations to which PIPEDA applies and it immediately adds one organization: the Montreal-based World Anti-Doping Agency (WADA).

The change is designed to address European criticism that WADA, which is currently subject to Quebec’s private sector privacy law, is not governed by privacy laws that meet the adequacy standard under European law. The European goal appears to be to deem Montreal unfit to host WADA and to transfer its offices. The Canadian government wants to stop the privacy criticisms by applying the federal law to the global organization.

While these issues sound very technical, the problem with the government’s proposed reform is that it is an obvious target for a constitutional challenge.

When PIPEDA was first introduced in the late 1990s, the government was careful to limit its scope to commercial activities. The reason was that the Constitution Act grants provinces powers over property and civil rights, which is where privacy fits in. To get around provincial jurisdiction, the federal government sought to regulate privacy on a national basis by relying on its trade and commerce power. In fact, Quebec viewed even that justification as an encroachment on its powers and quickly launched a constitutional challenge against the law, but that case has remained dormant for years.

By extending the law to cover WADA, the government is reviving the constitutional issue by changing the entire scope of the law. If PIPEDA now also covers some non-commercial activities, it will need a different constitutional basis.

By including constitutionally suspect privacy provisions within Bill C-59, the government is proposing to solve one problem by creating a much bigger one. Indeed, critics would argue that is precisely the risk of introducing significant privacy reforms within a fast-tracked omnibus budget bill and not allocating any time to discussing it at committee.

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 How Bill C-59 Reshapes Canadian Privacy Law appeared first on Michael Geist.

copyright and religion; a contentious mixture

Fair Duty by Meera Nair - Sun, 2015/06/14 - 09:20

Discussions of copyright and religion are fraught with risk for the same reason; that it is extremely difficult to find middle ground.

Two weeks ago, an article in the Huffington Post raised what, on the surface, looks like a clear-cut demonstration of violation of intellectual property rights. But, as is often the case with these rights, careful reading brings to light a more complex matter.

The article, published on 6 June 2016, concerns the work of Vancouver photographer, Dina Goldstein. Although the Huffington Post indicates that Goldstein is seeking damages from a foreign newspaper for its use of her work, the article does not identify which body of law is relevant to Goldstein’s claim. Goldstein is entitled to be offended by the criticism levied at her; however, it is open to debate as to whether any laws were broken at all.

Images from Goldstein’s collection Fallen Princesses were used to support an argument from the Irish Catholic newspaper Alive!, of the need for families to raise children with hope. Specifically, the hope that arises from the Christian faith: “The sure hope of heaven gives us a joy here and now that even suffering cannot undermine. The fairy tales have it right.” The Huffington Post quotes Goldstein as saying:

My photograph … was deliberately manipulated into forming a criticism about parents who do not promote religion within the household. This sentiment is seething with the classic Catholic guilt trip I reject … In fact, this argument is completely opposed to my own way of raising a family, without religion.

In the same article, Goldstein acknowledges that her “socially critical work is ‘meant to attract discourse.'” However, the photographer objected “to the newspaper’s cover displaying neither a credit to her, nor an indication there’s a relevant story inside.”

Closer examination of both the Alive! cover and the accompanying article do not easily support these remarks. It is true that the Alive! cover does not make mention of Goldstein by name, but there is a reference to an article in the lower right hand corner: “Being a child of parents with no faith is tough, see page 7.”

On page seven, the article begins with: “Photographer Dina Goldstein … .” The article deals with Goldstein’s work in depth, detailing highlights of the collection and Goldstein’s philosophy about the collection. In terms of crediting a creator, or invoking a creator’s work to a specific cause, these are matters of moral rights which serve to protect the personal connection between art and artist. As most readers know, the scope of protection varies. However, among observing countries, the right of attribution (acknowledging the creator) and integrity (treating the work with respect) are common. Ireland observes both (so too does Canada).

But the immediate question is whether moral rights prescribe a specific placement of attribution? Irish law is silent as to how attribution should be carried out. Known as the paternity right in their Copyright and Related Rights Act, Chapter 7 – Section 107 states: “ … the author shall have the right to be identified as the author and that right shall also apply in relation to an adaptation of the work.” Thus it is plausible that crediting Goldstein through the article would serve as observant of moral rights under Irish law.

[As an aside, the Copyright Act of Canada is slightly more detailed in its language of moral rights: “The author of a work has …  the right to the integrity of the work and, …  where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.” But the caveat of “where reasonable in the circumstances” also allows for the possibility that the attribution might not be placed according to the creator’s wishes.]

On the matter of the integrity of the work, Irish law is quite intriguing. Chapter 7 – Section 108 states: “… the author of the work shall have the right to object to any distortion, mutilation, or other modification of, or derogatory action in relation to, the work which would prejudice his or her reputation …” (emphasis mine). The two photographs of Goldstein’s, portrayed by Alive!, were not distorted, mutilated or modified. The representation is faithful to Goldstein’s original images. But we should consider the possibility that featuring Goldstein’s work in the newspaper, is a “derogatory action … which would prejudice his or her reputation.”

The Alive! article quotes Goldstein as saying: “I am a fierce realist so I wanted the princesses to be in real life situations with problems of their own.” The article further quotes Goldstein as “raging against the happily-ever-after motif” spoon-fed to the young. Neither quotation is attributed to any particular press interview or article, but Goldstein’s website contains an extensive collection of material so it is plausible that these quotations are accurate. Alive! uses Goldstein’s work and her remarks as a background to advance their own argument; that believing in “happily ever after” is a fundamental belief, and a worthwhile one, in the Christian tradition.

At this stage, a claim based upon moral rights infringement looks less robust; rather than a violation of moral rights, the use of the images melds well with fair dealing. In Ireland, like Canada, criticism and review are protected purposes if the creator receives sufficient acknowledgement (see Chapter 6 – Section 51). It would not be possible to convey the force of Goldstein’s work, without showing some of the work. Where Alive! may have erred, is to speculate that Goldstein’s work is deliberately an attack on Christianity and a style of parenting. From the article:

But is [Goldstein] raging against the Christian message of hope in the fairy stories or against the culture of despair which has infiltrated both society and her own life? She seems to think we should stop telling children stories with happy endings. That kids need to realize that real life stories don’t end that way.

Alive! continues in this vein, about people who have lost sight of God, emphasizing that “hope and happiness, not despair, are the realistic attitude to life.”

Goldstein has not been shy about voicing her views on religion; but she has also articulated that her work is art, not a parenting manual. In 2009, when Fallen Princesses was unveiled, Cheryl Rossi, writing for Vancouver Courier, states:

Her Fallen Princesses photos aren’t meant for kids, Goldstein says, and she’s not shielding her daughter, now four, from Disney. “I don’t want to ruin her bubble,” she said. “She’ll learn that life is complicated and tough eventually.”

In a more recent interview Goldstein states that she would not deprive her young daughters of the enjoyment of Disney productions or merchandise, emphasizing that children are too young to understand the concepts behind Goldstein’s imagery. Goldstein is unequivocal: “These images are made for adults.”

So is there a legitimate complaint here, and if so, what is it? Was the photograph unfairly used in a manner that is derogatory to Goldstein’s reputation? Have the musings of Alive! cast aspersions to Goldstein’s character? Or, was the condemnation of Goldstein’s work merely criticism? Criticism that necessarily required explanation and therefore invocation of Goldstein’s work?

And if there is a complaint, is there an avenue of redress for Goldstein? I am unfamiliar with the sturdiness of Ireland’s regimes of fair dealing, moral rights and defamation; if an Irish reader would like to comment, please do.

On a different note, Goldstein’s work is phenomenal. In an interview with Fanny Kiefer, Goldstein remarks: “… [the] characters are symbols, to convey a scenario.” Fallen Princesses is dramatic and touches a chord by the recasting of familiar characters among the all-too-real feelings of desperation that pervade life. The rude-awakening that marriage can be, the trauma of cancer, and other realities, are conveyed masterfully.

With my bent for maintaining copyright as a set of limited rights (as it has been for 305 years), the best part of Goldstein’s work is this: no reprisals from the Disney Corporation. When questioned by Kiefer as to whether Goldstein had sought permission from Disney, and did Disney call upon publication of the pictures, the answer to both questions was No.

Nor should there have been any reason for Disney involvement. But the persona of Disney and its ironclad grip upon its characters is legendary to the point of discouraging putative artists and even well-heeled lawyers from using Disney materials. Goldstein’s story is a happily-ever-after of an entirely different nature.


Congress’ Fast Track to Bad Law

Freedom to Tinker - Fri, 2015/06/12 - 12:44
Congress appears poised to pass Trade Promotion Authority, otherwise known as “fast track,” for the Trans Pacific Partnership Agreement (TPP). If this happens, it will likely close the door to any possibility of meaningful public input about TPP’s scope and contours. That’s a major problem, as this “21st century trade agreement” encompassing around 800 million people in […]

B.C. Court of Appeal Upholds Global Deletion Order Against Google

Michael Geist Law RSS Feed - Fri, 2015/06/12 - 08:32

The B.C. Court of Appeal has released its decision in Equustek Solutions Inc. v. Jack, a closely watched case involving a court order requiring Google to remove websites from its global index. As I noted in a post on the lower court decision, rather than ordering the company to remove certain links from the search results available through Google.ca, the order intentionally targets the entire database, requiring the company to ensure that no one, anywhere in the world, can see the search results. That post notes:

The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country.

The B.C. Court of Appeal decision addresses two key jurisdiction questions: first, whether the court can assert jurisdiction over Google; and second, whether the court order can extend beyond Canada.

The first question is relatively easy. While Google argued that it does not have servers or offices in B.C., the court concluded that it still has a real and substantial connection to the province:

While Google does not have servers or offices in the Province and does not have resident staff here, I agree with the chambers judge’s conclusion that key parts of Google’s business are carried on here. The judge concentrated on the advertising aspects of Google’s business in making her findings. In my view, it can also be said that the gathering of information through proprietary web crawler software (“Googlebot”) takes place in British Columbia. This active process of obtaining data that resides in the Province or is the property of individuals in British Columbia is a key part of Google’s business.

The reference to Google collecting information in the province is an aggressive jurisdictional approach. Given that search engines (and many other sites) collect data from around the world, the B.C. Court of Appeal analysis would open the door to courts asserting jurisdiction over many websites and online services with limited connections to the jurisdiction. Indeed, this would seemingly be true even if the site had no business in the jurisdiction.

The second jurisdictional question spurred interventions from groups like EFF and CCLA, who were concerned with the free speech implications of a court order applied to the Internet far beyond B.C. On this issue, the court was not troubled by an order that applies beyond provincial borders, stating:

British Columbia courts are called upon to adjudicate disputes involving foreign residents on a daily basis, and the fact that their decisions may affect the activities of those people outside the borders of British Columbia is not determinative of whether an order may be granted.

Moreover, it noted that courts in other countries that have issued orders with international effects. Decisions cited include the infamous Yahoo France case and the recent right to be forgotten decision from EU. While those decisions might have been used to signify the need for caution, the court concluded that “international courts do not see these sorts of orders as being unnecessarily intrusive or contrary to the interests of comity.”

In light of the appellate decision, my conclusion from the earlier ruling remains unchanged:

While there is much to be said for asserting jurisdiction over Google – if it does business in the jurisdiction, the law should apply – attempts to extend blocking orders to a global audience has very troubling implications that could lead to a run on court orders that target the company’s global search results.

Google is reported to be reviewing the judgement with Internet law watchers waiting to see if it seeks leave to appeal to the Supreme Court of Canada.

The post B.C. Court of Appeal Upholds Global Deletion Order Against Google appeared first on Michael Geist.

Liberals and NDP Call for Disclosure of Online Video Provider Revenues and Subscriber Data

Michael Geist Law RSS Feed - Thu, 2015/06/11 - 10:49

The Standing Committee on Canadian Heritage concluded a study on the Canadian film industry this week, releasing a report that lists 11 recommendations that generally call for continued industry support. The NDP and Liberals both issued supplementary opinions in which they called for requirements that online video providers (such as Netflix) disclose revenues, Cancon availability, and subscriber numbers to Canadian officials. The NDP recommendation:

the NDP fully supports the recommendation made by Carolle Brabant of Telefilm Canada, who argued that it is vital for over-the-top services to be able to do what traditional platforms and media do, namely, provide government authorities with detailed information about their services, such as consumers’ habits, the Canadian films available, the revenues generated and the costs associated with such services.

The Liberals issued a similar recommendation:

It is recommended that the Department of Canadian Heritage and the (CRTC) gather data on over-the-top services, with particular focus on consumer habits, availability of Canadian films, and revenues and expenses associated with these services.

The issue of data disclosure has been a contentious one, with companies such as Netflix and Google refusing to provide the CRTC with confidential information during the TalkTV hearings, leading to a high-profile showdown on the issue. Better information is obviously important, but the challenge is how to gather that information. Voluntary disclosure would address the issue, but if providers are unable or unwilling to comply, gathering such information brings up the thorny world of regulating online video providers with rules that mandate disclosure to the CRTC and/or the government.

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Netflix vs. CraveTV: More Than 90% of CraveTV Titles Are Not Available On Netflix U.S. or Canada

Michael Geist Law RSS Feed - Tue, 2015/06/09 - 08:30

Bell’s recent characterization of Canadians using virtual private networks to access U.S. Netflix as thieves has attracted considerable attention. Yesterday, I posted on why accessing U.S. Netflix is not theft, noting that a minority of Canadian Netflix subscribers use VPNs and arguing that the frustration seems rooted in business concerns rather than legal ones. The post added that Netflix and CraveTV (Bell’s online video service) have little overlap in content. Working with Kavi Sivasothy, one of my research students, we took a closer look at the libraries of Netflix U.S., Netflix Canada, and CraveTV. We relied on AllFlicks.net for the Netflix data and CraveTV’s own A to Z page for its data.

Based on that information, how many titles does CraveTV offer that overlap with Netflix U.S. and are not available on Netflix Canada? Not many. In fact, the data suggests that there are some CraveTV titles that are not available on Netflix U.S., but are available on Netflix Canada. Overall, more than 90 percent of CraveTV’s titles are not available on either Netflix U.S. or Netflix Canada. [UPDATE: Thanks to a reader for pointing out a few omissions from the chart. The error was due to different spelling in the Netflix and CraveTV lists. The numbers have been updated].

CraveTV currently offers 403 titles. Of those, 36 are available on Netflix U.S. but not Netflix Canada. Notable titles include 30 Rock, Cheers, Everybody Loves Raymond, The West Wing, and Twin Peaks.

However, there are also eight titles that are available on CraveTV and Netflix Canada, but not the Netflix U.S. service, including Community and Homeland. Further, there are another eight programs that are available on all three services including Doctor Who, Friday Night Lights, and Weeds. A chart of the overlap between the three services:

CraveTV and Netflix U.S. CraveTV and Netflix Canada CraveTV, Netflix U.S., Netflix Canada 30 Rock
Alias
Arrow
Bitten
Blue Bloods
Cheers
Everybody Loves Raymond
Flashpoint
Frasier
Freakshow
Graceland
Heart of Dixie
Homefront
Hostages
JFK – The Smoking Gun
Marvel’s Agents of S.H.I.E.L.D.
Nikita
Reign
Rescue Me
Salem
Satisfaction
Sirens
Star Trek – Deep Space Nine
Star Trek – Enterprise
Star Trek – The Animated Series
Star Trek – The Original Series
Star Trek – Voyager
The Borgias
The Colony
The Escape Artist
The Following
The L Word
The Tomorrow People
The West Wing
Twin Peaks
United States of Tara Batman
Batman Returns
Brotherhood
Community
Homeland
Shame
The Hour
The Shield Anger Management
Damages
Doctor Who
Friday Night Lights
Merlin
Star Trek: The Next Generation
The Fall
Weeds

Based on the overlap data, VPN usage should be a minor competitive issue for CraveTV. There may be many people using it, but the numbers using VPNs to access titles that are available on CraveTV is likely to be quite small. The far bigger issue for CraveTV is the sheer size of the Netflix U.S. and Netflix Canada libraries. CraveTV has some good content, but at 403 titles it is tiny in comparison with both of those services. Netflix Canada currently lists over 3,700 shows and movies, making the number of titles in its library nine times larger than CraveTV. With over 7,300 shows and movies, Netflix U.S. is nearly twice of the size of the Canadian version, which helps explain why some Canadians seek out the greater choice.

Moreover, the services have different business models. Netflix is available to anyone with Internet access, making its content available on a wide range of devices and not requiring a television subscription. By contrast, as a Rogers subscriber at home, I cannot subscribe to CraveTV, which is available only to those with television subscriptions from certain service providers. That means CraveTV reaches only part of the Canadian market and effectively carries a much higher monthly cost than Netflix (CraveTV alone may be cheaper, but it cannot be bought on its own).

The post Netflix vs. CraveTV: More Than 90% of CraveTV Titles Are Not Available On Netflix U.S. or Canada appeared first on Michael Geist.

Canadian copyright reform for people with print-disabilities

Sara Bannerman - Tue, 2015/06/09 - 06:34
Yesterday Industry Minister Candice Bergen introduced Bill C-65, the Support for Canadians with Print Disabilities Act  for first reading in Canadian Parliament.  The Act will allow Canada to ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

Among other things, the bill would allow non-profit organizations acting for the benefit of persons with a print disability to create accessible-format works and provide those works (or access to those works) to people with print disabilities and to non-profit organizations acting for their benefit outside of Canada (s. 32.01 (1)) on payment of royalties set by regulation (s. 32.01 (4)).  It would also allow the circumvention of TPMs for these purposes (s. 41.16).  The Act sets out reporting requirements (32.01(6)) and requirements that contracts be put in place with outside organizations regarding the use of the works (32.01(7)(a)).

This is a welcome move.  It would facilitate access to books and other copyright materials around the world, allowing Canadian organizations to work with their counterparts in other countries to make works accessible.   It would also make Canada the first G7 country to ratify the Marrakesh Treaty.

TRC could do more for Aboriginal People's media

Sara Bannerman - Mon, 2015/06/08 - 11:35
The Truth and Reconciliation Commission of Canada (TRC), commissioned to investigate a century of abuse of Aboriginal peoples at Canadian Indian Residential Schools, last week released its findings and calls to action.  Among its 94 calls to action were several dealing with "media and reconciliation", as well as calls related to "educating journalists for reconciliation" (pp. 341-345). While its recommendations are helpful, it could have done more.

The Commission rightly points to the deficiencies of Canadian broadcasting policy, as set by the Canadian Broadcasting Act, which requires the Canadian broadcasting system to reflect "the special place of aboriginal peoples within [Canadian] society" (s. 3.1.d.iii).  However, the Act requires only that programming reflect Aboriginal culture "as resources become available for the purpose" (s. 3.1.o). Furthermore, while the Canadian broadcasting system is required to broadcast in English and French in equivalent quality, the Act sets out no requirement to broadcast in Aboriginal languages.

The TRC discusses the role of just two media outlets in furthering reconciliation: the CBC and the Aboriginal Peoples Television Network (APTN)[1].  It notes that budget cuts have reduced the CBC's "capacity to provide Aboriginal programming".  It therefore calls for greater funding for the CBC.  It also notes that the APTN "is well positioned to provide media leadership to support the reconciliation process." It therefore calls on APTN to continue developing media initiatives to "educate the Canadian public, and connect Aboriginal and non-Aboriginal Canadians."

Colby Nash has criticized the TRC for recommending increased funding to the CBC, whose Aboriginal programming has been minimal, rather than recommending increased funding of the APTN.  The CBC, after all, as MacLennan has noted[2], has its own history of cultural imperialism. The APTN, with increased funding he notes, could make many contributions:
APTN could expand into aboriginal-language Web offerings; it could develop totally separate content streams for major aboriginal language groups. It could get into community radio. It could fund scholarship, translations, poetry. You can think of a hundred new ideas without breaking a sweat.Other entities could also play a role.  Private broadcasters, which receive only a passing mention in the summary of findings, obviously play a significant role in media representations of Aboriginal peoples.  As Fleras writes, "mainstream media provide a key cross over point for intercultural understanding and exchanges" (169).  At the same time, changing mainstream media is a difficult task:
the very changes that minorities want of newsmedia (responsible coverage of minority interests, less sensationalism, more context, toned-down language, and less stereotyping) are precisely the newsnorms that media rely on to sell copy or capture eyeballs.  Challenging the conventional news paradigm will prove a difficult sell. (Fleras, 170)The CRTC could also play a role; while it recognized APTN as a national network in 1999, its Native Broadcasting Policy has not been reviewed since 1990.

Perhaps most importantly, while the Commission notes that it received submissions calling for revision of the Broadcasting Act to correct the inadequacy with which the Act addresses Aboriginal media, the Commission fails to call for such revision.  The Broadcasting Act  has not been revised since 1991.

The TRC should go further to discuss the role of mainstream media in reconciliation, to recommend a review of the CRTC's Native Broadcasting Policy, and to recommend revision of the Broadcasting Act to better fund, expand, and prioritize APTN and other Aboriginal media endeavors.


---
[1] See Lorna Roth's excellent book on the history of the APTN.
[2] MacLennan, Anne F. "Cultural imperialism of the North? The expansion of the CBC Northern Service and community radio." Radio Journal: International Studies in Broadcast & Audio Media 9.1 (2011): 63-81.

Sorry Bell, Accessing U.S. Netflix is Not Theft

Michael Geist Law RSS Feed - Mon, 2015/06/08 - 10:32

Bell Media president Mary Ann Turcke sparked an uproar last week when she told a telecom conference that Canadians who use virtual private networks (VPNs) to access the U.S. version of Netflix are stealing. Turcke is not the first Canadian broadcast executive to raise the issue – her predecessor Kevin Crull and Rogers executive David Purdy expressed similar frustration with VPN use earlier this year – but her characterization of paying customers as thieves was bound to garner attention.

My weekly technology law column (Toronto Star version, homepage version) argues that Turcke’s comments provide evidence of the mounting frustration among Canadian broadcasters over Netflix’s remarkable popularity in Canada. Netflix launched in Canada less than five years ago, yet reports indicate that it now counts 40 per cent of English-speaking Canadians as subscribers. By contrast, Bell started its Mobile TV service within weeks of the Netflix launch, but today has less than half the number of subscribers.

While Canadian broadcasters may be unhappy with subscribers that access the U.S. service, the problem is primarily a competitive issue, not a legal one. Some estimate that 25 per cent of Canadian subscribers have used a VPN to access Netflix. That means 75 per cent of subscribers – millions of Canadians – are content with the Canadian service that offers the largest Netflix library of content outside of the U.S.

Turcke’s claim that the minority of Canadian subscribers who access U.S. Netflix through VPNs are “stealing” simply does not withstand legal scrutiny. Those subscribers might be breaching the Netflix terms and conditions, but that is not breaking the law.

Similarly, arguments that the subscribers violate copyright law are very weak. There might be claim that subscribers circumvent geographic restrictions (thereby violating new rules against circumventing technological protection measures), but there are no damages involved and it is up to Netflix to enforce its rights to counter the circumvention. Since there is no chance the company will sue its customers, the focus on legal remedies is misplaced.

Bell’s insistence that VPN usage creates a problem is not very convincing. Under the current system, consumers pay for content, Netflix is paid for its service, and Netflix compensates creators in multi-million dollar licensing deals. If content owners were seriously concerned with VPN usage, they could simply refuse to license their content to Netflix until it cracked down on the practice.

Moreover, Bell and Netflix employ different business models (Bell’s CraveTV requires a broadcast subscription) and feature little overlap in content. Given the differences, Canadians accessing U.S. Netflix are not doing so to access content that is otherwise available on Bell’s service.

Bell’s emphasis on VPNs also fails to acknowledge that the technology has multiple uses. Privacy protection is among the most important uses, since VPNs allow users to conduct secure communications away from the prying eyes of widespread government surveillance. Bell’s comments may leave some Internet users thinking that VPNs are “socially unacceptable” when precisely the opposite is true.

Ultimately, the decision to target Netflix smacks of business desperation rather than legal anger. Bell’s strategic vision of being Canada’s largest vertically integrated communications company has taken repeated hits in recent months.

The Privacy Commissioner of Canada ruled against its targeted advertising program, which the company subsequently dropped. Meanwhile, the Canadian Radio-television and Telecommunications Commission implemented vertical integration safeguards to prevent market abuse, ruled that Bell’s Mobile TV service violated the law, and ordered broadcast distributors to offer channels on a pick-and-pay basis. That is likely to spell the demise of some of Bell’s highly profitable, but little watched channels that benefit from favourable bundling.

The reality is that Netflix is increasingly licensing content on a global basis, particularly with its investment in original shows such as House of Cards and Daredevil. As its global library grows, consumer interest in VPNs will further subside, leaving Canadian broadcasters with one less excuse to explain why subscribers are jumping to competitors.

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Why Accessing U.S. Netflix is Not Theft

Michael Geist Law RSS Feed - Mon, 2015/06/08 - 10:26

Appeared in the Toronto Star on June 6, 2015 as Sorry Bell, Accessing U.S. Netflix Is Not Theft

Bell Media president Mary Ann Turcke sparked an uproar last week when she told a telecom conference that Canadians who use virtual private networks (VPNs) to access the U.S. version of Netflix are stealing. Turcke is not the first Canadian broadcast executive to raise the issue – her predecessor Kevin Crull and Rogers executive David Purdy expressed similar frustration with VPN use earlier this year – but her characterization of paying customers as thieves was bound to garner attention.

Turcke’s comments provide evidence of the mounting frustration among Canadian broadcasters over Netflix’s remarkable popularity in Canada. Netflix launched in Canada less than five years ago, yet reports indicate that it now counts 40 per cent of English-speaking Canadians as subscribers. By contrast, Bell started its Mobile TV service within weeks of the Netflix launch, but today has less than half the number of subscribers.

While Canadian broadcasters may be unhappy with subscribers that access the U.S. service, the problem is primarily a competitive issue, not a legal one. Some estimate that 25 per cent of Canadian subscribers have used a VPN to access Netflix. That means 75 per cent of subscribers – millions of Canadians – are content with the Canadian service that offers the largest Netflix library of content outside of the U.S.

Turcke’s claim that the minority of Canadian subscribers who access U.S. Netflix through VPNs are “stealing” simply does not withstand legal scrutiny. Those subscribers might be breaching the Netflix terms and conditions, but that is not breaking the law.

Similarly, arguments that the subscribers violate copyright law are very weak. There might be claim that subscribers circumvent geographic restrictions (thereby violating new rules against circumventing technological protection measures), but there are no damages involved and it is up to Netflix to enforce its rights to counter the circumvention. Since there is no chance the company will sue its customers, the focus on legal remedies is misplaced.

Bell’s insistence that VPN usage creates a problem is not very convincing. Under the current system, consumers pay for content, Netflix is paid for its service, and Netflix compensates creators in multi-million dollar licensing deals. If content owners were seriously concerned with VPN usage, they could simply refuse to license their content to Netflix until it cracked down on the practice.

Moreover, Bell and Netflix employ different business models (Bell’s CraveTV requires a broadcast subscription) and feature little overlap in content. Given the differences, Canadians accessing U.S. Netflix are not doing so to access content that is otherwise available on Bell’s service.

Bell’s emphasis on VPNs also fails to acknowledge that the technology has multiple uses. Privacy protection is among the most important uses, since VPNs allow users to conduct secure communications away from the prying eyes of widespread government surveillance. Bell’s comments may leave some Internet users thinking that VPNs are “socially unacceptable” when precisely the opposite is true.

Ultimately, the decision to target Netflix smacks of business desperation rather than legal anger. Bell’s strategic vision of being Canada’s largest vertically integrated communications company has taken repeated hits in recent months.

The Privacy Commissioner of Canada ruled against its targeted advertising program, which the company subsequently dropped. Meanwhile, the Canadian Radio-television and Telecommunications Commission implemented vertical integration safeguards to prevent market abuse, ruled that Bell’s Mobile TV service violated the law, and ordered broadcast distributors to offer channels on a pick-and-pay basis. That is likely to spell the demise of some of Bell’s highly profitable, but little watched channels that benefit from favourable bundling.

The reality is that Netflix is increasingly licensing content on a global basis, particularly with its investment in original shows such as House of Cards and Daredevil. As its global library grows, consumer interest in VPNs will further subside, leaving Canadian broadcasters with one less excuse to explain why subscribers are jumping to competitors.

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

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