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Telus vs. Telus: Who Do You Believe on Wireless Competition in Canada?

Michael Geist Law RSS Feed - Thu, 2018/08/09 - 09:47

The state of Canadian wireless competition has been a much-discussed issue in recent years with numerous reports providing evidence that Canadians pay some of the highest rates in the world. In fact, even the Competition Bureau has concluded that “market power concerns persist in the Canadian wireless industry” and “when market power is exercised, prices are higher, and wireless penetration is lower, than in a market that is competitive.” In response to the Competition Bureau’s report, Telus argued that the CRTC should “reject the Bureau’s submission in its entirety.”

While that response isn’t particularly surprising, what is notable is how the company says different things to different audiences on the issue of wireless competition. For example, last week Telus CEO Darren Entwistle discussed marketplace competition in the company’s quarterly conference  call with business analysts. Entwistle maintained that “we got more competitors in the wireless industry in Canada than just about any country in the world”, adding that the competitive intensity was “bordering on the irrational.” As an example, he cited new data promotions that are reducing growth of average billing per user (ABPU), claiming that the promotions come from competition between the big three, not as a result of new entrants:

Reading between the lines in your question in terms of ABPU pressure, it wasn’t ABPU pressure geographically that would come from, let’s say, a new entrant like Freedom. That would be a wrong conclusion to reach. I think the ABPU pressure is related to the competitive intensity between TELUS, Rogers and Bell. And amongst that group, the entities that are leading rate-based promotions and the data dilution that we’ve seen in terms of growth in the data bucket for the same or less money reflective of things like massive gigabyte promotions that are dilutive.

Yet that is not what Telus itself recently told the CRTC. In commenting on the competitive marketplace, Telus stated:

In December 2017, the national wireless providers offered promotional wireless plans of $60/month for 10GB of data and unlimited Canada-wide voice and text for customers bringing their own device. These plans were in response to Freedom Mobile’s “Big Gig” promotion, offering 10GB of data for $50.

The Telus statement to the CRTC is consistent with media coverage at the time, which widely reported the attempts to match pricing as resulting from competition from a new entrant. The recent attempt by Entwistle to forestall potential new regulatory intervention by claiming irrational wireless competition in Canada and suggesting that the big three alone drive competitive intensity is simply inconsistent with the experience of most Canadians and the views of the Competition Bureau, leaving the company in the awkward position of saying one thing to the regulator and another to the business community.

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Behind Ryerson’s Support for Site Blocking: Bell Reviewed Draft Submission, Was Warned It Did Not Represent Faculty View

Michael Geist Law RSS Feed - Wed, 2018/08/08 - 09:10

Having examined how Brock University and George Brown College (part one and part two) came to support the Bell coalition website blocking plan, this post relies on Ryerson documents obtained under access to information laws to reveal how Charles Falzon, Ryerson’s Dean of Communications and Design, came to write in support of the site blocking plan. Much like the other two institutions, Falzon was approached by Mark Milliere, a Bell executive, asking for Ryerson’s support for the initiative.

 

Milliere to Falzon email, obtained under FIPPA

 

Falzon proceeded to discuss internally and – much like George Brown College – was warned that public support would likely spark internal dissent. In fact, the Ryerson communications team even identified specific professors who were likely to publicly comment against the proposal.

 

Ryerson audit, obtained under FIPPA

 

Given the likely opposition, Falzon warned Bell that his letter could not formally represent the entire faculty at Ryerson.

 

Falzon not whole university email, obtained under FIPPA

 

Falzon decided to forge ahead anyway, providing Bell with a draft and inviting comments.

 

Falzon draft, obtained under FIPPA

 

Bell approved the letter and asked for it to be provided on faculty letterhead.

 

Milliere response to draft, obtained under FIPPA

 

Despite the fact that Bell was advised that the Falzon letter was not representative of the faculty, it nevertheless framed the submission as support from “universities and colleges training future leaders in media, video production, and game development” in its reply comments to the CRTC. Moreover, Milliere never made the limitation clear to Brock University or George Brown College when he shopped around the Falzon letter as a template example of support.

In fact, the Falzon-Milliere exchange on the resulting letter is interesting as it suggests that Falzon may not have been fully aware that the letter was ultimately to be submitted as part of a regulatory process at the CRTC. After Milliere advised Falzon that the letter should be addressed to the CRTC,

 

Milliere response address to CRTC, obtained under FIPPA

 

Falzon oddly responded “wow that’s amazing”, as if surprised that the letter would be going to the regulator rather than simply representing a personal letter of support. He also thanked Bell for its “ongoing support.”

 

Falzon wow, obtained under FIPPA

 

The Falzon submission to the CRTC was formally filed a month after the letter was provided to Bell. Interestingly, Ryerson did not provide any records related to the formal submission (records that would have been caught by the access-to-information request and which were provided by both Brock and George Brown College), raising some question as to who actually filed the letter with the CRTC. Regardless, the documents raise doubts about claims the letter is representative of the faculty or institution with Falzon acknowledging faculty opposition and warning that he could not speak on its behalf. Further, even as Bell supporters criticize civil society groups for encouraging public participation, the documents confirm the role Bell played in manufacturing supportive submissions, pressuring university and college executives to provide public support, reviewing drafts before submission, and subsequently shopping them to other schools.

 

The post Behind Ryerson’s Support for Site Blocking: Bell Reviewed Draft Submission, Was Warned It Did Not Represent Faculty View appeared first on Michael Geist.

“One of Our Key Hiring Companies”: The Missing Link in the George Brown College Support for Bell’s Site Blocking Plan

Michael Geist Law RSS Feed - Tue, 2018/08/07 - 09:05

Earlier this year, I posted the results of an access to information request to George Brown College (GBC) that sought to explain how the college came to publicly support the FairPlay website blocking proposal at the CRTC. Much like similar documents from Brock University, the George Brown College documents showed a request from Mark Milliere, an executive at Bell-owned TSN, about a week before the deadline sparked the submission. The resulting letter, which came from GBC President Anne Sado, was cited by the Bell-led coalition in its reply letter to the CRTC.

More recently, I obtained some additional documents from GBC that were initially withheld due to a third party consultation. The documents indicated that the Bell lobbying of GBC actually started much earlier. In fact, nearly a month before Milliere email, Mike Fenton, the CEO of the Association for Corporate Growth – Toronto wrote to GBC President Anne Sado to urge her to discuss supporting the Bell initiative with Milliere. As this site reveals, Fenton and Milliere had worked together on GBC initiatives and they appear (along with Sado) at the Canadian Sport Business Awards.

The email notes that “as a long time supporter of GBC and the 5 To Watch Awards, as well as one of the key hiring companies of our Sport & Event Marketing graduates – Mark was looking for some input on behalf of the College.”

 

Fenton email to Sado, obtained under FIPPA

That request led to an email from Milliere the next day to Sado asking when she had time for a call. Several weeks later, Milliere followed up with the email reminding of the request for a submission and the College filed on behalf of the FairPlay coalition. At a time when public interest groups are facing intense criticism for seeking to galvanize broader participation in policy and regulatory matters, it is notable how the larger corporate organizations work to manufacture their support. More on those efforts with a look at the experience at Ryerson University in a post later this week.

The post “One of Our Key Hiring Companies”: The Missing Link in the George Brown College Support for Bell’s Site Blocking Plan appeared first on Michael Geist.

CRTC Truthiness: New Docs Reveal New Story About Bell Meetings with the Commission on Website Blocking

Michael Geist Law RSS Feed - Thu, 2018/07/26 - 09:41

Earlier this year, access to information documents obtained by the Forum for Research and Policy in Communications revealed that Bell had presented its plan for website blocking to CRTC officials months before it was formally filed to allow for public review and comment. As far back as July 2017, Bell pressed a CRTC commissioner for a meeting, which led to a Commission presentation in September 2017. The CRTC downplayed the meeting, telling reporters in response to queries that there was a meeting with Commission legal staff on September 21, 2017.

 

Millington meeting, obtained under ATIP

 

Further, when asked by the Wire Report about two meetings last October reported by Bell in the lobbyist registry with Scott Hutton, the CRTC’s Executive Director of Broadcasting (and Acting Secretary General last fall), the CRTC responded that there was only one meeting and that it did not involve FairPlay.

 

crtc wire report response, obtained under ATIP

Newly obtained documents obtained under the Access to Information Act tell a different story. Bell properly registered its meetings in the lobbyist registry, but the CRTC’s response to reporter questions was far less fulsome. First, there were in fact two Bell meetings with Hutton in October: one on October 5th and another October 30th. The CRTC’s claim that there was only one meeting was inaccurate. When asked about the documentation, a CRTC spokesperson acknowledged that the October 30th meeting took place over breakfast at the ADISQ radio awards to discuss radio issues. Despite the inaccuracy, the CRTC spokesperson inexplicably claimed that the “information previously provided to a reporter was accurate.”

Second, the two October meetings were not the only Hutton meetings with Bell. Documents reveal that Hutton also met with Bell on September 21st, immediately after the meeting with CRTC legal staff.

 

Hutton meeting, obtained under ATIP

The Hutton meeting is not registered in the lobbyist registry because Hutton was not Acting Secretary General at the time and the meeting was therefore not reportable under the Access to Information Act. As for the substance of the meeting, the CRTC says that site blocking was not discussed, rather “various broadcasting matters.”

In other words, according to the CRTC and now-public records, Bell executive Rob Malcolmson asked a CRTC commissioner for a meeting on site blocking in July, raised site blocking before a House of Commons committee on September 20th, delivered a full powerpoint presentation to CRTC staff on site blocking on September 21st, and then walked down the hall to meet with the CRTC’s Executive Director of Broadcasting but did not bother to mention the issue.

Irrespective of the credibility of the CRTC’s rendition of what occurred, the documents again highlight the risks associated with backroom, secret meetings on policy proposals, which the Commission itself admits may not need to be publicly disclosed. Reforms to the access-to-information system to ensure those meetings with senior Commission officials are captured under the law are long overdue.

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Court Rules Quebec Plan for Mandated ISP Blocking of Online Gambling Sites is Unconstitutional

Michael Geist Law RSS Feed - Tue, 2018/07/24 - 10:58

The Quebec Superior Court has ruled that the provincial rules creating a mandated ISP blocking system for unlicensed online gambling sites is unconstitutional. The provincial government introduced the rules in 2015, which create a list of unlicensed sites that ISPs must block or face financial penalties. While the government tried to frame the blocking system as a health and safety measure, it was always obvious from its own documentation that the plan was primarily focused on increasing revenues of Loto-Quebec, a provincially licensed online gambling site.

The mandated blocking scheme was legally vulnerable in several respects including the inconsistency of the rules with exclusive federal jurisdiction over telecommunications, net neutrality, and freedom of expression protections. The CRTC issued a decision in 2016 that the Quebec law encroached on its powers but it held off formally addressing the issue pending a court challenge filed by the telecom industry, which unsurprisingly focused on the constitutionality of provincial rules.

The court’s analysis delves into the creation of the rules and finds that its pith and substance was to increase provincial revenues and that it only affects health “very indirectly.” The court has little trouble concluding that the rules are unconstitutional as ultra vires the powers of the province [Google Translate version]:

The Tribunal has no hesitation in concluding that both the object and the effects of the Provincial Provision are, despite the social law in which the provincial legislature chose to insert it; a provision that operates directly in two areas of exclusive federal jurisdiction: telecommunications and the criminal law. The legal and practical effects of the Provincial Disposition are to govern gambling online through ISPs, which neither provincial jurisdiction authorizes. Its pith and substance is to prevent online gambling not set up and operated by the province from being “communicated” by ISPs and not the protection of consumers or their health. As in Johnson and Rogers cited above, the Tribunal considers that the Provincial Provision and in particular its section 260.35 must be ultra vires the powers of the province.

The Quebec government could still appeal the latest ruling, but its proposal was always on shaky legal ground.

The decision also includes a notable discussion on the CRTC’s net neutrality rules with implications for one of the arguments arising from the Bell website blocking coalition plan. The Quebec government argued that Section 36 of the Telecommunications Act permits an ISP to block illegal content. The court disagreed, citing the net neutrality rules and emphasizing that interfering with signals is limited to network threats:

In the Tribunal’s view, section 36 does not permit telecommunications companies to modify signals, whether legal or not, except in certain cases provided for in the regulatory policy such as the power to modify the signal to eliminate network threats. In fact, the CRTC left their door open as indicated by the Policy Telecom Regulatory 2009-657. The CRTC decides that the Internet traffic management practices (ITMPs) that ensure the protection or integrity of the network are not governed by this policy.

The link to network threats is important because supporters of the Bell site blocking plan (who argue that it does not implicate the net neutrality rules) cite the 2009 CRTC net neutrality decision reference to illicit materials, which they claim could include copyright infringing materials. In my discussion on the issue, I argue that the reference “clearly refers to network threats, not the content of the materials.” The court in this case agrees with the need for a link to network threats:

The CRTC refers, by way of example, to ITMPs that protect users against network threats such as the distribution of illicit material. What illegal material poses a threat to the network, the policy does not say so. The CRTC’s concern is to allow ISPs to do what is necessary to protect the security and integrity of the network. It is not immediately obvious that all types of illicit material threaten the security and integrity of the network. There is no proof that this is the case here.

The same reasoning would apply in the Bell website blocking case as the illegality of content – whether copyright infringement or online gambling – does not go directly to the security and integrity of the network. A CRTC ruling on the Bell plan is still forthcoming.

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The First Rule of Copyright Reform: Don’t Mess With Free Speech and Net Neutrality

Michael Geist Law RSS Feed - Tue, 2018/07/17 - 11:50

Countries around the world have been actively rethinking copyright for the digital age, grappling with the potential for the Internet and new technologies to facilitate new creativity and business models as well as the need for fair remuneration for content creators. The European Union has been particularly active on the issue with a two-year copyright reform process that was billed as providing an update for the digital environment.

As the process neared its conclusion earlier this month, the European Parliament experienced the equivalent of a copyright political earthquake. My Globe and Mail op-ed notes that hundreds of elected officials shocked observers by voting against quick approval of a reform package that would have led to blocked access to thousands of legitimate works through upload content filters alongside new “link taxes” that would have charged sites for linking to news stories online.

At the centre of the debate was Article 13, a provision was designed to limit the availability of infringing content on Internet platforms by requiring large sites to conduct automated reviews on content uploads through filtering software. The provisions were dubbed “censorship machines” due to concerns that the software would regularly block legitimate content.

Moreover, Article 11 would have granted publishers a new right requiring a licence for the use of snippets of journalistic online content. Viewed by critics as a “link tax”, similar approaches in Germany and Spain have largely failed to generate much revenue but have limited visibility of news content online.

The proposals could be revived in September, but the massive public backlash highlights the political risks when copyright encroaches on freedom of speech, privacy, and net neutrality. As Canada continues to weigh its own set of reforms, the European experience provides a timely reminder that striking the right balance on copyright is a challenging task.

What distinguishes the European copyright reform experience from others and what lessons might be learned for future efforts around the world?

One takeaway is that there are presently two kinds of copyright reforms. The first involves a conventional balancing of copyright interests, typically framed as creator rights on the one hand and users’ rights on the other. Ensuring both appropriate compensation and reasonable rights of access and reuse are invariably contentious, but they are largely limited to copyright-related considerations.

For example, the current Canadian copyright review before the Standing Committee on Industry, Science, and Technology has already heard from a wide range of stakeholders on issues such as fair dealing, the Canadian equivalent of fair use. There are legitimate arguments on both sides with data on publisher and author revenues, huge expenditures on digital licensing, and the link between copyright flexibility and innovation, but the debate is largely one about copyright.

This stands in marked contrast to the second kind of copyright reform, which uses law to mandate copyright enforcement through regulating technology and digital networks. Those proposals have implications that extend far beyond the copyright balance, sparking concerns related to freedom of expression, privacy, and net neutrality.

The defeat of the European proposals are a case in point.  Mandated filtering systems would have enormous implications for free speech online since some estimate that thousands of legitimate works would be blocked daily. Similarly, there are fears that a “link tax” would undermine one of the foundational benefits of the Internet, namely the freedom to effortlessly share information online through hyperlinking.

The European developments may have taken copyright lobby groups by surprise, but there is ample precedent for similar public engagement. In 2012, the European Parliament overwhelmingly voted against the Anti-Counterfeiting Trade Agreement, which had sparked protests in the streets of many countries as many feared its provisions would prioritize enforcement over personal privacy.

Earlier that year, there was outrage in the U.S. over the Stop Online Piracy Act (SOPA), which featured copyright enforcement measures that would have threatened user generated content and adversely affected critical Internet architectures. The public protests, which included massive petitions and website blackouts, led to a swift retreat from the bill’s backers.

In fact, Canada has been no stranger to popular copyright protests. In 2007, the government shelved a proposed copyright bill that adopted restrictive digital lock rules  after a public backlash. Years later, it passed legislation that included similar rules but sought to balance the provisions with new safeguards for user generated content and the removal of online content.

Copyright proposals that implicate freedom of expression, privacy, and net neutrality continue to dot the Canadian landscape. The Industry committee has heard from witnesses who want Internet providers to monitor all incoming traffic for copyright infringement, implement website blocking systems, create a Canadian version of a link tax, or levy new Internet access taxes to compensate for copyright use. Moreover, others want to retain strict digital lock rules that hamstring the ability to engage with copyright materials once they are in digital form.

The Canadian copyright reform process is hard enough without venturing into technological and network-based reforms that could lead to hurt free speech, lead to greater surveillance, and undermine net neutrality. This month’s copyright earthquake may have originated in Europe, but its aftershocks are likely to be felt in Canada.

The post The First Rule of Copyright Reform: Don’t Mess With Free Speech and Net Neutrality appeared first on Michael Geist.

PIPEDA at 20: Time for PIPEDA 2.0

Michael Geist Law RSS Feed - Fri, 2018/07/13 - 12:51

Earlier this year, I had the honour of delivering a keynote address at the IAPP’s 2018 Canadian Privacy Symposium in Toronto. My talk argued that as Canada’s private sector privacy law turns 20 (it was first introduced in the fall of 1998), an updated statute is long overdue, focusing on issues such as enforcement, consent, and big data. A video of the talk has now been posted online. The slides can be accessed here.

 

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The State of Canadian Wireless in One Chart: No One Has Carriers That Generate More Revenue With Less Usage

Michael Geist Law RSS Feed - Tue, 2018/07/10 - 13:58

Tefficient has released a new report on global wireless market that makes it clear that Canada is a global outlier (or leader if you are a telecom executive). Simply put, no one has carriers that generate more revenue with less usage per SIM than Canada.

 

Tefficient ARPU Data Usage, https://tefficient.com/unlimited-moves-the-needle-but-its-when-mobile-addresses-slow-fixed-internet-that-something-happens/

It is difficult to overstate how much the lack of wireless competitiveness is holding back the Canadian market. With the CRTC refusing to take act and carriers continuing to increase fees (particularly on overage fees that generate more than a billion in revenue per year), it falls to Innovation, Science and Economic Development Minister Navdeep Bains to recognize that longstanding failed Canadian wireless policies must change.

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Movie Industry Denies Lawsuit Strategy Despite Proliferation of Legal Actions and Settlement Demands Against Thousands of Canadians

Michael Geist Law RSS Feed - Mon, 2018/07/09 - 10:47

Over the past several years, hundreds of thousands of Canadians have received notifications from movie and television interests threatening high-priced lawsuits unless they agreed to pay settlement fees. Moreover, a recent strategy led by the law firm Aird & Berlis has resulted in hundreds of actual legal filings against individuals, using a reverse class action strategy described as a “legal machine”. Yet despite the proliferation of lawsuits and demand letters, the head of the movie industry in Canada recently told the Standing Committee on Industry, Science and Technology that lawsuits against individuals were not part of their legal strategy.

The exchange between Liberal MP David Graham and the MPA-Canada’s Wendy Noss, which also included an acknowledgement that the MPAA and Motion Picture Association Canada are the same organization, included the following:

Mr. David de Burgh Graham: A number of years ago, the MPAA and RIAA, the recording industry association, went after individuals who were using P2P sites and suing the pants off these poor families. How did that go, what happened, and does that still happen?

Ms. Wendy Noss: I’m not sure where you’re getting that information, but that’s not a position of our company. As I indicated in my statement and reinforced there, and as you heard from Erin, we’re looking to address commercial-scale piracy by people who enable infringement in a way that hurts Canadian jobs, Canadian businesses, and the full scope of the creative process.

Yet despite the denials, suing individuals or threatening lawsuits appears to be a foundational part of the industry’s strategy. In fact, the threats have become so commonplace that ISED Minister Navdeep Bains has announced plans to change the notice-and-notice system to stop the inclusion of settlement demands within copyright notices. Beyond those steps, however, MPs involved within the copyright review should take note of the disconnect between industry claims that lawsuits against individuals are not their position and the reality faced by many Canadians who receive demands to settle or actual lawsuits over unproven allegations of file sharing movies and films.

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Government Memo Suggests Netflix Outspends Canadian Private Broadcasters on Canadian English Scripted Programming

Michael Geist Law RSS Feed - Fri, 2018/07/06 - 09:39

Canadian Heritage Minister Melanie Joly view of cultural policy shifted gears in recent months with her emphasis on the need for all players to contribute and rhetoric on “no free rides”, a position that could lead to taxes on Internet services. While Netflix has been a popular target for many Canadian cultural organizations, according to documents released under the Access to Information Act, Canadian Heritage officials appear to have evidence that Netflix spends more on Canadian English-language scripted programming than the Canadian private broadcasters. The revelations come in a June 2017 internal memo to Graham Flack, the Canadian Heritage Deputy Minister, which respond to correspondence from BCE’s Mirko Bibic. Bibic met with Flack in April 2017 and was concerned with department comments about Netflix outspending Bell.

The Canadian Heritage memo summarizes the Bibic email, noting that Bell spends on news and other programming not covered by Netflix. On the issue of scripted programming, however, the memo appears to concede that Netflix spends more than Bell Media. Part of the memo is redacted due to commercial reasons, but the key sentence states:

PCH memo on Netflix, obtained under ATIP, https://www.scribd.com/document/383336048/PCH-Memo-Bell-Netflix

The redacted information would appear to confirm that Netflix outspends Bell on English scripted programming, since that is precisely what Bibic says he was told in his meeting with Canadian Heritage officials. Bibic writes that “you indicated that Netflix spends more on Canadian content than the private Canadian broadcasters.” Bibic notes that he “presumes that Netflix has shared with the Department the data (presumably with appropriate backup) to justify their claim that they spend more than Canadian broadcasters in Canada.”

 

Bibic email, obtained under ATIP, https://www.scribd.com/document/383336048/PCH-Memo-Bell-Netflix

Yet public information on production spending is consistent with the government’s memo. When Netflix began investing in original content in 2013, the total foreign investment in Canadian productions (including foreign location and service production, Canadian theatrical, and Canadian television) was $2.2 billion. That number has doubled in the last five years, now standing at nearly $4.7 billion. Canadian content production hit an all-time high last year at $3.3 billion, rising by 16.1%. Notably, the increased expenditures do not come from broadcasters, whose relevance continues to diminish year-by-year. In fact, the private broadcasters (led by Bell) now contribute only 11% of the total financing for English-language television production. The increasing irrelevance of private broadcasters for financing Canadian television production is particularly pronounced in the fiction genre (ie. scripted programming) with private broadcasters only contributing $59 million or five percent of the total. By comparison, foreign financing was $285 million.

Proponents of Netflix taxes or regulation claim that the emergence of unregulated streaming services such as Netflix will mean less money to support to Canadian productions. Minister Joly appears to have joined that chorus despite the fact that her own department acknowledges that Netflix spends more on English-language scripted programming than Canadian broadcasters without specific regulation or legislated mandates.

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Unpacking Canada’s IP Strategy: Countering IP Abuse, Addressing IP Administration and Removing IP Barriers to Innovation

Michael Geist Law RSS Feed - Thu, 2018/07/05 - 10:19

Navdeep Bains, Canada’s Minister of Innovation, Science and Economic Development, unveiled the government’s long-awaited intellectual property (IP) strategy, which responds to the need to increase IP awareness, develop new IP tools for businesses and counter IP misuse that harms both consumers and businesses. Following Bains’s announcement in April, the strategy garnered widespread applause for its holistic approach to IP policy, which recognizes the need to support IP through a combination of better information, administration and corporate practices.

My CIGI essay notes that perhaps the most notable aspect of the policy is the decision to reject a commonly heard refrain: if IP is good, more IP must surely be better.

That policy approach, which invariably leads to an emphasis on restrictive IP enforcement and longer terms of protection, fails to adequately account for other incentives for innovation and the benefits that come from open systems and flexible IP rules. While the Canadian government will undoubtedly continue to tinker with its IP legal framework – an ongoing review of copyright law seems certain to lead to some proposed amendments – the IP strategy moves in several new directions, including countering IP abuse, addressing IP administration and removing IP barriers to innovation.  The full essay can be found here.

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The Consequences of High Wireless Costs: OECD Data Confirms Canadians Lag Behind in Data Usage

Michael Geist Law RSS Feed - Fri, 2018/06/29 - 09:06

The OECD released the latest data on broadband usage this week highlighting yet again that the high costs of Canadian wireless services have real world consequences when it comes to consumer data usage. Earlier this month, Canadian Wireless Telecommunications Association President Robert Ghiz told an industry conference:

Consumption of mobile data – through all kinds of apps and every flavour of streaming content – continues to grow at an astounding rate in Canada. Mobile data traffic in our country increased by 41% between 2015 and 2016 alone.

Yet the OECD comparative data tells a far different story. First, OECD data indicates that Canada is at the low end of countries when measured by mobile broadband subscriptions per 100 inhabitants, ranking well below the OECD average and ahead of only six other OECD countries.

 

OECD, Fixed and wireless broadband subscriptions per 100 inhabitants (Dec. 2017) http://www.oecd.org/sti/broadband/1.2.OECD-FixedMobileBB-2017-12.xls

Second, Canada lags behind most OECD countries as measured by mobile data usage per broadband subscription. While the CWTA talks about consumption growing at an “astounding rate”, the reality is that Canada ranks near the bottom of the rankings of how much data is used per subscription. Canadian subscribers use an average of 1.54 GB per month, well below the OECD average of 2.82 GB. In fact, consumers in some OECD countries average 5 to 10 times more monthly data usage.

 

OECD, Mobile data usage per mobile broadband subscription (Dec. 2017) http://www.oecd.org/sti/broadband/1.14-MobileDataUsage-2017-12.xls

The CWTA frequently claims Canada features fast speeds and reliable networks, but affordability is the only metric that counts for millions of Canadians that either cannot afford wireless services or conserve data out of fear of running up bills that are unimaginable in other countries.The impact of Canada’s uncompetitive wireless market does not stop with consumer use either as the fear of high costs ultimately decreases e-commerce sales, use of online government services, and the myriad of other benefits that come from the Internet. For a government already frustrated by the wireless market and the lack of CRTC resolve to address the issue, the latest OECD data further confirms the harm caused by a market that even troubles the Competition Bureau and the urgent need for government and regulatory action.

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Canada’s Access to Information Open Data Fail: Departments Months Behind Posting Summaries of Completed Requests

Michael Geist Law RSS Feed - Tue, 2018/06/26 - 09:31

The Liberal government has emphasized the importance of open data and open government policies for years, yet the government has at times disappointed in ways both big (Canada’s access-to-information laws are desperately in need of updating and the current bill does not come close to solving its shortcomings) and small (restrictive licensing and failure to comply with access to information disclosures).

For example, late last year, I noted that government departments had oddly adopted a closed-by-default approach to posting official photographs on Flickr. Unlike many other governments that use open licenses or a public domain approach, Canadians looking for openly licensed photographs for inclusion in learning materials, blog posts, or other content must rely on foreign governments.  The restrictive licensing approach remains in place: those seeking photos on Flickr from the G7 will find Prime Minister Justin Trudeau’s are “all rights reserved” but other governments attending the summit – including the United States, United Kingdom, Norway, and South Africa – all facilitate re-use of their photos through open licensing.

A restrictive approach to disclosing information about completed access-to-information requests has also emerged in recent months. Open disclosure of the completed requests benefits both the public and the government. For the public, completed requests are there for the asking as they can be obtained on an informal basis at no cost. For the government, completed requests can sometimes provide the information requested by the public, thereby reducing costs and saving time for government officials. For many years, the government maintained a database known as CAIRS, which featured lists of completed access to information requests. After that was cancelled, the government created an open government page that includes the last two years of requests (the information is searchable or downloadable). According to the site:

Government of Canada institutions subject to the Access to Information Act (ATIA) are required to post summaries of processed ATI requests. You can search these summaries, which are available within 30 calendar days after the end of the month. Searches can be made by keywords, topic or field of interest. If you find a summary of interest, you can also request a copy of the previously released ATIA records.

In other words, departments are required to post detailed summaries of completed requests every month. Yet despite the promise of posted summaries within 30 days of the end of the calendar month, many departments are months behind schedule. Last year, 21 departments posted 300 or more completed requests. Of the 21, nearly a quarter have not posted anything in months. The worst offenders are Health Canada, which last posted summaries from August 2017, and Transport Canada, which last posted in October 2017. Several other departments, including Innovation, Science and Economic Development (ISED), the Canadian Food Inspection Agency, and Employment and Social Development have not posted anything since January 2018 releases.

The Liberal government campaigned on open government, but too many issues have either fallen through the cracks or failed to meet promised standards. There is no obvious excuse for not posting monthly completed summaries. The fact that departments such as Health, Transport, and ISED have not done so represents a discouraging access-to-information failure from a government that made its commitment to open government a centrepiece of its election platform.

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Indigenous paradigms

Fair Duty by Meera Nair - Mon, 2018/06/25 - 10:09

This post is a bit late; it is my contribution to #IndigenousPeoplesDay.

In December 2017 Ministers Navdeep Bains and Melanie Joly jointly issued instructions to Members of Parliament charged with carrying out the Review of the Copyright Act. Among many details, the Ministers invited Members “to pay special attention to the needs and interests of Indigenous peoples as part of Canada’s cross-cutting efforts at reconciliation.”

Historically, Indigenous creative effort has not fared well under the modern paradigm of intellectual property rights. From looting of artifacts to casual help-ourselves approaches to indigenous design, indigenous assets, often described as cultural property and traditional knowledge, are used in ways that violate their traditions and laws. To the extent that others commercialize such assets, rarely do gains flow back to the community.

From the first meeting on, Committee members sought input from witnesses on this topic. In oral testimony, and submitted briefs, there is consensus that this challenge needs attention; this may be the one point of unity among all stakeholders of the copyright review. That in itself is encouraging.

However, it is difficult to make progress on this front under the auspices of copyright. The Copyright Act is structurally antagonistic to the principle characteristics of indigenous cultural property and traditional knowledge, namely they lack specific authorship (which is key to claiming ownership under the Act) and may date back to antiquity (which invariably places them in what is considered the public domain*).

As we wrestle with the intricacies of this challenge, there are other ways to show support and facilitate more respectful use of Indigenous materials.

In July 2016, An Open Licensing Scheme for Traditional Knowledge was jointly put forward by the Canadian Internet Policy & Public Interest Clinic (University of Ottawa) and the Geomatics and Cartographic Research Centre (Carleton University). The scheme “aims to give Indigenous communities new tools to exert control over their traditional knowledge [and] clarify expectations of those seeking licensing rights and other downstream uses (8).”

Modeled in the fashion of Creative Commons licenses, where a visual label indicates the creator’s wishes in terms of subsequent use, the researchers revealed a slate of possible labels including: Give Back / Reciprocity; Community Consent, Use-Based / Noncommercial; Education and Research Only; etc.  They also drew attention to two other similar, active, operations with respect to labels as a means of communication: the Mukurtu Project and its sister organization Local Contexts. While communication cannot guarantee respect for the wishes of Indigenous communities, it is a starting point.

In addition, Canadians could consider that Indigenous paradigms about creative endeavor are more akin to the creative process, than modern insistence that creativity is an individual exercise and that property is strictly private. My research looks at the overlap of Indigenous paradigms with Canadian copyright law — not in terms of the specificity of legal language, but in the processes that underwrite and shape creativity itself.

To be clear, when I use the phrase Indigenous paradigms, I am not suggesting a uniformity of thought, tradition or law, across the many Indigenous communities situated within Canada. Rather, the phrase is an attempt to describe a different approach to creativity and property than that which followed in the wake of Judeo-Christian theological teachings or (for the more secular minded) the writings of John Locke. Modern conceptions of intellectual property are rooted in assumptions about property itself – chief among them, the misconception that a right of property is absolute in its control and capacity to exclude others. (Even the most treasured property – land – is subject to measures deemed essential to the public good: building codes, zoning divisions, environmental laws, etc.)

All music, art, poetry and literature are creative outcomes via time immemorial communities of musicians, artists, poets and writers. This is hardly a revelation; Northrop Frye’s words have been with us for over sixty years: “Poetry can only be made from other poems, novels from other novels. All this was much clearer, before the assimilation of literature to private enterprise concealed so many of the facts of criticism.”

Briefly, that assimilation to private enterprise was largely carried out through the introduction and expansion of copyright. Those events are intertwined with the rise of the reading public, the shaping of a book market, new technology; events that combined to alter the perspective of where art, music and literature came from. While previously art was allied to the Divine – inspired by and in service to – the Romantics were never too happy with a world in which books were articles of sale, and writers were mere producers of commodities. As authors wrestled with changing streams of income and the need to compete in a marketplace, the idea of the individual creative genius whose work is original unto himself served to shelter the esteem of an author and justify the boundary of property around a creation. Ironically though, authors themselves were never a focal point in the development of copyright law.

In concert with the universality of the process of creativity is a bond between creative artifact and the author, artist, musician etc. In intellectual property law, this has a name: moral rights. (The term is misleading; despite the somewhat pious inference, the rights reflect personal connections between the creator and the thing-created.) Among moral rights is the protection of the integrity of the work – the creative artifact has a persona,** which sits in relation to the creator.

And there might be another relationship present; Rudyard Kipling famously spoke of daemons who led the creative process, writers must “drift, wait, obey.” Contemporary writers are not shy of acknowledging this third-party, Elizabeth Gilbert and Philip Pullman come to mind. Even without this partner, writers may have the eerie feeling that their characters are writing their own story. (I welcome input from writers of fiction.)

This nexus of relationships occurs with the creative artifact situated at the centre and a community of writers engaging in relationship with it. A set of relations that is similar to the structure of Indigenous cultural property/traditional knowledge. It is the interpretation of property that differs between Indigenous and non-Indigenous paradigms; in Indigenous hands, property is far more immersive, far more relational, one belongs to the property as compared to the converse interpretation of property by non-Indigenous legal paradigms.***

As I wrote in my brief to the Standing Committee: “… recognizing indigenous traditions that we implicitly already follow, supports the objectives of the Truth and Reconciliation Commission, particularly the recurring call for better integration of indigenous law into Canadian life.

Much as we acknowledge that the physical ground beneath our feet is Indigenous territory, we ought also to acknowledge those Indigenous paradigms which serve as the foundation to our daily creative effort.

* My research offers an alternative, legitimate conception of the public domain that is more flexible in its composition — I draw from the work of Jessica Litman and our Supreme Court decisions.

** Anishinaabe legal scholar Aimée Craft reminds us that some jurisdictions have granted personhood to bodies of water. That physical or cultural property could have agency, at least in legal proceedings, is, again, not a revelation.

*** Brian Noble, “Owning as Belonging/Owning as Property …” in Catherine Bell and Val Napoleon, eds., First Nations Cultural Heritage and Law (Vancouver: UBC Press, 2008) 465.

Net Neutrality and NAFTA: Canadian Government Says It Will Address U.S. Policy Should Harms Arise

Michael Geist Law RSS Feed - Fri, 2018/06/22 - 09:49

The Canadian government has released its response to the Standing Committee on Access to Information, Privacy and Ethics report on net neutrality. The report featured a strong endorsement of net neutrality and raised concerns with Bell’s site blocking proposal. The government response emphasizes its support for net neutrality, highlighting the current legal framework. While the response does not directly address the site blocking proposal (noting it would inappropriate to comment on a case currently before the CRTC), it reiterates that it has the power to vary, rescind, or refer a CRTC decision back for reconsideration, perhaps a signal that a CRTC decision favouring site blocking could face a government response to rescind or review.

The most interesting aspect of the response involves the international considerations, particularly the U.S. reversal of its support for net neutrality. The government acknowledges the concerns with how U.S. policy could affect Canadians and promises to take action, including pursuing outcomes in the NAFTA renegotiation:

The Government of Canada is mindful of the concerns of Canadian enterprises and citizens over the recent changes in the United States (US) to its net neutrality regime and will seek to address with the US any situation whereby a Canadian enterprise is negatively affected by the traffic management practices of a US ISP. In the event that US ISPs engage in traffic management practices that harm Canadian interests, the Government will proactively seek to address these concerns to ensure that the US is meeting its commitments under the North American Free Trade Agreement (NAFTA), including through the established NAFTA committees and co-operation provisions, and will engage with its international trade partners to promote an open Internet based on international best practices. Furthermore, the Government of Canada will pursue outcomes in the renegotiation of NAFTA that continue to provide for reasonable and non-discriminatory access for Canadian businesses to US telecommunications networks and services, including those of an ISP, and recognize the importance for consumers being able to access and use services and applications of their choice on the Internet.

While Canada presumably has bigger NAFTA concerns at the moment, the firm commitment to net neutrality, including within trade negotiations, sends a strong signal that the net neutrality has emerged as a foundational principle of Canadian digital policy.

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Site Blocking, The Sequel: After Telling Courts They Can Issue De-Indexing or Blocking Orders, Movie Industry Calls for More in Copyright Act

Michael Geist Law RSS Feed - Thu, 2018/06/21 - 11:32

Representatives of the motion picture association appeared before the Standing Committee on Industry, Science and Technology this week as part of the copyright review and called on the government to ensure the law permits site blocking and search result de-indexing rules to address piracy concerns. The representatives, who acknowledged under questioning from Liberal MP David Graham that the Motion Picture Association of America (MPAA) and Motion Picture Association Canada (MPAC) are the same organization, also argued to increased liability for Internet intermediaries.

The MPAA/MPAC called for the following reform:

allow rights holders to obtain injunctive relief against online intermediary service providers. Internet intermediaries that facilitate access to illegal content are best-placed to reduce the harm caused by online piracy. This principle has been long recognized throughout Europe where Article 8.3 of the EU copyright directive has provided the foundation for copyright owners to obtain injunctive relief against intermediaries whose services are used by third-parties to infringe copyright. Building upon precedents that already exist in Canada in the physical world the act should be amended to expressly allow copyright owners to obtain injunctions, including site-blocking and de-indexing orders, against intermediaries whose services are used to infringe copyright.

Article 8.3 of the EU Copyright directive states:

Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

Lobbying for an explicit site blocking and de-indexing injunction provision is presumably designed as a back-up to the site blocking proposal currently before the CRTC. Yet the reality is that Canadian law already provides for injunctive relief in appropriate circumstances with the Supreme Court of Canada’s Equustek decision one of the more recent manifestations of courts issuing orders to non-parties in support of intellectual property rights. Indeed, the MPAA/MPAC’s global association intervened in that case, where it argued:

Canadian courts have equitable jurisdiction to grant ancillary orders against non-parties to give effect to existing orders. This authority is not new, and it is not limited to persons interacting face-to-face or businesses operating in bricks-and-mortar shops. This authority also applies to the internet, provided that the court has jurisdiction in respect of the relevant parties…Canadian courts have jurisdiction to grant equitable relief to enforce orders concerning unlawful activity online, including by enlisting intermediaries’ assistance to curtail wrongdoers’ attempts to circumvent the rule of law.

In other words, the MPAA/MPAC has previously argued before the Supreme Court that Canadian courts already have the power to issue injunctions that could include site blocking or site de-indexing. There is no guarantee that courts will issue such an injunction – courts around the world have consistently identified the challenge of balancing protection of intellectual property rights with the implications of site blocking on freedom of expression – but a comprehensive, impartial court review with full due process is precisely what should be required before the power of the law is used to block access to content on the Internet or require the removal of search results. That is one reason the Bell coalition site blocking proposal is so problematic and why the movie industry’s latest call for additional site blocking injunction rules in the Copyright Act are, by its own admission, unnecessary.

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How Did George Brown College Come to Support the FairPlay Site Blocking Plan? Docs Show Bell Lobbied the School’s President

Michael Geist Law RSS Feed - Wed, 2018/06/20 - 12:05

How did George Brown College President Anne Sado come to write a letter in support of the Bell coalition website blocking plan?  Given the prior reports on Bell’s internal astroturfing campaign and the pressure on a Brock University executive (subsequently distanced by the University) it will come as little surprise to learn that the origins stem from direct Bell lobbying. According to documents obtained under provincial access to information laws, Mark Milliere, TSN’s Senior Vice President and General Manager (part of Bell Media) relied on the same playbook as with Brock University, citing its support for the college and urging it to write in support to the CRTC. The request included sample letters from Brock and Ryerson University (more on Ryerson in a forthcoming post).

The George Brown College letter is notable for several reasons. First, the Bell website coalition’s reply to comments on its proposal specifically referenced it as demonstrating support from Canadian colleges for its proposal. Second, it came from the College President, which Bell advised would have more impact. Third, Sado was warned that there were concerns with the proposal, but after discussing directly with Bell decided to write in support.

Much like the Brock University lobbying effort, the Bell pressure began with a letter to a known contact.

 

Bell George Brown request, March 22, 2018, obtained under FIPPA

 

The contact forwarded internally, noting Bell’s support for the school and its programming.

 

Dumanksi Email, March 22, 2018, obtained under FIPPA

 

Once the issue made its way to Sado, she asked her team whether there were reasons not write a letter, advising that she would speaking directly to Bell.

 

Sado Email on support, March 23, 2018, obtained under FIPPA

 

That sparked a warning from the Director of Corporate Communications that there were concerns and some risks. After Sado spoke directly to Bell, she dismissed those concerns and decided to write the letter, though notably asked Luigi Ferrara, the College’s Dean of the Centre for Arts, Design and Information Technology if he would be willing to write the letter in his name.

 

Sado Email to Ferrara, March 23, 2018, obtained under FIPPA

After Bell advised that the letter would have more impact if it came from the College president, the final submission came directly from her.

 

The post How Did George Brown College Come to Support the FairPlay Site Blocking Plan? Docs Show Bell Lobbied the School’s President appeared first on Michael Geist.

CRTC Rebuked: Government Signals Frustration With the Commission Prioritizing Carriers Over Consumers

Michael Geist Law RSS Feed - Fri, 2018/06/15 - 09:42

Telecom issues were in the spotlight yesterday with the government ordering the CRTC to “examine claims of aggressive or misleading sales practices concerning telecommunications services, the prevalence and impact on consumers, as well as potential solutions.” The Order-in-Council, which was accompanied by a request to the Competition Bureau to provide assistance, follows CBC reports on misleading sales tactics from companies such as Bell and Rogers and the CRTC’s rejection of a request to conduct an inquiry into the matter. The announcement from Innovation, Science and Economic Development Minister Navdeep Bains is a welcome development, signalling the government’s frustration with a CRTC under new chair Ian Scott that has seemingly abandoned consumer interests.

The difference in perspective between the government and the CRTC on the misleading sales tactics is instructive. The CRTC’s response to PIAC’s request for an inquiry amounted to little more than a message to Canadian consumers that they were on their own:

I note that Canadians already have a variety of options available to them to seek redress depending on the nature of the issue. If Canadians consider that their wireless, Internet, home phone or TV service provider has not provided clear and accurate information to them about their contract(s), or is not acting in a manner consistent with the CRTC’s Wireless Code or Television Service Provider Code, they should first try to resolve the issue with their service provider.  If the matter is not resolved to their satisfaction, they are encouraged to escalate the complaint to the Commissioner for Complaints for Telecom-Television Services (CCTS).

In contrast, the government’s order-in-council recognizes that misleading sales tactics by their nature means that most consumers won’t know that they have been misled. As the government notes:

those misleading or aggressive sales practices may include the abuse of information asymmetries by Canada’s large telecommunications carriers in order to benefit those carriers

The same point is made in its letter to the Competition Bureau:

There are reports that these practices exploit the unequal level of information possessed by sales agents relative to consumers and that vulnerable Canadians are more likely to be harmed.

In other words, the market features systemic inequality and simply assuming that most consumers can identify misleading tactics and take steps to remedy the issue by complaining to the company or the Commissioner for Complaints on Telecommunications Services is pure fiction. That the CRTC did not recognize its responsibility in addressing these issues is deeply troubling. Indeed, the government’s order identifies several things it should have investigated, including whether there are misleading practices, measures to monitor consumer risks, the effectiveness of consumer protections, and potential ways to strengthen or expand those protections.

The absence of the consumer from the CRTC’s world view of the telecom market is consistent with its recent broadcasting report that envisions new Internet and wireless taxes that will increase consumer costs and its earlier decision to reject new measures to inject competition into the marketplace through MVNOs, relying instead on the creation of new low-cost data-only plans. A proceeding into the carrier proposals is underway, sparking a Competition Bureau submission that highlights why the CRTC’s measures are inadequate and the “low-cost” plans priced far above costs. The Bureau laments that “market power concerns persist in the Canadian wireless industry” with the following consequences:

When market power is exercised, prices are higher, and wireless penetration is lower, than in a market that is competitive. The exercise of market power forces some consumers, who would purchase a product or service at a competitive price, to forego such purchase because prices, as a result of market power, are simply too high. These consumers no longer participate in the marketplace, and these foregone purchases create what economists refer to as deadweight loss.

That is the state of the Canadian wireless market, yet the CRTC chose to claim “there have been positive signs that the intensity of facilities-based competition is increasing across the country”, focusing more on the investment of the carriers than on the actual pricing and affordability of wireless services. The CRTC concluded that low-cost data plans would help address the affordability issue, leading to proposals that the Competition Bureau notes exceed wholesale pricing by more than 300 percent:

The Bureau also notes that the prices of proposed plans filed by Canada’s national wireless carriers exceed the wholesale roaming rate by a wide margin. Table 2 reports the results of calculations comparing the wholesale roaming rate per megabyte of data with prices per megabyte proposed by Canada’s national wireless carriers in this proceeding. These calculations show that the proposed prices exceed wholesale prices by more than three hundred percent.

The over-priced “low-cost” data-only plans are little surprise given that the CRTC has given every sign in repeated decisions over the past year that it will prioritize the interests of carriers over consumers. Yesterday, the government made it clear that needs to change.

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Music Canada at the Copyright Review: “Illegal Content is Drifting Away”

Michael Geist Law RSS Feed - Thu, 2018/06/14 - 10:25

Music Canada was one of several witnesses that appeared before the Standing Committee on Industry, Science and Technology this week as part of the copyright review. The group continued its campaign on the so-called value gap, largely ignoring huge increases in streaming revenues with claims about legislative reforms that bear little resemblance to the Canadian experience. While those arguments will be old news to the committee members, it was the discussion of piracy and government handouts that merit attention.

With respect to piracy, the industry acknowledged that unlicensed streaming has largely disappeared. When asked about the YouTube music channel Vevo, Music Canada’s Graham Henderson responded:

“98% of everything that’s on YouTube is licensed now, right, because we’re all remunerating it. The days of it all being illegal content is drifting away.”

Henderson went on to say that he wasn’t exactly sure who Vevo is, an odd comment given that it is owned by music labels Sony Music Entertainment, Universal Music Group and Warner Music Group. In fact, Vevo recently struck an advertising deal with YouTube that highlights how the industry is capitalizing on the potential of ad-based streaming services.

Yet even more remarkable was the committee discussion on one of the four main “asks” from the music industry. After Henderson opened with a specific request for an annual $40 million handout from the government for private copying (the lack of payment being implausibly characterized as “an unfair subsidy”), committee members asked for specifics. It started with MP Frank Baylis:

Baylis: I’m going to talk, then, about private copying. I think, Ms. McAllister and Mr. Henderson, you brought that up. When we used cassettes, discs, and blank CDs, there was a levy put on them. That doesn’t exist, I believe you said, due to a court case. It doesn’t exist, let’s say, when iPod came out, or my phone that has music. Do I understand and maybe you could elaborate that you’d like to see it applied to these mediums, and what amounts? Do you have any amounts that you’re thinking of? How would you see that being distributed among the artists? I’ll ask both of you.

Henderson: What’s being asked by the community, and I think we’ve all aligned on this, is not to
impose a levy on consumers but to seek a fund, a temporary four-year fund. The number that has come up is about $40 million per year. That is, therefore, not a levy. It becomes something that comes out of Treasury, and it’s a decision that the Government of Canada will have to make as to whether it feels it’s important enough to remunerate artists and others for private copying, which, by the way, is what happens elsewhere in the world, often through levies. But that’s not our proposal.

After Henderson called it temporary and another witness reiterated that the fund would be a short term measure as the government developed new legislation to apply the tax to all devices, MP Dane Lloyd questioned the fairness of a broad based device tax:

Lloyd: If it’s just a blanket levy on a device, wouldn’t you admit that there are people who could buy these devices who won’t be infringing on any copyright?

Henderson: I think the important thing is if you were to go the fund route, then we’re not worried
about impacting consumers.

Lloyd: That’s the short-term route.

Henderson: Yes, but it could be the long term. The point would be that the government is recognizing the importance of performers and others getting paid for this type of copying.

In other words, despite having said it was a temporary measure minutes earlier, Henderson switched gears to argue it could be long-term. In fact, as Lloyd continued, Henderson acknowledged that he opposes a levy on devices:

Lloyd: So in my last 30 seconds, you would say there’s no better way that you can think of to implement a levy than to put a levy on devices?

Henderson: Well, I personally think it should be a fund.

Having now acknowledged that he does not support a levy on devices and would like the government handout to run on a long-term basis, MP Mary Ng wanted more details and Henderson desperately wanted to change the subject:

Ng: So beyond the four years then, we talked about moving towards a system where there could be levies, and then the levies would actually generate the income. If I think about it at the macro level, the income of the content creators has been so disrupted because of the overall disruption following the emergence of the Googles, Youtubes, etc., right? So how do we get to a place, then, where in that rebalance the content that is created by the creators then has a fair compensation in the new world? Right? A fund is a fund but presumably, somewhere down the road, you’re going to
have to increase it because there’s more content generated, etc., so that’s not sustainable.

Henderson: No, I think that this is absorbing a lot of attention here today, but it’s actually a minor
piece in the puzzle.

What message did the Music Canada appearance leave the committee on the issue of a device copying tax or massive government handout? Presumably with the view that it is asking for $160 million for copying despite acknowledging that in a streaming world “illegal content is drifting away”, admitting that it actually opposes a levy, and that what it originally billed as a “short term” solution is really a long-term expectation that taxpayers will spend hundreds of millions of dollars for non-existent copying.

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Off the Rails: How the Canadian Heritage Copyright Hearings Have Veered Badly Off-Track

Michael Geist Law RSS Feed - Wed, 2018/06/13 - 11:52

The Standing Committee on Canadian Heritage has conducted several weeks of hearings as part of its study on Remuneration Models for Artists and Creative Industries. While the copyright review is the responsibility of the Standing Committee on Industry, Science and Technology, the heritage committee was asked to conduct a study to help inform its work. The mandate was described in the following motion:

That the Standing Committee on Industry, Science and Technology request that the Standing Committee on Canadian Heritage conduct a study, in the context of copyright, on remuneration models for artists and creative industries, including rights management and the challenges and opportunities of new access points for creative content such as streaming and emerging platforms.

That Standing Committee on Canadian Heritage call upon the expertise of a broad range of stakeholders impacted by copyright to ensure a holistic understanding of the issues at play.

That Standing Committee on Canadian Heritage provide Standing Committee on Industry, Science and Technology with a summary of testimony and recommendations related to the items mentioned above for the parliamentary review of the Copyright Act.

The study still has a long way to go as the committee is accepting requests to appear until September 28, 2018 and briefs until December 14, 2018. Yet to date, the committee has done little to meet its actual mandate of hearing from a broad range of stakeholders to explore remuneration models and emerging platforms. Instead, it has largely provided a forum for some creator groups, particularly copyright collectives, to get a duplicate opportunity to present their case for reforms.

The recent witnesses bring few new ideas or even updated data on new business models. For example, on May 29th, the committee did hear from one musician from the Jerry Cans, but more of the time was allocated to the Canadian Private Copying Collective to argue for a $160 million handout as an alternative to taxing the sale of all digital devices in Canada. On May 31st, music groups emphasized reforms such as copyright term extension, a tax on all smartphones, the imposition of Cancon requirements on online music services, ISP licensing, and ISP liability for the activities of their subscribers. It was more of the same the following week with many more music collectives including Re:Sound and SOCAN raising the same issues that will come before the Industry committee.

Over a two week period, the committee heard from one artist appearing on his own behalf and 17 copyright collectives, publishers, rights management companies, and other music associations:

  • Society of Composers, Authors and Music Publishers of Canada
  • Canadian Independent Music Association
  • ole
  • Society for Reproduction Rights of Authors, Composers and Publishers in Canada
  • Artisti
  • Association québécoise de l’industrie du disque, du spectacle et de la vidéo (ADISQ)
  • Re:Sound Music Licensing Company
  • Songwriters Association of Canada
  • Canadian Music Publishers Association
  • Guilde des musiciens et musiciennes du Québec
  • Professional Music Publishers’ Association
  • Alliance nationale de l’industrie musicale
  • Canadian Federation of Musicians
  • Canadian Private Copying Collective
  • Conseil québécois de la musique
  • Music Canada
  • The Jerry Cans
  • Société professionnelle des auteurs et des compositeurs du Québec

Committees should hear from a wide range of stakeholders representing all perspectives, however to date, there has been no user representation, no innovative business, and few artists appearing on their own behalf. In the music context, where are the streaming services? Where are the other businesses that are finding innovative ways to use music in the digital environment? Where are the artists with experience in the digital marketplace?

The problem with the study is not limited to the one-sided perspectives. The hearings have also directly overlapped with the work of the Industry committee raising questions of the need for a duplicate set of hearings. Rather than supplementing the Industry committee with a focus on remuneration models for artists and creative industries as required by the mandate, much of the Heritage committee discussion emphasizes tired reform proposals such as term extension or copying taxes. In fact, witnesses at Industry have referenced their Heritage appearances, suggesting there is little reason for both if the Heritage committee veers far from its mandate. There are still many months to go, but getting back on track requires repositioning the hearings consistent with the original motion and taking the instructions calling for a broad range of stakeholders seriously.

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