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Canada’s National Digitization Plan Leaves Virtual Shelves Empty

Michael Geist Law RSS Feed - Tue, 2016/07/26 - 10:03

Imagine going to your local library in search of Canadian books. You wander through the stacks but are surprised to find most shelves barren with the exception of books that are over a hundred years old. This sounds more like an abandoned library than one serving the needs of its patrons, yet it is roughly what a recently released Canadian National Heritage Digitization Strategy envisions.

Led by Library and Archives Canada and endorsed by Canadian Heritage Minister Mélanie Joly, the strategy acknowledges that digital technologies make it possible “for memory institutions to provide immediate access to their holdings to an almost limitless audience.”

Yet it stops strangely short of trying to do just that.

My weekly technology law column (Toronto Star version, homepage version) notes that rather than establishing a bold objective as has been the hallmark of recent Liberal government policy initiatives, the strategy sets as its 10-year goal the digitization of 90 per cent of all published heritage dating from before 1917 along with 50 per cent of all monographs published before 1940. It also hopes to cover all scientific journals published by Canadian universities before 2000, selected sound recordings, and all historical maps.

The strategy points to similar initiatives in other countries, but the Canadian targets pale by comparison. For example, the Netherlands plans to digitize 90 per cent of all books published in that country by 2018 along with many newspapers and magazines that pre-date 1940.

Canada’s inability to adopt a cohesive national digitization strategy has been an ongoing source of frustration and the subject of multiple studies which concluded that the country is falling behind. While there have been no shortage of pilot projects and useful initiatives from university libraries, Canada has thus far failed to articulate an ambitious, national digitization vision.

Financial and legal constraints are typically identified as two of the biggest barriers to ensuring universal digital access to Canadian heritage. Major digitization initiatives are certainly costly, but experience elsewhere shows that a government-led initiative that brings together public and private resources is possible with the right champion.

Digitization initiatives in other countries also demonstrate that the legal challenges are frequently overstated. For example, U.S. courts have ruled that massive digitization programs such as those undertaken by Google qualify as fair use. This means that millions of books can be freely digitized without fear of copyright infringement, though full access is limited to public domain works (where the copyright has expired) and licensed materials where the copyright owner has granted permission. Partial access may be granted consistent with fair use.

Canadian law features fair dealing rather than fair use, but a similar approach could be adopted. While the new Canadian strategy is largely limited to public domain works that can be digitized and made available without the need for permission or licences, the Supreme Court of Canada’s interpretation of the law lends itself to a more ambitious digitization program in which all Canadian works are converted into digital format for research, study and education purposes.

All public domain works – which could reasonably be estimated to include anything published before 1940 – could be made immediately accessible in full text. Moreover, the government could launch a crowdsourcing initiative where Canadians identify additional public domain works of authors who died more than 50 years ago. This would include many books published in the 1940s, ’50s, and ’60s.

For the remaining works, fair dealing would permit a portion of the work be made available without the need for further permission. For full text, authors could be given the opportunity to specify how, if at all, their works should be accessible.

With Canada set to celebrate its 150th birthday next year, now is the ideal time to give ourselves a birthday gift that will keep giving for years to come. A national digitization strategy is long overdue and starts with a government committed to a bold vision of making Canada’s heritage digitally accessible to all.

The post Canada’s National Digitization Plan Leaves Virtual Shelves Empty appeared first on Michael Geist.

Why Canada’s National Digitization Plan Falls Short

Michael Geist Law RSS Feed - Tue, 2016/07/26 - 10:01

Appeared in the Toronto Star on July 25, 2016 as Ottawa Should Commit to Digitizing Canadian Heritage

Imagine going to your local library in search of Canadian books. You wander through the stacks but are surprised to find most shelves barren with the exception of books that are over a hundred years old. This sounds more like an abandoned library than one serving the needs of its patrons, yet it is roughly what a recently released Canadian National Heritage Digitization Strategy envisions.

Led by Library and Archives Canada and endorsed by Canadian Heritage Minister Mélanie Joly, the strategy acknowledges that digital technologies make it possible “for memory institutions to provide immediate access to their holdings to an almost limitless audience.”

Yet it stops strangely short of trying to do just that.

Rather than establishing a bold objective as has been the hallmark of recent Liberal government policy initiatives, the strategy sets as its 10-year goal the digitization of 90 per cent of all published heritage dating from before 1917 along with 50 per cent of all monographs published before 1940. It also hopes to cover all scientific journals published by Canadian universities before 2000, selected sound recordings, and all historical maps.

The strategy points to similar initiatives in other countries, but the Canadian targets pale by comparison. For example, the Netherlands plans to digitize 90 per cent of all books published in that country by 2018 along with many newspapers and magazines that pre-date 1940.

Canada’s inability to adopt a cohesive national digitization strategy has been an ongoing source of frustration and the subject of multiple studies which concluded that the country is falling behind. While there have been no shortage of pilot projects and useful initiatives from university libraries, Canada has thus far failed to articulate an ambitious, national digitization vision.

Financial and legal constraints are typically identified as two of the biggest barriers to ensuring universal digital access to Canadian heritage. Major digitization initiatives are certainly costly, but experience elsewhere shows that a government-led initiative that brings together public and private resources is possible with the right champion.

Digitization initiatives in other countries also demonstrate that the legal challenges are frequently overstated. For example, U.S. courts have ruled that massive digitization programs such as those undertaken by Google qualify as fair use. This means that millions of books can be freely digitized without fear of copyright infringement, though full access is limited to public domain works (where the copyright has expired) and licensed materials where the copyright owner has granted permission. Partial access may be granted consistent with fair use.

Canadian law features fair dealing rather than fair use, but a similar approach could be adopted. While the new Canadian strategy is largely limited to public domain works that can be digitized and made available without the need for permission or licences, the Supreme Court of Canada’s interpretation of the law lends itself to a more ambitious digitization program in which all Canadian works are converted into digital format for research, study and education purposes.

All public domain works – which could reasonably be estimated to include anything published before 1940 – could be made immediately accessible in full text. Moreover, the government could launch a crowdsourcing initiative where Canadians identify additional public domain works of authors who died more than 50 years ago. This would include many books published in the 1940s, ’50s, and ’60s.

For the remaining works, fair dealing would permit a portion of the work be made available without the need for further permission. For full text, authors could be given the opportunity to specify how, if at all, their works should be accessible.

With Canada set to celebrate its 150th birthday next year, now is the ideal time to give ourselves a birthday gift that will keep giving for years to come. A national digitization strategy is long overdue and starts with a government committed to a bold vision of making Canada’s heritage digitally accessible to all.

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 Canada’s National Digitization Plan Falls Short appeared first on Michael Geist.

Brexit Exposes Old and Deepening Data Divide between EU and UK

Freedom to Tinker - Mon, 2016/07/25 - 10:45
After the Brexit vote, politicians, businesses and citizens are all wondering what’s next. In general, legal uncertainty permeates Brexit, but in the world of bits and bytes, Brussels and London have in fact been on a collision course at least since the 90s. The new British prime minister, Theresa May, has been personally responsible for […]

Pokémon Go and The Law: Privacy, Intellectual Property, and Other Legal Concerns

Freedom to Tinker - Tue, 2016/07/19 - 10:59
Pokémon Go made 22-year-old Kyrie Tompkins fall and twist her ankle. “[The game]  vibrated to let me know there was something nearby and I looked up and just fell in a hole,” she told local news outlet WHEC 10. So far, no one has sued Niantic or The Pokémon Company for injuries suffered while playing […]

Pokémon Go Craze Brings New “Augmented Reality” Legal Issues Into Light

Michael Geist Law RSS Feed - Mon, 2016/07/18 - 10:47

Unless you’ve been offline or focused on a distorted national anthem rendition for the past week, you know that Pokémon Go has taken the world by storm with millions of people wandering around searching for virtual Pokémon characters. The game was officially released in Canada on the weekend – it started first in the U.S., Australia, and New Zealand – with millions of people already playing it.

My weekly technology law column (Toronto Star version, homepage version) notes that Pokémon Go provides a first peek at the potential of widespread use of “augmented reality”, which combines real space places such as parks or buildings with virtual characters or objects that appear on a computer or smartphone. In this case, the app uses GPS on smartphones to identify players’ physical location with the goal of collecting and training virtual Pokémon characters located there.

The immediate popularity of the game has shattered records as reports indicate that it is already the biggest mobile game ever in the U.S. In fact, this week Pokémon Go passed Twitter for the number of daily users. SimilarWeb estimates that six per cent of Canadian Android users have installed the game without official availability in the country.

Given the rapid pace of adoption, there has scarcely been time to consider the legal challenges raised by Pokémon Go. For example, the privacy issues are significant given the vast amount of data -  much of it involving locational information – collected through the app.

The makers of Pokémon Go are forthright about their collection and use of personal data that may be shared with service providers and third parties (though the terms of use policy has generated criticism over a 30 day period to opt-out of mandatory arbitration over potential disputes. The privacy policy indicates that sharing of information with third parties, which may include marketers or other businesses, will be limited to aggregated data that can then be used for research, analysis, and demographic profiling.

While the Pokémon Go privacy policy offers few choices, there are two notable exceptions that highlight how laws can make a difference. The policy distinguishes between U.S. and European users for commercial email, with U.S. users automatically registered for emails unless they take steps to opt-out, while European users provided with the stronger safeguard of an opt-in approach. Once the service formally launches in Canada, users will presumably be offered the higher standard of protection due to Canadian anti-spam laws.

Similarly, the policy provides the option of opting out of data transfers to the U.S. (though with the warning that some services may be unavailable for those that do so). The choice of “localizing” personal information reflects mounting concerns with U.S. surveillance activities and may signal increasing demand from the public to have the choice of having their data kept outside that country.

The privacy issues, including concerns over initial settings that shared detailed Google account information with the company, prompted U.S. Senator Al Franken to demand public answers on the privacy practices. The Google information sharing setting has since been altered, but even more interesting may be the Pokémon Go issues that are unique to games that blend the real and virtual.

For example, trespass laws may arise as players find themselves wandering into private spaces in search of virtual characters. For instance, the U.S. Holocaust Memorial Museum and Arlington National Cemetery have both requested that players refrain from catching characters there.

There are also reports of potential physical harm for players as they visit places that may be unsafe or unknown. The Pokémon Go terms unsurprisingly state that the company disclaims all liability for any property damage or personal injury, but the foreseeability of potential harm suggests that these terms may ultimately face legal challenge.

The use of augmented reality is at a very early stage, but given the massive popularity of Pokémon Go, there is every reason to believe that the technology – and the legal issues that come with it – are here to stay.

The post Pokémon Go Craze Brings New “Augmented Reality” Legal Issues Into Light appeared first on Michael Geist.

It’s All Fun and Games Until We Lose Our Digital Privacy

Michael Geist Law RSS Feed - Mon, 2016/07/18 - 10:45

Appeared in the Toronto Star on July 18, 2016 as It’s All Fun and Games Until We Lose Our Digital Privacy

Unless you’ve been offline or focused on a distorted national anthem rendition for the past week, you know that Pokémon Go has taken the world by storm with millions of people wandering around searching for virtual Pokémon characters. While the game has still not been officially released in Canada – it started first in the U.S., Australia, and New Zealand – millions of people are already playing it.

Pokémon Go provides a first peek at the potential of widespread use of “augmented reality”, which combines real space places such as parks or buildings with virtual characters or objects that appear on a computer or smartphone. In this case, the app uses GPS on smartphones to identify players’ physical location with the goal of collecting and training virtual Pokémon characters located there.

The immediate popularity of the game has shattered records as reports indicate that it is already the biggest mobile game ever in the U.S. In fact, this week Pokémon Go passed Twitter for the number of daily users. SimilarWeb estimates that six per cent of Canadian Android users have installed the game without official availability in the country.

Given the rapid pace of adoption, there has scarcely been time to consider the legal challenges raised by Pokémon Go. For example, the privacy issues are significant given the vast amount of data -  much of it involving locational information – collected through the app.

The makers of Pokémon Go are forthright about their collection and use of personal data that may be shared with service providers and third parties (though the terms of use policy has generated criticism over a 30 day period to opt-out of mandatory arbitration over potential disputes. The privacy policy indicates that sharing of information with third parties, which may include marketers or other businesses, will be limited to aggregated data that can then be used for research, analysis, and demographic profiling.

While the Pokémon Go privacy policy offers few choices, there are two notable exceptions that highlight how laws can make a difference. The policy distinguishes between U.S. and European users for commercial email, with U.S. users automatically registered for emails unless they take steps to opt-out, while European users provided with the stronger safeguard of an opt-in approach. Once the service formally launches in Canada, users will presumably be offered the higher standard of protection due to Canadian anti-spam laws.

Similarly, the policy provides the option of opting out of data transfers to the U.S. (though with the warning that some services may be unavailable for those that do so). The choice of “localizing” personal information reflects mounting concerns with U.S. surveillance activities and may signal increasing demand from the public to have the choice of having their data kept outside that country.

The privacy issues, including concerns over initial settings that shared detailed Google account information with the company, prompted U.S. Senator Al Franken to demand public answers on the privacy practices. The Google information sharing setting has since been altered, but even more interesting may be the Pokémon Go issues that are unique to games that blend the real and virtual.

For example, trespass laws may arise as players find themselves wandering into private spaces in search of virtual characters. For instance, the U.S. Holocaust Memorial Museum and Arlington National Cemetery have both requested that players refrain from catching characters there.

There are also reports of potential physical harm for players as they visit places that may be unsafe or unknown. The Pokémon Go terms unsurprisingly state that the company disclaims all liability for any property damage or personal injury, but the foreseeability of potential harm suggests that these terms may ultimately face legal challenge.

The use of augmented reality is at a very early stage, but given the massive popularity of Pokémon Go, there is every reason to believe that the technology – and the legal issues that come with it – are here to stay.

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 It’s All Fun and Games Until We Lose Our Digital Privacy appeared first on Michael Geist.

Why the Canada – EU Trade Deal is in More Trouble Than the Government Admits

Michael Geist Law RSS Feed - Tue, 2016/07/12 - 10:12

The Canadian government has characterized the proposed trade agreement between Canada and the European Union (CETA) is its top trade priority. The deal would increase trade by removing tariffs from many products, but also create significant costs. The implications for digital and intellectual property issues are particularly important, with chapters on e-commerce and telecommunications services, an extension of patent protections for pharmaceutical drugs could raise health care costs by millions of dollars, and protections for hundreds of geographical indications may restrict Canadian producers of common cheeses, wines, and meats.

My weekly technology law column (Toronto Star version, homepage version) notes that the substance of CETA merits debate, but its most distinguishing feature during the seven years of negotiations has been the steady stream of unrealistic claims from Canadian officials about how close they are to concluding the deal.

In April 2010, the government said it would be finished in 2011. In 2011, reports said it would be done in 2012. In October 2012, the projection was a deal by year-end. It took until the fall of 2013 for a ceremony marking an “agreement-in-principle”. That too proved to be premature as there was another event celebrating an official draft in 2014 followed by more legal drafting and the renegotiation of controversial investor protection provisions that led to the release of another text earlier this year.

Given this history, it was rather remarkable to see Canadian officials claim last week that the vast majority of the agreement should take effect by early 2017. In reality, CETA has been the target of vocal opposition in Europe and International Trade Minister Chrystia Freeland faces a steep climb to turn the text into a binding agreement.

The enormity of the challenge became clear in recent weeks as European officials bowed to public pressure on its plan for ratification of the agreement. The initial plans were to treat CETA as an “EU-only” agreement which would have allowed for approval from just two institutions – the EU Council (essentially the executive of the EU comprised of a representative from each of the 28 member states) and the European Parliament.

After several European countries expressed opposition to the EU-only approach, officials backtracked by announcing last week that CETA will be treated as a “mixed agreement”, which requires approval from the EU Council, the European Parliament and the parliaments of all member states (which run to 38 parliaments with regional parliaments in some countries). The change will mean that full implementation of CETA will take years, not months.

Despite the political opposition in Europe and the further complications created by Brexit that could undercut the benefits of the agreement (the United Kingdom represents roughly one-third of Canadian trade to Europe), Canadian officials insist that CETA will receive EU Council approval in the fall and Parliamentary approval by early 2017. If that happens, the agreement could take “provisional” effect soon after with officials claiming that approximately 90 per cent of the agreement would be operational.

Yet this plan seems certain to run into political and legal barriers. From a political perspective, several European parliaments have already expressed their opposition CETA, suggesting that it will face a rough ride at each approval stage. European officials tried to pacify the opposition by shifting to a “mixed agreement” approval process, but the plan to still provisionally apply virtually all of the agreement seems certain to inflame further political backlash.

The legal barriers may be even more daunting. European officials claim that almost the entire agreement falls within their exclusive competence, but legal experts have raised serious doubts about that interpretation. In fact, the EU itself has referred another trade agreement – the EU-Singapore Free Trade Agreement – to the European Court of Justice to obtain guidance on which elements of that deal fall within its exclusive competence and which are shared with member states. That court ruling is still pending, but the decision could undercut attempts to broadly apply CETA on a provisional basis.

Even if the provisional application barrier is overcome, opposition from any of the national or regional parliaments could kill CETA altogether. Canadian officials have tried to downplay that risk, noting that such a scenario has never occurred before and suggesting that votes might be postponed indefinitely if defeat in a member state seemed likely.

But with rising opposition to trade agreements, the fallout from Brexit, and fears in Europe that a Canadian deal could pave the way for an even larger agreement with the United States, banking on past history or delayed votes suggests that CETA is in far bigger trouble than officials would care to admit.

The post Why the Canada – EU Trade Deal is in More Trouble Than the Government Admits appeared first on Michael Geist.

A Canada-EU Trade Deal is in More Trouble than We’re Told

Michael Geist Law RSS Feed - Tue, 2016/07/12 - 10:08

Appeared in the Toronto Star on July 11, 2016 as A Canada-EU Trade Deal is in More Trouble than We’re Told

The Canadian government has characterized the proposed trade agreement between Canada and the European Union (CETA) is its top trade priority. The deal would increase trade by removing tariffs from many products, but also create significant costs. The implications for digital and intellectual property issues are particularly important, with chapters on e-commerce and telecommunications services, an extension of patent protections for pharmaceutical drugs could raise health care costs by millions of dollars, and protections for hundreds of geographical indications may restrict Canadian producers of common cheeses, wines, and meats.

The substance of CETA merits debate, but its most distinguishing feature during the seven years of negotiations has been the steady stream of unrealistic claims from Canadian officials about how close they are to concluding the deal.

In April 2010, the government said it would be finished in 2011. In 2011, reports said it would be done in 2012. In October 2012, the projection was a deal by year-end. It took until the fall of 2013 for a ceremony marking an “agreement-in-principle”. That too proved to be premature as there was another event celebrating an official draft in 2014 followed by more legal drafting and the renegotiation of controversial investor protection provisions that led to the release of another text earlier this year.

Given this history, it was rather remarkable to see Canadian officials claim last week that the vast majority of the agreement should take effect by early 2017. In reality, CETA has been the target of vocal opposition in Europe and International Trade Minister Chrystia Freeland faces a steep climb to turn the text into a binding agreement.

The enormity of the challenge became clear in recent weeks as European officials bowed to public pressure on its plan for ratification of the agreement. The initial plans were to treat CETA as an “EU-only” agreement which would have allowed for approval from just two institutions – the EU Council (essentially the executive of the EU comprised of a representative from each of the 28 member states) and the European Parliament.

After several European countries expressed opposition to the EU-only approach, officials backtracked by announcing last week that CETA will be treated as a “mixed agreement”, which requires approval from the EU Council, the European Parliament and the parliaments of all member states (which run to 38 parliaments with regional parliaments in some countries). The change will mean that full implementation of CETA will take years, not months.

Despite the political opposition in Europe and the further complications created by Brexit that could undercut the benefits of the agreement (the United Kingdom represents roughly one-third of Canadian trade to Europe), Canadian officials insist that CETA will receive EU Council approval in the fall and Parliamentary approval by early 2017. If that happens, the agreement could take “provisional” effect soon after with officials claiming that approximately 90 per cent of the agreement would be operational.

Yet this plan seems certain to run into political and legal barriers. From a political perspective, several European parliaments have already expressed their opposition CETA, suggesting that it will face a rough ride at each approval stage. European officials tried to pacify the opposition by shifting to a “mixed agreement” approval process, but the plan to still provisionally apply virtually all of the agreement seems certain to inflame further political backlash.

The legal barriers may be even more daunting. European officials claim that almost the entire agreement falls within their exclusive competence, but legal experts have raised serious doubts about that interpretation. In fact, the EU itself has referred another trade agreement – the EU-Singapore Free Trade Agreement – to the European Court of Justice to obtain guidance on which elements of that deal fall within its exclusive competence and which are shared with member states. That court ruling is still pending, but the decision could undercut attempts to broadly apply CETA on a provisional basis.

Even if the provisional application barrier is overcome, opposition from any of the national or regional parliaments could kill CETA altogether. Canadian officials have tried to downplay that risk, noting that such a scenario has never occurred before and suggesting that votes might be postponed indefinitely if defeat in a member state seemed likely.

But with rising opposition to trade agreements, the fallout from Brexit, and fears in Europe that a Canadian deal could pave the way for an even larger agreement with the United States, banking on past history or delayed votes suggests that CETA is in far bigger trouble than officials would care to admit.

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 A Canada-EU Trade Deal is in More Trouble than We’re Told appeared first on Michael Geist.

Canadian Battle over “Zero Rating” Places Net Neutrality Safeguards at Risk

Michael Geist Law RSS Feed - Tue, 2016/07/05 - 10:20

Net neutrality emerged as a top Internet policy issue over 10 years ago as some Internet service providers openly discussed creating a two-tier system with a fast lane for websites and applications willing to pay additional fees and a slow lane for everyone else. The companies maintained that consumers would benefit from the two-tier approach by gaining faster access to premium content.

Internet users and emerging technology companies banded together to oppose the approach, arguing that all traffic should be treated in an equal manner regardless of content, source, or destination. They noted that the two-tier approach could lead to unfair competition and an inability for start-up companies to challenge established players.

My weekly technology law column (Toronto Star version, homepage version) notes that Internet users won the policy battle and years later net neutrality rules can be found worldwide. Indeed, the importance of an “open Internet” was recently affirmed by Navdeep Bains, Canada’s Minister of Innovation, Science and Development, who told an international conference that the economy depends upon it.

The Canadian Radio-television and Telecommunications Commission (CRTC) established its policy response in 2009 with the Internet traffic management practices. The rules restrict content blocking or slowdowns and require ISPs to disclose how they manage their networks.

The net neutrality debate has shifted in recent years to the issue of “zero rating” or “differential pricing”, references to network providers exempting certain content from data charges. While the traffic management practice has flipped from charging extra for content to offering access to content without data charges, the fundamental concerns are largely the same.

Large providers want to use zero rating or differential pricing schemes to shift away from treating all content in an equal manner. If they are permitted to do so, the two-tier Internet will return with content and applications often succeeding based on the ability to strike lucrative deals with network providers.

Regulators around the world have worked to stop zero rating plans for precisely these reasons. For example, earlier this year India’s officials blocked Facebook from continuing with a “free service” that only permitted access to a small number of sites (including Facebook itself). In Canada, the federal court recently upheld a CRTC decision which found that a Bell mobile television service violated the law by exempting some data charges for licensed content but left the data costs for other video services unchanged.

With providers thinking about implementing other zero rating services (including a Videotron music service that is the subject of a current complaint), the CRTC has launched a full consultation on the issue. The first round of comments were filed this week and point to a heated battle between telecom giants and consumer groups.

Some of Canada’s largest network providers, including Bell, Telus, and Shaw, have expressed their support for differential pricing models, claiming that consumers benefit from the practice. Moreover, they believe that the models are consistent with existing law that prohibits undue preferences. The position is not unanimous, however, as Rogers supports the principle that all applications and content should generally be subject to standard data charges.

The large providers are joined by companies or groups that have future zero rating plans in mind. These include Facebook and the Canadian Media Production Association, which envisions the possibility of promoting Canadian content through mandated zero rating schemes.

Standing opposed to zero rating are consumer and public interest groups, who oppose granting ISPs the power to differentiate between content, particularly where they may have a vested interest in favouring some content over others. The Competition Bureau also voiced concern with potential for differential pricing to have a negative effect on competition.

Interestingly, many industry players hold a similar view. For example, Pelmorex Media, the owner of the Weather Network, states that “we are not aware of any alleged benefit from differential pricing which would justify compromising the current level of net neutrality in Canada and thereby interfering with innovation and open access to content on the Internet.”

A group of Canada’s largest radio station owners (including Rogers Media, Newcap, and Corus Entertainment) also warn about the dangers of differential pricing, noting that it “could provide unlicensed or non-Canadian audio services with an undue advantage and/or cause an undue disadvantage to licensed commercial radio stations.”

In fact, smaller ISPs and telecom companies are also concerned with differential pricing. TBayTel, a telecom company based in Thunder Bay, argues that “the practice of exempting certain service applications such as music or video streaming from a subscriber’s data plan cap should not be allowed.”

A CRTC hearing on zero rating and differential pricing is planned for the fall, but it is already clear that a retreat from Canada’s well-established net neutrality principles will face vocal opposition from government, consumer groups, and a growing number of industry players.

The post Canadian Battle over “Zero Rating” Places Net Neutrality Safeguards at Risk appeared first on Michael Geist.

Zero Rating Battle Throws Net Neutrality in Doubt

Michael Geist Law RSS Feed - Tue, 2016/07/05 - 10:14

Appeared in the Toronto Star on July 4, 2016 as ‘Zero Rating’ Battle Throws Net Neutrality in Doubt

Net neutrality emerged as a top Internet policy issue over 10 years ago as some Internet service providers (ISPs) openly discussed creating a two-tier system with a fast lane for websites and applications willing to pay additional fees and a slow lane for everyone else. The companies maintained that consumers would benefit from the two-tier approach by gaining faster access to premium content.

Internet users and emerging technology companies banded together to oppose the approach, arguing that all traffic should be treated in an equal manner regardless of content, source, or destination. They noted that the two-tier approach could lead to unfair competition and an inability for start-up companies to challenge established players.

Internet users won the policy battle and years later net neutrality rules can be found worldwide. Indeed, the importance of an “open Internet” was recently affirmed by Navdeep Bains, Canada’s Minister of Innovation, Science and Development, who told an international conference that the economy depends upon it.

The Canadian Radio-television and Telecommunications Commission (CRTC) established its policy response in 2009 with the Internet traffic management practices. The rules restrict content blocking or slowdowns and require ISPs to disclose how they manage their networks.

The net neutrality debate has shifted in recent years to the issue of “zero rating” or “differential pricing”, references to network providers exempting certain content from data charges. While the traffic management practice has flipped from charging extra for content to offering access to content without data charges, the fundamental concerns are largely the same.

Large providers want to use zero rating or differential pricing schemes to shift away from treating all content in an equal manner. If they are permitted to do so, the two-tier Internet will return with content and applications often succeeding based on the ability to strike lucrative deals with network providers.

Regulators around the world have worked to stop zero rating plans for precisely these reasons. For example, earlier this year India’s officials blocked Facebook from continuing with a “free service” that only permitted access to a small number of sites (including Facebook itself). In Canada, the federal court recently upheld a CRTC decision which found that a Bell mobile television service violated the law by exempting some data charges for licensed content but left the data costs for other video services unchanged.

With providers thinking about implementing other zero rating services (including a Videotron music service that is the subject of a current complaint), the CRTC has launched a full consultation on the issue. The first round of comments were filed this week and point to a heated battle between telecom giants and consumer groups.

Some of Canada’s largest network providers, including Bell, Telus, and Shaw, have expressed their support for differential pricing models, claiming that consumers benefit from the practice. Moreover, they believe that the models are consistent with existing law that prohibits undue preferences. The position is not unanimous, however, as Rogers supports the principle that all applications and content should generally be subject to standard data charges.

The large providers are joined by companies or groups that have future zero rating plans in mind. These include Facebook and the Canadian Media Production Association, which envisions the possibility of promoting Canadian content through mandated zero rating schemes.

Standing opposed to zero rating are consumer and public interest groups, who oppose granting ISPs the power to differentiate between content, particularly where they may have a vested interest in favouring some content over others. The Competition Bureau also voiced concern with potential for differential pricing to have a negative effect on competition.

Interestingly, many industry players hold a similar view. For example, Pelmorex Media, the owner of the Weather Network, states that “we are not aware of any alleged benefit from differential pricing which would justify compromising the current level of net neutrality in Canada and thereby interfering with innovation and open access to content on the Internet.”

A group of Canada’s largest radio station owners (including Rogers Media, Newcap, and Corus Entertainment) also warn about the dangers of differential pricing, noting that it “could provide unlicensed or non-Canadian audio services with an undue advantage and/or cause an undue disadvantage to licensed commercial radio stations.”

In fact, smaller ISPs and telecom companies are also concerned with differential pricing. TBayTel, a telecom company based in Thunder Bay, argues that “the practice of exempting certain service applications such as music or video streaming from a subscriber’s data plan cap should not be allowed.”

A CRTC hearing on zero rating and differential pricing is planned for the fall, but it is already clear that a retreat from Canada’s well-established net neutrality principles will face vocal opposition from government, consumer groups, and a growing number of industry players.

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 Zero Rating Battle Throws Net Neutrality in Doubt appeared first on Michael Geist.

Canadian File Sharing Lawsuit Could Upend Copyright Privacy Protections

Michael Geist Law RSS Feed - Tue, 2016/06/28 - 09:24

The centerpiece of Canada’s 2012 digital copyright reforms was the legal implementation of the “notice-and-notice” system that seeks to balance the interests of copyright holders, the privacy rights of Internet users, and the legal obligations of Internet service providers (ISPs). The law makes it easy for copyright owners to send infringement notices to ISPs, who are legally required to forward the notifications to their subscribers. The personal information of subscribers is not disclosed to the copyright owner.

Despite the promise of the notice-and-notice system, it has been misused virtually from the moment it took effect with copyright owners exploiting a loophole in the law by sending settlement demands within the notices.

My weekly technology law column (Toronto Star version, homepage version) notes that the government has tried to warn recipients that they need not settle – the Office of Consumer Affairs advises that there are no obligations on a subscriber that receives a notice and that getting a notice does not necessarily mean you will be sued – yet many subscribers panic when they receive notifications and promptly pay hundreds or thousands of dollars.

While the government has been slow to implement an easy fix for the problem in the form of regulations prohibiting the inclusion of settlement demands within the notices,  another issue looms on the legal horizon that could eviscerate the privacy protections associated with the system.

Earlier this year, Voltage Pictures, which previously engaged in a lengthy court battle to require Canadian ISPs to disclose the names of alleged file sharers, adopted a new legal strategy. While the company obtained an order to disclose names in the earlier case, it came with conditions and costs. Its latest approach involves filing a reverse class action lawsuit against an unknown number of alleged uploaders of five of its movies.

The Voltage filing seeks certification of the class, a declaration that each member of the class has infringed its copyright, an injunction stopping further infringement, damages, and costs of the legal proceedings. Voltage names as its representative respondent an unknown uploader – John Doe – who is linked to a Rogers IP address. It admits that it does not know the names or identifies of any members of its proposed class, but seeks to group anyone in Canada who infringed its copyright.

Class action experts were puzzled by the lawsuit, questioning whether a reverse class action (which features a single plaintiff and multiple defendants) could be used to target copyright infringement. Class actions typically involve multiple plaintiffs (often consumers) and one defendant.

The full implications of the strategy began to emerge in recent weeks as Voltage asked the court to order Rogers to disclose the identity of its John Doe. Rogers is contesting the request with a spokesperson stating that “we protect our customers’ privacy and we will not share their personal information without their permission, or a court order. We require those safeguards to deter improper or over-reaching requests for disclosure.” (Note that I am adviser to the Canadian Internet Policy and Public Interest Clinic, which is intervening in the case.)

That is important because Voltage is using the notice-and-notice system to argue that it is entitled to subscriber information. It argues in court documents that the system is designed to allow copyright holders to “inexpensively identify and locate the infringers of copyright.” Yet the reality is that the government did not intend for the rules to make it easy to disclose the identity of alleged infringers with the ISPs prohibited from simply handing over such information.

Canadian courts have established rules that may compel ISPs to hand over subscriber information, but there are strict limitations in how the information can be used and restrictions on public disclosure. Voltage envisions using the personal information of a single random person as the lead name in a high profile class action lawsuit, a much more intrusive use of the information with far reaching implications for the affected individual.

If Voltage succeeds, one of the last remaining benefits of an already imperfect system will be lost and with it, further erosion of Internet privacy in Canada.

The post Canadian File Sharing Lawsuit Could Upend Copyright Privacy Protections appeared first on Michael Geist.

How a File-Sharing Lawsuit Against Rogers Threatens Your Internet Privacy

Michael Geist Law RSS Feed - Tue, 2016/06/28 - 09:21

Appeared in the Toronto Star on June 27, 2016 as How a File-Sharing Lawsuit Against Rogers Threatens Your Internet Privacy

The centerpiece of Canada’s 2012 digital copyright reforms was the legal implementation of the “notice-and-notice” system that seeks to balance the interests of copyright holders, the privacy rights of Internet users, and the legal obligations of Internet service providers (ISPs). The law makes it easy for copyright owners to send infringement notices to ISPs, who are legally required to forward the notifications to their subscribers. The personal information of subscribers is not disclosed to the copyright owner.

Despite the promise of the notice-and-notice system, it has been misused virtually from the moment it took effect with copyright owners exploiting a loophole in the law by sending settlement demands within the notices.

The government has tried to warn recipients that they need not settle – the Office of Consumer Affairs advises that there are no obligations on a subscriber that receives a notice and that getting a notice does not necessarily mean you will be sued – yet many subscribers panic when they receive notifications and promptly pay hundreds or thousands of dollars.

While the government has been slow to implement an easy fix for the problem in the form of regulations prohibiting the inclusion of settlement demands within the notices,  another issue looms on the legal horizon that could eviscerate the privacy protections associated with the system.

Earlier this year, Voltage Pictures, which previously engaged in a lengthy court battle to require Canadian ISPs to disclose the names of alleged file sharers, adopted a new legal strategy. While the company obtained an order to disclose names in the earlier case, it came with conditions and costs. Its latest approach involves filing a reverse class action lawsuit against an unknown number of alleged uploaders of five of its movies.

The Voltage filing seeks certification of the class, a declaration that each member of the class has infringed its copyright, an injunction stopping further infringement, damages, and costs of the legal proceedings. Voltage names as its representative respondent an unknown uploader – John Doe – who is linked to a Rogers IP address. It admits that it does not know the names or identifies of any members of its proposed class, but seeks to group anyone in Canada who infringed its copyright.

Class action experts were puzzled by the lawsuit, questioning whether a reverse class action (which features a single plaintiff and multiple defendants) could be used to target copyright infringement. Class actions typically involve multiple plaintiffs (often consumers) and one defendant.

The full implications of the strategy began to emerge in recent weeks as Voltage asked the court to order Rogers to disclose the identity of its John Doe. Rogers is contesting the request with a spokesperson stating that “we protect our customers’ privacy and we will not share their personal information without their permission, or a court order. We require those safeguards to deter improper or over-reaching requests for disclosure.” (Note that I am adviser to the Canadian Internet Policy and Public Interest Clinic, which is intervening in the case.)

That is important because Voltage is using the notice-and-notice system to argue that it is entitled to subscriber information. It argues in court documents that the system is designed to allow copyright holders to “inexpensively identify and locate the infringers of copyright.” Yet the reality is that the government did not intend for the rules to make it easy to disclose the identity of alleged infringers with the ISPs prohibited from simply handing over such information.

Canadian courts have established rules that may compel ISPs to hand over subscriber information, but there are strict limitations in how the information can be used and restrictions on public disclosure. Voltage envisions using the personal information of a single random person as the lead name in a high profile class action lawsuit, a much more intrusive use of the information with far reaching implications for the affected individual.

If Voltage succeeds, one of the last remaining benefits of an already imperfect system will be lost and with it, further erosion of Internet privacy in Canada.

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

The post How a File-Sharing Lawsuit Against Rogers Threatens Your Internet Privacy appeared first on Michael Geist.

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

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

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

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

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

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

Each argument is simply wrong.

The Decline of Educational Publishing in Canada

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

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

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

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

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

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

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

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

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

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

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

Canadian Fair Dealing Guidelines Are Not the Result of 2012 Reforms

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

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

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

Internet-Based Alternatives

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Democracy in Action: Reflecting on the Toronto TPP Town Hall

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

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

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

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

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

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

Canada’s Surveillance Crisis Now Hiding In Plain Sight

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Security Agencies Need to Fess Up About Illegal Privacy Breaches

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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