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The “Bulte Report” Redux: Canadian Heritage Committee Releases Embarrassingly One-Sided Remuneration Models Study

Michael Geist Law RSS Feed - Wed, 2019/05/15 - 16:57

The Canadian government announced its plans for a copyright review in December 2017, tasking the Standing Committee on Industry, Science and Technology with the review. That report has been in the drafting stage for several months and is expected before the summer. In an effort to dampen concerns that Canadian Heritage would play a diminished role in the review, the responsible ministers asked the Industry committee to ask the Heritage committee to conduct a review on remuneration models for artists and creative industries. The formal request asked the Standing Committee on Canadian Heritage to “call upon the expertise of a broad range of stakeholders impacted by copyright to ensure a holistic understanding of the issues at play.”

Rather than providing the recommendations directly to the Industry committee as requested, the Heritage committee and chair Julie Dabrusin, a Liberal MP, chose instead to release its full report today. The report, which utterly failed to comply with the request to call on a broad range of stakeholders, is the most one-sided Canadian copyright report issued in the past 15 years, largely mirroring the approach of the discredited 2004 Bulte report that was subsequently rejected by the government.

Representing little more than stenography of lobbying positions from Canadian cultural groups, the report simply adopts as recommendations a wide range of contentious proposals: copyright term extension, restricted fair dealing, increased damages, as well as several new rights and payments. There is no attempt to engage with a broad range of stakeholders, much less grapple with contrary evidence or positions.

For example, on the issue of educational issues, the report adopts the recommendations of the publishing industries, referencing contrary positions only as an afterthought (I am referenced based on my submission). The committee did not hear from many alternative perspectives, but where they did – either in person or via a submission – most are ignored. Professors Jeremy de Beer, Ariel Katz, Nick Mount, Meera Nair along with lawyer Howard Knopf and author Cory Doctorow all contributed to the process, but garnered no mention in the report other than being listed as participants.

The issue of copyright term extension provides a good illustration of the committee’s one-sided approach. By any reasonable measure, the issue of extending the term of copyright from life of the author plus 50 years to life plus 70 years is controversial. Canada suspended the extension in the revamped TPP and resisted term extension for years given ample evidence that it does not lead to new creativity but would harm access. Yet the committee recommends term extension, admitting:

No witnesses expressed outright opposition to extending of the copyright term from 50 to 70 years after death.

Any report that failed to include any witnesses opposing term extension has not met with a broad range of stakeholders. In fact, the committee makes no mention of the word “balance”, only citing the term in quotes from two witnesses. The report will be trumpeted by some rights holders, but the supposed intended audience – the Industry committee conducting the copyright review – should reject it as unhelpful, one-sided, and inconsistent with its instructions.

The post The “Bulte Report” Redux: Canadian Heritage Committee Releases Embarrassingly One-Sided Remuneration Models Study appeared first on Michael Geist.

The LawBytes Podcast, Episode 11: Reinterpreting Canadian Privacy Law – David Fraser On Cross-Border Data Transfers, the Right to De-Index, and the Facebook Investigation

Michael Geist Law RSS Feed - Mon, 2019/05/13 - 09:05

Daniel Therrien, the Privacy Commissioner in Canada, is in the courts battling Google over a right to de-index. He’s calling for order making after Facebook declined to abide by his recommendations. And he’s embarked on a dramatic re-interpretation of the law premised on incorporating new consent requirements into cross-border data transfers. David Fraser, one of Canada’s leading privacy experts, joins the podcast to provide an update on the recent Canadian privacy law developments and their implications.

The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Credits:

CBC, Privacy Commissioners Say Canada Has a Lot of Catching Up To Do
Office of the Privacy Commissioner of Canada, PIPEDA and Your Business
CNBC, Everything You Need to Know About a New EU Data Law That Could Shake Up Big US Tech
CTV News
CBC News, Facebook Broke Privacy Laws, Watchdogs Report

Transcript:

LawBytes Podcast – Episode 11 | Convert audio-to-text with Sonix

Michael Geist:
This is LawBytes, a podcast with Michael Geist

Michael McEvoy:
Canada is far far behind I think many jurisdictions. Europe certainly the United States doesn’t have comprehensive privacy legislation by any means but through the Federal Trade Commission there is some element of regulation of privacy and obviously we’ve seen that with the latest investigation of Facebook. Canada has a lot of catching up to do in this regard both at a federal and provincial level.

Michael Geist:
There’s a lot happening in the Canadian privacy world. Daniel Therrien, the Privacy Commissioner of Canada, is in the courts battling Google over a right to de-index. He’s calling for order making power after Facebook declined to abide by his recommendations. And he’s embarked on a dramatic reinterpretation of the law premised on incorporating new consent requirements into cross-border data transfers. Underlying it all is a Privacy Commissioner of Canada who is seemingly frustrated with the law he’s been given to enforce. After years of calling for change he’s taking matters into his own hands with what feels like statutory amendments without actual amendments. Here to provide an update on the recent developments and their implications is David Fraser, one of Canada’s leading privacy experts, a partner at the law firm McInnes Cooper, and an active blogger at privacylawyer.ca.

Michael Geist:
David thanks so much for joining me on the podcast.

David Fraser:
My pleasure. Thank you.

Michael Geist:
So there is as I guess is always the case a lot happening in the Canadian privacy world but it’s really feels like underlying it quite a bit of it is a Privacy Commissioner of Canada who’s pretty frustrated with the law that he’s been given to enforce. And after years of calling for reform with limited success there’s the sense that he’s taking matters into his own hands almost by reinterpreting some of the law without actual statutory amendments. There’s there’s a number of examples but the one that is certainly quite a lot of people’s attention within the privacy world has to do with cross-border data transfers. So why don’t we start there. Perhaps you could can explain what a cross-border border data transfer is and why these issues really matter.

David Fraser:
Yeah. Certainly they happen quite often. That’s just the reality of the way that the world works right now particularly where it’s so mediated by technology. Probably the the one that people are most familiar with is you’re a Canadian. And you’re using a U.S. service provider. It could be Facebook it could be Google or it could be Amazon or whoever. And the data associated with whatever that activity is is going to be going to the U.S. to be processed or it ends up stored in a U.S. data center. And there’s also many examples where Canadian companies take advantage of cloud technology or efficiencies of scale where data is stored elsewhere. And then there’s also the much more traditional notion of let’s say you’re Air Canada and you’re flying a passenger to Paris you’re obviously going to have to move that passenger’s information to Paris if they want to check in at the airport to come back. So this sort of thing has happened for a very long time and happens quite regularly. And so it’s not an unusual occurrence and it’s just but it’s certainly it’s increasing particularly as so much of the data processing and data storage capacity in the world is outside of Canada.

Michael Geist:
Ok so we’re talking it sounds like even just from that brief description this is touching on everybody’s lives today from the kind of communication services they use to their banking to travel to just such a wide range of activity sometimes for the purposes as you suggest to store the data or to process it sometimes because the transactions are activities themselves are cross-border in nature. So I suppose the starting point from a legal perspective is how has Canadian privacy law traditionally treated these issues.

OPC:
What exactly does accountability mean for my business. Accountability means that you need to make sure someone in your organization is responsible for protecting the personal information you collect and that you give that person the tools and support to do it right.

David Fraser:
Since PIPEDA first came into effect in 2001 it hasn’t made any explicit distinction between activities that are taking place in Canada and activities are taking place elsewhere. And I guess one can assume that that was probably an explicit choice because at the time that PIPEDA was being drafted they already had the example of the European Data Protection Directive which preceded the GDPR which did regulate cross-border data transfers that did require if he were a data controller in the European Union and we wanted to transfer data outside of the European Union for somebody else to process on their behalf or if we were doing it on your own it had to go to a jurisdiction that had adequate privacy protection or there were other mechanisms that they could do that. So there is an explicit regulatory scheme in Europe related to cross-border data transfers. And the drafters of PIPEDA I assume expressly decided not to do that but focused on the first principle of the Canadian Standards Association Model Code for the protection of personal information which is entitled accountability, which requires any organization that is the primary custodian of that information and most often the organization that collected it in the first place from the consumer from the employee if they’re going to transfer information to anybody else to process regardless of where that takes place. They have to make sure that their service provider implements adequate protections for that information essentially requiring them to treat it as though they would treat it themselves subject to to our laws.

David Fraser:
And I’ve often taken a look at that and seen it as when it comes to the cross-border transfer, we need to make sure that your contract that you have with your service provider is going to be enforceable which requires taking a look at the legal system and rule of law in that other jurisdiction and a risk analysis related to that. And I think that’s the that’s the general consensus among practitioners of privacy law since 2001. Then we had guidance from Jennifer Stoddart the privacy commissioner at the time in 2009 related to cross-border data transfers which essentially made that the policy of the the Privacy Commissioner of Canada and did bring to the fore a notion that in their view their consumers should be given notice of this fact and usually that would be done in their privacy policies. So if you wanted to know where the your service provider or where the company was going to be processing information you’d be able to find it in that privacy policy as part of the openness principles. They’re kind of working together off the accountability principle and the openness principle that kind of clears the way towards doing that.

Michael Geist:
There’s a lot there and I just want to in a sense back up a little bit and unpack some of those pieces and so. So what I’m hearing you saying is that back when the private sector privacy law, PIPEDA, as you said here in Canada was being drafted there were a number of different policy options presumably available to Canada. They could have adopted the European style approach that as you mentioned essentially establishes some limitations on transfers across borders to ensure that it goes to jurisdictions that have laws that are viewed as adequate.

CNBC:
GDPR stands for the General Data Protection Regulation. If it sounds complicated. Well it is. It’s a set of sweeping data privacy rules going into effect across Europe and it applies to any company in the world with customers in the EU.

Michael Geist:
We’ve got a number of options for the future for the moment we meet that adequacy standard and that presumably could have been a model that we might have adopted. But as you suggest that’s not the one we adopted. We instead use this accountability principle and as you mentioned it effectively requires that an organization collecting the data is accountable for it no matter where it goes. So I I trust that that means that once your bank or your airline or your social media platform whoever has collected that personal information as long as they have appropriate consent it’s up to them to decide where it gets stored, where it gets processed, the Canadian law doesn’t really preclude moving it around to different jurisdictions around the world.

David Fraser:
That’s right and the organization that collected it in the first place which would be subject to Canadian privacy laws no doubt is the one that’s on the hook if anything happens to it even if it’s the subcontractors fault for example. And so I think that the incentives are built in there that to make sure that those protections are appropriate in place appropriately in place and would be primarily policed by the organization that collected the information in the first place.

Michael Geist:
Right. So they’re on the hook for this. Do they primarily achieve that today by way of contract which you mentioned that’s part of what you do. Is there an expectation though that they go beyond that many listeners will be familiar with all kinds of contracts and nobody really takes the time to read and there’s always questions about enforceability. Is simply papering this deal to say I’m requiring you service provider in another country to meet certain standards good enough or do Canadian privacy laws or at least the Privacy Commissioner’s Office under some of the guidance that you referenced expect something more.

David Fraser:
Well I would think it would be circumstance specific but certainly you could not just paper something and hand it over to a service provider who you know is not going to live up to those live up to those obligations and certainly it would be risky to do that because the first organization continues to be accountable for what happens to it. So if their service provider mistreats the information, misuses it, or even uses it for their own purposes because that takes it from being a transfer to an actual disclosure then they’re going to be on the hook for that but we don’t have our principles based legislation doesn’t put in place for example specific auditing requirements but that certainly has been a trend.

David Fraser:
Now one thing that’s that’s been interesting because GDPR and actually the Data Protection Directive before it did require these sorts of contracts to be in place between what is called in Europe controllers and processors. There has become a real consensus built up in terms of what these agreements should look like and what the auditing mechanism should be should be within them. But certainly it’s one of the things about again principles based legislation is the sensitivity of the information is probably going to be taken into account and the greater the risk related to the processing, the greater diligence. I think one would have to do in order to make sure that the service provider is capable of performing these and to make sure that they are in fact doing these things.

Michael Geist:
So there’s there’s a range of ways in which you would meet those your responsibilities and as you suggest it’s pretty context specific. Now that’s been the approach in Canada for a long time and there’s been guidance in place for for about a decade now but the Privacy Commissioner of Canada Daniel Therrien had surprised many just a few weeks ago by proposing a significant change. Perhaps you can describe what the commissioner’s office now has in mind.

David Fraser:
Yeah I wouldn’t characterize as they’re proposing a significant change. I guess he announced the significant change with respect to his own interpretation of the statute. So we’ve had this consensus since 2001 and so for more than 15 years on how cross-border transfers need to be managed and then certainly we had some formalization of that with Jennifer Stoddart’s guidance in 2009 and so what the current commissioner has proposed is that consent will be required for all transfers of personal information and his guidance focused on cross-border data flows. But I think one of the significant issues that a whole lot of people noticed almost immediately is that because our statute doesn’t deal with export of information from Canada at all it’s not even mentioned. If you required consent for a transfer outside of Canada, you have to require consent for a transfer within Canada and his logic, which I don’t agree with, is that a transfer even though transfers are called transfers compared to disclosures which in the statute are called disclosures. His view is that a transfer is a disclosure and a disclosure requires consent and therefore you have to get consent for any transfer of information. So he’s focused on cross-border but there’s going to be a collateral effect on any sort of movement of information from one company to another from one company to a service provider that I think is ultimately going to be very disruptive. And it’s been interesting because I’ve spoken to a large number of people who practice in this area many of whom think that ultimately it’s not rooted in the statute and ultimately will be probably more disruptive.

David Fraser:
What in my personal view what should have happened and certainly if he wants to rethink these things absolutely that’s I think law reform is part of his job and he should have had a consultation on the topic with a proposal that would then be taken to parliament and taken to the government to say look that the cross-border data transfers are now a concern of ours and for some reason that that concern has become more acute since 2001 and this is the way we need to rethink it rather than unilaterally abandoning what had been the consensus of the interpretation of his statute for quite a long time now which will really kind of throw a monkey wrench into a whole bunch of things.

David Fraser:
So one example is you cannot clear a credit card transaction in Canada entirely in Canada. You use your Visa, MasterCard or your American Express that is actually that has to be cleared in the United States. That’s just the way that the system works. So how are you going to interpose consent into that system. And it’s one thing if you talk about it on a go forward basis for any kind of new collections, use or disclosure. But most people have credit cards in their pockets that they’ve had for a dozen years. If they’re going to be incumbent upon the banks or Visa to go back to all of those consumers and say hey look we need your consent. Oh and here’s another kind of vehicle defect that the logic is if you don’t consent we’re going to take away your credit card which turns consent in that context into a bit of an illusion.

Michael Geist:
Sure no it doesn’t sound like that’s real consent if the option is you have the credit card or you just don’t.

David Fraser:
That’s right. Yeah. So to take a take it or leave it sort of sort of scenario which when we have more recent amendments to PIPEDA that talk about kind of raising the level of consent the threshold for consent and what’s required. It really doesn’t make sense to have like two steps forward on the transfer issue and one step backward on consent.

Michael Geist:
Right. And that sounds like if we unpack what you’ve just said it sounds like we’re talking about a whole series of concerns. There’s certainly the concern about the impact that had that it would have on surely current practices the impact that this would have on many of. Much of the data that’s already been collected or the relationships that exist between various organizations and their customers. There’s the concern that this isn’t cross-border at all that this is just data transfers full stop which is just such a common activity within current modern commercial activities that’s going to have a profound impact there. And then I suppose there’s finally this concern that we’ve got a privacy commissioner that it appears is reinterpreting longstanding approaches doing so rather than going through a consultative process that it would ultimately lead to actual legislative reform is in effect simply saying well this has been the law all along. I’m just changing how I’m interpreting that law.

David Fraser:
Yeah and I think that that comes to the bigger picture issue which is that I think that we have a commissioner who wants significant changes to our statute much more dramatic changes than any of his predecessors did. And in the absence of parliaments affecting those changes he is looking at the statute and seeing what he can do himself to give effect to those changes and I have concerns about that from just a rule of law perspective the kind of Parliament has handed him a statute and said this is this is a framework within which you operate. So there’s this four corners to that statute and we need certainty within it. That’s a kind of creative reinterpretations that only get him partway where he wants to go or are problematic. So just again on that on the cross border part of it I have clients who are for example American companies that operate in Canada that have in fact stored data in Canada. But let’s say they consolidate their back office stuff and they want to move all their Canadian data to a data center in the United States or to offices in the United States. They can do that without they’re unaffected by this because it’s not a transfer from one company to another it’s the US company operating in Canada moving it to the US and surely if the mischief to be addressed is the cross-border movement of information that should be captured but it’s not because it doesn’t get its hooks into the transfer provisions within principle one in the statute.

Michael Geist:
That’s an interesting illustration of how something designed to deal even with cross-border data transfers may not in some circumstances. What does it say about the accountability principle? If when you’ve got the commissioner seemingly tossing it away or acknowledging that it is not as effective as has previously been suggested if the commissioner’s in a sense saying we relied previously on the accountability principle for data be transferred as necessary and now we’re going to escalate some of the requirements there with new consent requirements. That seems to suggest that he doesn’t have confidence that the accountability principle provides the level of protection that for many many years the office said it does.

David Fraser:
Yeah. And I think it’s not throwing out the accountability principle. I think it’s I guess just reading between the lines in terms of I haven’t had a conversation with him about it in any detail but supplementing it by the consent principle. And I think there’s other issues with it related to. So for example our system in Canada under PIPEDA requires consent for the purposes so you give notice of the purposes of the collection industry disclosure under principle too. And then we get consent for those purposes. So we actually have a recent decision I think of the Federal Court of Appeal that said it’s all about the purposes. It’s not about how it’s processed or where it’s processed. We have the Toronto Real Estate Board decision where one of the issues was whether or not real estate brokers had gotten an adequate consent to go from kind of limited access to information about real estate transactions in the back office to allowing that information to be made available online. And the Federal Court of Appeals said look they got consent for the purposes in the first place the purposes haven’t changed. That means by which people are getting access to that information with the means by which has been disseminated as the only thing that’s changed.

David Fraser:
And so I think that there’s a disconnect. So if you if you wanted to do regulating cross-border transfers you should do it properly and it’s to be done from the ground up rather than taking a bunch of square pegs and trying to fit them into a bunch of round holes. And so the commission’s consultation on this which I’m not sure how much of a consultation it is because he said this is our policy we’d like your input on it and please let us know by the Fourth of June how much it’s going to be informed that set that it really should have been a more holistic approach to say what do we have an issue with cross-border transfers. Is that in fact a problem. The Patriot Act boogey man that we saw in the early 2000s is no longer the big boogey man that recent people got their heads around it. So what is the issue and what would be the appropriate solution rather than saying unilaterally I see an issue with this and I’m going to try to address it within anything that I can justify in my statute. And it just doesn’t fit. And ultimately I think it’s up to Parliament to decide whether or not that’s that’s appropriate and in effect this goes further than the GDPR does when it comes to cross-border data transfers.

David Fraser:
Because if you’re in Europe you can move data to Canada without consent because Canada has adequacy there’s no adequacy mechanism in PIPEDA that that he could lean back on. And that’s that’s just that the nature of the statute.

Michael Geist:
Right so it’s more broad based even in Europe in that respect which is interesting.

David Fraser:
If the boogey man is kind of law enforcement access to information by US authorities which has always been the kind of the Patriot Act boogey man from many of these concerns about cross-border data transfers particularly coming out of British Columbia and Nova Scotia statutes. Would he really and can he really interpret the legislation to limit or restrict transfers to the United States, our most significant trading power for a trading partner. Again this suggests to me we really need to take a step backwards and look at it in the broader context and see what is the mischief we’re trying to address and then how do we manage that.

Michael Geist:
You mentioned that the Privacy Commissioner seems truly constrained by the law is now looking for ways to almost bust out or reinterpret cross-border data transfers is obviously the most recent most obvious example of that but are there others and in particular I’m thinking now around the so-called right to be forgotten or the commissioner would call it the Right to de-index.

CTV News:
Canadians could soon have the right to be forgotten. It’s a matter being considered by the Federal Court of Canada this year at the request of the Privacy Commissioner. The right to be forgotten would allow people to request search engines remove or potentially embarrassing links about them.

David Fraser:
So this is an example. And so the commissioner when Commissioner Therrien started came into office he did a tour around and was looking to prioritize kind of the strategic priorities for his office. And one of the priorities that identified was online reputation and did a significant consultation about it. He appeared to be kind of open minded and saying hey look does does PIPEDA. Does our federal privacy statute include or does it adequately deal with online reputation. And does it include a right to be forgotten. And if it does what would that what would that look like. And so if I recall correctly there were about 30 submissions were provided, 30 substantive submissions were provided as part of that consultation.

David Fraser:
Most of the expert consultations or submissions I did one and many people that we know did the submissions suggested to him that PIPEDA currently as it’s drafted does not include a right to be forgotten and many people also cautioned that there would be serious Charter issues with freedom of expression. So the European Union under GDPR and actually under the Data Protection Directive before it has been interpreted by the top court in Europe to include a right to de-indexing and a significant part of that background is that that decision was based not just on the privacy law but also on European constitutional documents which include a constitutionally entrenched right to privacy that is alongside a constitutionally entrenched right to freedom of expression. Now we only have in our charter a constitutionally entrenched freedom of expression and so there would likely be significant issues in any law that says that thou shalt not provide particular search results is going to affect freedom of expression and would have to be justified under Section 1. That’s a reasonable limitation provided provided by law. And so many people kind of cautioned that that you know this is not something that that could just be read into PIPEDA and even if you amended PIPEDA to include such a right you’d have to be very careful about the constitutional issues.

David Fraser:
Now at the end of that process he produced a document, which did contemplate in his interpretation of the statute that there is a right to de-indexing in the statute. And there have been a number of complaints sent to his office from individuals many of whom are really quite sympathetic looking to have search results removed from principally from Google as the largest search engine operator in Canada but from others as I understand it, where the contents lawfully exists on a website on a media site or on a blog or someplace else like that. And there’s no way to have it taken down because it’s not defamatory for example but looking to have it removed from search results if you search for that person’s name. So similar to the right as it has been implemented in Europe which has resulted in a reference to the Federal Court of Canada by the by the Privacy Commissioner to determine some of the questions that this raises. But certainly not all of them.

Michael Geist:
So the issue now before the courts do you know where that stands at the moment?

David Fraser:
I do. So kind of full disclosure I’m co-counsel for Google on that on that particular matter. And so the three questions were put to the three issues were put to the Privacy Commissioner with respect to kind of the issue in one particular complaint. So PIPEDA applies to the collection use and disclosure of commercial personal information in the course of commercial activity. And the position was put forward that operated the search engine connecting news media to news readers is not inherently commercial activity and therefore PIPEDA doesn’t apply to that search transaction. The second issue put forward to the commissioner was that there’s a journalism exception in PIPEDA that says PIPEDA does not apply to where the collection use the disclosure of personal information this for journalistic purposes and for no other purpose. And so it was put to the commissioner that since that connecting news media outlets with readers is a journalistic function and therefore PIPEDA doesn’t apply. The third issue was that at the end of the day any requirement under Canadian law by a Canadian regulator to remove links to content that legally exists on the Internet infringes the charter and cannot be saved by Section 1. And therefore the whole thing was unconstitutional and we had proposed to the Privacy Commissioner a kind of collaborative judicial review because during during the consultation pretty well everybody had an opportunity to have their say but ultimately it was going to be decided by a judge as happened in Europe. And so we proposed that the three questions be put to the courts in a judicial review. And instead the commissioner initiated what’s called a reference under the federal courts act where only the first two questions were put to the court. The charter issue was not expressly before the court. And they’ve of really gone out of their way to try to prevent the charter question from being heard by the court at this stage. And so so currently where it stands is that the number of media parties applied to interview including some of the publishers of the content at issue in this particular case and they were denied. And it was said that it was premature and an application was made to the motion through the case. Now that’s a judge and ultimately to prothonotary to clarify that there are constitutional issues that are inherent in the first two questions. And that was that we’ve got a decision a couple weeks ago where the prothonotary said that that’s ultimately going to be an issue for the trial judge or for the ultimate judge to determine and it was kind of premature to fully resolve that question now. So it’s in its process I would expect that we would probably see a hearing on the merits in the fall and hopefully a decision shortly after that.

Michael Geist:
Interesting that sort of case that people are certainly going to keep an eye on and one suspects had been before multiple courts with many interveners along the way given the kinds of issues that you’ve just talked about. We would be remiss before for we close if we did touch on the recent Facebook investigation and the results that came out both from the Federal Commissioner and the B.C. Commissioner, most notably in the aspect that I think got the most amount of attention was Facebook simply saying well those might be the recommendations that you have at this stage we’re not prepared to follow them.

CBC News:
Canada’s privacy commissioner is blasting Facebook in a new report. He says the social media giant broke this country’s privacy laws and when he told Facebook to clean up its act it said. Now the commissioner says that’s unacceptable.

Commissioner Therrien:
They disagree with our legal conclusions. I don’t think it should be on in 2019 in terms of privacy legislation that a company a private company with its interests can say to a regulator: Thank you very much for your conclusions on matters of law. But we actually disagree and we will actually continue as we were. It is completely unacceptable.

Michael Geist:
They got caught a lot of people by surprise. This notion that somehow privacy law compliance might be voluntary or that there might actually be some out there that would say well we don’t have to follow what the commissioner says. Could you talk a bit about your thoughts on that decision and the issues around enforcement which of course go to the heart of some of the things that the Privacy Commissioner has been talking about as a shortcoming within the law.

David Fraser:
Absolutely. And I don’t think there is there is any doubt that the commissioner is finding itself frustrated that his interpretations of the statute are not necessarily prevailing and that he doesn’t have the ability to order people to comply with with his view. And so I’m at a conference right now and there was a panel yesterday that included Michael McEvoy the Information Privacy Commissioner of British Columbia and Commissioner Therrien talking about the the Cambridge Analytica and Facebook investigation. And one of the things that was said by Commissioner Therrien was that he’s frustrated that that his view his interpretation of the statute doesn’t ultimately prevail. And that’s one of the reasons why he needs order making powers. And I think it’s worth kind of breaking that down a little bit and looking a little bit at what came up in that particular investigation and then the positions that Facebook put forward which included that. So in the whole kind of Cambridge Analytica thing, that the individuals used an app that existed on the platform of the Facebook platform that resulted in their information being transferred to the app owner for want of a better term and then that app owner contrary to the promises that they made to the users transferred it elsewhere and it was then it was misused in connection with the political activities and things like that and Facebook put forward the position as I understand it that in fact that Facebook isn’t primarily accountable for what happens by those app developers that an individual made a choice to use that particular app and instead of it being we can actually kind of go full circle a little bit. That wasn’t to transfer information that was disclosure of information to a third party. That was triggered by the user and therefore the accountability principle is not it’s not in play in the way that the Commissioner suggested. So ultimately it rested on a different completely different view of legally what was going on in that particular scenario. And I think we have an arguable position to put forward. And so they simply did not agree with the legal interpretation of the statute. And ultimately it goes to the courts in order to be resolved and that’s how PIPEDA was implemented. That’s how it was drafted in the late 1990s and came into effect in 2009. And we’ve also heard from the commissioner particularly Commissioner Therrien that he needs order making powers because he doesn’t have the ability to require companies to do ABC or D or is looking for it to impose penalties on them. In effect our statute was designed so that the parties can take it to the court and ultimately it’s going to be for the for the court to decide. So certainly so things are unfolding I guess in a way as they should as the statute was drafted. But I can see his concern about that. Now I also have concerns with just giving the commissioner an order making powers because you would have to significantly re-jig his office in order to make sure that you’ve had procedural fairness.

David Fraser:
So we have the example of the Canada Human Rights Commission and tribunal and the Competition commissioner and the Competition tribunal in order to make sure that the advocate is not also the investigator the judge jury and ultimate executioner. And I would point to the CRTC enforcement folks under CASL or anti spam law as being an example of what actually could go wrong when you kind of include too much of that within within one body and so certainly I expect we are going to have and kind of the rumours are that we’re going to probably hear an announcement from the governments related to perhaps a new PIPEDA review. And so if you’re looking at kind of order making powers we need to be very careful to make sure that all of those things are taken into account. One of the things that was quite interesting on this panel that I referred to was also the assistant information commissioner from the United Kingdom talking about all the different firewalls between different parts of that office because they also have investigators they actually have prosecutorial functions as well. So they can issue criminal charges under under UK law. But they have to bend over backwards and be very diligent to make sure that those different functions are insulated from the other in order to guarantee procedural fairness.

Michael Geist:
David thanks so much for joining me on the podcast.

David Fraser:
No it’s a pleasure anytime.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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The post The LawBytes Podcast, Episode 11: Reinterpreting Canadian Privacy Law – David Fraser On Cross-Border Data Transfers, the Right to De-Index, and the Facebook Investigation appeared first on Michael Geist.

The LawBytes Podcast, Episode 10: Lowdown on Lawsuits – James Plotkin on Copyright Threats, Notices, and Lawsuits

Michael Geist Law RSS Feed - Mon, 2019/05/06 - 09:05

Copyright threats and lawsuits against individuals have been around in Canada since 2004, when they were rejected by the federal court. Those threats receded for about a decade, but now they’re back. Copyright notices, litigation threats, settlement demands, and actual lawsuits have re-emerged at the very time that the music and movie industries are experiencing record music streaming revenues in Canada and massive popularity of online video services. James Plotkin, a lawyer with Caza Saikaley in Ottawa, joins the podcast this week to help sort through what the notices mean, the implications of the threats and lawsuits, and where Canadian law stands on the issue.

The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Credits:

House of Commons, November 27, 2018
CBC News, Infringement Notices
CTV News, Company Collects 1 Million IP Addresses of Canadians Suspected of Illegally Downloading
CBC, As it Happens
CBC, Mainstreet NS

Transcript:

LawBytes Podcast, Episode10.mp3 | Convert audio-to-text with Sonix

Michael Geist:
This is Law Bytes, a podcast with Michael Geist

David Lametti:
What began to happen in Canada, Mr. Speaker and I saw this myself a number of times in my teaching is that American rights holders through American law firms would often allege content infringement in Canada and send out a letter saying you’ve You’ve infringed copyright. We’re going to sue you please pay x thousands of dollars by clicking on this link and we will forget this. And sadly Mr. Speaker a number of people didn’t realize that this kind of claim was actually being made against Canadian law in contravention of Canadian law and actually paid out.

Michael Geist:
Copyright threats and lawsuits against individuals have been around for awhile. The Canadian Recording Industry Association, which now calls itself Music Canada, led the charge way back in 2003 with threats to sue Napster users. Lawsuits were launched a year later but were rejected by the Federal Court citing a confluence of concerns involving evidence privacy and the state of Canadian copyright law. Those threats receded for about a decade but now they’re back. Copyright notices, litigation threats, settlement demands, and actual lawsuits have reemerged at the very time the music and movie industries are experiencing record streaming revenues and massive popularity of online services. There’s a lot of confusion and concern about what’s happening. What the notices mean,the implications of the threats and lawsuits, and where Canadian law stands on the issue. Here to help sort through what’s going on is James Plotkin, a lawyer with Casa Saikeley in Ottawa who has taken on several of these copyright cases.

Michael Geist:
Grateful to you for coming on and helping unpack a little bit what’s taking place. I feel like for this episode in particular we need the caveat this is not legal advice we’re having a conversation about our understanding of the law.

James Plotkin:
Of course I would never give legal advice into a microphone at a podcast.

Michael Geist:
Good to hear no nor should you. So why don’t we start by clarifying the difference between the threats that people are seeing often times through the notice and notice system as opposed to the lawsuits and why don’t we start with the threats and the notice and notice system.

CBC News:
Did you hear the one about the 86 year old grandmother who is facing a five thousand dollar fine for illegally downloading a zombie killing video game. It’s no Halloween joke. Ontario’s Christine McMillan recently received two emails claiming she had illegally downloaded Metro 2033. She says she’s innocent and insists her wireless connection may have been hacked. Well guilty or not, McMillan is one of tens of thousands of Canadians who received similar notices. Part of the new rules that came came in under changes to Canada’s Copyright Act.

James Plotkin:
The notice notice system came in 2012 when Canada modernized its copyright legislation and this was heralded as a quote unquote made in Canada approach to dealing with online piracy of music, films and other copyrighted content. This was in juxtaposition with the notice and takedown system that was in effect and has been in effect in the United States since about 2000 under their copyright legislation called the Digital Millennium Copyright Act. And so the way the notice and notice system works essentially is a rights holder may send a notice of purported infringement or notice of infringement to an ISP and the ISP then without actually disclosing the identity of the subscriber forwards that to the subscriber with usually an introductory text saying you know we received this from the rights holder. We have not verified its veracity but here it is. And then the content of the notice comes to the individual.

Michael Geist:
So the any piracy agency or the rights holder whoever happens to be sending these notices doesn’t know the end of the identity of the individual and the ISP isn’t disclosing it. They’re merely serving as a conduit to transfer on this message.

James Plotkin:
Correct. And that’s under the notice and notice regime and I’m sure we’ll talk a little bit more about some other mechanisms that rights holders are used to in fact get at that information. But the notice and notice is an administrative process essentially that’s supposed to act as an educational and deterrence tool to individuals who hopefully by receiving one or more of these notices will curb whatever habits that they have been doing online to the extent that those individuals subscribers themselves actually have done the infringement. That’s a totally different matter. They may not have been the individuals who infringed if anyone did at all.

Michael Geist:
Okay right. So that I think that’s important point to make. So we’re talking here about an allegation based on some entity trying to monitor activity online. This isn’t proof, it’s not determinative it’s not a judgment.

James Plotkin:
It’s not proof it’s not determinative. And again it’s meant to be a notice it’s not any proof of that leak first of all that legal rights even exist and to the extent that they do that they’ve been infringed. And to the extent that they exist existing have been infringed that they’ve been infringed by the individual who receives the notice because we have to recall that the ISP forwards this information to their subscriber. But if you have six people living in your house and 20 people visiting and using the Wi-Fi it might very well be that someone other than that subscriber did the infringement to the extent that there was one.

Michael Geist:
OK fair enough. And do the ISP have to forward on these notices?

James Plotkin:
And in fact they do. And while there are no damages or any remedies against individuals who received notices there are statutory damages under Section 41.26 of the Copyright Act that can be levied against the ISP for failing to comply with the system and in fact one of these rights holders called me to productions is currently pursuing TekSavvy a Canadian ISP attempting to get these statutory damages for alleged failures to properly forward these notices.

Michael Geist:
Ok so the internet providers themselves obviously aren’t self generating the notices they’re serving as this conduit forwarding on the notices and under the current system effectively they’ve got no real choice but to forward on those notices or the ISP itself faces the prospect of real liability.

James Plotkin:
That’s correct.

Michael Geist:
And it’s interesting. My understanding is the systems was in place well before it became formalized within the copyright act in 2012 and then took a couple of years until it actually took effect but this was used on an informal basis for for many years and seemed to have some amount of effectiveness in terms of addressing the behaviour that been talking about. So where did we go wrong in terms of what what we see taking place right now.

James Plotkin:
Well I suppose whether we went wrong depends on depends on who you ask. My one of my issues with this system from my perspective is that up until recently and and quite recently in fact the content of these notices were not regulated at all. So rights holders could essentially put in whatever they want. And I think there may be varying levels of classiness by people in their notices I think some had more of a shakedown approach where as others were actually trying to educate and deter further infringements. And this all changed. Recent about six months ago in fact when parliament part of the budget bill. I believe it was C-86 introduced an amendment to Section 41.25 of the act and added a subsection 3 which prohibited the inclusion of certain content and among that offers to settle and any request or demand from it for either payment for an alleged infringement or for personal information. So this could not be used as a way to actually get at the person’s identity or to extract a settlement from them directly.

Michael Geist:
Ok so when you say some were being used as a shakedown essentially what you’re saying is that some were putting in some sort of settlement demand or legal demands in the notification itself.

CTV News:
Frankly this sounds a little bit creepy. So now I know what it does. I think you know if there’s a million Canadians out there million Canadians being monitored who exactly is doing the monitoring and what kinds of information do they have. Ok. Well we are one company that is doing monitoring of pirated content. So we’re not monitoring people we’re monitoring the pirated content. If people go to the pirated content to download it they may become subject to our monitoring effort.

James Plotkin:
Yes. I’ve seen I’ve heard anecdotally and in one instance I’ve actually seen one of these notices from from way back and yeah the content as I said there are varying degrees of classiness. I mean I recently a client of mine showed me one from HBO and they didn’t do that. It was really more of an education approach. They didn’t threaten the lawsuit they didn’t threaten to take legal action but you know left them on the table of course in the event the infringement continued and he also said that it came remarkably quickly. So this individual had downloaded an episode of the popular show Game of Thrones and he said that shortly within five or 10 minutes after having completed the download he had received a notice from HBO or from the ISP or HBO via the ISP quite quickly in fact and so they asked why.

Michael Geist:
Within minutes of downloading it went from HBO or ever does the monitoring for them to the ISP and then forwarded along directly the subscriber.

James Plotkin:
Within minutes and so it seems HBO might have even a more advanced content surveillance system than others but that’s I’m just speculating.

Michael Geist:
Well that’s pretty amazing to hear the speed with which they were able to do that. Now for those that were so-called less classy they’re including I assume they included some kind of link ultimately to saying if you if you pay if you please click on this link or click on this link and there there would be some sort of page that would allow the person to pay a fee presumably and then settle the claim they’re doing so without knowing who the person is, without having proven the allegation, they’re just in a sense taking advantage of a subscriber who might not be aware of the fact that they don’t know any of that and simply pay out of fear for what might come next.

James Plotkin:
That’s right. And that’s well that’s what I’ve heard and I. To be fair I haven’t seen one of those with the link itself but I have heard again anecdotally stories of that nature and you know is frightening language is intended to extract settlement from people who may or very well may not have perpetrated the act of alleged infringement. And so that I think was a concern and I think it was borne of that concern that this new amendment to the law came in effect and actually started regulating the content and I know that this was criticized by certainly some people for not having happened sooner.

Michael Geist:
Sure. And I think I was one of those people.

James Plotkin:
You might have been.

Michael Geist:
I should note that I have seen some of those those notices there was a period of time where I was getting e-mails from recipients, certainly on a weekly basis. Not sure what to do. And and left left feeling rather helpless and a little bit hopeless because it can be I think for a lot of people are pretty scary thing to receive what feels like a legal demand. So the government sought to address this by by prescribing as you suggest limits on the language.

CBC As It Happens:
What happens when say HBO finds out that you have been illegally downloading the game of thrones is that they send an e-mail to your Internet provider. And as of Canadian rules that came into effect in January 2015 your provider then has to ask that e-mail on to you. And that is what has been happening at the University of Manitoba repeatedly.

Michael Geist:
Is this likely to to address the problem.

James Plotkin:
Well I suppose time will tell and I can’t claim to have any real empirical information on this although one hopes that to the extent that the notices can no longer demand settlement or give any kind of indication that liability has been proven or found or that the person who receives notice themselves are the ones who are liable if anyone should hopefully cause people at least the careful readers to maybe look at blogs like yours or other sources online to kind of you know inform themselves as to what these notices really are and I guess the most we can hope for is outside education spurred on by a less aggressive content in the notices.

Michael Geist:
Let’s hope so, in the sense if you believe this is a problem and I certainly do. I know for myself having spoken to at least a couple of ISPs there is a lingering concern that the they may still be forwarding on many of these notices and I think at least anecdotally that’s what’s taking place in part because there is while there may be rules now about what can be included, there is no standardization in terms of what’s included in the notices. Is more or less classy so to speak. And if you’re trying to forward on those notices as quickly as apparently they are sometimes literally doing it within minutes, the ability to actually dig into whether or not it includes any of the content that might be offside with the government wants to see in a notice represents a significant challenge because it doesn’t say that you can’t forward that notice it merely says you’re not required to forward it on a notification if it includes that information.

James Plotkin:
Right and I think to that point and it’s a good one. These processes obviously in the HBO case but certainly as far as I’m aware across all of the ISP certainly the big ones is is an automated electronic process. It’s not a manual one. And for those who are more interested about kind of the mechanics at least about how Rogers does this I would commend to you to look at the oral submissions and read the facta of the parties to the Voltage and Rogers case that the Supreme Court decided recently because they go into some detail. Counsel for Rogers goes into some detail on really how this is done on the ground and it’s certainly not an individual saying oh well here’s a notice and here’s what it says and they’re not really checking it for compliance in that way as far as I’m aware. And as far as the argument indicated to me when I viewed it right.

Michael Geist:
And I think that’s my understanding too the numbers are just too big. Terms of being able to look at this individually for an ISPs perspective that provides a useful segue into the other side of the story and in the sense the Rogers Voltage case sort of sits a little bit in the middle with some of the stuff because it of course had references to notice and notice and litigation as well perhaps why don’t we unpack a little bit that case and then get into the other side of what we’re seeing taking place which is the lawsuits side.

James Plotkin:
Sure. The Rogers and voltage cases actually I think useful in a couple of respects. But if I boil it to its essentials it was really about whether and to what extent an ISP can charge for the cost of complying with what’s called Norwich order and explain what that isn’t just a second. Over and above what they have to incur to affect their duties under the notice and notice regime because under the Copyright Act the there are certain obligations in the court in this case and both express and from those flowing from them implied obligations as to information retention management sending the information along as regards the notice and notice regime. And currently while the law leaves room for the Governor in Council to permit the ISP to charge for that currently there is no such prescription and so for that reason as interpreted by the courts, the ISP is are forbidden from charging any fee for compliance with the notice notice regime.

Michael Geist:
Okay, let’s just pause for a second to make sure that that everyone’s clear on that system we’ve talked about how ISP ISPs are processing large numbers of of these. The system envisions the possibility of ISP charging for this but only if the government sets a fee. And at the moment the government hasn’t set a fee. So from an ISP perspective one of the reasons presumably they have sought to automate this isn’t just volume but it’s of course the cost because at the moment all of those costs are being incurred by ISPs and ultimately arguably it’s going to be subscribers, Internet users that are going to bear some of these costs assuming that those costs get offloaded at the end of the day as part of what we pay monthly for Internet services.

James Plotkin:
Correct. Okay I agree.

Michael Geist:
All right. So they’re not charging for it. The in the case case in this case. So in the Supreme Court of Canada case talks about that interface between the notices and then Norwich order.

James Plotkin:
Okay. So Norwich order is essentially a third party discovery order that permits somebody in this case a rights holder to obtain information from a non-party that isn’t necessary to prosecute the action. And so in this case the way these lawsuits have gone and there were a number of them there’s the famous voltage pictures reverse class action. But in fact there’s 16 or 17 other these lawsuits smaller ones going in the federal court and you can talk about that later. The way that these work is the rights holder generally enters into an agreement with a third party Internet surveillance company that monitors the BitTorrent protocol to ascertain which IP addresses are in the swarm and uploading and making available the work at any given point in time and then with the IP address the rights holder can determine which ISP the person is with but does not have their identity and so in order to actually send the individual a statement of claim and serve them and get the actual legal process going against them what they do is begin the claim against John Doe’s against basically placeholder defendants obtain Norwich orders from various ISP is to disclose the subscriber information and then sue those individuals. And that’s essentially the the system that has been going in the federal court now for a couple of years.

Michael Geist:
So rights holders or at least the agents working on behalf of these rights holders actively monitoring internet traffic identify IP addresses. But in doing so don’t necessarily know who those individuals are though they will know from the IP address block which which provider the person happens to be using it. And once they’ve done that they’re then able to use this legal process to effectively require the Internet provider to disclose the identity of the subscriber so that they can proceed with their legal action.

James Plotkin:
Exactly and now looping back into Rogers and Voltage that case was about what again as I said whether and to what extent the ISP can charge for the cost of complying with the Norwich order for any activities that are not expressly or impliedly already required to discharge their notice and notice obligations because as we discussed they can’t charge for that and there is the court found some overlap as a technical matter in what has to be done for one in the other. But the court found that it was not an entire overlap and therefore sent it back to the federal court to actually determine the dollars and cents issues.

Michael Geist:
Ok. So that particular case ultimately going to Supreme Court of Canada as you as you indicate leaves open the possibility that at least for the sort of that second stage where if someone is looking now to actually engage in a legal process and sue Internet users there is the possibility that the ISP will can levy some of their costs not the ones that involve the cost of complying for the notice and notice system but additional costs that might be additive that are specific to this kind of litigation.

James Plotkin:
Certainly and it could really have a big impact on where the court actually lands on how much can be charge in any given case might have an impact because there’s a big difference being five cents and five dollars and you’re talking about the cost of retrieving thousands and thousands of records. And given that the statutory damages which is likely the remedy that the rights holders seek to obtain on the assumption that they actually want to adjudicate these things on the merits for non-commercial infringement ranges between only one hundred and five thousand dollars there does become a potential cost recovery issue if the cost of obtaining the identities of the would be defendants is restrictive or prohibitively high.

Michael Geist:
And I want to continue with the litigation but pause for just one moment because that notion of increased costs to least obtain that information might have a real impact on the ability to pursue this. Is that part in your view of kind of the system as a whole which it seems like is reliant on the notion that individual internet users will not fight that the only way that you can make this work if you are bringing lots and lots of potential actions against Internet users is essentially based on keeping your costs very low either through threats like we saw with notice and notice or through litigation which settles quickly because the moment you start increasing the costs of litigation either to get the in get the identity of the subscriber or potential even further once you actually formally sued having a subscriber say well I didn’t do this or I don’t think I’m liable and I’m going to fight you suddenly now the the system of trying to extract some kind of revenue from these individuals kind of withers away because the costs become prohibitive.

James Plotkin:
Correct. And I think there are two sides to that as well. And certainly the rights holders and this argument was made by Voltage in the Supreme Court. This is for them they say in access to justice issue because these are you know individuals or corporations who want to enforce their copyright and they’re saying that based on the system as it is procedurally again that the costs of litigation coupled with the low statutory damages and the frankly inability to prove real common law damages as far as I can tell makes it you know as a practical matter untenable for them to enforce their copyrights. That’s their side of the story. And then the other side as well that perhaps the court system is being used here as a settlement mill in a way that is not necessarily commensurate with adjudication on the merits which is generally the goal of most courts when when claims are brought of course settlement is always encouraged to unburden the court system. But if you’re using the court system specifically as a settlement device rather than for an adjudication I mean query whether the courts will ultimately be happy with that. But you know it has been going on for a couple of years and so at this point I don’t know that anybody has really pressed the issue.

Michael Geist:
Fair enough. Now let’s talk about what’s been going on for the last couple of years. You mentioned there are at least a couple of different kinds of lawsuits taking place maybe you can unpack that a little.

CBC News:
People over forty five years old can remember a time when you wanted to watch a movie you had to either go to the movie theater or wait for it to play on television. There were no VCR is there was no Netflix, no computers 40 years ago. How the world has changed now people can watch movies whenever they want. And for more choice and titles some people choose to download movies using BitTorrent that are distributing material for free. That has resulted in some people getting letters from production companies saying they’re being sued in what’s called a reverse class action.

James Plotkin:
So the one that everybody knows most about is the is the Voltage pictures John Doe reverse class action so-called that is proceeding in respect of the Hurt Locker film. And this was the first one of these Voltage Pictures actions to go although what’s getting a significantly less attention and maybe a little bit more now is the 16 or so other lawsuits started by other movie studios that all appear to be linked with Voltage. I mean for instance all of these films are within the voltage catalogue number one and they’re also all represented by the same counsel. So it seems to me that while these are different plaintiffs in name these there is a common design here. And so these are not proceeding procedurally as reverse class actions or at least not yet or at least not on a formal basis because the lawsuits are commenced as simplified actions which is the simplified rules under the federal courts rules dedicated to cases where the monetary relief in question is fifty thousand dollars or less and there are a few other restrictions so I won’t bother getting into. But what they’re doing is they are once again suing hundreds in some cases well over a thousand individuals with respect to each of these films but they manage to do so by issuing a single statement of claim for fifty dollars whereas any defendant who wishes to defend on the merits because this is not a class defence must actually defend on their own and do so individually retain counsel represent themselves or whatever.

James Plotkin:
So the access to justice and cost savings do exist. But I would I would submit that they are perhaps a little one sided in favour of the plaintiff in this instance and the clients that I represent I have a close to a dozen active files in these matters none of them are in the Voltage Pictures because that’s a there’s a whole different issue there with certification. But the individuals who are getting statements of claim in the mail in these other cases are in frankly a more pressing position because they have deadlines to defend or negotiate or settle or and they often really don’t know what to do when they come to me which is what I try to help them with.

Michael Geist:
Ok. Let’s just deal with the reverse class action quickly and then move on to the kinds of cases that you’ve been dealing with. So people may be familiar with class actions where there’s a large pool of individuals who may have been harmed in a certain circumstance. Individually their claim may not be worth that much but collectively it may make economic sense to come together and thus use the class action system. What’s a reverse class action.

James Plotkin:
Well true to its name it is the opposite of the normal class action wherein the plaintiff is the class. You have a representative plaintiff and you know a class of individuals with whom that person shares common issues and points of contention with one or more defendants. In this instance, it is one plaintiff and a pool of defendants who purportedly have engaged in activities that are common in law or in fact such that they are susceptible to class wide resolution and to just unpack that for a minute. A lot of the time people think that a class action always precedes with respect to the entirety of the claim but that’s not always the case. There are certain and individual issues that are not generally susceptible to class wide determination. You know so for instance causation in a negligence claim would be one damages in any sort of torts claim and indeed in this instance probably would also have to be an individual issue because where within the statutory damages the amount should fall with respect to any individual is dependent on the facts of their case and the factors in the law that are weighed to that effect. So even though this is proceeding as a reverse class action and there might be some common determinations for example that the plaintiff owns copyright in the work that is something that it would could be a common issue and is susceptible to class wide determination because it’s the same in respect of every defendant. But the fact that this is a reverse class action does not mean that everything will necessarily be certified as a common issue and therefore proceed on a class wide basis.

Michael Geist:
And where are we right now with respect to this that this particular court quite large claim?

James Plotkin:
So we’re now approaching the certification phase. So up until now the class has not as far as I know been exhaustively defined. And there was a security for costs motion that was brought by the representative defendant Mr. Solna and he was successful in obtaining security for costs but not mistaken the amount of roughly seventy five thousand dollars and I think that was fought but ultimately that has now been paid and so now that that’s been paid the process has been unfrozen and to the best of my knowledge and to be fair I haven’t looked at the federal court proceeding queries in a little while on this but I believe they’re now at the certification stage to figure out as I was saying what will be certified, whether there will be a certified class action and if so what issues will be certified for common determination.

Michael Geist:
So there’s still several legal hoops to go through here whether or not this gets certified at all and if it does on what basis and then of course there’s the prospect of potential litigation on those issues because that still doesn’t prove that that the in this case let’s say the individual users themselves infringed copyright in violation of let’s say one if that becomes one of the issues that does get certified.

James Plotkin:
Mm hmm. And also it’s worth noting that at certification in the ordinary course in a plaintiff’s side class action there is an opportunity and a mechanism for plaintiffs to opt out of the class so that they can pursue things individually. So likewise in this case one would think that defendants at the certification phase or thereafter would have a mechanism for opting out of the class as defendants. So for instance if you know a defendant number one wants to hire their own lawyer and doesn’t want class counsel they should have an opportunity to do so. And in my view that’s a that’s an important procedural fairness and rule of law issue that ought to be respected in the reverse class action context as well.

Michael Geist:
So in other words I don’t want to be sued under this class action I should have the right to say I don’t want to be sued under this class action.

James Plotkin:
And pursue me individually that that that should be a right and again at this point it’s all kind of up in the air. I know the reverse class action has some precedent in the provincial courts. The case law is kind of few and far between there and I’m not aware of any cases certainly in the IP context where this has happened in Canada. And I believe everyone agrees it’s quite unprecedented. So we’ll have to see how it goes.

Michael Geist:
So really a novel case the the other aspect of litigation you’ve alluded to already is that there are whole series of other cases that are proceeding not in the reverse class action side but as more traditional cases although using potentially some some tactics within the Federal Court rules of the Federal Court that raise some issues perhaps we can unpack that a little bit.

James Plotkin:
Sure. And I think it’s worth noting that the statements of claim in all of these actions at least the ones that I’ve seen and I’ve seen certainly over half a dozen of them are essentially identical in boilerplate with modifications for the name of the work and other such things. But really these claims are proceeding on two different theories of liability. Theory number one: you the Internet subscriber or the person who downloaded uploaded made the work available communicated to the public by telecommunication so on and so forth and therefore you are liable for infringement for being the person who did the things that only the copyright owner can do. The second theory is what they’re basically going is an authorization of infringement theory. So they’re saying well even if you’re not the individual who who perpetrated the act yourself it’s your internet connection and you are responsible in fact the words negligence and willful blindness if I’m not mistaken or even used in the pleading to suggest that something of a duty of care is owed to I suppose rights holders that if you’re the internet subscriber you’re responsible for what happens on your connection and therefore you have infringed by authorization. And that second theory is the one that I in particular I’m interested in challenging because as I read the case law that’s quite a stretch.

Michael Geist:
Well it would be remarkable stretch. It’s essentially saying that anyone who has an Internet service is responsible for a duty of care for how it gets used not just by themselves but anyone who might gain access just to even things like open networks are essentially forbidden because how could you meet your duty of care if you didn’t know necessarily who was accessing your network.

James Plotkin:
Correct. And there is case law on authorization of copyright infringement most notably. Well there are a couple of cases but most notably the there’s the BMG case and there’s also the CCH decision from 2004 which is mainly known as the benchmark decision on fair dealing in Canadian copyright law but it also deals with the notion of authorization. And in that case there is an argument that by making available the photocopiers in the Great Library the law society was actually authorizing copyright infringement to the extent that those who use those photocopiers use them to copy more than a fair amount of the work or any book or periodical or what have you. And the court said no, authorization is I can’t recall off the top of my head the words, but instead to countenance to sanction to to to actually proactively do something. The court does say that that as far as the evidentiary burden a quote unquote sufficient degree of indifference might in some instances amount to authorization although I won’t get into the background of this they cite some UK case law that again suggests to me does not support what the plaintiffs are doing here. But more importantly the court also says there is a presumption that when one authorizes someone to use a technology the presumption is that they’re authorizing only licit legal uses. And so that presumption can of course be rebutted. But the fact that in that instance the law society made the photocopiers available was not enough to show authorization and I would suggest that likewise here the fact that the mere fact that I allow you to use my Internet connection does not mean I allow you to do illegal things on it. I mean if we take this argument to the absurd if you use my Internet connection to go on Silk Road and hire an assassin I’m now you know an accessory to a criminal act and you know that’s a different context but I think that that it would be the reductio ad absurdum of this position.

Michael Geist:
You know the implications are enormous not just in copyright but but in other ways as well and really would change the way in which arguably change the way in which many people access the Internet are able to access the Internet today. So we’ve got claims both that people are infringing and then they’re using a network that is allowing for infringement and in doing so can be seen to be liable on those grounds. Have any of these cases gone to trial or any of these issues been tested yet.

James Plotkin:
No in fact in Canada all of these issues remain untested and all of the cases I was talking about have not passed the pleading stage yet and there’s no sign that they will anytime soon on the basis of the way things have been going because in several of these matters there’s an initial wave of Norwich orders and then people are sued and served and then there’s another wave maybe six months later and another wave six months later. And so you know the pool of defendants grows and grows. But ultimately this is the rights holders way of maximizing perhaps settlement opportunities by kind of having waves of notices and statements of claims that go out and so it kind of refreshes the settlements incentive pool if I could put it that way. I will say also that in the United States the 9th Circuit Court and the courts in California heard a case that is somewhat similar and it’s the law there is not exactly the same and I won’t get into the use idiosyncrasies but the court there found that a merely being the internet subscriber was insufficient to state a claim for contributory infringement which is again not the same but roughly analogous to authorization in the Canadian context.

James Plotkin:
And so again while there might be points of distinction I think that’s helpful. And I would also note that in the Rogers case and this was arguably obiter dictum, Justice Brown who wrote for the majority acknowledged at paragraph thirty five of the decision that there may be instances in which the person who receives the notice of being the subscriber is not in his words in fact will not have illegally share the copyrighted content online. And then they say that he says this might occur for example where one I have IP address while registered to a person who receives the notice is available for use by a number of other individuals and so without necessarily coming out and saying it it seems to me that Justice Brown is leaving room for the possibility that simply being a subscriber once again is not enough to amount to authorization and I expect that that is a point that will become live should these cases ever move forward to adjudication.

Michael Geist:
So we’ve got some there’s some significant arguments that can be raised certainly on the authorization side clearly including fairly recent Supreme Court jurisprudence that raises some real doubts about that legal theory and we’ve also got some questions even on the other side of their their legal theory does that suggest that Internet users can simply ignore this on the notice and notice side, it’s just a notice they can think about their behavior but they don’t have to respond quite clearly. What about if they happen to receive one of these lawsuits.

James Plotkin:
Well I. And again without advising or not advising it would be generally unavoidable to ignore a statement of claim because it would permit the plaintiff to proceed to get a default judgment against the individual which limits or or basically ends their rights to participate in the proceeding unless the default is lifted and then damages can be ordered against them in their absence and of course an undefended proceeding the damages are likely to be higher. And you know that that’s probably not a good strategy to ignore these notices.

Michael Geist:
Fair enough. And what kind of damages are we talking about in a copyright context.

James Plotkin:
Well again to the extent that the commerce the infringement is non-commercial in nature the well let me take a step back. Under the Copyright Act there are a whole suite of remedies. And with respect to the monetary remedies the rights holder can generally elect either between receiving ordinary common law damages which is damages for lost profits and lost lost opportunity and an accounting of profits which is basically a disgorgment as we say in law of the profits that the infringer made. So that’s one option. The other option to elect is for statutory damages which alleviates the burden of the plaintiff to actually prove any causal connection with the damages and it creates a range. But the law sets out a number of factors including you know the good and bad faith of the parties the need for deterrence a few other things for the court to figure where within the statutory damages range a an award should sit in a given instance based on those facts and again for non-commercial infringement. The range is one hundred dollars to five thousand dollars for all infringements. And that’s important because this means that in principle a person can infringe copyright for a number of years and then it’s really a race to the court. And the first rights holder who seeks to sue may do so and that essentially bars any other rights holder for infringements that occurred up until that point from suing. And then the liability can be renewed after that point but and then there’s commercial infringement where the range is significantly larger it’s between five hundred and twenty thousand dollars on a per infringement basis and there’s no same first a court rule there. Now in most of these cases these would almost certainly all be non-commercial infringements. I think there are some arguments as to whether a landlord who supplies internet is make renders it a commercial infringement and I’m sure that the plaintiffs will make that argument but the case on that is not settled at all either. So certainly for the overwhelming majority of people who receive these statements have claimed their maximum liability almost certainly going to be capped at five thousand dollars. And frankly that would be a pretty high damage award for something like this.

Michael Geist:
Ok so so not something that anybody can ignore, but on the non-commercial side the range is hundred dollars at the low end five thousand dollars at the highest end but it sounds unlikely or at least would be unusual to see a judge in a single case go for five thousand dollars. But of course this hasn’t been tested yet.

James Plotkin:
Correct. It could. It could happen. But again this is not the sort of financial liability where people have to you know start selling their belongings here. That’s that’s not the issue. But but it is a real court action and it’s not something to be ignored in my view.

Michael Geist:
James thanks so much for joining me on the podcast.

James Plotkin:
My pleasure.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s L.A. W B Y TE S at P.O. Box dot com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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The post The LawBytes Podcast, Episode 10: Lowdown on Lawsuits – James Plotkin on Copyright Threats, Notices, and Lawsuits appeared first on Michael Geist.

Does Canadian Privacy Law Matter if it Can’t be Enforced?

Michael Geist Law RSS Feed - Thu, 2019/05/02 - 10:16

It has long been an article of faith among privacy watchers that Canada features better privacy protection than the United States. While the U.S. relies on binding enforcement of privacy policies alongside limited sector-specific rules for children and video rentals, Canada’s private sector privacy law (PIPEDA or the Personal Information Protection and Electronic Documents Act), which applies broadly to all commercial activities, has received the European Union’s stamp of approval, and has a privacy commissioner charged with investigating complaints.

Despite its strength on paper, my Globe and Mail op-ed notes the Canadian approach emphasizes rules over enforcement, which runs the risk of leaving the public woefully unprotected. PIPEDA establishes requirements to obtain consent for the collection, use and disclosure of personal information, but leaves the Privacy Commissioner of Canada with limited tools to actually enforce the law. In fact, the not-so-secret shortcoming of Canadian law is that the federal commissioner cannot order anyone to do much of anything. Instead, the office is limited to issuing non-binding findings and racing to the federal court if an organization refuses to comply with its recommendations.

The weakness of Canadian law became evident last week when the federal and British Columbia privacy commissioners released the results of their investigation into Facebook arising from the Cambridge Analytica scandal. The report details serious privacy violations and includes several recommendations for reform, including new measures to ensure “valid and meaningful consent”, greater transparency for users, and oversight by a third-party monitor for five years.

Facebook’s response? No thanks. The social media giant started by disputing whether the privacy commissioner even had jurisdiction over the matter. After a brief negotiation, the company simply refused to adopt the commissioners’ recommendations. As their report notes “Facebook disagreed with our findings and proposed alternative commitments, which reflected material amendments to our recommendations, in certain instances, altering the very nature of the recommendations themselves, undermining the objectives of our proposed remedies, or outright rejecting the proposed remedy.”

The federal commissioner has indicated that he plans to take the case to the federal court, where he will be forced to start from scratch by presenting sufficient evidence that Facebook violated Canadian law. Even with a successful claim, the law provides little in the way of penalties, with a newly established maximum of $100,000 for certain violations. By contrast, Facebook said last week that it has set aside US$3 billion in anticipation of U.S. enforcement penalties that could hit US$5 billion.

This is not the first time a major company has refused to comply with privacy commissioner recommendations. In 2015, Bell initially rejected findings associated with its relevant advertising program that would have required customers to opt-out of behavioural tracking. After an avalanche of negative publicity, it reversed its position.

With companies seemingly free to reject privacy commissioner findings – Facebook earns more than enough revenue every sixty seconds to pay the maximum PIPEDA penalty – Canadians are left without effective privacy protection. Innovation, Science and Economic Development Minister Navdeep Bains touted changes to the law that added new penalties, but the reality is that Canadian law now badly lags behind other countries.

The obvious solution starts with granting the Office of the Privacy Commissioner order making power and supplementing the law with penalties that would make companies think twice before ignoring PIPEDA.

The Office of the Privacy Commissioner was admittedly slow to recognize that the effectiveness of the law depends upon serious enforcement. In 2006, Jennifer Stoddart, then the federal privacy commissioner, told a House of Commons committee that order making powers were not a priority. A year later, it took federal court ruling to push a reluctant commissioner’s office to investigate foreign entities collecting personal information from Canadians.

Today, as global companies are on the verge of regarding Canadian privacy law as irrelevant and the European Union is increasingly likely to re-examine its decision to consider Canadian law “adequate” for the purposes of cross-border data transfers, the office has rightly become convinced that the law must be upgraded. That leaves the question of what more Mr. Bains and the government need to recognize that their vision of leadership in the digital economy is being undermined by privacy rules that leave millions of Canadians without effective and enforceable protection.

The post Does Canadian Privacy Law Matter if it Can’t be Enforced? appeared first on Michael Geist.

Myths and Reality About Canadian Copyright Law, Fair Dealing and Educational Copying

Michael Geist Law RSS Feed - Wed, 2019/05/01 - 09:10

Seeking to debunk many of the misleading claims on the state of Canadian copyright, fair dealing and education, I’m grateful that InfoJustice.org has published my post on the myths and realities of the current situation. The post relies on actual data presented at the recent copyright review to demonstrate how the Canadian market has experienced increased spending on licensing, e-book licensing has been a central part of the education licensing strategy, and educational institutions are paying for licences even when they retain collective licences.

The introduction notes:

Schools and universities are shifting to the use of digital resources – including to online E-reserves, E-Books and other forms of digital distribution. Collective (blanket) licensing, which for years has charged schools for making analogue reproductions of excerpts of printed works for use in printed course packs has declined in value and usefulness as education invests in digital licensing that offers enhanced access and reproduction rights. To facilitate the shift that benefits all stakeholders, legal rules must reflect emerging practices in which blanket licences compete in the market with alternative licensing models. One answer, represented by Canada, is a mix of broader copyright exceptions for the use of excerpts for educational purposes combined with a shift in educational spending toward buying and licensing more digital works and digital uses of works. The result is that educational spending on licensing in Canada has increased with exceptions and licences co-existing in a manner that provides appropriate compensation for authors and publishers alongside increased access and flexibility for educational uses.

The full post can be found here.

The post Myths and Reality About Canadian Copyright Law, Fair Dealing and Educational Copying appeared first on Michael Geist.

The LawBytes Podcast, Episode 9: The CRTC Watcher – A Conversation with FRPC’s Monica Auer

Michael Geist Law RSS Feed - Tue, 2019/04/30 - 07:30

Many Canadians follow telecommunications and broadcast issues at the CRTC from a distance – the cost of wireless services, the speed of their Internet access, the availability of broadcasting choice. Others engage more closely on issues such as net neutrality, Cancon regulation, or Netflix taxes. But there is one Canadian who doesn’t just follow the CRTC.  She watches it through the use of access to information laws that present a perspective on the CRTC that would otherwise remain hidden from view. Monica Auer, the Executive Director of the Forum for Research and Policy in Communications, joins the podcast this week to talk about insider access, slow reimbursement of costs for public interest groups, the number of CRTC meetings, and the Commission’s seeming indifference to commissioning original research. The interview is interspersed with comments from current CRTC Ian Scott taken from one of his first public speeches after being named chair in 2017.

The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.



Episode Notes:

FRPC Policy 3.0 Conference (registration)

Credits:

CPAC, CRTC Chair Ian Scott Speaks About Internet Neutrality
FairPlay Canada Urges CRTC Action Against Online Theft

Transcript:

LawBytes Podcast, Episode9.mp3 | Convert audio-to-text with the best AI technology by Sonix.ai

Michael Geist:
This is LawBytes a podcast with Michael Geist.

Ian Scott:
This organization has a long tradition of being at the forefront of regulatory change. The many hundreds of men and women who have worked here since 1968 have adopted thoughtful creative, made in Canada approaches to deal with a vast array of complex regulatory challenges.

Michael Geist:
Many Canadians follow telecommunications and broadcast issues at the CRTC from a distance – the cost of wireless services the speed of their Internet access, the availability of broadcasting choice. Others engage more closely on issues such as net neutrality, Cancon regulation or Netflix taxes. But there’s one Canadian who doesn’t just follow the CRTC. She watches it through the use of Access to Information laws that present an insider perspective on the commission that would otherwise remain hidden from view. Monica Auer is the executive director of the Forum for Research and Policy in Communications. She’s been an analyst at the CRTC worked, for what was then Industry Canada obtained two law degrees worked at a major law firm and now heads up an organization that may not be widely known but has had a big impact on our understanding of what takes place behind the scenes at Canada’s telecom and broadcast regulator. This Law Bytes podcast episode features a recent conversation with Monica about insider access, slow reimbursement of costs for public interest groups,the number of CRTC meetings and the commission’s seeming indifference to commissioning original research. The interview is interspersed with comments from current CRTC chair Ian Scott, taken from one of his first public speeches after being named chair in 2017.

Michael Geist:
Not a lot of people are necessarily familiar with the forum. Maybe you can take a moment to introduce yourself and the forum.

Monica Auer:
The forum is a non-profit non soliciting federally incorporated organization which was established in late 2013 to undertake primarily empirical research and policy analysis with respect to broadcasting and telecommunications. Although there are other organizations out there that have also done this a number of them are are focused on a little bit more on the law and we’re trying to bring in more of the empirical evidence.

Michael Geist:
So who’s behind the forum.

Monica Auer:
I have a board of directors who are a wonderful theory are very experienced primarily in broadcasting but also some telecom. We have somebody who was formerly with the auditor general’s office so they’re very interested always in our budgets and the board decides whether or not we should participate in specific proceedings whether they’re before Parliament or the CRTC.

Michael Geist:
You’ve assumed this position as being the CRTC watcher. OK. You are the person, the forum is the place that surely launches a significant number of the access to information requests and is one of the few groups and you’re one of the few people I think that have the depth of knowledge of both the CRTC and the field to be able to take a look at some of the results. When you’re looking at what’s actually coming out of the CRTC and be able to understand and interpret them that’s I think he gets a really rare thing and it’s it’s a pretty amazing contribution because when you when you take a look at what’s on your site and the myriad of requests that you’ve launched over and over now many years it tells some pretty interesting stories that don’t typically capture people’s attention and but they think they should because they tell a really interesting story about the CRTC. So I was hoping to drill down a little bit on some of those. Starting I think with fair play.

FairPlay:
FairPlay Canada wants the CRTC to modernize the tools we use to protect Canada’s economy from online piracy we are proposing a tool similar to that used in dozens of other countries which empowers the CRTC to identify illegal piracy sites and disable them in Canada.

Michael Geist:
This was for those that aren’t familiar an issue that I was actively involved with as well Web site. A web web site blocking proposal led by coalition of groups. But it was particularly Bell it was was very active on it. You submitted on it I submitted on it. Thousands of Canadians actually submitted on it but the aspect that I thought we could focus on was an access to information request that you filed a little bit after the deadline or at least came back a little after the submission deadline.

Monica Auer:
I think it was a little bit after the deadline because we were all racing to meet the deadline and it was triggered by the fact that many people were reading the application and we were somewhat perplexed because we know many of the players involved many of the authors involved and they’re extremely competent they really know their business. And yet this application seemed a little different from the rest. It took an unusual approach to the entire issue which was a serious one. We actually did a survey of Canadians to find out what they thought about the idea of somebody like the CRTC being able to block their access and they were very concerned the majority the overwhelming majority was concerned.

Ian Scott:
As companies continue to innovate in their offerings to Canadians the CRTC will continue to ensure that Canada’s Internet neutrality provisions are respected. Just as the Transport Commission before us get railway lines open for any and all users. The CRTC has set a clear tone in its regulation of content delivery. The owners and operators of the country’s communication systems may not discriminate against content based on its origin or its destination.

Monica Auer:
So the more I thought about it the more I wondered about how the application came about and I wondered if there had been any chance that there might have been some discussion at the commission before the application itself was filed on January 29, 2018. And that’s why I filed the the Access to Information request.

Michael Geist:
And what did you find.

Monica Auer:
I got back two sets of information two packages of information setting out a number of emails and presentations and exchanges that appear to involve the CRTC and non CRTC personnel and I looked at it and I thought my goodness this is this is unusual I had not expected actually to see that in fact there had been meetings before the application is filed. I was unprepared for that I was also unprepared for the idea of what appeared to be a fairly extensive ex-parte communications if you will. Now it’s true ex-parte normally refers to a process something that’s already launched and then the parties discuss with the adjudicator outside of the other parties range. But in this case the CRTC is always in a position of judging things. So in that sense it might be considered ex parte. In any event I looked at that and I thought this is this is an interesting set of documents and I actually didn’t have time to look at. And that’s why I sent everything to you. I didn’t I wasn’t quite sure what could be done with that and the fact of the matter is that although we do have some people interested in our website and it does have some some kind of some fun things on it. I wanted to make sure that people would have as much access as possible to this because it speaks to the nature of informal contact between administrative authorities and society and those they regulate.

Ian Scott:
When any regulator the CRTC included performs its work in the name of the public interest. It must balance various points of view some of which obviously conflict. It’s not always appropriate to lean on one side of the fence or another in the interests of corporations or in defence of what the average Canadian needs or wants the public interest is much more dynamic than that.

Michael Geist:
The CRTC’s reaction was and Bell’s reaction for that matter was that there was nothing to see here. What are your thoughts.

Monica Auer:
I think there was something to see because if there were nothing to see there wouldn’t have been any documents. I think that there was something to see because being told that there is nothing to see is usually a pretty good clue that there actually is something to see and the fact of the matter is that everybody who read the documents knows there was something to see. So for all three reasons I can appreciate the perspective of those who didn’t want to have those things seen. But that’s not the case.

Michael Geist:
And do you think there’s something wrong with Bell being able to call up a CRTC Commissioner seeking the opportunity to present this – as I ask this question and you’ve got a big smile on my face because I feel a little rhetorical – but you know your thoughts on the power that companies have when they can quite literally in this case call up a CRTC commissioner ask for the ability to present something and then ultimately have the ability to meet with staff months before anything ever gets filed.

Monica Auer:
I guess the question is would anybody mind as long as the CRTC were equally open to all parties. Except that I’m aware of a number of non licensee and non telecom companies that call and they can’t get telephone calls returned from CRTC commissioners. So it seems to me when that’s a repeated pattern of behaviour there may not be so much of a level playing field. Secondly there’s no record of that as a general there’s certainly no public record of telephone conversations. And of course even though we can go through the commissioner of lobbyist registry and I think at one point I either have a blog in progress or a plan or a great deal material. The fact of the matter is is that the number of visits made by those who are beholden to the CRTC as licensees or those who are regulated meet regularly they meet weekly with the commissioners.

Monica Auer:
There are no records of those meetings in the sense of you know they’re not recorded. Do we want them recorded do we believe that it’s better for those who are making these decisions to be to be informed behind closed doors do we. Are we concerned that there might be an unusual quid pro quo. Just do this thing here and we’ll take care of that thing there. We don’t know and I think it places the commission in a very awkward position.

Michael Geist:
I think you’re right that that lack of balance or the uneven playing field I suppose may be part of the reason that we’ve got a cost awards system in Canada that’s designed to better facilitate the ability for civil society groups and other groups that are concerned with these issues to participate.

Ian Scott:
We invite indeed encourage stakeholders from across industry the government and the public at large to share their comments and opinions on the issues before us and we do so with a view to building as complete a public record as possible.

Michael Geist:
Can you start I guess by describing a little bit what that cost award system looks like and then I want to get into a little bit with some of your research has shown in recent years about how long it takes for certain groups to be paid off with those cost awarsds.

Monica Auer:
I think the cost awards process was initially effectively launched by the Public Interest Advocacy Centre. They participated in one of the first major telecommunications proceedings in the late 1970s. And for those of your listeners who may not know or those who are in the audience who may not know telecommunications was not always federally regulated. It was until the mid 1970s were like regulated in part by the provinces. And so it was only in the late 1970s that the CRTC itself had jurisdiction and then began to exercise control over it.

Monica Auer:
And so the question arose is how do you ensure that you you don’t just have the parties and then a number of interested members of the public who lack the ability to participate effectively. The issue is not that everybody can’t write the CRTC a letter. The issue is that you have a company like Bell who may have two or three hundred people working in their regulatory affairs department. And to put that in context the CRTC in its entirety has maybe 400 people not half of whom were devoted just to telecom. So what to do.

Monica Auer:
Even if you just assume that the CRTC could could address the public interest on behalf of the public interest there is no mandate within the CRTC act within the telecommunications act nor within the broadcasting act for the CRTC to put the public interest first. Secondly in a way the commission would be conflicted out. It would be like telling a judge well keep in mind what that person there are the defendant has to say and you look after the defendant’s interest. And now we want you to rule fairly. The other side will always have a concern.

Monica Auer:
So there was a cost process set up in the late late 1970s and it was 1979 through the through a draft rules of procedure noticed by the CRTC. And of course the very first cost award was taken to court went all the way to the Supreme Court. And fortunately the Supreme Court recognized the benefit of having non company participants involved. So this proceeded for many years in a in in an unusual kind of way. The CRTC commissioners would appoint a member of their staff to be a costs officer who would then adjudicate costs claims that became very time consuming and because it started to take so much time they decided to streamline the process and make it very fast so you could just apply and the commission staff would go over the application to make sure that it was appropriate.

Monica Auer:
So that was where that’s where the telecommunications process is right now. Applicants who appear who have met the terms of the CRTC’s cost policies apply to have some of their costs not all of them. Some of them reimbursed the broadcasting side. It’s somewhat different. The CRTC set up as a parallel organization but you don’t apply to the CRTC you apply to another party. The issue there is at the CRTC allocated money to this agency and it’s out of money. So in terms of broadcasting by next year perhaps there may be no money for public interest groups to participate.

Michael Geist:
The historical background is really valuable. It’s a system that least on paper seems like a really good. It seems like a great idea. Good to see the Supreme Court thought so too. You’ve been looking into the speed with which these cost awards get paid out because of course what happens based on what you’ve just described is that the public interest group will incur various costs of participation that could include retaining experts to provide further evidence to the CRTC and after it’s done as you mentioned you submit your bill and the CRTC reviews. What did your research find about how long it’s taking in a sense to get paid back for those expenses.

Monica Auer:
The average is nine months and what an average means is that there are some cost claims that are taking two years. Some are taking three years not many but some. To put that into context when the CRTC when I when I I looked at the cost awards from 2013 through to 2018. So that was 182 of them just to look at the time of filing for instance and then the actual date of the decision. And in 2013 for the entire year it took a little over three and a half months for the CRTC to receive the application. think about it and issue a decision. Now it takes nine and a half months.

Michael Geist:
Okay so I was pretty quick. Just a few years ago.

Monica Auer:
Yes.

Michael Geist:
Talking nearly a tripling based on what you just said on average do we have any idea why is the CRTC said anything about why it’s taking so much longer to process this because now we’re talking about organizations that can wait a year or two as you say perhaps even three years to get paid back for money they’ve spent on many of these organizations are not deep pocketed organizations that can in a sense afford the float of having all these accounts receivable outstanding.

Monica Auer:
Yes. And just to address that before I address the other point some people have have suggested well why didn’t you just save money so that from one year to the next you can go. But the fact is that if if I retain an economics expert the economic expert needs to be paid I can’t take that person’s money and then hold it for the next one. It’s not a Ponzi scheme it’s as you have a bill you have to pay it.

Monica Auer:
So to think about why it’s taking so long. I have noticed myself that with respect to the forum’s applications and bearing in mind we started making. I think we made our first application in 2014 and the first one sailed through and sailed through in the sense that nobody objected because the Commission has adopted a practice where they take every application that we make or that any party makes in fact and then they send it to the telcos and telcos have the right to reply. And I find that the certainly the depth and length of the replies has gotten longer and the arguments made are not changing. In other words every time it seems we while you’re not a lawyer. Actually yes I am. You’re not doing legal research. Actually yes I am. You didn’t incur those costs. Well the invoices are there you know. Yes we did.

Monica Auer:
And then while you didn’t contribute anything to the process well that’s up to the CRTC and in fact this is what we did. We did a survey we did economic research. We did charts. We did graphs. We did 150 pages with you know four gazillion footnotes. Actually we did. We think we contributed. So it’s up to the CRTC. And so it would be interesting as well if you remember that the costs that were paid haven’t changed since 2010. In other words the rates that we may charge have not increased in the last nine years and that’s not an issue except when people might think well you’re just going to pad your bill to make. Well we can’t because you know that darn ethical code to which you swear when you become a lawyer. They they require you to follow the rules. You can’t just pad, you live with it and that’s fine. It’s just then you have to carry the bills. And it’s not even you know. Okay. So I own my own house. I don’t have to pay rent. That’s terrific. But you know other people do and other people have office rents. And when we hire a survey company do they really want to wait a year to get paid. That’s so. So how do you ensure that you can have a strong public presence on a level playing field when we don’t have the resources and we can’t. And it’s ultimately we can’t get paid. It’s just I think the commission used to be able to do it quickly. It’s unclear to a number of us why it’s still taking so long.

Michael Geist:
So that’s unclear. One of the other things that you’ve been focusing on is how frequently the commission meets. I don’t know if it’s I don’t know if there’s a connection or not. But that piece of research which is quite recent is extensive in taking a look at just the number of meetings that the CRTC is having maybe you can just start by introducing what it is that you asked for through the access to information system and what did you get back?

Ian Scott:
The job before us as commissioners is to weigh whether times can be contrasting ideas. On the one hand business has its own interests to present and defend it must answer to its shareholders and maximize returns on investment which is entirely appropriate. It’s not business’s duty to always promote the public interest.

Monica Auer:
I thought that when I asked how often is the CRTC meeting I would get back maybe an Excel spreadsheet with just the dates of the meetings. That’s what I thought I would get and then I would just play with that and I say oh look you know they’re meeting the same and more or less. And the reason I asked was because I was wondering could it possibly be that they’re not meeting as much these days and that might be slowing things up and I should preface this by saying that when I worked at the commission, the full commission was regularly in the building every month that seemed to me or every second month there would be a meeting of the entire commission which at that point was not just the ninth night not just the 13th I think was 13 full commissioners but then another up to 15 part time commissioners a lot of people. All right. So I asked the commission for a list of the meetings, the dates on which the commissioners met, and the agendas of the meetings and I thought you know one page agenda. Right.

Monica Auer:
So I received I received a scanned PDF of each month of the year from January 2007 to December 2018 and on many of the days there was a little notation as to what the meeting might have been about. And sometimes it was telling you that there would be no power in the CRTC’s buildings over the weekend which is a regular occurrence. And I found out of the hundred and fifty one pages of calendars once they input all of the data I was looking at 3000 or so meetings from 2007 to 2013 and the interest the most interesting thing I was surprised that the total number of meetings of the CRTC whether the full commission its committee telecom committee any of those panels had decreased by a third over the period.

Michael Geist:
Okay so that the very time when these issues are becoming more front and center it feels like there’s almost a continuous cycle of hearings and issues and re-examination of both telecommunications related issues, wireless issues, broadcast issues. The commission is meeting less as opposed to more.

Monica Auer:
It is meeting less and it is often meeting without any agendas. Roughly a quarter of the meetings happen without an agenda and and a a cynic might say well there’s no agenda because then you can’t ask for the agenda and access to information you can’t get what isn’t there. But I think the more interesting question is what do commissioners if they’re on this mailing list and they’re invited to attend a meeting. What do commissioners do who don’t have a copy of an agenda? Do they have any documents to go with it? Is the commission not thinking that a document that sets out a problem is part of the agenda? I don’t know what it is I’ve asked. The agendas didn’t accompany the calendar pages that is going to take somewhat more time and I’ll see what we get then. As for the the meetings themselves I think the other thing is that when we think of the meeting I was very broad and apparently the commission was too because what they also sent me showed that roughly two thirds of these meetings are done by email. And when you and when you look at what you counted as a meeting I don’t I don’t know.

Michael Geist:
An email exchange is a meeting?

Monica Auer:
I don’t know it would say for instance the notation might be BCMEM broadcast committee meeting email and this was on their list their calendar page showing all of these meetings but and even for the email meetings they decreased in number, the in-person meetings decreased in number, and the email meetings decreased in number over time that’s it.

Michael Geist:
It’s counterintuitive to one what one might think. The other thing that’s somewhat counterintuitive when you take a look at the work you’ve been doing has to do with the number of requests that once again there is no information. So you mentioned there were no agendas in this instance you’ve asked for some really interesting things that one would have thought the commission might have spent some time digging into and consistent with the approach the forum has about where’s the evidence and trying to bring forward the evidence.

Ian Scott:
When this commission makes its decisions it does so based only on the facts it has at its disposal. We depend on the public record to inform the choices we make. And when that record is fully developed and rich with information that the decisions we take are strongest and most supportive of the public interest.

Michael Geist:
I was taking a look at the list I know that you’ve asked about things like how many journalists jobs exist in the country, the impact of foreign investment rules with respect to broadcast, the number of news bureaus in radios radio stations and television stations, studies on any number of different issues that the CRTC has been engaged in diversity of voices balance and news deregulation in advertising and what the common link between all of these issues and requests is at the CRTC said they had absolutely nothing.

Monica Auer:
No records.

Michael Geist:
So just for those that don’t regularly file access to information requests, a no record means that the CRTC says…

Monica Auer:
They they have no information. And when I make an access to information request I try I try for everything. I thought it was unfair to the commission just say Hey I’d like any records about. So I thought I would clarify it. Well perhaps you might have written a memo or an email or you might have had a research study or or a briefing or a presentation. I tried to come up with as many synonyms as I could. And those would count as records under Access to Information case law. And I think they’re all surprising in that you know the very first section of the Broadcasting Act for Canada’s broadcast. Parliament’s very first statement in its broadcasting policy for Canada is that the Canadian broadcasting system shall be effectively owned and controlled by Canadians. And yet when I asked do you have any information on voting shares. I say well we don’t collect it like that. If you want to go to each of the ownership charts that we maintain on our website you can see the non Canadian voting shares there. But those charts are only current. They’re not historical. So if I want to see if there’s any kind of change over time the level of foreign ownership. I can’t. Nor does it easily represent equity which can be a form of debt. It can be a loan we don’t know what it is but it’s not a voting share can be a non-voting share. No information as well and an overall I think a number of people like Dr. Winseck for instance at Carlton have pointed out that Canada has one of the highest levels of concentrated ownership in the communications sector in the world. So it was puzzling to me that the commission has no research on this hasn’t undertaken any studies hasn’t hasn’t commissioned any studies has no information on the impact of concentrated media ownership either in broadcasting it’s bizarre to me.

Michael Geist:
So what do you think that says about the CRTC I know for example that the broadcasting and telecommunications legislative review panel which is ongoing and for which we should get at least an interim report by the summer has itself commissioned a series of different research reports that was the subject of someone else’s access to information requests. So it recognized as it embarked on its review that generating more evidence and conducting some studies was a natural byproduct of being a natural byproduct being actively involved in a comprehensive study and the CRTC would appear based on the requests you’ve made very often seems content to just rely on what it hears from people who submit as part of hearings. Is that what we’re led to conclude?

Monica Auer:
I think it’s not just a conclusion it’s the fact. You’ll recall that we had the basic service obligation proceeding about four years ago five years ago. I was invited along with many other people to the lockup and we were you know if we wanted to ask questions of the senior staff we could and so I said you know you’ve said X here referring to evidence. Could you tell me what research the commission itself undertook or bought about the telecommunications sector for this enormously important review. They said well we didn’t do anything. We had the evidence before us.

Monica Auer:
Well who can afford to do the wonderful types of evidence that they need a good economic study because economists are valuable people and their time is valuable could cost you thirty thousand dollars forty thousand dollars to put it in context a good survey if you can’t analyze survey research results yourself and I am able to because of that otherwise not necessarily very useful undergraduate and graduate degree in political science although I really liked my alma mater there was an excellent university Carlton. A good survey research study might cost with this with the survey included forty thousand dollars. Who has that money. The public interest side and if the commission isn’t undertaking it are they actually relying on public interest groups to come up with these data. And if they are then again the cost order process is not assisting in ensuring that we we can do this. Should the commission be doing more? I think yes. The Commission not only should but of course it could. It has enormously well qualified people. Its rules of procedure specifically state if you’re going to intervene in our proceedings please give us evidence.

Monica Auer:
All right then I think the commission has a duty itself to ensure if it wants to meet its own mandate, if it wants to ensure that it is actually acting properly as Parliament’s delegate I think it has a duty to explain how that’s happening.

Michael Geist:
So that there is a real stream continuity with many of these requests and the findings really really identify a lack of evidence that at a certain level relies upon public interest groups to generate at least a counterbalance to what the commission might hear from more commission by some of the established players and yet there’s challenges to get paid back for some of that. There’s questions about how much the commission is actually meeting on any of these issues. In any event and when they do meet it turns out some of the meetings that they have are these off the record meetings such as the one that we saw in Fairplay raised a lot of concerns. I assume that some of these are the kinds of issues that may be addressed in a forthcoming conference that you’re putting on that examines policy and communications law in Canada. Can you tell us a bit about that.

Monica Auer:
Thank you for allowing me to make my little pitch. We’re holding a conference at the University of Ottawa itself here May 10th May 11th. The focus of the conference is with the proposals that have been made to amend Canada’s broadcasting and telecommunication statutes.

Monica Auer:
As you as you know not many of these submissions that were made to the legislative review panel on January 11th have been made public. We’ve we have a number of people have kindly mentioned to us or they’ve given us consent to post their interventions and so we have I think 57 at this point on our website. And so as we were as I was beginning to look at those and as I was discussing with my board it became clearer that more and more people were interested in having at least an opportunity to discuss what these proposals are and what the implications are and what the new statutes if there are any ought to look like. So we’ve invited a number of interesting people who are going to come and deal with a number of different aspects of of broadcasting and telecommunications in the in the sense of the rights and responsibilities. There are a lot of rights in in both the Telecom Act and the Broadcasting Act and there are also responsibilities both from the corporate perspective and from the audience perspective. It’s not enough just to complain about things you have to be able to prove things and so we’re looking at things like of course whether or not you know we have a duty to to fund and to properly operate a national public content provider which today we call a CBC whether we have actually a right to exercise control over our own communication systems within our borders given the Internet what do we do. Are we going to exercise jurisdiction over Google Facebook Youtube what do we do with that. Or is the era of national control over our borders effectively gone.

Monica Auer:
Do we have the right in an era of fear not so much fake news but news that can be manipulated. Do we have the right to ensure that people can be informed so that they can exercise their democratic credit franchise. And so we have lots of fun people for instance the former chair of the commission Konrad from Finkelstein has kindly agreed to come we have Bram Abramson and formerly of TekSavvy, Janet Lo currently with TekSavvy, we have Brad Danks from OutTV who is an amazing thinker for a lawyer. He’s actually taken a long-term perspective as to what the future of the system might be and I think his company is very much engaged in and working with the new realities they have. We have Tim Denton, Suzanne Lamarre both former CRTC commissioners John Langford from PIAC. We would have invited you except that you won’t be in Canada that time. And so in your stead we’ve invited Dr. Dwayne Winseck because to some extent he has a similar viewpoint in that he is not necessarily as as bound to the Broadcasting Act as I am. And so we’re hoping that he will stimulate conversation with people from ACTRA, DTGC. It should be a lot of fun.

Michael Geist:
Well thanks so much for joining us on the podcast.

Michael Geist:
Thank you very much for inviting me.

Michael Geist:
Policy 3.0. The FRPC upcoming Communications Conference takes place at the University of Ottawa on May 10th and 11th. There is a link to the conference registration page at Michael Geist.ca.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s L.A. W B Y TE S at P.O. Box dot com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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The post The LawBytes Podcast, Episode 9: The CRTC Watcher – A Conversation with FRPC’s Monica Auer appeared first on Michael Geist.

The LawBytes Podcast, Episode 8: LawBytes Lecture – What the Canadian Experience Teaches About the Future of Copyright Reform

Michael Geist Law RSS Feed - Mon, 2019/04/22 - 09:05

Earlier this spring, I delivered a keynote address at the Australian Digital Alliance’s 2019 Copyright Forum. The ADA is a leading voice on copyright issues in Australia and its annual Copyright Forum brings together government, creators, education, libraries, and the broader public to explore copyright issues. Coming off a holiday weekend with many celebrating Easter or Passover, this week’s Lawbytes podcast takes a different approach with a Lawbytes lecture, an audio recording of the ADA keynote, which used real data to dispel the misleading claims about the impact of Canada’s copyright 2012 reforms.

The podcast can be downloaded here and is embedded below.  Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

 

Episode Notes:

YouTube video version of the ADA keynote address

The post The LawBytes Podcast, Episode 8: LawBytes Lecture – What the Canadian Experience Teaches About the Future of Copyright Reform appeared first on Michael Geist.

My ADA Keynote: What the Canadian Experience Teaches About the Future of Copyright Reform

Michael Geist Law RSS Feed - Wed, 2019/04/17 - 09:10

In late March of this year, I travelled to Canberra, Australia to deliver a keynote address at the Australian Digital Alliance’s 2019 Copyright Forum. The ADA is a leading voice on copyright issues in Australia and its annual Copyright Forum brings together government, creators, education, libraries, and the broader public to explore copyright issues. This year’s event included innovative film makers, the President of the Australian Society of Authors, European Parliament MEP Julia Reda, as well as leading academics, trade negotiators, government policy experts, and many others.

My talk focused on the Canadian copyright experience, using real data to dispel the misleading claims about the impact of Canada’s 2012 reforms. A video of the keynote has been posted to YouTube and is embedded below.

The post My ADA Keynote: What the Canadian Experience Teaches About the Future of Copyright Reform appeared first on Michael Geist.

Rewriting Canadian Privacy Law: Commissioner Signals Major Change on Cross-Border Data Transfers

Michael Geist Law RSS Feed - Tue, 2019/04/16 - 09:29

Faced with a decades-old private-sector privacy law that is no longer fit for the purpose in the digital age, the Office of the Privacy Commissioner of Canada (OPC) has embarked on a dramatic reinterpretation of the law premised on incorporating new consent requirements. My Globe and Mail op-ed notes the strained interpretation arose last Tuesday when the OPC released a consultation paper signalling a major shift in its position on cross-border data transfers.

Canadian privacy law has long relied on an “accountability principle” to ensure that organizations transferring personal information across borders to third parties are ultimately responsible for safeguarding that information. The Canadian approach maintained that it did not matter where the personal information was stored or who was involved in its processing, since the ultimate responsibility lay with the first organization to collect the data.

In fact, the OPC’s January 2009 guidelines on cross-border data transfers explicitly stated that “assuming the information is being used for the purpose it was originally collected, additional consent for the transfer is not required.” That guidance enabled Canadian companies to outsource data-processing activities to other jurisdictions so long as they used contractual provisions to guarantee appropriate safeguards.

The federal privacy commissioner seems ready to reverse that long-standing approach, stating that “a company that is disclosing personal information across a border, including for processing, must obtain consent.” It adds that “it is the OPC’s view that individuals would reasonably expect to be notified if their information was to be disclosed outside of Canada and be subject to the legal regime of another country.”

While the OPC position is a preliminary one – the office is accepting comments in a consultation until June 4 – there are distinct similarities with its attempt to add the right to be forgotten (the European privacy rule that allows individuals to request removal of otherwise lawful content about themselves from search results) into Canadian law. In that instance, despite the absence of a right-to-be-forgotten principle in the statute, the OPC simply ruled that it was reading in a right to de-index search results into PIPEDA (Canada’s Personal Information Protection and Electronic Documents Act). The issue is currently being challenged before the courts.

In this case, the absence of meaningful updates to Canadian privacy law for many years has led to another exceptionally aggressive interpretation of the law by the OPC, effectively seeking to update the law through interpretation rather than actual legislative reform.

The OPC is careful to note that it believes its position is consistent with Canada’s international trade obligations, but the issue could be subject to challenge. The Comprehensive and Progressive Trade Agreement for Trans-Pacific Partnership (CPTPP), the major Asia-based trade agreement that Canada implemented last year, features a commitment to allow cross-border transfers of information by electronic means.

The treaty limits restrictions on the open-border principle for data transfers, stipulating that any limitations may not be arbitrary, discriminatory or a disguised restriction on trade. Moreover, any limits cannot be greater than those required to achieve a legitimate policy objective. The Canada-U.S.-Mexico Agreement contains similar language.

The imposition of consent requirements for cross-border data transfers could be regarded as a non-tariff barrier to trade that impose restrictions greater than those required to achieve the objective of privacy protection. The interpretation is particularly vulnerable given that PIPEDA has long been said to provide such protections without the need for this additional consent regime.

Regardless of the international trade implications, however, the OPC approach would have enormous implications for e-commerce and data flows, with many organizations forced to rethink well-established data practices and compliance policies. Indeed, companies thinking of servicing the Canadian market would be forced to consider whether they must limit data transfers, likely adding cost and complexity to digital operations.

As Canadians express mounting concerns about their privacy online, tougher enforcement measures and better safeguards may be needed. Yet those issues are more properly addressed by government policy within a national data strategy and privacy law reform, not an OPC guideline that if enacted is likely to spark an avalanche of legal challenges.

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The LawBytes Podcast, Episode 7: What if Copyright Law Took Authors Rights Seriously? A Conversation with Professor Rebecca Giblin

Michael Geist Law RSS Feed - Mon, 2019/04/15 - 09:05

What if copyright law took authors rights seriously?  Many groups claim to do so, but Professor Rebecca Giblin, one of the world’s leading experts on creator copyright, isn’t convinced. Professor Giblin argues that creators are often placed at the centre of the debate only to be largely ignored by other stakeholders. Professor Giblin joins this week’s Lawbytes podcast to talk about her Author’s Interest Project, the latest data, and why Canadian artist Bryan Adams may be on to something when it comes to his copyright reform proposal to benefit creators.

The podcast can be downloaded here and is embedded below. The transcript downloadable here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Episode Notes:

The Author’s Interest Project
Giblin, A new copyright bargain? Reclaiming lost culture and getting authors paid
Giblin, Fat horses and starving sparrows: on bullshit in copyright debates
Yuvaraj, Reversion laws: what’s happening elsewhere in the world?

Credits:

Wochitte Entertainment, Hachette Authors Urge Amazon Board To End Contract Dispute
CTV News, Bryan Adams speaks in Ottawa, urges change to copyright laws
TruTV, Adam Ruins Everything – How Mickey Mouse Destroyed the Public Domain
Reagan Library, President Reagan Signing the Berne Convention Implementation Act of 1988 on October 31, 1988
CBC News, Libraries and E-Licensing

Transcript by Temi downloadable here.

 

The post The LawBytes Podcast, Episode 7: What if Copyright Law Took Authors Rights Seriously? A Conversation with Professor Rebecca Giblin appeared first on Michael Geist.

Open Banking Is Already Here: My Appearance Before the Senate Standing Committee on Banking, Trade and Commerce

Michael Geist Law RSS Feed - Fri, 2019/04/12 - 09:05

The Senate Standing Committee on Banking, Trade and Commerce has spent the past month and a half actively engaged in a detailed study of the regulatory framework for open banking. The study has included government officials, representatives from Australia and the UK, and Canadian banking stakeholders. I appeared before the committee yesterday as a single person panel, spending a full hour discussing a wide range of policy concerns.  My core message was that the committee debate over whether Canada should have open banking missed the bigger issue that millions of Canadians already use open banking type services despite the friction in making their data easily portable to third party providers. I recommended several reforms in response, including stronger privacy laws, mandated data portability with informed consumer consent, and consumer protection safeguards that recognizing the likely blurring between incumbent banks and third party providers.

My full opening statement is posted below.

Appearance before the Senate Standing Committee on Banking, Trade and Commerce, April 11, 2019

Good morning. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law, and I am a member of the Centre for Law, Technology, and Society. My areas of speciality include digital policy, intellectual property, privacy and the Internet. I appear in a personal capacity representing only my own views.

This committee’s study on open banking has been exceptionally interesting and insightful, providing far more context, nuance, and information than the Department of Finance consultation on the issue.

Yet the review has left me somewhat puzzled. Open banking is typically framed – both before this committee, by the government consultation, and in the media – as a matter of “if” or sometimes “when”.  In other words, some debate whether we need it and others suggest that it is only a matter time.

However, I believe the record confirms that open banking is effectively already here. While the banks have largely not provided data portability to their customers, millions of Canadians already provide their banking data to third parties, who frequently use screen scraping to gain access to the banking information. This is presumably provided with customer consent since they are the ones providing the necessary login information.

The screen scraping approach is widely recognized as risky given questions about security of the sensitive data including login information, the identity of the third parties, and the absence of industry standards. The willingness to use these third party services, even in the face of the friction that exists without easy data portability, points to the real risk for government policy.

In my view, that real risk lies in doing nothing, not doing something.

The prospect of account aggregation, the use of AI, and the identification of alternative products and services may sometimes only come from a third party provider. We need to act – and act quickly – to facilitate a marketplace that responds to customer demands, fosters innovation, and addresses longstanding consumer frustrations with a banking system that invariably insists trading cost competitiveness for “stability” is a virtue. If we adopt a consumer-centric perspective on the issue, we should recognize that consumers have demonstrated their interest in open banking but they have been placed at risk by banks that make it difficult to port their data and by the absence of associated policies and effective privacy safeguards.

I’ve heard several senators ask witnesses what can or should be done. I’ll offer three recommendations.

First, Canada’s private sector privacy law must be updated. Simply put, the law was drafted more than two decades ago and is no longer fit for purpose. There are important debates about the legal protections for data, but the immediate issue is that Canadians rely on PIPEDA for their statutory protections. This law does not have an effective enforcement mechanism, meaning there is limited recourse in the event of a potential misuse, whether by the big banks or by a third party provider.

Moreover, privacy law standards that are increasingly common in other jurisdictions are simply absent from the Canadian landscape. In fact, the Privacy Commissioner of Canada has recently taken to reinterpreting the law as a means of expanding its scope and relevance.  For example, earlier this week, the OPC released a new consultation that included its preliminary view that it now believes that cross-border disclosures of personal information require prior consent. The approach is a significant reversal of longstanding policy that relied upon the accountability principle to ensure that organizations transferring personal information to third parties are ultimately responsible for safeguarding that information.

This change in approach has enormous implications for e-commerce, data flows and potentially open banking. It points yet again to the need for legislative review and reform of the law, rather than OPC guidelines that if adopted will likely end up being challenged in Canadian courts.

Second, the government needs to mandate data portability for consumer and small business banking.  The major banks may talk sweetly about their potential support for open banking, but it was only in 2017 that the Canadian Bankers Association was issuing warnings about the open banking risks to consumers and the economy as a whole.

Third party innovative services exist precisely because they offer products and services not offered by the big banks. The only way to restore the safety of Canadian consumers who face real risks with screen scraping is to mandate that their data must be openly shared by the banks where the customer provides an informed consent to do so.  There are undoubtedly security protocols and standards to be developed, but the starting point is regulated support for a consumer-focused system that gives consumer control by opening their data at their request.

Third, as the committee identifies consumer protections and other safeguards, recognize that the difference between the big banks and third party financial providers will become increasingly blurry for many Canadians. That blurring already exists in other sectors – think telecom and the incumbent providers who operate alongside third party services such as Skype, WhatsApp, and a host of other services that offer functionality once limited to the incumbent providers.

The same will be ultimately be true in banking as consumers come to rely on new service providers that offer services alongside the big banks. That suggests that consumer protections and the identification of risks should take a big picture perspective. In fact, just yesterday, the CBC reported that a report from the Financial Consumer Agency of Canada about aggressive sales tactics by the banks underwent revisions after early drafts were provided to the government and the banking sector. The revisions included the removal of proposed consumer protections.

In other words, we should not pretend that it is only new technologies and third parties that bring with them consumer risks.

I look forward to your questions.

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Canadian Privacy Commissioner Signals Major Shift in Approach on Cross-Border Data Transfers

Michael Geist Law RSS Feed - Wed, 2019/04/10 - 09:05

The Office of the Privacy Commissioner of Canada has released a consultation paper that signals a major shift in its position on data transfers, indicating that it now believes that cross-border disclosures of personal information require prior consent. The approach is a significant reversal of longstanding policy that relied upon the accountability principle to ensure that organizations transferring personal information to third parties are ultimately responsible for safeguarding that information. In fact, OPC guidelines from January 2009 explicitly stated that “assuming the information is being used for the purpose it was originally collected, additional consent for the transfer is not required.”

The federal privacy commissioner now says that “a company that is disclosing personal information across a border, including for processing, must obtain consent”, adding that “it is the OPC’s view that individuals would reasonably expect to be notified if their information was to be disclosed outside of Canada and be subject to the legal regime of another country.”  While this position is a preliminary one – the office is accepting comments in a consultation until June 4, 2019 – there are distinct similarities with the OPC’s approach on the right to be forgotten.  In that instance, despite the absence of a right to be forgotten principle under Canadian law, the office simply decided that it was reading in a right to de-index search results into PIPEDA. The issue is currently before the courts.

In this case, the absence of meaningful updates to Canadian privacy law for many years has led to another exceptionally aggressive interpretation of the law by the OPC, effectively seeking to update the law through interpretation rather than actual legislative reform. Since PIPEDA’s inception, the accountability principle has been touted as a foundational aspect of the law, providing assurance that Canadians’ privacy is protected regardless of where it goes or who processes it. Yet the OPC seemingly now doubts that view, suggesting that there are risks associated with data that leaves the country.

The OPC is careful to note that it believes its position is consistent with Canada’s international trade obligations, but the issue could be subject to challenge. Article 14.11 of the CPTPP requires Canada (and all parties) to allow cross-border transfer of information by electronic means. The article states that:

Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to achieve a legitimate public policy objective, provided that the measure:
(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and
(b) does not impose restrictions on transfers of information greater than are required to achieve the objective.

The imposition of consent requirements for cross-border data transfers could be regarded as imposing restrictions greater than required to achieve the objective of privacy protection, given that PIPEDA has long been said to provide such protections through accountability without the need for this additional consent regime.

Regardless of the international trade implications, however, the OPC interpretation would have enormous implications for e-commerce and data flows with many organizations forced to rethink longstanding compliance policies. The proposal is sure to generate opposition with some understandably asking whether the issue would be more properly addressed by government policy within a national data strategy and privacy law reform, rather than an OPC guideline that if enacted is likely to end up in the Canadian courts.

The post Canadian Privacy Commissioner Signals Major Shift in Approach on Cross-Border Data Transfers appeared first on Michael Geist.

The LawBytes Podcast, Episode 6: Former CRTC Vice-Chair Speaks Out on the Plan to Regulate and Tax the Internet – “Dangerous Game to Play”

Michael Geist Law RSS Feed - Mon, 2019/04/08 - 09:05

For the better part of two decades, Canadian cultural groups have been pressing Canada’s telecom and broadcast regulator, the CRTC, to regulate and tax the Internet. The CRTC and successive governments consistently rejected the Internet regulation drumbeat, citing obvious differences with broadcast, competing public policy objectives such as affordable access, and the benefits of competition. That changed last year when the CRTC released Harnessing Change: The Future of Programming Distribution in Canada, in which it dramatically reversed its approach. Peter Menzies, a former CRTC commissioner and Vice-Chair of Telecommunications, joins this week’s LawBytes podcast to help sort through Cancon funding, Internet regulation, and the CRTC.

The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Episode Notes:

Regulate Everything: The CRTC Goes All In On Internet Taxation and Regulation
Harnessing Change: The Future of Programming Distribution in Canada

Credits:

CBC News, Tax on Netflix and Spotify proposed by CRTC
CBC Catherine Tait at Prime Time, @sdbcraig
CBC News, Ottawa’s fight with Netflix reignites age-old debate — what is Cancon and who should pay?
Standing Senate Committee on Transport and Communications, October 30, 2018
Canadian Heritage, Minister Joly – Creative Canada Speech / Ministre Joly – Discours Canada créatif
House of Commons, December 12, 2017

The LawBytes Podcast, Episode 6 (transcribed by Sonix)

Michael Geist: This is LawBytes, a podcast with Michael Geist

CBC News: Broadcast regulator is calling on the government to tax the likes of Netflix and Spotify among others. The CRTC has proposed that such companies including Internet service providers should be forced to fund the production of Canadian content. The intention is to help compensate for the declining contribution of cable and satellite providers.

Catherine Tait, CBC President: So unbelievable to be able to experience that kind of cultural sharing. So for this we are very grateful to Netflix. However, fast forward, to what happens after imperialism. And the damage that that can do to local communities. So all I would say is let us be mindful of how it is we as Canadians respond to global companies coming into our country.

Michael Geist: For the better part of two decades Canadian cultural groups have been pressing Canada’s telecom and broadcast regulator the CRTC to regulate and tax the Internet. As far back as 1998, the CRTC conducted hearings on new media in which groups argued that the dial up internet was little different from conventional broadcasting and should be regulated and taxed as such. The CRTC and successive governments consistently rejected the internet regulation drumbeat citing obvious differences with broadcast, competing policy objectives such as affordable access, and the benefits of competition. That seemed to change last year when the CRTC released Harnessing Change: the future of programming distribution in Canada, a report that dramatically reversed its approach. The CRTC reversal highlights competing visions of Canadian content regulation and the Internet. There are those such as CBC’s Catherine Tait who have likened Netflix to a cultural imperialist that requires a regulatory response. Others look at recent data that shows that when it comes to Canadian English language fictional programming, foreign financing is now larger than the funding from broadcasters and Canada Media Fund contributions combined. As one columnist recently concluded “the evidence doesn’t back up the case that extending the paternalistic Cancon regulatory model to foreign streaming services will do anything to save Canadian culture.” To help sort through Cancon funding, internet regulation and the CRTC, I’m joined on the podcast this week by Peter Menzies, a former CRTC commissioner and vice chair of telecommunications. Peter has been a reporter, newspaper publisher, regulator, and is now the director of the Royal Saskatchewan Museum

Michael Geist: Thanks so much for joining me on the podcast.

Peter Menzies: Thanks very much. It’s a it’s a pleasure and I’m flattered to be part of this.

Michael Geist: Well you’ve been one of the the people have been really outspoken when it comes to the CRTC and cultural issues so you’re really a perfect person to come on and talk about some of the things that are taking place and I thought we’d start by focusing on what seems like a recurring issue literally years and years and years of the same kind of issue being discussed when it comes to the prospect of new sources of revenue, new fees associated with either Internet streaming services or internet services more generally to fund Cancon and so we’ve seen this issue recur sometimes talking about it in the context of a so-called Netflix tax. Other times about broadband or wireless taxes all in the name of supporting the creation of Canadian content. It was back in the news recently with new data that showed that foreign services are significantly outspending Canadian broadcasters when it comes to at least English language drama.

CBC News: Canada’s eight billion dollar production industry is booming like never before. And another studio nearby asset is under construction for another Netflix series called Lock and Key. Foreign streaming services from Netflix to Amazon to Hulu are creating jobs here. But they make no contribution to the government sponsored funds.

Michael Geist: And so I guess the question that I want to start with is there a Cancon crisis in Canada.

Peter Menzies: There’s always a Cancon crisis in Canada in the minds of some people and in the minds of some other people there is never really a Cancon crisis in Canada. So it depends how you look at it in terms of that sort of sense I mean from a person lobbying for more funding for Cancon or for a person lobbying for more funding for anything it’s always to their advantage to have a crisis ongoing. And I think that’s been part of the culture of the Cancún discussion for at least 30 years. And it really goes into our history of being of protecting ourselves against the foreigners. I’ve used the phrase couple of times we’ve built this big beautiful wall between us and the United States to protect our culture from them. And now we’re having a lot of difficulty adjusting to the idea that walls aren’t what we need.

Michael Geist: What do you think we do need I guess just to jump right in in this in this new Internet based environment.

Peter Menzies: Well I mean adaptation becomes the first thing that gives a little context about 10 years ago. It’s probably at least 10 years ago or so was that the CMPA primetime conference in Ottawa. And I think it was Glen O’Farrell. But I stand to be corrected. But I was taking some questions and that sort of stuff and I remember asking him sort of regarding the Cancon subsidy and that sort of stuff. That’s sort of at what point in the future you know 25 years 30 years 50 years 100 years sort of thing do you see Cancon being able to be sustainable on its own.

Peter Menzies: And the response was never. And I realized then that for folks inside the system it was inconceivable for them that there could be something other than the system and that was the only way they could think. I mean they’re not bad people. It’s not necessarily a bad thought. But it was a limited thought. So what we need to do is move away I believe to have a better life for Cancon producers and exploit the whole world. We’ve been trying to serve a market of 35 million people split into two languages. So you have one market really of about 25 million people and another about 10 million people. Very small markets through subsidy and done that reasonably successfully for a long time. There is an English speaking and French speaking market out there in the world that we could serve. That has hundreds of millions if not billions of people in it. And that seems to me like a real opportunity that we would ignore at our peril.

Michael Geist: The CRTC for many years and you were obviously there for many years did not want to come close to kind of regulate regulated type solutions when it came to the Internet. They obviously played a key role in structuring this Cancon support model but that was based on conventional regular broadcast in the Internet space. They really took a hands off approach dating all the way back to the 1990s with the digital media exemption essentially the power to regulate. But choosing not to. Now that seemed to change last year with a report titled Harnessing change in which the current CRTC chair Ian Scott got behind Internet taxes and I know that he insists they aren’t taxes. He talks instead about contributions to the system.

Ian Scott: We examine the future of programming distribution in Canada in our Harnessing Change report prepared at the request of government and released in May of this year. This report asks a fundamental question: what can be done to support the production, discoverability and promotion of Canadian programming. Harnessing change concludes that new innovative approaches that would engage digital players are needed.

Michael Geist: I was curious about your thoughts on the report and what sure feels like a significant reversal in policy.

Peter Menzies: Yeah it is a significant reversal on policy. I mean it it went or at least approach and philosophy.

Peter Menzies: It went from you know sort of the discoverability summit and that idea to some of the directions encouraged by the previous commission under JP Blais and and for that matter supported by the Heritage Minister in many of her statements, Minister Joly, regarding the need to prepare Canada for the future and pushing for commitments that benefit our industries.

Melanie Joly: Today I’m announcing the first of these agreements on behalf of the government of Canada and Netflix. Under this agreement Netflix will create Netflix Canada, a permanent film and television production presence here in Canada the first time that the company has done so outside the United States. And building on the strong track record of investing in shows like Anne and Alias Grace with the CBC, Travellers with Showcase, and Frontier with Discovery. They have agreed to invest a minimum of five hundred million dollars in original productions in Canada in both official languages over the next five years.

Peter Menzies: Even the title Harnessing Change indicates that you’re trying to stop something you know it’s a King Canute style approach to things we are going to harness change rather than embracing change rather than adapting to change rather than exploiting change to our benefit. There’s all kinds of different ways you could look at it. So I mean I think that that approach I find very regressive and kind of sad because you can’t stop change. As to we meddling with the Internet and content on the Internet. That’s a very very dangerous game to play. The Internet, and that speaks to how the the CRTC’s affection for the broadcasting act, which is I mean they have to you have to fulfill it. It’s your job. But in comparison to things such as the Internet and telecommunications it distorts the argument. The Internet is not broadcasting the Federal Court has ruled on that it may carry video. But I mean everybody carries video. People go live and podcast themselves at an Eric Clapton concert. The Globe and Mail has video, National Post has nothing but video on its Web site. You are interfering in areas that you don’t belong. And the Internet is far far more than video. It’s speech, it’s academia, it’s tons of things. So I’m not sure they’ve thought that through. There are ways that they can manage things. Other than that I hope.

Michael Geist: I think that’s a really important point. Both the the widespread use of video itself by a range of services that we wouldn’t think of as being broadcasters in any any real sense and the fact that the Internet is used for so much more than than just video. I mean it’s striking a lot of the conversation has been around the prospect of these taxes and what it means for internet affordability and the like. But I think you’re right to point out that we’re really talking about the prospect of pretty extensive regulation by the CRTC of almost any Internet based service that could conceivably even include podcasts like this one. And so I suppose it begs the question though is the CRTC even the right venue for this kind of discussion and debate or is that something that’s better left to Parliament to sort through.

Peter Menzies: Well it’s absolutely left to Parliament. The last I heard the government of Canada was strongly defending the notion of net neutrality which I think is terrific.

Navdeep Bains: Let me be clear our government stands to support net neutrality. Mr Speaker we support an open Internet. We support the CRTC framework for net neutrality. Mr Speaker because we know an open Internet is critical for our economy and our democracy.

Peter Menzies: It’s a notion that should be defended. I mean it’s it’s a hill worth dying on and in a sense like in the sense like that because once you start messing with that you you begin to define the Internet as if it was cable and there’s there’s a real trend that you can pick up in the discussions. It comes from within the industry. It comes from within the CRTC that this whole internet fad you know it’s just kind of like it’s just the new cable right.

Peter Menzies: And it’s not. People should have no business. I mean it’s not that it should be the Wild West. The internet should be governed like the rest of the public square is governed. I mean there are hate speech laws, there are libel laws, there are defamation laws, there’s there’s all kinds of laws, there’s sexual exploitation laws, all the laws of the land should apply to the Internet. It should not be. It doesn’t have to be a wild west zone. But when it comes to regulation through regulators such as the CRTC, its sole role should be ensuring that the content, that the role of net neutrality is respected and that and when it comes to providing fair competitor access and items like that that the public that matter to the public but most of the public doesn’t know that it matters to them.

Michael Geist: Do you have a thought as to why we’ve see the CRTC shift in this way and is it simply a matter that regulators are going to regulate. And as it feels it’s in a sense power to regulate over conventional broadcasters where it had that power largely through licensing and and a more closed system. And it feels that evaporates. It extends over to the internet although even as I ask the question I know that for a very long time the CRTC resisted doing exactly that.

Peter Menzies: I mean my sense of it right now is that it’s kind of local politics. Minister Joly was and so was the preceding CRTC chair in his last year was being attacked by the cultural lobby, a large part of which is based out of Montreal, that did not like the changes that had been made. That did not like the approach moving forward and felt more comfortable moving you know advancing the cause of you know I’m conscious of the fact that I’m know talking about a lot of people at risk of generalizing about a lot of people here.

Peter Menzies: But let me just try to say that that specific group because there’s other groups I could mention that specific group is for them it’s much easier to have the outside world changed them for their world to change. So the solution to them has always been just put a tax on Netflix and other streaming services and everything will be fine. It’ll be just like 1985. The revenue we might lose through lower cable subscriptions will be replaced by streaming subscriptions and we’re all good.

Peter Menzies: And you know they won. Minister Joly is no longer, unfortunately in my view, is no longer minister. And the harnessing change is the new approach.

Michael Geist: You know when you talk about the kind of targeting that takes place Netflix as you suggest is frequently the target in Canada and I think at least in recent memory there is no more infamous incident than when CBC president Catherine Tate spoke to an industry conference earlier this year calling Netflix a new empire.

Catherine Tait, CBC President: I was thinking about the British Empire and how if you were there and you were the viceroy of India you would feel that you were doing only good for the people of India or similarly if you were in French Africa you would think I’m educating them. I’m bringing up the bring their resources to the world and I am helping them. There was a time where cultural imperialism was absolutely accepted and in fact if yo were a history student you would be proud of the contribution that these great empire escape. I would say we are at the beginning of a new empire.

Michael Geist: The industry often has discussed Netflix really in the context or with the vision of being a threat talking about an uneven playing field with the notion that benefit that Netflix benefits from an unregulated, untaxed service unlike some of its Canadian counterparts. Although I think there’s arguments that the level playing field issues often times swing the other way there’s all sorts of benefits that the regulated sector has that Netflix doesn’t. But it’s pretty clear that it’s a framing that has certainly caught the attention of policymakers and now it would seem the CRTC. Any thoughts on what if anything the regulatory world should look like for some of these online streaming services?

Peter Menzies: Well I mean obviously they should be collecting sales tax and contributing to the Treasury’s in that manner and in fact in Saskatchewan they are collecting the PSAT now so it obviously can be done they should be contributing to society just the just the way all businesses should be.

Peter Menzies: In terms of how they should be can. And I think that contribution is fine because in my perfect world you would actually attach cultural funding from these vehicles and it would come from general revenue and that would remove the risk of the telecom world being distorted by the broadcasting world abroad where you need cultural funding it could be provided straight through the federal Treasury rather than through whatever we want to call them taxes or fees on distribution platforms. There are a group of people and I met with some when one of my in my last year at the CRTC of producers who actually were encouraging us to continue to do nothing about Netflix because in their view Netflix was providing a lot of money was investing heavily in their industry in Canada.

Peter Menzies: They liked that and they didn’t want that to be chased away for them. That was a great advantage. It provided an additional path to for their production. I met a young fellow producer also in my last year who when we talked about the new rules just sort of shrugged and said Hey when we saw them we just called the staff in and said Okay guys things have changed and we have a new.

Peter Menzies: We have a new foundation and we can’t sell it to Netflix. We don’t make it. So it changed changed everything in that regard.

Peter Menzies: So there is a there are people who want to move out into the world and take advantage of a bigger world and you can do that through streaming platforms such as Netflix and others and let’s face it there’s there’s going to be a lot more. And I’m curious to know why. I don’t quite understand why Canadians haven’t sort of taken that bull by the horns and run with it a bit more.

Michael Geist: Yeah well perhaps it does come back to your one of your very early points in this conversation about walls and the notion of a challenge in competing with a streaming service that sees itself as a global player that now quite literally has content that people really want to access and view from around the world as opposed to a country where so much of the approach has long been defined by being limited within the national borders. You state it’s up to just a moment ago that that I want to drill down on for just a moment. That was to suggest that the right way to fund Cancon or cultural priorities ought not to be the kind of subsidy model that we’ve had for many many years especially through conventional broadcast but rather through general revenues. Can you can you expand a bit on on how you see this taking place in a sense. I think it’s suggesting that we are it’s not that we ought to extend these kinds of mandated contributions or taxes to Netflix and other streaming services. It’s that we ought to get out of the business altogether of using these kinds of fees as the way that we try to fund this kind of Canadian content.

Peter Menzies: Once you attach them to the cultural side they begin and you can see this and the risk and the Harnessing Change report you begin to define them as cultural carriers rather than just carriers and agnostic. And if you see them as cultural entities then you end up messing with them. And it perverts that that all those all those principles around net neutrality and that sort of stuff. So it’s a lot easier to get rid of that risk too and it wouldn’t just mitigate it. You would eliminate that risk by creating funding just funding directly from the federal treasury. And that’s entirely possible in the grand scheme of things. The sums are not insignificant but they’re not overwhelming cultural funding when it compares to other areas is it is a fairly modest. So that’s the that’s the view I take on that.

Michael Geist: So that’s certainly one alternative and we do see more and more people arguing that if the current system is diminishing in importance given the decreasing revenues for broadcasters obviously we’re seeing more money come in from foreign unregulated players but perhaps it’s time to rethink the system as a whole. And of course that’s part of what’s taking place with the launch of the broadcast and telecommunications legislative review panel the panel that was also sort of coming out came out of Minister Joly and Minister Bains talking about the prospect of a rethink of Canadian broadcast and telecommunications laws a preliminary report is expected in June the final one in early 2020. It holds the prospect of a real overhaul or at least recommendations of an overhaul on broadcast and telecom. If you were on the panel or perhaps asked to provide it with some advice what would you say?

Peter Menzies: Well I would say we would happen to move into some of those areas and I would think that we need to be more progressive in our approach. I mean I find the current approach of this to go back to something you said.

When we talk about the system I think there’s risk in these discussions of believing that the system is the industry that the system and the industry kind of you know are all one in terms of that and I’m not ignorant of the fact that they’re very closely tied but there is a world outside this walled garden that has so much opportunity into it. You know like you can spend your time being afraid that you will lose half of your market of 25 million Anglophone Canadians to foreign invaders or you can spend your time thinking about how you could maybe grab 10 percent of a market of 800 million people. I mean there are hundred and twenty five million anglophones in India right. If you can talk to producers of content aimed at at at the Indian market and people in the Indian diaspora and you know that’s the way people get it why would I aim. You know why would I ignore that market right. It makes no sense to me whatsoever that you would have an approach that continues to be defend this small market within which nobody will ever get super rich. I get that but that we should be going out into the world and and exploring those opportunities. So that would be the broad philosophy upon which I would like. I would encourage people to look at things because otherwise we just become walled in small and we become little Canadians. And I would like us to be big Canadians.

Michael Geist: Peter thanks so much for joining me on the podcast.

Peter Menzies: Thank you Michael it’s been a pleasure and the privilege

Michael Geist: The Government’s expert panel broadcast and telecommunications legislative review panel is expected to release an interim report in late June. Its final report and recommendations are due in January 2020.

Michael Geist: That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s L.A. W B Y TE S at P.O. Box dot com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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Supporting a More Competitive Canadian Wireless Market: Speak Out on Navdeep Bains’ Proposed CRTC Policy Direction

Michael Geist Law RSS Feed - Thu, 2019/04/04 - 11:42

Last month, Innovation, Science and Economic Development Minister Navdeep Bains took his most significant policy step to date to address telecommunications concerns by issuing a proposed policy direction to the CRTC based on competition, affordability, consumer interests, and innovation. As I noted at the time, the proposed policy direction will make a difference as those perspectives will become a more prominent part of the regulatory process that cannot be easily dismissed.

The comment period on the proposed policy direction closes next Monday (April 8th), offering the opportunity for Canadians to signal their support for a policy measure designed to make wireless services more competitive and affordable. I discussed the issue in this post and in my podcast with TekSavvy executive Andy Kaplan-Myrth. Both Open Media and TekSavvy have launched sites that make it easy to provide the government with comments. A Telus executive recently likened the Open Media effort to “yellow vesting”, an inflammatory comparison that suggests that the incumbent wireless companies will launch a full scale lobbying campaign against the measure, reminiscent of their 2013 effort to keep Verizon from entering the Canadian market where the companies were placed on an “immediate war footing.”

Given the longstanding need for a more competitive wireless market, the Bains measure deserves public support. Those concerned with the wireless market should take the time to read the policy direction and provide the government with their views before the deadline by writing directly or using the Open Media and TekSavvy participation websites.

The post Supporting a More Competitive Canadian Wireless Market: Speak Out on Navdeep Bains’ Proposed CRTC Policy Direction appeared first on Michael Geist.

The LawBytes Podcast, Episode 5: “A Huge Threat to How the Internet Functions Now”

Michael Geist Law RSS Feed - Mon, 2019/04/01 - 09:05

Most treaties are negotiated behind closed doors with no text made available until after a deal has been reached. Yet there is a treaty with enormous implications for the Internet, copyright, and broadcasting that has been hidden in plain sight for the better part of two decades. This week, the World Intellectual Property Organization resumes discussions in Geneva on a proposed Broadcasting Treaty. To introduce WIPO, the proposed treaty, and its implications, Jamie Love of Knowledge Ecology International joins this week’s LawBytes podcast. Love warns that the treaty could extend the term of copyright for broadcast content, create a wedge between broadcasters and Internet streaming services, and even result in new restrictions on the use of streaming video.

The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Episode Notes:

KEI Broadcasting Treaty archives
WIPO Broadcasting Treaty brief

Credits:

House of Commons, June 12, 2013
WIPO, Stevie Wonder Congratulates UN Delegates on Entry into Force of Marrakesh Treaty
WIPO, SCCR 37th Session
WIPO, Canada Joins Three Key WIPO Trademark Treaties

The post The LawBytes Podcast, Episode 5: “A Huge Threat to How the Internet Functions Now” appeared first on Michael Geist.

fifteen years

Fair Duty by Meera Nair - Sun, 2019/03/31 - 10:10

The Supreme Court’s decision of 4 March 2004, CCH Canadian v. Law Society of Upper Canada, ushered in a more progressive approach to copyright, by emphasizing that exceptions to copyright are a vital part of the system itself. The decision also coincided with the start of my doctoral research, at Simon Fraser University’s School of Communication. So it seemed only befitting to begin with CCH when I gave the keynote address last month at Balancing the scales: the role of fair dealing in Canadaan event organized by the Vancouver post-secondary community and hosted by Simon Fraser University.

One of the more fascinating aspects of studying systems of copyright is its variety of entry points. Enthusiasts of business, communication, economics, ethics, history, human rights, innovation, international relations, literature, philosophy, technology, and law, can all find a familiar theme within the ambit of copyright. Such an interdisciplinary nature is an asset; there are many signposts by which to navigate the route to effective public policy.

Yet copyright remains predominantly mired in the bland pronouncement of copyright is an author’s right. As to what that right means, whether copyright can achieve the expectation of authorial well-being implicit to the language of rights, that discussion is too often shunted aside. Complicating matters further in Canada is the propensity to wrap copyright in a maple leaf; a false, but politically effective, message portrays Canadian literature as dying and asserts that only more copyright can save it.

For my address, I took a little inspiration from Margaret Atwood and drew attention to the events that shaped both copyright and publishing in Canada during the late nineteenth-century. Namely, that those norms of copyright benefited only Britain and America, and deterred Canada from devising a system that would serve its own readers, writers, and publishers. The consequences of those years continue to be felt today; we cannot escape our own history. Fortunately, Canada’s ongoing success in literature is also a product of history, one carved outside of the regime of copyright.

The entire event is available here. (My presentation was the last one; click on Show Media and select: balancing_scales_role(4).mp4.)

On a personal note; that day in Vancouver, a dear friend was missing from the audience. James Woodburn Dean (1941-2019) died earlier in February. James, professor emeritus of SFU’s economics department, was an extraordinary champion of all students, regardless of their subject. His capacity for kindness was, and will remain, unparalleled to those who received it. As has been written of James, “He believed in the power of education and music and encouraged others to take bold steps.” To the extent that I can claim some success as a scholar, I am indebted to James for his indefatigable confidence in my ideas and unstinting friendship that continued long after completion of my doctorate.

Rest in peace James.

A Netflix Crisis?: Foreign Funding Now By Far the Largest Source of Financing for Canadian Fictional English Language TV Production

Michael Geist Law RSS Feed - Thu, 2019/03/28 - 11:21

The Canadian Media Producers Association has just released the latest data on film and television production in Canada which confirms that foreign sources are now by far the biggest contributor to Canadian English language television production. Despite warnings of cultural imperialism and repeated calls from some in the industry for Netflix taxes to fund production, the data suggests that it already does since foreign investment in Cancon now larger than the primary Canadian sources. In fact, when it comes to Canadian English-language fictional programming, foreign financing is now larger than private broadcaster licence fees, public broadcaster licence fees, and Canada Media Fund contributions combined.

 

CMPA, Profile 2018, https://cmpa.ca/wp-content/uploads/2019/03/Profile-2018.pdf

According Profile 2018, foreign sources spent $274 million on fictional English-language Canadian television production, compared with only $46 million from private broadcasters, $114 million from public broadcasters, and $100 million from the CMF. While there are concerns about children’s and youth programming, the data tells a similar story: $80 million from foreign sources compared to $26 million from private broadcasters, $18 million from public broadcasters, and $21 million from the CMF.  In other words, the unregulated, market-based approach is delivering far more investment into Canadian production than the regulated sector.

It is difficult to overstate the shift in funding in Canada. Five years ago, the breakdown of financing of Canadian English language fictional programming involved roughly even split among private, public, and foreign financing with CMF the largest of the four sources.

 

Profile 2013, on file with author

Since that time, foreign financing has grown from $131 million to $274 million, public broadcaster funding has remained largely unchanged ($116 million to $114 million) while the other two have declined significantly: private broadcaster from $115 million to $46 million and CMF from $167 million to $100 million.  Foreign financing has actually made up for the entire decline in funding from all three other sources, making it difficult to understand the basis for blaming Netflix for Canadian production spending.

The post A Netflix Crisis?: Foreign Funding Now By Far the Largest Source of Financing for Canadian Fictional English Language TV Production appeared first on Michael Geist.

The LawBytes Podcast, Episode 4: Going Inside Canada’s Copyright Review

Michael Geist Law RSS Feed - Mon, 2019/03/25 - 09:09

The House of Commons Standing Committee on Industry, Science and Technology has spent the past year reviewing the state of Canadian copyright law. The review, which is scheduled to result in a report with recommendations for potential reforms, featured hundreds of witnesses representing a wide range of views. To introduce some of the issues and provide some insight into how the review process functions, this week’s LawBytes podcast relies on the audio recording of my committee appearance in December 2018.  It opens with my seven minute opening statement and continues with several exchanges with MPs on issues such as fair use, the USMCA, crown copyright, and anti-circumvention rules, which are often referred to as digital locks.

The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Episode Notes:

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

Credits:

Standing Committee on Industry, Science and Technology, December 10, 2018
House of Commons, November 29, 2018
CBC Power and Politics: Copyright Modernization Act
CityNews Toronto: Bryan Adams Fights for Artists’ Copyright Laws
iFixit Video: DMCA on the Farm

The post The LawBytes Podcast, Episode 4: Going Inside Canada’s Copyright Review appeared first on Michael Geist.

How Canadian Copyright Reform Could Support the Government’s Supercluster Investment

Michael Geist Law RSS Feed - Wed, 2019/03/20 - 09:10

The release of Budget 2019 yesterday again placed the government’s innovation strategy in the spotlight as the government emphasized its significant spending record, including $950 million for the superclusters, $4 billion for science research, $795 million in 31 strategic innovation fund agreements and $2.3 billion for clean technology support. The investments were highlighted in a recently released an innovation scorecard, Building a Nation of Innovators, which takes stock of the government’s efforts over the past three years. My new CIGI policy brief argues that while the benefits from this spending will take years to realize, increased investments in strategic sectors are the easy part of innovation policy.

Enacting new rules and regulations that support an innovative economy is more challenging. On that front, the government’s record is more modest. The limited intellectual property reforms made to date are aimed at resolving the frustrating administrative processes at the Copyright Board of Canada and are designed to guard against IP misuse. Many other critical innovation policy issues — data governance, copyright reform, privacy modernization, telecommunications regulation — remain works-in-progress, with major legislative changes still years away from enactment.

I argue that there is a link between innovation policy and copyright reform; four reforms, in particular, are both long-overdue and closely-linked to the government’s supercluster approach. These include a text-and-data mining exception – sometimes referred to as an information analysis exception – to support artificial intelligence (AI), flexible fair dealing in support of digital technologies and advanced manufacturing, open government data and the elimination of crown copyright in connection with the ocean supercluster, and the easing of digital lock restrictions that place Canadian agriculture and the protein innovation supercluster at a competitive disadvantage. The full brief can be found here.

The post How Canadian Copyright Reform Could Support the Government’s Supercluster Investment appeared first on Michael Geist.

The LawBytes Podcast, Episode 3: The CRTC Is “Doing the Least They Can Get Away With”

Michael Geist Law RSS Feed - Mon, 2019/03/18 - 08:45

Earlier this month, Innovation, Science and Economic Development Minister Navdeep Bains took his most significant policy step to date to put his stamp on the Canadian telecom sector by issuing a proposed policy direction to the CRTC based on competition, affordability, consumer interests, and innovation. To help sort through the policy direction, the state of the Canadian telecom market, the role of independent companies that rely on regulated wholesale access, and lingering frustration with the CRTC, this week’s LawBytes podcast features a conversation with Andy Kaplan-Myrth, Vice President of Regulatory and Carrier Affairs with TekSavvy, Canada’s largest independent telecom company. 

The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

Episode Notes:

Enough is Enough: Bains Proposes CRTC Policy Direction Grounded in Competition, Affordability, and Consumer Interests

Credits:

Government Orders CRTC To Reverse Bandwidth Decision, The Hill Watcher, 3 February 2011

New wireless spectrum auction announced, Global News, 12 January 2014

Why is Canada-based Ting is not available for cell phone users in Canada?, Open Media, 1 August 2013

Verizon opts out of Canada, Canoe, 20 March 2018

House of Commons Hansard, 26 February 2019

House of Commons Hansard, 7 December 2018

The post The LawBytes Podcast, Episode 3: The CRTC Is “Doing the Least They Can Get Away With” appeared first on Michael Geist.

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