Digital Copyright Canada

The first episode of the new season of the Lawbytes podcast is dedicated to my good friend and colleague Ian Kerr, a giant in the law and technology field, who passed away on August 27th after battling complications arising from cancer. Ian’s generosity, warmth, and good humour touched the lives of thousands of people. Whether national privacy commissioners or first-year law students, he made time for everyone, offering encouragement, insight, and a deeply held view that everyone had an opportunity and responsibility to help shape our collective digital future. The Faculty of Law plans to celebrate Ian in an event scheduled for Friday, September 27th at 11:30 am. There is also an Ian R. Kerr Memorial Fund that will support scholarships, fellowships, activities and initiatives honouring his legacy.

This podcast episode wasn’t easy to create but I wanted to highlight his exceptional talent as a teacher and advocate. The episode features five clips that each call attention to different strengths. Ian reading from Carl Sagan opens the episode, highlighting Ian’s innate ability to bridge disciplines and reach a wide audience. The episode also features two house of commons committee appearances: one demonstrating how Ian was so often prescient on key issues and the other illustrating his deep commitment  to gender equality. There is also an interview showcasing his advocacy skills and a lecture at the University of Montreal on health and AI, which holds personal significance since we spent the day together along with past and, as it turned out, future colleagues.

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.

Ian Kerr Tributes

Obituary for Ian Randall Kerr
In Memoriam: My Dear Friend and Colleague Ian Kerr
Faculty of Law Mourns the Death of Professor Ian Kerr
Ian Kerr 1965-2019

Credits:

CBC Radio, An Excerpt From ‘A Pale Blue Dot’
Standing Committee on Access to Information, Ethics and Privacy, June 12, 2012
Standing Committee on Access to Information, Ethics and Privacy, April 4, 2017
CTV Canada AM, Ban Killer Robots
Droit/Law+Tech | Ian Kerr – Robots and their Human Counterparts

The post The LawBytes Podcast, Episode 24: A Tribute to Ian Kerr appeared first on Michael Geist.

At the Copyright Review (2017-2018), one element of consensus among copyright owners and users alike was that students are certainly entitled to practice and benefit from fair dealing. With a new school year underway, I hope that educational administrators remember this and give students sufficient breathing space in connection to their learning.

Yet, it seems that anxiety still stalks authority when leaving students unattended with fair dealing. Uses of imagery seem especially fraught with tension. As imagery cannot be measured by any standard yardstick, its use immediately becomes suspect. Whereas the only distinction is that – to be fair – most, if not all, images have to be presented in their entirety to be useful. This does not mean, nor was it intended to mean, that the use is automatically excluded from fair dealing.

Despite the now well-entrenched CCH (2004) model of analysis guiding fair dealing—the critical elements being that we look at each situation comprehensively, and, that the use must serve the purpose for which it was chosen—use of imagery seems to provoke a combination of tension and amnesia. This may be due to a miscast legacy dating to fair dealing’s first experience in a Canadian courtroom: Zamacois v. Douville and Marchand (1943).

At issue was the reproduction of an article written by Miguel Zamacois, a citizen of France, which had been published in a French journal (Candide) and reprinted in a Quebec newspaper (Le Bien Public) together with a commentary by a local writer. A representative of a society of French writers claimed infringement on Zamacois’ behalf.

The proprietors of Le Bien Public, Raymond Douville and Clement Marchand, based their arguments principally on: (i) Zamacois’ ineligibility as a plaintiff; (ii) Zamacois’ creation pertained to matters of a political nature (WWII) and thus was not a literary work; (iii) provisions within the Berne Convention that favoured unauthorized reproduction of political or economic news; and (iv) the terms of a prior contractual arrangement with the French society (since lapsed). Invoking fair dealing was a measure of last resort. But when making the case for fair dealing, Douville and Marchand also drew particular attention to the fact that reprinting the article had not enhanced the paper’s commercial position.

The rationale of Douville and Marchand might have been deemed immaterial to the court’s eventual decision that infringement had been found and fair dealing had been denied. Indeed, a summary of the case issued later by Carswell, expresses bemusement as to why “the learned judge” had devoted such effort to exploring all aspects of the defendants’ arguments, as “the Convention has no statutory effect in Canada. The rights of authors are protected by the terms of the Copyright Act and that Act allows no reproduction of such articles without the consent of the author, except for the minor right of quotation on the basis of ‘fair dealing.’”

Such a statement baldly misrepresented fair dealing’s scope. Moreover, Carswell’s writer missed the critical point—a question of fair dealing is necessarily a contextual matter. Facts, and the circumstances in which they are imbedded, matter. Predating CCH by 61 years, Justice Angers gave Canadians an exemplar to follow in the years to come—a contextual analysis. He began from where one would expect, with reference to English authority, Copinger on the Law of Copyright (7th edition):  “It may be fair dealing to take a substantial part [of a work].” But noting that the article in question was of French provenance, he took care to also explore literary criticism and newspaper practices in that nation’s tradition. The depth and breadth of Anger’s exploration illuminates that matters of infringement generally pertained to commercial reproduction, that good faith was relevant, and that each situation is distinctive and must be assessed according to its own context.

In this case, Angers denied the claim of fair dealing, not because it was a copy of an entire article, but because it did not satisfy conditions under which an entire article could have been reproduced. He was precise in the language of his exploration and conclusion:

Yet Angers’ painstaking exploration of the applicability of fair dealing was quickly lost. The following year, in The Canadian Law of Copyright (1st ed.) by Harold Fox, the case is reduced to citations for isolated pronouncements such as, “Obviously quotation of a work in its entirety is not fair dealing.”

Fox’s language is disappointing; he expanded the object under consideration, arguably a literary article of a political bent, to the general terminology of “work.” Which entails all literary, dramatic, artistic and musical expressions. Moreover, his lack of precision as to the setting undermined the potential for fair dealing in categories other than literary criticism. In the years that followed, Zamacois v. Douville became synonymous with the general statement that fair dealing could not apply if the entirety of a work was reproduced.

The fullest extent of misunderstanding was on display in 1997 when, during an appeal concerning fair dealing with respect to imagery in an article published by the Toronto Star, the trio of judges then comprising the Ontario Court of Appeals said:

We were referred to the case of Zamacoïs v. Douville (1943)…  To the extent that this decision is considered an authority for the proposition that reproduction of an entire newspaper article or, in this case, a photograph of a magazine cover can never be considered a fair dealing with the article (or magazine cover) for purposes of news summary or reporting, we respectfully disagree.

Interpretation had moved from stretching the truth to jettisoning it entirely. There is no logical basis to equate a literary essay to a newspaper summary. That alone should have curtailed any blanket statements of what Zamacois v. Douville did or did not represent. Nor is a newspaper summary equal to an image. That a picture is worth a thousand words can only ever be an idiom, not a statement of fact. The only direct influence Angers’ work could have exerted on the Toronto Star appeal was the method of evaluation—a contextual analysis. (Which, fortunately, the Ontario Court of Appeals engaged in, but without citation to Angers.)

Reviewing the Toronto Star’s successful appeal, David Allesbrook wrote: “The ‘fair dealing’ exception will now achieve more prominence. The courts will be asked to consider the circumstances of the copying more forgivingly than they have in the past. It will be interesting to see how forgiving they will turn out to be.”

The irony is that, in 1943, Angers had done precisely that. By consideration of circumstances, he found merit in the good faith approach of Douville and Marchand, and refused to issue any injunction with respect to future operations of Le Bien Public. Angers also noted that there had been no particular financial gains through the unauthorized reproduction and so reserved any decision regarding costs to be awarded: “The plaintiff has proven neither loss of profits nor damages and I doubt if he might succeed in proving either.” And, with an appreciation for posterity, Angers refused to order the surrender of remaining copies of the reprinted essay, as the only remaining copies of that issue of Le Bien Public were intended for the paper’s archive.

Imagery has as much claim to fair dealing as any other type of work. In a world where information increasingly relies on, and circulates in, visual elements, imagery plays an important part in social, historical, scientific, economic and artistic endeavors. To limit students’ capacity to work with imagery limits the development of their understanding and expertise, thereby limiting the very goal of the system of copyright itself—to advance intellectual activity.

Nearly twenty years ago, Ian Kerr was a rising star in the law and technology field at the University of Western Ontario. He had already published on the role of computers as intelligent agents in the nascent world of electronic commerce and was crafting new courses examining the legal and ethical challenges posed by machines and the law. In the fall of 1999 – about a year after I had arrived at Ottawa – he agreed to a visit to consider coming to help build a leading program focused on law and tech. I spent the day trying to convince Ian to come, offering tours of the law school, the city’s foodie hot spots, and a dinner at my house. My closing argument was that no matter his decision, this was going to happen since Ottawa was ideally situated to lead on tech law and policy and that there was no better place for him, personally or professionally.

I’m heartened that Ian told me during my last visit with him at the Ottawa Hospital that the decision was one of the best he ever made. But I was wrong. This wasn’t just going to happen. It happened because Ian – my colleague, friend, advisor, and professional partner – made it so.

Ian passed away last night after months of battling complications from cancer. He was a singular talent, whose impact not just on the field, but on everyone he worked with, taught, mentored, or lectured will be felt for decades to come.

He was a prescient scholar who proposed the title of Canada Research Chair in Law, Ethics, and Technology years before the ethical implications of technologies would emerge as a widespread societal issue. His work spanned so many issues – robotics and the law, artificial intelligence, privacy, surveillance, security, digital rights management, algorithms, electronic contracting, human rights, and human enhancement – that he needed to reshape the standard approach to the reporting of academic achievement in order to convey even a fraction of his prodigious output, while his four-way cross-appointment to law, medicine, information studies, and philosophy reflected a commitment to the study of law and ethics beyond the law school.

He was an extraordinary teacher, who won awards everywhere he went, leaving his students with indelible memories of opening music to set the tone, visually remarkable slides and multimedia materials that challenged students to think in new ways, and an engaging lecture approach that endeavoured to bring out the best in everyone. That teaching extended to the entire globe: teaching the world’s data protection and privacy commissioners on the privacy and technology at their annual conference in Morocco in 2016, delivering keynote addresses in countries around the world from Iceland to Singapore, and serving as a visiting professor at institutions such as New York University, Tel Aviv University, the University of Haifa, Pompeu Fabra University in Spain, and Tilburg University in the Netherlands.

He was a great builder, who brought vision and passion to creating new models for teaching, research, and student exchange. It was Ian that led to the creation of our LL.M. in Law and Technology that counts hundreds of students as past alumni. It was Ian that developed the much-beloved Techno-Rico course with the University of Puerto Rico that serves as model for many other courses including mine with the University of Haifa. It was Ian that led the quintessential multi-disciplinary large scale research project with ID Trail, a multi-million dollar initiative that launched many new careers, publications, and provided the roadmap for inclusive, forward-looking, team-based research projects. And it was Ian that worked with successive deans – Bruce, Nathalie, and Adam – on hiring, programming, and a myriad of other issues.

He was a dynamic leader, the heart and soul of the technology law program that blossomed years after we envisioned it around the kitchen table. For the amazing group of professors, program directors, research managers, and supporters, there were no limits to Ian’s generosity and his advice, enthusiasm, and support represented the not-so-secret sauce behind our success.

He was an exceptional advocate, changing the law through his scholarship and tireless efforts. Whether quoted by the Supreme Court of Canada, on the floor of the House of Commons, or in government reports, Ian not only identified the legal challenges associated with law and technology, he influenced the solutions. His work on supporting a global ban on Lethal Autonomous Weapons brought him to the United Nations for an address to member states and succeeded in convincing some of the world’s greatest computer scientists to join him at the policy table.

He was a pioneer, joining forces in 2012 with Michael Froomkin, Ryan Calo, and Markus Wagner to launch the first We Robot conference. That event has since become the leading conference of its kind, resulting in ground-breaking scholarship and a generation of new scholars in the robotics law field. It was one of Ian’s proudest achievements that We Robot will come to Ottawa for the first time next year.

It is tempting – indeed deserving – to focus on a truly breathtaking record of academic achievement. Ian was widely recognized as a global leader and brought enormous pride to all of his colleagues. He was one of us and showed how Canadians can thrive on the world stage. Yet Ian’s towering career does not tell the most important part of the story nor explain why his loss is so difficult.

It was Ian the person, the mentor, the collaborator, the friend, that sparkles the most from this brightest of stars. He was a creative genius, equally comfortable baking challahs, reciting poetic rock lyrics, or drumming in a band as he was on the biggest academic stage. Earlier this year, he generously provided me with his Canada Research Chair renewal application in order to assist with my own. What stands out in those documents was his incredible love for, and commitment to, his colleagues and students. Over just the last decade, he co-authored pieces with Jena McGill, Katie Szilagyi, Katie Black, Jason Millar, Carys Craig, Jennifer Chandler, Timothy Caufield, Carissima Mathen, Noel Corriveau, Michael Froomkin, Joelle Pineau, Jennifer Barrigar, Jacqueline Burkell, Alex Cameron, Jessica Earle, and Daphne Gilbert. He co-edited works with Mitchell McInnes, Tony VanDuzer, Ryan Calo, Michael Froomkin, Valerie Steeves, Carole Lucock, and Jason Millar. It is an astonishing record of collaboration, demonstrating how Ian was most at home working with others, sharing with others, and ensuring that the spotlight was on others.

You didn’t have to write with Ian to know about his generosity, however. I have never met a colleague more willing to share his work or time. His supervisions of graduate students is legendary with members of the Kerr graduate family holding prominent posts at universities around the world. His research assistants and classroom students held a particularly special place in his heart as evidenced by watching Ian continuously pop up and down during convocation as a steady stream of students invariably saved their biggest smile for his enthusiastic, warm embrace as they crossed the stage.

Of course, Ian reserved his biggest smiles and love for his family. A number of years ago, I convinced him to join my fantasy football league. He said yes, not because he was big football fan, but rather because he saw it as a great opportunity to play with his father, who was back home in Calgary. The Steel Kerrtains never managed to snag a title, but Ian had an entirely different goal in mind.

When I last saw Ian in the ICU ward, the talk quickly turned to Erin and Ruby. He pointed to their pictures on the hospital wall, noting that his family was his most important success story as his love for them – and them him – meant everything. They gave him the strength to fight his terrible disease and family life provided the fulfillment and happiness that he wished for everyone.

Last month, about two weeks after Ian was back in the hospital, I ran into our colleague Vanessa Gruben in the law school foyer. Vanessa told me that Ian had been moved to ICU hours before and that the situation was not good. I walked up to my office numbed by the news and as I opened the hallway door that leads to my office, I looked down the hall as I always do. It was then that I realized that for the past twenty years, the first thing I have done when I enter the hallway is look to see if the door to Ian’s office – just two down from mine – was cracked open with some light shining through. I’m not totally sure why. Sometimes I would pop in to say hi, sometimes not. But there was something reassuring knowing that my friend and partner was there. I don’t think I’ll ever stop looking for that light.

The post In Memoriam: My Dear Friend and Colleague Ian Kerr appeared first on Michael Geist.

Over the past few weeks, both the National Post and Reuters have reported that the Liberals plan to include lower Internet and wireless costs as part of the fall election campaign. The reports indicate that reforms could include price caps or a firm commitment to facilitating the entry of new competitors in the form of mobile virtual network operators (MVNOs). I’ve posted regularly on Canada’s high wireless prices and efforts to address the issue (here, here, here, here, and here), which remain uncompetitive relative to many other countries (some of the reasons why are discussed in this LawBytes podcast episode with Antonios Drossos of Rewheel Research).

While turning Internet and wireless pricing into a campaign issue is welcome news, the Liberals will need to reconcile their support for lower prices with the seeming shift in support toward new Internet and wireless taxes. The CRTC jumped on the Internet tax bandwagon last year and Canadian Heritage Minister Pablo Rodriguez has signalled his support for increased support for Cancon production from the Internet sector earlier in late June, opening the door to cultural groups calling for a wide range of new fees and taxes.

Their proposal views the Internet and Canadian consumers as little more than an ATM ripe for  withdrawals. For example, the plan envisions mandated fees or taxes on all Internet and wireless providers, online video providers, smartphones, and other devices. Moreover, it seeks the shift in hundreds of millions of dollars in spectrum licensing away from general revenues to support Cancon production as “financial compensation” for technological change. In fact, it even calls for new mandated compensation for user generated content posted online.

To be clear, this is not about the imposition of sales taxes on online services, nor about broader income tax reforms that might be applied to global companies, notably from the tech sector. There is an inevitability to both issues which will come to fruition once global standards emerge. Rather, cultural groups are lobbying for cross-subsidization of an already successful creative market, which directly implicates the affordability and costs of Internet services and devices. That leaves the question of whether political parties that commit to addressing the longstanding consumer concerns with high wireless and Internet prices will be consistent in their approach by also rejecting unnecessary and costly new taxes and fees on Internet services.

The post The Cultural Lobby Demands for Internet Taxes and Fees: The Forgotten Piece in Canada’s Lower Wireless and Internet Cost Puzzle appeared first on Michael Geist.

Telecom and broadcast policy figured prominently in season one of the Law Bytes podcast. With Canada currently studying potential reforms and cultural issues emerging as a possible electoral issue, there are no shortage of issues worth of discussion. Given its role as a telecom and broadcast regulator, the CRTC was the subject of several episodes: Monica Auer of FRPC talked about her extensive access to information work on the CRTC, while former CRTC Commissioner Peter Menzies joined the podcast to help sort through Cancon funding, Internet regulation, and the role of the Commission.

Telecom episodes included a conversation with TekSavvy’s Andy Kaplan-Myrth on efforts to improve the competitiveness of the Canadian telecom sector alongside a very popular episode with Antonios Drossos of Rewheel Research, who discussed why Canadian wireless prices remain high relative to many other developed economies. Broadcast and cultural issues were addressed in the Menzies episode as well as part of a terrific discussion with Ryerson’s Irene Berkowitz on Canada’s YouTube creative sector.

Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

The post The Law Bytes Podcast, Season One in Review: The Telecom and Broadcast Policy Episodes appeared first on Michael Geist.

Copyright law and policy was an important part of season one of the Law Bytes podcast with several episodes devoted to Canadian reforms as well as international developments. The Canadian copyright review figured prominently: Episode 4 featured clips from my appearance before the Standing Committee on Industry, Science and Technology including exchanges with MPs, a later episode contained my lecture on what the Canadian experience teaches about the future of copyright reform, and Carys Craig came on the podcast to discuss the Industry committee copyright review report.

The podcast also featured episodes on broader copyright policy and international developments.  Australian law professor Rebecca Giblin highlighted her research on taking authors’ rights seriously, Myra Tawfik explored the implications of the USMCA on copyright policy, Jamie Love talked about the proposed WIPO Broadcasting Treaty, Daphne Keller helped navigate intermediary liability policy, James Plotkin explained the implications of copyright threats, notices, lawsuits in Canada, and Rick Shera discussed the WIPO BRIP database and the risks of false IP claims.

Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

The post The Law Bytes Podcast, Season One in Review: The Copyright Episodes appeared first on Michael Geist.

Season one of the Law Bytes podcast is in the books with 22 full episodes that covered a wide range of digital policy issues (plus one preview episode). New episodes will resume in the fall, but in the meantime I’ll be revisiting some of the major themes from the first season. Privacy and security issues was a prominent part of the discussion starting with the very first full episode featuring a conversation with UK Information Commissioner Elizabeth Denham. Commissioner Denham reflected on her years in Canada, particularly the Canadian Facebook investigation, concerns with the Google Buzz service, and the need for Canadian legislative reform in order to address today’s privacy challenges.

Canadian privacy shortcomings and potential reform were the subject of several other episodes: Liberal MP Nathaniel Erskine-Smith discussed the International Grand Committee testimony that took place in late May, University of Ottawa law professor Teresa Scassa assessed the government’s digital charter that proposes significant reforms to PIPEDA, and privacy expert David Fraser examined hot button issues such as cross-border data transfers and the right to de-index.

There was also an episode on open banking that used audio from my appearance before the Standing Senate Committee on Banking, Trade and Commerce that focused on privacy and data protection. Security issues were the topic in one of the first season’s most popular episodes with Christopher Parsons joining the podcast to unpack the security, political and policy issues associated with Huawei.

Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

The post The Law Bytes Podcast, Season One in Review: The Privacy and Security Episodes appeared first on Michael Geist.

Four years ago, then-prime minister Stephen Harper used the first week of the 2015 federal election campaign to pledge that if re-elected his government would not institute a Netflix tax. My Globe and Mail op-ed notes that the Liberals responded with a no Netflix tax promise of their own, which became government policy when Justin Trudeau was elected a few months later. Yet as Canada heads toward another election this fall, Canadian Heritage Minister Pablo Rodriguez and his party seem ready to place the spotlight on Netflix taxes once again. Only this time, the government will call out opposition parties that do not commit to new Internet taxes.

The Netflix tax debate has emerged as confusing policy issue in part because the same term can be applied to several forms of taxation. Some are not particularly controversial. For example, applying sales taxes to digital services such as Netflix is widely viewed as inevitable since it would level the playing field with similar domestic services such as Crave that already collect and remit sales taxes. Moreover, service providers don’t pay the sales taxes, consumers do. Service providers simply collect from consumers and remit them to the government.

The Netflix tax that Mr. Rodriguez appears to have in mind would involve mandated payments by digital services in support of Canadian content production. The Liberal government initially rejected the idea as part of its digital cultural strategy, emphasizing enhanced “discoverability” of Canadian content on Internet platforms and voluntary agreements to invest in Canada, headlined by the $500 million commitment over five years from Netflix for production in Canada that was announced in 2017.

When those measures failed to stem calls from the cultural sector for more aggressive policies, however, the government convened the Broadcasting and Telecommunications Legislative Review panel to recommend reforms to Canada’s communications laws. The panel report is not due until January 2020, but that did not stop Mr. Rodriguez from stating in late June that “everyone has to contribute to our culture. That’s why we’ll require web giants to create Canadian content and promote it on their platforms.” In fact, recent reports indicate that his department has already convened seven working groups charged with identifying regulatory reforms for the Internet.

The shift toward mandated Canadian content comes despite industry data confirming record setting financing in Canadian film and television production. The total value of the Canadian film and television production sector nearly reached $9 billion last year, an all-time record with overall production increasing by 5.9 per cent. Notably, the increased funding came primarily from distributors and foreign financing, not broadcasters.

The data may not support new Netflix taxes, but the government appears to believe that the increased fees for digital services will make for good politics this fall.

Yet cultural groups are unlikely to be satisfied with extending the 5 per cent contribution requirements for broadcast distributors such as cable companies to the online video services. In fact, some groups have visions of a 30 per cent contribution requirement, likening online video services to established broadcasters who enjoy a myriad of regulatory advantages not found online (these include must-carry requirements, copyright retransmission rules, and simultaneous substitution benefits). Others want the principle extended to Internet service providers and wireless carriers, risking increased consumer costs for basic communications services.

Mandated contributions could also spark a trade battle with the United States. While the new Canada-U.S.-Mexico Trade Agreement features a cultural exception, it also permits the U.S. to retaliate with measures of “equivalent commercial effect.” In practice, that could mean new levies or fees in the hundreds of millions of dollars against Canadian companies seeking to access the U.S. market.

The Liberal shift toward new Internet or Netflix taxes also marks an abandonment of the government’s emphasis on public consultation and expert policy development. By circumventing the broadcast review panel and effectively ignoring the results of a public consultation before the results are even in, the government seems ready to place a big bet on another Netflix tax election, only this one features promises of increased Internet costs and new consumer fees.

The post It’s Back: The Netflix Tax Debate Returns for the 2019 Election appeared first on Michael Geist.

The last episode of Season One of the Lawbytes podcast (new episodes will resume in September) returns to WIPO, the World Intellectual Property Organization and its proposed BRIP database. The BRIP database, which stands for Building Respect for Intellectual Property, will be a database of allegedly infringing websites. While some of the details remain sketchy, the basics are that BRIP will be a database of allegedly infringing websites that could be used by advertisers to stop advertising on those sites, payment providers to stop service, or even site blocking initiatives to mandate ISP blocking. Yet the BRIP database currently envisions the possibility of lobby groups such as the movie and music associations inserting sites in the database with no oversight, no review, and not even any transparent standards.

That approach caught the attention of Rick Shera, a lawyer in New Zealand with Lowndes Jordan and one of that country’s leading IP and Internet law experts. Rick posted a Twitter stream on the risks associated with false IP accusations, speaking from the experience of one of his clients. He joins me on the podcast this week to discuss the experience of MEGA and the risks of false IP claims.

While the technical connection between Canada and New Zealand wasn’t great leading to some patchy sound during the conversation, his story is an important one. 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.

Credits:

WIPO, WIPO’s Knowledge Network in 90 Seconds
Kodi Customs, MEGA.NZ 50gb Free Cloud Storage

The post The LawBytes Podcast, Episode 23: The WIPO BRIP Database – Rick Shera on the MEGA Experience and the Dangers of False IP Claims appeared first on Michael Geist.

Ten years have passed now since Fair Duty came into existence. In July 2009, having recently completed my doctorate, the title to my dissertation served as inspiration for the name of my blog. (Had I known then that this venture in writing would continue beyond a decade, I might have named it something else.) My dissertation had involved examining university policies with respect to application of fair dealing in the hands of graduate students, doctoral candidates in particular. That project had been prompted by my own earlier experiences.

Just prior to the unveiling of CCH Canadian v. Law Society of Upper Canada —a unanimous decision by the Supreme Court of Canada, affirming fair dealing in the realm of research—I was at the post-defense, deposit-the-thesis, stage of my MA and thus jumping through the requisite copyright-hoops. After reading CCH, and looking forward with the naiveté of a doctoral student, I assumed the end of institutional limitations on students-and-fair dealing was nigh. Yet during my data gathering of 2007, 2008 (and confirmed again in 2009), it was evident that policies concerning use of copyright-protected material by graduate students still reflected a pre-CCH attitude.

Any disappointment with my own community was mitigated by the one inescapable challenge that faced institutions and students alike: meeting the copyright stipulations of Library and Archives Canada (LAC). Before digital distribution became the norm, that venerable institution offered greater exposure and enjoyment of graduate students’ works, through the medium of microform. At that time, the condition for inclusion with LAC was to abide by stringent rules with respect to use of third-party work in theses and dissertations. Even in 2009, CCH’s promise was not enough to overcome fair dealing’s ill-fated twentieth century history. (More on that another day.)

(Fortunately, LAC’s conditions now reflect an awareness that fair dealing is relevant to graduate students’ work; although LAC does so without actually using the words “fair dealing.”)

Ten years ago, I came to the conclusion that, whether driven by caution or misunderstanding, or both, Canadian institutions regarded fair dealing as lawful in the hands of a student, up to the point of depositing a thesis or dissertation in the institution’s library. But thereafter, with the added exposure through LAC and potential for further distribution, institutions appeared to believe that fair dealing no longer applied.

Today, despite favorable (almost coaxing) judicial and statutory developments of fair dealing, perhaps because deposit now means in a publicly available institutional repository, I wonder if caution might still be narrowing institutional positions on fair dealing, when exercised towards the creation of a thesis or dissertation by graduate students.

If apprehension still exists, David Vaver beckons. He has spoken to these issues for over 20 years. Apart from numerous journal articles, he has also written three books: Intellectual Property Law: Copyright, Patents, Trade-marks, (1997), Copyright Law (2000), and Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011).

Before even touching fair dealing, Vaver would remind us all to begin from first principles—what is copyright?

Section 3.1 of the Copyright Act states: “For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever … .”

If a reproduction is insubstantial then copyright does not arise. And if one needs more than the inherent logic of that conclusion, in CCH the Supreme Court of Canada indicated, that where “the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement (para. 56).”

Beginning then from the question of substantiality, and drawing from all three of Vaver’s books:

One should first screen out what cannot in law be a substantial part. ‘Part’ means ‘portion’ not ‘particle.’ A copyright owner cannot therefore control every particle of her work, any little piece the taking of which cannot affect the value of her work as a whole. Copying ten such particles is as inoffensive as copying one.

The lesson here is to curtail any temptation to measure the aggregate of uses from a single third-party source.

Vaver, of course, acknowledges that quantity alone does not determine substantiality; quality is a consideration. As he wrote in various ways, is the taking of something distinctive from a third-party work? Is it something into which the author expended “skill, effort or ingenuity.” Is it the heart of the work? In the context of academic research, it may be that the answer is “Yes.” When developing one’s own ideas, we are looking for portions of other works that exemplify either their merits or shortcomings. This is how we form the basis of our own analyses and from there derive new conclusions.

And that is precisely why we have fair dealing. To encourage research (and other activities beneficial to the public interest) that relies on reproduction of substantial parts of other works.

In Copyright Law (2000), and again in his 2011 publication, Vaver specifically addressed the nexus of research, fair dealing, and graduate students’ works:

A doctoral thesis is clearly written for research purposes, even though copies are routinely deposited in the National Library and other public libraries and the thesis is destined for publication. Research is part of process that routinely involves dissemination of results and supporting evidence to facilitate further research, including open review, criticism and verification (emphasis mine).

It is worth remembering that Copyright Law lay at the heart of CCH. And Vaver’s 2011 book was also cited in SOCAN v. Bell (2012), another, unanimous, Supreme Court decision relevant to fair dealing in research.

More precisely, in SOCAN, the Supreme Court gave a resounding “Yes” to the question of whether music previews constituted fair dealing in the hands of consumers. That affirmation came by affording consumer-activity recourse to the word “research.” Readers may recall that the Court was asked to weigh in on the very nature of what “research” is:

 SOCAN offers the definition of “research” as being “the systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions.” Moreover, SOCAN argues, the goal of the “research” must be for the purpose of making creative works, since only uses that contribute to the creative process are in the public interest (para. 20.)

The Supreme Court disagreed with SOCAN’s definition:

Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework (para. 22.)

Good news as this was, it is worth noting that SOCAN’s desired (narrower) definition of research, “systematic investigation … study of materials… to establish facts and reach new conclusions,” very neatly encapsulates what graduate students do. Furthermore, through writing theses and dissertations, those same students are making creative works, and thus still meet SOCAN’s view that serving the public interest only occurs through creation of literary, dramatic, artistic and musical works. If one takes SOCAN’s opinion as representative of the preferred stance of copyright-owners, it is reassuring to see that graduate student work would have no difficulty in qualifying as “research” under those expectations.

But of course, settling the purpose of the use is only the first step of determining fair dealing.

In terms of the fairness analysis, SOCAN was not a particularly taxing occasion for the Court. With recourse to CCH and the earlier Copyright Board decision on this matter, the remainder of the analysis was dispatched with great efficiency (paras. 37-49). One element carries neatly into the topic at hand; it arose under the exploration of whether there are alternatives to consumers using previews when choosing music for purchase. The Court reminded us that: “A dealing may be less fair if there is a non-copyrighted equivalent of the work that could have been used, or if the dealing was not reasonably necessary to achieve the ultimate purpose (emphasis mine, para. 44).”

SOCAN had “argued that there were other methods available, like advertising, to help users identify potential music for purchase. Many of the service providers, for example, offered album artwork, textual descriptions, and user-generated album reviews (para. 45).” But the Court declined to accept that argument, concurring instead with the Copyright Board’s earlier assessment that “[l]istening to a preview probably is the most practical, most economical and safest way for users to ensure that they purchase what they wish (para. 46).”

This is the crux of the matter from where to consider whether inclusion of a work, or a portion thereof, is fair dealing. Herein is why a dealing will be “reasonably necessary.” Because the inclusion must be in aid of the purpose of the user. In this context, a research question must have been addressed. Therefore, inclusion of third-party work, must support the process of exploration necessary to meet this goal.

Crafting the work that conveys this scholarly journey, making those decisions about inclusion of other works, these are functions that invariably flow from engagement between student and supervisor; and later, with the examining committee. These senior members of the field will be looking for students’ own voices—their own expression of their own ideas—buttressed by other voices, but only as needed to confirm the student’s mastery or skill with the subject. An excessive quotation will be called out, as will gratuitous illustrations. The legitimacy of what was used and how much was used, depend on the subject and the particular method of exploration, and the guidance of experts in the field.

It is not the purview of copyright practitioners to assess the use of those other works; those decisions are the responsibility of qualified members within each discipline, under whose aegis the work is offered. Lest that should alarm the professoriate, their responsibility is discharged simply by remaining true to the principles of the vocation they have chosen.

By virtue of successful completion of a graduate degree, the most vital element of the fairness analysis—as to why specific uses of third-party works are necessary—will have been successfully navigated.

The Canadian government has launched a public consultation on expanding the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP, formerly TPP) to other countries, specifically citing the UK, Taiwan, South Korea, and Thailand. The consultation could raise significant concerns as the UK would be the first non-Pacific country in the agreement and Taiwan could spark a response from China. Moreover, opening the agreement to new countries must likely factor in the possibility that the U.S. might want to re-enter the agreement if there is a change in administration in 2020.

The government is seeking feedback on market access opportunities, but expanding the agreement will raise questions about increased access to the Canadian market for those new countries. Further, should the U.S. indicate an interest in returning, a big question will be whether it would want the intellectual property provisions that were suspended when it left the agreement re-started. These include copyright term extension requirements, protection for biologics, and digital lock rules. Some of these provisions were included in the USMCA, but the opposition to them among many TPP countries became obvious with the agreement to suspend them in the effort to conclude the agreement. The consultation is open until August 25, 2019.

The post Canadian Government Consults on Expanding Pacific Trade Treaty to UK, Taiwan, South Korea, and Thailand appeared first on Michael Geist.

The question of what responsibility should lie with Internet platforms for the content they host that is posted by their users has been the subject of debate around in the world as politicians, regulators, and the broader public seek to navigate policy choices to combat harmful speech that have implications for freedom of expression, online harms, competition, and innovation. To help sort through the policy options, Daphne Keller, the Director of Intermediary Liability at Stanford’s Center for Internet and Society, joins the podcast this week. She recently posted an excellent article on the Balkinization blog that provided a helpful guide to intermediary liability law making and agreed to chat about how policy makers can adjust the dials on new rules to best reflect national goals.

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:

Keller, Build Your Own Intermediary Liability Law: A Kit for Policy Wonks of All Ages

Credits:

Standing Committee on Industry, Science and Technology, May 28, 2019

Transcript:

LawBytes Podcast – Episode 22 transcript powered by Sonix—the best audio to text transcription service

LawBytes Podcast – Episode 22 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.

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

Dan Albas:
Minister, number nine of your guidelines: free from hate and vile extremism. One, the prime minister has been obviously talking a lot, refers to protecting Canadians from hate, violent extremism as well as disinformation. Now, I believe no one here defends hate speech and all Canadians deserve to feel safe in their communities and online. My question is, how will you enforce this measure? How will you monitor these platforms while also protecting free speech?

Navdeep Bains:
So free speech is absolutely essential. It’s part of our charter rights and freedom. This is why I became a liberal. And this is really core to our democracy and what it means to be Canadian. But at the same time, there’s clear limitations to that when it comes to hate, for example. And we see newspapers and broadcasters that hold themselves to account when it comes to not spewing that kind of hate on their platforms. So clearly, these digital platforms that have emerged also have a responsibility. We all are very aware of the 51 individuals that were killed in New Zealand, in Christchurch. And that really prompted this call to action where the prime minister was at Paris to say platforms need to step up. If they had the technology, if they had the ability to bring people together, to connect people and then investing in A.I. and all these different technologies, they need to deploy those technologies to prevent those platforms from being used as means to disseminate extremism, terrorism or hate. And so that’s what we’re trying to do with the government as a government is really apply pressure to these platforms to hold them to account. And those platforms recognize they need to step up as well. And that’s one key mechanism of how we want to deal with this.

Michael Geist:
The debates over intermediary liability, which focus on what responsibility should lie with Internet platforms and service providers for the content they host that’s posted by their users has been taking place around the world in Parliament’s op ed pages and the broader public debate. Much like the exchange you just heard between Canadian Conservative MP Dan Albas and Innovation, Science and Economic Development Minister Navdeep Bains from earlier this spring, there are no easy answers with policy choices that have implications for freedom of expression, online harms, competition and innovation. To help sort through the policy options and their implications, I’m joined on the podcast this week by Daphne Keller, the director of Intermediary Liability at Stanford Center for Internet and Society. Daphne, who served as associate general counsel for Google until 2015, worked on groundbreaking intermediary liability litigation and legislation around the world while at the company, and her work at Stanford focuses on platform regulation and Internet users rights. She recently posted an excellent article on the Balkanization blog that provided a helpful guide to intermediary liability lawmaking and agreed to chat about how policymakers can adjust the dials on new rules to best reflect national goals.

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

Daphne Keller:
Thank you. It’s good to be here.

Michael Geist:
Great. So as you know, there’s been a lot of momentum lately towards regulating online speech and establishing more liability for the large Internet platforms. That’s an issue that we’ve been grappling with, really, I think, since the popularization of the Internet. Back in the 1990s. But today there seems to be more and more countries expressing concern about online harms and looking especially to the large platforms the Google and Facebook and others to do more with real legal and regulatory threats if they don’t. So before we get into some of the challenges inherent with this kind of do something demands. I thought we could set the groundwork a little bit from a couple of perspectives, both with the law says now and with the platforms have been doing. Why don’t we start with the laws and recognizing their differences, of course, between lots of different countries. Where have we been for the last number of years anyway, even going back a couple of decades with respect to some of these liability questions?

Daphne Keller:
Well, a lot of countries never enacted Internet specific content liability laws. So depending where you are in the world, it might be that these things get resolved just based on existing defamation laws or existing copyright law. But in the U.S. and the European Union, the law has been relatively stable going back two decades-ish. In the US, we’ve had two very major statutes that occupy almost the whole field. We have the DMCA Digital Millennium Copyright Act for copyright, and that sets out a sort of detailed takedown process with a lot of prescriptive steps. And then the other major U.S. law is Communications Decency Act 230, generally known as CDA 230, which is a very broad immunity for most other kinds of claims for anything that’s not intellectual property or a federal crime. So things like defamation or invasion of privacy claims, the platforms are just immunized. In Europe – is it useful if I go into some detail about Europe or is that wandering off topic for you?

Michael Geist:
I think it’s really useful because from a Canadian perspective in particular, we’ve on the one hand got now the USMCA, That seems to put some of the U.S. rules in place in Canada, at least at a high level, via trade. But at the same time, I don’t think there’s any question but that what’s been taking place in Europe is influencing a lot of the thinking amongst some Canadian politicians.

Daphne Keller:
Yeah, okay. So the main law on platform liability at the EU level is the e-commerce directive, which was passed in 2000 and it’s implemented in different member state laws slightly differently. But the basic concept is you get limited immunity if you are a certain kind of intermediary. So you have to be hosting or caching or transit provider. So it’s a little bit of a funny immunity in that it’s not clear if it covers search engines or some other things you might expect to be covered by intermediary liability protections. But if you’re eligible for those safe harbors, the rule is basically you have to take down unlawful content if you know about it. However, the member states and the courts implement the law. They can’t compel you to go out and proactively monitor. It’s just a reactive, knowledge based obligation. And that I think has had some some real shortcomings just because it lacks a lot of the procedural protections that you see in something like the DMCA, where, for example, the person who’s being accused of copyright infringement is supposed to be able to get a notice that it’s happened and be able to challenge it and so forth. There isn’t that kind of detail in most European laws. And so platforms have an even greater incentive to just take an accuser’s word for it and go ahead and take content down, even if it’s not at all clear that it’s illegal because it’s much safer to take things down and avoid risk for yourself. And you know what empirical data we have shows this happening shows lots and lots of unfounded allegations and lots and lots of erroneous takedowns.

Michael Geist:
Right. I mean, I think the situation sometimes can be somewhat similar in Canada, where without some of the clear cut procedural safeguards faced with the question of what might be unlawful content or might not be, sometimes large platforms may err on the side of taking down just because it’s simpler to do that. So we’ve got large platforms having some amount of protections, safe harbors in both the major jurisdictions, stronger procedural protections such that perhaps, I suppose the bias is more to leave up in the United States unless the process is met, whereas in Europe that may reverse. How how do the companies handle some of those kinds of differences? Is it as simple as in the US they’re more likely to err to leave content online and in Europe and perhaps similar countries without those procedural protections they’re more likely to take things down.

Daphne Keller:
Certainly, I mean that if if we’re talking about the big platforms like the Facebook and Googles and Twitters of the world, they all have nationally specific versions that are targeted to users in a particular jurisdiction and often are optimized for them in ways that are about commercial success. There will be a Google Doodle that’s relevant for a local holiday that’s shown just in that country, for example, but also by having different versions of the service for different countries, you can sort of sandbox legal compliance and say, OK, we’ve established that this content is illegal in France, so we’re going to take it down from the French version of the service, but we’re not going to apply French law globally.

Michael Geist:
Right. So that, of course, gets us into the question of things like the Equustek case that we had in Canada, where you get a single country like Canada trying to make those decisions not just for its own citizens, but effectively for others by a court order. But we’ll park that for the moment and stick to it, because if this stuff gets so complicated so quickly and I guess stick, stick primarily to the the pressure for more regulation, the sense that somehow the rules, as you’ve just articulated, are at least in the minds of certainly some politicians, and we certainly see it as part of the discourse not good enough. That erring even on one side or the other still has left us, in a sense with a certain amount of harm online. And I think there’s a greater concern and appreciation for that. So there is unquestionably mounting pressure to do more from a regulatory perspective as a way of requiring, in effect, these large platforms to do more. Now, you’ve been really prolific on the issue and written all different kinds of things on it, but it was a piece on the blog Balkanization that really crystallized it for me because it highlights the challenges of intermediary liability laws. I guess as a starting point, what are we often trying to balance when it comes to these laws?

Daphne Keller:
So there are generally three goals that legislatures are trying to balance. One is to prevent harm. So to take down content if it’s defaming someone or if it’s a movie piracy or, you know, causing harm. Another is to protect free expression. And obviously, there’s this tradeoff where the platforms are very afraid of liability. They’re likely to err on the side of taking things down and so controversial speech gets suppressed and so forth. And then the third goal is protecting technical innovation and economic growth that can come with it. So, you know, if you are a small startup, it’s really important to have immunities and, you know, know that you’re not going to be required, for example, to build a 100 million dollar content filter, because right now, at least in the US and in Europe, if you start a new platform and you want to compete with Facebook or compete with Twitter, you can know with relative certainty what kind of legal exposure you’re setting yourself up for and what it is you’re going to have to take down and potentially pay lawyers for. But but if that becomes less certain, then it’s harder and harder for small companies to enter the market and for people to experiment with new technologies. So just to recap, the three goals being balanced are harm prevention, free expression protection, and innovation.

Michael Geist:
Sure. And I guess before we get into sort of how how you move some of those dials with those three three goals, I’m going to assume that many countries will look at each of those three policy objectives somewhat differently. Some may have constitutional norms that provide very strong protections on the freedom of expression side and are more willing to give, let’s say, on the innovation side.

Daphne Keller:
Yeah, absolutely. And that kind of manifests in two ways. One is that some countries prohibit more speech than others. So, you know, they strike a balance. For example, that protects privacy more and sacrifices free expression and exchange or vice versa. But also that manifests in how countries set up their platform liability rules, you know, whatever it is that you are prohibiting. Your platform liability rules are going to need platforms to err in one side or the other. And so if you are starting from less speech protective goals, then maybe you’re more tolerant of a rule that’s going to lead platforms to take down a little bit too much speech or a lot too much speech.

Michael Geist:
Right. And certainly we’ve seen, at least in some places, perhaps with or without some of the constitutional norms around freedom of expression, there’s been certainly, at least lately, a great deal of emphasis on the harm side.

Daphne Keller:
Absolutely.

Michael Geist:
And if that’s the priority, then, you know, if if we’re if we’re kind of trying to deal with each of these three things, there may be real implications, I think is what you’re getting at. Ultimately, you either for fostering innovative competitors in this space or for the safeguards around freedom of expression.

Daphne Keller:
Yeah. And I think right now we’re seeing a big tendency for policies from Europe to get exported to the rest of the world, either via other countries adopting similar laws or via platforms taking European law and just applying it globally. But that’s kind of problematic, not just because of the conflict with United States law, which is what you hear about the most, but because of the conflict with a lot of other countries’ laws. If you compare in human rights law, the European Convention or the EU charter, they prioritize some things like privacy and personality rights protection relatively high compared to the Inter-American convention, which explicitly is set up to prioritize free expression more highly.

Michael Geist:
Right. And we we ran into some of those questions in Canada last year around Web site blocking related issues where again, it was free of expression versus copyright versus privacy versus even net neutrality type issues. And you’ve got to grapple with each of those kinds of competing objectives. Why don’t we stay for a moment with the implications for freedom of expression around this? Because they’re at least as part of the discourse lately, there’s been a tendency to amongst some certainly to sideline that, to sort of say, well, listen. Of course, it may have some implications, but we’re now focused more on the harm. As we start getting into intermediary liability type rules, what ultimately are some of the real implications for the negative of potential negative effects, I suppose, for freedom of expression?

Daphne Keller:
Well, I mean, already we see things like governments abusing copyright takedown systems to suppress criticism. The Government of Ecuador got caught using DMCA requests to try to take down police brutality videos and critical journalism. So, you know, even with the systems that we have now, there’s a lot of opportunity for abuse. Sometimes it silences really important political speech. Other times, the abusive takedown requests are like one commercial competitor trying to silence another, which is also a problem. But then there’s just that there’s there’s a lot of room for important speech to disappear.

Daphne Keller:
The maybe most politically consequential shift that I see right now is the tremendous emphasis in Europe and in some other regions on terrorist content, because I think as platforms err on the side of taking down too much to be safe, the thing that’s kind of adjacent to so-called terrorist content is likely to be political speech about tough issues, you know, about American military policy in the Middle East or about immigration policy in Europe. And so that sort of erring on the side of taking down too much when what you’re looking for is potentially violent extremist supporting speech, threatens some really important stuff.

Michael Geist:
That’s interesting. I mean, in Canada, we’ve largely avoided the takedown rules and copyright that you referenced. Successive governments have in a sense, I think looked at the experience elsewhere and seen some of these kinds of implications, such as the Ecuadorian example that you just provided and largely avoided adopting that, though many of those platforms that, of course, were very popular in Canada still use effectively take down systems. So Canadians find themselves subject to it at a certain level, even if it isn’t found within our laws. It’s striking to talk about sort of some of these decisions and the removal of content. What role, if any, do the courts play in all of this or is this just it falls to the platforms and they are the ones making these calls?

Daphne Keller:
Well, it depends where you are. There are some very interesting rulings internationally saying the courts have to be involved in in some countries. So in Argentina, the Supreme Court ruled that for for most kinds of content, a platform doesn’t have any legal obligation to take it down until a court has looked at it and given it a full and fair due process and adjudicated that it’s illegal because they didn’t want to put platforms in the decisions of being the arbiters of speech rules. There is a similar ruling from the Supreme Court of India saying you need an adequate government authority to decide what’s illegal and you shouldn’t put it in the hands of platforms. That, of course, isn’t how it has worked in the US with copyright or in Europe with that that knowledge base takedown systems that they have. And that created a sort of asymmetry in the access to remedies for the people who are affected by takedowns. If you’re somebody who is a victim of defamation or a rights holder whose copyright is being infringed and a platform doesn’t do what you want, you can sue them. And here you can take it to court and get your rights enforced. But if you’re someone who’s an online speaker and you have been wrongly silenced by a false accusation or an error, in most countries, you don’t have standing to go to court and challenge that. So there isn’t a way to correct the errors of over removal. There’s only a way using courts to correct the errors under removal.

Michael Geist:
I mean, it’s it is for those that are accustomed to seeing your due process as a core part of protecting freedom of expression, the notion that we would ultimately leave to large platforms these decisions, can be pretty frightening. And it was again, the site blocking issue in Canada, the proposal that was put forward was one that did not involve direct court oversight, which was one, one or a part where the real concerns lay. When you start vesting so much responsibility in these platforms to make these kinds of decisions. There are those that say that’s that’s appropriate in part because they are increasingly likening the platforms to publishers and saying is this sure looks a lot like a conventional publisher, shouldn’t they have the same kind of responsibility? What are some of the implications as you see it, as of treating large Internet platforms as akin to a conventional publisher?

Daphne Keller:
Well, I think it would be impossible for them to function if they were treated like publishers. Publishers do pre publication review of the editorials that they put up or the, you know, TV shows that they air. And if there is something controversial in there, they have a lawyer look at it and decide if it’s legal. You can’t layer a process like that on top of Twitter or Facebook. You know, what are they supposed to do? Hold all of our tweets while they have their legal team, evaluate them. Just. There isn’t a model where truly publisher-like legal responsibility can be put on platforms, but we still get to post things instantaneously and communicate and have a soapbox or talk to our friends, you know, all of the uses that we value that comes from having an instantaneous communication platform on the Internet, depend on those intermediaries is not having to carry with you everything we say.

Michael Geist:
I mean, that does highlight the particular challenge that I know you that you’ve seen. I see it at least one of the Internet content moderation at scale conferences. When you start getting into just the sheer amount of content that exists and what it ultimately means to put responsibility on a platform potentially to vet all of that, even to not vet it, even to try to deal with all of it is something that we haven’t really seen. I think really before in publishing or content history. It’s everybody having the opportunity in a sense to speak and using these platforms to do it. What are some of the implications if you if you move towards almost a one size fits all type approach saying that we are going to have this requirement, whether it’s vetting beforehand or even take action after given the scope and size of what’s taking place. If we treat the Facebook as akin to know other other platforms or large sites that have a lot of user generated content out there, the Wikipedia’s or Reddit’s of the world.

Daphne Keller:
Yeah. Well, I mean I do want to be clear that I’m not saying our only choices are give them complete immunity or, you know, lose the Internet. That is the point of the Balkanization piece is there are a lot of knobs and dials you can turn in the laws. You could have an accelerated TRO process to get something taken down or you could have some kinds of content where we do expect platforms to know it when they see it and take it down and others where you wait for a court, which is what the law de facto does anyway right now. You know, platforms even in the US have to take down child sex abuse material immediately if they see it. They’re not supposed to wait for a court to assess it. But the rule is very different for defamation, you know, where it’s often very difficult to know the correct legal assessment. So, you know, just with that background that I don’t think we we need an all or nothing system and I’m not saying lawmakers in the 90s got things perfect and we should never re-ask any questions. But whatever the obligations are that we put on platforms, the kinds of things we might reasonably ask Facebook or YouTube to do are very different from the kinds of things we might reasonably ask a small local blog or a two person company developing a chat app or, you know, smaller competitors to do.

Daphne Keller:
And I think lawmakers are often falling into a trap where they say we need to regulate platforms. And what they have in mind is Facebook and YouTube and they know that YouTube can do things like spend one hundred million dollars developing a copyright filter and they know that Facebook can do things like hire is at 20 or 30 thousand people at this point to do content, moderation. You know, they just sort of really move mountains and put tremendous resources into this. And so they craft laws accordingly. They say, well, platforms should have to filter, platforms should have to have very rapid human review when they’re notified that something is unlawful. And that’s tolerable for Google and Facebook. I think those laws could you are very likely to change the major platforms so that they take down a lot more lawful speech, but they’re not going to go out of business. But if you are Medium or Automatic or even Pinterest or Reddit. Reddit has 500 employees. They don’t have a multi-tens of thousands of people moderation team. And so the kinds of rules that might plausibly be imposed on very large platforms just won’t work for small platforms.

Michael Geist:
No, I think that’s a good point. And I think we’re certainly we’re law we’re sort of past the prospect of saying it’s there are no rules out there. I think you’ve highlighted it. There’s there always have been some and in some places there’s been an expectation of even more aggressive take down and moderation. But it’s clear we’re moving more and more. The question is, I think, as you’ve put it, how you adjust the dial at a certain level. One of the things that is was striking to me is how much emphasis there has been on the platform responsibility for harmful speech, let’s say, as opposed to the focus on individuals themselves. So, you know, in the aftermath of Christchurch, for example, terrible event where almost all the focus seemed to be on what Facebook did or didn’t do or YouTube did or didn’t do, as opposed to the individual who did this and other people around that that might have been doing this. Do you have thoughts on what we might do to not just focus on platform responsibility here, but individual responsibility as well for where there are people purveying hate or engaging in things that are illegal under various laws.

Daphne Keller:
Yeah, I think the focus on platforms is on the one hand understandable because they represent a choke point. You know, like they can shut down a lot of individuals in situations where it’s hard for plaintiffs and law enforcement to go find those individuals. But they’re a pretty bad choke point because they won’t stand up for the individual speakers interests outside of, you know, relatively special circumstances. But on the other hand, focusing on the platforms really risks failing to address the underlying issues. And this we’ve seen this in the EU terrorism context. There’s been tremendous energy put into making platforms take down videos that are recruitment videos or terrorist violence videos. And then when civil society organizations in Europe have asked the police, well, how many of those uploader is did you go try to find or how many of the video creators did you prosecute? How many actual investigations came out of this? There don’t seem to be a lot of a lot of efforts being put in that direction. And so, you know, it’s not that all but all enforcement should move off of platforms and onto individuals. But it certainly is the case that focusing so excessively on platforms is missing out on really important pieces of solving the problem.

Daphne Keller:
The other I mean, for many cases, there is another complication here, as you know well from from the copyright context and from other contexts where you work, which is online, speakers who are sharing illegal content are often anonymous. And so if we say the law should go after the speakers more, you know, that starts inviting lawmakers to strip away at anonymity rights or propose that platform should have to retain the real I.D. of people who post content. So, you know, there are huge policy tradeoffs in any direction there.

Michael Geist:
Yeah. It’s I think it’s really striking just how each time you peel back just a little bit on some of these policy choices, it’s not the slam dunk that you sometimes hear about as part of discussion. Just you just regulate that. You know, they broke it. They’ve got to fix it sort of thing, because there are there are those kinds of choices. I assume you don’t have much of a crystal ball and it’s tough to know where we’re necessarily going. So rather than us closing by asking what is this landscape going to look like in 12, 12 months or 24 months, I guess I’m curious, are you optimistic that as there is action, because I think it certainly feels like there’s a lot of momentum there, that that countries and politicians are going to get the complexity that that you’re highlighting here? Or are we at a point at a moment in time where there is just there’s the so-called tech-lash and strong momentum towards you got to do something that some of those implications will simply get lost in the rush to do something?

Daphne Keller:
I’m not optimistic in the US, and this is part of why I put up that Balkanization piece, because I see people proposing laws that are just ignorant of sort of the known doctrines that can be deployed in intermediary liability. You know, they say, oh, well, let’s just tell platforms to be reasonable without looking at what are platform is likely to do. If they have a vague standard, well, they’re likely to just take everything down to avoid risk. So I think we are at risk in the US of getting laws that are so badly drafted that they might just be unconstitutional. But going through the process of passing a law and then litigating to figure out if it’s unconstitutional is not a really good way to arrive at standards. In Europe, I’m in a way more optimistic. It’s it’s not that I like most of the legal proposals that have been coming out of Europe now, but that’s mostly because they represent a sort of policy tradeoff that I wouldn’t make between free expression protection and harm prevention, for example. But European civil society has been very active on intermediary liability issues for quite a while. And so you tended to see in the legal proposals coming out of the EU at least process protections, you know, at least ideas like if you’re going to use a technical filter to identify supposedly unlawful content, you should have some humans double check to make sure that filter didn’t make a mistake. Or you see legal proposals saying things like you, you should notify big users and give them an opportunity to challenge or that the latest draft of the terrorist content regulation, which is very close to becoming a law there, has some really impressive transparency provisions for government. So saying not just that platforms have to be transparent about what they’re taking down and why, but also that if governments are requesting that content be taken down, they need to tell the public what it is that they’re doing. So we are slowly moving toward kind of knowing what the what the dials and knobs are and what are the things that we can do to help create more protections. And in a way, slowing things down seems like our best chance of building up a more educated set of policy making, more education in the policymaking community so that we get better laws.

Michael Geist:
Well, I think you’ve done it. You’ve done a lot to try to help educate because they say the stuff that you’ve been working on, the large databases that highlight the kinds of cases that are out there that allow for a more comparative look as well as some of the analysis is in many ways where people need to start once they’ve once they’ve concluded that there needs to be some kind of policy measures taken or regulatory measures taken. There has to be recognition that’s step one. that’s not the end of the story. That’s really in many ways just the beginning of trying to craft things that are both effective, but also reflect the sort of values that domestically exist as well as constitutional norms and all the other policy priorities that you say can be fiddled with, I suppose, with those knobs and dials.

Daphne Keller:
Yeah, well, hopefully we’ll do a good job.

Daphne Keller:
Daphne, thanks so much for joining me on the podcast.

Daphne Keller:
Thank you, Michael.

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 22: Navigating Intermediary Liability for the Internet – A Conversation with Daphne Keller appeared first on Michael Geist.

Canada has a well-earned reputation for some of the highest wireless prices in the world with numerous comparative studies finding that consumers pay relatively high prices for low amounts of data. There are obviously many factors behind pricing, but for many consumers the top line issue is how much does the wireless service cost and how much data do I get? Rewheel Research, a Finland based consultancy, has been at the forefront of pricing comparisons with extensive analysis of  mobile data pricing in countries around the world. Its reports have often called out Canada, recently noting that prices are “a world apart” from more competitive markets. With Canadian telco giant Telus commissioning a study to challenge the Rewheel research, I’m joined this week on the Lawbytes podcast by Antonios Drossos, managing partner of the firm, who talked to me from Helsinki about their findings, what lies behind Canada’s wireless pricing, and the Telus-backed study.

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:

Rewheel Research: The state of 4G pricing – 1H2019 – Digital Fuel Monitor 11th release

Credits:

House of Commons, June 10, 2019

Transcript:

Law Bytes Podcast – Episode 21 transcript powered by Sonix—the best audio to text transcription service

Law Bytes Podcast – Episode 21 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.

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

Charlie Angus:
On a two gigabyte plan where you pay about 75 bucks a month Canadian for a two gigabyte plan on your phone and you can still get gouged on top of that. In Paris, you pay 30 bucks. Rome, 24. Now, they might say that’s not really fair. You know, it’s different in Europe. So let’s compare a similar sized country with a similar sized population, similar size large rural regions, Australia. Australians pay $24.70 a month on average for two gigabytes. And in Canada, we’re paying 70.

Michael Geist:
The competitiveness of wireless markets has emerged as a major political issue in countries around the world as consumer pricing for those services attracts mounting attention. Many consumers and by extension media coverage looks to comparative data to see whether their pricing is “high or low”. There are obviously many factors behind wireless prices, but for many consumers, the top line issue is how much does the service cost and how much data do I get? Rewheel research, a Finland based consultancy has been at the forefront of pricing comparisons with extensive analysis of comparative mobile data pricing in countries around the world. Its reports of often called out Canada recently, noting that our prices are a world apart from more competitive markets. With Canadian telco giant Telus recently commissioning a study to challenge the rewheel research, I’m joined this week on the podcast by Antonios Drossos, managing partner of the firm. He talked to me from Finland about their findings, what lies behind Canada’s wireless pricing situation and the new Telus backed challenge.

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

Antonios Drossos:
Thanks, Michael, and thanks for inviting us and giving us the opportunity to actually discuss about the work that we’re doing.

Michael Geist:
Okay, that’s great. What do we actually start there? Can you tell me a bit about your company and the reports you produce and who relies on your services and reports?

Antonios Drossos:
Yeah. So actually, you know, what is not widely known is that we are basically consultants. The independent research that we do is a side thing. So basically, when we are not very busy consulting operators, regulators, competition authorities and all the rest of our clients, then we do this independent research. The company was actually founded, let me remember now to was 2009. So we Rewheel has been operating now for over 10 years. Our background is basically 20 years from the industry. We started from equipment vendors. Then we work for mobile operators, wireless operators, and then went into consulting. We myself and the other founding partner Pal Zarandy, has been basically working for consulting after we left the operators mobile operators for some years. And at some point we were involved with mobile data. Back in 2007, 2008, and we we show a great opportunity to actually create the really specialized focus consultancy on mobile data. We were expecting already that mobile data and mobile broadband would become really, I would say, central, you know, going forward as it finally became, you know, in many countries. And that’s how we set it up Rewheel. So most of our work we do from consulting most of the income, we actually comes from consulting. And, you know, in our spare time, we do this independent research and we are kind of like a different of consulting firm because we take public, we take our opinions public. So we are pro competitive. We mostly work with clients that have similar views with us. And we usually very upfront on this when we meet a new client, either this is a private operator or is it a regulator or a competition authority would tell them this is our views can answer any you kind of like like what you hear or would be happy to to work with you.

I say a few things about our research we got involved in to the state of the European mobile markets back in 2012. We have done a lot of work privately and then we saw that some markets, you know, effective competition was working in some markets was not working pretty well. And ourselves, we had the can we ask to see, you know, why is this happening or what is actually drives competition in wireless mobile markets. So we started our research back in 2012, our independent research. And when I say independent, nobody pays on our research is an activity that will carry, you know, with our own initiative and we find ourselves in our show from their proceeds of the revenues of the companies. And back in 2012, the European Commission, the antitrust authority in Europe, took notice out of one of our first studies about the what drives competition in the European wireless markets and decided our study, they they they they start discussing with us. And since then, we basically have been doing a lot of research in the state of competition, primarily pricing prices in European and overseas markets. And as well, we have done a lot a lot of work in mergers 4 to 3 mergers. You know, that’s a short introductions. What do we do.

Michael Geist:
That’s perfect. And in fact, it’s certainly it’s the pricing competition reports that lead Canada attracted some attention in terms of just we’ll get into some of the most recent reports, including one from April of this year that examined 4G pricing. Where does the data come from that underlies the reports?

Antonios Drossos:
Yes. So we basically started with this methodology back in 2014. I mean, our idea and you know, this is not often a lot of people that read our reports make them mistake to talk about the price of mobile communication services. This is not what we measure. I mean, when we design the methodology back in 2014, we were focusing to actually, you know, measure and track the price of mobile or wireless broadband connectivity. That’s what we are aiming with our research. So basically, you know, back many years back, you know, customers, consumers were buying voice services, SMS services and increasingly mobile data services starting from 2007 onwards. But we saw that a few years down the line that actually mobile broadband connectivity and mobile data will become the central. That’s a commodity that wireless operators are selling. So when we design it. Designed to measure that, so we measure it in two specific plans. This is the model plans that it may have as well or half as well. Voice and SMS and we measure it as well as data only. That is the mobile broadband in our terminology. And how we do it is we basically it is entirely based on public data. So twice a year, as you probably know, this will have this the monitor releases since 2014. We go and we collect ourselves in, you know, in the web from the websites of all the operators, MVNO, not subbranch of the operators. We’re looking for specific plans. We are looking for consumer plans. We’re looking for consumer monthly rolling plans. Some people always make the mistake that we track only postpaid or prepaid, no. We track monthly rolling plans and only the payment is postpaid or prepaid. We don’t really care what we do not track. We do not track prepaid plans that they are not month, meaning that you are buying an allowance for, I don’t know, three months and then it expires. And when you collect all the data, you know, then we carry on down listeners with two specific metrics that we have been using. Most of those years. And then button click, you know, the public personal report with the main findings. And then there is obviously that the full version which contain more detail analysis.

Michael Geist:
Right. So in many ways that that kind of scan of pricing reflects what a consumer would see if they were going out into the market and looking out for those kinds of services.

Antonios Drossos:
Exactly. And that was that was our intention. I mean, obviously, that before us and still there is a number of actually private companies that measure the price with mobile communication services, different services. And and those are primarily targeted for their operators. Can a poor computer better intelligence to see how their competitors are pricing our again? You know, our sole focus is the competitiveness of mobile broadband connectivity. I mean, we are trying to expose the naked price of, you know, wireless connectivity, mobile data or broadband connectivity, how you want to call it.

Michael Geist:
Sure. Interesting. So that I obviously want to get into what you find from a Canadian perspective, given that it’s attracted a lot of attention here. But before we do that. Can you give us a sense of where are we worldwide on pricing? How have things evolved over the years that you’ve been tracking this? And where do countries stand now? What are the kinds of countries that stand out when it comes to their 4G pricing and competitiveness?

Antonios Drossos:
Yes, I think this is really, really fascinating stuff because, you know, we realize ourselves and we actually start driving prices back. We started as early as 2012. But for OECD countries we included, obviously the countries within our European, the European 28 countries starting on 2014. So the most fascinating thing is the price development. I mean, obviously, you know, the price measure back in 2014 compared to the price of 2019. And now we can all have all these very rich data. And it’s worth mentioning that every single DF monitor release contains thousands of actually plans, thousands, thousands of tariff plans from, you know, all of them mobile network. But those in the country, there are sub brands, meaning discount brands also call and as well the major MVNOs in the country. Now what we actually see that the prices of gigabyte, which is basically the main metric that operators are using to tier their plans and, you know, explain, you know, the amount of data that their plans contain has been dropping really off of a cliff within the last four or five years and has continued to drop till the late last release, which was April 2019. The same is true for Canada. The same is true for all the 41 countries that we have been tracking the last four or five years. You know, gigabyte prices have been falling. Now, there is still important caveats and two important findings in all of that. Our data suggest that prices gigabyte prices fall faster in markets where there is four mobile medical operators, the 4 MNO markets, as we call them, than in 3 MNO markets. And that’s has some, let’s say, repercussions, I guess, you know, as we as we interpret them, the higher that the competition appears to be more effective appears to be more intense in markets where there is more mobile network operators versus less mobile network operators. And that’s also as a result that Ofcom, the regulator in the UK, found from their own study back in 2015, if I remember.

Antonios Drossos:
Now the other the other important trend and this is something that we highlight in almost every single release that prices in four MNO markets are tend to be much, much lower gigabyte prices than in 3 MNO markets and again, you know, there is a very important conclusions, words which we make and, you know, a lot of regulators and competition authorities seem to acknowledge by citing our research, including the Competition Bureau in Canada, which recently gained access to our research and gained access to. It’s important to mention that the competition authority in Canada have recently got access to raw tariff data because what they wanted to do is that was to use our raw tariff data for the last five years to make their own analysis, not apply our own metrics. But, you know, do their own analysis and come to their own conclusions. You know what do you suggest for them for the future of the Canadian wireless market.

Michael Geist:
Okay, interesting. So the Canadian authorities are looking at your research, not purely from the reports that you’ve been developed, but rather the raw data that you’ve been collecting specifically.

Antonios Drossos:
Exactly. Specifically, they they want to go to their own analysis on the raw tariff data that we have collected the last five years.

Michael Geist:
Right. So I just have to make sure that it’s clear. So we’re looking at those last five years. What you’re finding is that those countries are looking at 41 countries worldwide and emphasis on Europe, looking at countries around the world, those with more competitors with four network operators tend to have lower prices and tend to have prices that drop faster than those that have fewer competitors, say three.

Antonios Drossos:
Exactly.

Michael Geist:
Okay. Which, of course, brings us then to the Canadian market, because that’s become a big focal point, certain certainly of our government. What does the report find from a from a perspective in terms of where Canada stands relative to other countries around the world?

Antonios Drossos:
Yeah. I mean, basically, we find what everybody else found when they actually tried to compare and benchmark the prices in the Canadian wireless market. Prices the absolute the level of prices, meaning the monthly price for a plan either been there’s been a smartphone plan that includes minutes, SMS being a mobile broadband plan are substantially higher than other countries in OECD and as well as European markets. And as well, the gigabyte prices is much, much higher than many other countries. And that’s again, you know, I’m kind of like emphasizing on that because some obviously for obvious reasons, you know, the incumbents in Canada may not like this finding. But this is a finding that, you know, I could easily name three or four different, you know, independent research that has come to this to the same conclusion. And now the the real question, and I don’t think that there is a debate that Canadian prices are higher than prices in wireless pricing or gigabyte prices in other OECD or European markets. The real question is why?

Antonios Drossos:
Now through these five years that we have doing this independent research ourselves, we we kind of like we have seen every single market and and the main character, this is every single market. And we came to the conclusion that while there is a number of factors that affects prices, both that, you know, the monthly level and as well the so-called variable level or the gigabyte level nowadays in wireless. The most important factor of that is the number of competitors, which obviously it is not a let’s say it is not something new in terms of economic policy. You know, the whole competition law is build up on the idea that, you know, very few competitors, you know, lead to oligopolies lead to duopolies lead to monopolies and that obviously lead to higher prices and consumer harm. And and we believe the fact that the Canadian market has, in essence, three national operators. Yes, we do ourselves qualify Canada as a market with four operators because we kind of like consider Freedom owned by Shaw nowadays to be the fourth national operator. And I think they are en route becoming one. You know, they’re expanding their coverage continuously. But but clearly, this is this is not, you know, a black and white, you know. So we think that if a fourth operator or like Freedom, which unfortunately, you know, unfortunately neither of you was actually acquired by Shaw, was to emerge as a strong fourth, mobile competitor, we believe this will only improve the situation in Canada. And I know I know that there is a lot of discussion ongoing right now because of the current CRTC review on. And there’s a lot of focus on MVNO, the so-called mobile better network operators or the guys who actually buy wholesale access from the actual network operators and then they retail to add to to their consumers. However, you know, our research would have done a lot of work in their area, suggest that while they could help and primarily that could, let’s say, help to lower prices in the short term. The problem with mobile virtual network operators is that inherently wholesale access on mobile network do not work. And you know, if you like to ask more, I can go on and more in details. But and I can I can use some cases from the European market to illustrate why it doesn’t work that well. And effectively you will need a network operator in the long run if you want to have effective competition.

Michael Geist:
Ok. I mean, it is worth it’s not where I thought we’d go, but I think it’s it’s worth focusing focusing on at least for a moment. Do you collect MVNO data as well? Regardless of what what do you see as the experience with MVNO? I suppose in Europe?

Antonios Drossos:
Yes, we do. We do. We do collect. I mean, since the start of DF monitor, as I as I mentioned earlier, you know, we collect the network, the price of the network operators in every country, the price of their sub brand discount brands. And as well, the price is offered by major MNVO also in the country. And so there is over 70 MVNO, as you know, this 41 countries that we track on on a regular basis. And that was one of the interests as well of the competition authority in Canada. They want to see how does the pricing of this can be and how competitive it is compared to their pricing of them. So, I mean, to make it very clear, because this was a huge debate that we we went through in Europe between 2014 and 2018, because back in 2014, the European Commission, which is their antitrust authority in Europe, approved 3 – 4, 2 – 3 mergers in Europe, not by creating a new fourth network operator, but by by giving wholesale access to MVNOs. And there was a big debate. Can MVNO actually substitute the competitive pricing accepted by it for mobile network operator? So the problem lies on the front end and it is quite easy to fall.

Antonios Drossos:
So let’s say that. And I had I had this discussion already with the Competition Authority in Canada. Let’s say that CRTC, you know, mandates wholesale access obligations to them, to the network operators, and then several MVNOs can can can purchase that wholesale access and can reach their consumers with their own retail offer. Now, the major question will be what should dictate the price, the price for which they were buying mobile data from the network operators? And how do you do that? And the moment that you start going into that discussion, things become very, very complicated. And I will explain why. Because it is let’s simply say that in Canada, you know, 40 dollars, you usually buy max 3 – 4 gigabytes per month in a smartphone plan that has unlimited minutes and SMS. That’s more or less what you buy in Canada. So let’s say that CRTC comes in, dictates the price. And now the MVNO could offer for a bit less the same gigabytes for 30 or 35 dollars. They could offer those four gigabytes rather than for forty dollars. Or they could build a bit more fewer gigabytes, say six gigabytes for forty dollars right now, the four of them MNOs have been selling on retail. Yeah. So essentially this is a retail minus model. But the real question is that when a network operator comes into the market, for example, look at Iliad, that they just became the new fourth operator in Italy, the whole gigabyte price. You know what? The market knew before or what was, let’s say, the norm? How many gigabytes should you buy if you spend 20 euros, you know, when in a completely different level nowadays you buy in Italy for 7, 8 euros per month, unlimited amounts minutes and SMS and 50, 60 gigabytes. Now was unheard before the network operator came to the market. And here is the really question I’m asking. There is no wholesale access offer that they will make an MVNO to offer 10 times or 100 times more gigabytes for the same price that the network operators are offering in the market. Because obviously the network operators will never agree to such a wholesale offer. Meaning that an MVNO in mobile wireless would never be able to replicate the near zero marginal data cost of a network operate or meaning that an operator could offer unlimited. As you know, in 23 countries out of the 41 OECD and 28 European countries operators are often truly unlimited service for 20 – 30 euros a month. Now the question one will ask, but how can they afford it? How can you offer a truly unlimited service similar to fixed broadband and still make money? Well, they could, they can, because of the the marginal cost for mobile operators often come at near zero. And the more, you know, the technology evolves and we move to 5G, that their actual ability, the capacity of mobile networks to offer a lot of traffic means that the incremental cost for operators who carry out incremental traffic is really, really small.

Antonios Drossos:
So to conclude, what we have seen is number one commercial MVNO, they don’t, they cannot offer, you know, so attractive and competitive offers as network operators, they’re the fourth network operators and you know, they will. It’s impossible for a regulator to set a price for wholesale mobile, for wholesale access, for mobile data, because it will find itself on the problem that every three months or every six months it will have to change this price because the network operatiors will be, you know, all the time will be lowering the gigabyte price on their own retail plans, you know? So it is almost impossible.

Michael Geist:
Ok. That’s a that’s some valuable insights. It does sound to me that they’re the difference in many ways between an MVNO approach and a new operator or an MNO approach comes down to whether or not you want a transformative change in the marketplace that injects competition or something that feels far more incremental and creates some challenges along the way. May result in some lower pricing with some new competitors from a consumer perspective. But it’s not going to shake up the marketplace in quite the same way that a fourth network operator would. Now that that debate is going to continue to play out here in Canada over the coming months, as you mentioned, the CRTC studying the issue and the government’s sending strong signals about where we’d like to see things go. But the large providers in Canada, the incumbents have been reacting strongly, certainly to even the suggestion that Canadian prices at the moment are high relative to other countries and taking aim at a number of reports along those lines. Telus in particular has commissioned reports from the NERA Economic Consulting Group, a US firm that tries to call into question some of those reports. It started first with something known as the Wall Report and most recently took aim at your reports. So I guess I’d start with any initial comments on the Telus effort as it looks to NERA Economic Consulting to sort of look through and assess what it sees as some of the shortcomings in which the work you’ve been doing.

Antonios Drossos:
Yeah. Well, as we actually said publicly on Twitter as well, we we responded by saying we’ll be happy to actually respond to any critic if that critic is independent. And you know what? We presently passed to Telus because we actually were in discussion with Telus. You know, a few weeks ago. And there is so there is some background on this on this activity by Telus is that obviously that were not the first operator to do that. I mean, throughout the, you know, 10 years that we have been around because of this independent research and because a lot of operators will feel very strongly about the findings of our research, claiming that their prices are high compared to other markets or not. You know, they have done it before. And as I said to Telus they will do it again. You know, there will not be the last operator that did that. But but interestingly, as I mentioned, you know, we were in discussion with Telus, you know, about our services, about our research. And we are we were asked by Telus if we would be willing to do to do to carry out the study paid by paid by them for which study they would have a say. And, you know, our response to them. And it’s it’s not different to any other customer. You know, it’s always no. I mean, the studies that we do are independent and are always, you know, aim at the independent authorities, at the policymakers, you know, and the competition authorities, the regulators on the call, the competition authorities, you know, meaning to conclude, you know, on that related It’s not that we haven’t seen reports like NERA before which criticize, you know, our our status and methodology. And we have responded, you know, if such a report was actually, you know, independent. But in this particular case, you know, we didn’t really feel that, you know, the report was independent. And again, which probably, you know, it will be interesting. Interesting for you for you to hear is that there was a lot inside that report. And while, you know. So the problem with with this type of study, is, as I said, we were in the start of our call. We have a very specific task with our research, and that is to measure the price of wireless naked wireless connectivity. Now, there is many other prices. There is, you know, a lot of wireless operators. They’ve been selling washing machines and they could actually bundle the washing machine together with with their service for mobile service or mobile broadband service. But we are looking always specifically for for for their broadband connectivity and go to benchmark those prices. But if you have any specific comments, you know that you want to touch on that the NERA report, I would be happy to to give some quick responses.

Michael Geist:
Yeah, sure. I guess there’s there’s two that I thought I might might ask you about. And I think you’ve actually I think in some ways responded to the first. One in the NERA report emphasizes that there are other factors at play beyond just the data allowances that you’re taking a look at. They talk about network quality, customer service and those kinds of things. I’m guessing, I’d love to hear what you have to say, that that in many ways that doesn’t really undermine your conclusions at all. You’re looking at relative pricing and they’re saying, well, yeah, but you should you should be thinking about other things. But that’s that’s a different study. And from the perspective of a consumer, maybe they care about that, maybe they don’t. But those that care about pricing would would I’d imagine look at your study and see that it’s useful.

Antonios Drossos:
Yeah, I mean, absolutely. I mean, this I think I think it’s pretty obvious when we measure prices and when we talk about markets being competitive or non-competitive, the focus is on prices. You know that one will argue that there is other things, for example, like customer care, which is the most competitive market. It does and has the best customer care. Well, obviously, it is not part of, you know, our methodology and you know, to actually rebase the whole discussion, because, you know, that’s that’s the main reason why we tend to avoid, you know, responding and going into details to such critique. You know, usually that is made by operators for the specific reason that, you know, I mean, they do not price customer care. The last time that a Canadian operators, wireless operators price on gigabytes, meaning that price almost like anybody else. So if you price on gigabytes and you are I mean, these have very, you know, linear pricing on gigabytes and you don’t price on other factors. It’s easy it’s hard for me to understand how you could turn this argument around and you say that price doesn’t matter and gigabytes doesn’t matter because other things.

Antonios Drossos:
But I want to comment with other things because it’s it’s important. So we never said that mobile networks in Canada are not of a good quality. We never said that, you know, the Canadian market is not competitive because the the quality of mobile networks really sucks. What is important to note, and NERA had presented the consumer survey about what other factors is important to consumers when they decide what service to buy. You know, mobile communication service or in this case, broadband mobile broadband service to buy. They present it. Consumers have it from the US, if I remember well, which anyway, still had price and gigabyte allowance on the top, although not with the percent that is that we have seen from independent consumer surveys. And I want to pick one specifically because you know, even consumer surveys, you would make it with a very different way and that it matters who makes the consumer survey. The European Commission, when it examines four to three mergers, it all most of the times, well, not always, but most of the times countries is independent consumer survey. They do that because they want to determine the diversion and the switching ratios between the operators. But when they do those consumer surveys, they do ask how people make their decision, which provider and which plan to choose. And in those surveys, that independent surveys that we have seen from the European Commission commissioned by the European Commission, we saw 87 percent the attractiveness of the priceline, meaning the price and the gigabyte. That’s 87 percent, 22 percent that were network reliability and 5 percent network performance. Yes, other things matter. But, you know, the thing that matters the most is the price. And how much can you use the service? And this is pretty straightforward.

Antonios Drossos:
Now, two more things. I think this is an important point. I will take a bit more time to elaborate on this. One, whoever is familiar and I’m pretty sure not a lot of policy makers, not a lot of consumers are familiar with competition law. Competition law has prices central to its design so that the purpose of competition law is focuses in preventing consumer harm through price increases. Yes. And the independent research that we are doing is usually an input to competition law, because that’s exactly what competition law is thinking. Yeah, other stuff when competition authorities are looking at the effect of competition in the market through a merger or other stuff, they look at other stuff as well. But their main concern is that will this merger, will this concentration increase price in the market? And that’s important to remember.

Antonios Drossos:
You know that usually operators there, they use their investment as a counter argument. You know that, you know, mergers and more consolidation helps operators to invest more. But even that, you know, the European Commission has rebut this argument by presenting data from France that went from a 3 to 4 operator market between 2012 to 2018. And so that actually network investment in the market increased.

Antonios Drossos:
And my final point about network quality in Canada follow or this is mentioned in the NERA report, they use an open signal. Open Signal are crowd source application that measures the speed and other quality factors on mobile networks around around the world. And they you know, in in opposing the reports, you could see that Canadian operators in Canada runs high on the average download speed. You know, however, it’s important to note that both open signal and another Canadian company called Total as well, which I will save, and they have more reliable data, crowd source data. And they are very active around the world. And we have work with them producing a white paper. Basically say that the quality of the networks in Canada is really top tier, but similar on par with the quality of the national networks in the Nordics. You know, for example, Finland where where we come from. And here is the interesting thing. I mean, the pricing benchmark reports that you do is not the only report. We do a lot of reports about capacity, network capacity on on potential network capacity, potential out of mobile networks around around the markets that we look.

Antonios Drossos:
And in order to do those reports, we collect a lot of data. For example, one of the data that you collect is the number of sites that different mobile network operators have in different countries. Now, Finland, the three Finnish mobile operators have our own 7000 sites. This is the physical sites there where you could actually you could have an antenna. Now, from the information that we have, this is more or less the same amount of sites that Canadian operators have. And what do we do not understand, which is also used by NERA as it now given, you know, against our methodology and our guest there, there there are conclusions claiming that mobile nobles in Canada are really of high quality. Is that Canada has seven times or six, seven times more people than Finland and 30 times more area. But Finnish operators have as many sites as Canadian operators. So it’s a bit difficult, you know, to actually argue that the quality in Canada would be better than the quality in the Nordics. You know, and Finland has a lot of sites in the Nordics, but other Nordic countries have similar a lot a lot of sites and claim that this is the reason why the prices are actually much higher in Canada. So we don’t really we don’t really buy that argument. And we believe that the main reason that prices in Canada is higher is purely for competition reasons.

Michael Geist:
Ok. And in some ways, I think that’s a good, good way to end it ultimately. Canadian policymakers, the government and I think Canadian consumers are really looking to understand why is it that their own, I think, experience when they go elsewhere, as well as reports such as yours and others, consistently suggest that the pricing and focusing on the pricing, which I think, I personally agree with you, I think that’s what consumers are primarily concerned with is far higher in Canada than it is elsewhere. And I take it that your takeaway, having looked at countries around the world at this now for many, many years, is that it ultimately is all about competition.

Antonios Drossos:
Yes. Yes, it is. And if I have one more minute, I think that what I can say is that because to make it more concrete for other people, you know, what exactly do we mean by competition? I mentioned France briefly. And it’s important. France and Netherlands are two very important markets in Europe because they used to be 3 MNO markets. And nowadays the number of network operators in the market doesn’t increase that often because there is less and less spectrum in offer and the higher barriers of entry. But it’s important to not do not that both in 2012, both of France and the Dutch market went from three to four. So there was a new fourth operator in the market. Now it’s important to note that back in 2011, 2012, France and Netherlands were one of the most expensive European markets. Well, in 2018, they became some of the cheapest of the European markets. After four or five years of having a fourth operator operator into the market. And, you know, it’s it’s it’s hard to deny those facts that I mean, somebody who makes a new investment, has an empty network, has every economic incentive to price their service competitive in order to get as many customers as possible, paying them something like 20 euros per month, because that’s how you actually recoup your investment right now. So that’s how they could create positive cash flows and so on.

Michael Geist:
So in other words, Canadians can at least take heart in knowing that there is always the possibility that we could go from where we’ve been for many years now. One of the most expensive countries in the world, at least amongst the developed economically developed countries in the world through wireless and can possibly find ourselves in a far more competitive market down the road if we adopt some of the right policies.

Absolutely. Absolutely.

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

Antonios Drossos:
Thanks. Thanks, Michael, for having me. Thanks.

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 21: Why Canada Has Some of the World’s Highest Wireless Data Prices appeared first on Michael Geist.

Over the past week, extensive coverage of the Apollo 11 mission and Moon landing have graced our imagination in print and online. Canadians are enjoying a little achievement-by-proxy or perhaps glumly recalling that Canadian scientists and engineers were handily picked up by NASA when Canada’s AVRO Arrow program was summarily disbanded in 1959. But does that matter? At the time, it seemed humanity was capable of shared goals; in terms of science, technology and educational advancement, there was reason to believe that great achievement would eventually lift up all boats. A poignant column by Matt Reed (still known to his readers as @DeanDad) reminds us of what was considered possible then, as we can only hope it remains so now.

In any case, circulating today was Maria Popova’s tribute to the black women mathematicians of NASA. As often happens, readers are offered some verse before leaving her site. The teaser today was the second stanza of W. H. Auden’s work The More Loving One:

How should we like it were stars to burn
With a passion for us we could not return?
If equal affection cannot be,
Let the more loving one be me.

Popova’s exploration of this poem comes with a reading by astrophysist Janna Levin. A little online searching also reveals that The More Loving One is available at a number of sites. Some offer critical reflection, others leave the reader the pleasure of unguided contemplation. And, perhaps as one would expect in this day and age, YouTube serves up readings by Auden himself. My favorite might be this one.

Comments about the video reveal the polarity of opinion when it comes to any type of artistic expression—some see the visual and musical accompaniment as heightening the glory of Auden’s words, others see it as denigration. Grist for intellectual property purists ruminating about moral rights, or simply a prompt to change the channel.

In terms of copyright, Auden died in 1973; by Canadian law we are still four years shy of his work entering the public domain. The United States and European Union countries must wait 24 years. Of course fair dealing and fair use offer some shelter to unauthorized reproduction, as developed by a country’s judiciary.

However, those exceptions can only stretch so far–complete reproduction at a publicly available Internet site may strain the boundaries of legitimacy. And while some sites may operate with permission, others may not.

Fortunately, under Canadian law, the exception for non-commercial user-generated content (S29.21 of the Copyright Act), would shelter amateur presentations involving protected work. Legitimacy is grounded on the critical question of revenue—that when one is not attempting to exploit a work for commercial gain, the use is lawful. A perspective that largely shaped the development of copyright law from 1710 to the later twentieth century—the law sought only to manage exploitation by commercial entities.

Regardless though, copyright maximalists will argue that these unauthorized reproductions are harmful to authors, blithely glossing over the distinction between author and copyright owner.

Which invites the question: when publishers hold the rights of control within the system of copyright, and may deny permission to reproduce a work (or a portion thereof) intended solely for non-commercial purposes, how does that benefit the author? Monetarily, the answer is contingent on the contract between publisher and author. If the transfer of copyright was in its entirety, as appears to be the case with Auden’s published works, it is less likely that an author or heirs gain from extraneous licensing in connection to noncommercial uses of those works.

Stepping then beyond matters of money, how does it affect the awareness of the author? In this case, if those sites sharing Auden’s work had never happened, would his legacy be what it is today? Would it carry for another fifty years? Or would his work be only of interest to those engaged in some formal study of poetry?

Years ago, Graham Reynolds argued that changes to copyright law should be guided in similar fashion to laws affecting the environment—that is, through the lens of a precautionary principle. While he acknowledges the differences between a physical environment and an intellectual one, there is a a critical similarity: ” … not all harms can be remedied after the fact.” Therefore, it becomes of paramount important to anticipate future harm to public interest (which includes authors) served through the system of copyright.

Returning to the matter at hand, the questions become: What would the harm have been in eliminating the possibility of ordinary readers becoming familiar with Auden’s work? Would that have served Auden, his estate, or the public interest?

 

Technology transfer in the university context has emerged as significant policy issue with governments seeking to maximize the benefits of public investment in research at Canadian universities. For example, the Ford government in Ontario recently launched an expert panel on intellectual property squarely focused on the issue that speaks to maximizing commercialization opportunities with an emphasis on intellectual property. But what if maximizing commercialization opportunities does not mean prioritizing patents?  Professor Richard Gold from McGill University’s Faculty of Law argues that universities should get out of the patenting game. He joins me on the Lawbytes podcast this week to discuss the failure of patent first strategies and why open science may offer a better path for commercialization success.

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:

Gold, Should Universities Get Out of the Patent Business

Credits:

AUTM, About Technology Transfer
TechCrunch, Judge Rules CRISPR-Cas9 Belongs to Broad Institute
SGC Channel, Welcome to SGC Toronto

Transcript:

LawBytes Podcast – Episode 20 transcript powered by Sonix—the best audio to text transcription service

LawBytes Podcast – Episode 20 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.

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

AUTM:
Universities hospitals and research centers conduct a lot of research that generates groundbreaking inventions that not only save lives but improve the way we live. Work and play on a daily basis. Technology transfer plays a central role in bringing these ideas from the lab to the market.

Michael Geist:
Technology transfer in the university context has emerged as a significant policy issue with governments seeking to maximize the benefits of public investment in research at Canadian universities. For example, the Ford government in Ontario recently launched an expert panel on intellectual property that squarely focused on the issue. A government release stated that the panel quote will deliver a report on how Ontario can maximize commercialization opportunities for the post-secondary sector and its partners included in the expert panel report will be an action plan for a provincial intellectual property framework. But what if maximizing commercialization opportunities does not mean prioritizing patents. This week’s guest on the podcast, Professor Richard Gold from McGill University’s Faculty of Law, argues that universities should get out of the patenting game. He joins me to discuss the failure of patent first strategies within universities and why open science may offer a better path for commercialization success.

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

Richard Gold:
Well thank you Michael for inviting me.

Michael Geist:
I’m really glad you’ve come on. The question of commercialization of intellectual property within the university environment has been a big policy issue for a long time and as you know better than just about anybody, many have advocated for increased commercialization more intellectual property especially on the patent side and universities are increasingly pressured to justify public investments in research through metrics like spin offs patents and other intellectual property. And this issue is getting even renewed focus in Ontario with the creation of an expert panel on IP and a lot of talk about maximizing commercialization. So that’s where much of the discussion seems to be at least in the media and amongst some of the politicians and policymakers. But you’ve written that universities should consider getting out of the patent business. And so I wanted to start there. Let’s talk about universities patents and the approach that we’ve seen for a long time. You think the focus on patents and commercialization has been the wrong approach. Why is that?

Richard Gold:
Well I think it was a really good idea forty years ago. We said look we’re producing a lot of knowledge at the universities. The government is putting a lot of money into research. We want to translate this in to economic growth. We want to have companies come out of Canada and become world leaders. We’re now 40 years later and I challenge you to name a Canadian company that has a large scale market that came out of a university. We’ve had a few they’ve all either been sold or gone under. When we think about BlackBerry it was not a spin off out of the university. So we’ve had 40 years of failure. It was a good idea. It just doesn’t work. And it’s time now to think about why it doesn’t work. What’s missing and we can look to the United States where this idea originated and we see you know it’s not working even particularly well there in the US about 84 percent of universities lose money on tech transfer and there are about 15, 16 universities that have generated real companies. It’s not like this idea hasn’t done anything, but it hasn’t done really well. And so we should be looking at alternatives that will do better. And I think today with our communication systems are deep deep interlinking both through technology through networks that university professors have created. I mean look at scientific publications there are often many many people on the team from different institutions. It’s time to look at a different model and that model in my view at least one part of that model means getting out of the patent business. We’ve done a poor job at it. Let’s try something different.

Michael Geist:
Okay. I want to get to what some of those alternatives could be in a moment but you mentioned that the data at least in the United States suggests that the vast majority of universities that have pursued this approach and as you note this has been something that universities both in Canada and the United States and elsewhere have faced as a real pressure point have lost money on this. So what’s the cost associated with pursuing the essentially patent first commercialization model from a Canadian university perspective.

Richard Gold:
So there is a direct cost which is actually running these offices. And what we’ve seen over the last 20 years or so is increasing expenditures going into professionals hired by the university frankly often with very little private sector experience because they can make a lot more money in the private sector so it’s hard to attract people. We’ve seen an increase in expenditures going to these individuals and their output hasn’t gone up. What we see is redundant patent applications. So in the first part of the 2000s the number of patent applications went up but the actual patents granted did not. So we were wasting a lot of direct expenditure on these individuals plus playing the patent game. There’s also been a significant increase in litigation particularly United States. So I don’t know if you’ve been following the debates over patents over the CRISPR technology this breakthrough technology to edit DNA.

TechCrunch:
Judges at the United States Patent and Trademark Office in Alexandria Virginia ruled today that the technology belongs to the Broad Institute and Harvard. Not the University of California Berkeley. CRISPR promise is huge. The technology could potentially change genetic code as well as produce new types of treatments and even cure diseases. And because it’s such a huge breakthrough it’s estimated to be worth billions even trillions of dollars.

Richard Gold:
That has pitted two universities against each other fighting over who gets the patent it’s going to cost you know one hundred million dollars plus to settle this. In the meantime nobody knows who has the right patents who doesn’t. So there’s a cost to industry about the uncertainty. There’s the cost of defending these patents but that doesn’t include what I think is the major cost which is the cost that we don’t account for. And that is the time of the researchers spent on filing patent applications because they must be involved. And that takes up time and nobody knows what that’s like. But even more significantly it gets in the way of setting up agreements with the private sector because as soon as the university says look if I’m taking an IP position here I want IP then of course the firm that they’re dealing with is going to say well hold on we’re putting money in, we want our IP. And so we see extended contract negotiations even on very simple agreements like material transfer agreements where the university transfers a cell or a DNA sample or molecule to the private sector and it can take six months. We’ve often seen it go much longer. And so if you take into account all those costs of just slowing down the research and the person power it takes to negotiate those agreements it’s extreme. But even beyond that it means a delay in research. It means that a research project can’t start as soon as it ought to. So the science is there the scientists are ready to go but they have to wait for the agreement to be signed. And so we have a delay of six months a year sometimes more to even get one partner involved. And imagine as we see today more and more often multiple partners need at each person bringing each person each firm bringing their own skills whether it be AI, whether it be a molecule whether it be some other type of knowledge each one needs to negotiate with the university so we may be pushing research back by a year or two years. That means people are suffering because we’re not even starting the research that may result in a drug and other people aren’t benefiting from that knowledge because we know once I publish someone else’s going to use it. So we’re delaying the initial start of the research which has a follow on effect and we have no idea how much that costs.

Michael Geist:
So I there’s a lot to unpack there. By the sounds of it you’ve got on the one hand the costs that the universities themselves incur because the commercialization strategy and and invariably involves the creation of tech what are called tech transfer offices within the universities these individuals who are supposed to specialize in taking the research finding private sector partners negotiating those deals and in a sense pursuing that commercialization strategy. Your data suggests that isn’t working very well it’s expensive to do. They’re not great necessarily at what they do with many more patent applications but not necessarily more patents actually granted. And then that process itself leads to the litigation that you described, leads to delays on the research side and it takes researchers out of doing what they do best which is conducting research.

Richard Gold:
That’s exactly right. So the initial instinct I think was right: let’s help the private sector and there’s always been historically links between universities and the private sector in fact a hundred some years ago most of the research was funded by the private sector. But since the 1950s the government has taken over the major role of funding and we’ve been trying to figure out how do we breach this gap especially since technology is becoming more complicated and we need bigger team. So it’s a good instinct. But it simply doesn’t work. The costs are way too high.

Michael Geist:
It’s interesting. I know that this goes back now decades. You mentioned that this really got started in the United States with the Bayh-Dole Act I believe back in 1980 which was sort of that first real attempt did we have something or do we have something similar in Canada at least that either a legislative or even a policy level that was designed to pursue this kind of commercialization approach.

Richard Gold:
Yes. And going back to 1980 the Bayh-Dole Act was trying to solve two problems. One is this commercialization gap. The other was in the U.S. there was a rule that if the government funded your research they had a veto over anything you did with it. So at a university that had an industry partner could not transfer the knowledge to the university without going through a byzantine process of getting permission from the federal government Bayh-Dole got rid of that and and rest and put control over these decisions the university in Canada we never had that situation. The granting councils never imposed an intellectual property policy. And so universities were always free to engage with firms as they want. So we never needed a Bayh-Dole. We don’t have the Bayh-Dole but what we have had is some policy. And one of those and I’ll just give one example is the Federal Government’s creation of the Canada research chair program. So this is a program to fund are our best researchers from across disciplines and the government demanded in return for funding these chairs that the universities triple their commercialization output. And so it was embedded into the agreement between the federal government and the universities that they would do more commercialization by which was understood at the time more patenting and more licensing. So we’ve had an embedded in pieces of policy like that. We also count patents when we’re assessing universities. Some governments on occasion have looked at patents as one of the things they look at in terms of making funding decisions. So it’s all been soft policy or through these arrangements with the university community. But it’s not in legislation. And so we don’t have to do it but we tend to follow the U.S. lead.

Michael Geist:
Right. Well I’m a fan needless to say of Canada Research Chair program but having held on for a long time but not necessarily thinking of that chair program as one that also sparked requirements on commercialization. Is there data on the kind of revenue that that post the creation of the CRC program that we saw you know did we get that tripling of commercialization revenue as the government was hoping for.

Richard Gold:
Well we have data from the 2000s until the government and until the government basically stopped collecting this data through Statistics Canada and around 2010. So the Harper government severely cut back on the types of data we have. But we have data from the early 2000s until 2009 and what we we see is that commercialization revenues increased. But the cost of generating those revenues rose even more. So in fact we went from twenty four million dollars in about 2001 of net benefit of net revenue to ten point seven million in 2009 because the costs way exceeded the extra little extra revenue we gained.

Michael Geist:
All right. So that comes back to your one of your very first points about the costs of pursuing a commercialization strategy. It’s not free and in fact I mean it’s striking to think that revenues net revenues go down rather than up at least in Canada in that first almost 10 years despite the increased emphasis on commercialization. That provides compelling data as to why the system hasn’t been working in Canada. And frankly you you’ve provided some references to why it doesn’t work for the vast majority of universities in the United States. So if not commercialization and as we know is where there continues to be an emphasis where we’re likely to see come out of Ontario as well if we’re not going to make commercialization the focus, what do you propose?

Richard Gold:
Well depends what you mean by commercialization. So this is a word that’s bandied around and often people interpret it thinking correctly as this notion of let’s patent everything we have and transfer it to a Canadian firm. As they said they were good instincts behind it but if we have a broader interpretation of commercialization as both about generating research and cutting edge research in the university and assisting our firms then I think we can take many different approaches. We can realize that universities are just terrible managers of intellectual property. We don’t know what to patent. We don’t know how to patent it. And we usually don’t know who to patent it too. Anecdotally I hear from people in tech transfer offices that the squeaky wheel that is the professor who complains gets his or her research patented not because it has a commercial value per se but because they want to patent and they’re not paying for it. So we we just don’t aren’t good at managing this. So the alternative is just simply say that the university is not about patenting. It’s about bringing people together. We’re really good at that. We can. We’re an honest broker so we can bring industry with community organizations with researchers and talk about what do we want here. What kind of knowledge do we need. A lot of this knowledge is high risk in the sense of we don’t know if it’s going to work. We don’t know how it’s going to work. We don’t know how much it’s going to cost. So there is a role for the university in doing the research. Adding to the world’s knowledge and the industry partners can then at being part of a consortium can see opportunities for themselves to develop their own products. So they become active partners and they will see opportunities you know some research that’s come out of the university they can say oh well with that knowledge I can now go off and develop my own molecule as a treatment for this disease or I can develop this product in the I.T. space. And that’s a different model of commercialization it still emphasizes the economic benefits of research but it doesn’t tie the hands of university researchers to immediately gaining an economic benefit from what they do.

Richard Gold:
And if you look historically we’ve just been terrible at guessing what’s going to work. If you look at when the television came out people were saying oh no one’s ever going to watch that the radio’s much better because you can do other things. Who could imagine that someone’s going to sit in front of a box and watch what’s happening. When they looked at when the computer came out the personal computer came out people thought wow no one’s going to use that even IBM didn’t think anybody was going to use it. So we’ve been really bad at guessing what is going to be a benefit. Why don’t we just let our researchers create knowledge and let others and firms in particular figure out where are the market opportunities are and they develop their own technology. Or a community organization can use the knowledge and say look there’s a better way of delivering services here we don’t need a new technology. We just need to figure out how to deliver this better. Maybe using I.T. maybe not. So the university should generate knowledge and bring people together and their interaction we know brings out new ideas and new opportunities.

Michael Geist:
I mean it’s an interesting point in suggesting that it isn’t an abandonment of commercialization, it’s a different road to commercialization one in which the university isn’t premising what it needs to do on based on the number of patents that it gets and locking down that information but rather taking a much more collaborative approach by trying to bring together other innovators other firms and using that research using that knowledge in innovative ways that may ultimately lead to more effective commercialization.

Richard Gold:
Yeah that’s exactly it. And yeah some places have experimented in fact Canada is the leader. In some ways in experimenting with it in Toronto there’s the structural genomics consortium headquartered in Toronto but has labs in at Oxford at the Karolinska in Stockholm at in Frankfurt.

SGC:
Welcome to the structural genomics Consortium at the University of Toronto. The SGC is a not for profit public private partnership supported by pharmaceutical companies charities and government agencies. We support drug development through relevant basic science. We enter our findings into the public domain without restrictions or patent protection. Our open access policy means we can share our results with the world immediately and freely.

Richard Gold:
Everything they do is out in the open. That is there are no patents all the data is freely available to all and a quarter of their funding comes from industry. And industry is really interested in becoming involved because this they’re interested in the knowledge that’s generated and we know that commercial partners that are part of these collaborations are better positioned than other firms to take advantage of it. So their turnaround time from working in this consortium and then developing their own product is much shorter and direct than it is for another company that just watches it from the outside.

Michael Geist:
All right so there is a there is that there’s still benefits from the private sector perspective in this kind of more open approach and I think you offer for as an open science type of approach, where the research takes place via collaboration without patents but with active participation of the private sector.

Richard Gold:
That’s right. We see it at the Montreal Neurological Institute which when open science in 2016 and they’ve been able to attract funding and partnerships from very large scale and smaller scale firms because they’re open because the firms realize that most of what we at universities patent is not the technology that they’re bringing to market. In fact it represents a cost to them they have to negotiate these agreements with us. They’re wasting time you know six months a year as I said before working with the university over something that’s likely not at all a commercially viable. They have to go through it because that’s the game that the universities have set up but they’re much happier engaging with universities where they don’t have to worry about all this stuff they enter into a simple agreement they contribute knowledge they get a lot more out of it than they put in because they they gain from the basic knowledge that’s coming out and then they go off and develop their own product and the SGC has success stories, the Montreal Neurological Institute is starting to gain those. This is a model that works.

Michael Geist:
I’d like to to focus for just one more moment on that as those SGC success stories because often times especially in the pharmaceutical industry sector we’ve been conditioned to believe that unless you’re focused on patents and patent protection that innovative new drugs simply don’t happen. Can you tell me a bit about some of the spin outs we’ve seen from SGC that seem to really run counter to that kind of narrative.

Richard Gold:
Sure. I should point out that the SGC was actually the idea of a private sector. GlaxoSmithKline took a leadership role in setting it up and were took a leadership role in ensuring that there were no patents there because they saw right from the beginning a benefit. But let me give you a more concrete example and this is this is just one of many types of agreements that the SGC has. The SGC started off looking at proteins and its three dimensional structure. And this is important because the way that drug discovery works is you try to find a drug that fits the three dimensional shape like a key into a lock. And so it’s really important to understand how these molecules fold up and then they moved on to developing what are called probes and these are molecules that will attach to various proteins. And if you can find a molecule that will lock onto the protein we know it’s drugable in the sense of we can find some molecule that will perhaps inhibit that model. That protein from acting or changed the way it acts. So SGC routinely enters into agreements with private sector or other institutions to develop these probes that they make freely available to the research world. One example is something called the W D repeat containing protein 5 or W D R 5. It had been an uninvestigated protein and as G C wanted to spur research on this protein so it entered into a partnership agreement with the Ontario Institute for Cancer Research which is a public institution in Ontario with a mandate to obviously do cancer research but also commercialization. And under this agreement the cancer the OICR the Ontario Institute for Cancer Research developed a probe for the W D.R. five gene protein. No one knew exactly what the protein did. The first try did not work very well because what the SGC did because it’s got this international network it said to other researchers can you just test out this probe and see if it’s really as effective as we think. Turned out it wasn’t. So that a leading researcher who was willing to participate because no one was getting patents this was helping academia, helping knowledge growth.

Richard Gold:
And so the OIC are redid their probe and came out with a very high performing probe. The SGC and the OICR made this probe freely available. There were researchers in Australia the US and Austria who took up the probe and discovered links between the protein and different types of cancer leukemia breast cancer and neuroblastoma and published the results so the researchers were interested in getting into a high impact factor journals. That’s the currency of researchers. And so by getting this free probe they were able to say look this was an unknown area. We can do this research rapidly and get a high impact journal. And each one of them did. Because the OICR had been involved with this open project they knew what was happening. They were you know they had not in-house knowledge about how this probe was built. They knew about the WDR5 protein. They already had staff trained on it and so they were quickly able to take this knowledge and develop a separate molecule that they then patented. So the OICR then took this public knowledge available to everyone in the world and developed a new new drug that they took through some preclinical trials and proved that it was effective in the leukemia field. So much so that Celgene a very large company approached them and agreed to pay 40 million up front for the right to use the drug. The patent stays with the OICR but Celgene has the commercialization rights and up to a billion dollars if the drug makes it all the way to approval in the meantime the research is being conducted in Ontario some more Ontario researchers are being funded. We’re developing more of this knowledge about how this protein works and so we’re leaving a legacy behind. So here’s an example of a commercialization route that did not involve the University taking a patent but making it open and converting it into a commercial success.

Richard Gold:
The SGC has other models though that don’t even involve patenting. They’ve set up a company called M4K Pharma which is medicines for kids and M4MD which is for for neurological diseases and here everything is done in the open. There are no patents but in the healthcare in the drug space there is an opportunity to get data exclusivity when you file an application to the FDA. United States Health Canada and in Canada for drug approval. The data that you submitted cannot be used to allow another company to get market approval. They would have to do the research themselves. And so M4K pharma is using this as a as a way to commercialize it. So they’ve got charities that are interested in the fundamental diseases they’re going after. And at the very least they’re going to get knowledge gain. And if there happens to be an opportunity that comes out of this then there’s a commercialization route. Again no one else is restricted from developing their own drugs. All the data is out there but we see that there’s a benefit to being part of the partnership you’re just more nimble and able to commercialize faster so is an advantage to participate. But we’re not blocking anybody else who isn’t interested in participating from following their own research and commercialization routes.

Michael Geist:
It’s really remarkable set of stories to to highlight how this has in fact worked. It’s not just a theory it’s in fact in practice we see an alternative route not dependent upon a patenting model that actually leads in many ways to more innovation and actually more commercialization opportunities. What’s it going to take do you think to see this proliferate more broadly especially at a time when governments look at the investments they make in research in universities and for so long their knee jerk reaction has been we need more we need more patents.

Richard Gold:
Well I’m somewhat hopeful that the commission in Ontario will acknowledge this conundrum and actually support experimentation because that’s what we really need. These are this one model I gave you of open science. There are other models of open science there probably other models and we need experimentation. I know some of the people on the on the commission are open to these ideas including Jim Balsillie who well understands that universities have done a poor job. I mean you know Jim and the government are upset that we’re commercializing or universities are commercializing knowledge for the benefit of foreign firms so if we’re going to get patents let’s not transfer order data exclusivity lets not just transfer them to the Facebook’s of the world. Let’s at least make it go to Canadians. But at the same time they recognize that universities are poor managers of patents. And so I think we’re going to see. I’m hopeful that we’ll see some experimentation. We’ve seen some signs from Canada’s chief scientist that open science is something that she’s interested in. In fact Environment Canada is the lead department in the government on the open government file which includes open science. What we’re hoping for is that the funding agencies such as Canadian Institutes for Health Research their equivalents in engineering and social science start to experiment with Open Science by having open science calls. That is research grants aimed at Open Science that meets a minimum criteria. Open data, open publication, no patents. We’ve seen an example of this from the Wellcome Trust, one of the largest international funders of health research. They’ve been experimenting with open science. CZI, Chan Zuckerberg Initiative, is also interested in open science. So what we’re hoping for is that the funders start putting their money into open science experimentation.

Richard Gold:
When the universities see that there’s money available to do open science they will do it doesn’t matter whether they believe in it or not. The way universities count whether they’re doing well is how much money they’re bringing in. So if they can bring money in by open science they will. I actually think universities are going to be the most difficult to change as as you’ve mentioned a long history of a belief in this failed system. It’s only by enticing them to try something different by publicizing the stories of the SGC and the MNI and other places that are interested that will start to see a change. And if Canada doesn’t do it other countries will. The UK in fact funded my research on open science. I have no Canadian funding it comes from, right now do but I didn’t at the time, because they think open science is a way for them to increase scientific productivity and commercialization in the UK. Brazilian institutions are approaching us and asking about how they can implement it. We know the Netherlands is interested in this. Your colleague Jeremy de Beer working in Africa is seeing a desire for openness and sharing and unfair terms. We’re talking to patient groups and they’re interested so we can increase trust in science if we all come together and say look this is a public service, creating knowledge but it’s not done at the expense of commercialization it actually assists those who are willing partners.

Michael Geist:
Right. And it’s amazing to hear that. Just the sheer number of organizations and countries that are now focusing on this issue is somewhat ironic that it feels as if we have to get the Canadian institutions kind of pull them along to come into that same space. Richard thanks so much for joining me on the podcast.

Richard Gold:
It’s been a great pleasure. Michael.

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 20: Why Canadian Universities Should Get Out of the Patent Game – Richard Gold on Canada’s Failed Research Commercialization Strategy appeared first on Michael Geist.

Kris Joseph recently penned a thoughtful column concerning institutional procedures that affect graduate students in terms of access and use of their work. After defending his thesis, he had eschewed the typical copyright statement (“Copyright Kris Joseph, 2019”) for his work and chose instead to deposit his thesis with his institution under an open licence. It took some persuasion on his part before his institution would accept his wishes.

Joseph describes a seeming offer of compromise that came at an intermediary point in the negotiation:

To keep my thesis deposit from being rejected, they suggested I remove the open licence from the front of my thesis, use the “standardized” copyright notice on the title page, and then place my Creative Commons licence inside the thesis, at the end of the frontmatter. On the surface this seems fair, but it isn’t: it suggests that the front of my thesis should say “this is mine and you can’t use it,” but if you keep reading and look carefully, you’ll see that I actually mean “this is mine and I want you to use it and thank God you thought to check the 11th page otherwise how would you know?”

The happy ending is that Joseph’s thesis was accepted as he wished to license it. But as he astutely noted, many students would have hesitated to push back on what appears to be a matter of institutional policy.

Graduate students across the country are required to deposit their work in their institution’s online repository—this is the millennium version of the former custom of leaving a copy in the institution’s library. In the later twentieth century, it became addedly necessary to enable a copy to be sent to Library and Archives Canada, to further the goal of making publicly-supported work more widely available to the public. (Moreover, it heightened the possibility that a thesis or a dissertation might actually be read by those continuing in the field.)

To achieve the twin goals of public dissemination and broader awareness of one’s work, Joseph was asked to sign a form that gave:

… the university library and Library and Archives Canada a non-exclusive licence to “archive, preserve, produce, reproduce, publish, communicate, convert into any format, and to make available my Thesis in print or online by telecommunication to the public for educational, research and non-commercial purposes.”

Compare this against Joseph’s own sentiments regarding his intent with his work:

A Creative Commons licence is a convenient way to say “yes, this work is mine and I have copyright. I want you to know that you are free to share it or adapt it or rework it without asking me first, as long as you give me credit and don’t trade it for lucre.”

In neither case would Joseph (and scholars like him) receive any financial reward for enabling public access to the work in question. Interestingly though, it is only in Joseph’s choice of Creative Commons’ licensing terms that a user is deliberately asked to acknowledge who created the work. (The university/LAC license seeks only to ensure that those institutions may legitimately store and distribute the work; it does not bind them to declare how a work should be used.)

Granted, in Canada, moral rights ought to ensure users give due attention to the necessity of attribution, but that is not necessarily true in other countries. (For instance, the United States has a very limited view of moral rights’ obligations.) Whereas Creative Commons is globally recognized and explicitly makes attribution a condition of use.

Of course, the university/LAC license makes no specific allowance for adaptation or re-working, but both functions may well occur under that licence’s broad allowance of “… to make … available to the public for educational, research and non-commercial purposes.”

The irony of Joseph’s experience is that his chosen Creative Commons’ license more closely aligns with academic experience and the social contracts made by higher education/research entities with the public.

Joseph called on universities to make a better effort in educating graduate students with respect to the nature of copyright and its multi-faceted personality, comprising rights of use and rights of control. I concur.

And to which I may add, a better understanding of copyright is needed among staff involved in research and education, across all universities. Not an easy objective to be sure—Joseph’s experience illustrates the challenge that lies ahead for all those attempting to raise the level of copyright literacy: old-world ideas about how copyright is managed are difficult to dislodge.

At its core, that old world was a thicket of gatekeepers.  Copyright was largely exercised by those who produced and distributed the finished product, under arrangements that might not favour the creator of the work. (The dispute between L. M. Montgomery and L.C. Page comes to mind, as does the more recent discord between Taylor Swift and Scooter Braun.) Academia has its own share of copyright difficulties—ranging from the external problem of proprietary journals excluding access to the very community that provides labour and content for free, to, an apparent discomfort in seeing their charges taking charge of their own work.

The critical difference between the two licences of this story, is that in one scenario a middle-entity is given a privilege of, and responsibility for, distributing the work, whereas in the other, the creator seeks to offer the work directly to any interested party willing to transact in the principal currency of academia: the citation.

Canadian Heritage Minister Pablo Rodriguez recently appeared to pre-empt the government’s broadcast and telecommunications legislative review panel in his response to the panel’s interim report. Rodriguez indicated that the government will move to mandate new contributions and Cancon requirements for online services regardless of what the panel recommends. New creators leveraging online platforms don’t typically participate in government consultations, but that doesn’t mean their voice and experience should be ignored. Ryerson’s Irene Berkowitz recently released Watchtime Canada, a report on the role YouTube plays in fostering opportunities for creators. The study found an eco-system that provides thousands of Canadians with full-time employment opportunities and export strategies that outshine the traditional creative sector.  She joins me on the podcast this week to discuss the report and what it might mean for Canadian cultural policy.

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:

Watchtime Canada report

Credits:

Standing Committee on Canadian Heritage, May 2, 2019
Unbox Therapy, This Smartphone Changes Everything
Gigi Gorgeous, This is Everything
How to Cake It, GIANT Juice Box Cake with JUICE INSIDE
The Icing Artist, Mini ANIMAL CAKES
Vanoss Gaming

Transcript:

Law Bytes podcast – Episode19 | Convert audio-to-text with Sonix

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

David Yurdiga:
Are we prepared for the the YouTube generation. I like to call because that’s the that’s the medium they’re playing in at this point.

Scott Hutton, CRTC:
Our suggestion is we need to legislative changes and new tools to be able to help the regulatory system adapt to those particular environments. YouTube can contribute to Canadian content. You know we can all post there and it is contributing and that means right now Canadians can. It’s it’s one of the more open systems Canadians can post and receive revenue from from YouTube. On that element but an example in that case is how does one find that Canadian story and the sea of what is available on on YouTube. So for example that’s why we’ve raised many concerns with respect to discoverability is sort of the term that everybody is using as to how do you find that piece of Canadian content in the plethora of content that is available.

Michael Geist:
Canadian Heritage Minister Pablo Rodriguez recently appeared to pre-empt the Government’s broadcast and telecommunications legislative review panel. In his response to the panel’s interim report. Rodriguez indicated that the government will move to mandate new contributions and Cancon requirements for online services regardless of what the panel recommends. While the comments signal a shift in policy – and perhaps that an election is on the way – they also suggest that the narrow view of the Canadian creative sector has taken hold within the government.

Michael Geist:
New creators leveraging online platforms don’t typically participate in government consultations but that doesn’t mean their voice and experience should be ignored. Ryerson University’s Irene Berkowitz recently released Watch Time Canada a report on the role YouTube plays in fostering opportunities for creators. The study found an ecosystem that provides thousands of Canadians with full time employment opportunities and export strategies that outshine the traditional creative sector. She joins me this week on the podcast to discuss the report and what it might mean for Canadian cultural policy.

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

Irene Berkowitz:
Thank you very much for inviting me. I’m sort of awed, honoured and I hope I can contribute as your other amazing guest have.

Michael Geist:
Okay. Well it’s a pleasure to have you and this comes at a really important point in time. As you know we’re recording this about a week after the government’s broadcast and telecom legislative review panel released its “what we heard” report. The actual recommendations on reforms to Canada’s broadcast and telecom laws aren’t scheduled until 2020, but this report kind of provides as the title suggests what they heard from the various stakeholders who participated.

Michael Geist:
I think it’s fair to say for anyone who’s paying attention to the report didn’t really surprise very much. There are many in the cultural community in Canada that see this this review as one of their best chances for new regulation in the cultural sector possibly mandated Cancon contributions maybe even site blocking, new taxes. And so there’s been a lot of emphasis there and certainly you see it in the report. But if you only read those submissions I think you’d be pretty surprised to learn that Canada is experiencing record spending on Cancon production right now. A lot of it supported by foreign investment. But even that is only part of the story. And well the reasons I’m so excited to have you on the podcast is that you recently released a study that examined the role of YouTube in Canada’s media ecosystem focusing both on Canadian YouTube creators and consumers and the data which frankly you don’t see in the what we heard report strikes me as incredibly important for cultural policy. So why don’t we start as a long intro but why don’t we start then with the background. What were you looking to study and how did you go about doing it.

Irene Berkowitz:
Well thank you for asking that question because it actually has an important answer which was as you know and many other people who are probably listening know there has been you know hundreds if not thousands of reports filed on the legacy media system from its very beginning. Probably you have also read most of the documents from 1929 as I have and yet there isn’t there wasn’t a baseline study of YouTube which has been present in Canada since 2006 to take its place at that at that table and there’s a lot of generalizations made about new media giants without much specificity so we wanted to take a look at what is the role of YouTube in the Canadian media ecosystem.

Irene Berkowitz:
What we found was quite remarkable we were not experts in YouTube. As you know I’m more of an expert in legacy media at the time. And just for further transparency to say that the report was commissioned by Google but contains no proprietary information we there’s 50 charts and lots of contextual information. And unless we omitted it accidentally a footnote all of it is done by reporting our original research or public public information that’s adequately or appropriately footnoted. In fact Google was quite explicit on numerous occasions saying that they would not want to interfere with our academic freedom.

Michael Geist:
Ok. So just so that we know who the “we’ is in this case it’s yourself. But it was also with some colleagues from Ryerson.

Irene Berkowitz:
Yes very important to mention my team the first team member is Dr. Charles Davis whose credentials are quite impressive. He’s the Edward S. Rogers Senior Research Chair in Media Management and Entrepreneurship. He’s also a professor in the RTA School of Media and the associate dean of scholarly research and creative activities here and my so he you know you can understand this was sort of the the royal oversight in this report as well as our second of our third of our three part team and Hannah Smith whose Phd student and communication and culture which is the same program from which I received my PHC in 2016. And she is a graduate researcher in audience lab which is an initiative started here it at faculty of communication and designed to study audiences with data both qualitative and quantitative research is done here.

Michael Geist:
Ok. I wanted to make sure that we give credit to the full team and I’m glad that you that you noted that. Google provided support but had no input in terms of the outcome in the research itself in what’s a lengthy reports of some hundred thirty five pages of lays out the data that you found. Let’s let’s talk just that’s the why that is an area that’s not well understood and the who that was involved. What did you go about doing as part of the study.

Irene Berkowitz:
Well we took a look at the key stakeholders in YouTube and with an eye on understanding what stakeholders are most often reported on in it in the legacy reports and we decide to take a look at the audience or consumers and the creators because they are the creators are obviously the focus of much of much of the regulation and discussion in the in the legacy system. There is a third stakeholder in YouTube which is the advertisers and that that part may be maybe coming eventually but we we started with this. It was a big job. You can see the results are big also. We did we ended up doing two surveys one with consumers. We did that first because was a bit easier from a process point of view and that had fifteen hundred responses with a demographic that was the same as Statscan, which we requested. And then we also did a study of survey of creators and that what that has round twelve hundred responses and we ended up with a dataset that was not certainly not big data. But it is for surveys it’s quite a large data set and we we proceeded to crunch the data and understand what our results were.

Michael Geist:
Okay. So twelve hundred Canadian creators working on YouTube does sound like a really large sample size. Once you crunched some of that data, what are some of the some of the conclusions that you were able to come to in terms of just the scope or size of of Canadian creator presence on YouTube.

Irene Berkowitz:
Yes. Let me just respond to sort of instinctively to you. The first part of your question then I’ll get to the key takeaway which is that by definition the creator survey had to be self selected because it had to be anonymous. So we’ve we were kind of amazed because we had heard that these kinds of surveys get 1 or 2 percent response. We weren’t really sure if we were going to get anyone. And as we saw these results coming in we were we were quite happy to be working with asking Canadians the subsidiary of Delvinia, who administered these surveys. As we saw the results coming in two hundred three hundred six hundred eight hundred. We were quite amazed. And it led me to think that we had struck a chord with Canadian creators on YouTube who really wanted to tell their story.

Irene Berkowitz:
So they said that that’s not those are not the results. There are in the report I’m sure you saw there’s twenty one value propositions unique value propositions that YouTube seems to be offering into the Canadian media marketplace. I was quite amazed as I went through and and sort of tried to deduce each part of the report and I realized that wow this is actually for real. And then I tried to reduce it further into five insights and one key takeaway which I’ll just tell you what that is because then we can unpack that according to what you find most compelling.

Irene Berkowitz:
So we found that YouTube in addition to facilitating the rise of a new group of Canadian creative entrepreneurs. That’s 160,000 of them by our estimation. They are inventing totally new forms of popular content. Youtube has also resulted in significant outcomes with respect to those creators with respect to diversity, employment, domestic popularity, global export, Canadian creators lead the platform and global access. And furthermore YouTube has achieved these results without requiring either the transfer of IP rights from creators which as you know is a highly controversial aspect the legacy system and largely in the absence of public funding and its associated costs which has been pegged by the former chair of the CRTC at 4 billion dollars per year.

Irene Berkowitz:
The other thing is that we ask Canadian consumers about Canadian content. I think that there’s a lot of discussion about Canadian content but I’m not sure many studies have actually asked Canadians whether what they think what they’re wnd what what their practices are around it. So 90 almost 90 percent I think was 88 percent of Canadian consumers do not search for Canadian content on YouTube and in our almost 9000 qualitative responses from these surveys because both surveys had a few qualitative questions, the consumers made it very clear why: they’re searching for content that either helps them learn something, they’re searching or they’re searching for the content they want and they don’t really care where it comes from.

Michael Geist:
It’s interesting consumer data and preference can come come back to some of the public’s perspective on that. I want to drill down focus a bit more intently on the creator side of course because that’s where so much of that policy for better or worse is focused when we start thinking about Cancon and cultural policy, although one would have thought that you’d be interested in what Canadians themselves are interested in. But let’s try to better understand the creator side because the hundred and sixty thousand creators is a is a big number. Of course the question that immediately follows for many in the sector would be well how many of those people or are able to generate some revenue coming out of that. If not as a full time career at least as a source of revenue. Do you have some sense of the data in terms of how many are sufficiently successful to be part of the partnership programs that then lead to the prospect of revenue.

Irene Berkowitz:
Yes. That’s obviously very very important. Mindful that YouTube is a startup culture that about 25 percent or around 40,000 Canadian creators are what’s called eligible for monetization which is means they can join they are eligible to join the partner program, which means around a thousand subscribers a certain amount of watch time and obeying and those strikes against them in terms of their adherence or obeying the community guidelines that YouTube sets.

Michael Geist:
We see large numbers of Canadian creators succeeding on YouTube. But the report does a really nice job of highlighting some of the major success stories some of some of them were household names but a bunch. Unless you’re I guess in this space aren’t necessarily so but they’ve got enormous numbers of views and presumably generating some significant revenues. Could you tell us a bit about some of the YouTube stars as it were that come out of Canada.

Irene Berkowitz:
Oh I would love to. I’m actually glad that I didn’t meet these people in person until the launch of this report because anyone would fall so in love with their exuberance and energy that I wouldn’t have been able to maintain my scientific objectivity during the preparation of the research. Well you know someone like Shawn Mendes or Justin Bieber. These are household iconic names in Canada. What everyone. What people don’t know is someone like Shawn Mendes actually learned how to play the guitar on YouTube. There’s another household name is Lily Singh, who started as a funny and charming girl from Scarborough who is now made it to the top of royalty in the legacy entertainment system who just recently has been named as the host first only female host of a late night show on NBC. There is Lewis Hilsenteger.

Lewis Hilsenteger:
Today is the day that the smart phone game changes. In front of me I have the future and it’s in the form of the Find x. This thing has been top secret and for good reason because it changes everything.

Irene Berkowitz:
Unbox therapy is the top technology platform on the technology channel excuse me on the entire platform. There’s Gigi Gorgeous.

Gigi Gorgeous:
My camera became my therapist and YouTube became my diary where I would post everything. If your parents don’t get you, if your friends think you’re weird, I love you and I want you to be exactly who you want me to be.

Irene Berkowitz:
Who is the top transgender transgender creator on the entire platform. There are so many creators with billions of views such as How to cake it.

How to cake it:
Welcome back to how to take it. I’m Yolanda and this week I have taken a juice box a giant juice box that you can take back to school.

Irene Berkowitz:
Which is a lifestyle platform started by a group of Canadian creators whose frankly their show was was canceled and Yolanda Gallop has become a top creator on the channel. There’s fascinating export stories. The the icing artist.

Laurie Shannon:
My name is Laurie and you’re watching icing artists.

Irene Berkowitz:
By Laurie Shannon and her husband they were both cabinet makers. They literally learned how to decorate cakes on the platform. She started this channel and she discovered through data analytics that on YouTube studio that she had a lot of audience in the Middle East and realized well she’ll take away herself talking and she’ll add subtitles which is easy to do on on on the platform that’s that’s also enabled. And she saw her audiences go from 30 her subscribers go from 30 thousand to a million. Now she has three million. Her husband and her have both quit their day jobs. We see this a lot and they are supporting their family from YouTube. There VanossGaming who probably is Evan Fong from Richmond Hill.

Evan Fong:
What is up guys. So today I have some Ghost Recon breakpoint gameplay and I’m playing with my friends wildcat Mu and asers.

Irene Berkowitz:
Who launched his show on gaming. I don’t know if the gaming on YouTube isn’t gaming, its channels that what its videos that you’re watching other people playing video games. It’s gigantic. Anyway he has billions of views and he is actually earning. He had earned to 17 million in 2018 making him the seventh highest paid YouTube star ever. The list could go on. What we found in terms of the export data was that Canadian creators as I said earlier not only lead the platform in export but they have actually transformed historic disadvantage which is being next to the US if not a key motivator for the entire policy framework for the 20th century. They have transformed that into a remarkable competitive advantage and they are monetizing that you know like crazy.

Michael Geist:
And I’m assuming that on the monetization side and I know that your report indicates that while some are generating less than ten thousand dollars you’ve got a sizable percentage of those that are able to generate revenue generating a hundred thousand dollars or more. It’s the millions of course are a small number of people. But nevertheless people literally being able to to to make this their full time occupation, to live off their creativity this ways is an amazing thing to see. And the report talks about not just about money that gets generated through advertising, but brand deals, sponsorship, appearances, book deals. All of these become part of the norm for some of the creators that find for that establish a global presence.

Irene Berkowitz:
One hundred percent in fact. Thank you for for connecting those dots because we started out with the revenue sharing and exactly as you just said we found that it’s the norm even very early on, people are using a variety of highly creative variety of revenue streams to to to monetize their work on YouTube for instance. It’s not all about subscriber numbers sometimes. We came across a channel I won’t I won’t violate privacy but that only has 50,000 subscribers which doesn’t seem a lot compared to the hundreds of millions if not billions for for our other creators. But they are supporting a family of four because the advertising, the type of advertising that that this channel appeals to family advertising: Home Depot, Wal-Mart, Structure, are high paying advertisers. And so there are many many routes to success on YouTube and these the level of excitement about their work is positively contagious.

Irene Berkowitz:
So I mean, overall for me, the key takeaway was I wouldn’t say that our study is RCT or randomized clinical trial of what would happen in the absence of protection or support but you couldn’t do that anyway. But it is somewhat sort of like that because here we have Canadian creators sort of let loose naked into the globe into a global platform. And if it comes down to whether protectionism or competition builds strength in terms of content that is popular. Well it seems like we have an answer because Canadian creators truly are thriving on YouTube.

Michael Geist:
I’m glad that you know you made that connection because that’s really what we’re talking about law and policy. That’s kind of in a sense the next question. Once you’ve managed to canvas the waterfront of what’s taking place in YouTube and the report goes into far more detail on on a lot of these kinds of issues uncovers this thriving ecosystem with thousands of Canadians succeeding. The question if you’re on the broadcast telecom review panel or government or policymaker or someone who is concerned with what cultural policy looks like, is whether or not you need policies that are responsive to this. What sounds like you’re suggesting is that we’ve seen this kind of success really in the absence of those sorts of policies this is in a sense that opportunity to compete on the global stage and doing so without new kinds of taxes or mandates, but rather doing so by the kind of creativity and finding an audience.

Irene Berkowitz:
Well finding an audience. A case a strong case could be made that for the 20th century it was building an industry on the broadcasters side and on the independent production side and those all those quotas and regulation. I mean clearly the framework was brilliant. Beginning with you know the sort of I call the two the two pillars are really simultaneous substitution, which delivered 30 percent of a boost to the broadcasters, and then on the other hand we have the 30 percent investment and then we have the independent production community that is sort of anchored by the point system which took four years. I’ll just say that those were 20th century goals in the 21st century, that’s not the challenge. The challenge is the market is global.

Irene Berkowitz:
I did want to make sure to ask whether or not you asked about regulation. So if we could see how this has succeeded in the absence of regulation did you ask those that are actively engaged in this whether or not they pay attention to these policy issues, whether they think regulation is needed. They haven’t been a vocal part of the policy process to date, but is this something that they think very much about or they’re just busy creating.

Irene Berkowitz:
I think that what we did at we did ask one question of creators and we also asked about it asked it to consumers. We were careful not to take up too much time in the surveys with too many of these questions because as you just indicated most people in the industry and in the world just want to pay their mortgage, get through their day and they’re not thinking about these issues the way you and I might as a giant fascinating puzzle that needs to be rejigged for the 21st century. But we did ask. We did ask creators that whether they’re content if their content was promoted in Canada but that meant it was demoted in other countries which would which would be the type of thing that would happen because the platform is global. They what how this would impact their experience. And the answer was overwhelmingly negative because they depend on these larger markets to fund their Canadian creativity and they depend on these audiences.

Irene Berkowitz:
We also ask consumers about whether they thought the government should have a role in in regulating what they can see on YouTube and what they felt was that sixty five percent of Canadian consumers value YouTube as the best place to watch the same video as anyone else in the world. And a majority also believe that also 65 percent no government or other organization should determine what they can watch on YouTube. Now we asked that in the context of YouTube. We didn’t ask it in the context of protections around harmful content defined you know in many different ways. So I want to be clear about that, but it seems that you know in terms of YouTube’s ability to leap the walled garden, Canadian consumers and Canadian creators are quite protective of their right to access the global market.

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

Irene Berkowitz:
Thank you so much.

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 19: Canada’s Quiet Success Story – Irene Berkowitz on the Canadian YouTube Creative Sector appeared first on Michael Geist.

Open banking, which is designed to allow customers to easily share data held by their banks with third parties, has been attracting considerable attention in recent months. The Standing Senate Committee on Banking, Trade and Commerce conducted a study on open banking this spring with a report released in late June. I was invited to appear before the committee to discuss regulatory concerns, particularly with respect to privacy and data protection. Given that it is a holiday week in Canada for Canada Day, this week’s podcast adopts a different approach with excerpts from that appearance, including my opening statement and the ensuing discussion with several senators on the need for regulatory reforms.

The podcast can be downloaded here and is embedded below. A transcript of the appearance can be found 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:

Senate Report – Open Banking: What it Means for You
Transcript of Senate Standing Committee on Banking, Trade and Commerce

Credits:

Senate Chamber, June 19, 2019
Open Banking, What Is Open Banking
PwCCanada, Canadian Banks: CEO Spotlight with Darryl White, CEO of BMO Financial Group

The post The LawBytes Podcast, Episode 18: Open to Open Banking?: My Appearance Before the Senate Committee on Banking, Trade and Commerce appeared first on Michael Geist.

The Broadcast and Telecommunications Legislative Review Panel released its interim report – What We Heard – yesterday alongside the long-overdue release of the written submissions to the panel. The report doesn’t contain any surprises given that the various positions on key telecom and broadcast issues are well known. While the panel is set to deliver its final report in January 2020, there is increasing reason to suspect that the government (if re-elected) has already decided what it wants to do.

The government’s position on telecom can be found in its telecom policy directive to the CRTC, which prioritizes competition, affordability, consumer interests, and innovation. The policy directive, unveiled after the submissions to the BTLR, confirmed support for entry of new competitors such as mobile virtual network operators. That rendered many submissions from the large telecom companies irrelevant since they devoted many pages to convince the panel to support a facilities-based competition model. Since the government has rejected that approach, that issue is largely resolved.

Yesterday, Canadian Heritage Minister Pablo Rodriguez signalled that the government’s position on the major broadcasting – Canadian cultural issue is also set. For months, government officials have argued that large Internet companies need to contribute to Canadian content creation, thought it has avoided specifying precisely how. For example, former-Canadian Heritage Minister Melanie Joly said:

All players in the system must contribute. So if you’re part of the system, you have to contribute, and there’s no free ride. But that can’t be at the expense of Canadians.

The government struggled to reconcile that position with costs to Canadians as Innovation, Science and Economic Development Minister insisted that “a critical issue is making sure Canadians do not pay more.”

With an election weeks away, the government position seems to have shifted. Soon after the release of the BTLR interim report, Rodriguez tweeted:

By suggesting that the Liberals are ready to commit to legislative reform that would require Internet companies to create and promote Canadian content, the government has seemingly shifted its policy approach well ahead of the final BTLR report. All of which begs the questions: with firm positions on both telecom and broadcast, what is the point of the BTLR if the government has already decided what it intends to do?

The post What is the Point of the Broadcast and Telecom Legislative Review if the Government Has Already Decided What It Intends To Do? appeared first on Michael Geist.

My recent series reviewing the Industry Committee’s copyright review (process, evidence, witness balance, citation) was about more that just why the decision to ignore the Canadian Heritage committee study on artist remuneration was justified. The series provides a data-backed assessment of the quality of the consultation of the respective committees, which is inextricably linked to their final recommendations. The better process is important because when comparing the recommendations from the two committees, the Industry committee consistently provided deeper analysis even in areas where there was agreement. The better analysis is not a coincidence: better process generates better policy and the Industry committee engaged in broader consultations in which it heard both from more creators and more users than Heritage.

For example, the music industry is promoting its value gap claims today with Heritage committee chair Julie Dabrusin in Toronto.  The industry played a prominent role at both committees: ACTRA, ADISQ, Artisti, CMPA, CMRRA, CPCC, Guilde des musiciens et musiciennes du Québec, Music Canada, Professional Music Publishers’ Association, Re:Sound, SOCAN, and SODRAC all appeared as witnesses before both committees. Moreover, groups like CIMA or artists such as Bryan Adams, who only appeared before Heritage, provided briefs to INDU that were cited in their report. The Industry committee also heard from many witnesses in the music industry who did not appear before Heritage such as Music Nova Scotia and Third Side Music as well as many more individual musicians including David Bussieres, Denis Amirault, Luc Fortin, and Pierre Lapointe.

With a broader Industry committee consultation (it heard from many more commercial and individual users as well), the result was more depth on key issues. There were several areas of general agreement between the two committees with respect to the music industry. First, the most obvious source of agreement was that both committees recommended earlier reversion rights for creators, reflecting concern about the imbalance between artists and intermediaries such as record labels. Bryan Adams led the fight for a change, which the Heritage committee adopted. The Industry committee downplayed industry claims about artists’ inability to exploit their works, ironically citing Music Canada’s Graham Henderson:

The notion that providing a termination right to creators would somewhat hinder the economic exploitation of copyrighted content suggests that creators lack entrepreneurship, but like Graham Henderson, President and CEO of Music Canada, said, ‘every musician is a businessman, now more than ever.’

Second, the two committees both recommended new limits on the radio royalty exemption in the Copyright Act. Both committees want the exemption maintained for independent and community-based radio stations, but an end to exemptions that ultimately benefit large media companies.

Third, the committees also declined to support expanding the private copying levy, either with new levy or tax on digital devices or by way a new funding program for the industry. The Heritage committee mentions the industry proposal but does not adopt it, while the Industry acknowledges the conflicting evidence and settles on further study of the issue.

Yet more striking are the areas where the committees do not agree. The Industry committee copyright review expresses concern about copyright term extension, recommending a registration process to mitigate against the harm. In a comment that says far more about the limits of the study and its approach than the issue, the Heritage study says “no witnesses expressed outright opposition to extending of the copyright term from 50 to 70 years after death” (Bryan Adams actually did oppose term extension in his written submission to the committee). A comparison of the analysis shows one committee heard from a spectrum of perspectives and understood the complexity of the issue, the other did not (or chose to ignore it).

The same is true for website blocking and other efforts to increase liability and regulation for intermediaries and online services. The Heritage committee embraces new regulation, while the Industry committee engages in lengthy analysis that warns “no entity is entitled to safe harbour exceptions.” However, having heard evidence about the negative impact of eliminating safe harbours, the committee seeks to ensure that exceptions “reflect the rights of rights-holders and users alike.”

In fact, even on a core music industry issue – the definition of a sound recording – the difference in analysis is notable. Heritage recommended changing the definition to allow sound recordings used in television and film to be eligible for public performance remuneration with Music Canada arguing the proposal had received support from artists, producers, and rights holder organization. But Industry rejected the change, fearing that reforms would result not in upfront payments but rather the potential for royalties linked to cinematographic works. The committee said it was:

wary of recommending any measure that would compromise payments to performers, especially at a time when Canadian musicians and singers are among the few members of the music industry who do not benefit from this industry’s growing revenues

The approach again illustrates the difference between the two committees. Heritage simply adopted the music lobby approach, while Industry grappled with more data points from more stakeholders to arrive at a more sophisticated analysis of the likely outcome of the policy reform.

The Industry committee copyright review ultimately rejected most of the music industry’s proposals, not because the committee “despises creators” (as one group claimed), but rather because it engaged in a more comprehensive consultation leading to better data and better analysis. The gap between Industry’s inclusive approach and Heritage’s more limited approach is felt throughout the two reports, providing a vivid illustration of the benefits of inclusive policy processes that encourage and listen to a broad range of perspectives.

The post Better Data, Better Results: Comparing the Gap Between the Copyright Review and Heritage Study on the Music Industry’s Policy Proposals appeared first on Michael Geist.