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“history begins with geology”

Fair Duty by Meera Nair - Tue, 2016/09/20 - 22:21

Those were Margaret Atwood’s words as she gave the 2016 CLC Kreisel Lecture at the Winspear Centre in April of this year. Broadcast this past Friday via CBC’s radio program Ideas, the lecture—in content, form, and delivery—exemplifies, yet again, why Ms. Atwood is both a national and international treasure. If contemporary politics did intrude into her account of some of the events which shaped Canada’s literary landscape, I have to reach for every shred of temerity in my possession to point it out. But it needs to be done.

When explaining the origins of The Writers’ Union of Canada, Ms. Atwood said:

[there was] no-one to represent their interests, the interests of writers, as opposed to the interests of publishers, readers and libraries. The latter three felt in their hearts that simply being read was honour enough for a writer, no money need be expected. The writers on the other hand took the quaint position that what they did was work and they ought to be remunerated by those making use of it. Plus ça change. Those taking the view that writers’ work is like air, to be had for breathing, now include many internet pundits, some former members of our recently departed government, and a great many universities – those bastions of fair dealing.

Ms. Atwood paused, and some nervously–charged laughter came forth from the audience. The Kriesel Lecture takes place under the auspices of the Canadian Literature Centre, established at the University of Alberta in 2006; some (perhaps many) of those in attendance were likely to be fair dealing practitioners.

Ms. Atwood is, of course, entitled to hold and express any opinion she chooses. But the strength of her reputation and influence requires that some clarification follows where it is needed. Listeners present at the Winspear Centre that evening, or receiving Friday’s broadcast, or those who might yet encounter the Ideas website, may come away with the impression that fair dealing is a morally and legally reprehensible ruse that enables universities to deny remuneration to copyright owners with impunity. The truth is far more prosaic, as truth tends to be. From the days of its codification into law in 1710, copyright has never been a grant of absolute control; it is a system of limited rights. Fair dealing is one such limit; nothing more, nothing less.

The limits upon copyright ensure that creativity, innovation, and civil society may flourish, an objective which also happens to be the raison d’etre of universities. Universities handle fair dealing with care and pay fulsomely for the resources they consume. Generally speaking, limits are the mode of entry to a space where one might hope to emulate achievements of the past. All fair dealing can do is maintain the potential for a small realm of unauthorized use, legitimate under the law, where independent expression of thought may be cultivated. No doubt, some would prefer to see copyright function in absolute form, to the exclusive benefit of current copyright owners. Be that as it may, wishing does not make it so. The system of copyright must also nurture an author yet to come.

What I prefer to reflect on, to savour, is Ms. Atwood’s beautiful presentation of some of the people who contributed to the development of Canadian literature, and their efforts to build audiences and infrastructure for reception and publication of their work. The presentation itself was titled, The Burgess Shale: The Canadian Writing Landscape of the 1960s. Ms. Atwood explained that burgess shale is a particular geological formation found in Western Canada and that “history begins with geology. Geology determines what you can grow and extract, where you can build houses and so forth.”

Ms. Atwood detailed events of the 1960s and 1970s which created an environment conducive to Canadian letters. To obvious audience delight, she began with her own life story. The skills needed for the 1960s were honed in the 1950s, a decade Ms. Atwood described as “robust amateurism—acting one moment, painting sets the next.” The capacity to multi-task served that generation well, “when it was time for a bunch of kids who didn’t know what they were doing to start new publishing companies in Canada which we did in the 1960s.” Due to demographics (the Depression and WWII had taken its toll on birth rates), that generation’s services were in need: “… we stepped into a relative emptiness; we sought to fill it. We didn’t see why not.” Needs that were met creatively to say the least (the stories about the All-Star Eclectic Typewriter Revue and the Pornography Project are priceless; I will say no more than to recommend you listen for yourselves.)

But the limitations of an hour could not allow Ms. Atwood to convey a deeper geological survey of events prior to the 1940s. She remarked that Canadian literature had no presence in her early life; while an occasional Canadian creation might have appeared among the school-imposed diet of Hardy, Shakespeare, Eliot and Keats, “we weren’t taught Canadian literature as a subject in school.” A key difficulty for a Canadian author was the lack of literary infrastructure, a viciously circular problem. Canadian writers needed readers; without distribution, readers could not be had, and, without readers, distribution could not be entertained. But as to how this situation came about, that bedrock had solidified a century earlier.

The root cause was Canada’s inability to develop its own publishing industry in the 19th century. Caught between British Imperialism and American capitalism, Canadian publishers were prohibited from reprinting the bestsellers of the day, meaning those of prominent English authors, while American competitors were free to reprint those same works and capture the Canadian market. Canadian governments, of both Colonial and Dominion stature, laboured for years to develop an equitable copyright arrangement that would provide local publishing firms the option to supply their own markets and build their own capacity, by reprinting British works with permission and provision of royalties. The logic of the arrangement was consistently set aside by the British Crown, through invocation of the sanctity of copyright and the imperative of Empire. This, despite the fact that the copyright demanded of Canada did not serve Canadian writers. British copyright was to be respected in Canada, but Canadian writers, unless published in Britain, were not afforded any such protection.

British intransigence was due, not merely to slavish attention to the word “copy.” What Britain longed for was a reciprocal copyright arrangement with the United States, and Canada was the bargaining chip. Eventually reciprocity did come, but strictly on American terms: publication must use plates set in the United States, and occur prior to, or concurrent with, publication elsewhere. (Notably, the proposed Canadian offer was far more generous to the British; the proposal allowed delayed publication in Canada via imported plates.) Added to these conditions that ensured continued prosperity to American reprinters, the United States sought assurances from Britain that Canada would not interfere in American distribution in Canada.

Details of this period of time are covered in my work, “The Copyright Act of 1889—A Canadian Declaration of Independence, Canadian Historical Review (2009). For a complete monograph on the events of this time, Eli Maclaren’s work, Dominion and Agency – The Structuring of the Canadian Book Trade, 1867-1918 (2011) is stunning. Painstakingly researched, he confirms that the manner in which copyright law was applied to Canada diminished any ambition to build or support independent publishers of original Canadian material.

Even after Canada achieved some measure of copyright autonomy through amendments in 1900—when Canadian publishers could finally reproduce foreign work in conformity with the copyright owner’s wishes—the benefits of the Act principally accrued to established American publishers via branch-plant operations in Canada. Maclaren describes the dual-objectives of Macmillan Company of Canada as “[to] distribute the trade books of the London and New York houses to the Canadian market and publish textbooks for Canadian schools (p.123).” The omission of original publishing was not an oversight, original publishing was strictly frowned upon. When Frank Wise, president of the Canadian operation, requested that some manner of capital be kept available for publication of promising works, the head office made its displeasure quite clear:

… we should be more than a little surprised and displeased if you embarked upon any publishing venture of importance without consulting us. … The only kind of publishing which ought to originate in Canada is the production of school books authorized by one or the Provincial governments (p.124).

It was against this legacy that Ms. Atwood and her peers laboured. That they are to be congratulated is more than evident. But the congratulations should not eclipse what we know now—the fact that Canadian literature began even before Canada, exists during Canada and may safely be expected to endure in any Canada to come. First Nations’ culture has relied on story-telling since time immemorial, early colonists’ writings left a mark we feel even today (Susanna Moodie and Catherine Parr Trail come to mind) and even when fleeing Canada in search of markets, Canadian literature took shape under the themes of regionalism, as Nick Mount expertly uncovers in When Canadian Literature Moved to New York (2005). Mount does not valorize the writings of all Canadian expats, but lauds the importance of the Canadian community of writers, editors, and publishers that formed in New York to the advantage of Canadian writing.

It is the aspect of community that permeated Ms. Atwood’s recollections and was present in another address given earlier this year. As a keynote speaker at the Jaipur Literary Festival she invoked the theme of community on both global and individual scale. And she reminded listeners of the most intrinsic element of the community that underwrites literary effort:

Here we all are to celebrate books and authors and writing and yes, reading. Writers and readers are joined at the hip. Every act of writing presupposes a reader, even if it is your own secret journal and the future reader is you… Platforms may be changing but thanks to the Internet, reading has become more possible for more people than at any other time in history. … There is a lot more access to literacy than there used to be. …

With thanks to Margaret Atwood, and a great many universities. Those bastions of fair dealing.


Behind the Scenes of the Digital CanCon Consultation: No Netflix Regs, CRTC Review or Copyright Overhaul

Michael Geist Law RSS Feed - Fri, 2016/09/16 - 10:28

Canadian Heritage Minister Melanie Joly launched her review of CanCon rules last spring by stating that “everything is on the table.” The pre-consultation revealed a sharp divide between industry and the public with industry stakeholders emphasizing more public and government support and the public focusing on efforts to promote Canadian content.

This week I obtained government documents under the Access to Information Act that provide some interesting insights in the behind-the-scenes process that brought a major government consultation from concept to launch in a matter of weeks. The roughly thousand pages show Canadian Heritage officials worked long hours to develop timelines, consultation documents, communications plans, and advisory committees. Given the time constraints, it is an impressive effort.

The documents also highlight internal thinking on several major issues, including Netflix regulation, the CRTC’s Let’s Talk TV rulings, and copyright. On the Netflix tax, the documents indicate that officials downplayed the possibility of legislative reforms for broadcasting before the consultation was even launched. Part of the department’s communication plan includes the following Q&A on Netflix regulation:

Some have been calling for changes to the Broadcasting Act – including to require OTT players like Netflix to be regulated by the CRTC. Do you see moving in that direction as a potential result of these consultations?

a. In my view, legislation is not the starting point. It’s one tool that governments have used to support cultural policy objectives.
b. The starting point is ensuring that we strengthen the creation, discovery and export of Canadian content in a digital world.
c. When it comes to tools like legislation, you’ll see that our questionnaire asks Canadians and stakeholders what tools they think will be most effective in the longer-term.
d. I don’t think we should assume the tools developed by previous generations will be the best ones for the future.
e. Netflix, Shomi, Crave – these are all great platforms. A key issue is the discovery of Canadian content on these platforms and how we can help creators ensure their content is found on platforms such as these.

In the weeks that followed, Joly indicated that there will be no Netflix tax (a position consistent with the consultation document released this week). The reference to not assuming that tools developed by previous generations working for the future is particularly notable.

The internal documents also reveal that officials do not plan to use the consultation process to review or overturn the CRTC’s Talk TV rulings.  Those have been controversial within the Canadian broadcast and creative communities, but the communication plan is clear on the issue:

Many of your cultural stakeholders in the broadcasting sector are still reeling from the CRTC’s LTTV decisions. Will the consultations look into action that can be taken to reverse these decisions?

No. These consultations are focused on the future and ensuring our cultural sector navigates the digital shift successfully.

The role of copyright in the consultation is also interesting. When the consultation was first reported in the Globe, the inclusion of copyright caught many by surprise given the planned copyright review in 2017.  While that generated some concern, the reality is that copyright was not even included in the initial government documents. Despite weeks of drafts, no one seemed to notice that the cultural toolkit made no reference to the Copyright Act.

Days before the launch, adding the Copyright Act became an issue with a request to the Joly’s chief of staff to amend the toolkit diagram.

The change was made along with a communication plan addition that also downplayed the role of copyright in the consultation:

Will these consultations replace the Parliamentary Review of the Copyright Act which will take place in 2017?

No. The Copyright Act includes a requirement for a review of the Act by Parliament every five years to ensure that it remains responsive to a changing environment. The Parliamentary review will be launched in late 2017.  The objective of the present consultations is to hear from Canadians and stakeholders on the role of the federal cultural policy toolkit plays in strengthening content creation, discovery and export in a digital world.

There are still months left in the consultation but the internal documents shed new light on the government’s thinking before its formal launch and hint at where the consultation is likely to go as it nears the stage of recommendations and policy formulation later this fall.

The post Behind the Scenes of the Digital CanCon Consultation: No Netflix Regs, CRTC Review or Copyright Overhaul appeared first on Michael Geist.

No Netflix Tax & No New Money: Reading Between the Lines of the Digital CanCon Consultation

Michael Geist Law RSS Feed - Wed, 2016/09/14 - 11:56

Canadian Heritage Minister Melanie Joly’s release of the Canadian content in a digital world consultation is likely to spark renewed demands from industry stakeholders for more money from two main sources: unregulated Internet companies such as Netflix and the government. As I noted in my first post on the consultation release, there is a significant divide between the industry and the public on the issue.  Industry stakeholders emphasize more public and government support, while the public is focused on efforts to promote Canadian content.

The government will surely wait for the consultation to close before it adopts firm positions, but the new consultation paper makes it clear that not everything is on the table. In fact, the consultation adopts several notable policies and sends some signals about future funding sources.

First, it leaves little doubt that the government opposes new regulations on online video providers. The consultation states:

To respect how Canadians want to consume and interact with digital content, we are committed to net neutrality – the idea that a public information network like the internet is most useful if all content, sites, and platforms are treated equally. The way forward is not attempting to regulate content on the Internet, but focusing on how to best support Canada’s creators and cultural entrepreneurs in creating great content and in competing globally for both Canadian and international audiences.

Strong support for net neutrality and the avoidance of Internet regulation means that proposals to exempt Canadian content from data caps or mandate certain rules for online providers are off the table. In fact, if Canada moves forward with the TPP, it will have also agreed to a ban on limitations on access to foreign video providers and no discriminatory payment requirements. In other words, no Netflix tax.

Second, the government uses the consultation to suggest where more money may come from and it is not from Canadian tax dollars. It states:

Alongside the historic investment of $1.9 billion in arts and culture announced by the Government in Budget 2016, we need to modernize how government supports the creation, discovery and export of Canadian content.

By framing the consultation as an initiative that sits alongside already-announced funding, it seems unlikely that more funding will be viewed as the answer. Indeed, the government is pretty clear about where it thinks the money will come from: foreign markets. The consultation is littered with references to the issue:

Grabbing a bigger piece of the global pie is critical to building a strong and viable creative sector

With global markets increasingly open to Canadian businesses, capturing a greater slice of the global pie is one of the ways that we can support Canadian creators back home.

Export and international audiences will be critical to the future sustainability of Canada’s cultural sector and its economy. Partnerships and foreign financing are key.

When we collaborate across cultural sectors and with foreign partners, we create new opportunities for our creators to showcase their talents and find new pathways to audiences around the world.

What might this mean? A guess might be that the CRTC’s recent controversial decision on the definition of CanCon might be the tip of the iceberg as the government moves to open its funding programs to greater foreign participation, shifts more dollars toward promotion, adds support for new digital platforms, and continues to re-examine what qualifies as a Canadian production. Those reforms would be consistent with a policy document that refers to “innovation” 16 times, far more than the handful of references to funding and financing.

The post No Netflix Tax & No New Money: Reading Between the Lines of the Digital CanCon Consultation appeared first on Michael Geist.

Same As It Ever Was: The Gap Between Public and “Stakeholder” Views on Canadian Content

Michael Geist Law RSS Feed - Tue, 2016/09/13 - 10:35

Canadian Heritage Minister Melanie Joly launched the next phase of her consultation on supporting Canadian content in a digital world this morning, but the results from the first “pre-consultation” phase – an online poll of the public and stakeholders – already points to the policy challenge faced by the government. The poll received more than 10,000 responses with participants asked to identify the major barriers and challenges for Canadian content. The perspective of the public and stakeholders (I place “stakeholders” in quotation marks in the title because all Canadian stakeholders) are strikingly different, with the public citing the challenges in finding and promoting content and the stakeholders seeking more money.

For example, the survey asked participants to identify “the most urgent challenges facing the culture sector in the creation, discovery and export of Canadian content in a digital world.” The top answer for the public was foreign competition and making content stand out online. In other words, the public says there is an incredible array of choice led by large foreign providers and that finding Canadian content is not easy.  Industry stakeholders do not see it that way, however.  Their top challenge – by far – was creator remuneration followed by how public funding is allocated. Foreign competition and making content stand out online rank further down the list.

The divide is similarly apparent when asked about the most urgent barriers. The public says there isn’t enough quality content produced. Stakeholders blame everyone else – their top two barriers are consumers (who they say expect free or low cost content) and the government (they say their programs have not kept pace).

Given these views, the proposed solutions also diverge significantly. The public says the most effective tool to address the issue better efforts to promote and brand Canada abroad. Stakeholders want more money as “enhanced public support for creators” and “direct government support to creative industries” – both essentially more tax dollars for the industry – rank as the top two solutions.

Joly’s latest consultation talks about looking confidently to the future and rightly notes that “the way forward is not attempting to regulate content on the Internet.”  The public seems largely on board as their responses focus on the need to better promote Canadian content so that it is easier to find. The industry, on the other hand, seems content to use the consultation to seek more public funding, suggesting that the technologies may have changed, but using the policy process to lobby for more tax dollars remains the same.

The post Same As It Ever Was: The Gap Between Public and “Stakeholder” Views on Canadian Content appeared first on Michael Geist.

Not a Free for All: Canadian University Libraries Spending Hundreds of Millions on Licensing

Michael Geist Law RSS Feed - Thu, 2016/09/08 - 09:59

As students across Canada head back to school this week, the Canadian Association of Research Libraries (CARL), which represents 31 member libraries, issued a reminder that Canadian education spends hundreds of millions of dollars every year on content licensing. Access Copyright and the publishing community have tried to paint the Canadian situation as a free-for-all, but the reality is that educational institutions, libraries, and students are still buying books and licensing content. In fact, recent U.S. data shows that textbook costs are increasing far faster than any other education cost.

The CARL release states:

The 31 member libraries of the Canadian Association of Research Libraries (CARL) spent $293 million on information resources in 2014-15, demonstrating a clear commitment to accessing print and digital content legally and rewarding content owners accordingly. Universities are actively engaged in outreach to their faculty, staff, and students, educating them on their rights and responsibilities under the Copyright Act and ensuring that uses of material under copyright fall well within the provisions of the law. Where educational uses are more substantive and therefore fall outside of fair dealing, the content is either purchased to be added to licensed collections, or rights clearances are obtained and royalties are paid for these uses. Trained, knowledgeable library staff support these activities.

Some voices in the publishing community and associated lobbyists have stated in the media that the education market has evaporated as a result of users’ fair dealing rights. This is inaccurate. Universities continue to buy and to license access to published works, at substantial cost, using public funds and student tuition dollars.

The hundreds of millions of dollars being spent on licensing highlights again why the Canadian publishing industry claims about fair dealing are simply false. Indeed, the best study on the issue, Reading the Tea Leaves, which was prepared for Creative BC and the Association of Book Publishers of British Columbia, characterizes the challenge for educational publishing as follows:

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

As CARL rightly concludes, “we believe that fair dealing in the Copyright Act is serving its intended purpose: enabling fair portions from works of creativity or scholarship to be drawn upon in learning environments, thereby stimulating innovation and the creation of new research and new knowledge.”

The post Not a Free for All: Canadian University Libraries Spending Hundreds of Millions on Licensing appeared first on Michael Geist.

Routing Detours: Can We Avoid Nation-State Surveillance?

Freedom to Tinker - Tue, 2016/08/30 - 18:44
Since 2013, Brazil has taken significant steps to build out their networking infrastructure to thwart nation-state mass surveillance.  For example, the country is deploying a 3,500-mile fiber cable from Fortaleza, Brazil to Portugal; they’ve switched their government email system from Microsoft Outlook to a state-built system called Expresso; and they now have the largest IXP […]

Differential Privacy is Vulnerable to Correlated Data — Introducing Dependent Differential Privacy

Freedom to Tinker - Fri, 2016/08/26 - 09:57
[This post is joint work with Princeton graduate student Changchang Liu and IBM researcher Supriyo Chakraborty. See our paper for full details. — Prateek Mittal ] The tussle between data utility and data privacy Information sharing is important for realizing the vision of a data-driven customization of our environment. Data that were earlier locked up […]

Language necessarily contains human biases, and so will machines trained on language corpora

Freedom to Tinker - Wed, 2016/08/24 - 16:32
I have a new draft paper with Aylin Caliskan-Islam and Joanna Bryson titled Semantics derived automatically from language corpora necessarily contain human biases. We show empirically that natural language necessarily contains human biases, and the paradigm of training machine learning on language corpora means that AI will inevitably imbibe these biases as well. Specifically, we look at […]

Security against Election Hacking – Part 2: Cyberoffense is not the best cyberdefense!

Freedom to Tinker - Thu, 2016/08/18 - 09:00
State and county election officials across the country employ thousands of computers in election administration, most of them are connected (from time to time) to the internet (or exchange data cartridges with machines that are connected).  In my previous post I explained how we must audit elections independently of the computers, so we can trust the […]

Security against Election Hacking – Part 1: Software Independence

Freedom to Tinker - Wed, 2016/08/17 - 09:27
There’s been a lot of discussion of whether the November 2016 U.S. election can be hacked.  Should the U.S. Government designate all the states’ and counties’ election computers as “critical cyber infrastructure” and prioritize the “cyberdefense” of these systems?  Will it make any difference to activate those buzzwords with less than 3 months until the […]

Canada’s Innovation Strategy Must Stop Tech Trolls

Michael Geist Law RSS Feed - Tue, 2016/08/16 - 10:07

Developing a national innovation strategy has been a top priority of Navdeep Bains, Canada’s Minister of Innovation, Science and Economic Development. Bains has created an expert panel, held meetings across the country, and launched a public consultation in the hope of identifying policies that might enhance Canada’s lacklustre innovation record.

While some have used the consultation to call for expanded intellectual property rules, the reality is that Canada already meets or exceeds international standards. The more pressing innovation issue is to address the abuse of intellectual property rights that may inhibit companies from innovating or discourage Canadians from taking advantage of the digital market.

My technology law column (Toronto Star version, homepage version) notes the benefits of an anti-IP abuse law could be used to touch on the three main branches on intellectual property: patents, trademarks, and copyright.

Leading technology companies have issued repeated warnings about patent trolling, which refers to instances when companies that had no involvement in the development of a patent seek payments from legitimate companies by relying on dubious patents. Patent trolls have a negative impact on economic growth and innovation with millions spent on unnecessary litigation.

Groups have urged the Canadian government to enact reforms to “limit the ability of non-practicing entities [a euphemism for patent trolls] of exploiting patents to make unreasonable demands of productive companies and prevent crippling damage awards.”

There is no shortage of policy possibilities, including a prohibition against legal demands that are intentionally ambiguous or designed to induce a settlement without considering the merits of the claim. Other reforms could include requiring public disclosure of the demand letters, reforming the Competition Act to give the Competition Bureau the power to target anti-competitive activity by patent trolls, and giving courts the power to issue injunctions to stop patent trolls from forum shopping.

Canadian trademark rules would also benefit from anti-abuse provisions. In 2014, the government quietly overhauled the law by removing longstanding “use” requirements for trademark protection. Legal decisions dating back decades emphasized the importance of use in order to properly register a trademark, since trademark law is primarily designed to protect consumers from marketplace confusion. Without use, there is unlikely to be confusion.

The 2014 reforms dropped the strict requirement for use in a trademark, however, creating considerable concern within the legal community. Canada may see a spike in “trademark trolls”, who could register unused trademarks with plans to pressure legitimate companies to pay up in order to release the trademarks for actual use. Anti-trademark troll rules would block efforts to register unused trademarks for the purposes of re-selling them to businesses seeking to innovate and use them.

Copyright law would also benefit from anti-troll safeguards. Canada’s 2012 digital copyright reforms featured an innovative “notice-and-notice” system designed to balance the interests of copyright holders, the legal obligations of Internet service providers (ISPs), and the privacy rights of Internet users. The law allows copyright owners to send infringement notices to ISPs, who must forward the notifications to their subscribers.

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

The fix is easy: implement anti-copyright troll regulations that ban the inclusion of settlement demands within the notices and create penalties for those companies that send notices with false or misleading information.

Intellectual property and innovation are often linked in policy discussions, but the abuse of IP rules has garnered less attention. As Bains considers potential policy reforms, a world-leading anti-IP abuse law would send a much-needed message that Canadian law will not support misuse of intellectual property rights.

The post Canada’s Innovation Strategy Must Stop Tech Trolls appeared first on Michael Geist.

Ottawa Needs to Combat Abuse of Intellectual Property Rights

Michael Geist Law RSS Feed - Tue, 2016/08/16 - 09:58

Appeared in the Toronto Star on August 15, 2016 as Ottawa Needs to Combat Abuse of Intellectual Property Rights

Developing a national innovation strategy has been a top priority of Navdeep Bains, Canada’s Minister of Innovation, Science and Economic Development. Bains has created an expert panel, held meetings across the country, and launched a public consultation in the hope of identifying policies that might enhance Canada’s lacklustre innovation record.

While some have used the consultation to call for expanded intellectual property rules, the reality is that Canada already meets or exceeds international standards. The more pressing innovation issue is to address the abuse of intellectual property rights that may inhibit companies from innovating or discourage Canadians from taking advantage of the digital market.

The benefits of an anti-IP abuse law could be used to touch on the three main branches on intellectual property: patents, trademarks, and copyright.

Leading technology companies have issued repeated warnings about patent trolling, which refers to instances when companies that had no involvement in the development of a patent seek payments from legitimate companies by relying on dubious patents. Patent trolls have a negative impact on economic growth and innovation with millions spent on unnecessary litigation.

Groups have urged the Canadian government to enact reforms to “limit the ability of non-practicing entities [a euphemism for patent trolls] of exploiting patents to make unreasonable demands of productive companies and prevent crippling damage awards.”

There is no shortage of policy possibilities, including a prohibition against legal demands that are intentionally ambiguous or designed to induce a settlement without considering the merits of the claim. Other reforms could include requiring public disclosure of the demand letters, reforming the Competition Act to give the Competition Bureau the power to target anti-competitive activity by patent trolls, and giving courts the power to issue injunctions to stop patent trolls from forum shopping.

Canadian trademark rules would also benefit from anti-abuse provisions. In 2014, the government quietly overhauled the law by removing longstanding “use” requirements for trademark protection. Legal decisions dating back decades emphasized the importance of use in order to properly register a trademark, since trademark law is primarily designed to protect consumers from marketplace confusion. Without use, there is unlikely to be confusion.

The 2014 reforms dropped the strict requirement for use in a trademark, however, creating considerable concern within the legal community. Canada may see a spike in “trademark trolls”, who could register unused trademarks with plans to pressure legitimate companies to pay up in order to release the trademarks for actual use. Anti-trademark troll rules would block efforts to register unused trademarks for the purposes of re-selling them to businesses seeking to innovate and use them.

Copyright law would also benefit from anti-troll safeguards. Canada’s 2012 digital copyright reforms featured an innovative “notice-and-notice” system designed to balance the interests of copyright holders, the legal obligations of Internet service providers (ISPs), and the privacy rights of Internet users. The law allows copyright owners to send infringement notices to ISPs, who must forward the notifications to their subscribers.

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

The fix is easy: implement anti-copyright troll regulations that ban the inclusion of settlement demands within the notices and create penalties for those companies that send notices with false or misleading information.

Intellectual property and innovation are often linked in policy discussions, but the abuse of IP rules has garnered less attention. As Bains considers potential policy reforms, a world-leading anti-IP abuse law would send a much-needed message that Canadian law will not support misuse of intellectual property rights.

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

The post Ottawa Needs to Combat Abuse of Intellectual Property Rights appeared first on Michael Geist.

Can Facebook really make ads unblockable?

Freedom to Tinker - Thu, 2016/08/11 - 17:18
[This is a joint post with Grant Storey, a Princeton undergraduate who is working with me on a tool to help users understand Facebook’s targeted advertising.] Facebook announced two days ago that it would make its ads indistinguishable from regular posts, and hence impossible to block. But within hours, the developers of Adblock Plus released an […]

The workshop on Data and Algorithmic Transparency

Freedom to Tinker - Wed, 2016/08/10 - 09:57
From online advertising to Uber to predictive policing, algorithmic systems powered by personal data affect more and more of our lives. As our society begins to grapple with the consequences of this shift, empirical investigation of these systems has proved vital to understand the potential for discrimination, privacy breaches, and vulnerability to manipulation. This emerging […]

A response to the National Association of Secretaries of State

Freedom to Tinker - Tue, 2016/08/09 - 08:11
Election administration in the United States is largely managed state-by-state, with a small amount of Federal involvement. This generally means that each state’s chief election official is that state’s Secretary of State. Their umbrella organization, the National Association of Secretaries of State, consequently has a lot of involvement in voting issues, and recently issued a […]

Government-Backed Study Finds Piracy Fight a Low Priority for Canadian Rights Holders

Michael Geist Law RSS Feed - Mon, 2016/08/08 - 10:59

The Canadian government plans to review the state of copyright law next year, but a recent government-commissioned study indicates that fighting piracy is a low priority for rights holders. They prefer to focus on their efforts on generating revenues from legitimate websites and services.

My weekly technology law column (Toronto Star version, homepage version) notes that piracy is likely to be a major issue in the 2017 review, with some groups sure to demand legislative reforms and increased resources for law enforcement initiatives. Canada enacted several anti-piracy measures in 2012, including creating a new rule that makes it easier for rights holders to sue websites or services that “enable” copyright infringement. The so-called enabler provision – the first of its kind anywhere in the world – has been used to shut down Canadian-based piracy sites.

In recent years, some stakeholders have emphasized the benefits of a “follow-the-money” strategy that focuses on stopping piracy sites by disabling access to payment intermediaries, demoting the sites in search results, and reducing their online advertising revenues. In response, the Department of Canadian Heritage commissioned a major study by Circum Network Inc. last year on the follow-the-money approach and the views of Canadian businesses. The study, which was obtained under the Access to Information Act, has not been publicly released.

Canadian Heritage sent letters to various stakeholders encouraging them to participate in the study, noting that it would help identify practices aimed at reducing or discouraging commercial-scale copyright infringement. While the department advised that the study was not necessarily indicative of future policy directions, the contract with Circum specifically called for recommendations to assist in future work on copyright piracy deterrence.

The final report includes few recommendations. Circum found that follow-the-money strategies have at best a mixed record of success. The problems include difficulty identifying commercial-scale copyright infringement websites (suspect sites often have both infringing and non-infringing content) and the continuing popularity of online advertising among major brands who have prioritized reaching large audiences over stopping piracy websites.

From a Canadian perspective, Circum did not find much enthusiasm among stakeholders for investing in anti-piracy activities. The study states that “Canadian representatives of rights holders consulted as part of this study tended not to give online piracy fighting a high priority. While they condemn unauthorized access to intellectual property and while some rights holders indicated actively reacting, they generally considered that their scarce resources are better invested in other battles and counted on global organizations to pursue the fight.”

Circum also noted diverging interests among rights holders themselves, with composers, authors, performers, actors, producers, publishers, and labels often adopting different approaches. Moreover, the study found that Canadian stakeholders seem far more interested in obtaining revenues from legitimate sources using works or offering legal marketplace alternatives.

There was even disagreement among those rights holders that supported government action. While some wanted law enforcement to escalate the piracy issue, others preferred to focus primarily on education efforts.

None of this should be taken to mean that Canadian businesses (or Canadians for that matter) support piracy. The 2012 copyright law rightly focused on commercial-scale piracy by enacting new legislative tools that can be used to combat websites and services that profit from the work of others without appropriate permission or authorization. Those reforms garnered widespread support.

However, the Circum study offers further evidence that for many creators, obscurity remains a far bigger threat than piracy. The message for the two ministers responsible for copyright – Canadian Heritage minister Mélanie Joly and Innovation, Science and Economic Development minister Navdeep Bains – is that with so much choice and competition, success is unlikely to come from yet another package of anti-piracy legal reforms. Instead, the study suggests that creators are ready to embrace the digital marketplace and would prefer to focus their energies on developing convenient, well-priced, legal services.

The post Government-Backed Study Finds Piracy Fight a Low Priority for Canadian Rights Holders appeared first on Michael Geist.

Study Finds Piracy Fight a Low Priority for Canadian Rights Holders

Michael Geist Law RSS Feed - Mon, 2016/08/08 - 10:48

Appeared in the Toronto Star on August 8, 2016 as Piracy on Agenda in Copyright Law Review

The Canadian government plans to review the state of copyright law next year, but a recent government-commissioned study indicates that fighting piracy is a low priority for rights holders. They prefer to focus on their efforts on generating revenues from legitimate websites and services.

Piracy is likely to be a major issue in the 2017 review, with some groups sure to demand legislative reforms and increased resources for law enforcement initiatives. Canada enacted several anti-piracy measures in 2012, including creating a new rule that makes it easier for rights holders to sue websites or services that “enable” copyright infringement. The so-called enabler provision – the first of its kind anywhere in the world – has been used to shut down Canadian-based piracy sites.

In recent years, some stakeholders have emphasized the benefits of a “follow-the-money” strategy that focuses on stopping piracy sites by disabling access to payment intermediaries, demoting the sites in search results, and reducing their online advertising revenues. In response, the Department of Canadian Heritage commissioned a major study by Circum Network Inc. last year on the follow-the-money approach and the views of Canadian businesses. The study, which was obtained under the Access to Information Act has not been publicly released.

Canadian Heritage sent letters to various stakeholders encouraging them to participate in the study, noting that it would help identify practices aimed at reducing or discouraging commercial-scale copyright infringement. While the department advised that the study was not necessarily indicative of future policy directions, the contract with Circum specifically called for recommendations to assist in future work on copyright piracy deterrence.

The final report includes few recommendations. Circum found that follow-the-money strategies have at best a mixed record of success. The problems include difficulty identifying commercial-scale copyright infringement websites (suspect sites often have both infringing and non-infringing content) and the continuing popularity of online advertising among major brands who have prioritized reaching large audiences over stopping piracy websites.

From a Canadian perspective, Circum did not find much enthusiasm among stakeholders for investing in anti-piracy activities. The study states that “Canadian representatives of rights holders consulted as part of this study tended not to give online piracy fighting a high priority. While they condemn unauthorized access to intellectual property and while some rights holders indicated actively reacting, they generally considered that their scarce resources are better invested in other battles and counted on global organizations to pursue the fight.”

Circum also noted diverging interests among rights holders themselves, with composers, authors, performers, actors, producers, publishers, and labels often adopting different approaches. Moreover, the study found that Canadian stakeholders seem far more interested in obtaining revenues from legitimate sources using works or offering legal marketplace alternatives.

There was even disagreement among those rights holders that supported government action. While some wanted law enforcement to escalate the piracy issue, others preferred to focus primarily on education efforts.

None of this should be taken to mean that Canadian businesses (or Canadians for that matter) support piracy. The 2012 copyright law rightly focused on commercial-scale piracy by enacting new legislative tools that can be used to combat websites and services that profit from the work of others without appropriate permission or authorization. Those reforms garnered widespread support.

However, the Circum study offers further evidence that for many creators, obscurity remains a far bigger threat than piracy. The message for the two ministers responsible for copyright – Canadian Heritage minister Mélanie Joly and Innovation, Science and Economic Development minister Navdeep Bains – is that with so much choice and competition, success is unlikely to come from yet another package of anti-piracy legal reforms. Instead, the study suggests that creators are ready to embrace the digital marketplace and would prefer to focus their energies on developing convenient, well-priced, legal services.

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

The post Study Finds Piracy Fight a Low Priority for Canadian Rights Holders appeared first on Michael Geist.

Supplement for Revealing Algorithmic Rankers (Table 1)

Freedom to Tinker - Fri, 2016/08/05 - 05:35
Table 1: A ranking of Computer Science departments per csrankings.org, with additional attributes from the NRC assessment dataset. Here, the average count computes the geometric mean of the adjusted number of publications in each area by institution, faculty is the number of faculty in the department, pubs is the average number of publications per faculty […]

Revealing Algorithmic Rankers

Freedom to Tinker - Fri, 2016/08/05 - 05:35
By Julia Stoyanovich (Assistant Professor of Computer Science, Drexel University) and Ellen P. Goodman (Professor, Rutgers Law School) ProPublica’s story on “machine bias” in an algorithm used for sentencing defendants amplified calls to make algorithms more transparent and accountable. It has never been more clear that algorithms are political (Gillespie) and embody contested choices (Crawford), […]

Election security as a national security issue

Freedom to Tinker - Wed, 2016/08/03 - 13:11
We recently learned that Russian state actors may have been responsible for the DNC emails recently leaked to Wikileaks. Earlier this spring, once they became aware of the hack, the DNC hired Crowdstrike, an incident response firm. The New York Times reports: Preliminary conclusions were discussed last week at a weekly cyberintelligence meeting for senior officials. […]
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