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The LawBytes Podcast, Episode 21: Why Canada Has Some of the World’s Highest Wireless Data Prices

Michael Geist Law RSS Feed - 8 hours 4 min ago

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.

a good time to look up

Fair Duty by Meera Nair - Sat, 2019/07/20 - 19:09

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?

 

The LawBytes Podcast, Episode 20: Why Canadian Universities Should Get Out of the Patent Game – Richard Gold on Canada’s Failed Research Commercialization Strategy

Michael Geist Law RSS Feed - Mon, 2019/07/15 - 11:09

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.

a tale of two licences

Fair Duty by Meera Nair - Wed, 2019/07/10 - 08:07

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.

The LawBytes Podcast, Episode 19: Canada’s Quiet Success Story – Irene Berkowitz on the Canadian YouTube Creative Sector

Michael Geist Law RSS Feed - Mon, 2019/07/08 - 09:10

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.

The LawBytes Podcast, Episode 18: Open to Open Banking?: My Appearance Before the Senate Committee on Banking, Trade and Commerce

Michael Geist Law RSS Feed - Tue, 2019/07/02 - 09:59

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.

What is the Point of the Broadcast and Telecom Legislative Review if the Government Has Already Decided What It Intends To Do?

Michael Geist Law RSS Feed - Thu, 2019/06/27 - 09:05

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.

Better Data, Better Results: Comparing the Gap Between the Copyright Review and Heritage Study on the Music Industry’s Policy Proposals

Michael Geist Law RSS Feed - Wed, 2019/06/26 - 09:05

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.

Ignoring the Evidence: Why the Copyright Review Was Right To Ignore the Canadian Heritage Committee Study, Part Four

Michael Geist Law RSS Feed - Tue, 2019/06/25 - 10:03

My series on why the Industry committee was right to ignore the Canadian Heritage committee study as part of the national copyright review has previously discussed process (the government vested sole responsibility with the Industry committee), an examination of the witness and brief list that confirms that Industry conducted a much more comprehensive consultation that overlapped with much of Heritage but also included hundreds of additional witnesses and briefs, and the (im)balance among witnesses which indicates that the Industry committee made a greater effort to hear a wide range of perspectives consistent with the diverse views on copyright.

The data from the previous posts left little doubt that the Industry committee copyright review conducted a far more comprehensive consultation with two and a half times as many witnesses as the Heritage committee: 203 organizations and individuals for INDU vs. 79 for Canadian Heritage. INDU also ensured greater geographic representation, having held lengthy hearings in Halifax, Montreal, Toronto, Winnipeg, and Vancouver.

Comparison of INDU vs. CHPC copyright witnesses

 

The submission of briefs tell a similar story. Both committees invited the public to submit briefs if they were unable to appear as witnesses or to supplement their testimony. INDU also received far more briefs: 271 briefs went to INDU vs. just 76 to Heritage.

 

Brief comparison

Not only was the INDU copyright review more extensive, it was also far more inclusive and balanced. The data shows that the Industry committee heard from more rights holders and creators than user groups, but was still relatively balanced: 52% of witnesses presented rights holder or creator perspectives, 45% presented user perspectives, and 3% neutral witnesses. In fact, the Industry committee heard from more witnesses representing rights holders and creators than all Heritage witnesses combined. By contrast, 80% of the witnesses before Heritage were rights holder and creator perspectives with only 16% – 14 witnesses – representing a user perspective.

Witness comparison by type – INDU vs. CHPC

Yet participation alone does not tell the whole story.  Just as important – perhaps even more important – is whether the witnesses and briefs were fully considered by the committees. Given that all drafting deliberations occur behind closed doors, the best proxy for consideration is citation by the committee. A committee may disagree with a witness or a submission, but citation in the final report sends the message that the perspective was at least considered. For the purposes of this analysis, where an individual or group appeared as a witness and submitted a brief, citing to either submission is treated as citation (in other words, not citing a witness appearance still counts as a citation if their brief is cited and vice versa).

The INDU citation data is remarkable: after hearing from nearly 400 organizations and individuals via witnesses and briefs, the committee report cited 99% of them (383 of the 388 individuals and groups who appeared as witnesses and/or submitted a brief).

INDU Citations

By comparison, Heritage had less than one-third the number of unique witnesses and briefs – only 119 – but failed to cite 24% of them. With roughly one of every four witnesses or submissions left uncited, Heritage sent the message that many of witnesses and submissions were left unconsidered.

Heritage – copyright cited

Moreover, the uncited 24% was not evenly balanced. An assessment of the uncited submissions and witnesses reveals that 62% provided user perspectives. In other words, not only did the committee limit the number of user-focused witnesses to only 16%, but when it did hear user perspectives, those views were more likely not to be cited by the committee.

Canadian Heritage – not cited

Much like the imbalance in witnesses, Heritage supporters may argue that the citation data similarly reflects a committee focused on rights holders and creators. That may be so, but it undermines confidence in a consultation process in which all stakeholders are invited to provide their perspective, but user oriented perspectives are more likely to be ignored. Further, when contrasted with INDU’s commitment to citing virtually all participants, it provides a stark comparison between inclusive policy development driven by evidence and a narrow exercise that reflected limited views. When a future government looks for a roadmap to determine new copyright policies, there is little doubt to which study they should turn.

The post Ignoring the Evidence: Why the Copyright Review Was Right To Ignore the Canadian Heritage Committee Study, Part Four appeared first on Michael Geist.

The LawBytes Podcast, Episode 17: What To Do About Huawei? – Christopher Parsons Unpacks One of Canada’s Most Challenging Policy Issues

Michael Geist Law RSS Feed - Mon, 2019/06/24 - 09:05

What to do about Huawei? The Chinese telecom giant has emerged as one of Canada’s most challenging policy issues, raising concerns involving competition, communications, security, and trade not to mention kidnappings and arrests of corporate personnel. The government has repeatedly promised to articulate a policy on the use of Huawei equipment in Canada’s next generation wireless networks only to regularly delay doing so. Dr. Christopher Parsons, a senior research associate at the Citizen Lab, the world-famous cyber-security lab located at the Munk School of Global Affairs and Public Policy at the University of Toronto, joins the podcast to help sort through fact from fiction when it comes to Huawei.

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

Credits:

CBC News, Should Canada Ban Huawei?
CBC News, Should Canada Trust Huawei?
Sky News, Should UK Be Using 5G Technology from Chinese Companies?
Canadian Press, Reports Canada Banning Huawei from 5G ‘Speculation’: Goodale

Transcript:

Law Bytes Podcast – Episode 17 | Convert audio-to-text with Sonix

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

CBC News:
Front and centre in Beijing today, a report from Reuters that the U.S. president is preparing to sign an executive order making it impossible for American companies to use Huawei’s equipment. A purely political move made without a shred of evidence, China says. The order would be confirmation of the U.S. stance that Huawei’s equipment could easily be used by the Chinese government to spy on Americans. The U.S. Australia and New Zealand have all banned Huawei from their networks. Canada hasn’t gone that route nor has Britain. But that may soon change.

Michael Geist:
What to do about Huawei? The Chinese telecom giant has emerged as one of Canada’s most challenging policy issues, raising concerns involving competition, communications, security, and trade. Not to mention kidnappings and arrests of corporate personnel. The government has repeatedly promised to articulate a policy on the use of Huawei equipment in Canada’s next generation wireless networks only to regularly delay doing so. Despite the attention and discussion around the company, the issues are often poorly understood by the public and even by some politicians.

Michael Geist:
Here to help sort through the exceptionally complex issues is Dr. Christopher Parsons, a senior research associate at the Citizen Lab, the world famous cybersecurity lab located at the Munk School of Global Affairs and Public Policy at the University of Toronto. Christopher specializes in third party access to telecommunications data as a research specialty, making him ideally suited to sort through fact from fiction when it comes to one of the world’s most challenging global tech policy issues.

Michael Geist:
Chris welcome to the podcast.

Christopher Parsons:
Thanks so much for having me.

Michael Geist:
I’m really glad you’ve come on because the issue that we’re going to talk to vote today – Huawei – is one where that’s generated I think an enormous amount of political and business attention both in Canada and certainly around the world. And yet despite the attention it certainly feels a bit like it’s a fairly poorly understood issue, certainly by the public and perhaps by some of the politicians as well. So I was hoping you could. Certainly at the beginning help unpack things a little bit and so why don’t we start with the basics. What is Huawei?

CBC News:
Huawei is the world’s largest supplier of everything related to telecom it sells more smartphones than Apple but is also a leader in cloud storage and cyber security. Sales for 2018 are projected to reach one hundred and two billion dollars. Ren Zhengfei founded the company in 1987. He was a former engineer for China’s People’s Liberation Army and a member of the Communist Party.

Christopher Parsons:
Huawei is a massive massive Chinese company. So they produce a large range of telecommunications products everything from core networking equipment, edge networking equipment, handsets. I think they’re doing. They’re starting to move in to video stuff as well. Really they just if it’s telecommunications related they either have a hand in it one of their product offerings or offerings that are then built in other companies products or at least prior to some of the issues with the Americans, they had intent of moving into that space right.

Michael Geist:
It feels like they’ve come a little bit out of nowhere. I mean to the extent to which consumers have heard of the company it’s probably from the smartphones because they are I think the second largest smartphone maker in the world. But it seemed like overnight you had this massive technology company suddenly now dominating business pages and is as you say in every part of the communications market.

Christopher Parsons:
Yeah I think that for a lot of people they’re sort of shocking especially people who have been in telecommunications space. Those who have been looking at routing or you know anyone who’s been looking to purchase carrier grade telecommunications equipment. I mean they’ve known Huawei for quite some time. Huawei began quite sometime ago in the way that they got it was selling carrier grade equipment and they have a whole bunch of features over some of their competitors. One of them is Huawei has enormously benefited from the relatively protected Chinese market which has meant that they’ve had a huge market that they can sell into with limited competition. And they’ve also had the advantage of a bunch of very advantageous state loans that have been provided to them at different points in their development which is facilitate facilitate both R and D, and production and then the sale of goods often at a rate that is just a better market price than something from Ericsson, Nokia, or Nortel, when Nortel was still around.

Michael Geist:
So better pricing and significant by the sounds of it support from their own government from the Chinese government. What’s their presence in Canada. I mean certainly if you walk into your local phone store you Rogers or your Bell you’ll find some of their devices. But do we find them within Canada’s large networks or are they part of the broader communications infrastructure in Canada.

Christopher Parsons:
Yeah they’re very much. So Telus is based on business reporting predominantly running a Huawei stack. Bell has included it. There is a little bit as memory serves and Rogers’s networks although they’re principally running on Ericsson kit and then for the smaller wireless providers that’s subsequently been gobbled up I’m not entirely certain what equipment they’ve they’ve invested in.

Michael Geist:
Okay but we’ve got at least a couple of the largest telecom companies two of the Big Three with significant investments in this equipment. Given that that’s the case there they’re here in Canada people are using them as their devices. I guess the question then becomes well what’s the concern. We’ve seen investment we’ve seen Canadians buy their products and we’re seeing large companies use them to run their networks.

Christopher Parsons:
Yeah. So the concern runs a whole bunch of different lines. So there is questions that have been percolating for a very long time around national security that have sort of bubbled up to the fore with 5G. There is concerns about the way that Huawei is involved in Canadian academic institutions and there’s also concerns more broadly around the potential for Huawei to grow and grow and grow grow to the extent that it threatens Western telecommunications companies who provide competitive services such as Nokia and Ericsson. So there’s a bunch of different things and part of the challenge with Huawei and addressing it is. I mean this is to say nothing of course as the the current status of their CFO in Vancouver. Part of the difficulty is there’s all these issues there that are happening simultaneously and they blend together but are simultaneously distinct. And I think that’s part of the reason why there’s a lot of confusion as to is this an economic issue. It’s a national security issue. Is it an IP issue. Is it a trade issue. Because in parts its all of these things but if you don’t break them out of those discrete parts, it’s very nebulous as to what you’re actually talking about.

Michael Geist:
I think you hit on a great point. I mean which may help explain why this has become so poorly understood. We’re talking about multiple issues that blend one from the next. Why don’t we try to unpack them a little bit. Let’s start with the competition related issue, security is where I thought we would generally go, but why do we try to just pick off at least several of the other ones starting with some of the concerns from a competition related perspective. What are some of those and should Canada be concerned, are we competing in that space?

Christopher Parsons:
Yes. So with competition the concern is that there really aren’t that many providers that can do top to bottom full stack 5G deployment. Nokia has capabilities there. Ericsson has some capabilities there, Huawei has capabilities there and then there’s a bunch of other players that do discrete elements but that aren’t going to build a beautiful stack. So the worry is that if Huawei becomes dominant it’s going to starve Western companies or Western allied companies and that could have the effect of ultimately moving into almost a monoculture where Huawei is the predominant international supplier of 5G that could subsequently have implications for pricing implications for conditions of access or license so you can get this but you must buy this as well. So many of the concerns that are associated with monopolies typically is one of the fears linked with this. And also because the R&D that go into building this telecommunications network is so significant that when the competitors or rather should the competitors truly become starved of capital their ability to invest is going to be challenged.

Christopher Parsons:
And that correlates with in some respects with IP related issues. Because as you know I suspect much better than I do, certain patents that are developed which Huawei is developing over 10 or 15 percent of the core patents for 5G at the moment as they obtain more and more patents, there is the concern that they could then build hedges to also prevent their competitors from from coming in. And so this is another way where they might be able to build a moat around any research advantages that they develop and certainly within the Canadian context on that latter point around patents, Huawei is a very active investor in Canadian academic institutions. I should note that one of them is the University of Toronto although the Citizen Lab has never and would not take money from any corporate body including Huawei. And so when that money is assigned to research labs, professors, and graduate students go do their work and in some universities the patents that have been generated are automatically ceded back to Huawei. And so that’s where there’s sort of an academic tie to patent development and also tied to the potential for Huawei to grow bigger and bigger if they’re able to develop actual market monopoly status.

Michael Geist:
Ok. I just want to you’ve you’ve hit on a bunch of things there and so I’m going to try to bring it down just one level just to ensure that that everyone’s got it. We’re fundamentally by the sounds of it talking about next generation networks especially around so-called 5G, the faster telecom networks that we often hear about and that carriers are making significant investments there. And by the sounds of it the concern is that you could have a single company in this case a large Chinese company, leveraging significant control at least on a global, potentially on a global basis when it comes to 5G both in terms of being able to control or controlling much of the technology compared to what some of their competitors are able to do as these things get implemented and able to do that both by leveraging their size and economic power as well as seeking to leverage the intellectual property that they develop over time by in a sense creating a patent thicket or patents around many of the kinds of technologies that will go into 5G. Do I largely have it right?

Christopher Parsons:
Yeah. You’ve got it right there.

Michael Geist:
Okay so so while we’ve seen these investments from companies as you mentioned like Telus and Bell to date, I suppose that one of the reasons we are hearing more and more about it is that some large countries and companies have really turned their attention to 5G and suddenly they see a giant competitor that that has the potential capability of really controlling what most see as the next generation market for telecommunications.

Dan Albas:
Every day we get more reasons to ban well away from our 5G network.

CBC News:
The big concern is its powerful 5G capability, the next generation technology is expected to deliver internet speeds that are tens of times faster than what we have now. And it will support networks that run major infrastructure like self-driving cars, connected homes, even factories and power grids.

Christopher Parsons:
When we’re talking about 5G we’re talking about massive investments you know billions and billions and billions of dollars and where there’s some contention at the moment and it’s not entirely clear who is right is you have certain certain business leaders that are coming out and asserting that the Huawei 5G equipment goes on top typically of other Huawei 4G equipment because it’s an upgrade system as opposed to a totally new like rip out infrastructure and that it is not possible to add in say Ericsson or Nokia equipment on top of Huawei 4G equipment. And further to the point should we say in five years or six years. Oh while this was a big mistake to put Huawei in and we need to replace it again there’s the stated concern that there’s actually an inability to make a switch out of that type.

Christopher Parsons:
Now there is some doubt associated with that. So at least the some of the senior executives in both Nokia and Huawei as well some independent talk medications experts who I’ve done reading about it they have asserted that it is possible to actually where Ericsson or Nokia on top of Huawei or vice versa. But while we’re on top of an Ericsson or Nokia kit so there is some question about how much it would cost to replace and indeed whether it whether we’re in a path dependent situation with companies like Telus in particular or whether we can do a course correction without massively just ripping out infrastructures there and rebuilding.

Michael Geist:
All right. So it sounds like there’s this potential strategy there of both locking in and locking out. Locking out through the on the patent side by stopping some from entering into the marketplace, locking in basically by using your existing technology to try to lock people into future upgrades.

Christopher Parsons:
That’s certainly the concern and it remains to be seen how effective that particular lock in is. And it’s definitely an evolving element of this space right now it’s it’s almost changing week to week.

Michael Geist:
Right now if this was purely an economic issue one can understand why there would be concerns although of course there would be counterarguments that this cheaper pricing and more efficient implementation of some of these systems makes it perhaps more likely that we’ll see the necessary investments, perhaps more competitors come into the marketplace if it’s cheaper to institute 5G, but those are the kinds of battles that we see from time to time of course when it comes to antitrust related issues. But what makes this particular case I think particularly interesting and perhaps particularly challenging is that as you suggest earlier on there is a security gloss that that comes with this is very often the issue isn’t framed so much as a threat from an economic perspective but rather first and foremost a security one.

Sky News:
The first 5G pilots are launching in the U.K. promising everything from smart cities to hologram calls. Yet the rush to build the superfast wireless network comes with a risk. Because the best technology comes from Chinese manufacturers such as Huawei and ZTE, raising the fear the Chinese government will gain ground level access to, even control of, the U.K. critical data infrastructure.

Michael Geist:
You sit there the Citizen Lab, leading the world in unpacking and discovering security related issues in the network. Let’s talk a bit about what the security concerns are and whether or not they’re legitimate.

Christopher Parsons:
Yeah. So I think that one thing that’s helpful to frame it to begin with is there are certain technical security concerns and there’s national security concerns. And the latter is politicized and the former is sort of a standard bread and butter technical assessment. So with national security all the pieces that we just talked about fit into a national security concern. So you know economic or sorry monopolization of a core technology that’s going to in theory you know advantage Western economies. You know that’s a national security issue by default because of the core networking technology that’s that’s the infrastructure the way that the world might turn out to be. But in addition there are concerns that under Chinese legislation that was passed a few years ago that Huawei could be compelled to modify the operation of its systems and it really doesn’t have a choice as legal experts who have assessed that element of Chinese legislation have asserted. If the Chinese government asserts that we’re going to be compelling a backdoor or more likely simply don’t patch this thing. And so it’s not a deliberate insertion. It’s just you leave some particular bit of leaky code in place in perpetuity and just encourage the company to not patch it. So those are the core concern types of concerns like technically what might be done. And so this is again where the national security concerns blend into technical security because at a national level we’d be concerned about Chinese intelligence or military or other elements of the government or bodies associate with the government taking advantage of 5G networks or 4G networks or any other Huawei system for that matter, to the advantage of the Chinese government to the disadvantage of presumably Canada their competitors.

Christopher Parsons:
And then at the technical level we have what is the actual robustness and security that is afforded by these pieces of equipment and on that front the UK which has been doing assessments of Huawei for many many years, an element to the GCHQ does this now, center that’s built up between GCHQ, the British equivalent of the NSA and Huawei and the technical assessments that they’ve done on Huawei equipment is being sold into the UK has been absolutely terrible with very senior members of GCHQ fairly recently, in the past month or so, coming out and saying that the security culture and security practices that is evident when they do these tests of Huawei equipment is something like security circa 2000. And just as absolutely not meeting the expectations that you would have for any company today selling mass infrastructure to the world.

Michael Geist:
And are those conclusions. Is there a sense that those conclusions in terms of the weaknesses security is that driven. Is there a thought that that’s being driven by government pressure to create kind of the sort of leaky or weak security or it’s just a company that’s trying to dominate or rush out as much gear as it can as quickly as it can and security may not have been a priority along the way.

Christopher Parsons:
The assessment by the GCHQ is that there is no evidence that they have detected that there is compulsion on the part of the Chinese government to code badly and that it’s just an absolute lack of security processes that are embedded in you know to be to be fair to Huawei and Huawei engineers you know if you go back to around the 2000s and you think of Microsoft at the time and their security culture was equally just abysmal and that it took a massive transformation of Microsoft and other major software vendors to really start prioritizing security. The concern however is in the case of Huawei, GCHQ which which went and traveled to Huawei’s headquarters in China and did spot tests of certain practices and processes. The report came out this year from the evaluation of Huawei so (a) there hadn’t been a change year over year and two there were serious doubts that a change could happen. And so they are basically asserting that the culture of security within Huawei was so inadequate that they were uncertain that they could bootstrap their way up to an adequate and adequate security position.

Michael Geist:
Now before we get to how company countries rather have responded to this you know I guess a market based approach to this would say if I’m a telecom provider concerned about potential liability that could arise from some of these kinds of issues. I wouldn’t want to be buying security equipment or telecommunications equipment that is 2000 circa security but yet it seems like many telecom providers including some of Canada’s largest are buying. Is it that price trumps all in this environment?

Christopher Parsons:
I suspect there’s a few pieces that go on with regards to it. One I’m certain that the decreased capital expenditure is attractive to anyone especially in a publicly traded company. Two, security is always something that no one wants to talk about. Security only cost you things and ultimately you can never know if having a more secure product actually saved you money or not, because if it worked you don’t know and if it didn’t work you also may not know unless your detection systems are up to snuff. And third most telecommunications networks. Well you know they have abstract conceptual commonalities. They are boutique and that they there’s a lot of individual individual development for all of them. And so it is possible in some cases that you know telecoms can see some of these deficiencies and they can try and shore up their own defences internal or make modifications to how the equipment works. But one of the issues that was pointed out again in this most recent GCHQ report was that Huawei didn’t have an ability to reliably issue patches to all systems with with a common vulnerability. And so that means that let’s say security folk in Telus are doing audits of their equipment and they find a vulnerability or a problem in one of the boxes that they have. They can go to Huawei in theory over time, look at a patch but there isn’t no guarantee that the patch that then is issued to those Telus boxes are then also going to go to Bell or AT&T or Vodafone or anyone else even in the same country when you know obviously when you’re talking about Europe or Italy there when you have multiple major competitors because phones clearly not here. So there’s this is what I mean by like there’s a deficiency in culture and I suspect other elements is this probably isn’t getting up to executive ears. You know this is a boutique security issue. And until probably past a year and a half or so in Canada, I would be sort of surprised if this was top of mind for for executives when they’re trying to evaluate how to move their companies forward.

Michael Geist:
So if we can’t count on the companies to act for some of the reasons you’ve just articulated, then I suppose it falls to governments to set regulations and it would appear that some governments have done so by seeking to ban the company from being part of their networks.

Christopher Parsons:
That’s definitely one approach that has been taken. One of the difficulties is that many of the times when these bans have been asserted, their asserted on national security grounds with spooky waving behind a behind a curtain and you’re you’re asking well what exactly is the what exactly is the concern that you’re pointing to and it’s it’s never revealed in open settings and indeed it’s not. It’s not immediately apparent that there has been an instance to date that showcases that Huawei is behaving or has behaved in the past as a national security threat. The concern in fact as it’s been pointed out by the US – the House Intelligence body – has come out and stated that the issue is that a good position they take rather is that a good piece of Huawei equipment is only good until its first malevolent firmware update. And so once again to say.

Michael Geist:
Sorry could you just explain what that means.

Christopher Parsons:
Yeah absolutely. So a firmware update is just some of the base code that operates these routers so much like you know the computer that you have at home with your smartphone or something like that. There’s all sorts of different components that can receive updates and firmware is sort of very close to the the silicon or the metal of the machine. So it’s different from your from the operating system itself. And so all it would take would be one deliberate bad firmware patch that you know would enable a foreign actor to do any number of things. Right. And this is where that whatever you’re wherever your imagination, goes whatever sci fi you’ve seen, it’s not necessarily the worst place to go to run your imagination. So can it be anything from slight modification to the way that data traffic is moving. It could mean certain packets are dropped. It could collect certain packets and shuttle them to a given location, were there a situation where the routing equipment was dependent on a random number generator or a pseudo random number generator to develop encrypted streams then there would be the concern that maybe the number generator was tampered with so that third party who is capturing data could subsequently decrypt the traffic. It could cause issues with the way that the virtual systems that are put up on top of some of these routers operate such that rather than having actual perfect isolation between them that you might be able to bleed data from one to the other which would be useful for actual trading data and then moving it elsewhere or potentially modifying data and one of the virtual systems. So really the concern is that Huawei routers could be transformed similar in manner to the way that the NSA has targeted and transformed quite frankly or taken advantage of exploits in Cisco routers and all the other major providers as part of their national security activities through the NSA and partnership with Canada and the CSE.

Michael Geist:
So there is a bit of irony here in terms of trying to imagine what some of the threats are often take a look at what we’re doing or with the United States is doing and say hey they could do that too. I do want to just make sure that we touch on where Canada stands on this so we have seen some of the some countries respond to the kinds of threats you’ve just identified. Canada for the moment hasn’t taken a strong position. Can you just elaborate a little bit on on where we are and where you anticipate things might head?

Ralph Goodale:
The advent of this of this new technology 5G is about to revolutionize the information technology that we deal with in our in our daily lives. That revolution has been ongoing what with with 5G compared to 4G the pace and the magnitude of change are going to be enormous. We want to ensure that Canadians enjoy the full benefits of this incredibly powerful technology but at the same time we want to ensure that Canadians and our systems are sound and safe and secure.

Christopher Parsons:
To some extent there have been some commentators have criticized Canada for not taking a position. I suspect that us not taking a position is probably the best thing that we could be doing at the moment because we’re actually seeing natural experiments play out. We currently haven’t decided whether we’re going to ban, whether we’re going to permit, or whether we’re going to partially ban. And so a full ban is something like what Australia has done where Huawei is not permitted to engage in the 5G network. A partial ban is where you have Huawei systems which are not permitted in the core of the networks of the telco companies, but they can provide edge based services and so IP radio network radios and things of that nature. And there’s an other approach which is they’re allowed in, but they get audited and that’s what the British are doing right now is as deep audits to evaluate then certainly a catch and release. They they look at the equipment, assess the equipment, then release into the market for use. The difficulty is that the catch and release doesn’t seem to I mean again the UK government’s assessments are relatively bleak. They are not confident they are going to be able to mitigate the harms to national security that are associated with what was equipment full on bans are potentially very expensive and in the case in context with the Canadian governments historical efforts over the past decade or so to expand trade with China banning Huawei, which is one of their champion companies, would be probably very deeply problematic for those trade negotiations. To say nothing of the fact that China has demonstrated a willingness to engage in hostage taking and other activities principally in response to the seizure of Huawei’s CFO. But China’s generally demonstrated both in the region and internationally, a willingness to flex their muscles. And so if we ban or block, Canada will probably continue to see the sorts of economic difficulties that we’ve had for the past several months: blocking of pork, inability to send our agriculture products and such into China. So what is Canada going to do? Prior to their CFO being seized this was an issue that was more squarely to my assessment in the security domain and less in the trade domain, less in the domain of politics. But now it’s a front and centre political issue and it’s a front in centre trade issue. So what we do is I have no idea. I would be surprised if whatever decision is reached, is reached on the basis of security although it may be presented as such. This has become a massive political football or a hand grenade. And I think we’re watching the Liberal government try and figure out what exactly to do with it which is in part why they’ve they continue to defer when they’re going to have a decision they keep pushing it further and further out. So I believe that a decision now is due right around the election either shortly before or shortly after. But it’s it’s a challenging issue and it’s not apparent how the government’s going to move.

Michael Geist:
Well based on the way you’ve described and we haven’t even got into the issues around phone bans and obviously the kidnapping issues and broader trade issues. It’s one that is so complicated with a country that has been viewed for some time is critically important as part of a diversification of Canada’s economy and trade strategy. And at the same time dealing with all these challenges on top of the desire to ensure that we get the next generation 5G networks and see the kinds of investments that the government is hoping to see from a number of players to help create and foster a more competitive environment.

Christopher Parsons:
Yeah it’s again I think that the fact that Canada’s waiting on the one hand if we’ve made a decision we wouldn’t be in quite the same political mess we’re in now but because we have we can actually evaluate what systems work. So the one to to watch for is how effective the partial ban is in the network level. So if it actually turns out that you know the various spy agencies which you know hack these things, if they think that that might be a way of keeping things secure then maybe that’s a way of threading this particular needle. But there are some pretty severe concerns that because we haven’t seen this equipment that hasn’t been deployed yet in any meaningful numbers that we may end up finding vulnerabilities or difficulties in the way that any company puts it in and the concern becomes do we want to work with a western country and company who we think is probably quote unquote on our team and sort of the world of international politics or do we want to instead rely on Huawei continuing to behave as a good corporate citizen but one that may well the one that operates out of the country but frankly doesn’t respect the rule of law and could very significantly engage with Canada on both economic, military, and intelligence matters. You know at any time in the future.

Michael Geist:
Yes indeed well you know I started off by by commenting on how poorly understood and how challenging the issue is and I think if anything over the last half hour of this discussion you’ve highlighted that it is perhaps even more complex than people appreciate. But the the notion that Canada might even benefit from late mover advantages by being able to see how this plays out elsewhere is interesting because we’ve seen that in some other policy areas as well. Chris thanks so much for joining me on the podcast.

Thank you so much for having me.

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 17: What To Do About Huawei? – Christopher Parsons Unpacks One of Canada’s Most Challenging Policy Issues appeared first on Michael Geist.

before and after june 23

Fair Duty by Meera Nair - Fri, 2019/06/21 - 10:15

On June 23, 1985, a bomb detonated in the cargo hold of Air India Flight 182 while in midflight off the coast of Ireland. There were no survivors. Of the 329 people aboard, 268 were Canadians. Over 80 were children. It was the outcome of a plot politically motivated, conceived, and carried out in Canada.

The event that provoked those murders had occurred a year earlier, when the Indian government had sent its army into the holiest site in Sikhism, the Golden Temple at Amritsar. A potent, but inaccurate, message that circulated in 1984 was that the temple had been destroyed.

At that time, Mark Tully, a British journalist with a long tenure in India, was on the ground in Amritsar; thirty years later he recounted the details that led to the incursion: the temple complex had been occupied by extremists determined to carve out a Sikh homeland from India. They had “mounted a reign of terror and murder, attacking police, terrifying villagers and extorting money,” and they had fortified the temple complex with arms. Tully wrote:

I returned to Amritsar in the first press party taken to the Golden Temple complex after the operation. I was deeply saddened by what I saw. The Golden Temple itself was intact, scarred only by a few bullet holes. Although defenders had fired from the Temple, the army had clearly obeyed orders not to fire at it.

Retribution came six months later when then-Prime Minister Indira Gandhi was assassinated by her own Sikh bodyguards. Which led to further retaliation by angry mobs against innocent Sikhs. With that history, Tully’s words from 2014 are memorable:

It’s a great credit to India’s Sikh community, and the country’s multi-religious culture, that the wounds have not gone deeper. For India’s new Prime Minister, Narendra Modi, and his Hindu Nationalist Bharatya Janata Party, the events of 1984 should be a warning against allowing any of the more extreme elements associated with them to start inciting hatred of other religious communities.

But Tully also noted that while tensions eased in India, they had escalated in Britain.

As they did in Canada. Rage simmered and extremists called for revenge, which led to the plots to bomb two Air India planes laden with Canadian passengers.

Bombs hidden in baggage were checked first onto Canadian Pacific planes departing from Vancouver, travelling both west and east. The deadly baggage was then to be transferred to connecting Air India planes. By sheer luck, passengers of the western route were spared, when that bomb detonated on the ground before being loaded onto the connecting Air India flight in Tokyo. However, two baggage handlers lost their lives. The second bomb performed as intended on the eastern route, having been transferred to an Air India plane in Toronto.

Prior to 9/11, the bombing of Air India Flight 182 was the worst act of aviation terrorism the world had ever known. Unlike 9/11, 6/23 which came twenty-six years earlier, never fully entered Canadian consciousness, and its history diminishes with each passing year.

For those who have borne a depth of tragedy that most of us cannot even comprehend—the families of the victims—June 23 cannot be allowed to fade into oblivion.

I was fortunate that my family was not directly touched by the bombing. But my parents knew at least three men who each lost his wife, and all six children between the three couples. At that time, the Indian immigrant community in Vancouver was quite small; everyone knew someone who had been affected. To this day, my mother speaks of a toddler who expertly identified a Da Vinci print hanging in our home. “Mona Litha” was declared with exuberance. She perished along with her sibling and her mother.

In Vancouver, before and after the bombing, those were years of harassment, intimidation, beatings, and murder. Ujjal Dosanjh (later premier of British Columbia and then a member of Parliament and cabinet minister) was brutally beaten because of his public efforts to alert Canadian authorities to the behaviour of extremists in the community. I remember the news footage of what Dosanjh looked like, lying in a hospital bed, after being attacked by an assailant wielding an iron pipe.

Canadians likely do not know that a journalist was murdered over these matters. Tara Singh Hayer (father of Dave Hayer who would go on to become a Member of the Legislative Assembly of British Columbia) had pertinent information about the bombings and was targeted twice. Mr. Hayer (senior) survived the first attempt but was left disabled. He did not survive the second. I still remember Dave Hayer’s press conference where he condemned the cowardice of people who would attack a man in a wheelchair.

The families had hoped for justice through the courts, but none came. That trial ended in acquittals, largely because the judge deemed the star witness to be not credible. She had been involved in a close friendship with one of the accused; with considerable risk to her safety, she provided testimony that he had acknowledged his culpability in the bombings. Her testimony was discarded by the judge, in part because the close friendship had continued even after the revelation. I remember thinking how oblivious the judge seemed of the risks that woman would have faced, had she broken off the friendship earlier.

The families had repeatedly called for a public inquiry, only to have successive Canadian governments resist. Finally, twenty years after the bombing, Bob Rae (between his positions of Premier of Ontario and Member of Parliament) was given a mandate to determine whether there were questions that necessitated exploration and if so, what form that exploration should take. His report, Lessons to be Learned, was detailed, compassionate and called on Canadians to recognize this tragedy as their own:

 Let it be said clearly: the bombing of the Air India flight was the result of a conspiracy conceived, planned, and executed in Canada. Most of its victims were Canadians. This is a Canadian catastrophe, whose dimension and meaning must be understood by all Canadians.

Because of Rae’s work, the long-desired public inquiry took form under the care of retired Supreme Court Justice John Major. I remember some of the televised news coverage; victims’ families and various branches of Canada’s security, intelligence and civil services were asked questions and given an opportunity to speak. Perhaps most poignant were the remarks from two Irish men who had participated in the grim task of pulling bodies from the ocean. In an interview by Terry Milewski, one man said that initially he had not wanted to meet the families because “we let them down.” The incredulous tone of Milewski’s reaction still rings in my ears, “You thought you’d let them down?” An affirmative nod was followed by: “If we could have just found even one person alive.” It spoke to the power of hope—the longing to believe that anyone could have survived the combined effects of a massive explosion, a fall of 30,000 feet, and then hours in the ocean before help arrived.

But as had been evident to the families for over twenty years, it was Canada whose conduct had been wanting. To begin with, the bombing could have been prevented. The erasure of vital wiretap evidence had compromised the trial from the start. Throughout, the strenuous effort by Canadian governments anxious to limit their liability for the bombing, combined to deny not only justice, but sheer human decency to the families.

Major’s preliminary report, The Families Remember, was completed in 2008. It ought to be compulsory reading for every member of Parliament. To know that before those 329 became victims, they were real people. They were friends, colleagues, aspiring students, professionals, business people, husbands, wives, grandparents, and children. From the little boy who used to buy milk to help an elderly neighbor, to the grandmother of the three-generations taken from a single family, this was a Canadian loss of proportions unimaginable. As Major wrote then:

These are not easy stories to read. The pages that follow are permeated with an ineffable sadness that is emotionally draining, but the examples of courage and determination that are related through the narratives illustrate the strength that accompanied the desolation of the victims’ families.

In the final report, Air India Flight 182-A Canadian Tragedy, he did not mince words as to the deplorable behaviour of various Canadian government towards the families. Members of Parliament ought to at least see these two sentences:

In stark contrast to the compassion shown by the Government of the United States to the families of the victims of the 9/11 terrorist attacks, for all too long the Government of Canada treated the families of the victims of the terrorist attack on Flight 182 as adversaries. The nadir of this attitude was displayed when the families’ requests for financial assistance were met by the Government’s callous advice to seek help from the welfare system.

And the lack of recognition that this was a Canadian tragedy was again noted:

The fact that the plot was hatched and executed in Canada and that the majority of victims were Canadian citizens did not seem to have made a sufficient impression to weave this event into our shared national experience. The Commission is hopeful that its work will serve to correct that wrong.

Despite the painstaking efforts of Rae, Major, and dedicated journalists (Kim Bolan, Terry Glavin, Terry Milewski to name a few) who tirelessly covered the story then and continue to do so now, Air India Flight 182 remains detached from our shared national experience.

Twenty years after the bombing, June 23 was declared as a National Day of Remembrance for Victims of Terrorism. But it seems to have had little impact, particularly to contemporary members of Parliament. June 23 is also the start of the summer recess with members likely back in their home ridings. Few seem to engage with the memory of Air India Flight 182. To be sure, those members are entitled to enjoy at least some time off with their friends and family. However, it would be nice if they remembered that the bombers made that same calculation. With the school year ending, on June 23, 1985, the planes were packed with families. As Dr. Chandrima Chakraborty asks: Why do Canadians not remember the tragic loss of so many children on Air India Flight 182?

Chakraborty details a number of creative works that bring the humanity of the suffering closer to readers. And for those wanting to learn more about the events before and after the bombing, Kim Bolan’s book Loss of Faith, How the Air India Bombers Got Away With Murder (2005) is compelling.  So too is The Sorrow and the Terror, the Haunting Legacy of the Air India Tragedy (1987) by Clark Blaise and Bharati Mukerjee.

An earlier version of this post was published by the Georgia Straight on 20 June 2019.

Unbalanced Witness List: Why the Copyright Review Was Right To Ignore the Canadian Heritage Committee Study, Part Three

Michael Geist Law RSS Feed - Fri, 2019/06/21 - 09:02

My series on why the Industry committee was right to ignore the Canadian Heritage committee study as part of the national copyright review has focused on process (the government vested sole responsibility with the Industry committee, its clear assertion as the authoritative copyright review, and an examination of the witness and brief list that confirms that Industry conducted a much more comprehensive consultation that overlapped with much of Heritage but also included hundreds of additional witnesses and briefs.

The raw numbers tell a compelling story:

Brief comparison

  • there were 203 organizations and individuals that appeared as witnesses before INDU vs. 79 for Canadian Heritage
  • INDU also received far more briefs: 271 briefs went to INDU vs. just 76 to Heritage
  • There was considerable overlap at Heritage, but far less with INDU: Heritage only saw 33 witnesses who did not appear before INDU and received just 18 briefs from organizations that did not also submit to INDU

Beyond those numbers, however, I examined the balance among witnesses to consider whether both committees made an effort to hear a wide range of perspectives consistent with the diverse views on copyright. The witness list is relevant in this regard since committees control who is invited to appear, whereas briefs may be submitted by anyone with an interest in the issue. The full list of witnesses with my designation – RH (rights holder/creator), U (user) or N (neutral) – can be accessed here. Rights holders/creators include cultural associations, copyright collectives, authors, musicians, and other creators. Users include educational groups, broadcasters, and some IT companies. Neutral witnesses include government officials. Designations are based on the positions adopted before committee as well as known positions on copyright policy issues.

The data shows that the Industry committee heard from more rights holders and creators than user groups, but was still relatively balanced: 52% of witnesses presented rights holder or creator perspectives, 45% presented user perspectives, and 3% neutral witnesses. In fact, the Industry committee heard from more witnesses representing rights holders and creators than all Heritage witnesses combined. By contrast, 80% of the witnesses before Heritage were rights holder and creator perspectives with only 16% – 14 witnesses – representing a user perspective.

Witness comparison by type – INDU vs. CHPC

 

INDU witness breakdown by type

Heritage witness breakdown by type

 

Heritage supporters may argue that their goal was to hear from rights holders and creators and therefore the imbalance was warranted. That may be true if the objective was to hear one-side of the copyright story and produce a report containing their policy wish list. However, if the goal was to produce viable copyright reform recommendations that reflect the complexity of copyright policy, the approach was a failure.

Indeed, the effect of hearing predominantly one side of the issue has obvious implications for committee recommendations. For example, the Heritage committee recommended copyright term extension, noting:

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

By any reasonable measure, the issue of extending the term of copyright from life of the author plus 50 years to life plus 70 years is controversial. The Industry committee heard from all perspectives and concluded that caution was warranted. Yet Heritage’s list of witnesses was so one-sided that it failed to include any one opposing term extension. In doing so, it failed to hear from a representative range of stakeholders, leading to flawed, one-sided recommendations that are inconsistent with good policy making and the objectives of the Copyright Act that emphasize the interests of both creators and users.

The post Unbalanced Witness List: Why the Copyright Review Was Right To Ignore the Canadian Heritage Committee Study, Part Three appeared first on Michael Geist.

Limited Views: Why the Copyright Review Was Right To Ignore the Canadian Heritage Committee Study, Part Two

Michael Geist Law RSS Feed - Thu, 2019/06/20 - 14:45

The Industry committee’s clear assertion this week as the authoritative copyright review is grounded in process since the government gave it sole responsibility for conducting the review. While my earlier posts focus on the process and the unprecedented INDU release, the committee justifiably points out that it also heard from far more witnesses through hearings and briefs than the Heritage committee. In fact, it notes that it heard from the “vast majority of stakeholders who contributed to CHPC’s study.” Working with University of Ottawa student Philip Abraham, we reviewed the witness lists, the brief submissions, and the citations by the committees to better assess claims about which committee best reflects the full spectrum of stakeholder views on copyright. This post examines who participated in the committee work and a follow-up posts will highlight the balance in the witness lists and whether the committees were listening.

The following chart features all the witnesses for the two committees. Where witnesses appeared on behalf of an organization, the organization is listed (multiple organizational witnesses are treated as one). Where the witness appeared in a personal capacity, the individual name is listed. The data in this regard is unequivocal, demonstrating that Industry heard from far more witnesses representing a far wider and deeper range of perspectives from all parts of the country.

Indeed, the Industry committee copyright review heard from two and a half times as many witnesses as the Heritage committee: 203 organizations and individuals for INDU vs. 79 for Canadian Heritage. INDU is also correct that the majority of witnesses that appeared before Canadian Heritage also appeared before INDU as there were only 33 witnesses that only appeared before Heritage (46 witnesses appeared before both). Of the 33 that did not, several submitted briefs to INDU that were cited in its final report. INDU also ensured greater geographic representation, having held lengthy hearings in Halifax, Montreal, Toronto, Winnipeg, and Vancouver. The Heritage committee did travel outside Ottawa.

Comparison of INDU vs. CHPC copyright witnesses

Venn Diagram INDU v Heritage Witnesses

The submission of briefs tell a similar story. Both committees invited the public to submit briefs if they were unable to appear as witnesses. INDU also received far more briefs: 271 briefs went to INDU vs. just 76 to Heritage (this treats a brief submitted by multiple individuals as a single brief). A total of 58 individuals and organizations submitted briefs to both committees, In other words, Heritage only received 18 briefs that were not submitted to INDU. As a result, INDU heard from hundreds more organizations and individuals and received most of the same brief information as Heritage.

Brief comparison

The sum total is striking. With hundreds of witnesses and briefs, there were just 51 that only involved appearances or submissions to Heritage. There were far more submissions and briefs that went to both committees and an even larger number that went exclusively to INDU. That left INDU with a much more comprehensive consultation that overlapped with much of Heritage but also included hundreds of additional witnesses and briefs. Of course, witnesses and submissions tell only part of the story. In upcoming posts, I’ll examine the breakdown of perspectives from the witnesses as well as who the committees listened to as determined by actual citations of witness comments or briefs.

The post Limited Views: Why the Copyright Review Was Right To Ignore the Canadian Heritage Committee Study, Part Two appeared first on Michael Geist.

“Sole Responsibility” for the Copyright Review: Industry Committee Issues Unprecedented News Release Confirming It Was Right To Ignore the Canadian Heritage Committee Study

Michael Geist Law RSS Feed - Wed, 2019/06/19 - 09:05

My series on why the Industry committee rightly chose to ignore the Canadian Heritage committee study on artist remuneration took an unexpected turn yesterday. Hours after I posted an analysis demonstrating that the Heritage committee had ignored its mandate by tabling its report in the House of Commons, the Industry committee issued an unprecedented news release confirming that it did not consider the Heritage report and that its report is the exclusive copyright review. The news release states:

Since INDU presented this report, some stakeholders who participated in INDU’s proceedings have expressed regret that the committee did not consider a report from the Standing Committee on Canadian Heritage (CHPC) as part of the review of the Act.

In March 2018, INDU invited CHPC to contribute to the review by conducting a study on remuneration models for artists and creative industries, and by providing INDU with a summary of its findings.

As master of its own proceedings, CHPC chose instead to present a report to the House of Commons and ask for a response from the Government of Canada.

Reviewing the Act was INDU’s sole responsibility. INDU honoured that responsibility by conducting the review in an extensive, rigorous, and transparent manner that provided anyone the opportunity to express their views on matters of their choosing.

The release continues by noting that INDU heard from a broad range of stakeholders with many also appearing before the Heritage committee. It adds that “the Statutory Review of the Copyright Act thus recognizes every perspective expressed during the statutory review, notably on the remuneration of artists and creative industries.” In an upcoming post, I will unpack this comment as INDU is correct to note that it heard from far more stakeholders – more than triple the number of witnesses and submissions – including more artists and creators than the Heritage committee.

With the Canadian Heritage study now thoroughly discredited by the House of Commons committee tasked with conducting the copyright review, chair Julie Dabrusin’s apparent bet that she could create a shadow copyright review has failed. When the Canadian Heritage study was first released, I dubbed it the “Bulte Report Redux”, a reference to the one-sided 2004 Canadian Heritage committee (chaired by MP Sarmite Bulte) copyright report that was rejected months later by the government. In this case, the Dabrusin report did not last even that long.

Interestingly, the parallels between Bulte and Dabrusin do not end there. Months after the Bulte report was released, Bulte attracted attention for a pricey fundraiser held on her behalf by the heads of the major copyright lobby groups including Graham Henderson of the Canadian Recording Industry Association (now Music Canada). The fundraiser became an election issue in her Toronto-area riding and Bulte lost the 2006 election. As for Dabrusin, she will be appearing next week at the Economic Club of Canada to engage in a “fireside chat” on the so-called value gap and potential reforms. The sponsor of the event and lead speaker? Music Canada and Graham Henderson.

The post “Sole Responsibility” for the Copyright Review: Industry Committee Issues Unprecedented News Release Confirming It Was Right To Ignore the Canadian Heritage Committee Study appeared first on Michael Geist.

No Longer a “Proposed” Telecom Policy Direction: Government Resets Canadian Telecom Policy With Emphasis on Broader Approach to Competition

Michael Geist Law RSS Feed - Tue, 2019/06/18 - 13:48

Earlier this year, Innovation, Science and Economic Development Minister Navdeep Bains sent shockwaves through the Canadian telecom industry by unveiling a proposed new policy direction to the CRTC based on competition, affordability, consumer interests, and innovation (my original post on the proposed direction here, podcast with Teksavvy’s Andy-Kaplan Myrth here). The big three telecom providers unsurprisingly objected to the government’s shift away from facilities-based competition toward a broader approach that welcomed all forms of competition. That shift signalled support for entry of new competitors such as mobile virtual network operators (MVNOs), a signal that the CRTC understood with its new-found support for them.

The proposed policy direction was subject to a public consultation, garnering criticism from the big three providers. Yet the government largely stuck with their position in the final policy direction that was released earlier today.  The final version features several changes that ensures that the CRTC account for the policy in all decision (not just regulatory hearings), emphasizes accessibility and rural coverage, and accounts for new forms of competition and investment. In doing so, it recognizes that the investment means more than just facilities-based, hardware based investments. Rather, it includes software and other mechanisms to bring new competition into the market.

The policy direction will take immediate effect and have a significant impact on Canadian telecom policy.  Just six months ago, the telecom giants were urging the Broadcasting and Telecommunications Review Panel to emphasize facilities-based competition in their report on the future of Canadian broadcast and telecom policy. Bains and the government have jumped ahead of that report (which is still awaiting an initial interim report on submissions – some of which remain secret – much less the report with recommendations due in 2020) with a policy direction that will set the course for new forms of telecom competition in Canada in the years ahead.

The post No Longer a “Proposed” Telecom Policy Direction: Government Resets Canadian Telecom Policy With Emphasis on Broader Approach to Competition appeared first on Michael Geist.

Process Failure: Why the Copyright Review Was Right To Ignore the Canadian Heritage Committee Study, Part One

Michael Geist Law RSS Feed - Tue, 2019/06/18 - 09:57

The release of the much-anticipated copyright review report from the Standing Committee on Industry, Science and Technology has sparked a range of reactions. From UNEQ’s “the committee despises creators” to Canadian Music Publishers Association’s “disappointing“, some groups would clearly prefer that the government pay attention to the one-sided Canadian Heritage study instead. In fact, the report makes it clear that the committee did not read the Heritage study, as the committee thanked its colleagues and noted that it “looks forward to consulting their report.”

That approach angered Heritage committee member Pierre Nantel, who moved a motion that the committee “express its dismay” that its report was ignored. At this stage, it does not appear that the committee will consider Nantel’s motion as no further meetings are planned before the House of Commons breaks for the summer and then dissolves with the fall election.

Yet the reality is the dismissal of the Heritage report is entirely appropriate for several reasons. This post examines the process reasons and subsequent posts will highlight why the actual copyright review was far more comprehensive, as it accounted for the views of many more stakeholders including more creators and users (this week’s Lawbytes podcast also examines the copyright review report).

The process established by the government is important because it dictated how the copyright review would function and what report would govern future policy development. On that front, the government decided that the Industry committee was solely responsible for the copyright review. According to media lines obtained from Canadian Heritage under the Access to Information Act:

The independent review will be led by the Standing Committee on Industry, Science and Technology (INDU). The committee will determine the scope of the review, processes for hearings, submissions and witness selection, and the ways in which it can engage the Standing Committee on Canadian Heritage (CHPC).

Canadian Heritage Media Lines, obtained under the Access to Information Act

In fact, Canadian Heritage was asked by a journalist when the two committees would return with answers and it corrected the record:

Canadian Heritage Media Response, obtained under the Access to Information Act

In other words, there was no doubt within government – including at Canadian Heritage – that the copyright review was exclusively within the purview of the Industry Committee.

That view is consistent with the joint letter written by Innovation, Science and Economic Development Minister Navdeep Bains and then-Canadian Heritage Minister Melanie Joly to the chair of INDU which set the framework for the review.  The only reference to the Canadian Heritage committee came toward the end:

Given that the Copyright Act is a key piece of the creative marketplace legislative framework, we encourage you to tap into the expertise and informed perspectives of the Standing Committee on Canadian Heritage throughout this review. The scope of issues related to copyright is broad and we feel that innovative mechanisms – such as special joint sessions or deep-dive studies on particular subject matters – could ensure that all relevant policy considerations are accounted for in your final report.

It was therefore left to INDU to decide how to “tap into” the Heritage committee expertise. The committee passed the following motion in April 2018:

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

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

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

With its mandate set, the Canadian Heritage committee proceeded to ignore it. Despite being asked to call upon a broad range of stakeholders, the committee’s witness list was far more one-sided than Industry (as will be discussed in a follow-up post). Moreover, the motion called on the Heritage committee to provide INDU with a summary of its testimony and recommendations. The Heritage committee ignored the requirement, instead submitting its report to the House of Commons and misleading some into thinking it was a parallel or shadow copyright review report. It wasn’t and the failure to meet its mandate left INDU with little alternative but to ignore it.

Update: After this post went live, INDU posted its own response to the decision to ignore the Heritage report, confirming that it did not follow its mandate.

The post Process Failure: Why the Copyright Review Was Right To Ignore the Canadian Heritage Committee Study, Part One appeared first on Michael Geist.

The LawBytes Podcast, Episode 16: The Copyright Review Report – Carys Craig on the Roadmap for the Future of Canadian Copyright Law

Michael Geist Law RSS Feed - Mon, 2019/06/17 - 09:05

In December 2017, the Canadian government launched its much-anticipated and much-lobbied review of Canadian copyright law, tasking the Standing Committee on Industry, Science and Technology to lead the way. After months of study and hundreds of witnesses and briefs, the committee released its authoritative report with 36 recommendations earlier this month. Carys Craig, a law professor at Osgoode Hall Law School and one of Canada’s leading copyright law experts, joins the podcast to help sort through the report and to consider what it means for the future of Canadian copyright law.

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:

Standing Committee on Industry, Science, and Technology, Statutory Review of the Copyright Act

The Authoritative Canadian Copyright Review: Industry Committee Issues Balanced, Forward-Looking Report on the Future of Canadian Copyright Law

Credits:

House of Commons, June 3, 2019

Transcript:

Law Bytes Podcast – Episode 16 | Convert audio-to-text with Sonix

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

Dan Ruimy:
Thank you Mr. Speaker. I have the honour to present in both official languages the 16th report of the Standing Committee on Industry Science and Technology entitled statutory review of the copyright act pursuant to Standing Order 1 0 9. The committee request that the government table a comprehensive response to this report. Mr. Speaker I’d also like to thank all committee members, all those that appeared before committee, those that took the time to meet with us and our five city tour, and those that took the time to submit online documents. The committee consulted a broad range of stakeholders to ensure as many perspectives could be considered. In all we held 52 meetings her two hundred and three sixty three witnesses collected one hundred and ninety two brief and received more than 6000 e-mails and other correspondence. I also want to thank our committee’s clerk, analysts and all the supporting staff for doing such an amazing job keeping us on track through such a lengthy and complex study. Thank you.

Michael Geist:
In December 2017, the Canadian government launched its much anticipated and much lobbied review of Canadian copyright law, tasking the Standing Committee on Industry Science and Technology to lead the way. After months of study and hundreds of witnesses and briefs the committee released its review with 36 recommendations earlier this month. The report takes a decidedly evidence based approach and is notable both for what it recommends and rejects. Recommendations include expanding fair dealing and adding flexibility to Canada’s digital lock rules. While the committee rejected a Web site blocking system and a proposal to exclude education from fair dealing where a license is otherwise available. I had the chance to appear before the committee. My remarks were the subject of an earlier Law Bytes podcast as did this week’s guest Osgoode Hall law professor Carys Craig. Professor Craig is one of Canada’s leading copyright law experts and she joins me to help sort through the report and what it means for the future of Canadian copyright law.

Michael Geist:
Carys, welcome to the podcast.

Carys Craig:
Thank you for having me on.

Michael Geist:
After a year of studying the copyright review with hundreds of witnesses and briefs the Standing Committee on Industry Science and Technology that everyone just calls INDU has finally released its report. Why don’t we start with a background of how this came about: so why was there a copyright review and who exactly is INDU.

Carys Craig:
Okay great. So yes this is the culmination of a five year review that was actually mandated by the 2012 Copyright Modernization Act. And so when that was passed itself the result of many years of consultation and consideration of potential reforms. The notion was that it would be worth revisiting in five years to understand the way in which the act was taking shape how it was being applied. And of course bearing in mind the sort of rapidity of technological change. So five years rolled around and the committee was struck in order to conduct this review and that itself took some considerable time. So it’s only now in twenty nineteen of course that we’re finally receiving this report.

Michael Geist:
Okay. So the the initial law or at least the reforms back in 2012. Got to review this every five years it takes a couple takes some time to get it going. They went with INDU and so that’s the industry side. And I imagine that there was some debate at least internally and certainly externally about which committee amongst the potential committees I suppose that the government that the House of Commons has that they chose to conduct this study.

Carys Craig:
Yes that’s right. So in Canada there are two ministries that kind of have an eye on copyright policy. So that is the Heritage and the Industry Science and Technology Ministry. And so there’s always been a degree of and I think maybe it’s fair to say tension in terms of who takes the lead and certainly what we’ve seen over the years is that both ministries have a kind of different approach to copyright policy and so that means it can make kind of a vital difference which industry or which ministry sorry takes the lead in copyright review and copyright reform, which is of course exactly what we’ve seen in this particular process.

Michael Geist:
Right. So industry led but there is also a study report that the committee for Canadian heritage, a standing committee of Canadian Heritage released. It was supposed to be on artists remuneration but has at least been painted by some as the copyright review or a parallel copyright review. I don’t believe it is. Actually I know it isn’t. The copyright review is the report that INDU released. Can you walk us through a little bit the procedural side of the story that led that led to this Heritage study.

Carys Craig:
Sure. Well I mean this is just as far as I know as far as I’ve been able to glean. But certainly the industry committee was tasked with conducting the sort of authoritative parliamentary review of the Copyright Act and perhaps in some ways as a salve to any criticism that should have gone to heritage or heritage ought to be involved I don’t know, and the industry committee requested an advisory sub report. I think that’s the best way to understand it. And from the Canadian Heritage Department and so the the sense was that this was to be as you said an examination of remuneration models for artists and creative industries looking at things like rights management, considering things like new access points, streaming and and reflecting then on some of the challenges and opportunities presented by these new technologies in light of you know that the economic interests of artists and creative industries. Now there’s an awful lot of interesting work being done on the ways in which access to content is shifting, consumer behaviours are shifting, and the way in which new technology is providing new opportunities or avenues for remuneration or exploitation at the same time as it’s threatening old ones.

Carys Craig:
So there really was I think a lot of scope to produce a very interesting, thorough survey of these changes in a way that really could have informed a copyright review process and really made sure that it was a sort of modern review process that had its eye on where things currently stand in technology and in the economy of the cultural industries. As you suggested that’s unfortunately not what we got and I think the reason why people see this review report from heritage as a parallel report is that it essentially seemed to cover the same ground as the industry committee was was covering. But of course to do it from a very different perspective and with a very different result. And I think that at the end of the day is just unfortunate. And it’s a missed opportunity. But I think the main thing is of course that the authoritative review comes from the industry committee.

Michael Geist:
All right. I’d agree with that. So now that we understand what that Heritage study is or isn’t, let’s talk let’s talk about the authoritative review the actual Canadian copyright review conducted by INDU. For me it was striking when you took take a look took a look back at it just how broad it was truly ran for a long time. There were hearings held in cities across the country something you didn’t see with Heritage, multiple phases and both of us participated in the third phase where they brought in some of the academics and the like and it touched on just about every major copyright issue. I wonder what some of your top line impressions or key takeaways were from the report.

Carys Craig:
Well certainly it was very broad. It was extremely thorough and it really is impressive I think the number of people who were able to sort of weigh into the review process, who were able to make their submissions, have their testimony heard, and ultimately the fact that really everyone who provided oral or written testimony is cited in the report. So given this vast landscape that this covers and the number of perspectives that were considered and I think the review although it’s long actually does a really nice job of sort of crystallizing the primary or the main issues that are facing as when we’re thinking about copyright law today and and and creating a sort of overview of the current landscape that is going to be very valuable I think going forward. And it’s not surprising when we think about the process that led up to the 2012 act itself. As you know there are many bills there was much consultation that took many years and it was an attempt to to bring Canada quote unquote up to date with technological developments by finally sort of ratifying the 1996 Internet treaties and following the lead of the US Digital Millennium Copyright Act. And so there was an awful lot that was done in 2012. That itself created lots of new lots of new considerations and concerns and copyright law.

Carys Craig:
So first of all we had new protections for digital locks which we’d never had before. We had a notice and notice system that was a sort of Canada made solution to navigating copyright for Internet service providers. We had a new cause of action called enablement infringement for the provision of network services that primarily enabled copyright infringement by users. And then on the other side of the ledger we had an expanded fair dealing defence with new enumerated purposes of education and parody and satire and we had lots of new exceptions for common consumer uses like making backup copies and time shifting TV programs and making user generated content. So there was a lot there and there was a lot that needed to be revisiting. And of course there were people who were happy with one side of that and not with the other.

Carys Craig:
And so if nothing else what this five year review gave us was an opportunity for everybody to kind of come out and talk about the good and the bad and the ugly as they saw it in that 2012 act and hope that they could maybe expand what they saw as good and roll back what they saw as bad. And so you know there was a lot at stake here and there were lots of people with interests and that they wanted to be represented around the table.

Michael Geist:
Right. I’m glad you you enumerated so many of the changes that took place in 2012. I’m often struck by those that claim that Canadian copyright laws are woefully out of date and we haven’t made changes in a long time and as you went through that very long list of changes it was a true overhaul in 2012. We are still quite clearly grappling with very recent changes that were comprehensive in nature and so was it’s worth noting the committee. So what did we get into a few of those changes that took place in 2012 that then became focal points for discussion at the committee and as part of their report. There are a few issues I think that took more time out because any actually issue that took more of the committee’s time and was a bigger focal point than the issue around education and copyright which ironically enough isn’t solely a 2012 copyright reform issue. But leaving that aside, dozens of witnesses coming from across the landscape: education groups, authors, publishers, copyright collectives all presenting their case on the impact of the state of Canadian copyright law and what it means for education in particular educational copying. Where did the committee land after hearing all these different perspectives?

Carys Craig:
Well maybe just starting at the end and where did the committee land. Because this is really I think for me one moment in the report where I would have hoped I think for something more like a resolution or a substantive recommendation and instead I think what we see in this respect is that the committee hedges its bets but it refuses to endorse really either the proposals that were made by Access Copyright and the publishers in terms of limiting fair dealing but also it doesn’t give the educational institutions you know absolute or unbridled support for their assertions that their practices are lawful and consistent with fair dealing. And so we end up actually with a recommendation that the Government should consider facilitating discussions between the education sector and copyright collectives to try to build a consensus around these issues going forward. And of course that’s with a view I think in particular to the fact that there is ongoing litigation between Access Copyright and York University. And that remains to be resolved before the Federal Court of Appeal and may well proceed to the Supreme Court of Canada.

Carys Craig:
So I think actually the recommendation is perhaps appropriately cautious or responsive to the fact that these issues are very fraught and ongoing. On the other hand if there there’s a suggestion that the courts are I think the committee uses the language appropriately skeptical or that the courts have appropriate skepticism about the assertions of educational institutions claiming that their practices are systemically at fair dealing practices or lawful practices in relation to educational materials and I personally find that unfortunate because it kind of weighs into into the issues or steps into the fray. On the other hand, I think the positive thing is that the committee expressly refuses to endorse the proposal that was put forward by Access and by other publishers that we roll back the changes that were made to fair dealing in 2012. So specifically we added education as a purpose which means that something where someone is engaged in education broadly speaking has a purpose and we can move the analysis of the lawfulness of use onto the question of whether that use is fair. Now as you suggested that actually wasn’t the critical moment for the expansion of fair dealing in Canada. That moment actually came. Well first with the Supreme Court’s ruling in the CCH case and then subsequently with a ruling in the Alberta case which basically said that educational classroom uses of copyright protected materials could be fair dealing for the purposes of private study in certain circumstances. And so the argument over whether education should be enumerated or not enumerated seems to miss the point that the Supreme Court articulated a broad user rights focused understanding of fair dealing whether it’s for a private study or for education.

Michael Geist:
Right. And so I think you’re right about the role that the Supreme Court has played in influencing where those policies are. You know for me the the striking comment coming out of the committee was the reference to the fact that it may be technological disruption and technological change that is driving change in the education sector far more than fair dealing has which you can pick whichever lines you like out of the committee it’s clear they were trying to strike a bit of a balance or at least recognize that there were arguments that they were hearing on both sides of it.At a certain level, When you look at a couple of the other recommendations they had which included don’t conduct a review every five years and get us more data through Statistics Canada and even Canada Research Chair focused on this stuff. It’s pretty clear that the committee itself was torn in part because it feels it’s early and the amount of data that was out there was itself at times conflicting and they wanted to I guess take a bit more time, see this play out in the courts as you mentioned we’ve got this court case. You’ve got the big court case playing itself through the courts as well.

Carys Craig:
Yeah. No I think that’s right. I think that was a very important statement by the committee to recognize that the claims that were before it being made by the Canadian publishers and others that they’re suffering and drastically at the hands of the expanded fair dealing for educational uses the fact that the committee didn’t endorse that and didn’t accept that and pointed to the fact that there are many other causes and other changes that are taking place in the educational landscape around the use of materials. So open educational resources and the use of digital bundling. And also I think the the the fact that our libraries are so much more savvy about negotiating copyright licences and there are easier ways to do this. Certainly the landscape around educational materials has changed dramatically over the past 10 or 15 years even over the past five years. And so you know the committee is right to be wary of wading in and coming up with a kind of one size fits all solution to this. On the other hand given the amount of attention that was paid to this at the time and during the hearings and the amount of evidence that has been presented by all sides even if overwhelming it’s ultimately I think disappointing that we’re still sort of waiting for any kind of definitive resolution on something that is so pressing in the educational environment today.

Michael Geist:
Yeah that’s fair. But I would note that as part of the committee’s recommendations that that was not the only discussion they had around fair dealing and while they were being pushed to roll back fair dealing with respect to education and clearly rejected that as an approach, what they also did was expand fair dealing effectively with a call for more a more flexible approach. Could you comment on that and why it hasn’t got a lot of attention at least in some of the media coverage but certainly struck me as perhaps one of the most notable recommendations the committee made.

Carys Craig:
Absolutely. No I agree. You know so we’re talking about broadening fair dealing so that it is no longer tied just to specific enumerated purposes in the Act but actually is capable of being applied more generally or more flexibly to encounter new kinds of uses that are fair according to all of the normal fairness factors but which might not be squeezed into one of the enumerated purposes. And this is something that’s very close to my heart it’s something that I wrote my master’s thesis on you know coming up 20 years ago and I have consistently been writing and arguing and advocating for the expansion of fair dealing so that we don’t tie it to particular enumerated purposes. And so for me certainly this is one of the most important recommendations and something I’m very happy to see and I’m also I think quite happy to see that there hasn’t been a huge reaction to it because I think that tells us that the time for this has come. That you know certainly against the backdrop of Supreme Court jurisprudence that has urged a large and liberal reading of those purposes. And then just looking at the legislative process involved and trying to add new purposes like education like parody and satire and then lots of news specific enumerated exceptions for backup copies or user generated content, I think it’s become clear to everybody that the the better way to go is just to add two simple words “such as” to the fair dealing provisions and really allow them to operate in a way that is not only flexible right now but is flexible over time and as technologies evolve.

Michael Geist:
I think that’s right. It is striking that was certainly one of the big issues that was raised back as part of the 2012 reforms as the committee was thinking about as you mentioned several new exceptions “such as” approach one that would open it up to any purposes because at the end of the day the fairness isn’t really dictated by the purpose but rather by a series of other factors that are considered, what was a far better approach when that would be in a sense technology neutral and better better able to adapt to changes. It’s nice to see the committee recognize that several years later even as it has also identified yet another fair dealing effectively fair dealing purpose for informational analysis to sort of support A.I. Now that’s not the only revisiting of a 2012 reform that has some connection to fair dealing. So there was an argument for “such as” back in 2012 wasn’t accepted, it’s accepted by the committee now. Another area where the committee is in effect had a bit of a rethink from 2012 has to do with those anti circumvention rules. The digital locks that you mentioned earlier. Can you tell. Can you tell us a bit what the committee now says we ought to be thinking about when it comes to digital locks.

Carys Craig:
Sure so this is another really important recommendation I think. And again something that I’ve been thinking and arguing about for for several years now as you know. And so the question is the extent to which we should be protecting digital locks or technological protection measures and under the Copyright Act and the extent to which that additional layer of protection for digital locks should potentially subvert I think the underlying purposes of copyright or the shape and scope of the rights that the Act protects. So that’s to say you know we’re carefully tailoring and debating the scope of any particular owner’s right. And then the scope or the reach of user rights. And then along come digital locks and they get layered over the top and they get protected no matter what they’re protecting underneath. Or to what extent and what that risks doing I think is preventing people from engaging in otherwise lawful uses with the content that’s behind the lock.

Carys Craig:
So being unable to access that content to use that content for things that are fair dealing purposes or that are fair or lawful whether it’s user generated content, whether it’s criticism or review, or access in public domain materials contained in the work. And this has presented concern over time. I think there was a lot of mobilizing around this in the lead up to 2012. We saw different iterations of the anti circumvention provisions in different bills in the lead up to 2012. And you know I was disappointed at that time that in the end what we did was create a provision that essentially just mirrors what the U.S. had asked for and protects under the Digital Millennium Copyright Act. And so that is there weren’t exceptions for non-infringing uses and there weren’t provisions to ensure that people could continue to access work for non infringing purposes and there weren’t exceptions to ensure that people could actually get their hands on the kinds of devices that would allow them to do so anyway. So all of this was very problematic and I’m very pleased to see the committee now kind of revisit the issue and to acknowledge that there is a problem there. That although there might be good reasons to protect TPMs that it doesn’t make sense for us to be protecting them when what they’re essentially doing is preventing someone from doing something that is authorized under the Copyright Act. And so the committee points specifically to facilitating maintenance repair or adaptation of a lawfully acquired device for non infringing purposes but in the observations they make them more broader observation that people should be able to engage in authorized acts and lawful acts and that TPM shouldn’t prevent them from doing so.

Michael Geist:
I agree that the right to repairs clearly which was driving some of that discussion at the committee but their comment is certainly far broader than that as part of their observations and given given how how much attention this issue got back leading up to the 2012 reforms, it was was undoubtedly one of the very top issues that Canadians were talking about, yet ultimately rejected I think largely due to pressure from the United States. It’s nice to see it revisited and nice to see the committee coming around to where I think many Canadians were back when they first instituted these rules. You know one of the other areas that the committee touches on that has also attracted a lot of attention and it’s attracting a lot of attention now has to do with copyright term. I was speaking with Myra Tawfik just last week about copyright term and it’s the extension as part of the USMCA. The committee talked about term too. What did it have to say?

Carys Craig:
Yes. So this is another place where I was both surprised and very pleased to see the committee actually address this as though it’s not a fait accompli as though it’s not something that Canada necessarily has to do by virtue of its international obligations and that is extending the copyright term from the life of the author and 50 years to the life of the author and 70 years. And you know we saw in the Heritage report and the suggestion that no one had really objected to this and that we recognized it was something that was going to have to happen. And so the Heritage report just recommended that it should happen. And so what’s really refreshing I think and looking at the industry review is a critical engagement with that assertion. So first of all questioning or accepting that you know maybe it has to happen, but we should ideally not to do it. And therefore if it does happen we have to find ways to mitigate the costs or the harms that this term extension would cause in Canada. And so you know first of all that just is a recognition of the importance of the public domain of the significance of having a shorter term as we can possibly have to ensure that works fall into the public domain and are available to be freely used and to circulate and to be reused once copyright ends. And then there’s some creative sort of thinking around how we might mitigate the harm of a term extension if it isn’t deemed necessary. And so here you know because the international baseline requirements in the Berne Convention are life plus 50 years. What that means is that there might be some room for us to create conditions for a copyright protection beyond that term that that we wouldn’t be allowed to have during that term.

Carys Craig:
Right. So whereas we’re not let’s to formalities like registration for life plus 50 maybe for those extra 20 years we could require that copyright owners register or reregister their work maybe pay a fee for that additional time that there might be other formalities so that it’s not just an automatic continuation of term, but is actually a sort of surplus benefit that we make available on certain conditions. And you know there’s some good economic sense behind that kind of proposal. One would assume that if there’s an economic value ongoing for the exploitation of a particular work that the copyright owner will be willing to register and to pay and and so that will probably still be available for works and you know that’s to my mind still unfortunate because it takes valuable work out of the public domain for an additional 20 years but at least we know what those works are we can look them up on the register and we can subject them to particular conditions or costs associated with that added benefit. And meanwhile the works are not still being exploited can be freely used and so we avoid some of the orphan works problems and just the the lost benefits and that we suffer when we re-enclose those works and behind copyright ownership a point where nobody even knows who the owner is.

Michael Geist:
A really creative approach that addresses the concern that some have that they want to have longer terms for certain works but in many other instances we avoid the orphan works problem any other instances the work simply entered into the public domain. So it’s it’s nice to hear that both with respect to flexible fair dealing, digital locks, copyright term, the committee with a for a forward looking approach and in a sense revisiting some of the kinds of approaches that we’re taken a number of years ago. Is there anything else in the report before we wrap up that kind of caught your eye and surprised you either for the good or even perhaps not for the not so good.

Carys Craig:
Yeah. I mean I think it just in terms of the general tone I agree with you you said earlier about the emphasis on data gathering and evidence based policymaking and so for me that’s kind of a big take away from this and not unrelatedly, I think is the committee’s resistance to the urgings that I’m sure it heard from many people before it that Canada consider following the EU lead with something akin to the European digital single market directive and in particular Article 17 of that directive that has been so controversial which is about of course online content sharing service providers and essentially making them liable for the content that’s uploaded by their users. And I think what the committee does here is indicative of what’s good about the report generally which is to say this is a controversial area. We understand there are particular actors in particular people who would like to see copyright move in this direction, to kind of responsibilize these service providers and ultimately make them liable for content that shared or force them to engage in broad based licensing practices. And here the committee I think does a good job of saying you know we don’t know what the implications of this are going to be. We don’t know how it’s going to look in different member states when it’s enacted. And our commitment to this evidence based approach to copyright policy making requires that we wait and see. And so I think that’s good. And also the tone that set in that discussion insisting upon a balanced approach when it comes to online service providers and saying you know that the intermediaries here are not just service providers but also record companies, also large publishers. I think these are important observations.

Carys Craig:
But mostly I think that conversation culminates in a statement that’s very important which is a recognition that copyright law has limited tools to address the kinds of issues that are being presented to the committee. So arguments that Canadian creators and Canadian creative industries are suffering and that the Copyright Act alone cannot ensure that Canadian creators and creative industries receive fair compensation that it cannot solve the problems that are faced by artists. And you know this to me is key because one of my greatest frustrations actually in the copyright debates is this sort of persistent fallacy that copyright law is either responsible for or even remotely capable of solving the inequities, the unfairness that are experienced by artists or the dismal underfunding of culture in the arts in our economic system. And I think for this committee to recognize that the limited tools of copyright law and to acknowledge those in the face of the pleas of content industries is a really important moment.

Michael Geist:
It’s a fantastic point and you know ironically that kind of analysis and discussion is what I would imagine the committee thought they might be getting from the Canadian Heritage Committee and of course ultimately didn’t. So that recognizing the limits of copyright especially in the areas I just articulated are important. Why do we close by asking you about the limits of this report. It comes towards the very end of the parliamentary session, we’ve got an election coming up in the fall. Any thoughts on what next for the report and copyright reform in Canada?

Carys Craig:
Well you know certainly I hope that this that Parliament however it’s constituted after the next election recognizes the value of this report and the importance of the consultative process that led to it and follows through really on a lot of the recommendations that we see here. I don’t think it should be politicized. I don’t think that it should depend upon which party takes power. You know copyright has always been interesting in the way it sits along party lines. And so hopefully that means that the the relevance and the pertinence of this report will persist ovet any change in government. The other thing that the report acknowledges at the end is that copyright policy is necessarily an ongoing and dynamic conversation. And I think that’s exactly right. Constantly the conditions are changing we have to have our eye in different ways in which copyright works as technology shift and as consumer practices shift and not because we have to go in there every moment and change in a little subsections here and there, but because we have to be aware of the fact that the implications of copyright change as the realities of our consumer culture and our consumption of creative content change. So hopefully I mean I think this has set a good tone. I think we have a ton of great information here for Parliament to work with and I hope that this is the report that really captures the imagination of Parliament and allows for a sort of ongoing copyright review or reform process that keeps us eye on the public interest and the copyright balance.

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 16: The Copyright Review Report – Carys Craig on the Roadmap for the Future of Canadian Copyright Law appeared first on Michael Geist.

Message Received: Why Unlimited Wireless Plans Show Government’s Emphasis on New Competition is Being Heard

Michael Geist Law RSS Feed - Thu, 2019/06/13 - 11:56

Long available in other countries, “unlimited” wireless plans arrived among the big three carriers in Canada yesterday with Rogers launching new unlimited options that offer 10 GB of data at full speed and unlimited additional data at a far slower speeds of 256Kbps. While some criticize the throttled overage speeds or the inferiority of the Canadian plans when compared to what is available in the U.S., this is a good step for consumers that ration their data each month in fear of incurring significant overage charges. Indeed, the comparative data shows Canadian consumers use less data than consumers elsewhere, particularly subscribers with Rogers, Bell, and Telus. Moreover, with carriers generating more than $1 billion per year in overage fees, the change is not trivial with some analysts characterizing the move as a negative for Canada’s wireless industry.

As both Telus and Bell raced to offer comparable alternatives, the introduction of unlimited wireless plans provided a ringing endorsement of the government’s new proposed policy direction that should take effect shortly. Innovation, Science and Economic Development Minister Navdeep Bains is calling on the CRTC to encourage all forms of competition – a clear rejection of prioritizing “facilities-based competition” – which promises to result in the entry of new competitors, including mobile virtual network operators. Bains doubled down on that message last week despite predictable criticism from the industry, leaving little doubt that new competitors will take time, but they are coming.

In doing so, the prospect of greater competition through regulated mandates has once again sparked industry action with the introduction of unlimited plans. If this sounds familiar, it is because Canadians experienced this before. For example, when the OECD reported that Canada had some of the highest wireless roaming fees in the world in 2013, the CRTC responded to public pressure and began to investigate. The industry acknowledged that regulation was likely (a Rogers executive said “the roaming initiatives, which frankly we think are imperative in the long run to kind of get roaming in line, or I think we will see the same kinds of things that we’ve seen in other parts of the world where it becomes high on the regulatory agenda.”) which in turn led to reduced roaming fees and some innovation (the briefly useful Rogers Roam Like Home).

The same process has unfolded numerous other times: wireless number portability, device unlocking (which Telus once argued was copyright infringement), lengthy consumer contracts, and a consumer wireless code (which the industry only supported once provincial versions began appearing). In each instance, the industry opposed pro-consumer reforms until it became clear that the alternative was a regulated solution. Last week, Bains sent the message the government was not going to veer from its path of prioritizing all competition, not just “facilities-based” providers. With the introduction of unlimited plans, consider the message received.

The post Message Received: Why Unlimited Wireless Plans Show Government’s Emphasis on New Competition is Being Heard appeared first on Michael Geist.

Super-Secret Submissions: Corus and SaskTel Block Disclosure of Their BTLR Submissions Claiming Prejudice to Their Competitive Position

Michael Geist Law RSS Feed - Wed, 2019/06/12 - 13:24

Over the past few weeks, I’ve been posting several of the more notable submissions to the Broadcast and Telecommunications Legislative Review Panel submissions that were previously not released to the public. These included Bell, Shaw, Cogeco, Quebecor, CWTA, and a Rogers submission that was released months after the submission deadline. The Access to Information office at Minister Navdeep Bains’ ISED has now completed the request and says it cannot disclose submissions from Corus and SaskTel. Both companies are apparently taking the position that they can withhold disclosure of their submissions on competitive grounds, citing Section 20(1)(c) of the Act:

Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains …
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or

The notion that a company can stop public disclosure of submissions to a public process by claiming prejudice to a competitive position raises serious transparency concerns about public processes. As I told the ATIP officer, withholding an entire document – even including materials that are presumably introductory in nature and surely inconsequential to a competitive position – creates a level of secrecy that runs directly counter to the very goals of open government. While the submissions will be made publicly available within a matter of weeks, the process associated with BTLR secrecy ultimately reflects poorly on the panel itself which unnecessarily adopted a secretive approach, Corus, SaskTel, and the government.

The post Super-Secret Submissions: Corus and SaskTel Block Disclosure of Their BTLR Submissions Claiming Prejudice to Their Competitive Position appeared first on Michael Geist.

The LawBytes Podcast, Episode 15: Cows, Cars, and Copyright – A Conversation With Myra Tawfik on the IP Concerns With Implementing the USMCA

Michael Geist Law RSS Feed - Mon, 2019/06/10 - 09:05

The new NAFTA – dubbed the USMCA or CUSMA depending on where you live – took a significant step forward recently with the introduction of Canadian legislation designed to ratify the treaty. The economic implications of the agreement are enormous, particularly with respect to digital issues and intellectual property. Myra Tawfik, a law professor at the University of Windsor and Senior Fellow with CIGI, joins the podcast this week to discuss Canada’s longstanding history of facing external pressure on copyright, the role that trade negotiations now play with that pressure, and the implications of the USMCA.

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:

Canada Introduces USMCA Implementation Bill…Without a Copyright Term Extension Provision

Credits:

CBC News, Canada Introduces NAFTA 2.0 Implementation Bill
CNBC, Trump: Trade Deal Protects Patents, Intellectual Property
Globe and Mail, Flashback: President Clinton’s Original Signing of NAFTA Into Law in 1993
CNBC, Key Differences Between the New USMCA Trade Deal and NAFTA

Transcript:

LawBytes Podcast – Episode 15 | Convert audio-to-text with Sonix

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

CBC News:
Signed sealed and now delivered to the House of Commons. Just last hour the Federal Government tabled a bill to implement the new NAFTA a deal that Canada the US and Mexico reached six months ago after 15 months of negotiations.

Justin Trudeau:
Canada the US and Mexico are at our most efficient most secure and most profitable. When we work together. And it’s about time we got back to that way of thinking. Mr Speaker, the new NAFTA will secure access to a trading zone that accounts for more than a quarter of the global economy. And it’s now time for the members of this House to ratify it.

Donald Trump:
Likewise it will be the most advanced trade deal in the world with ambitious provisions on the digital economy, patents very important.

Michael Geist:
The new NAFTA, dubbed the USMCA or CUSMA depending on where you live, took a significant step forward recently with the introduction of Canadian legislation designed to ratify the treaty. Bill C-100 comes near the end of the legislative session and just months before a federal election but the government may still work to rush it through the parliamentary process. The economic implications of the agreement are enormous. As Professor Myra Tawfik, my guest on this week’s podcast has noted it, touches on everything from cows to cars to copyright. Professor Tawfik is a leading copyright expert at the University of Windsor and a senior fellow with CIGI, the Centre for International Governance Innovation. She joined me to talk about Canada’s long standing history of facing external pressure on copyright, the role that trade negotiations now play with that pressure, and the implications of the USMCA.

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

Myra Tawfik:
Thank you for having me it’s a pleasure to be here.

Michael Geist:
Well it’s great to have you and it comes at a time where there is a lot certainly taking place from an intellectual property perspective. We’ve had just this week as we’re recording this another copyright review which will have significant consequences for where things go but but even more there is now a bill at the house that deals with the implementation and ratification of the new NAFTA, the USMCA, which has significant implications for intellectual property as well. And so I thought we could focus a bit on what’s in the bill but even more the very issue that that IP becomes an important part of these trade deals which we can take people by surprise. So why don’t we start there.

Myra Tawfik:
IP hasn’t always been a big part of trade deals. I mean it was NAFTA actually that the first NAFTA, the original NAFTA that introduced the concept of having intellectual property rights as part of international free trade agreements.

Bill Clinton:
I’d also like to welcome here the representatives from Mexico and Canada and tell them they are in fact welcome here. They are our partners in the future that we are trying to make together.

Myra Tawfik:
And that was a significant shift. So we’re talking sort of what are we talking about sort of 25, 30 years ago where the the U.S. particularly started to think about ways in which it could maintain and grow its advantage in the international trade landscape and IP of course in the U.S. is sort of a huge developer and exporter of intellectual property. And I think that’s  has had a fundamental shift in the way intellectual property rights have been viewed both domestically and within the international framework. So NAFTA was the first to do it. So it’s a fairly you know in the grand scheme of things it’s it’s not that that long ago. But from NAFTA to the WTO TRIPS and onward to every international trade negotiation and trade agreement since then there has been an intellectual property code in most of them.

Michael Geist:
Ok. And when you talk about international code and these trade agreements I assume we’re talking about everything from the new Canada- EU trade agreement, the TPP the Asia trade agreement, this isn’t just a U.S. Canada Mexico thing. This is global in scope.

Myra Tawfik:
It is global in scope. It is although if you if you look at some of the bilateral trade agreements that Canada has entered into since NAFTA and TRIPS sort of you know a number of them with some some of the South American countries et cetera we you know we we haven’t necessarily put intellectual property in those trade agreements which suggests to me sort of you know Canada’s you know Canada’s perspective within this context that IP rights or IP codes within trade agreements may not necessarily be to our priority of ours but yeah absolutely. So at particularly every trade agreement in which the U.S. is involved or the European Union you’ll find you know these intellectual property provisions or intellectual property code name calling codes but sort of you know chapters that deal specifically with the various forms of intellectual property rights. And what we’ve seen over the years from this from NAFTA as the beginning adapted WTO TRIPS is an increasing kind of attention to raising and enhancing and strengthening the intellectual property rights with each trade iteration of these new trade agreements.

Michael Geist:
So that’s interesting because it suggests that Canada’s participation in these trade negotiations and agreements and then ultimately with these IP chapters isn’t something that’s necessarily a priority for the country if you take a look at the recent Israel agreement, the South Korea agreement or some of the other agreements. It’s not Canada that is pushing this you’re suggesting this is this is coming in this case from the United States.

Myra Tawfik:
Yeah I think that’s correct. I mean you know I think you know I do. If you look at kind of you know over the long term the centuries you know at least a couple of centuries of Canadian involvement in international intellectual property rights especially the international copyright space but generally, we’ve always been somewhat sort of ambivalent about you know where where we should place ourselves as a middle power, generally an importer of intellectual property so it’ll always it’s always going to cost us more sort of to buy the IP from elsewhere and obviously the US looms large not only kind of in you know in the practical realities of of us engaging with US in in you know imports and exports of you know copyright works et cetera but also just sort of in terms of you know a dominance you know sort of thing that this sort of there’s a you know sort of a psychology around our relationship with the United States that you know that you can trace that way back you know to the 19th century. So you know it’s not it is it is always sort of this this you know ambivalence about what our what our place should be within these these intellectual property international intellectual property system. And it is usually the U.S. that looms large kind of in. In determining our approach to to a great extent not totally but to a great extent.

Michael Geist:
You’re one of the leading copyright historians in the country can I want to come to today. But you know I can’t help it but ask you ask you to sort of expand a bit on sort of the history side and since we’ve seen this for decades if not centuries in terms of U.S. pressure on Canada.

Myra Tawfik:
Yeah. No I know we want to talk about today but I do think I mean one of the things about looking back in time is you start to see a picture that is sort of more kind of longitudinal and evolves over over centuries in our case. But you know there there was one of the most poignant things about doing copyright history is to realize that there was probably a there was only about a decade and this was prior to confederation where Canada or Canadian colonies at the time actually had autonomy to determine their own sort of intellectual property laws to do the course and the policy underlying the intellectual property laws and by the mid 19th century the U.S. had become sort of a very important force in you know with with Britain. I mean was still a British colony at the time. But the point is it sort of became it started to assert its own economic and cultural interests in a global  space by the the middle of the 19th century. And we were caught up in that.

Myra Tawfik:
And so every time sort of the US sort of had to add up a dispute with UK over the imports of British copyright works etc. We got caught in the crossfire because our market became a bargaining chip for the British for example to try and enter into some kind of compromise agreement with the United States and so I know it’s there I do want to get it is too much to get into the detail but the point is that you know with every international trade agreement including the Berne Convention I’m not trade but the copyright agreement the Berne Convention we’ve always been sort of there’s been this ambivalence because we can’t detach ourselves from the reality that we love to consume American entertainment and other products sort of in the copyright space but we also don’t we lose control then autonomy over how to determine our own policy interests and therefore how to chart our legislative course in a way that matches those. And what we’ve tended to do is adopt multilateralism I mean that somehow that that there’s strength in numbers and that we should sort of be you know good international citizens and that we’re better off kind of in a regional or multilateral agreements than on our own. And I think that’s generally been a good approach for us but it does mean that particularly on the internal intellectual property front we are often dictated to by you know by others whose standards are by definition you know necessarily higher than ours, because they are the ones that are producing the intellectual property that we’re consuming and I. And that has been a pattern sort of you know I mean I say I won’t go into the detail it’s fantastic history but it it has been our pattern and I don’t know. I mean I think work arriving at a moment where we are actually engaging. I see it with greater maturity in these international negotiations. I mean there are some of some parts of Canada U.S. Mexico agreement that that are actually sort of do you know take into account Canadian interests the cultural industry’s exemption which we had in the first NAFTA, the notice and notice kind of preservation of notice and notice, I mean those are things that you could see sort of Canada’s identity or autonomy coming through. But on the whole every time we’ve entered into any of these international trade agreements it’s because someone else and usually the United States has wanted to impose higher standards because it serves their interests. So we’ve often adopted sort of international principles or rules that serve the interests of other countries rather than first and foremost our own and that on that point that has been our history for a long long time.

Michael Geist:
Amazing to think that there’s nothing new here in the sense of facing pressure from the United States and ultimately as part of that broader trading relationship being willing to give on the intellectual property side presumably in the expectation that there were gains elsewhere.

Myra Tawfik:
Right. That’s right.

Michael Geist:
So I do want to touch on some of the places where we may have shown that greater maturity or willingness to stand up for ourselves. But I guess first let’s just make sure people are familiar with the landscape here. The USMCA or CUSMCA depending on which country you and what acronym you want to use. There is of course still some doubt as to whether or not we’ll get ratified it is rather old disorienting to the extent to which you had the U.S. vice president promoting the trade agreement in Canada at the same time that Trump was threatening new tariffs on Mexico suggests that this may not go anywhere. But what if it does Canada clearly wants to be ready. They’ve now put forward a bill that allows them to do that for someone new to the issue thinking about intellectual property. What’s the what’s the what’s the biggest issue in there in that bill do you think?

Myra Tawfik:
I think that while the biggest issue again because you know my my bias is towards copyright is is sort of the term what we call the term extension so the the the obligation that Canada will have to extend the term of copyright protection what from what it currently is which is life as the creator of the copyright work plus 50 years after the death of that creator to to to move to move it or increase the term by 20 years to a life plus 70 duration of protection which is also the norm increasingly becoming the norm in in key international and key you know partners, international partners or an in in key jurisdictions like the European Union, the United States has a similar kind of you obviously as a life plus 70 term, Mexico I think still has a life plus a hundred term. But we have maintained and been very strong on maintaining our view that we should only abide by what we’re the minimum term that we’re required to do to to adhere to under the terms of the WTO TRIPS and the Berne Convention which is a life plus 50. So this will be significant.

Michael Geist:
Yes there’s a change. It will. Thank you for that. It will be so just so we’re clear though Canada does currently meet its international obligations with the life plus 50.

Myra Tawfik:
Absolutely. Canada has always met. I mean that’s what sort of Canada’s always met its international obligations. You know again if you go back over the parliamentary debates around Berne and or in and early in the 20th century we’ve always been very conscious and conscientious about meeting our international obligations. So there’s no doubt about that where where the quibbling is is in. You know that there is wiggle wiggle room in terms of these international treaties and there should be and some sort of other countries insist that we actually should be adhering to higher standards but we are we are adhering to our international commitments. Absolutely.

Michael Geist:
Okay. What’s your argument then for you know that I know some of the answers, but I’d love to hear your perspective on what are some of the arguments then to extend copyright term if as a starting point we meet the international standard and if copyright is about creating incentives for creativity along with access. If we’re going to in a sense gift an extra two decades of protection to works that have been already created which is there a strong policy argument for extending term beyond this is the pressure we’re facing from the United States.

Myra Tawfik:
Well I mean I see that the sort of the most kind of I suppose sort of benign or neutral argument is that you know the life plus 50 term sort of originated you know in the early late 19th early 20th century and that at the time it represented sort of the life of the author plus two generations basically as of heirs or you know estate that could could claim the copyright. In other words there was the sense that you know because the that the author the creator has created something sort of that’s worth you know worthy or worth something to posterity that the heirs should be able to claim after the author passes away. And so you’ve got sort of that that 50 50 as two generations and so that you know, well people are living longer and therefore it’s only natural to extend the term I mean it’s just a sort of a no brainer kind of thing you extend the term by 20 years because people are living longer so you’re you’re adhering to the same principle and you know recognizing the reality that you know and in our in our sort of century we’re living longer. And so what could be you know a problem with that.

Myra Tawfik:
The other argument of course is because of the you know the international dynamic I mean one of the reasons or one of the pressures that comes from increasing intellectual property standards globally is that Canadian creators et cetera will start to realize or will feel that they’re actually disadvantaged or that you know the Canadian market is disadvantaged because there isn’t this sort of harmonization of the term by 20 years. And so they would put pressure again on on on Canada to meet what is now at you know notionally the claim is now becoming the international standard. And so you know I mean I find it I I. Obviously biased. I mean I don’t I don’t think first of all intellectual property rights were never intended to unlimited rights. I mean they’re they are limited for particular public policy purposes. And so the idea of continuously Oh it’s just 20 years it’s just another 10 or so people are living longer whatever it doesn’t persuade me that this is something that is in the best interests of Canadians as a whole. And Canada sort of as a country. So I find it hard. I mean you know those are the arguments that are put forward. But I think no matter what what you do any extension of copyright term you know it harms kind of the ability for people to access and work with the sort of ah ah you know cultural literary but you know sort of the also sometimes very technical practical software for example is a copyright work but to to enable us to engage with those works once a reasonable period has expired where the copyright holder has had the benefit of being able to exploit commercially the there there create the results of their creativity.

Myra Tawfik:
So know I don’t if I answered the question but it’s hard. I find it difficult because I I feel fundamentally that that copyright should be limited in duration and that you know the argument that it’s just another 20 years because people are living longer doesn’t persuade me that it’s always necessarily a good thing to continue to heighten or strengthen copyright rights.

Michael Geist:
So there and there is certainly is clear opposition to this notwithstanding that the Canadian Heritage Committee had to say in its review of some copyright and remuneration issues when it didn’t hear from anyone that was opposed to it it’s quite clear and we saw it in the other in the main copyright review that there is. And you’ve articulated the arguments for but also some of the costs because there are costs associated with it. So Canada has resisted this for some time both in terms of sticking to what they’ve done as well as taking it off the table in some other agreements for no mistake and including for example the CPTPP.

Myra Tawfik:
That’s right. I mean I think the CPTPP is a really good example of where Canada positions itself in the international trade and IP landscape because if you look at sort of the original TPP when the U.S. was a participant you see a lot of the same kinds of provisions that we’re seeing and sort of NAFTA 2.0. But when the U.S. withdrew the agreement that ultimately signed if Canada participated in contains some suspensions of key intellectual property provisions which you know in other words again that the duration of copyright this extension of term was not included as part of an obligation or at least suspended. And in terms of an obligation under the CPTPP. So I think you get an indication there of where Canada’s feels more comfortable developing or whether increasing or remaining at you know its life the life plus 50 for example level which he has had is has been sort of the standard for for a long long time. So yeah I think there’s there’s there’s there’s evidence there of Canada’s position on these things and that’s a good example of Canada taking more of a lead lead once the U.S. withdrew to be it being able to carve out something that is maybe closer to where Canadian policymakers think the international IP system should the direction it should be taking.

Michael Geist:
It strikes me that that we’ve seen an attempt to perhaps continue that even within this USMCA because in this bill I think most expected to see an extension in the term of copyright but we didn’t get it immediate. No no. The there is a transition period, two and a half year transitional period, and it would appear that Canada is intent on using that transition period to delay implementing an extension and perhaps thinking about alternative ways to extend term of copyright if that’s an ultimate requirement. What do you think they might have in mind and what’s this delay in a sense about.

Myra Tawfik:
Well I think I mean you’ve obviously commented on this and I think this is a really good example of Canada sort of looking for you know being part of the international community but looking for Canadian made or solutions that actually work within or that that that that that is consistent with you know Canada’s vision or understanding of its of its role in the international intellectual property space because it really is sort of this this two and a half years to consult to sort of figure out ways of compromise I think is is really genuinely you know an assertion of autonomy in these negotiations and if there’s any indication I mean if you look at the Standing Committee on Industry Science and Technology there report that just was it was just released. They make a suggestion about how we might address the last 20 years of our life moving to life plus 70 by imposing a formal registration requirement for those last 20 years and any infringements. So if you have sort of if if copyright is infringed in that those last 20 years only the registered only you could only sort of pursue for infringement if you’ve registered your right. So life plus 50 and then a 20 year period where we are introducing a formality or that’s the recommendation of the INDU committee a registration formality.

Michael Geist:
Right. It’s a really interesting approach.

Myra Tawfik:
So it really is.

Michael Geist:
For those that aren’t familiar with the issue around formalities you’re not permitted to have those formalities for the base requirement internationally. So that’s the life plus 50. And so what it appears there may be a possibility of doing it well we’ve even seen a recommendation now to do is to simply say we’ll provide life plus 50 plus 20 as opposed to a pure life plus 70 and that extra 20 is there if you want it but I assume that or presume that that many makes. By that point in time say we’re comfortable with this being in the public domain which will allow us to allow those copyright owners who want to ensure that they’ve got copyright protection to continue to have it for that full period. But those that by that point in time aren’t interested anymore to ensure that those works flow into the public domain.

Myra Tawfik:
Absolutely I mean I think what it does is it creates certainty for those last 20 years for like you said as you say. I mean for those either the work. I mean there’s no one you know sadly no one cares about the work anymore in that that after that length of time or you know the the the copyright holders are happy with having it fall into the public domain. That’s that’s great. But only those who have made then a formal and have identified themselves through a registration formality so there’ll be a registry that you could go and check and determine whether or not they’ve made they’re maintaining their rights. I mean that creates certainty in ways that actually in the past the registry you know before has explained copyright you don’t have to register your right there are no formalities to securing the right. There used to be way back when and that you know there’s sort of we gave up. I mean that creates certainty. Those records obviously create certainty and there were very sound policy reasons for moving away from that but reintroducing this in in the last 20 years I think is a really innovative creative compromise to addressing some of the problems about the length the duration of copyright. You know in relation to for example sort of orphan works which are works in which the author can no longer be found to secure permissions. I mean there are all kinds of things that happen if you think about you know the lifespan of of of us an author or creator and then 70 years after the author’s death. You’re talking about a long period for there’s you know lost the loss of living memory here at least there would be a tangible record of the individuals maintaining their their copyright right. So I actually think that’s a really creative and effective compromise that you know I’m I really it’s really quite interesting that it came out in the standing committee’s report.

Michael Geist:
Right. It’s exciting to see that happening both at the policy development level through the committee and then potentially at the government level as well given that they have not put it into this bill. There’s this is obviously not the only provision in there. Are there other things people should be paying attention to on the IP side within Bill C-100 and this implementation.

CNBC:
Now one of the main goals for renegotiating NAFTA was to create a more modern agreement. The current deal took effect about 25 years ago before the advent of the digital economy. Now there’s a framework for dealing with intellectual property. Pharmaceutical companies will also get exclusive marketing rights on biologic drugs for 10 years.

Myra Tawfik:
Well one of the provisions that’s been controversial has been this issue regarding patents and biologics. And I must admit I’m not you know sort of as you know familiar with the technical side of it but it relates to some forms of sort of pharmaceuticals and some of the arguments. So we have currently have an eight year sort of protection sort of added protection or additional protection for that form of patented invention and the obligation for us is to move to 10 years and the two year I mean it may seem not not seem like a long time two years but two years and sort of. You know when when you’re dealing with you know very expensive pharmaceuticals where we want to introduce new medicines to you know for public health reasons et cetera that these these this added two years will create a burden in terms of the fear is that it will raise the costs which are the costs of drugs for Canadians with which are already quite high. We’re paying a lot for our pharmaceutical medicines. So that’s one that is worth watching because there has been a lot of criticism about that again the idea that that the enhancing intellectual property rights, So two year term on biologics or life plus 70 in copyright I mean every time you you enhance kind of the right to give more rights to the to the the right holder there’s there’s a cost associated with that and obviously those who those countries that are strong producers of those outputs or outcomes or whatever are the ones in there it’s in their best interest to ensure that they can get us as much protection for as long as possible. And of course the corollary is for those countries like Canada that cannot compete and cannot produce to the same extent. It means that there is a cost to us and the cost here is sensitive obviously because a lot of we’re talking about in many instances obviously sort of important pharmaceutical products.

Myra Tawfik:
So that’s one that I think you know needs to be looked at which has raised some criticism or discussion. The the other is there’s some, you know there’s I mean the intellectual property provisions obviously cover every form of intellectual property so copyright patents trademarks trade secrets industrial designs. I mean it covers the range and provides enhancements and you know tweaks and sometimes significant changes to all of the forms of intellectual property. The other one that’s been flagged as an issue for Canada relates to what we call trade secrets or the law of confidential information where the U.S. has been pushing it.

Myra Tawfik:
And if you read kind of the you you you the the various reports issued by the U.S. trade representative sort of on it’s intellectual property assessments annually. It’s concerned that countries don’t provide enough criminal sanctions for industrial espionage basically or misappropriation of trade secrets with intent or you know that we’re not we’re not aggressive enough and that there are provisions in the Canada U.S. Mexico agreement that that deal with you know enhancing the criminal side of our existing laws trade secret laws which are provincial actually. So it does create kind of another layer in terms of constitutional jurisdiction that we need to pay attention to. But again the arguing some argue that we already do provide sufficient we already meet our obligations under you know NAFTA and therefore won’t require any significant changes. But I think there’s sort of an ethos behind what you the US kind of criminalizing appropriation of certain kinds of trade secrets that you know we need I think to watch for even if we do in principle abide by the the the the rules in the NAFTA 2.0 agreement. I think that there’s there’s good it’s opening the door to further persuasion negotiation et cetera around us developing a much more robust or aggressive criminal range of criminal kind of remedies or criminalizing certain aspects of of trade secret law that we don’t currently do.

Michael Geist:
So we’ve got expansion of trade secrets including criminalization related concerns, we’ve got higher costs on the patent side, higher costs on the copyright side. Why don’t we wrap by just asking is this the right place for these kinds of issues. Each one on there would be a major policy issue that one would like to see debated. Is there a concern –  rhetorical question. Yeah shouldn’t there be a concern that these kinds of big policy issues with real costs run the risk of getting lost amidst massive trade deals that have implications for every aspect of our economy.

Myra Tawfik:
That’s absolutely right. I mean I’ve never. I mean once we we agreed and once the international community decided that intellectual property rights should be contained or these chapters should be contained in international trade agreements you know we have been unable because what they do of course is they’re inflexible. There are kind of you know you have to buy into the whole agreement not just you can’t pick and choose. So you can’t say I don’t like the intellectual property chapter so I’m not going to agree to that but I will agree to the chapter on that dairy or whatever it might be. So we have to accept everything within the agreement which means it’s sort of horse trading you’re going to give and take in certain areas the policy these fundamental policy issues around each one of intellectual property and how they they they land a practice in Canada and what kinds of you know what’s the global public interest in relation to intellectual property rights get lost.

Myra Tawfik:
And so if we could turn back the clock and go back to the time where we had separate international treaties or international agreements on each form of intellectual property. So the Berne Convention that deals with copyright, the Paris convention that deals with you know patents trademarks industrial industrial property, I mean you’ve got all of those international treaties that dealt specifically with each form of IP and address the policy concerns you know in a in a multilateral sense. Now we’ve got we’re trying to do all of our intellectual property within the rules and constraints of an international trade agreement which is a fundamentally different sort of beast basically settlement different. Agreed. The nature of it is fundamentally different from the nature of standalone intellectual property agreements. So absolutely I think where I think each. Each time each time we enter into these agreements each time we deal with enhanced IP rights globally we lose flexibility and I think we do need to ask ourselves this is not just a Canadian issue. I mean it is an international issue. Is it necessarily in this global public interest that we should continuously be engaging in in with IP in the International Trade Forum and with a view always to increasing and enhancing the rights. There is a point at which it’s strong you know sort of there. There will be a tipping point if we haven’t reached it already where you know intellectual property rights actually hinder impede innovation creativity and we will be you know all of us globally the much poorer for it. So I agree I think I think we need the policy issues that we need to be addressing are not being dealt with in the international trade format yet that’s become the primary forum for dealing with international IP. You know since since NAFTA since the first NAFTA.

Michael Geist:
I just just a riff on a line that you used when we reached the agreement. That’s all happening from a Canadian context where we are prioritizing economic issues like cows and cars.

Myra Tawfik:
Yeah you’re right. Yeah yeah I think it should be the three C’s cows cars and copyrights. We can’t lose sight of of the importance especially near global innovation economy of our our need to start to understand how to play in the international spaces in intellectual property. So we have cars cows and copyright.

Michael Geist:
That’s a great way to end it. Myra thanks so much for joining me on the podcast.

Myra Tawfik:
Thanks 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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