Digital Copyright Canada

The UK parliamentary farce over #DRIP showed us that, more than any other industry, the political machine is in dire need of disruption.

In my latest Guardian column, How the Kickstarter model could transform UK elections, I suggest that the way that minority politicians could overcome the collective action deadlock of voters being unwilling to "throw away" their ballots on the parties they support, and so holding their nose and voting for the mainstream party they hate least, or not voting at all, by taking a page out of Kickstarter's playbook:

Here's how that could work:

"Yellow Party! Well, I love what you stand for, but come on, you haven't got a snowball's chance. It's throwing away my vote."

"Oh, I'm not asking you to vote for me! Not quite, anyway. All I want you to do is go on record saying that you would vote for me, if 20% of your neighbours made the same promise. Then, on election day, we'll send you a text or and email letting you know how many people there are who've made the same promise, and you get to decide whether it's worth your while.

"The current MP, Ms Setforlife, got elected with only 8,000 votes in the last election. If I can show you that 9,000 of your neighbours feel the same way as you do, and if you act on that information – well, we could change everything."

This threshold-style action system is at the heart of Kickstarter (pledge whatever you like, but no one has to spend anything unless enough money is raised to see the project to completion) and it's utterly adaptable to elections.

In democracies all over the world, voting is in decline. A permanent political class has emerged, and what it has to offer benefits a small elite at the public's wider expense.

How the Kickstarter model could transform UK elections

Skyboat Media produced this great little documentary about Wil Wheaton's recording sessions for the audiobook of my novel Homeland, in which he had to read out Pi for four minutes straight, read out dialog in which the narrator had a fanboy moment about meeting Wil Wheaton, and many other fun moments.

Posted by Jim Lecinski, Vice President, Customer Solutions
Over the past few months, we’ve had the chance to talk to businesses all over the country and hear stories of how they’ve become successful. For many, it’s pretty simple: the Internet. The web is helping businesses and communities across the U.S. to grow and succeed. In fact, last year Google’s search and advertising tools helped provide $111 billion of economic activity for more than 1.5 million businesses—advertisers, publishers and nonprofits—across the U.S.
Take Go2marine, a boat supply company located on Bainbridge Island, off the coast of Washington State. Because of their remote location, bringing traffic to their website using Google AdWords plays an important role in their ability to sell their 250,000+ boat supplies to customers in 176 countries. When it’s winter in the U.S., they rely on customers located in other parts of the world where it’s boating season, with the web bringing them business from any place, in any season.
Or meet Don Morton, who taught reading, writing and language in lower-income neighborhoods in my home town of Chicago for nine years. In 2005, he began creating his own materials to supplement what the school system provided. Realizing that his worksheets could be useful for students and teachers everywhere, he created ereadingworksheets.com to provide his worksheets for free. Don started using Google AdSense to offset his costs by placing ads next to his content, and today he’s able to work full-time on his website and make an impact on students around the world.
These are just two examples of enterprising people making the most of Google tools to find new customers, connect with existing ones and grow their businesses; you can find plenty more of them in our Economic Impact Report. Our tools help connect business owners to their customers, whether they’re around the corner or across the world from each other. And when businesses flourish, it’s good news for the rest of us. Recent data shows that businesses that are online are expected to grow 40 percent faster and hire twice as many workers as businesses that aren’t. Every year, it gets clearer that the web helps lead to more successful businesses, stronger economies, more vibrant towns, and more prosperous communities.
Learn more about our economic impact in all 50 U.S. states, and how businesses are finding success through the web. Whether it’s a part for a boat or a grammar worksheet, we’re proud to play a role in giving businesses the tools they need to do more--to grow and thrive and connect with customers and communities all over the world.

Last week, international negotiators met in Ottawa to further discuss the Trans-Pacific Partnership (TPP) agreement. With the usual shroud of secrecy, few details regarding agenda and outcomes were released for public consumption. Nevertheless, based on a leaked copy of the chapter relating to intellectual property, there is sufficient reason for concern with respect to copyright. As reported last week (see Electronic Frontier Foundation here, Michael Geist here, Public Knowledge here, and VICE here) Canada’s copyright regime is likely to be challenged on at least two fronts:

• the role of internet service providers (will they remain as neutral providers or become key figures in policing the internet?)
• copyright duration (will Canada’s life-plus-fifty term give way to life-plus-seventy?)

Geist reminds us that the TPP will touch more than copyright; Canada’s privacy and patenting regimes are also implicated. Indeed, the question of Canadian sovereignty with respect to patenting is already at risk, via Eli Lilly’s $500 million challenge to the Canadian government regarding the loss of two secondary-use patents. The means by which Eli Lilly has launched its claim is a consequence of the Investor-State Dispute (ISD) mechanism of NAFTA.

Courtesy of Dennis Lowe and National Geographic

Our made-in-Canada copyright regime has been painstakingly crafted over ten years of deliberative thought; to watch it cast aside will be difficult. But more deleterious will be further entrenchment of the ISD mechanism through the TPP. Yet this issue has received little attention in Canada. Perhaps in part because the topic is not sexy; Investor-State Dispute sounds painfully dull. The phrase cannot be summarily equated to freedom of expression, invasion of privacy, or even the dubious claim that a hit television series could not have been made under the TPP. ISDs are constructed with arcane language that seemingly has little to do with everyday life, but they are potentially lethal as is being demonstrated by Eli Lilly.

Eli Lilly provides the bizarre spectacle of a corporation suing a government because a court decision did not favour the corporation. It has vehemently insisted that the decision of Canadian courts not to uphold two secondary-use patents is a violation of investor safeguards provided through NAFTA; specifically, those relating to minimum standard of treatment, non-discrimination, and expropriation. That the courts rejected the patents because the drugs concerned did not live up to the standard of utility set by Canadian law, was not reasonable according to Eli Lilly. To take action against Canada required contorting the ISD chapter of NAFTA, despite the fact that the chapter in question does not apply to intellectual property. The entire event would read like a lurid novel, if novels were written about intellectual property and national sovereignty.

In a report dated to March 2013, Public Citizen provides a meticulously researched account of Eli Lilly’s actions and the operation of ISDs within trade agreements. At that time, Canada was only facing a $100 million challenge (Eli Lilly has since upped the ante); even so, Public Citizen did not miss the irony at hand:

… while Canada faces an investor-state challenge from Eli Lilly, the country has joined negotiations to establish the TPP, which would expand the investor-state system further. To date, Canada alone has paid more than $155 million to foreign investors after NAFTA investor-state attacks on energy, timber, land use and toxics policies. Underlying Eli Lilly’s claim against Canada is the notion that government patent policies and actions are subject to the investor privileges provisions of the agreement.

Public Citizen observes that Eli Lilly’s actions marks the first occasion of an intellectual property challenge occurring under the auspices of NAFTA’s ISD provisions. Our previous “first”, the first challenge of any kind, does not offer much comfort, resulting as it did in a loss both monetarily and for public health. Briefly, in 1997 a ban on the gasoline additive MMT was repealed by the Canadian government in response to opposition by Ethyl Corporation, the American producer of the additive. At the time, Public Citizen wrote:

The Canadian government settled the NAFTA suit yesterday agreeing to pay Ethyl $13 million in damages and to cover the company’s legal costs. It will also proclaim publicly that MMT is “safe” in direct contradiction of the view of its national environmental protection agency.

With respect to Eli Lilly’s present action, Michael Geist and E. Richard Gold (Professor, Faculty of Law, McGill University) have both indicated that the corporation’s chances of winning are slim. Notably, in a briefing session recently held in Washington DC, Gold indicates that “… no competent tribunal could rule in Eli Lilly’s favor”. We can only hope that both Geist and Gold are correct. But competence might prove a relative term; so far, arbitration tribunals have not distinguished themselves in weighing public interest (as a domestic court of law would) into the decision-making process. (Public Citizen has thoroughly documented past arbitration decisions, with added detail for some of the more egregious outcomes.) Moreover, even if Canada secures a win, that does not necessarily exclude involvement in costs.

The Washington DC briefing session was hosted by the firm of Stern, Kessler, Goldstein and Fox on 5 June 2014, with all the presentations posted online. I am hard pressed to choose a favorite but Simon Lester (Trade Policy Analyst, Cato Institute) raises the issue of Canada’s increasing involvement with ISDs. Despite some indication from the Canadian government that CETA (the impending trade deal with the European Union) will mitigate the ISD risks, Lester notes that Canada is simply trying to “tweak the language” to ensure that court decisions cannot be challenged. “…  what I have seen written is that the only changes are that no claims can be made under expropriation, but there are more avenues [of claim]… the slight tweaks that Canada wants to make are probably not enough.”

If the Canadian government is not decisively protecting sovereignty within a bilateral trade negotiation, it is unlikely that we will do better in the multi-national forum of the TPP.

There is much more that could and should be written about ISDs but, for now, Lester shall have the last word. In his presentation, he asks an important question: “Normally, the Supreme Court gets the final word. But apparently, there’s an international court system above the domestic Supreme Court system.  … Is everybody okay with that?”

 

 

 

 

 

I am delighted and honored to announce that my novel Homeland has won the Prometheus Award for best novel, tying with Ramez Naam's excellent novel Nexus. I am triply honored because this is the third Prometheus I've won -- the other two being for Little Brother and Pirate Cinema. My sincere thanks to the Libertarian Futurist Society; I'll see you at the Worldcon in London this year to accept it!

In May, the Court of Justice of the European Union established a “right to be forgotten." Today, we published an op-ed by David Drummond, senior vice president of corporate development and chief legal officer, in the U.K.'s The Guardian, Germany's Frankfurter Allgemeine Zeitung, France's Le Figaro and Spain's El Pais, discussing the ruling and our response. We're republishing the op-ed in full below. -Ed.

When you search online, there’s an unwritten assumption that you’ll get an instant answer, as well as additional information if you need to dig deeper. This is all possible because of two decades worth of investment and innovation by many different companies. Today, however, search engines across Europe face a new challenge—one we’ve had just two months to get our heads around. That challenge is figuring out what information we must deliberately omit from our results, following a new ruling from the European Court of Justice.

In the past we’ve restricted the removals we make from search to a very short list. It includes information deemed illegal by a court, such as defamation, pirated content (once we’re notified by the rights holder), malware, personal information such as bank details, child sexual abuse imagery and other things prohibited by local law (like material that glorifies Nazism in Germany).

We’ve taken this approach because, as article 19 of the Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

But the European Court found that people have the right to ask for information to be removed from search results that include their names if it is “inadequate, irrelevant or no longer relevant, or excessive.” In deciding what to remove, search engines must also have regard to the public interest. These are, of course, very vague and subjective tests. The court also decided that search engines don’t qualify for a “journalistic exception.” This means that The Guardian could have an article on its website about an individual that’s perfectly legal, but we might not legally be able to show links to it in our results when you search for that person’s name. It’s a bit like saying the book can stay in the library, it just cannot be included in the library’s card catalogue.

It’s for these reasons that we disagree with the ruling. That said, we obviously respect the court’s authority and are doing our very best to comply quickly and responsibly. It’s a huge task as we’ve had over 70,000 take-down requests covering 250,000 webpages since May. So we now have a team of people individually reviewing each application, in most cases with limited information and almost no context.

The examples we’ve seen so far highlight the difficult value judgments search engines and European society now face: former politicians wanting posts removed that criticize their policies in office; serious, violent criminals asking for articles about their crimes to be deleted; bad reviews for professionals like architects and teachers; comments that people have written themselves (and now regret). In each case, someone wants the information hidden, while others might argue it should be out in the open.

When it comes to determining what’s in the the public interest, we’re taking into account a number of factors. These include whether: the information relates to a politician, celebrity, or other public figure; if the material comes from a reputable news source, and how recent it is; whether it involves political speech; questions of professional conduct that might be relevant to consumers; the involvement of criminal convictions that are not yet “spent”; and if the information is being published by a government. But these will always be difficult and debatable judgments.

We’re also doing our best to be transparent about removals: for example, we’re informing websites when one of their pages has been removed. But we cannot be specific about why we have removed the information because that could violate the individual’s privacy rights under the court's decision.

Of course, only two months in, our process is still very much a work in progress. It’s why we incorrectly removed links to some articles last week (they have since been reinstated). But the good news is that the ongoing, active debate that’s happening will inform the development of our principles, policies and practices—in particular about how to balance one person’s right to privacy with another’s right to know.

That’s why we've also set up an advisory council of experts, the final membership of which we're announcing today. These external experts from the worlds of academia, the media, data protection, civil society and the tech sector are serving as independent advisors to Google. The council will be asking for evidence and recommendations from different groups, and will hold public meetings this autumn across Europe to examine these issues more deeply. Its public report will include recommendations for particularly difficult removal requests (like criminal convictions); thoughts on the implications of the court’s decision for European Internet users, news publishers, search engines and others; and procedural steps that could improve accountability and transparency for websites and citizens.

The issues here at stake are important and difficult, but we’re committed to complying with the court’s decision. Indeed it's hard not to empathize with some of the requests we've seen—from the man who asked that we not show a news article saying he had been questioned in connection with a crime (he’s able to demonstrate that he was never charged) to the mother who requested that we remove news articles for her daughter’s name as she had been the victim of abuse. It’s a complex issue, with no easy answers. So a robust debate is both welcome and necessary, as, on this issue at least, no search engine has an instant or perfect answer.

Posted by David Drummond, Senior Vice President, Corporate Development and Chief Legal Officer

In my latest Guardian column, What Canada's national public broadcaster could learn from the BBC, I look at the punishing cuts to the CBC, and how a shelved (but visionary) BBC plan to field a "creative archive" of shareable and remixable content could help the network lead the country into a networked, participatory future.

The CBC, at least, has only limited delusions about the importance of commercialising its archives, especially when that comes at the expense of access to the archives for Canadians. Canada is a young nation, and the CBC has been there with Canadians for about half of the country's short life. The contents of the CBC's archives are even more central to the identity of Canadians that the BBC's is to Britons.

If the CBC is to be cut and remade as a digital-first public service entity, then a Canadian Creative Archive could be one way for it to salvage some joy from its misery. There's nothing more "digital first" than ensuring that the most common online activities – copying, sharing, and remixing – are built into the nation's digital heritage.

What's more, the CBC's situation is by no means unique. In an era of austerity, massive wealth inequality, industrial-scale tax-evasion and totalising market orthodoxy, there's hardly a public broadcaster anywhere in the world that isn't facing brutal cuts that go to the bone and beyond.

All of these broadcasters have something in common: they produced their massive archives at public expense, for the public's benefit, and have made only limited progress in giving the public online access to those treasures.

What Canada's national public broadcaster could learn from the BBC

The Organization for Economic Cooperation and Development -- a pro-establishment, rock-ribbed bastion of pro-market thinking -- has released a report predicting a collapse in global economic growth rates, a rise in feudal wealth disparity, collapsing tax revenue and huge, migrating bands of migrant laborers roaming from country to country, seeking crumbs of work. They proscribe "flexible" workforces, austerity, and mass privatization.

The report, Policy Challenges for the Next 50 Years , makes a number of assumptions about the impact of automation on skilled jobs in the workforce, the end the recent growth in the developing world (especially the BRIC nations), and a series of worsening environmental catastrophes.

As Paul Mason points out in The Guardian, the OECD does not countenance the possibility of rupture -- states opting out of market capitalism, say, or non-state actors refusing to accept claims on property. It seems unlikely that the changes the OECD envisions will not be attended by more changes in the way people think about the legitimacy of the economic and political system that produced them.

The OECD has a clear messagefor the world: for the rich countries, the best of capitalism is over. For the poor ones – now experiencing the glitter and haze of industrialisation – it will be over by 2060. If you want higher growth, says the OECD, you must accept higher inequality. And vice versa. Even to achieve a meagre average global growth rate of 3% we have to make labour "more flexible", the economy more globalised. Those migrants scrambling over the fences at the Spanish city of Melilla, next to Morocco, we have to welcome, en masse, to the tune of maybe two or three million a year into the developed world, for the next 50 years. And we have to achieve this without the global order fragmenting.

Oh and there's the tax problem. The report points out that, with the polarisation between high and low incomes, we will have to move – as Thomas Piketty suggests – to taxes on wealth. The problem here, the OECD points out, is that assets – whether they be a star racehorse, a secret bank account or the copyright on a brand's logo – tend to be intangible and therefore held in jurisdictions dedicated to avoiding wealth taxes.

The OECD's prescription – more globalisation, more privatisation, more austerity, more migration and a wealth tax if you can pull it off – will carry weight. But not with everybody. The ultimate lesson from the report is that, sooner or later, an alternative programme to "more of the same" will emerge. Because populations armed with smartphones, and an increased sense of their human rights, will not accept a future of high inequality and low growth.

The best of capitalism is over for rich countries – and for the poor ones it will be over by 2060 [Paul Mason/The Guardian]

(Thanks, Alice!)

- By Richard Stobbe An American photojournalist, Ms. Leuthold, was on the scene in New York City on September 11, 2001. She licensed a number of still photographs to the CBC for use in a documentary about the 9/11 attacks. The photos were included in 2 versions of the documentary, and the documentary ...

- By Richard Stobbe In a recent decision by the British Columbia courts (Equustek Solutions Inc. v Jack , 2014 BCSC 1063), Google has been ordered to de-index a website selling goods that were the subject of intellectual property (IP) infringement claims. While this may seem quotidian - after all, Google does ...

By Richard Stobbe On October 14 and 15, 2014, I will be presenting on "Drafting IT Agreements" at the Essentials of Commercial Contracts (Calgary) Conference. This conference will discuss the legal and business framework of commercial contracts, negotiations and practical drafting tips. The session on information technology (IT) contracting will review key considerations in ...

By Richard Stobbe Canada and the USA. We enjoy the world's longest undefended border... a border that unfortunately does not screen spam. If you are an American attorney with US clients doing business in Canada, then you should be aware of a few things, like our lack of imaginative legislative acronyms, such as ...

- By Richard Stobbe The Supreme Court puts it mildly in its opening line: "The Internet raises a host of new and challenging questions about privacy." One of those questions is whether an IP address can be considered personal information. An internet protocol (IP) address is the unique numeric identifier of a particular ...

By Richard Stobbe If the term "CASL compliance" is giving you a nervous twitch, you're not alone. Many small and medium-sized businesses in Canada are scrambling to prepare for Canada's Anti-Spam Law (CASL), whose official title says it all - especially the part about "efficiency and adaptability" (take a deep breath before you read ...

By Richard Stobbe Okay, so maybe it's neither as romantic as Gershwin's "An American in Paris", nor as historical as Mark Twain's "A Connecticut Yankee in King Arthur's Court," but many US lawyers do find themselves facing legal issues in Canada. US practitioners who deal with Canadian legal matters must take note ...

- By Richard Stobbe Does your organization have “intellectual assets”? Regardless of what your organization does – whether it is a service-based business, or in the manufacturing sector, whether it is driven by cloud-based software or bricks-and-mortar locations, whether it is a multinational or a local start-up – chances are good that ...

Field Law sponsored the Canadian Lawyer magazine's in-house general counsel roundtable, moderated by Jennifer Brown: see this link. The participants - from the University of Calgary and technology-driven companies Pason Systems Corp. and Trican Well Services - discuss how risk management is addressed in their organizations. Calgary - 07:00 MST

By Richard Stobbe A recent survey of the top patent producing corporations in Canada (see this link, courtesy of our colleagues at IPPractice.ca) shows a few interesting trends: Despite its fall from grace over the past 4 or 5 years, BlackBerry remains among the top innovators in the country. The top five patentees ...

By Richard Stobbe A recent EU decision by the Court of Justice of the European Union (CJEU) has generated a lot of press since it involves a high profile company - Google - and a tantalizing concept of a "right to be forgotten". The story stems from the efforts by a ...

By Richard Stobbe Industrial design law in Canada protects the visual features of shape, configuration, pattern or ornamentation which are applied to a product. Functional elements are not protected. Think of the unique shape of a bottle. The functional elements - such as a handle, a cap or lid - those elements could ...