Digital Copyright Canada

Industry Canada's Report on Plans and Priorities for 2014-15 includes a notable paragraph on priorities for the digital economy.  The report states:

In 2014–15, Industry Canada will deliver the telecommunications consumer commitments included in the 2013 Speech from the Throne. These include taking legislative action to amend the Telecommunications Act to reduce roaming costs and prevent wireless providers from charging other companies more than they charge their own customers for mobile services. The Department will also protect consumer interests by encouraging compliance and adopting more effective remedies, including administrative monetary penalties, when violations occur. Industry Canada will continue to promote investment in high-speed broadband networks for rural Canadians.

These priorities are an important part of a robust digital economy. Other elements will include: modernizing the privacy regime to better protect consumer privacy online; monitoring the implementation of Canada's anti-spam legislation; and deepening analysis of Canada's communications infrastructure.

While the telecom actions were expected, the commitment to modernizing Canadian privacy laws is new (albeit long overdue).  Previous privacy reform bills died on last year, leaving the government years behind in addressing PIPEDA reform. The Industry Canada report suggests that some legislative action may finally be on the way.

The federal government released its Report on Plans and Priorities for 2014-15 today with departments and agencies identifying spending estimates and work priorities. The CRTC's report offers some interesting insights into its main activities and targets, particularly with respect to broadband access.

The latest CRTC broadband target is for 100% of Canadian households to have access to broadband speeds of 5 Mbps download and 1 Mbps upload by December 31, 2014. That target is a year ahead of schedule as last year's report set the 100% target for the end of 2015. The new target is also difficult to reconcile with the government's announcement that it plans to spend $305 million over the next five years to extend broadband to rural and remote areas. In fact, last week reports suggested that Industry Minister James Moore and the government had established a target of 2019 for universal access to broadband. If the CRTC target is achieved, the government's broadband plans and targets would appear already outdated. Interestingly, Industry Canada's report includes a target of 77% of the population with broadband subscriptions (not access) by March 2015, but broadband is defined is only 1.5 Mbps or higher.


The CRTC has also become more aggressive about its targets for broadband competition. Last year, it set a target of 50% of households having access to three or more broadband providers with a 5% annual increase thereafter. This year, it has set a target of 95% of households by March 2015 (oddly, it has scaled back its target for competitive access to broadcast distribution undertakings having targeted four or more last year, but only three or more this year).

In addition to broadband targets, the report features targets for everything from spam reduction to viewership of Canadian content. With the new anti-spam law set to take effect in July, the CRTC hopes to reduce spam by 10% over the next 12 months. The Canadian content targets have changed completely with the CRTC now focused on the viewership or listeners to Canadian content. By March 2015, the Commission target is 48% of total television viewing is to Canadian programming, while it wants 50% of radio listening to Canadian content. The CRTC targets differ slightly from those of Canadian Heritage, which set a target of 50% Canadian programming viewing by August 2015.

Posted by Sheily Chhabria, Head of Strategic Operations, Product Quality Operations
Keeping your information safe and secure is one of Google’s top priorities and to celebrate National Consumer Protection Week we wanted to share a few things that we do to help protect you and your information from harm on the web.
Google scans the web to find the most useful and interesting content to display in your search results, but while we’re looking for all that good stuff, we sometimes find sites or links that seem unsafe - that might be set up to steal your information or silently take over your computer. We identify about 10,000 of these bad sites daily and if you try and visit a site that is unsafe, we show warnings like the one below.   

These warnings help you avoid sites containing software that might steal your personal information or harm your computer.
These warnings appear on millions of Google Search results and we also make information about these unsafe sites available to other companies and developers so that users on many services, not just Google, can be protected from harm. This work helps protect you and about one billion other internet users from these types of sites .
If one of these bad sites did manage to steal your sensitive information, like your social security numbers or driver’s license, and published it on the web, you can report it to Google to have your information taken out of our Search results. We also follow this process for sensitive financial information like credit card numbers or bank account numbers.
Google also has strict policies about the kinds of goods and services that can be advertised using our ad systems and on our publisher network. For example, we don’t allow ads for certain types of things that might harm your computer or cost you money, like malicious downloads, or ads for products or services with unclear billing practices, like hidden costs. We also don’t allow ads with misleading claims (“lose weight guaranteed!”), for counterfeit goods, or fraudulent work-at-home scams (“make a million dollars an hour - from your kitchen!”). 
We don’t allow scammy ads that mislead consumers
In 2013 alone we removed more than 350 million bad ads from our systems and banned more than 270,000 advertisers from using Google’s ad services. We proactively look for these ads to keep them off our systems, and listen to feedback from consumers if they tell us an ad is no good. In fact, you can report scams, inappropriate content or bad behavior using some of the safety tools that are built into many Google products.  
Technology is complicated, but thankfully you don’t have to be a computer scientist to help protect yourself online. The Google Safety Center has advice and tips from security experts on the simple things you can do to protect yourself and your family from online threats like identity theft or scams. And if you’re looking for a way to celebrate along with us this week, please check out our blog post series on quick steps you can take to help improve your online safety and security. You can also get more information, videos and advice from some of the many consumer protection organizations celebrating this week, such as the Federal Trade Commission,  the National Association of Attorneys General and many individual State Attorneys General, and the Better Business Bureau.

Last month, I blogged about the CRTC's Talk TV consultation and concerns that the questions were framed in a lopsided manner.  CRTC Chair Jean Pierre Blais was asked about those concerns in Twitter chat and he responded that the questions and answers "were intended to be provocative." I address that response in my weekly technology law column (Toronto Star version, homepage version) highlighting both the concerns with the survey and offering some additional provocative questions that the Commission excluded.

The column begins by noting that regulation of Internet video services and the prospect of pick-and-pay television channels headline the second phase of the Canadian Radio-television and Telecommunications Commission's future of television consultation which launched late last month. The "TalkTV" initiative is designed to make it easy for Canadians to participate, featuring six short scenarios followed by a limited number of choices for respondents.


While the consultation quickly attracted considerable participation - the commission said thousands of Canadians responded in the first week alone - its content raises serious concerns about future plans for CRTC regulation. Indeed, if the consultation is a signal of where the commission is headed, not only is the notion of true pick-and-pay channels dead and the much-disliked simultaneous substitution alive, but regulation of Internet video services may be just around the corner.

The Internet video discussion in the survey focuses almost exclusively on new regulatory fees for services such as Netflix. After asking respondents whether online services should be required to contribute to funding for Canadian content, provide closed-captioning, and adhere to regulated programming standards, the CRTC poses a series of follow-up questions that all involve additional costs.

Respondents are asked whether they would pay an extra 50 cents per month for Canadian-made programming (presumably the additional cost for a Canadian content contribution fund) or a few cents each month for closed captioning. The commission also inquires whether Canadians would be willing to pay $5 more each month for increased Internet usage costs. The CRTC floats the possibility that such usage would not count against monthly data caps, suggesting that it may be willing to violate net neutrality principles as part of a new Internet regulatory regime.

The consultation delves into other controversial issues, but often offers a lopsided perspective. Signal substitution, the longstanding practice that swaps a U.S. feed with the Canadian equivalent (with Canadian commercials) when the same program is being aired at the same time, was raised during an earlier part of the consultation as a policy ripe for reform. Once the issue is explained in the survey, respondents are offered just three choices: keep the policy unchanged, black out U.S. signals, or require Canadians to pay extra fees to compensate stations for lost revenues. 

Similarly, the consultation asks whether Canadians would like access to more U.S. and international programming. The Commission seemingly pre-judges the issue by framing the ramifications of new programming as increasing cable and satellite fees, creating lost Canadian jobs, or developing new channel packages with additional Canadian content to offset the foreign programming.

When asked about the apparently skewed approach during a recent Twitter chat, CRTC Chair Jean-Pierre Blais responded that the consultation was meant to be provocative. Few would object to a provocative approach that generates interest in broadcast policy, however, these provocations are entirely one-sided.

For government regulators, it is seemingly provocative to ask about Internet regulation and the implementation of new fees that could almost double the effective cost of services such as Netflix. It is also provocative to equate more consumer choice with lost Canadian jobs or to propose compensation for Canadian television stations if simultaneous substitution is removed.

Yet the commission does not offer up similarly provocative options such as the elimination of many broadcast regulations in order to create a level playing field with Internet services or removing the requirement that Canadians purchase basic television services with all cable and satellite packages. It also does not provoke respondents with the possibility of new rules to eliminate simultaneous substitution by forcing Canadian broadcasters to adjust to a more competitive marketplace or to re-imagine the role of public broadcasting in Canada.

Given that the CRTC rightly or wrongly often attracts the ire of Canadians, the survey also avoids the biggest provocation of all - does Canada still need the CRTC to regulate broadcasting?  The answer to that question might depend upon the final results of its future of television consultation.

The very popular US grocery retailer Trader Joe's has a following among Canadian consumers. Capitalizing on this popularity north of the border, a Vancouver entrepreneur has made it his business to buy genuine Trader Joe's-branded merchandise in the US, and re-sell the products in a retail location in Vancouver under the ...

- Most Canadian businesses will have heard of the incoming Canadian Anti-Spam Law (referred to as CASL, which joins the Canadian pantheon of legislative acronyms like PIPEDA and PIPA). The consent requirements for sending commercial electronic messages (CEMs) is covered elsewhere (See here, and see this upcoming event on March 18 and 20, 2014). Those requirements ...

- Where a technology license carries with it an obligation to pay royalties based on revenues, how does the licensor determine if the revenues are accurately reported? The sales are known to the licensee, but the licensor has no way of determining what those sales are. Many license agreements impose reporting obligations on ...

- Earlier this week, the government introduced an unprecedented five international intellectual property treaties in the House of Commons on the same day. The five tabled treaties, introduced for ratification and implementation, are: the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, the Singapore Treaty on the Law of Trademarks, the Nice ...

Business people are sometimes seen to roll their eyes when they ask their lawyer a straighforward question, and the lawyer pauses and replies "Well... it depends..." In our earlier post (here and here), we reviewed the Canadian decision in Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548, which stands for the proposition ...

- In a recent decision released by the Canadian Privacy Commissioner (PIPEDA Report of Findings #2014-001), the commissioner investigated a complaint that Google pitched ads to an individual based on medical information that he disclosed while surfing various health-related websites. The commissioner's office took the position that "meaningful consent" is required ...

Let's say you pitch a story idea to a TV production company - and not just an idea, but a complete set of storyboards, characters and scripts. You would be surprised if one day you saw that story idea come to life in a TV production that gave no credit to ...

In a recent default judgment granted to Twentieth Century Fox, a Canadian Federal Court recently issued an injunction and a damage award in Twentieth Century Fox Film Corp. v. Hernandez et al (T-1618-13) for copyright infringement based on copying and rebroadcasting The Simpsons and Family Guy programs through the defendant's websites "Watch ...

- In our earlier post (Are Non-Competition Restrictions Enforceable?), we reviewed "restrictive covenants" - these are clauses under which employees are bound by restrictions such as non-competition restrictions, non-solicitation obligations, and other controls on the employee's behaviour which bind the employee after termination. In Eagle Professional Resources v. MacMullin, 2013 ONSC 2501, ...

Can there be a better way to start 2014 than with a patent infringement story with a Canadian twist? BlackBerry has filed a patent infringement lawsuit  against Typo Products LLC. If you are a believer in the maxim that "the only thing worse than bad press is no press" then ...

As Meera Nair noted last week, today marks the tenth anniversary the Supreme Court of Canada's landmark CCH Canadian v. Law Society of Upper Canada. A decade after its release, the case has grown in stature as the leading the users' rights copyright decision by a high court in the world. Writing for a unanimous court, Chief Justice McLachlin stated:

the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: 'User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.'

The articulation of fair dealing as a users' right represented a remarkable shift, emphasizing the need for a copyright balance between the rights of creators and the rights of users. While this approach unquestionably strengthened fair dealing, the immediate reaction to the CCH was somewhat mixed.

 
The academic community responded with articles by professors such as Craig, Drassinower and countless others that focused on the important change in copyright. More common were arguments that users' rights was simply a metaphor and that little had changed. For example, Access Copyright's responded publicly that "this ruling does not change the fact that most copying of copyright protected works does not fall under fair dealing. The Supreme Court stated definitively that copyright does exist in original works, and that is why organizations must sign an Access Copyright licence or risk breaking the law."  Incredibly, many educational institutions were similarly skeptical about the decision. In the months after the decision, few adjusted their policies and even the Council of Ministers of Education, Canada suggested in 2008 that more clarity on fair dealing was needed.

Five years after the decision, some groups began to work to roll back the CCH decision. In 2009, Access Copyright urged the government to establish limits on the ruling in its submission to the national copyright consultation:

Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers.

The government rejected the calls to limit fair dealing, however, instead expanding the provision with several new purposes including education, parody, and satire in its 2010 copyright reform bill.

With the government siding with users on the issue, the same groups hoped the Supreme Court of Canada would rethink its CCH ruling in the 2012 copyright cases. The Canadian Publishers' Council argued that the meaning of "users' rights" was overstated:

The Appellants and other Intervenors rely extensively on the concept of "users' rights" to promote a view of fair dealing that would substantially curtail copyright holders' rights and permit extensive copying of behalf of others. Their use of the term to justify this severe curtailment of exclusive rights illustrates the dangers of treating the word 'user rights' literally, rather than as a metaphor to express the importance of user interests.

Access Copyright emphasized the same concern:

In CCH this Court raised expectations when it held that fair dealing is a "user's right". Those raised expectations have led users like the appellants to ask that the right be clarified and made more predictable. However, this should not come at the expense of upsetting the balance between users' and creators' rights under the Act.

Yet the Supreme Court of Canada rejected those arguments, choosing instead in 2012 to re-affirm the importance of users' rights:

CCH confirmed that users' rights are an essential part of furthering the public interest objectives of the Copyright Act. One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision 'must not be interpreted restrictively'.

While some groups still seek to downplay the importance of fair dealing, ten years after CCH it is clear that users' rights are here to stay. The Supreme Court has continued its emphasis on a copyright balance that prominently features users' rights, the government has adopted copyright reform with a significant user-oriented component (expanded fair dealing, user generated content provision, Internet exceptions, format shifting, device shifting, backup copies), and the World Intellectual Property Organization reached agreement on its first users' rights copyright treaty last year with the Marrakesh Treaty for the blind and visually impaired.  There is still much work to be done, but the progress over the past decade owes a great deal to the battle between legal publishers and the Law Society of Upper Canada that culminated in the March 4, 2004 CCH decision that firmly placed copyright users' rights on the map.

- In this blog, we typically review forum-selection cases in the context of internet-related contracts and software licenses. A recent decision out of the US Supreme Court squarely addressed the issue of forum-selection clauses in a construction contract. While this is not an intellectual property case, it is instructive for Canadian ...

Here's a reading (MP3) of my latest Locus column, Cold Equations and Moral Hazard which considers the way that science fiction can manipulate our ideas about the technical necessity for human misery, and how that narrative can be hijacked for self-serving ends.

Apparently, editor John W. Campbell sent back three rewrites in which the pilot figured out how to save the girl. He was adamant that the universe must punish the girl.

The universe wasn’t punishing the girl, though. Godwin was – and so was Barton (albeit reluctantly).

The parameters of ‘‘The Cold Equations’’ are not the inescapable laws of physics. Zoom out beyond the page’s edges and you’ll find the author’s hands carefully arranging the scenery so that the plague, the world, the fuel, the girl and the pilot are all poised to inevitably lead to her execution. The author, not the girl, decided that there was no autopilot that could land the ship without the pilot. The author decided that the plague was fatal to all concerned, and that the vaccine needed to be delivered within a timeframe that could only be attained through the execution of the stowaway.

It is, then, a contrivance. A circumstance engineered for a justifiable murder. An elaborate shell game that makes the poor pilot – and the company he serves – into victims every bit as much as the dead girl is a victim, forced by circumstance and girlish naïveté to stain their souls with murder.

Moral hazard is the economist’s term for a rule that encourages people to behave badly. For example, a rule that says that you’re not liable for your factory’s pollution if you don’t know about it encourages factory owners to totally ignore their effluent pipes – it turns willful ignorance into a profitable strategy.

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."

MP3

I also felt the emotion of that particular parting, even if I found the overall relationship creepy.

Having another similarly-aged human in the TARDIS for that romance works great for me. I like my science fiction to be able to mix genres at will, moving through romance, comedy, action, horror, etc -- or any mixture in a given scene a writer can pull off.

My latest Locus column is "Cold Equations and Moral Hazard", an essay about the way that our narratives about the future can pave the way for bad people to create, and benefit from, disasters. "If being in a lifeboat gives you the power to make everyone else shut the hell up and listen (or else), then wouldn’t it be awfully convenient if our ship were to go down?"

Apparently, editor John W. Campbell sent back three rewrites in which the pilot figured out how to save the girl. He was adamant that the universe must punish the girl.

The universe wasn’t punishing the girl, though. Godwin was – and so was Barton (albeit reluctantly).

The parameters of ‘‘The Cold Equations’’ are not the inescapable laws of physics. Zoom out beyond the page’s edges and you’ll find the author’s hands carefully arranging the scenery so that the plague, the world, the fuel, the girl and the pilot are all poised to inevitably lead to her execution. The author, not the girl, decided that there was no autopilot that could land the ship without the pilot. The author decided that the plague was fatal to all concerned, and that the vaccine needed to be delivered within a timeframe that could only be attained through the execution of the stowaway.

It is, then, a contrivance. A circumstance engineered for a justifiable murder. An elaborate shell game that makes the poor pilot – and the company he serves – into victims every bit as much as the dead girl is a victim, forced by circumstance and girlish naïveté to stain their souls with murder.

Moral hazard is the economist’s term for a rule that encourages people to behave badly. For example, a rule that says that you’re not liable for your factory’s pollution if you don’t know about it encourages factory owners to totally ignore their effluent pipes – it turns willful ignorance into a profitable strategy.

Cold Equations and Moral Hazard

On 27 February 2014, The NY Times published “No Big Deal”, by Paul Krugman on the Trans-Pacific Partnership (TPP) agreement and the apparent stalling of negotiations. He writes, “I am in general a free-trader, but I’ll be undismayed and even a bit relieved if the T.P.P. just fades away.” On that point, many people would likely share his relief. However, Krugman’s article is dangerous; he cloaks the TPP with an aura of blandness, arguing that the benign nature of the agreement is why it will not be missed. According to Krugman, the agreement does very little to enhance trade, instead:

… these days “trade agreements” are mainly about other things. What they’re really about, in particular, is property rights – things like the ability to enforce patents on drugs and copyrights on movies.  And so it is with T.P.P.

Krugman’s assessment of the TPP is framed by comparison to trade agreements of days gone by, when eliminating tariffs was a principle feature of negotiation. His remarks may be accurate in that regard, but by confining his assessment so narrowly, he avoids in-depth examination of the agreement as a whole. The TPP is not about trade. That word suggests a mutually beneficial exchange between two or more parties. The TPP is about domination and ensuring that countries do not oppose any actions taken by foreign corporations regardless of how those actions might affect health, environment, or even trade, within a host country.

Achieving such dominance includes imposing stringent measures upon intellectual property (more so than what is currently required by international agreement) and requiring that disputes arising are not adjudicated in either a court of law, or a seat of some impartiality like the WTO, but in private tribunals. (I have touched on the perils of investor-state dispute mechanisms, see here; Renée Loth writing for the Boston Globe on 22 December 2013 also covers this issue.)

Mr. Krugman could dismiss such remarks on the grounds that the actual agreement is yet to be seen. But that factor in itself ought to be a major reason for concern. Negotiations have been conducted in secret, with the public having to rely on a leaked document to discover what is being discussed. Granted, it is not possible, nor desirable, for any administration to govern by referendum. However, even U.S. elected representatives have not been privy to details. That combined with the desire of the Obama administration to fast-track the agreement, should have alerted Krugman: the TPP is a big deal.

But perhaps most startling of all is that Krugman’s article of the 27th is the second such article he has written. The first was published by The NY Times on 12 December 2013, titled “TPP”. Comparing the two articles, the tone is essentially the same; that judging by the former hallmarks of free trade, the TPP would not make much difference:

…  my starting point for things like this is that most conventional barriers to trade — tariffs, import quotas, and so on — are already quite low, so that it’s hard to get big effects out of lowering them still further.

That earlier article provoked some commentary. Dean Baker wrote a courteous dissent for the Center for Economic and Policy Research:

…it is a misunderstanding to see the TPP as being about trade. This is a deal that focuses on changes in regulatory structures to lock in pro-corporate rules. Using a “trade” agreement provides a mechanism to lock in rules that it would be difficult, if not impossible, to get through the normal political process.

Mike Masnick of TechDirt went into greater detail than Baker on the measures included in the TPP. And Masnick puts his fingers immediately on the value of an op/ed such as Krugman’s:

On [Krugman’s] basic reasoning, he’s correct. There’s little trade benefit to be gained here. In fact, some countries have already realized this. But that’s why the TPP is so nefarious. It’s being pitched as a sort of “free trade deal,” and Krugman analyzes it solely on that basis. That’s exactly what the USTR would like people to think, and it’s part of the reason why they’ve refused to be even the slightest bit transparent about what’s actually in the agreement.

Both responses are worth reading in their entirety; they are as germane today as they were three months ago.

Which leads me to question why Krugman continues to limit his exploration of the subject? He acknowledges that the TPP would, “increase the ability of certain corporations to assert control over intellectual property.” But he makes no effort to explore the ramifications of the increase. For such an accomplished economist, who writes under the tagline of “The Conscience of a Liberal,” this neglect is unconscionable.

Further Reading: InfoJustice.org (of the Washington College of Law, American University) has compiled a list of analyses (some for the agreement, others against), see here. Christopher Ingram, writing for The Washington Post (28 February 2014) describes the current composition of trade-advisory committees as selected by the Obama administration: “Of the 566 committee members, 306 come from private industry and an additional 174 hail from trade associations. All told they represent 85% of the voices on the trade committees.”