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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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The post The LawBytes Podcast, Episode 15: Cows, Cars, and Copyright – A Conversation With Myra Tawfik on the IP Concerns With Implementing the USMCA appeared first on Michael Geist.

the fifth recommendation

Fair Duty by Meera Nair - Fri, 2019/06/07 - 17:47

Earlier this week, the Standing Committee on Industry, Science and Technology released the concluding report of the Copyright Review. In a world where political partisanship can often be described as toxic, the report is encouraging by its display of Members of Parliament of differing parties working together. While I have no doubt some political theatrics occurred behind the scenes, Members appear to have collectively taken on the challenge to probe a seemingly impenetrable area of law that touches Canadian lives on a daily basis, and reconcile  competing interests expressed by a multitude of voices.

The Official Opposition and the New Democratic Party each attached a dissenting report, as is their prerogative to do so.  Yet their combined discomfort was in relation to only two matters: (i) artists’ resale rights; and (ii) Crown copyright – that its repeal was preferable to the stated recommendation of open licensing for government-created content.

As noted by Creative Commons:

The Canadian report offers a glimmer of hope that copyright policy can be furthered in such a way to promote creativity and innovation, while at the same time protecting crucial user rights. This is contrasted with the final outcome of the European copyright directive, which reflects a disturbing path toward increasing control of the web to benefit only powerful rights holders at the expense of the rights of users and the public interest.

The report in its entirety is here, with encouraging language in its front-matter:

Reproduction of the proceedings of the House of Commons and its Committees, in whole or in part and in any medium, is hereby permitted provided that the reproduction is accurate and is not presented as official. This permission does not extend to reproduction, distribution or use for commercial purpose of financial gain. …

But before we delve into the report and reflect broadly on the thoughts and recommendations provided, one issue ought to take priority. In the letter guiding the Committee’s work, the presiding ministers invited Members to “pay special attention to the needs and interests of Canada’s Indigenous peoples as part of Canada’s cross-cutting efforts at reconciliation.” It is telling that, after dealing with matters of procedure and preparing the ground for future information-gathering and analysis, the first recommendation pertaining to current challenges is:

Recommendation 5
That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:

• The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;

• The participation of Indigenous groups in the development of national and international intellectual property law;

• The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions, including but not limited to:

  • Creating an Indigenous Art Registry;
  • Establishing an organization dedicated to protecting and advocating for the interests of Indigenous creators;
  • and Granting Indigenous peoples the authority to manage traditional arts and cultural expressions, notably through the insertion of a non-derogation clause in the Copyright Act.

In a submission offered by the Association of Canadian Publishers,  Sa’ke’j Henderson (Research Fellow Miyasiwewin Mikiwahp Native Law Centre of Canada College of Law, University of Saskatchewan) had written: “The purpose of the non-derogation clause is to clarify that these Aboriginal knowledges and cultural expressions are protected and promoted under Sections 52(1) and 35 of the Constitution Act, 1982 and Section 25 of the Charter.”

In his brief, Henderson had also reminded us that “Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples (2007).”  Unfortunately, at best, Canada could be described as having a chequered past with respect to the UNDRIP.

Meaningful attention to Indigenous issues requires deliberate effort to harmonize all federal law with the UNDRIP. So it is disappointing to read that, this week, the Conservative members of the Senate used “procedural tactics to cancel committee meetings on Bill C-262.” This private member’s bill, brought forward by NDP MP Romeo Saganash, was passed by the House  of Commons in May 2018, and aims to ensure that federal laws comport with the UN Declaration of the Rights of Indigenous Peoples.

Returning to Recommendation Five, through my remarks to the Committee and brief, I said: “Indigenous paradigms about creative endeavor and property are implicit to the system of copyright as we practice it today,” and that finding commonality may help alleviate the challenges experienced by Indigenous communities with respect to appropriate protection and use of traditional knowledge and art.

While passage of C-262 looks less and less likely, we may hope that  Members of the Opposition will ensure that Recommendation Five is acted on.

Rogers Calls for Expansion of Media Bailout to Cover Broadcast Organizations…and Thinks Netflix Should Pay For It

Michael Geist Law RSS Feed - Thu, 2019/06/06 - 10:58

My series on previously secret submissions to the Broadcast and Telecommunications Legislative Review Panel (earlier posts on Bell, Shaw, and Cogeco) continues with the Rogers submission, [Update: Rogers notes that it posted the submission on its site roughly three months after the submission deadline, so it has not been secret since early April] also obtained under the Access to Information Act. There are several notable aspects to the submission, but perhaps none more than Rogers calling for an expansion of the new tax credit for media organizations by extending the approach to broadcasters and expecting Netflix to help pay for it. The media bailout has attracted considerable criticism, particularly given the government’s implementation that has raised serious independence concerns. Before the recent controversies, Rogers envisioned expanding it:

Consistent with the Government’s tax credit proposal, we believe that a similar mechanism should be adopted for the Canadian broadcasting system. By allowing broadcasters that produce news programming to access labour tax credits, which provide an objective and arm’s length subsidy, we are confident that independent high quality news will continue to be produced in this country.

But the proposal goes even further than simply expanding the government media bailout to broadcasters. It also envisions Netflix and other non-Canadian services that do not produce news paying for the bailout by requiring them to help fund the labour tax credits:

In order to encourage and adequately support the production of professional news in Canada, we are proposing that a new policy objective be added to subsection 3(1) of the Broadcasting Act. The new objective we propose would expressly recognize that the Canadian broadcasting system should include local, regional and national news and information programming produced in accordance with professional journalistic standards. All Canadian broadcasting undertakings would be required to contribute to the production of local, regional or national news in some fashion. Those non-Canadian digital media services that do not wish to make direct investments in Canadian news programming would contribute indirectly by helping to fund labour tax credits.

Expansion of the media bailout money to broadcasters is not the only controversial aspect of the Rogers submission. For example, it opposes a net neutrality-specific provision in the law and backs a full website blocking system built into the legislation with program piracy added to the Broadcasting Act and provision allowing for content blocking by ISPs and wireless providers included in the Telecommunications Act.

Rogers unsurprisingly strongly opposes ISP regulation:

In our view, regulating those who invest in, maintain and operate the networks under the same legislative framework that is used to regulate those who create, produce, exhibit and offer the programming and platforms that use those networks would be inappropriate. This would not only increase the likelihood for market distortion, it would also act as a disincentive for telecommunications service providers to make the investments necessary to maintain Canada’s place as a world-class communications hub.

But it is all-in on regulating foreign online providers, proposing three ways to regulate foreign online providers. First, it calls for amending the existing digital media exemption order by requiring non-Canadian digital media undertakings such as Netflix to comply with obligations such as financial contributions and Canadian content requirements. Second, it wants to establish a licensing system for any service that operates in Canada by other advertising in Canada or receiving subscription fees. Third, it supports creating binding service agreements that establish the domestic obligations that could be modelled on the earlier agreement between the government and Netflix. The second proposal should come with big red warning lights as the company is effectively calling for a licensing system for the Internet in Canada.

Not only does Rogers want more regulation and payments from foreign providers, but, like Bell, it envisions requiring Netflix to pay into the Cancon system but being blocked from accessing the funds:

While non-Canadian digital media undertakings will be required to contribute to the Canadian broadcasting system through commitments made in their service agreements, we do not believe that they should be extended the right to access CAVCO tax credits or funding from the CMF and Telefilm. For reasons of equity and fairness, we believe that only those broadcast undertakings, including digital media undertakings, that are incorporated in Canada and pay and collect taxes in this country should have access to the financial support mechanisms that are largely funded by Canadian taxpayers and used to fund the production of Canadian programming.

However, Rogers wants the rules changed so it can access those funds by removing the distinction between independent producers and broadcasters. Moreover, the company seems to acknowledge that this proposal would prima facie violate Canada’s trade obligations under the USMCA. It responds that the government can rely on the cultural exemption found in the agreement to implement its approach. What it neglects to say, however, is that use of the exemption opens Canada up to retaliatory measures by the U.S. that could result in hundreds of millions in new tariffs.

[Note: the other submissions I obtained under Access to Information Act but won’t post on include the CWTA and Quebecor]

The post Rogers Calls for Expansion of Media Bailout to Cover Broadcast Organizations…and Thinks Netflix Should Pay For It appeared first on Michael Geist.

Fixing Fair Dealing for the Digital Age: What Lies Behind the Copyright Review’s Most Important Recommendation

Michael Geist Law RSS Feed - Wed, 2019/06/05 - 09:07

The long-awaited Canadian copyright review report features numerous good recommendations, many of which were rejections of industry lobbying: a rejection of new restrictions on fair dealing for education, rejection of Bell’s FairPlay site blocking initiative, and rejection of limits on safe harbours in response to the so-called “value gap.” Yet the most notable recommendation is the committee’s support for fair dealing for the digital age by expanding its scope and ensuring that it applies equally in the analog and digital worlds.

I wrote about the need to fix fair dealing for the digital age in May 2018:

there is a need to fix fair dealing by ensuring that it is not hamstrung in the digital environment. The Canadian test for fairness is consistent with those found in other countries, but there are barriers that exist for fair dealing in the digital world that are not found in the analog one. The most obvious example are Canada’s digital lock rules, which exceed the requirements at international law in the WIPO Internet treaties. As many warned five years ago, Canada has created a system that allows for unnecessarily restrictive limits on digital fair dealing. There is a need to fix this problem by establishing an exception within the anti-circumvention rules to allow for circumvention for any lawful purpose.

Moreover, the fair dealing purposes should be expanded, ideally by adopting a “such as” approach to its list of enumerated purposes that would ensure the law remains relevant in the face of new innovation. Alternatively, given Canada’s prioritization of artificial intelligence, there is a need for a fair dealing exception for text and data mining similar to that found in many other countries.

The copyright review addresses all three issues. First, the committee recommended adding much needed flexibility by allowing circumvention for purposes otherwise permitted under the Copyright Act:

However, it agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs. In other words, while anti-circumvention rules should support the use of TPMs to enable the remuneration of rights-holders and prevent copyright infringement, they should generally not prevent someone from committing an act otherwise authorized under the Act.

This change will help ensure that fair dealing rights are treated in an equivalent manner in both the analog and digital worlds.

Second, it recommended adopting the “such as” approach to fair dealing to make the current list illustrative rather than exhaustive:

Parliament should make the list of purposes enumerated under section 29 of the Act an illustrative list rather than an exhaustive one. Doing so would increase the flexibility of the Act by allowing a broader range of admissible purposes to emerge from existing ones under the guidance and the supervision of the courts—for example, from criticism to quotation, from parody to pastiche, and from research to informational analysis. Such an amendment could allow new practices to fall under fair dealing, such as “reaction videos” and video game streaming. The Committee emphasizes that the purpose of a dealing is only one of many factors taken into account when determining whether this dealing is indeed fair under section 29 of the Act.

The increased flexibility would make the Canadian fair dealing provision closer to the U.S. fair use model, but retain the certainty that comes with decades of jurisprudence on the issue.

Third, committee called for the introduction of a new exception for informational analysis, the Canadian equivalent of a text-and-data mining exception to facilitate artificial intelligence and machine learning activities:

The evidence persuaded the Committee that facilitating the informational analysis of lawfully acquired copyrighted content could help Canada’s promising future in artificial intelligence become reality. The Committee therefore recommends:

Recommendation 23
That the Government of Canada introduce legislation to amend the Copyright Act to facilitate the use of a work or other subject-matter for the purpose of informational analysis.

All three recommendations would go a long to way fixing fair dealing. How did the committee arrive at the right, forward-looking conclusion? As described in Chair Dan Ruimy’s opening remarks, the committee made a commitment to hear from all stakeholders with no pre-determined policy outcomes:

As Chair, my main concern was to make sure that the review would be informed by as many different perspectives as possible. Committee members were encouraged to ask all manner of questions to better understand the impact copyright law has on Canada’s modern economy and Canadian creators, even though such questions often led to difficult discussions. We did not presume what the outcome of this lengthy and complex undertaking would bring, only that the Committee would give anyone the opportunity to present oral or written evidence. I am honoured to have witnessed such an important and thoughtful conversation.

This was a textbook example of good policy development with a committee that heard from hundreds of stakeholders, took the time to cite every single one, and let the evidence dictate their recommendations. In doing so, the committee has laid the foundation for future Canadian copyright reform.

The post Fixing Fair Dealing for the Digital Age: What Lies Behind the Copyright Review’s Most Important Recommendation appeared first on Michael Geist.

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

Michael Geist Law RSS Feed - Mon, 2019/06/03 - 17:35

In December 2017, the government launched its copyright review with a Parliamentary motion to send the review to the Standing Committee on Industry, Science and Technology. After months of study and hundreds of witnesses and briefs, the committee released the authoritative review with 36 recommendations that include expanding fair dealing, a rejection of a site blocking system, and a rejection of proposals to exclude education from fair dealing where a licence is otherwise available. The report represents a near-total repudiation of the one-sided Canadian Heritage report that was tasked with studying remuneration models to assist the actual copyright review. While virtually all stakeholders will find aspects they agree or disagree with, that is the hallmark of a more balanced approach to copyright reform.

This post highlights some of the most notable recommendations in the report that are likely to serve as the starting point for any future copyright reform efforts. There is a lot here but the key takeaways on the committee recommendations:

  • expansion of fair dealing by making the current list of fair dealing purposes illustrative rather than exhaustive (the “such as” approach)
  • rejection of new limits on educational fair dealing with further study in three years
  • retention of existing Internet safe harbour rules
  • rejection of the FairPlay site blocking proposal with insistence that any blocking include court oversight
  • expansion of the anti-circumvention rules by permitting circumvention of digital locks for purposes that are lawful (ie. permit circumvention to exercise fair dealing rights)
  • extend the term of copyright only if ratifying the USCMA and include a registration requirement for the additional 20 years
  • implement a new informational analysis exception
  • further study of statutory damages for all copyright collectives along with greater transparency
  • adoption of an open licence rather than the abolition of crown copyright

My submission to the Industry committee can be found here. The submission and my appearance is cited multiple times in the report and I’m grateful that the committee took the submissions from all witnesses seriously.

More Data, Less Study

Having spent a year studying copyright, it is clear that the Members of Parliament do not want to do this every five years. The report’s first recommendation is to repeal the requirement to review the law every five years, noting that frequent reviews increases the politicization and polarization of copyright without enough time to fully assess the effects of prior amendments. This is a welcome recommendation as is the committee’s recommendation for more data on copyright from Statistics Canada and the creation of research chairs focused on copyright remuneration and economics.

Fair Dealing

Based solely on the number and length of the footnotes, it is readily apparent that fair dealing, particularly educational fair dealing was a dominant issue at committee. The committee concluded that much of the change over the past five years is due to Canadian publishers struggling to adjust to market disruptions that are unrelated to the 2012 copyright reforms. Indeed, the committee notes that “the decline of collective licensing in education has arguably more to do with technological change than it does with fair dealing.” The committee was concerned with developments in the area but ultimately rejected the recommendation of the publishers and copyright collectives:

The Committee cannot endorse the proposal to limit educational fair dealing to cases where access to a work is not “commercially available,” as defined under the Act. While licensing should be encouraged, this proposal risks reducing flexibility in the educational market by favouring blanket over transactional licensing.

Instead, it calls for the government to facilitate efforts to achieve consensus on fair dealing and to review the issue again within three years.

Having dismissed the proposal to limit educational fair dealing, the committee then addresses the restrictive nature of an exhaustive list of fair dealing purposes. At long last, it recommends adopting the “such as” approach to make the current list illustrative rather than exhaustive:

Parliament should make the list of purposes enumerated under section 29 of the Act an illustrative list rather than an exhaustive one. Doing so would increase the flexibility of the Act by allowing a broader range of admissible purposes to emerge from existing ones under the guidance and the supervision of the courts—for example, from criticism to quotation, from parody to pastiche, and from research to informational analysis. Such an amendment could allow new practices to fall under fair dealing, such as “reaction videos” and video game streaming. The Committee emphasizes that the purpose of a dealing is only one of many factors taken into account when determining whether this dealing is indeed fair under section 29 of the Act.

The increased flexibility would make the Canadian fair dealing provision closer to the U.S. fair use model, but retain the certainty that comes with decades of jurisprudence on the issue.

The committee also called for the introduction of at least one new exception: informational analysis, the Canadian equivalent of a text-and-data mining exception to facilitate artificial intelligence and machine learning activities.

Internet Safe Harbours and Site Blocking

The committee report provides an extensive review of safe harbours for Internet platforms and ISPs.The committee rejected proposals to limit the safe harbour provisions in the Copyright Act. In fact, the committee even expresses concern with bringing notice-and-takedown to Canada:

The Committee finds it questionable, for example, that an OSP’s content management policies would require taking down or de-monetizing content uploaded on a platform before giving its uploader the opportunity to respond to allegations of copyright infringement.

Instead, it simply calls for ongoing monitoring of developments around the world.

With respect to site blocking, the committee rejects the creation of an Internet piracy system such as the FairPlay proposal, concluding that the courts must be involved:

The Committee does not, however, support the development of an administrative regime to these ends. It is for the courts to adjudicate whether a given use constitutes copyright infringement and to issue orders in consequence. The courts already have the expertise necessary to protect the interests of all involved parties.

It therefore recommends changes to facilitate court orders, subject to “paramount importance be given to net neutrality in dealing with impacts on the form and function of Internet in the application of copyright law.”

Fixing the 2012 Law: Digital Locks, User Generated Content and Notice-and-Notice System

The committee provides several recommendations designed to address shortcomings arising from the 2012 reforms. For example, it examined the issue of the restrictive approach to Canada’s anti-circumvention rules, often referred to as digital locks. The committee recommended adding much needed flexibility by allowing circumvention for purposes otherwise permitted under the Copyright Act:

However, it agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs. In other words, while anti-circumvention rules should support the use of TPMs to enable the remuneration of rights-holders and prevent copyright infringement, they should generally not prevent someone from committing an act otherwise authorized under the Act.

This change – which was widely recommended when the law was first established – would ensure that fair dealing rights are treated in an equivalent manner in both the analog and digital worlds.

The committee also recommends review of the user-generated content provision to ensure that creators of non-commercial USG are not held liable for unintended copyright infringement.

The committee recommends keeping the notice-and-notice system but wants to fix the problem of notices with settlement demands still being forwarded by ISPs due to the challenge of easily identifying the content of notices. To address the issue, it recommends new regulations that require a machine-readable format to better automate the system.

Term Extension

The committee noted that it heard arguments both in favour and against copyright term extension (in a telling comment, the Canadian Heritage report said it did not hear from anyone who opposed term extension). The committee recognized there may no alternative but to extend copyright given the USMCA, but it recommended limiting the harm by only doing so if the agreement is ratified. Moreover, it recommended establishing a registration requirement for the additional 20 years:

The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system.

As part of its copyright term recommendations, the committee also recommends establishing a reversion right for creators after 25 years, an approach that matches the Canadian Heritage recommendation.

Statutory Damages

The committee rejected calls for eliminate the non-commercial statutory damages cap established in 2012. Instead, it calls for amendments that would keep both the upper and lower limits consistent with inflation.

The committee also stops short of calling for statutory damages being added in all copyright collective cases as was sought by Access Copyright. However, it was sympathetic to the arguments, therefore calling on the government to evaluate the forms of statutory damages available, recommending:

The Committee is thus inclined to allow any collective society to recover an award in statutory damages but finds the current section 38.1(4) of the Act to be inadequate to implement such a policy. Should Parliament extend this remedy to all collective societies as well as the rights-holders who have authorized them to act on their behalf, it should do so with a more sophisticated regime that reflects, notably, the following policy objectives: encouraging fair licensing practices, deterring copyright infringement, enabling courts to award proportional statutory damages that account for different types of tariffs, and ensuring that proceedings before the Board proceed efficiently and in a timely manner.

Copyright Collective Transparency

The report features two recommendations on copyright collective transparency:

Recommendation 35
That the Copyright Board of Canada review whether provisions of the Copyright Act empower the Board to increase the transparency of collective rights management to the benefit of rights-holders and users through the tariff-setting process, and report to the House of Commons Standing Committee on Industry, Science and Technology within two years.

Recommendation 36
Given the important role of collective societies in the copyright framework and in the collective administration of rights, that the Government of Canada consider the benefits and mechanisms for increasing the transparency of collective societies, particularly with regards to their operations and the disclosure of their repertoire.

Crown Copyright

It would appear that crown copyright was among the most contentious issues among committee members as it garnered dissenting opinions from both the Conservatives and NDP.  Both opposition parties recommended the abolition of crown copyright. The report (the Liberals on this issue) stopped short of recommending the abolition of crown copyright, calling instead for the adoption of an open licence. The full recommendation is lengthy and complicated, seeking to increase access but retain some government powers over works.

Emerging Issues

One of the very first recommendations addresses indigenous copyright issues with several recommendations for further action.  This issue has certainly captured the attention of the committee and is likely to receive increased focus on the months ahead.

The committee stops short of recommending a new artists’ resale right (as the Heritage report did). Instead, it calls for a consultation on the issue with a report back to the committee within three years. The Conservatives dissented from the recommendation.

The committee includes a termination right for artists recommendation that is consistent with the imbalance between creators and publishers/record labels. The report notably cites Music Canada’s Graham Henderson to counter concerns that termination would hurt the sector, stating:

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.”

The committee also called on the government to consider amending the law to clarify ownership of computer-generated works.

Despite calls from some to adopt EU-style linking rights, the committee did not recommend those reforms. Instead, it called for a study by Canadian Heritage on remuneration of journalists, the revenues of news publishers, the licences granted to online service providers and copyright infringement on their platforms, the availability and use of online services, and competition and innovation in online markets, building on their previous work on Canada’s media landscape.

The post The Authoritative Canadian Copyright Review: Industry Committee Issues Balanced, Forward-Looking Report on the Future of Canadian Copyright Law appeared first on Michael Geist.

The LawBytes Podcast, Episode 14: Big Data, Privacy and Democracy – A Conversation With Nathaniel Erskine-Smith on the International Grand Committee

Michael Geist Law RSS Feed - Mon, 2019/06/03 - 09:05

The debate over big data, privacy and its implications for democracy came to Ottawa last week as the International Grand Committee brought together the world’s biggest technology companies, politicians from around the world, and leading thinkers. Liberal MP Nathaniel Erskine-Smith, the Vice-Chair of the Standing Committee on Access to Information, Privacy, and Ethics joins the podcast this week to reflect on the three days of hearings, the prospect for global reforms, and what comes next for the committee.

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:

International Grand Committee on Big Data, Privacy and Democracy

Credits:

CBC, Politicians Grill Facebook, Google, Twitter over Privacy, Disinformation
CBC, Facebook’s Mark Zuckerberg Ignores Subpoena to Appear at Privacy Hearing

Transcript:

LawBytes Podcast – Episode 14 | Convert audio-to-text with Sonix

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

CBC News:
The world’s largest tech firms were on the defensive today in Ottawa. Canada hosted a committee of politicians from nearly a dozen countries which got the chance to grill representatives from Facebook, Google, and Twitter about how they manage data, how they handle the spread of misinformation, and whether they’re a potential threat to democracy. The committee also heard from observers of the industry who are worried about what they’re seeing.

Michael Geist:
The debate over big data, privacy, and its implications for democracy came to Ottawa last week as the so-called international grand committee brought together the world’s biggest tech companies, politicians from around the world and leading thinkers for three days of hearings. The international grand committee hearing the second of its kind was led by the House of Commons Standing committee on Access to Information, Privacy and Ethics who were joined by elected officials from the U.K., Germany, Ireland, Singapore, and many other countries. In the hot seat where the tech and social media companies: Facebook Google Twitter Apple Microsoft and Amazon. The discussion often became contentious.

MP Peter Kent:
Does Facebook still defend the concept that it doesn’t have to be true to be your platform.

Kevin Chan, FB:
I understand where you’re getting at. I do think that if I if you’ll permit me the way I would like to maybe talk about it a bit.

MP Peter Kent:
Yes or no it wouldn’t work yes or no would work.

Kevin Chan, FB:
That’s why we’re here. We would welcome basic safe.

MP Peter Kent:
So this is a learning experience for you.

Kevin Chan, FB:
To welcome basics Mr. Kent basic safe. I think.

MP Peter Kent:
I asked that with respect and civility.

Kevin Chan, FB:
We would welcome basic standards that lawmakers can impose on the platform about what should go up and what should come down.

Michael Geist:
The controversy didn’t stop with what the company said but also who said it the decision of top executives such as Facebook Mark Zuckerberg and Sheryl Sandberg to give the entire hearing a miss sparked widespread anger from across the political spectrum.

MP Charlie Angus:
It’s really important for Facebook and the other data giants to realize that their contempt of democracy is their contempt of citizen rights. Their belief that because their billionaire frat boys from Silicon Valley they’re there above all of us little people that they they’re running on a road and if they continue to show contempt for our democracies our democracies will push back.

Michael Geist:
Hours after the hearings concluded I sat down with Nathaniel Erskine Smith a Liberal MP from the Toronto riding of Beaches East York and vice chair of the committee to discuss the intensive three days, the prospect of global reforms, and what comes next for the international grand committee.

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

MP Nathaniel Erskine-Smith:
Thanks for having me.

Michael Geist:
So we are just a few hours after the conclusion of three days of what I assume I’m exhausted was pretty gruelling hearings for the grand committee which made for a really good television or at least streaming for those that were following. That’s right and certainly attracted a lot of attention and I want to get your immediate thoughts given that it’s only been a few hours since it concluded. But first for those that weren’t following along. Can you just explain what the grand committee is.

MP Nathaniel Erskine-Smith:
Sure. So the grand committee the word grand by the way this would only have been created by UK parliamentarian. It is an international committee made up of more than 10 parliaments from around the world who are all focused on similar issues related to democracy big data and privacy. And this really was born out of an initial cooperation between our Canadian committee and the U.K. committee where we are both going down this rabbit hole of Cambridge analytics. And there was I communicated first with Christopher Wylie who connected me with the U.K. chair Damian Collins. We had direct interactions to assist one another in our investigations and out of that we went to a roundtable of parliamentarians in Washington in July of last year and started this conversation. We had Bob Zimmer our conservative chair was there with me in Washington and he and Damian then said What else can we do. What can we do next. And Damian at the time was adamant that Mark Zuckerberg needed to attend before the UK Parliament. He’d blown them off. And so the initial thought was well it’s much more likely that we get a serious witness like that if we join forces. And so started out with Canada the UK and then ballooned to 10 plus parliaments.

MP Nathaniel Erskine-Smith:
We had an initial meeting with Richard Allen a V.P. of global policy for Facebook in London in November December of last year and then so this is the second major meeting. And it really is one to raise awareness and to hold the platforms accountable for some of their bad practices and negligence. I would say and, two, to sort of build on the sense of global cooperation when we have problems that are global in nature because data so freely flows across borders and companies are global in their reach. How do we work as Parliamentarians across countries to have a global solution.

Michael Geist:
It’s interesting now. I won’t get into some of the that ability to cooperate on some of these issues and who shows up and who doesn’t show up even when you come together. But what are some of your immediate thoughts. How do you feel the last few days which of course included the platforms if not the senior executives along with any number of different experts as well.

MP Nathaniel Erskine-Smith:
So what I think is really important that we expanded beyond Facebook and we add Facebook Google Twitter on one panel together and then we had Amazon Apple and Microsoft on another panel together. We also had people who have been writing and thinking about this a great deal from Taylor Owen Ben Scott Heidi Tworek, and Shoshana Zuboff. So there was a lot of good thinking brought to bear at the outset that we could sort of draw from and then put questions to the platforms and big data companies. It was frustrating obviously at times. There were an initial frustration just because very senior people did not attend. When I think they ought to have attended. Also frustrating some of the answers that were given but I would also say I have reasons for optimism when I see. All of these companies now say we need stronger privacy data protections and that if you asked me three years ago they simply weren’t saying they’re pushing back against that. They were lobbying against the GDP. It’s true. Now they’re all saying GDP or potential GDP plus we have. An acknowledgement that they are all moderating content and there needs to be public accountability to that content moderation and different answers probably depending upon the jurisdiction but there needs to be some public facing cooperation between these companies and they can’t be policing this all themselves on their own. We had an acknowledgement that I wasn’t expecting actually that there should be corporate responsibility for the algorithmic impacts or the impacts of the algorithms that that they employ. So there were the beginnings I think of a pretty fruitful conversation and then some additional frustrations where they blew off I think a very useful conversation on competition didn’t really take consumer protection completely to heart. I don’t think. And obviously in the end they didn’t send people who were really gonna be able to make decisions for their companies.

Michael Geist:
Yeah that’s right. And that’s that last point really attracted a lot of attention. I know from you and from from a lot of other people given that particularly the senior executives at Facebook Zuckerberg and Sheryl Sandberg didn’t show up. But of course that’s true for a number of the larger companies.

MP Nathaniel Erskine-Smith:
It was true for all the companies I think Twitter took it the most seriously actually from the people that they sent. Interestingly though particularly with respect to Facebook because they had failed to attend before the previous committee in the UK we had taken the exceptional measure of issuing a summons and more than that I think just as a matter of basic honesty if you’re the CEO of a company and two months ago on March 30th you write I care about privacy I care about competition I care about protecting elections and addressing harmful content online. I want to discuss these issues with lawmakers from around the world. And then you have 10 countries represented in a forum discussing these very issues and you don’t even make an effort and there is no explanation as to why he couldn’t attend. I mean Tim Cook got back to us and said he had another engagement and he was interested in this conversation. Whether or not that’s true that at least engagement. So I found that pretty frustrating in the end.

Michael Geist:
So does that ultimately in a sense undermine the kind of message that the companies are bringing. I mean you talked about that they’ve shifted or moved somewhat in terms of the growing acceptance of privacy regulation perhaps algorithmic transparency and the like but still there’s still not at the point that once once you leave the United States the senior executives are going to show up in.

MP Nathaniel Erskine-Smith:
I think. Yeah in a way it ultimately comes out of trust. And we had Kevin Chan from Facebook before our committee well over a year ago deal with the Cambridge analytics scandal and he acknowledged there’s a loss of trust here and we need to rebuild that trust. I don’t think it goes a long way to rebuilding that trust when there are in some cases platitudes and in some cases even a serious effort to engage in a policy conversation but no effort to engage in a very senior level.

Michael Geist:
It is striking. They do appear at some of those top executives to appear in the United States. The US is not represented on your committee. Although there were U.S. representatives that appeared. Are there concerns that this ultimately becomes of rest of the world elected officials versus U.S. company type of dynamic or at least what’s the impact of not having the U.S. government at the table for these discussions.

MP Nathaniel Erskine-Smith:
Yeah I hope it doesn’t become that I don’t think we need the U.S. government as it were but it certainly would have been helpful to have someone like Mark Warner or Rubio or Amy Klobuchar three people who had participated in the parliamentary Roundtable in Washington last July. I don’t know I was not corresponding with those folks in the way that the clerk was so I don’t know why it was the case that it was declined. But I think you make a good point that in the end if you want to take these if you want to tackle these issues in a very serious way if you don’t have a body like the EU doing it with you or a body country like the US doing it with you it can be difficult to do in Canada and the UK are an incredibly important start we had Germany here that was incredibly important. Ireland is excellent on these issues as well. But. Does it help that you’re adding Morocco to the conversation if you’re not adding some of the bigger players. Maybe not. We did have France when we were in the U.K. and we had Mexico here. So I think there are substantive you know there are serious jurisdictions that are if you look at Germany in particular Germany has done a lot of different very interesting things. There was a German MEP that brought the GDP forward and their own laws dealing with harmful content online. Their German competition authority has had some very interesting things. So that was helpful to have them there. So yes we’d like the US along with saying of course we want the US there but I think it was positive regardless.

Michael Geist:
Yeah. No I’d certainly highlight countries where we’ve been doing some really innovative things. How do you feel Canada fits within that dynamic given that many of the countries you just mentioned have been more aggressive in terms both of some of their regulatory or regulatory approaches or their laws and certainly the enforcement powers that their enforcement agencies say the Privacy Commissioner data protection commissioners have differs from what we have here.

MP Nathaniel Erskine-Smith:
So my bias is to say. As a parliamentarian sitting on the privacy committee I think our Privacy Committee has been very strong on these issues over the last three years. So as parliamentarians we’ve been quite good at pushing these issues forward. As a parliament overall and certainly as a government I think we’ve come late to the to this issue in a serious way. I’m heartened by the fact that there’s now a digital charter saying here are some principles and they include addressing competition issues addressing privacy and data protection in a more serious way. But. Interestingly I was in Brussels I forgot how many weeks ago I met with the EU Data Protection Supervisor on a number of people who are who have thought and are working on privacy issues there and they all spoke very highly of academics here in Canada, of past privacy commissioners here in Canada who have in many ways laid the intellectual groundwork for the GDPR. So the EU looks to count Canadian ideas and Canada doesn’t look too good at that it hasn’t been a bit frustrating but I will say now I think we’re at a place where it’s likely that all three parties run on privacy and digital rights platforms and there’s a strong likelihood that whoever forms government after October that we’re likely to see these issues continue in some earnest.

Michael Geist:
Yeah I’m glad you mentioned that because it’s one of things that was notable and I think I saw someone comment on it on Twitter during the course of the hearing is that it’s tough to find many issues on Parliament Hill where everybody seems to be in agreement. This appears to be one of them where certainly all three of the major parties participating in this process seem to be coming at these issues from the same perspective.

MP Nathaniel Erskine-Smith:
Yeah someone said to me. They couldn’t tell which party we represented until they looked us up which I think is a testament to the non-partisan nature of our work.

Michael Geist:
I think that’s that’s notable and in some ways it does augur well for the better I suppose for the digital Charter One of the criticisms of the charter is it comes pretty late in the mandate and that’s fair. So then the question becomes well what happens post election. But if you’ve got all all the parties singing from roughly the same songbook on many of these issues there’s some promise that whoever forms government will see this as an issue they need to take forward.

MP Nathaniel Erskine-Smith:
I think that’s right and I think much depends upon what each party puts in the platform to build out that mandate. Post-election. I was I say I’m hardened by the digital charter because it’s been such a battle. I introduced a bill last June to give the Privacy Commissioner greater powers and enforcement powers looking at fines proactive audits and making orders. And to me this is the no brainer. We were recommended this at our committee twice now. This has been many previous commissioners have said we need these powers. Other countries have them. They work. The lack of engagement I got a year ago versus the really serious engagement is happening now with respect to the digital charter and looking ahead and I think it’s very positive and I’m I’m optimistic that we’re going to see in the Liberal platform at least a real effort to address privacy and digital rights issues.

Michael Geist:
Yeah well that is encouraging and it’s it’s clear just as the companies have shifted. That hasn’t happened by accident. It’s happened because committees like yours have called attention to this and the public is genuinely interested and I think increasingly concerned about some of these issues.

MP Nathaniel Erskine-Smith:
Half the battle at committees like ours is raising public awareness.

Michael Geist:
And one can see you guys have done a done a good job. I mean certainly the reports that you put up get referenced in the digital charter background they get referenced by people repeatedly as sort of providing the foundation for potential.

MP Nathaniel Erskine-Smith:
I now know at least one person read our committee.

Michael Geist:
There’s no doubt more than one now the committee just now these hearings dealt with a whole number of pretty interesting issues some of them really challenging I thought we might touch on a couple. Right off the bat is this challenge on the content side. We get to the privacy side of what expectations we have of companies like Facebook but of course and include others to play a moderating role over their content and the example that was used was the Nancy Pelosi video and you had some members some elected officials who were basically why are you Why did you not take this down and this YouTube took it down you haven’t taken it down and Facebook response was what we have. It’s not that we haven’t done anything. But no we have removed it. What are some of your thoughts about how we navigate what is an incredibly clearly incredibly challenging issue on content that one can make the case causes harm but at the same time it isn’t clear that it’s unlawful and the dividing line between content like that and other parody type videos can be really tough to navigate.

MP Nathaniel Erskine-Smith:
So a couple of things. One I think it is more helpful for a committee like ours and an international committee like ours to focus on areas where we can make real inroads and there isn’t the same level of disagreement. So I think it was Taylor Owen who made the point that there are some easy issues that you can tackle and there are some difficult issues and harmful content on his own is really difficult. And then we immediately went to this Pelosi video that is actually really difficult example even in the realm of the already difficult harmful content conversation.

MP Nathaniel Erskine-Smith:
There are two tracks at which we should regulate where one track at which we regulate content which is where it’s illegal. And the second track is where platforms will obviously have to look to our public rules but we’ll also have community standards that they want to enforce as private companies and so. Is that Pelosi video illegal no. Does it violate their community standards. If it’s up then no and the extent to which it has violated their community standards they’ve taken action by downgrading and providing more context. I don’t know. I think perhaps I could do a bit of a better job of framing that context. It’s not just when you share but when you repress view it. But my view which is consistent with committee recommendations that we’ve made. Whereas obviously illegal content that is being hosted. There are really easy categories. You take child porn or terrorism but it is obviously illegal and it’s flagged for companies and they don’t take it down within a timely way. I’m perfectly comfortable imposing financial sanctions. Germany has a rule like this and whether it’s that exact set of rules or something modelled on those rules. I’m I’m comfortable with that level of enforcement. When you’re balancing freedom expression and protecting harms protecting its harms hate speech. If it’s at the criminal level of hate speech was are already a really high bar. I’m OK with that too. Where we are forcing companies to take down criminal hate speech or criminal harassment criminal threats obviously illegal content where it’s a grayer area. I think.

MP Nathaniel Erskine-Smith:
And public appeal mechanism to determine the illegality would be more comfortable making sure there’s some public accountability to the content decisions and around outsourcing this to the platforms. I would be more comfortable with certainly where Facebook is and determine their community standards. There is no public appeal as far as it goes. But if they are making a decision not based on standards. But public law surely there should be some judicial review as far as that goes. So I would be more confident in the harmful conversation and harmful content side if we focused on clearly illegal content and how we address that first because that even can be quite hard just from an enforcement perspective.

Michael Geist:
We can. I mean I think your your response highlights how much nuance there has to be on this. I mean there there’s sometimes feels like there’s a tendency to say you know you broke it you bought it fix it and take action. But it’s clearly not that simple especially when you’re dealing with a wide range of content some of which we can understand why people object to it but it’s lawful.

MP Nathaniel Erskine-Smith:
Ok. So what do you think about this. I’ve been turning over my head this notion. So there are two factors when we look at content in a way there’s the nature of the content. And if it’s harmful. You know I mentioned child porn terrorism obviously take it down. It’s obviously illegal content. We can talk about liability rules even if they’re there otherwise. In a previous life they could they could look at safe harbor. No we’re just the hosts were out promoting this content. We say oh actually we’re going to chip away at Safe Harbor where is all this obviously illegal. And the EU is even now looking at doing that with respect to some copyright I’m not wholly familiar but I know there’s there’s now a sort of a path towards chipping away at Safe Harbor. More and more depending upon the jurisdiction but at least I understand where we’re not going to last Safe Harbor where obviously illegal content because of the nature of the content. Then there’s the active participation in the promotion of the content. And if they’re not a mere host but they are actively promoting the content through use of the recommendation function on YouTube or the news feed algorithm. More people are going to see that there will be more impressions because of their active participation and there I don’t know what the answer is but there does seem to me there is another path for liability and Section 8 of these arcane broadcasting rules in Canada. Broadcasters can’t broadcast false and misleading news I don’t know whether that should be a rule that we have or not but it is a rule we have. And if they are employing an algorithm that increases impressions. In theory I don’t really know what. Why they get treated differently from broadcasting content that only if you look at it.

Michael Geist:
Yeah well I mean the starting point would be to ask whether or not they’re in fact broadcasting which that I don’t think they are.

MP Nathaniel Erskine-Smith:
But I don’t think they are what I think they are. There’s no reason that you wouldn’t take rules that apply to other categories and say if you’re doing something similar we’re gonna deem you to be platforms that give me a new set of rules on platforms.

Michael Geist:
Well I certainly think we can look to our existing rules to identify a little bit with the contours are around potential liability and another thing of course that makes Canada differ from some of the other countries that were around the table today is we’ve got a Charter of Rights and Freedoms which invariably means that some of that our analysis is going to differ from a country.

MP Nathaniel Erskine-Smith:
So I’ve asked the online falsehoods bill that Singapore was referencing.

Michael Geist:
No we wouldn’t have that and I don’t I’m not sure that we’d have what we’re starting to see in Australia and even the U.K. around harms. I think that the we have stronger protections of free of expression. I think you’re absolutely right around clear cut criminal content and and from everything that I’ve heard from some of those large platforms they agree as well. Facebook will tell you that the they’re able to remove terrorist related content before it ever appears the vast majority of the time and the rest come down quite quickly and child porn has always been viewed as as different from other sorts of content. But even in hate as you mentioned that you know our history around that and the cases have gone up to Supreme Court highlight how challenging it sometimes can be around some of these issues.

MP Nathaniel Erskine-Smith:
And I know that I mean I references section 8 but I think it’s rarely if ever been used this applying a law against false and misleading broadcasting false or misleading is and probably that’s because there are standards councils the broadcasters are part of the same with our news media they have their own internal ethics and the standards councils and so I think Heidi Tworek was making the point that building that ethos would be a really positive development and that makes more sense to me in some ways as a first step than trying to figure out how do we create it or debate even should we be debating liability or rules that would take down a Pelosi video that would open up a whole can of worms about content control that we probably don’t want to have.

Michael Geist:
It would you know the response to Facebook would likely raise and I think they did reference their efforts around developing some sort of oversight system there are questions as to whether I will be global in nature is it local because of course many of these are localized questions both in terms of the law and what people are comfortable with. So there’s there’s a lot of work to be done. I guess what’s changed is there is discussion about the need to do some of that work though.

MP Nathaniel Erskine-Smith:
You know it’s interesting Facebook at the last session in the UK. Richard Allen. I mean he said Well obviously if it crosses the line we take it down. It’s obviously illegal we take it down he said but maybe we shouldn’t promote it if it’s right up against that line because there’s been enough written now where the algorithm in the News Feed It doesn’t matter what reaction it gets if it gets reactions then then it will be more easily seen and promoted and so YouTube similarly in 2016 there is an engineer that said oh maybe we shouldn’t promote borderline content and recommend where line content. And in January of this year they’ve now said we’re not going to do it. And I don’t know if you have any views of this. So it’s not about requiring companies to take things down but. It might be useful to find a way to change the incentive structure where something is clearly false and misleading. That if we are to think about the algorithms we employed more in broadcasting terms. Is there room and maybe there isn’t. I don’t know. But is there room to say how do we change the incentive structure so that there is not profit motive for it rather than a penalty there is more of a discouragement. I don’t know the answer to that.

Michael Geist:
Although one of the things that I liked about the digital charter was that it did put algorithmic transparency on the table. And so the fact that we are I think recognizing that these are choices that are being made and perhaps at least the starting point is to say we need to know more about how those choices are being made. And that may ultimately lead to greater accountability for the choices that are embedded within some of those algorithm.

MP Nathaniel Erskine-Smith:
Yeah that is a place I am much more comfortable with so I won’t talk about speech and harmful content if it’s not obviously illegal and you get into these conversations even about how do we hold companies responsible for the algorithms that they are employing. It’s much easier as a starting point to say let’s make sure that there is a public facing risk assessment so we understand that if YouTube is recommending videos we might like to see. That’s a very positive benefit. But if they are recommending far right nationalist videos after certain content that is you know if they recommend Alex Jones videos to two billion times it’s not illegal but that’s probably a negative externality of a fear of their algorithm. And that should be public facing our way so that we can properly assess it and hold these companies to account.

Michael Geist:
I mean it’s interesting that the conversations moved in this direction. I think you also one point in time it was you who asked Google about scanning of emails and looking at some of some of that content we had others talking about banning personalized advertising where even though there’s talk about essentially banning or putting a hold on social media altogether which is a little more intensive a recommendation it was. What does that say. Are we now at the point where if not talking about banning technologies at least talking about getting under the hood a little bit in terms of how some of this technology works and try and marrying tech mirroring the legislative regulatory side with how the technology functions.

MP Nathaniel Erskine-Smith:
Yeah I think you’re absolutely right that it’s about getting under the hood. I would say it’s about getting under the hood and about assessing how we can take existing first principles and other areas of regulation that have worked offline. How do we make sure these are fit for purpose online and so to your point about banning certain things. We have consumer protection laws and we protect people in a couple of different ways. One to require them to opt into certain. you know if I consent to have to sign a contract is consent there. Sure. But in a consumer and a consumer. context consent sometimes isn’t enough because if I buy the phone. if I buy my iPhone I don’t have to read the Terms and Conditions. I don’t have to know that there’s an implied warranty of merchantability. Just is there because we don’t want a situation where consumers are quickly signing things and not reading things and then liable for the things that they sign. They’re busy with their lives they shouldn’t have to read contracts for everything that they purchase. Why are we suggesting that they should read contracts for every app that they purchase. Is it isn’t. I think a useful conversation have often consents that are explicit go a long way. I think the next question is are they sufficient. In full and are there certain practices. So for example I think I put two but maybe there are others and maybe I’m wrong about these two I don’t know. But it occurs to me that nobody needs to read my emails to target me for advertising. We just take them off the table. It occurs to me that no one under a certain age should be have personalized profiles made up of them for targeting purposes. We would never allow companies to do that off line. Why are we allowed into it online. So I think there are certain categories that probably we could take off the table completely and then have a consent model for everything else and explicit opt in consent largely.

Michael Geist:
You have any thoughts about how we how we do that from a legal regulatory perspective. We’ve seen how hard it is least in our country. It’s probably true for many others to even get broad based privacy reform much less delving into these kinds of issues and what what you’re putting on the table I think is really interesting and I think intuitively sounds right in terms of identifying certain kinds of behaviour that we would see as unacceptable in one area and ought to be unacceptable in the online space to do we have right now the kind of system or model in place that allows that to be operationalized.

MP Nathaniel Erskine-Smith:
Probably not. So maybe if we’re looking at wins maybe the answer is the GDPR modeled often consents and for any secondary use or anything that isn’t within them one’s reason why expectations in signing up for the app. There has to be an explicit opt in consents which is I think part of a you know there’s a consensus I think among folks like you as its various part privacy people on the on that and so maybe that’s where you start and then people look at other practice and say where consensus is built up say well actually this should be taken off the table. Probably though for kids I think that I think that’s an easy one actually to just take that off the table entirely and I would flip it and I think maybe this should be flipped in other ways too but at least for kids the onus shouldn’t be on us to prove that kids should be off the table it should be the onus on the companies show us the positive benefits for targeting kids in some way and then maybe we’ll let you do it. What’s the positive benefit.

Michael Geist:
For me it’s really in the privacy realm. The US doesn’t have much in the way broad based privacy rules but it does for kids.

MP Nathaniel Erskine-Smith:
Exactly in the sense and politically if not later that’s in the same way we work in a very non-partisan way to establish some of these recommendations so far that would be very heavy the easiest thing.

Michael Geist:
Now that makes sense. One other issue that I just wanted to touch on that you raised and I think you indicated didn’t get a great response on was the competition side of the story which is also gaining a lot of traction. What are some of your thoughts about the growing momentum. In many ways to say break up these companies or at least use to look to competition law antitrust law as a mechanism to in a sense divide up a little bit these very large companies from the different lines of business that where I think there is a feeling that part of the problem is when they merge these different lines of business together that’s where some of the harm may occur.

MP Nathaniel Erskine-Smith:
So I have spoken to people far smarter than me on this and I think that they are right that in the same way we protect consumers on price and that is one of the foundational elements of competition laws to protect consumers on price. We should also protect consumers on privacy and so acquisition mergers and acquisition decisions that should be a key consideration I think of competition regulators when they when they look at acquisitions. So what is the public interest in Facebook acquiring Instagram. Is there a great utility to us. Not particularly is there a downside to us. Not on price but your privacy actually. I think there is a real one where you had a major competitor that is the closest competitor. Now Zuckerberg can’t name a competitor one day when he attends a Congress. But Instagram was the competitor and we know that because if they weren’t if they weren’t one company now Facebook is losing users to Instagram and not having that level of competition and that ability to move from one platform to another. That protects my privacy a little bit more and maybe provide a safer space for conversation whatever the case might be. But at least on privacy that I think without question should be a consideration for our competition regulators. I know that competition authorities in Canada are thinking about this too because there’s a data forum that the competition commissioner has held at the National Arts Centre here. The other thing that I try to wrap my head around though unconsciously I don’t have any views of this is not about privacy but about just big data and innovation and it occurs to me as Amazon is today but I think the same applies to Facebook. If we use the Amazon example. They are basically taking all of the purchase decisions of consumers and adding that all up and saying well our consumers are really buying iPhone Chargers let’s get on the business of iPhone chargers. It seems really a massive amount of market power that I don’t know if that’s a good thing or not. But our competition regulators should be looking at it. When Facebook acquires third party apps which they tend to do. Are they sharing the third party app data that they have or are they commingling that with the data that they hold about people and then they’re able to make much better decisions about the growth of those apps and which one is likely to grow the fastest in which one is likely to be the best. Again that seems if they are doing that. That would be of great concern to me if I was a competition regulator. So there are lots of existing abuse of dominance and sort of unfair competition rules as we have them. I think they could be playing a much stronger role in the space.

Michael Geist:
No I think there is a there’s been an awakening on some of those issues and just like we’re talking much more about algorithmic transparency and talking about some of the different kind of regulatory solutions clearly that discussion is going to continue and it’s interesting.

MP Nathaniel Erskine-Smith:
Now the conversation has moved not from debating whether we should do it although the companies denied that we should do it. Of course they did but on competition at least. But the real conversation is moved to operationalizing the ideas so algorithmic transparency and explainability in the GDPR is accepted. It’s more just a question of how do you effectively make it a reality. And I think similarly with competition. I think competition authorities now recognize we have to address privacy and we have to address big data. How do we properly do this.

Michael Geist:
So I think it’s right. I see the lights flashing which tells me to think you’re headed for a vote. A few minutes or so before I let you run though what next for the grand committee.

MP Nathaniel Erskine-Smith:
So we will be meeting in Ireland in November. We is maybe a generous term in the sense that I’m up for re-election however and we’ll see. But there hopefully there will be Canadians that then hopefully I’ll be there and hopefully Charlie and Bob will be there as well. And it will continue. It’ll be up to Ireland in the same way we frame the debate here and added more ideas to the conversation than the first meeting. It’ll be up to Ireland to decide where we take this next. And I think my view has generally been initially accountability for companies was required. They were there now at the point where the public cares. They understand the need to act in many ways. You know we constantly give him a hard time and grandstand a little but the companies aren’t really trying to act in many ways whether it’s election interference or you know improving privacy rules. They’re now saying the right things and doing some of the right things. And I think it’s about continuing to have as much of a constructive conversation as possible at this point. How do we get serious cooperation from legislators around the world. But with companies around the world.

Michael Geist:
So I mean that’s right. I think that represents a really positive outcome in the privacy world for many years now. There’s been a lot of talk about the rule that the international conference of privacy and data protection could data protection commissioners plays where you get kind of the cross cultural cross country discussion.

MP Nathaniel Erskine-Smith:
I aasked about that about to the U.S. Election Commission Commission because I think what the privacy commissioners around the world do is incredible and more regulators should look to do it.

Michael Geist:
It’s had a real impact. It’s striking to see it happening effectively at an elected official level where we get politicians come they’re so rarely in fact having that kind of discussion is really interesting and I think that the effect of getting those different perspective surely has an impact that you’re able to bring back domestically as well when you hear what’s happening elsewhere and what some of the perspectives are.

MP Nathaniel Erskine-Smith:
Yeah I think it helps move the conversation forward in governments in the end where you have parliamentarians. You mentioned earlier but the fact that it’s been non-partisan it the fact that the public now care is more and more and more about these issues obviously they do we live our lives increasingly online we want ourselves and our kids to be protected online. So I think governments not just ours but in the UK and France is trying to do is Germany is ahead of us. But all of these and California when you talk with the US is not the table but probably you know if we’re focusing on maybe we should try to tackle getting a legislator from California to Ireland because there are jurisdictions in the U.S. They’re doing really important work on this too. But I think governments are now seized with this in a really serious way in a way that they weren’t. If you asked me three years ago when we started toiling away on these privacy issues whether I thought the government was going do anything other than much more skeptical than I am today that’s it.

Michael Geist:
Well thanks so much for joining me.

MP Nathaniel Erskine-Smith:
Thank you.

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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Cogeco Warns Against Online Video Services Undermining Canadian Sovereignty in BTLR Submission

Michael Geist Law RSS Feed - Fri, 2019/05/31 - 10:49

Cogeco, the fourth largest cable operator in Canada (and number two in Ontario and Quebec), warns the broadcast and telecommunications legislative panel about the dangers of unregulated video services such as Netflix to national sovereignty in its previously secret submission. Obtained under the Access to Information Act (much like the previously discussed Bell and Shaw submissions), the Cogeco submission opposes new digital consumer protections and net neutrality rules but strongly supports increased regulation for online video services.

The consumer side of the submission warns against regulation. For example, it states the following on net neutrality:

Net neutrality should not be defined and mandated in new federal legislation, as issues respecting net neutrality can and should continue to be supervised and regulated by the independent federal regulatory agency in accordance with evolving technical and market conditions.

It also warns against federal digital consumer protection rules:

Attempting to unilaterally implement in the new federal legislation a sector-specific layer of new rights or safeguards for ‘digital consumers’ would likely create more issues than it would solve due to increased complexity, confusion, conflicting requirements, jurisdictional issues and ensuing legal challenges.

While consumer protections are off-limits for Cogeco, it strongly supports regulating online video services such as Netflix. The submission argues against ISP taxes, noting the costs the network costs and the impact new fees would have on network access and affordability, but favours regulation of online video services. contributions apply to all. What is notable about the Cogeco submission is its attempt to frame Netflix regulation as a matter of safety for Canadians rather than simply a cultural issue:

This public policy imperative is not only driven by the need to ensure that Canadian content is available to Canadian consumers on all distribution platforms and that all players within the Canadian broadcasting system compete and support Canadian content funding on a level playing field, but also by the need to ensure that the Canadian broadcasting system does not become an unregulated conduit for content that undermines Canadian sovereignty, the safety and well-being of Canadian consumers, or the integrity of their democratic institutions.

The arguments regarding a level-playing field have always been far weaker than its proponents its acknowledge. The suggestion that Netflix puts the safety and well-being of Canadian consumers at risk is even weaker.

The post Cogeco Warns Against Online Video Services Undermining Canadian Sovereignty in BTLR Submission appeared first on Michael Geist.

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

Michael Geist Law RSS Feed - Thu, 2019/05/30 - 10:07

The Canadian government tabled Bill C-100 yesterday, the bill to implement the Canada-US-Mexico Trade Agreement. I will have future post on the key provisions, which include new criminal provisions on trade secrets and tampering with rights management information. The bill also features several provisions related to copyright term but notably does not touch the current general copyright term of life of the author plus an additional 50 years. There are several new terms included in the bill with extensions for anonymous works, performances in sound recordings, sound recordings, and cinematographic works. The bill expressly states that none of the extensions are retroactive which means that the works that are currently in the public domain will remain there even after the new terms are established.

Yet the big story is that Section 6 of the Copyright Act, which states that the general term of copyright is life of the author plus 50 years, remains unchanged despite a USMCA requirement of life plus 70 years. Why unchanged?

I am advised that the reason is that the Canadian government negotiated a 2 1/2 year transition period for the USMCA and it intends to use the time to consult with the public on the best way to meet the copyright term obligation. That holds the promise of the making the best of a bad situation given that few (other than the embarrassingly one-sided Heritage committee study) think that extending the term of copyright benefits Canadians.

For example, there has been some thought given to establishing a registration requirement for the additional 20 years. That approach would allow rights holders that want the extension to get it, while ensuring that many other works enter the public domain at the international standard of life plus 50 years. By providing for life plus 50 and the option for an additional 20 years, Canadian law would be consistent with Berne Convention formalities requirements and with its new trade treaty obligations. Copyright registration would not eliminate all the harm to the public domain, but it would mean that only those that desire the extension would take the positive steps to get it, thereby reducing the costs of the USMCA’s unnecessary copyright term extension.

The post Canada Introduces USMCA Implementation Bill…Without a General Copyright Term Extension Provision appeared first on Michael Geist.

No Mandated Netflix Cancon Payments: Shaw Argues Success Lies in More Regulatory Flexibility in BTLR Submission

Michael Geist Law RSS Feed - Wed, 2019/05/29 - 10:12

Yesterday’s post on the still-secret broadcast and telecommunications review submissions obtained under Access to Information focused on Bell, which proposed extensive new regulations for Netflix that would result in hundreds of millions in payments that could spark a trade battle with the United States. The major Canadian communications companies are not united on this issue, however.  While there are similarities on wireless (most oppose mandated MVNOs), the broadcast perspectives differ significantly. This post reveals some of the details in Shaw’s submission to the BTLR, also obtained under ATIP.

Shaw argues that broadcast distributors such as cable companies already contribute to Canadian content by investing in its distribution through its networks. It therefore recommends the removal of the mandated 5% contribution by BDUs and opposes the creation of a new ISP tax. Indeed, it identifies many negative effects of an ISP tax, including affordability, reduced network investment, and harm to innovation.

Interestingly, Shaw also rejects a mandated Netflix Cancon contribution tax:

Shaw submits that the imposition of legacy regulatory models onto OTT platforms would not be in the best interest of consumers or the overall Canadian broadcasting system. A regulatory framework that depends on foreign OTT services to achieve the cultural objectives of Canada’s domestic broadcasting system will likely lead to issues of enforcement as well as inconsistent and unsatisfactory results.

Instead, Shaw argues that the Broadcasting Act objectives are best achieved through a “more flexible, market-driven approach”. As for a Netflix contribution, Shaw argues it would be better to emphasize discoverability of Canadian content, a measure that could be imposed on all OTT providers – both Canadian and foreign – thereby avoiding potential violations of Canada’s trade agreement obligations. Shaw also supports the imposition of sales taxes on Netflix and the avoidance of new carriage fees for broadcast signals.

Shaw maintains that the Canadian market would be better served by opening up to foreign investment. It argues that for Canadian broadcasters and BDUs to compete, they need access to capital, expertise, and technology, all of which would be facilitated by access to foreign investment. Given the role that foreign providers (such as Netflix) already play in the creation of content in Canada, opening the market would help preserve the strength of the Canadian broadcasting system.

As for other issues, Shaw believes that net neutrality is already protected under Canadian law without the need for further provisions and that website blocking should be permitted through reform to the Copyright Act. While the Bell submission adopted an extreme self-interest approach, Shaw’s vision is consistent in favouring a lightweight regulatory model premised on more competition, better pricing, and a shift away from mandated payments.

The post No Mandated Netflix Cancon Payments: Shaw Argues Success Lies in More Regulatory Flexibility in BTLR Submission appeared first on Michael Geist.

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