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Canadian Senate Report Emphasizes Need for Consultation, Transparency in Trade Talks

Michael Geist Law RSS Feed - Mon, 2017/02/13 - 10:18

Prime Minister Justin Trudeau meets U.S. President Donald Trump today with trade issues sure to be a key part of the agenda. With the TPP now dead and NAFTA headed to renegotiation, the arrival of a Trump administration has had a dramatic impact on Canadian trade policy.  Last November, I wrote a piece in the Globe and Mail arguing that Canada’s trade negotiation strategy needed to focus more on the how of trade negotiations than the who:

the how of negotiation may be more important than the who. The public backlash against trade deals points to a process that leaves many feeling excluded and to terms that are presented publicly for the first time as final. The real opportunity for Ottawa is not just to explore new trade partners but to challenge some of the long-standing assumptions about such deals in order to foster greater public confidence in the outcome.

The column continued by suggesting that the government “ensure that the same emphasis on transparency and public consultation that is emblematic of domestic policy development is mirrored in the trade file.”

Last week, the Standing Senate Committee on Foreign Affairs and International Trade issued a report on free trade agreements, which it described as “a tool for economic prosperity.”

The report was the result of months of hearings that included stakeholders from across the spectrum (I appeared in March 2016).  The final recommendations are particularly noteworthy since there is a strong emphasis on the need for public consultation, evidence-based policy, and greater transparency in Canadian trade negotiations.  They include:

Recommendation 1
That the Government of Canada engage more actively in activities aimed at increasing consultations with – and direct engagement of – Canadians on the importance of international trade and the relevance of trade agreements to Canada’s economic prosperity.

Recommendation 5
That the Government of Canada commission one or more independent evaluations of the effectiveness of the federal measures intended to mitigate the potentially adverse impacts of free trade agreements on Canadian workers, sectors and businesses. These evaluations should be used to enhance the effectiveness of such measures, and inform the development of future “free trade agreement implementation strategies.”

Recommendation 6
That the Government of Canada establish a formal consultation process when defining a negotiating mandate in relation to a particular free trade agreement. Consultations should continue throughout the negotiation process, provide timely updates and be open to all relevant stakeholders, including the public. As well, consultations should lead to the identification of measures to be included in a “free trade agreement implementation strategy.”

Recommendation 7
That, in order to enable parliamentarians to serve as effective legislators in relation to international trade agreements, the Government of Canada report throughout the negotiation process to the Standing Senate Committee on Foreign Affairs and International Trade, and the House of Commons Standing Committee on International Trade. Reports to these parliamentary committees should occur on a quarterly basis, and should provide information on negotiating mandates and progress made during negotiations. When required, sensitive information should be disclosed to these committees with strict adherence to in camera rules.

Recommendation 9
That, prior to the ratification of a free trade agreement, the Government of Canada publicly report the expected economic, labour, environmental, social and other outcomes in relation to that agreement. Moreover, five years after the ratification of such an agreement, the Government should commission one or more independent evaluations to analyze the agreement’s outcomes, and should table a report outlining these outcomes in both the Senate and the House of Commons. These reports should thoroughly describe the methodology used in the analysis, and clearly identify the agreement’s benefits and costs for Canada.

The full report is worth reviewing as it contains considerable discussion on the benefits of greater transparency in trade negotiations. The committee report notes:

The Committee’s witnesses stressed that comprehensive FTAs reach into areas of domestic regulation in a way that traditional trade agreements never did before. This trend can contribute to a perception that the freedom of governments to regulate in the public interest is diminishing. In such a context, the lack of transparency of trade negotiations risks contributing to a perception that trade deals are not necessarily negotiated for the public good. The Committee believes that a higher level of transparency is required during trade negotiations, particularly as modern FTAs increasingly involve areas of domestic regulation. Increased transparency in relation to trade negotiations could help to better inform Canadians about potential advantages while also providing for opportunities to consult Canadians and take into account their concerns throughout the negotiations.

With some additional comments on the need for future trade agreements to ensure that IP commitments are – to the greatest extent possible – consistent with Canada’s IP regime, the Senators were clearly attentive to the concerns raised by witnesses and have provided a useful road map for how Canada might proceed with future trade negotiations.

The post Canadian Senate Report Emphasizes Need for Consultation, Transparency in Trade Talks appeared first on Michael Geist.

Canadian Privacy in the Age of Trump

Michael Geist Law RSS Feed - Thu, 2017/02/09 - 11:11

Last night I appeared on TVO’s The Agenda with Steve Paikin to discuss privacy issues in light of the Trump Executive Order that eliminates Privacy Act protections for non-U.S. citizens or permanent residents. A video of the discussion is embedded below.

The post Canadian Privacy in the Age of Trump appeared first on Michael Geist.

The Future of Simsub Post-Super Bowl: Why Canadian Viewership Data Vindicated the CRTC

Michael Geist Law RSS Feed - Wed, 2017/02/08 - 12:43

The release of the television ratings for the Super Bowl unsurprisingly sparked a wave of reports yesterday blaming the CRTC for a decline of viewers at CTV.  The Hollywood Reporter claimed there was a ratings collapse, the National Post talked about a 39 percent drop, and Cartt.ca argued that the CRTC had failed Cancon with its decision. While CTV’s numbers may have dropped by 39 percent from the 2016 Super Bowl, that number on its own means as much as saying that Tom Brady’s quarterback rating dropped from his last Super Bowl appearance (it did).

When assessing the impact of the CRTC’s simultaneous substitution decision that opened the door to competing U.S. and Canadian feeds for the game (but not for the pre and post-game broadcasts), the far more important number is the Canadian audience for the U.S. feed. It tells the story of how many switched away from CTV to the newly available alternative. Although Bell indicated that this data is not available, that does not appear to be accurate. The Globe and Mail reports today that some Fox stations are measured in Canada, but that Numeris did not provide it with the numbers. [Update: A Numeris spokesperson confirmed that it measures some, though not all, Fox feeds in Canada].

However, Richard Deitsch, the lead media reporter for Sports Illustrated, tweeted on Monday that the CTV feed drew 4.5 million viewers, while the U.S. Fox viewed garnered 803,000 in Canada. Deitsch’s source for the report was Sportnet’s John Shannon, a longstanding sports television producer, who discussed the issue on the Prime Time Sports program on Monday afternoon. The Fox number may involve some guesswork given that Numeris does not track all Fox affiliates in Canada, but I am reliably advised that its data showed low numbers for some U.S. affiliates, including the Buffalo Fox affiliate feed [update 2/9: new reports indicate that the Buffalo number may be in error, suggesting a higher number of Fox viewers in Canada that reported by Shannon/Deitsch. CTV still retained a majority of the Canadian audience].

Even with some amount of guesswork, the real story is that the Canadian feed maintained a healthy majority of the audience. perhaps with as much as 85 per cent of all viewers. Far from representing a collapse (or – as the Hollywood Reporter inaccurately reported – that 40 percent of Canadian viewers turned to Fox), the Canadian feed did far better than the doomsayers predicted. Indeed, Bell’s claims of tens of millions in losses seems likely to have been overstated, particularly with additional revenue from a game that went into overtime.

The CRTC’s Super Bowl simsub decision was vindicated not only by the numbers, but also with the broadcast and the CTV response. The Super Bowl ads were available online, but watching the game and the commercials together demonstrated that the ads are (as the CRTC ruled) an integral part of the broadcast.  For example, commercials for Budweiser and Lumber 84, which speak directly to the immigration controversy in the United States, are powerful on their own, but took on an additional meaning when viewed during the game alongside the customary Americana of the Super Bowl and several shots of Vice President Mike Pence in the crowd.

The CTV response also provided a measure of vindication. Once it became apparent that the lobbying campaign to overturn the decision would fail, CTV competed with Fox for viewers. The Canadian feed included a contest with cash prizes and a trip to next year’s Super Bowl along with additional on-air promotion. While there were glitches with the contest, the creation of two different feeds with different benefits is precisely what the CRTC had in mind when it focused on creating more choice for Canadians.

The Bell appeal of the CRTC decision continues, but the bigger question is what comes next for simultaneous substitution policies. Canadian broadcasters have long feared that abandoning the policy would result in hundreds of millions in lost revenue. The Super Bowl experience suggests that that may not be the case. With a majority share of Canadian viewers, decades of watching the Canadian feed may have had a lasting impact on television viewing habits of those who still watch conventional television.

The importance of simsub is surely declining given the availability of streaming and recording alternatives, but it appears that many Canadian viewers will stick with the Canadian feed even with a U.S. alternative. Since removing simsub altogether would free Canadian broadcasters from U.S. programming schedules and potentially reduce the costs for foreign programming, the regulator should consider expanding the removal of simsub beyond one program per year.

The post The Future of Simsub Post-Super Bowl: Why Canadian Viewership Data Vindicated the CRTC appeared first on Michael Geist.

Did a Canadian Court Just Establish a New Right to be Forgotten?

Michael Geist Law RSS Feed - Tue, 2017/02/07 - 09:32

The European Union shook up the privacy world in 2014 with the creation of “the right to be forgotten“, creating a system that allows people to seek the removal of search results from Google that are “inadequate, irrelevant or no longer relevant.” The system does not result in the removal of the actual content, but rather makes it more difficult to find in light of the near-universal reliance on search engines to locate information online.

Since the European decision, Google has received nearly 700,000 requests for the removal of links from its search database resulting in the evaluation of 1.8 million URLs. Moreover, privacy authorities in Europe – led by France’s national regulator – have adopted an aggressive approach on the right to be forgotten, ruling that the link removal should be applied on a global basis.

My Globe and Mail op-ed notes that while the Canadian courts have grappled with the question of removing links from the Google search database (a key case on the issue is awaiting a decision from the Supreme Court of Canada), there has been little sense that Canada would establish its own right to be forgotten. That may have changed last week as the Federal Court of Canada issued a landmark ruling that paves the way for a Canadian version of the right to be forgotten that would allow courts to issue orders with the removal of Google search results on a global basis very much in mind.

The case – A.T. v. Globe24H.com – involves a Romanian-based website that downloaded thousands of Canadian judicial and tribunal decisions, posted them online, and demanded fees for their swift removal. The decisions are all public documents and available through the Canadian Legal Information Institute (CanLII), a website maintained by the legal profession in support of open access to legal materials (I am a former board member).

Since most decisions on CanLII are not indexed in Google, their availability is not widely known and their content does not typically come up in search queries. Globe24H.com opened its database to Google, however, leading to the discovery of the decisions for many for the first time. When users contacted the site, they were told that a “free” removal service could take six months or more. If they paid for the removal, the content was quickly deleted without issue.

The Privacy Commissioner of Canada received dozens of complaints about the website and issued a report in June 2015 that it violated Canadian privacy law. The case moved to the federal court, which agreed with the Privacy Commissioner’s privacy findings, but was left with the question of whether it could do anything about it.

The court first ruled that it was entitled to assert jurisdiction over the foreign website, noting that the courts have applied Canadian privacy law to foreign organizations for many years. Given the connections to Canada – the content was Canadian, the site targeted Canadians, and the harm was felt in Canada – it ruled that it met the “real and substantial connection” standard required under the law.

Yet even if Canadian law could be applied to the site, enforcing the ruling posed a more difficult challenge. The court concluded that it could issue an order both requiring the site to comply with the law and declaring that it was currently violating it. The declaratory order  was expressly adopted with Google in mind.

The court noted that the declaration could be used to submit a request to Google seeking the removal of the offending links from its search database. While acknowledging that there was no guarantee that Google would act, it was persuaded by the Privacy Commissioner that “this may be the most practical and effective way of mitigating the harm caused to individuals since the respondent is located in Romania with no known assets.”

In doing so, the court may have created the equivalent of a Canadian right to be forgotten and opened up an important debate on the jurisdictional reach of privacy law as well as on striking the balance between privacy and freedom of expression. While more onerous than a direct request to Google, the court’s approach suggests there is now a road map for the global removal of search results of content that may be factually correct, but which also implicates the privacy rights of individuals.

The post Did a Canadian Court Just Establish a New Right to be Forgotten? appeared first on Michael Geist.

The Shattered Mirror, Part Two: The Underwhelming Recommendation for Open Licensing at the CBC

Michael Geist Law RSS Feed - Thu, 2017/02/02 - 13:45

My review of the The Shattered Mirror: News, Democracy and Trust in the Digital Age, the Public Policy Forum’s report on the future of media continues with a comment on long-overdue recommendation that unfortunately falls short of the mark (my first post on copyright reform recommendation is here). The report tackles the future of the CBC with three recommendations: increasing the emphasis of the CBC’s mandate on news, moving to an ad-free approach online, and adopting a Creative Commons licence for news content to help broaden distribution.

The recommendation of increased emphasis on news is a good one as is the call for an ad-free CBC online.  I wrote in support of the CBC becoming an ad-free digital news competitor last year and while Ken Whyte offered up arguments against it (noting that the Canadian market needs more ad choices, not less), the online advertising competition has been a longstanding source of frustration for online media competitors who resent public support for CBC’s online presence.

The recommendation that I would like to like is the adoption of a Creative Commons licence for CBC news content. I have similarly argued for open licensing of CBC content for many years as part of its role as a public broadcaster. In 2014, I noted:

What the public often needs are the “raw materials” to enhance their content and better platforms to help distribute and market it. What if the CBC saw its public role primarily through that prism?  It could continue to produce news programming, but openly licence its content so that Canadians could freely use it for their own creativity and storytelling.

In 2005, I made a similar recommendation, citing examples from Norway and the UK for how public broadcasters were actively using open licensing to enable new creativity that builds upon their work.  In fact, many public broadcasters have adopted Creative Commons licences (or other open licences) to facilitate new works. Brazil’s Radiobras did so nearly ten years ago and still features a Creative Commons licence on its site.  Other public broadcasters – including PBS in the U.S. and NHK in Japan have established open content libraries that allow users to create their own works.

So what is the problem with the Shattered Mirror recommendation?  Unfortunately, it does not view the shift to Creative Commons as an opportunity to foster more creativity or commentary on the news. Instead, it merely sees it as an opportunity for further distribution. The report states:

There are seven types of Creative Commons licence. We recommend that the CBC use the “Attribution + No Derivatives” class, which would require those using its material to provide attribution and forbid the “remixing” of CBC content while allowing it to be monetized.

In other words, the goal is to allow others to post CBC content, but not actually use it to create anything new. The CBC has experimented with different forms of distribution in the past – it used BitTorrent to distribute the finale of the show Canada’s Next Great Prime Minister in 2008 – but the benefits of open licensing for a public broadcaster are about far more than just some additional distribution. In fact, opening the door to commercial re-distribution will raise its own set of competition concerns for existing players such as the Canadian Press. It is terrific to see the issue garnering some attention, but to truly “stake out a leadership position” (as the report suggests), shifting to non-commercial distribution and use of CBC content is needed.

The post The Shattered Mirror, Part Two: The Underwhelming Recommendation for Open Licensing at the CBC appeared first on Michael Geist.

Fairness Confirmed Again: Federal Court of Appeal Upholds Copyright Board’s Fair Dealing Ruling

Michael Geist Law RSS Feed - Wed, 2017/02/01 - 10:58

The Federal Court of Appeal has issued its ruling in the judicial review of the Copyright Board’s ruling involving copying in Canadian K-12 schools. The decision is the latest in a growing number of decisions that have all adopted the same, flexible approach to fair dealing. Access Copyright has spent years (and millions of dollars) losing challenges on what was readily apparent from the Supreme Court of Canada’s 2012 copyright pentalogy: the value of the Access Copyright licence is very limited in light of authorized copying and fair dealing.

The Copyright Board of Canada decision on the application of fair dealing to educational copying, granted a tariff of $2.46 per student for 2010-2012 and $2.41 for 2013-2015. That rate is not only far lower than Access Copyright had demanded, but is nearly half of what was previously certified for the period from 2005-2009 (which was set at $4.81). The Board minced no words in explaining the reduction:

The main reason for that decrease is the fact that as a result of the decision of the Supreme Court in Alberta v. Access Copyright, 2012 SCC 37, copies made for student instruction, assignments or class work, that were not included in the fair-dealing analysis in the preceding decision, were now included. This resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair-dealing provisions of the Copyright Act. These copies therefore do not generate remuneration.

In fact, a close look at the Copyright Board’s analysis revealed that it found that 97.2% of copying from books, 98.1% of newspapers, and 98.5% from periodicals qualified as fair under a fair dealing analysis. In other words, virtually all copying of books, newspapers, and periodicals in the large sample reviewed by the Board was covered by fair dealing and did not require a licence from Access Copyright. Moreover, the Board found that copying 1 to 2 pages from a book is insubstantial and does not even require a fair dealing analysis. A full discussion of the decision can be found here.

The Federal Court of Appeal ruling considers whether the Board erred with its fair dealing analysis. Interestingly, the court hints that the Board could have considered – and potentially found fair dealing – based on the existence of fair dealing guidelines. The Board did not do so, but the court states:

Although both parties were clearly disappointed by the fact that the Board did not offer any detailed comments on their evidence relating to those Guidelines, Access did not challenge this finding, which was based on its assessment of the weight of the evidence. This was a wise decision, for indeed, the Board’s conclusion was clearly open to it on the evidentiary record.

A finding of fairness with the fair dealing guidelines would have ended the issue. Instead, the court (and the Board) undertook a deeper fair dealing analysis. The court rejected Access Copyright’s challenge to the Board’s fair dealing approach, stating:

It may well be that the Board’s methodology is not perfect, but again, given the particular circumstances of this case, I have not been persuaded that its overall determination that a large portion of the exposures were fair (again this was much less than the numbers proposed by the Consortium using a similar statistical approach) was unreasonable because of the method it chose to weigh the evidence in forming its overall impression of the fair dealing factors.

The court also rejected – again – Access Copyright’s claim that the amount of copying should involve an examination of the aggregate amount of copying. Access Copyright has consistently claimed that the total amount of copying, rather than the copying for an individual user, should be considered. This argument has been repeatedly rejected:

Access argues that the Board ought to have followed the Supreme Court’s teachings in CCH and Alberta and ought to have considered evidence of the aggregate volume of the total pages copied – this is not the teaching of these cases.

In fact, the court suggests that the even the total copying of 90 pages per student was fair:

In explaining why looking at the aggregate volume of copies was not helpful to its assessment of whether the copies were widely distributed, the Board reasonably applied the Supreme Court’s teachings in CCH and Alberta. I find no reviewable error on the part of the Board in this respect. In fact, this finding is reasonable even if one were to consider that the overall number of copies represents approximately 90 pages per student per year. I agree with the Consortium that this figure does not support the view that this factor could only tend to a conclusion that the dealing was not fair.

The unanimous court decision, which rejected several other Access Copyright arguments (it won only one the impact of some coding errors in its repertoire), should not come as a surprise. Access Copyright has lost on its interpretation of fair dealing at virtually every legal level including the Copyright Board, the Federal Court of Appeal, and the Supreme Court of Canada.

The copyright collective will no doubt seek to reform fair dealing in the 2017 review process, but even an ill-advised removal of “education” as a fair dealing purpose would not undo decisions that are based on Supreme Court rulings and the desire to strike a fair balance in copyright. Moreover, there is considerable evidence that the challenges faced by the educational publishing are not about copyright. Pearson PLC, the world’s largest education company, recently warned of an unprecedented decline in the North American education publishing market. This primarily reflects U.S. developments and highlights how Canada is not an outlier in educational publishing.

Meanwhile, the growth of free online textbooks continues (nearly all of UBC’s math textbooks are now freely available online) and the rising costs of journal subscriptions are leading to cancellations and greater emphasis on open access. I have written more extensively on Canadian university spending on licences here and on the decline of educational publishing in Canada here.

Where does that leave the issue? The scope of fair dealing is a settled issue with Canadian courts now consistently applying it as a user’s right in the manner articulated by the Supreme Court of Canada. Within the educational sector, the reality is that the overwhelming majority of copies within K-12 schools are compensated and virtually all of the remaining copies are covered by fair dealing. Simply put, there is little value in the present Access Copyright licence which now pays a little more than a couple of dollars per student. Within post-secondary institutions, database licences, open access materials, transactional licences, and fair dealing have similarly eliminated the need for the current Access Copyright licence. In light of these developments, Access Copyright recently indicated that perhaps it too recognizes the need to adapt to the changing marketplace and legal realities. Last week, it posted a request for interviews with professors and students, stating:

We could use your help. Our innovation team is aiming to re-invent Access Copyright’s offerings for universities and colleges and needs help finding students and professors willing to sit for 1-hour research interviews on the topic of content use and technology. 

With the law on fair dealing well settled in Canada, the need for Access Copyright to re-invent itself is long overdue.

The post Fairness Confirmed Again: Federal Court of Appeal Upholds Copyright Board’s Fair Dealing Ruling appeared first on Michael Geist.

Never Again: A Comment on U.S. Immigration and The Need for a Canadian Response

Michael Geist Law RSS Feed - Sun, 2017/01/29 - 22:06

This blog is normally limited to digital law and policy issues, such as privacy, copyright and the Internet. Not today. These are not normal times. The events in the United States over the past few days involving the creation of an executive order with a thinly-veiled Muslim ban demand a response. While some politicians have tried to avoid comment by arguing that this is an internal U.S. matter, the far-reaching implications for the world and for the millions of people whose lives are at stake does not allow for such an easy out. There may be a cost to Canada for speaking out – some have suggested that Prime Minister Justin Trudeau should avoid angering U.S. President Donald Trump – but if so, it is a price worth paying.

With the exception of the indigenous peoples in Canada, we all trace our family history to immigration. In my case, I am the grandson of holocaust survivors and a family that fled the Nazis by running east to Siberia and beyond. Both families were largely wiped out. My grandfather’s wife and two children were murdered along with virtually all of his siblings, parents, and extended family members. He and my grandmother survived the concentration camps, met after the war, gave birth to my mother, and were given the opportunity to start a new life in Canada. The same is true for my father’s family, who also came to Canada in the early 1950s. My family story is not unique. Millions of Canadians can also tell stories of fleeing war, religious persecution, or searching for new economic opportunity. While we often think that it is health care or hockey that bind us, it is really our common story of a largely immigrant society searching for a better life for future generations.

Canada’s record of admitting Jews during the war, chronicled in the book None is Too Many, speaks to the incredible harm caused by immigration policies focused on race or religion (the same is true for those turned away by the U.S). To see some of this replicated in the U.S. in 2017 is exceptionally painful. I am proud of Prime Minister Trudeau, Jason Kenney, and the many premiers and mayors that have tweeted out Canada’s openness to refugees and immigration. The initial response from Immigration Minister Ahmed Hussen indicating that Canada will permit temporary residence for anyone traveling to the U.S. that is left stranded is a good start, but much more is needed.

From the federal government, Canada should consider expanding our refugee target for 2017.  There are obviously cost and security constraints, but if the U.S. closes its doors, others will need to open theirs even further.

Moreover, the government should work closely with both the technology and education sectors to expand opportunities for foreign workers and students. Hundreds of people in the Canadian technology community have signed a public letter emphasizing that diversity is our strength and calling on the government to institute an immediate and targeted visa program for those displaced by the U.S. Executive Order. With the U.S. tech sector increasingly vocal in its opposition to the U.S. developments, Canada should stand ready to provide an alternative for global technology workers.

The news is also filled with reports of professors, researchers, and students that are blocked from entering or re-entering the United States. Canadian universities (including my own) have indicated a desire to explore accepting displaced professors and students. We should move quickly to offer visiting professorships as needed and partner with U.S. institutions to allow graduate students to continue their studies in Canada. There is a need to accommodate students that have yet to begin their studies and now find themselves blocked from doing so. Further, universities must consider whether they can continue participating in conferences and joint programs in the U.S. that may bar the participation of their own students.

But even more difficult will be the response to the U.S. government. In the weeks leading up to the inauguration of Donald Trump, there was much discussion about the need to create a team that would mesh well with the new president given the uncertainty of new trade talks and policies. No doubt a close relationship based on friendship and mutual self-interest is preferred. However, with Trump signing an executive order eliminating Privacy Act protections for Canadians, the Canadian government must now stand ready to re-consider information sharing programs with the U.S. With Trump signalling his support for torture, the Canadian government must be ready to stop programs that could implicate Canadians in the same activity. With Trump instituting immigration policies that run counter to fundamental values of equality, the Canadian government must be prepared to say so. And when words are not enough, we must be ready to act.

The post Never Again: A Comment on U.S. Immigration and The Need for a Canadian Response appeared first on Michael Geist.

The Shattered Mirror, Part One: Fair Dealing Reform Isn’t the Answer for News in the Digital Age

Michael Geist Law RSS Feed - Fri, 2017/01/27 - 11:03

The Public Policy Forum released its much anticipated report on the future of Canadian media yesterday. The Shattered Mirror: News, Democracy and Trust in the Digital Age garnered considerable attention and may influence policy discussions over what – if anything – to do about the struggling media industry. I tweeted some initial responses to the report and plan several posts to examine some of the recommendations more closely.

This post starts with one of the worst (if unsurprising) recommendations: copyright reform. For the better part of two decades, business sectors facing digital challenges invariably think that copyright law offers a solution. It rarely does and definitely does not in the case. In fact, the proposed copyright reform to fair dealing would cause considerable harm to freedom of expression and the practice of news reporting with little likelihood of economic benefit.

The copyright recommendation is one of the least developed in the report as it pops up with no advance discussion or analysis.  Rather, the report simply recommends:

The fair-dealing provisions of the Copyright Act, amended in 2012, are scheduled for review in 2017. We recommend that this review tighten usage of copyrighted news material in favour of creators, without unduly stifling the social power of sharing on the Internet. News producers have a right to benefit from their work for a reasonable period while pursuing the business strategy of their choice.

In the notes that follow, the report claims that aggregators, bloggers and others may use materials without permission by relying on fair dealing. The report concludes that “even if the material links back to its source, the original producer should be able to decide whether it wants to share–and whether it wants to negotiate compensation in some form.”

Simply put, the recommendation doesn’t make sense. There are at least two kinds of activities that seem to raise anger among some media companies. First, there are sites that largely re-write original reporting and run the alternative version of a story on their site with their own advertising. This may be the reference in the report to bloggers using materials without permission. For this form of use, fair dealing is not implicated at all. Copyright law is designed to protect specific expression, but rightly recognizes that ideas and facts should not be controlled by a single entity.  To change the law would grant a single rights holder exclusivity over reporting, effectively limiting the ability of the press to do its job.

Second, there are sites that aggregate content and link back to the original story.  This has generated frustration among some media organizations, who fear that users rely on intermediaries and social networks to decide what to read. It is true that aggregators typically rely upon fair dealing (or fair use) to generate snippets or short summaries of the articles. Efforts in some European countries to legislate payments for snippets or create a “link tax” has been disastrous for publishers, where aggregators simply opt out the system, reducing traffic to the sites (and with it advertising revenues).

The report doesn’t recommend a link tax, but it does suggest somehow limiting fair dealing to grant greater control over the materials. Yet left unsaid is that fair dealing is exceptionally important for journalists and efforts to restrict it would harm the practice of news reporting. Indeed, news reporting is included as one of the purposes of fair dealing to ensure that copyright is not used to stop important journalism. Claims that fair dealing is a detriment to journalism fails to understand that newspapers are themselves active users of fair dealing. If the media were required to seek permission each time it quoted from another work, expression would be curtailed and costs to produce original reporting would increase.

Not only is flexible fair dealing important to new reporting, but it is far from the free-for-all feared by publishers. Commercial republication of full articles is unlikely to qualify as fair dealing. The courts have rightly permitted copying and posting portions of articles for criticism or review purposes, but competitors cannot rely on fair dealing to copy and post full articles. The fair dealing fears are largely the stuff of fake news that is raised throughout the report and the ill-advised recommendation of reform would do more harm than good.

The post The Shattered Mirror, Part One: Fair Dealing Reform Isn’t the Answer for News in the Digital Age appeared first on Michael Geist.

Trump’s Executive Order Eliminates Privacy Act Protections for Foreigners

Michael Geist Law RSS Feed - Thu, 2017/01/26 - 11:32

President Donald Trump’s Executive Order on domestic safety, released yesterday, has enormous implications for the privacy of everyone living outside the United States. For Canadians, the order should raise significant concerns about government data shared with U.S. authorities as well as the collection of Canadian personal information by U.S. agencies. Given the close integration between U.S. and Canadian agencies – as well as the fact that Canadian Internet traffic frequently traverses into the U.S. – there are serious implications for Canadian privacy. Moreover, the order will raise major concerns in the European Union, creating the possibility of restrictions on data transfers as it seemingly kills the Privacy Shield compromise.

Section 14 of the Executive Order states:

Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information. 

The protection of Canadian information which ends up in U.S. hands has long been a source of concern. Professor Lisa Austin has written about “constitutional black holes” in which Canadian data is not protected by the Canadian Charter of Rights and Freedoms and the protection afforded to the data in the United States is at a lower standard than for its citizens and permanent residents.

The Privacy Act referenced in the order did not extend privacy rights to non-U.S. citizens and permanent residents when it first enacted in 1974. However, in 2007, the Department of Homeland Security issued a policy that extended some provisions to non-U.S. persons. In the aftermath of the Snowden revelations, there has been much written on the need to extend privacy protections to foreigners.

The Trump Executive Order makes it clear that U.S. agencies should ensure that their policies do not extend privacy rights to non-U.S. citizens or permanent residents under the Privacy Act. The intent and effect of the order means that the personal information of Canadians will not be protected under that statute. The decision requires an immediate review by the Privacy Commissioner of Canada on the effect of Canadian personal information and data sharing agreements and a potential re-assessment of what personal information is made available to U.S. agencies.

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The Trouble for Canadian Digital Policy in an ‘America First’ World

Michael Geist Law RSS Feed - Wed, 2017/01/25 - 09:50

Canadian digital policy over the past decade has been marked by a “made-in-Canada” approach that ensures consistency with international law but reflects national values and norms. On a wide range issues – copyright rules, net neutrality, anti-spam legislation, and privacy protection among them – the federal government has carved out policies that are similar to those found elsewhere but with a more obvious emphasis on striking a balance that includes full consideration of the public interest.

My Globe and Mail opinion piece notes that as with many issues, the burning question for the Liberal government is whether the Canadian digital policy approach can survive the Donald Trump administration. Trade pressures are likely to present Canada with an enormous challenge in maintaining its traditional policy balancing act since the United States is already using tough talk to signal demands for change. This suggests that many Canadian policies will be up for negotiation, although there are some potential opportunities that reside outside of the trade talk spotlight.

A renegotiated NAFTA might reshape the Canadian digital policy landscape. Copyright discussions could lead to demands for Internet takedown rules that were rejected during the 2012 Canadian copyright reform process, pressure for further patent laws reforms are likely to lead to higher pharmaceutical costs, and the possibility of weakened privacy safeguards would make it tougher for Canada to restrict data transfers to protect sensitive personal information.

If Canada’s bilateral negotiations with the U.S. seem certain to be defensive, there are digital opportunities that lie beyond the United States. New International Trade Minister François-Philippe Champagne has hinted at the possibility of reviving the TPP with the remaining partners, but the final text was largely a product of U.S. demands and it makes little sense to make major concessions for limited market gains.

The TPP should head back to the drawing board, but more interesting possibilities lie outside the trade portfolio. For example, late last year the Internet Archive, a California-based online library that has stored billions of Web pages, announced that it is planning to establish a backup of the archive in Canada (I am a member of the Internet Archive Canada board). Internet Archive founder Brewster Kahle pointed to comments from Trump during the campaign in which he discussed “closing up the Internet” and characterized free speech concerns as talk from “foolish people.”

Trump’s position on Internet freedoms remains an unknown, but the risk of a shutdown was enough to spur the Internet Archive to look for a safe haven for its data in Canada. Should Trump continue to speculate about more restrictive Internet rules, Canada could emerge as an attractive destination for data storage.

Net neutrality represents another Canadian digital policy opportunity. Trump has named a longstanding net neutrality opponent as chair of the Federal Communications Commission, indicating that the U.S. approach to an open Internet will soon be reversed. Canadian net neutrality rules remain in place, however, opening the door to enticing digital businesses that rely on those regulations to set up shop in Canada.

The arrival of the Trump administration brings considerable uncertainty and risk to Canadian trade policy that will trickle down to domestic digital policy. The goal should be to preserve made-in-Canada policies in trade talks, while leaving open the possibility of benefiting from a strong commitment to an open, neutral Internet.  The full column is posted here.

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As Trump Pulls the U.S. Out of the TPP, Canada Should Follow Suit

Michael Geist Law RSS Feed - Mon, 2017/01/23 - 14:01

In one of his first acts in office, U.S. President Donald Trump has signed an executive order withdrawing the United States from the Trans Pacific Partnership. With the U.S. out of the TPP, the agreement cannot take effect as it requires ratification from both the U.S. and Japan to do so. Last week, new International Trade Minister Francois-Philippe Champagne said that Canada would consider all its options with the remaining TPP countries, but the reality is that Canada should follow the U.S. lead and abandon the agreement.

The need for U.S. and Japanese ratification for the TPP to take effect is no accident. For most of the countries in the TPP, access to those two markets were the reason they were willing to sign in the first place. For example, Canada came late to the TPP negotiations in part because it saw limited value in better access to markets such as Australia, Vietnam, Malaysia, and New Zealand. Trade with those countries is relatively minor and would not justify making significant policy concessions. The decision to join the negotiations was sparked by concern that preferential access to the U.S. would be undermined if Canada was left out of the TPP and by a desire to strike a trade agreement with Japan. Once Japan shifted its focus from bi-lateral discussions to the TPP, Canada pushed for inclusion in the deal. With the U.S. out, one of the foundational arguments for joining the TPP is gone.

Moreover, the TPP text reflects the power of the U.S. in the negotiations. For example, the extension of the term of copyright stems from  a U.S. demand, since many TPP countries have terms that mirror Canada’s life of the author plus 50 years. For Canada to move forward with an agreement that does not offer the benefits of better access to the U.S. market, cannot be enforced (since it cannot take effect), and which involves provisions of little interest to many other TPP members does not make sense.

The future of Canadian trade policy is clearly now wrapped up the NAFTA renegotiation, the attempts to push CETA over the finish line, and efforts to kickstart bi-lateral trade negotiations with the major Asian countries, including China, Japan, and India.  Many TPP provisions may resurface in the NAFTA talks (despite today’s withdrawal, the TPP will likely serve as a blueprint for U.S. negotiators on many issues), but conceding on those issues without clear U.S. gains would not advance Canadian interests and would weaken the NAFTA negotiating position with the U.S.

The Canadian government has been consulting on the TPP for about a year and has yet to adopt a firm position on the agreement. As I chronicled extensively last year, there are significant problems with the TPP.  The U.S. withdrawal offers the chance to hit the reset button by pursuing a renewed Canadian trade agenda featuring greater transparency, public participation, and preservation of the national interest.

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Not Exactly a Netflix Tax: Where Canada Stands on a Digital Sales Tax

Michael Geist Law RSS Feed - Wed, 2017/01/18 - 11:12

The CBC’s report that the Canadian government is considering extending goods and services sales taxes to foreign-based digital services has sparked yet another round of articles and coverage of a possible “Netflix tax.” Some Conservative MPs were quick to pounce with claims the Liberals are pursuing a Netflix tax, yet the reality is a bit more complicated. At issue is not the culture contributions payment that is often called a Netflix tax. Despite calls for that form of Netflix tax, Canadian Heritage Minister Melanie Joly has been consistent in saying that the government will not extend mandatory Cancon contributions to Netflix.

In fact, this proposal is not targeted specifically at Netflix at all. Rather, it envisions the possibility of extending GST/HST to foreign-based digital services that are currently exempt from collecting and remitting sales taxes. While the law technically requires Canadian consumers to self-declare the sales tax they owe on those purchases, few are aware of the requirement and presumably even fewer actually do it.

The prospect of extending GST/HST emerged as an issue in 2014 when the Conservative government raised the idea in its budget and launched a public consultation on the issue.  Moreover, the Canadian government is not alone in exploring the possibility of extending sales taxes to the digital world. With many governments fearing increasing lost tax revenue due to online sales and domestic companies expressing frustration with being placed at a competitive disadvantage (Netflix does not collect and remit sales tax, but CraveTV does), the extension of sales taxes to foreign digital providers appears to be a question of when, not if. The “when” depends largely on developing international standards on the issue. The OECD has been actively working on it, recognizing that common standards and a reasonable exemption amount is needed (asking small foreign businesses to collect and remit for a few hundred dollars makes little sense).

The digital sales tax issue was discussed in some detail last month at a Standing Committee on Canadian Heritage hearing that did not attract much attention. Sean Keenan, the director of the sales tax division with the Department of Finance’s Tax Policy Branch told the committee:

E-commerce sales by foreign-based companies can present a challenge for proper sales tax collection. Foreign-based Internet vendors’ businesses with no physical presence in Canada are generally not required to collect GST/HST on their sales. Instead, in the case of physical goods that are purchased online and shipped to Canada by post or courier, the applicable customs duties and GST/HST would generally be collected by the Canada Border Services Agency at the time the goods are imported.

In cases other than the importation of physical goods, the GST/HST legislation imposes a general requirement to self-assess the tax. For businesses that would be entitled to recover any tax payable by claiming input tax credits, there is generally no requirement to self-assess tax on such imports.

The challenges related to the proper collection of sales tax on digital supplies by foreign-based vendors are not unique to Canada. It’s a difficult issue for all jurisdictions with a sales tax. In this regard, the issue was examined as part of the recent initiative of the G20 and the Organisation for Economic Co-operation and Development to address what is known as “base erosion and profit shifting”, or BEPS.

In the context of that international initiative, budget 2014 invited input from stakeholders on what actions the government should take to ensure the effective collection of sales tax on e-commerce sales by foreign-based vendors. Specific feedback was solicited on whether foreign vendors should be required to register with the Canada Revenue Agency and charge the GST/HST on digital sales to residents of Canada. The feedback from these consultations helped shape Canada’s input and participation in the G20 OECD BEPS project.

The final reports of the BEPS project were issued by the OECD on October 5, 2015, including “Addressing the Tax Challenges of the Digital Economy, Action 1”. The Action 1 report examined issues related to the effective collection of sales tax on cross-border digital supplies and services and recommended that where countries decide to institute a regime for taxing foreign suppliers of digital content, the regime should follow the principles of the OECD’s international value-added tax/GST guidelines for these supplies. These guidelines indicate that, at the present time, the most effective and efficient approach to ensure the appropriate collection of VAT/GST on cross-border business-to-consumer supplies is to require the non-resident supplier to register and account for VAT/GST in the jurisdiction of the consumer—essentially, the usual residence of the customer.

Following up on the BEPS Action 1 report, the OECD’s Working Party No. 9 on Consumption Taxes is developing a report on mechanisms for the collection of VAT/GST on digital supplies and services by foreign vendors. The report will examine and identify the best practices of jurisdictions that have required non-resident digital suppliers to register and collect tax on sales in their jurisdictions, in order to assist those that are considering doing so. Canadian officials are participating in the development of this OECD report.

The discussion that followed is worth reading as the witnesses explained the complexity behind developing policy in the area and patiently tried to address MP questions that had nothing to do with digital sales taxes. The takeaway was that extending GST/HST to foreign based digital service providers seems inevitable, but is unlikely to happen in Canada until global standards are adopted at the OECD.

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Why Canada’s Simultaneous Substitution Policy Should Face Cancellation

Michael Geist Law RSS Feed - Tue, 2017/01/10 - 11:56

With the Super Bowl only a few weeks away, an unusual coalition comprised of the National Football League, Bell Media, Canadian advertisers, and an actors’ union have launched a full lobbying blitz aimed at overturning a 2015 ruling that will allow Canadians to view both the U.S. and Canadian feeds of the game. The change addresses longstanding frustration with Canadians’ inability to view U.S. commercials during the Super Bowl, since simultaneous substitution policies dating back to the 1970s allow Canadian broadcasters to block U.S. signals and substitute their own feed and commercials.

My Globe and Mail opinion piece notes that the fight to block the U.S. feed has led to some unlikely arguments. CRTC critics who typically call on the regulator to get out of the way are now calling on it to impose the simultaneous substitution rules. Meanwhile, in an odd role reversal, the NFL is emphasizing the Canadian culture benefits of blocking its U.S. broadcast and ACTRA, which issued a press release calling the Super Bowl ruling balanced and protective of the public interest when it was first unveiled, is going to bat for Canadian coverage of a U.S. sporting event.

In fact, given the vocal criticism, Canadians could be forgiven for thinking that the CRTC sprung the decision on broadcasters without a proper hearing (it did not as the future of simultaneous substitution was squarely on the record), that it will spell the end of the Canadian broadcasting system (the estimated cost is $18 million in a $16 billion industry), that the ruling bans Canadian commercials (it does not as Bell is free to air its own feed with local commercials), or that dual feeds are unusual for a major sporting event (they are not as Canadians already have access to multiple feeds for the World Series, Stanley Cup, MLS Cup, and Olympics).

Critics contend that relatively few people have filed official complaints about the issue, but if they are correct that few Canadians truly care, most will presumably watch the Canadian feed with limited impact on domestic television ratings. However, if Canadians opt for the U.S. feed, that will signal that many more were unhappy and preferred greater choice.

Beyond the Super Bowl broadcast, the far bigger issue is the future of a policy born decades before specialty channels, recording devices, and Internet streaming that have combined to render simultaneous substitution increasingly irrelevant. Recording television shows, watching them on demand, or subscribing to sports streaming packages largely eliminates the simultaneous substitution issue since Canadians control when and what they watch. Moreover, while the Canadian industry has grown addicted to the revenues from licensing the relatively cheap U.S. programming that triggers the ability to block U.S. feeds through simultaneous substitution regulations, the policy arguably undermines the long-term success of the Canadian system and Canadian programming.

The full column – which also discusses why ending simultaneous substitution is consistent with the government’s emphasis on promoting Canadian content to a global audience – can be found here.

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Historic or Immaterial?: Making Sense of the CRTC Ruling on Broadband Access as a Basic Service

Michael Geist Law RSS Feed - Thu, 2016/12/22 - 10:04

The CRTC released its much anticipated Talk Broadband ruling yesterday, declaring Internet access a universal service objective, shifting the local voice service subsidy to the Internet, and setting much-improved speed targets of 50 Mbps download and 10 Mbps upload. The decision sparked a wide range of responses: Open Media labelled the decision historic, but business analysts largely shrugged, calling it “immaterial” and “neutral” for the telecom carriers. How to reconcile the competing perspectives?

From a big picture perspective, those that have advocated for a forward-looking Canadian digital policy that places universal Internet connectivity as the foundation have good reason to be pleased. The CRTC’s recognition of Internet access as a basic service is an important development that is long overdue. While critics downplayed the importance of the formal recognition for years, updating Canadian policy to include access to broadband Internet services provides an important signal to the market and the basis for further regulatory and policy steps if needed.

Moreover, after years of middling broadband targets, the CRTC has stepped forward with a broadband target worthy of a country that wants to see itself as an innovation leader. The target of 50 Mbps download and 10 Mbps upload changes the Canadian conversation on broadband. Indeed, when Bell appeared before the CRTC as part of this hearing, it defended the previous 5 Mbps download/1 Mbps upload target. Bell executives warned that the company can’t even offer that speed in some markets, telling the Commission that “If a 5/1 basic service was mandated, we might have to withdraw our internet service from those markets, removing an option for consumers.” With this decision, the days of discussing 5/1 as a reasonable target are thankfully over.

The decision also marks a fundamental shift from voice to the Internet for Canadian communications regulation. Shifting the local voice service subsidy to broadband is absolutely the right thing to do as it takes the essence of a policy designed to ensure that all Canadians have basic connectivity and updates it to reflects how Canadians communicate today. The $100 million from the local voice service subsidy will help address the broadband access issue, though the Commission itself acknowledges that more money will be needed.

While these are all exciting, important developments, digging deeper into the details suggests that this is a small piece of a much bigger puzzle.

It may be important for the regulator to acknowledge the centrality of Internet access, but most Canadians are already there. Similarly, Bell may be content to argue for 5/1 service, but the CRTC’s own data indicates that 82% of Canadians already have access to 50/10. The CRTC wants 90% of Canadians to have access to those speeds by 2021 with the remaining 10 percent of the country getting there within 10-15 years. Expanding access to an additional 8 percent of the population over five years helps, but it isn’t transformative. In fact, given the ongoing investments from various providers, it is worth asking whether Canada might reach that target with or without the CRTC’s efforts. The real challenge remains the last 10% in rural and remote areas and for that the CRTC has no easy solution given that it sets a target of 2031 for achieving universal access.

The CRTC’s five year broadband target is within reach, but many other broadband goals are not. Affordability goes hand-in-hand with access, yet the CRTC largely punts on the issue, noting that “a comprehensive solution to affordability issues will require a multi-faceted approach, including the participation of other stakeholders.” That places much of the responsibility on the government, but it was open to the CRTC to push the providers harder on affordability. It points to innovative solutions from some companies (presumably Rogers and Telus), but does not go further by setting goals or targets for the obvious laggards in the industry.

The CRTC’s approach on data caps also avoids strict regulation, settling instead for more information and tools for consumers to monitor and manage their data usage. Some ISPs already provide those tools and others will be required to do so within a matter of months. These requirements will be helpful for some, but they eschew tougher regulatory options.

The CRTC’s proposed funding model – $100 million per year from the local voice subsidy and another $250 million over five years from telecom revenues that include Internet services – creates a useful source of funding, particularly when combined with the $500 million promised by the federal government. Moreover, the additional funding is relatively modest as a percentage of overall telecom revenues, especially when contrasted with the five percent Internet tax sought by some groups in the digital Cancon consultation. Yet even the CRTC admits that more money will be needed, telling ISED Minister Navdeep Bains that “meeting the nation’s broadband challenges will require billions of dollars over many years to come.”

Given that the CRTC largely avoids imposing regulatory requirements in this decision, more than just money will be needed to meet the broadband challenge. The Commission could have gone much further in mandating broadband obligations, addressing affordability, and curtailing data caps. It calls this decision “Modern Telecommunications Services – The Path Forward for Canada’s Digital Economy” and while it sets the target for modern telecommunications services, the path for getting there will still require much work.

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WIPO’s move to open access laudable among international organizations

Sara Bannerman - Tue, 2016/12/20 - 10:37
My latest post on WIPOMonitor.org notes that the World Intellectual Property Organization (WIPO) is at the forefront of international organizations in adopting an Open Access policy for its publications.  I suggest that WIPO, and other international organizations, should go further to ensure that all its documents and historical records are also openly accessible under the Creative Commons licence designed for international organizations.  Read the post here.

Ontario Government Tells Ottawa It Is Open to New Internet Tax to Fund Cancon

Michael Geist Law RSS Feed - Thu, 2016/12/15 - 10:58

The Canadian Heritage consultation on Canadian content in a digital world recently concluded and the department has now posted the responses. There are few surprises with many creator groups supporting Netflix and Internet taxes, while Internet providers and consumer groups oppose them (my submission can be found here). The Ontario government was the only provincial government to file a response. The Ontario Ministry of Tourism, Culture and Sport’s submission acknowledges that there is “no evidence of an overall Cancon policy failure that would justify revolutionary policy reform”, but leaves little doubt that the government is open to new Internet taxes to fund Canadian content.

The Ontario government previously worked toward a Netflix tax as part of the CRTC’s Let’s Talk TV consultation. Given the controversy that generated, it is a bit more cautious this time but its support is not difficult to discern. Its starting point is that all industry players in the Canadian media market be required to contribute to Cancon. The submission states:

The ministry also recommends that the federal government ensure that all industry players participating in, and benefitting from, the Canadian media market contribute, financially or otherwise, to Cancon. These contributions by industry players could be (sample only):

  • Voluntary and/or mandated (by the federal government or CRTC)
  • For Cancon development, creation, production, distribution, marketing and promotion, discovery and/or export; and
  • Financial or non-financial

The Ontario government notes that it is “not advocating for any specific industry player contribution mechanism or contribution level.” In other words, it is not calling for a Netflix-specific tax. That said, it forecasts declining contributions from broadcasters and broadcast distributors and it urges the federal government to “conduct a risk-benefit analysis of all available options, to determine the best way to fill the Cancon funding gap while living within the FPT government fiscal plans.”

The Ontario government then acknowledges two realities. First, that the federal government has said there will be no Netflix tax. Second, that any new Cancon funding must come from a new Cancon revenue source. What might that be? The submission states:

Accordingly, MCTS acknowledges that Minister Joly has publicly confirmed that the FCPR [federal Cancon policy review] scope includes options for new federal government-mandated Cancon contributions from industry players, specifically an ISP levy and/or sales tax payable by foreign OTTs.

The submission does not identify other funding options as part of this analysis. In other words, the Wynne government goes out of its way to emphasize that it believes that there is a need for more funding for Cancon and that it sees two new tax options: a sales tax on digital services and/or an Internet tax.


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Return to Sender: Government Committee Wants Canada Post To Help Solve Rural Broadband Woes

Michael Geist Law RSS Feed - Wed, 2016/12/14 - 10:48

Does the future of Canada Post lie in offering Canadian-based cloud services and rural broadband? The Standing Committee on Government Operations and Estimates thinks it might. The committee released a report yesterday on the future of Canada Post that ventures into the digital realm with several recommendations that will make little sense to those that closely follow digital policy in Canada. The committee report includes discussion that Canada Post could offer a Canadian-based cloud service, a Canadian social network, and rural broadband services. The recommendations include:

The federal government examine, with the Minister of Innovation, Science and Economic Development Canada and the Canadian Radio-television and Telecommunications Commission, the possible delivery of broadband Internet and improved cellular service to rural Canada using Canada Post real estate to house servers and offer retail services to customers.

While there is unquestionably a need to address the rural broadband access issue in Canada, there is little reason to believe that Canada Post, which brings no particular expertise and no money to invest in the actual networks, is the right organization to solve the problem.

Post offices in other countries do offer Internet services, but this report reads as if the committee did not consult anyone with expertise on the issue. The thinking would appear to be that with post offices everywhere, why not have the post office set up a server and take orders. Yet a physical space to offer service is not the issue. Indeed, by that standard, Tim Horton’s or an Esso station could do the same. The challenge with the rural broadband is the cost associated with building and maintaining networks. As the Conservative dissent notes:

the Committee did not hear substantive testimony to indicate that there is a widely-held desire for, or financially sustainable means of providing such services. The technical possibility of this proposal is also questionable. This is another example of a recommendation that is untested, uncosted, and lacks clear supporting information to make the case for such services.

After more than 15 years of trying, it is readily apparent that the economics of rural broadband require some form of public investment along with innovative approaches such as public-private partnerships, community-based networks, and wireless solutions. Looking to the post office at this time seems unlikely to advance the issue.

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How the Supreme Court Can Avoid Turning the Internet Into an Online Wild West

Michael Geist Law RSS Feed - Tue, 2016/12/13 - 11:44

Last week, the Supreme Court of Canada heard arguments in a case that strikes at the heart of law in the online world. Google v. Equustek Solutions stems from claims by Equustek, a Canadian company, that another company used its trade secrets to create a competing product and engaged in misleading tactics to trick users into purchasing it.

After struggling to get the offending company’s website taken offline, Equustek obtained a British Columbia court order requiring Google to remove the site from its search index. Google voluntarily removed search results for the site from Google.ca search results, but was unwilling to block the sites from its worldwide index. The B.C. court affirmed that the order applied on an international basis, however, issuing what amounted to global takedown order.

The Supreme Court hearing, which attracted intervenors such as the Wikimedia Foundation, Electronic Frontier Foundation, as well as the music and movie industry associations, focused on issues such as the effectiveness of a Google-targeted order, where the responsibility for identifying conflicting laws should lie, and the fairness of bringing an innocent third-party such as Google into the legal fray.

My Globe and Mail opinion piece notes that largely missing from the discussion was an attempt to grapple with perhaps the biggest question raised by the case: In a seemingly borderless Internet, how do courts foster respect for legal rules and avoid vesting enormous power in the hands of Internet intermediaries who may ultimately find themselves picking and choosing among competing laws.

Google seems unlikely to ignore a Canadian court order, but what happens if a Chinese court orders it to remove Taiwanese sites from the index?  Or if an Iranian court orders it to remove gay and lesbian sites from the index?  Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow.

Courts seeking to strike the right balance face a difficult challenge because if they are unable to assert jurisdiction, the Internet risks becoming a proverbial “Wild West” with no applicable law. If every court asserts jurisdiction, however, the online world becomes over-regulated with a myriad of potentially conflicting laws.

The temptation for courts will be to assert jurisdiction over online activities and leave it to the parties to sort out potential conflicts. But when it comes to Internet jurisdiction, exercising restraint and limiting the scope of court orders is likely to increase global respect for the law and the effectiveness of judicial decisions. The full column is posted here.

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Unnecessary at Best, Harmful at Worst: Melanie Joly Seeks Global Consensus on Culture Contributions from Digital Services

Michael Geist Law RSS Feed - Mon, 2016/12/12 - 10:59

Canadian Heritage Minister Melanie Joly heads to UNESCO this week where, according to the Globe and Mail, she will be focused on making the case for a common approach on mandatory cultural contributions from companies such as Netflix. Joly states:

I’ve always said we are ready to have conversations with those companies and those platforms. We are already engaged with them, and will continue to do so. But on a general level, it is obvious that the more we are able to have a concerted approach among countries on this issue, the better we will be able to make sure it is a priority.

Joly’s goal would appear to be to develop a universal position at UNESCO that countries could then leverage to force companies such as Netflix to comply with local content regulations. I’m quoted in the article to the effect that efforts to harmonize sales taxes on digital services makes sense at a global level, but targeting companies like Netflix with new regulations or tinkering with the Internet in violation of fundamental net neutrality principles does not.

I think Joly’s seeming interest in creating a global cultural regulatory framework for digital services is unnecessary at best and harmful at worst. First, the emergence of global digital giants has largely been fuelled by the absence of content regulation. Platforms such as Netflix and Google have grown by providing consumers more choice and flexibility than the regulated system. By responding to market demands, the companies have developed enormously popular, well-priced services that offer great potential for creators to find new markets and call into question the relevance of many legacy regulations.

Second, even if there is a role for domestic regulation, UNESCO, a United Nations agency, is surely not the right venue to address these issues (the U.S. is not even a signatory to the 2005 convention referenced by Joly). There may be value in discussing cross-border issues such as harmonized sales taxes or ensuring that countries do not block access to online video services at a global level (which already takes places in venues such as the OECD), but a U.N. policy on domestic cultural regulation is a poor fit for the issues raised by online video services.

Third, the Netflix response to the government’s consultation on Canadian content provides a compelling argument against the need for domestic regulation in order to attract investment. Despite the absence of regulatory requirements, Netflix has emerged as one of the leading backers of Canadian content, reporting that it commissioned hundreds of millions of dollars in original programming in Canada in 2016 (a Netflix tax comparable to that paid by cable and satellite companies would generate a fraction of that amount). In fact, Netflix says that Canada now ranks as one of its top three locations worldwide for original productions. Given that the company spends billions each year on content, the activity in Canada is likely larger than all but a handful of regulated sources. The Netflix submission provides a full sense of the scope of its support for Canadian content.  It includes:

Original Cancon co-productions with Canadian producers and broadcasters in 2016 (Netflix obtains rights outside Canada )

  • Anne (with CBC)
  • Alias Grace (with CBC)
  • Between (with Rogers’ City TV)
  • Travelers (with Corus Entertainment’s Showcase)
  • Frontier (with Bell Media’s Discovery Channel)
  • Degrassi: Next Class (with DHX Media’s Family Channel)
  • Orphan Black  (with Bell Media)
  • Some Assembly Required  (with Corus Entertainment YTV)

Original CanCon that may not qualify as such due to Netflix financing and global distribution

  • Trailer Park Boys
  • ARQ

Netflix originals produced in Canada for global distribution making use of Canadian creative and other resources

  • Special Correspondents
  • Van Helsing
  • I Am the Pretty Thing That Lives In the House
  • Lost in Space
  • A Series of Unfortunate Events
  • Altered Carbon
  • Okja
  • Death Note
  • Dirk Gently
  • Hemlock Grove
  • Haters Back Off

Netflix original kids titles produced in Canada for global distribution making use of Canadian creative and other resources

  • Little Prince
  • Beat Bugs
  • Lost and Found Music Studios
  • Inspector Gadget
  • Hilda, Luna Petunia
  • True and the Rainbow Kingdom
  • Project MC2
  • Justin Time Go!
  • Magic School Bus 360

Rather than looking for new forms of global Internet regulation, perhaps Joly should be asking why there are still Canadian groups calling for regulation of an entrant that would appear to be one of the leading investors in Canadian content and working on ways to ensure that Canadian content can be exported worldwide.

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Sir John Thompson

Fair Duty by Meera Nair - Sun, 2016/12/11 - 13:55

We are told he is the best Prime Minister Canada never had. Sir John Sparrow David Thompson served only two years in that capacity; an untimely death on 12 December 1894 cut short his stewardship. But his contributions to Canada spanned much longer than those two years would suggest.

Under Sir John A. Macdonald, Thompson held the position of Justice Minister (sworn in on 26 September 1885), a responsibility he maintained to his death. While deeply respected by his Conservative colleagues, Thompson’s sterling character did not always meet with approval from all; one party stalwart moaned: “He won’t even consider whether a thing is good for the party until he is quite sure it is good for the country.”[1]

As Justice Minister, Thompson undertook the monumental task of giving Canada its own Criminal Code. Working closely with a bi-partisan committee, the result was a statute that reflected Thompson’s skills as jurist, and dedication as a Canadian. His first biographer, J. Castell Hopkins, would argue that the Code was far more deserving to be named for its maker than the Code Napoleon. Thompson also served as an arbiter in the Bering Straits dispute between Canada and the United States, and he staunchly supported the position that Canada should set its own copyright course—that indeed Canada had the right to do so as a self-governing Dominion.

Thompson’s commitment to the rule of law, fairness and justice were unparalleled, earning him praise from both sides of the aisle. He was, in a word, a statesman. Throughout though, he was confronted by the internecine Catholic/Protestant mistrust, a challenge that has largely faded from Canadian memory but was as potent in its time as the misplaced-hostility over multiculturalism is today. Thompson, a Methodist turned Catholic, initially turned down Governor General Lord Stanley’s request to assume the helm following Prime Minister Macdonald’s death—Thompson felt that his Catholicism would provoke trouble for the government. But when MacDonald’s successor John Abbot resigned on account of poor health, Thompson agreed to lead the Conservative Party and thus too the Government of Canada.

My interest in Thompson was sparked during my doctoral exploration of Canadian copyright history.[2] In 1889, under Thompson’s guidance, the Canadian Copyright Act was amended as necessary to address the complexities of Canada’s geographic and political position, caught as the country was between American capitalism and British imperialism. Passed with unanimity by Canadian parliamentarians, the Act encouraged the development of a national publishing industry by ensuring the legitimate reprinting of works of foreign authors, through a compulsory royalty. This measure applied only if the copyright holder did not seek publication in Canada within one month of publication elsewhere. Canadian readers and all authors would have benefited.

But the passage of the 1889 Act required disengagement from Imperial copyright law, as also from the blanket pronouncements of the recently-formed Berne Convention. Thompson argued, not for Canadian autonomy, but for recognition of the autonomy as it already existed in the British North America Act of 1867 and had further developed in the decades following Confederation. Unfortunately, although Thompson held the better argument, the political clout of British and American publishing industries ensured that such recognition was withheld.

British intransigence towards Canada stemmed in part from the desire to bring about an Anglo-American copyright treaty; Canada was a valuable bargaining chip. Even before a treaty of sorts eventually transpired, the Canadian market was offered up by savvy copyright holders who sought private arrangements with American publishing houses. If assured that no similar arrangement would be made with a Canadian printer, American publishers were willing to provide some compensation to the owner. As P. B. Waite describes, the tone was not always benign: “You will get no compensation whatever from us, if you permit any Canadian house to publish your work.”[3]

These practices were so widespread as to merit inclusion in a Royal Commission on Copyright. Aware of the gentleman’s agreement among American publishers (some might say honour among thieves), whereby the right to continued publication was reserved to the house that gained first publication, the Commissioners observed:

[S]ecured from competition … it is worth while for [American publishers] to rival each other abroad in their offers for early sheets of important works. We are assured that there are cases in which authors reap substantial results … and instances are even known in which an English author’s returns from the United States exceed the profits of his British sale …. (para. 242)..

Notably, that same Commission report supported the measures that Canada would later attempt to enact in 1889 (paras.206-207).

When the long-desired Anglo-American Treaty came into being, it provided much less benefit than what Canada had offered. The United States would not abandon its manufacturing clause—ensuring the betterment of American industry and loss to the British counterpart—meaning that foreign authors could only obtain copyright for works set and printed within the United States. Faced with that expensive proposition, English authors and publishers were left with little to show for the years of waiting. Following the passage of the American Copyright Bill, C.J. Longman (of the House of Longman) did not mince words:

The Act … offers protection—on conditions—to any British author.  There are already signs that the value of this protection may be over-estimated in this country. It is desirable therefore to point out that to those writers whose published works are before the world, … but have failed to attract the attention of pirates, the Act gives no advantage. If there had been any prospect of republishing those books profitably, the enterprising American publisher would certainly have availed himself of his chance when he could have had them for nothing.  ….
– “The American Copyright Bill,” The Economic Review 1.2 (1891).

Despite the inadequacies of the American arrangements, the British Crown continued to refuse Canada’s requests for independent action regarding copyright. Even though Sir Charles Trevelyan had emphasized for years that partnering with Canadian publishers would allow England to gain the upper-hand in the reprints market of North America as a whole. That logic, not to mention the greater benefit for English authors, fell on deaf ears. English authors and copyright holders could neither envisage altering the model of monopoly copyright, nor tolerate diversity within colonial implementation of the law.

Thompson continued to press his case with clarity, evidence, and appeals to the rule of law. Invited to serve as a member of the Queen’s Privy Council, he traveled to London in December 1894 to be sworn in. In the days prior to the ceremony, Thompson discussed the copyright issue with members of the Colonial Office, and achieved some recognition of the legitimacy of Canada’s position: “… the claim of the Canadian legislature is a good one, and the burden of proof that it is contrary to public policy rests on those who contest it.”[4] But whatever ground Thompson had gained, was never to be capitalized on. Within hours of the swearing-in ceremony Thompson collapsed at Windsor Castle and died. He was forty-nine.

Without Thompson’s leadership, Canada could not achieve meaningful independence on matters relating to copyright.


[1] Quoted by Gordon Donaldson in The Prime Ministers of Canada (Doubleday Canada Limited, 1994) p.53

[2] I cover this period of  history in detail in “The Copyright Act of 1889–A Canadian Declaration of Independence,” Canadian Historical Review, Vol. 90, Issue 1, p.1-28.

[3] Quoted by Peter B. Waite in “Sir John Thompson and Copyright, 1189-1894: Struggling to break free of Imperial Law,” Bulletin of Canadian Studies.  Vol.6 No.2, p.36-49.

[4] Ibid.


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