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Suck on This: Canadian Government Rejects IP Lobby’s Concerns on Dot-Sucks Domain

Michael Geist Law RSS Feed - Wed, 2015/06/17 - 10:28

As new top-level domains continue to enter the marketplace, one of the most controversial has been dot-sucks. The new top-level domain has generated criticism for its business model as much as for the websites that are likely to use it, with the intellectual property community describing the model behind dot-sucks as “illicit” and “predatory, exploitive, and coercive”. That recently led to a complaint to ICANN, which took the unusual step of writing to the U.S. and Canadian governments to determine whether the company behind dot-sucks was violating any national laws, claiming it “was very concerned about any possible illegality.”

The decision to include the Canadian government in the letter stems from the fact that dot-sucks is owned by a subsidiary of Momentous Corp., an Ottawa-based company. This week, the Canadian government responded to the ICANN letter, making it clear that it has absolutely no intention of intervening in the case. The key paragraph in the letter signed by Industry Canada Deputy Minister John Knobley:

Canada’s laws provide comprehensive protections for all Canadians. Canada has intellectual property, competition, criminal law and other relevant legal frameworks in place to protect trademark owners, competitors, consumers and individuals. These frameworks are equally applicable to online activities and can provide recourse, for example, to trademark owners concerned about the use of the dotSucks domain, provided that trademark owners can demonstrate that the use of dotSucks domains infringes on a trademark. Intellectual property rights are privately held and are settled privately in the courts.

In other words, the Canadian government will not intervene on behalf of the intellectual property lobby’s efforts to curtail critical speech using dot-sucks domains. Unlike the U.S. response, which criticized ICANN’s policies on new gTLDs, the Canadian response hits the right tone, leaving potential private disputes to the courts, not government intervention.

The post Suck on This: Canadian Government Rejects IP Lobby’s Concerns on Dot-Sucks Domain appeared first on Michael Geist.

WIPO to discuss library and archive copyright provisions

Sara Bannerman - Tue, 2015/06/16 - 13:43
Some interesting proposals will soon be under discussion at the World Intellectual Property Organization that could free libraries, archives, educational and research institutions, and people with disabilities from copyright provisions that hamper their ability to make use of copyright works.

The World Intellectual Property Organization's committee on copyright meets this upcoming June 29 to July 3.  Three main topics will be under discussion: first, the possible establishment of a treaty granting intellectual property protection for broadcasting organizations; second, the possible establishment of an international instrument setting out copyright limitations and exceptions for libraries and archives; and, third, the possible establishment of an international instrument setting out limitations and exceptions for educational and research institutions and for persons with other disabilities.[1]

The need for limitations and exceptions by libraries was laid out in 2011 by a number of library organizations, which noted that:
  • preservation of print and digital materials is a matter of increasing concern as "born digital" documents must be retained, print documents must be preserved and sometimes repaired, and digital lock increasingly make the job of preservation difficult or impossible.
  • libraries and archives must increasingly collaborate across institutions and borders, and copyright law must "catch up" to reflect this.
They suggested that an international treaty could enable libraries and archives to better preserve works; to support education, research, private study; and to support people with disabilities in accessing content (p. 5)
Currently two sets of proposals, one by the USA, and the other by the African Group, Brazil, Ecuador, India and Uruguay, are on the table for discussion. Both sets of proposals would: 
  • encourage copyright regimes that would enable preservation;
  • encourage legal deposit regimes; and
  • encourage limitations on liability for libraries and archives acting in good faith.
However, the proposals of the African Group, Brazil, Ecuador, India and Uruguay go much further to also encourage countries to enable:
  • acquisition of works by libraries via parallel import where a member state does not provide for international exhaustion;
  • cross-border use of works between library and archive institutions;
  • libraries and archives to reproduce and make available orphan works;
  • circumvention of digital locks for the purposes of making use of limitations and exceptions outlined in the instrument;
  • elimination of the contractual overrideability of limitations and exceptions; and
  • libraries and archives to translate works for the purposes of teaching, scholarship and research.
It is expected that at the next session discussion will continue on these proposals, and that an additional document by the chair will also be discussed (13).

---
[1] Knowledge Ecology International provides extensive information on the first topic.
The broadcasting discussions have been ongoing for ten years, as was noted by the Brazilian delegate at the last meeting of the committee (Draft report, p. 17).  The latter two sets of discussions have gathered some momentum after the successful adoption of WIPO's first treaty on limitations and exceptions for the visually impaired.

How the Budget Bill Quietly Reshapes Canadian Privacy Law

Michael Geist Law RSS Feed - Mon, 2015/06/15 - 09:07

A budget implementation bill is an unlikely – and many would say inappropriate – place to make major changes to Canadian privacy law. Yet Bill C-59, the government’s 158-page bill that is set to sweep through the House of Commons, does just that.

The omnibus budget bill touches on a wide range of issues, including copyright term extension and retroactive reforms to access to information laws. But there are also privacy amendments that have received little attention. In fact, the Privacy Commissioner of Canada was not even granted the opportunity to appear before the committee that “studied” the bill, meaning that privacy was not discussed nor analyzed (the committee devoted only two sessions to external witnesses for study, meaning most issues were glossed over).

My weekly technology law column (Toronto Star version, homepage version) notes that the bill raises at least three privacy-related concerns. First, the retroactive reforms to access to information, which are designed to backdate the application of privacy and access to information laws to data from the long-gun registry, has implications for the privacy rights of Canadians whose data is still contained in the registry. By backdating the law, the government is effectively removing the privacy protections associated with that information.

Second, the government plans to expand its collection of biometric information, including fingerprints and digital photos, to visitors from 150 countries. The law currently applies to 29 countries and one territory, meaning this constitutes a massive expansion in the amount of personal data the government collects.

The regulations associated with the biometric data collection have yet to be released, but the expansion raises privacy concerns over how the information is stored, the potential for false matches, and the need for appropriate notices about the collection, use and potential disclosure of the information.

Third, the government is expanding the scope of Personal Information Protection and Electronic Documents Act (PIPEDA), the private sector privacy law, to include non-commercial organizations. That raises questions about whether the changes are constitutional. The bill allows the government to specify organizations to which PIPEDA applies and it immediately adds one organization: the Montreal-based World Anti-Doping Agency (WADA).

The change is designed to address European criticism that WADA, which is currently subject to Quebec’s private sector privacy law, is not governed by privacy laws that meet the adequacy standard under European law. The European goal appears to be to deem Montreal unfit to host WADA and to transfer its offices. The Canadian government wants to stop the privacy criticisms by applying the federal law to the global organization.

While these issues sound very technical, the problem with the government’s proposed reform is that it is an obvious target for a constitutional challenge.

When PIPEDA was first introduced in the late 1990s, the government was careful to limit its scope to commercial activities. The reason was that the Constitution Act grants provinces powers over property and civil rights, which is where privacy fits in. To get around provincial jurisdiction, the federal government sought to regulate privacy on a national basis by relying on its trade and commerce power. In fact, Quebec viewed even that justification as an encroachment on its powers and quickly launched a constitutional challenge against the law, but that case has remained dormant for years.

By extending the law to cover WADA, the government is reviving the constitutional issue by changing the entire scope of the law. If PIPEDA now also covers some non-commercial activities, it will need a different constitutional basis.

By including constitutionally suspect privacy provisions within Bill C-59, the government is proposing to solve one problem by creating a much bigger one. Indeed, critics would argue that is precisely the risk of introducing significant privacy reforms within a fast-tracked omnibus budget bill and not allocating any time to discussing it at committee.

The post How the Budget Bill Quietly Reshapes Canadian Privacy Law appeared first on Michael Geist.

How Bill C-59 Reshapes Canadian Privacy Law

Michael Geist Law RSS Feed - Mon, 2015/06/15 - 09:05

Appeared in the Toronto Star on June 13, 2015 as How the Budget Bill Quietly Reshapes Privacy Law

A budget implementation bill is an unlikely – and many would say inappropriate – place to make major changes to Canadian privacy law. Yet Bill C-59, the government’s 158-page bill that is set to sweep through the House of Commons, does just that.

The omnibus budget bill touches on a wide range of issues, including copyright term extension and retroactive reforms to access to information laws. But there are also privacy amendments that have received little attention. In fact, the Privacy Commissioner of Canada was not even granted the opportunity to appear before the committee that “studied” the bill, meaning that privacy was not discussed nor analyzed (the committee devoted only two sessions to external witnesses for study, meaning most issues were glossed over).

The bill raises at least three privacy-related concerns. First, the retroactive reforms to access to information, which are designed to backdate the application of privacy and access to information laws to data from the long-gun registry, has implications for the privacy rights of Canadians whose data is still contained in the registry. By backdating the law, the government is effectively removing the privacy protections associated with that information.

Second, the government plans to expand its collection of biometric information, including fingerprints and digital photos, to visitors from 150 countries. The law currently applies to 29 countries and one territory, meaning this constitutes a massive expansion in the amount of personal data the government collects.

The regulations associated with the biometric data collection have yet to be released, but the expansion raises privacy concerns over how the information is stored, the potential for false matches, and the need for appropriate notices about the collection, use and potential disclosure of the information.

Third, the government is expanding the scope of Personal Information Protection and Electronic Documents Act (PIPEDA), the private sector privacy law, to include non-commercial organizations. That raises questions about whether the changes are constitutional. The bill allows the government to specify organizations to which PIPEDA applies and it immediately adds one organization: the Montreal-based World Anti-Doping Agency (WADA).

The change is designed to address European criticism that WADA, which is currently subject to Quebec’s private sector privacy law, is not governed by privacy laws that meet the adequacy standard under European law. The European goal appears to be to deem Montreal unfit to host WADA and to transfer its offices. The Canadian government wants to stop the privacy criticisms by applying the federal law to the global organization.

While these issues sound very technical, the problem with the government’s proposed reform is that it is an obvious target for a constitutional challenge.

When PIPEDA was first introduced in the late 1990s, the government was careful to limit its scope to commercial activities. The reason was that the Constitution Act grants provinces powers over property and civil rights, which is where privacy fits in. To get around provincial jurisdiction, the federal government sought to regulate privacy on a national basis by relying on its trade and commerce power. In fact, Quebec viewed even that justification as an encroachment on its powers and quickly launched a constitutional challenge against the law, but that case has remained dormant for years.

By extending the law to cover WADA, the government is reviving the constitutional issue by changing the entire scope of the law. If PIPEDA now also covers some non-commercial activities, it will need a different constitutional basis.

By including constitutionally suspect privacy provisions within Bill C-59, the government is proposing to solve one problem by creating a much bigger one. Indeed, critics would argue that is precisely the risk of introducing significant privacy reforms within a fast-tracked omnibus budget bill and not allocating any time to discussing it at committee.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post How Bill C-59 Reshapes Canadian Privacy Law appeared first on Michael Geist.

copyright and religion; a contentious mixture

Fair Duty by Meera Nair - Sun, 2015/06/14 - 09:20

Discussions of copyright and religion are fraught with risk for the same reason; that it is extremely difficult to find middle ground.

Two weeks ago, an article in the Huffington Post raised what, on the surface, looks like a clear-cut demonstration of violation of intellectual property rights. But, as is often the case with these rights, careful reading brings to light a more complex matter.

The article, published on 6 June 2016, concerns the work of Vancouver photographer, Dina Goldstein. Although the Huffington Post indicates that Goldstein is seeking damages from a foreign newspaper for its use of her work, the article does not identify which body of law is relevant to Goldstein’s claim. Goldstein is entitled to be offended by the criticism levied at her; however, it is open to debate as to whether any laws were broken at all.

Images from Goldstein’s collection Fallen Princesses were used to support an argument from the Irish Catholic newspaper Alive!, of the need for families to raise children with hope. Specifically, the hope that arises from the Christian faith: “The sure hope of heaven gives us a joy here and now that even suffering cannot undermine. The fairy tales have it right.” The Huffington Post quotes Goldstein as saying:

My photograph … was deliberately manipulated into forming a criticism about parents who do not promote religion within the household. This sentiment is seething with the classic Catholic guilt trip I reject … In fact, this argument is completely opposed to my own way of raising a family, without religion.

In the same article, Goldstein acknowledges that her “socially critical work is ‘meant to attract discourse.'” However, the photographer objected “to the newspaper’s cover displaying neither a credit to her, nor an indication there’s a relevant story inside.”

Closer examination of both the Alive! cover and the accompanying article do not easily support these remarks. It is true that the Alive! cover does not make mention of Goldstein by name, but there is a reference to an article in the lower right hand corner: “Being a child of parents with no faith is tough, see page 7.”

On page seven, the article begins with: “Photographer Dina Goldstein … .” The article deals with Goldstein’s work in depth, detailing highlights of the collection and Goldstein’s philosophy about the collection. In terms of crediting a creator, or invoking a creator’s work to a specific cause, these are matters of moral rights which serve to protect the personal connection between art and artist. As most readers know, the scope of protection varies. However, among observing countries, the right of attribution (acknowledging the creator) and integrity (treating the work with respect) are common. Ireland observes both (so too does Canada).

But the immediate question is whether moral rights prescribe a specific placement of attribution? Irish law is silent as to how attribution should be carried out. Known as the paternity right in their Copyright and Related Rights Act, Chapter 7 – Section 107 states: “ … the author shall have the right to be identified as the author and that right shall also apply in relation to an adaptation of the work.” Thus it is plausible that crediting Goldstein through the article would serve as observant of moral rights under Irish law.

[As an aside, the Copyright Act of Canada is slightly more detailed in its language of moral rights: “The author of a work has …  the right to the integrity of the work and, …  where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.” But the caveat of “where reasonable in the circumstances” also allows for the possibility that the attribution might not be placed according to the creator’s wishes.]

On the matter of the integrity of the work, Irish law is quite intriguing. Chapter 7 – Section 108 states: “… the author of the work shall have the right to object to any distortion, mutilation, or other modification of, or derogatory action in relation to, the work which would prejudice his or her reputation …” (emphasis mine). The two photographs of Goldstein’s, portrayed by Alive!, were not distorted, mutilated or modified. The representation is faithful to Goldstein’s original images. But we should consider the possibility that featuring Goldstein’s work in the newspaper, is a “derogatory action … which would prejudice his or her reputation.”

The Alive! article quotes Goldstein as saying: “I am a fierce realist so I wanted the princesses to be in real life situations with problems of their own.” The article further quotes Goldstein as “raging against the happily-ever-after motif” spoon-fed to the young. Neither quotation is attributed to any particular press interview or article, but Goldstein’s website contains an extensive collection of material so it is plausible that these quotations are accurate. Alive! uses Goldstein’s work and her remarks as a background to advance their own argument; that believing in “happily ever after” is a fundamental belief, and a worthwhile one, in the Christian tradition.

At this stage, a claim based upon moral rights infringement looks less robust; rather than a violation of moral rights, the use of the images melds well with fair dealing. In Ireland, like Canada, criticism and review are protected purposes if the creator receives sufficient acknowledgement (see Chapter 6 – Section 51). It would not be possible to convey the force of Goldstein’s work, without showing some of the work. Where Alive! may have erred, is to speculate that Goldstein’s work is deliberately an attack on Christianity and a style of parenting. From the article:

But is [Goldstein] raging against the Christian message of hope in the fairy stories or against the culture of despair which has infiltrated both society and her own life? She seems to think we should stop telling children stories with happy endings. That kids need to realize that real life stories don’t end that way.

Alive! continues in this vein, about people who have lost sight of God, emphasizing that “hope and happiness, not despair, are the realistic attitude to life.”

Goldstein has not been shy about voicing her views on religion; but she has also articulated that her work is art, not a parenting manual. In 2009, when Fallen Princesses was unveiled, Cheryl Rossi, writing for Vancouver Courier, states:

Her Fallen Princesses photos aren’t meant for kids, Goldstein says, and she’s not shielding her daughter, now four, from Disney. “I don’t want to ruin her bubble,” she said. “She’ll learn that life is complicated and tough eventually.”

In a more recent interview Goldstein states that she would not deprive her young daughters of the enjoyment of Disney productions or merchandise, emphasizing that children are too young to understand the concepts behind Goldstein’s imagery. Goldstein is unequivocal: “These images are made for adults.”

So is there a legitimate complaint here, and if so, what is it? Was the photograph unfairly used in a manner that is derogatory to Goldstein’s reputation? Have the musings of Alive! cast aspersions to Goldstein’s character? Or, was the condemnation of Goldstein’s work merely criticism? Criticism that necessarily required explanation and therefore invocation of Goldstein’s work?

And if there is a complaint, is there an avenue of redress for Goldstein? I am unfamiliar with the sturdiness of Ireland’s regimes of fair dealing, moral rights and defamation; if an Irish reader would like to comment, please do.

On a different note, Goldstein’s work is phenomenal. In an interview with Fanny Kiefer, Goldstein remarks: “… [the] characters are symbols, to convey a scenario.” Fallen Princesses is dramatic and touches a chord by the recasting of familiar characters among the all-too-real feelings of desperation that pervade life. The rude-awakening that marriage can be, the trauma of cancer, and other realities, are conveyed masterfully.

With my bent for maintaining copyright as a set of limited rights (as it has been for 305 years), the best part of Goldstein’s work is this: no reprisals from the Disney Corporation. When questioned by Kiefer as to whether Goldstein had sought permission from Disney, and did Disney call upon publication of the pictures, the answer to both questions was No.

Nor should there have been any reason for Disney involvement. But the persona of Disney and its ironclad grip upon its characters is legendary to the point of discouraging putative artists and even well-heeled lawyers from using Disney materials. Goldstein’s story is a happily-ever-after of an entirely different nature.


Congress’ Fast Track to Bad Law

Freedom to Tinker - Fri, 2015/06/12 - 12:44
Congress appears poised to pass Trade Promotion Authority, otherwise known as “fast track,” for the Trans Pacific Partnership Agreement (TPP). If this happens, it will likely close the door to any possibility of meaningful public input about TPP’s scope and contours. That’s a major problem, as this “21st century trade agreement” encompassing around 800 million people in […]

B.C. Court of Appeal Upholds Global Deletion Order Against Google

Michael Geist Law RSS Feed - Fri, 2015/06/12 - 08:32

The B.C. Court of Appeal has released its decision in Equustek Solutions Inc. v. Jack, a closely watched case involving a court order requiring Google to remove websites from its global index. As I noted in a post on the lower court decision, rather than ordering the company to remove certain links from the search results available through Google.ca, the order intentionally targets the entire database, requiring the company to ensure that no one, anywhere in the world, can see the search results. That post notes:

The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country.

The B.C. Court of Appeal decision addresses two key jurisdiction questions: first, whether the court can assert jurisdiction over Google; and second, whether the court order can extend beyond Canada.

The first question is relatively easy. While Google argued that it does not have servers or offices in B.C., the court concluded that it still has a real and substantial connection to the province:

While Google does not have servers or offices in the Province and does not have resident staff here, I agree with the chambers judge’s conclusion that key parts of Google’s business are carried on here. The judge concentrated on the advertising aspects of Google’s business in making her findings. In my view, it can also be said that the gathering of information through proprietary web crawler software (“Googlebot”) takes place in British Columbia. This active process of obtaining data that resides in the Province or is the property of individuals in British Columbia is a key part of Google’s business.

The reference to Google collecting information in the province is an aggressive jurisdictional approach. Given that search engines (and many other sites) collect data from around the world, the B.C. Court of Appeal analysis would open the door to courts asserting jurisdiction over many websites and online services with limited connections to the jurisdiction. Indeed, this would seemingly be true even if the site had no business in the jurisdiction.

The second jurisdictional question spurred interventions from groups like EFF and CCLA, who were concerned with the free speech implications of a court order applied to the Internet far beyond B.C. On this issue, the court was not troubled by an order that applies beyond provincial borders, stating:

British Columbia courts are called upon to adjudicate disputes involving foreign residents on a daily basis, and the fact that their decisions may affect the activities of those people outside the borders of British Columbia is not determinative of whether an order may be granted.

Moreover, it noted that courts in other countries that have issued orders with international effects. Decisions cited include the infamous Yahoo France case and the recent right to be forgotten decision from EU. While those decisions might have been used to signify the need for caution, the court concluded that “international courts do not see these sorts of orders as being unnecessarily intrusive or contrary to the interests of comity.”

In light of the appellate decision, my conclusion from the earlier ruling remains unchanged:

While there is much to be said for asserting jurisdiction over Google – if it does business in the jurisdiction, the law should apply – attempts to extend blocking orders to a global audience has very troubling implications that could lead to a run on court orders that target the company’s global search results.

Google is reported to be reviewing the judgement with Internet law watchers waiting to see if it seeks leave to appeal to the Supreme Court of Canada.

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Liberals and NDP Call for Disclosure of Online Video Provider Revenues and Subscriber Data

Michael Geist Law RSS Feed - Thu, 2015/06/11 - 10:49

The Standing Committee on Canadian Heritage concluded a study on the Canadian film industry this week, releasing a report that lists 11 recommendations that generally call for continued industry support. The NDP and Liberals both issued supplementary opinions in which they called for requirements that online video providers (such as Netflix) disclose revenues, Cancon availability, and subscriber numbers to Canadian officials. The NDP recommendation:

the NDP fully supports the recommendation made by Carolle Brabant of Telefilm Canada, who argued that it is vital for over-the-top services to be able to do what traditional platforms and media do, namely, provide government authorities with detailed information about their services, such as consumers’ habits, the Canadian films available, the revenues generated and the costs associated with such services.

The Liberals issued a similar recommendation:

It is recommended that the Department of Canadian Heritage and the (CRTC) gather data on over-the-top services, with particular focus on consumer habits, availability of Canadian films, and revenues and expenses associated with these services.

The issue of data disclosure has been a contentious one, with companies such as Netflix and Google refusing to provide the CRTC with confidential information during the TalkTV hearings, leading to a high-profile showdown on the issue. Better information is obviously important, but the challenge is how to gather that information. Voluntary disclosure would address the issue, but if providers are unable or unwilling to comply, gathering such information brings up the thorny world of regulating online video providers with rules that mandate disclosure to the CRTC and/or the government.

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Netflix vs. CraveTV: More Than 90% of CraveTV Titles Are Not Available On Netflix U.S. or Canada

Michael Geist Law RSS Feed - Tue, 2015/06/09 - 08:30

Bell’s recent characterization of Canadians using virtual private networks to access U.S. Netflix as thieves has attracted considerable attention. Yesterday, I posted on why accessing U.S. Netflix is not theft, noting that a minority of Canadian Netflix subscribers use VPNs and arguing that the frustration seems rooted in business concerns rather than legal ones. The post added that Netflix and CraveTV (Bell’s online video service) have little overlap in content. Working with Kavi Sivasothy, one of my research students, we took a closer look at the libraries of Netflix U.S., Netflix Canada, and CraveTV. We relied on AllFlicks.net for the Netflix data and CraveTV’s own A to Z page for its data.

Based on that information, how many titles does CraveTV offer that overlap with Netflix U.S. and are not available on Netflix Canada? Not many. In fact, the data suggests that there are some CraveTV titles that are not available on Netflix U.S., but are available on Netflix Canada. Overall, more than 90 percent of CraveTV’s titles are not available on either Netflix U.S. or Netflix Canada. [UPDATE: Thanks to a reader for pointing out a few omissions from the chart. The error was due to different spelling in the Netflix and CraveTV lists. The numbers have been updated].

CraveTV currently offers 403 titles. Of those, 36 are available on Netflix U.S. but not Netflix Canada. Notable titles include 30 Rock, Cheers, Everybody Loves Raymond, The West Wing, and Twin Peaks.

However, there are also eight titles that are available on CraveTV and Netflix Canada, but not the Netflix U.S. service, including Community and Homeland. Further, there are another eight programs that are available on all three services including Doctor Who, Friday Night Lights, and Weeds. A chart of the overlap between the three services:

CraveTV and Netflix U.S. CraveTV and Netflix Canada CraveTV, Netflix U.S., Netflix Canada 30 Rock
Alias
Arrow
Bitten
Blue Bloods
Cheers
Everybody Loves Raymond
Flashpoint
Frasier
Freakshow
Graceland
Heart of Dixie
Homefront
Hostages
JFK – The Smoking Gun
Marvel’s Agents of S.H.I.E.L.D.
Nikita
Reign
Rescue Me
Salem
Satisfaction
Sirens
Star Trek – Deep Space Nine
Star Trek – Enterprise
Star Trek – The Animated Series
Star Trek – The Original Series
Star Trek – Voyager
The Borgias
The Colony
The Escape Artist
The Following
The L Word
The Tomorrow People
The West Wing
Twin Peaks
United States of Tara Batman
Batman Returns
Brotherhood
Community
Homeland
Shame
The Hour
The Shield Anger Management
Damages
Doctor Who
Friday Night Lights
Merlin
Star Trek: The Next Generation
The Fall
Weeds

Based on the overlap data, VPN usage should be a minor competitive issue for CraveTV. There may be many people using it, but the numbers using VPNs to access titles that are available on CraveTV is likely to be quite small. The far bigger issue for CraveTV is the sheer size of the Netflix U.S. and Netflix Canada libraries. CraveTV has some good content, but at 403 titles it is tiny in comparison with both of those services. Netflix Canada currently lists over 3,700 shows and movies, making the number of titles in its library nine times larger than CraveTV. With over 7,300 shows and movies, Netflix U.S. is nearly twice of the size of the Canadian version, which helps explain why some Canadians seek out the greater choice.

Moreover, the services have different business models. Netflix is available to anyone with Internet access, making its content available on a wide range of devices and not requiring a television subscription. By contrast, as a Rogers subscriber at home, I cannot subscribe to CraveTV, which is available only to those with television subscriptions from certain service providers. That means CraveTV reaches only part of the Canadian market and effectively carries a much higher monthly cost than Netflix (CraveTV alone may be cheaper, but it cannot be bought on its own).

The post Netflix vs. CraveTV: More Than 90% of CraveTV Titles Are Not Available On Netflix U.S. or Canada appeared first on Michael Geist.

Canadian copyright reform for people with print-disabilities

Sara Bannerman - Tue, 2015/06/09 - 06:34
Yesterday Industry Minister Candice Bergen introduced Bill C-65, the Support for Canadians with Print Disabilities Act  for first reading in Canadian Parliament.  The Act will allow Canada to ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

Among other things, the bill would allow non-profit organizations acting for the benefit of persons with a print disability to create accessible-format works and provide those works (or access to those works) to people with print disabilities and to non-profit organizations acting for their benefit outside of Canada (s. 32.01 (1)) on payment of royalties set by regulation (s. 32.01 (4)).  It would also allow the circumvention of TPMs for these purposes (s. 41.16).  The Act sets out reporting requirements (32.01(6)) and requirements that contracts be put in place with outside organizations regarding the use of the works (32.01(7)(a)).

This is a welcome move.  It would facilitate access to books and other copyright materials around the world, allowing Canadian organizations to work with their counterparts in other countries to make works accessible.   It would also make Canada the first G7 country to ratify the Marrakesh Treaty.

TRC could do more for Aboriginal People's media

Sara Bannerman - Mon, 2015/06/08 - 11:35
The Truth and Reconciliation Commission of Canada (TRC), commissioned to investigate a century of abuse of Aboriginal peoples at Canadian Indian Residential Schools, last week released its findings and calls to action.  Among its 94 calls to action were several dealing with "media and reconciliation", as well as calls related to "educating journalists for reconciliation" (pp. 341-345). While its recommendations are helpful, it could have done more.

The Commission rightly points to the deficiencies of Canadian broadcasting policy, as set by the Canadian Broadcasting Act, which requires the Canadian broadcasting system to reflect "the special place of aboriginal peoples within [Canadian] society" (s. 3.1.d.iii).  However, the Act requires only that programming reflect Aboriginal culture "as resources become available for the purpose" (s. 3.1.o). Furthermore, while the Canadian broadcasting system is required to broadcast in English and French in equivalent quality, the Act sets out no requirement to broadcast in Aboriginal languages.

The TRC discusses the role of just two media outlets in furthering reconciliation: the CBC and the Aboriginal Peoples Television Network (APTN)[1].  It notes that budget cuts have reduced the CBC's "capacity to provide Aboriginal programming".  It therefore calls for greater funding for the CBC.  It also notes that the APTN "is well positioned to provide media leadership to support the reconciliation process." It therefore calls on APTN to continue developing media initiatives to "educate the Canadian public, and connect Aboriginal and non-Aboriginal Canadians."

Colby Nash has criticized the TRC for recommending increased funding to the CBC, whose Aboriginal programming has been minimal, rather than recommending increased funding of the APTN.  The CBC, after all, as MacLennan has noted[2], has its own history of cultural imperialism. The APTN, with increased funding he notes, could make many contributions:
APTN could expand into aboriginal-language Web offerings; it could develop totally separate content streams for major aboriginal language groups. It could get into community radio. It could fund scholarship, translations, poetry. You can think of a hundred new ideas without breaking a sweat.Other entities could also play a role.  Private broadcasters, which receive only a passing mention in the summary of findings, obviously play a significant role in media representations of Aboriginal peoples.  As Fleras writes, "mainstream media provide a key cross over point for intercultural understanding and exchanges" (169).  At the same time, changing mainstream media is a difficult task:
the very changes that minorities want of newsmedia (responsible coverage of minority interests, less sensationalism, more context, toned-down language, and less stereotyping) are precisely the newsnorms that media rely on to sell copy or capture eyeballs.  Challenging the conventional news paradigm will prove a difficult sell. (Fleras, 170)The CRTC could also play a role; while it recognized APTN as a national network in 1999, its Native Broadcasting Policy has not been reviewed since 1990.

Perhaps most importantly, while the Commission notes that it received submissions calling for revision of the Broadcasting Act to correct the inadequacy with which the Act addresses Aboriginal media, the Commission fails to call for such revision.  The Broadcasting Act  has not been revised since 1991.

The TRC should go further to discuss the role of mainstream media in reconciliation, to recommend a review of the CRTC's Native Broadcasting Policy, and to recommend revision of the Broadcasting Act to better fund, expand, and prioritize APTN and other Aboriginal media endeavors.


---
[1] See Lorna Roth's excellent book on the history of the APTN.
[2] MacLennan, Anne F. "Cultural imperialism of the North? The expansion of the CBC Northern Service and community radio." Radio Journal: International Studies in Broadcast & Audio Media 9.1 (2011): 63-81.

Sorry Bell, Accessing U.S. Netflix is Not Theft

Michael Geist Law RSS Feed - Mon, 2015/06/08 - 10:32

Bell Media president Mary Ann Turcke sparked an uproar last week when she told a telecom conference that Canadians who use virtual private networks (VPNs) to access the U.S. version of Netflix are stealing. Turcke is not the first Canadian broadcast executive to raise the issue – her predecessor Kevin Crull and Rogers executive David Purdy expressed similar frustration with VPN use earlier this year – but her characterization of paying customers as thieves was bound to garner attention.

My weekly technology law column (Toronto Star version, homepage version) argues that Turcke’s comments provide evidence of the mounting frustration among Canadian broadcasters over Netflix’s remarkable popularity in Canada. Netflix launched in Canada less than five years ago, yet reports indicate that it now counts 40 per cent of English-speaking Canadians as subscribers. By contrast, Bell started its Mobile TV service within weeks of the Netflix launch, but today has less than half the number of subscribers.

While Canadian broadcasters may be unhappy with subscribers that access the U.S. service, the problem is primarily a competitive issue, not a legal one. Some estimate that 25 per cent of Canadian subscribers have used a VPN to access Netflix. That means 75 per cent of subscribers – millions of Canadians – are content with the Canadian service that offers the largest Netflix library of content outside of the U.S.

Turcke’s claim that the minority of Canadian subscribers who access U.S. Netflix through VPNs are “stealing” simply does not withstand legal scrutiny. Those subscribers might be breaching the Netflix terms and conditions, but that is not breaking the law.

Similarly, arguments that the subscribers violate copyright law are very weak. There might be claim that subscribers circumvent geographic restrictions (thereby violating new rules against circumventing technological protection measures), but there are no damages involved and it is up to Netflix to enforce its rights to counter the circumvention. Since there is no chance the company will sue its customers, the focus on legal remedies is misplaced.

Bell’s insistence that VPN usage creates a problem is not very convincing. Under the current system, consumers pay for content, Netflix is paid for its service, and Netflix compensates creators in multi-million dollar licensing deals. If content owners were seriously concerned with VPN usage, they could simply refuse to license their content to Netflix until it cracked down on the practice.

Moreover, Bell and Netflix employ different business models (Bell’s CraveTV requires a broadcast subscription) and feature little overlap in content. Given the differences, Canadians accessing U.S. Netflix are not doing so to access content that is otherwise available on Bell’s service.

Bell’s emphasis on VPNs also fails to acknowledge that the technology has multiple uses. Privacy protection is among the most important uses, since VPNs allow users to conduct secure communications away from the prying eyes of widespread government surveillance. Bell’s comments may leave some Internet users thinking that VPNs are “socially unacceptable” when precisely the opposite is true.

Ultimately, the decision to target Netflix smacks of business desperation rather than legal anger. Bell’s strategic vision of being Canada’s largest vertically integrated communications company has taken repeated hits in recent months.

The Privacy Commissioner of Canada ruled against its targeted advertising program, which the company subsequently dropped. Meanwhile, the Canadian Radio-television and Telecommunications Commission implemented vertical integration safeguards to prevent market abuse, ruled that Bell’s Mobile TV service violated the law, and ordered broadcast distributors to offer channels on a pick-and-pay basis. That is likely to spell the demise of some of Bell’s highly profitable, but little watched channels that benefit from favourable bundling.

The reality is that Netflix is increasingly licensing content on a global basis, particularly with its investment in original shows such as House of Cards and Daredevil. As its global library grows, consumer interest in VPNs will further subside, leaving Canadian broadcasters with one less excuse to explain why subscribers are jumping to competitors.

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Why Accessing U.S. Netflix is Not Theft

Michael Geist Law RSS Feed - Mon, 2015/06/08 - 10:26

Appeared in the Toronto Star on June 6, 2015 as Sorry Bell, Accessing U.S. Netflix Is Not Theft

Bell Media president Mary Ann Turcke sparked an uproar last week when she told a telecom conference that Canadians who use virtual private networks (VPNs) to access the U.S. version of Netflix are stealing. Turcke is not the first Canadian broadcast executive to raise the issue – her predecessor Kevin Crull and Rogers executive David Purdy expressed similar frustration with VPN use earlier this year – but her characterization of paying customers as thieves was bound to garner attention.

Turcke’s comments provide evidence of the mounting frustration among Canadian broadcasters over Netflix’s remarkable popularity in Canada. Netflix launched in Canada less than five years ago, yet reports indicate that it now counts 40 per cent of English-speaking Canadians as subscribers. By contrast, Bell started its Mobile TV service within weeks of the Netflix launch, but today has less than half the number of subscribers.

While Canadian broadcasters may be unhappy with subscribers that access the U.S. service, the problem is primarily a competitive issue, not a legal one. Some estimate that 25 per cent of Canadian subscribers have used a VPN to access Netflix. That means 75 per cent of subscribers – millions of Canadians – are content with the Canadian service that offers the largest Netflix library of content outside of the U.S.

Turcke’s claim that the minority of Canadian subscribers who access U.S. Netflix through VPNs are “stealing” simply does not withstand legal scrutiny. Those subscribers might be breaching the Netflix terms and conditions, but that is not breaking the law.

Similarly, arguments that the subscribers violate copyright law are very weak. There might be claim that subscribers circumvent geographic restrictions (thereby violating new rules against circumventing technological protection measures), but there are no damages involved and it is up to Netflix to enforce its rights to counter the circumvention. Since there is no chance the company will sue its customers, the focus on legal remedies is misplaced.

Bell’s insistence that VPN usage creates a problem is not very convincing. Under the current system, consumers pay for content, Netflix is paid for its service, and Netflix compensates creators in multi-million dollar licensing deals. If content owners were seriously concerned with VPN usage, they could simply refuse to license their content to Netflix until it cracked down on the practice.

Moreover, Bell and Netflix employ different business models (Bell’s CraveTV requires a broadcast subscription) and feature little overlap in content. Given the differences, Canadians accessing U.S. Netflix are not doing so to access content that is otherwise available on Bell’s service.

Bell’s emphasis on VPNs also fails to acknowledge that the technology has multiple uses. Privacy protection is among the most important uses, since VPNs allow users to conduct secure communications away from the prying eyes of widespread government surveillance. Bell’s comments may leave some Internet users thinking that VPNs are “socially unacceptable” when precisely the opposite is true.

Ultimately, the decision to target Netflix smacks of business desperation rather than legal anger. Bell’s strategic vision of being Canada’s largest vertically integrated communications company has taken repeated hits in recent months.

The Privacy Commissioner of Canada ruled against its targeted advertising program, which the company subsequently dropped. Meanwhile, the Canadian Radio-television and Telecommunications Commission implemented vertical integration safeguards to prevent market abuse, ruled that Bell’s Mobile TV service violated the law, and ordered broadcast distributors to offer channels on a pick-and-pay basis. That is likely to spell the demise of some of Bell’s highly profitable, but little watched channels that benefit from favourable bundling.

The reality is that Netflix is increasingly licensing content on a global basis, particularly with its investment in original shows such as House of Cards and Daredevil. As its global library grows, consumer interest in VPNs will further subside, leaving Canadian broadcasters with one less excuse to explain why subscribers are jumping to competitors.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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Canadian Copyright Extension Set To Pass Committee As Recording Industry Lobbyist The Only Copyright Witness

Michael Geist Law RSS Feed - Thu, 2015/06/04 - 08:15

The government’s decision to extend the term of copyright for sound recordings to 70 years appears set to pass through the Standing Committee on Finance with practically no debate or analysis. The committee will conduct its clause-by-clause review later today and there is no reason to believe that any changes will be made to the copyright provisions. The committee has conducted extremely limited hearings with only one witness invited to discuss the copyright extension: Graham Henderson, the President of Music Canada (formerly the Canadian Recording Industry Association).

Given the previously released personal letter from Prime Minister Stephen Harper to Henderson on the day of the budget confirming the copyright extension, along with the extensive lobbying on the issue by his organization, it comes as little surprise to find that Henderson was the sole witness invited to appear on the issue as the entire policy change has been driven by record industry lobbying. Yet as Henderson invoked Paul Anka – an accomplished songwriter who undoubtedly generates more revenue from his works that will remain under copyright for many more decades than from sound recordings – the committee heard only press release style comments on the benefits of the change with background documents that cited no specific studies nor hard data about the impact of the reforms.

By contrast, other countries spent years studying the issue with careful consideration of both the benefits and the costs to consumers and artists that come from restricting the public domain. This copyright change buried in a budget bill is an embarrassment to a government that in 2012 earned applause for a reform process that was widely viewed as inclusive and comprehensive.

It will make little difference to a change that was apparently ordered by the Prime Minister, but yesterday I submitted a brief to the Finance Committee that points to the increase in consumer costs, the limited benefits to many artists, the competitive implications, and the harm to Canadian cultural heritage. It notes that the government committed to a review of copyright in 2017 as part of its 2012 Copyright Modernization Act. There is no emergency on this issue and the extension should be studied as part of the broader examination of copyright law at that time, rather than including it within a budget bill without public debate and analysis. The brief is being translated and should appear on the Committee site shortly.

View this document on Scribd

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Canadian Cellphone Freedom Day: Wireless Consumer Protections Now Apply to All

Michael Geist Law RSS Feed - Wed, 2015/06/03 - 10:43

Today is “Cellphone Freedom Day”, the day that most Canadian consumers can say goodbye to three year cellphone contracts. With the Federal Court of Appeal recently rejecting an attempt by the major carriers to stop the retroactive applicability of wireless code as of June 3rd (the two year anniversary of the code), consumers with cellphones that have run for more than 24 months can now cancel their contracts without penalty. That includes consumers with three years contracts that still have time left on their contract. As the CCTS notes:

three-year contracts which have run for more than 24 months can be cancelled without payment of cancellation fees, as the Code requires such fees to be reduced to zero within 24 months. Cancellation of three-year contracts in which the customer received a device subsidy but which have not yet run for 24 months (those entered into between June 3 and December 2, 2013) may still require payment of a cancellation fee.

Since the wireless companies switched to two-year contracts soon after the CRTC’s wireless code decision, there will be relatively few consumers with three year contracts that have not run for 24 months and those will hit the two-year mark within the next few weeks or months.

The shift to two-year contracts is a change that the carriers spent years fighting to stop. The Canadian Wireless Telecommunications Association introduced a voluntary code of conduct in 2009 with no expectation of government regulation. The provinces soon took action, starting in the province of Quebec, which enacted new consumer protections in 2010. Those protections included safeguards against pricey termination fees, prohibitions against unilaterally changing terms of service, and greater disclosures about warranties. The wireless carriers unsurprisingly opposed the new rules, claiming they would result in higher consumer costs and delayed access to new smartphones and other devices.

Those claims proved unfounded and the Quebec initiative was quickly followed by similar developments in Manitoba and Ontario. In Manitoba, a consultation on new consumer protections was roundly criticized by the Canadian Wireless Telecommunications Association, which said “the rationale for provincial intervention in the telecommunications sector is not compelling, and that at the end of the day, consumers are better served by competition than by regulation.”

The carriers worked hard to convince regulators that even the most disliked aspects of the market should be maintained. Canadians consistently objected to the widespread use of three-year contracts, yet a Scotia Capital report claimed that the lengthy contracts help spur smartphone adoption. However, studies showed that countries with even higher smartphone adoption rates such as the UK and Spain did not have three-year contracts (the UK banned the practice in 2011).

Once the CRTC began to develop the wireless code, the issue of contract length was the top issue raised by consumers, who argued that Canadian wireless contracts were longer than most other countries and that they represented a significant barrier to effective competition. The carriers once again encouraged the CRTC to resist change, with companies like Bell arguing that the change was “anti-consumer.”

After the CRTC allowed for termination without penalty after two years and ruled that the wireless code would apply to all contracts as of June 3, 2015, the carriers challenged the decision in federal court. The court upheld the CRTC decision, stating:

Given the CRTC’s intention to put more information into the hands of consumers so as to increase the dynamism of the market, it is reasonable to have all consumers on the same footing as soon as possible.

With that ruling, years of lobbying against enforceable consumer protections for wireless services were effectively defeated. As of today, all Canadian wireless subscribers benefit from the wireless code of conduct, including the ability to cancel services that have run for two years without further fees or penalties.

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Who should own big data?

Sara Bannerman - Tue, 2015/06/02 - 17:40
Big data has a lot to offer, from curing disease to fostering economic development to fostering transparency.  At the same time, from government mass surveillance to data leaks, the misuses of big data seem as pervasive as its uses.

Who owns big data?  What rights do--and should--its owners have over what is done with it? Two different answers to this question have been posed.  The first would allow free use of big data for non-profit scientific research.  The second would release IP control of big data for commercial research also.

As noted in a recent paper by Handke, Guibault and Vallbé, the answer to the question of what IP rights subsist in big data varies by country.  Research using mined data may, in some countries, be constrained by copyright and other IP laws, while in others (including Canada and the United States), copyright ownership in data may not stand in the way of researchers seeking to data mine.

Two international initiatives: The Hague Declaration on Knowledge Discovery in the Digital Age and the World Intellectual Property Organization's proceedings toward the creation of a new international instrument on limitations and exceptions for educational, teaching and research institutions and for persons with other disabilities, seek to ensure internationally that copyright does not stand in the way of the ability to mine data for research.

At WIPO, the African Group of countries has proposed that non-profit scientific research be exempted from copyright.  They propose that:
The reproduction and reuse [...] of any lawfully obtained copyrighted work for purposes of not-for-profit scientific research, including storage, archiving, linking, data mining procedures, data manipulation, and virtual scientific experiments subject to attribution of the sources used to the extent reasonably feasibleshould not constitute copyright infringement (p. 33; emphasis added).
While the WIPO proposal focuses on non-profit scientific research, a second initiative--the Hague Declaration--would also permit commercial data mining.  Further, it encourages research organizations, universities, and businesses; and those using Creative Commons licenses, to actively make data available publicly available for research.
Corporate owners of big data might be alarmed at the latter declaration.  Should individuals be alarmed as well?
Should we be concerned about giving up IP ownership of personal data?  
Scholar Neil Lawrence has argued that people should have ownership of their data:There are opportunities and risks with the accumulation of data, just as there are for the accumulation of capital. However, one thing seems clear: we need to increase the power of the people. Banks pay interest; perhaps we should be paid directly for the use of our personal data. We need to be made aware of the value of our data and be given rights to control who accesses it. We need to form a data-democracy: data governance for the people, by the people and with the people’s consent.Whether this ownership does or should take the form of intellectual property, or some other form, is a question worth considering.[1]  Is a person not the author of their own personal data?
While the two international initiatives outlined  above are likely intended to address corporate ownership of big data, personal ownership of the personal data that makes up big data should also be considered.  
It seems clear that, in an age where privacy laws fall short in constraining mass surveillance and protecting privacy online, a stronger medicine may be required.  As the ethics surrounding big data continues to evolve, throwing away ownership of our data in both commercial and non-commercial contexts may be a precipitous move.  Some form of personal ownership of personal data--especially ownership that would prevent unauthorized commercial use of data--could be a useful tool in an increasingly pitted battle over data ownership and control.
----[1]. Scholars have considered this question from various angles. Pamela Samuelson has argued that, while an intellectual property approach to personal data may not be appropriate, an approach based on moral rights may be worth exploring. The idea of ownership of personal data, and the problems associated with such ownership, continue to be explored.

Why Canadians Have Good Reason to Be Wary of the TPP

Michael Geist Law RSS Feed - Tue, 2015/06/02 - 08:46

Canada’s business community has mobilized in recent weeks to call on the government to adopt a more aggressive, engaged approach with respect to the biggest trade negotiations on the planet – the Trans Pacific Partnership Agreement. The TPP involves 12 countries including the United States, Australia, Mexico, Malaysia, Singapore, New Zealand, Vietnam, Brunei, Japan, Peru, and Chile.

My weekly technology law column (Toronto Star version, homepage version) notes that negotiators insist that progress is being made, but some in the business community are concerned that Canada may be left out of the deal unless it makes significant concessions on market access (including the dismantling of supply management in several agricultural sectors), restrictive intellectual property protections, and investor-state dispute settlement rules that allow companies to sue governments and potentially trump national courts.

The U.S. has been pressuring other countries to rapidly conclude a deal, though without “trade promotion authority”, which effectively locks it into a final agreement by removing the ability for Congress to modify the deal after others have signed on, the remaining countries are wary of revealing their best offer. Negotiations last week in Guam made only limited progress and a final meeting of government ministers has yet to be scheduled.

Delays will likely mean that Canadian business groups will continue to urge negotiators to move full steam ahead, but there are good reasons for caution.

Much of the business case focuses on concerns that failing to join the TPP will leave Canada out of a major trading block. Yet the reality is that Canada already has free trade agreements with nearly half of the TPP countries, including the U.S., Mexico, Chile, Peru, and South Korea. Moreover, Canada has engaged in free trade agreement negotiations with Japan and Singapore.

Free trade agreements with the likes of Brunei and Malaysia might provide some modest benefits to Canadian businesses, but Canadian trade interests are already well-covered within the much of the TPP community. Indeed, the costs of the TPP are a steep price to pay given the incremental gains that come from free trade access to a handful of additional countries.

The TPP cheerleading from business groups is somewhat puzzling given that the full text of the deal remains shrouded in secrecy. In other words, business groups are advocating for a deal they haven’t actually read or seen.

The concern is not just that the public has not had the chance to read the fine print of a deal that will affect every aspect of the Canadian economy. Rather, it is that the lack of transparency associated with the TPP virtually guarantees that it will be presented to Canadians on a “take it or leave it” basis with no informed public discussion or advance debate about the substantive terms.

Where elements of the agreement have become public through a series of high profile leaks, there has been ample reason for concern. The investor-state dispute settlement provisions could lead to a proliferation of lawsuits against the Canadian government by companies.

For example, pharmaceutical giant Eli Lilly is suing Canada for hundreds of millions in damages due Canadian patent law. The cost to the health care system of an expanded investor lawsuit system could be enormous as claims from other pharmaceutical companies could soon follow.

Similarly, leaked versions of TPP intellectual property text point to the extension of the term of copyright, which would mean that no new Canadian works enter the public domain for decades. Moreover, e-commerce rules may block countries from enacting domestic privacy protections that mandate that personal information be stored locally.

In short, the TPP hype doesn’t meet the reality. The new market access to a few countries comes at a significant cost, suggesting that Canadians should be skeptical about big claims on the still-secret deal.

The post Why Canadians Have Good Reason to Be Wary of the TPP appeared first on Michael Geist.

Good Reasons for Caution in Trans Pacific Trade Deal

Michael Geist Law RSS Feed - Tue, 2015/06/02 - 08:45

Appeared in the Toronto Star on May 30, 2015 as Good Reasons for Caution in Trans Pacific Trade Deal

Canada’s business community has mobilized in recent weeks to call on the government to adopt a more aggressive, engaged approach with respect to the biggest trade negotiations on the planet – the Trans Pacific Partnership Agreement. The TPP involves 12 countries including the United States, Australia, Mexico, Malaysia, Singapore, New Zealand, Vietnam, Brunei, Japan, Peru, and Chile.

Negotiators insist that progress is being made, but some in the business community are concerned that Canada may be left out of the deal unless it makes significant concessions on market access (including the dismantling of supply management in several agricultural sectors), restrictive intellectual property protections, and investor-state dispute settlement rules that allow companies to sue governments and potentially trump national courts.

The U.S. has been pressuring other countries to rapidly conclude a deal, though without “trade promotion authority”, which effectively locks it into a final agreement by removing the ability for Congress to modify the deal after others have signed on, the remaining countries are wary of revealing their best offer. Negotiations last week in Guam made only limited progress and a final meeting of government ministers has yet to be scheduled.

Delays will likely mean that Canadian business groups will continue to urge negotiators to move full steam ahead, but there are good reasons for caution.

Much of the business case focuses on concerns that failing to join the TPP will leave Canada out of a major trading block. Yet the reality is that Canada already has free trade agreements with nearly half of the TPP countries, including the U.S., Mexico, Chile, Peru, and South Korea. Moreover, Canada has engaged in free trade agreement negotiations with Japan and Singapore.

Free trade agreements with the likes of Brunei and Malaysia might provide some modest benefits to Canadian businesses, but Canadian trade interests are already well-covered within the much of the TPP community. Indeed, the costs of the TPP are a steep price to pay given the incremental gains that come from free trade access to a handful of additional countries.

The TPP cheerleading from business groups is somewhat puzzling given that the full text of the deal remains shrouded in secrecy. In other words, business groups are advocating for a deal they haven’t actually read or seen.

The concern is not just that the public has not had the chance to read the fine print of a deal that will affect every aspect of the Canadian economy. Rather, it is that the lack of transparency associated with the TPP virtually guarantees that it will be presented to Canadians on a “take it or leave it” basis with no informed public discussion or advance debate about the substantive terms.

Where elements of the agreement have become public through a series of high profile leaks, there has been ample reason for concern. The investor-state dispute settlement provisions could lead to a proliferation of lawsuits against the Canadian government by companies.

For example, pharmaceutical giant Eli Lilly is suing Canada for hundreds of millions in damages due Canadian patent law. The cost to the health care system of an expanded investor lawsuit system could be enormous as claims from other pharmaceutical companies could soon follow.

Similarly, leaked versions of TPP intellectual property text point to the extension of the term of copyright, which would mean that no new Canadian works enter the public domain for decades. Moreover, e-commerce rules may block countries from enacting domestic privacy protections that mandate that personal information be stored locally.

In short, the TPP hype doesn’t meet the reality. The new market access to a few countries comes at a significant cost, suggesting that Canadians should be skeptical about big claims on the still-secret deal.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post Good Reasons for Caution in Trans Pacific Trade Deal appeared first on Michael Geist.

a lesson from the Copyright Board

Fair Duty by Meera Nair - Sun, 2015/05/31 - 10:35

On 22 May 2015 the Copyright Board released its decision concerning tariff rates for copying carried out in provincial and territorial governments (excluding that of the Province of Quebec). The rates set by the Board fell far short of what Access Copyright had requested; some commentaries indicate that the returns would not cover the costs of the tariff proceedings.

The Board came to its decision via a number of factors, including: (i) scrutinizing Access Copyright’s claim of the extent of both its repertoire and business relations; (ii) deferring appropriately to fair dealing, given the integral nature of the exception within the system of copyright; and (iii) being mindful that copyright only applies when a substantial part of a work has been reproduced.

For commentary, see Michael Geist (here and here), Howard Knopf (here and here), Bob Tarantino (here) and Bobby Glushko (here). To which I add my own. The decision underlines that institutional systems of fair dealing, which includes assessment of substantiality (the threshold of copyright), remain contextual affairs. This lesson is not transparently evident, but it is there.

Copyright owners receive their rights through Section 3.1 of the Copyright Act: “For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever … .” Thus, if the reproduction is insubstantial then copyright does not arise.  This was explicitly stated in CCH Canadian (2004); as Tarantino writes : “… the Supreme Court of Canada [indicates] in its discussion of fair dealing, that where “the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.”

But as Tarantino (and the Copyright Board) remind us, the Supreme Court has also indicated, via Robinson v Cinar (2013), that substantiality is “a flexible notion … a matter of fact and degree”, to be decided “by its quality rather than its quantity.”

In its discussion about substantiality, the Board concluded that: “… without the benefit of a qualitative analysis and without even knowing which portions of a work were copied, … 1 to 2 pages of a work [to a maximum of 2.5% of the entire work] are a reasonable approximation in establishing non-substantiality (para. 204).” This measure has been greeted with enthusiasm but it is imperative that educational institutions not sleep walk into creating a de facto ceiling to insubstantiality. It bears emphasizing that the Board has contextualized its own remarks; this measure is appropriate when little or no information is available about the copying.

In terms of institutional practices–where post-secondary communities have endeavoured to develop resources and engage personnel, all to assist faculty in their understanding of appropriate uses of copyrighted material–it is viable to apply a qualitative assessment and allow for the possibility of copying more.

In Intellectual Property (2011), David Vaver makes a valuable point in connection to assessment of substantiality: “One should first screen out what cannot in law be a substantial part. ‘Part’ means ‘portion’ not ‘particle.’ … Copying ten such particles is as inoffensive as copying one (p.182-183).” As is often quoted, but appears not to receive sufficient consideration, facts are not eligible for copyright. Furthermore, processes are unlikely to meet the threshold of originality to be granted copyright. (Arguably, it is ill-advised to be creative when teaching students a process.) It is then likely that in fields of natural science, life science, mathematics and computer science, the threshold of substantiality may be higher. Even in fields typically considered to be more creative, it remains possible that a taking of more than 2.5% will not contravene substantiality when the qualitative analysis is undertaken.

The Copyright Board’s statement should be read in the same spirit as the Fair Dealing Guidelines developed by the Association of Universities and Colleges Canada (AUCC) and Colleges and Institutes Canada (CIC). Those instructions are baselines supporting legitimate unauthorized copying and more copying is always a possibility when individuals are suitably informed, or have access to informed support. It is the combination of baseline rules and discretionary support that constitute an institutional practice of fair dealing.

The Board takes note of the Supreme Court’s measured approach to unauthorized copying in institutional settings:

In CCH, the Supreme Court of Canada stated that fair dealing can be made out either by demonstrating that there exists a general practice that is based upon an enumerated fair-dealing purpose, and, is in fact, fair, or by demonstrating that a particular copying event … was fair dealing (para. 223, citing para. 63 of CCH Canadian).

It was the lack of a robust practice on the part of the provincial and territorial governments involved in the tariff negotiations that resulted in the Board’s scrupulous attention to every incident of copying in the evidentiary sample collected in agreement with Access Copyright and the governments (paras. 223-225).

Generally speaking, post-secondary educational practices in Canada are closely modeled upon the Great Library Access Policy that was at issue in CCH Canadian. Meaning, the policy prescribes minimums, with copying beyond the minimum contingent upon informed discussion. But informed discussion itself can unwittingly be curtailed. Fortunately, the Board reminds institutions to avoid slavish attention to rules to the extent of diminishing the contextual nature of fair dealing. As readers likely know, in CCH Canadian, the Supreme Court followed six factors with which to explore the fair dealing issue at hand; the Board emphasizes that these factors themselves must not become rigid: “… the list of factors … is not an exhaustive list, and fairness is a matter of impression.” The Board continues with a quotation from the work of Giuseppina D’Agostino:

[p]arties pleading fair dealing, and courts ultimately deciding those events, should exercise flexibility when interpreting fair dealing: raise factors germane to the case and assess evidence to support them. Whether there are six factors, seven factors, or four factors should not be the driving preoccupation … (para. 267 citing p. 197 of  The Copyright Pentalogy).

A timely reminder as the post-secondary community moves forward with solidifying their institutional systems of fair dealing.


Law, Privacy and Surveillance in Canada in the Post-Snowden Era

Michael Geist Law RSS Feed - Fri, 2015/05/29 - 08:11

Edward Snowden burst into the public consciousness in June 2013 with a series of astonishing revelations about U.S. surveillance activities. Snowden’s primary focus has centered on the U.S., however the steady stream of documents have laid bare the notable role of allied surveillance agencies, including the Communications Security Establishment (CSE), Canada’s signals intelligence agency. The Canadian-related leaks – including disclosures regarding surveillance over millions of Internet downloads, airport wireless networks, spying on the Brazilian government, and the facilitation of spying at the G8 and G20 meetings hosted in Toronto in 2010 – have unsurprisingly inspired some domestic discussion and increased media coverage on privacy and surveillance issues. Yet despite increased public and media attention, the Snowden leaks have thus far failed to generate sustained political debate in Canada.

I am delighted to report that this week the University of Ottawa Press published Law, Privacy and Surveillance in Canada in the Post-Snowden Era, an effort by some of Canada’s leading privacy, security, and surveillance scholars to provide a Canadian-centric perspective on the issues. The book is available for purchase and is also available in its entirety as a free download under a Creative Commons licence. This book is part of the UOP’s collection on law, technology and media (I am pleased to serve as the collection editor) that also includes my earlier collection on the Copyright Pentalogy and a new book from my colleagues Jane Bailey and Valerie Steeves titled eGirls, eCitizens. All books in the collection are available as open access PDF downloads.

An official launch event for the book is planned for Thursday, June 4th at 4:00 pm at the University of Ottawa. I’ll be part of a panel of contributors to the book discussing their chapters that will also include Craig Forcese, Jonathan Obar, Tamir Israel. The event is free and open to the public.

The nine contributions in the book are grouped into three parts: understanding surveillance in Canada, legal issues, and prospects for reform. I’ll write more about the contributions in upcoming posts, but two themes run throughout the book.

The first theme is secrecy. That secrecy is linked to surveillance may seem unsurprising, however secrecy now extends far beyond the specific surveillance programs or activities undertaken by Canada’s surveillance agencies. For example, Canada’s network architecture remains largely shrouded in secrecy, with the lack of domestic Internet exchange points creating a network framework that diverts considerable domestic traffic through the United States.  Moreover, Canada’s legal framework is often hidden behind ministerial authorizations that are not public, judicial decisions that are secret or heavily redacted, and government legal opinions that are privileged and confidential.

The second theme points to serious cracks in the Canadian surveillance law framework.  Contributors point to a myriad of problems with a legal framework that appears ill-suited to address modern day communications networks and privacy expectations. Several contributors raise concerns related to global networks, cross-border information sharing, the legal treatment of metadata, and the efficacy of current oversight mechanisms. As the fault lines become larger, a robust public and political debate is needed. While there is no shortage of potential changes – most authors offer their own recommendations – successfully transitioning toward a reform agenda represents an enormous challenge for all concerned with privacy and surveillance in Canada.

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