Feed aggregator

Is Canada Set to Cave on Copyright Term Extension in the TPP?

Michael Geist Law RSS Feed - Wed, 2015/07/29 - 14:24

As the negotiations on the Trans Pacific Partnership continue in Hawaii, the Electronic Frontier Foundation has published a guest post I wrote on the implications of copyright term extension for Canada. The EFF has also launched a campaign urging Canadians to speak out on the issue. With Prime Minister Harper stating today that Canada “cannot be left out” of the TPP, it seems increasingly likely that the government will cave on copyright term extension in order to be part of the TPP.

The post states:

The Trans-Pacific Partnership (TPP) negotiations have attracted considerable attention in Canada in recent weeks as the political consequences of dismantling agricultural protections loom large with a national elections scheduled for the fall. Much of the case for caving on those issues 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 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.

This is particularly true for an issue that in recent months has fallen off the public’s radar screen: copyright.

Reports last year from Wikileaks showed that Canada was the strongest opponent to TPP intellectual property demands from the United States, signalling its opposition to a proposal 56 times, more than any other country. The strongest opposition came in the patents, enforcement, trademarks, and copyright sections.

Why oppose so many U.S. demands?

Simply put, the U.S. wants Canada to eviscerate many of the recent reforms found in copyright and counterfeiting legislation. These demands focus on enhanced criminal liability for copyright infringement, eliminating the Canadian approach to Internet service provider liability, extending the term of copyright protection, and expanding patent protection. Canadian negotiators have thus far resisted many of the proposed changes, offering alternatives that are compatible with current domestic law.

An extension to the term of copyright would be particularly problematic, coming on the heels of an extension in the copyright term for sound recordings due to behind-the-scenes lobbying by the music industry. The sound recording term extension came without any public discussion or consultation, despite the fact that other studies have found that retroactive extension does not lead to increased creation and that the optimal term length should enable performers and record labels to recoup their investment, not extend into near-unlimited terms to the detriment of the public. For Canadian consumers, the extension could cost millions of dollars as works that were scheduled to come into the public domain will now remain locked down for decades.

The same is true should Canada extend the term of copyright for all works as part of the TPP. The term of copyright in Canada is presently life of the author plus an additional 50 years, a term that meets the international standard set by the Berne Convention. The issue of extending the term of copyright was discussed during the 2009 national copyright consultation, but the Canadian government wisely decided against it. Further, the European Union initially demanded that Canada extend the term of copyright in the Canada-EU Trade Agreement, but that too was effectively rebuffed.

From a policy perspective, there is no credible evidence that term extension will do anything other than leave Canadians with 20 years of no new works entering the public domain. Indeed, many economists have examined the issue and concluded that extending the term simply does not create an additional incentive for new creativity. Moreover, studies in other countries that have extended term have concluded that it ultimately costs consumers as additional royalties are sent out of the country. Given the potential to make works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to Canadian literature and history.

Some have speculated that a possible TPP agreement comes at the worst possible time politically since the deal will likely mandate major changes in the Canadian economy just as politicians are campaigning for re-election. Yet that is precisely why this may be the best time to put the issues squarely on the table. With the Conservatives, NDP, and Liberals battling for votes, now is the time to demand answers on where the parties stand on the TPP intellectual property provisions.

To date, each has offered carefully crafted, largely evasive answers on their general views of the TPP. Comments about “acting in the best interests of Canadians” or refraining from comment until the final deal is disclosed, is not good enough. As politicians go door-to-door in search of votes, it is time to ask all candidates and political parties about their views on specific TPP issues including copyright term extension, patent reforms, and intellectual property enforcement.

The post Is Canada Set to Cave on Copyright Term Extension in the TPP? appeared first on Michael Geist.

Mapping Out the CRTC Blueprint for Universal, Affordable Internet Access

Michael Geist Law RSS Feed - Tue, 2015/07/28 - 12:13

In the wake of nearly two decades of study, debate, task forces, and government programs, Canada’s telecommunications regulator has begun to unveil its blueprint for ensuring that all Canadians have access to affordable, high-speed Internet services. If the plan rolls out as many expect, Canadians in urban areas will benefit from a more competitive environment for high-speed fibre services, while consumers in rural and remote areas will be guaranteed access through a clear legal commitment to universal broadband service.

My weekly technology law column (Toronto Star version, homepage version) notes that part one of the blueprint was released last week as the Canadian Radio-television and Telecommunications Commission rejected opposition from large cable and telecom providers by ordering them to offer independent Internet providers wholesale access to emerging high-speed fibre networks.

The decision on wholesale access is the latest skirmish in a long-running battle pitting telecom giants such as Bell and Telus against upstart providers like TekSavvy and Distributel. Recognizing the advantages held by incumbent providers who enjoy direct connections to consumers (the so-called “last mile”), Canadian regulations foster a more competitive environment by requiring the incumbents to grant independent providers sufficient access to allow for alternative consumer choice.

The system has succeeded in developing some credible independents, yet the market remains dominated by the larger players. Part of the problem has been the steady stream of technical and regulatory challenges faced by smaller entrants, who seemingly have little choice but to take each dispute to the CRTC, leading to costlier offerings, slower speeds, and less product differentiation.

The best-known dispute involved “usage based billing” in 2011, which threatened to eliminate independent provider plans with unlimited data and generated petitions involving hundreds of thousands of Canadians. The federal government responded quickly, with then-Industry Minister Tony Clement pressuring the Commission to reconsider a decision that placed the smaller providers at a distinct disadvantage.

The latest CRTC ruling was less about existing offerings and more about the future. As more consumers shift to higher speed fibre plans, independent providers argued that similar wholesale regulations were needed to ensure that they could remain competitive. The incumbents countered by claiming that regulated access would decrease investment and that wireless and satellite services already provided viable alternatives.

The Commission disagreed, structuring the future of wholesale access in a manner that creates incentives for both incumbents and independent providers to invest in their networks. Moreover, it noted that wireless and satellite Internet services “typically have limited bandwidth capacity and higher prices compared to retail wireline services and, as such, are generally not effective substitutes.”

The decision will take some time to take full effect – follow-up proceedings on the details are still to come – but the CRTC has now created a framework to facilitate greater competition for Internet access as consumers migrate to faster fibre services. While that addresses the competition concerns in urban areas, it does not solve the access problems in rural and remote communities where basic affordable broadband remains an issue.

Solving the access problem likely falls to the other big CRTC telecom hearing on basic telecommunications services. Most participants agree that a 21st century definition of basic services should include broadband access. Where there is disagreement, however, is over what to do about it.

Consumer groups have called for the creation of two new subsidy programs to ensure that all Canadians have access to high-speed Internet services and that there is financial support for low-income households. Telecom providers have warned against new CRTC-backed funding mechanisms, arguing that the government should lead with targeted programs.

For Canada’s telecom regulator, finding the right formula for ensuring affordable universal access is essential to completing the blueprint for the next decade of broadband Internet in Canada, which should feature a more robust competitive environment in urban areas and reasonably priced access for everyone else.

The post Mapping Out the CRTC Blueprint for Universal, Affordable Internet Access appeared first on Michael Geist.

Mapping Out the CRTC Blueprint for Universal, Affordable Internet Access

Michael Geist Law RSS Feed - Tue, 2015/07/28 - 12:10

Appeared in the Toronto Star on July 25, 2015 as CRTC Looks to the Future With Ruling on High-Speed Internet Access

In the wake of nearly two decades of study, debate, task forces, and government programs, Canada’s telecommunications regulator has begun to unveil its blueprint for ensuring that all Canadians have access to affordable, high-speed Internet services. If the plan rolls out as many expect, Canadians in urban areas will benefit from a more competitive environment for high-speed fibre services, while consumers in rural and remote areas will be guaranteed access through a clear legal commitment to universal broadband service.

Part one of the blueprint was released last week as the Canadian Radio-television and Telecommunications Commission rejected opposition from large cable and telecom providers by ordering them to offer independent Internet providers wholesale access to emerging high-speed fibre networks.

The decision on wholesale access is the latest skirmish in a long-running battle pitting telecom giants such as Bell and Telus against upstart providers like TekSavvy and Distributel. Recognizing the advantages held by incumbent providers who enjoy direct connections to consumers (the so-called “last mile”), Canadian regulations foster a more competitive environment by requiring the incumbents to grant independent providers sufficient access to allow for alternative consumer choice.

The system has succeeded in developing some credible independents, yet the market remains dominated by the larger players. Part of the problem has been the steady stream of technical and regulatory challenges faced by smaller entrants, who seemingly have little choice but to take each dispute to the CRTC, leading to costlier offerings, slower speeds, and less product differentiation.

The best-known dispute involved “usage based billing” in 2011, which threatened to eliminate independent provider plans with unlimited data and generated petitions involving hundreds of thousands of Canadians. The federal government responded quickly, with then-Industry Minister Tony Clement pressuring the Commission to reconsider a decision that placed the smaller providers at a distinct disadvantage.

The latest CRTC ruling was less about existing offerings and more about the future. As more consumers shift to higher speed fibre plans, independent providers argued that similar wholesale regulations were needed to ensure that they could remain competitive. The incumbents countered by claiming that regulated access would decrease investment and that wireless and satellite services already provided viable alternatives.

The Commission disagreed, structuring the future of wholesale access in a manner that creates incentives for both incumbents and independent providers to invest in their networks. Moreover, it noted that wireless and satellite Internet services “typically have limited bandwidth capacity and higher prices compared to retail wireline services and, as such, are generally not effective substitutes.”

The decision will take some time to take full effect – follow-up proceedings on the details are still to come – but the CRTC has now created a framework to facilitate greater competition for Internet access as consumers migrate to faster fibre services. While that addresses the competition concerns in urban areas, it does not solve the access problems in rural and remote communities where basic affordable broadband remains an issue.

Solving the access problem likely falls to the other big CRTC telecom hearing on basic telecommunications services. Most participants agree that a 21st century definition of basic services should include broadband access. Where there is disagreement, however, is over what to do about it.

Consumer groups have called for the creation of two new subsidy programs to ensure that all Canadians have access to high-speed Internet services and that there is financial support for low-income households. Telecom providers have warned against new CRTC-backed funding mechanisms, arguing that the government should lead with targeted programs.

For Canada’s telecom regulator, finding the right formula for ensuring affordable universal access is essential to completing the blueprint for the next decade of broadband Internet in Canada, which should feature a more robust competitive environment in urban areas and reasonably priced access for everyone else.


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 Mapping Out the CRTC Blueprint for Universal, Affordable Internet Access appeared first on Michael Geist.

Analyzing the 2013 Bitcoin fork: centralized decision-making saved the day

Freedom to Tinker - Tue, 2015/07/28 - 10:25
On March 11, 2013, Bitcoin experienced a technical crisis. Versions 0.7 and 0.8 of the software diverged from each other in behavior due to a bug, causing the block chain to “fork” into two. Considering how catastrophic a hard fork can be, the crisis was resolved quickly with remarkably little damage owing to the exemplary […]

More Than Milk: Why Agricultural Protections Are Just the Tip of the TPP Iceberg

Michael Geist Law RSS Feed - Mon, 2015/07/20 - 08:33

The Trans Pacific Partnership (TPP), a proposed trade agreement that encompasses nearly 40 per cent of world GDP, heads to Hawaii later this month for ministerial-level negotiations. According to media reports, this may be the final round of talks, with countries expected to address the remaining contentious issues with their “best offers” in the hope that an agreement can be reached. Canadian coverage of the TPP has centred primarily on U.S. demands for changes to longstanding agricultural market safeguards.

With a national election a few months away, my weekly technology law column (Toronto Star version, homepage version) notes the prospect of overhauling some of Canada’s biggest business sectors has politicians from all parties waffling on the agreement. Canadian International Trade Minister Ed Fast, who will lead the Canadian delegation, maintains that the government has not agreed to dismantle supply management protections and that it will only enter into an agreement if the deal is in the best interests of the country. The opposition parties are similarly hesitant to stake out positions on key issues, noting that they cannot judge the TPP until it is concluded and publicly released.

While the agricultural issues may dominate debate, it is only one unresolved issue of many. Indeed, the concerns associated with the agreement go far beyond the supply of products such as milk and chickens.

First, a recently leaked version of the intellectual property chapter revealed that Canada would have to make significant changes to its copyright and patent rules. The TPP requires Canada to extend the term of copyright to life of the author plus an additional 70 years. The law is currently set at life of the author plus 50 years, which meets the international standard found in the Berne Convention.

The extension in the term of copyright, which has generated fear in other TPP countries such as Japan, New Zealand, and Malaysia, would mean that no new works would enter the public domain in Canada for decades. The result would be higher costs for both consumers and educational institutions, with most of the additional royalties flowing out of the country.

The deal reportedly also penalizes Canada for its “notice-and-notice” system for claims of infringement on the Internet. The system has been in effect since the start of the year and has been credited with significantly reducing Canadian piracy rates. The Canadian approach differs from that found in the U.S., however, leading to additional demands that Canada establish enforcement provisions targeting Internet providers and search engines.

The patent provisions in the TPP have sparked concern from health and access to medicines groups around the world. With requirements that would delay entry of generic pharmaceuticals into the market, the TPP threatens to create huge additional health care costs.

In fact, the agreement would also expand the right of pharmaceutical companies to sue governments over national laws, creating the prospect of more lawsuits similar to the $500 million lawsuit launched by pharmaceutical giant Eli Lilly against the Government of Canada.

With the media focus on agriculture, the TPP’s implications for privacy have also been largely overlooked. Provinces such as British Columbia and Nova Scotia have enacted privacy safeguards in recent years that are designed to keep Canadian data in Canada. These rules have become particularly important in the aftermath of the Edward Snowden surveillance revelations, since the transmission and hosting of personal information outside the country raises genuine privacy concerns. Yet the TPP views such privacy protections as trade barriers and seeks to establish new limits on the ability of countries to restrict the free flow of information across national borders.

New rules related to copyright, patents, privacy, and investor lawsuits have serious implications for the rights of Canadians as well as for consumer, health care, and education costs. With the TPP in the final stages, Canadians deserve better than canned responses from political parties and a debate limited to the impact of the deal on the agricultural sector.

The post More Than Milk: Why Agricultural Protections Are Just the Tip of the TPP Iceberg appeared first on Michael Geist.

Agricultural Implications Just the Tip of the TPP Iceberg

Michael Geist Law RSS Feed - Mon, 2015/07/20 - 08:31

Appeared in the Toronto Star on July 18, 2015 as Pacific Trade Deal Could Raise Health Costs, Lower Privacy Protection

The Trans Pacific Partnership (TPP), a proposed trade agreement that encompasses nearly 40 per cent of world GDP, heads to Hawaii later this month for ministerial-level negotiations. According to media reports, this may be the final round of talks, with countries expected to address the remaining contentious issues with their “best offers” in the hope that an agreement can be reached. Canadian coverage of the TPP has centred primarily on U.S. demands for changes to longstanding agricultural market safeguards.

With a national election a few months away, the prospect of overhauling some of Canada’s biggest business sectors has politicians from all parties waffling on the agreement. Canadian International Trade Minister Ed Fast, who will lead the Canadian delegation, maintains that the government has not agreed to dismantle supply management protections and that it will only enter into an agreement if the deal is in the best interests of the country. The opposition parties are similarly hesitant to stake out positions on key issues, noting that they cannot judge the TPP until it is concluded and publicly released.

While the agricultural issues may dominate debate, it is only one unresolved issue of many. Indeed, the concerns associated with the agreement go far beyond the supply of products such as milk and chickens.

First, a recently leaked version of the intellectual property chapter revealed that Canada would have to make significant changes to its copyright and patent rules. The TPP requires Canada to extend the term of copyright to life of the author plus an additional 70 years. The law is currently set at life of the author plus 50 years, which meets the international standard found in the Berne Convention.

The extension in the term of copyright, which has generated fear in other TPP countries such as Japan, New Zealand, and Malaysia, would mean that no new works would enter the public domain in Canada for decades. The result would be higher costs for both consumers and educational institutions, with most of the additional royalties flowing out of the country.

The deal reportedly also penalizes Canada for its “notice-and-notice” system for claims of infringement on the Internet. The system has been in effect since the start of the year and has been credited with significantly reducing Canadian piracy rates. The Canadian approach differs from that found in the U.S., however, leading to additional demands that Canada establish enforcement provisions targeting Internet providers and search engines.

The patent provisions in the TPP have sparked concern from health and access to medicines groups around the world. With requirements that would delay entry of generic pharmaceuticals into the market, the TPP threatens to create huge additional health care costs.

In fact, the agreement would also expand the right of pharmaceutical companies to sue governments over national laws, creating the prospect of more lawsuits similar to the $500 million lawsuit launched by pharmaceutical giant Eli Lilly against the Government of Canada.

With the media focus on agriculture, the TPP’s implications for privacy have also been largely overlooked. Provinces such as British Columbia and Nova Scotia have enacted privacy safeguards in recent years that are designed to keep Canadian data in Canada. These rules have become particularly important in the aftermath of the Edward Snowden surveillance revelations, since the transmission and hosting of personal information outside the country raises genuine privacy concerns. Yet the TPP views such privacy protections as trade barriers and seeks to establish new limits on the ability of countries to restrict the free flow of information across national borders.

New rules related to copyright, patents, privacy, and investor lawsuits have serious implications for the rights of Canadians as well as for consumer, health care, and education costs. With the TPP in the final stages, Canadians deserve better than canned responses from political parties and a debate limited to the impact of the deal on the agricultural sector.

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 Agricultural Implications Just the Tip of the TPP Iceberg appeared first on Michael Geist.

Too many SSNs floating around

Freedom to Tinker - Tue, 2015/07/14 - 21:31
In terms of impact, the OPM data breach involving security clearance information is almost certainly the most severe data breach in American history. The media has focused too much on social security numbers in its reporting, but is slowly starting to understand the bigger issues for anyone who has a clearance, or is a relative […]

Uber Battle the Latest Chapter in the Internet’s Never-Ending Story

Michael Geist Law RSS Feed - Mon, 2015/07/13 - 11:35

For the past two decades, it has been the Internet’s never-ending story. Established, successful businesses face Internet upstarts who leverage the advantages of a global network and new communications technology to offer better prices, more choice or innovative services.

In the 1990s, it was online retailers such as Amazon, who presented more selection at lower prices than most bookstores could offer. In the 2000s, Wikipedia brought the decades-old encyclopedia business to an end, online music services provided greater convenience than conventional record stores, and Internet telephony technologies used by companies like Skype changed the rules of international voice and video calls. Today, services such as Uber, AirBnB, and Netflix have upended the taxi, hotel, and broadcast worlds.

My weekly technology law column (Toronto Star version, homepage version) notes that in these David vs. Goliath type battles, the established businesses don’t quietly fade away. Using their remaining influence, they often look to laws and regulations that increase costs, prohibit activities, restrict consumers, or regulate pricing to create barriers for the new entrants.

For example, Amazon was initially prohibited from operating in Canada as opponents cited restrictions on the foreign ownership of booksellers. The company proceeded to launch here in 2002 without a physical presence (using Canada Post for order fulfillment) and only formally entered the country over the objection of the Canadian Bookseller Association in 2010.

Similarly, the Canadian Radio-television and Telecommunications Commission tried to regulate the pricing of Internet telephone services in Canada in 2005 before the federal government overruled it on the issue.

Given that history, the current fight against Uber, the popular app-based car service, should come as little surprise. The battle is being waged in city halls around the world as the established businesses lobby for regulations that would either block the service or require price controls to increase costs.

When faced with similar demands, some governments have tried to block the new competitors altogether through website blocking (Quebec plans to block access to online gambling sites in order to protect its licensed service) or restrictions on using new technologies (recent calls from companies to address the use of virtual private networks to stop access to U.S. Netflix). Those efforts are not only destined to fail, but they also create significant restrictions on Charter of Rights protected freedoms.

Governments that resist lobbying pressures remember that the public interest should sit at the heart of any regulatory reform. In many instances, that means getting out of the way as new competition often means better prices and more choice for consumers.

In other cases, governments will need to ensure that established businesses do not wield their existing market power in an anti-competitive manner. For example, net neutrality rules that stop telecom companies from granting themselves undue preferences give new competitors a fighting chance in the market.

Too many times, though, the public interest is cast aside in favour of rules that hamstring new competitors and cost consumers. From copyright reforms that blocked online video retransmitter iCraveTV from operating in Canada nearly 15 years ago to continued calls for Canadian content requirements and fees on online video services such as Netflix, the goal is too often to use law to stop or stall new Internet-enabled competition.

That is the Internet’s never-ending story. As officials across the country face demands to regulate or ban Uber, they should remember that the goal of regulation is not to sustain existing businesses, but rather to act in the public interest. In the case of taxi services, safety-related rules such as mandated insurance, road-appropriate vehicles, and GPS capability meets that criteria.

Regulating pricing, banning services, or requiring costly licenses surely does not.

The post Uber Battle the Latest Chapter in the Internet’s Never-Ending Story appeared first on Michael Geist.

Not the First Time We’ve Heard the Uber Story

Michael Geist Law RSS Feed - Mon, 2015/07/13 - 11:33

Appeared in the Toronto Star on July 11, 2015 as Not the First Time We’ve Heard the Uber Story

For the past two decades, it has been the Internet’s never-ending story. Established, successful businesses face Internet upstarts who leverage the advantages of a global network and new communications technology to offer better prices, more choice or innovative services.

In the 1990s, it was online retailers such as Amazon, who presented more selection at lower prices than most bookstores could offer. In the 2000s, Wikipedia brought the decades-old encyclopedia business to an end, online music services provided greater convenience than conventional record stores, and Internet telephony technologies used by companies like Skype changed the rules of international voice and video calls. Today, services such as Uber, AirBnB, and Netflix have upended the taxi, hotel, and broadcast worlds.

In these David vs. Goliath type battles, the established businesses don’t quietly fade away. Using their remaining influence, they often look to laws and regulations that increase costs, prohibit activities, restrict consumers, or regulate pricing to create barriers for the new entrants.

For example, Amazon was initially prohibited from operating in Canada as opponents cited restrictions on the foreign ownership of booksellers. The company proceeded to launch here in 2002 without a physical presence (using Canada Post for order fulfillment) and only formally entered the country over the objection of the Canadian Bookseller Association in 2010.

Similarly, the Canadian Radio-television and Telecommunications Commission tried to regulate the pricing of Internet telephone services in Canada in 2005 before the federal government overruled it on the issue.

Given that history, the current fight against Uber, the popular app-based car service, should come as little surprise. The battle is being waged in city halls around the world as the established businesses lobby for regulations that would either block the service or require price controls to increase costs.

When faced with similar demands, some governments have tried to block the new competitors altogether through website blocking (Quebec plans to block access to online gambling sites in order to protect its licensed service) or restrictions on using new technologies (recent calls from companies to address the use of virtual private networks to stop access to U.S. Netflix). Those efforts are not only destined to fail, but they also create significant restrictions on Charter of Rights protected freedoms.

Governments that resist lobbying pressures remember that the public interest should sit at the heart of any regulatory reform. In many instances, that means getting out of the way as new competition often means better prices and more choice for consumers.

In other cases, governments will need to ensure that established businesses do not wield their existing market power in an anti-competitive manner. For example, net neutrality rules that stop telecom companies from granting themselves undue preferences give new competitors a fighting chance in the market.

Too many times, though, the public interest is cast aside in favour of rules that hamstring new competitors and cost consumers. From copyright reforms that blocked online video retransmitter iCraveTV from operating in Canada nearly 15 years ago to continued calls for Canadian content requirements and fees on online video services such as Netflix, the goal is too often to use law to stop or stall new Internet-enabled competition.

That is the Internet’s never-ending story. As officials across the country face demands to regulate or ban Uber, they should remember that the goal of regulation is not to sustain existing businesses, but rather to act in the public interest. In the case of taxi services, safety-related rules such as mandated insurance, road-appropriate vehicles, and GPS capability meets that criteria.

Regulating pricing, banning services, or requiring costly licenses surely does not.

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 Not the First Time We’ve Heard the Uber Story appeared first on Michael Geist.

Why the New Canadian Telecom Transparency Rules Fall Short

Michael Geist Law RSS Feed - Tue, 2015/07/07 - 10:02

Canadians have become increasingly troubled by reports revealing that telecom and Internet companies receive millions of requests for subscriber data from a wide range of government departments. In light of public concern, some Internet and telecom companies have begun to issue regular transparency reports that feature aggregate data on the number of requests they receive and the disclosures they make.

The transparency reports from companies such as Rogers, Telus, and TekSavvy have helped shed light on government demands for information and on corporate disclosure practices. However, they also paint an incomplete picture since companies have offered up inconsistent data and some of the largest, including Bell, have thus far refused to come clean on past requests and disclosures.

My weekly technology law column notes that the Privacy Commissioner of Canada released a report last week that showed that all transparency reports are not created equal. For example, TekSavvy has provided information on the content of the disclosures, the number of accounts affected, and instances where users were notified. By contrast, companies such as Rogers, Telus, Allstream, and Wind Mobile have not disclosed this information, offering more limited data.

In an effort to create greater uniformity in transparency reporting, Industry Canada has just released new transparency reporting guidelines. The government states that it has released the guidelines “to help private organizations be open with their customers, regarding the management and sharing of their personal information with government, while respecting the work of law enforcement, national security agencies, and regulatory authorities.”

While the Privacy Commissioner of Canada lauded their release, the guidelines raise several significant concerns.

First, for rules purporting to enhance transparency, their development was surprisingly secretive. The Privacy Commissioner states that they were developed in consultation with the government and “industry stakeholders”, yet the public and privacy groups appear to have been excluded from the process. Given the importance of guidelines that are fundamentally about the rights of the public to know when their personal information is being disclosed, a secretive, exclusionary process badly taints the final result.

Second, the guidelines effectively create new limitations on the transparency where previously none existed. For example, TekSavvy’s transparency report provides specific aggregated number of disclosures (e.g. 52 requests for data on customer usage of devices in 2012 and 2013). The government guidelines prohibit specific disclosures where the number is less than 100, requiring companies to instead present a range of 0 – 100.  The result is less transparency, not more. Moreover, the guidelines prohibit regional information (it must be Canada-wide) and their release must be delayed by at least six months from the time of the original request.

Third, the limits on transparency come without an appropriate regulatory or legal process. The government could have addressed the issue of transparency reporting within the Digital Privacy Act, which recently received royal assent. Indeed, the issue was repeatedly discussed during committee hearings. Yet by adopting a closed-door, non-transparent approach, the government has pushed new limitations on Internet and telecom companies without the opportunity for public comment or debate.

Fourth, disclosure under the guidelines is not mandated as the government has been careful to note that disclosure is merely an option. However, the law requires organizations to be open about their privacy practices, which arguably would include transparency reporting on personal information requests and disclosures.  Further, individuals are entitled to demand that companies provide access to their information file, including details on how their personal information is used and whether it has been disclosed. By emphasizing the voluntary nature of the guidelines and declining to establish a clear legal requirement, the government may have actually weakened corporate transparency obligations.

Canadian companies have been slow to respond to the increased demand for greater transparency in how their personal information is collected, used, and disclosed. The new guidelines represent a good first step in standardizing the public data, but they ultimately fall short due to a secretive process, new limits on disclosure, and the absence of an unequivocal requirement to keep the public informed.

The post Why the New Canadian Telecom Transparency Rules Fall Short appeared first on Michael Geist.

Telecom Transparency Reporting Fails to Satisfy

Michael Geist Law RSS Feed - Tue, 2015/07/07 - 10:00

Appeared in the Toronto Star on July 4, 2015 as Telecom Transparency Reporting Fails to Satisfy

Canadians have become increasingly troubled by reports revealing that telecom and Internet companies receive millions of requests for subscriber data from a wide range of government departments. In light of public concern, some Internet and telecom companies have begun to issue regular transparency reports that feature aggregate data on the number of requests they receive and the disclosures they make.

The transparency reports from companies such as Rogers, Telus, and TekSavvy have helped shed light on government demands for information and on corporate disclosure practices. However, they also paint an incomplete picture since companies have offered up inconsistent data and some of the largest, including Bell, have thus far refused to come clean on past requests and disclosures.

The Privacy Commissioner of Canada released a report last week that showed that all transparency reports are not created equal. For example, TekSavvy has provided information on the content of the disclosures, the number of accounts affected, and instances where users were notified. By contrast, companies such as Rogers, Telus, Allstream, and Wind Mobile have not disclosed this information, offering more limited data.

In an effort to create greater uniformity in transparency reporting, Industry Canada has just released new transparency reporting guidelines. The government states that it has released the guidelines “to help private organizations be open with their customers, regarding the management and sharing of their personal information with government, while respecting the work of law enforcement, national security agencies, and regulatory authorities.”

While the Privacy Commissioner of Canada lauded their release, the guidelines raise several significant concerns.

First, for rules purporting to enhance transparency, their development was surprisingly secretive. The Privacy Commissioner states that they were developed in consultation with the government and “industry stakeholders”, yet the public and privacy groups appear to have been excluded from the process. Given the importance of guidelines that are fundamentally about the rights of the public to know when their personal information is being disclosed, a secretive, exclusionary process badly taints the final result.

Second, the guidelines effectively create new limitations on the transparency where previously none existed. For example, TekSavvy’s transparency report provides specific aggregated number of disclosures (e.g. 52 requests for data on customer usage of devices in 2012 and 2013). The government guidelines prohibit specific disclosures where the number is less than 100, requiring companies to instead present a range of 0 – 100.  The result is less transparency, not more. Moreover, the guidelines prohibit regional information (it must be Canada-wide) and their release must be delayed by at least six months from the time of the original request.

Third, the limits on transparency come without an appropriate regulatory or legal process. The government could have addressed the issue of transparency reporting within the Digital Privacy Act, which recently received royal assent. Indeed, the issue was repeatedly discussed during committee hearings. Yet by adopting a closed-door, non-transparent approach, the government has pushed new limitations on Internet and telecom companies without the opportunity for public comment or debate.

Fourth, disclosure under the guidelines is not mandated as the government has been careful to note that disclosure is merely an option. However, the law requires organizations to be open about their privacy practices, which arguably would include transparency reporting on personal information requests and disclosures.  Further, individuals are entitled to demand that companies provide access to their information file, including details on how their personal information is used and whether it has been disclosed. By emphasizing the voluntary nature of the guidelines and declining to establish a clear legal requirement, the government may have actually weakened corporate transparency obligations.

Canadian companies have been slow to respond to the increased demand for greater transparency in how their personal information is collected, used, and disclosed. The new guidelines represent a good first step in standardizing the public data, but they ultimately fall short due to a secretive process, new limits on disclosure, and the absence of an unequivocal requirement to keep the public informed.

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 Telecom Transparency Reporting Fails to Satisfy appeared first on Michael Geist.

Quebec’s Website Blocking Plan Gambles With the Open Internet

Michael Geist Law RSS Feed - Tue, 2015/06/30 - 10:53

For governments accustomed to wielding their power to regulate local activity, the Internet has long been a source of frustration. From music sites to Uber to AirBNB, online services represent an enormous challenge to conventional government regulation, which typically relies on a jurisdictional hook to compel compliance.

While most reputable global companies can ill-afford to simply ignore laws or court orders, there are still websites that operate largely beyond the reach of government regulation. In response, some governments have attempted to regulate online behaviour, ordering Internet providers to block access to offending websites.

My weekly technology law column (Toronto Star version, homepage version) notes that Canadians have generally been spared website blocking initiatives due in part to the Telecommunications Act, which prohibits carriers from controlling “the content or influence the meaning or purpose of telecommunications carried by it for the public.” That rule means that Internet providers are effectively prohibited from unilaterally blocking content.

But what if a Canadian government ordered Internet providers to do so?

The federal government has refrained from mandating blocking (the closest it has come has been supporting a private sector initiative to stop access to child pornography images), but earlier this year the Government of Quebec announced plans in its budget to require Internet providers to block access to online gambling sites. The list of blocked sites will be developed by Loto-Québec, a government agency.

The budget states:

A legislative amendment will be proposed to introduce an illegal website filtering measure. In accordance with this measure, Internet service providers will not be allowed to provide access to an online gaming and gambling website whose name is on a list of websites that are to be blocked, drawn up by Loto-Québec.

The government apparently views this initiative as a revenue enhancing measure because it wants to direct gamblers to its own Espacejeux, the Loto-Québec run online gaming site. A November 2014 report found that Espacejeux was not meeting revenue targets since people were using other sites. The government believes that the website blocking will increase government revenues by $13.5 million in 2016-17 and $27 million per year thereafter.

The Quebec decision is particularly surprising given recent recommendations from its own working group on online gambling. It studied the state of online gambling in the province and concluded that the best approach was not to block access to other sites, but rather to invite them all into the market. The key recommendation:

the Working Group believes that in order to control the online gambling market, protect consumers and generate revenues for the government, the best solution for the government is to establish clear rules and open up the online gambling market to private operators. In fact, the best solution is to establish an online gambling licensing system.

Rather than opening the market though, Quebec is instead seeking to censor the Internet for its own commercial gain by ordering Internet providers to block access to any unregulated sites. The plan is likely face a legal challenge, both on free speech and jurisdictional grounds, since the federal government has exclusive jurisdiction over telecommunications regulation.

Since the announcement in April, there has been surprisingly little public commentary about the Quebec plan. Quebec-based Internet providers may have privately raised concerns, but consumer groups have remained largely silent. That needs to change, since Quebec’s plan to block access to gambling sites could easily expand to other areas.

Once blocking Internet content is established, it is easy to envision governments moving down a slippery slope, requiring the blocking of sites that are alleged to infringe copyright or blocking e-commerce sites that are not bilingual or do not pay provincial taxes.  If that happened, the open Internet in Canada would be placed at risk of unprecedented government intervention into how Internet providers manage their networks and what sites Canadians are able to access.

The post Quebec’s Website Blocking Plan Gambles With the Open Internet appeared first on Michael Geist.

Quebec Gambles with the Open Internet

Michael Geist Law RSS Feed - Tue, 2015/06/30 - 10:53

Appeared in the Toronto Star on June 27, 2015 as Quebec Gambles With the Open Internet

For governments accustomed to wielding their power to regulate local activity, the Internet has long been a source of frustration. From music sites to Uber to AirBNB, online services represent an enormous challenge to conventional government regulation, which typically relies on a jurisdictional hook to compel compliance.

While most reputable global companies can ill-afford to simply ignore laws or court orders, there are still websites that operate largely beyond the reach of government regulation. In response, some governments have attempted to regulate online behaviour, ordering Internet providers to block access to offending websites.

Canadians have generally been spared website blocking initiatives due in part to the Telecommunications Act, which prohibits carriers from controlling “the content or influence the meaning or purpose of telecommunications carried by it for the public.” That rule means that Internet providers are effectively prohibited from unilaterally blocking content.

But what if a Canadian government ordered Internet providers to do so?

The federal government has refrained from mandating blocking (the closest it has come has been supporting a private sector initiative to stop access to child pornography images), but earlier this year the Government of Quebec announced plans in its budget to require Internet providers to block access to online gambling sites. The list of blocked sites will be developed by Loto-Québec, a government agency.

The budget states:

A legislative amendment will be proposed to introduce an illegal website filtering measure. In accordance with this measure, Internet service providers will not be allowed to provide access to an online gaming and gambling website whose name is on a list of websites that are to be blocked, drawn up by Loto-Québec.

The government apparently views this initiative as a revenue enhancing measure because it wants to direct gamblers to its own Espacejeux, the Loto-Québec run online gaming site. A November 2014 report found that Espacejeux was not meeting revenue targets since people were using other sites. The government believes that the website blocking will increase government revenues by $13.5 million in 2016-17 and $27 million per year thereafter.

The Quebec decision is particularly surprising given recent recommendations from its own working group on online gambling. It studied the state of online gambling in the province and concluded that the best approach was not to block access to other sites, but rather to invite them all into the market. The key recommendation:

the Working Group believes that in order to control the online gambling market, protect consumers and generate revenues for the government, the best solution for the government is to establish clear rules and open up the online gambling market to private operators. In fact, the best solution is to establish an online gambling licensing system.

Rather than opening the market though, Quebec is instead seeking to censor the Internet for its own commercial gain by ordering Internet providers to block access to any unregulated sites. The plan is likely face a legal challenge, both on free speech and jurisdictional grounds, since the federal government has exclusive jurisdiction over telecommunications regulation.

Since the announcement in April, there has been surprisingly little public commentary about the Quebec plan. Quebec-based Internet providers may have privately raised concerns, but consumer groups have remained largely silent. That needs to change, since Quebec’s plan to block access to gambling sites could easily expand to other areas.

Once blocking Internet content is established, it is easy to envision governments moving down a slippery slope, requiring the blocking of sites that are alleged to infringe copyright or blocking e-commerce sites that are not bilingual or do not pay provincial taxes.  If that happened, the open Internet in Canada would be placed at risk of unprecedented government intervention into how Internet providers manage their networks and what sites Canadians are able to access.

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 Quebec Gambles with the Open Internet appeared first on Michael Geist.

CBC Seeks Takedown of Conservative Ad, Claims “No One” Can Re-Use Its News Clips Without Permission

Michael Geist Law RSS Feed - Mon, 2015/06/29 - 08:45

Last week, the Conservative party posted an offensive advertisement on YouTube and Facebook titled Justin Trudeau on ISIS. The ad starts with ISIS music and images of prisoners about be drowned or beheaded before running short edited clips from a 13 minute interview with Trudeau and the CBC’s Terry Milewski. The advertisement has rightly generated a backlash with questions about whether it violates Bill C-51′s prohibitions on terrorist propaganda. Conservative Party campaign spokesman Kory Teneycke argues that it is little different than newscasts involving ISIS, but watching the combination of music and imagery, it clearly goes well beyond conventional news reporting on ISIS. Indeed, even if it fall short of violating Bill C-51, the ad is in terrible taste, treating images of victims as mere props for political gain.

Beyond the C-51 issue, the CBC waded into the issue late on Friday, as Jennifer McGuire, the CBC News Editor-in-Chief, posted a blog indicating that the broadcaster has asked YouTube and Facebook to take down the ad. The ostensible reason?  Copyright. The CBC has again raised the issue of re-use of news coverage in political advertising, claiming that it is determined to limit re-use since “our integrity as providers of serious, independent coverage of political parties and governments rests on this.” In light of this position, the CBC says its guiding principle is:

No one – no individual candidate or political party, and no government, corporation or NGO – may re-use our creative and copyrighted property without our permission. This includes our brands, our talent and our content.

The CBC is simply wrong. Its guiding principle is wrong and its attempt to use copyright to take down an offensive advertisement is wrong. The claim brings to mind the story from last fall involving a government proposal (that was shelved) to create a specific copyright exception for the use of news content in political advertising.

I argued then that no exception was needed because copyright already provides latitude for political parties to use works without permission. That is because copyright does not provide the absolute rights suggested by the CBC. The CBC obviously has rights as the copyright owner in its broadcast, but those rights are constrained by limitations and exceptions under the law that allow for use of its work without the need for further permission. The CBC itself (like all broadcasters) regularly relies upon those exceptions to use the work of others without permission. Similarly, I just used the exceptions to quote the CBC policy in this blog post without their permission.

In this case, there are several arguments that the use is permitted under the Copyright Act.  First, the clips run for about 22 seconds out of a 13 minute interview. As the Copyright Board of Canada discussed in a recent decision, an infringement claim only arises where the copying involves a substantial part of the work. By implication, an insubstantial amount does not give rise to a copyright claim. The Copyright Board ruled that 2.5% of a written work was insubstantial. In this case, the total of 22 seconds are about 2.8% of the total interview. There is a plausible argument that the clips involved are insubstantial and do not even trigger a copyright claim.

Second, in the event that the clips are viewed as a substantial part of the work, there are exceptions that may apply. The most important is fair dealing, which is the Canadian equivalent of fair use. Fair dealing involves a two-step test. The first is whether the dealing or use is for an appropriate purpose. This requires one of the purposes in the Act: research, private study, news reporting, criticism, review, education, parody, or satire. In this case, criticism, research (on Trudeau’s political positions), or even news reporting (of those positions) might apply. The second part of the test involves an examination of six factors: the purpose or goal of the dealing, the character, the amount copied, alternatives, the nature of the dealing, the its effect (which often involves consideration of the economic impact). Given the qualifying purpose, the limited amount copied, the lack of alternatives, and the limited economic effect, there is a strong fair dealing argument here.

In fact, there are other exceptions that might also apply, including the new non-commercial user generated content provision that is explicitly designed to allow for the use of copyrighted works to create new works for non-commercial purposes. The UGC provision is available to individuals (which might preclude its use by the Conservative party), though there is an argument that the four criteria can be met and the person who created the video can rely on the exception.

The CBC could raise some interesting moral rights arguments to counter the exceptions (if their employees have not waived their moral rights). However, the larger point is that its claim that no one can use any clips of its broadcasts without permission is inconsistent with the state of the law. There is much to criticize about the Conservatives’ ISIS ad, but copyright isn’t one of them.

The post CBC Seeks Takedown of Conservative Ad, Claims “No One” Can Re-Use Its News Clips Without Permission appeared first on Michael Geist.

Getting OMNI’d: Why Many Canadian TV Channels May Be Headed for the Chopping Block

Michael Geist Law RSS Feed - Thu, 2015/06/25 - 09:27

Rogers Media’s recent decision to slash 110 jobs and end all newscasts at OMNI, its multicultural channel, has sparked outrage among many ethnic communities, who have lamented the cancellation of local news programs in Italian, Punjabi, Cantonese, and Mandarin. Supporters argue that OMNI programming is essential to those communities and worry that the cancellations will mean that viewers become less politically engaged.

Last week, a House of Commons committee held a hearing on the OMNI cuts as members of Parliament from each party took Rogers executives to task. Rogers was unsurprisingly unapologetic, noting that the decision was based on simple economics as it pointed to declining advertising revenues that made the programming unsustainable.

Although MPs offered up a series of suggestions to stave off the cuts, the reality is that the changes at OMNI foreshadow a far bigger upheaval within the Canadian broadcasting world. Indeed, both the government (with its emphasis on pick-and-pay channels) and the Canadian Radio-television and Telecommunications Commission (with its TalkTV decision) have embraced change with the full knowledge that many channels will face elimination under the emerging framework.

Canadian broadcasters face at least three simultaneous pressures, creating a perfect storm that is likely to lead to many more cutbacks and cancellations.

First, channels reliant on highly profitable U.S. programming are finding that the audiences for reruns of previously popular shows are shrinking given their widespread availability from other sources, resulting in a major drop in advertising revenue. Rogers Media executive Keith Pelley told the House of Commons committee that OMNI advertising revenues had declined from $80 million to $22 million over the past four years. Profits from the U.S. shows had been used to subsidize money-losing Canadian programming, but with revenues dropping by tens of millions, that formula looks increasingly shaky.

Second, original Canadian programming may not fare well either. While critics have been vocal about the OMNI changes, Pelley revealed that ratings for the Italian language newscasts were down by 68 per cent over the past year.

With few people watching the programs – there are plenty of online alternatives – the audience is no longer there.

Shrinking audiences are likely to cause significant changes at conventional channels that rely solely on advertising revenues that are shifting to other media. But the biggest change within the Canadian broadcasting landscape will be among specialty channels that rely upon the bundling of channels to generate sizable subscription revenues despite small audiences.

As the accompanying chart illustrates, there is no shortage of channels that have thrived largely on the backs of those bundles to which consumers have been forced to subscribe as part of larger packages. That has yielded strong profits for Canadian broadcasters, but with pick-and-pay options on the way, the inability to generate advertising or audiences may mean those channels come to an end.

Channel
Subscriber Revenue (2014)
Advertising Revenue (2014)
Profit Margin
Staff
Book Television (BCE) $4,577,395 $29,525 66.0% 0 Cottage Life (Blue Ant) $3,913,117 $780,806 14.8% 0 Discovery Velocity (BCE) $24,772,293 $585,057 57.8% 2.5 Documentary (CBC) $6,277,020 $270,325 12.9% 8.5 ESPN Classic (BCE) $2,827,170 $208,014 34.9% 2 Fashion Television Channel (BCE) $4,511,730 $172,552 34.5% 1 G4 (Canada) (Rogers) $8,369,274 $959,159 47.8% 13 MTV2 (BCE) $4,955,132 $122,920 37.8% 0 Odyssey (formerly OTN) (Odyssey) $2,192,522 $229,462 21.6% 10 The Brand New ONE Body, Mind, Spirit, Love Channel (Zoomer) $4,604,750 $70,973 24.6% 17

Source: CRTC

For example, BCE’s Book Television garnered $4.5 million in subscriber fees in 2014, but only $29,525 in advertising revenue. Its profit margin was 66 per cent and it employed no staff. Book Television may sound like an anomaly, but it isn’t. BCE’s MTV2 generated $4.9 million in subscriber revenues with only $122,920 in advertising earnings and no staff, while a Zoomer channel garnered $4.6 million in subscriber revenues but only $70,973 in advertising dollars.

Pick-and-pay will not spell the end of all subscription-reliant channels, but with advertising revenues typically linked to viewership, many may no longer be viable. In fact, assuming Canadians opt for pick-and-pay and the trend toward watching Internet video continues, House of Commons hearings on the disappearing channels could become regular programming.

The post Getting OMNI’d: Why Many Canadian TV Channels May Be Headed for the Chopping Block appeared first on Michael Geist.

Why Many Canadian TV Channels May Be Headed for the Chopping Block

Michael Geist Law RSS Feed - Thu, 2015/06/25 - 09:25

Appeared in the Toronto Star on June 20, 2015 as More Canadian TV Channels May Be on the Chopping Block

Rogers Media’s recent decision to slash 110 jobs and end all newscasts at OMNI, its multicultural channel, has sparked outrage among many ethnic communities, who have lamented the cancellation of local news programs in Italian, Punjabi, Cantonese, and Mandarin. Supporters argue that OMNI programming is essential to those communities and worry that the cancellations will mean that viewers become less politically engaged.

Last week, a House of Commons committee held a hearing on the OMNI cuts as members of Parliament from each party took Rogers executives to task. Rogers was unsurprisingly unapologetic, noting that the decision was based on simple economics as it pointed to declining advertising revenues that made the programming unsustainable.

Although MPs offered up a series of suggestions to stave off the cuts, the reality is that the changes at OMNI foreshadow a far bigger upheaval within the Canadian broadcasting world. Indeed, both the government (with its emphasis on pick-and-pay channels) and the Canadian Radio-television and Telecommunications Commission (with its TalkTV decision) have embraced change with the full knowledge that many channels will face elimination under the emerging framework.

Canadian broadcasters face at least three simultaneous pressures, creating a perfect storm that is likely to lead to many more cutbacks and cancellations.

First, channels reliant on highly profitable U.S. programming are finding that the audiences for reruns of previously popular shows are shrinking given their widespread availability from other sources, resulting in a major drop in advertising revenue. Rogers Media executive Keith Pelley told the House of Commons committee that OMNI advertising revenues had declined from $80 million to $22 million over the past four years. Profits from the U.S. shows had been used to subsidize money-losing Canadian programming, but with revenues dropping by tens of millions, that formula looks increasingly shaky.

Second, original Canadian programming may not fare well either. While critics have been vocal about the OMNI changes, Pelley revealed that ratings for the Italian language newscasts were down by 68 per cent over the past year.

With few people watching the programs – there are plenty of online alternatives – the audience is no longer there.

Shrinking audiences are likely to cause significant changes at conventional channels that rely solely on advertising revenues that are shifting to other media. But the biggest change within the Canadian broadcasting landscape will be among specialty channels that rely upon the bundling of channels to generate sizable subscription revenues despite small audiences.

As the accompanying chart illustrates, there is no shortage of channels that have thrived largely on the backs of those bundles to which consumers have been forced to subscribe as part of larger packages. That has yielded strong profits for Canadian broadcasters, but with pick-and-pay options on the way, the inability to generate advertising or audiences may mean those channels come to an end.

Channel
Subscriber Revenue (2014)
Advertising Revenue (2014)
Profit Margin
Staff
Book Television (BCE) $4,577,395 $29,525 66.0% 0 Cottage Life (Blue Ant) $3,913,117 $780,806 14.8% 0 Discovery Velocity (BCE) $24,772,293 $585,057 57.8% 2.5 Documentary (CBC) $6,277,020 $270,325 12.9% 8.5 ESPN Classic (BCE) $2,827,170 $208,014 34.9% 2 Fashion Television Channel (BCE) $4,511,730 $172,552 34.5% 1 G4 (Canada) (Rogers) $8,369,274 $959,159 47.8% 13 MTV2 (BCE) $4,955,132 $122,920 37.8% 0 Odyssey (formerly OTN) (Odyssey) $2,192,522 $229,462 21.6% 10 The Brand New ONE Body, Mind, Spirit, Love Channel (Zoomer) $4,604,750 $70,973 24.6% 17

For example, BCE’s Book Television garnered $4.5 million in subscriber fees in 2014, but only $29,525 in advertising revenue. Its profit margin was 66 per cent and it employed no staff. Book Television may sound like an anomaly, but it isn’t. BCE’s MTV2 generated $4.9 million in subscriber revenues with only $122,920 in advertising earnings and no staff, while a Zoomer channel garnered $4.6 million in subscriber revenues but only $70,973 in advertising dollars.

Pick-and-pay will not spell the end of all subscription-reliant channels, but with advertising revenues typically linked to viewership, many may no longer be viable. In fact, assuming Canadians opt for pick-and-pay and the trend toward watching Internet video continues, House of Commons hearings on the disappearing channels could become regular programming.

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 Why Many Canadian TV Channels May Be Headed for the Chopping Block appeared first on Michael Geist.

Guess Who Claims Canadian Music May Go Silent Without Another Copyright Extension?

Michael Geist Law RSS Feed - Wed, 2015/06/24 - 09:34

The government’s gift to the recording industry wrapped up yesterday as Bill C-59 received royal assent and with it, the term of copyright for sound recordings was extended from 50 to 70 years. I’ve chronicled in detail how the extension of the copyright term without public consultation or discussion hurts Canadian consumers, reduces competition, and is a direct result of record label lobbying (surprise, cost to consumers, limited competition, reduced access to Canadian heritage, lobbying impact).

As an added bonus, groups have started to use the extension to argue that the government should also extend the term of copyright for authors from the current term of life plus an additional 50 years to life plus 70 years. Randy Bachman has an op-ed in the Globe and Mail today calling for a copyright term extension that must be read to be believed. The piece was not only a day late (he calls for the government to extend term in the same budget bill that already received royal assent), but contains some of the most absurd claims about copyright in recent memory.

The piece starts by suggesting that Canadian music may go silent if the government doesn’t extend the term of copyright. Bachman oddly cites as an example Glenn Gould, who died in 1982 and was best known as a performer with relatively few completed compositions. In fact, Gould’s best known works are performances of Bach and Brahms, works that are in the public domain. Obviously, neither Gould’s performance nor the Bach and Brahms works would be affected by Bachman’s proposed term extension.

To ensure that Canadian music doesn’t die, Bachman’s solution is to extend the term of copyright:

In the most recent federal budget, the government proposed to increase the length of copyright protection for sound recordings to 70 years from 50 years to be closer to international standards. This would be great if it also always covered the songwriters and composers who actually wrote the music, but it does not. It helps only those who performed on the recordings. The creators’ copyright protection is frozen at the life of the author plus 50 years. This would leave Canada lagging behind most other G20 countries, including the United States, the U.K., and almost all of the European Union.

Bachman neatly uses “70 years” to suggest that songwriters and composers are somehow mistreated in light of the extension for sound recordings to 70 years. Yet the reality is that songwriters and composers typically get far more than 70 years since their work is protected for their entire lives plus an additional 50 years.

In Bachman’s case, Takin’ Care of Business was written in 1973. That means it has already been protected for 42 years. It is entitled to another 50 years after Bachman dies, meaning that it is guaranteed to get at least 92 years of protection and the clock will hopefully continue to run for many more years for the 71 year old Bachman. Indeed, with the exception of Gould, the artists cited in Bachman’s op-ed (including Joni Mitchell, Neil Young, and Sarah McLachlan) will all have copyright protection on what they’ve written until at least 2065.

Not only does Bachman mislead on the term of protection, but in calling for international standards, he fails to note that the international standard for term of protection as found in the Berne Convention is life of the author plus 50 years (or exactly what Canada already provides).

While that alone would have been quite enough, to quote Bachman, you ain’t seen nothin’ yet. His piece concludes by again emphasizing the prospect of no further Canadian music:

Writing music that connects with people and evokes emotion takes work, passion and an unwavering focus, and carries a high risk of failure. Society should pay the creators what they have rightfully earned, so that a middle-class career (at least) can be the reward for solid songwriting skills, and so that they can keep creating – in Canada. Otherwise, Canadian music could stop being made.

Canadian law ensures that songwriters like Bachman maintain copyright protection for their entire lives plus their heirs benefit for another 50 years. It is difficult to see how that protection is insufficient to ensure that Canadian music is made. Does Bachman seriously believe that there are any Canadians songwriters, composers, or authors who would decide not to write because they receive copyright protection for their entire lives and their heirs get 50 years of protection rather than 70 years? Would Gould have completed his composition only if there was an extra 20 years of protection after he died? The claim is simply not credible.

While Bachman has proposed innovative copyright reforms in the past – he was an inaugural member of the Canadian Music Creators Coalition that opposed suing fans and he has supported a proposal for the legalization of file sharing – his support for term extension based on conjuring up implausible claims about the end of music is sad way for an acclaimed musician to celebrate a major lobbying victory that handed record labels millions at the expense of Canadian consumers.

The post Guess Who Claims Canadian Music May Go Silent Without Another Copyright Extension? appeared first on Michael Geist.

B.C. Court of Appeal Rules Facebook’s Fine Print Trumps Privacy Law

Michael Geist Law RSS Feed - Mon, 2015/06/22 - 10:05

One week after the B.C. Court of Appeal ruled that it could order Google to remove websites from its global index, the same court (but different judges) ruled that a privacy class action lawsuit against Facebook could not proceed in the province because the Facebook terms and conditions provide that all disputes must be resolved in a court in Santa Clara, California. The decision should provide a wake-up call to users and policy makers because an absolute approach to terms and conditions not only means that Canadian courts may be unable resolve consumer disputes involving companies like Facebook, but that Canadian law will not apply either.

The current Facebook terms and conditions state:

You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions.

While this appears to be slightly different from the terms that governed the dispute before the B.C. courts (it referenced courts in Santa Clara county), the key takeaway from the decision goes well beyond a proposed class action lawsuit over a Facebook “sponsored stories” program that no longer exists. The trial judge rightly noted that the heart of the case is whether online terms and conditions override domestic legal protections (in this case, the B.C. Privacy Act).

The trial court judge ruled that the terms did not, citing provisions in the B.C. Privacy Act that confer exclusive jurisdiction on the B.C. Supreme Court. The B.C. Court of Appeal rejected both the analysis of the BC Privacy Act and the broader public policy considerations of whether online terms should trump local law. The court ruled that the Facebook terms were “valid, clear, and enforceable”. It then fell to the plaintiff to demonstrate why the court should decline to enforce the forum selection clause. The court cites as a possible example evidence that the case could not be heard in the California court (which would have the effect of creating a limitation of liability for Facebook). Without such evidence, the court ruled that the Facebook terms were binding. Moreover, it rejected the argument that the B.C. Privacy Act is intended to trump valid contracts.

Interestingly, a class action lawsuit over Facebook’s sponsored stories launched in the State of Illinois raised similar questions about the enforceability of the Facebook terms and conditions. The court also sided with Facebook, ruling that its forum selection clause was enforceable. The court identified three situations where the clause might not be enforced:

  • if their incorporation into the contract was the result of fraud, undue influence or overweening bargaining power;
  • if the selected forum is so gravely difficult and inconvenient that the complaining party will for all practical purposes be deprived of its day in court; or
  • if enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decision.

The public policy discussion was interesting as the court ruled that California was fully capable of addressing the issue. That case was one of several that have upheld Facebook’s terms and conditions.

From a Canadian perspective, the public policy issue might well be whether California law offers the same level of privacy protection as that found in Canada. The Privacy Commissioner of Canada’s well-known 2009 investigation against Facebook did not focus on jurisdictional issues (the OPC maintains that the collection, use or disclosure of Canadian personal information triggers the law), but this case provides a reminder that Facebook believes that its terms and conditions ensure that California law and California courts govern any dispute or cause of action.

There is obvious value in contractual certainty and the benefits for online businesses, who can look to this case to more confidently rely on their terms and conditions. However, there is also a significant public policy risk, since it opens the door to contractual terms that trump local laws and protections. This is particularly true for online consumer contracts that involve no negotiation and are presented on a “take it or leave it” basis. In fact, few expect consumers to actually read the detailed fine print of every online contract, meaning that the clicking “I agree” may result in being bound by terms that trump Canadian law and the Canadian courts.

The post B.C. Court of Appeal Rules Facebook’s Fine Print Trumps Privacy Law appeared first on Michael Geist.

Why the Liberal Party Defence of Its Support for Bill C-51 Falls Flat

Michael Geist Law RSS Feed - Fri, 2015/06/19 - 08:26

Bill C-51, the anti-terrorism bill, became law yesterday as it received royal assent. As polls continue to suggest that the Liberal support for the bill is shifting potential voters to the NDP, Liberal leader Justin Trudeau has conducted several interviews defending his position as the “right move for Canadians.” Trudeau’s arguments, which have been echoed by other Liberal MPs such as Marc Garneau, boils down to three key claims: he doesn’t want to play politics with security, there are elements in Bill C-51 he likes including greater information sharing, and he will fix the problems with the bill if elected.

For those Canadians looking for an alternative to the Conservative position on Bill C-51, Trudeau’s defence falls flat.

First, the claim that the Liberals do not want to play politics with Bill C-51 is simply not credible. Indeed, the decision to support the bill was all about politics. The Conservatives introduced Bill C-51 on January 30, 2015, with both opposition parties saying they were reviewing the legislation and would seek “robust” parliamentary hearings. Several days later, the Liberals had apparently seen enough, indicating that they were ready to support the bill but push for greater oversight. Given that leading experts such as Craig Forcese and Kent Roach took weeks to comprehensively assess the impact of the legislation, it simply was not possible to assess all the implications of the bill in a few days.

The decision to support the bill was surely the result of a political calculation based on the fear of being labeled as weak on security. Indeed, Trudeau acknowledged precisely that a month later, telling students at UBC that the government was hoping the opposition would reject the bill so that it could “bash people on security.” Trudeau added that “this conversation might be different if we weren’t months from an election campaign, but we are.”

Trudeau also claims that he won’t politicize the issue by calling out the NDP opposition to the bill, stating “you won’t hear me say, ‘Mr. Mulcair, who voted against physical security, doesn’t care about Canadians’ safety.’” Perhaps not, but his MPs have done pretty much that. For example, last month in the House of Commons, MP Joyce Murray responded to criticism of Liberal support for Bill C-51 by stating “I would ask the member whether he would want it on his conscience should there be an attack that leads to deaths of Canadians because of the loopholes that the bill is attempting to fix?”

Second, the Liberal position on Bill C-51 has consistently cited the information sharing provisions in the bill as a reason to support it. Yet the information sharing provisions are among the most problematic aspects of the bill drawing criticism from the Privacy Commissioner of Canada and numerous experts. In supporting those provisions, the Liberals are not only siding with the government, but they are also rejecting the analysis of the Privacy Commissioner of Canada.

Third, the promise to fix the bill by adding accountability provisions and a sunset provision if elected does not address the fundamental concern with supporting the bill. Since the bill’s introduction, Trudeau has delivered major speeches and policy positions on liberty and freedoms and on fair and open government. There is much to like about those positions. But talking the talk is the easy part. Walking the walk is far harder. Speaking about defending liberty, while voting for a bill that every civil liberties group in the country opposed is difficult to reconcile. Similarly, calling for major parliamentary reforms while effectively giving tacit approval to the shameful hearings on Bill C-51 (chronicled here and here) by supporting the outcome is tough to square.

The Conservative record on digital issues is far more balanced than Harper’s critics would like to admit. For most issues, there is good and bad: the government has been a strong supporter of consumer interests on telecom and broadcast policy, it has passed good copyright laws (elements of 2012 reforms) and bad (digital locks, copyright extension in a budget bill), and it has enacted privacy reforms that at that their best provide new safeguards (security breach rules) and at their worst could have been worse (lawful access). Yet Bill C-51 was emblematic of the very worst of the government: constitutionally suspect legislation, the rejection of oversight or accountability, embarrassing hearings, exclusion of expert analysis, and the persistent demonizing of critics.

The Liberal position on Bill C-51 is similarly reminiscent of the worst fears of past Liberal governments that sought middle of the road positions based on politics rather than principle. Given the way the debate on Bill C-51 unfolded, all parties were forced to pick between being labeled as weak on security or characterized as weak on privacy and civil rights. The Liberals made the wrong choice.

The post Why the Liberal Party Defence of Its Support for Bill C-51 Falls Flat appeared first on Michael Geist.

SOCAN Reports Canadian Internet Music Streaming Copyright Revenues Soar 525%

Michael Geist Law RSS Feed - Thu, 2015/06/18 - 09:17

SOCAN, Canada’s largest music copyright collective, released its annual report this week, reporting record revenues and a massive increase in earnings from Internet streaming services. SOCAN reports that copyright revenues from Internet streaming hit $21.3 million, a 525% increase over the $3.4 million generated in 2013. The huge increase in Internet streaming revenues in Canada points to why persistent criticism about Tariff 8, a Copyright Board tariff for Internet streaming misses the mark. As I pointed out last year, Tariff 8 is only part of a larger ecosystem of royalties paid for Internet music streaming.

Indeed, the fact that songwriters, composers, and music publishers are successfully generating new revenues from Internet music services has actually been a target of criticism by the Canadian Recording Industry Association, which has intervened in tariff proceedings involving SOCAN to argue that its tariff proposals are “grossly excessive.”

The post SOCAN Reports Canadian Internet Music Streaming Copyright Revenues Soar 525% appeared first on Michael Geist.

Syndicate content