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No Minister Joly, The Internet Is Much More Than Just Movies, TV and Music

Michael Geist Law RSS Feed - Mon, 2016/10/31 - 10:21

Canadian Heritage Minister Melanie Joly hosted a public meeting in Montreal last week as part of her consultation on Canadian content in the digital world. The media reports from the event included a focus on comments from musician Patrick Watson, who is quoted as saying that no one would be on the Internet if there were no movies, television or music. Reports indicate that the comment generated support in the room and from Joly.  In fact, hours later, Joly tweeted out “thoughtful words from @patrickwatson ‘without culture, nobody would be on the Internet’”.

If that really represents Minister Joly’s worldview on the Internet, there should be little doubt that an Internet tax will play a key role in her future plans. Claims that no one would be on the Internet without culture is demonstrably false, but it is consistent with the argument that Internet service providers and Internet companies owe their revenues to the cultural content accessed by subscribers and they should therefore be required to contribute to the system much like broadcasters and broadcast distributors.

The reality is that Internet use is about far more than streaming videos or listening to music. Those are obviously popular activities, but numerous studies (CIRA, Statistics Canada) point to the fact that they are not nearly as popular as communicating through messaging and social networks, electronic commerce, Internet banking, or searching for news, weather, and other information. From the integral role of the Internet in our education system to the reliance on the Internet for health information (and increasingly tele-medicine) to the massive use of the Internet for business-to-business communications, the Internet is about far more than cultural consumption. Indeed, given its importance to virtually all aspects of modern day life, there are few policy goals more essential than ensuring that all Canadians have affordable access to the network. Far from representing an updated approach to cultural funding, an Internet tax would unfairly target millions of Canadians, make access less affordable, and do little to “modernize” cultural funding policy.

The post No Minister Joly, The Internet Is Much More Than Just Movies, TV and Music appeared first on Michael Geist.

Why Trudeau’s TPP Comments Undermine Freeland’s Credibility on Canada’s Biggest Trade Deal

Michael Geist Law RSS Feed - Wed, 2016/10/26 - 12:50

International Trade Minister Chrystia Freeland has faced a challenging week given the possible collapse of the trade agreement between Canada and the European Union. Freeland and the Liberal government have worked hard to get CETA to the finish line with some changes to the investor – state dispute settlement rules (the rules should be dropped altogether) and frequent travel across Europe to garner support for the deal.

Back at home, the reaction to the CETA problems from the Conservative opposition has been embarrassing. Trade critic Gerry Ritz criticized Freeland, speaking of the need for adult supervision and calling on the government to get the job done. Freeland rightly called him out on the comments, but she could have also noted that the record suggests that it is the Conservatives that failed to get the job done on CETA. In April 2010, the Conservative government said it would be finished in 2011. In 2011, reports said it would be done in 2012. In October 2012, the projection was a deal by year-end. It took until the fall of 2013 for a ceremony marking an “agreement-in-principle”. That too proved to be premature as there was another event celebrating an official draft in 2014 followed by more legal drafting and the renegotiation of controversial ISDS provisions that led to the release of another text earlier this year. In other words, Freeland inherited far less than advertised on CETA and the Conservatives might not want to remind the public that their biggest trade accomplishment never actually involved a signed, final text.

The Ritz remarks have attracted attention, but comments yesterday from Prime Minister Justin Trudeau may have a longer and more damaging impact on Freeland. Speaking at a youth labour summit, Trudeau gave the clearest indication yet that the Liberals plan to move ahead with the TPP assuming the agreement goes ahead (the TPP is facing enormous opposition in the U.S. and cannot take effect without its approval). Asked about the TPP, he stated that “It’s difficult to imagine a world where Canada would turn its back on three of its top five trading partners. We established very clearly during the campaign that we’re a pro-trade party.”

That is a far cry from the Liberal position on the TPP both during the election and since forming government. Freeland has consistently stated the final decision on the TPP would not come before the completion of extensive public consultations. Those consultations are still ongoing with the deadline for submitting comments to the Standing Committee on International Trade open until October 31st. The committee report is therefore still weeks away and the necessary debate in the House of Commons has yet to occur. While Trudeau did not definitively state that Canada will ratify, the comments call into question the seriousness of the consultation and lend credence to concerns that the process is little more than theatre.

Further, not only do the comments hurt Freeland’s credibility on an open consultation, but they also undermine Canada’s bargaining position with respect to potential changes to the TPP. While officials have stated that the deal cannot be amended, the same was said about CETA and changes were ultimately incorporated into the final text. With opposition running high in the U.S., the prospect of re-opening some TPP issues or crafting side letters that involve some change is a real possibility. The Canadian position is weakened by Trudeau’s comments, however, since TPP partners will now assume that any threat to walk away is mere posturing and that no further concessions are needed.

The post Why Trudeau’s TPP Comments Undermine Freeland’s Credibility on Canada’s Biggest Trade Deal appeared first on Michael Geist.

The Devil is in the Details: Why CETA is on the Verge of Collapse

Michael Geist Law RSS Feed - Tue, 2016/10/25 - 10:52

The seeming collapse of the trade agreement between Canada and the European Union (CETA) has created obvious disappointment for International Trade Minister Chrystia Freeland and the entire Canadian government, which made the deal as its top trade issue. Efforts to salvage CETA will undoubtedly continue, but my Globe and Mail column points out that the underlying problem with the agreement is not the complicated European political system that requires support from all member states.

Rather, it is the expansion of trade negotiations from agreements that once focused primarily on tariff reductions to far broader regulatory documents that now mandate domestic legal reforms and establish dispute resolution systems that can be result in huge liability for national governments. This enlarged approach to trade deals, which can also be found in the controversial Trans Pacific Partnership (TPP), run the risk of surrendering domestic policy choices to other countries or dispute tribunals.

If CETA were limited to tariff reductions, it would be relatively uncontroversial. The discomfort with the agreement lies instead in the mandated changes to domestic regulations and the creation of investor – state dispute settlement mechanisms that may prioritize corporate concerns over local rules.

Regulatory provisions in CETA mean that both parties face the prospect of changing national laws to accommodate foreign businesses. For example, CETA requires Canada to expand patent protections, largely due to demands from European pharmaceutical companies. The required changes would add billions to Canadian health care costs by extending the term of protection for popular drugs. Similarly, European countries would face the prospect of altering food and safety regulations as part of their end of the bargain.

The insistence on including investor – state dispute resolution provisions are particularly puzzling. These rules, which allow companies to seek damages where local regulations interfere with their economic expectations, are commonly found in foreign investment treaties with developing countries whose court systems are unknown or viewed as risky by potential investors.

There are no such risks in Canada and Europe, however, since both offer reliable, respected court systems that are widely used by companies from around the world.

The full column is posted here.

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Delhi High Court issues historic decision for access to knowledge and education

Sara Bannerman - Mon, 2016/10/24 - 13:35
In September, the Delhi High Court handed down a groundbreaking judgement dismissing Cambridge University Press, Oxford University Press, and other academic publishers’ copyright infringement suit against the Rameshwari Photocopy Service and the University of Delhi.  Read my full post about it here on the Cambridge University Press blog.

TPP consultation — my submission

Fair Duty by Meera Nair - Sun, 2016/10/23 - 22:31

Earlier this year, Canadians were invited to participate in a public consultation regarding the Trans-Pacific Partnership Agreement (TPP).  The deadline for submission is 23:59 EDT, October 31, 2016.

My submission is slightly over 4000 words in length; too much for a blog post.  Below are the closing paragraphs; the entire document is available here.

Update: A thoughtful reader alerted me to a 404 response when trying to access my submission.  If the direct link does not work, try the attachment page.

… The principle argument to join the TPP seems to be that Canada cannot afford to be left out. Even if the agreement was only a matter of tariff and subsidy reductions, that argument is weak.[1] Given the nature of the entirety of the TPP, the costs of which will be felt through heightened expenditure for medicines, diminishment of Canadian culture, elimination of future innovation, absence of attention to public well-being for fear of international reprisals, and the loss of sovereignty when such reprisals are unavoidable, one has to ask: whom is this government wishing to please by committing Canada to the TPP?  The answer does not appear to be: Canadians. One must also ask: has our existing business community been sufficiently engaged to warrant our confidence that fulfilling their wishes will lead to better living for all?

That does not appear to be the case. In 2012, Mark Carney, former governor of the Bank of Canada, indicated that instead of investing in the economy, Canadian businesses “were holding on to nearly half a trillion dollars in cash, an increase of 43 per cent since the end of the recession in 2009.”[2] Recently, the esteemed firm Deloitte, an internationally revered organization, released a damning report concerning the willingness of Canadian businesses to take the necessary steps to reinvigorate the economy. In Deloitte’s words, too many “lack an essential game-changing quality: courage.”[3]

By virtue of the TPP, the individuals that Canada most desperately needs to encourage – the innovative entrepreneur looking to develop new industries to drive the economy when our wood and water have been exhausted – will find that no amount of courage can overcome the hurdles put in place by their own government. As the actual trade measures of the TPP bring very modest gains to Canada, and the remaining components will inflict costs far in excess of those gains, adopting this agreement makes little sense beyond acquiescing to the corporate bullying that is likely happening behind closed doors. If that is the sole reason that Canada must go forward with the TPP, please be honest to Canadians about the government’s reasoning. Please do not pretend that this is solely about Trade.

The TPP is an international omnibus bill, the effects of which will be detrimental to Canadians. The greatest pain will be inflicted upon those youthful voters whom this government so assiduously courted.


Meera Nair



[1] The C.D. Howe analysis estimates the loss to Canada for not joining the TPP; “The real GDP impact would be a negligible -0.006 percent in the first year, rising to about -0.026 percent in 2035.” The losses to existing industries are not taken lightly, but it is essential to wonder what industries could rise in their place, if unrestricted by the constraints embodied within the TPP.

[2] Michael Enright, “Canada’s cowardly CEOs are sitting on billions, rather than investing in the economy,” The Sunday Edition, 16 October 2016 <http://www.cbc.ca/radio/thesundayedition/timid-ceos-endless-war-in-syria-steve-earle-fall-in-vermont-1.3801572/canada-s-cowardly-ceos-are-sitting-on-billions-rather-than-investing-in-the-economy-michael-s-essay-1.3801574&gt;.

[3] Deloitte, The future belongs to the bold, <http://www2.deloitte.com/ca/en/pages/insights-and-issues/articles/the-future-belongs-to-the-bold.html&gt;.  As an aside, poetry lovers will enjoy the inference of Invictus by the report’s authors.


CETA Talks Break Down: “It is Evident that the EU Is Incapable of Reaching an Agreement”

Michael Geist Law RSS Feed - Fri, 2016/10/21 - 11:49

International Trade Minister Chrystia Freeland has walked out of talks aimed at addressing Belgian opposition to the Canada-EU Trade Agreement, stating:

I have personally worked very hard, but it is now evident to me, evident to Canada, that the European Union is incapable of reaching an agreement – even with a country with European values such as Canada, even with a country as nice and as patient as Canada. Canada is disappointed and I personally am disappointed, but I think it’s impossible. We are returning home.

Leaving aside the odd reference to how nice Canada is, this is remarkable language that lays bare the obvious frustration and disappointment for the government which prioritized the CETA agreement above all others. The prospect of the deal falling apart has been evident for months. I wrote in July that the agreement was in more trouble than the Canadian government would admit, noting that opposition from any national or regional government could kill CETA altogether. Canadian officials downplayed the risk, but it was obvious that CETA faced stiff opposition that would not be easy to overcome.

Yet to focus exclusively on the political dimensions (which should also include how disingenuous the Conservatives’ claims about their trade deals were) is to miss the broader concerns with trade agreements such as CETA. The Stop CETA protests across Europe tend to focus on broader opposition to trade agreements that extend far beyond reduced tariffs. Indeed, few oppose reduced tariffs. The concerns instead typically point to the wide range of regulatory measures and dispute settlement mechanisms that may prioritize corporate concerns over local rules. The fear of these aspects of the agreement are what lies at the heart of opposition to CETA, as well as to the Trans Pacific Partnership (TPP) and TTIP.

The insistence that such provisions remain in the agreement is what is truly puzzling. Given that Europe and Canada both offer reliable, respected court systems, there is little reason to insist on ISDS rules at all. Further, expanded trade should not require Canada to face increased health care costs (as would result from CETA’s extension of patent protections) or Europe to confront changes to various food and safety regulations.

The CETA setback in Europe has strong echoes to the 2012 defeat of the Anti-Counterfeiting Trade Agreement. Trade negotiators and governments similarly downplayed mounting protests and concerns associated with ACTA, but the European Parliament ultimately rejected the agreement in a landslide. Killing ACTA – much like the potential death knell for CETA – isn’t about Europe’s ability to conclude deals or how nice Canada is. It is about the expansive approach to traditional trade agreements that it is increasingly out-of-step with local regulation, the balance between government and corporate rights, and public opinion.

The post CETA Talks Break Down: “It is Evident that the EU Is Incapable of Reaching an Agreement” appeared first on Michael Geist.

Beyond a Netflix Tax: Why Melanie Joly’s Comments Point to Regulation of Internet Services

Michael Geist Law RSS Feed - Fri, 2016/10/21 - 09:59

The prospect of new digital taxes and regulation to fund the creation of Canadian content continues to attract attention with cultural groups leading the charge. For example, the Canadian Independent Music Association recently called for the regulation of digital services and ISPs including mandated contributions to support the development of Canadian content, while ADISQ has previously lobbied for a similar policy approach.

With mounting coverage of the issue, Canadian Heritage Minister Melanie Joly appeared last weekend on CTV’s Question Period, spending most of the nine minutes dodging questions from host Evan Solomon. Joly started by clearly stating that “there will be no new Netflix tax”, but spent the rest of the interview making the case for one. The discussion featured speaking points that seemed to contradict the no Netflix tax approach, emphasizing that everything is on the policy table and that the government is looking at all scenarios. Solomon noted the inconsistency of the comments and Joly struggled to respond.

Most troubling was the exchange on new regulations, taxes or fees for Internet companies and services. Solomon specifically asked whether the only digital tax that Joly was willing rule out was a Netflix tax. Joly’s response:

I’ve said that we’re willing to have a conversation with digital platforms. Netflix is one of them. There are Amazons, Hulus, Apple. There are big companies that are part of our ecosystem, that are used and liked by Canadians. This is why we want to make sure that we know that they are using a large part of our spectrum that we can have a conversation with them to see how they can participate.

While it is somewhat difficult to fully decipher Joly’s comments, the references point in the direction of a tax or regulation on Internet services and service providers.

First, the comment suggests that Joly subscribes to the view that there is a parallel between conventional broadcast and the Internet that invites a similar regulatory approach. Part of the rationale for broadcast regulation is that broadcast spectrum is scarce, therefore requiring licensing and regulation. By indicating that Internet services use a “large part of our spectrum”, Joly is making the case for treating Internet services as equivalent to broadcast. I believe that Joly is wrong: the Internet is not the same as broadcast and access to these services frequently involves private networks, not publicly-licensed spectrum. However, by arguing that they are using Canadian spectrum, Joly is laying the groundwork for a regulatory model for Internet services.

Second, Joly speaks of the need to have a conversation with Internet services “to see how they can participate.” Services such as Hulu and Amazon’s streaming service are not even available to Canadians, but even with those services that are (such as Netflix), the notion of exploring how they can participate again assumes a regulatory approach in which offering a service to Canadians from anywhere in the world leads to regulated participation in the Canadian system. Companies such as Netflix and Google rejected this approach during the 2014 CRTC hearing, effectively arguing that they are not subject to Canadian broadcast regulation. Joly can move to change that law, but doing so will invite a new era of Internet regulation.

Joly tried to emphasize that these issues are up for consultation, but the references to digital platforms, using Canadian spectrum, and participation in the Canadian system all point to future demands for regulations, payments, levies or taxes. The consultation is open until November 25th, with preliminary findings and recommendations expected within weeks after the consultation closes.

The post Beyond a Netflix Tax: Why Melanie Joly’s Comments Point to Regulation of Internet Services appeared first on Michael Geist.

Why New Digital Taxes Could Play a Starring Role in the Government’s CanCon Policy

Michael Geist Law RSS Feed - Thu, 2016/10/13 - 10:18

Canadian Heritage Minister Mélanie Joly has energetically crossed the country emphasizing the economic benefits of the cultural industries. Yet as the government conducts a national consultation on Canadian content in the digital world, my Globe and Mail tech law column notes that new digital taxes may ultimately play a starring role.

Joly has opened the door to an overhaul of Canadian cultural policy, but the million dollar – or perhaps billion dollar – question is how to pay for it. The industry has resisted policies that might increase foreign-backed productions, arguing that lowering qualifying requirements for the number of Canadians involved will lead to lost jobs and less distinctive content. Their hopes appear to rest primarily with the possibility of a series of new digital taxes. While new taxes are never popular, the possibilities include the proverbial good, bad, and ugly.

The good involves proposals to divert revenues from spectrum licences to cultural funding (effectively a spectrum tax invisible to consumers) and to extend sales taxes such as GST or HST to foreign digital services. The bad would involve the introduction a controversial “Netflix tax” that requires online video services to contribute a percentage of their revenues toward the creation of Canadian content. Joly has previously rejected a Netflix tax, but the prospect of millions in new revenues may be too tempting to resist.

If a Netflix tax proves to be a non-starter, the government may turn to the ugly: a tax on Internet service providers. A levy on Internet service has long been the holy grail for the cultural industries, who argue that broadcast on the Internet is the functional equivalent of conventional broadcast and that both should face similar funding requirements.

To date, the law has not supported that argument with the Supreme Court of Canada ruling in 2012 that ISPs are not “broadcast undertakings” for the purposes of the Broadcasting Act.  However, Joly’s legislative overhaul could involve changing the law to allow for the imposition of new fees on Internet services.

The ISP tax would come at an enormous cost to other policy priorities. Internet access in Canada would become less affordable, expanding the digital divide by placing Internet connectivity beyond the financial reach of more low-income Canadians. The increased costs would also be felt by the business community, potentially undermining the innovation strategy currently championed by Navdeep Bains, the Minister of Innovation, Science and Economic Development.

The full column can be found here.

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Why Copyright Reform Won’t Solve the Troubles Faced By the Newspaper Industry

Michael Geist Law RSS Feed - Tue, 2016/10/11 - 09:06

Last week, I appeared before the Standing Committee on Canadian Heritage as part of its study on the future of media. The committee has heard from dozens of witnesses and one of the surprising themes has been the emphasis on copyright reform as a potential solution to the newspaper industry’s woes. My opening remarks, which are posted below, warn against the reforms, including the prospect of new taxes on Internet services or linking as a source of revenue for the industry. Instead, I point to several potential policies including an ad-free online CBC, sales taxes for digital services, and non-profit funding models for investigative journalism.

The Q & A that followed with me focused primarily on copyright law. The copyright discussion stems from the fact that several earlier witnesses implausibly claimed that it would help solve the problems facing news organizations. For example, Bob Cox of the Canadian Newspaper Association told the committee:

we need updated copyright laws to protect original work. Papers invest heavily in original journalism, which is then shared, reused, and rewritten by others, often for commercial gain, because the two-decades-old fair dealing law does not take into account the ease of digital reproduction. If newspapers were compensated for their original content and the investment was protected for longer, it would be a significant boost to our revenues.

Duff Jamison of the Alberta Weekly Newspaper Association said:

I do think that copyright laws were designed before we had this mass digital distribution of content. They probably need to be reviewed and brought up to date, so that there is a means…. We put in a possible suggestion. If you click through to a journalist’s story, then at that point perhaps that journalist and the newspaper that employs him should receive a payment. There are ways to get at this.

Meanwhile, Peter Kvarnstrom of the Glacier Media Group called for fair dealing reform:

Fair dealing within our Copyright Act is a significant detriment to journalism in Canada. Our creators and publishers pay to create content that many news aggregators, including the CBC, republish, copy, broadcast, and sell advertising without compensating the creator or the copyright holder. This must be addressed.

These comments raise at least four possible copyright reforms: scope of protection, term, link tax, and fair dealing. As I told the committee, none will address the underlying challenges faced by the newspaper industry.

The prospect of changing the scope of copyright protection to cover ideas as well as expression would be incredibly harmful to a free press. The law is designed to protect expression, but rightly recognizes that ideas and facts should not be controlled by a single entity. To change the law would grant a single rights holder exclusivity over reporting, effectively limiting the ability of the press to do its job.

Extending the term of copyright seems like an absurd mechanism to address the problems news organizations face today.  Copyright protection for authors already stands at life of the author plus an additional 50 years. Suggestions that newspapers would be assisted by extending the term of protection would do nothing to address revenue shortfalls today, given that works are fully protected right now and will continue to benefit from protection for many more decades.

The link tax proposal, which has gained traction in Europe, speaks to the possibility of requiring compensation for merely linking to an article. Yet as the Supreme Court of Canada noted in the Crookes case involving links:

The Internet’s capacity to disseminate information has been described by this Court as “one of the great innovations of the information age” whose “use should be facilitated rather than discouraged”.  Hyperlinks, in particular, are an indispensable part of its operation.

The Internet cannot, in short, provide access to information without hyperlinks.  Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.  The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.  Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.

While the Crookes case involved defamation, the Court clearly understood the importance of linking to freedom of expression. Attempts to limit linking – whether by regulation or the imposition of fees – would undermine critical freedoms. Moreover, creating a link tax would likely mean that sites and search engines stop linking to news content. Such an approach would hurt smaller news organizations, independent bloggers, and others who are dependent on links to find their audiences.

Finally, fair dealing is also an odd issue to raise. For journalists, fair dealing is exceptionally important as one of the purposes – news reporting – is specifically included to ensure that copyright is not used to stop important journalism. Claims that fair dealing is a detriment to journalism fails to understand that newspapers are themselves active users of fair dealing. Concerns regarding fair dealing being used by competitors to copy articles are unfounded, since commercial republication of articles is unlikely to qualify as fair dealing. The courts have rightly permitted copying and posting portions of articles for criticism or review purposes as well as indexing (but not posting) full text of articles, but competitors cannot regularly rely on fair dealing to copy and post full articles.

My full opening remarks follow:

Appearance before the House of Commons Standing Committee on Canadian Heritage, October 6, 2016

Good morning. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. My areas of specialty is digital policy, including e-commerce, privacy, and intellectual property.

I appear today in a personal capacity representing only my own views.

I am particularly pleased to have the opportunity to speak before this committee on this study. My interest in this issue extends beyond my academic research into new digital business models and the laws and policies that often follow. For more than 15 years, I have written regularly for a wide range of Canadian media. This includes large news organizations such as the Toronto Star and Globe and Mail, speciality and local publications such as the Hill Times and Vue Weekly, and newer online publications such as the Tyee, Huffington Post, and iPolitics. In that capacity, I have witnessed first hand the different readers, different business models and different approaches to content. I have also been on the receiving end of cuts due to shrinking budgets as well as the conflicts that sometimes arise between editorial and business departments.

My remarks are divided into two sections: my take on the current landscape and a discussion of potential policy reforms.

The Current Landscape

I have been following this study closely and note that you have heard from a wide range of witnesses who have offered up a dizzying array of suggestions and recommended reforms.

Much of the commentary emphasizes the critical link between a strong, independent media on the one hand and citizen participation and holding governments at all levels to account for their actions on the other. While there is little debate over the essential role of journalism, the tougher questions are whether policies are needed to save or assist existing news organizations and whether emerging digital alternatives can provide an effective substitute.

I am reminded that people like Clay Shirky, a well-known media professor in the United States, predicted the current struggles many years ago.  Indeed, in a widely read piece in 2009, Shirky wrote about the media concern with the digital world:

“Round and round this goes, with the people committed to saving newspapers demanding to know “If the old model is broken, what will work in its place?” To which the answer is: Nothing. Nothing will work. There is no general model for newspapers to replace the one the internet just broke.”

While there are some policies that merit consideration, Shirky’s point is that the general newspaper as we have known it can’t compete with the Internet. It is not solely a function of lost revenues such as classifieds or declining readership. Rather, the newspaper’s role in aggregating diverse content is less relevant today and that package has far less value than it once did.

Moreover, the newspaper faces far more competition than ever before. In my view, newspapers are disappearing not because there are too few voices, but because – at least under their economic model – there are too many. With few exceptions, the content they produce has substitutes from cheaper online organizations, NGO’s, bloggers, and the myriad of other sources. We can debate quality and editorial product, but there are alternatives for virtually all forms of information traditionally published – sometimes on an exclusive basis – by newspapers.

Where there is no substitute or a premium placed on the content, experience shows the market will pay.  Hence the success of financial and sports information as well as some speciality paywalled publication. For general interest publications, the question is whether digital news organizations, who enjoy low entry barriers, the reach into new audiences, and innovative business models, can replace the traditional news organizations.

There is some evidence to suggest that it can, at least in some areas. For example, political news coverage is often viewed as the most critical in holding governments to account. Some have pointed to the regional decline of membership in the Parliamentary Press Gallery as evidence of the crisis, but it is more instructive to see how many new, digital-only organizations are investing in original political reportage.

The current gallery membership list includes newcomers such as the Huffington Post, the Tyee, Rabble, National Observer, and VICE. Moreover, there are a host of experienced freelance journalists whose work appears in many venues alongside specialty digital publications such as iPolitics, Blacklock’s Reporter, and the Wire Report.

The work of journalists at these publications – along with niche print sources and experts who blog or write independently – offers the chance to reach different audiences and to cover specialized issues in greater depth than is often found in larger newspapers that emphasize big picture concerns.

Policy Suggestions

In the face of the obvious decline of some well-known news organizations, the temptation to “do something” is unsurprising.  And there are steps that can be taken that can assist in the digital transition. But we should be very wary of reforms that simply prolong the life of now-unsuccessful entrenched entities or that have serious unintended consequences.  These include:

-    proposals for ISP taxes as a new source of revenue. This would be the equivalent of a digital tax on everything, making it costlier for Canadians to access the Internet and exacerbating the digital divide
-    proposals for “link taxes” on digital aggregators, who drive traffic to the originating sites and only aggregate content that is made available by the original source. These proposals have serious free speech implications and run the risk of reducing diversity of voices
-    proposals to reform copyright fair dealing, by dispensing with the longstanding rule that copyright protects expression not ideas. This runs the danger of protecting facts, which would undermine reporting and add costs to many other groups.

These changes could have a serious, detrimental effect on the Canadian digital landscape and ultimately harm the new entrants that offer hope for more media choice.

What can be done?  I believe the policy goal should be premised on leveling the playing field with the priority being good journalism regardless of the source.  Five possible steps:

1.    The foundation for a robust digital media world is access for all – as participants and readers. This means addressing the digital divide with world class broadband accessible and affordable to all Canadians.  We still aren’t there and experience indicates that the market alone will not solve the issue. The emphasis should be on affordable equipment and Internet access along with digital skills development.

2.    As for Canada’s public broadcaster, the CBC’s emphasis on digital delivery of news content has created frustration with many established news organizations. Reconciling the need for the CBC to remain relevant by embracing digital delivery with the financial impact on private sector news services could be addressed by requiring the public broadcaster to adopt an ad-free approach to its online news presence. That would ensure that it reaches digital audiences but does not directly compete with the private sector for advertising dollars.

3.    There have been some harmful tax policy suggestions but there are some useful possibilities as well. The private news services could benefit from a change to allow tax deductions for advertising on Canadian websites. Online services should remain unregulated and free from mandatory contributions, but should be subject to general sales taxes. Levying GST or HST on Canadian services such as CraveTV while leaving foreign services such as Netflix tax-free creates a tax revenue shortfall and places domestic services at a disadvantage compared to their foreign counterparts.

4.    Remove access barriers for journalism. This includes access to information rules at all levels of government and better recognition of journalists from all organizations in press conferences and availability.

5.    Focus on journalism, not organizations.  Recommendations from the Canadian Association of Journalists on the need to embrace non-profit journalism is an excellent idea that is proven elsewhere. While state subsidies for newspapers should be rejected, funding models for journalism projects as a media equivalent to the Court Challenges Program would be helpful.

The uncertainty associated with digital models, the loss of jobs, and the future of some of Canada’s best-known media organizations unsurprisingly elicits sadness, apprehension, and concern. However, the emergence of new voices and the innovative approaches at older ones point to the likelihood that journalism is neither dead nor dying.  The trick is avoid policy reforms that may do harm than good and trust in a transformation that has more access and more voices as its foundation.

I look forward to your questions.

The post Why Copyright Reform Won’t Solve the Troubles Faced By the Newspaper Industry appeared first on Michael Geist.

Canada’s Privacy Failure: My Appearance Before the Standing Committee on Access to Information, Privacy & Ethics

Michael Geist Law RSS Feed - Thu, 2016/10/06 - 09:35

I appeared last week before the Standing Committee on Access to Information, Privacy & Ethics as part of the committee’s review of the Privacy Act. My opening remarks highlighted several longstanding concerns with the legislation and then turned to three broader issues: Bill C-51′s information sharing provisions, transparency reporting, and the revival of lawful access issues.

My full prepared opening remarks are posted below:

Appearance before the House of Commons Standing Committee on Access to Information, Privacy & Ethics, September 29, 2016

Good morning. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. My areas of speciality include digital policy, intellectual property, and privacy.  I served for many years on the Privacy Commissioner of Canada’s External Advisory Board and I have been privileged to appear before multiple committees on privacy issues, including PIPEDA, Bill S-4, Bill C-13, the Privacy Act, and this committee’s earlier review of social and media privacy.

I appear today in a personal capacity representing only my own views.

As you know, there is a sense of déjà vu when it comes to Privacy Act reviews. There have been multiple studies and successive federal privacy commissioners who have tried to sound the alarm on the legislation that is viewed as outdated and inadequate. Canadians rightly expect that the privacy rules that govern the collection, use, and disclosure of their personal information by the federal government will meet the highest standards.  For decades, we have failed to meet that standard.

I would like to quickly touch on some Privacy Act concerns, but with your indulgence, also talk about the broader privacy law environment in Canada by raising several other related issues and concerns.

A.    Privacy Act

The Privacy Commissioner of Canada has provided the committee with many recommended changes and I endorse the submission. Most of the recommendations are not new.  Successive commissioners have asked for the same changes, but successive governments have failed to act.

I would like to briefly raise four issues related to the current law:

1.    Education and the Ability to Respond

The failure to engage in meaningful Privacy Act reform may be attributable in part to the lack of public awareness of the law and its importance.  The Privacy Commissioner has played an important role in educating the public about PIPEDA and broader privacy concerns.  The Privacy Act desperately needs to include a similar mandate for public education and research.

Moreover, the notion of limiting reporting to an annual report reflects a by-gone era.  In our current 24 hour, social media driven news cycle, restrictions on the ability to disseminate information – particularly information that touches on the privacy of millions of Canadians – cannot be permitted to remain out of the public eye until an annual report can be tabled.  Where the Commissioner deems it in the public interest, the Office must surely have the power to disclose in a timely manner.

2.    Strengthen Protections

As this Committee has already heard, the Privacy Act falls woefully short in meeting the standards of a modern privacy act.  Indeed, at a time when government is expected to be model, it instead requires far less of itself than it does of the private sector. A key reform in my view is the limiting collection principle.  A hallmark of private sector privacy law, the government should similarly be subject to collecting only that information that is strictly necessary for its programs and activities.

3.    Breach Disclosure

Breach disclosure legislation has become commonplace in the private sector privacy world and it has long been clear that similar disclosure requirements are needed within the Privacy Act. The Treasury Board guidelines are a start, but legal rules are essential. In fact, the need for reform is even stronger given the absence of security standards within the current Act.  Provisions that establish such standards and mandate disclosure in the event of a breach are crucial to establish an appropriate level of accountability and to ensure that Canadians can guard against potential identity theft and other harms.

4.    Privacy Impact Assessments

Privacy touches us in many ways and it similarly is implicated by many pieces of legislation.  The Privacy Commissioner has regularly appeared before Committees to provide a privacy perspective on proposed legislation, yet this approach runs the risk of rendering privacy as little more than a mere afterthought.  It is far more appropriate to conduct privacy impact assessments before legislation is tabled or at least before implementation.

B.    Bigger Picture

We could address some of the long standing irritants about the Privacy Act and still not fully address the problems.  That stems in part to the fact that there are many moving parts in the federal privacy world and a broader vision is needed.  I’d like to quickly highlight three issues that are currently on the agenda:

1.    Bill C-51’s Information Sharing Provisions

I realize the government is currently consulting on national security policy, with a particular emphasis on Bill C-51.  From my perspective, one of Bill C-51 biggest problems – perhaps its biggest – was the information sharing provisions.

The privacy-related concerns stem from Bill C-51′s Security of Canada Information Sharing Act, a bill within the bill, that went far further than sharing information related to terrorist activity..
It permits information sharing across government for an incredibly wide range of purposes, most of which have nothing to do with terrorism. The previous government tried to justify the provisions on the grounds that Canadians would support sharing information for national security purposes, but the law now allows sharing for reasons that would surprise and disturb most Canadians given how broadly that can be interpreted. Further, the scope of sharing is exceptionally broad, covering 17 government institutions, many of which have little to do with national security.

The national security consultation background paper raises this issue, but appears to largely defend the status quo, raising only the possibility of tinkering with some clarifying language.
If we don’t address the information sharing issue, I fear that many of the other potential Privacy Act improvements will be undermined. This requires a wholesale re-examination of information sharing within government and the safeguards in place to prevent misuse.

2.    Transparency and Reporting

In recent years, the stunning revelations about requests and disclosures of personal information of Canadians – millions of requests, the majority without court oversight or warrant – points to an enormously troubling weakness in Canada’s privacy laws.  Most Canadians have no awareness of these disclosures and have been shocked to learn how frequently they are used.

Recent emphasis has been on private sector transparency reporting.  Large Internet companies such as Google and Twitter have released transparency reports and they have been joined by some of Canada’s leading communications companies such as Rogers and Telus.  There are still some holdouts – notably Bell – but we have a better picture of requests and disclosures than we did before.

However, these reports represent just one side of the picture. Public awareness of the world of requests and disclosures would be far more informed if government also released transparency reports.  These need not implicate active investigations, but there is little reason that government not be subject to the same expectations on transparency as the public sector.

Indeed, the Liberal party focused on transparency in its election platform.  Improvements to access to information are absolutely critical, but transparency is about more than just opening the doors to requests for information. Pro-active disclosure of requests for Canadians’ information should be part of the same equation.

3.    Government Mandated Interception Capabilities and Decryption

Finally, I wanted to come back to the public safety consultation launched earlier this month.  While many think of it as a C-51 consultation, it is much more. The return of lawful access issues threatens to scrap the 2014 lawful access compromise and raise some very serious privacy concerns.

For example, the consultation implies that the “lack of consistent and reliable technical intercept capability on domestic telecommunications networks” presents a risk to law enforcement investigations. Yet left unsaid is that the prior proposed solutions in the form of government-mandated interception capabilities were rejected due to the enormous cost, inconsistent implementation, and likely ineffectiveness of standards that would exempt many smaller providers. Creating government-mandated interception capabilities at all providers would represent a huge privacy risk that runs roughshod over both PIPEDA and the Privacy Act.

Further, the consultation places another controversial issue on the policy table, noting that encryption technologies are “vital to cybersecurity, e-commerce, data and intellectual property protection, and the commercial interests of the communications industry” but lamenting that those same technologies can also be used by criminals and terrorists.

Given its widespread use and commercial importance, few countries have imposed decryption requirements. This year’s controversy involving access to data on an Apple iPhone owned by the San Bernardino, California shooter revived the debate over access to encrypted communications, however, and the consultation asks Canadians to comment on the circumstances under which law enforcement should be permitted to compel decryption.

A move toward compelling decryption would place more than just our privacy at risk – our innovation strategy and personal security would also hang in the balance.

In conclusion, fixing the Privacy Act is long overdue. There are no mysteries about what needs to be done. Indeed, there have been numerous studies and a steady stream of Privacy Commissioners who have identified the problems and called for reform.  What has been missing is not a lack of information but rather a lack of political will to hold government to the same standard that it holds others.  I look forward to your questions.

The post Canada’s Privacy Failure: My Appearance Before the Standing Committee on Access to Information, Privacy & Ethics appeared first on Michael Geist.

Lawful Access is Back: How the Government Quietly Revived Canada’s Most Controversial Privacy Issue

Michael Geist Law RSS Feed - Wed, 2016/10/05 - 11:17

The controversial issue of lawful access rules, which address questions of police use of Internet subscriber information and interception capabilities at Canadian telecom companies, has long been played down by Canadian governments. When policy proposals first emerged in the early 2000s, the Liberal government focused on the anti-terrorism and anti-spam benefits. Subsequent Conservative proposals promoted the ability to combat child pornography, and most recently, cyber-bullying.

Yet when the Conservatives passed lawful access legislation in late 2014, it seemed that more than a decade of debate had delivered a typical Canadian compromise. The new legislation eliminated liability concerns for Internet providers who voluntarily disclose basic subscriber information and created a series of new police powers to require preservation and access to digital data.

Notwithstanding the legislative resolution and renewed legal certainty, my new tech law column at the Globe and Mail notes that Public Safety Minister Ralph Goodale has quietly revived the lawful access debate with a public consultation that raises the prospect of new rules that would effectively scrap the 2014 compromise. Ironically, the focus this time is the public demand for amendments to Bill C-51, the Conservatives’ anti-terrorism law that sparked widespread criticism and calls for reform during last year’s election campaign.

In other words, the Canadian privacy balance is being placed at risk by a policy initiative that purports to fix privacy. Read the full column here.

The post Lawful Access is Back: How the Government Quietly Revived Canada’s Most Controversial Privacy Issue appeared first on Michael Geist.

“history begins with geology”

Fair Duty by Meera Nair - Tue, 2016/09/20 - 22:21

Those were Margaret Atwood’s words as she gave the 2016 CLC Kreisel Lecture at the Winspear Centre in April of this year. Broadcast this past Friday via CBC’s radio program Ideas, the lecture—in content, form, and delivery—exemplifies, yet again, why Ms. Atwood is both a national and international treasure. If contemporary politics did intrude into her account of some of the events which shaped Canada’s literary landscape, I have to reach for every shred of temerity in my possession to point it out. But it needs to be done.

When explaining the origins of The Writers’ Union of Canada, Ms. Atwood said:

[there was] no-one to represent their interests, the interests of writers, as opposed to the interests of publishers, readers and libraries. The latter three felt in their hearts that simply being read was honour enough for a writer, no money need be expected. The writers on the other hand took the quaint position that what they did was work and they ought to be remunerated by those making use of it. Plus ça change. Those taking the view that writers’ work is like air, to be had for breathing, now include many internet pundits, some former members of our recently departed government, and a great many universities – those bastions of fair dealing.

Ms. Atwood paused, and some nervously–charged laughter came forth from the audience. The Kriesel Lecture takes place under the auspices of the Canadian Literature Centre, established at the University of Alberta in 2006; some (perhaps many) of those in attendance were likely to be fair dealing practitioners.

Ms. Atwood is, of course, entitled to hold and express any opinion she chooses. But the strength of her reputation and influence requires that some clarification follows where it is needed. Listeners present at the Winspear Centre that evening, or receiving Friday’s broadcast, or those who might yet encounter the Ideas website, may come away with the impression that fair dealing is a morally and legally reprehensible ruse that enables universities to deny remuneration to copyright owners with impunity. The truth is far more prosaic, as truth tends to be. From the days of its codification into law in 1710, copyright has never been a grant of absolute control; it is a system of limited rights. Fair dealing is one such limit; nothing more, nothing less.

The limits upon copyright ensure that creativity, innovation, and civil society may flourish, an objective which also happens to be the raison d’etre of universities. Universities handle fair dealing with care and pay fulsomely for the resources they consume. Generally speaking, limits are the mode of entry to a space where one might hope to emulate achievements of the past. All fair dealing can do is maintain the potential for a small realm of unauthorized use, legitimate under the law, where independent expression of thought may be cultivated. No doubt, some would prefer to see copyright function in absolute form, to the exclusive benefit of current copyright owners. Be that as it may, wishing does not make it so. The system of copyright must also nurture an author yet to come.

What I prefer to reflect on, to savour, is Ms. Atwood’s beautiful presentation of some of the people who contributed to the development of Canadian literature, and their efforts to build audiences and infrastructure for reception and publication of their work. The presentation itself was titled, The Burgess Shale: The Canadian Writing Landscape of the 1960s. Ms. Atwood explained that burgess shale is a particular geological formation found in Western Canada and that “history begins with geology. Geology determines what you can grow and extract, where you can build houses and so forth.”

Ms. Atwood detailed events of the 1960s and 1970s which created an environment conducive to Canadian letters. To obvious audience delight, she began with her own life story. The skills needed for the 1960s were honed in the 1950s, a decade Ms. Atwood described as “robust amateurism—acting one moment, painting sets the next.” The capacity to multi-task served that generation well, “when it was time for a bunch of kids who didn’t know what they were doing to start new publishing companies in Canada which we did in the 1960s.” Due to demographics (the Depression and WWII had taken its toll on birth rates), that generation’s services were in need: “… we stepped into a relative emptiness; we sought to fill it. We didn’t see why not.” Needs that were met creatively to say the least (the stories about the All-Star Eclectic Typewriter Revue and the Pornography Project are priceless; I will say no more than to recommend you listen for yourselves.)

But the limitations of an hour could not allow Ms. Atwood to convey a deeper geological survey of events prior to the 1940s. She remarked that Canadian literature had no presence in her early life; while an occasional Canadian creation might have appeared among the school-imposed diet of Hardy, Shakespeare, Eliot and Keats, “we weren’t taught Canadian literature as a subject in school.” A key difficulty for a Canadian author was the lack of literary infrastructure, a viciously circular problem. Canadian writers needed readers; without distribution, readers could not be had, and, without readers, distribution could not be entertained. But as to how this situation came about, that bedrock had solidified a century earlier.

The root cause was Canada’s inability to develop its own publishing industry in the 19th century. Caught between British Imperialism and American capitalism, Canadian publishers were prohibited from reprinting the bestsellers of the day, meaning those of prominent English authors, while American competitors were free to reprint those same works and capture the Canadian market. Canadian governments, of both Colonial and Dominion stature, laboured for years to develop an equitable copyright arrangement that would provide local publishing firms the option to supply their own markets and build their own capacity, by reprinting British works with permission and provision of royalties. The logic of the arrangement was consistently set aside by the British Crown, through invocation of the sanctity of copyright and the imperative of Empire. This, despite the fact that the copyright demanded of Canada did not serve Canadian writers. British copyright was to be respected in Canada, but Canadian writers, unless published in Britain, were not afforded any such protection.

British intransigence was due, not merely to slavish attention to the word “copy.” What Britain longed for was a reciprocal copyright arrangement with the United States, and Canada was the bargaining chip. Eventually reciprocity did come, but strictly on American terms: publication must use plates set in the United States, and occur prior to, or concurrent with, publication elsewhere. (Notably, the proposed Canadian offer was far more generous to the British; the proposal allowed delayed publication in Canada via imported plates.) Added to these conditions that ensured continued prosperity to American reprinters, the United States sought assurances from Britain that Canada would not interfere in American distribution in Canada.

Details of this period of time are covered in my work, “The Copyright Act of 1889—A Canadian Declaration of Independence, Canadian Historical Review (2009). For a complete monograph on the events of this time, Eli Maclaren’s work, Dominion and Agency – The Structuring of the Canadian Book Trade, 1867-1918 (2011) is stunning. Painstakingly researched, he confirms that the manner in which copyright law was applied to Canada diminished any ambition to build or support independent publishers of original Canadian material.

Even after Canada achieved some measure of copyright autonomy through amendments in 1900—when Canadian publishers could finally reproduce foreign work in conformity with the copyright owner’s wishes—the benefits of the Act principally accrued to established American publishers via branch-plant operations in Canada. Maclaren describes the dual-objectives of Macmillan Company of Canada as “[to] distribute the trade books of the London and New York houses to the Canadian market and publish textbooks for Canadian schools (p.123).” The omission of original publishing was not an oversight, original publishing was strictly frowned upon. When Frank Wise, president of the Canadian operation, requested that some manner of capital be kept available for publication of promising works, the head office made its displeasure quite clear:

… we should be more than a little surprised and displeased if you embarked upon any publishing venture of importance without consulting us. … The only kind of publishing which ought to originate in Canada is the production of school books authorized by one or the Provincial governments (p.124).

It was against this legacy that Ms. Atwood and her peers laboured. That they are to be congratulated is more than evident. But the congratulations should not eclipse what we know now—the fact that Canadian literature began even before Canada, exists during Canada and may safely be expected to endure in any Canada to come. First Nations’ culture has relied on story-telling since time immemorial, early colonists’ writings left a mark we feel even today (Susanna Moodie and Catherine Parr Trail come to mind) and even when fleeing Canada in search of markets, Canadian literature took shape under the themes of regionalism, as Nick Mount expertly uncovers in When Canadian Literature Moved to New York (2005). Mount does not valorize the writings of all Canadian expats, but lauds the importance of the Canadian community of writers, editors, and publishers that formed in New York to the advantage of Canadian writing.

It is the aspect of community that permeated Ms. Atwood’s recollections and was present in another address given earlier this year. As a keynote speaker at the Jaipur Literary Festival she invoked the theme of community on both global and individual scale. And she reminded listeners of the most intrinsic element of the community that underwrites literary effort:

Here we all are to celebrate books and authors and writing and yes, reading. Writers and readers are joined at the hip. Every act of writing presupposes a reader, even if it is your own secret journal and the future reader is you… Platforms may be changing but thanks to the Internet, reading has become more possible for more people than at any other time in history. … There is a lot more access to literacy than there used to be. …

With thanks to Margaret Atwood, and a great many universities. Those bastions of fair dealing.

Behind the Scenes of the Digital CanCon Consultation: No Netflix Regs, CRTC Review or Copyright Overhaul

Michael Geist Law RSS Feed - Fri, 2016/09/16 - 10:28

Canadian Heritage Minister Melanie Joly launched her review of CanCon rules last spring by stating that “everything is on the table.” The pre-consultation revealed a sharp divide between industry and the public with industry stakeholders emphasizing more public and government support and the public focusing on efforts to promote Canadian content.

This week I obtained government documents under the Access to Information Act that provide some interesting insights in the behind-the-scenes process that brought a major government consultation from concept to launch in a matter of weeks. The roughly thousand pages show Canadian Heritage officials worked long hours to develop timelines, consultation documents, communications plans, and advisory committees. Given the time constraints, it is an impressive effort.

The documents also highlight internal thinking on several major issues, including Netflix regulation, the CRTC’s Let’s Talk TV rulings, and copyright. On the Netflix tax, the documents indicate that officials downplayed the possibility of legislative reforms for broadcasting before the consultation was even launched. Part of the department’s communication plan includes the following Q&A on Netflix regulation:

Some have been calling for changes to the Broadcasting Act – including to require OTT players like Netflix to be regulated by the CRTC. Do you see moving in that direction as a potential result of these consultations?

a. In my view, legislation is not the starting point. It’s one tool that governments have used to support cultural policy objectives.
b. The starting point is ensuring that we strengthen the creation, discovery and export of Canadian content in a digital world.
c. When it comes to tools like legislation, you’ll see that our questionnaire asks Canadians and stakeholders what tools they think will be most effective in the longer-term.
d. I don’t think we should assume the tools developed by previous generations will be the best ones for the future.
e. Netflix, Shomi, Crave – these are all great platforms. A key issue is the discovery of Canadian content on these platforms and how we can help creators ensure their content is found on platforms such as these.

In the weeks that followed, Joly indicated that there will be no Netflix tax (a position consistent with the consultation document released this week). The reference to not assuming that tools developed by previous generations working for the future is particularly notable.

The internal documents also reveal that officials do not plan to use the consultation process to review or overturn the CRTC’s Talk TV rulings.  Those have been controversial within the Canadian broadcast and creative communities, but the communication plan is clear on the issue:

Many of your cultural stakeholders in the broadcasting sector are still reeling from the CRTC’s LTTV decisions. Will the consultations look into action that can be taken to reverse these decisions?

No. These consultations are focused on the future and ensuring our cultural sector navigates the digital shift successfully.

The role of copyright in the consultation is also interesting. When the consultation was first reported in the Globe, the inclusion of copyright caught many by surprise given the planned copyright review in 2017.  While that generated some concern, the reality is that copyright was not even included in the initial government documents. Despite weeks of drafts, no one seemed to notice that the cultural toolkit made no reference to the Copyright Act.

Days before the launch, adding the Copyright Act became an issue with a request to the Joly’s chief of staff to amend the toolkit diagram.

The change was made along with a communication plan addition that also downplayed the role of copyright in the consultation:

Will these consultations replace the Parliamentary Review of the Copyright Act which will take place in 2017?

No. The Copyright Act includes a requirement for a review of the Act by Parliament every five years to ensure that it remains responsive to a changing environment. The Parliamentary review will be launched in late 2017.  The objective of the present consultations is to hear from Canadians and stakeholders on the role of the federal cultural policy toolkit plays in strengthening content creation, discovery and export in a digital world.

There are still months left in the consultation but the internal documents shed new light on the government’s thinking before its formal launch and hint at where the consultation is likely to go as it nears the stage of recommendations and policy formulation later this fall.

The post Behind the Scenes of the Digital CanCon Consultation: No Netflix Regs, CRTC Review or Copyright Overhaul appeared first on Michael Geist.

No Netflix Tax & No New Money: Reading Between the Lines of the Digital CanCon Consultation

Michael Geist Law RSS Feed - Wed, 2016/09/14 - 11:56

Canadian Heritage Minister Melanie Joly’s release of the Canadian content in a digital world consultation is likely to spark renewed demands from industry stakeholders for more money from two main sources: unregulated Internet companies such as Netflix and the government. As I noted in my first post on the consultation release, there is a significant divide between the industry and the public on the issue.  Industry stakeholders emphasize more public and government support, while the public is focused on efforts to promote Canadian content.

The government will surely wait for the consultation to close before it adopts firm positions, but the new consultation paper makes it clear that not everything is on the table. In fact, the consultation adopts several notable policies and sends some signals about future funding sources.

First, it leaves little doubt that the government opposes new regulations on online video providers. The consultation states:

To respect how Canadians want to consume and interact with digital content, we are committed to net neutrality – the idea that a public information network like the internet is most useful if all content, sites, and platforms are treated equally. The way forward is not attempting to regulate content on the Internet, but focusing on how to best support Canada’s creators and cultural entrepreneurs in creating great content and in competing globally for both Canadian and international audiences.

Strong support for net neutrality and the avoidance of Internet regulation means that proposals to exempt Canadian content from data caps or mandate certain rules for online providers are off the table. In fact, if Canada moves forward with the TPP, it will have also agreed to a ban on limitations on access to foreign video providers and no discriminatory payment requirements. In other words, no Netflix tax.

Second, the government uses the consultation to suggest where more money may come from and it is not from Canadian tax dollars. It states:

Alongside the historic investment of $1.9 billion in arts and culture announced by the Government in Budget 2016, we need to modernize how government supports the creation, discovery and export of Canadian content.

By framing the consultation as an initiative that sits alongside already-announced funding, it seems unlikely that more funding will be viewed as the answer. Indeed, the government is pretty clear about where it thinks the money will come from: foreign markets. The consultation is littered with references to the issue:

Grabbing a bigger piece of the global pie is critical to building a strong and viable creative sector

With global markets increasingly open to Canadian businesses, capturing a greater slice of the global pie is one of the ways that we can support Canadian creators back home.

Export and international audiences will be critical to the future sustainability of Canada’s cultural sector and its economy. Partnerships and foreign financing are key.

When we collaborate across cultural sectors and with foreign partners, we create new opportunities for our creators to showcase their talents and find new pathways to audiences around the world.

What might this mean? A guess might be that the CRTC’s recent controversial decision on the definition of CanCon might be the tip of the iceberg as the government moves to open its funding programs to greater foreign participation, shifts more dollars toward promotion, adds support for new digital platforms, and continues to re-examine what qualifies as a Canadian production. Those reforms would be consistent with a policy document that refers to “innovation” 16 times, far more than the handful of references to funding and financing.

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Same As It Ever Was: The Gap Between Public and “Stakeholder” Views on Canadian Content

Michael Geist Law RSS Feed - Tue, 2016/09/13 - 10:35

Canadian Heritage Minister Melanie Joly launched the next phase of her consultation on supporting Canadian content in a digital world this morning, but the results from the first “pre-consultation” phase – an online poll of the public and stakeholders – already points to the policy challenge faced by the government. The poll received more than 10,000 responses with participants asked to identify the major barriers and challenges for Canadian content. The perspective of the public and stakeholders (I place “stakeholders” in quotation marks in the title because all Canadian stakeholders) are strikingly different, with the public citing the challenges in finding and promoting content and the stakeholders seeking more money.

For example, the survey asked participants to identify “the most urgent challenges facing the culture sector in the creation, discovery and export of Canadian content in a digital world.” The top answer for the public was foreign competition and making content stand out online. In other words, the public says there is an incredible array of choice led by large foreign providers and that finding Canadian content is not easy.  Industry stakeholders do not see it that way, however.  Their top challenge – by far – was creator remuneration followed by how public funding is allocated. Foreign competition and making content stand out online rank further down the list.

The divide is similarly apparent when asked about the most urgent barriers. The public says there isn’t enough quality content produced. Stakeholders blame everyone else – their top two barriers are consumers (who they say expect free or low cost content) and the government (they say their programs have not kept pace).

Given these views, the proposed solutions also diverge significantly. The public says the most effective tool to address the issue better efforts to promote and brand Canada abroad. Stakeholders want more money as “enhanced public support for creators” and “direct government support to creative industries” – both essentially more tax dollars for the industry – rank as the top two solutions.

Joly’s latest consultation talks about looking confidently to the future and rightly notes that “the way forward is not attempting to regulate content on the Internet.”  The public seems largely on board as their responses focus on the need to better promote Canadian content so that it is easier to find. The industry, on the other hand, seems content to use the consultation to seek more public funding, suggesting that the technologies may have changed, but using the policy process to lobby for more tax dollars remains the same.

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Not a Free for All: Canadian University Libraries Spending Hundreds of Millions on Licensing

Michael Geist Law RSS Feed - Thu, 2016/09/08 - 09:59

As students across Canada head back to school this week, the Canadian Association of Research Libraries (CARL), which represents 31 member libraries, issued a reminder that Canadian education spends hundreds of millions of dollars every year on content licensing. Access Copyright and the publishing community have tried to paint the Canadian situation as a free-for-all, but the reality is that educational institutions, libraries, and students are still buying books and licensing content. In fact, recent U.S. data shows that textbook costs are increasing far faster than any other education cost.

The CARL release states:

The 31 member libraries of the Canadian Association of Research Libraries (CARL) spent $293 million on information resources in 2014-15, demonstrating a clear commitment to accessing print and digital content legally and rewarding content owners accordingly. Universities are actively engaged in outreach to their faculty, staff, and students, educating them on their rights and responsibilities under the Copyright Act and ensuring that uses of material under copyright fall well within the provisions of the law. Where educational uses are more substantive and therefore fall outside of fair dealing, the content is either purchased to be added to licensed collections, or rights clearances are obtained and royalties are paid for these uses. Trained, knowledgeable library staff support these activities.

Some voices in the publishing community and associated lobbyists have stated in the media that the education market has evaporated as a result of users’ fair dealing rights. This is inaccurate. Universities continue to buy and to license access to published works, at substantial cost, using public funds and student tuition dollars.

The hundreds of millions of dollars being spent on licensing highlights again why the Canadian publishing industry claims about fair dealing are simply false. Indeed, the best study on the issue, Reading the Tea Leaves, which was prepared for Creative BC and the Association of Book Publishers of British Columbia, characterizes the challenge for educational publishing as follows:

Scholarly and educational publishers share some of the same issues as trade publishers, but they face other unique challenges. Tablet and other nonprint use will increase in the school systems here and abroad, changing how educational materials are bought, used and updated. Scholarly publishers and trade publishers that sell into the academic market are struggling with the impact on their sales of Open Access and fair use policies, tailored subscription services such as Scribd’s Edelweiss, used book sales, student piracy and increased library use for class reading lists.

As CARL rightly concludes, “we believe that fair dealing in the Copyright Act is serving its intended purpose: enabling fair portions from works of creativity or scholarship to be drawn upon in learning environments, thereby stimulating innovation and the creation of new research and new knowledge.”

The post Not a Free for All: Canadian University Libraries Spending Hundreds of Millions on Licensing appeared first on Michael Geist.

Routing Detours: Can We Avoid Nation-State Surveillance?

Freedom to Tinker - Tue, 2016/08/30 - 18:44
Since 2013, Brazil has taken significant steps to build out their networking infrastructure to thwart nation-state mass surveillance.  For example, the country is deploying a 3,500-mile fiber cable from Fortaleza, Brazil to Portugal; they’ve switched their government email system from Microsoft Outlook to a state-built system called Expresso; and they now have the largest IXP […]

Differential Privacy is Vulnerable to Correlated Data — Introducing Dependent Differential Privacy

Freedom to Tinker - Fri, 2016/08/26 - 09:57
[This post is joint work with Princeton graduate student Changchang Liu and IBM researcher Supriyo Chakraborty. See our paper for full details. — Prateek Mittal ] The tussle between data utility and data privacy Information sharing is important for realizing the vision of a data-driven customization of our environment. Data that were earlier locked up […]

Language necessarily contains human biases, and so will machines trained on language corpora

Freedom to Tinker - Wed, 2016/08/24 - 16:32
I have a new draft paper with Aylin Caliskan-Islam and Joanna Bryson titled Semantics derived automatically from language corpora necessarily contain human biases. We show empirically that natural language necessarily contains human biases, and the paradigm of training machine learning on language corpora means that AI will inevitably imbibe these biases as well. Specifically, we look at […]

Security against Election Hacking – Part 2: Cyberoffense is not the best cyberdefense!

Freedom to Tinker - Thu, 2016/08/18 - 09:00
State and county election officials across the country employ thousands of computers in election administration, most of them are connected (from time to time) to the internet (or exchange data cartridges with machines that are connected).  In my previous post I explained how we must audit elections independently of the computers, so we can trust the […]
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