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Out of Tune?: Government Documents Reveal Concern With Integrity of Ontario Music Fund Assessments

Michael Geist Law RSS Feed - Mon, 2016/04/04 - 10:18

Appeared in the Toronto Star on April 4, 2016 as Ontario Music Fund Oversight Hits a Sour Note

The Canadian music industry gathered in Calgary last weekend for the Juno Awards, the industry’s biggest awards gala that has grown into a week-long event. While the award show is the public face of the Junos, behind the scenes are years of negotiations with governments to provide millions in public funding.

With Ontario hosting the Junos twice in three years – Hamilton hosted in 2015 and Ottawa is slated to host in 2017 – the provincial Liberal government has committed to enormous taxpayer support. According to internal documents recently obtained under the provincial access to information laws, that funding has sparked concerns within government departments due to the mushrooming budgets, inflated claims about the economic impact of the awards, and what officials have described as a “breach [of] the integrity of the objective grant assessment process.”

Earlier this year, I wrote about the problems associated with the Ontario Music Fund (OMF), the provincial government’s flagship funding program for the music industry. The fund, which is administered by the Ontario Media Development Corporation (OMDC), has doled out nearly $30 million in two years despite little public transparency on how the money has been spent and questionable claims about job creation.

It represents a major lobbying victory for Music Canada, which counts the three major foreign record labels (Sony Music Entertainment Canada, Universal Music Canada, and Warner Music Canada) as its primary members. Those three companies averaged more than $830,000 per award in the first year of the fund, far beyond the benefits received by domestic record companies.

Music Canada has close links to the Liberal government, contributing thousands of dollars in recent years to party coffers under the political financing rules that Premier Kathleen Wynne has now promised to amend after reports last week revealed demands that cabinet ministers raise hundreds of thousands of dollars from business and labour groups.

The OMF record label funding has raised eyebrows within the industry, but it is the diversion of fund support for the Juno awards that sparked internal controversy. The issue started with a July 2013 letter from the Canadian Academy of Recording Arts and Sciences (CARAS), the organization that administers the Juno Awards, to the office of then-Minister of Tourism, Culture and Sport Michael Chan requesting funding support for the 2015 and 2017 awards. The letter was copied to the OMDC and Music Canada.

The government moved quickly on the issue, envisioning using the music fund, which was only finalized after the initial CARAS letter, to provide the majority of support. There were questions, however, about proposed budgets that were far higher than previous Ontario-hosted Juno awards. For example, OMDC provided $195,000 for the 2011 Junos held in Ottawa (Celebrate Ontario contributed another $200,000). This time, the OMDC was being asked for at least five times that amount for the 2015 Junos alone.

Chan wrote to CARAS in October 2013, indicating that it should submit an application to the music fund. The application was delivered one month later and quickly reviewed by the OMDC. While it provided supportive comments to the government, ministry officials were concerned that there was still no detailed budget and that the economic impact figures included double counting, which officials said “inflates the true impact of the awards in Ontario.”

Those concerns were relayed to the OMDC, which remarkably redrafted some of the CARAS materials. That led one ministry official to write that “I do not feel it is appropriate for the CEO of OMDC to be revising and expanding on an argument from an applicant for why they should be funded, especially since, if funded, the funding would flow through the OMDC. This seems to breach the integrity of the objective grant assessment process. I understand that other staff members in our unit have similar concerns.”

Despite the concerns, the Ontario government announced plans several weeks later to support the 2015 Juno Awards with the OMDC providing $1 million in funding. When asked about the decision making process, a ministry spokesman stated that “funding decisions are made by an Oversight Committee including senior executives from both OMDC and the Ministry of Tourism, Sport and Culture.” Last fall, the Liberal government sang a similar song, promising $750,000 to support the 2017 Juno Awards in Ottawa.

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 Out of Tune?: Government Documents Reveal Concern With Integrity of Ontario Music Fund Assessments appeared first on Michael Geist.

U.S. State Department vs. USTR on Eli Lilly and Canadian Patent Utility Rules

Michael Geist Law RSS Feed - Fri, 2016/04/01 - 10:09

The Eli Lilly claim against Canada for hundreds of millions due to a court decision involving patent utility has attracted considerable attention with fears that the case foreshadows many more corporate lawsuits if the Trans Pacific Partnership becomes a reality. While the Canadian government has raised doubts about the independence of the Canadian Chamber of Commerce intervention in the case, the government must be a bit confused on where the U.S. stands on the issue. Yesterday, the U.S. Trade Representative issued its 2016 report on foreign trade barriers and stated the following on the case:

With respect to pharmaceuticals, the United States continues to have serious concerns about the impact of the patent utility requirements that Canadian courts have adopted.

That is consistent with the Eli Lilly argument, yet last month the U.S. State Department provided its own submission in the case. The U.S. government appears to undermine USTR arguments, seemingly siding with the Canada on the issue. The U.S. submission states each country has the right to determine how it implements the utility requirement, the possibility of revocation of patent rights, and for its patent laws to evolve:

To satisfy the utility requirement, such inventions must be “capable of industrial use” or “useful.” The NAFTA does not prescribe any particular definition of the terms, “capable of industrial application,” or “useful,” but the text notes that these two terms may be deemed to be synonymous. Article 1709(1) provides each NAFTA Party with the flexibility to determine the appropriate method of implementing the requirements of Chapter Seventeen, including the utility requirement in Article 1709(1), within its own legal system and practice.

The U.S. submission continues:

Article 1709(8) provides that a Party may revoke a patent only when, inter alia, “grounds exist that would have justified a refusal to grant the patent[.]” Thus, if a court, in determining whether to revoke a patent, finds that “grounds exist” that would have provided the Party’s patent examining authority to refuse to grant the patent, then revocation of that patent would not be inconsistent with Article 1709(8). Article 1709(8) does not mean that courts are limited to reviewing the specific grounds of refusal before the patent examiner; the use of the present tense “exist” in Article 1709(8) confirms this interpretation. Nor can it mean that NAFTA Parties are required to freeze their intellectual property laws indefinitely from the date of review of a given patent. Article 1709(8) allows for evolvement of patent law.

In other words, it would appear that even the U.S. has now abandoned Eli Lilly and undermined its own trade representative’s claims about Canadian law and trade barriers.

The post U.S. State Department vs. USTR on Eli Lilly and Canadian Patent Utility Rules appeared first on Michael Geist.

Why Making Johnny’s Key Management Transparent is So Challenging

Freedom to Tinker - Thu, 2016/03/31 - 09:53
In light of the ongoing debate about the importance of using end-to-end encryption to protect our data and communications, several tech companies have announced plans to increase the encryption in their services. However, this isn’t a new pledge: since 2014, Google and Yahoo have been working on a browser plugin to facilitate sending encrypted emails […]

Canada’s Innovation Challenge: Keeping The Billion Dollar Club At Home

Michael Geist Law RSS Feed - Tue, 2016/03/29 - 09:10

From the moment the Liberal government took office last fall, it left no doubt that innovation was going to be a top priority. Gone was Industry Canada, replaced by the Ministry of Innovation, Science, and Economic Development, with Navdeep Bains, a close confidant of Prime Minister Justin Trudeau, installed as the responsible minister.

Last week’s budget continued the emphasis on innovation, promising $150 million in 2017-2018 for an innovation agenda. The full details have yet to be revealed, but the budget also added tax reforms to create investment incentives (and quietly dropped a tax change that would have hurt start-up companies), support for innovation clusters, and increased dollars for scientific research.

My weekly technology law column (Toronto Star version, homepage version) notes that the government says its goal is to make Canada a “centre of global innovation”, a significant challenge given that studies persistently point to Canada’s innovation gap. Last year, the Science, Technology and Innovation Council (STIC), a government-backed group, concluded that Canada “was not globally competitive” and that “it is falling further behind global competitors and facing a widening gap with the world’s top five performing countries.”

The STIC data shows that Canadian businesses lag behind their global counterparts in investing in research and development and do a poor job of integrating advanced research talent into the workplace.

Reversing these trends will take a concerted policy effort to establish incentives to encourage Canadian businesses to innovate at home. Indeed, a recent U.S. study shows that Canadians are behind a significant number of new start-up companies with billion dollar valuations. The problem? The Canadians no longer live in Canada, having moved to the U.S. to find their business success.

The National Foundation for American Policy study reveals that more than half of the 87 U.S. start-ups with valuations of more than US$1 billion that have yet to go public were started by immigrants. Canada ranks as the second largest talent source behind only India.

The Canadian-created companies include some of the biggest names in technology today including:

•    Uber (co-founded by Garrett Camp, who went to school at the University of Calgary and hit earlier with StumbleUpon)
•    Slack (co-founded by Stewart Butterfield, who earlier co-founded Flickr)
•    CloudFlare (co-founded by Michelle Zatlyn, who graduated from McGill University before moving to the U.S. for business school)
•    SpaceX (founder Elon Musk has a Canadian citizenship and attended Queen’s University).

Other companies with Canadian ties include AppDirect, ContextLogic (maker of the Wish shopping app), and Moderna Therapeutics.

There is nothing new about Canadians moving to the U.S. to pursue their technology dreams. Companies such as eBay and Flickr have strong Canadian connections (Toronto native Jeff Skoll co-founded eBay) and estimates suggest that there are thousands of Canadians in the Silicon Valley alone. In fact, the C100 group is a Silicon Valley organization specifically designed to assist Canadians in California find financial backing and commercial success.

There obviously are some Canadian success stories, but domestic tech stars such as Shopify are notable in part because they decided against moving to the U.S. With a robust venture capital community, more competitive telecommunications market, laws that support innovative Internet companies through copyright fair use and liability safe harbours, and a well-developed entrepreneurial culture, Canada is a long way from replicating the U.S. innovation environment.

Bains’ innovation agenda may be a centerpiece of the government’s economic strategy, but success will ultimately be defined by the ability to create business, legal, and finance policies that entice the next generation of billion dollar companies to stay at home.

The post Canada’s Innovation Challenge: Keeping The Billion Dollar Club At Home appeared first on Michael Geist.

Canada Needs to Keep Next Billion-Dollar Startup at Home

Michael Geist Law RSS Feed - Tue, 2016/03/29 - 08:50

Appeared in the Toronto Star on March 28, 2016 as Canada Needs to Keep Next Billion-Dollar Startup at Home

From the moment the Liberal government took office last fall, it left no doubt that innovation was going to be a top priority. Gone was Industry Canada, replaced by the Ministry of Innovation, Science, and Economic Development, with Navdeep Bains, a close confidant of Prime Minister Justin Trudeau, installed as the responsible minister.

Last week’s budget continued the emphasis on innovation, promising $150 million in 2017-2018 for an innovation agenda. The full details have yet to be revealed, but the budget also added tax reforms to create investment incentives (and quietly dropped a tax change that would have hurt start-up companies), support for innovation clusters, and increased dollars for scientific research.

The government says its goal is to make Canada a “centre of global innovation”, a significant challenge given that studies persistently point to Canada’s innovation gap. Last year, the Science, Technology and Innovation Council (STIC), a government-backed group, concluded that Canada “was not globally competitive” and that “it is falling further behind global competitors and facing a widening gap with the world’s top five performing countries.”

The STIC data shows that Canadian businesses lag behind their global counterparts in investing in research and development and do a poor job of integrating advanced research talent into the workplace.

Reversing these trends will take a concerted policy effort to establish incentives to encourage Canadian businesses to innovate at home. Indeed, a recent U.S. study shows that Canadians are behind a significant number of new start-up companies with billion dollar valuations. The problem? The Canadians no longer live in Canada, having moved to the U.S. to find their business success.

The National Foundation for American Policy study reveals that more than half of the 87 U.S. start-ups with valuations of more than US$1 billion that have yet to go public were started by immigrants. Canada ranks as the second largest talent source behind only India.

The Canadian-created companies include some of the biggest names in technology today including:

•    Uber (co-founded by Garrett Camp, who went to school at the University of Calgary and hit earlier with StumbleUpon)
•    Slack (co-founded by Stewart Butterfield, who earlier co-founded Flickr)
•    CloudFlare (co-founded by Michelle Zatlyn, who graduated from McGill University before moving to the U.S. for business school)
•    SpaceX (founder Elon Musk has a Canadian citizenship and attended Queen’s University).

Other companies with Canadian ties include AppDirect, ContextLogic (maker of the Wish shopping app), and Moderna Therapeutics.

There is nothing new about Canadians moving to the U.S. to pursue their technology dreams. Companies such as eBay and Flickr have strong Canadian connections (Toronto native Jeff Skoll co-founded eBay) and estimates suggest that there are thousands of Canadians in the Silicon Valley alone. In fact, the C100 group is a Silicon Valley organization specifically designed to assist Canadians in California find financial backing and commercial success.

There obviously are some Canadian success stories, but domestic tech stars such as Shopify are notable in part because they decided against moving to the U.S. With a robust venture capital community, more competitive telecommunications market, laws that support innovative Internet companies through copyright fair use and liability safe harbours, and a well-developed entrepreneurial culture, Canada is a long way from replicating the U.S. innovation environment.

Bains’ innovation agenda may be a centerpiece of the government’s economic strategy, but success will ultimately be defined by the ability to create business, legal, and finance policies that entice the next generation of billion dollar companies to stay at home.

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 Canada Needs to Keep Next Billion-Dollar Startup at Home appeared first on Michael Geist.

Canadian TPP Consultation Launches As U.S. Certification Looms in the Distance

Michael Geist Law RSS Feed - Thu, 2016/03/24 - 11:34

The Trans Pacific Partnership, a massive trade deal that covers 40 per cent of the world’s GDP, has mushroomed into a political hot potato in the United States. Presidential candidates Donald Trump, Hillary Clinton, and Bernie Sanders are all expressing either opposition or concern with the agreement. With the deal in doubt in the U.S., the Canadian government is using the uncertainty to jump start a much-anticipated and long-overdue public consultation.

My weekly technology law column (Toronto Star version, homepage version) notes that earlier this month, the Standing Committee on International Trade announced plans for hearings to be held across the country and invited all Canadians to provide written submissions by the end of the April. When added to the open call for comments from Global Affairs Canada, the government department that negotiated the TPP, the public has an important opportunity to have its voice heard on a trade deal that could impact virtually every aspect of the Canadian economy.

The national consultation comes as a growing number of Canadian business leaders express concerns with the agreement. Jim Balsillie, the former co-CEO of Research In Motion, has garnered considerable media attention for his criticisms, but he has been joined in recent weeks by others such as Shopify CEO Tobi Lütke and Ford Canada CEO Dianne Craig.

Yet just as Canadians begin to grapple with fine print of the 6,000 page agreement, it has become increasingly clear that Canada will face stiff opposition from the U.S. if it seeks to exercise flexibility in how it implements the deal. Growing concern over provisions that may increase health care costs, extend the term of copyright, restrict the ability to regulate online services such as Uber, and limit rules designed to support Canadian culture seem likely to run into U.S. demands that it “certify” whether other TPP countries have, in its view, properly implemented the agreement.

The certification process is not found in the text of the TPP, but it is how the U.S. approaches ratification of trade agreements. Under U.S. law, before any trade agreement can take effect, the President must determine whether the agreement’s partners have taken measures to bring it into compliance with the deal. The determination can involve extensive review and consultation involving many U.S. government agencies and departments including the State Department, Commerce, Agriculture, Treasury, and the U.S. Trade Representative. If the President does not certify the implementation, the U.S. cannot ratify the treaty.

The U.S. certification process is not an objective process conducted by independent experts. In fact, U.S. companies have already begun to call for an aggressive certification process with the creation of a “pre-certification checklist.”  Those companies argue that certification represents the best opportunity for the U.S. to ensure that its interpretation of the deal is followed by other countries.

How can the U.S. exclusively determine how other countries implement the TPP?

The agreement stipulates that it cannot take effect without ratification from at least six countries representing at least 85 per cent of GDP within the TPP countries. This effectively means that the TPP cannot take effect without U.S. support. It plans to leverage this power by withholding ratification until it is satisfied that other TPP countries meet its certification requirements. The approach gives the U.S. one last opportunity to shape the agreement by establishing its own requirements and forcing countries such as Canada to abide by its interpretation.

Canadian plans to take advantage of flexibilities on copyright or addressing cultural regulations could therefore result in a heated battle rendering much of the public consultation and suggestions for reform moot, while leaving International Trade Minister Chrystia Freeland with the difficult challenge of reconciling public concerns and U.S. demands.

The post Canadian TPP Consultation Launches As U.S. Certification Looms in the Distance appeared first on Michael Geist.

When It Comes to the TPP, U.S. Demands Could Trump Canadian Desires

Michael Geist Law RSS Feed - Thu, 2016/03/24 - 11:20

Appeared in the Toronto Star on March 21, 2016 as When It Comes to the TPP, U.S. Demands Could Trump Canadian Desires

The Trans Pacific Partnership, a massive trade deal that covers 40 per cent of the world’s GDP, has mushroomed into a political hot potato in the United States. Presidential candidates Donald Trump, Hillary Clinton, and Bernie Sanders are all expressing either opposition or concern with the agreement. With the deal in doubt in the U.S., the Canadian government is using the uncertainty to jump start a much-anticipated and long-overdue public consultation.

Earlier this month, the Standing Committee on International Trade announced plans for hearings to be held across the country and invited all Canadians to provide written submissions by the end of the April. When added to the open call for comments from Global Affairs Canada, the government department that negotiated the TPP, the public has an important opportunity to have its voice heard on a trade deal that could impact virtually every aspect of the Canadian economy.

The national consultation comes as a growing number of Canadian business leaders express concerns with the agreement. Jim Balsillie, the former co-CEO of Research In Motion, has garnered considerable media attention for his criticisms, but he has been joined in recent weeks by others such as Shopify CEO Tobi Lütke and Ford Canada CEO Dianne Craig.

Yet just as Canadians begin to grapple with fine print of the 6,000 page agreement, it has become increasingly clear that Canada will face stiff opposition from the U.S. if it seeks to exercise flexibility in how it implements the deal. Growing concern over provisions that may increase health care costs, extend the term of copyright, restrict the ability to regulate online services such as Uber, and limit rules designed to support Canadian culture seem likely to run into U.S. demands that it “certify” whether other TPP countries have, in its view, properly implemented the agreement.

The certification process is not found in the text of the TPP, but it is how the U.S. approaches ratification of trade agreements. Under U.S. law, before any trade agreement can take effect, the President must determine whether the agreement’s partners have taken measures to bring it into compliance with the deal. The determination can involve extensive review and consultation involving many U.S. government agencies and departments including the State Department, Commerce, Agriculture, Treasury, and the U.S. Trade Representative. If the President does not certify the implementation, the U.S. cannot ratify the treaty.

The U.S. certification process is not an objective process conducted by independent experts. In fact, U.S. companies have already begun to call for an aggressive certification process with the creation of a “pre-certification checklist.”  Those companies argue that certification represents the best opportunity for the U.S. to ensure that its interpretation of the deal is followed by other countries.

How can the U.S. exclusively determine how other countries implement the TPP?

The agreement stipulates that it cannot take effect without ratification from at least six countries representing at least 85 per cent of GDP within the TPP countries. This effectively means that the TPP cannot take effect without U.S. support. It plans to leverage this power by withholding ratification until it is satisfied that other TPP countries meet its certification requirements. The approach gives the U.S. one last opportunity to shape the agreement by establishing its own requirements and forcing countries such as Canada to abide by its interpretation.

Canadian plans to take advantage of flexibilities on copyright or addressing cultural regulations could therefore result in a heated battle rendering much of the public consultation and suggestions for reform moot, while leaving International Trade Minister Chrystia Freeland with the difficult challenge of reconciling public concerns and U.S. demands.

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 When It Comes to the TPP, U.S. Demands Could Trump Canadian Desires appeared first on Michael Geist.

Budget 2016: Is It The End of a Canadian Digital Strategy?

Michael Geist Law RSS Feed - Wed, 2016/03/23 - 08:17

Canada’s experience with a national digital strategy has been marked primarily by delays and underwhelming policies. The Conservatives took years to release their strategy as Industry Minister Christian Paradis did nothing, leaving it to James Moore to ultimately release a digital strategy without a strategy. Those hoping for the rejuvenated approach under the Liberals seem likely to be left disappointed. Indeed, Canada’s long road toward a national digital strategy may have come to an end with Budget 2016. The government has some very modest commitments on the digital front, but the budget appears to signal a shift in approach with the Liberals substituting a digital strategy for one focused on innovation. Addressing Canada’s innovation record is important (I’ll have more to say on the issue in a column next week), but emphasizing innovation is not a substitute for addressing digital policy.

The headline digital policy expenditure in Budget 2016 is a $500 million commitment over five year to support broadband in rural and remote areas. While further details are promised in the future, this commitment comes without any reference to an actual broadband goal or target. A commitment to universal affordable broadband access regardless of location is what is really needed (the CRTC may step in to do so as part of its upcoming basic services obligation hearing) but that is not in the budget. The problem is particularly pronounced within first nations communities, where reports indicate that almost half of households do not have an Internet connection.

Moreover, the $500 million commitment is heavily back-loaded with only $6 million promised for 2016-17 and $81 million for 2017-18. In other words, most of the broadband money won’t be spent until 2018-19 at the earliest, leaving some Canadians without affordable Internet access for years. Given the government’s emphasis on infrastructure spending, $6 million on broadband – the essential digital infrastructure – is embarrassing.

There are several other digital aspects to Budget 2016, but they are similarly underfunded. For example, the budget indicates that it is accelerating open data initiatives by spending $11.5 million over five years. Once again, the dollars are back-loaded with $2 million per year over the next two years. The increased funding is nice, but government will still spend just about ten cents per person on open data efforts. The spending on cyber-security of government systems also suffers from limited spending: $77.4 million over five years, but just $12 million next year and $15 million the year after that.

The Budget 2016 commitment to culture is overdue, but incredibly there is more new money allocated for museums next year than broadband, open data, cyber-security, enhanced access to information, and support for linking Canadian technology companies to global markets combined. The lack of a financial commitment to digital policy is noticeable and suggests that a governmental shift is underway that will emphasize innovation over digital concerns.

The post Budget 2016: Is It The End of a Canadian Digital Strategy? appeared first on Michael Geist.

Canada to Introduce Copyright Bill Implementing Marrakesh Treaty to Facilitate Access for the Blind

Michael Geist Law RSS Feed - Tue, 2016/03/22 - 21:30

While the media focus has unsurprisingly been on Budget 2016, the government has quietly moved to introduce copyright reform legislation that will allow Canada to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The notice paper for Wednesday, March 23rd includes an Act to amend the Copyright Act with specific provisions on access to copyrighted works or other subject-matter for persons with perceptual disabilities. The decision to implement the Marrakesh Treaty is long-overdue. The Conservatives announced plans to do so in last year’s budget but waited to table legislation days before the summer break and the election call. With that bill now dead, the Liberals have rightly moved quickly to revive the issue.

The treaty expands access for the blind by facilitating the export of works to the more than 300 million blind and visually impaired people around the world, which is needed since only a tiny percentage of books are ever made into accessible formats. Further, it restricts digital locks from impeding access, by permitting the removal of technological restrictions on electronic books for the benefit of the blind and visually impaired. The last bill featured changes to Canada’s digital lock rules that demonstrated (yet again) that the rules are overly restrictive and in need of amendment. The bill should be introduced as soon as Wednesday with analysis to follow.

The post Canada to Introduce Copyright Bill Implementing Marrakesh Treaty to Facilitate Access for the Blind appeared first on Michael Geist.

Internet Voting, Utah GOP Primary Election

Freedom to Tinker - Tue, 2016/03/22 - 20:46
Utah’s Republican presidential primary was conducted today by Internet.  If you have your voter-registration PIN, or even if you don’t, visit https://ivotingcenter.gop and you will learn something about Internet voting!

False Alarms: Examining the Misleading Claims About the State of Canadian Publishers

Michael Geist Law RSS Feed - Fri, 2016/03/18 - 08:51

Earlier this month, Digital Book World posted an article chronicling the discussion of a conference copyright panel featuring Access Copyright counsel Erin Finlay (the article was promoted by Access Copyright). The article caught my attention due to Finlay’s comments about the impact of Canadian copyright on education publishers:

“Another example Finlay used was the case of Broadview Press, which is an independent Canadian publisher that cannot publish anymore.

The comment prompted me to contact Don LePan, the Broadview Press owner, who has been outspoken critic of the copyright term extension in the TPP. LePan was shocked by the claim which he said was completely inaccurate. He posted a long response on the Digital Book World site, which responded by amending the piece. Kristine Hoang, the journalist who wrote the article, noted that “what I had written was a reference to Erin Finlay’s direct quotes in my recorded transcript where she said ‘Broadview Press cannot publish anymore.’”

The erroneous claim about the state of a Canadian publisher would be surprising if it did not happen so frequently. In fact, inaccurate claims about Canadian publishing have become a staple at conferences and in reports in an apparent effort to escalate concerns about the impact of Canada’s balanced fair dealing approach.

For example, late last year Cambridge University Press told the Australian government the following:

Since the introduction of the ‘fair dealing’ guidelines in Canada, Oxford University Press withdrew from the market, Nelson, the largest pre-2012 publisher, declared a form of bankruptcy, local publishers such as Emond have ceased publishing and McGraw Hill and Pearson have scaled back. Protection of IP and adequate and fair compensation for copying are a significant factor in making local publishing for local school curriculums a viable proposition.

Let’s take a closer look at each of those publishers. The claim that Emond has ceased publishing is simply false. Much like the Broadview Press case, I actually called the company and they were shocked to hear the claim, asking for further information so that they could correct the record.

Ariel Katz has previously debunked claims regarding Oxford University Press. In fact, more recent annual reports from companies such as OUP acknowledge changing market conditions around the world, with the company noting:

“the Higher Education textbook market shrank in important markets such as the UK, Canada, and the US, illustrating the contrasting array of market conditions to which OUP needed to adapt in 2014.”

OUP sales declined in Canada, leading the company to invest more in the country with greater spending on sales and marketing. The Pearson annual report tells a similar story with declines in textbook sales but increases in revenues for digital products and services.

The Nelson Education story is particularly noteworthy. The financial press provide the real story behind the restructuring: a failed 2007 acquisition that saddled the company with enormous debt. The economic challenges were about a bad investment, not about copyright. Indeed, the affidavit from Geoff Nordal, the company’s President and CEO, identifies the primary economic challenges:

In Canada, each province and territory has authority over curriculum development and education funding for the K-12 Market. Following a historic high in Canada in 2006 with respect to new curriculum development and spending, the K-12 Market contracted. The K-12 Market has been negatively affected by reduced spending on new curriculum by Canadian schools over the last five years, and in particular the spending decline in Ontario which represents the largest proportion of educational spending in Canada.

In the higher education market, Nordal identifies the following issues:

The Higher Education Market has been negatively affected by, among other things: a lack of clarity at universities with respect to ‘ancillary fees’; with certain institutions banning digital homework solutions with added fees; increased traction in the open textbook movement due in part to government funding in a number of provinces; and the use of used books, rental books and peer-to-peer sharing, impacting the demand for new textbooks at universities and colleges in Canada. The impact caused by used books and rental books is mitigated by revisions cycles and new textbook editions, the adoption of digital materials and increased use of custom and indigenous products. In addition, the Higher Education Market is in transition from traditional books to digital products, which is having a transformative effect on the business.

Nordal’s emphasis on reduced provincial spending (for K-12) and the digital shift (for higher education) is consistent with the data from other sources. The 2010 report on K-12 publishing commissioned by Canadian Heritage also pointed to the long pilot periods delaying purchasing decisions and the increased use of alternative and digital resources.

For example, consider the budgetary shift for acquisitions at Ryerson University, which posts its annual expenditures. In 2008-09, it spent $1.1 million on books, $414,000 on serials, and $2.47 million on electronic resources. By 2014-15, base spending on print books had dropped to only $140,000. Even with firm orders for another $245,000 in print books, the expenditures were a small percentage of spending from a few years earlier.  The money has clearly shifted toward digital products: $97,000 in e-books with $384,000 in firm orders, $295,000 in serials, and $2.8 million on databases. Assuming Ryerson is typical, the shift to digital is well underway with an obvious economic impact on print book sales.

The economic impact of the shift to digital is particularly pronounced for Canadian publishers, since many of the databases and resources come from U.S. vendors. Indeed, recent reports have focused on the enormous impact of the declining Canadian dollar on Canadian acquisition budgets with cuts across the country.

What of copyright and the declining use of Access Copyright licenses by educational institutions?

Nordal references the issue:

There is also some uncertainty surrounding recent amendments to Canada’s Copyright Act, which is having an impact on the industry. These amendments may have an impact on copyright protection for creators and publishers and have led school boards and Ministries of Education to advise Access Copyright (a cooperative of Canadian media publishers, including Nelson Education, with a mandate to administer and provide access to copyrighted materials) that they will no longer be paying royalties in accordance with their historical practices.

According to the most recent Access Copyright annual report, Canadian publishers received $6.67 million in distributions out of a total of $18.6 million. That represents 55% of the total domestic distribution and 36% of total Access Copyright distributions. It is worth noting that foreign rights holders received an almost identical amount ($6.56 million) and Canadian creators received the smallest share at $5.4 million.

In 2011, before the copyright reforms and Supreme Court of Canada decisions, Access Copyright distributed $23.5 million. In other words, there has been a decline of a little under $5 million in distributions over the past few years (of which Canadian publishers presumably would have received about $2 million). That is not insignificant, but considering that Canadian book publishing is a nearly $2 billion industry and that the Canadian Book Fund alone distributes over $30 million in taxpayer support to Canadian publishers, it surely is not the end of the industry.

The more accurate picture is that Canadian publishers – like many sectors – are facing a myriad of challenges as the Internet and digital distribution fundamentally changes the market with new forms of access and competition. The data suggests that copyright changes are a small part of the story, yet that has not stopped groups from raising false alarms about the state of Canadian publishing and the impact of copyright law.

The post False Alarms: Examining the Misleading Claims About the State of Canadian Publishers appeared first on Michael Geist.

Sci-Hub and the history of copyright in scientific works

Sara Bannerman - Thu, 2016/03/17 - 13:00
Sci-Hub, the "Napster for academics", is a project based in the notion that scientific knowledge should be made freely available.  John Willinsky, in his recent article for TimesHigherEd, quotes from a letter sent by Sci-Hub's founder, Alexandra Elbakyan,  in which she explains why she founded the hub:
Elbakyan explains that as a student in Kazakhstan, she found the “payment of $32 [Elsevier points out that it’s as high as $41.95] is just insane when you need to skim or read tens or hundreds of these papers to do research”. She adds: “I could obtain any paper by pirating it so I solved many requests and people always were very grateful for my help.”Willinsky argues, "This right to know is also behind this new, emerging academic publishing economy. It is aligned with the broader social and intellectual movement of open science."

However, the founder of Sci-Hub is currently being sued by Elsevier for copyright infringement.

Chapter 3 of my new book, International Copyright and Access to Knowledge  is called "Access to scientific knowledge." It recounts the history of international copyright in scientific  works.  In the chapter, I note that when the international copyright system was founded, scientific journal articles were placed, by default, in the public domain.  This is due in large part to the efforts of Haitian diplomat, doctor, and writer Louis-Joseph Janvier, in fighting for broad and liberal access to scientific works worldwide.  It recounts historical debates over the question of whether copyright should apply to scientific works, and traces the transformation of the international copyright system and the narrowing of principles of access to scientific works.

As Willinsky notes, Elbakyan carries on a tradition of civil disobedience that represents "a 10-fold escalation of the tragic protest of Aaron Swartz, a gifted US computer scientist and entrepreneur who committed suicide two years ago after being charged with theft for downloading 4 million journal articles to his laptop." Her efforts also reflect a sentiment that can be traced right back to the founding of the international copyright system, to before a time when copyright took a wrong turn.

Upcoming talk @ Ryerson: International Copyright and Access to Knowledge

Sara Bannerman - Wed, 2016/03/16 - 21:54
Here is the poster for my upcoming talk for students at Ryerson University's School of Creative Industries' CREA T.O. speakers' series about my new book, International Copyright and Access to Knowledge.  Thanks to Ryerson student Daphne Chan, who created this terrific poster!

Copyright Board Ruling Strikes Fair Balance in Heated Education Fight

Michael Geist Law RSS Feed - Wed, 2016/03/16 - 09:19

The role of copyright within the Canadian education system has emerged as a contentious issue in recent years as the Internet and digital technologies have transformed how schools provide students with access to materials. At the centre of the fight are a series of Supreme Court of Canada rulings that establish the boundaries of “fair dealing”,  which permits copying of reasonable portions of materials without the need for permission or further compensation.

My weekly technology law column (Toronto Star version, homepage version) notes that last month, the Copyright Board of Canada issued a landmark decision on copying practices in primary and secondary schools, largely affirming the approach adopted by educational institutions. As a result, Access Copyright, the copyright collective that represents publishers and authors, will collect far less for in-school copying than it originally demanded.

The reason for the reduction rests primarily on the emergence of fair dealing principles that emphasize the need for balance between creators’ and users’ rights. The copyright board’s fair dealing analysis found that 97.2 per cent of copying from books, 98.1 per cent from newspapers, and 98.5 per cent from periodicals qualified as fair. In other words, virtually all copying of books, newspapers, and periodicals in the large sample reviewed by the Board is covered by fair dealing and does not require a licence.

In response to the decision, Access Copyright and its allies have tried to increase the pressure for legislative reform. The Association of Canadian Publishers claims that there is little clarity in Canada on fair dealing, yet the reality is that the Supreme Court established the fair dealing copyright rules in 2004 and reconfirmed its approach in 2012. Reasonable guidelines based on those decisions are now widely used by educational institutions across the country and their principles are reflected in the copyright board decisions.

The Writers’ Union of Canada tried to shift the focus away from the courts, attributing the copyright board ruling to the 2012 copyright reforms that added “education” to the list of fair dealing purposes under the law. The argument seems designed to suggest that Parliament created the problem and that it can “fix” it when the law undergoes a review in 2017.

However, even a cursory reading of the copyright board decision reveals that the 2012 reforms had little impact on the ruling. In fact, it unequivocally states that the reduced fees are directly attributable to the Supreme Court decisions, which are grounded in long-standing principles about the copyright balance.

As for Access Copyright, it called the decision “deeply disappointing”, arguing that it means that large amounts of copying will go uncompensated. Rhetoric aside, fears that Canada is now a copying free-for-all are simply untrue. The board estimated that its decision will provide Access Copyright with nearly $10 million per year in compensation. In fact, provincial ministers of education have expressed their own concerns with the decision, suggesting that the fees are still too high.

Revenue from collective licensing is only part of the compensation story. Nearly 90 per cent of all copying in primary and secondary schools does not engage Access Copyright as the copies do not involve works from its repertoire or are copied with prior permission from the rights holder. Moreover, educational institutions increasingly rely on digital materials, which require that subscription fees be paid directly to rights holders and avoid the need to involve a copyright collective.

Alternative revenue sources are particularly common within universities and colleges. The Canadian Research Knowledge Network, a partnership of 75 Canadian universities representing 1.2 million researchers and students, has entered into thousands of agreements with publishers to offer access to their members. Last year, it spent more than $100 million in licensing fees for electronic content.

Access Copyright wants the government to believe that the changes to the Copyright Act are responsible for an evolving approach to copying permissions. Yet the evidence suggests that it is digital technologies, new services, and court decisions that are the real agents of change. The problem for Access Copyright is that copies are still valued, but in light of new forms of access and the evolution of the law, its licence is no longer valuable.

The post Copyright Board Ruling Strikes Fair Balance in Heated Education Fight appeared first on Michael Geist.

Copyright Ruling Strikes Fair Balance in Heated Education Fight

Michael Geist Law RSS Feed - Wed, 2016/03/16 - 09:16

Appeared in the Toronto Star on March 14, 2016 as Copyright Ruling Strikes Fair Balance in Heated Education Fight

The role of copyright within the Canadian education system has emerged as a contentious issue in recent years as the Internet and digital technologies have transformed how schools provide students with access to materials. At the centre of the fight are a series of Supreme Court of Canada rulings that establish the boundaries of “fair dealing”,  which permits copying of reasonable portions of materials without the need for permission or further compensation.

Last month, the Copyright Board of Canada issued a landmark decision on copying practices in primary and secondary schools, largely affirming the approach adopted by educational institutions. As a result, Access Copyright, the copyright collective that represents publishers and authors, will collect far less for in-school copying than it originally demanded.

The reason for the reduction rests primarily on the emergence of fair dealing principles that emphasize the need for balance between creators’ and users’ rights. The copyright board’s fair dealing analysis found that 97.2 per cent of copying from books, 98.1 per cent from newspapers, and 98.5 per cent from periodicals qualified as fair. In other words, virtually all copying of books, newspapers, and periodicals in the large sample reviewed by the Board is covered by fair dealing and does not require a licence.

In response to the decision, Access Copyright and its allies have tried to increase the pressure for legislative reform. The Association of Canadian Publishers claims that there is little clarity in Canada on fair dealing, yet the reality is that the Supreme Court established the fair dealing copyright rules in 2004 and reconfirmed its approach in 2012. Reasonable guidelines based on those decisions are now widely used by educational institutions across the country and their principles are reflected in the copyright board decisions.

The Writers’ Union of Canada tried to shift the focus away from the courts, attributing the copyright board ruling to the 2012 copyright reforms that added “education” to the list of fair dealing purposes under the law. The argument seems designed to suggest that Parliament created the problem and that it can “fix” it when the law undergoes a review in 2017.

However, even a cursory reading of the copyright board decision reveals that the 2012 reforms had little impact on the ruling. In fact, it unequivocally states that the reduced fees are directly attributable to the Supreme Court decisions, which are grounded in long-standing principles about the copyright balance.

As for Access Copyright, it called the decision “deeply disappointing”, arguing that it means that large amounts of copying will go uncompensated. Rhetoric aside, fears that Canada is now a copying free-for-all are simply untrue. The board estimated that its decision will provide Access Copyright with nearly $10 million per year in compensation. In fact, provincial ministers of education have expressed their own concerns with the decision, suggesting that the fees are still too high.

Revenue from collective licensing is only part of the compensation story. Nearly 90 per cent of all copying in primary and secondary schools does not engage Access Copyright as the copies do not involve works from its repertoire or are copied with prior permission from the rights holder. Moreover, educational institutions increasingly rely on digital materials, which require that subscription fees be paid directly to rights holders and avoid the need to involve a copyright collective.

Alternative revenue sources are particularly common within universities and colleges. The Canadian Research Knowledge Network, a partnership of 75 Canadian universities representing 1.2 million researchers and students, has entered into thousands of agreements with publishers to offer access to their members. Last year, it spent more than $100 million in licensing fees for electronic content.

Access Copyright wants the government to believe that the changes to the Copyright Act are responsible for an evolving approach to copying permissions. Yet the evidence suggests that it is digital technologies, new services, and court decisions that are the real agents of change. The problem for Access Copyright is that copies are still valued, but in light of new forms of access and the evolution of the law, its licence is no longer valuable.

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 Copyright Ruling Strikes Fair Balance in Heated Education Fight appeared first on Michael Geist.

The Trouble with the TPP: Canadians Get Their Chance To Speak Out

Michael Geist Law RSS Feed - Tue, 2016/03/15 - 08:55

Yesterday I concluded my 50-day series on the Trouble with the TPP which examined the intellectual property and digital policy issues raised by the agreement. In addition to the posts on this blog, I’ve created some additional ways to work through the various posts including a Medium summary and Storify version with links to all 50 posts.

[View the story “The Trouble with the TPP” on Storify]

 

The end of the TPP series comes at a good time. Last week, the Standing Committee on International Trade, the House of Commons committee charged with leading the study of the TPP, announced its plans for the public consultation.  The key points:

In addition to hearings that will take place in Ottawa, and following approval by the House of Commons, the Committee expects to hold hearings across Canada over the coming months. Once cross-country hearings are confirmed, information will be provided about dates and locations.

Canadians who wish to provide a written submission must do so before 23:59 EDT on April 30th, 2016. Written submissions are to be no more than 1,500 words. More information on the process for providing a written submission can be found in the Guide for Submitting Briefs to House of Commons Committees. Written submissions should be emailed to: ciit-tpp-ptp@parl.gc.ca.

Canadians who wish to appear as a witness can make their request at any time during the study. They should provide their name and contact information to the Clerk of the Committee at: ciit-tpp-ptp@parl.gc.ca.

In addition to the committee consultation, the government is also inviting public feedback. Canadians can send their comments directly to Global Affairs Canada, which is managing the government’s consultation. The email address is TPP-PTP.Consultations@international.gc.ca.

The post The Trouble with the TPP: Canadians Get Their Chance To Speak Out appeared first on Michael Geist.

The Trouble With the TPP, Day 50: The Case Against Ratifying the Trans Pacific Partnership

Michael Geist Law RSS Feed - Mon, 2016/03/14 - 08:50

Nearly two-and-a-half months ago, I started a daily examination of the Trans Pacific Partnership focused on the intellectual property and digital policy issues raised by the agreement. My initial plan for the Trouble with the TPP series was to write for one month leading up to the planned signing in New Zealand on February 4th. However, the more I dug into the TPP, the more trouble I found. With this final post in the series, I wrap up the key IP and digital policy concerns with links to all the original posts.

Canadians interested in the TPP now have an opportunity to have their voices heard. The Standing Committee on International Trade has been conducting hearings on the agreement for several weeks and has announced plans for cross-country consultations. Canadians can provide written submissions by April 30th. Alternatively, they can ask the committee to appear as a witness. Details on the committee opportunities can be found here. In addition, Canadians can send their comments directly to Global Affairs Canada, which is managing the government’s consultation. The email address is TPP-PTP.Consultations@international.gc.ca.

Why should Canadians speak out on the TPP?  The former co-CEO of Research in Motion Jim Balsillie, Shopify CEO Tobi Lutke, Ford Canada CEO Dianne Craig, the Sierra Club, Doctors Without Borders, Canadian library groups, innovation expert Dan Breznitz, former deputy chief economist at Global Affairs Canada Dan Ciuriak, Canadian publisher Don LePan of Broadview Press, political science professor Blayne Haggart, investment dispute settlement expert professor Gus Van Harten, my colleague Professor Jeremy de Beer, and the Canadian Labour Congress are among those that have voiced concern with the agreement. My assessment of the IP and digital issues in the Trouble with the TPP series identified at least 49 reasons:

Canada Was at a Negotiating Disadvantage From the Start

Canada was not an initial participant in the TPP negotiations. The price of admission into the talks was very high with the government acknowledging that it enacted U.S.-demanded copyright and anti-counterfeiting reforms as a condition of entry. Just prior to entering the negotiations, Canada agreed to further conditions, including that it could not hold up any chapter if it was the lone opponent, a position that undermined its negotiating power on many key issues. In fact, at the very late stages of negotiations, documents obtained under Access to Information reveal that the lead Canadian TPP negotiator and senior officials were warned that Canada was at a disadvantage, yet nothing was done to address the issue.

Intellectual Property Rules Lack Balance

Part of the trouble with the TPP is the remarkable lack of balance within the intellectual property chapter. For example, early drafts of the agreement that featured provisions emphasizing balance and the public domain were opposed by the U.S. and ultimately removed. The lack of balance is also evident in how new rights are treated as mandatory requirements, but user-focused provisions are typically just optional. The same is true with how the TPP addresses IP treaties: countries are required to ratify or accede to as many as nine international IP treaties, but the Marrakesh Treaty for the Visually Impaired, the only treaty concerned with user rights, is buried in a footnote and is not required. The lack of balance is also found in specific substantive provisions. For example, the border measures rules do not include the safeguards contained in Canadian law.

Copyright Costs: Term Extension, Criminal Liability and Digital Locks

The TPP copyright provisions will require significant changes to Canadian law and limit Canada’s ability to implement future reforms. The agreement will require half of the TPP countries (Canada, Japan, New Zealand, Vietnam, Malaysia and Brunei) to extend their term of copyright at a cost estimated in the hundreds of millions of dollars. The anti-circumvention rules (often referred to as digital locks) raise a host of problems: removal of flexiblity in implementing the WIPO Internet treaties, extension of criminal penalties for rights management information violations, expanding liability for circumvention for personal purposes, and precluding the ability for Canada to establish certain safeguards against digital lock restrictions as contemplated under current Canadian law. The problems with the copyright laws extend even further with the quiet expansion of criminal copyright provisions and the inclusion of U.S.-style notice-and-takedown rules that are viewed as “less speech-protective and more prone to over-enforcement and abuse.”

More IP Changes: Patents, Trademarks, Trade Secrets, and Geographical Indications

The concerns with the TPP’s intellectual property chapter extend well beyond copyright. The patent term adjustment rules will extend patent protections for some pharmaceuticals, resulting in enormous increases to health care costs. The protection for next-generation pharmaceuticals known as biologics, creates a standard of eight years of protection (five years plus three years of comparable protection) at a time when countries have adopted a wide range of approaches and even the Obama administration has sought to reduce protection to seven years. Other areas of IP are similarly controversial. Criminalization of trade secret law runs counter the established approach in most TPP countries and is the direct result of U.S. Chamber of Commerce lobbying efforts. Despite a recent overhaul of Canadian trademark law, the TPP requires further changes. The rules on geographical indications are so complex – multiple approaches and four side letters for Canada – that businesses will struggle to make sense of the requirements. The TPP’s IP enforcement provisions also raise serious concerns with expanded border measures without court oversight, requirements that Canada provide a report card to the U.S. every six months on anti-counterfeiting activities, and the exclusion of balancing provisions on IP border measures.

Privacy At Risk

Privacy is not an issue typically associated with trade agreements, but the TPP has several provisions with privacy implications. The TPP’s general privacy provision is exceptionally weak, allowing enforceable voluntary undertakings to replace actual privacy laws. The TPP’s anti-spam provision is similarly weak, adopting an opt-out standard that many TPP countries (including Canada) have rejected as inadequate. Moreover, the TPP creates barriers to future privacy protections, with limitations on data localization requirements and data transfer restrictions. In fact, while Australia obtained a side letter from the U.S. on privacy that addresses concerns about potential privacy clashes between the U.S. and the EU, Canada did not obtain similar assurances. The TPP’s source code rules may also pose a privacy risk as restrictions on disclosure run counter to recommendations from some of the Internet’s leading experts about how to combat exploited wifi routers.

Step Backward for the Internet and Technology

The TPP touches on the Internet and technology in many ways. In addition to the notice-and-takedown rules, it wades into the Internet governance world, potentially requiring governments to directly intervene within domestic Internet governance. The Canadian government has long rejected that approach (and urged others to do the same), but the TPP raises the possiblity of abdicating those principles in order to meet the agreement’s obligations. The TPP’s net neutrality standards fail to advance the issue with standards so weak and unenforceable that at least half of the TPP countries already exceed them. E-commerce rules do little to create more legal certainty for online transactions and the TPP’s service regulations create regulatory uncertainty for online services such as Uber and onling gambling. The TPP’s technology and telecom provisions are not much better. Limitations on source code disclosure has raised cyber-security concerns, while so-called safeguards against encryption backdoors are largely illusory and would not stop orders similar to the one involving the Apple iPhone. Canada also failed to advance its technology interests with no side agreements similar to those obtained by Australia.

Restrictions on Canadian Cultural Policy

The Canadian position on trade and culture has been consistent for decades with successive governments requiring a full exemption for the cultural industries. The TPP adopts a different approach with exceptions to the cultural exception. That includes limitations on financial contributions for Canadian content development and measures restricting access to online video content. While there is some debate on the full implications of the TPP provision, it seems certain that attempts to expand the Cancon system would be challenged under the agreement.

Health Costs and Regulation

The TPP has enormous implications for health care and access to medicines. In addition to the patent term restoration and biologics protection – which could both add millions to health care costs – the TPP places limits on medical devices and pharmaceutical data collection, provisions which are buried in the Technical Barriers to Trade chapter. The TPP also sets rules for a future national pharmacare program with provisions contained in an annex on transparency.

Risks from the Investor-State Dispute Settlement Provisions

The TPP’s investor-state dispute settlement provisions have rightly attracted considerable attention given the risks that come with a process that gives companies the right to sue governments for hundreds of millions of dollars. The TPP ISDS rules do not meet the Canadian government’s own standard for dispute settlement as reflected in the Canada – EU Trade Agreement. The CETA provisions include a clear affirmation of governmental power to regulate, an appellate process, and rules designed to ensure fairness and non-bias in settlement cases. The TPP does not contain equivalent provisions as it entrenches, rather than reforms, a flawed system. The potential costs of ISDS are huge: the Eli Lilly case highlights the impact on Canadian regulation and the prospect of hundreds of millions in liability, while Canada’s track record on investor disputes has been terrible.

Limited Economic Gains for Canada

While there are enormous costs and risks associated with the TPP, the economic studies to date suggest limited gains. Several studies project weak growth for Canada as a result of the TPP. In fact, some studies anticipate job losses for Canada with the highest per capital job losses among all TPP countries. Even sectors that are supposed winners are a mixed bag. For example, the agricultural sector may have some winners, but the dairy industry anticipates billions in losses and the wine sector says it is not ready to take advantage of the TPP.

What Comes Next

The Trouble with the TPP series examined dozens of provisions in the agreement and their implications for Canadians and Canadian law. While Canada signed the agreement last month, signing a treaty does not create binding legal obligations. As the consultation process unfolds, it is important to remember that the TPP cannot take effect unless the U.S. and Japan ratify it. Given that the TPP will require many legislative changes and create significant costs, it simply makes no sense to make those changes and incur the downside of the agreement without assurances that it will actually take effect. Ratification without assurances that the TPP will become a reality isn’t leadership. It’s stupidity. There is a very strong case against Canadian ratification of the TPP, but even if the government decides to move ahead, it must surely wait until it is certain that the deal will in fact come into force.

In fact, should Canada move toward ratification of the TPP, there is a concern that attempts to mitigate the harm of some provisions will face opposition from the U.S. While implementation flexibility is the goal of every negotiator, the U.S. reserves the right to “certify” whether other TPP countries have, in its view, properly implemented the agreement. The certification process is not found in the TPP, yet it is a part of how the U.S. approaches trade agreements that effectively grants it an additional opportunity to shape the TPP by establishing its own requirements on implementation and forcing others to abide by its interpretation of otherwise flexible provisions.

The post The Trouble With the TPP, Day 50: The Case Against Ratifying the Trans Pacific Partnership appeared first on Michael Geist.

The Trouble With the TPP, Day 49: Why Canada Must Wait For the U.S. to Move on the TPP

Michael Geist Law RSS Feed - Fri, 2016/03/11 - 10:02

The TPP has emerged as a major political issue in the United States with presidential candidates such as Donald Trump, Hillary Clinton, and Bernie Sanders all expressing opposition or concern with the deal. Moreover, House Speaker Paul Ryan has said there are not sufficient votes to support passing the agreement. The U.S. opposition makes it a near-certainty that it will not pass the TPP in 2016 and that the debate will certainly extend into 2017 and the election of a new president. Meanwhile, Chrystia Freeland, Canada’s Minister of International Trade, has said it is not her job to sell the TPP and made it very clear that the government will not commit to ratifying the TPP until it has conducted a full public consultation.

In response to these developments, business lobby groups such as the Canadian Chamber of Commerce have called on the government to move quickly to ratify the deal without regard for what happens in the U.S. Yet the TPP’s implementation provisions are structured to provide little incentive for countries to move quickly without assurances that the U.S. plans to ratify. Article 30.5 establishes the rules for the TPP entering into force:

1. This Agreement shall enter into force 60 days after the date on which all original signatories have notified the Depositary in writing of the completion of their applicable legal procedures.
2. In the event that not all original signatories have notified the Depositary in writing of the completion of their applicable legal procedures within a period of two years of the date of the signature of this Agreement, it shall enter into force 60 days after the expiry of this period if at least six of the original signatories, which together account for at least 85 per cent of the combined gross domestic product of the original signatories in 2013, have notified the Depositary in writing of the completion of their applicable legal procedures within this period.
3. In the event that this Agreement does not enter into force under paragraph 1 or 2, it shall enter into force 60 days after the date on which at least six of the original signatories, which together account for at least 85 per cent of the combined gross domestic product of the original signatories in 2013, have notified the Depositary in writing of the completion of their applicable legal procedures.

Assuming that not all countries ratify, the key requirement will be that at least six countries representing 85% of GDP of the original signatories have ratified. That effectively means that the TPP cannot take effect until both the U.S. and Japan are on board.

Given that the TPP will require many legislative changes and create significant costs, it simply makes no sense to make those changes and incur the downside of the agreement without assurances that it will actually take effect. Ratification without assurances that the TPP will become a reality isn’t leadership. It’s stupidity. There is a very strong case against Canadian ratification of the TPP, but even if the government decides to move ahead, it must surely wait until it is certain that the deal will in fact come into force.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors, Day 33: Setting the Rules for a Future Pharmacare Program, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage, Day 35: Gambling With Provincial Regulation, Day 36: Why the TPP Could Restrict Uber Regulation, Day 37: Breaking Digital Locks for Personal Purposes, Day 38: Limits on Canadian Digital Lock Safeguards, Day 39: Quiet Expansion of Criminal Copyright Provisions, Day 40: Mobile Roaming Promises Unfulfilled, Day 41: ISDS Rules Do Not Meet the Canada’s New “Gold” Standard, Day 42: The Risks of Investor-State Dispute Settlement, Day 43: Eli Lilly Is What Happens When ISDS Rules Go Wrong, Day 44: Canada’s Terrible ISDS Track Record, Day 45: Limited Economic Gains for Canada, Day 46: Limited Employment Gains or Even Job Losses for Canada, Day 47: Hits and Misses in the Agricultural Sector, Day 48: U.S. Reserves Right to “Certify” Canada’s TPP Implementation)

The post The Trouble With the TPP, Day 49: Why Canada Must Wait For the U.S. to Move on the TPP appeared first on Michael Geist.

An Unprecedented Look into Utilization at Internet Interconnection Points

Freedom to Tinker - Fri, 2016/03/11 - 10:00
Measuring the performance of broadband networks is an important area of research, and efforts to characterize the performance of these networks continues to evolve. Measurement efforts to date have largely relied on in­home devices and are primarily designed to characterize access network performance. Yet, a user’s experience also relies on factors that lie upstream of ISP access networks, which […]

New Book: International Copyright and Access to Knowledge

Sara Bannerman - Thu, 2016/03/10 - 21:10
My new book, International Copyright and Access to Knowledge,  is now available from Cambridge University Press.

The principle of Access to Knowledge (A2K) has become a common reference point for a diverse set of agendas that all hope to realize technological and human potential by making knowledge more accessible. This book is a history of international copyright focused on principles of A2K and their proponents. Whilst debate and discussion so far has covered the perspectives of major western countries, the author's fresh approach to the topic considers emerging countries and NGOs, who have fought for the principles of A2K that are now fundamental to the system. Written in a clear and accessible style, the book connects copyright history to current problems, issues and events.

"Sara Bannerman's thoughtful and compelling book is a must-read for all of those interested in the challenges of increasing access to knowledge. She offers historical perspective on the narrowing of the knowledge commons and identifies opportunities for positive change going forward."
-Susan K. Sell, George Washington University
 International Copyright and Access to Knowledge is available through CUP, Amazon, on Wordery. An excerpt is available here.  Purchases through CUP can make use of 20% discount code Bannerman2015.
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