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Industry Canada to Foreign Affairs After CETA Leaks: Can We Get a Copy of the Text?

Michael Geist Law RSS Feed - Tue, 2016/06/07 - 10:34

As the Canada – EU Trade Agreement faces mounting opposition in Europe, it is worth looking back at the late stages of CETA negotiations that occurred after an October 2013 announcement that a deal had been reached. That announcement did not include a release of the text, which was still the subject of months of negotiations. In fact, long after the initial announcement, there were reports that European concerns with investor-state dispute settlement provisions were about to derail the entire agreement. By July 2014, it was obvious that CETA was in jeopardy. In August 2014, there were more assurances from the Canadian government about an agreement, but still no text. That same month, the agreement finally did become public, but only after a German public television leaked it online.

Documents obtained under the Access to Information Act show that Canadian government officials scrambled to respond. While the official line will be familiar – “Canada does not comment on the leaks of purported negotiating texts” – internally, officials were left scrambling as the agreement leaked in real time. In fact, after learning that additional appendices and materials had leaked online, Canadian official joked that “they’re scanning as fast as they can.”

The government officials may have sought to downplay the leaks, but more interesting is the response from Industry Canada:

“Given that the CETA text has already been leaked, could we get a copy of the consolidated text with attachments (annexes, side letters etc.)?”

In other words, even Canadian departments responsible for specific issues within CETA were kept in the dark about the overall text. This approach confirms consistent criticisms of Canadian negotiations during CETA and TPP.  Namely that there is little overall strategy and that departments are often unaware of the actual text of the agreement. When your own government officials are reliant on leaks for information about the deal, perhaps it is time to acknowledge that a change in approach is needed.

The post Industry Canada to Foreign Affairs After CETA Leaks: Can We Get a Copy of the Text? appeared first on Michael Geist.

Why an Australian Study Could Provide Canada with an Innovation Roadmap

Michael Geist Law RSS Feed - Mon, 2016/06/06 - 11:22

From the moment that the Liberal government renamed Industry Canada as Innovation, Science, and Economic Development it sent a clear signal that innovation is a top policy priority. Indeed, in recent months Minister Navdeep Bains has repeatedly called for bold policies focused on addressing Canada’s dismal innovation record.

My weekly technology law column (Toronto Star version, homepage version) notes that while the specifics of the Canadian innovation policy have yet to be revealed, a recent Australian government backed study provides a potential roadmap. The Australian Productivity Commission, which functions as an independent “think tank” for the government, released a 600 page draft report in April that proposes a myriad of changes to its intellectual property system.

The government asked the Commission to report back on whether the current legal frameworks “ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.” The result is a comprehensive report based on hundreds of submissions and consultations representing a broad range of views.

Canada and Australia may be geographically distant, but the similarities between the two countries on innovation and intellectual property are unmistakable. Both countries are net importers of intellectual property, meaning that current policies may benefit foreign companies and rights holders far more than domestic enterprises. With that in mind, the draft report recommends significant reforms to encourage innovation and strike a better balance.

For example, Australia faces the same problem as Canada with respect to patents and pharmaceutical drug innovation. The report notes that patent reforms designed provide longer protections and encourage more innovation within the country have actually failed to increase investment in research and development. Canada has experienced much the same problem with steadily declining research and development investment ratios despite promises from the industry that legal reforms would do the opposite.

In light of these results, the report recommends moving away from increased patent protections (as envisioned by trade agreements such as the Trans Pacific Partnership) and focusing instead on greater data sharing. The changes to pharmaceutical patents are just part of a wider series of proposed reforms that designed to limit patents that may inhibit new innovations.

The report’s copyright recommendations similarly find fault with overly restrictive rules that limit new innovation. It concludes that the term of copyright is too long, particularly since the commercial viability of most work largely ends years before copyright protection expires. It calls for a reduction in the term of copyright (the TPP would require an extension) and the adoption of a “fair use” provision, similar to that found in the U.S.

Many technology and Internet companies rely on the flexibility of fair use to create new businesses and the report expresses concern that Australian businesses are placed at a disadvantage with their fair dealing system. Canada’s fair dealing approach is more flexible than the current Australian law, but remains more restrictive than the fair use model found in the U.S. and recommended in the report.

Australian and Canadian consumers also encounter similar frustrations with many Internet-based services that offer less content at higher prices. The Australian report recommends addressing the issue by enacting legislation clarifying that it is not a violation of the law for consumers to bypass geo-blocking technologies. It believes that the change would create more competition and significantly reduce consumer costs.

As Canada crafts its innovation strategy, the Australian report points to the benefits of evidence-based policies that move beyond conventional rhetoric. When combined with
bold thinking – the Commission does not feel constrained by established practices – the draft report highlights how Canada and Australia share a discouraging record of adopting restrictive laws that may ultimately hamper domestic innovation and provides some innovative solutions to address the problems.

The post Why an Australian Study Could Provide Canada with an Innovation Roadmap appeared first on Michael Geist.

Looking Down Under for a Roadmap to Innovation

Michael Geist Law RSS Feed - Mon, 2016/06/06 - 11:16

Appeared in the Toronto Star on June 6, 2016 as Looking Down Under for a Roadmap to Innovation

From the moment that the Liberal government renamed Industry Canada as Innovation, Science, and Economic Development it sent a clear signal that innovation is a top policy priority. Indeed, in recent months Minister Navdeep Bains has repeatedly called for bold policies focused on addressing Canada’s dismal innovation record.

While the specifics of the Canadian innovation policy have yet to be revealed, a recent Australian government backed study provides a potential roadmap. The Australian Productivity Commission, which functions as an independent “think tank” for the government, released a 600 page draft report in April that proposes a myriad of changes to its intellectual property system.

The government asked the Commission to report back on whether the current legal frameworks “ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.” The result is a comprehensive report based on hundreds of submissions and consultations representing a broad range of views.

Canada and Australia may be geographically distant, but the similarities between the two countries on innovation and intellectual property are unmistakable. Both countries are net importers of intellectual property, meaning that current policies may benefit foreign companies and rights holders far more than domestic enterprises. With that in mind, the draft report recommends significant reforms to encourage innovation and strike a better balance.

For example, Australia faces the same problem as Canada with respect to patents and pharmaceutical drug innovation. The report notes that patent reforms designed provide longer protections and encourage more innovation within the country have actually failed to increase investment in research and development. Canada has experienced much the same problem with steadily declining research and development investment ratios despite promises from the industry that legal reforms would do the opposite.

In light of these results, the report recommends moving away from increased patent protections (as envisioned by trade agreements such as the Trans Pacific Partnership) and focusing instead on greater data sharing. The changes to pharmaceutical patents are just part of a wider series of proposed reforms that designed to limit patents that may inhibit new innovations.

The report’s copyright recommendations similarly find fault with overly restrictive rules that limit new innovation. It concludes that the term of copyright is too long, particularly since the commercial viability of most work largely ends years before copyright protection expires. It calls for a reduction in the term of copyright (the TPP would require an extension) and the adoption of a “fair use” provision, similar to that found in the U.S.

Many technology and Internet companies rely on the flexibility of fair use to create new businesses and the report expresses concern that Australian businesses are placed at a disadvantage with their fair dealing system. Canada’s fair dealing approach is more flexible than the current Australian law, but remains more restrictive than the fair use model found in the U.S. and recommended in the report.

Australian and Canadian consumers also encounter similar frustrations with many Internet-based services that offer less content at higher prices. The Australian report recommends addressing the issue by enacting legislation clarifying that it is not a violation of the law for consumers to bypass geo-blocking technologies. It believes that the change would create more competition and significantly reduce consumer costs.

As Canada crafts its innovation strategy, the Australian report points to the benefits of evidence-based policies that move beyond conventional rhetoric. When combined with
bold thinking – the Commission does not feel constrained by established practices – the draft report highlights how Canada and Australia share a discouraging record of adopting restrictive laws that may ultimately hamper domestic innovation and provides some innovative solutions to address the problems.

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 Looking Down Under for a Roadmap to Innovation appeared first on Michael Geist.

WIPO indigenous peoples' representation still lacking

Sara Bannerman - Fri, 2016/06/03 - 14:11
Nelson Kantule, from the Kuna Peoples in Panama (Kunas unidos por la madre tierra), and Preston Hardison, policy analyst for the Tulalip Tribes in the United States, were interviewed recently by IP-Watch about the current ongoing negotiations about intellectual property and traditional knowledge at the World Intellectual Property Organization (WIPO).

WIPO traditional knowledge negotiations have long failed to include sufficient representation by indigenous peoples, and have been ongoing for many years with few, if any, results.  Chapter 9, "The role and inclusion of indigenous peoples in international copyright", of my book International Copyright and Access to Knowledge,  recounts this history of failure and places it in the context of indigenous peoples' representation in the United Nations more broadly.  
I note that in 2007,  the Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly.  Article 18 of that declaration provides that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

WIPO’s efforts to implement Article 18 have been deemed inadequate by some indigenous peoples, and WIPO has been called on by the United Nations Permanent Forum on Indigenous Issues to improve its implementation of the declaration.
Indigenous peoples' representation at WIPO has been so bad that in February 2012 most indigenous observer delegates to the IGC stood and walked out of IGC negotiations in protest of “the continuing reduction in the quantity and level of their participation.”

In May 2012, the United Nations Permanent Forum on Indigenous Issues chastised WIPO, issuing a number of recommendations to WIPO aimed at addressing some of the problems that had been identified.  It called on states “to organize regional and national consultations to enable indigenous peoples to prepare for and participate effectively in sessions of the Intergovernmental Committee” (p. 9-10).

As of my last check, the Forum's recommendations had not yet been addressed by WIPO, and Kantule and Hardison's account seems to confirm that WIPO's response has been inadequate.


Canada Post Drops Lawsuit Over Crowdsourced Postal Codes

Michael Geist Law RSS Feed - Fri, 2016/06/03 - 08:35

Geocoder, the Ottawa-based company that managed to develop a database of postal codes using crowdsourcing techniques, has settled a controversial lawsuit brought by Canada Post. Canada Post sued in 2012 claiming intellectual property rights in postal codes. Geocoder did not copy the postal codes, however.  Instead, it used crowdsourcing to develop a database containing over one million Canadian postal codes after asking people to submit their postal codes with their address. The database is freely available under a Creative Commons licence and is enormously valuable for organizations that need access to the data but are unable to pay the steep fees levied by Canada Post. While many open data advocates have long argued that this information should be available under government open data initiatives, Canada Post has steadfastly refused.

The Canada Post lawsuit has been simmering for several years, but late last month the parties reached a settlement. Canada Post has agreed to discontinue the lawsuit and Geocoder will continue to make its database available to the public. The settlement statement acknowledges:

The postal codes returned by various geocoder interface APIs and downloadable on geocoder.ca, are estimated via a crowdsourcing process. They are not licensed by geocoder.ca from Canada Post, the entity responsible for assigning postal codes to street addresses.

The settlement represents a big win for open data in Canada, as the lawsuit raised serious concerns about over-broad copyright claims given suggestions that Canada Post owned the copyright in all postal codes. As Geocoder notes, CIPPIC and Ridout & Maybee provided support in contesting the lawsuit.

The post Canada Post Drops Lawsuit Over Crowdsourced Postal Codes appeared first on Michael Geist.

Canadian Government’s Internal TPP Analysis: IP Rules Much Broader Than Any Canadian FTA

Michael Geist Law RSS Feed - Thu, 2016/06/02 - 08:35

Supporters of the TPP have been at pains to argue that the agreement is largely business as usual, reflecting standards and approaches that are already commonly found in existing Canadian law and agreements. Yet according to a document obtained under the Access to Information Act, that is not how government officials describe the TPP in their own analysis. Internal analysis drafted in late August 2015 shows officials described the IP chapter as covering “a much broader scope of issues than any recent Canadian FTA” and noting that the TPP goes beyond agreements such as TRIPS and NAFTA.

Indeed, here is how the IP chapter was described by Canadian officials weeks before an agreement was formally concluded:

The TPP IP chapter is more detailed and covers a much broader scope of issues than any recent Canadian FTA, including the CETA. While much of its scope overlaps with the WTO TRIPS and the NAFTA, TPP goes beyond these agreements in a number of respects. The TPP IP chapter touches in many additional areas including:

  • the term of copyright protection
  • explicit protection and offences for circumventing technological protection measures and rights management information
  • patent term adjustment
  • data protection for clinical trial data generated for the marketing approval of pharmaceutical drugs
  • explicit protection for clinical data for new biologic drugs
  • patent linkage
  • patent term restoration for delays in marketing approval of drugs protected by patents
  • extensive rules regarding TPP members ability to provide protection for future geographical indications
  • agreement to cooperate in the area of genetic resources and traditional knowledge
  • protection for industrial design elements
  • trademark protection for non-traditional marks, such as scent and sound trademarks
  • extensive enforcement measures in the areas of civil, criminal, and border enforcement, including the availability of statutory damages for copyright infringement, criminal offences related to commercial scale trademark counterfeiting and copyright piracy
  • ex officio authority for border officers to detain suspected infringing goods and measures to enable cooperation with rights holders as well as protection and remedial measures for trade secrets
  • government use of software
  • unauthorized decryption of encrypted satellite and cable signals
  • a suite of provisions relating to Internet Service Provider liability.

While supporters of the TPP have recently sought to downplay the impact of the agreement, it turns out that the government itself has acknowledged internally that the TPP goes much further than existing international agreements and any other Canadian free trade agreement.

The post Canadian Government’s Internal TPP Analysis: IP Rules Much Broader Than Any Canadian FTA appeared first on Michael Geist.

Why Telecom Transparency Reporting in Canada Still Falls Short

Michael Geist Law RSS Feed - Mon, 2016/05/30 - 12:15

Canadian telecom company privacy practices were back in the spotlight this month with the release of a transparency report from Rogers Communications. The report provides new insights into how much – or how little – Canadians know about when their personal information is disclosed to government agencies.

For Rogers customers, the good news is that recent changes in the law, including court decisions that set limits on the disclosure of mass data from cellphone towers and that protect Internet subscriber information – are having a significant effect. Law enforcement agencies are still able to obtain data on hundreds of thousands of people, but warrantless access to basic subscriber information has stopped.

My weekly technology law column (Toronto Star version, homepage version) notes that the latest Rogers report is the first from the company since the release in 2015 of telecom transparency guidelines that garnered support from the federal privacy commissioner, Industry Canada, and the telecom sector. The guidelines attempt to provide a common framework for disclosure so that the public will be better able to compare privacy protections and policies among Canada’s major telecom companies.

The Rogers report (along with a similar report recently released by Telus) demonstrates a much-needed willingness to defend customer privacy in cases where the companies believe law enforcement has overreached.

Despite some emerging privacy friendly practices, however, there is still room for improvement. According to documents obtained under the Access to Information Act, during the development of the guidelines, many companies resisted recommendations from the privacy commissioner to include specific detail on warrants for subscriber information.

For example, Rogers noted that certain details would require significant system changes and it therefore urged that those details be made optional. Similarly, SaskTel argued that “customers are interested in the broader question of disclosure rather than minute detail.” Multinational companies such as Google and Microsoft emphasized the need for Canadian guidelines to be consistent with global standards given that those companies release data for dozens of countries.

While current reports would benefit from more fulsome disclosure, astonishingly, some companies have yet to release any transparency reports. The list of transparency holdouts include Bell, Canada’s largest telecom company.

The problem lies with the non-binding approach to transparency disclosures. After an industry-wide meeting organized by the privacy commissioner held in April 2015, Rogers noted that “it was indicated at this meeting that any guidelines adopted would fall short of regulation, but would regarded as more substantive than voluntary guidelines.” Yet if the non-regulatory approach does not work, it falls to the federal privacy commissioner to take action.

Canadian privacy law requires all organizations to be accountable for the personal information they collect, use, and disclose. Given the standardization of transparency reporting, there is a strong argument that non-disclosure represents a failure to meet the accountability requirements found in the law.

Even with the potential for enforcement action against transparency holdouts, another major shortcoming will remain: the government and law enforcement agencies themselves. The documents indicate that the privacy commissioner recognized the need for those agencies to participate in the transparency process so that Canadians could also learn about requests for their information from those doing the requesting.

However, the government agencies rejected the request. Public Safety Canada, speaking on behalf of other departments, indicated that transparency was important but that it was not prepared to join the discussion at that time. Interestingly, Rogers appeared prepared to accept a mandatory reporting requirement, but only if a similar obligation was placed on requesting bodies, such as law enforcement.

That position opens the door to fixing the current weakness in the transparency reporting system. Telecom reporting consistent with the guidelines should be made mandatory and given the Liberal government’s commitment to openness and transparency, it should be ready to add disclosure of government requests for personal information to the list of transparency reforms.

The post Why Telecom Transparency Reporting in Canada Still Falls Short appeared first on Michael Geist.

Telecom Transparency Reporting Guidelines Need Clarity

Michael Geist Law RSS Feed - Mon, 2016/05/30 - 12:13

Appeared in the Toronto Star on May 30, 2016 as Telecom Transparency Reporting Guidelines Need Clarity

Canadian telecom company privacy practices were back in the spotlight this month with the release of a transparency report from Rogers Communications. The report provides new insights into how much – or how little – Canadians know about when their personal information is disclosed to government agencies.

For Rogers customers, the good news is that recent changes in the law, including court decisions that set limits on the disclosure of mass data from cellphone towers and that protect Internet subscriber information – are having a significant effect. Law enforcement agencies are still able to obtain data on hundreds of thousands of people, but warrantless access to basic subscriber information has stopped.

The latest Rogers report is the first from the company since the release in 2015 of telecom transparency guidelines that garnered support from the federal privacy commissioner, Industry Canada, and the telecom sector. The guidelines attempt to provide a common framework for disclosure so that the public will be better able to compare privacy protections and policies among Canada’s major telecom companies.

The Rogers report (along with a similar report recently released by Telus) demonstrates a much-needed willingness to defend customer privacy in cases where the companies believe law enforcement has overreached.

Despite some emerging privacy friendly practices, however, there is still room for improvement. According to documents obtained under the Access to Information Act, during the development of the guidelines, many companies resisted recommendations from the privacy commissioner to include specific detail on warrants for subscriber information.

For example, Rogers noted that certain details would require significant system changes and it therefore urged that those details be made optional. Similarly, SaskTel argued that “customers are interested in the broader question of disclosure rather than minute detail.” Multinational companies such as Google and Microsoft emphasized the need for Canadian guidelines to be consistent with global standards given that those companies release data for dozens of countries.

While current reports would benefit from more fulsome disclosure, astonishingly, some companies have yet to release any transparency reports. The list of transparency holdouts include Bell, Canada’s largest telecom company.

The problem lies with the non-binding approach to transparency disclosures. After an industry-wide meeting organized by the privacy commissioner held in April 2015, Rogers noted that “it was indicated at this meeting that any guidelines adopted would fall short of regulation, but would regarded as more substantive than voluntary guidelines.” Yet if the non-regulatory approach does not work, it falls to the federal privacy commissioner to take action.

Canadian privacy law requires all organizations to be accountable for the personal information they collect, use, and disclose. Given the standardization of transparency reporting, there is a strong argument that non-disclosure represents a failure to meet the accountability requirements found in the law.

Even with the potential for enforcement action against transparency holdouts, another major shortcoming will remain: the government and law enforcement agencies themselves. The documents indicate that the privacy commissioner recognized the need for those agencies to participate in the transparency process so that Canadians could also learn about requests for their information from those doing the requesting.

However, the government agencies rejected the request. Public Safety Canada, speaking on behalf of other departments, indicated that transparency was important but that it was not prepared to join the discussion at that time. Interestingly, Rogers appeared prepared to accept a mandatory reporting requirement, but only if a similar obligation was placed on requesting bodies, such as law enforcement.

That position opens the door to fixing the current weakness in the transparency reporting system. Telecom reporting consistent with the guidelines should be made mandatory and given the Liberal government’s commitment to openness and transparency, it should be ready to add disclosure of government requests for personal information to the list of transparency reforms.

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

The post Telecom Transparency Reporting Guidelines Need Clarity appeared first on Michael Geist.

A Peek at A/B Testing in the Wild

Freedom to Tinker - Thu, 2016/05/26 - 09:40
[Dillon Reisman was previously an undergraduate at Princeton when he worked on a neat study of the surveillance implications of cookies. Now he’s working with the WebTAP project again in a research + engineering role. — Arvind Narayanan] In 2014, Facebook revealed that they had manipulated users’ news feeds for the sake of a psychology study […]

Government-Mandated Website Blocking Comes to Canada as Quebec’s Bill 74 Takes Effect

Michael Geist Law RSS Feed - Thu, 2016/05/26 - 08:34

With little fanfare, Quebec passed website blocking legislation last week. Bill 74 took effect on May 18th, setting up a likely court showdown between the Quebec and federal governments. As discussed in several articles and posts over the past year (here and here), Quebec’s Internet blocking legislation requires Internet service providers to block access to a list of online gambling sites to be identified by the government-backed Loto-Québec. The government now characterizes the legislation as a matter of consumer protection, but it did not initially hesitate to emphasize that its primary goal was to increase revenues for Espace-Jeux, its officially sanctioned online gambling service.

The website blocking plans are now in the hands of Loto-Québec, which must generate the block list and make it available to Internet service providers. The ISPs will have 30 days to comply or face fines of up to $100,000 for failure to block access to the content. The law does not identify a specific technology that must be used for the website blocking. Before initiating any blocking, however, it seems likely that the ISPs will file a legal challenge over the validity of the Quebec blocking law. Legal challenges may focus on several issues, including the exclusive federal jurisdiction over telecommunications and the Charter of Rights and Freedoms implications of government-mandated Internet blocking.

The ISPs may be joined in their challenge by the federal government. The Quebec bill was raised in the House of Commons last month, with Canadian Heritage Minister Mélanie Joly pointing to the government’s support for net neutrality, which would be violated by mandated blocking of websites. Joly invited further discussion, but with the law now in force, the time to talk is over as Canada’s first government-mandated website blocking law will surely head to the courts.

The post Government-Mandated Website Blocking Comes to Canada as Quebec’s Bill 74 Takes Effect appeared first on Michael Geist.

In Search of a Plan B for the TPP

Michael Geist Law RSS Feed - Wed, 2016/05/25 - 08:29

The government’s public consultation on the Trans Pacific Partnership (TPP) has stopped in Vancouver, Calgary, and Montreal in recent weeks as a growing number of people speak out on the agreement. Tens of thousands have also written to the government on the issue with some beginning to consider trade strategy alternatives.

My weekly technology law column (Toronto Star version, homepage version) argues that the interest in other trade options stems from three developments. First, the TPP may not have sufficient support to take effect since under the terms of agreement both Japan and the United States must be among the ratifying countries. Implementation has been delayed in Japan where politicians fear a political backlash and seems increasingly unlikely in the U.S., where the remaining presidential candidates have tried to outdo one another in their opposition to the deal.

Both Donald Trump and Bernie Sanders have been outspoken critics of the TPP from start of their campaigns. Meanwhile, Hillary Clinton has shifted her position from supporter to critic, recently unequivocally stating that “I oppose the TPP agreement and that means before and after the election.” Some TPP supporters have held out hope that the TPP could be passed during the “lame duck” session in Congress that occurs immediately after the U.S. election, but with all presidential candidates campaigning against it, finding the necessary political support will be exceptionally difficult.

Second, economic analysis of the TPP suggests that there are few benefits for Canada. For example, a recent C.D. Howe study found that the Canadian gains may be very modest, with some gains offset by losses on issues such as copyright and an outflow of royalties. Given the limited effect of staying out (the study describes the initial impact as “negligible”), some have suggested that killing the agreement might be a good thing for the country.

The C.D. Howe study, which is consistent with several other reports that found that TPP benefits to Canada are among the lowest of the 12 countries, should not come as a surprise. Canada already has free trade deals with several key agreement partners, including the U.S., Mexico, Chile, and Peru. Moreover, some Canadian business sectors have told the government they would be better off removing inter-provincial trade barriers before working to open markets like Vietnam and Malaysia.

Third, at hearings across Canada, there has been consistent concern with the TPP’s potential impact on many other issues, including health care costs, copyright, digital rights, labour rights, and environmental protections (I was invited as a witness earlier this month at a hearing in Ottawa). Some of these issues may be more difficult to quantify, but the growing chorus of criticism points to risks popping up throughout the fine print of the agreement.

If the TPP dies – or Canada decides not to ratify – what might a “Plan B” look like?

Canada already has an alternate blueprint for a trade strategy to open up key markets throughout Asia. By the government’s own admission, the Canada – EU Trade Agreement offers a better investor-state dispute settlement system than the TPP, while the Canada – South Korea free trade agreement, which was concluded in 2014, eliminates tariffs without requiring an overhaul of Canadian or South Korean laws. There are criticisms of both of those deals, but they offer better models than the TPP.

The target markets are easy to identify. The Canadian government has begun to rethink its engagement with China and has already made some progress on trade negotiations with Japan and India, two of the most important Asian markets. Concluding those deals will not be easy, but they do point to the potential for expanding Canada’s trade presence in Asia without the need for the TPP.

Chrystia Freeland, Canada’s International Trade minister, has been placed in a tough position, inheriting an increasingly unpopular agreement her government did not negotiate. As the TPP consultation continues – a public town hall is planned for Toronto next month – a Plan B focused on opening markets through bi-lateral trade deals that better represent Canadian interests may emerge as the preferred alternative trade strategy.

The post In Search of a Plan B for the TPP appeared first on Michael Geist.

Time for Plan B Instead of Trans Pacific Partnership?

Michael Geist Law RSS Feed - Wed, 2016/05/25 - 08:21

Appeared in the Toronto Star on May 23, 2016 as Time for Plan B Instead of Trans Pacific Partnership?

The government’s public consultation on the Trans Pacific Partnership (TPP) has stopped in Vancouver, Calgary, and Montreal in recent weeks as a growing number of people speak out on the agreement. Tens of thousands have also written to the government on the issue with some beginning to consider trade strategy alternatives.

The interest in other trade options stems from three developments. First, the TPP may not have sufficient support to take effect since under the terms of agreement both Japan and the United States must be among the ratifying countries. Implementation has been delayed in Japan where politicians fear a political backlash and seems increasingly unlikely in the U.S., where the remaining presidential candidates have tried to outdo one another in their opposition to the deal.

Both Donald Trump and Bernie Sanders have been outspoken critics of the TPP from start of their campaigns. Meanwhile, Hillary Clinton has shifted her position from supporter to critic, recently unequivocally stating that “I oppose the TPP agreement and that means before and after the election.” Some TPP supporters have held out hope that the TPP could be passed during the “lame duck” session in Congress that occurs immediately after the U.S. election, but with all presidential candidates campaigning against it, finding the necessary political support will be exceptionally difficult.

Second, economic analysis of the TPP suggests that there are few benefits for Canada. For example, a recent C.D. Howe study found that the Canadian gains may be very modest, with some gains offset by losses on issues such as copyright and an outflow of royalties. Given the limited effect of staying out (the study describes the initial impact as “negligible”), some have suggested that killing the agreement might be a good thing for the country.

The C.D. Howe study, which is consistent with several other reports that found that TPP benefits to Canada are among the lowest of the 12 countries, should not come as a surprise. Canada already has free trade deals with several key agreement partners, including the U.S., Mexico, Chile, and Peru. Moreover, some Canadian business sectors have told the government they would be better off removing inter-provincial trade barriers before working to open markets like Vietnam and Malaysia.

Third, at hearings across Canada, there has been consistent concern with the TPP’s potential impact on many other issues, including health care costs, copyright, digital rights, labour rights, and environmental protections (I was invited as a witness earlier this month at a hearing in Ottawa). Some of these issues may be more difficult to quantify, but the growing chorus of criticism points to risks popping up throughout the fine print of the agreement.

If the TPP dies – or Canada decides not to ratify – what might a “Plan B” look like?

Canada already has an alternate blueprint for a trade strategy to open up key markets throughout Asia. By the government’s own admission, the Canada – EU Trade Agreement offers a better investor-state dispute settlement system than the TPP, while the Canada – South Korea free trade agreement, which was concluded in 2014, eliminates tariffs without requiring an overhaul of Canadian or South Korean laws. There are criticisms of both of those deals, but they offer better models than the TPP.

The target markets are easy to identify. The Canadian government has begun to rethink its engagement with China and has already made some progress on trade negotiations with Japan and India, two of the most important Asian markets. Concluding those deals will not be easy, but they do point to the potential for expanding Canada’s trade presence in Asia without the need for the TPP.

Chrystia Freeland, Canada’s International Trade minister, has been placed in a tough position, inheriting an increasingly unpopular agreement her government did not negotiate. As the TPP consultation continues – a public town hall is planned for Toronto next month – a Plan B focused on opening markets through bi-lateral trade deals that better represent Canadian interests may emerge as the preferred alternative trade strategy.

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 Time for Plan B Instead of Trans Pacific Partnership? appeared first on Michael Geist.

Canada’s Copyright Lobby Revolving Door Raises Fairness Concerns Ahead of 2017 Review

Michael Geist Law RSS Feed - Fri, 2016/05/20 - 16:40

The revolving door between government and lobby groups has long been a source of concern in the United States, where lead government IP officials have regularly jumped to lobby groups representing music, movies, and software interests and vice versa. In recent years, that has included the USTR official responsible for copyright in ACTA and the TPP moving the MPAA, the lead software industry lobbyist joining the USTR, and the general counsel of the Copyright Office joining the top international music association.

The Lobby Monitor reports that the revolving door has apparently migrated to Canada, with the former Director of Regulatory Affairs for Music Canada joining the government to play a key role in copyright policy, only to be replaced by the former Director of Parliamentary Affairs within the Prime Minister’s Office, who was the lead on the surprise copyright term extension for sound recordings passed in 2015.

The moves started with Tanya Peatt, who was once James Moore’s Director of Policy and lead on the copyright file. Peatt’s LinkedIn page still references her position as Director of Regulatory Affairs at Music Canada and provides assurances that she was blocked from lobbying the government due to the Federal Accountability Act. However, as Canadaland reported earlier this week, Peatt has now left Music Canada to return to government, where she will work on copyright policy within the Department of Innovation, Science, and Economic Development (formerly Industry Canada).

Peatt’s replacement at Music Canada? None other than Patrick Rogers, the former Director of Parliamentary Affairs at the PMO, who was the central government figure in the 2015 copyright extension for sound recordings. As the Lobby Monitor reports, Rogers recently received a waiver from the Ethics Commissioner to begin work with Music Canada. Rogers had been unable to find a job since the fall election and the Commissioner ruled that the recent announcement regarding a Canadian culture review as sufficient to remove concerns about information being held on future policy directions. Yet Rogers played a key role in Music Canada’s lobbying efforts to obtain a copyright term extension for sound recordings in the 2015 budget. As I reported last year, Rogers (then the Director of Policy for the Minister of Canadian Heritage) held near monthly meetings with Music Canada which ultimately led to the copyright extension without any public consultation.

With a copyright review scheduled for 2017, there is considerable concern among many stakeholders about the direct move of a senior official from one of the most powerful copyright lobby groups in the country to the very government department responsible for leading the policy review. This revolving door – and the willingness of the department of Minister Navdeep Bains to actively participate in it – raises enormously troubling questions about the upcoming copyright review and assurances that all stakeholders will be treated in a fair and balanced manner.

The post Canada’s Copyright Lobby Revolving Door Raises Fairness Concerns Ahead of 2017 Review appeared first on Michael Geist.

Fair dealing and course packs: Canadian and international challenges

Sara Bannerman - Fri, 2016/05/20 - 11:30
A draft study presented last week at the World Intellectual Property Organization (WIPO) is of particular relevance to Canada.  The revision of the Canadian Copyright Act's fair dealing provisions in 2012 to include dealing for educational purposes, as well as a Supreme Court of Canada decision of the same year relating to classroom materials, have led many Canadian universities to conclude, and to adopt the policy, that the inclusion of articles or book chapters, for example, in hard copy and electronic course packs, is fair dealing that does not require permission or payment of copyright fees.  This interpretation is currently being challenged in a Canadian lawsuit against York University.

Is the Canadian universities' interpretation of fair dealing in line with the policies adopted in other countries?  Professor Seng's study should shed some light on this question.  He notes that "Educational anthology limitations and exceptions are found in 94 provisions from 85 member states" (Sheng, 22).  However, some states place restrictions on course pack copying; 12 provisions, according to Sheng, require equitable remuneration to be paid to copyright holders (Sheng, 22).

Seng's study was introduced in the context of discussions toward a possible international instrument on copyright provisions for educational and research institutions.  Numerous states have made proposals for new international norms, some of which relate to the question of course packs.  Finland, for example, has made the main proposal on course packs.  It is very restrictive, in that it would require payment of remuneration, restrict anthologies to print anthologies only, and would allow only the use of works more than five years old (p. 26; see also p. 14).

Many of the proposals currently on the table at WIPO  (relating not only to course packs, but also to the use of copyright works in the classroom, in distance learning, in research, and in reverse engineering) are far more restrictive than current interpretations of Canadian educational fair dealing.  They are, therefore, important to watch.

Canadian universities' current interpretations of fair dealing as it relates to course packs could face two challenges: the first arises from the York University lawsuit, which may take ten years to wind its way to the Supreme Court of Canada.  The second comes from a possible WIPO international treaty or instrument that could reinforce or, just as possibly, restrict educational user rights in Canada.

Canada should take an active role in the negotiations, promoting robust and fair user rights for education.


--
NB: Chapter 4 of my book International Copyright and Access to Knowledge (discount code:Bannerman2015) addresses the history and present politics of copyright in educational works.  Titled "Access to education, libraries, and traditional knowledge," the chapter notes that while, at national levels, the history of Western copyright is strongly tied to the principle of access to education, the same is not true of the international copyright system, Rather, the international system, with its mission civilisatrice, served to restrict copyright provisions for the encouragement of education.

The Trouble With the TPP: Cost to the Canadian Economy Garnering Increasing Attention

Michael Geist Law RSS Feed - Fri, 2016/05/20 - 10:13

Earlier this month, I appeared before the Standing Committee on International Trade alongside Jim Balsillie to discuss the TPP. My opening statement can be found here and a full transcript of the session here. A second panel of Barry Sookman and Lawrence Herman followed to support the TPP. The following exchange was one of the most noteworthy:

Mr. Sukh Dhaliwal: Do you see any negative impacts of the TPP on an average middle-class Canadian?
The Chair: It’ll have to be a short answer.
Mr. Barry Sookman: I don’t see any.
Mr. Lawrence Herman: I don’t either.

The responses were unsurprising given that supporters simply ignore multiple studies that have found negative impacts. NDP MP Tracey Ramsey picked up on this immediately with a follow-on question:

Ms. Tracey Ramsey: I think it’s probably appropriate that my colleague just asked that question, because I think there are grave implications, in particular in my riding of Essex, where we have a hub of manufacturing in terms of auto manufacturing. The 58,000 jobs that have been projected to be lost in Canada under the Tufts University study economic model, 12,000 of those would occur in southwestern Ontario. So it has massive implications to average Canadians and to working Canadians, to be quite honest.

We hear that you feel that this would maintain the jobs here in Canada and, of course, it’s hard to see how a Canadian business would be disadvantaged in the TPP, but we’ve had others that present here and explain to us how Canadians would be disadvantaged in the TPP. So while businesses may be a beneficiary of the Trans-Pacific Partnership, average middle-class Canadians, lower-income Canadians, would actually end up having to pay more for pharmaceutical drugs. There would be implications to them. I did read one of your articles, Mr. Sookman, and you said, “The costs of being left behind could be staggering for Canada in the long term”, so I’m wondering what economic modelling you’re basing that on.

When called out on the economic evidence and the emphatic claim that are no negative effects from the TPP, the following exchange ensues:

Mr. Barry Sookman: Thank you very much for your question.
Like Mr. Balsillie, I’m not an expert in the auto industry, so I can’t comment on that. There are people who—
Ms. Tracey Ramsey: Just simply that you thought there would be no implications to people is what I was referring to.
Mr. Barry Sookman: I was commenting from the IP provisions. I wasn’t commenting from the other section. I assumed that was the context of the question.
Ms. Tracey Ramsey: I thought it was more general. It was more general, yes.
Mr. Barry Sookman: I was focusing on that, so sorry if that wasn’t clear.

In fact, the negative effects of the TPP have begun to receive increasing attention. The Globe and Mail’s Barrie McKenna recently wrote a column concluding that the failure of the TPP might be good news for Canada given its economic effects. That column cites a C.D. Howe study that finds very limited gains for Canada. describing the deal as ending in a “small and unbalanced outcome.” The study points to some agricultural benefits for Canada, but finds the initial cost of staying out of the TPP as “negligible.” It also identifies some of the negative costs of the deal, including increased copyright costs and outflows of royalties.

Focus on the limited benefits of the TPP are not limited to Canada. This week, the U.S. International Trade Commission released its study of the economic impact of the TPP on the U.S. economy, finding that it would barely boost its annual GDP. The EFF points to the shortcomings of the study (including a misleading citation of a CIPPIC study), but even if taken at face value, the report finds very limited gains for the U.S.  As the CATO Institute notes, the study does not account for many factors that could wipe out projected benefits.

The post The Trouble With the TPP: Cost to the Canadian Economy Garnering Increasing Attention appeared first on Michael Geist.

remembering Brian Dickson (1916-1998)

Fair Duty by Meera Nair - Thu, 2016/05/19 - 09:04

Brian Dickson, more precisely The Right Honourable Robert George Brian Dickson, was born on 25 May 1916. Appointed to the Supreme Court of Canada in 1973, he became Canada’s 15th Chief Justice in 1984. The centenary of his birth is a fitting time to remember his contribution to what many of us take for granted: the capacity of our legal system to adapt to the changing mores of Canadian society. Dickson also brought the subject of law closer to all Canadians, he championed clear, effective writing that was comprehensible on a wider scale. “We are not writing simply for legal academics or other judges. The cases we deal with … affect every man, woman, and child in the country.”

Robert J. Sharpe has written extensively about Brian Dickson in journal articles, and together with Kent Roach, authored a book (A Judge’s Journey, 2003). From the personal and professional details published, it is apparent that Dickson’s perspective on law was shaped by many chapters of his own life. As a child, he was confronted with the spectacle of ill-fated Prairie farmers who laboured for a lifetime, only to lose everything in the Depression. Following his studies in law, Dickson served in WWII; there, a severe injury resulted in an amputated leg and constant residual pain. Post WWII, he coupled a successful career as a corporate lawyer with constant public service. At the height of his corporate career, he chose to forsake it and immerse himself entirely in public service by accepting an appointment as a trial judge in Manitoba. A later appointment to the appellate court of Manitoba eventually led to his Supreme Court tenure.

Dickson’s life experiences abetted and honed his concern for maintaining harmony between the dignity of the individual and the well-being of the community. That dual priority, coupled with a brilliant mind, enriched Canadian public life for generations to come. As Chief Justice, Dickson set the tone during the early years of constitutional interpretation following the adoption of the Charter of Rights and Freedoms in 1982.

The Charter marked a prominent moment in the journey towards Canadian sovereignty. It defined our rights and freedoms, and placed ownership of those qualities firmly in Canadian hands. The Charter protected citizens against legislation enacted by governments that, despite perhaps best intentions, compromise the larger purpose of having a constitution. In the days following his appointment as Chief Justice, Dickson was keenly aware of the role of the Supreme Court as guardian of Canadians’ constitutional rights:

When there is breach of the fundamental rights and freedoms under the Charter of rights, we have been given the right, the duty and the responsibility to deal with it and it is our duty to strike [the violation] down.
–  quoted by John Hey, “The New Face of the Law,” Macleans, Vol 97, Issue 18, 1984

More than thirty years have passed since the Charter was unveiled; many Canadians are likely unaware of how contentious that desire for a Made-In-Canada constitution had been, and with what mistrust the Charter had been eyed when it did arrive. Some Canadians resisted decoupling the nation from the British yoke of sovereignty over Canadian affairs. Others worried that the courts would become too powerful, disrupting the role of Parliament. Another anxiety was that Canada was merely aping the mantra of rights emanating from our southern neighbors. But in a speech in 2013, Chief Justice Beverley McLachlin (who has described her own early perspective of the Charter as “disinterested curiosity”) gave the definitive outcome: the Charter has stood the test of time and has helped forge a uniquely Canadian society.

[The Charter] reflected the kind of society Canadians wished to build for themselves and for generations to come. While patriation symbolized the raw fact of self-determination, the Charter made a statement about the ideals to which Canada should dedicate itself. Every nation needs a basic statement of what it stands for. For Canada, the Charter was that statement. …

[T]hirty years on, I think most would say that the patriation of the constitution was vital and that the Charter has stood the test of time. Canadians, polls consistently tell us, take pride in their Charter of Rights and Freedoms. It has, quite simply, become part of the Canadian identity. And it does not hurt that in the years since its adoption the principles enunciated in the Charter have been emulated abroad and the decisions of the Supreme Court interpreting them studied by courts and scholars throughout the world.

The distinctiveness of our Charter, and its capacity to foster balance among rights for all, may very well lie in its preamble. Our cherished constitution begins with a disclaimer:

S.1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Our guaranteed rights are limited. That statement is not as paradoxical as it sounds; in terms of individual interaction, it is not difficult to foresee that an unbridled enjoyment by individuals of their rights could lead to the violation of others’ rights.

But those justifiable limits must be carefully handled. Early on, Dickson set the standard for application of the limiting clause. In R. v. Big M. Drug Mart Ltd. (1985) he wrote:

At the outset, it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles will have to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Once a sufficiently significant government interest is recognized then it must be decided if the means chosen to achieve this interest are reasonable‑‑a form of proportionality test. The court may wish to ask whether the means adopted to achieve the end sought do so by impairing as little as possible the right or freedom in question.

Shortly thereafter, Dickson went further in defining the role of courts when consideration of the Charter itself is required. In R. v. Oakes (1986) he wrote:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

Even before the Charter, Dickson had championed broader consideration of the social context of disputes, decisions and penalties. Sharpe describes a particularly poignant element of Dickson’s approach to law; in his early days as a trial judge, “… before passing sentence, he spent a day at Stoney Mountain Penitentiary and then proceeded to visit the Selkirk Mental Hospital (p.15).”

Along with situating the law within Canadian life, Dickson also ensured that decisions were accessible to all Canadians. Accessibility in this sense meant comprehensible. Dickson eschewed the formalistic, jargon ridden prose of the courts of the day; he championed clear prose, within reach of those outside of the legal sphere.

For Dickson, it was no longer sufficient for courts to rely solely on a mechanical recitation of precedent; a good judgment began from principle and was substantiated by reason. Dickson led by example and set a new standard for the Canadian judiciary. Even his criticism of the poor quality of existing judgments is precise, evocative, and leaves a reader wanting more: “Thoughts straggle across the printed page like a gaggle of geese, without form, without beginning or end, lacking in coherence, convincingness, conciseness (quoted in Sharpe and Roach, p.204).”

It may be overstating it, to say that but for Dickson most Canadians outside the purview of Law would have been unable to participate in matters of law. However, it is more than reasonable to claim that Brian Dickson’s stance hastened our opportunity.


House of Commons Fast Tracks Copyright Bill To Implement Marrakesh Treaty

Michael Geist Law RSS Feed - Wed, 2016/05/18 - 17:40

Bill C-11, the copyright bill that will allow Canada to accede to an international copyright treaty that will improve access for the blind and visually impaired, was fast tracked on Tuesday with unanimous approval to consider the bill read, studied, and passed three times. There will be no House of Commons committee hearings on the bill, which now heads to the Senate for approval. The bill received first reading at the Senate today. With no hearings and little debate, the bill will pass quickly without any changes.  I wrote about Bill C-11 last month, noting that it is a positive step forward but that some provisions may be unduly restrictive when compared to the implementation approach recommended by some copyright groups.

One of the most notable provisions (which was raised by Carla Qualtrough, the Minister of Sport and Persons with Disabilities) is that the bill amends Canada’s anti-circumvention rules by expanding the exception on digital locks. NDP MP Charlie Angus, a veteran of the copyright battles on Parliament Hill, seized on the issue to ask whether the government would address the remaining digital lock restrictions. The answer from Minister Qaultrough: yes.

Charlie Angus: Mr. Speaker, I was on the copyright committee when the last legislation was put forward and the government absolutely refused to make the changes in the provisions that would have made it possible for people with sight issues to access materials. There was one fundamental principle, which was that the digital lock was sacrosanct. The problem is that this has affected university institutions, research, libraries, and digital archives.
   
However, it is not just sighted students who are affected in these situations. Universities will tell students who have hearing disabilities that the Copyright Act overrides their right to have closed captioning. Given the fact that these changes have been made, which are good changes, there is the issue of establishing a clear balance in the provisions of the digital locks, which will still be WIPO compliant, to ensure that libraries can do their work without facing punishment and that the rights of other individuals with perceptual disabilities not related to sight can supersede the sacrosanct provisions of the digital lock provisions in the present Copyright Act. Will those changes be brought forward?

Hon. Carla Qualtrough: Mr. Speaker, that is a very important question. We know that Marrakesh focuses primarily on the visually impaired, the blind, and others with more perceptual disabilities related to font size in accessible material. I have met with a lot of leaders in the deaf and hard-of-hearing communities who have brought that very issue to my attention. I am very keen to move forward with figuring out a way to address it. I am very excited that the deaf and hard of hearing are going to be an integral part of our consultations as we move forward on accessibility legislation. I respect the cultural aspect of deafness and being hard of hearing, and I assure the House we will ensure that question is addressed in the future.

The digital lock issue was raised several times during the debate as even the Conservative MPs noted the importance of the changes, despite the fact that it was their bill that caused the problem in the first place. The bill should pass through the Senate quickly, but the House of Commons debate may have opened the door to further digital lock changes in the future.

The post House of Commons Fast Tracks Copyright Bill To Implement Marrakesh Treaty appeared first on Michael Geist.

The Princeton Web Census: a 1-million-site measurement and analysis of web privacy

Freedom to Tinker - Wed, 2016/05/18 - 11:59
Web privacy measurement — observing websites and services to detect, characterize, and quantify privacy impacting behaviors — has repeatedly forced companies to improve their privacy practices due to public pressure, press coverage, and regulatory action. In previous blog posts I’ve analyzed why our 2014 collaboration with KU Leuven researchers studying canvas fingerprinting was successful, and […]

Is Tesla Motors a Hidden Warrior for Consumer Digital Privacy?

Freedom to Tinker - Wed, 2016/05/18 - 07:00
Amid the privacy intrusions of modern digital life, few are as ubiquitous and alarming as those perpetrated by marketers. The economics of the entire industry are built on tools that exist in shadowy corners of the Internet and lurk about while we engage with information, products and even friends online, harvesting our data everywhere our […]

Canada’s New Telecom Policy Begins to Take Shape With Rejection of Bell Appeal, Support for Net Neutrality

Michael Geist Law RSS Feed - Tue, 2016/05/17 - 08:25

For the first six months of the new Liberal government, telecom watchers were unsure about whether Navdeep Bains, the Minister of Innovation, Science, and Economic Development, would maintain the pro-consumer and competition approach that typified the previous government. The Bains ministerial mandate letter referenced the importance of competition, choice, and investment in communications, leaving enough wiggle room to shift in a new direction.

My weekly technology law column (Toronto Star version, homepage version) notes that the full policy remains a mystery, but developments over the past two weeks suggest that a major change in approach is unlikely. With several big issues still to be decided – a plan for universal broadband access and review of the proposed Bell acquisition of MTS among them – getting a better sense of government policy is essential for business and consumers.

Last week, the government ended months of speculation by rejecting a Bell cabinet appeal of a Canadian Radio-television and Telecommunications Commission (CRTC) decision on broadband infrastructure. In July, the Commission extended open access measures to fast fibre connection services, which it hopes will create a more competitive marketplace for Internet access.

The CRTC decision means that companies such as Bell will be required to share their fibre networks with other carriers on a wholesale basis. The approach matches the one used for slower DSL services that plays a key role in enabling an independent ISP community, leading to better services, pricing, and consumer choice.

The Bell appeal received controversial support from the mayors of Toronto and Ottawa, though Toronto City Council voted overwhelmingly to support the CRTC decision and more competition.

While supporters of the CRTC decision feared that the government might break with the past emphasis on competition, overturning the ruling never made much political sense. There was little to be gained by angering the hundreds of thousands of Canadians that rely on services from independent Internet providers and few believe that the major telecom companies will stop investing in new networks, particularly since they are still paid for usage on a wholesale basis. Implementing the CRTC ruling will take months, but the government’s decision to uphold it paves the way for future fibre competition.

While the Bell appeal captured the lion share of telecom policy attention, not to be overlooked is a recent exchange in the House of Commons in which the government affirmed its support for net neutrality. The issue arose in response to a question over Quebec’s plan to force Internet providers to block access to unlicensed online gambling websites.

Conservative MP Dan Albas asked how the government plans to respond to the Quebec bill, which he noted raises concerns about state-backed Internet censorship. Canadian Heritage Minister Mélanie Joly replied that the government believes in net neutrality, an affirmation that Canadians should have the right to access content and applications of their choice online.

The reliance on net neutrality in response to the Quebec bill is notable, given that there are alternative arguments such as exclusive federal jurisdiction over telecom policy and Charter of Rights issues. The Quebec government seems determined to pass the legislation, setting up a certain court challenge by Internet providers and perhaps the federal government. In the meantime, the Liberal government has confirmed that net neutrality remains a key part of its telecom policy position.

If government support for broadband competition and net neutrality remains intact, the next big question is whether the goal of four wireless competitors in every market is still part of the policy toolkit. That principle is at stake in the Bell – MTS merger review.

Manitobans enjoy some of the lowest wireless costs in Canada, as the presence of a fourth carrier in that province creates more competition and better pricing. With MTS out of the way, costs are bound to increase to levels more commonly found in the rest of the country, leaving the government with a crucial competition decision that will impact the future of wireless services in Canada.

The post Canada’s New Telecom Policy Begins to Take Shape With Rejection of Bell Appeal, Support for Net Neutrality appeared first on Michael Geist.

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