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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.

Rejecting Bell’s Broadband Fight Sends a Clear Signal

Michael Geist Law RSS Feed - Tue, 2016/05/17 - 08:10

Appeared in the Toronto Star on May 16, 2016 as Rejecting Bell’s Broadband Fight Sends a Clear Signal

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.

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.

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 Rejecting Bell’s Broadband Fight Sends a Clear Signal appeared first on Michael Geist.

Libraries, archives' role in making orphan works accessible up for debate at WIPO

Sara Bannerman - Thu, 2016/05/12 - 12:46
Discussion of the internationalization of copyright limitations and exceptions, such as expanded exceptions to copyright for libraries, educational institutions, and people with disabilities, continue this week at the World Intellectual Property Organization (WIPO)'s Standing Committee on Copyright and Related Rights.

Discussions of access provisions in international copyright have been ongoing since 2004 and have, so far, resulted in the establishment of the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Today's discussions focused on building on the work done under the Marrakesh Treaty to see the possible establishment of an international instrument internationalizing copyright limitations and exceptions for libraries and archives.  International provisions are necessary because, as I note in chapter 4 of my book, International Copyright and Access to Knowledge (Cambridge UP, 2016):
libraries face a number of problems as they attempt to provide both traditional and new services to their users – many related to new technologies. Digitization, license agreements imposed by publishers of electronic journals and books, and Technological Protection Measures (TPMs) all introduce problems of access, preservation,and maintaining copyright exceptions. Moreover, the globalized possibilities of resource sharing, which take place increasingly across borders, are undermined by the territoriality of copyright law. IFLA, the ICA, and others suggest that a treaty is the best way to ensure that a minimum set of limitations and exceptions for libraries and archives exist, and that they apply in cross-border environments. (76)*One focus of today's WIPO discussions was on the topic of orphan works, or copyright works where the copyright owner can't be found.  Libraries and archives are often the "adoptive parents" of orphan works; they are in a position to facilitate access to these works, especially through digital means.  However, copyright regimes often stand in the way, as can differing national regimes.  The International Federation of Library Associations and Institutions (IFLA), which is active at the meetings, notes that:
...there is a lot of progress to be made, with as many different copyright regimes there as there are states, each giving different types and degrees of protection if any at all. Moreover, as digital technologies bring about radical change in the information environment, a failure to act is the same as going backwards. This is why IFLA is engaging in support of change both at the global (WIPO) level, and nationally.SCCR delegates. © WIPO 2016. Photo: Emmanuel Berrod.

 IFLA is asking for "changes which would give libraries the right to work across borders, to give access to orphan works, and to import books which are available in other countries."  For them, "the goal – an international framework which frees up libraries and librarians – is worth the effort."  After all, IFLA explains, "it’s through exceptions and limitations to copyright that we can do our job."

Current proposals that are on the table for orphan works (see page 34-39 of the current working document) would allow entities such as libraries to reproduce, make available to the public, and otherwise use orphan works.  Some proposals apply these provisions, as well, to retracted works (African Group, Equador, India), and some would require remuneration to authors or copyright owners who are subsequently identified (Equador).  However, there is no consensus among states on such proposals, with the United States and the European Union among the key detractors.

The chair's summary of today's discussion is expected to be disseminated tonight.

Tomorrow's discussions are expected to focus on the internationalization of exceptions and limitations for educational and research institutions and for persons with other disabilities.

For those following the discussion, a number of groups are blogging and tweeting from WIPO:
My June 2015 post about these negotiations is here.
* Discount code for International Copyright and Access to Knowledge: Bannerman2015

Canadian Government Officials Confirm TPP Will Raise Pharmaceutical Costs

Michael Geist Law RSS Feed - Wed, 2016/05/11 - 08:32

Critics of trade agreements such as the TPP and the Canada-EU Trade Agreement has emphasized that a key concern is that deals will lead to increased costs for pharmaceutical drugs. At a recent Standing Committee on Health hearing on the development of a national pharmacare program, officials with Health Canada confirmed that they expect prices to increase but remain unsure about how much (hat tip: Blacklock’s Reporter). The exchange came from questions by NDP MP Don Davies:

Mr. Davies: Canada has just signed two trade deals, CETA and the TPP, which have new intellectual property provisions. All the literature and opinions I’ve read indicate that this will delay the introduction of generics to market for some time. I’m seeing estimates of two years as about what it’s going to take. Ms. Hoffman, has the department done some analysis on the likely impact of TPP and CETA, and is it true that those trade deals will likely increase the prices that Canadians pay for pharmaceuticals and add a little bit of mud to that already dirty picture?

Ms. Hoffman [Health Canada]: Yes, some analysis has been done. There’s a large number of people, not the least of whom are in the generics industry, who are attempting to estimate what incremental costs will be. The maximum amount of extended protection that brand drugs could get in the Canadian marketplace would be two years. In reality, given the intersection of data protection, patent remaining, patent life, and so on, it’s likely to be considerably less, on average, for most products. But every day that a patent product remains in the marketplace beyond what is currently the case is a day when the generic equivalent is not in the marketplace. One can calculate the incremental cost. This is why measures such as the work being done through the pCPA , and some changes that may be in the offing for PMPRB, are so important.
   
It is difficult to estimate the global cost. We can do modelling based on drugs that are in the marketplace today and try to imagine what would happen with the same mix of data protection and patent life remaining, but we’re actually talking about drugs that will be in the marketplace five, six, seven, eight, ten years and beyond. The profiled drugs and their costs and whether or not there even are generics that could replace them will depend on what’s going on in that drug marketplace.

Mr. Davies:  Is it fair to say, Ms. Hoffman, that it’s the department’s position that those two trade deals will likely increase the costs of drugs in Canada and we just don’t know how much?

Ms. Hoffman: That’s correct.

The acknowledgement that costs will go up but that the government isn’t sure how much provides further evidence that the full costs of the TPP (and CETA) are not known. Estimates of gains from the agreement are difficult to square with government evidence that there will be increased consumer costs with payments to go to foreign pharmaceutical companies.

The comments from Health Canada are also not a surprise. KEI obtained a document last month sent by the Obama Administration describing how the TPP will increase protections for pharmaceutical companies, leading to higher consumer costs. The TPP is opposed by dozens of health care groups.

Not only will the TPP and CETA lead to increased prices, but comments from the Patented Medicine Prices Review Board, an independent, quasi-judicial body created by Parliament in 1987, paint a disturbing picture of current Canadian pharmaceutical pricing. Officials from the PMPRB told the committee:

Canadian drug prices are the fourth highest of the 31 countries in the OECD, and on average Canadian prices are 26% higher than the OECD median. Canada spends more on drugs per capita and as a percentage of GDP than most other OECD countries. On the other hand, R and D in Canada continues to decline and currently stands at 5% of sales. This is the lowest recorded figure since 1988, when the PMPRB first began reporting on R and D. In contrast, the average R and D ratio for the PMPRB7 countries has held steady at about 20%.

In other words, Canada’s already high pharmaceutical costs are about to get even higher.

The post Canadian Government Officials Confirm TPP Will Raise Pharmaceutical Costs appeared first on Michael Geist.

Forget a Netflix Tax: How The Digital CanCon Review Can Shake Up the Status Quo

Michael Geist Law RSS Feed - Tue, 2016/05/10 - 08:42

Canadian Heritage Minister Mélanie Joly’s digital CanCon consultation is likely to spark calls from the cultural establishment for new levies and taxes to fund the creation of domestic content. The Internet will be the primary target with demands for a Netflix tax along with legislative reforms that would open the door to additional fees on Internet providers.

Yet an unimaginative approach that seeks to regulate the Internet imposes costs that would make Internet access less affordable and create a regulatory environment that runs counter to fundamental principles of freedom of speech and access to information. Joly should reject efforts to recycle stale policies and instead embrace the opportunity to shake up Canadian cultural policy.

My weekly technology law column (Toronto Star version, homepage version) argues that the starting point should be a shift in funding for Canadian content creation. The current model, which relies heavily on mandatory contributions from the Canadian broadcasting community, is in decline as revenues from the sector slowly shrink (the Canadian Radio-television and Telecommunications Commission recently reported that conventional television revenues declined by 2.4 per cent in 2015).

With the broadcasting sector struggling to compete against unregulated Internet services, Joly should drop mandatory contributions altogether. In their place, support for the content industries could come from four sources: federal granting programs funded through general tax revenues, benefits packages from industry mergers, allocations from spectrum licensing, and targeted tax credits that benefit Canadian producers. The change would provide more stable funding for production and marketing, while leaving broadcasters more competitive.

Online services should remain unregulated and free from mandatory contributions, but should be subject to general sales taxes. Levying GST or HST on Canadian online video services such as Shomi or CraveTV while leaving Netflix tax-free creates a tax revenue shortfall and places domestic services at a disadvantage compared to their foreign counterparts.

Canadian broadcasting and telecommunications law must also keep pace with the changing digital environment. Rules that grant the CRTC the power to determine which channels may operate in Canada should be repealed. Instead, the Commission should concentrate on consumer protection and marketplace competition.

The consumer protection issues include regulations maintaining maximum consumer choice through pick-and-pay models, truth in advertising on communications services, and guaranteed Internet access for all Canadians.

Competition encompasses an even broader range of issues including enforceable net neutrality rules to ensure that creators and consumers benefit from neutral network service without unfair preferences, safeguards against vertically integrated media giants unfairly favouring their own content, and the possibility of structural separation for companies that own significant content and carriage businesses.

As for Canada’s public broadcaster, one of the most contentious issues in recent years has been the CBC’s emphasis on digital delivery of news content. Reconciling the need for the CBC to remain relevant by embracing digital delivery with the financial impact on private sector news services could be addressed by requiring the public broadcaster to adopt an ad-free approach to its online news presence. That would ensure that it reaches digital audiences but does not directly compete with the private sector for advertising dollars. The private news services could also benefit from a change to allow tax deductions for advertising on Canadian websites.

While these changes would dramatically shift the legal and regulatory environment for Canadian culture, Joly’s initiative needs an even bigger goal to capture the public’s imagination. That could include requiring the CBC to open its content for public reuse (the government is opening its national parks, why not its national content?) or embarking on a comprehensive digitization initiative that provides the foundation for a national digital library.

Joly has encouraged Canadians to think big about Canadian cultural policy. It now falls to the government to reject the regulatory models of the past by embracing a future-focused strategy that emphasizes competition, consumer access, and the export and promotion of Canadian content for a global audience.

The post Forget a Netflix Tax: How The Digital CanCon Review Can Shake Up the Status Quo appeared first on Michael Geist.

Forget a Netflix Tax. Here’s How to Shake Up Canada’s Culture

Michael Geist Law RSS Feed - Tue, 2016/05/10 - 08:38

Appeared in the Toronto Star on May 9, 2016 as Forget a Netflix Tax. Here’s How to Shake Up Canada’s Culture

Canadian Heritage Minister Mélanie Joly’s digital CanCon consultation is likely to spark calls from the cultural establishment for new levies and taxes to fund the creation of domestic content. The Internet will be the primary target with demands for a Netflix tax along with legislative reforms that would open the door to additional fees on Internet providers.

Yet an unimaginative approach that seeks to regulate the Internet imposes costs that would make Internet access less affordable and create a regulatory environment that runs counter to fundamental principles of freedom of speech and access to information. Joly should reject efforts to recycle stale policies and instead embrace the opportunity to shake up Canadian cultural policy.

The starting point should be a shift in funding for Canadian content creation. The current model, which relies heavily on mandatory contributions from the Canadian broadcasting community, is in decline as revenues from the sector slowly shrink (the Canadian Radio-television and Telecommunications Commission recently reported that conventional television revenues declined by 2.4 per cent in 2015).

With the broadcasting sector struggling to compete against unregulated Internet services, Joly should drop mandatory contributions altogether. In their place, support for the content industries could come from four sources: federal granting programs funded through general tax revenues, benefits packages from industry mergers, allocations from spectrum licensing, and targeted tax credits that benefit Canadian producers. The change would provide more stable funding for production and marketing, while leaving broadcasters more competitive.

Online services should remain unregulated and free from mandatory contributions, but should be subject to general sales taxes. Levying GST or HST on Canadian online video services such as Shomi or CraveTV while leaving Netflix tax-free creates a tax revenue shortfall and places domestic services at a disadvantage compared to their foreign counterparts.

Canadian broadcasting and telecommunications law must also keep pace with the changing digital environment. Rules that grant the CRTC the power to determine which channels may operate in Canada should be repealed. Instead, the Commission should concentrate on consumer protection and marketplace competition.

The consumer protection issues include regulations maintaining maximum consumer choice through pick-and-pay models, truth in advertising on communications services, and guaranteed Internet access for all Canadians.

Competition encompasses an even broader range of issues including enforceable net neutrality rules to ensure that creators and consumers benefit from neutral network service without unfair preferences, safeguards against vertically integrated media giants unfairly favouring their own content, and the possibility of structural separation for companies that own significant content and carriage businesses.

As for Canada’s public broadcaster, one of the most contentious issues in recent years has been the CBC’s emphasis on digital delivery of news content. Reconciling the need for the CBC to remain relevant by embracing digital delivery with the financial impact on private sector news services could be addressed by requiring the public broadcaster to adopt an ad-free approach to its online news presence. That would ensure that it reaches digital audiences but does not directly compete with the private sector for advertising dollars. The private news services could also benefit from a change to allow tax deductions for advertising on Canadian websites.

While these changes would dramatically shift the legal and regulatory environment for Canadian culture, Joly’s initiative needs an even bigger goal to capture the public’s imagination. That could include requiring the CBC to open its content for public reuse (the government is opening its national parks, why not its national content?) or embarking on a comprehensive digitization initiative that provides the foundation for a national digital library.

Joly has encouraged Canadians to think big about Canadian cultural policy. It now falls to the government to reject the regulatory models of the past by embracing a future-focused strategy that emphasizes competition, consumer access, and the export and promotion of Canadian content for a global audience.

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 Forget a Netflix Tax. Here’s How to Shake Up Canada’s Culture appeared first on Michael Geist.

The Interconnection Measurement Project

Freedom to Tinker - Mon, 2016/05/09 - 19:25
Building on the March 11 release of the “Revealing Utilization at Internet Interconnection Points” working paper, today, CITP is excited to announce the launch of the Interconnection Measurement Project. This unprecedented initiative includes the launch of a project-specific website and the ongoing collection, analysis, and release of capacity and utilization data from ISP interconnection points. […]

The Trouble with the TPP: My Appearance Before the International Trade Committee

Michael Geist Law RSS Feed - Fri, 2016/05/06 - 08:23

Yesterday I appeared alongside Jim Balsillie, former co-CEO of Research in Motion, at the House of Commons Standing Committee on International Trade public consultation on the TPP. There were some interesting exchanges that I will highlight once the transcript is released. My opening remarks are posted below.

Appearance before the House of Commons Standing Committee on International Trade, May 5, 2016

Good morning. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I appear today in a personal capacity representing only my own views.

There is lots to say about the TPP – I have written dozens of articles and posts on the agreement and I am currently working on a book on point – but I have limited time so I’ll focus briefly on four issues.

First, Canada’s price of admission and weakness during the negotiations.

Canada was not an initial participant in the TPP negotiations. U.S. lobby groups urged the U.S. government to keep Canada out of the negotiations until a copyright bill was passed that satisfied its demands. Those demands had a significant impact on the contents of the 2012 Canadian copyright bill, particularly the retention of restrictive digital lock rules that were at the very top of the U.S. policy priority list.

Once the U.S. was convinced that Canada would meet its IP and anti-counterfeiting demands, it set further conditions for entry, including a commitment that Canada could not hold up any chapter if it was the lone opponent. This concession became important in the IP chapter, where there were several issues were Canada ultimately did stand alone and for which it was forced to cave.

As the negotiations neared a conclusion, senior Canadian officials were advised that Canada was at a disadvantage in the negotiations given the lack of coordination and transparency between government negotiators and interested stakeholders. We went ahead anyway and agreed to the deal.

Second, what did we agree to? The TPP leads to significant changes in Canadian IP law. 

For example, the term of copyright in Canada is presently life of the author plus an additional 50 years, a term consistent with the international standard set by the Berne Convention. This is also the standard in half of the TPP countries with Japan, Malaysia, New Zealand, Brunei, and Vietnam also providing protection for life plus 50 years. The TPP will require an extension by 20 more years. That is a major windfall for the U.S. and a net loss for Canada (and most other TPP countries). In fact, New Zealand, which faces a similar requirement, has estimated that the extension alone will cost its economy NZ$55 million per year. Last week, a draft report from the Australian government’s Productivity Commission pointed to estimates of AU$88 million per year for term extension. The Canadian cost may be higher without any real benefit.

The IP changes don’t stop there. The TPP includes changes to digital lock rules, longer patent protections, criminalization of trade secret law, changes to trademark law, new border measures, requirements for ratification by all TPP countries of as many as 9 international IP treaties.

Third, It is Not Just IP

The TPP goes far beyond IP. It touches on culture, restricting the ability to expand CanCon contributions policies. This means that despite Minister Joly’s recent promise to review Canadian cultural policies, contributions to support the creation of Canadian content are effectively locked into place with the TPP blocking new policies aimed at new services and technologies.

The TPP also leaves behind a complex array of regulations for services industries that is almost certain to result in unintended consequences. Hot button issues such as regulation of online gambling or regulating ride sharing services such as Uber may be decided by the TPP, not Canadian governments, whether at the municipal or provincial levels.

On the Internet, it reverses our longstanding hands-off approach on Internet governance and fails to meet our standards on issues like net neutrality.

The TPP even touches on privacy, restricting the ability for governments to implement restrictions on data transfers or data localization, while setting a very low threshold for privacy protection and anti-spam rules. This could place Canada between a proverbial rock and hard place on privacy sitting between European demands and TPP requirements.

Health is directly affected with increases to pharmaceutical pricing, locking in protections for biologics, and even sketching out the rules for a national pharmacare program if Canada were to adopt one.

Fourth, the risks and potential costs of getting implementation wrong are enormous.

The TPP was negotiated behind closed doors and presented to the public on a take-it-or-leave-it basis. I’ve read references from some MPs claiming Canada has already consulted on the deal. I know of few, if any, experts in these areas that were consulted. In fact, when I appeared before this committee in June 2013, I was told by government MPs that concerns about the TPP were premature and that we should wait until the negotiations were complete. Now that they are complete, I hear some saying there has been enough consultation.

Yet we must recognize that the risks of getting implementation wrong are enormous. The investor-state dispute settlement provisions in the TPP point to the possibility of massive liability from corporate claims. Minister Freeland has described the ISDS rules in the Canada-EU Trade Agreement as the “gold standard”, but the TPP rules do not meet that standard. Moreover, even crafting our own standards within the TPP may be a non-starter since the US maintains that it gets to decide for Canada how to ratify the agreement through a certification process.

In sum, Canada was at distinct disadvantage in the TPP negotiations and it shows with major losses on intellectual property, digital and cultural policies, as well as the prospect of significant liability through ISDS and US certification into how we implement . The issue isn’t about being pro or anti-free trade.  It is about a bad deal that should be renegotiated or rejected and trade alternatives pursued.  I welcome your questions.

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The TPP, IP, and Digital Policy: My CABE Presentation

Michael Geist Law RSS Feed - Wed, 2016/05/04 - 08:45

Earlier this week, I delivered a webinar for the Canadian Association of Business Economics on the implications of the TPP. The talk touched on a wide range of concerns including copyright, privacy, culture, and digital policies. A video of the talk can be found here.

 

The post The TPP, IP, and Digital Policy: My CABE Presentation appeared first on Michael Geist.

The Digital CanCon Review: Be Wary of Old Whine in New Bottles

Michael Geist Law RSS Feed - Tue, 2016/05/03 - 08:42

Canadian Heritage Minister Mélanie Joly surprised culture and Internet watchers last week by announcing plans for a comprehensive review of Canadian content policies in a digital world. Joly says everything is on the table including broadcasting regulation, Cancon funding mechanisms, copyright law, the role of the CBC, and the future of the Canadian Radio-television and Telecommunications Commission (CRTC).

While there is little doubt that the current framework was established for a different era, rules that have sheltered the industry from foreign competition and transferred hundreds of millions of dollars from consumers to creator groups will not disappear without a fight. Indeed, my weekly technology column (Toronto Star version, homepage version) warns that the most common refrain from the Canadian cultural community is likely to be that the existing rules should be extended to the Internet.

Joly’s consultation may be new, but questions about adapting Canadian content regulations to the digital environment have been around for some time. For example, the primary impetus behind the CRTC’s much-maligned TalkTV consultation was the dramatic shift in the television landscape due to the Internet. With rapid growth of unregulated Internet-based alternatives such as Netflix drawing millions of Canadian subscribers and offering new venues for sales of Canadian content, the Commission was faced with difficult policy choices on how to adapt old rules into the digital reality.

It implored creator groups to focus on leveraging the Internet by competing on a global stage, while urging broadcasters to adopt consumer-friendly packages given the emergence of greater consumer choice that ultimately seems likely to lead to a mass exodus from the regulated system.

The reaction from the Canadian culture establishment?

Most paid lip service to competing for new audiences, focusing instead on demands for Netflix taxes, CanCon requirements for digital services, retention of longstanding protectionist rules such as simultaneous substitution, and the continuation of expensive consumer television packages to preserve existing channels. There is little reason to believe those groups will offer a different vision of Canadian content regulation this time round.

In fact, they will likely expect even more from this consultation. In addition to regulations over Internet-based video services, there will be calls to implement an Internet service provider tax to fund the creation of CanCon. An ISP tax (or levy) was rejected by the Supreme Court of Canada in 2012, but rewriting the Broadcasting Act and the Telecommunications Act will offer the possibility of new consumer fees to offset declining contributions from the broadcasting sector. Levies on Internet access would run counter to other policy goals, however, notably ensuring universal, affordable broadband for all Canadians since increases to the cost of Internet service would likely widen the digital divide.

The competing objectives highlight another complication of the consultation, namely the overlap between government departments. Canadian Heritage will lead on cultural issues, but there are significant implications for others such as Minister of Innovation, Science and Economic Development Navdeep Bains (responsible for telecommunications and copyright) and International Trade Minister Chrystia Freeland (the Trans Pacific Partnership limits Canadian cultural policies).

Policy overlap is particularly pronounced on copyright, with some groups eyeing the CanCon consultation as the chance to demand further changes to the Copyright Act, despite the fact that a review of that law is already scheduled for 2017. Moreover, copyright was just modernized in 2012, with new rules designed to foster digital user generated content, promote online distribution, and tackle websites that enable infringement. If anything, Canadian copyright law is still more restrictive than its U.S. counterpart, where fair use laws offer more flexibility to creators of all stripes than Canada’s fair dealing provisions.

The modernization of CanCon regulation offers the opportunity to rethink longstanding policies by prioritizing global markets, consumer choice, competition, and the benefits of an expanded creative class that includes both commercial and non-commercial participants. Next week’s column will examine some of the policy possibilities, but for now, Canadians should be wary of a consultation process that could quickly devolve into a rush to regulate the Internet with claims that cultural policies in the digital world is little more than old wine in new bottles.

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Digital Cancon Fight Could End Up as New Whine in Old Bottles

Michael Geist Law RSS Feed - Tue, 2016/05/03 - 08:38

Appeared in the Toronto Star on May 2, 2016 as Digital Cancon Fight Could End Up as New Whine in Old Bottles

Canadian Heritage Minister Mélanie Joly surprised culture and Internet watchers last week by announcing plans for a comprehensive review of Canadian content policies in a digital world. Joly says everything is on the table including broadcasting regulation, Cancon funding mechanisms, copyright law, the role of the CBC, and the future of the Canadian Radio-television and Telecommunications Commission (CRTC).

While there is little doubt that the current framework was established for a different era, rules that have sheltered the industry from foreign competition and transferred hundreds of millions of dollars from consumers to creator groups will not disappear without a fight. Indeed, the most common refrain from the Canadian cultural community is likely to be that the existing rules should be extended to the Internet.

Joly’s consultation may be new, but questions about adapting Canadian content regulations to the digital environment have been around for some time. For example, the primary impetus behind the CRTC’s much-maligned TalkTV consultation was the dramatic shift in the television landscape due to the Internet. With rapid growth of unregulated Internet-based alternatives such as Netflix drawing millions of Canadian subscribers and offering new venues for sales of Canadian content, the Commission was faced with difficult policy choices on how to adapt old rules into the digital reality.

It implored creator groups to focus on leveraging the Internet by competing on a global stage, while urging broadcasters to adopt consumer-friendly packages given the emergence of greater consumer choice that ultimately seems likely to lead to a mass exodus from the regulated system.

The reaction from the Canadian culture establishment?

Most paid lip service to competing for new audiences, focusing instead on demands for Netflix taxes, CanCon requirements for digital services, retention of longstanding protectionist rules such as simultaneous substitution, and the continuation of expensive consumer television packages to preserve existing channels. There is little reason to believe those groups will offer a different vision of Canadian content regulation this time round.

In fact, they will likely expect even more from this consultation. In addition to regulations over Internet-based video services, there will be calls to implement an Internet service provider tax to fund the creation of CanCon. An ISP tax (or levy) was rejected by the Supreme Court of Canada in 2012, but rewriting the Broadcasting Act and the Telecommunications Act will offer the possibility of new consumer fees to offset declining contributions from the broadcasting sector. Levies on Internet access would run counter to other policy goals, however, notably ensuring universal, affordable broadband for all Canadians since increases to the cost of Internet service would likely widen the digital divide.

The competing objectives highlight another complication of the consultation, namely the overlap between government departments. Canadian Heritage will lead on cultural issues, but there are significant implications for others such as Minister of Innovation, Science and Economic Development Navdeep Bains (responsible for telecommunications and copyright) and International Trade Minister Chrystia Freeland (the Trans Pacific Partnership limits Canadian cultural policies).

Policy overlap is particularly pronounced on copyright, with some groups eyeing the CanCon consultation as the chance to demand further changes to the Copyright Act, despite the fact that a review of that law is already scheduled for 2017. Moreover, copyright was just modernized in 2012, with new rules designed to foster digital user generated content, promote online distribution, and tackle websites that enable infringement. If anything, Canadian copyright law is still more restrictive than its U.S. counterpart, where fair use laws offer more flexibility to creators of all stripes than Canada’s fair dealing provisions.

The modernization of CanCon regulation offers the opportunity to rethink longstanding policies by prioritizing global markets, consumer choice, competition, and the benefits of an expanded creative class that includes both commercial and non-commercial participants. Next week’s column will examine some of the policy possibilities, but for now, Canadians should be wary of a consultation process that could quickly devolve into a rush to regulate the Internet with claims that cultural policies in the digital world is little more than old wine in new bottles.

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

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Why Bell’s Plan to Buy MTS Could Kill the Government’s Fourth Wireless Carrier Strategy

Michael Geist Law RSS Feed - Mon, 2016/05/02 - 09:55

Bell announced plans this morning to buy MTS, the Manitoba-based wireless carrier that has been critical to creating a more competitive wireless market in the province. The nearly $4 billion deal would include a commitment to divest one-third of MTS wireless customers to Telus. The agreement is still subject to regulatory and shareholder approvals along with figuring out how some customers go to Telus and some stay with Bell. While the government has yet to articulate a clear strategy for wireless competition in Canada, the deal appears to kill the hope of four carriers in each market and will likely mean sharply increased prices for Manitoba consumers.

With the four competitors in Manitoba – Bell, Telus, Rogers, and MTS – the province features some of the lowest wireless prices in Canada. Compare Bell’s wireless pricing for consumers in Manitoba and Ontario. The cost of an unlimited nationwide calling share plan in Manitoba is $50. The same plan in Ontario is $65. The difference in data costs are even larger: Bell offers 6 GB for $20 in Manitoba. The same $20 will get you just 500 MB in Ontario. In fact, 5 GB costs $50 in Ontario, more than double the cost in Manitoba for less data. The other carriers such as Rogers and Telus also offer lower pricing in Manitoba. The reason is obvious: the presence of a fourth carrier creates more competition and lower pricing. With MTS out of the way – and Bell and Telus sharing the same wireless network – prices are bound to increase to levels more commonly found in the rest of the country.

The deal therefore represents a huge blow to the government’s hopes for a more competitive wireless marketplace. Instead, one of Canada’s lower cost provinces is likely to see increased prices and the market continues to consolidate around the big three providers. If wireless competition is a priority, the government and regulator should carefully examine the proposed transaction and consider whether it moves Canadian wireless in the wrong direction.

The post Why Bell’s Plan to Buy MTS Could Kill the Government’s Fourth Wireless Carrier Strategy appeared first on Michael Geist.

Voltage Pictures Launches Canadian File Sharing Lawsuit With Reverse Class Action Strategy

Michael Geist Law RSS Feed - Thu, 2016/04/28 - 09:20

Voltage Pictures, which previously engaged in a lengthy court battle to require Canadian ISPs to disclose the names of alleged file sharers, has adopted a new legal strategy. This week, the company filed an unusual application in federal court, seeking certification of a reverse class action against an unknown number of alleged uploaders of five movies using BitTorrent (The Cobbler, Pay the Ghost, Good Kill, Fathers and Daughters, and American Heist). The use of reverse class actions is very rare in Canada (only a few have been reported). There were attempts to use the mechanism in copyright claims in the U.S. several years ago without success.

The Voltage filing seeks certification of the class, a declaration that each member of the class has infringed its copyright, an injunction stopping further infringement, damages, and costs of the legal proceedings. Voltage names as its representative respondent John Doe (linked to a Rogers IP address). It admits that it does not know the names or identifies of any members of its proposed class, but seeks to group anyone in Canada who infringed the copyright on one of the five movies. Voltage does not say how many people it has identified as infringing its copyright. It urges the court to issue an order to stop the infringement and to assess damages to be paid by each person.

The case raises many questions, most notably whether a reverse class action can be used an effective technique to target copyright infringement. Class actions typically involve a representative plaintiff who represents many others who have suffered the same harms from the actions of the defendant. Reverse class actions feature a single plaintiff (Voltage) and multiple defendants (the alleged file sharers). The most comprehensive examination of reverse class actions in Canada I could find comes from Ian Leach, who notes that while the strategy has rarely been used, there have been a few such cases in Ontario (the federal court rules have similar provisions).

There are several barriers to starting a reverse class action. In 2013, an Oregon court dismissed a similar Voltage lawsuit, concluding that the company “was unfairly using the court’s subpoena power in a “reverse class-action suit” to save on legal expenses and possibly to intimidate defendants into paying thousands of dollars for viewing a movie that can be bought or rented for less than $10.” Another reverse class action was tossed in U.S. federal court in Illinois in 2011, with the judge expressing concern that the case was little more than a “fishing expedition.” A New York Law School Review note comprehensively canvasses the issue from a U.S. perspective, arguing that the cases cannot be certified under U.S. law and that they raise significant issues of fairness.

One of the biggest concerns involves questions of representation for the defendant class. Before certification, the court will want assurance that the interests of the defendants will be fairly represented. But who will represent those interests? Who will pay for the legal counsel?  Unlike a plaintiff-led class action, where lawyers are often willing to invest in the case, there is no payoff at the end of this case and finding someone to represent the class will be a challenge when the only named representative is John Doe #1. If the representation issue is addressed, there will be additional concerns related to commonality (there may be a common copyright claim, but the defences may differ) and identification of the scope of the class, which appears to be indefinite.

Beyond the certification challenges, one of the primary barriers to reverse class actions is that defendants have the option of opting out of the class. This suggests that even if certified, any and all defendants will have the right to opt-out. In other words, after going through the process of trying to meet the requirements for class proceedings, all the defendants will be permitted to simply walk away.

Opting-out will pose its own sets of challenges as defendants will presumably want to have their anonymity safeguarded if they choose to opt-out. Voltage may be counting on the possibility of self-identification as a deterrence against opting out, but the court could establish a mechanism to allow for full exercise of the right to opt-out without being forced to disclose personal identity. The privacy issue related to the identification of the individuals is a separate matter that has its own process under Canadian law.

Class action experts may be able to shed more light on the issues related to a reverse class action, but at first glance this Voltage lawsuit is a puzzling strategy that should face stiff opposition from courts concerned with procedural fairness and appropriate representation of the interests of all class members.

The post Voltage Pictures Launches Canadian File Sharing Lawsuit With Reverse Class Action Strategy appeared first on Michael Geist.

Canadian Officials Admit TPP IP Policy Runs Counter To Preferred National Strategy

Michael Geist Law RSS Feed - Tue, 2016/04/26 - 10:13

Today is World IP Day, which marks the creation of the World Intellectual Property Organization. Canadian policy has long preferred the use of international bodies like WIPO to advance its IP objectives, yet the intellectual property provisions in recently concluded trade deals such as the TPP and CETA run counter to Canadian strategy. That isn’t just the opinion of the many critics of those agreements. It is what government officials told International Trade Minister Chrystia Freeland as part of her briefing materials.

The briefing document on intellectual property and the trade agenda, released under the Access to Information Act, leaves little doubt that trade officials are well aware that the Canadian position on IP in the TPP is inconsistent with our preferred position and that it will lead to IP trade deficits. The document states:

Canada’s preferred strategy is to establish international IP rules through multilateral forums such as the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). However, in the context of the Canada-EU Comprehensive Economic Trade Agreement (CETA) and the Trans-Pacific Partnership (TPP), Canada negotiated trade obligations that, while reflective of recent domestic reforms, are beyond those standards set through multilateral forums, and which will likely require amendments to domestic practice, such as in the areas of geographical indications (GIs) and patent protection for pharmaceuticals.

The position within the government bears repeating: the TPP and CETA go beyond international standards and require changes to Canadian law. Indeed, as critics have consistently argued, the Canadian IP approach on the TPP is a loss for Canada. Again, here is what Canadian officials advised Minister Freeland:

Canada provides a high level of protection and enforcement for IP. However, key trading partners such as the United States and European Union can be expected to be critical of Canadian policy, particularly with regard to their export interests in the copyright and pharmaceutical sectors where their view of the appropriate policy balance differs from Canada. Canada is a net importer of IP meaning that there is a net loss on intellectual tech transfer and patent licensing payments as well as a trade deficit in IP-intensive industries.

The briefing continues by acknowledging that Canada has accepted IP requirements that exceed multilateral benchmarks in the TPP and CETA. Officials anticipate that these demands for further change will continue.

What is particularly striking about the briefing materials is that they are entirely consistent with criticism of the TPP and the argument that the IP provisions do not serve Canada’s national interest. Canadian officials plainly state that Canada faces a net loss in technology transfers and patent licensing payments as well as a trade deficit in IP intensive industries. Yet despite the express acknowledgement of the situation by Canada’s own trade officials (and the obvious awareness of Canadian leaders), they not only agreed to those provisions, they expect more of the same in the future.

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Why Federal Leadership on Universal Broadband is a Need, Not a Want

Michael Geist Law RSS Feed - Mon, 2016/04/25 - 15:13

With one week still remaining in the federal telecommunications regulator’s hearing focused on the state of Internet access in Canada, the process has taken a surprising turn that ultimately cries out for leadership from Navdeep Bains, the Minister of Innovation, Science, and Economic Development.

Jean-Pierre Blair, chair of the Canadian Radio-television and Telecommunications Commission (CRTC), opened the hearing two weeks ago with a warning: even if an ideal speed target could be identified, there was no guarantee of regulatory action. Blais urged participants not to confuse “wants” with “needs”, a framing that suggested the goal of the hearing was to identify the bare minimum Internet service required by Canadians.

My weekly technology law column (Toronto Star version, homepage version) notes that the remarks attracted immediate headlines that the Commission would not guarantee basic Internet speeds. The CRTC insists that only comments on the public record count, but it is obvious that the commissioners pay close attention to media commentary and social media postings.

Within hours of the first media report, Blais jokingly told one communications law professor that his class might consider analyzing how his remarks were turned into those headlines. In fact, the fixation with press coverage continued later in the week as Blais referenced “editorialists who never show up at our hearings but apparently have very strong views.”

The press and public coverage of the hearing – which unsurprisingly focused on the CRTC’s seeming reluctance to adopt ambitious forward-looking targets for universal Internet access – may have led to an unexpected abrupt shift in tone and policy. Days after the “needs” and “wants” talk, Blais offered a second set of remarks, this time describing the vital importance of Internet access as “self-evident” and characterizing the hearing as “a chance to create together a coherent national broadband strategy.”

The decision to change the focus of the hearing more than a year after submissions began may be unusual, but the CRTC is right. Canada desperately needs a national digital strategy with universal, affordable broadband as its foundation. However, whether the Commission is the right body to lead such a strategy is an entirely different matter.

A strategy focused on universal, affordable access raises two key questions. First, what are the minimum targets for download and upload speeds? Second, who will pay for the creation of universally available networks that guarantee access at whatever target speed?

Some of the major telecommunications companies have been urging the CRTC to adopt a “5 and 1″ approach representing 5 Mbps download and 1 Mbps upload. They claim those speeds are sufficient to allow for the use of many Internet applications including online video and Internet telephony (though the ability for multiple people in a single household to use these services simultaneously is in doubt).

Yet a national broadband strategy must surely go beyond the bare minimum and the applications of today. Multiple users, video-based education programs, tele-health, virtual community meetings, interactive entertainment, 3D printing, and numerous Internet-enabled devices are more than just wants. They are the future of broadband for many Canadians and the reason why a country focused on innovation cannot be content with painfully slow, expensive Internet access.

A realistic target also requires realistic funding. The CRTC has a relatively small pot of money available and it may be limited to shifting dollars from conventional telephone contributions to the Internet. That approach is unlikely to yield the necessary investment to create a true 21st century digital infrastructure.

There is a role to play for Canada’s telecommunications regulator, but it cannot replace a long-overdue Internet infrastructure commitment from the federal government. The Liberal government emphasized infrastructure investment in its 2016 budget, but allocated relatively little to the digital side of the ledger. If anything is self-evident, it is that federal government leadership on broadband funding and policies that encourage greater competition is a need, not a want.

The post Why Federal Leadership on Universal Broadband is a Need, Not a Want appeared first on Michael Geist.

Plan for Universal Internet Needs Real Leadership

Michael Geist Law RSS Feed - Mon, 2016/04/25 - 15:09

Appeared in the Toronto Star on April 24, 2016 as Plan for Universal Internet Needs Real Leadership

With one week still remaining in the federal telecommunications regulator’s hearing focused on the state of Internet access in Canada, the process has taken a surprising turn that ultimately cries out for leadership from Navdeep Bains, the Minister of Innovation, Science, and Economic Development.

Jean-Pierre Blair, chair of the Canadian Radio-television and Telecommunications Commission (CRTC), opened the hearing two weeks ago with a warning: even if an ideal speed target could be identified, there was no guarantee of regulatory action. Blais urged participants not to confuse “wants” with “needs”, a framing that suggested the goal of the hearing was to identify the bare minimum Internet service required by Canadians.

The remarks attracted immediate headlines that the Commission would not guarantee basic Internet speeds. The CRTC insists that only comments on the public record count, but it is obvious that the commissioners pay close attention to media commentary and social media postings.

Within hours of the first media report, Blais jokingly told one communications law professor that his class might consider analyzing how his remarks were turned into those headlines. In fact, the fixation with press coverage continued later in the week as Blais referenced “editorialists who never show up at our hearings but apparently have very strong views.”

The press and public coverage of the hearing – which unsurprisingly focused on the CRTC’s seeming reluctance to adopt ambitious forward-looking targets for universal Internet access – may have led to an unexpected abrupt shift in tone and policy. Days after the “needs” and “wants” talk, Blais offered a second set of remarks, this time describing the vital importance of Internet access as “self-evident” and characterizing the hearing as “a chance to create together a coherent national broadband strategy.”

The decision to change the focus of the hearing more than a year after submissions began may be unusual, but the CRTC is right. Canada desperately needs a national digital strategy with universal, affordable broadband as its foundation. However, whether the Commission is the right body to lead such a strategy is an entirely different matter.

A strategy focused on universal, affordable access raises two key questions. First, what are the minimum targets for download and upload speeds? Second, who will pay for the creation of universally available networks that guarantee access at whatever target speed?

Some of the major telecommunications companies have been urging the CRTC to adopt a “5 and 1″ approach representing 5 Mbps download and 1 Mbps upload. They claim those speeds are sufficient to allow for the use of many Internet applications including online video and Internet telephony (though the ability for multiple people in a single household to use these services simultaneously is in doubt).

Yet a national broadband strategy must surely go beyond the bare minimum and the applications of today. Multiple users, video-based education programs, tele-health, virtual community meetings, interactive entertainment, 3D printing, and numerous Internet-enabled devices are more than just wants. They are the future of broadband for many Canadians and the reason why a country focused on innovation cannot be content with painfully slow, expensive Internet access.

A realistic target also requires realistic funding. The CRTC has a relatively small pot of money available and it may be limited to shifting dollars from conventional telephone contributions to the Internet. That approach is unlikely to yield the necessary investment to create a true 21st century digital infrastructure.

There is a role to play for Canada’s telecommunications regulator, but it cannot replace a long-overdue Internet infrastructure commitment from the federal government. The Liberal government emphasized infrastructure investment in its 2016 budget, but allocated relatively little to the digital side of the ledger. If anything is self-evident, it is that federal government leadership on broadband funding and policies that encourage greater competition is a need, not a want.

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

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