Feed aggregator

The Trouble with the TPP, Day 9: Limits on Medical Devices and Pharma Data Collection

Michael Geist Law RSS Feed - Thu, 2016/01/14 - 10:15

The link between health care and the TPP’s intellectual property chapter is easy to spot, but there are other chapters with implications for the issue. The Trouble with the TPP series today considers Chapter 8, which covers Technical Barriers to Trade (TBT). The chapter contains some surprising restrictions on the ability for national regulators to require the disclosure of certain information as part of the regulatory review process for pharmaceutical products and medical devices (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection).

The Canadian government summary of the TBT chapter does not disclose that there are data collection restrictions. In fact, the only reference to the issue states that the chapter “improves regulatory transparency in the areas of cosmetics, medical devices, and pharmaceutical products.” Yet the chapter does far more than address regulatory transparency. For example, Annex 8-C 7bis requires each party to makes its determination on whether to grant marketing authorization for a specific pharmaceutical product on the basis on factors such as clinical data, manufacturing quality, and labelling information. However, it also states that:

no Party shall require sale or related financial data concerning the marketing of the product as part of such a determination. Further, each Party shall endeavour not to require pricing data as part of the determination

Annex 8-E for the approval of marketing of medical devices is similar:

no Party shall require sale, pricing, or related financial data concerning the marketing of the product as part of such a determination

As KEI notes in its presentation to the U.S. International Trade Commission:

It is certainly desirable to require drug and device makers to provide information about product prices, revenues, and a variety of related financial data, including the outlays on R&D and marketing of products. These are the very topics that the State of California and other state governments are seeking to obtain from drug companies, but it is much easier to mandate such disclosures at the federal level.

Much of the pricing and sales data for drugs is now controlled by IMS, the company that holds a near global monopoly on the most detailed information on sales revenue and pricing of drugs. Other “related financial data concerning the marketing of the product” might include data on R&D outlays, a topic shredded in unhelpful secrecy and subject to too much controversy, when the facts exist and could be shared. From the text, it is not that clear how far the ban on requiring financial data extends, and to which activities of a regulatory agency or another government body would be constrained by these provisions.

It is not clear why the Canadian government has agreement to these limitations nor why the summary documents do not reference them. This information could assist regulators in making better decisions on medical devices and pharmaceutical products, yet the TPP will inexplicably block them from doing so.

The post The Trouble with the TPP, Day 9: Limits on Medical Devices and Pharma Data Collection appeared first on Michael Geist.

The Trouble with the TPP, Day 8: Locking In Biologics Protection

Michael Geist Law RSS Feed - Wed, 2016/01/13 - 11:36

As the TPP negotiations reached their conclusion in Atlanta last October, one outstanding issue stood above all others: protection for biologics. While not well understood by the public, at issue was billions of dollars and access to cutting edge medicines. The Trouble with the TPP series examines the outcome of the biologics issue and argues that even with less protection than the U.S. advocated, the TPP’s requirements still represent a significant problem for global health (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions).

Biological drugs are pharmaceuticals involving complex molecules or mixtures of molecules that are made of biological sources manufactured within a living system. They differ from conventional drugs that are manufactured by combining chemical ingredients. Building on greater knowledge of genetics and cell processes, the area represents a major growth area for the pharmaceutical industry. With the complexity comes cost, however, with biological drugs far more expensive than conventional ones. Much like the generic pharmaceutical industry creates cheaper, generic versions of chemical drugs, companies have begun to create “biosimilars” as cheaper versions of biological drugs, relying on data from clinical trials to formulate the alternative. Pharmaceutical companies have therefore sought protection for the clinical data.

As a relatively new area with billions at stake, countries have adopted a wide range of approaches to the issue of data protection. The U.S. currently offers 12 years of data protection (which it wanted emulated within the TPP), though President Obama has seemingly recognized the mistake of offering such long protection (the term was part of the negotiation over health care reform) and recently sought to reduce the term to seven years, which would have yielded billions in health care savings. Other countries have taken different approaches: Australia and New Zealand offer five years of protection, Japan and Canada eight years, and some TPP countries such as Mexico, Peru, Vietnam, Malaysia and Brunei have no protection at all.

The optimal term of protection remains a contentious issue. The Federal Trade Commission released a study in 2009 that raised doubts about the need for any biologics-specific protection, citing the protections offered by patents and the high costs of entry as evidence that biosimilar competition would be limited.  Moreover, it noted that there were already sufficient market incentives to support biologic competition and innovation.

The TPP compromise remains contentious, as Article 18.52 provides for at least eight years of protection or five years of protection plus other measures to provide comparable outcome in the market. The ongoing dispute over what this provision means is the source of some of the opposition to the TPP in the United States (particularly since Australia maintains its current approach is compliant with the TPP). Canada currently meets the eight year standard, so no further legislative changes would be required.

Yet even the compromise represents a problem. As the FTC concluded, it is far from clear that any protection is needed given market incentives and the protections that may be granted through patents. Moreover, President Obama’s second thoughts on the term of protection in the U.S. points to both the enormous costs that come with each year of additional protection and the prospect that countries may wish to reduce protections in the future. The TPP locks-in protection, however, making it difficult for any TPP country to later amend its rules. That binding policy, which comes at a still early stage of new technological development, may create long term health costs to the detriment of patients, innovation, and marketplace competition.

The post The Trouble with the TPP, Day 8: Locking In Biologics Protection appeared first on Michael Geist.

Do privacy studies help? A Retrospective look at Canvas Fingerprinting

Freedom to Tinker - Tue, 2016/01/12 - 13:04
It seems like every month we hear of some new online privacy violation in the news, on topics such as fingerprinting or web tracking. Many of these news stories highlight academic research. What we don’t see is whether these studies and the subsequent news stories have any impact on privacy. Our 2014 canvas fingerprinting measurement […]

The Trouble with the TPP, Day 7: Patent Term Extensions

Michael Geist Law RSS Feed - Tue, 2016/01/12 - 10:54

The Trouble with the TPP series now shifts to patent law reforms and the likely costs to the health care system (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry). The TPP patent provision changes are very significant since they lock Canada into extending the term of patent protection, which will ultimately increase health care costs. Moreover, global organizations such Doctors Without Borders has warned that the agreement will raise the price of medicines for millions of people, particularly in the developing world.

The Conservative government tried to downplay the impact of patent law changes in the TPP, arguing that the agreement is consistent with current law or is “in line with outcomes secured in the Canada – EU Comprehensive Trade and Economic Agreement (CETA)”. The reference to CETA, which comes from the government’s TPP IP summary, represents a neat of sleight of hand.

The CETA changes, which the government admitted would result in increased health care costs, are not part of current Canadian law. They are not part of any bill that has been introduced before the House of Commons. In fact, given the long delays in proceeding with any implementation of CETA (indeed, the growing sense that Europe may reject the agreement in its current form), the CETA patent provisions are best described as aspirational. The inclusion of CETA-style patent provisions in TPP should be viewed on their own as ratification of the TPP could easily come before CETA ever makes its way before the House of Commons. Should that happen, the TPP will be responsible for increased health care costs arising from the extension of patent protection for pharmaceuticals.

The TPP requires several significant changes to Canadian patent law. Article 18.48 creates a requirement for a patent term adjustment for delays due to marketing approvals (described as unreasonable curtailment). The Canadian government believes that CETA’s two year patent restoration provision will meet the TPP requirement. The effect of the TPP is therefore to lock in CETA’s patent restoration extension even if CETA is never ratified or implemented. According to one study, the impact of these provisions in CETA could lead to increased drug costs of between $850 million and $1.6 billion annually.

In fact, the TPP expands the extension requirements even beyond those found in CETA. Article 18.46 requires a patent term adjustment due to patent office delays. The section provides that “an unreasonable delay at least shall include a delay in the issuance of a patent of more than five years from the date of filing of the application in the territory of the Party, or three years after a request for examination of the application has been made, whichever is later.” No similar extension is found under current Canadian law nor within CETA.

As one of my recent technology law column noted (Toronto Star version, homepage version), the escalation in patent protections is set to occur just as drug prices hit all-time highs in Canada and pharmaceutical investment in research and development sinks to decade-long lows. Those results come from a recent report released by the Patent Medicines Panel Review Board (PMPRB), an independent body charged by the government to track patent medicines pricing and spending alongside investment in research and development by pharmaceutical companies.

The report indicates that Canadians pay more for patented drugs than consumers in France, the U.K., Italy, Sweden, and Switzerland (only the U.S. and Germany pay more among the countries tracked by the PMPRB). The PMPRB says that this represents a change over time:



In 2005, Canadian prices were, on average, approximately equal to or below corresponding prices in all comparators other than Italy. By 2014, Canadian prices were decidedly above prices in the United Kingdom, France and Italy, and somewhat higher than prices in Sweden and Switzerland.



Moreover, over the past 12 years, Canadian expenditures on drugs has outpaced all other comparator countries, including the U.S., with 184.4 per cent growth in total drug expenditures.

Not only have Canadian expenditures on drugs been high, but the ratio of sales to research and development in Canada by pharmaceutical companies has fallen to record lows. In the 1980s, the industry lobbied for patent reforms that provided new rights and longer protections. In return, it promised to increase spending on research and development in Canada so that it would rise to 10 per cent of total sales by 1996. 

The report indicates that the ratio is now at only 4.4 per cent, the lowest recorded since 1988 (the peak rate was 11.7 per cent in 1995).

Canada is a significant laggard when it comes to pharmaceutical research. Despite ranking as one of the 10 most important markets and paying some of the world’s highest prices, the ratio of sales to research in other comparator countries is triple the Canadian rate. In other words, in countries such as the UK and France, drug prices are lower and research expenditures are far higher.

The confluence of high prices, low investment in research and development, and ever-increasing demands for further patent protections has caused the PMPRB to question the effectiveness of the Canadian system. It notes with regard to CETA:

Its implementation will require amendments to the Patent Act to provide pharmaceutical patentees with up to two years of additional market exclusivity. Such a change would come at a time of high drug prices and record low R&D, causing some to question the effectiveness of the PMPRB and whether a policy balance conceived over 25 years ago continues to serve its intended purpose.



The concern over Canadian pharmaceutical policy is long overdue as the evidence leaves little doubt that catering to the demands of the largely foreign-based companies have yielded few benefits. Canadians pay significantly more for pharmaceutical drugs than consumers in many other developed countries and the promised increased investment in research and development has not materialized. Yet despite the costly state of affairs, the government is set to reward the industry with even stronger protections through the TPP that will result in an extension of the higher prices.

The post The Trouble with the TPP, Day 7: Patent Term Extensions appeared first on Michael Geist.

The Battle Over the Future of Broadband in Canada: Mayors Tory & Watson v. Nenshi

Michael Geist Law RSS Feed - Tue, 2016/01/12 - 10:41

Cities across the country have long emphasized the importance to the local economy of creating innovation hubs. There are different roads toward that goal, however, as shown by competing submissions from the mayors of Toronto and Calgary in a high-stakes battle over the future of broadband Internet services. Toronto mayor John Tory and Ottawa Mayor Jim Watson sided with large telecom companies, while Calgary mayor Naheed Nenshi emphasized the importance of open networks and more robust competition.

My weekly technology law column (Toronto Star version, homepage version) notes that the submissions stem from a crucial ruling issued by Canada’s telecom regulator in July. Hoping to foster a more competitive market and having used various “open access” policy measures to give independent Internet providers a chance to compete in the Internet services market, the Canadian Radio-television and Telecommunications Commission (CRTC) decided to extend those rules to fast fibre connection services.

The upshot of the ruling was that companies such as Bell would be required to share their infrastructure with other carriers on a wholesale basis. The companies would enjoy a profit on those wholesale connections, but the increased competition would facilitate better services, pricing, and consumer choice. Indeed, the policy approach is similar to the one used for slower DSL broadband connections that has been instrumental in creating a small but active independent ISP community that serves hundreds of thousands of Canadians.

Months later, Bell filed a cabinet appeal over the decision, asking the new Liberal government to overrule the CRTC. Industry Canada recently posted the comments from interested stakeholders and in the process revealed a fascinating split on the issue.

On one side, Bell garnered support from large business groups and technology companies such as Cisco and Blackberry. Those companies have strong business relationships and were unsurprisingly willing to support Bell’s position. On the other side, consumer groups, independent Internet providers, some cable providers, and the Canadian Federation of Independent Business lined up in support of the CRTC decision, emphasizing the benefits of a more competitive market.

While the corporate divide was to be expected (most corporate submissions supporting Bell used similar language and some even copied Bell executives), the more interesting difference arose from submissions from several large Canadian cities.

Toronto and Ottawa both submitted brief letters expressing support for Bell’s position. The two-page letters both cite planned Bell investments in the cities and express fear that the CRTC ruling might delay company plans. Tory, a former Rogers executive, says that Bell deserves to be treated fairly, but does not explain how the implementation of a policy designed to create more competition for his constituents represents unfair treatment.

By contrast, Calgary submitted a 28 page document supporting the CRTC ruling and explaining why increased competition was good for the city and consumers. Addressing issues seemingly ignored by Toronto and Ottawa, Nenshi noted that without some form of network access for competitors, there would invariably be challenges to grant all providers the necessary municipal infrastructure to construct their networks. Given limited capacity of municipal right of ways, the market might be limited to a few large competitors.

Moreover, Calgary focused on the need for cities to build their own network infrastructure to complement the services offered by the telecom giants. It noted the public interest benefits that arise from building municipal networks, which offer the chance for more competition and ensure that cities are not held hostage by large companies threatening to delay or withdraw network investments.

Calgary also reminded the government that companies like Bell have long enjoyed benefits from public funding, protection from competition, and access to municipal infrastructure. While the new fibre connections do not rely on legacy infrastructure, their powerful market positions are directly linked to those earlier privileged positions.

The federal government decision on the appeal may be months away, but the competing submissions paint dramatically different pictures of how Canadian cities are addressing the critical need for affordable high-speed Internet services.

It suggests that Toronto and Ottawa are seemingly content to wait for the large telecom companies to install new networks and have no problem with the higher consumer and business costs that reduced competition would bring. Calgary, meanwhile, is actively building competitive networks, monitoring municipal developments around the world, and promoting a more open, competitive environment. All the mayors claim their cities are working to become leading hubs of innovation, yet only one seems to be doing much about it.

The post The Battle Over the Future of Broadband in Canada: Mayors Tory & Watson v. Nenshi appeared first on Michael Geist.

Why Mayors John Tory and Jim Watson Are Against Competition for Access to Affordable Fast Broadband

Michael Geist Law RSS Feed - Tue, 2016/01/12 - 10:29

Appeared in the Toronto Star on January 11, 2015 as Why Mayor John Tory is Against Competition for Access to Affordable Fast Broadband

Cities across the country have long emphasized the importance to the local economy of creating innovation hubs. There are different roads toward that goal, however, as shown by competing submissions from the mayors of Toronto and Calgary in a high-stakes battle over the future of broadband Internet services. Toronto mayor John Tory (joined by Ottawa Mayor Jim Watson) sided with large telecom companies, while Calgary mayor Naheed Nenshi emphasized the importance of open networks and more robust competition.

The submissions stem from a crucial ruling issued by Canada’s telecom regulator in July. Hoping to foster a more competitive market and having used various “open access” policy measures to give independent Internet providers a chance to compete in the Internet services market, the Canadian Radio-television and Telecommunications Commission (CRTC) decided to extend those rules to fast fibre connection services.

The upshot of the ruling was that companies such as Bell would be required to share their infrastructure with other carriers on a wholesale basis. The companies would enjoy a profit on those wholesale connections, but the increased competition would facilitate better services, pricing, and consumer choice. Indeed, the policy approach is similar to the one used for slower DSL broadband connections that has been instrumental in creating a small but active independent ISP community that serves hundreds of thousands of Canadians.

Months later, Bell filed a cabinet appeal over the decision, asking the new Liberal government to overrule the CRTC. Industry Canada recently posted the comments from interested stakeholders and in the process revealed a fascinating split on the issue.

On one side, Bell garnered support from large business groups and technology companies such as Cisco and Blackberry. Those companies have strong business relationships and were unsurprisingly willing to support Bell’s position. On the other side, consumer groups, independent Internet providers, some cable providers, and the Canadian Federation of Independent Business lined up in support of the CRTC decision, emphasizing the benefits of a more competitive market.

While the corporate divide was to be expected (most corporate submissions supporting Bell used similar language and some even copied Bell executives), the more interesting difference arose from submissions from several large Canadian cities.

Toronto and Ottawa both submitted brief letters expressing support for Bell’s position. The two-page letters both cite planned Bell investments in the cities and express fear that the CRTC ruling might delay company plans. Tory, a former Rogers executive, says that Bell deserves to be treated fairly, but does not explain how the implementation of a policy designed to create more competition for his constituents represents unfair treatment.

By contrast, Calgary submitted a 28 page document supporting the CRTC ruling and explaining why increased competition was good for the city and consumers. Addressing issues seemingly ignored by Toronto and Ottawa, Nenshi noted that without some form of network access for competitors, there would invariably be challenges to grant all providers the necessary municipal infrastructure to construct their networks. Given limited capacity of municipal right of ways, the market might be limited to a few large competitors.

Moreover, Calgary focused on the need for cities to build their own network infrastructure to complement the services offered by the telecom giants. It noted the public interest benefits that arise from building municipal networks, which offer the chance for more competition and ensure that cities are not held hostage by large companies threatening to delay or withdraw network investments.

Calgary also reminded the government that companies like Bell have long enjoyed benefits from public funding, protection from competition, and access to municipal infrastructure. While the new fibre connections do not rely on legacy infrastructure, their powerful market positions are directly linked to those earlier privileged positions.

The federal government decision on the appeal may be months away, but the competing submissions paint dramatically different pictures of how Canadian cities are addressing the critical need for affordable high-speed Internet services.

It suggests that Toronto and Ottawa are seemingly content to wait for the large telecom companies to install new networks and have no problem with the higher consumer and business costs that reduced competition would bring. Calgary, meanwhile, is actively building competitive networks, monitoring municipal developments around the world, and promoting a more open, competitive environment. All the mayors claim their cities are working to become leading hubs of innovation, yet only one seems to be doing much about it.

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

The post Why Mayors John Tory and Jim Watson Are Against Competition for Access to Affordable Fast Broadband appeared first on Michael Geist.

Canada’s Pharma Failure: Why High Drug Prices Are About to Soar Higher

Michael Geist Law RSS Feed - Tue, 2016/01/12 - 10:28

Appeared in the Toronto Star on December 21, 2015 as Why Canada’s High Drug Prices Are About to Soar Higher

Patent protections for the pharmaceutical companies have been among the most controversial aspects of recent high profile trade agreements such as the Canada – EU Trade Agreement (CETA) and the Trans Pacific Partnership (TPP). For example, CETA would require Canada to extend the term of protection for patents through a patent term restoration rule, which the Conservative government acknowledged would add billions to provincial health care costs. The TPP would reinforce those reforms, requiring changes even if CETA falls through.

The escalation in patent protections is set to occur just as drug prices hit all-time highs in Canada and pharmaceutical investment in research and development sinks to decade-long lows. Those results come from a recent report released by the Patent Medicines Panel Review Board (PMPRB), an independent body charged by the government to track patent medicines pricing and spending alongside investment in research and development by pharmaceutical companies.

The report indicates that Canadians pay more for patented drugs than consumers in France, the U.K., Italy, Sweden, and Switzerland (only the U.S. and Germany pay more among the countries tracked by the PMPRB). The PMPRB says that this represents a change over time:



In 2005, Canadian prices were, on average, approximately equal to or below corresponding prices in all comparators other than Italy. By 2014, Canadian prices were decidedly above prices in the United Kingdom, France and Italy, and somewhat higher than prices in Sweden and Switzerland.



Moreover, over the past 12 years, Canadian expenditures on drugs has outpaced all other comparator countries, including the U.S., with 184.4 per cent growth in total drug expenditures.

Not only have Canadian expenditures on drugs been high, but the ratio of sales to research and development in Canada by pharmaceutical companies has fallen to record lows.  In the 1980s, the industry lobbied for patent reforms that provided new rights and longer protections. In return, it promised to increase spending on research and development in Canada so that it would rise to 10 per cent of total sales by 1996. 

The report indicates that the ratio is now at only 4.4 per cent, the lowest recorded since 1988 (the peak rate was 11.7 per cent in 1995).

Indeed, Canada is a significant laggard when it comes to pharmaceutical research. Despite ranking as one of the 10 most important markets and paying some of the world’s highest prices, the ratio of sales to research in other comparator countries is triple the Canadian rate. In other words, in countries such as the UK and France, drug prices are lower and research expenditures are far higher.

The confluence of high prices, low investment in research and development, and ever-increasing demands for further patent protections has caused the PMPRB to question the effectiveness of the Canadian system. It notes with regard to CETA:

Its implementation will require amendments to the Patent Act to provide pharmaceutical patentees with up to two years of additional market exclusivity. Such a change would come at a time of high drug prices and record low R&D, causing some to question the effectiveness of the PMPRB and whether a policy balance conceived over 25 years ago continues to serve its intended purpose.



The concern over Canadian pharmaceutical policy is long overdue as the evidence leaves little doubt that catering to the demands of the largely foreign-based companies have yielded few benefits.

Canadians pay significantly more for pharmaceutical drugs than consumers in many other developed countries and the promised increased investment in research and development has not materialized. Yet despite the costly state of affairs, the government is set to reward the industry with even stronger protections that will result in an extension of the higher prices.

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

The post Canada’s Pharma Failure: Why High Drug Prices Are About to Soar Higher appeared first on Michael Geist.

The Trouble with the TPP, Day 6: The Price of Entry

Michael Geist Law RSS Feed - Mon, 2016/01/11 - 10:30

An examination of the Trouble with the TPP copyright provisions would not be complete without discussing how Canada reformed its law before entering the negotiations as part of the price of admission to the TPP talks (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”). The pre-TPP reforms must surely be considered part of the cost of the agreement even if proponents now argue that the TPP is consistent with (the reformed) Canadian law.

Canada was not an initial participant in the TPP negotiations. The Harper government began working on entry into the TPP in 2009, leading to a formal request for participation in the negotiations in 2011. The U.S. held a consultation on Canada’s proposed entry into the TPP a year later, resulting in the IIPA, the lead lobby group for the movie, music, and software industry, urging the U.S. government to keep Canada out of the negotiations until a copyright bill was passed that satisfied U.S. expectations. The Canadian government responded by promising to pass the law and noting that it had also signed the Anti-Counterfeiting Trade Agreement (ACTA). The U.S. demands had an enormous impact on the contents of the Canadian copyright bill, particularly the retention of restrictive digital lock rules that were at the very top of the U.S. priority list.

In fact, the Canadian government was not shy about acknowledging that some reforms were driven by U.S. demands as the price for TPP entry.  For example, Canada enacted anti-counterfeiting legislation in 2014 that then Industry Minister James Moore admitted was a U.S. condition for TPP participation:

“This legislation contributes to a more effective relationship between Canada and the United States on raising Canada to the international standard and meeting the standard that the American government frankly asked the government of Canada to meet in order for us to move forward with our participation in the Trans Pacific Partnership negotiations so we think we’ve checked all the necessary boxes.”

Once the U.S. was convinced that Canada would meet its IP and anti-counterfeiting demands, it set two further conditions for entry. The first was that Canada could not re-open any chapter that had already been concluded. The second was that Canada would not have any “veto authority” over any chapter. That meant 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. For example, Canada was the only opponent of adding new criminal measures for rights management information. Given the terms of entry into the negotiations, it had little to choice but to cave on the issue, creating another example of how rules set before formal entry into the TPP negotiations have had a troubling impact on the agreement and on Canadian law.

The post The Trouble with the TPP, Day 6: The Price of Entry appeared first on Michael Geist.

The Trouble with the TPP, Day 5: Rights Holders “Shall” vs. Users “May”

Michael Geist Law RSS Feed - Fri, 2016/01/08 - 10:17

The Trouble with the TPP series concludes the first week with a look at how the TPP treats the interests of rights holders and users completely differently (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules). I noted in the discussion on Internet providers that the most telling provision comes at the very end, where the parties recognize the importance of taking into account the impacts on rights holders and Internet providers. Internet users and the general public do not merit a mention as their interests do not seem to count for the purposes of a notice-and-takedown system for copyright works on the Internet.

The absence of users in the Internet provider section is not an anomaly. Throughout the TPP IP chapter, there are two distinct approaches. Where rights holders interests are concerned, the requirements are typically mandatory (ie. “shall”). Where the issue involves user rights or access, the requirements are not requirements, but rather non-mandated provisions (ie. “may”). For example, consider the international IP treaty obligations in the TPP.  Article 18.7 identifies nine international IP treaties and protocols that are all requirements for TPP members (Patent Cooperation Treaty, Paris Convention, Berne Convention, Madrid Protocol, Budapest Treaty, Singapore Treaty, UPOV 1991, WCT, and WPPT). What about the Marrakesh Treaty to facilitate access to published works for the blind and visually impaired? It is relegated to a footnote with no obligation to implement:

As recognised by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, done at Marrakesh, June 27, 2013 (Marrakesh Treaty). The Parties recognise that some Parties facilitate the availability of works in accessible formats for beneficiaries beyond the requirements of the Marrakesh Treaty.

The TPP also contains dozens of obligations that guarantee rights holders everything from a longer copyright term to limitations on any limitations and exceptions. What about requiring balance within copyright? Article 18.66 falls back on “shall endeavour” language, meaning countries do not face a positive obligation for balance:

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.

That this provision is regarded as a positive step forward highlights just how little user interests factor into the IP chapter.  In fact, Jonathan Band notes that efforts to strengthen the balancing language during the Hawaii round of negotiations was “vehemently opposed by movie studios and other U.S. rights holders.” Negotiators ultimately caved to those pressures and retained the weaker language.

The weak language can similarly be found in safeguards against abuse of intellectual property rights. The TPP is filled with provisions aimed at guarding against misuse or infringement of IP rights. But what about when rights holders misuse their rights? Article 18.3(2) provides more weak language:

Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

How about provisions to enhance access to the public domain? No such luck as Article 18.15 merely “recognizes” the importance of a rich and accessible public domain as well as the importance of publicly accessible databases to identify works that are now in the public domain. Or how about legal protection for libraries and educational institutions against criminal liability for circumventing a digital lock? Unlike the many digital lock requirements in the TPP, Article 18.68 says that countries “may” provide that the criminal provisions do not apply to those institutions.

The examples go on and on with obligations when rights holder interests are involved and optional provisions for users. The public still has the option of being heard, however. As part of its consultation process, the Canadian government is inviting comments on the TPP at any time via email at TPP-PTP.consultations@international.gc.ca.

The post The Trouble with the TPP, Day 5: Rights Holders “Shall” vs. Users “May” appeared first on Michael Geist.

The Trouble with the TPP, Day 4: Copyright Notice and Takedown Rules

Michael Geist Law RSS Feed - Thu, 2016/01/07 - 10:20

The Trouble with the TPP series focuses today on the TPP’s effort to regulate how Internet providers and hosts address allegations of copyright infringement on their networks and sites (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension). The goals of the U.S. and Canadian government in the negotiations were clear from the outset: the U.S. wanted to export its DMCA notice-and-takedown system to the rest of the TPP, while Canada wanted to preserve its newly created notice-and-notice approach (more on the notice-and-notice system, which does a better job of striking a balance and preserving user privacy, here). In fact, Canada rushed through the notice-and-notice system without regulations (causing major problems of misleading notices) in order to argue that it should not be required to adopt the U.S. approach.

The end result is a compromise that allows Canada to maintain notice-and-notice, but no other TPP country can adopt it in order to comply with the ISP liability and notice rules. The Canadian rules can be found in Annex 18-E, which states that the standard TPP ISP rules do not apply to a country that meets the conditions of the annex “as from the date of agreement in principle of this Agreement.” Since that date is now long passed (October 4, 2015), no other TPP country can implement the notice-and-notice system to meet its TPP obligations. It should be noted that Chile, which objected to the special treatment for Canada, obtained a similar exception for its system based on the U.S. – Chile Free Trade Agreement in Annex 18-F.

That compromise highlights one of the major sources of trouble with the TPP. More than a mere trade agreement, the TPP is a clear effort by the U.S. to export its regulatory framework to other countries, creating a competitive advantage for its companies. Canada and Chile were able to push back to retain their system, but no other TPP country (present or future) will be permitted to adopt those systems to meet their treaty obligations. This compromise presumably comes at the behest of the major U.S. movie, music, and software industries, which have used their lead lobby group to criticize both Canada and Chile over their systems.

For those countries stuck with the TPP’s implementation of U.S. law, Annemarie Bridy points out that the TPP is “less speech-protective and more prone to over-enforcement and abuse.” For example, the TPP does not contain a mandatory counter-notice system that would allow users to effectively challenge claims of infringement by requiring providers to re-post their content. Moreover, the TPP has fewer requirements for the contents of takedown notices as compared to the DMCA, with no requirement for rights holders to state their good faith belief that the content in the notice infringes copyright. The absence of a good faith belief requirement is a major omission given that it has played a role in litigation in the U.S. where rights holders misuse the takedown system.

The decision lock-in the DMCA notice-and-takedown system within the TPP comes just as the U.S. Copyright Office undertakes a public study of its costs and burdens on rights holders, service providers, and the general public. As with the prior discussion on digital locks, the risk that the TPP may mandate a particular approach that limits domestic reforms is an enormous problem for all stakeholders, regardless of their perspective.

Perhaps the most telling provision in the Internet provider section comes at the very end. Article 18.82 (9), the final sentence in the section, states:

The Parties recognise the importance, in implementing their obligations under this Article, of taking into account the impacts on right holders and Internet Service Providers.

There is no reference to users or the general public in the provision, as the impact on the public simply doesn’t matter. This reflects an approach in which the broader public is not even an after-thought. It is missing altogether.

The post The Trouble with the TPP, Day 4: Copyright Notice and Takedown Rules appeared first on Michael Geist.

The Trouble with the TPP, Day 3: Copyright Term Extension

Michael Geist Law RSS Feed - Wed, 2016/01/06 - 11:15

The Trouble with the TPP series continues with one of the most high profile copyright concerns associated with the TPP: mandatory copyright term extension (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks). 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.

From a Canadian perspective, the issue of extending the term of copyright was raised on several prior occasions and consistently rejected by governments and trade negotiators. For example, term extension was discussed during the 2009 national copyright consultation, but the Canadian government wisely decided against it. Further, the European Union initially demanded that Canada extend the term of copyright in the Canada-EU Trade Agreement, but that too was effectively rebuffed with the issue of term removed from the final text.

From a policy perspective, the decision to maintain the international standard of life plus 50 years is consistent with the evidence that term extension creates harms by leaving Canadians with 20 years of no new works entering the public domain with virtually no gains in terms of new creativity. In other words, in a policy world in which copyright strives to balance creativity and access, term extension does not enhance creativity but it does restrict access.

The negative effects of term extension has been confirmed by many economists, including in a study commissioned by Industry Canada, which have concluded that extending the term simply does not create an additional incentive for new creativity. Moreover, studies in other countries that have extended term have concluded that it ultimately costs consumers as additional royalties are sent out of the country. In the case of the TPP, the term extension is a major windfall for the United States 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. The Canadian cost is undoubtedly far higher.

The damage caused by the term extension involves more than just higher costs to consumers and educational institutions. It also creates a massive blow to access to Canadian heritage. Canadian publishers such as Broadview Press, an independent academic publisher that has been a vocal proponent of copyright, warned about the dangers of the term extension to its business and the academic community last fall:

Unlimited, or excessively long, copyright terms have often kept scholars from publishing (or even obtaining access to) material of real historical or cultural significance. They have severely restricted certain options for university teaching as well. Broadview’s editions of Mrs. Dalloway and of The Great Gatsby(edited by Jo-Ann Wallace and by Michael Nowlin, respectively), for example, are to my mind unrivalled. Each includes far more than just the text itself: explanatory notes, extended introductions, and an extraordinary range of helpful and fascinating background material in a series of appendices. They offer a truly distinctive pedagogical option. But instructors and students in the USA are still not allowed access to those editions.

Currently, we at Broadview are looking at publishing similar editions of works by other authors who have been dead for more than 50 but fewer than 70 years—works such as Orwell’s Animal Farm and 1984, for example; a Broadview edition of such works, with the appendices of contextual materials that are a feature of almost every Broadview edition, would provide highly valuable context for students at all levels. We are also looking forward to January 1, 2016, when we will finally be able to make the superb Broadview edition of The Waste Land and other Poems—with its excellent explanatory notes and extensive range of background material on modernism—available in Canada. (Eliot died in 1965.)

If the TPP is approved in Canada, then, say goodbye to those Orwell and Eliot editions.

As I noted last year, with the TPP mandated copyright term extension there are 22 Governor-General award winning fiction and non-fiction authors whose work will not enter the public domain for decades. These include Margaret Laurence, Gabrielle Roy, Marian Engel, Marshall McLuhan, and Donald Creighton.

The list of winners whose works were scheduled to enter the public domain over the next 20 years, but will now wait until at least 2037 (assuming a 2017 reform date):

FICTION

  • Igor Sergeyevich Gouzenko (The Fall of a Titan)
  • Winifred Estella Bambrick (Continental Revue)
  • Colin Malcolm McDougall DSO (Author, Execution)
  • Germaine Guèvremont (The Outlander)
  • Philip Albert Child (Mr. Ames Against Time)
  • Gabrielle Roy (The Tin Flute)
  • Jean Margaret Laurence (The Stone Angel/ A Jest of God)
  • Marian Engel (Bear)
  • Hugh Garner (Hugh Garner’s Best Stories)

NON-FICTION

  • James Frederick Church Wright (Slava Bohu)
  • Laura Goodman Salverson (Confessions of an Immigrant’s Daughter)
  • Edgar Wardell McInnis (The Unguarded Frontier)
  • Evelyn M. Richardson (We Keep a Light)
  • William Sclater (Haida)
  • Marjorie Elliott Wilkins Campbell (The Saskatchewan)
  • William Lewis Morton (The Progressive Party in Canada)
  • Josephine Phelan (The Ardent Exile)
  • Donald Grant Creighton (John A. Macdonald, The Young Politician)
  • Frank Hawkins Underhill (In Search of Canadian Liberalism)
  • Herbert Marshall McLuhan (The Gutenberg Galaxy)
  • Noah Story (The Oxford Companion to Canadian History and Literature)
  • Francis Reginald Scott (Essays On the Constitution)

In addition to Canadian authors, there many well-known international figures that will be kept out of the public domain such as John Steinbeck, Martin Luther King, Andy Warhol, Woody Guthrie, and Elvis Presley.

While the damage to the public domain in Canada is huge and stands as one of the worst aspects of the TPP’s intellectual property chapter, there is the potential for an implementation approach that would mitigate some of the harm. As Kim Weatherall points out in her excellent review of the TPP copyright provisions, earlier versions of the TPP included a provision prohibiting the implementation of any formalities such as registration for copyright. The no formalities rule was dropped from the final TPP text.

The Berne Convention prohibits the use of formalities for works covered by the treaty, but Canada could conceivably treat the term beyond Berne – ie. the 20 years after life plus 50 years – as a supplementary regime that falls outside of the Berne standard. If Canada (and potentially other countries) treat the additional protection as supplemental, it could require copyright registration and notification of the extended term in order to qualify for further protection. Copyright registration would not eliminate all the harm to the public domain, but it would mean that only those that desire the extension would take the positive steps to get it, thereby reducing the costs of the TPP’s unnecessary copyright term extension.

The post The Trouble with the TPP, Day 3: Copyright Term Extension appeared first on Michael Geist.

The Trouble with the TPP, Day 2: Locking in Digital Locks

Michael Geist Law RSS Feed - Tue, 2016/01/05 - 10:49

The Trouble with the TPP series (Day 1: US Blocks Balancing Provisions) spends the next few days examining the TPP’s copyright provisions. One of the most controversial aspects of the 2012 Canadian copyright reform process involved the anti-circumvention provisions, often referred to as the digital lock rules. The U.S. pressured Canada to include anti-circumvention rules, which were required for ratification of the WIPO Internet Treaties, within the copyright reform package. They feature legal protections for technological protection measures (TPMs, a broader umbrella that captures digital rights management or DRM) and rights management information (RMI).

There was an enormous amount of scholarly analysis on these issues throughout the reform process. For example, I wrote about the flexibility in implementing the WIPO Internet Treaties, Carys Craig wrote about the negative implications for fair dealing, Ian Kerr wrote about the broader implications of digital locks, Jeremy deBeer focused on the constitutional concerns, and Mark Perry wrote about rights management information. Moreover, David Lametti, now a Liberal MP and the Parliamentary Secretary for International Trade, wrote about the incoherence of the digital lock rules. The academic analysis was decidedly negative about the legal reforms as was the broader public, which made the issue a top priority as part of the 2009 copyright consultation.

This background is necessary since it is important to understand that the digital lock rules currently found in Canadian copyright law already represent a government decision to cave to U.S. pressure and establish reforms that go far beyond what is required under the WIPO Internet treaties. It should also be noted that when the Liberals introduced their digital lock rules in a 2005 bill, it was far more flexible and balanced than the one passed by the Conservatives in 2012. Yet despite the 2012 reforms, the TPP will require Canada to make further changes to its digital lock rules and lock Canada into a “WIPO+” model that removes the ability to restore the flexibility found in the WIPO Internet treaties. In other words, once the TPP takes effect, the restrictive digital lock rules will be locked into Canadian law.

The TPP affects both the rights management information rules and technological protection measures provisions. For rights management information, Article 18.69 of the TPP requires Canada to add criminal liability to the list of potential remedies. This marks a significant change from the 2012 copyright reform package, reflecting U.S. desire for increased criminalization of copyright law. Canada opposed the change during the TPP negotiations, but ultimately caved in the final draft (Canada remained opposed as late as the Hawaii TPP round in August 2015). There are no similar criminal requirements in the Canada – EU Trade Agreement.

For technological protection measures, Article 18.68 of the TPP contain extensive requirements for all TPP countries. Those requirements extend beyond those required by the WIPO Internet treaties. In fact, the TPP digital lock rules also go beyond those found within the Canada – EU Trade Agreement and the Canada – South Korea Trade Agreement with more restrictive rules on the creation of circumvention exceptions as well as criminal liability requirements.

The long-term implications of the TPP digital lock rules is to lock Canada into the more restrictive, less flexible standard. While our other agreements – whether the WIPO Internet treaties themselves or other trade agreements – would allow for a more flexible approach than currently found in the TPP, if the TPP takes effect, it will trump those agreements for Canadian law purposes by requiring a different standard for digital lock protection.

The post The Trouble with the TPP, Day 2: Locking in Digital Locks appeared first on Michael Geist.

Tech Law in 2016: Previewing Some of the Tough Policy Choices

Michael Geist Law RSS Feed - Tue, 2016/01/05 - 10:34

Technology law and policy continues to command the attention of the public and policy makers. My weekly technology law column (Toronto Star version, homepage version) notes that as Canada enters a new year with a new government, 2016 will be all about making tough choices on a wide range of technology law policies, including the following eight issues that are sure to generate headlines.

1.    How will Bill C-51 be revamped?

Bill C-51, the Conservative government’s anti-terrorism bill, emerged as a major political issue last year as many expressed concern over the lack of oversight and the implications for privacy and civil liberties.  The Liberal government has committed to reforms, but has been generally coy about what those changes will be.  New accountability mechanisms will undoubtedly feature prominently in any reform package, but the substantive amendments to the bill remain a mystery.

2.    What to do about lawful access?

The decade-long debate over lawful access, which establishes the rules under which law enforcement can access subscriber information, concluded last year with the passage of Bill C-13.  The Privacy Commissioner of Canada remains critical of the legislation and the Supreme Court of Canada has ruled that subscribers have a reasonable expectation of privacy in that information. With law enforcement seeking new warrants to access subscriber data, the Liberals face tough policy choices in striking the privacy-security balance.

3.    Will privacy breach regulations move ahead?

The Digital Privacy Act, which also became law in 2015, created a framework for mandatory disclosure of privacy breaches, such as those that occurred last year with Ashley Madison. However, those rules only take effect once regulations are in place. The Liberal government will have to quickly decide whether to prioritize the privacy of Canadians by expediting the regulatory process in 2016.

4.    What to do about Canadian broadcasting?

The Canadian Radio-television and Telecommunications Commission (CRTC) spent much of the past year reshaping Canadian broadcasting regulation to grant consumers more choice through pick-and-pay packages. As the changes hit the market in 2016, the government will be faced with the prospect of a broadcaster backlash over falling revenues and disappearing subscribers.

5.    Will Canada ratify the copyright treaty for the blind?

The Marrakesh copyright treaty for the blind and visually impaired ensures greater access to copyrighted works for millions around the world.  The Conservatives introduced a bill last year designed to ratify the treaty just prior to the election call. With that bill now dead, how long will the Liberals wait before moving forward with their own implementing legislation?

6.    Will Canada sign the Trans Pacific Partnership?

While this seems like a foregone conclusion, Canada will have to decide whether to sign the TPP when it comes up for signature in early February. Given the advantages that come with being an original signatory, it seems likely that the government will sign the agreement but leave the decision of ratification until at least 2017.

7.    A fix for the notice and notice copyright system?

The copyright notice-and-notice system took effect in 2015 after several years of delay. The policy tries to strike a fair balance between the privacy rights of Internet subscribers (whose personal information is not publicly disclosed) and the copyright interests of rights holders. However, notice-and-notice has unexpectedly been used to send thousands of settlement demand notices.  Officials acknowledge that this was never the intent of the policy and a fix that establishes rules on the content of notices may be forthcoming.

8.    How will the government tackle its first big telecom fight?

Within hours of the Liberal government taking office, Bell Canada handed it the first telecom policy hot potato, filing a cabinet appeal over a CRTC decision mandating open access rules to grant independent Internet providers access to high speed fibre connections. The decision will force the government to identify its vision of broadband competition since the ruling will go a long way to determining what the competitive marketplace looks like for broadband Internet access across Canada.

The post Tech Law in 2016: Previewing Some of the Tough Policy Choices appeared first on Michael Geist.

The Policy Choices That Will Define Tech Law in 2016

Michael Geist Law RSS Feed - Tue, 2016/01/05 - 10:30

Appeared in the Toronto Star on January 4, 2016 as How 2016 Will Shape Canada’s Tech Policy

Technology law and policy continues to command the attention of the public and policy makers. As Canada enters a new year with a new government, 2016 will be all about making tough choices on a wide range of technology law policies, including the following eight issues that are sure to generate headlines.

1.    How will Bill C-51 be revamped?

Bill C-51, the Conservative government’s anti-terrorism bill, emerged as a major political issue last year as many expressed concern over the lack of oversight and the implications for privacy and civil liberties.  The Liberal government has committed to reforms, but has been generally coy about what those changes will be.  New accountability mechanisms will undoubtedly feature prominently in any reform package, but the substantive amendments to the bill remain a mystery.

2.    What to do about lawful access?

The decade-long debate over lawful access, which establishes the rules under which law enforcement can access subscriber information, concluded last year with the passage of Bill C-13.  The Privacy Commissioner of Canada remains critical of the legislation and the Supreme Court of Canada has ruled that subscribers have a reasonable expectation of privacy in that information. With law enforcement seeking new warrants to access subscriber data, the Liberals face tough policy choices in striking the privacy-security balance.

3.    Will privacy breach regulations move ahead?

The Digital Privacy Act, which also became law in 2015, created a framework for mandatory disclosure of privacy breaches, such as those that occurred last year with Ashley Madison. However, those rules only take effect once regulations are in place. The Liberal government will have to quickly decide whether to prioritize the privacy of Canadians by expediting the regulatory process in 2016.

4.    What to do about Canadian broadcasting?

The Canadian Radio-television and Telecommunications Commission (CRTC) spent much of the past year reshaping Canadian broadcasting regulation to grant consumers more choice through pick-and-pay packages. As the changes hit the market in 2016, the government will be faced with the prospect of a broadcaster backlash over falling revenues and disappearing subscribers.

5.    Will Canada ratify the copyright treaty for the blind?

The Marrakesh copyright treaty for the blind and visually impaired ensures greater access to copyrighted works for millions around the world.  The Conservatives introduced a bill last year designed to ratify the treaty just prior to the election call. With that bill now dead, how long will the Liberals wait before moving forward with their own implementing legislation?

6.    Will Canada sign the Trans Pacific Partnership?

While this seems like a foregone conclusion, Canada will have to decide whether to sign the TPP when it comes up for signature in early February. Given the advantages that come with being an original signatory, it seems likely that the government will sign the agreement but leave the decision of ratification until at least 2017.

7.    A fix for the notice and notice copyright system?

The copyright notice-and-notice system took effect in 2015 after several years of delay. The policy tries to strike a fair balance between the privacy rights of Internet subscribers (whose personal information is not publicly disclosed) and the copyright interests of rights holders. However, notice-and-notice has unexpectedly been used to send thousands of settlement demand notices.  Officials acknowledge that this was never the intent of the policy and a fix that establishes rules on the content of notices may be forthcoming.

8.    How will the government tackle its first big telecom fight?

Within hours of the Liberal government taking office, Bell Canada handed it the first telecom policy hot potato, filing a cabinet appeal over a CRTC decision mandating open access rules to grant independent Internet providers access to high speed fibre connections. The decision will force the government to identify its vision of broadband competition since the ruling will go a long way to determining what the competitive marketplace looks like for broadband Internet access across 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 The Policy Choices That Will Define Tech Law in 2016 appeared first on Michael Geist.

The Trouble with the TPP, Day 1: U.S. Blocks Balancing Objectives

Michael Geist Law RSS Feed - Mon, 2016/01/04 - 11:30

The debate over the merits of the Trans Pacific Partnership is likely to play out in Canada and other TPP countries throughout 2016. While it seems likely that the treaty will be signed in early February (February 4th is the earliest possible date for the U.S. to sign), decisions on whether to ratify the agreement will extend into 2017 and beyond. I’ve already posted some thoughts on the TPP’s digital policy implications (and spoken about the issue in this speech and on this panel) but wanted to expand on the trouble with the TPP in more detail. With that goal in mind, I plan to post each weekday until February 4th on problems associated with the TPP. The series will include posts on copyright, privacy, Internet governance, and many other issues.

The Trouble with the TPP series starts with the slimmed down objectives of the intellectual property chapter. Leaked versions of earlier drafts shows that most TPP countries (including Canada) were supportive of expanded objectives that emphasized balance, the public domain, and timely access to affordable medicines. The full objectives provision, supported in full or in principle by New Zealand, Chile, Peru, Vietnam, Brunei, Malaysia, Singapore, Canada, and Mexico stated:

The objectives of this Chapter are:

  • enhance the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the [PE: generation,] transfer and dissemination of technology and trade;


  • reduce impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights, taking into account the different levels of economic development and capacity as well as differences in national legal systems; 


  • maintain a balance between the rights of intellectual property holders and the legitimate interests of users and the community in subject matter protected by intellectual property; 


  • protect the ability of Parties to identify, promote access to and preserve the public domain;


  • ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;


  • promote operational efficiency of intellectual property systems, in particular through quality examination procedures during the granting of intellectual property rights.]
  • the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
  • Support each Party’s right to protect public health, including by facilitating timely access to affordable medicines.]


This balanced list of objectives was opposed by the U.S. and Japan. The final text indicates that Canada and the rest of the TPP caved on the issue with only one objective surviving as Article 18.2:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

The final objectives provision removes references to maintaining balance across all IP rights, the legitimate interests of users, promoting access to and preserving the public domain, ensuring that IP rights do not create barriers to legitimate trade, and facilitating access to affordable medicines (there are references to some of these issues elsewhere within the text but not in the objectives provision and often with more limited language than the original proposal).

The objectives provision may not carry the same weight as positive obligations in the treaty, but they are important, reflecting the goals of the negotiating parties and providing a lens through which all other provisions can be interpreted. Canada and many other countries wanted to ensure that the lens promoted maintaining a balance between rights holders and users on all IP provisions. The exclusion from the objectives provision sets the tone for the IP chapter and highlights how user interests and the priorities of countries such as Canada were given limited weight within the final text.

The post The Trouble with the TPP, Day 1: U.S. Blocks Balancing Objectives appeared first on Michael Geist.

The Letters of the Law: 2015 in Technology Law and Policy

Michael Geist Law RSS Feed - Wed, 2015/12/30 - 13:01

With new trade agreements, a new government, new court cases, and new rules governing the Internet, law and technology issues garnered headlines all year long. My weekly technology law column (Toronto Star version, homepage version) takes a look back at 2015 from A to Z:

A is for the Ashley Madison data breach, which affected millions of people and placed the spotlight on online privacy.

B is for Bill C-51, the anti-terrorism bill, which became a flashpoint political issue on striking the right balance between surveillance and civil liberties.

C is for CBC v. SODRAC, a Supreme Court of Canada decision released in November that reinforced the significance of technological neutrality in copyright. The court sided with SODRAC, a copyright collective, on the need for payment for certain uses of music but ruled that an earlier rate-setting exercise had failed to account for the technological neutrality principle.

D is for Dot-Sucks, one of hundreds of new top-level domains that launched in 2015. The new domains generally failed to garner significant market share, though they created a host of new legal and policy concerns.

E is for Equustek Solutions, a B.C. based company that succeeded in obtaining a court order requiring Google to remove search results from its global index.

F is for Facebook, which won a B.C. Court of Appeal decision to stop a class action lawsuit over its now defunct Sponsored Stories service. The court ruled that the social media giant’s terms and conditions trumped the provincial privacy laws.

G is for GNLV Corp., the owner of the Golden Nugget casino in Las Vegas, which successfully obtained the domain Goldennuggetcasino.ca in a domain name dispute resolution process.

H is for Haaretz, an Israeli newspaper which faces a Canadian defamation lawsuit following an Ontario court ruling that its website makes it subject to Ontario jurisdiction.

I is for the new Minister of Innovation, Science and Development Navdeep Bains, who will grapple with a wide range of digital policies in his newly named portfolio.

J is for Jim Balsillie, one of the founders of Research In Motion, who emerged as a vocal critic of the Trans Pacific Partnership, the massive new trade agreement that covers 40 per cent of the world GDP.

K is for keyword advertising, which continues to attract legal attention over trademark use in ads. The latest Canadian case featured the Vancouver Career College successfully defending its online advertising campaign against a lawsuit by the Vancouver Community College.

L is for lawful access legislation, which took effect in March 2015 after more than a decade of contentious debate. The new rules were framed as measures designed to stop cyberbullying, but much of the legislation involved new police powers for the online environment.

M is for metatags, which are unseen words in the coding of webpages. Metatags figured prominently in a court battle between Redtag.ca and 411travel.ca, two competing Canadian travel sites.

N is for the copyright notice-and-notice system, which took effect this year and faced an immediate backlash after anti-piracy companies used it to send thousands settlement demands to Internet subscribers.

O is for OMNI, one of many Canadian television channels on the chopping block due to changing viewing habits and new regulations that will allow consumers to pick which channels they wish to pay for.

P is for Plenty of Fish, the online dating site hit with a $48,000 penalty for violating Canada’s anti-spam law.

Q is for the Quebec government’s plan to require website blocking for online gambling websites.

R is for Bell’s relevant advertising program, which was cancelled after the Privacy Commissioner of Canada ruled that it ran afoul of Canadian privacy law.

S is for Stargrove Entertainment, an Ontario-based record label, whose low cost, public domain Beatles records sparked industry lobbying to extend the term of copyright for sound recordings.

T is for telecom transparency rules, which were released this year following an industry-focused consultation process.

U is for Uber, the wildly popular shared ride service that led to heated regulatory battles in cities across Canada.

V is for the Vintners Association, which lost a bizarre small claims court case involving copyright and the sharing of a paywalled article from Blacklock’s Reporter, an Ottawa-based publication. The court awarded $11,470 in damages plus an additional $2,000 in punitive damages when an association executive obtained a copy of the article from a Blacklock’s subscriber.

W is for Wind Mobile, the wireless carrier that sits at the heart of government policy focused on fostering a competitive environment for a fourth wireless player.

X is for Xplornet, the satellite-based Internet provider that was the target of numerous net neutrality complaints over its Internet traffic management policies.

Y is for Yorkton, Saskatchewan, one of dozens of Canadian communities that benefited from Connecting Canadians funding, a program designed to bring broadband service to underserved areas.

Z is for zero rating, the policy battle over the legality of Internet providers removing data charges from some content to create a competitive advantage. The CRTC ruled on the issue this year in a dispute involving Bell and faces another claim over Videotron’s practices in 2016.

The post The Letters of the Law: 2015 in Technology Law and Policy appeared first on Michael Geist.

The Year in Technology Law and Policy

Michael Geist Law RSS Feed - Wed, 2015/12/30 - 12:58

Appeared in the Toronto Star on December 28, 2015 as A Year of Big Breaches And Even Bigger Bills

With new trade agreements, a new government, new court cases, and new rules governing the Internet, law and technology issues garnered headlines all year long. A look back at 2015 from A to Z:

A is for the Ashley Madison data breach, which affected millions of people and placed the spotlight on online privacy.

B is for Bill C-51, the anti-terrorism bill, which became a flashpoint political issue on striking the right balance between surveillance and civil liberties.

C is for CBC v. SODRAC, a Supreme Court of Canada decision released in November that reinforced the significance of technological neutrality in copyright. The court sided with SODRAC, a copyright collective, on the need for payment for certain uses of music but ruled that an earlier rate-setting exercise had failed to account for the technological neutrality principle.

D is for Dot-Sucks, one of hundreds of new top-level domains that launched in 2015. The new domains generally failed to garner significant market share, though they created a host of new legal and policy concerns.

E is for Equustek Solutions, a B.C. based company that succeeded in obtaining a court order requiring Google to remove search results from its global index.

F is for Facebook, which won a B.C. Court of Appeal decision to stop a class action lawsuit over its now defunct Sponsored Stories service. The court ruled that the social media giant’s terms and conditions trumped the provincial privacy laws.

G is for GNLV Corp., the owner of the Golden Nugget casino in Las Vegas, which successfully obtained the domain Goldennuggetcasino.ca in a domain name dispute resolution process.

H is for Haaretz, an Israeli newspaper which faces a Canadian defamation lawsuit following an Ontario court ruling that its website makes it subject to Ontario jurisdiction.

I is for the new Minister of Innovation, Science and Development Navdeep Bains, who will grapple with a wide range of digital policies in his newly named portfolio.

J is for Jim Balsillie, one of the founders of Research In Motion, who emerged as a vocal critic of the Trans Pacific Partnership, the massive new trade agreement that covers 40 per cent of the world GDP.

K is for keyword advertising, which continues to attract legal attention over trademark use in ads. The latest Canadian case featured the Vancouver Career College successfully defending its online advertising campaign against a lawsuit by the Vancouver Community College.

L is for lawful access legislation, which took effect in March 2015 after more than a decade of contentious debate. The new rules were framed as measures designed to stop cyberbullying, but much of the legislation involved new police powers for the online environment.

M is for metatags, which are unseen words in the coding of webpages. Metatags figured prominently in a court battle between Redtag.ca and 411travel.ca, two competing Canadian travel sites.

N is for the copyright notice-and-notice system, which took effect this year and faced an immediate backlash after anti-piracy companies used it to send thousands settlement demands to Internet subscribers.

O is for OMNI, one of many Canadian television channels on the chopping block due to changing viewing habits and new regulations that will allow consumers to pick which channels they wish to pay for.

P is for Plenty of Fish, the online dating site hit with a $48,000 penalty for violating Canada’s anti-spam law.

Q is for the Quebec government’s plan to require website blocking for online gambling websites.

R is for Bell’s relevant advertising program, which was cancelled after the Privacy Commissioner of Canada ruled that it ran afoul of Canadian privacy law.

S is for Stargrove Entertainment, an Ontario-based record label, whose low cost, public domain Beatles records sparked industry lobbying to extend the term of copyright for sound recordings.

T is for telecom transparency rules, which were released this year following an industry-focused consultation process.

U is for Uber, the wildly popular shared ride service that led to heated regulatory battles in cities across Canada.

V is for the Vintners Association, which lost a bizarre small claims court case involving copyright and the sharing of a paywalled article from Blacklock’s Reporter, an Ottawa-based publication. The court awarded $11,470 in damages plus an additional $2,000 in punitive damages when an association executive obtained a copy of the article from a Blacklock’s subscriber.

W is for Wind Mobile, the wireless carrier that sits at the heart of government policy focused on fostering a competitive environment for a fourth wireless player.

X is for Xplornet, the satellite-based Internet provider that was the target of numerous  net neutrality complaints over its Internet traffic management policies.

Y is for Yorkton, Saskatchewan, one of dozens of Canadian communities that benefited from Connecting Canadians funding, a program designed to bring broadband service to underserved areas.

Z is for zero rating, the policy battle over the legality of Internet providers removing data charges from some content to create a competitive advantage. The CRTC ruled on the issue this year in a dispute involving Bell and faces another claim over Videotron’s practices in 2016.

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 The Year in Technology Law and Policy appeared first on Michael Geist.

How Will Consumers Use Faster Internet Speeds?

Freedom to Tinker - Tue, 2015/12/29 - 10:50
This week saw an exciting announcement about the experimental deployment of DOCSIS 3.1 in limited markets in the United States, including Philadelphia, Atlanta, and parts of northern California, which will bring gigabit-per-second Internet speeds to many homes over the existing cable infrastructure. The potential for gigabit speeds over the existing cable networks bring hope that more consumers […]

When coding style survives compilation: De-anonymizing programmers from executable binaries

Freedom to Tinker - Tue, 2015/12/29 - 10:23
In a recent paper, we showed that coding style is present in source code and can be used to de-anonymize programmers. But what if only compiled binaries are available, rather than source code? Today we are releasing a new paper showing that coding style can survive compilation. Consequently, we can utilize these stylistic fingerprints via […]

The Battle Over Uber: Mapping Out a Regulatory Compromise

Michael Geist Law RSS Feed - Tue, 2015/12/15 - 11:40

The very public fight over ride sharing services such as Uber was in the spotlight again last week as taxi drivers took to the streets in Toronto to protest against the ongoing availability of unregulated services. The result was a public relations nightmare: drivers comparing Uber to ISIS, engaging in dangerous activity with cars on the road, slowing the ability for an ambulance to arrive at its destination, and even injuring a police officer riding a bicycle.

My weekly technology law column (Toronto Star version, homepage version) notes that the hysterics are unlikely to generate much support from the public, but they do point to the need for local municipalities to address the festering policy issue. Uber and other ride sharing services are too popular among consumers to be banned. Nor should they be. The injection of new competition and innovation is good for the public, offering more consumer choice and new economic opportunities for drivers. Indeed, much of the demand for alternatives reflects frustration with poor service that can emerge in an artificially closed market.

While Uber may be here to stay, a completely unregulated market is a similarly unrealistic outcome. The absence of any rules – or rules that solely apply to licensed taxis – creates some risk for consumers and leaves the existing licensed industry facing an unfair playing field.

So how to find a regulatory compromise?

The obvious starting point is to extend regulations that meet key public policy objectives to all service providers. Those would presumably include safety-related rules such as mandated insurance, road-appropriate vehicles with inspections, and GPS capability. In other words, regulation that better ensures the safety of drivers and their customers should apply to all.

More challenging are rules that arguably create an uneven playing field but can serve the public interest. For example, pricing is a particularly thorny issue since ride sharing services offer unregulated prices that can be cheaper than the licensed regulated rates but may also exceed those rates during “surge” pricing periods. Deregulated pricing might allow for better pricing, but could also result in unaffordable transportation options for consumers when there is high demand.

One option might be to allow licensed taxis to offer consumers the choice of fixed fees to match ride sharing service prices. That would enable licensed taxis to compete more effectively with ride sharing services, but allow consumers to choose a regulated metered fare if they prefer.

Yet even with a level regulatory playing field, there is a strong sense that licensed taxi industry will still be left unsatisfied since their frustration is about more than just a chance to compete. Rather, it would be appear that the anger stems from the realization that they must compete at all.

As the Competition Bureau noted in its recent study of the issue, the taxi industry has traditionally been a tightly controlled business. By creating artificial scarcity of competitors through limited availability of licences (or medallions), the industry garnered enormous wealth with licences fetching hundreds of thousands of dollars.

The entry of new competitors – whether licensed or unlicensed – dramatically diminishes the value of those licences since they are easier to obtain and the earnings potential for drivers faces downward pressure due to increased competition. The industry may pine for a return to the “good old days” and the restoration of value in their medallions, but like many industries facing new technology-inspired competition and innovation, there is no turning back.

Instead, it must ultimately change tactics, dropping the confrontational approach that has backfired by primarily generating public support for Uber. The future of the industry does not lie in keeping drivers out of the market, but rather from trying to beat Uber at its own game.

The post The Battle Over Uber: Mapping Out a Regulatory Compromise appeared first on Michael Geist.

Syndicate content