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Canadian Government Rejects Access Copyright’s Demand for Statutory Damages

Michael Geist Law RSS Feed - Tue, 2018/10/30 - 09:10

Earlier this year, I wrote about lobbying pressure to “harmonize” statutory damages for copyright collectives. Access Copyright, which supported the measure, argued that the massive escalation in potential damage awards were needed for three reasons: deterrence, promotion of settlement negotiations, and efficient use of court resources. Yet as I argued in this post, none of the arguments rang true.

After months of internal wrangling, the government unveiled its proposed reforms to the Copyright Board yesterday as part of Bill C-86, its Budget Implementation Act. The bill contains many changes requested by copyright stakeholders. With respect to the statutory damages provisions, however, it has rightly left the statutory damages distinction between certain collectives in place, meaning that Access Copyright will not be able to rely on statutory damages for non-payment of tariffs, relying instead on actual damages (if any).

The issue will still be hotly debated as part of the copyright review, but the government was right to reject the collective’s demand, effectively acknowledging that the copyright review is the appropriate place for discussion of statutory damages, not within a package of administrative and governance reforms to the board. In fact, the government similarly left the limit of $100 in royalties for the first $1.25 million in advertising revenue for radio stations in place, despite ongoing lobbying from the music industry for it to be eliminated.

The proposed changes to the Copyright Board are extensive and will require considerable study. In the meantime, it is worth noting that they include a much-overdue policy provision establishing objectives for the royalty rates set by the board. Those objectives include a requirement to consider the public interest, which critics have argued has often been missing from board analysis. The government’s identification of the public interest is instructive as it should also be a guiding principle for the copyright review and subsequent proposed reforms.

The post Canadian Government Rejects Access Copyright’s Demand for Statutory Damages appeared first on Michael Geist.

Canadian Government Banning Settlement Demands in Copyright Notice-and-Notice System

Michael Geist Law RSS Feed - Tue, 2018/10/30 - 07:46

The Canadian government has unveiled its long-awaited plan to fix abuses with copyright’s notice-and-notice system as part of Bill C-86, its Budget Implementation Act. Last spring, Innovation, Science and Economic Development Minister Navdeep Bains released an IP strategy that promised safeguards against intellectual property abuse, particularly use of copyright notices to send settlement demands to Internet users. The Canadian notice-and-notice system was formalized in 2012 to allow rights holders to forward allegations of online copyright infringement to internet users through their internet service provider. The system was viewed as a win-win approach since it promised to deter infringement through education rather than legal threats. Yet within hours of taking effect, anti-piracy companies began sending notices that included settlement demands backed by threats of litigation.

The government advised the public that there was no requirement to settle, but the absence of regulations opened the door to widespread misuse. Bill C-86 fixes the longstanding abuse of the system by prohibiting inclusion of settlement demands, adding the following to the Copyright Act:

(3) A notice of claimed infringement shall not contain:
(a) an offer to settle the claimed infringement;
(b) a request or demand, made in relation to the claimed infringement, for payment or for personal information;
(c) a reference, including by way of hyperlink, to such an offer, request or demand; and
(d) any other information that may be prescribed by regulation

The enforcement mechanism is simple: Internet providers will not be required to forward notifications that include any of the prohibited content. Any notices that include settlement offers, requests for payments or links to requests for payment fall outside the boundaries of legal notices and do not need to be forwarded as ISPs will not face any penalties for failing to forward such notices. While the new system will require careful monitoring, Canadian ISPs should comply with the new requirements and decline to forward non-compliant notices.

The notice-and-notice system was a well-intentioned system that failed to meet its original goal due to widespread abuse. It has taken several years, but the government has at long last taken steps to stop the abuse by establishing requirements that effectively ban the inclusion of settlement demands within the notice-and-notice system.

The post Canadian Government Banning Settlement Demands in Copyright Notice-and-Notice System appeared first on Michael Geist.

Making Sense of the Canadian Digital Tax Debate, Part 4: New Taxes or Fees on Digital Devices

Michael Geist Law RSS Feed - Mon, 2018/10/29 - 10:05

The prospect of new fees or taxes on Internet services is not the only digital tax proposal aimed at technology use (previous digital tax policy posts on digital sales tax, Netflix tax, ISP tax). For the past year, the music industry has engaged in a campaign to expand the existing tax on blank CDs to all digital devices, including smart phones. The groups argue that while the government is sorting out the details of its new digital device tax, it should provide a $40 million annual handout to the industry to compensate for consumer copying. It has proposed a four year commitment at a public cost of $160 million.

The demand is striking for several reasons. First, private copying of music has gradually diminished as Canadians gravitate to subscription services such as Spotify or ad-based streaming services that remove the need for private copying. Indeed, a government memo on the issue notes that “a functional, fully-licensed music streaming marketplace reduces the practice of unlicensed copying by consumers.” Second, the government also notes in the preparatory materials that private copying revenues are declining in many countries including Japan, Poland, and Portugal, which recognize the diminishing relevance of music copying in a subscription-based world.

The issue arose before committee earlier this year with industry lead lobbyist Graham Henderson struggling to answer questions of consumer fairness and a digital device tax:

Baylis: I’m going to talk, then, about private copying. I think, Ms. McAllister and Mr. Henderson, you brought that up. When we used cassettes, discs, and blank CDs, there was a levy put on them. That doesn’t exist, I believe you said, due to a court case. It doesn’t exist, let’s say, when iPod came out, or my phone that has music. Do I understand and maybe you could elaborate that you’d like to see it applied to these mediums, and what amounts? Do you have any amounts that you’re thinking of? How would you see that being distributed among the artists? I’ll ask both of you.

Henderson: What’s being asked by the community, and I think we’ve all aligned on this, is not to 
impose a levy on consumers but to seek a fund, a temporary four-year fund. The number that has come up is about $40 million per year. That is, therefore, not a levy. It becomes something that comes out of Treasury, and it’s a decision that the Government of Canada will have to make as to whether it feels it’s important enough to remunerate artists and others for private copying, which, by the way, is what happens elsewhere in the world, often through levies. But that’s not our proposal.

After Henderson called it temporary and another witness reiterated that the fund would be a short term measure as the government developed new legislation to apply the tax to all devices, MP Dane Lloyd questioned the fairness of a broad based device tax:

Lloyd: If it’s just a blanket levy on a device, wouldn’t you admit that there are people who could buy these devices who won’t be infringing on any copyright?

Henderson: I think the important thing is if you were to go the fund route, then we’re not worried
about impacting consumers.

Lloyd: That’s the short-term route.

Henderson: Yes, but it could be the long term. The point would be that the government is recognizing the importance of performers and others getting paid for this type of copying.

In other words, despite having said it was a temporary measure minutes earlier, Henderson switched gears to argue it could be long-term. In fact, as Lloyd continued, Henderson acknowledged that he opposes a levy on devices:

Lloyd: So in my last 30 seconds, you would say there’s no better way that you can think of to implement a levy than to put a levy on devices?

Henderson: Well, I personally think it should be a fund.

The inconsistent messaging is unsurprising given how hard it is to justify a new tax on devices or a government handout to support largely non-existent copying. The brazen demand for a tax on all digital devices – or a $40 million annual handout – at a time when the industry has shifted away from private copying toward subscription based services is little more than a digital tax cash grab that should be rejected by parties from across the political spectrum.

The post Making Sense of the Canadian Digital Tax Debate, Part 4: New Taxes or Fees on Digital Devices appeared first on Michael Geist.

Making Sense of the Canadian Digital Tax Debate, Part 3: New Taxes or Fees on Internet Access

Michael Geist Law RSS Feed - Fri, 2018/10/26 - 10:24

A potential Netflix tax may garner the lion share of media attention, but the more harmful tax proposal comes from those advocating for a tax on Internet service providers that would have a real impact on all Internet use (earlier posts in the series include digital sales tax and Netflix tax). As far back as 1998, the CRTC conducted hearings on “new media” in which groups argued that the dial-up Internet was little different than conventional broadcasting and should be regulated and taxed as such. In other words, groups have been arguing for new Internet taxes since before Google, Facebook, or Netflix.

For example, Peter Grant, who now sits on the broadcast and telecom review panel told the CRTC twenty years ago that if broadcast quality video ever reached a certain level of market penetration on the Internet, the Commission should “require certain obligations about some funding as a proportion of the revenue from this particular activity to go into a fund or whatever.” Grant continued by arguing that websites were the equivalent of programming undertakings and Internet providers were broadcast distribution undertakings (ie. the Internet was the equivalent of cable distribution).

An Internet tax is largely premised on the argument that ISPs and Internet companies owe their revenues to the cultural content accessed by subscribers and they should therefore be required to contribute to the system much like broadcasters and broadcast distributors. In fact, the CRTC said exactly that in its report on broadcasting earlier this year:

there are numerous services in Canada that connect Canadians to content, whether through the Internet or broadcast networks, such as cable or satellite. Demand for these services is almost wholly driven by demand for audio and video content, yet the Canadian market for this content is only supported by BDUs, television programming and radio services.

The reality, however, is that Internet use is about far more than streaming videos or listening to music. Those are obviously popular activities, but numerous studies (CIRAStatistics Canada) point to the fact that they are not nearly as popular as communicating through messaging and social networks, electronic commerce, Internet banking, or searching for news, weather, and other information. From the integral role of the Internet in our education system to the reliance on the Internet for health information (and increasingly tele-medicine) to the massive use of the Internet for business-to-business communications, Internet use is about far more than cultural consumption. Yet proponents of an Internet tax envisions the Internet as little more than cable television and wants to implement a taxation system akin to that used for cable and satellite providers.

In fact, some groups have tweaked the full Internet tax by calling for a tax on Internet data use. The Screen Composers Guild of Canada (SCGC) is seeking a mandated copyright tax on all broadband data use in Canada. The group proposes that the first 15 GB of use should be tax free, suggesting that the free use will cover emails and other basic uses. For everything above that amount, the copyright tax on data would apply:

We envision a new “internet-light ISP service” that could form the exchange of revenue that we refer to as the SCGC Copyright Model (SCGC-CM). It would allow home internet users fifteen gigabytes of unlevied data per-month, enabling ample room for email, commerce and downloading, but beyond that, a copyright levy could be collected and remitted to a collective for distribution to copyright holders.

At committee, the group expanded on the argument:

An ISP subscription levy that would provide a minimum or provide a basic 15 gigabytes of data per Canadian household a month that would be unlevied. Lots of room for households to be able to do Internet transactions, business, share photos, download a few things, emails, no problem. But my own personal experience is that in my family, when you’re downloading and consuming over 15 gigabytes of data a month, you’re likely streaming Spotify. You’re likely streaming YouTube. You’re likely streaming Netflix. So we think because the FANG companies will not give us access to the numbers that they have, we have to apply a broad-based levy. They’re forcing us to.

There is no way around the fact that an Internet tax would make access less affordable, expanding the digital divide by placing Internet connectivity beyond the financial reach of more low-income Canadians. The tax would be particularly damaging in indigenous communities. The government’s emphasis on affordability and innovation is a critical consideration. Navdeep Bains, the Innovation, Science and Economic Development Minister, has acknowledged the broadband affordability problem:

Low-income Canadians spend a higher share of their household income on cellphone and Internet bills than high-income Canadians. So it’s not surprising that only 6 out of 10 low-income households in Canada have Internet service.  By contrast, virtually all households that earn $125,000 annually have it.  

This digital divide is unacceptable. It represents a real barrier to continued prosperity for Canadians. Every child who’s unable to do school assignments or download music online is one less consumer of your products and services. Each one of these children is potentially one less software developer for your industry – and one less job creator for our country. 
We need every Canadian to be innovation ready- ready to spot opportunities, imagine possibilities, discover new ideas, start new businesses and create new jobs. All Canadians need access to high-speed Internet, regardless of their income level or postal code. Until we bridge this digital divide, Canadians will not reach their full potential.

Given the harmful effects, the government rejected an Internet tax proposal last year on affordability grounds:

The Committee’s recommendation to generate revenue by expanding broadcast distribution levies so that they apply to broadband distribution would conflict with the principle of affordable access. The open Internet has been a powerful enabler of innovation, driving economic growth, entrepreneurship, and social change in Canada and around the world. The future prosperity of Canadians depends on access to an open Internet where Canadians have the power to freely innovative, communicate, and access the content of their choice in accordance with Canadian laws. Therefore, the Government does not intend to expand the current levy on broadcast distribution undertakings.

Notwithstanding the rejection, the Internet tax issue resurfaces again and again. Given 20 years of lobbying for Internet taxes, it seems unlikely the proponents will stop now.

The post Making Sense of the Canadian Digital Tax Debate, Part 3: New Taxes or Fees on Internet Access appeared first on Michael Geist.

Making Sense of the Canadian Digital Tax Debate, Part 2: Mandated Canadian Content Contributions aka a “Netflix Tax”

Michael Geist Law RSS Feed - Thu, 2018/10/25 - 10:05

The series on the Canadian digital tax debate continues with an examination of calls for mandated contributions by Internet video services to support the creation of Canadian content, frequently referred to as a “Netflix tax” (earlier post on digital sales tax). The Netflix tax is perhaps the most politicized digital tax issue, with both the Conservatives and Liberals opposing such a tax during the last federal election. Despite the opposition, the issue continues to resurface as it is regularly raised by cultural groups and was part of the CRTC’s report on the future of broadcast regulation released in the spring.

Proponents of a mandated Netflix contribution typically rely on three arguments: (i) failure to impose fees and regulation on foreign providers represents an “existential threat” to Canadian creative industries since they argue it will lead to reduced spending on production in Canada; (ii) there is a need to “level playing field” for Canadian services competing against foreign providers; and (iii) Europe is moving toward Netflix regulation and Canada should too.

The “Existential Threat”

Proponents of a Netflix tax to support Canadian content production argue that without such a system, Canadian film and television production will be placed at risk. Yet the data demonstrates that there is no Canadian content emergency. Notwithstanding the doomsayers who fear that the emergence of digital services such as Netflix will result in less money for production in Canada, the most recent annual report by the Canadian Media Producers Association on the state of screen-based media production in Canada confirms that financing of Canadian television production continues to hit new heights. The data is consistent with internal government documents, which appear to confirm that Netflix outspends Bell, Canada’s largest broadcaster, on English scripted programming.

Last year, the total value of the sector exceeded $8 billion, over than a billion more than has been recorded over the past decade. In fact, last year everything increased: Canadian television, Canadian feature film, foreign location and service production, and broadcaster in-house production. Canadian television, which some claim is at risk due to services such as Netflix, posted the largest expenditure ever (or least over the past two decades looking back at older annual reports).

In fact, the increase in foreign investment in production in Canada is staggering. When Netflix began investing in original content in 2013, the total foreign investment (including foreign location and service production, Canadian theatrical, and Canadian television) was $2.2 billion. That number has doubled in the last five years, now standing at nearly $4.7 billion. While much of that stems from foreign location and service production that supports thousands of jobs, foreign investment in Canadian television production has also almost doubled in the last five years. The data makes it clear that Netflix isn’t a threat, it’s an opportunity with new money entering the sector.

“Level Playing Field”

According to critics, services such as Netflix have an unfair advantage because they face no mandatory contribution requirements, while broadcasters and broadcast distributors (BDUs) face regulations that require contributions (30 percent of revenues for broadcasters, 5 percent of revenues for BDUs). The critics argue that the Netflix investment in Canada is below either percentage and that the absence of required contributions creates an uneven playing field.

The most apt-comparison to Netflix is not to a broadcaster or BDU, however, but rather to competitive online video services. These services, whether Canadian or foreign, are all subject to the same requirements, namely no mandated Cancon contributions. For example, Bell’s CraveTV, which frequently promotes U.S. programming such as Seinfeld and the Sopranos, does not face any Cancon contribution or spending requirements. In fact, the CRTC even created another “hybrid” model in 2015 that allows for distribution through BDU systems and the Internet without any Cancon requirements.

While some prefer the comparison to broadcasters or BDUs (arguing that the service feels similar to Canadian subscribers), the reality is that both Canadian broadcasters and BDUs are subject to mandated contributions as part of a regulatory quid pro quo in which they receive significant benefits for being part of the regulated system. Note that U.S. broadcasters – which provide a better analogy to U.S.-based Netflix as a broadcaster – face no such requirements, having never been subject to Cancon requirements despite their near-universal availability in Canada.

Yet even the supposed unfairness of Netflix contributions compared with Canadian broadcasters and BDUs is unconvincing since it ignores all the advantages those companies receive as part of the regulated system. The advantages – none of which are enjoyed by Netflix – include:

  • Simultaneous substitution, which allows Canadian broadcasters to replace foreign signals with their own. The industry says this policy alone generates hundreds of millions of dollars in revenues for Canadian broadcasters.
  • Must-Carry regulations, which require BDUs to include many Canadian channels on basic cable and satellite packages. These rules provide guaranteed access to millions of subscribers, thereby increasing the value of the signals and the fees that can be charged for their distribution.
  • Bundling benefits, that allow BDUs to bundle less popular Canadian channels with more popular U.S. signals, thereby guaranteeing more revenues to the Canadian broadcasters.
  • Copyright retransmission rules, which create an exemption in the Copyright Act to allow BDUs to retransmit signals without infringing copyright. This retransmission occurred for many years without any compensation.
  • Market protection, which has shielded Canadian broadcasters from foreign competition such as HBO or ESPN for decades.
  • Eligibility for Canadian funding programs, for which companies like Netflix may be ineligible.
  • Foreign investment restrictions, which limits the percentage that foreign companies may own of Canadian broadcasters or BDUs and thereby reduces competition.
  • Unlimited distribution without caps or usage charges, unlike Internet-based services, whose subscribers often face high data costs for accessing those services.

A so-called level playing field should account for all the advantages that Canadian law provides to broadcasters and BDUs. Companies such as Netflix do not get any of these advantages. Instead, they simply compete in the marketplace against well-established competitors that have the regulatory deck stacked in their favour. Creating a mandated system based on false notions of leveling the playing field would require significant additional reforms to ensure that all entrants compete with equivalent regulations.

“The European Model

The third argument for Netflix regulation is that Europe has introduced regulatory requirements on services such as Netflix and Canada should follow suit. While proponents argue that Europe envisions requirements that 30 per cent of the Netflix catalog constitute European programming, those rules are an apples to oranges comparison with Canada. First, the European rules, which do not take effect until 2020, rejected Europe-wide mandated payments, opting instead for optional system. In other words, there is no required European Union Netflix tax. The European Commission states:

The new rules clarify the possibility for Member States to impose financial contributions (direct investments or levies payable to a fund) upon media service providers, including those established in a different Member State but that are targeting their national audiences. This would be a voluntary measure for Member States, not an obligation at EU level.

Second, the content requirements are continent-wide, not limited to a single country. The European requirement of 30 per cent incorporates all 28 European Union member states. Once spread across all member states, the requirement is not particularly onerous since it effectively envisions a few per cent per country of the overall catalog. The percentage of Canadian content on the Canadian Netflix is already comparable to the per-European country amount. In fact, the Commission emphasizes:

We also need to pay attention to new market entrants and small players. The new rules also include a mandatory exemption for companies with a low turnover and low audiences. It could also be inappropriate to impose such requirements in cases where – given the nature or theme of the on-demand audiovisual media services– they would be impracticable or unjustified.

Even as it invests hundreds of millions of dollars in Canada – Netflix maintains that Canada is among one of the top three countries worldwide for commissioning original productions without any regulatory requirements or legislative mandates – the service has become the top target for the Canadian cultural sector. Yet the calls to regulate due to so-called existential threats, level playing fields, or European models ring hollow against an evidence that points to remarkable Canadian cultural success story without new taxes or regulation.

The post Making Sense of the Canadian Digital Tax Debate, Part 2: Mandated Canadian Content Contributions aka a “Netflix Tax” appeared first on Michael Geist.

Making Sense of the Canadian Digital Tax Debate, Part 1: Digital Sales Taxes

Michael Geist Law RSS Feed - Wed, 2018/10/24 - 10:38

Digital tax has emerged as one of the most contentious Canadian digital issues with groups advocating for a wide range of new enforcement or policy measures including digital sales tax, taxes on online video services, income taxes on digital companies, tax measures in support of media organizations, Internet access taxes, and digital device taxes. Unfortunately, the debate is often muddled by the use of the same terms, creating considerable confusion. For example, references to “Netflix taxes” have been used with regard to digital sales tax on Netflix, mandated Canadian content contributions for Internet services such as Netflix, and income taxes payable by Netflix.

This blog series will attempt to unpack digital tax debate. The series begins with digital sales taxes, which was back in the news earlier this month when Finance Minister Bill Morneau confirmed that Canada is awaiting an international agreement on digital sales taxes before implementing any domestic reforms. Morneau indicated the government would support a quick resolution of the issue – the current deadline is 2020 – but that a provincial digital sales tax in Quebec will not spark a matching federal tax until the global issues are resolved.

Creating a global sales tax system that requires foreign providers to register and remit sales taxes is fraught with complexity. Registration requirements alone create new costs that some businesses may be unwilling to bear. In order to avoid burdening small businesses, countries may set a revenue threshold before registration and collection requirements kick in. In fact, some businesses may simply decide to avoid or block the taxing market altogether, leading to services that either decline to sell locally or which increase their prices to account for the regulatory cost burden.

The sales tax issue has been framed by some as a “tax holiday” for Internet companies, yet the reality is that when applicable, sales taxes are paid by consumers, not the companies. Companies resident in Canada are merely required to collect and remit the applicable sales taxes. The tax does not come out of earnings or represent a gain for the companies, who act as intermediaries by collecting the sales tax and remitting it to the government. Sales tax is applied to digital services by companies with a digital presence in Canada. That means there is no sales tax when subscribing to Netflix directly from the company, but there is for those who subscribe through Apple iTunes. The difference is that Apple has a physical presence in Canada, whereas Netflix does not.

Quebec plans to launch its digital sales tax in January 2019, but the provincial plan raises significant enforcement challenges and compliance costs that will exceed actual payments for some businesses. Those challenges were highlighted at a 2017 hearing at the Standing Committee on Canadian Heritage, where officials stated:

E-commerce sales by foreign-based companies can present a challenge for proper sales tax collection. Foreign-based Internet vendors’ businesses with no physical presence in Canada are generally not required to collect GST/HST on their sales. Instead, in the case of physical goods that are purchased online and shipped to Canada by post or courier, the applicable customs duties and GST/HST would generally be collected by the Canada Border Services Agency at the time the goods are imported.

In cases other than the importation of physical goods, the GST/HST legislation imposes a general requirement to self-assess the tax. For businesses that would be entitled to recover any tax payable by claiming input tax credits, there is generally no requirement to self-assess tax on such imports. The challenges related to the proper collection of sales tax on digital supplies by foreign-based vendors are not unique to Canada. It’s a difficult issue for all jurisdictions with a sales tax.

Indeed, the issue is not new. The prospect of extending GST/HST emerged as an issue in 2014 when the Conservative government raised the idea in its budget and launched a public consultation on the matter. For all the talk of an unfair playing field or lost revenues, the extension of sales taxes to foreign digital providers appears to be a question of when, not if. In the meantime, Canadians anxious to pay the sales tax on digital services such as Netflix need not wait for governments to act since the law allows for self-reporting of the applicable sales tax.

The post Making Sense of the Canadian Digital Tax Debate, Part 1: Digital Sales Taxes appeared first on Michael Geist.

Want to Keep Canadian AI Thriving?: Create a Copyright Exception for Informational Analysis

Michael Geist Law RSS Feed - Thu, 2018/10/18 - 09:10

Prime Minister Justin Trudeau met earlier this week with Jean-Francois Gagné, the CEO of Element AI, the Montreal-based applied artificial intelligence lab. Trudeau tweeted that the two men “talked about what Canadians are doing in AI in Montreal & across the country, and how we can keep the industry thriving.”


Justin Trudeau tweet, October 15, 2018, https://twitter.com/JustinTrudeau/status/1052026305737347077

Well, since the Prime Minister asked, Element AI recently appeared before the Standing Committee on Industry, Science and Technology as part of the copyright review with a simple ask: create a new copyright exception for information analysis. Element AI was joined by several other technology groups, including ITAC and the Business Software Alliance, who all raised the same issue.

I highlighted the link between copyright and AI in a column last year, calling for a text and data mining exception. The column noted:

Making machines smart – whether engaging in automated translation, big data analytics, or new search capabilities – is dependent upon the data being fed into the system. Machines learn by scanning, reading, listening or viewing human created works. The better the inputs, the better the output and the reduced likelihood that results may be biased or inaccurate.

Copyright law crops up because restrictive rules may limit the data sets that can used for machine learning purposes, resulting in fewer pictures to scan, videos to watch or text to analyze. Given the absence of a clear rule to permit machine learning in Canadian copyright law (often called a text and data mining exception), our legal framework trails behind other countries that have reduced risks associated with using data sets in AI activities.

Element AI describes information analysis as “encompassing the use of processing techniques to obtain and process text, images, sound, video, and other forms of data in order to generate new facts, discover patterns, and analyse relationships.” It notes that current uncertainties in the Canadian Copyright Act limit the ability for Canadian companies to “access a basic, necessary resource to train their algorithms.” The solution? A fair dealing exception for informational analysis:

Recognizing a limited informational analysis fair dealing exception will echo and support research to grow Canada’s IP culture. This exemption can help all players of Canada’s AI ecosystem further test, train and research new innovative techniques, thereby connecting with the clear policy objectives of fostering a culture in Canada of innovation and intellectual property.

The Element AI position is echoed in similar submissions to the committee from the BSA (which includes members such as Apple, Adobe, and Oracle) and Microsoft, both strong advocates for copyright. The BSA warns:

As currently enacted, Canada’s Copyright Act creates uncertainty about the legal implications of key analytical techniques, such as text and data mining and machine learning, that are foundational to the development of AI. Accordingly, to help realize Canada’s strategy for becoming a global leader in AI and to facilitate the many societal benefits of AI, we urge the Committee to recommend the adoption of an express exception to ensure that copying a lawfully accessed work for the purpose of “information analysis” is not infringing.

Microsoft’s brief to the committee
calls for a machine learning exception, noting that many other countries have developed similar exceptions:

Outside of Canada, countries, including Japan, the United States and China, have extended and are expanding legal protections for broad machine learning techniques including text and data mining. Japan recently implemented changes to its copyright laws that significantly expanded and clarified an already forward-looking machine learning exception. The UK permits text and data mining for certain purposes, and is currently exploring broadening its exception as it increasingly recognizes the benefits of machine learning for all users. China, Singapore and Thailand are focused on similar digital copyright reform and have similarly proposed broad and unrestricted machine learning exceptions. Unsurprisingly, these countries are also at the forefront of research involving data analytics and artificial intelligence, including machine learning.

As I argued last year, there are two ways to overcome the AI barrier:

First, Canada could emulate the U.S. fair use model by making the current list of fair dealing purposes illustrative rather than exhaustive. The U.S. exception is open to any purpose, as striking a fair balance depends upon the use of the work, not the purpose of the copying. Since machine learning does not harm the primary purposes of the original work, most text and data mining will qualify as fair use.

Second, other countries have tried to address the issue by creating a specific exception for text and data mining or computer informational analysis. For example, Britain’s exception allows copies of works to be made without permission of the copyright owner for the purposes of automated analytical techniques to analyze text and data for patterns, trends, and other information. The law does not allow contracts to restrict data mining activities, but the exception is limited to non-commercial research.

Canada’s significant investment in AI needs a legal framework that ensure Canadian businesses and researchers are not placed at a global disadvantage. Whether by way of fair use provision or a more targeted informational analysis fair dealing exception, the government’s hopes for Canadian AI leadership is linked to AI-focused copyright reforms.

The post Want to Keep Canadian AI Thriving?: Create a Copyright Exception for Informational Analysis appeared first on Michael Geist.

Does Canadian Privacy Law Apply to Google Search?

Michael Geist Law RSS Feed - Tue, 2018/10/16 - 09:29

Last week, the Privacy Commissioner of Canada filed a reference with the federal court in a case that was billed as settling the “right to be forgotten” issue. Yet a careful read of the application reveals that the case isn’t about the right to be forgotten. Rather, it involves a far more basic issue: is Google’s search engine service subject to PIPEDA, Canada’s private sector privacy law? The case arises due to a right-to-be-forgotten complaint (a complainant wants search results referencing news articles they say are outdated, inaccurate, and disclose sensitive information removed from the Google search index), but the court is not being asked whether the current law includes a right-to-be-forgotten. Instead, the very application of Canadian privacy law to Google search is at stake.

The two questions in the reference are as follows:

1. Does Google LLC (“Google”), in the operation of its search engine service, collect, use or disclose personal information in the course of commercial activities within the meaning of paragraph 4(1)(a) of PIPEDA when it indexes web pages and presents search results in response to searches of an individual’s name?

2. Is the operation of Google’s search engine service excluded from Part 1 of PIPEDA by virtue of paragraph 4(2)(c) of PIPEDA because it involves the collection, use or disclosure of personal information for journalistic, artistic or literary purposes and for no other purpose?

Google maintains that the right to be forgotten would violate the Canadian Charter of Rights and Freedoms, but given the limited scope of the application the court does not need to address the issue. The Privacy Commissioner argues that it first needs certainty on the application of the law to Google search. If it applies, the Commissioner will proceed with a complaint investigation. The application is a bit surprising given that the record before the court is very thin. The Commissioner could presumably have conducted the investigation, reached a finding, and then had the issue raised before the courts with a stronger record and all the issues on the table.

While the issue in the reference may surprise some given that Google’s economic success, federal privacy law is limited to commercial activities and contains several notable exceptions. As I argued when the Privacy Commissioner first raised the right to be forgotten issue in a consultation earlier this year:

there is reason to doubt whether the Personal Information Protection and Electronic Documents Act (PIPEDA) applies to search results. Federal privacy law is limited to commercial activity, yet search results are typically provided at no cost to the user nor the sites being indexed. Indeed, all the activity behind search – indexing content, developing algorithms to identify relevant results, and the display of those results – fall outside a conventional commercial transaction. There may be paid results or other advertising displayed with some search results, but those are arguably secondary to the indexing, ranking, and display of the relevant links.

Moreover, David Fraser unpacked the arguments around the exception for journalistic or literary purposes in this 2016 post, noting:

Search engines are fundamentally journalistic or literary operations, particularly when providing a user with access to news media content. At the same time, they are also providing news media producers with access to readers.

The analysis suggests that the Privacy Commissioner’s reference is no slam dunk. Indeed, there are strong arguments that PIPEDA does not apply to the search indexing and display. The right to be forgotten is problematic for several reasons, but the issue – along with the limited scope of PIPEDA – would be better addressed as part of a long overdue review and update to Canada’s privacy laws.


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Fair Duty by Meera Nair - Sun, 2018/10/14 - 23:10

As of this writing, in the ongoing review of the Copyright Act, 87 briefs have been posted by the Standing Committee on Industry, Science and Technology. Discussion spans a variety of topics; on the volatile issue of the use of fair dealing in post-secondary institutions, there are many submissions from academic institutions, as well as Canadian writers, publishers, and representatives thereof.

Perhaps lost in that crush are students’ voices. Writing on behalf of students across the country, are two organizations: the Canadian Alliance of Student Associations (CASA) and the Undergraduates of Canadian Research-Intensive Universities. Each submission calls on the Government to leave fair dealing unchanged from its present incarnation and practice. The students are clear in their understanding of the exception—that fair dealing is not a veil for free dealing. They also appreciate that fair dealing has the capacity to reduce some of the costs of post-secondary education.

CASA’s submission reminds all that collective licensing costs attributed to post-secondary institutions will ultimately be borne by students:

Post-secondary students are directly impacted by decisions of the Copyright Board … as it is responsible for setting tariffs on copyrighted educational material. While these tariffs are billed to post-secondary institutions, they are sometimes directly passed on to students through ancillary fees … Other times, the tariff fee is paid through [the institution’s] operating budget, which constrains the institution’s ability to provide other critical resources, including updated infrastructure and quality teaching staff, to post-secondary students.

This aspect has not received as much attention as it deserves. That said, the issue of cost was raised to the Standing Committee, but only to quantify the collective license fee as equivalent to “a case of beer per student.” While this may have been an attempt to reassure the Committee that students can bear this cost, the unspoken assumption was that all students rely on excerpts (thus necessitating a fee).

In terms of how students cope with existing fees, Aran Armutlu, chairperson of the BC Federation of Students, recently had this to say:

2nd: Assume every student is going through financial hardship. Every year that passes we are at new record highs with the costs associated w/ attending post-secondary. If there is other quality options that exist that help alleviate those costs, why wouldn’t you use it? 5/5 #OER

— Aran Armutlu (@AranTheArmenian) October 11, 2018

“Assume every student is going through financial hardship.” As assumptions go, this one is more plausible.

A day later, the Scholarly Publishing and Academic Resources Coalition (SPARC) issued promising news with respect to OER:

We did it! #OER has saved students, schools, and parents $1 billion. #OpenEd18 https://t.co/uxY9wu6yu9

— SPARC (@SPARC_NA) October 12, 2018

(Even though OER was still in its infancy in 2013, SPARC had issued a challenge to the educational community: to save $1 billion by 2018.)

Consider the time frame: 2013-2018. Astute Canadians will notice the overlap with the period of time from the last amendments to the Copyright Act, to the start of the present review. To be more explicit—this is part of the backdrop to the figures proffered to the Committee that illustrated declines in copyright-related income by educational publishers.

As SPARC explains, the goal was to document the savings that accrued when a “traditional textbook” (with traditional representing a proprietary, for-cost textbook) was replaced with an OER book. The regions/levels of savings are:

U.S. & Canada Higher Ed: $921,783,169
U.S. & Canada K-12: $45,051,066
International: $38,500,000
Total: $1,005,334,235

Without further details of the Higher Ed savings, we do not know how much of the nearly $922 million dollars is specific to Canadian students. Yet, a reasonable assumption would be that millions of dollars are being saved. This is relevant to any discussion concerning declines in textbook income, or declines in licensing income from excerpts of textbooks.

Committee members could also reasonably assume that post-secondary institutions are slowly, but steadily, addressing the question posed by Mr. Armutlu: “If there are other quality options that exist that help alleviate those costs, why wouldn’t you use it?” The trend to OER is likely to increase.

Granted, at this time, OER substitution is not prevalent at all levels of study across all disciplines. But, SPARC’s data should provoke at least a modicum of curiosity against the claims that fair dealing alone is responsible for the drop in income of copyright owners, and, whether reliance on excerpts applies to the entirety of the Canadian post-secondary student population.

The Full “Culture Exception” That Isn’t: Why Canada Caved on Independent Cultural Policy in the USMCA

Michael Geist Law RSS Feed - Thu, 2018/10/11 - 10:07

In the final weeks of the USMCA negotiations, Canada signalled that a full cultural exception was a non-negotiable issue with Prime Minister Justin Trudeau wading in to emphasize the importance of the issue. While the resulting deal has garnered applause from many culture lobby groups (music, magazines, publishers, ACTRA), the reality is that the government did not obtain a full cultural exception. In fact, after criticizing the Conservatives for accepting exceptions to the cultural exception in the TPP (and making it a key issue in the CPTPP once the U.S. exited the agreement), the Liberal government similarly included two exceptions and agreed to an extension in the term of copyright that will have a far more damaging impact on access to Canadian culture than any proposed USMCA provision.

The TPP featured two exceptions to a general cultural exception that excluded the sector from the ambit of provisions on cross-border trade in services:

Canada reserves the right to adopt or maintain any measure that affects cultural industries and that has the objective of supporting, directly or indirectly, the creation, development or accessibility of Canadian artistic expression or content, except:

a) discriminatory requirements on services suppliers or investors to make financial contributions for Canadian content development; and 

b) measures restricting the access to on-line foreign audiovisual content. 

The first – discriminatory requirements to support Cancon development – raised a legitimate concern about the possibility of mandated Cancon payments by foreign providers. While Canadian groups have actively lobbied to require foreign providers such as Netflix to make payments similar to those paid by Canadian broadcasters and broadcast distributors, they have been less supportive of Netflix benefiting from those Cancon funding mechanisms. Payment mandates without the same benefits would likely (and rightly) be viewed as discriminatory and the TPP would have blocked such an approach. The second exception – restricting access to online video services – would have had no practical policy cost to Canada given its support for net neutrality and the unlikely prospect of supporting blocking foreign services. However, then-Canadian Heritage Minister Melanie Joly insisted that the exceptions had to go, telling an industry audience that “it was a tough battle, but I’m really grateful that it’s a battle we were able to win.”

Despite having set the bar at a full cultural exception, the reality is that the USMCA also includes two exceptions to the exception, both of which use the treaty overrule regulatory decisions of the supposedly independent Canadian Radio-television and Telecommunications Commission. Annex 15-D requires Canada to (1) rescind the CRTC broadcast regulatory policy that stopped the simultaneous substitution policy for Super Bowl broadcasts (ie. the policy that recently allowed Canadians to watch the U.S. feed and U.S. commercials) and (2) enable U.S. home shopping broadcast services – namely QVC – to be authorized for distribution in Canada.

Both exceptions are the direct result of U.S. lobbying. President Donald Trump told a rally last week that the simultaneous substitution issue simply took a two minute phone call with NFL Commissioner Roger Goodell and the QVC decision stems from a 2016 CRTC ruling that denied it distribution authorization in Canada. The Liberal government has typically adopted a hands-off approach on administrative issues such as these ones – particularly when the issue is still before the courts as is the simultaneous substitution policy – but it effectively intervened by caving to U.S. pressure in agreeing to overrule its regulator.

Despite the industry applause, these exceptions are arguably a bigger surrender on the independence of Canadian cultural policy than the TPP envisioned. The TPP included two provisions that had little likelihood of being implemented and merely involved future policy flexibility (industry lawyer Peter Grant argued that they did not change anything at all). Yet the USMCA exceptions strike at the heart of Canada’s ability to make its own cultural policy decisions with the government caving on two issues of concern to U.S. lobby groups.

Why the change in attitude toward the USMCA’s cultural exceptions?

Simply put, Canadian cultural groups were concerned with possible restrictions on mandated Cancon contributions or Netflix blocking, but have few qualms about simultaneous substitution or permitting another shopping network to be distributed in Canada. The claims that a full exception is critical was always hyperbole as groups typically applaud exceptions they like and criticize those they don’t.

In fact, the treaty’s biggest impact on Canadian culture will be the copyright term extension, which will reduce access to Canadian heritage for decades. That means the works of hundreds of Canadian authors, composers, and creators will be locked down until at least 2040. Moreover, with studies indicating that the term extension could add hundreds of millions to education costs, 20 extra years of copyright protection will not come cheaply. The Canadian government treats copyright as both industrial and cultural policy, hence the shared responsibility between ISED and Canadian Heritage. However, culture can’t be said to be off the table when the government agrees to changes to Canadian copyright that will limit severely access to our culture.

Since many cultural groups support the extension, there is no criticism. But make no mistake: the USMCA represents a surrender of the independence of Canadian broadcasting and copyright policy with exceptions to cultural regulation that may be more significant than any found in previous Canadian free trade agreements.

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How Canada Surrendered Policy Flexibility for Data Localization Rules in the USMCA

Michael Geist Law RSS Feed - Wed, 2018/10/10 - 10:50

The digital policy implications of the USMCA have attracted increasing attention as Canadians consider the risks that the agreement could limit future policy flexibility. In particular, the agreement restricts the use of data localization, an increasingly popular legal method for addressing public interest concerns associated with the collection of online information by mandating that data be stored within the local jurisdiction. Restrictions on data localization are not entirely new to Canada, since similar provisions are found in the CPTPP (the successor to the Trans Pacific Partnership). That means that Canada has already agreed to limits on data localization with or without the USMCA. However, the USMCA’s data localization provision differs in a significant way, suggesting that the Canadian government has agreed to an even more restrictive approach than that found in the CPTPP.

The USMCA provision contained at Article 19.12 states:

No Party shall require a covered person to use or locate computing facilities in that Party’s territory as a condition for conducting business in that territory.

There are no further exceptions or limits to the data localization provision in the chapter, though Article 32.1(2) of the USMCA notes that paragraphs a, b, and c of Article XIV of the General Agreement on Trade in Services (GATS) is incorporated into the digital trade chapter. Those paragraphs create exceptions for measures (1) designed to protect public morals or maintain public order; (2) protect human, animal, or plant life or health; and (3) comply with laws and regulations including prevention of deceptive practices, protection of privacy, and safety. Canadian negotiators presumably interpret the GATS provision as providing an opening for privacy protection, thereby allowing BC and Nova Scotia to retain their provincial data localization laws.

By comparison, Article 14.13 of the CPTPP features the same general prohibition and the applicability of the GATS exception, but adds the following additional exception:

Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to achieve a legitimate public policy objective, provided that the measure:

(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and
(b) does not impose restrictions on the use or location of computing facilities greater than are required to achieve the objective.

In other words, Canada previously agreed to restrictions on data localization rules in the CPTPP but carved out an exception for any legitimate public policy objective (subject to not being applied in a discriminatory manner or beyond that necessary to achieve the objective). The USMCA removes that flexibility, creating a significant limitation on the ability for Canadian governments to safeguard the public interest. Indeed, once implemented, policy measures on data localization will be restricted beyond the limits imposed by the CPTPP and leave Canada vulnerable to a challenge should future governments seek to introduce data localization mandates.

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Why the USMCA Will Enhance Online Free Speech in Canada

Michael Geist Law RSS Feed - Fri, 2018/10/05 - 09:35

Internet free speech is not typically an issue associated with trade agreements, but a somewhat overlooked provision in the newly-minted U.S.-Mexico-Canada Agreement (USMCA) promises to safeguard freedom of expression by encouraging Internet companies to resist pressure to remove content. My Policy Options op-ed notes the USMCA’s Internet safe harbour rule – modelled on U.S. law – remedies a longstanding problem in Canada that left large Internet platforms reluctant to leave third party content such as product reviews, blog posts, and social media commentary online in the face of unsubstantiated complaints.

Once implemented, Internet companies will benefit from assurances they will not face liability for failing to take down third party content or for proactively taking action against content considered harmful or objectionable. While the safe harbour provision does not apply to intellectual property, when combined with the preservation in the deal of the USMCA protects Canada’s notice-and-notice system for copyright, whereby rights holders can file complaints over alleged infringements but there is no takedown procedure for the removal of content. Taken together, the Canadian legal framework will encourage free speech, largely looking to court orders for mandated takedowns of content or good faith efforts by platforms to address harmful content.

The absence of a Canadian safe harbour rule has meant the same companies that require court orders prior to the removal of content for claims originating in the U.S., frequently take down lawful content in Canada based on mere unproven allegations due to fears of legal liability. Further, the absence of safe harbour protections creates a disincentive for both new and established services to use Canada to store data or maintain a local presence.

The Internet safe harbour approach originates from the earliest days of the commercial Internet. In 1996, the United States enacted the Communications Decency Act, legislation designed to address two emerging concerns: the online availability of obscene materials and the liability of Internet services for hosting third party content. The U.S. Supreme Court struck down the obscenity provisions on constitutional grounds, but the safe harbour remained intact and quickly emerged as a cornerstone of U.S. Internet policy.

Indeed, the safe harbour provisions have been characterized as the single most important legal protection for free speech on the Internet. Over the past two decades, every major Internet service – from Google to Amazon to Yelp – has turned to the provision to ensure that courts determine what is lawful and permitted to remain online.

Despite the free speech benefits, the rules can be controversial, particularly since concerns regarding disinformation on social networks is an increasing concern, with policy makers and the public pressuring online providers to more proactively address online harms. The challenge is to balance the benefits of removing illegal or harmful content with the risks of active monitoring of content, upload filters, or other measures that may ultimately curtail free speech online.

The agreement permits implementation of the safe harbour provision in several ways,  stating that “a Party may comply with this Article through its laws, regulations, or application of existing legal doctrines as applied through judicial decisions.” While the U.S. approach involves statutory protections, Canada may initially rely on legal doctrines through judicial decisions.

That could involve refraining from implementing new rules that hold Internet companies liable for third party content on their systems and leaving it to the courts to reject claims that run counter to the safe harbour principle. In doing so, officials would maintain the need for responsible conduct by Internet companies without overbroad monitoring or unwarranted takedowns.

Canada has sought to jumpstart the innovation agenda by prioritizing measures that might attract global Internet giants and facilitate the development of home-grown success stories such as Hootsuite and Spotify. The USMCA safe harbour removes a significant legal barrier to that agenda by reducing liability risks for business and providing Canadians with long-overdue safeguards for Internet free speech.

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Setting the Standard?: How the USMCA Quietly Reshapes Global Digital Trade Agreements

Michael Geist Law RSS Feed - Thu, 2018/10/04 - 09:15

The United States-Mexico-Canada Agreement (USMCA) is more than just an updated version of the North American Free Trade Agreement. With the inclusion of a digital trade chapter, the deal sets a new standard for e-commerce that seems likely to proliferate in similar agreements around the world. My Washington Post op-ed notes that negotiators have touted the benefits of addressing modern forms of commerce, but the reality is that the USMCA digital trade chapter raises many concerns, locking in rules that will hamstring online policies for decades by restricting privacy safeguards and hampering efforts to establish new regulation in the digital environment.

Digital trade provisions are a relatively recent addition to the free trade world, but they have quickly coalesced around a common approach. Starting with the Trans Pacific Partnership (since renamed the Comprehensive and Progressive Agreement for Trans Pacific Partnership with the U.S. exit in 2017), e-commerce or digital trade chapters have cropped up in large agreements such as the USMCA and little known ones such as the recent Singapore-Sri Lanka trade agreement.

The chapters invariably include foundational principles such as certainty in electronic contracting, the validity of electronic signatures, nondiscriminatory treatment of digital services and restrictions on imposing customs duties on digital products transmitted electronically. So long as the provisions foster greater certainty for online trade, the chapters reflect well-established conventions and should be embraced.

The more problematic provisions, however, focus on the rules associated with data, the place where much of the value in digital trade lies. For example, the USMCA includes rules that restrict data localization policies that can be used to require companies to store personal information within the local jurisdiction. Jurisdictions concerned about lost privacy in the online environment have increasingly turned to data localization to ensure their local laws apply. These include the Canadian provinces of British Columbia and Nova Scotia, which have data localization requirements to keep sensitive health information at home that may be jeopardized by the agreement.

The digital trade chapter also bans restrictions on data transfers across borders. That means that countries cannot follow the European model of data protection that uses data transfer restrictions as a way to ensure that the information enjoys adequate legal protections. In fact, with the European Union adopting even higher standard privacy rules earlier this year, countries could find themselves caught in a global privacy battle in which Europe demands limits on data transfers, while the USMCA prohibits them.

The data localization and data transfer rules may erode efforts to safeguard privacy and many other provisions represent a lost opportunity to establish higher standards. Indeed, as the U.S. touts high standard intellectual property protections in its trade agreements, it seemingly opts for low standard digital trade protections.

For example, the USMCA has requirement to maintain anti-spam rules and online consumer protection laws. However, neither provision contains any specificity, meaning the requirements can be met without effective measures. The same is true for personal information protection requirements, which call for a legal framework to protect the personal information of users of digital trade, but buried in a footnote is an acknowledgement that merely enforcing voluntary undertakings of enterprises related to privacy is sufficient to meet the obligation.

The provisions related to net neutrality similarly miss the mark. The USMCA just establishes “principles on access to and use of the Internet for digital trade” with none of the principles coming close to a comprehensive approach to net neutrality and the provision falling well short of well-established laws in Canada.

An imperfect digital trade chapter would ordinarily mean little for global e-commerce. Yet the USMCA chapter builds on the CPTPP and effectively entrenches the approach as the model for digital trade in agreements worldwide. In fact, it seems likely that the same provisions will be used in multi-lateral instruments, including efforts at the World Trade Organization to establish similar e-commerce rules.

In doing so, a chapter that has never been subject to public scrutiny or debate, fails to reflect many global e-commerce norms, and may ultimately restrict policy flexibility on key privacy issues, will have been quietly established as the go-to international approach. Before the USMCA sets the standard to be used around the world for decades, there needs to be a renewed effort to ensure that it meets the needs of a far broader array of businesses, consumers and domestic policy makers.

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The USMCA and Copyright Reform: Who is Writing Canada’s Copyright Law Anyway?

Michael Geist Law RSS Feed - Wed, 2018/10/03 - 09:15

Canada’s year-long copyright review has thus far featured dozens of witnesses from creators such as singer Bryan Adams to telecom giants Bell and Telus. While the review is designed to help Canadian policy makers craft a roadmap for future reforms, the release of the U.S.-Mexico-Canada Agreement (USMCA), the successor to NAFTA, represents a significant detour as it contains a detailed intellectual property rights chapter that effectively cedes many key issues to U.S. trade negotiators.

My Globe and Mail op-ed notes that in the weeks leading up to the conclusion of the trade pact negotiations, most of the attention was focused on supply management and the dairy sector, the threat of tariffs on the automotive industry, and the future of dispute resolution provisions. Yet once the secret text was released just after midnight on Sunday, the mandated reform to Canadian copyright law became more readily apparent.

Leading the way is a requirement to extend the term of copyright protection from the current term of the life of the creator plus 50 years to the life of the creator plus 70 years. The additional 20 years of protection will effectively lock down the public domain in Canada for two decades, with no new copyright expiry on works until 2040 (assuming the agreement takes effect in 2020).

The Liberal government emphasized its commitment to excluding Canadian cultural policy from the ambit of the agreement (which it did subject to an exception for simultaneous substitution of U.S. broadcasting), but extending the term of copyright will have a far greater impact by reducing public access to Canadian cultural heritage. Moreover, with studies indicating that the term extension could add hundreds of millions to education costs, 20 extra years of copyright protection will not come cheaply.

The government has touted a U.S. concession that will allow Canada to retain its notice-and-notice system for allegations of copyright infringement, but that was the only bright spot in a chapter that otherwise restricts future policy flexibility. The limits are particularly noticeable with respect to Canada’s anti-circumvention rules, which provide legal protections for digital locks found on electronic books or DVDs. They will be subject to trade rules that severely limit the ability for policy makers to craft exceptions that ensure reasonable consumer access to the content for which they have paid. Canada previously insisted on the suspension of similar provisions in the Comprehensive and Progressive Trans Pacific Partnership Agreement.

The IP chapter will also require Canada to re-write legislation that was passed only a few years ago. For example, Canada’s anti-counterfeiting measures are destined for change after the USMCA included requirements to grant customs officials the power to seize suspect shipments without a court order, even if the goods are in-transit and not destined to remain in Canada.

While the U.S. has exported some of its most restrictive copyright laws to Canada, its flexible rules that lie at the heart of its innovation policy are nowhere to be found, placing U.S. companies at a distinct advantage over their Canadian counterparts. For example, fair use, a staple of U.S. law, is not included in the USMCA. This creates an uneven playing field, where U.S. companies and creators rely on an open system of exceptions for innovative technological uses (such as text and data mining for artificial intelligence), while Canadians are confined to a limited set of purposes identified in the Copyright Act.

Similarly, U.S. rules that mandate that all government works are freely available fall outside the deal, meaning that Canada may retain its outdated crown copyright model that vests full copyright in government works.

As the copyright review continues, the government will need to reassess its approach in light of the USMCA. First, the scope of the review should be expanded to consider the ramifications of the deal. This should include assessing whether there is room for flexible implementations of the new obligations.

Second, the review recommendations must account for a significant shift in the copyright balance in Canada as a result of the treaty. Rights holders have been lobbying for new rights or more limited exceptions. The USMCA effectively gives rights holders a massive gift with 20 years of additional protection alongside stronger enforcement measures. Restoring the copyright balance will mean rejecting a further distortion of the balance and instead considering expanding copyright exceptions.

Canada’s new trade agreement means that the U.S. will effectively write some of the key provisions in the next copyright law. If Innovation, Science and Economic Development Minister Navdeep Bains is to retain a made-in-Canada approach to copyright, it is time to take back the pen and restore the balance lost in the fine print of the USMCA.

The post The USMCA and Copyright Reform: Who is Writing Canada’s Copyright Law Anyway? appeared first on Michael Geist.

Application Denied: CRTC Rejects Bell Coalition Website Blocking Proposal

Michael Geist Law RSS Feed - Tue, 2018/10/02 - 11:11

The CRTC this morning rejected the Bell coalition’s website blocking proposal, concluding that the application to establish a new anti-piracy agency and approve site blocking without court oversight falls outside its jurisdiction. Opponents of the site blocking proposal frequently cited concerns with the proposal and the limits of the CRTC’s mandate: my posts discussed how it failed to further and undermined the Telecommunications Act policy objectives, and was inconsistent with the CRTC’s policy direction. Similar comments came from groups such as ISOC Canada, which argued that the applications involved copyright, not telecommunications.

Having reviewed thousands of submissions, the CRTC would appear to agree. The Bell coalition relied heavily on two provisions in the Telecommunications Act to support its application. First, it pointed to section 24 which gives the CRTC the right to impose conditions on service, but the CRTC concluded that including site blocking within that provision created conflicts with the Copyright Act:

the proposed regime requires sections 24 and 24.1 of the Telecommunications Act to be interpreted in a way that creates a direct purposive and contextual conflict with the Copyright Act. Moreover, such an interpretation of the jurisdiction granted to the Commission by the Telecommunications Act runs contrary to the principle of interpreting sections harmoniously with related legislation.

The other section – section 36 – restricts the ability of carriers to control the content of messages without CRTC approval. Yet the Commission rightly noted this is an authorizing power, not a mandated power:

Section 36 of the Telecommunications Act limits the ability of carriers to control the content of messages carried over their networks without prior Commission authorization. While this section gives the Commission the explicit power to authorize an ISP to block a website, the proposed regime would go further and require such blocking pursuant to a Commission order. Because section 36 confers an authorizing power and not a mandatory power, the power to mandate blocking must be found elsewhere and must relate to subject matter that is clearly within the Commission’s jurisdiction under the Telecommunications Act.

The commission also examined whether the proposal fit within the Telecommunications Act policy objectives, finding that it only does so in a very tangential way:

In the Commission’s view, the proposed regime can be said to target the policy objectives in only a tangential way, in the sense that they address a social or economic need. The Supreme Court’s findings with respect to the objectives in the Broadcasting Act are equally applicable to an interpretation of the policy objectives in the Telecommunications Act: “establishing any link, however tenuous, between a proposed regulation and a policy objective in s. 3 of the [Broadcasting] Act is [not] a sufficient test for conferring jurisdiction on the CRTC.

The policy objectives in the Telecommunications Act give the Commission extensive leeway to address social and economic needs broadly. For example, the Commission has addressed issues of public safety (e.g. through 9-1-1 and wireless public alerting regulation) and accessibility (e.g. through video relay service regulation). However, in the case of the proposed regime, which relates at its heart to the enforcement of the Copyright Act in the absence of a specific enforcement mechanism established by Parliament, any link to the policy objectives in the Telecommunications Act is tenuous, such that the Commission cannot support a finding of jurisdiction.

In light of all the above, the Commission determines that it does not have the jurisdiction under the Telecommunications Act to implement the proposed regime and, consequently, it will not consider the merits of implementing the regime. The Commission therefore denies the FairPlay Coalition’s application.

Instead of a ill-advised application to the CRTC, the Commission recommended that the issue be considered in two policy processes: the Copyright Act review and the broadcast-telecom review panel. Those are both better placed to assess the issue and address the myriad of concerns that Bell and its allies largely dismissed: the absence of court orders, implications for freedom of expression, net neutrality, privacy, and competition.

In fact, the issue did arise during Bell’s copyright review appearance last week before the Industry committee. After Bell asked for legislative reforms to make it easier to obtain orders requiring actions from intermediaries such as ISPs, MP David Graham asked whether Bell had tried to use existing rules to obtain a court order. Bell’s Robert Malcolmson avoided the question, citing legal actions involving set-top boxes instead [the correct answer is presumably no]. Moreover, when Graham also noted that a majority of countries with site blocking require a court order, Malcolmson responded by stating “there are a variety of regimes around the world.”

The CRTC’s denial of the site blocking application is an important step toward stopping a dangerous proposal, but Bell will surely continue to pursue its proposal in alternate venues. Interestingly, the USMCA does not include any reference to site blocking or seek to establish such a system. Thousands of Canadians stepped up in the spring to ensure that the Commission was aware of the legal, technical, and policy concerns with site blocking without a court order. In the months ahead, they may need to speak out yet again.

The post Application Denied: CRTC Rejects Bell Coalition Website Blocking Proposal appeared first on Michael Geist.

From Copyright Term to Super Bowl Commercials: Breaking Down the Digital NAFTA Deal

Michael Geist Law RSS Feed - Mon, 2018/10/01 - 07:59

Canada and the U.S. reached agreement late yesterday on a new NAFTA (now renamed the U.S.-Mexico-Canada Agreement or USMCA). While much of the focus is on the dairy industry, dispute resolution, and the auto sector, the agreement will have significant implications for intellectual property, digital policy, and broadcasting. It will take some time to examine all the provisions, but the short-hand version is that Canada has agreed to extend the term of copyright, saved the notice-and-notice system for copyright infringement claims, extended the term of protection for biologics at significant long-term cost to the health care, agreed that Internet companies are not liable for third party content, extended border measures on counterfeiting, and promised to drop the CRTC policy that permitted U.S. commercials to be aired during the Super Bowl broadcast.

With few exceptions, the U.S. adopted a Trans Pacific Partnership+ approach with the TPP provisions plus some additional changes it did not get as part of those negotiations. This is notable since Canadian authorities admitted that the TPP went far beyond any previous Canadian free trade agreement. While the Canadian starting point was presumably the CPTPP,  the revised TPP where Canada successfully argued for the suspension of some of the U.S.-backed provisions, Canada caved on that position as the IP and digital trade chapters largely revert back to the TPP model. The only good news from a Canadian perspective is that this includes a carve out for Canada’s notice-and-notice system, which the U.S. acknowledged in the TPP met the notice-and-takedown standard.


The IP chapter opens with balancing language as an objective:

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. 

Yet the major copyright change for Canada is the extension in the term of copyright beyond the international standard of life of the author plus 50 years to life of the author plus 70 years. The term of copyright was never going to hold up a major trade agreement and Canada did agree to an extension in the original TPP. However, the cost will be significant, locking down works from the public domain for decades and potentially increasing educational costs by millions of dollars. From a domestic policy perspective, the change should impact the current copyright review as term extension has been one of the top requests from rights holders and areas of concern for users. The extension shifts the copyright balance in Canada and should be factored into future reforms, including the benefits of extending fair dealing to restore the balance.

One area that did not change is the notice-and-notice system as the IP chapter includes an annex (Annex to Section J) that creates an exemption to the notice-and-takedown requirement for any party that, as of the date of the agreement, has a notice-and-notice system. That means that Canada gets to keep notice-and-notice, though Mexico is not able to adopt it in lieu of notice-and-takedown. This will be viewed as a win from a Canadian perspective, though it was an easy giveaway for U.S. negotiators.

The agreement also includes provisions on limitations and exceptions (borrowing from the Berne Convention’s three-step test) and detailed anti-circumvention rules that permit exceptions in limited circumstances. These provisions are open to considerable interpretation that could be invoked as part of future copyright reform efforts.

The agreement also features expanded border measures and anti-counterfeiting requirements. Canada passed anti-counterfeiting legislation several years ago as part of a U.S. requirement for joining the TPP negotiations. That legislation expanded the powers of customs agents with respect to suspected counterfeit products. The U.S. had been pressuring Canada to further extend those provisions to cover in-transit shipments (ie. stop shipments that are not bound for Canada but only passing through on the way to another country). Canada has agreed to provide agents with those powers on in-transit shipments, thereby requiring further reforms to Canadian law.


On the patent side, the big change is the extension of data protection for biologics drugs to 10 years. This is a significant increase on the TPP which offered 8 years or 5 years plus other measures to provide a comparable outcome in the market. This was one of the most contentious TPP issues as countries recognized that every additional year potentially adds billions of health care costs. In fact, even U.S. agencies have expressed doubt about the need for long term protections. Coming on the heels of the Canada – EU Trade deal, which effectively extended patent terms, the additional costs for pharmaceuticals in Canada in the long-term will be enormous.


While a cultural exemption was touted as one of the major Canadian wins, Canada actually did cave to U.S. pressure by agreeing to change its broadcast policy. In 2016, the CRTC changed its policy on simultaneous substitution for the broadcast of the Super Bowl, allowing for the U.S. signal to air in Canada with the commercial intact. Bell, the broadcast rights holder, and the NFL objected with multiple appeals and court cases (including one currently before the Supreme Court of Canada). In Annex 15-D, Canada agreed to rescind the CRTC policy with a requirement that all programs be treated equally. That means that Canada could drop simultaneous substitution altogether, but not for an individual program. The same annex also includes a commitment to authorize U.S. home shopping program services.

Digital Trade

The digital trade chapter largely mirrors the one found in the TPP. That means that there are provisions on prohibiting customs duties, facilitating electronic transactions, anti-spam measures, and very weak language on having domestic privacy and consumer protection rules. The USMCA does not include a stand-alone net neutrality provision as found in the TPP.

The two most important features of the chapter involve (i) data localization and transfer and (ii) safe harbours for Internet companies. Data localization has emerged as an increasingly popular legal method for providing some additional assurances about the privacy protection for personal information. Although heavily criticized by those who fear that it harms the free flow of information, requirements that personal information be stored within the local jurisdiction is an unsurprising reaction to concerns about the lost privacy protections if the data is stored elsewhere. The USMCA restricts the ability for a country to impose data localization rules, which could have an impact on future privacy reforms. Similarly, the data transfer provisions limit the ability to restrict data transfers across borders, which could become a challenge should the EU require restrictions to meet its privacy standards. Canada effectively agreed to similar provisions in the TPP and their inclusion in this agreement is unsurprising.

Internet safe harbours did not make it into the TPP and is a welcome addition to the USMCA. The provision states:

no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.

In other words, Internet companies are not liable for the content of their users. While this does not require the creation of a legislative safe harbour, it restricts the ability for a country to create a system premised on liability for Internet companies. Moreover, the same provision excludes liability for actions taken by Internet companies to remove harmful or objectionable content on a voluntary basis.

Cross-Border Shipments

The agreement also raises the minimum threshold for cross-border shipments that will not be subject to customs duties and taxes. The Canadian limit has long been at $20, much to the frustration of cross-border shoppers. The new limits for Canada will be C$150 for customs duties and C$40 for taxes.

There will no doubt be much more to review in the fine print of the agreement, but the first look at the deal suggests that Canada caved on many issues, identifying notice-and-notice as a priority ask. From a political perspective, since many of digital USMCA provisions were found in the TPP that was negotiated by the Conservative government, it is unlikely the Conservatives will oppose those concessions. The USMCA will result in significant reforms to Canadian copyright law, which should be factored into the current copyright review given the shift in copyright balance toward rights holders with decades of additional protections.

The post From Copyright Term to Super Bowl Commercials: Breaking Down the Digital NAFTA Deal appeared first on Michael Geist.

a different perspective

Fair Duty by Meera Nair - Mon, 2018/09/24 - 21:18

On 12 September 2018, the Edmonton Journal published an article of mine in print and online editions, where I emphasize the role of exceptions in the growth of billion-dollar media and content industries. Below is the original, longer form, of that article.

As the summer recess ends, Members of Parliament are returning to Ottawa to resume the business of the nation, including a review of the Copyright Act. Judging from transcripts of meetings held last spring, tensions run high among stakeholders. The general dispute is one of control versus legitimate unauthorized uses, education being a particularly thorny issue.

Transcripts of similar meetings from the 1980s, 1990s, and the 2000s, reveal that relations between educational institutions and copyright owners have always been strained. Institutions cite statutes that position copyright as a means of encouraging learning, while owners swear by the rights of the author. Both perspectives have roots in history. The Anglo-American common-law tradition placed the control of copyright, with measures of unauthorized use, as integral to developing publishing sectors. Whereas the civil-law tradition led by France argued that intellectual effort was nothing less than a living part of its creator and must be protected as such.

Yet both themes were relevant on both sides of the Atlantic. Differences were only a matter of timing. Nation-states eager to build their publishing sectors favored lesser control in the name of copyright. After creative assets were amassed, those same states offered holier-than-thou pronouncements about copyright. However, in neither tradition were authors, or students, central players in the various statutes.

Despite this, the figure of the starving author is the principal exhibit during any discussion of copyright. It appeared in 1710—when copyright attained a legal persona—and returned with each copyright expansion thereafter. If, 308 years later, authors are still starving, perhaps it is time to acknowledge that copyright alone cannot assure prosperity for an author. First and foremost, an author needs readers.

For Canadian authors, this challenge is not new. Even without competitors—beginning with Charles Dickens and continuing well past Harper Lee—Canada’s population was not enough to sustain Canadian authors. Even increasing the control exerted through copyright and holding students as a captive market cannot guarantee returns to Canadian authors. Particularly as foreign educational and research-oriented publications dominate the material read in post-secondary institutions.

As MPs wrestle with this review, they might consider a different perspective concerning the system of copyright—that it is not merely about what we read, view or listen to, but how we read, view and listen. Media development is enabled not by copyright, but by exceptions to copyright. Those uncontrolled spaces, where content is unprotected, allows new media to thrive, legitimately, to the benefit of a country’s economic and creative growth.

For instance, in the early twentieth-century, player pianos were in vogue. That success is directly attributable to a copyright law that did not protect music represented and conveyed through mechanical means. According to historian Harvey Roehl, in 1923 the player piano industry produced over 347,000 pianos and achieved over $100 million in sales. (In today’s American dollars, approximately $1.5 billion.) People feared that the technology would spell the death of music, but the new market for piano rolls spurred original composition. The leading player-piano manufacturers were eager to represent popular composers, selling not only their existing works, but also music composed expressly for piano-roll distribution (George Gershwin’s tale is legendary).

Another media technology worth remembering is the video cassette recorder. American film executives fought tooth-and-nail to have it killed; but in 1984, the United States’ Supreme Court ruled that the equipment was lawful. By the 1990s, the film industry was praising the new markets made available by the technology. Consumers were eager to pay for personal copies of favorite movies, which led to increased production of new films. Drawing from data compiled by the U.S. Department of Commerce and the U.S. International Trade Commission, in 1992 earnings via direct-sale to North American consumers reached $2.5 billion and in 1993 earnings from global markets were approximately $5 billion. All this out of a technology that Jack Valenti, then-president of the Motion Pictures Association of America, had likened to the Boston Strangler a decade earlier.

With respect to contemporary technology, MPs might find U.K. research to be helpful. In 2010, then-Prime Minister David Cameron ordered a review of their intellectual property law to enhance innovation and creativity in the digital age. In the ensuing report, the lead investigator Ian Hargreaves wrote: “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes.” A year later, Hargreaves explained that Cameron had been particularly interested in the role exceptions had played in the development of search engines, namely Google.

This past summer, social media were buzzing in anticipation: would Google become the first trillion-dollar company? (Strictly speaking, it would have been Alphabet, parent company of Google, who could claim that title.) Apple emerged the winner; regardless, lawmakers should not forget that Alphabet exists because of Google and employs nearly 90,000 people worldwide. Of course, billion-dollar media industries with plentiful jobs do not arise solely from flexible exceptions within the system of copyright. But such industries could not arise without them.

Opponents of exceptions will criticize any amendment that appears to favour industries over authors. MPs might find strength of resolve through the work of Nick Mount, a professor of English at the University of Toronto, who is respected by authors and educators alike. In his landmark book, Arrival—the Story of CanLit, Mount illustrates that general economic prosperity enabled CanLit to reach the success we see today, and concludes by saying Canada “is producing many more writers and many more books than ever before.”

For those interested, further reading:

James Boyle (who served as an expert adviser for the British Review) on the Hargreaves Report: “Copyright is supposed to make, not to break, markets. Yet the Review found that innovative digital businesses were strangling in the tangled web of licensing copyright has created.  As technologies have developed, copyright has created right after right to deal with them, each jealously guarded by its own collection society. Pity the poor entrepreneur who wants to create a new legal business and finds that technological happenstance means multiple rights are involved. This is good for no one (except the middle-men.)”

Stephen Advokat, A new era for Hollywood, Chicago Tribune, 3 January 1986.

Fred von Lohmann, “Fair Use as Innovation Policy,” Berkeley Technology Law Journal (2008). “This article contends that copyright law’s historical tolerance for such copying as a fair use has served as an important element of both copyright and innovation policy. This is because, to the extent it permits private copying, fair use creates incentives for technology companies to build innovative new products that enable such copying. Far from being an unfair “subsidy” from copyright owners to technology innovators, this aspect of fair use has yielded complementary technologies that enhance the value of copyrighted works.”

V.S. Naipaul and copyright

Fair Duty by Meera Nair - Wed, 2018/09/05 - 22:18

Following V.S. Naipaul’s death (1932-2018), I picked up his books again. They had been within reach throughout my life, yet I had never been too eager to read them. Naipaul’s views about India had not sat well; a seeming hostility heightened by an adoration of Britain. That Imperial overlords had sent his grandfather from India, to serve as an indentured labourer for estate owners in the West Indies, made it even more baffling.

Whereas my maternal grandfather, in joint opposition to both his caste-conscious family and British divine right claimants, had performed his own version of Quit India by moving to casteless Burma (Myanmar). He maintained a lifelong, faithful adherence to the Gandhian vision of an independent, secular India, one that aspired to equality for all, regardless of caste or gender. From that familial background, Nobel Prize notwithstanding, the sharpness of Naipaul’s pen was too alien for my tastes.

But the man was dead now, reading a book seemed the least I could do. A House for Mr. Biswas beckoned, a 1961 paperback edition brought out by Penguin Books. I glanced at the front matter, searching for that preliminary content which might influence how a reader approaches an author’s work.

In the words of literary theorist Gérard Genette, this is the realm of the paratext; that “vestibule,” where, before stepping inside the text, a reader is presented with information that might secure “a better reception for the text.” A paratext might include a preface (those guiding words in a detached voice), or the not-so-subtle extolling of past success (the lavish praise received in the wake of an author’s earlier works).

And then there are paratexts that carry a hue of legality.

Accustomed as I am to seeing maximalist copyright paratexts—those strident notices that, in violation of copyright law, prohibit any and all copying—this paratext was different:

Copyright © V.S. Naipaul
This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent publisher (emphasis mine).

The reader was only urged to be aware that unauthorized books might be in circulation. Penguin Books likely hoped that readers would apply the market force necessary to keep rival publishers in line, but the reader is largely left alone.

Appealing to readers to maintain markets was not new, even in 1961.

Robert Spoo, an authority in both law and literature, has written extensively about courtesy paratexts, those notices used by nineteenth century American publishers to illustrate that their dealings with British books were with the consent of the British author. At that time, American copyright law did not extend to protecting foreign works; freely using British writing was a legitimate option, available to the entire American publishing industry. To manage the temptation of undercutting one another, to avoid a race-to-the-bottom in the pricing of reprints, larger American publishing houses agreed not to poach authors’ works, once a particular house had secured the author’s consent.

Consent was usually obtained with a courtesy payment from the American publisher to the British copyright-owner. While British authors and publishers fumed at their lack of control in this system, a Royal Commission on copyright carried out by the British Government (1876-1878) confirmed that many British authors and publishers profited handsomely through these arrangements (though at Canada’s expense, i.e., see here or here.)

However, these gentlemen’s agreements were not always respected, particularly when the writer was popular with American readers. A few words from the author could confer some respectability upon the publisher in the eyes of the market, and increase the likelihood of holding that market. Within Spoo’s work are examples, exhibiting a range of tone from the humble words of Robert Browning to the distinctly legal’esque language of Charles Dickens.

Returning to the Naipaul collection, a paperback copy of India, A Million Mutinies Now (a Minerva edition dating to 1990), reveals the same paratext as found in Mr. Biswas. However, a Viking Penguin hardcover offering of the same book, of the same year, extolls this:

Copyright © V.S. Naipaul, 1990
Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted in any form, or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.

It is bizarre even to suggest that the lengthy prohibition of reproduction etc., could limit the rights under copyright—given that the notice exceeds what copyright provides under law.

But this nonsensical statement makes some sense if it is read, not as prohibition to readers, but as a warning to would-be pirate publishers. The notice tells prospective resellers that the road to Million Mutinies must go through not only Viking, but Naipaul as well. From that, a reader could assume that Naipaul did not hand over all the meaningful aspects of copyright (control over reproduction etc.) to Viking.

Continuing my Naipaulian-guided exploration of copyright-paratexts; a 2011 edition of A Way in the World  (issued by Picador), begins by scrupulously noting that the book was published in 1994 by William Heinemann, in 1995 by Minerva, and then in 2001 by Vintage (Random House). It ends with the prohibition on circulation in any other form of binding or cover.

In between, the author surfaces; Naipaul’s claim of copyright for the book in 1994, and in the preface in 2011, are explicit. Curiously though, while claiming copyright required no justification, claiming authorship did: “The right of V.S. Naipaul to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.”

The remainder of the copyright-paratext takes on a biblical tone of crime and punishment:

All rights reserved. No part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted in any form, or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages.

The overreach on the scope of copyright is astounding. Limitations/exceptions to copyright are always an option. So said Canada’s former Chief Justice Beverley Mclachlin in 2004: “Fair dealing is always available.”

All copyright statutes of countries participating in international treaties, will have sanctioned some degree of unauthorized use of copyrighted work. The Marrakesh Treaty (created in 2013 to support perceptually disabled people) comes to mind, but even the Berne Convention (created in 1886 ostensibly to better support authors) does not omit unauthorized uses.

Even without international prodding, countries may amend their exceptions to ensure that a system purporting to support authors has the capacity to fulfill that expectation. Canada’s best adjustment may well be S29.21.

In terms of the criminality of unauthorized use, in Canada such remedies generally pertain to commercial malfeasance; i.e., sale of the work without consent. Arguably, this paratext speaks only in terms of “may be liable” but in the hypersensitive copyright-age we live in, such a notice is enough to scare off any teacher or student from exercising fair dealing. I wonder if authors are aware of the misrepresentation of the law that is presented in their names.

Furthermore, how often do authors retain their copyright? How often do they retain it in more than name only? Does having a copyright actually translate into royalties when books are sold? What happens when books fall out of print; do the rights revert to the author? Are authors (and their estates) aware of explicit statutory provisions for reversion of rights? (Rebecca Giblin’s work, particularly the Authors Interest Project, probes these questions.)

Naipaul seemed to be aware of the importance of copyright; from his earliest publications (by André Deutsch Limited) on, Naipaul consistently declared his copyright and renewed it as necessary. That command of copyright continued even where he was not the sole author. The copyright paratext in the published correspondence between Naipaul and his family, entitled Letters Between a Father and a Son (Little, Brown and Company, 1999), tells a story of its own:

Copyright © V. S. Naipaul 1999
The moral right of the author has been asserted.

The moral right of the author is startling to say the least. There are five authors in this collection: Naipaul, his sister Kamla, their father and mother–Seepersad Naipaul and Droapatie Capildeo–and Gillon Aitken (editor of the collection and author of the introduction). Granted, V.S. Naipaul’s letters form the majority of the book, and his parents were dead at the time of publication. However, all authors ought to have been entitled to recognition and reservation of rights with respect to their own original work.

Perhaps these matters were discussed, explained, and executed with consent from the living parties.

Back to Mr. Biswas.

Routing Detours: Can We Avoid Nation-State Surveillance?

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

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

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