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* The information age is, in many ways, the beginning of history
* It’s a moment at which every person is swiftly becoming an archivist of her own life, a curator of billions of blips of ephemeral communications and ruminations and interactions
* As any archaeologist who’s ever rejoiced at finding a midden that reveals how normal people lived their lives in antiquity can tell you, this ephemera, so rare and badly preserved through most of our history, is of incalculable value
* Which would you rather see: an oil painting of a Victorian monarch, a ramrod stiff photo of your great-grandmother in her confirmation smock, or a hundred transcripts of the conversations she shared with her peers and her family?
* The tools by which we accomplish this archival business are, of course, computers
* Carried in our bags and pockets, worn in and on our bodies
* There is one group of people in the world who understand how archiving works, who understand the importance of the ephemeral en masse, who can steer us to personal and cultural practices of preservation, archiving, dissemination, and access — it’s you, the museum sector
* Just as librarians — who have toiled for centuries at the coalface of information and authority, systematizing the process of figuring out which sources to trust and why — are more needed than ever now, when we are all of us required to sort the credible from the non-credible every time we type a keyword into a search box
* So too are curators and archivists more needed than ever, now that we are all archiving and curating all the live-long day
The old adage in real estate that it only takes one buyer held true in the Canadian 700 MHz spectrum auction. After potential new entrants such as Verizon declined to enter the Canadian market and Wind Mobile dropped out of the bidding at the last minute, many declared the spectrum auction a failure. Industry Minister James Moore and the government got the last laugh, however, with the auction generating $5.3 billion and the emergence of potential new national wireless player - Videotron (parent company is Quebecor). There had been some speculation that Quebecor might make a move outside of Quebec (Nowak, Corcoran) and seeing the company scoop up prime spectrum in Ontario, Alberta, and British Columbia offers renewed hope for a more competitive environment.
Quebecor's national wireless strategy remains a bit of a mystery. The arguments that this could lead to more competition are obvious: the CRTC's 2013 Communications Monitoring Report notes that Quebec's average revenue per user (ARPU), one of the wireless industry's key metrics, is easily the lowest in Canada. In 2012, Quebec ARPU was $51.95, compared to $61.87 in Ontario, $63.56 in B.C., and $73.50 in Alberta. Moreover, Quebec had the highest percentage of population with access to four or more facilities-based wireless providers at 82 percent of the population (Ontario was next closest at 63%). The Canadian Media Concentration Research Project finds that Quebec is the least concentrated market in Canada (though still highly concentrated), leading to the conclusion that "if there is any vindication of the viability of the '4th mobile wireless carrier' strategy in Canada, Quebec is it." In short, Quebec is the most competitive wireless market in Canada with four viable competitors and the prospect of extending that approach to Ontario, B.C., and Alberta would represent a significant change in the wireless competitive landscape.
The possibility of Quebecor becoming a national player does not end there. The government's move to regulate domestic wireless roaming creates the possibility of more competitive new entrants who can piece together national networks comprised of their own spectrum plus roaming on competitor networks in markets where they do not operate. There is also the possibility of Quebecor accelerating a national move by acquiring Mobilicity or even making a play for Wind Mobile.
Yet despite the optimism, there is still some lingering doubts about Quebecor's plans. The company's press release states "given the way the auction unfolded, Quebecor Media could not pass up the opportunity to invest in licences of such great intrinsic value in the rest of Canada. We now have a number of options available to us to maximize the value of our investment." In other words, this was relatively cheap spectrum given bidding restrictions on incumbents and the limited number other bidders that was too inexpensive to pass up ($233 million for seven licences in Quebec, Ontario, BC, and Alberta).
Moreover, the company's success in Quebec may stem in part from its ability to offer bundled services that include wireless, Internet, cable television, and home phone. Quebecor will be hard pressed to match the bundled approach outside its home province. If the company is a wireless-only player in Ontario, B.C., and Alberta, it may face many of the same challenges as the other 2008 new entrants.
From a consumer perspective, the possibility of more choice is great, however Quebecor is another large vertically integrated company with incentives to favour its own content. For example, in 2011, the CRTC ruled that it violated undue preference rules when it gave its video-on-demand service exclusive rights to some of its broadcaster programs. The Commission ordered the company to provide the programs to Telus and Bell.
For the moment, Canada is still dominated by the big three, who unsurprisingly bought the majority of available spectrum. But the spectrum auction outcome offers a ray of hope to those seeking a national wireless player who could shake up the Ontario, BC, and Alberta markets. Quebecor has a footprint of 500,000 wireless customers in Quebec and it just acquired prime spectrum on the cheap. If the government maintains its commitment of regulating wholesale domestic roaming and tower sharing, there may be the necessary ingredients to entice Quebecor to take a shot at becoming a viable fourth player in Canada's largest provinces.
The CRTC launched the second phase of its Talk TV consultation with a series of questions that place the big regulatory issues squarely on the table. After asking some basic data questions, the consultation addresses a series of issues with scenarios that are framed in a lopsided manner. The consultation addresses hot button issues such as online video, pick-and-pay channels, and simultaneous substitution, but the options presented to respondents are limited and skewed toward Internet regulation for online video or supporting the status quo for conventional broadcast. For example, access to more U.S. programming is presented as a choice between increased fees, lost Canadian jobs, or larger television packages with Canadian channels. The online video discussion is premised on new CRTC regulations that with a series of increased fee options presented.
consultation is a signal of where the CRTC is headed, not only is
the notion of true pick-and-pay channels dead and simultaneous
substitution alive, but the Commission may be willing to toss out
net neutrality in a race to regulate online video services. The issues raised in the consultation:
“To lose one parent, Mr. Worthing, may be regarded as a misfortune; to lose both looks like carelessness. … The fact is, Lady Bracknell, I said I had lost my parents. It would be nearer the truth to say that my parents seem to have lost me.”
“To say that it is scintillant – the one bright line and one brilliant epigram and inversion of ordinary speech into something extraordinarily comic, follows after another, is merely to repeat what has been said about the play from the beginning.”
Wilde enthusiasts may recall that February 14 marks the anniversary of the debut of The Importance of Being Earnest–A Trivial Comedy for Serious People. The play opened on that date in 1895, at St. James Theatre in London. Leonard Smithers undertook publication of the work a few years later, with a first edition run confined to 1000 copies. (In 2007, the BBC reported that #349 had been found in a charity shop, “appropriately inside a handbag.”)
Copyright enthusiasts have added reason to dwell upon Wilde; his image sparked a pivotal discussion on authorship and originality, the effects of which are felt to this day. In 1882, during a lecture tour of the United States, Wilde sat for a series of photographs with celebrity portrait photographer Napoleon Sarony. When one of the photographs was later incorporated, without permission, into a department store advertisement, Sarony claimed infringement.
That the American courts should have agreed with Sarony seems no matter for surprise today. But at the time, the issue arose as to whether a photograph could be considered the work of an author and thus be eligible as copyrightable material. In The Lingering Effects of Copyright’s Response to Photography (2004), Christine Haight Farley (Associate Professor of Law at Washington College of Law, American University) examines this case against her detailed study of the culture of photography. She writes:
It is not at all surprising that the Supreme Court could appreciate the beauty of the Sarony portrait of Wilde, and with the economic interests at stake at that moment in the history of the photography industry, the result was all but a foregone conclusion. What is, however, remarkable is how the Court could seemingly articulate a standard that could differentiate between high and low art; between art and science (p.389-390).
“Oscar Wilde, No. 18.” Image courtesy of the Museum of Metropolitan Art
Farley explains that the courts were in an awkward predicament. Photography had been lauded as a mechanical process that captures a scene entirely by technology. An absence of human intervention implied an inviolate image of record. Such accuracy carried great merit, adding value to news reporting, documentary publications and evidentiary processes. To argue that a photograph be regarded as a creative work required another interpretation of photography.
The court found such an interpretation by locating creativity in the composition of the scene. According to Sarony’s own brief, he chose the lighting, props, costumes, position, and even the expression of the subject. The Supreme Court uncritically took such a proposition as evidence of authorship, but also took care to limit their decision, “… These findings, we think, show this photograph to be an original work of art (emphasis in original).” The specificity allowed other photography to remain as purely mechanical.
However, the language of the decision reveals an inconsistency within the Court’s reasoning. When refuting the argument that Congress had erred in situating photographs as copyrightable material—that the Constitutional Clause which secures “…for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” does not support protection of photographs as writings—the Court identified an author as “he to whom anything owes its origin.” Yet the Court refused to entertain the idea that the composition of the picture lay in the activity at the camera, even though, as Farley writes:
The person operating the camera always exercises choice in producing a photograph. There are creative choices in the precise timing to click the shutter, the angle of the shot, the frame, the focus, the distance from the subject, the centering of the subject, etc. (p.434).
Farley continues and explains the inconsistency:
[The] Court would have some difficulty relying on this possible act of authorship because Sarony did not actually operate the camera. Sarony was not a photographer in the modern or technical sense. He was not interested in the camera work. Instead, he regularly employed a cameraman, Benjamin Richardson, to work the camera. There is no evidence that Sarony, as directorial as he was, had given any direction to Richardson about these technical choices. There is no indication that Sarony cared about that dimension of choice (p.434-435).
Biographer and historian Roy Morris Jr. indicates that, not only did Sarony not care about technique, he took pains to distance himself from such details. In Declaring His Genius: Oscar Wilde in America (2013), Morris writes:
In action, Sarony was a very hands-off photographer. He took no photos himself, delegating the task to his assistants while he gazed distractedly out the window. Nor did he develop the finished products, bragging that he did not know anything about the developing process (p.35-36).
Indeed, the developing process could also have been a place to locate creativity. As was also the selection of which photographs to register and publish. Farley explores all these avenues in detail and returns to the challenge the Court faced in ensuring photography’s standing as an untampered record of truth. Over the next century, courts would slowly recognize that the activity at the camera and laboratory had a place in the examination of authorship, but Farley’s work illustrates that the rationale employed in Burrow-Giles has surprising staying power.
Returning to The Importance of Being Earnest; readers likely know that the play marked the apex of Wilde’s career and his world would begin to unravel within a few days of the opening night. Soon after, he was charged and convicted of indecency—as per Victorian sensibilities of the day. He received the maximum sentence possible, two years of hard labour in prison, but it would be more accurate to say he received a life-sentence of permanent banishment. In a letter written from prison, he laments:
My tragedy has lasted far too long : its climax is over; its end is mean; and I am quite conscious of the fact that when the end does come I shall return an unwelcome visitant to a world that does not want me (p.22).
Sadly, Wilde’s pronouncement of the world of his lifetime proved to be accurate. Shunned and impoverished, he died with little fanfare in 1900. That his work would be held in such esteem in the century that followed, likely never crossed his mind.
Canadians love Internet success stories such as Netflix and Google as recent data indicates that millions now subscribe to the online video service and Google is the undisputed leader in search and online advertising. The changing marketplace may be a boon to consumers, but my weekly technology law column (Toronto Star version, homepage version) notes that it also breeds calls for increased Internet regulation. That is particularly true in the content industry, with the film and music sectors recently calling for rules that would target online video services, Internet providers, and search engines.
The Canadian Media Production Association, which represents independent producers of English films and television shows, recently told a Senate committee that new rules are needed to address the threat posed by popular Internet video services such as Netflix. The CMPA argued that a "level playing field" is needed to ensure that there is "choice, diversity and growth in a more open market place."
Consumers could be forgiven for thinking that the entry of Netflix into Canada has increased choice, diversity, and growth, yet the CMPA wants new rules that would raise costs and impose regulatory requirements on online video providers.
Its recipe for reform includes three specific changes that target Netflix. First, it wants new rules requiring foreign-based content companies to contribute to the creation of new Canadian content. The CMPA has not suggested a formula for contributions nor explained how it would distinguish between online services mandated to contribute and those exempted from such requirements.
Second, it wants to require Netflix to block the use of proxy services that can be used to disguise the geographic location of a user. Those services - which are popular with privacy advocates since they allow users to safeguard their personal information - can also be used to access the U.S. services that are otherwise unavailable in Canada such as Hulu or the U.S. version of Netflix.
Third, it wants Netflix to levy taxes on all subscriptions, raising broader questions about taxation issues for the myriad of online services that challenge conventional notions of jurisdiction.
The CMPA is not alone in advocating for new Internet-related rules. Music Canada, formerly known as the Canadian Recording Industry Association, has also begun to push for changes that could target Internet providers and search engines.
Late last year, the organization noted the need for website blocking to combat sites that facilitate infringement. Graham Henderson, the Music Canada president, wrote that government support (which now runs into the tens of millions of dollars in Ontario alone) should be accompanied by "judicious and reasonable regulation of the internet. The actions taken by courts in other jurisdictions have very reasonably required ISPs to block websites that are almost entirely dedicated to the theft of intellectual property." Website blocking has proven highly controversial in many countries, with some courts striking down blocking laws on free speech grounds.
The blocking requirements would target Internet service providers, but Music Canada has also identified search results as a problem. In a presentation to the Ontario Standing Committee on Finance and Economic Affairs, Henderson claimed "consumers cannot find legal services on Google," adding that "with government support, maybe we can urge intermediaries to actually do something to help consumers find legitimate sources, because I think theyâd like to." Whether that means requiring companies like Google to adjust their search results by eliminating some results or by prioritizing industry-friendly websites is unclear, yet the comments suggest the industry would favour some form of intervention or government pressure.
The Canadian government has to date been reluctant to wade into the Internet regulation debate. Moreover, regulators such as the CRTC have long exempted online services such as Netflix from broadcast-style regulation. Yet as online services continue to reshape the marketplace, the pressure for new rules seems likely to intensify.
Nearly two years ago, I wrote a post about how the Canadian digital economy strategy seemed to be taking shape. The government had moved on several legislative issues including copyright and spam, it was bringing together federal and provincial ministers to discuss the issue, the open government initiative was on the way, and telecom policy was beginning to emerge as a major concern. All that was missing was an announcement, identification of some targets, and the signal that this was a priority. While I'm told that some in government also saw it this way, then-Industry Minister Christian Paradis let the moment slip away and the entire digital strategy become little more than a punchline.
Yesterday's federal budget marks the revival of the Canadian digital strategy. The government will undoubtedly still point to past accomplishments (the budget references reforms that date back to the 2006, so digital economy activities from several years ago are surely fair game), but this budget provides many of the remaining ingredients for a digital strategy (Mark Goldberg offers a similar perspective). Once again, all that is left is missing is the official announcement from Industry Minister James Moore. So what will the Canadian digital strategy contain? Based on this budget, it would seem to include:
Connectivity and Access: The government has set a target of "near-universal" access to broadband (which it is defining as 5 Mbps) within five years. That is consistent with the CRTC's target from 2011, but at a far slower pace, since the Commission talked about universal access by the end of 2015, not 2019. In addition to broadband access, the government is continuing support for computers in schools and embracing regulation of wireless services in an effort to address ongoing concerns (including those of the Competition Bureau) about the state of competition. This includes previously announced wholesale wireless roaming regulation, stronger enforcement powers, more spectrum auctions, tower sharing, and foreign investment changes.
In sum, the good news is that there is finally a government target for universal broadband access, some money to finish the job, and a commitment to address wireless competition concerns. The bad news is that a 5 Mbps goal by 2019 is too slow. By comparison, the Digital Agenda for Europe sets a target of 30 Mbps by 2020 and Australia has targeted 100 Mbps by 2016.
Intellectual Property: The government has already passed copyright reform and will soon also pass Bill C-8, the anti-counterfeiting bill that includes major reforms to Canadian trademark law. It recently tabled five intellectual property treaties that focus on the administration of intellectual property rights. The budget confirms the intent to pass the amendments needed to ratify or accede to those treaties. In addition, it will reform plant breeders rights, another form of IP. All of the latest IP reforms are being driven by trade agreements as these are required reforms for the Canada - European Union Trade Agreement.
Online Commerce: Electronic commerce issues often fall within provincial jurisdiction (for example, online contracting), but the government seems to have identified several areas where it can play a role. The anti-spam legislation that takes effect later this year is the most obvious policy intervention, but the budget contains two more. First, the government has launched a consultation (deadline in 120 days) on the collection of sales tax on e-commerce transactions. It asks:
the Government is inviting input from stakeholders on what actions the Government should take to ensure the effective collection of sales tax on e-commerce sales to residents of Canada by foreign-based vendors. For example, should the Government adopt the approach taken in some other countries (such as in South Africa and the European Union) and require foreign-based vendors to register with the Canada Revenue Agency and charge the Goods and Services Tax/Harmonized Sales Tax (GST/HST) if they make e-commerce sales to residents of Canada?
Second, the government says it plans to introduce anti-money laundering and anti-terrorist financing regulations for virtual currencies such as Bitcoin. The budget cites a 2013 Senate report for support for the move, though that report does not reference virtual currencies. There have been some efforts elsewhere to address money laundering concerns with online currencies, but some remain skeptical over whether the concern is warranted.
The government may have also encouraged the Competition Bureau to flex its muscles on online commerce issues, leading to the recent e-books settlement and the greater cooperation between the CRTC and the Bureau.
Content: The budget includes a couple of digital items involving online content with money allocated for the Virtual Museum of Canada and Online Works of Reference, which includes The Canadian Encyclopedia/Encyclopedia of Music in Canada and The Dictionary of Canadian Biography. Unfortunately, a serious commitment to digitization is still absent. I suspect that the government will point to many earlier initiatives - changes to the Canada Media Fund (including major funding several years ago) and the IP reforms - as evidence of its support for online content. The other important element of government policy is how Canadians access content, with the government's commitment to a pick-and-pay model for television broadcasting and its likely opposition to regulation of Internet video providers focusing on the access side of the equation.
Skills Development: Every budget includes money for skills development and this one is no different. While there are no references to specific digital skills development, training programs, research funding, and other support can be easily brought into the digital agenda umbrella.
Government as a Model User: Given the inaccessibility of the budget website yesterday, the government still has plenty of room to improve in holding itself out as a model user. Yet the budget also includes key elements here: funding for an Open Data Institute and emphasis of web-based services (particularly for veterans) provide examples that would fall within the digital strategy. Indeed, open data has made real progress in recent years with more data sets available and the creation of a non-commercial open licence for government works.
The actual Canadian digital strategy may not look identical to this - privacy and security did not fall within the budget but would presumably be part of a strategy - but there is enough in this budget to provide observers with a good guess about where things seem to be headed.
I was recently The Struggle for Canadian Copyright: Imperialism to Internationalism, 1842-1971. The podcast, available here, is part of the New Books in Communications series interviewing authors about their work. Other podcasts include Robert Darnton speaking on the Future of Libraries, Melissa Aronczyk on Branding the Nation, and Jonathan Sterne on MP3: The Meaning of a Format, among others.
interviewed by Jeff Pooley on her book
Posted by Susan Molinari, VP Public Policy
The revelations about government surveillance practices—both in the U.S. and globally—over the past eight months have sparked a serious and overdue debate about the nature and scope of existing laws and programs. Today, many organizations and companies are participating in “The Day We Fight Back,” a series of events and awareness campaigns highlighting the urgent need for surveillance reform around the world.
Google recognizes the very real threats that the U.S. and other countries face, but we strongly believe that government surveillance programs should operate under a legal framework that is rule-bound, narrowly tailored, transparent, and subject to oversight.
In December, along with other technology companies, we unveiled a set of government surveillance reform principles that address many of the recent concerns around government surveillance. In Congress, Representative Sensenbrenner (R-Wis.) and Senator Leahy (D-Vt.) have introduced legislation—the USA Freedom Act—that would codify many of these principles. As they both noted when introducing this bill, government surveillance programs “have come at a high cost to Americans’ privacy rights, business interests and standing in the international community.”
The USA Freedom Act reflects some of the key recommendations made by the President’s Review Group on Intelligence Communications and Technologies as well as the Privacy and Civil Liberties Oversight Board. We support this legislation and we urge Congress to enact it into law.
But there’s more that can be done as we consider appropriate reforms to government surveillance laws. Congress should update the Electronic Communications Privacy Act (ECPA) to require governmental entities to obtain a warrant before they can compel online companies to disclose the content of users’ communications. Legislation introduced by Senators Leahy and Lee (R-Utah) in the Senate and Representatives Yoder (R-Kan.), Graves (R-Ga.), and Polis (D-Colo.) in the House would achieve that goal. More than 100 companies, trade associations, and consumer groups—and more than 100,000 Americans—have signed on to support this important update to ECPA, which no longer reflects users’ reasonable expectations of privacy.
We will continue to press Congress to adopt these important measures, which would represent significant progress in the broader effort to reform government surveillance laws. If you want to receive updates from us, please visit google.com/takeaction and sign up.
Over the past eight months, the steady stream of Snowden leaks have revealed the existence of a massive surveillance infrastructure intent on capturing seemingly all communications, including metadata on phone calls, Internet searches, and other online activity. While much of the surveillance originates with the U.S. NSA, the leaks suggest that Canada plays a key role in many initiatives and that Canadians' data is undoubtedly captured in the process. Indeed, in recent months, we've learned about:
I recently posted on a discussion I had last summer with a senior government official on the Snowden leaks. The official remarked that in the wake of the Snowden revelations the political risk did not lie with surveillance itself, since most Canadians basically trusted their government and intelligence agencies to avoid misuse. Rather, the real concern was with being caught lying about the surveillance activities. This person was of the view that Canadians would accept surveillance, but they would not accept lying about surveillance programs.
Today is the day that Canadians can send a message that this official is wrong. The Day We Fight Back Against Mass Surveillance is a global effort to galvanize people around the world to speak out against ubiquitous surveillance. Canadians can learn more here, but the key ask is to contact your Member of Parliament. If you are concerned with widespread surveillance in Canada, take a couple of moments to send an email or letter (no stamp required) to your MP and let them know how you feel (alternatively, you can fill out the form at this site). In addition, you can sign onto a global petition supported by hundreds of groups around the world.
I've written about the need for changes here and many others - including Interim Privacy Commissioner Chantal Bernier, Kent Roach, Wesley Wark, Ron Diebert, David Fraser, Ontario Privacy Commissioner Ann Cavoukian and Avner Levin, Craig Forcese, and Lisa Austin - have highlighted other potential changes. There are no shortage of ideas for reform. What we need now are Canadians to speak out to demand an open review and reform of Canadian surveillance law and policy.
The Toronto Star reports on a leaked Conservative party document setting out the strategy for the 2015 election. Of particular note is the party's plans to engage in widespread social media monitoring that seek to identify users based on social media activity for follow-up and engagement. The Star reports:
the document showed how the party can mine information on ânon-CPC brandedâ websites, using a friendly media "Illustration." The slide show points to radio station CFRA's Lowell Green, whom it identifies as an "Ottawa based conservative leaning talk show host." It says a "recent Facebook posting - non-issue" received 55 Facebook "likes." The document says the party was able to "positively identify 38 constituents (70 per cent ID rate)." Of those 38, it said five "are current members/donors." The result, it said: "33 Canadians who would be a 'warm contact' for engagement."
Note that these uses appear to run counter to the Privacy Commissioner of Canada's recommendation on using social media information in her recommendations on privacy protection and intelligence. Those recommendations included:
Develop specific guidelines for collection, use and dissemination of intelligence products built upon use of online sources and social network sites. The position of the OPC is that the public availability of personal information on the Internet does not render personal information non-personal. It is our view that departments should not access personal information on social media sites unless they can demonstrate a direct correlation to legitimate government business.
While the Conservative party usage is not the same as CSEC, the same concerns may well apply.
The CBC is reporting that the 2014 federal budget, which is scheduled to be tabled tomorrow, will feature money to "extend or improve high-speed Internet access to 280,000 households and businesses in rural and remote areas." A new commitment to broadband access, which was promised in last fall's speech from the throne, is certainly welcome. It is also the latest in a long line of commitments for public funding to support to broadband connectivity in rural regions in Canada. Industry Canada claims that the Broadband Canada Program, which ran from 2009 to 2012, provided broadband access to 218,000 Canadian households that previously did not have it (full list of funded projects here).
Given the ongoing digital divide in Canada - there are still many Canadians without access to broadband in their homes - this is a welcome development. Yet spending money on rural broadband initiatives is only part of the solution. In many instances, the absence of broadband in the home is not a function of access, but rather affordability. Statistics Canada reports that Internet use among the richer half of the country is actually over 90 per cent with the top quartile of household income at 94.5 per cent and the second quartile at 90.2 per cent. Internet use among the bottom quartile of Canadians stands at only 62.5 per cent (the third quartile is 77.8 per cent). Governments at all levels must be thinking about both access and affordability.
The longstanding debate over the state of wireless services in Canada has veered across many issues - pricing, roaming fees, locked devices, new entrants, and foreign investment to name a few. At the heart of all of these questions is a single issue: is the current Canadian wireless market competitive?
My weekly technology law column (Toronto Star version, homepage version) notes the competitiveness of the Canadian market is a foundational question since the answer has huge implications for legislative and regulatory policy. If the market is competitive, regulators (namely the CRTC) can reasonably adopt a "hands-off" approach, confident that competitive forces will result in fair prices and consumer choice. If it is not competitive, standing on the sidelines is not option, thereby pressuring government and the CRTC to promote more competition and to implement measures to prevent the established players from abusing their advantageous position.
The importance of the question has not been lost on the incumbent wireless providers. Responding to public and government concerns about the state of competition, Bell recently told the CRTC "the wireless market in Canada remains robustly competitive." Similarly, Telus maintains the "claim that Canada's wireless market is uncompetitive is, frankly, not just woefully misleading, it is an insult to Telus' team members." To support their position, the incumbent providers have relied on a University of Calgary study that concluded "there is no competition problem."
Yet if there is a neutral arbiter on the state of wireless competition in Canada, it would be the Competition Bureau of Canada, an independent law enforcement agency responsible for ensuring a competitive marketplace. Indeed, in a recent submission to the CRTC, Bell cites to a 2005 Competition Bureau decision to support its contention that the market remains competitive.
Last month, the Competition Bureau offered its latest opinion on the wireless competitive environment and it wasn't even close: it believes the Canadian market is not competitive and regulation is needed.
The Bureau's opinion came in a submission to the CRTC on domestic roaming regulation. Both the Commission and the government have indicated they plan to pursue regulation to guard against abusive wholesale pricing of domestic roaming. The issue may be invisible to consumers, but it is a major concern for regional and smaller wireless providers, who rely on the national incumbents' networks for access in markets they do not serve. Those providers claim that the incumbents are charging unfair prices, thereby limiting their ability to compete.
While the national providers have been dismissive of the need for regulation (Bell has argued that entire process is "without legal foundation"), the Bureau examined the issue and concluded that companies like Bell can use roaming to shield themselves from competition, noting that "making it more costly for entrants to access incumbent networks through roaming agreements is one way for an incumbent service provider to relax competitive pressure."
If the market was competitive, this would not be a concern. However, the Bureau concluded that the incumbents enjoy "market power", which it defines as "the ability of a firm or firms to profitably maintain prices above competitive levels (or similarly restrict non-price dimensions of competition) for a significant period of time." Moreover, it rejected the University of Calgary study, concluding that it "does not provide adequate support for Bell's claims that mobile wireless markets in Canada are competitive."
Given its findings, the Bureau urged the CRTC to establish regulatory safeguards on domestic roaming pricing. New domestic roaming regulations may be the initial takeaway, but the Bureau's finding could have far bigger implications. Not only does it validate federal industry minister James Moore's insistence on the need for more wireless competition, but it also opens the door to examining other potential competitive barriers, including exclusive content deals, international roaming arrangements, and access to new smartphones.
As the Canadian education community continues to shift away from the Access Copyright licence, relying instead on a combination of site licenses for materials, open access, fair dealing, and individual transactional licences, U.S. publishers are now urging the U.S. government to pressure the Canadian government to take action. The IIPA, the leading U.S. copyright lobby group, filed its submission today as part of the Special 301 process, a U.S. review of foreign intellectual property laws.
This year's IIPA submission devotes several paragraphs to educational licensing, lamenting the shift away from Access Copyright and claiming that it is U.S. publishers that are being hurt in the process. According to the IIPA:
as soon as the new Act came into force, virtually all K-12 school boards across Canada cancelled their licenses with Access Copyright. Anticipated 2013 annual licensing revenue of at least C$12 million to right holders and authors - much of it destined for U.S. publishers, which enjoy a large market share in the educational sector - evaporated.
The IIPA urges the U.S. government to "engage" with Canadian authorities in the hope that they will tell Canadian educational institutions to pay Access Copyright. While that isn't likely to happen - the government rejected Access Copyright's demands for limitations on the expansion of fair dealing - the IIPA submission is notable for the claim that a large share of the Access Copyright educational licensing revenue was headed not for Canadian authors and publishers, but rather to the United States.
The Canadian Internet Registration Authority, the organization that manages the dot-ca domain, has unveiled an exciting new initiative that will deliver a million dollars toward community projects, research, and other related activities (full disclosure: I am a member of the CIRA board and chair of the committee that will review applications). The typical grant is expected to be worth $25,000 - $50,000, though grants can climb as high as $100,000. Funds are available for community groups, not-for-profit organizations, academic institutions, and associated researchers. The application period opened earlier this week and will run until February 28th. Application guidelines can be found here and the application form is here. This is a great initiative that holds the promise of injecting much needed support into Canadian Internet initiatives. Take a closer look and apply today!
Why DRM is the root of all evil
In my latest Guardian column, What happens with digital rights management in the real world?, I explain why the most important fact about DRM is how it relates to security and disclosure, and not how it relates to fair use and copyright. Most importantly, I propose a shortcut through DRM reform, through a carefully designed legal test-case.
The DMCA is a long and complex instrument, but what I'm talking about here is section 1201: the notorious "anti-circumvention" provisions. They make it illegal to circumvent an "effective means of access control" that restricts a copyrighted work. The companies that make DRM and the courts have interpreted this very broadly, enjoining people from publishing information about vulnerabilities in DRM, from publishing the secret keys hidden in the DRM, from publishing instructions for getting around the DRM – basically, anything that could conceivably give aid and comfort to someone who wanted to do something that the manufacturer or the copyright holder forbade.
Significantly, in 2000, a US appeals court found (in Universal City Studios, Inc v Reimerdes) that breaking DRM was illegal, even if you were trying to do something that would otherwise be legal. In other words, if your ebook has a restriction that stops you reading it on Wednesdays, you can't break that restriction, even if it would be otherwise legal to read the book on Wednesdays.
In the USA, the First Amendment of the Constitution gives broad protection to free expression, and prohibits government from making laws that abridge Americans' free speech rights. Here, the Reimerdes case set another bad precedent: it moved computer code from the realm of protected expression into a kind of grey-zone where it may or may not be protected.
In 1997's Bernstein v United States, another US appeals court found that code was protected expression. Bernstein was a turning point in the history of computers and the law: it concerned itself with a UC Berkeley mathematician named Daniel Bernstein who challenged the American prohibition on producing cryptographic tools that could scramble messages with such efficiency that the police could not unscramble them. The US National Security Agency (NSA) called such programs "munitions" and severely restricted their use and publication. Bernstein published his encryption programs on the internet, and successfully defended his right to do so by citing the First Amendment. When the appellate court agreed, the NSA's ability to control civilian use of strong cryptography was destroyed. Ever since, our computers have had the power to keep secrets that none may extract except with our permission – that's why the NSA and GCHQ's secret anti-security initiatives, Bullrun and Edgehill, targetted vulnerabilities in operating systems, programs, and hardware. They couldn't defeat the maths (they also tried to subvert the maths, getting the US National Institute for Standards in Technology to adopt a weak algorithm for producing random numbers).
Hat tip to Ernesto at TorrentFreak:
In Killer Joe Nevada v. Does 1-39, and four similar BitTorrent downloading cases, in the Southern District of Iowa, the cases were dismissed and severed as to all defendants other than Doe 1, by District Judge Stephanie M. Rose. Doe #18 in one of the cases had moved to sever and dismiss. The court granted that Doe's motion, and sua sponte severed and dismissed in the other cases as well.
Last summer, I discussed the Snowden leaks and concerns about Canadian surveillance activities with a senior government official. The official remarked that in the wake of the Snowden revelations the political risk did not lie with surveillance itself, since most Canadians basically trusted their government and intelligence agencies to avoid misuse (the steady stream of Snowden leaks and Canada's increasingly apparent role may have changed this analysis). Rather, the real concern was with being caught lying about the surveillance activities. This person was of the view that Canadians would accept surveillance, but they would not accept lying about surveillance programs.
Those comments came to mind over the past week with the latest revelations about CSEC metadata surveillance. While the story has been characterized as an airport wifi surveillance issue, it is clear that the airport wifi angle misses the real concern. The leaked document and subsequent explanations reveal an attempt to identify travel patterns and geographic locations using user ID data over a two week period provided by a Canadian source (CSEC referred to this as metadata in the Senate committee hearing yesterday) along with a database of geo-locations of IP addresses supplied by Quova (I once served as an advisor to Quova). By identifying airport wifi IP addresses along with broader usage data and geo-identifying information, CSEC hopes to be able to identify locational movements of individual users. Bruce Schneier provides a helpful review of the likely intent of the program.
While some argued the program tracks Canadians and is therefore illegal (citing Charter violations and activities beyond the CSEC mandate), the Justice Minister maintains the program is legal and CSEC has defended the program in a release the day after the story broke and again at the Senate committee yesterday. Moreover, the CSEC Commissioner has posted a somewhat cryptic statement that emphasizes the independence of the review process. Ryan Gallagher has responded to those statements with a post arguing the denials are hollow.
Yesterday's Senate committee hearing did provide further insight into the program. CSEC painted the new revelations as a simple application of data it is already collecting. Noting that there have been ministerial approvals for metadata collection since 2005, CSEC suggests that this is effectively an exercise to determine whether the metadata can be used in conjunction with other data to determine location. It steadfastly defended its approach, seeking to distinguish between metadata (data about data) and content. Further, it noted that metadata is deleted according to retention limits contained in the ministerial approval (though no one raised the fact that those retention periods are secret).
I'm left with four takeaways from the past week.
First, CSEC's surveillance activities of Internet communications in Canada are far more extensive than previously realized. Its trove of metadata - presumably obtained with the cooperation of Canada's major telecom companies - provides enormous insight into the communications habits and activities of millions of Canadians. The use of metadata has been the subject of some concern from the CSEC Commissioner, yet the full scope of activities remain largely secret. Moreover, the ministerial directive on metadata appears to be so broad that it enables widespread tracking and surveillance as CESC is able to mine the data for a myriad of purposes.
Given those capabilities, assurances that metadata surveillance is less invasive than tracking the content of telephone calls or Internet usage ring hollow. Metadata can include geo-location information, call duration, call participants, and Internet protocol addresses. While officials suggest that this information is not sensitive, there are many studies that have concluded otherwise. These studies have found that metadata alone can be used to identify specific persons, reveal locational data, or even disclose important medical and business information. I discuss the issues associated with metadata - including Supreme Court of Canada and Bill C-13 concerns - here. For CSEC to argue that it otherwise does not track Canadians because it only accesses metadata, is misleading at best.
Second, the geographical limits of CSEC - its framework requires that foreign intelligence activities "not be directed at Canadians or any person in Canada" - are being completely blurred. The commingling of data through integrated communications networks and "borderless" Internet services residing on servers around the world suggests that distinguishing between Canadian and foreign data seems like an outdated and increasingly impossible task. CSEC's repeated references to the "global Internet" as opposed to the Internet might well be an attempt to emphasize the foreign component of largely Canadian-based activities. Indeed, the fact that CSEC focuses on Canadian-based metadata (CSEC was asked yesterday why it doesn't collect data from other countries instead) ensures that most of its metadata will include a Canadian component, thereby increasing the likelihood of Canadian surveillance.
Third, the government (including Justice and CSEC) are confident that the programs are legal under the current CSEC mandate. The metadata program operates under ministerial approval, which CSEC would argue extends to uses such as the IP location (or airport wifi) tests. Given the fears of being caught lying, it seems unlikely officials would adopt this position without internal legal reviews and advice.
Fourth, fixing the oversight of CSEC won't solve the problem. Better oversight is currently being touted as the solution to the surveillance problem. The Liberals are proposing a new parliamentary committee review committee, the federal privacy commissioner has identified opportunities for better reporting and oversight, and Ontario privacy commissioner Ann Cavoukian has called for improved transparency and accountability.
Reforms to the current oversight system are needed but the recent experience demonstrates why they are not sufficient. The current system would certainly benefit from external reviewers, who might be more aggressive in questioning the scope of CSEC programs and the stretching of its mandate. Yet the far bigger problem lies with the law itself:
Thank you for this opportunity to present before the committee regarding the Trans-Pacific Partnership agreement. I'm Steve Anderson, the executive director of OpenMedia.ca.
Founded in 2008, OpenMedia.ca is a community-based, award-winning civic engagement organization working to safeguard the open Internet. We work to bring citizens' and innovators' voices into the digital policy-making process.
OpenMedia is probably best known for our stop the meter campaign that engaged over half a million Canadians to stop meter billing in Canada focused on telecommunications prices. It was the largest online campaign in Canadian history.
In addition to our civic engagement work, we also regularly participate in policy processes and produce public policy reports and recommendations. Many of our recommendations, in particular regarding telecommunications, have now thankfully been adopted as official government policy.
One of our top concerns at the moment is the IP chapter in the Trans-Pacific Partnership agreement, specifically copyright within the IP chapter.
We're working with hundreds of thousands of people in our own trans-Pacific network of public interest groups and web businesses to push for and encourage a balanced copyright provision in the TPP. We are working, as I said, in our own crowdsource process to develop copyright rules that we feel are more befitting of the 21st century.
Our concern with the TPP is focused on the intellectual property chapter, as I mentioned, and its potential limitations on free expression online, commerce, and access to knowledge.
Over 135,000 people have signed on to a campaign that we've run reflecting these same concerns. These concerns are echoed by Canadians and I have, in a sense, crowdsourced this presentation for you today. I asked Canadians online over the last week to let me know what they think I should say, and I did my best to incorporate their input into this presentation. Throughout the presentation, I'll mention a few direct comments that people sent in to me.
The Canadians I heard from were broadly critical of the TPP and their concerns fell roughly into three main categories: the restriction and even censorship of expression in commerce; concerns about the TPP's implications for personal privacy; and thirdly, what many deem as the secretive, closed, and undemocratic TPP negotiating process.
Starting with the first concern—the implications on expression in commerce—Canada took 10 years, as I'm sure many of you know, to pass our copyright policies in Bill C-11. When I attended a TPP negotiating round in Auckland, I asked our own TPP chief negotiator if she would commit to uploading our copyright law and not overriding it through the TPP process. She refused to make that commitment.
Generally, I don't think Bill C-11 is exactly how I would have written it, but I think it's a reasonable compromise. But if we get into some of the specifics of the TPP that have been unfortunately revealed through leaked documents, I think we can start with digital locks or technological protection mechanisms.
The U.S. proposal in the TPP would increase the penalties for circumvention and restrict the ability for Canada to create new digital lock exceptions.
On the issue of digital locks, a woman online, named Monica, wrote into our process, and I want to convey this to you today. She said that as part of the special needs community, she wants to be able to continue sharing resources with others without fear of sanctions. As a community, they are often isolated, and without the Internet, they would be even more so. So the TPP threatens to limit the flexibility and exceptions on copyright that those with disabilities depend upon in their use of technology.
According to leaked documents, the TPP would also remove our relatively fair, I would say, notice system for dealing with those accused of copyright infringement. Instead, they would create new, costly liabilities for online service providers and ISPs. This increased cost for Internet service providers will result in Canadian consumers paying more for telecom services. As I'm sure you're aware, we pay some of the highest prices in the industrialized world for telecom services, and increasing fees is the last thing Canadians need right now.
The new business costs could knock independent Internet service providers—the smaller players—out of business and remove choice from the telecom marketplace. The liability costs could also add a barrier to entry for online entrepreneurs that are increasingly critical to our economy.
In short, if this U.S.-backed TPP-ISP liability proposal is adopted, it would mark a major step back for the government's commitment to lower telecom prices and improve choices.
Just to make this a little more concrete, on a daily basis countless photographs and other content are shared through new innovative services that are fundamental to our thriving economy. These services are also threatened by these new liabilities and regulations proposed in the TPP. One example of one online service provider is Vancouver-based HootSuite, which in August raised over $165 million from investors, marking the largest private placement for a privately held tech company in Canada. Another example is Ontario-based e-commerce platform Shopify, which passed the $1 billion evaluation mark this December; and then let's not forget Toronto-based Tucows Inc., which is the world's largest publicly traded domain name registrar.
These companies are threatened by this new liability that will be in the TPP, if it goes through as the U.S. is hoping it will. Do we really want to threaten to burden these budding businesses with new costs and regulations? Do we want to create a new cost that prevents the next HootSuite or Shopify from starting in the first place? Furthermore, as everything from our cars to our fridges are connected to the Internet, these proposed liabilities and costs fundamentally threaten to create red tape for a dizzying array of services. The new liabilities could be particularly damaging to the emerging Internet-fuelled sharing economy that is currently driving value across a range of sectors.
According to the Information Technology Association of Canada, the national Internet economy accounted for 3% of Canada's gross domestic product in 2010, compared to an average of 4.7% in the United States. It's estimated that ratio will become more out of balance if we don't take action to invest in our digital economy. We simply cannot afford to add new red tape and costly regulations to online businesses and commerce, while increasing telecom costs for Canadians.
Increasing ISP liabilities is also a threat to individual expression online. According to IP experts the TPP proposals could result in ISPs taking down and even blocking content based on accusations. In short, the TPP represents a regime that could amount to widespread Internet censorship. One commentator online had this to say on the topic:
Censorship of any kind is undemocratic. It has no business in our society and we should actively DISTANCE ourselves from such heavy-handed policies.
Here is the fundamental point. There's no way that increasing online liabilities as proposed in the TPP is in the national interest of Canada. Old media conglomerates in Hollywood have no problem pushing for policies that will hold back the Canadian economy or free expression, but legislators surely should.
Beyond new service liabilities, there's also concern about the TPP criminalizing common activities that involve small-scale and often accidental copyright infringement, such as sharing a recipe online. According to intellectual property experts and Professor Sean Flynn, the U.S. TPP proposal would severely increase penalties for copyright infringement even when done without commercial intent. He notes that we could even be looking at controversial copyright cases in the U.S. where teenagers and their mothers have been required to pay big record companies hundreds of thousands of dollars for copying music for personal use.
Canadian copyright law now includes an important distinction with respect to statutory damages as it features a cap of $5,000 for non-commercial infringement.
As it stands, we already have copyright trolls trying to use copyright litigation as a business model. Under the TPP, damages could skyrocket. We could see many more of those court cases and we could see Canadians much more timid and fearful online.
Here's a reading of a recent Guardian column, What does David Cameron's Great Firewall look like? which debunks the UK government's stupid arguments for its national anti-porn firewall:
David Cameron's attempt to create a Made-in-Britain version of Iran's "Halal Internet" is the worst of both worlds for parents like me. Kids are prevented from seeing things that they need to access – sites about sexual health, for example – and I still have to monitor my daughter all the time when she uses the net (or teach her how to cope with seeing things no kid should see) because the filter won't stop her from accessing the bad stuff.
And for parents who don't understand that filters are bunkum, the situation is much worse. It's one thing to know that there are risks to your kid from the internet. But parents who rely on the filter are living in bubble of false security. There's nothing more deadly than a false sense of security: If you know your car is having brake problems, you can compensate by driving with extra care, increasing your following distance, and so on. If you falsely believe your brakes to be in good running order, you're liable to find out the hard way that they aren't (if you survive, you can thank Bruce Schneier for that apt and useful analogy).
Mastering by John Taylor Williams: email@example.com
John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."
The whole list is just a fantastic signposting of the best the field has to offer.
Other key sites
Digital Copyright Canada BLOG