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Too Little, Too Late?: Access Copyright Finally Acknowledges the Reduced Value of Its Licence

Michael Geist Law RSS Feed - Wed, 2014/12/10 - 10:27

Access Copyright announced a shift in its licensing approach for universities and colleges yesterday, unveiling what it described as “new market-focused services.” Access Copyright CEO Roanie Levy is quoted as saying “we recognize the advances many institutions have made on content dissemination and the centralized management of copyright. We hear you. We are changing.” Indeed, the copyright collective has changed its tune in some important ways.

Less than three years ago, Access Copyright believed that institutions simply could not opt-out of its licence, claiming that an opt-out would amount to “an absolute ban on all copying” since the only possible way to legally copy materials was to pay the collective. Over the past three years, Access Copyright has been proven wrong. The Supreme Court of Canada dismissed all of its key legal arguments in a massive defeat, the government expanded fair dealing with the inclusion of education, universities opted-out of the Access Copyright licence in droves, and dozens adopted fair dealing policies that called into question whether there was much value in the licence at all.

While Access Copyright is still suing York University (more about that below), the collective appears to recognize that the education sector has alternatives, including the enormous expenditures on site licences, open access publishing, fair dealing, public domain works, and individual licences for works not otherwise available. In other words, Access Copyright is an option, not a requirement, and the collective must prove value that extends beyond extolling the size of its repertoire. Rather, it must demonstrate that it offers value for money in an environment where the Supreme Court has emphasized the importance of users’ rights and adopted a liberal, flexible approach to fair dealing.

Access Copyright’s new approach appears to focus on two things: lower prices to reflect the reduced value of its licence and more options for universities and colleges. While the current model licence costs $26 per full time student at universities, its new “Premium” service drops the fee to $15 per student on a three-year commitment. That licence covers paper and digital copying of up to 20% of a work, which is greater than the 10% standard established in most fair dealing guidelines. Alternatively, Access Copyright is also offering a “Choice” service that costs $5 per student. It only covers handouts and email attachments. Coursepacks and digital uploads are charged at 12 cents per page, which is a 20% increase over the prior per-page fee set some years ago. Access Copyright says the “Choice” package is designed for universities that have centralized their copyright management.  In other words, those that have already opted-out of Access Copyright and might want back in.

Why the lower prices? Access Copyright finally admits that fair dealing should be more directly factored into its pricing:

The new rates are intended to reflect market uncertainty around fair dealing in education. As
such, they represent a sincere attempt to continue working with the education sector as we await greater clarity on fair dealing.

So will universities jump at the new offerings or is it too little, too late?

The “Premium” service is clearly targeting universities that currently operate under the Access Copyright licence. That licence will be expiring for many this summer (those who signed three year deals days before the Supreme Court ruling in 2012) and most were expected to stop using the collective. The new $15 price tag, which not-so-coincidentally starts just as the old licences expire, may prove attractive to those institutions. Indeed, fair dealing is not free as it costs real dollars to manage the system. One institution that I spoke with during the period when many were opting out (not my own school), estimated the cost at $12 per student. If that is accurate – and if the institution has not invested heavily in copyright management – the Premium service will likely find a few takers.  However, this new offer may come too late as many institutions will have prepared opting out and already budgeted for copyright management services.

The “Choice” service is targeting those that currently operate without an Access Copyright licence, so the question will be whether it provides enough value to justify the $5 annual fee. At the moment, covering handouts and email attachment is unlikely to viewed as providing much value. Those copies typically are shorter in nature and more likely to fall under the fair dealing guidelines. The value might come in providing certainty on transactional licences by effectively creating a per-page cost for work that would presumably only kick-in once fair dealing no longer applies – ie. for copying between 10 – 20% of a work. This isn’t a particularly cheap alternative, but it is convenient. That said, those universities in the Choice category will have already invested in copyright management and may not want to add new costs for relatively limited value.

All of this suggests that Access Copyright is gradually lowering its prices, but it may not  succeed in significantly altering the market for its licences since its best case scenario is merely to keep some universities within the fold (admittedly who were likely to leave) rather than bring back those that left several years ago. The Premium service comes closer to a rate that may find a market, but the Choice service may ultimately need to shift to a transaction-only model under which Access Copyright makes it easy to licence works not covered by fair dealing. By effectively charging a $5 administrative fee, it isn’t there yet.

Moreover, there is one further consideration that universities should factor into any decision: the York University litigation. For many years, the universities effectively funded Access Copyright’s litigation and Copyright Board costs, with the collective setting aside millions to pay for legal and lobbying fees. To return to that state of affairs while litigation is ongoing makes little sense. Before universities once again start sending millions to Access Copyright, they might demand that it stop suing them first.

The post Too Little, Too Late?: Access Copyright Finally Acknowledges the Reduced Value of Its Licence appeared first on Michael Geist.

Information Doesn’t Want to Be Free Audiobook

Information Doesn't Want to Be Free, read by Wil Wheaton
With introductions by Neil Gaiman and Amanda Palmer.

In sharply argued, fast-moving chapters, Cory Doctorow’s Information Doesn’t Want to Be Free takes on the state of copyright and creative success in the digital age. Can small artists still thrive in the Internet era? Can giant record labels avoid alienating their audiences? This is a book about the pitfalls and the opportunities that creative industries (and individuals) are confronting today — about how the old models have failed or found new footing, and about what might soon replace them. An essential read for anyone with a stake in the future of the arts, Information Doesn’t Want to Be Free offers a vivid guide to the ways creativity and the Internet interact today, and to what might be coming next.

 

Why Canada’s Communication Policy Misses the Forest for the Trees

Michael Geist Law RSS Feed - Tue, 2014/12/09 - 12:36

The Canadian Radio-television and Telecommunications Commission wrapped up its third major hearing in as many months last week, focusing on the wholesale market for broadband Internet services. Coming on the heels of the earlier hearings on broadcast television regulation (the “TalkTV” hearing that was highlighted by a showdown with Netflix) and wholesale wireless services, the proceedings followed a familiar script.

The incumbent providers urged the Commission to resist regulating access, claiming a competitive market exists with few barriers to new competitors. Meanwhile, independent Internet providers pointed to their relatively small share of the current broadband market and warned that failure to mandate access for faster fibre connections to the home would effectively eliminate future competition as Canadians gravitate to services offering faster speeds.

While it will take some time for the CRTC to issue its decisions in all three cases (the broadcast decision is expected before the end of the year), it is not too early to declare the entire system broken. The CRTC – Netflix battle prompted many to conclude that the Commission was a relic of the past, unable to adapt to the disruptions facilitated by the Internet. Yet the Commission’s difficulty dealing with the fast-moving changes throughout the communications sector is chiefly the result of an outdated regulatory structure that misses the proverbial forest for the trees.

The past three months has essentially involved the examination of bite-sized pieces of Canada’s communication environment without really digging into the whole. The conventional regulatory approach may dictate that the CRTC consider broadcast, wireless, and broadband services separately, but the silo approach makes little sense when both the technologies and the dominant industry players overlap every step of the way.

Canada’s communications market now stands as one of the most vertically integrated in the world. The same companies wear different hats before the Commission as they alternately appear as dominant broadcasters, broadcast distributors, wireless companies, and broadband Internet providers. While the regulatory world treats each market differently, companies such as Bell and Rogers strategize about the whole, not the parts, and are able to use the piecemeal approach to their competitive advantage.

The occasional witness raised this concern, urging the CRTC to consider issues that fall outside the conventional scope of the broadcast or telecom silos. For example, during the broadcast hearing, several emphasized that since a growing number of Canadians access “broadcast” through the Internet or wireless devices, the issue was really one of telecom regulation, not broadcast.

Similarly, witnesses at the broadband Internet hearing noted that issues of regulated access were fundamentally about delivering broadcast content or third party applications, not about specific speeds or pricing. As the Commission delved into technical questions over wholesale costs of Internet services that would be incomprehensible to most Canadians, discussion about the implications for new services from a monopoly-like access to the home for fast Internet was largely absent.

Solving these bigger issues may indeed be beyond the ability of the CRTC. There is a growing sense that the twin governing statutes – the Broadcasting Act and the Telecommunications Act – should be reformed into a single Communications Act that better reflects today’s Internet environment. However, legislative reform is the responsibility of the government, not the regulator, and Industry Minister James Moore has shown little interest in tackling the issue.

Similarly, the calls for “structural separation”, which would involve breaking up the larger companies into separate content and carriage companies are growing louder, but CRTC Chair Jean-Pierre Blais noted that those steps are also better suited to elected officials.

That leaves the Commission with system that largely ignores what is obvious to millions of Canadians who receive monthly bills that lump together everything from wireless services to broadband Internet to broadcast television. Communications now comes in a single bill and represents one very large policy forest that cannot be effectively addressed one tree at a time.

The post Why Canada’s Communication Policy Misses the Forest for the Trees appeared first on Michael Geist.

Why Canada’s Communication Policy Misses the Forest for the Trees

Michael Geist Law RSS Feed - Tue, 2014/12/09 - 12:15

The Canadian Radio-television and Telecommunications Commission wrapped up its third major hearing in as many months this week, focusing on the wholesale market for broadband Internet services. Coming on the heels of the earlier hearings on broadcast television regulation (the “TalkTV” hearing that was highlighted by a showdown with Netflix) and wholesale wireless services, the proceedings followed a familiar script.

The incumbent providers urged the Commission to resist regulating access, claiming a competitive market exists with few barriers to new competitors. Meanwhile, independent Internet providers pointed to their relatively small share of the current broadband market and warned that failure to mandate access for faster fibre connections to the home would effectively eliminate future competition as Canadians gravitate to services offering faster speeds.

While it will take some time for the CRTC to issue its decisions in all three cases (the broadcast decision is expected before the end of the year), it is not too early to declare the entire system broken. The CRTC – Netflix battle prompted many to conclude that the Commission was a relic of the past, unable to adapt to the disruptions facilitated by the Internet. Yet the Commission’s difficulty dealing with the fast-moving changes throughout the communications sector is chiefly the result of an outdated regulatory structure that misses the proverbial forest for the trees.

The past three months has essentially involved the examination of bite-sized pieces of Canada’s communication environment without really digging into the whole. The conventional regulatory approach may dictate that the CRTC consider broadcast, wireless, and broadband services separately, but the silo approach makes little sense when both the technologies and the dominant industry players overlap every step of the way.

Canada’s communications market now stands as one of the most vertically integrated in the world. The same companies wear different hats before the Commission as they alternately appear as dominant broadcasters, broadcast distributors, wireless companies, and broadband Internet providers. While the regulatory world treats each market differently, companies such as Bell and Rogers strategize about the whole, not the parts, and are able to use the piecemeal approach to their competitive advantage.

The occasional witness raised this concern, urging the CRTC to consider issues that fall outside the conventional scope of the broadcast or telecom silos. For example, during the broadcast hearing, several emphasized that since a growing number of Canadians access “broadcast” through the Internet or wireless devices, the issue was really one of telecom regulation, not broadcast.

Similarly, witnesses at the broadband Internet hearing noted that issues of regulated access were fundamentally about delivering broadcast content or third party applications, not about specific speeds or pricing. As the Commission delved into technical questions over wholesale costs of Internet services that would be incomprehensible to most Canadians, discussion about the implications for new services from a monopoly-like access to the home for fast Internet was largely absent.

Solving these bigger issues may indeed be beyond the ability of the CRTC. There is a growing sense that the twin governing statutes – the Broadcasting Act and the Telecommunications Act – should be reformed into a single Communications Act that better reflects today’s Internet environment. However, legislative reform is the responsibility of the government, not the regulator, and Industry Minister James Moore has shown little interest in tackling the issue.

Similarly, the calls for “structural separation”, which would involve breaking up the larger companies into separate content and carriage companies are growing louder, but CRTC Chair Jean-Pierre Blais noted that those steps are also better suited to elected officials.

That leaves the Commission with system that largely ignores what is obvious to millions of Canadians who receive monthly bills that lump together everything from wireless services to broadband Internet to broadcast television. Communications now comes in a single bill and represents one very large policy forest that cannot be effectively addressed one tree at a time.

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

The post Why Canada’s Communication Policy Misses the Forest for the Trees appeared first on Michael Geist.

SFLC and FSF File Brief with Supreme Court Arguing Against Hearing of Google v Oracle

SFLC News Releases - Mon, 2014/12/08 - 12:58
SFLC and FSF File Brief with Supreme Court Arguing Against Hearing of Google v Oracle

Expert Panel Report: A New Governance Model for Communications Security?

Freedom to Tinker - Fri, 2014/12/05 - 07:30
Today, the vulnerable state of electronic communications security dominates headlines across the globe, while surveillance, money and power increasingly permeate the ‘cybersecurity’ policy arena. With the stakes so high, how should communications security be regulated? Deirdre Mulligan (UC Berkeley), Ashkan Soltani (independent, Washington Post), Ian Brown (Oxford) and Michel van Eeten (TU Delft) weighed in on […]

CASL 2.0: The Computer Program Provisions (Part 2)

IPBlog (Calgary) - Thu, 2014/12/04 - 08:00
- By Richard Stobbe In Part 1 we looked at some basic concepts. In Part 2, we look at "enhanced disclosure" requirements. If the computer program that is to be installed performs one or more of the functions listed below, the person who seeks express consent must disclose additional information. This disclosure must ...

Alberta Privacy Law Update: PIPA on Death’s Door

IPBlog (Calgary) - Wed, 2014/12/03 - 16:00
By Richard Stobbe About a year ago on November 15, 2013, Alberta's Personal Information Protection Act (PIPA) was declared invalid on constitutional grounds. The Supreme Court of Canada (SCC), in its wisdom, deferred the effect of this order for a 1 year period, to permit the Alberta legislature to revisit and amend the legislation ...

Canada – European Union Data Sharing Agreement Sent to EU Court of Justice for Review

Michael Geist Law RSS Feed - Wed, 2014/12/03 - 10:04

Earlier this year, Canada and the European Union announced that they had reached agreement on sharing airline passenger name record data. The data shared includes names, addresses, and credit card numbers of airline passengers. The agreement was signed in June (video of the signing here), but approval from the European Parliament was required. In light of growing privacy concerns, that approval has proven more difficult to obtain than previously anticipated.

Rather than simply grant approval, the European Parliament has narrowly voted to send the agreement to the European Court of Justice for review to ensure that it is compliant with European law including EU treaties and the European Charter of Rights and Freedoms (the final vote was 383 to 271 with 47 abstentions). The resolution notes that the European Data Protection Supervisor (effectively the Privacy Commissioner for the EU) issued an opinion in September 2013 that questioned the necessity and proportionality of agreements to transfer passenger information between jurisdictions. The EDPS opinion features an extensive review of the agreement and raises pointed questions about specific provisions along with numerous recommendations for reform.

The decision means that the Canada – EU data sharing agreement will be delayed by at least one to three years while the court conducts its review. The review will raise several important privacy issues including the effectiveness of exchanging passenger information in combating terrorism and the state of Canadian privacy law. The European Court of Justice has already struck down the European Data Retention Directive, suggesting that this agreement could also face tough scrutiny.

The post Canada – European Union Data Sharing Agreement Sent to EU Court of Justice for Review appeared first on Michael Geist.

CITP Call for Fellows, Postdocs, and Visiting Professor for 2015-16

Freedom to Tinker - Tue, 2014/12/02 - 11:26
The Center for Information Technology Policy is an interdisciplinary research center at Princeton that sits at the crossroads of engineering, the social sciences, law, and policy. CITP seeks Visiting Fellows and Postdoctoral Research Associates for the 2015-2016 year who work at the intersection of digital technology and public life, with backgrounds in fields including computer […]

“Information Sharing” Should Include the Public

Freedom to Tinker - Tue, 2014/12/02 - 10:21
The FBI recently issued a warning to U.S. businesses about the possibility of foreign-based malware attacks. According to a Reuters story by Jim Finkle: The five-page, confidential “flash” FBI warning issued to businesses late on Monday provided some technical details about the malicious software used in the attack. It provided advice on how to respond […]

When Ed Snowden met Marcus Yallow


Here's a scene from Citizenfour, Laura Poitras's acclaimed documentary on Edward Snowden, showing Snowden packing his bags to leave Hong Kong, showing the book on his nightstand: my novel Homeland.

I literally could not be more proud than I am right now. Thanks to Poitras and her helper, Maria, for this clip.

What Open Government Hides

Michael Geist Law RSS Feed - Mon, 2014/12/01 - 10:19

Treasury Board President Tony Clement unveiled the latest version of his Open Government Action Plan last month, continuing a process that has seen some important initiatives to make government data such as statistical information and mapping data publicly available in open formats free from restrictive licenses.

My weekly technology law column (Toronto Star version, homepage version) notes there is much to like about Canada’s open government efforts, which have centred on three pillars: open data, open information, and open dialogue. Given the promise of “greater transparency and accountability, increased citizen engagement, and driving innovation and economic opportunity”, few would criticize the aspirational goals of Canada’s open government efforts. Yet scratch the below the surface of new open data sets and public consultations and it becomes apparent that there is much that open government hides.

The federal efforts around open data have shown significant progress in recent years. What started as a few pilot projects with relatively obscure data has grown dramatically with over 200,000 government data sets now openly available for use without the need for payment or permission. Moreover, the government has addressed concerns with its open government licence, removing some of the initial restrictions that unnecessarily hamstrung early efforts.

However, the enthusiasm for open data has not been matched with reforms to the access to information system. Despite government claims of openness and transparency, all government data is not equal. There is a significant difference between posting mapping data and making available internal information on policy decisions that should be released under access to information rules.

Indeed, while the government has invested in making open data sets available, it has failed to provide the necessary resources to the access to information system. The Information Commissioner of Canada has warned that inadequate financing has made it virtually impossible to meet demand and respond to complaints.  Regular users of the access to information system invariably encounter long delays, aggressive use of exceptions to redact important information, significant costs, and inconsistent implementation of technology to provide more efficient and cost-effective service.

In short, the access to information system is broken. An open government plan that only addresses the information that government wants to make available, rather than all of the information to which the public is entitled, is not an open plan.

The efforts on open dialogue and open government suffer from similar shortcomings. The government and its agencies have embarked on public consultations on many issues in recent years: the Canadian Radio-television and Telecommunications Commission asked Canadians for their views on broadcast regulation, the Competition Bureau consulted on advocacy priorities, and House and Senate committees regularly hold hearings on new legislative proposals.

Yet open dialogues and consultations mean little if the outcomes are pre-determined and the public input is largely ignored.  This form of consultation is properly characterized as “consultation theatre”, where government seeks to claim consultation with no discernable impact on the resulting law or policy.

For example, last week the Senate Committee on Legal and Constitutional Affairs wrapped up its hearing on Bill C-13, passing the lawful access/cyberbullying bill with no comments or changes. The hearing included many voices (I appeared in a personal capacity), but Carol Todd, the mother of cyberbullying victim Amanda Todd, was excluded after she expressed concern with the privacy implications of the bill. Similarly, Daniel Therrien, the Privacy Commissioner of Canada appointed earlier this year by the government, advocated changes during his appearance that were ultimately ignored.

Open dialogue and public consultations do not mean that the government simply follows whatever advice is offered up through the process. However, if the consultations or hearings are little more than theatre, claims of open government or open dialogue mean very little.

Open government – whether open data or dialogue – offers great promise to provide a more transparent, inclusive and efficient government. Unfortunately, ignoring issues such as access to information and genuine efforts to incorporate public input into policies means that for now open government is most notable for what it hides.

The post What Open Government Hides appeared first on Michael Geist.

What Open Government Hides

Michael Geist Law RSS Feed - Mon, 2014/12/01 - 10:15

Appeared in the Toronto Star on November 29, 2014 as What Open Government Hides

Treasury Board President Tony Clement unveiled the latest version of his Open Government Action Plan last month, continuing a process that has seen some important initiatives to make government data such as statistical information and mapping data publicly available in open formats free from restrictive licenses.

There is much to like about Canada’s open government efforts, which have centred on three pillars: open data, open information, and open dialogue. Given the promise of “greater transparency and accountability, increased citizen engagement, and driving innovation and economic opportunity”, few would criticize the aspirational goals of Canada’s open government efforts. Yet scratch the below the surface of new open data sets and public consultations and it becomes apparent that there is much that open government hides.

The federal efforts around open data have shown significant progress in recent years. What started as a few pilot projects with relatively obscure data has grown dramatically with over 200,000 government data sets now openly available for use without the need for payment or permission. Moreover, the government has addressed concerns with its open government licence, removing some of the initial restrictions that unnecessarily hamstrung early efforts.

However, the enthusiasm for open data has not been matched with reforms to the access to information system. Despite government claims of openness and transparency, all government data is not equal. There is a significant difference between posting mapping data and making available internal information on policy decisions that should be released under access to information rules.

Indeed, while the government has invested in making open data sets available, it has failed to provide the necessary resources to the access to information system. The Information Commissioner of Canada has warned that inadequate financing has made it virtually impossible to meet demand and respond to complaints.  Regular users of the access to information system invariably encounter long delays, aggressive use of exceptions to redact important information, significant costs, and inconsistent implementation of technology to provide more efficient and cost-effective service.

In short, the access to information system is broken. An open government plan that only addresses the information that government wants to make available, rather than all of the information to which the public is entitled, is not an open plan.

The efforts on open dialogue and open government suffer from similar shortcomings. The government and its agencies have embarked on public consultations on many issues in recent years: the Canadian Radio-television and Telecommunications Commission asked Canadians for their views on broadcast regulation, the Competition Bureau consulted on advocacy priorities, and House and Senate committees regularly hold hearings on new legislative proposals.

Yet open dialogues and consultations mean little if the outcomes are pre-determined and the public input is largely ignored.  This form of consultation is properly characterized as “consultation theatre”, where government seeks to claim consultation with no discernable impact on the resulting law or policy.

For example, this week the Senate Committee on Justice and Human Rights wrapped up its hearing on Bill C-13, passing the lawful access/cyberbullying bill with no comments or changes. The hearing included many voices (I appeared in a personal capacity), but Carol Todd, the mother of cyberbullying victim Amanda Todd, was excluded after she expressed concern with the privacy implications of the bill. Similarly, Daniel Therrien, the Privacy Commissioner of Canada appointed earlier this year by the government, advocated changes during his appearance that were ultimately ignored.

Open dialogue and public consultations do not mean that the government simply follows whatever advice is offered up through the process. However, if the consultations or hearings are little more than theatre, claims of open government or open dialogue mean very little.

Open government – whether open data or dialogue – offers great promise to provide a more transparent, inclusive and efficient government. Unfortunately, ignoring issues such as access to information and genuine efforts to incorporate public input into policies means that for now open government is most notable for what it hides.

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

The post What Open Government Hides appeared first on Michael Geist.

Why should we care about characters?

I appear in the latest edition of the Writing Excuses podcast (MP3), recorded live at Westercon in Salt Lake City last summer, with Mary Robinette Kowal, Brandon Sanderson, Dan Wells and Howard Tayler, talking about why we care about characters.

The Price of Admission to the TPP Talks Revealed: U.S. Demanded Canada Pass Anti-Counterfeiting Legislation

Michael Geist Law RSS Feed - Fri, 2014/11/28 - 10:51

In the years leading up to Canada’s entry into the Trans Pacific Partnership negotiations, there was considerable speculation about demands imposed by the U.S. For example, I wrote in 2012 about two reported demands: that Canada was stuck with any chapters concluded before entry and that it would not have any veto authority. This meant that if all other countries agreed on a particular provision, Canada would be required to accept it.

Yesterday, Industry Minister James Moore provided the first official confirmation of at least one other condition of admission to the talks: anti-counterfeiting legislation. Bill C-8, the anti-counterfeiting bill that focuses on providing new border measures provisions such as enhanced search and seizure powers for customs agents without court oversight, is really a bill about satisfying U.S. demands for TPP entry. According to Moore:

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

While Moore rightly confirmed that Canada will not add in-transit seizures to the bill (as the U.S. is now seeking and will try to get included in the TPP), the admission that the bill checks the necessary U.S. boxes raises the question of who is driving Canadian intellectual property policy. The last copyright reform bill included restrictive digital lock rules at the insistence of the U.S. (and over the objection of the overwhelming majority of Canadians that participated in a government consultation on copyright reform) and now the anti-counterfeiting bill is acknowledged as part of the U.S. price of admission for Canada to enter the TPP talks.

The post The Price of Admission to the TPP Talks Revealed: U.S. Demanded Canada Pass Anti-Counterfeiting Legislation appeared first on Michael Geist.

CASL 2.0: The Computer Program Provisions (Part 1)

IPBlog (Calgary) - Thu, 2014/11/27 - 14:00
- By Richard Stobbe It's mid-October. Like many businesses in Canada, you may be weary of hearing about CASL compliance. Hopefully that weariness is due to all the hard work you did 3 months ago to bring your organization into compliance for the July 1st start-date. If you're a software vendor, then you ...

Drafting IT Agreements: Oct. 14-15

IPBlog (Calgary) - Wed, 2014/11/26 - 14:00
- By Richard Stobbe I will be speaking next week at the 10th Essentials of Commercial Contracts Course in Calgary, Alberta (Download PDF) on the subject of IT contracting. This session will discuss key considerations in IT licensing and service agreements including: Key clauses in IT agreements and common mistakes Various models for licensing software Overlap ...

Carol Todd on Bill C-13: “What Happened to Democracy?”

Michael Geist Law RSS Feed - Wed, 2014/11/26 - 10:00

The Senate Committee on Justice and Human Rights continues its study later today on Bill C-13, the cyber-bullying/lawful access bill that has already passed the House of Commons and seems certain to clear the Senate shortly. I appeared before the committee last week, but one person who will not appear is Carol Todd, the mother of cyber-bullying victim Amanda Todd. Ms. Todd wrote to me yesterday to express her dismay at the committee process with Conservative Senators mischaracterizing her views and the committee declining to offer her an invitation to appear, likely due to her criticisms of the privacy-related provisions in the bill.

Ms. Todd did appear before the House of Commons committee studying Bill C-13, telling Members of Parliament:

“While I applaud the efforts of all of you in crafting the extortion, revenge, porn, and cyberbullying sections of Bill C-13, I am concerned about some of the other unrelated provisions that have been added to the bill in the name of Amanda, Rehtaeh, and all of the children lost to cyberbullying attacks.

I don’t want to see our children victimized again by losing privacy rights. I am troubled by some of these provisions condoning the sharing of the privacy information of Canadians without proper legal process. We are Canadians with strong civil rights and values. A warrant should be required before any Canadian’s personal information is turned over to anyone, including government authorities. We should also be holding our telecommunication companies and Internet providers responsible for mishandling our private and personal information. We should not have to choose between our privacy and our safety.

We should not have to sacrifice our children’s privacy rights to make them safe from cyberbullying, sextortion and revenge pornography.”

The comments generated considerable media attention as it pointed to the divide even among cyberbullying victims about legislation that the lumps together provisions designed to address cyberbullying with lawful access rules with serious implications for the privacy of Canadians.

Since her testimony, the government has tried to downplay her concerns. Justice Minister Peter MacKay told the committee that he met with Ms. Todd and that “she came away with a much better sense of comfort and confidence in what the government was attempting to do.” When I raised Ms. Todd’s views during my Senate appearance, Senator Denise Batters responded that she had since “clarified her views on the bill.”

Yet the reality is that Ms. Todd is more troubled than ever with the government’s approach. In October, she wrote to me hours after the bill passed the House of Commons:

“I was stunned at how the government is going to push it forward considering the discussion and what was said at the hearings last spring.” 

As the Senate hearings continue, she has now expressed surprise and disappointment that she has been excluded from the process, noting that the government does not want her voice to be included and asking “what happened to democracy?”

What happened is that the government no longer wants to hear from one of the country’s most prominent voices on cyberbullying given her concerns that “we should not have to choose between our privacy and our safety.”

The post Carol Todd on Bill C-13: “What Happened to Democracy?” appeared first on Michael Geist.

Why Uber Has a Canadian Privacy Problem

Michael Geist Law RSS Feed - Mon, 2014/11/24 - 10:37

The mounting battle between Uber, the popular app-based car service, and the incumbent taxi industry has featured court dates in Toronto, undercover sting operations in Ottawa, and a marketing campaign designed to stoke fear among potential Uber customers. As Uber enters a growing number of Canadian cities, the ensuing regulatory fight is typically pitched as a contest between a popular, disruptive online service and a staid taxi industry intent on keeping new competitors out of the market.

My weekly technology law column (Toronto Star version, homepage version) notes that if the issue was only a question of choosing between a longstanding regulated industry and a disruptive technology, the outcome would not be in doubt. The popularity of a convenient, well-priced alternative, when contrasted with frustration over a regulated market that artificially limits competition to maintain pricing, is unsurprisingly going to generate enormous public support and will not be regulated out of existence.

While the Uber regulatory battles have focused on whether it constitutes a taxi service subject to local rules, last week a new concern attracted attention: privacy. Regardless of whether it is a taxi service or a technological intermediary, it is clear that Uber collects an enormous amount of sensitive, geo-locational information about its users.  In addition to payment data, the company accumulates a record of where its customers travel, how long they stay at their destinations, and even where they are located in real-time when using the Uber service.

Reports indicate that the company has coined the term “God View” for its ability to track user movements. The God View enables it to simultaneously view all Uber cars and all customers waiting for a ride in an entire city. When those mesh – the Uber customer enters an Uber car – they company can track movements along city streets.  Uber says that use of the information is strictly limited, yet it would appear that company executives have accessed the data to develop portfolios on some of its users.

In fact, Uber blogged in 2012 about “Rides of Glory”, which it characterized as “anyone who took a ride between 10pm and 4am on a Friday or Saturday night, and then took a second ride from within 1/10th of a mile of the previous nights’ drop-off point 4-6 hours later.” The blog posting identified which cities had the largest number of such rides.

Canadian Uber users can be forgiven for wondering whether the company takes their privacy rights seriously since it does not even have a Canada-specific privacy policy. The Uber website features three privacy policies: one for the United States, one for South Korea, and a global catch-all policy for users in 48 other countries. That approach effectively lumps Canadians into a privacy policy shared by users everywhere from Beirut to Beijing to Bogota.

The policy identifies certain privacy rights (and seeks to bring global users under a European Union privacy umbrella), but does nothing to ensure that it is fully compliant with Canadian privacy law standards. Interestingly, the company does have a Canada-specific user agreement, so the company’s legal rights are designed to comply with Canadian law.

Geo-location privacy is frequently invoked within the context of online marketing, with some concerned about the prospect of being “followed” as they walk down a city street, receiving coupons or real-time offers from nearby stores. Yet the Uber situation provides an important reminder that geo-locational privacy issues extend far beyond just marketing as they allow for tracking and inferences about user behaviour that is not otherwise publicly available.

Providing locational information is a trade-off that many are prepared to make, particularly if backed by privacy rules that safeguard misuse and provide some measure of oversight. In the case of Uber, the failure to develop Canada-specific protections raises serious questions about whether the company sees itself as outside the scope of more than just local taxi regulations.

The post Why Uber Has a Canadian Privacy Problem appeared first on Michael Geist.

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