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The Trouble With the TPP, Day 38: Limits on Canadian Digital Lock Safeguards

Michael Geist Law RSS Feed - Thu, 2016/02/25 - 10:05

As part of the contentious debate over the implementation of anti-circumvention rules in Canadian copyright law in 2012, the government tried to assure concerned stakeholders that it had established specific mechanisms within the law to create additional exceptions to the general rule against circumvention. The law includes a handful of exceptions for issues such as security or privacy protection, but there is also a process for adding new limitations to the general rule. There are two possible avenues for new limitations and exceptions. First, Section 41.21(1) allows the Governor in Council to make regulations for an exception where the law would otherwise “unduly restrict competition.” Second, Section 41.21(2)(a) identifies other circumstances to consider for new regulations for exceptions including whether the circumvention rules could adversely affect the fair dealing criteria.

In addition to those two potential regulation making models for new exceptions and limitations, Canadian law also establishes the possibility of creating a positive requirement on rights holders to unlock their locked content. It states that the Governor in Council may make regulations:

requiring the owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording that is protected by a technological protection measure to provide access to the work, performer’s performance fixed in a sound recording or sound recording to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.

Unlike the limitations and exceptions provisions, this is not a limitation or exception as it does not envision the possibility of permitting a user to circumvent a digital lock. Instead, it lays the groundwork to create a requirement to unlock content. The Trouble with the TPP is that its limitation and exception may not permit requiring this form of unlocking requirement.

Article 18.68 (4)(i) of the TPP is limited to creating exceptions or limitations on the prohibition against circumvention and does not include language to permit mandated unlocking:

a Party may provide certain limitations and exceptions to the measures implementing paragraph 1(a) or paragraph 1(b) in order to enable non-infringing uses if there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process in accordance with the Party’s law, giving due consideration to evidence when presented in that process, including with respect to whether appropriate and effective measures have been taken by rights holders to enable the beneficiaries to enjoy the limitations and exceptions to copyright and related rights under that Party’s law;

The absence of a positive obligation to unlock is unsurprising since it is not found in U.S. law. The Canadian government may try to argue that a positive obligation to provide unlocked content is a form of exception, yet rights holders steadfastly opposing this type of requirement, the TPP adds another argument to add to their arsenal.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors, Day 33: Setting the Rules for a Future Pharmacare Program, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage, Day 35: Gambling With Provincial Regulation, Day 36: Why the TPP Could Restrict Uber Regulation, Day 37: Breaking Digital Locks for Personal Purposes)

The post The Trouble With the TPP, Day 38: Limits on Canadian Digital Lock Safeguards appeared first on Michael Geist.

The Trouble With the TPP, Day 37: Breaking Digital Locks For Personal Purposes

Michael Geist Law RSS Feed - Wed, 2016/02/24 - 10:05

The Trouble with the TPP series has featured several posts on the impact of the agreement on copyright law, including copyright term extension and changes to the digital lock rules. The potential changes to Canadian copyright law do not end there, however.  For the next three days, I will focus on concerns arising from the TPP’s damages provisions that might restrict future Canadian copyright policies or require legislative change.

The first involves the TPP damages requirements associated with the anti-circumvention rules. As with many aspects of the TPP, the rules get very complicated, very quickly. The analysis starts with the TPP requirements. Article 18.68 establishes the rules for technological protection measures. The mandatory penalties for circumvention can be found in Article 18.84 (17):

In civil judicial proceedings concerning the acts described in Article 18.68 (TPMs) and Article 18.69 (RMI):
(a) each Party shall provide that its judicial authorities have the authority at least to:
(i) impose provisional measures, including seizure or other taking into custody of devices and products suspected of being involved in the prohibited activity;
(ii) order the type of damages available for copyright infringement, as provided under its law in accordance with this Article;
(iii) order court costs, fees or expenses as provided for under paragraph 10; and
(iv) order the destruction of devices and products found to be involved in the prohibited activity;

There is a footnote for (ii) that states if a party has both pre-established (ie. statutory) damages and additional damages that only one is needed to comply with the requirement. The TPP also states that additional damages include “the authority to award such additional damages as they consider appropriate, having regard to all relevant matters, including the nature of the infringing conduct and the need to deter similar infringements in the future.” Canada’s additional damages provision is narrower than this language, but there are statutory damages in place.

While that is the starting point obligations for the digital lock penalties, the TPP also includes an exception that removes the possibility of damages in certain cases:

a Party may provide that damages shall not be available against a non-profit library, archive, educational institution, museum or public non-commercial broadcasting entity, if it sustains the burden of proving that it was not aware or had no reason to believe that its acts constituted a prohibited activity.

What is the Canadian issue?

There are two. First, the Canadian Copyright Act includes a similar, though not identical, damages exclusion for a library, archive, museum or educational institution at Section 41.2. The Canadian exclusion does not include public non-commercial broadcasting entities, but since the provision is permissive and not a requirement, that is TPP compliant. However, the Canadian provision is not limited to non-profit libraries (think of a commercial digital library that charges subscription fees or an online library archive) and limits the remedies solely to an injunction. The other remedies identified by the TPP cannot be ordered by the court. Given the difference between the treaty and Canadian law, there may be instances where Canada excludes the possibility damages in violation of the TPP.

Second, the Copyright Act includes another damages limitation in the anti-circumvention rules. Section 41.1(3) states:

The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened may not elect under section 38.1 to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.

This was an important provision during the copyright reform process since it sought to assure concerned Canadians that they would not face the possibility of statutory damages for private circumventions. For example, statutory damages are not available for a person that circumvents the digital locks on their DVD collection.

The TPP does not include an exception for private purposes circumvention. Rather as noted above, it requires either statutory damages or additional damages. Statutory damages are not available in this case and the additional damages available in Canada are not as broad as those required by the TPP.  This would suggest that the Canadian private purposes circumvention rule could be challenged with demands that Canada implement new damages requirements for individuals who circumvent a digital lock, even for personal purposes.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors, Day 33: Setting the Rules for a Future Pharmacare Program, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage, Day 35: Gambling With Provincial Regulation, Day 36: Why the TPP Could Restrict Uber Regulation)

The post The Trouble With the TPP, Day 37: Breaking Digital Locks For Personal Purposes appeared first on Michael Geist.

fair use denied — part III

Fair Duty by Meera Nair - Wed, 2016/02/24 - 09:32

For earlier installments of fair use denied, a story of wildest dreamssee Part I and Part II.

III. of play and progress

Fair use’s flexible language is often lauded as the reason behind the United States’ enviable record of innovation. As a consequence, other countries view a flexible exception as a style worth emulating.[1] However, such adoration of fair use overlooks one vital aspect of creative success—the process which leads to a creative mind. And while we cannot definitively prescribe that process, we can situate the process within the atmosphere of intellectual property.

The conventional premise of intellectual property rights is that such rights enhance the likelihood of creative effort by assuring individuals that their work will not be for naught. Yet the asserted causality between advances in art, science and technology, and heightened levels of intellectual property protection, may be more rhetoric than substance.[2] History offers compelling illustration of creative epochs which were accompanied by little or no intellectual property protections.[3]

Taking our cue from history, it is reasonable to assert that the process of creativity is affected by the ability of individuals to engage with existing/past creations; that is, to act freely upon informal or casual creative impulses. Such freedom is not something that may be turned on or off at will, it is an internal instinct shaped by the surrounding culture of thought. The capacity to let one’s mind roam, to see something that others do not, to explore without conscious objective–to embark upon play—is essential to developing the creative process.

This theme was articulated by Julie Cohen more than a decade ago. While eschewing the proposition that exceptions are users’ rights, Cohen emphasizes that any theory of authors’ rights must be informed by an accompanying theory of the user. Cohen writes: “Both copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole (348).”[4]

Denoting the user as a “situated user”, Cohen makes plain that appropriation of pre-existing cultural goods are part and parcel of the self-development of individuals. The path to creativity includes consuming pre-existing works in a variety of ways. From the humble copy, to reworking that copy, to a seemingly original creation, the route to creativity necessarily includes those intermediary destinations. The stimuli that provoke eventual creative activity are varied; friends, family, teachers, formal and informal learning, advertising, popular culture – all contribute to an awareness of existing cultural goods. Exposure to, and re-communication of those goods, might provoke only a fleeting, partial inspiration which will not take tangible form for many years to come. But for that eventual, socially-prized, creation to come into being, the system of copyright must protect what Cohen describes as play of culture:

… process by which culture bends and folds unpredictably, bringing new groups, artifacts and practices into unexpected juxtaposition.  … [It] emerges from the full spectrum of behaviour of situated users. Consumption, communication, self-development, and creative play, merge and blur into one another, and the play of culture is the result (373).

An overt consciousness of the supposed-illegality of using others’ works must condemn future society to a very narrow realm of creative discovery. Whereas, if individuals are free to explore with the enthusiasm of play, the capacity to foster ideas and cause development in ways that cannot be predicted, is heightened.

But “the Child is father of the Man;”[5] to carry the sense of play into adulthood, it needs first to be protected in childhood. Part IV continues tomorrow.

 

Notes

[1] In 2007, Israel imported much of American fair use into its domestic law. “(a) Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution. ­­­(b) In determining whether a use made of a work is fair within the meaning of this section the factors to be considered shall include, inter alia, all of the following: (1) The purpose and character of the use; (2) The character of the work used; (3) The scope of the use, quantitatively and qualitatively, in relation to the work as a whole; (4) The impact of the use on the value of the work and its potential market. (c) The Minister may make regulations prescribing conditions under which a use shall be deemed a fair use;” see Copyright Act [Isr.], 5768-2007, 2007 LSI 34 (2007) at § 19.
In 2011, Ireland’s Department of Enterprise, Trade and Innovation sought submissions concerning copyright amendment, with an express interest in examining “ …US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.” Interestingly enough, the terms also stated that if suitable changes were not possible under the current constraints of EU copyright directives, Ireland would make recommendations for changes to those EU directives. <http://www.deti.ie/science/ipr/copyright_review_2011.htm> website no longer available. However, press coverage remains; see John Kennedy, “Radical copyright reform law to boost Ireland’s digital economy?” SiliconRepublic 9 May 2011.
Also in 2011, the Government of the United Kingdom explored fair use fulsomely. While electing to refrain from moving forward with a flexible exception (a decision influenced by strong opposition from the creative industries), it publicly acknowledged the merits of a flexible exception; see Ian Hargreaves, Digital Opportunity—A Review of Intellectual Property and Growth, May 2011.
Meanwhile, in a gentle progression of events which began in 2002, Canada has quietly erased the rigidity of fair dealing and brought it very close to fair use. See Michael Geist, “Fairness Found – How Canada Quietly Shifted from Fair Dealing to Fair Use,” The Copyright Pentalogy: How the Supreme Court of Canada Shook The Foundations of Canadian Copyright Law (Ottawa: University of Ottawa Press, 2013). Another Canadian asset in terms of flexibility is its exception for non-commercial user-generated content; for details see Peter K. Yu, “Can the Canadian UGC Exception Be Transplanted Abroad?”(2014) Intellectual Property Journal 26 175-203.

[2] Calls to remove or lighten the prevailing structure of copyright are routine today; but those calls originated over one century ago. The presumption that monopoly rights were the best mechanism to support creative endeavor was so contentious that a Royal Commission ordered examination of the issue in the late 19th century. While the Commissioners ultimately kept the monopoly structure, opinions were diverse and heated; see Paul Saint-Amour, The Copywrights: Intellectual Property and the Literary Imagination (Ithaca: Cornell University Press, 2003).

[3] Meera Nair, “Fair Dealing at a Crossroads” in ed. Michael Geist, From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda (Toronto: Irwin Law, 2010) 90 at 91.

[4] Julie Cohen, “The Place of the User in Copyright Law” (2005) Vol 74 Fordham Law Review p.348.  The lack of genuine interest in users continue today; policy makers provide lip-service attention to the necessity of balance in the system of copyright but refrain from actively supporting it. See Michael Geist’s analysis of the difference between implementation of rights of owners and rights of users as drafted in the TransPacific Partnership (TPP) agreement.

[5] William Wordsworth, “My Heart Leaps Up When I Behold”, The Complete Poetical Works (introduction by John Worley) (London: Macmillan, 1888).


The Trouble With the TPP, Day 36: Why the TPP Could Restrict Uber Regulation

Michael Geist Law RSS Feed - Tue, 2016/02/23 - 11:02

Yesterday’s Trouble with the TPP post focused on the possibility that the agreement could restrict the ability for the Quebec government to regulate online gambling, as it is currently seeking to do in Bill 74.  While that might be a good outcome – the Quebec bill is ill-advised and sets a dangerous precedent – it raises the question of whether a trade agreement is the right way to dictate provincial laws.

In fact, the TPP leaves behind a complex array of regulations for services industries that is almost certain to result in unintended consequences. Many trade agreements feature obligations to specific service sectors based on commitments from negotiating parties. These are relatively clear and make it easy for business to understand the new rules and for governments to identify their regulatory requirements. The TPP adopts a much different approach that is likely to lead to confusion and regulatory complexity. It features a series of generally applicable restrictions or requirements for services (the big four are national treatment, most favoured nation, market access, and no local presence requirements) and then seeks to exclude specific sectors in the hope of identifying problems with the general rules. As the Quebec gambling example illustrates, however, there are invariably new sectors or new issues that fall through the cracks.

Another possible complication could come from demands to regulate ride sharing services such as Uber. In many jurisdictions, taxi and ride sharing services are regulated at the municipal or local level. The TPP excludes existing local government regulation from the scope of the four big service requirements in Article 10.7 (1)(a)(iii). This would also apply to renewals of existing rules and amendments “to the extent the amendment does not decrease the conformity of the measure.” Ride sharing services were not included in appendices that list non-conforming sectors.

Existing local regulations that restrict ride sharing services are therefore excluded from the TPP. However, local municipalities may face restrictions on future regulations should they further decrease conformity with the obligations. For example, if a municipality does not currently feature a local presence requirement in taxi regulations, instituting a new presence requirement could violate the TPP.  Similarly, establishing new expensive licensing requirements that restrict the likelihood of Uber drivers entering the market might violate Article 10.8(5) which stipulates that “each Party shall ensure that any authorisation fee charged by any of its competent authorities is reasonable, transparent and does not, in itself, restrict the supply of the relevant service.” Indeed, the implications of the TPP for local rules is attracting growing attention.

The issue may be even more pronounced where ride sharing services are also regulated at the provincial level. For example, the Province of British Columbia has the power to regulate Uber and similar services through the Passenger Transportation Act. The province has thus far resisted mounting calls for it to act. The provincial regulations establish requirements related to licensing, safety, inspections, insurance, and establish the rates that may be charged by anyone operating a vehicle who charges or collects compensation for transporting passengers. Without a broad provincial government exclusion, these rules would presumably be caught by the TPP. The province has identified why it believes it needs to regulate the sector, but should the TPP apply, it could trump the provincial regulatory power given the absence of an exclusion and the difficulty in relying on public policy grounds for non-compliant regulations.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors, Day 33: Setting the Rules for a Future Pharmacare Program, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage, Day 35: Gambling With Provincial Regulation)

The post The Trouble With the TPP, Day 36: Why the TPP Could Restrict Uber Regulation appeared first on Michael Geist.

Secret Spending & Weak Results: Why the Ontario Government’s Music Fund Strikes the Wrong Note

Michael Geist Law RSS Feed - Tue, 2016/02/23 - 10:25

Earlier this month, the British Columbia government unveiled a new $15 million music fund to support the local music industry. The fund matches a similar Ontario initiative that has doled out nearly $30 million over the past two years with a commitment from Premier Kathleen Wynne to make the Ontario Music Fund a permanent program to support the industry.

The millions of taxpayer dollars earmarked for the music industry represents a major success for the industry lobby, which shifted several years ago from focusing on digital copyright reform to identifying new sources of government financial support.

My weekly technology law column (Toronto Star version, homepage version) notes that despite the industry accolades, the Ontario program suffers from a surprising lack of transparency with virtually no public information on how the money is actually spent. Moreover, according to documents obtained under provincial access to information laws, the Liberal government has exaggerated the impact of the first round of funding with the creation of relatively few new full-time positions and limited international investment in the province.

The Ontario Media Development Corporation (OMDC), which administers the program on behalf of the government, announced the first round of Ontario Music Fund recipients in September 2014. The big recording company winners were the three major foreign record labels (Sony Music Entertainment Canada, Universal Music Canada, and Warner Music Canada), who averaged more than $830,000 per company. By comparison, the 36 successful Canadian record companies garnered an average of $115,000.

The OMDC identified the recipients and the total grant amount, but it provided no details on specific projects, programs, or how the money would be spent. I subsequently filed an access to information request for the records associated with 10 of the largest funding awards. The OMDC responded with a fee estimate of $11,659.10 for the information, which was only reduced after an appeal to the provincial Information and Privacy Commissioner.

After months of delay, the released documents excluded virtually all relevant information about the funding applications. The OMDC redacted the objectives of the funding, the planned activities, recipients’ track record, communications plan, timeline of activities, anticipated outcomes, and financing. An appeal is currently before the Commissioner.

When asked about the appropriateness of the lack of disclosure, a ministry spokesperson responded that “program guidelines and evaluation criteria are made public. Applications are evaluated according to this criteria and applicants are provided with feedback if they request it once the funding decision is communicated to them.” In other words, the Ontario government supports the secretive approach in which the public has seemingly no right to know how its money is spent.

Not only is the lack of transparency surprising, but government documents suggest that the initial results are underwhelming. When asked about the results in an interview last year, Michael Coteau, the Minister of Tourism, Culture, and Sport, claimed that the fund created 2,000 jobs and that more than $24 million in revenue was brought into the sector in the first year alone.

Those claims led to a second access to information request on the program results. Once again, the OMDC was unwilling to release specific details on the results of any funded organization. Instead it provided a spreadsheet with de-identified data on all program recipients.

The data indicates that contrary to Coteau’s claims, there were only 263 new full time jobs created by the fund, a cost to taxpayers of $57,000 per new full-time job. In addition to the new full-time jobs, another 569 full-time jobs were retained, still well short of the 2,000 figure.

The investment results were not much better. Recipients reported spending less than $7 million in private equity and support, less than half of the provincial government investment. Moreover, while Coteau promoted the benefits of attracting recording to Ontario, the data indicates that only 15 international artists recorded in the province and that the total international investment in Ontario recording studios was $213,277.

As the Canadian cultural sector faces new challenges and opportunities in the digital age, there is unquestionably an important role for government support. Yet the secrecy associated with the Ontario Music Fund and the results to date provide a cautionary tale on the need for greater transparency, oversight, and accountability in public funding programs.

The post Secret Spending & Weak Results: Why the Ontario Government’s Music Fund Strikes the Wrong Note appeared first on Michael Geist.

Secrecy Around $30M Ontario Music Fund Strikes Wrong Notes

Michael Geist Law RSS Feed - Tue, 2016/02/23 - 10:21

Appeared in the Toronto Star on February 21, 2016 as Secrecy Around $30M Ontario Music Fund Strikes Wrong Notes

Earlier this month, the British Columbia government unveiled a new $15 million music fund to support the local music industry. The fund matches a similar Ontario initiative that has doled out nearly $30 million over the past two years with a commitment from Premier Kathleen Wynne to make the Ontario Music Fund a permanent program to support the industry.

The millions of taxpayer dollars earmarked for the music industry represents a major success for the industry lobby, which shifted several years ago from focusing on digital copyright reform to identifying new sources of government financial support.

Yet despite the industry accolades, the Ontario program suffers from a surprising lack of transparency with virtually no public information on how the money is actually spent. Moreover, according to documents obtained under provincial access to information laws, the Liberal government has exaggerated the impact of the first round of funding with the creation of relatively few new full-time positions and limited international investment in the province.

The Ontario Media Development Corporation (OMDC), which administers the program on behalf of the government, announced the first round of Ontario Music Fund recipients in September 2014. The big recording company winners were the three major foreign record labels (Sony Music Entertainment Canada, Universal Music Canada, and Warner Music Canada), who averaged more than $830,000 per company. By comparison, the 36 successful Canadian record companies garnered an average of $115,000.

The OMDC identified the recipients and the total grant amount, but it provided no details on specific projects, programs, or how the money would be spent. I subsequently filed an access to information request for the records associated with 10 of the largest funding awards. The OMDC responded with a fee estimate of $11,659.10 for the information, which was only reduced after an appeal to the provincial Information and Privacy Commissioner.

After months of delay, the released documents excluded virtually all relevant information about the funding applications. The OMDC redacted the objectives of the funding, the planned activities, recipients’ track record, communications plan, timeline of activities, anticipated outcomes, and financing. An appeal is currently before the Commissioner.

When asked about the appropriateness of the lack of disclosure, a ministry spokesperson responded that “program guidelines and evaluation criteria are made public. Applications are evaluated according to this criteria and applicants are provided with feedback if they request it once the funding decision is communicated to them.” In other words, the Ontario government supports the secretive approach in which the public has seemingly no right to know how its money is spent.

Not only is the lack of transparency surprising, but government documents suggest that the initial results are underwhelming. When asked about the results in an interview last year, Michael Coteau, the Minister of Tourism, Culture, and Sport, claimed that the fund created 2,000 jobs and that more than $24 million in revenue was brought into the sector in the first year alone.

Those claims led to a second access to information request on the program results. Once again, the OMDC was unwilling to release specific details on the results of any funded organization. Instead it provided a spreadsheet with de-identified data on all program recipients.

The data indicates that contrary to Coteau’s claims, there were only 263 new full time jobs created by the fund, a cost to taxpayers of $57,000 per new full-time job. In addition to the new full-time jobs, another 569 full-time jobs were retained, still well short of the 2,000 figure.

The investment results were not much better. Recipients reported spending less than $7 million in private equity and support, less than half of the provincial government investment. Moreover, while Coteau promoted the benefits of attracting recording to Ontario, the data indicates that only 15 international artists recorded in the province and that the total international investment in Ontario recording studios was $213,277.

As the Canadian cultural sector faces new challenges and opportunities in the digital age, there is unquestionably an important role for government support. Yet the secrecy associated with the Ontario Music Fund and the results to date provide a cautionary tale on the need for greater transparency, oversight, and accountability in public funding programs.

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 Secrecy Around $30M Ontario Music Fund Strikes Wrong Notes appeared first on Michael Geist.

fair use denied — part II

Fair Duty by Meera Nair - Tue, 2016/02/23 - 10:04

For the first installment of this story involving Wildest Dreams and creativity-in-the-making, see Part I of fair use denied.

II. fair use — its origins and intentions

The contemporary bundle of rights comprising copyright is rooted in the customs of 16th century English publishing guilds. Their practices shaped what is often referred to as the first copyright act, the Statute of Anne. Entering into English law  in 1710[1], English colonies, of both loyalist and revolutionary tendencies, drew from the motherland when developing their own jurisprudence.

Eventually, the offshoot nations put their own stamp upon the system of copyright, including the exceptions within the system which  protect individual, unauthorized use of copyrighted works. While Commonwealth countries tended to maintain the English term and structure of fair dealing, in the United States, the exception evolved under the label of fair use.

Initially, fair use was applied only through common law practice; its genesis is usually attributed to Folsom v. Marsh (1841).[2] The dispute concerned two biographies of George Washington; in the process of adjudication Justice Story offered the following instruction to determine what is (or is not) fair use: “In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”[3]

This structure shaped fair use’s entry into American law in 1976.[4] Section 107 states:

… the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.[5]

The intent of the then-Congress was that fair use should retain the flexibility necessary to safeguard uses yet unknown. An instructional guide prepared by the Copyright Office of the Library of Congress explicitly draws attention to this necessity:

Section 107 is somewhat vague since it would be difficult to prescribe precise rules to cover all situations. … Section 107 makes it clear that the factors a court shall consider shall “include” [the four factors].  … [T]he terms “including” and “such as” are illustrative and not limitative. The legislative reports state that section 107 as drafted is intended to restate the present judicial doctrine; it is not intended to change, narrow or enlarge it in any way.[6]

According to a House Report about the 1976 Act, “… since the doctrine [of fair use] is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts (emphasis mine).”[7]

Furthermore, the four factors were to be considered in unity against the objectives of the system of copyright itself. Those objectives are clearly stated in the American Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[8]

But Progress takes root in Play. Part III continues tomorrow.

 

Notes

[1] 8 Anne c. C19 (1709/1710). It must be emphasized that for all the pathos (then and now) about copyright serving to protect starving authors, the statutory language was designed principally to keep order in the book trade. This period of time has received extensive coverage; Lyman Ray Patterson and Mark Rose are among the founders of this canon of scholarly work. See L.R.Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968) and M.Rose, Authors and Owners – the Invention of Copyright (Cambridge: Harvard University Press, 1993).

[2] Folsom v. Marsh  9 F. Cas. 342, (C.C.D. Mass. 1841) [Folsom]. However “… many of the points raised in Folsom were anticipated two years earlier by Justice Story in Gray v. Russell;”see William Patry, The Fair Use Privilege in Copyright Law, 2d ed. (Washington DC: The Bureau of National Affairs, Inc., 1995) at 19.

[3] Folsom at 348.

[4] That fair use eventually became a component within statutory law was not a foregone conclusion; the process took considerable time and discussion. In 1958, at the behest of the Subcommittee on Patents, Trademarks, and Copyrights, Alan Latman authored a study concerning fair use and raised two questions: (i) should fair use should be codified into law; and, (ii) if so, to what detail? His work was circulated to an advisory panel of nine copyright experts, eight of whom argued that fair use should not be codified with any attempt at specificity. See Alan Latman, “Fair Use of Copyrighted Works, Study No. 14,” Copyright Law Revision, Studies Prepared for the Subcomm. On Patents, Trademarks and Copyrights, Comm. on the Judiciary, 86th Cong. 2d Sess., (Comm. Print 1960).

[5] 17 U.S.C. § 107 (2000 & Supp. IV 2004).

[6] Marybeth Peters (Senior Attorney Advisor), General Guide to the Copyright Act of 1976 (September 1977), United States Copyright Office, Library of Congress, at 8:2,

[7] H.R. Report No. 94-1476, 94th Cong. 2d Sess. 65(1976). Also cited in Halpern et al, Fundamentals of United States Intellectual Property Law: Copyright, Patent, Trademark, 3rd edition (Wolters Kluwer: The Netherlands, 2011) p.18.

[8] U.S. Constitution, Art. I, § 8, cl. 8.


The Trouble With the TPP, Day 35: Gambling With Provincial Regulation

Michael Geist Law RSS Feed - Mon, 2016/02/22 - 11:09

Last year, the Quebec government introduced legislation that would require Internet service providers to block access to unlicensed online gambling sites. It provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The Quebec bill, which is currently before the provincial legislature, is a terrible idea that has been opposed by ISPs and consumer groups. The government views this initiative as a revenue enhancing measure because it wants to direct gamblers to its own Espacejeux, the Loto-Québec run online gaming site. The mandated blocking legislation is unprecedented in Canada and if enacted, it will surely be subject to legal challenge, including the possibility of a constitutional challenge.

The legal challenge may not be limited to constitutional issues, however. The Quebec bill may also be blocked by the TPP, which may be a good outcome, but raises the question of whether a trade agreement is the right way to dictate provincial laws.

How might the TPP apply to provincial online gambling regulation?

Article 10.3 on national treatment provides:

Each Party shall accord to services and service suppliers of another Party treatment no less favourable than that it accords, in like circumstances, to its own services and service suppliers.

The services chapter also includes a most favoured nation requirement in Article 10.4:

Each Party shall accord to services and service suppliers of another Party treatment no less favourable than that it accords, in like circumstances, to services and service suppliers of any other Party or a non-Party.

In other words, countries are required to treat service providers – regardless of which country they come from – in an equal manner. Several TPP countries specifically excluded gambling regulation from the scope of the services chapter. For example, Australia reserved “the right to adopt or maintain any measure with respect to gambling and betting.” Similarly, Singapore reserved “the right to maintain or adopt any measure affecting the supply of betting and gambling services” and Mexico reserved “the right to adopt or maintain any measure relating to investment in, or the supply of, gambling and betting services.”

Given that gambling falls under provincial jurisdiction, Canada did not specifically exclude gambling regulation. Instead, Canada obtained the following exclusion for provincial measures:

All existing non-conforming measures of all provinces and territories.

There is an illustrative list of such measures, but the Quebec rule, which is still only a bill, is unsurprisingly not included.

The exclusion obviously covers existing provincial rules (as well as renewals  and amendments of such measures), but does not address new regulations. There are other policy exceptions in the TPP, but they may not apply here. As discussed earlier in the series, public policy exceptions have failed in 43 out of 44 cases and since the stated purpose of the bill is to increase revenues of a local service provider, the government would have a hard time justifying the exception. I sought comment from the government on this issue, but only received confirmation that there was no direct Canadian reference to gambling due to provincial jurisdiction. This may represent a good outcome – the Quebec bill should be withdrawn – but the broader implications of the TPP for provincial jurisdiction suggests that the deal may create significant limitations on policy making at the provincial level in ways that few might have anticipated.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors, Day 33: Setting the Rules for a Future Pharmacare Program, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage)

The post The Trouble With the TPP, Day 35: Gambling With Provincial Regulation appeared first on Michael Geist.

fair use denied — a five part series

Fair Duty by Meera Nair - Mon, 2016/02/22 - 10:06

Fair Use/Fair Dealing Week is upon us; there will be much lauding of these two exceptions over the next five days. Yet there remains one significant barrier to applying fair use in the United States. A barrier which does not arise in Canada.

I. fair use or privacy, but not both

Some time ago, a colleague came to me with a concern. A video created by her daughter, and posted to her YouTube channel, had been removed (due to an allegation of copyright infringement) and a strike had been marked against the account. The daughter, AL, is an amateur filmmaker. With patience and creative instinct, she crafts stop-action photography films. Some are set to music. In this instance though, the video removed was not one of those creations; it was a recording of a life event, with some popular music playing in the background. AL did not mind the loss of the video, but was deeply troubled at being labelled as a copyright infringer.

The question posed to me was: can anything be done about this?

Internet Service Providers (ISPs) operating in Canada need only inform their subscribers of copyright concerns. Canadian ISPs are not obliged to do the bidding of copyright owners who may or may not have a legitimate complaint. The difficulty with the American system is that their ISPs risk liability if they do not heed an allegation of copyright infringement. The system as a whole operates as guilty-until-proven-innocent, which is diametrically opposed to our Canadian presumption of innocent-until-proven-guilty. Moreover, to appeal a takedown/strike by YouTube, one must submit a counter-notification through YouTube to the very party that has claimed infringement. That these situations are not resolved by an impartial entity runs counter to a vital principle of the rule of law.

In response to AL’s distress at “having done something wrong,” I assured her that she did nothing wrong. Admittedly, it is easier to make that assessment in Canada; our Copyright Act has many options through which to protect unauthorized uses of materials, ranging from the threshold at which copyright takes effect (the substantiality of the reproduction), the allowance of incidental use, the ambit afforded by a large and liberal interpretation of fair dealing, and our express encouragement of usage of copyrighted works in the creation of non-commercial compositions.[1]  Nevertheless, American fair use has ample room to do the same. In fact, the United States Court of Appeals for the Ninth Circuit recently instructed copyright owners to consider fair use before issuing a take-down notice.[2]

But it remains that to argue against a takedown/strike, requires laying one’s identity bare. In this situation, I felt distinctly uneasy about drawing attention to AL’s portfolio. According to YouTube, multiple strikes could result in the loss of the account itself. This is not encouraging; the odds of satisfactory resolution appear low while the risk of scrutiny and punishment rises. I did not want to bring further condemnation down upon AL’s young shoulders.

So I did not suggest proceeding with the counter-notification. However, for all parents, in this five-part series I offer up my take on why such creations are law-abiding on both sides of the 49th parallel, and, why our youth should be encouraged to make them.

As noted above, we have more latitude in Canada to  create and post such work. It has been suggested to me that arguing legitimacy under Canadian law is one way to dispute a takedown/strike notice. However, that approach has no guarantee of success anymore than claiming fair use. And since this situation is an outcome of American copyright interpretation, what follows is structured by American law and custom.

Establishing the facts

AL received a copyright strike in response to a video she created and posted to YouTube, describing an outing with a new friend. In the background of her narration and video, is a portion of the song Wildest Dreams sung by Taylor Swift. Of the total 37 seconds that were recorded, only 17 seconds are clearly audible when the video is played.

Many people are involved in the production of commercially released music including composers, lyricists, musicians and singers, all of whom will have some degree of rights (copyright or performers’ rights). The complex web of rights may be assigned through contract to a single entity; often the publisher assumes those rights. But, that is not necessarily always the case. And when a song is promoted through the use of a music video, even more people are involved, including directors and other performers, with even more rights to be sorted out.

But popular press tends to focus upon performers and (perhaps unintentionally) cultivate the impression that songs belong to their performer. For instance, coverage of the removal of Swift’s back catalogue from Spotify conveyed the impression that ownership was Swift’s and identified Big Machine Music as her label. The video of Wildest Dreams is clearly marked “(c) 2015 Big Machine Records, LLC.” Yet when the video was released, and criticized for romanticizing colonialism, the press conveyed the impression that the work belonged to Swift (i.e. see The Atlantic, the guardian, and CNN).

As to whether Swift has partial, or complete control, with respect to musical/artistic development, or management/enforcement of copyright, we do not know. The only information we have is that the complainant was ifpi, an international organization, based in the United Kingdom, which represents the recording industry.

It should be noted that the website taylorswift.com provides 30-second previews of songs performed by Taylor Swift, and the Wildest Dreams video is sanctioned by its copyright owner(s) to be enjoyed in its entirety via vevo.com. No doubt the first rebuttal to these facts will be that copyright law is rooted in reproduction, thus an authorization to listen is not an authorization to reproduce. But fair use beckons.

However, before one can employ fair use, fair use itself must be established. Part Two continues tomorrow.

 

Notes

[1] Section 29.21 of the Copyright Act (R.S.C., 1985, c. C-42) is an exception which protects amateur creators. I have written about this many times, for instance see poems out of other poems.

[2] Stephanie Lenz v. Universal Music (2015) D.C. No. 5:07-cv-03783-JF.  Although, drawing from AL’s situation, it appears doubtful that foreign entities will give much attention to an American court’s dictates.

 

 


Fairness Confirmed: Copyright Board Deals Another Blow to Access Copyright

Michael Geist Law RSS Feed - Mon, 2016/02/22 - 09:45

In the aftermath of the Supreme Court of Canada’s 2012 copyright pentalogy that strongly affirmed the importance of user’s rights and the need for a broad, liberal interpretation for fair dealing, Access Copyright insisted that the decisions did not mean what they said. While educational groups developed reasonable fair dealing guidelines based on the decisions (along with earlier decisions such as the CCH case and the inclusion of education within the fair dealing purposes in 2012 reforms), Access Copyright argued that the copying required its licence and that fair dealing guidelines based on general percentages could not be used.

Last Friday, the Copyright Board of Canada issued its latest decision on the application of fair dealing to educational copying, providing yet another resounding blow to Access Copyright’s view of copyright. The Board created a tariff for copying in K-12 schools that was a fraction of what the copyright collective had wanted. It initially asked for $15 per full time student. By the time the issues had been fully assessed, the Board granted a tariff of $2.46 per student for 2010-2012 and $2.41 for 2013-2015. That rate is not only far lower than Access Copyright had demanded, but is nearly half of what was previously certified for the period from 2005-2009 (which was set at $4.81). The Board minced no words in explaining the reduction:

The main reason for that decrease is the fact that as a result of the decision of the Supreme Court in Alberta v. Access Copyright, 2012 SCC 37, copies made for student instruction, assignments or class work, that were not included in the fair-dealing analysis in the preceding decision, were now included. This resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair-dealing provisions of the Copyright Act. These copies therefore do not generate remuneration.

In fact, a close look at the Copyright Board’s analysis reveals that it found that 97.2% of copying from books, 98.1% of newspapers, and 98.5% from periodicals qualified as fair under a fair dealing analysis. In other words, virtually all copying of books, newspapers, and periodicals in the large sample reviewed by the Board is covered by fair dealing and does not require a licence from Access Copyright. Moreover, the Board found that copying 1 to 2 pages from a book is insubstantial and does not even require a fair dealing analysis.

With the government and K-12 Copyright Board decisions both strongly rejecting Access Copyright’s theories of fair dealing, the only remaining decision involves universities and colleges. Canadian universities dropped out of that case, but many have recently written to the Board to ensure that their concerns are considered. Several aspects of last week’s decision should play a key role in any future decisions.

1.    Limited Repertoire

The Board has firmly rejected Access Copyright’s claims about the size of its repertoire. While its supporters frequently suggest that an Access Copyright licence gives licencees the right to copy anything, the Board makes it clear that that simply is not true. Access Copyright argued that it can collect for any copying and that once the payment is accepted, an agency relationship is created. On that basis, “Access argues that all works, unless explicitly removed by the owner of copyright, form part of its repertoire.” The Board firmly rejected this argument:

where the evidence does not indicate that the copying was of a work whose owner of copyright has entered into an affiliation agreement with Access, that copying is not included in the determination of the royalty rate for this Tariff.

As a result, Access Copyright’s repertoire is much smaller that it claims. Rather than representing all works, it only represents those works for which it has entered a formal agreement.

2.    Non-Substantial Copying

The Board had previously indicated in the universities case that it believed that copying a few pages is insubstantial and therefore not subject to any compensation. Access Copyright disagreed, arguing that anything copied is valued and therefore not insubstantial. The Board re-affirmed the insubstantial copying doctrine in this case, concluding that 1 – 2 pages from a book is insubstantial and not subject to any compensation.

3.    Fair Dealing – Percentages

At the heart of the universities case is the validity of the widely used education fair dealing guidelines which treat up to 10% of a work as fair. This decision provides the first glimpse into the Board’s view of the guidelines. It concludes:

For longer works, such as books, guided by the Supreme Court’s decisions in CCH, Alberta, and Bell, we use the following approximation: where the amount of a work copied was less than or equal to 5 per cent of the work, we conclude that the amount copied tends to make the dealing fair; where the amount copied was more than 5 per cent but no more than 10 per cent of the work, we conclude that the amount copied did not affect the fairness of the dealing; where the amount copied was greater than 10 per cent of the work, we conclude that the amount copied tends to make the dealing unfair.

Taken together:

  • 1 – 2 pages is insubstantial with no fair dealing analysis required
  • Up to 5% of a work is likely to be fair
  • 5 – 10% of a work is neutral and the fairness will depend on other factors
  • More than 10% tends to unfairness

This approach is largely consistent with the education fair dealing guidelines. The Board has concluded there is nothing unfair about copying 10% of a work. Indeed, given that many of the other fair dealing factors tend toward fairness for education, this decision represents a solid affirmation of the current Canadian education approach.

4.    Fair Dealing – Analysis

The amount of copying is only part of a full fair dealing analysis. The Board examined all six factors and found for education in the majority of instances. Important findings include:

  • Access Copyright argued that since copies replace the purchase of works being copied, they are unfair. The Board rejected the argument.
  • Access Copyright argued that a fair dealing analysis should consider “a just reward” for creators as part of the analysis. The Board rejected the argument.
  • Access Copyright argued that the Board should consider whether the copying is transformative with the view that non-transformative copying tends to unfairness.  The Board rejected the argument.
  • Access Copyright argued (again) that the aggregate volume of copying – said to be 300 million pages – should be factored into the analysis. The Board rejected the argument, noting that what matters is a specific copying transaction, not the aggregate amount of copying.
  • Access Copyright argued that distribution of multiple copies of works that are not destroyed tend to unfairness. The Board rejected the argument.
  • Access Copyright argued that there were reasonable alternatives available. The Board rejected the argument, concluding that alternatives for “non-consumables” tended toward fairness.
  • Access Copyright argued that the copying had a negative effect on the market and for the creation of future works. The Board found that there could be some effect on the market, but concluded that the effect on future works was small.

Based on these findings, the Board found that most of the factors tended toward fairness. It therefore concluded that 97.2% of copying of books was fair, 98.1% of newspapers was fair, and 98.5% of periodicals was fair.

While not directly discussed in the case, it is worth noting that the fair dealing analysis focuses almost entirely on the decisions from the Supreme Court of Canada. This will not come as a surprise to copyright lawyers, but it runs counter to Access Copyright and its supporters attempts to paint the current Canadian approach as a direct result of the 2012 legislative reforms. The reality is that those reforms were very modest for educational institutions. The fair dealing guidelines and the logical decision to drop the Access Copyright licence is the result of the Supreme Court’s copyright rulings, not any lobbying efforts or legislative reforms.

I recently wrote an opinion piece for Academic Matters on striking the right balance on copyright and education which concluded:

a fair review of the current system reveals that the problem facing Access Copyright is not that copies are not valued, but rather that in light of new forms of access and the evolution of the law, its licence is no longer valuable.

That is the inescapable conclusion from the latest Copyright Board decision. Access Copyright has spent the better part of the past 15 years arguing for its vision of copyright law before Canadian courts and the Copyright Board. It has lost at virtually every stage and at every venue [Update: It responds to this decision, calling it “deeply problematic”).

While it seems determined to continue to its failed litigation strategy – its lawsuit against York University continues and it would not surprise if it sought judicial review of this Copyright Board ruling – the reality is that there is now a robust body of rulings that provide all parties with considerable guidance and certainty on the scope of fair dealing. Access Copyright may not like it, but those rulings are largely consistent with the guidelines currently used by educational groups across the country.

The post Fairness Confirmed: Copyright Board Deals Another Blow to Access Copyright appeared first on Michael Geist.

An analogy to understand the FBI’s request of Apple

Freedom to Tinker - Mon, 2016/02/22 - 09:00
After my previous blog post about the FBI, Apple, and the San Bernadino iPhone, I’ve been reading many other bloggers and news articles on the topic. What seems to be missing is a decent analogy to explain the unusual nature of the FBI’s demand and the importance of Apple’s stance in opposition to it. Before I dive […]

The Trouble With the TPP, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage

Michael Geist Law RSS Feed - Fri, 2016/02/19 - 10:42

Price of Entry, one of the early Trouble with the TPP series posts, discussed some of the conditions of entry for Canada into the TPP negotiations. These included the absence of “veto authority”, which meant that Canada could not hold up any chapter if it was the only country opposing a provision. This ultimately had a significant impact on the intellectual property chapter, where Canada had little choice but to cave on several issues.

Conditions of entry were not the only disadvantage faced by the Canadian negotiators. According to an internal email I recently obtained under the Access to Information Act, Canadian officials were aware that they were at a disadvantage relative to the U.S. in the late stages of the negotiations. The email dated July 9, 2015, was sent to Kirsten Hillman, Canada’s lead TPP negotiator, and Christine Hogan, the International Trade Deputy Minister. It notes that the U.S. had cleared access to the full negotiating text for a wide range of advisors, including business groups and public advocates, but infers that Canada had not done the same. It continues:

I hope the political side lets you do something similar or at least hold technical briefings, or the US will effectively drive the narrative and put you at a disadvantage.

While the source of the email is redacted, the person apparently had access to the highest levels of the Canadian government. It states that the person had spoken with the Prime Minister’s Office, including Ray Novak (Prime Minister Harper’s Chief of Staff), Howard Anglin (Deputy Chief of Staff), Meredith Lilly (Policy Advisor), and Bill Hawkins (Principal Secretary) on the issue.

In other words, the lead Canadian TPP negotiator, department deputy minister, and the Prime Minister’s Office were being advised that Canada was at a disadvantage in the negotiations given the lack of coordination and transparency between government negotiators and interested stakeholders. Technical briefings were held after each round, but that was clearly a far different level of access when compared to the U.S. providing the full text in advance to its interested parties.

As this series unpacks the myriad of concerns with the TPP, the impact of lack of coordination and disclosure on key provisions becomes readily apparent. Moreover, these concerns is consistent with the criticisms expressed by Jim Balsillie, who has lamented that none of the emerging Canadian technology companies were consulted by the government during the negotiations. The Trouble with the TPP is that Canada continued to negotiate without consultation when leaders knew they were at a disadvantage, ultimately leading to a text that has sparked concern from a growing number of business leaders from the technology (Balsillie, Shopify’s Lutke) and manufacturing sectors (Ford Canada CEO Craig).

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors, Day 33: Setting the Rules for a Future Pharmacare Program)

The post The Trouble With the TPP, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage appeared first on Michael Geist.

The Trouble With the TPP, Day 33: Setting the Rules for a Future Pharmacare Program

Michael Geist Law RSS Feed - Thu, 2016/02/18 - 12:24

Earlier Trouble with the TPP posts focused on the health care implications of the agreement, focusing on patent term extensions, biologics protection, and limits on medical devices and pharma data collection. There is another health-related aspect of the TPP worthy of examination, but it is easy to miss. Chapter 26 of the TPP addresses transparency and anti-corruption, which is not the place you would expect to find provisions with a direct impact on health care. Yet Annex 26-A contains a full section on “transparency and procedural fairness for pharmaceutical products and medical devices.”  What does this section do?  The key aspect is to establish mandatory requirements for a national pharmacare program:

To the extent that a Party’s national health care authorities operate or maintain procedures for listing new pharmaceutical products or medical devices for reimbursement purposes, or setting the amount of such reimbursement, under national health care programmes operated by the national health care authorities, the Party shall:

(a) ensure that consideration of all formal and duly formulated proposals for such listing of pharmaceutical products or medical devices for reimbursement is completed within a specified period of time;
(b) disclose procedural rules, methodologies, principles, and guidelines used to assess such proposals;
(c) afford applicants, and where appropriate, the public, timely opportunities to provide comments at relevant points in the decision-making process;
(d) provide applicants with written information sufficient to comprehend the basis for recommendations or determinations regarding the listing of new pharmaceutical products or medical devices for reimbursement by national healthcare authorities;
(e) make available: (i) an independent review process; or (ii) an internal review process, such as by the same expert or group of experts that made the recommendation or determination, provided that such a review process includes, at a minimum, a substantive reconsideration of the application and that may be invoked at the request of an applicant directly affected by such recommendation or determination by a Party’s national healthcare authorities not to list a pharmaceutical or medical device for reimbursement; and
(f) provide written information to the public regarding such recommendations or determinations, while protecting information considered to be confidential under the Party’s law.

At the moment, these rules do not apply to Canada because we do not have a national pharmacare program. In fact, the chapter specifically acknowledges that “for greater certainty, Canada does not currently operate a national healthcare programme within the scope of this Annex.” While that may be true today, it might not be true tomorrow.  In recent years, provincial cabinet ministers, researchers, health care groups, and hundreds of health care experts have all called for the creation of a national pharmacare program.  Moreover, at a recent meeting of federal and provincial health care ministers, the need to address the high cost of drugs was a top priority.

A national pharmacare program may not become an immediate reality, but given the enormous cost pressures, the frustration with the pharmaceutical industry, and the support within the health care community, it seems like a real possibility in the future. Should Canada decide to establish a national program, the policy choices will not be limited to domestic considerations. Instead, the TPP will be waiting to mandate many program requirements, including appeals and reconsideration of decisions for the benefit of pharmaceutical companies.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors)

The post The Trouble With the TPP, Day 33: Setting the Rules for a Future Pharmacare Program appeared first on Michael Geist.

Yachts and Helicopters?: Why All Stakeholders Should Be Concerned By Blais’ Blast

Michael Geist Law RSS Feed - Thu, 2016/02/18 - 11:06

CRTC Chair Jean-Pierre Blais traveled to Toronto yesterday to deliver a speech to the Canadian Club on television news in an era of change. The talk laid out his vision for the future of communications policy in Canada and feistily defended recent CRTC decisions for broadcast and the Internet. While there is much to like about Blais’ vision – CRTC skeptics will be surprised by the forward-looking approach – it will be lost in the chair’s unnecessary attacks on the industry’s efforts to slow the pace of regulatory change and use of the appellate process.

Blais’ speech tackles many of the big communications of the moment. He notes the need for more aggressive broadband targets and the real-world impact of leaving even a few percent of Canadians without Internet access. He rightly identifies the benefits of the forthcoming broadcast changes, including pick-and-pay and small cheaper basic packages. He argues that the days of simultaneous substitution are coming to an end (and not just for the Super Bowl), noting “squeezing every last drop of profit out of simultaneous substitution and rented, made-in-America content is no longer sustainable.” He is sensitive to the concerns on local television news, but warns of the dangers of government interference in the industry if independence is lost through direct funding mechanisms.

Blais has a vision for where communications is headed and he seems determined to drag the Canadian industry along with him. However, much of that message is lost in the bizarre attacks on the industry. I’ve been critical of some of those company policy positions, but talking about hearings where “corporate executives who own luxury yachts and private helicopters came looking for subsidies” comes across as thin-skinned and unnecessary. All sides engage in this kind of talk, but a regulator must surely rise above it.

Worse is the attack on the use of the appellate process, where Blais expresses his anger with companies that “run off to court, they run off to Cabinet to seek relief. It’s their right to do so, but it doesn’t make them right.” I’m no fan of the recent Bell appeal nor its behind-the-scenes effort to gain support from city mayors without debate from city councils. I trust the federal cabinet will see through the effort and reject the appeal. But regardless of the outcome, I don’t understand a regulator who argues that the companies have effectively had their day in court by appearing before the Commission.

The CRTC may be getting some things right, but there will be times when it won’t. Stakeholders from all sides should have the right to use the legal process to ensure that its decisions are fully consistent with the law. There are legitimate concerns with the current process – there needs to be a mechanism to ensure that individuals who merely provide their views as part of hearing are not dragged into court as recently occurred in a Bell case – but the right to appeal is something that everyone depends upon. When Blais criticizes the use of appeals and engages in character assassination of the people who appear before the Commission, he undermines the perception of neutrality at the CRTC and ultimately harms the very goals he is trying to achieve.

The post Yachts and Helicopters?: Why All Stakeholders Should Be Concerned By Blais’ Blast appeared first on Michael Geist.

Apple, the FBI, and the San Bernadino iPhone

Freedom to Tinker - Wed, 2016/02/17 - 13:27
Apple just posted a remarkable “customer letter” on its web site. To understand it, let’s take a few steps back. In a nutshell, one of the San Bernadino shooters had an iPhone. The FBI wants to root through it as part of their investigation, but they can’t do this effectively because of Apple’s security features. […]

The Trouble With the TPP, Day 32: Illusory Safeguards Against Encryption Backdoors

Michael Geist Law RSS Feed - Wed, 2016/02/17 - 11:30

The news that the U.S. government has obtained a court order requiring Apple to assist law enforcement to break the encryption on an iPhone owned by one of the San Bernadino terrorists has sparked widespread concern. There is some debate over the scope of the judicial order – Techdirt points out that the order does not require Apple to break its encryption but rather allow the government to “brute force” the password without deleting the data – but it is clear that the goal is to limit the effectiveness of the encryption protections found on the popular device. Apple has issued a public letter stating its view that this is a dangerous precedent that could be repeated over and over again. Indeed, if a U.S. court can issue such an order, there is seemingly nothing to stop other governments from doing the same.

What does this have to do with the TPP?

The U.S. has suggested that the TPP would address these issues, claiming that the agreement:

Ensures that companies and individuals are able to use the cybersecurity and encryption tools they see fit, without arbitrary restrictions that could stifle free expression.

The Trouble with the TPP is that a closer examination of the deal reveals that it would not stop any member country from issuing an order similar to the U.S. one involving Apple. The U.S. claims involving encryption tools stem from Chapter 8 on Technical Barriers to Trade. Annex 8-B, Section A deals with cryptography:

With respect to a product that uses cryptography and is designed for commercial applications, no Party may impose or maintain a technical regulation or conformity assessment procedure that requires a manufacturer or supplier of the product, as a condition of the manufacture, sale, distribution, import or use of the product, to:
(a) transfer or provide access to a particular technology, production process, or other information (such as a private key or other secret parameter, algorithm specification or other design detail), that is proprietary to the manufacturer or supplier and relates to the cryptography in the product, to the Party or a person in the Party’s territory;
(b) partner with a person in its territory; or
(c) use or integrate a particular cryptographic algorithm or cipher, other than where the manufacture, sale, distribution, import or use of the product is by or for the government of the Party.

Taken on its own, this provision creates some limitations on legislated encryption backdoors. Yet as with many aspects of the TPP, the devil is in the details. This provision is quickly followed with this exception:

For greater certainty, nothing in this Section shall be construed to prevent law enforcement authorities from requiring service suppliers using encryption they control from providing, pursuant to legal procedures, unencrypted communications.

In other words, the TPP may permit the kind of order issued yesterday. In fact, the EFF points out that the TPP goes further, with several other loopholes and exceptions. It characterizes the end result in the following way:

So what appears on the surface to be strong protection for crypto software in the TPP is actually much weaker than it seems: it doesn’t prevent the government from requiring providers to give them access to decrypted data, it doesn’t protect developers against backdoor demands from their own government, it doesn’t protect tools from countries that aren’t TPP signatories, it doesn’t stop a country from demanding access to private keys of a product so long as this demand is not a condition of supply of that product within the country, and on top of all that, there is a sweeping national security exception that can override the provision altogether.

Apple has committed to fighting the judicial order. It might consider doing the same with the TPP.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul)

The post The Trouble With the TPP, Day 32: Illusory Safeguards Against Encryption Backdoors appeared first on Michael Geist.

The Trouble With the TPP, Day 31: Canadian Trademark Law Overhaul

Michael Geist Law RSS Feed - Tue, 2016/02/16 - 11:41

The Trouble with the TPP continues with another area of intellectual property that is subject to an overhaul due to largely to the trade agreement: trademark law. The Canadian government’s summary on the issue once again understates the significance of the changes with assurances that the TPP is “in line with Canada’s existing regime” and “supports Canada’s progress to accede to the Madrid Protocol and Nice Agreement.”

The reality is that government recently passed a massive overhaul of trademark law with little consultation or debate in anticipation of the TPP requirements. In fact, government negotiators opposed some of the trademark requirements in the TPP until very late in the negotiations (including some of the Nice Agreement provisions) recognizing that it was not consistent with Canadian law at the time. The planned Canadian changes are not expected to come into force until 2018 at the earliest.

Yet even when they do, trademark experts believe that Canadian law will still not be consistent with the TPP.  For example, Article 18.19 of the TPP requires that trademarks include collective marks and certification marks (certification marks need not be a separate category provided that they are protected). Neither current Canadian law nor the recent reforms address the issue, so further reforms will be needed. Moreover, there are concerns that Canadian protection for well-known marks does not meet TPP requirements, leading to further TPP-mandated amendments. The requirements have been summarized as follows:

TPP does appear to require the attention of Parliament in respect of well-known trademarks, country names, geographical indications and collective marks. It is imperative that Parliament allow for timely and open consultation on any prospective legislative change. CIPO must also allow for adequate consultation on any administrative changes it is charged with making.

With Canada already having embarked on a huge overhaul of trademark law just prior to the conclusion of the TPP that will take years to implement, it would seem that even more changes are on the horizon.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications)

The post The Trouble With the TPP, Day 31: Canadian Trademark Law Overhaul appeared first on Michael Geist.

City Councils Strike Back in Bell Broadband Battle

Michael Geist Law RSS Feed - Tue, 2016/02/16 - 10:07

The Canadian battle over broadband services has taken an unexpected turn in recent weeks as Bell’s effort to win high profile support for its appeal of a crucial ruling issued by Canada’s telecom regulator appears to have backfired. After support from Toronto Mayor John Tory and Ottawa Mayor Jim Watson for the telecom giant came to light, city councillors in both cities fought back with motions rejecting the mayors’ positions and expressing support for more competitive Internet services.

My weekly technology law column (Toronto Star version, homepage version) notes that the issue started with a July 2015 Canadian Radio-television and Telecommunications Commission decision that extended policy measures designed to support independent Internet providers to emerging fast fibre connections. The ruling meant that Bell would be required to share their infrastructure with independent carriers on a wholesale basis. The policy guarantees Bell a profit on the connections, but also promotes increased competition that should provide consumers with more choice and better pricing.

Bell filed a cabinet appeal in the fall, hoping that the new Liberal government would overturn the CRTC decision. The Liberals have yet to articulate a clear position on the issue with the sole statement found in the mandate letter for Navdeep Bains, the Minister for Innovation, Science and Economic Development. It requires Bains to “increase high-speed broadband coverage and work to support competition, choice and availability of services, and foster a strong investment environment for telecommunications services to keep Canada at the leading edge of the digital economy”. The statement can be interpreted as offering encouraging words for both Bell and its opponents.

Leaving nothing to chance, Bell obtained support for its cabinet appeal from Tory and Watson, who wrote letters citing Bell’s planned investments in the cities and expressing concern that the commission ruling might delay or derail those plans. Conversely, the city of Calgary submitted a 28 page document supporting the CRTC ruling and explaining why increased competition was good for the city and consumers.

The difference between the Calgary submission and the Tory and Watson letters was not limited to policy matters. While the Calgary submission represented the city, the letters from the two Ontario mayors were not written on behalf of their cities but instead reflected their own personal views.

The distinction was not obvious to many, however, raising the ire of city councillors. First, Toronto Councillor Mike Layton introduced a motion expressing support for more competition and the CRTC decision. The motion also requested an opportunity to meet with Bains to discuss the issue. In a significant rebuke to Tory, it passed overwhelmingly with 28 in support and only five councillors opposed.

Emboldened by the Toronto motion, last week Ottawa city councillors tabled notice of their own motion. It also resolves that “the city of Ottawa support the CRTC’s decision to require the sharing of fiber-optic networks between large and small competitors.” A vote on the motion is expected in the coming weeks. Watson now acknowledges that he did not spend a lot of time on the issue.

Should the Ottawa city council vote in support of the CRTC decision, three of the biggest cities in Canada will have sent an important message to the federal government. First, there is significant support in large Canadian communities for policy measures that foster increased competition. As telecom companies invest in new networks, cities fear that failure to include mandated access requirements could result in higher prices and less choice for their residents.

Second, Internet access is a major policy and political issue that is attracting mounting attention at both the municipal and provincial levels. Given Bains’ recent emphasis on innovation, an aggressive plan to ensure that all Canadians have access to affordable, fast Internet services is an absolute must.

The post City Councils Strike Back in Bell Broadband Battle appeared first on Michael Geist.

City Councils Strike Back in Broadband Battle

Michael Geist Law RSS Feed - Tue, 2016/02/16 - 10:04

Appeared in the Toronto Star on February 14, 2016 as Cities Choose Sides in High-Speed Internet Battle

The Canadian battle over broadband services has taken an unexpected turn in recent weeks as Bell’s effort to win high profile support for its appeal of a crucial ruling issued by Canada’s telecom regulator appears to have backfired. After support from Toronto Mayor John Tory and Ottawa Mayor Jim Watson for the telecom giant came to light, city councillors in both cities fought back with motions rejecting the mayors’ positions and expressing support for more competitive Internet services.

The issue started with a July 2015 Canadian Radio-television and Telecommunications Commission decision that extended policy measures designed to support independent Internet providers to emerging fast fibre connections. The ruling meant that Bell would be required to share their infrastructure with independent carriers on a wholesale basis. The policy guarantees Bell a profit on the connections, but also promotes increased competition that should provide consumers with more choice and better pricing.

Bell filed a cabinet appeal in the fall, hoping that the new Liberal government would overturn the CRTC decision. The Liberals have yet to articulate a clear position on the issue with the sole statement found in the mandate letter for Navdeep Bains, the Minister for Innovation, Science and Economic Development. It requires Bains to “increase high-speed broadband coverage and work to support competition, choice and availability of services, and foster a strong investment environment for telecommunications services to keep Canada at the leading edge of the digital economy”. The statement can be interpreted as offering encouraging words for both Bell and its opponents.

Leaving nothing to chance, Bell obtained support for its cabinet appeal from Tory and Watson, who wrote letters citing Bell’s planned investments in the cities and expressing concern that the commission ruling might delay or derail those plans. Conversely, the city of Calgary submitted a 28 page document supporting the CRTC ruling and explaining why increased competition was good for the city and consumers.

The difference between the Calgary submission and the Tory and Watson letters was not limited to policy matters. While the Calgary submission represented the city, the letters from the two Ontario mayors were not written on behalf of their cities but instead reflected their own personal views.

The distinction was not obvious to many, however, raising the ire of city councillors. First, Toronto Councillor Mike Layton introduced a motion expressing support for more competition and the CRTC decision. The motion also requested an opportunity to meet with Bains to discuss the issue. In a significant rebuke to Tory, it passed overwhelmingly with 28 in support and only five councillors opposed.

Emboldened by the Toronto motion, last week Ottawa city councillors tabled notice of their own motion. It also resolves that “the city of Ottawa support the CRTC’s decision to require the sharing of fiber-optic networks between large and small competitors.” A vote on the motion is expected in the coming weeks. Watson now acknowledges that he did not spend a lot of time on the issue.

Should the Ottawa city council vote in support of the CRTC decision, three of the biggest cities in Canada will have sent an important message to the federal government. First, there is significant support in large Canadian communities for policy measures that foster increased competition. As telecom companies invest in new networks, cities fear that failure to include mandated access requirements could result in higher prices and less choice for their residents.

Second, Internet access is a major policy and political issue that is attracting mounting attention at both the municipal and provincial levels. Given Bains’ recent emphasis on innovation, an aggressive plan to ensure that all Canadians have access to affordable, fast Internet services is an absolute must.

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 City Councils Strike Back in Broadband Battle appeared first on Michael Geist.

The Trouble With the TPP, Day 30: Losing Our Way on Geographical Indications

Michael Geist Law RSS Feed - Fri, 2016/02/12 - 12:15

Geographical indications (GI) are signs used on goods – frequently food, wine, or spirits – that have a specific geographical origin and are said to possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Given the quality associated with the product, proponents of GI protection argue that it is needed to avoid consumer confusion as well as to protect legitimate producers.

Europe has the most extensive geographical indication protections in the world. These include Protected Designation of Origin (PDO), which covers agricultural products produced, processed and prepared in a given geographical area using recognized know-how; Protected Geographical Indication (PGI), which covers agricultural products linked to the geographical area; and Traditional Speciality Guaranteed (TSG), which highlights traditional character, either in the composition or means of production. 

The net effect of the European system is that hundreds of items enjoy special legal protection.

What does this have to do with the TPP?

As part of the Canada – EU Trade Agreement, Canada agreed to expand protection for nearly 150 European geographical indications. However, CETA has still not been signed due to controversy over the investor-state dispute resolution provisions in the agreement, which have attracted significant European opposition. Canada and the EU are working on a compromise, but the failure to sign CETA before TPP raises the possibility of problems with the Canadian provisions on geographical indications. Moreover, several side letters indicate that at best a confusing, patchwork approach has been created.

Section E of the TPP’s intellectual property chapter establishes the legal protections for geographical indications. The U.S. is opposed to GI protection (it argues that trademarks can achieve the same thing) and wanted to use the TPP to help block European demands for GI protection. The section therefore creates several types of GI protection: protections for new GIs (very stringent requirements including the possibility of cancellation), protections for existing GIs (which are effectively grandfathered), and protections for new GIs due to existing international agreements, for which a couple of procedures are identified.

The most relevant provision for Canada involves the procedure for existing international agreements. Canadian negotiators clearly wanted to include CETA within the scope of the provision even though the deal is not concluded. Canada therefore likely inserted the following footnote:

For the purpose of this Article, an agreement “agreed in principle” means an agreement involving another government, government entity or international organisation in respect of which a political understanding has been reached and the negotiated outcomes of the agreement have been publically announced.

That sounds like CETA and reports indicate that Canadian officials believe this covers it. That would place the new European GIs under the procedures for existing international agreements. Article 18.36(2) states:

In respect of international agreements referred to in paragraph 6 that permit the protection or recognition of a new geographical indication, a Party shall

(a) apply paragraph 1(b) [which involves Internet postings of details on potential new GIs] ;
(b) provide an opportunity for interested persons to comment regarding the protection or recognition of the new geographical indication for a reasonable period of time before such a term is protected or recognised; and
(c) inform the other Parties of the opportunity to comment, no later than the commencement of the period for comment.

These provisions are designed to provide greater transparency with GIs, but does not include a clear opposition mechanism. However, there is another footnote that is creating some confusion:

In respect of an international agreement referred to in paragraph 6 that has geographical indications that have been identified, but have not yet received protection or recognition in the territory of the Party that is a party to that agreement, that Party may fulfil the obligations of paragraph 2 by complying with the obligations of paragraph 1.

The obligations of paragraph 1 include the possibility of opposition and cancellation of a GI. Some reports have speculated that Canada might have to follow this latter approach, though the word “may” suggests that either option is valid.

If that was not sufficiently complex, Canada also signed four side letters on GIs. The letters with Peru and Chile simply confirm that existing GI approach found in the Peru and Chile free trade agreements with Canada. The letter with Japan confirms the existence of GIs protected in each country and opens the door to new ones in the future. Most notably, the letter with Mexico identifies three Mexican GIs that are eligible for protection, but Canada reserves the right to use the TPP’s cancellation provisions. This letter may explain the confusing footnote that allows for two different compliance approaches.

By now, the legal complexity of this provision means that most readers will have stopped reading. Yet the Trouble with the TPP is that a trade agreement that is supposed to make things easier for business actually succeeds in making it more difficult. These rules will have a real-world impact on Canada and Canadian businesses, which will be left to grapple with numerous different legal approaches and commitments to GIs arising from domestic rules, the various trade agreements, and side letters with one-third of TPP members.

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty)

The post The Trouble With the TPP, Day 30: Losing Our Way on Geographical Indications appeared first on Michael Geist.

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