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Why the Government’s Commitment to “Open by Default” Must Be Bigger Than Open Data

Michael Geist Law RSS Feed - Wed, 2015/12/09 - 11:09

This week, I was pleased to participate in a joint initiative between the University of Ottawa’s Public Law Group and iPolitics to examine the government’s Speech from the Throne from many policy perspectives. This includes contributions from Professors Mendes, Morales, Oliver, Pal, Dodek, Forcese, Chalifour, and Cairns Way. My piece (iPolitics version, homepage version) focuses on the government’s commitment to “open by default”, which appears in all ministerial mandate letters. I note that the emphasis on open and transparent government in the Speech from the Throne was both welcome and unsurprising. Prime Minister Justin Trudeau campaigned on openness and transparency with impressive commitments to transform how Canadians access government information.

While the Throne Speech was short on specifics, every ministerial mandate letter (whose release was itself an important step toward greater openness) stated:

We have also committed to set a higher bar for openness and transparency in government.  It is time to shine more light on government to ensure it remains focused on the people it serves.  Government and its information should be open by default.

Moreover, some ministers received specific instructions on the issue. For example, Treasury Board President Scott Brison’s letter calls on him to “accelerate and expand open data initiatives and make government data available digitally, so that Canadians can easily access and use it”, while Minister of Innovation, Science and Development Navdeep Bains is tasked with improving “the quality of publicly available data in Canada.”

An “open by default” standard is the right approach to open data and is likely to lead to a significant expansion of the government information readily available to the public. Yet if success is measured primarily by the number of accessible data sets, the effort will have failed. The open data commitment must also address the ability of Canadians to have the connectivity necessary to access the information, the legal rights to use it, and the power to obtain government information of their choosing beyond large data sets.

The issue of connectivity is directly linked to the need for universal, affordable broadband services. Canada’s goals for broadband access has been a confusing mix of policy pronouncement and regulator targets. The Canadian Radio-television and Telecommunications Commission 2015-2016 Priorities and Planning Report target for broadband access is 5 megabits per second download for 100 per cent of the population by the end of this year. Meanwhile, the current government’s target will take many more years to complete (the target is 280,000 Canadians with new or faster access by March 2019) and it does not envision universal access.

Given the state of Canadian broadband, there is a desperate need for new thinking on affordable broadband access that goes beyond funding announcements that can take years to implement. Indeed, if the commitment to open by default for government information means open to all, then the lack of affordable connectivity for many Canadians must be addressed.

Once Canadians can access government data, they must also have the legal right to use it in whatever manner they see fit. Canada still retains “crown copyright”, which reflects a centuries-old perspective that the government ought to control the public’s ability to use official documents.  Today crown copyright extends for fifty years from creation and it requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission.

The Conservative government introduced a non-commercial licence for government information to allow for some usage without the need for further permission. That approach has its limitations, however, including the prospect of licensing changes and restrictions on commercial usage. The far better approach would be for government to get out of the copyright ownership business altogether, by repealing crown copyright.

Finally, open data should mean more than just data sets as there must also be sufficient resources to allow for a robust access to information system. The Information Commissioner of Canada has repeatedly warned that inadequate financing has made it virtually impossible to meet demand and respond to complaints.  Regular users of the access to information system invariably encounter long delays, aggressive use of exceptions to redact important information, significant costs, and inconsistent implementation of technology to provide more efficient and cost-effective service.

In short, the access to information system is broken. An open government plan that only addresses the information that government wants to make available, rather than all of the information to which the public is entitled, is not an open plan. Open by default is the right place to start and Canadians will be watching intently to see how far the policy extends.

The post Why the Government’s Commitment to “Open by Default” Must Be Bigger Than Open Data appeared first on Michael Geist.

Set the Data Free, Mr. Trudeau

Michael Geist Law RSS Feed - Wed, 2015/12/09 - 11:06

Appeared in iPolitics on December 8, 2015 as Set the Data Free, Mr. Trudeau

The emphasis on open and transparent government in the Speech from the Throne was both welcome and unsurprising. Prime Minister Justin Trudeau campaigned on openness and transparency with impressive commitments to transform how Canadians access government information.

While the Throne Speech was short on specifics, every ministerial mandate letter (whose release was itself an important step toward greater openness) stated:

We have also committed to set a higher bar for openness and transparency in government.  It is time to shine more light on government to ensure it remains focused on the people it serves.  Government and its information should be open by default.

Moreover, some ministers received specific instructions on the issue. For example, Treasury Board President Scott Brison’s letter calls on him to “accelerate and expand open data initiatives and make government data available digitally, so that Canadians can easily access and use it”, while Minister of Innovation, Science and Development Navdeep Bains is tasked with improving “the quality of publicly available data in Canada.”

An “open by default” standard is the right approach to open data and is likely to lead to a significant expansion of the government information readily available to the public. Yet if success is measured primarily by the number of accessible data sets, the effort will have failed. The open data commitment must also address the ability of Canadians to have the connectivity necessary to access the information, the legal rights to use it, and the power to obtain government information of their choosing beyond large data sets.

The issue of connectivity is directly linked to the need for universal, affordable broadband services. Canada’s goals for broadband access has been a confusing mix of policy pronouncement and regulator targets. The Canadian Radio-television and Telecommunications Commission 2015-2016 Priorities and Planning Report target for broadband access is 5 megabits per second download for 100 per cent of the population by the end of this year. Meanwhile, the current government’s target will take many more years to complete (the target is 280,000 Canadians with new or faster access by March 2019) and it does not envision universal access.

Given the state of Canadian broadband, there is a desperate need for new thinking on affordable broadband access that goes beyond funding announcements that can take years to implement. Indeed, if the commitment to open by default for government information means open to all, then the lack of affordable connectivity for many Canadians must be addressed.

Once Canadians can access government data, they must also have the legal right to use it in whatever manner they see fit. Canada still retains “crown copyright”, which reflects a centuries-old perspective that the government ought to control the public’s ability to use official documents.  Today crown copyright extends for fifty years from creation and it requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission.

The Conservative government introduced a non-commercial licence for government information to allow for some usage without the need for further permission. That approach has its limitations, however, including the prospect of licensing changes and restrictions on commercial usage. The far better approach would be for government to get out of the copyright ownership business altogether, by repealing crown copyright.

Finally, open data should mean more than just data sets as there must also be sufficient resources to allow for a robust access to information system. The Information Commissioner of Canada has repeatedly warned that inadequate financing has made it virtually impossible to meet demand and respond to complaints.  Regular users of the access to information system invariably encounter long delays, aggressive use of exceptions to redact important information, significant costs, and inconsistent implementation of technology to provide more efficient and cost-effective service.
In short, the access to information system is broken. An open government plan that only addresses the information that government wants to make available, rather than all of the information to which the public is entitled, is not an open plan. Open by default is the right place to start and Canadians will be watching intently to see how far the policy extends.

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 Set the Data Free, Mr. Trudeau appeared first on Michael Geist.

Government Docs Suggest Officials Thinking About Website Blocking, Targeting VPN Usage

Michael Geist Law RSS Feed - Tue, 2015/12/08 - 10:47

The Trudeau government has thus far said very little about its plans for future digital and copyright policy reform. There were few references in its election platform and the ministerial mandate letters that identify immediate policy priorities did not speak to the issue.

My weekly technology law column (Toronto Star version, homepage version) notes that according to ministerial briefing documents recently released by the government, Canadian Heritage officials have told new minister Mélanie Joly that emerging issues may include targeting the use of virtual private networks and website blocking. The comments can be found in a departmental briefing for Joly on copyright policy, which includes a discussion titled “what’s next” for copyright.

The document identifies three issues, each likely to be exceptionally controversial. The first involves the use of virtual private networks (VPN) for copyright infringing purposes.  VPNs are widely used in corporate environments to ensure secure communications and by a growing number of individual Internet users seeking technological tools to better safeguard their online privacy.

The same technologies can be used to hide infringing activity, however. Those activities raise genuine issues, though the prospect of targeting the technology itself would quickly generate robust opposition from those who rely on VPNs for a myriad of legitimate purposes.

Officials point to “hybrid legal/illegal offer of online content” as another emerging issue. The reference to hybrid offering may be a reference to those accessing U.S. Netflix, which is a legal service, but raises concerns when a non-U.S. subscriber accesses content that is not licensed in their country. The popularity of accessing U.S. Netflix attracted considerable attention earlier this year when a Bell Media executive said that that Canadians who access the U.S. version of Netflix are stealing.

If officials are considering legislative reforms, that may confirm what most legal experts have long maintained: claims that current copyright law prohibits subscriber access to U.S. Netflix is very weak. There is a possible argument that subscribers violate new rules against circumventing technological protection measures (better known as digital locks), but without any damages and with Netflix needed to enforce its rights against its own customers, there is no real prospect of legal action.

Much like new legal rules for VPN use, new laws on accessing foreign streaming services would be complicated and difficult to enforce.  With millions of Canadian Netflix users, there is no possibility of targeting individuals. The only real possibility is take action against the streaming services themselves. Canada already has tough laws targeting websites that enable infringement, but so-called hybrid services are a business issue for rights holders rather than a matter for copyright reform.

If targeting VPNs and U.S. Netflix were not enough, department officials also focus on website blocking, stating that “Internet service provider blocking of illegal sites hosted outside Canada” is an emerging issue.

As recently highlighted in the context of Quebec’s plans to require blocking of unlicensed online gambling sites, mandating website blocking raises serious legal concerns including who determines whether a site is “illegal”, how to force Internet providers to block access to foreign sites, and how to address the inevitable constitutional concerns over government-backed blocking requirements. Indeed, the prospect of considering expanded blocking for copyright purposes validates the fears of civil liberties groups that the introduction of blocking requirements invariably expands to cover a wider net of content.

Canadian copyright was already on track for a boisterous debate in the coming years with changes such as copyright term extension mandated by the Trans Pacific Partnership and a review of the law scheduled for 2017. If government officials envision adding VPN usage, access to U.S. Netflix, and website blocking to the list of issues, copyright could emerge as one of the government’s most difficult and controversial issues.

The post Government Docs Suggest Officials Thinking About Website Blocking, Targeting VPN Usage appeared first on Michael Geist.

Why Netflix May Come Under Fire from Ottawa

Michael Geist Law RSS Feed - Tue, 2015/12/08 - 10:46

Appeared in the Toronto Star on December 6, 2015 as Why Netflix May Come Under Fire From Ottawa

The Trudeau government has thus far said very little about its plans for future digital and copyright policy reform. There were few references in its election platform and the ministerial mandate letters that identify immediate policy priorities did not speak to the issue.

According to ministerial briefing documents recently released by the government, Canadian Heritage officials have told new minister Mélanie Joly that emerging issues may include targeting the use of virtual private networks and website blocking. The comments can be found in a departmental briefing for Joly on copyright policy, which includes a discussion titled “what’s next” for copyright.

The document identifies three issues, each likely to be exceptionally controversial. The first involves the use of virtual private networks (VPN) for copyright infringing purposes.  VPNs are widely used in corporate environments to ensure secure communications and by a growing number of individual Internet users seeking technological tools to better safeguard their online privacy.

The same technologies can be used to hide infringing activity, however. Those activities raise genuine issues, though the prospect of targeting the technology itself would quickly generate robust opposition from those who rely on VPNs for a myriad of legitimate purposes.

Officials point to “hybrid legal/illegal offer of online content” as another emerging issue. The reference to hybrid offering may be a reference to those accessing U.S. Netflix, which is a legal service, but raises concerns when a non-U.S. subscriber accesses content that is not licensed in their country. The popularity of accessing U.S. Netflix attracted considerable attention earlier this year when a Bell Media executive said that that Canadians who access the U.S. version of Netflix are stealing.

If officials are considering legislative reforms, that may confirm what most legal experts have long maintained: claims that current copyright law prohibits subscriber access to U.S. Netflix is very weak. There is a possible argument that subscribers violate new rules against circumventing technological protection measures (better known as digital locks), but without any damages and with Netflix needed to enforce its rights against its own customers, there is no real prospect of legal action.

Much like new legal rules for VPN use, new laws on accessing foreign streaming services would be complicated and difficult to enforce.  With millions of Canadian Netflix users, there is no possibility of targeting individuals. The only real possibility is take action against the streaming services themselves. Canada already has tough laws targeting websites that enable infringement, but so-called hybrid services are a business issue for rights holders rather than a matter for copyright reform.

If targeting VPNs and U.S. Netflix were not enough, department officials also focus on website blocking, stating that “Internet service provider blocking of illegal sites hosted outside Canada” is an emerging issue.

As recently highlighted in the context of Quebec’s plans to require blocking of unlicensed online gambling sites, mandating website blocking raises serious legal concerns including who determines whether a site is “illegal”, how to force Internet providers to block access to foreign sites, and how to address the inevitable constitutional concerns over government-backed blocking requirements. Indeed, the prospect of considering expanded blocking for copyright purposes validates the fears of civil liberties groups that the introduction of blocking requirements invariably expands to cover a wider net of content.

Canadian copyright was already on track for a boisterous debate in the coming years with changes such as copyright term extension mandated by the Trans Pacific Partnership and a review of the law scheduled for 2017. If government officials envision adding VPN usage, access to U.S. Netflix, and website blocking to the list of issues, copyright could emerge as one of the government’s most difficult and controversial issues.

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

The post Why Netflix May Come Under Fire from Ottawa appeared first on Michael Geist.

CITP Call for Visitors and Affiliates for 2016-17

Freedom to Tinker - Thu, 2015/12/03 - 12:48
The Center for Information Technology Policy is an interdisciplinary research center at Princeton that sits at the crossroads of engineering, the social sciences, law, and policy. We are seeking applicants for various residential visiting positions and for non-residential affiliates. For more information about these positions, please see our general information page and our lists of […]

Quebec Law Would Violate First Rule of the Canadian Internet

Michael Geist Law RSS Feed - Wed, 2015/12/02 - 11:05

If there is a first rule of the Internet in Canada, it is “thou shall not block.” Canadian Internet service providers face a wide range of policies that have implications for accessing content including net neutrality rules and the copyright notice-and-notice system. Yet in virtually all cases, blocking or removing content is simply not done (the lone exception is a limited, private sector led initiative to block child pornography images).

My weekly technology law column (Toronto Star version, homepage version) notes that unlike other countries which have dabbled in mandated takedowns or Internet filtering, Canada has largely defended an “open Internet”. Canadian law does not mandate that Internet providers take down content due to unproven allegations of copyright infringement or allow them to alter or change content. In fact, the Telecommunications Act stipulates that “a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.”

Despite the clear legal mandate to avoid blocking, earlier this month the Quebec government introduced unprecedented legislation that would require Internet providers to engage in content blocking. The new bill targets unlicensed online gambling websites as part of the government’s efforts to increase revenues from its own online gambling service, which has thus far failed to meet expectations.

The provisions are contained in an omnibus bill implementing elements of the government’s spring budget, which included a promise to establish website blocking requirements. The bill provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The government’s lottery commission will establish the list of banned websites.

According to the law, Internet providers are required to block access to the banned sites within 30 days. Failure to comply with the law could lead to initial fines of up to $100,000 with higher penalties for repeat offenders.

The Quebec initiative seems certain to end up before the courts. First, the Canadian constitution grants exclusive jurisdiction over telecommunications to the federal government. The Quebec government has unsuccessfully challenged the jurisdictional issue in the past.

While it will likely argue that the website blocking is a matter of consumer protection which falls to the provinces (the rules will be placed in the Quebec consumer protection law), its stated purpose has little to do with protecting consumers. When the measure was first announced in the budget, the government noted that its own site was not meeting revenue targets and that it believed that website blocking would generate millions in additional revenue. In fact, the government’s own working group on online gambling recommended a licensing system for all sites over blocking as the best means of protecting consumers.

If the jurisdictional issues fail to convince the courts, a free speech challenge surely will. There is little doubt that the government-mandated blocking represents a limit on the fundamental freedoms found in the Charter of Rights and Freedoms. While those rights are not absolute, Quebec will face a difficult time arguing that the blocking is a reasonable limitation given the availability of alternatives that do not limit speech and might be more effective in protecting the public.

The no blocking approach has served Canadians well, ensuring universal access to the content of their choice. As Quebec seeks to undo the first law of the Canadian Internet, it opens the door to expanded content blocking initiatives, perhaps targeting websites that do not meet language requirements or are alleged to contain infringing content. If the bill becomes law, a legal challenge that brings together Internet providers, civil liberties groups, and consumer advocates is a must.

The post Quebec Law Would Violate First Rule of the Canadian Internet appeared first on Michael Geist.

Quebec’s Online Gambling Law Threatens Canada’s Open Internet

Michael Geist Law RSS Feed - Wed, 2015/12/02 - 10:56

Appeared in the Toronto Star on November 30, 2015 as Quebec’s Online Gambling Law Threatens Canada’s Open Internet

If there is a first rule of the Internet in Canada, it is “thou shall not block.” Canadian Internet service providers face a wide range of policies that have implications for accessing content including net neutrality rules and the copyright notice-and-notice system. Yet in virtually all cases, blocking or removing content is simply not done (the lone exception is a limited, private sector led initiative to block child pornography images).

Unlike other countries which have dabbled in mandated takedowns or Internet filtering, Canada has largely defended an “open Internet”. Canadian law does not mandate that Internet providers take down content due to unproven allegations of copyright infringement or allow them to alter or change content. In fact, the Telecommunications Act stipulates that “a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.”

Despite the clear legal mandate to avoid blocking, earlier this month the Quebec government introduced unprecedented legislation that would require Internet providers to engage in content blocking. The new bill targets unlicensed online gambling websites as part of the government’s efforts to increase revenues from its own online gambling service, which has thus far failed to meet expectations.

The provisions are contained in an omnibus bill implementing elements of the government’s spring budget, which included a promise to establish website blocking requirements. The bill provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The government’s lottery commission will establish the list of banned websites.

According to the law, Internet providers are required to block access to the banned sites within 30 days. Failure to comply with the law could lead to initial fines of up to $100,000 with higher penalties for repeat offenders.

The Quebec initiative seems certain to end up before the courts. First, the Canadian constitution grants exclusive jurisdiction over telecommunications to the federal government. The Quebec government has unsuccessfully challenged the jurisdictional issue in the past.

While it will likely argue that the website blocking is a matter of consumer protection which falls to the provinces (the rules will be placed in the Quebec consumer protection law), its stated purpose has little to do with protecting consumers. When the measure was first announced in the budget, the government noted that its own site was not meeting revenue targets and that it believed that website blocking would generate millions in additional revenue. In fact, the government’s own working group on online gambling recommended a licensing system for all sites over blocking as the best means of protecting consumers.

If the jurisdictional issues fail to convince the courts, a free speech challenge surely will. There is little doubt that the government-mandated blocking represents a limit on the fundamental freedoms found in the Charter of Rights and Freedoms. While those rights are not absolute, Quebec will face a difficult time arguing that the blocking is a reasonable limitation given the availability of alternatives that do not limit speech and might be more effective in protecting the public.

The no blocking approach has served Canadians well, ensuring universal access to the content of their choice. As Quebec seeks to undo the first law of the Canadian Internet, it opens the door to expanded content blocking initiatives, perhaps targeting websites that do not meet language requirements or are alleged to contain infringing content. If the bill becomes law, a legal challenge that brings together Internet providers, civil liberties groups, and consumer advocates is a 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 Quebec’s Online Gambling Law Threatens Canada’s Open Internet appeared first on Michael Geist.

What Canadian Heritage Officials Didn’t Tell Minister Mélanie Joly About Copyright

Michael Geist Law RSS Feed - Mon, 2015/11/30 - 16:16

Last week, Canadian Heritage posted the Ministerial briefing book that officials used to bring new minister Mélanie Joly up-to-speed on the issues in her portfolio. The proactive release is a great step toward further transparency. While the mandate letter from the Prime Minister provides insight into government policy priorities, the briefing book sheds light on what department officials view as priorities and how they frame key issues.

The copyright presentation is particularly revealing since it presents Minister Joly with a version of Canadian copyright lacking in balance in which “exceptions are always subject to certain conditions” but references to similar limitations on rights themselves are hard to find.  Department officials present a frightening vision of emerging copyright issues, pointing to mandated Internet provider blocking, targeting copyright infringement that occurs on virtual private networks, and “hybrid” legal/illegal services that may be a reference to Canadians accessing U.S. Netflix. The suggestion that Canadian Heritage officials have identified site blocking or legal prohibitions on VPN or U.S. Netflix usage as emerging copyright issues should set off alarm bells well in advance of the 2017 copyright reform process.

So what didn’t officials tell Minister Joly? The reality is that the Minister would benefit from a second presentation that discusses issues such as:

  • the emergence of technological neutrality as a principle of copyright law
  • how Canada may be at a disadvantage relative to the U.S. given the absence of a full fair use provision
  • the growth of alternate licensing systems such as Creative Commons
  • how term extension for sound recordings was passed even though the issue was scarcely raised during the 2012 reform process
  • why extending the term of copyright (as proposed by the TPP) would do enormous harm to Canadian heritage.

Yet none of these issues are discussed in the briefing. As for these briefing materials, the following seven issues stand out:

1.     Copyright Limitations and Balance

Last week, the Supreme Court of Canada stated:

It is well established that copyright law maintains “a balance between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creators” of those works. This balance “lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them”.

Minister Joly could be forgiven if she was unaware of the emphasis on balance in copyright. Her departmental officials devote a slide to using copyright content and do not mention the word “balance” in it. The slide notes that exceptions (not user rights) are always subject to conditions. The limitations on copyright – the need for a substantial part of the work, the expiry of copyright, etc. – do not merit a mention. If the Minister is to truly understand the copyright policy debate in Canada, digging into the balancing issues that have been at the heart of policy, political, and court debates is essential.

2.    They are user rights, not “user rights”

Successive Supreme Court of Canada decisions have removed any doubt that user’s rights are an integral part of Canadian copyright law. Yet Canadian Heritage officials seem unconvinced. There is no reference to the Supreme Court jurisprudence and while the court has stated that fair dealing is a user’s right, officials insist on calling it an exception (there is actually no reference to fair dealing either). In fact, the only reference to user’s rights warns that there may be “more calls for limits to be placed on copyright or to recognize ‘user rights’ to increased access to copyrighted material.” To be clear, there is no need for quotation marks around user rights as they are very real. Further, user’s rights are not about more limits on copyright, but rather about the balance that forms of the foundation of copyright.

3.    Emerging copyright issues and pressures

As noted above, department officials identify three issues they claim are emerging:

  • Copyright infringement using Virtual Private Networks (VPNs)
  • Hybrid legal/illegal offer of online content
  • ISP blocking of illegal sites hosted outside Canada

I would be curious to see what evidence supports the claim that these are emerging issues in Canada. In a slide that follows, there is no reference to any of these issues as having been raised by stakeholders. Raising the possibility of targeting usage of virtual private networks, mandated ISP blocking of foreign websites, or so-called hybrid legal/illegal offer of online content – presumably a reference to users who access U.S. Netflix – would be incredibly controversial and opposed by numerous stakeholders. Indeed, given that the TPP includes the latest U.S. demands for reform and there is no requirement on any of these issues, where exactly are these pressures coming from?

4.    Notice-and-Notice Is About More Than Just Effectiveness

Department officials state that the effectiveness of the Internet provider notice-and-notice system has been raised by stakeholders. According to CEG-TEK, one of the largest source of notices, the system has proven extremely effective in reducing piracy rates. The far bigger issue, which departmental officials do not raise, is that the system is being used to send thousands of settlement demands to Canadians. While Canadian Heritage officials neglect to mention the issue, this was never the intent of the system and there have been discussions about addressing the issue with clearer requirements on notice content.

5.    Digital Lock Exceptions

An ongoing concern with the Canadian copyright system are the restrictive digital lock rules. In fact, given the restrictiveness of the language, the Conservative government proposed expanding the current exception for the blind. The same restrictive language appears in the exception for privacy protection. Moreover, Canada still does not have a general exception to protect fair dealing. Rather than identifying digital lock regulations as an issue, Canadian Heritage officials make no reference to it in the briefing materials.

6.    Educational Copyright

There are several references to educational copyright, with officials claiming that legislative reforms have “disrupted” former business models of authors, publishers, and their collective societies. Yet legislative reforms are a tiny part of a much bigger story. Driven primarily by technology and the Internet, the landscape for copying and distributing educational materials has changed dramatically over the past 15 years. New technologies have enabled the creation of massive databases of electronic materials, with institutions gradually shifting much of their budgets to electronic subscriptions to enable access to a far larger collection of materials than many libraries could purchase on an individual basis. The emergence of open access publishing, which allows researchers to make their research openly and freely available on the Internet, has become the standard in many disciplines. As for the law, the Supreme Court of Canada’s approach to fair dealing is a far bigger factor for changing approaches than anything the government did in 2012.

7.    The TPP

There are many other concerns with the presentation from departmental officials. Remarkably, another presentation on culture and trade negotiations even gets the status of the TPP wrong, stating that it is in the process of ratification/implementation when it has not even been signed yet. This is a very sensitive issue with the government insisting that no decision has been taken, yet Canadian Heritage officials are now advising the minister that the agreement is at the ratification and implementation stage. Moreover, this marks the second time in recent weeks that government officials have provided a questionable summary of copyright law. The TPP copyright summary released in October was inaccurate, indicating that Canadian law was consistent with the agreement despite the need for copyright term extension that will have an enormous economic and cultural impact on the country.

The post What Canadian Heritage Officials Didn’t Tell Minister Mélanie Joly About Copyright appeared first on Michael Geist.

What Now? Privacy and Surveillance in Canada After the Paris Attacks

Michael Geist Law RSS Feed - Fri, 2015/11/27 - 10:32

As the world grapples with the recent terrorist attacks in Paris, the policy implications for issues such as the acceptance of refugees and continued military participation in the fight against ISIL have unsurprisingly come to the fore. The attacks have also escalated calls to reconsider plans to reform Canadian privacy and surveillance law, a key election promise from the Trudeau government.

My weekly technology law column (Toronto Star version, homepage version) argues that despite the temptation to slow the re-examination of Canadian privacy and surveillance policy, the government should stay the course. The Liberals voted for Bill C-51, the controversial anti-terror law, during the last Parliament, but promised changes to it if elected. Even in the face of a renewed terror threat, those changes remain essential and should not have an adverse impact on operational efforts to combat terror threats that might surface in Canada.

The Liberals promised to establish an all-party review mechanism similar to those found in many other countries that will bring members of Parliament into the oversight process. The Conservatives’ opposition to increased oversight was always puzzling since oversight alone does not create new limitations on surveillance activities.  Rather, it helps ensure that Canada’s surveillance and police agencies operate within the law and restores public confidence in those entrusted with Canadian security.

The other Liberal commitments would similarly address oversight without curtailing surveillance powers. For example, the party promised to increase the powers of the Privacy Commissioner of Canada and to add a mandatory three-year review provision to the law.

Assuming that the oversight issue is addressed, the bigger question is what comes next.  There is a risk that the Paris attacks will renew calls to go beyond even Bill C-51, by restricting the use of encryption technologies that are widely used by financial institutions, health care providers, and a growing segment of the public (but may also be used by terrorist groups) as well as restricting a landmark Supreme Court of Canada ruling on the reasonable expectation of privacy in Internet subscriber information.

The security of all Canadians is absolutely crucial, but there is reason to believe that it can be achieved while still respecting individual privacy rights. Recent studies have emphasized the economic importance of encryption, which underlies the burgeoning Internet economy. To create restrictions on the use of encryption products would undermine consumer confidence, create economic harm, and do little to provide increased security.

Moreover, the Supreme Court of Canada’s Spencer decision on the reasonable expectation of privacy in Internet subscriber information merely confirmed what most Internet users already expected, namely that their personal information would not be disclosed to law enforcement without court oversight. The fact that Internet providers may have revealed such information in the past does not provide a compelling reason to eliminate the critical safeguards provided by the warrant process.

Perhaps the biggest challenge for Canadian privacy comes from access to personal information from outside of our borders. Canadian data is frequently transferred to cloud computing services located outside the country or traverses across non-Canadian networks, even when messages are between two Canadians.

The European Union has assumed a leadership role on the issue of global data transfers, with a recent European Court of Justice ruling that may lead to new restrictions on the transfer of data between Europe and the United States. Canada can ill-afford to remain on the sidelines as standards of privacy protection and access for surveillance agencies are developed.

Rather than slowing down work on Canadian privacy and surveillance policy, recent events in Europe point to the urgent need to address the inadequacies of Canadian oversight while also working to develop rules that provide Canadians with stronger assurances that the law is working to safeguard both their security and privacy.

The post What Now? Privacy and Surveillance in Canada After the Paris Attacks appeared first on Michael Geist.

Are Canadian Internet Privacy Laws at Risk?

Michael Geist Law RSS Feed - Fri, 2015/11/27 - 10:30

Appeared in the Toronto Star on November 23, 2015 as Paris Attacks Put Canada’s Internet Privacy Laws At Risk

As the world grapples with the recent terrorist attacks in Paris, the policy implications for issues such as the acceptance of refugees and continued military participation in the fight against ISIL have unsurprisingly come to the fore. The attacks have also escalated calls to reconsider plans to reform Canadian privacy and surveillance law, a key election promise from the Trudeau government.

Despite the temptation to slow the re-examination of Canadian privacy and surveillance policy, the government should stay the course. The Liberals voted for Bill C-51, the controversial anti-terror law, during the last Parliament, but promised changes to it if elected. Even in the face of a renewed terror threat, those changes remain essential and should not have an adverse impact on operational efforts to combat terror threats that might surface in Canada.

The Liberals promised to establish an all-party review mechanism similar to those found in many other countries that will bring members of Parliament into the oversight process. The Conservatives’ opposition to increased oversight was always puzzling since oversight alone does not create new limitations on surveillance activities.  Rather, it helps ensure that Canada’s surveillance and police agencies operate within the law and restores public confidence in those entrusted with Canadian security.

The other Liberal commitments would similarly address oversight without curtailing surveillance powers. For example, the party promised to increase the powers of the Privacy Commissioner of Canada and to add a mandatory three-year review provision to the law.

Assuming that the oversight issue is addressed, the bigger question is what comes next.  There is a risk that the Paris attacks will renew calls to go beyond even Bill C-51, by restricting the use of encryption technologies that are widely used by financial institutions, health care providers, and a growing segment of the public (but may also be used by terrorist groups) as well as restricting a landmark Supreme Court of Canada ruling on the reasonable expectation of privacy in Internet subscriber information.

The security of all Canadians is absolutely crucial, but there is reason to believe that it can be achieved while still respecting individual privacy rights. Recent studies have emphasized the economic importance of encryption, which underlies the burgeoning Internet economy. To create restrictions on the use of encryption products would undermine consumer confidence, create economic harm, and do little to provide increased security.

Moreover, the Supreme Court of Canada’s Spencer decision on the reasonable expectation of privacy in Internet subscriber information merely confirmed what most Internet users already expected, namely that their personal information would not be disclosed to law enforcement without court oversight. The fact that Internet providers may have revealed such information in the past does not provide a compelling reason to eliminate the critical safeguards provided by the warrant process.

Perhaps the biggest challenge for Canadian privacy comes from access to personal information from outside of our borders. Canadian data is frequently transferred to cloud computing services located outside the country or traverses across non-Canadian networks, even when messages are between two Canadians.

The European Union has assumed a leadership role on the issue of global data transfers, with a recent European Court of Justice ruling that may lead to new restrictions on the transfer of data between Europe and the United States. Canada can ill-afford to remain on the sidelines as standards of privacy protection and access for surveillance agencies are developed.

Rather than slowing down work on Canadian privacy and surveillance policy, recent events in Europe point to the urgent need to address the inadequacies of Canadian oversight while also working to develop rules that provide Canadians with stronger assurances that the law is working to safeguard both their security and privacy.

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 Are Canadian Internet Privacy Laws at Risk? appeared first on Michael Geist.

Why the Supreme Court’s Endorsement of Technological Neutrality in Copyright May Be Anti-Technology

Michael Geist Law RSS Feed - Thu, 2015/11/26 - 13:12

The Supreme Court of Canada issued its long-awaited decision in SODRAC v. CBC today, a case that has major implications for the role of technological neutrality in copyright. As I noted when it was argued before the court, though the case was about whether CBC should be required to pay royalties for incidental copies necessary to use new broadcast technologies, at stake was something far bigger: the future of technological neutrality under Canadian copyright law.  The case offers wins and losses for both users and creators, but the manner in which the court strongly affirmed the principle of technological neutrality runs the risk of actually undermining technological adoption.

CBC argued that technological neutrality means that it should not pay for incidental copies since it already pays for the use of music in broadcasts. The incidental copies – copies which are made to create the final broadcast version of a program (including copies from the master to a content management system or other internal copies to facilitate the broadcast) – do not generate revenue and are simply made to facilitate use of the music that is paid for through a licence. SODRAC, a Quebec-based copyright collective, countered that CBC had always paid for these copies and that the CBC argument was the reverse of technological neutrality, since it wanted to avoid payment in the digital world for copies that were being paid for with earlier, analog technologies. Other parties such as Music Canada used the case to argue for a narrow interpretation of the technological neutrality principle, claiming that it was just an “interpretative metaphor” (similar arguments about users’ rights being no more than a metaphor were rejected by the Supreme Court in 2012).

The court split 7-2 in the case, with Justice Rothstein writing his final copyright decision for the majority (he retired over the summer) and Justice Abella writing a dissent. On the specific issue of royalty payments, SODRAC emerged victorious as the majority ruled that the incidental copies engage the reproduction right and are compensable. The amount of compensation will be determined by the Copyright Board as the majority also ruled that it did not properly take into account the principle of technological neutrality in setting the rate.

The broader implications for Canadian copyright will take some time to figure out, but both users and creators will find elements they like and dislike. From a user perspective, there are several important, favourable findings. First, technological neutrality is confirmed as far more than a metaphor. Indeed, the court emphasizes that it is an integral part of the law:

The principle of technological neutrality is recognition that, absent parliamentary intent to the contrary, the Copyright Act  should not be interpreted or applied to favour or discriminate against any particular form of technology. It is derived from the balancing of user and right-holder interests discussed by this Court in Théberge — a “balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”: para. 30. Because this long-standing principle informs the Copyright Act  as a whole, it must be maintained across all technological contexts: “The traditional balance between authors and users should be preserved in the digital environment”.

Second, the court rejects the view – often raised in the Access Copyright context – that more copying necessarily means more royalties.  The majority states:

The notion that “more copies mean more value and thus, more royalties” is appealing in its simplicity. However, it is out of step with the principles of technological neutrality and balance.

Third, the court ruled that the Copyright Board may not compel a user to agree to the terms of a licence against the will of a user. In other words, Copyright Board tariffs are optional, not mandatory. This aspect of the decision will have clear reverberations for Access Copyright as educational institutions have assurances that they can decide for themselves if the collective’s licence is necessary and not have it mandated for them.

While these are important developments for the user community, the hope that technological neutrality would promote greater certainty and adoption of new technologies may have been lost.  As Justice Abella (rightly in my view) states in dissent:

The result of the majority’s conclusions is uncertainty as to the purpose and application of the principle of technological neutrality in the interpretation and application of the Copyright Act , uncertainty as to how users of copyrighted material are to exercise their authorized rights and activities without incurring additional copyright liability, and uncertainty as to the “value” of incidental activities.

The concern stems primarily from the majority’s decision to effectively expand technological neutrality to include not only a functional equivalence analysis (ie. ensuring that functionally equivalent technologies that are doing the same are treated equivalently) but add in a complex layer of valuation that will make judgements on royalties exceptionally subjective and uncertain.

The question of whether technological neutrality had an impact on the incidental copies at issue in this case came down to a matter of statutory interpretation. The majority ruled that the Copyright Act created specific exceptions that addressed broadcasting and that the court could not “do by ‘interpretation’ what Parliament chose not to do by enactment.” Justice Abella in dissent calls for a robust approach to technological neutrality and argues that the exceptions were enacted “in order to maintain technological neutrality, not a comprehensive statement on the content of the reproduction right, or which kinds of copies will trigger it.” She warns that “to find otherwise would trap Parliament in an interminable and losing game of catch-up with swift and unknown technological currents.”

The future complexity from the case comes from the majority’s extensive discussion on how technological neutrality factors into questions of valuation. SODRAC had argued that it did not factor at all. The majority disagreed, concluding that technological neutrality applies to both the interpretation of the Copyright Act and its application. In doing so, the majority identifies factors for the Copyright Board to consider that have nothing to do with the rights held by the rights holder:

Relevant factors will include, but are not limited to, the risks taken by the user, the extent of the investment the user made in the new technology, and the nature of the copyright protected work’s use in the new technology. The Board must assess the respective contributions of, on the one hand, the risks taken by the user and the investment made by the user, and on the other hand, the reproductions of the copyright protected works, to the value enjoyed by the user.  In this case, where the financial risks of investing in and implementing new technology were undertaken by the user and the use of reproductions of copyright protected works was incidental, the balance principle would imply relatively low licence fees to the copyright holder.

While this suggests that incidental copying as part of a new technology will result in a low royalty, the majority assures that the royalty will not be zero:

it will never be the case that, because a user makes a significant investment in technology or assumes substantial risk, royalties for the rights holder will amount to zero. From the moment the right is engaged, license fees will necessarily follow.

This approach is problematic. First, the linking compensation to user investment does not seem relevant for an analysis of value of copyright works. Indeed, if technological neutrality is a foundation of Canadian copyright law (as everyone agrees), why would the amount of the investment in different technologies designed to achieve the same purposes lead to different amounts of copyright royalties? The user investment and the technology used is a red herring and should be viewed as irrelevant.

Second, the automatic triggering of a licence fee similarly runs counter to technological neutrality. The court has previously emphasized the need to prevent imposing additional, gratuitous fees on the user simply for the use of more efficient technologies.  This decision runs directly counter to that, by actually supporting higher royalties for more efficient technologies.

The CBC v. SODRAC case was billed as placing the future of technological neutrality in copyright in the spotlight. It certainly lived up to expectations with the promise that technological neutrality analysis will become an increasingly important – though uncertain – factor, particularly for cases before the Copyright Board of Canada.

The post Why the Supreme Court’s Endorsement of Technological Neutrality in Copyright May Be Anti-Technology appeared first on Michael Geist.

Signing vs. Ratifying: Unpacking the Canadian Government Position on the TPP

Michael Geist Law RSS Feed - Tue, 2015/11/24 - 10:54

The official release of the Trans Pacific Partnership (TPP), a global trade agreement between 12 countries including Canada, the United States, and Japan, has generated considerable confusion over where the Trudeau government stands on the deal. The TPP was concluded several weeks before the October election and the Liberals were careful to express general support for free trade, but refrain from embracing an agreement that was still secret.

Over the past month, there have been mixed signals over the issue. Chrystia Freeland, the new Minister of International Trade, has committed to a public consultation and noted that her government is not bound by commitments made by the Conservatives (in the interests of full disclosure, I had the opportunity to meet with Minister Freeland to discuss the TPP earlier this month). Yet following a meeting between Prime Minister Justin Trudeau and U.S. President Barack Obama at the APEC conference in Manila, Obama indicated that he expects Canada to soon be a signatory to the deal.

How to explain the seemingly inconsistent comments on the Canadian position on the TPP? The answer may well lie in the differences between reaching an agreement-in-principle, signing the formal text, and ratifying the deal.  Each step is distinct and carries different legal obligations.

The agreement-in-principle occurred in early October during the final round of negotiations in Atlanta. Contrary to reports that Canada “signed” the TPP at the time, there was nothing to sign. The agreement-in-principle closed off the outstanding issues, but the formal text still needed to be finalized. There were some legal implications of the agreement-in-principle, however.  For example, the intellectual property chapter includes an annex that permits Canada’s notice-and-notice rules to qualify as an alternative to the TPP’s notice-and-takedown system (which is modeled on U.S. law). The annex states that only countries that have a similar system at the time of the agreement-in-principle can use the exception, effectively creating a Canadian-only rule.

The next formal stage may be the signing of the TPP, which reports indicate could happen in New Zealand as early as February 2016. There will be strong incentives for all TPP negotiating countries, including Canada, to sign the agreement even if they are unsure about whether they will ultimately ratify it. Chapter 30 of the TPP on Final Provisions addresses some of the technical issues associated with the TPP. The chapter grants special rights to “original signatories”, who are the only ones who qualify for the rules related to entry into force of the agreement (in the event that not all TPP countries ratify the agreement within two years, it takes effect once six original signatories which account for 85 percent of the GDP of the original signatories have ratified it). In other words, if Canada does not participate in the signing of the text, it will not be an original signatory and it will not count for the purposes of the TPP taking formal effect.

The benefits of being an original signatory may be what ultimately motivates Canada to sign the TPP and why President Obama expects it do so. However, the TPP would only become binding upon ratification of the agreement. That would require Canada to amend a wide variety of laws to ensure that it is compliant with TPP requirements.  From a legal perspective, there is a significant difference between signing a treaty (which represents only a supportive gesture) vs. ratifying a treaty (which creates new legal obligations). Howard Knopf has characterized it as the difference between dating and marriage.

It should be noted that many countries sign but do not ratify treaties. 
Indeed, Canada has a fair number of international treaties that is has signed but not ratified, including a 1988 Convention on International Bills of Exchange and International Promissory notes. The same is true for the United States, which has signed the United Nations Convention on the Rights of the Child, but has not ratified it.

Canada could find itself in the same position with the TPP.  Assuming it signs early next year, there will be still be ample time to conduct a full, open consultation on the treaty.  Many have already expressed serious concerns with the implications of the TPP for intellectual property, privacy, Internet governance, and the environment. In light of the mounting concerns, the government could sign the TPP as an original signatory, but still decide to not ratify without changes to the deal.

[this post first appeared on the Centre for Law, Technology and Society blog]

The post Signing vs. Ratifying: Unpacking the Canadian Government Position on the TPP appeared first on Michael Geist.

Why the TPP is a Canadian Digital Policy Failure

Michael Geist Law RSS Feed - Wed, 2015/11/18 - 10:46

The official release of the Trans Pacific Partnership (TPP), a global trade agreement between 12 countries including Canada, the United States, and Japan, has sparked a heated public debate over the merits of the deal. Leading the opposition is Research in Motion founder Jim Balsillie, who has described the TPP as one of Canada’s worst-ever policy moves that could cost the country billions of dollars.

My weekly technology law column (Toronto Star version, homepage version) notes that as Canadians assess the 6,000 page agreement, the implications for digital policies such as copyright and privacy should command considerable attention. On those fronts, the agreement appears to be a major failure. Canadian negotiators adopted a defensive strategy by seeking to maintain existing national laws and doing little to extend Canadian policies to other countries. The result is a deal that the U.S. has rightly promoted as “Made in America.” [a video of my recent talk on this issue can be found here].

In fact, even the attempts to preserve Canadian law were unsuccessful. The TPP will require several important changes to domestic copyright rules including an extension in the term of copyright that will keep works out of the public domain for an additional 20 years. New Zealand, which faces a similar requirement, has estimated that the extension alone will cost its economy NZ$55 million per year. The Canadian cost is undoubtedly far higher.

In addition to term extension, Canada is required to add new criminal provisions to its digital lock rules and to provide the U.S. with confidential reports every six months on efforts to stop the entry of counterfeit products into the country.

While these are all changes that reflect U.S. standards, there was little effort to promote some of Canada’s more innovative copyright policies in the agreement. The U.S. has allowed Canada to keep its “notice-and-notice” policy for Internet providers, but on the condition that no other TPP country may adopt it. Meanwhile, Canadian policies that promote user generated content, limit statutory damages, or establish consumer exceptions are all missing from TPP.

The absence of Canadian policies in the agreement is also reflected in the privacy and e-commerce provisions. Canada features national privacy laws, but the TPP allows countries to meet the privacy requirements with enforceable “voluntary undertakings”, a nod to the weaker U.S. approach. Similarly, Canadian net neutrality regulations and anti-spam rules cannot be found in the TPP, which instead features watered-down versions of each.

The TPP also bans certain digital protections that may come back to haunt Canadian policy makers. For example, it restricts legislative initiatives that require storage of personal information in Canada or that limit data transfers outside the country. It also creates a ban on rules requiring the disclosure of software source code found in mass-market products, a provision that has cyber-security experts and consumer advocates concerned about the implications for detecting harmful software or products that fail to comply with consumer protection or environmental standards (such as Volkswagen’s emissions violations).

The agreement even reverses the longstanding Canadian hands-off approach to the Internet. While Canada has previously rejected regulation of the domain name system, the TPP mandates domain name registrant information disclosure requirements and intellectual property protections for each country-code domain, a remarkable intervention into Internet policy.

Failure to fully comply with the agreement would subject the Canadian government to potential lawsuits under the TPP’s investor-state dispute settlement rules. With Canada already facing a $500 million lawsuit from Eli Lilly over its patent rules, the TPP could usher in a wave of claims focused on challenges to flexible copyright rules, privacy protections, and net neutrality regulations.

Proponents of the TPP will likely point to gains in other areas to justify support for the deal. Yet digital policies form the backbone of the innovation economy, which may be hamstrung by an agreement that does little to advance Canadian law and policy.

The post Why the TPP is a Canadian Digital Policy Failure appeared first on Michael Geist.

Why the TPP is a Digital Policy Failure for Canada

Michael Geist Law RSS Feed - Wed, 2015/11/18 - 10:40

Appeared in the Toronto Star on November 15, 2015 as TPP Will Kill Digital Policy

The official release of the Trans Pacific Partnership (TPP), a global trade agreement between 12 countries including Canada, the United States, and Japan, has sparked a heated public debate over the merits of the deal. Leading the opposition is Research in Motion founder Jim Balsillie, who has described the TPP as one of Canada’s worst-ever policy moves that could cost the country billions of dollars.

As Canadians assess the 6,000 page agreement, the implications for digital policies such as copyright and privacy should command considerable attention. On those fronts, the agreement appears to be a major failure. Canadian negotiators adopted a defensive strategy by seeking to maintain existing national laws and doing little to extend Canadian policies to other countries. The result is a deal that the U.S. has rightly promoted as “Made in America.”

In fact, even the attempts to preserve Canadian law were unsuccessful. The TPP will require several important changes to domestic copyright rules including an extension in the term of copyright that will keep works out of the public domain for an additional 20 years. New Zealand, which faces a similar requirement, has estimated that the extension alone will cost its economy NZ$55 million per year. The Canadian cost is undoubtedly far higher.

In addition to term extension, Canada is required to add new criminal provisions to its digital lock rules and to provide the U.S. with confidential reports every six months on efforts to stop the entry of counterfeit products into the country.

While these are all changes that reflect U.S. standards, there was little effort to promote some of Canada’s more innovative copyright policies in the agreement. The U.S. has allowed Canada to keep its “notice-and-notice” policy for Internet providers, but on the condition that no other TPP country may adopt it. Meanwhile, Canadian policies that promote user generated content, limit statutory damages, or establish consumer exceptions are all missing from TPP.

The absence of Canadian policies in the agreement is also reflected in the privacy and e-commerce provisions. Canada features national privacy laws, but the TPP allows countries to meet the privacy requirements with enforceable “voluntary undertakings”, a nod to the weaker U.S. approach. Similarly, Canadian net neutrality regulations and anti-spam rules cannot be found in the TPP, which instead features watered-down versions of each.

The TPP also bans certain digital protections that may come back to haunt Canadian policy makers. For example, it restricts legislative initiatives that require storage of personal information in Canada or that limit data transfers outside the country. It also creates a ban on rules requiring the disclosure of software source code found in mass-market products, a provision that has cyber-security experts and consumer advocates concerned about the implications for detecting harmful software or products that fail to comply with consumer protection or environmental standards (such as Volkswagen’s emissions violations).

The agreement even reverses the longstanding Canadian hands-off approach to the Internet. While Canada has previously rejected regulation of the domain name system, the TPP mandates domain name registrant information disclosure requirements and intellectual property protections for each country-code domain, a remarkable intervention into Internet policy.

Failure to fully comply with the agreement would subject the Canadian government to potential lawsuits under the TPP’s investor-state dispute settlement rules. With Canada already facing a $500 million lawsuit from Eli Lilly over its patent rules, the TPP could usher in a wave of claims focused on challenges to flexible copyright rules, privacy protections, and net neutrality regulations.

Proponents of the TPP will likely point to gains in other areas to justify support for the deal. Yet digital policies form the backbone of the innovation economy, which may be hamstrung by an agreement that does little to advance Canadian law and policy.

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

The post Why the TPP is a Digital Policy Failure for Canada appeared first on Michael Geist.

New Professors’ Letter Opposing The Defend Trade Secrets Act of 2015

Freedom to Tinker - Tue, 2015/11/17 - 18:55
As Freedom to Tinker readers may recall, I’ve been very concerned about the problems associated with the proposed Defend Trade Secrets Act. Ostensibly designed to combat cyberespionage against United States corporations, it is instead not a solution to that problem, and fraught with downsides. Today, over 40 colleagues in the academic world joined Eric Goldman, Chris Seaman, Sharon […]

Canada and the TPP: My Talk on a Digital Policy Failure

Michael Geist Law RSS Feed - Mon, 2015/11/16 - 13:46

Last week, I had the opportunity to deliver the keynote address at a Centre for International Governance Innovation (CIGI) panel on the TPP.  My talk, which begins at 4:25 and runs until 41:00, focused on the digital policies within the massive agreement, including intellectual property, privacy, and Internet governance.  After the talk, there was a panel discussion featuring Myra Tawfik, Warren Clarke, Barry Sookman, and David Lametti.  The full event can be found here and is embedded below.

The post Canada and the TPP: My Talk on a Digital Policy Failure appeared first on Michael Geist.

Quebec Bets on Internet Blocking: New Bill Mandates ISP Blocking of Gambling Websites

Michael Geist Law RSS Feed - Fri, 2015/11/13 - 11:22

The Government of Quebec has introduced new legislation that requires Internet service providers to block access to unlicensed online gambling sites. The provisions are contained in an omnibus bill implementing elements of the government’s spring budget, which included a promise to establish website blocking requirements. The bill provides that “an Internet service provider may not give access to an online gambling site whose operation is not authorized under Québec law.” The government’s lottery commission will establish the list of banned websites:

“The Société des loteries du Québec shall oversee the accessibility of online gambling. It shall draw up a list of unauthorized online gambling sites and provide the list to the Régie des alcools, des courses et des jeux, which shall send it to Internet service providers by registered mail.

According to the law:

“An Internet service provider that receives the list of unauthorized online gambling sites in accordance with section 260.35 shall, within 30 days after receiving the list, block access to those sites.

The mandated blocking legislation is unprecedented in Canada and will surely be subject to legal challenge.  To date, the federal government has worked to support a private sector initiative to block access to child pornography images, but the law on child pornography (which bans viewing such materials) is different from this form of website blocking.

As I noted earlier this year, the Quebec government apparently 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. A November 2014 report found that Espacejeux was not meeting revenue targets since people were using other sites. The government believes that the website blocking will increase government revenues by $13.5 million in 2016-17 and $27 million per year thereafter.

The Quebec decision is particularly surprising given recommendations from its own working group on online gambling. It studied the state of online gambling in the province and concluded that the best approach was not to block access to other sites, but rather to invite them all into the market. The key recommendation:

the Working Group believes that in order to control the online gambling market, protect consumers and generate revenues for the government, the best solution for the government is to establish clear rules and open up the online gambling market to private operators. In fact, the best solution is to establish an online gambling licensing system.

Rather than opening the market though, Quebec is instead seeking to censor the Internet for its own commercial gain by ordering Internet providers to block access to any unregulated sites. The plan is likely face a legal challenge, both on free speech and jurisdictional grounds, since the federal government has exclusive jurisdiction over telecommunications regulation.

Moreover, the Quebec legislation moves Canada down a slippery slope, since if this becomes law, it is easier to envision governments requiring the blocking of sites that are alleged to infringe copyright or blocking e-commerce sites that are not bilingual or do not pay provincial taxes. If that happens, the open Internet in Canada would be placed at risk of unprecedented government intervention into how Internet providers manage their networks and what sites Canadians are able to access.

The post Quebec Bets on Internet Blocking: New Bill Mandates ISP Blocking of Gambling Websites appeared first on Michael Geist.

Flawed Copyright Case Places Spotlight on Canada’s Digital Lock Problem

Michael Geist Law RSS Feed - Tue, 2015/11/10 - 10:40

Does asking a friend for a copy of a newspaper article from a subscription website constitute copyright infringement? According to an Ottawa small claims court, it does.

The court recently issued a deeply flawed copyright ruling, providing a timely warning about the dangers of Canada’s restrictive digital lock rules that were enacted by the Conservatives over the strong objection of many copyright watchers.

My weekly technology law column (Toronto Star version, homepage version) notes that the case involved the president of the Canadian Vintners Association (CVA), who received an email from Blacklock’s Reporter, an Ottawa-based political publication, advising that he was quoted in an article discussing a recent appearance before a House of Commons committee. The man did not subscribe to the publication, which places its content behind a paywall, so he contacted a member of the association who was a subscriber and asked if he could see a copy of the article. When Blacklock’s Reporter learned that he had received a copy from the subscriber, it demanded that he pay for a full subscription or face a copyright infringement lawsuit.

While this does not sound like a copyright case, the Ottawa court ruled that the man had violated Canada’s copyright rules by breaching the publication’s paywall (an act it described as a circumvention of a digital lock) and awarded $11,470 in damages plus an additional $2,000 in punitive damages.

The Canadian digital lock rules were enacted in 2012 under pressure from the United States, which wanted Canada to mirror its safeguards on e-books, DVDs, and other digital content. Those rules typically cover circumvention of popular consumer products, but rarely involve website access. In fact, there are several U.S. cases that have concluded that sharing a valid username and password combination with someone else does not constitute circumvention for the purposes of the law.

Yet in the Blacklock’s Reporter case, the president of the CVA did not even try to access the publication’s site with someone else’s credentials. Indeed, it is difficult to see how asking for a copy of a lawfully obtained article could possibly be considered circumvention of a digital lock. Moreover, there is also a strong argument based on several Supreme Court of Canada decisions that providing the copy qualifies as fair dealing under Canadian copyright law.

As a small claims court ruling, the case has no value as precedent (and could still be appealed). However, it places the spotlight on the restrictive digital lock rules that have already caused a chilling effect within Canadian educational institutions, which often fear that circumvention for legitimate, educational purposes may violate the law.

The Conservatives established several narrow exceptions to the general prohibition on circumventing digital locks, but even they seemed to acknowledge that the exceptions are unnecessarily restrictive. Earlier this year, the government introduced a copyright bill to enhance access to materials for the blind which loosened the language in the digital lock exception for the visually impaired. Similar restrictive language can still be found in another exception for privacy protection.

While the Canadian exceptions were narrowly constructed and limited to a handful of circumstances, the U.S. has actually been expanding its digital lock exceptions. It recently introduced exceptions for car security research, repairs, and maintenance, archiving and preserving video games, and for remixing videos from DVDs and Blu-Ray sources.

Canada has the power to introduce new digital lock exceptions, but has yet to do so. During the final stages of the copyright reform process in 2012, the Liberals supported an amendment to expand the digital lock exceptions to cover circumventions for all lawful purposes. As Liberal MP Geoff Regan noted when speaking in support of the change, “what the government seems to want to do is preserve old models and ignore the fact that we have moved into a digital world.” Regan cited comments from software developers, librarians and archivists who all warned of the dangers of overly restrictive digital lock rules.

The Blacklock’s case may be an extreme example of digital lock rules gone wrong, but the case demonstrates that the wrong-headed approach has real-world negative consequences. When the copyright reform debate returns to Parliament Hill, the Liberals best chance to fix the problem is to follow their own advice by permitting circumvention for lawful purposes.

The post Flawed Copyright Case Places Spotlight on Canada’s Digital Lock Problem appeared first on Michael Geist.

Paywall Ruling Places Spotlight on Canada’s Digital Lock Problem

Michael Geist Law RSS Feed - Tue, 2015/11/10 - 10:38

Appeared in the Toronto Star on November 8, 2015 as Paywalls and Punishment

Does asking a friend for a copy of a newspaper article from a subscription website constitute copyright infringement? According to an Ottawa small claims court, it does.

The court recently issued a deeply flawed copyright ruling, providing a timely warning about the dangers of Canada’s restrictive digital lock rules that were enacted by the Conservatives over the strong objection of many copyright watchers.

The case involved the president of the Canadian Vintners Association (CVA), who received an email from Blacklock’s Reporter, an Ottawa-based political publication, advising that he was quoted in an article discussing a recent appearance before a House of Commons committee. The man did not subscribe to the publication, which places its content behind a paywall, so he contacted a member of the association who was a subscriber and asked if he could see a copy of the article. When Blacklock’s Reporter learned that he had received a copy from the subscriber, it demanded that he pay for a full subscription or face a copyright infringement lawsuit.

While this does not sound like a copyright case, the Ottawa court ruled that the man had violated Canada’s copyright rules by breaching the publication’s paywall (an act it described as a circumvention of a digital lock) and awarded $11,470 in damages plus an additional $2,000 in punitive damages.

The Canadian digital lock rules were enacted in 2012 under pressure from the United States, which wanted Canada to mirror its safeguards on e-books, DVDs, and other digital content. Those rules typically cover circumvention of popular consumer products, but rarely involve website access. In fact, there are several U.S. cases that have concluded that sharing a valid username and password combination with someone else does not constitute circumvention for the purposes of the law.

Yet in the Blacklock’s Reporter case, the president of the CVA did not even try to access the publication’s site with someone else’s credentials. Indeed, it is difficult to see how asking for a copy of a lawfully obtained article could possibly be considered circumvention of a digital lock. Moreover, there is also a strong argument based on several Supreme Court of Canada decisions that providing the copy qualifies as fair dealing under Canadian copyright law.

As a small claims court ruling, the case has no value as precedent (and could still be appealed). However, it places the spotlight on the restrictive digital lock rules that have already caused a chilling effect within Canadian educational institutions, which often fear that circumvention for legitimate, educational purposes may violate the law.

The Conservatives established several narrow exceptions to the general prohibition on circumventing digital locks, but even they seemed to acknowledge that the exceptions are unnecessarily restrictive. Earlier this year, the government introduced a copyright bill to enhance access to materials for the blind which loosened the language in the digital lock exception for the visually impaired. Similar restrictive language can still be found in another exception for privacy protection.

While the Canadian exceptions were narrowly constructed and limited to a handful of circumstances, the U.S. has actually been expanding its digital lock exceptions. It recently introduced exceptions for car security research, repairs, and maintenance, archiving and preserving video games, and for remixing videos from DVDs and Blu-Ray sources.

Canada has the power to introduce new digital lock exceptions, but has yet to do so. During the final stages of the copyright reform process in 2012, the Liberals supported an amendment to expand the digital lock exceptions to cover circumventions for all lawful purposes. As Liberal MP Geoff Regan noted when speaking in support of the change, “what the government seems to want to do is preserve old models and ignore the fact that we have moved into a digital world.” Regan cited comments from software developers, librarians and archivists who all warned of the dangers of overly restrictive digital lock rules.

The Blacklock’s case may be an extreme example of digital lock rules gone wrong, but the case demonstrates that the wrong-headed approach has real-world negative consequences. When the copyright reform debate returns to Parliament Hill, the Liberals best chance to fix the problem is to follow their own advice by permitting circumvention for lawful purposes.

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.

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dear Ms. Freeland

Fair Duty by Meera Nair - Sun, 2015/11/08 - 21:38

The Honourable Chrystia Freeland
Minister of International Trade
House of Commons
Ottawa, Ontario
Canada K1A 0A6

Dear Ms. Freeland,

I am pleased to see your invitation to Canadians to familiarize ourselves with the Trans-Pacific Partnership agreement (TPP) and provide comments to the government. Such an overture is much appreciated, particularly in light of the style of governance that has gone before.

But, the Canadian public may need some help in understanding the issues presented through 6000 pages of text. The media are most likely their expected guides in judging the merits of the TPP. Unfortunately, the media has shown little interest in covering, let alone assessing, what may be the most deleterious aspect of the TPP, namely the Investor State Dispute Settlement (ISDS) mechanism. (At this blog, some coverage can be found here, here, here, and here.)

This mechanism, brought to Canada through NAFTA, ostensibly secures business investments from seizure by hostile governments. Sugar plantations and oil fields in alien jurisdictions come to mind. But ISDS windfalls have come through, not for Canada, but from Canada, for international corporations seeking redress when they have felt their profits unfairly curtailed by domestic regulations.

Just prior to the conclusion of the TPP negotiations, Brook Baker (Northeastern University) and Katrina Geddes (Harvard University) posted a paper describing the rise in global applications of ISDS, from 50 instances in the first 50 years of the existence of the mechanism to 608 in the last 15 years. They write:

This sea change in investor-state claims was triggered by the belated realization that not only could investors bring claims against banana-republic confiscations but against emerging economies and even advanced democracies whenever their expectations of profit were thwarted … Accordingly, foreign corporations have used investor-state dispute resolution to challenge a broad array of environmental and land use laws, government procurement decisions, regulatory permitting decisions, financial regulations, consumer protection, public health, and public safety laws, and a range of other public interest policies (p.11).

Baker and Geddes draw attention to Canada’s current difficulties under ISDS: a $500 million challenge from Eli Lilly, all because our courts had the temerity to invalidate a patent which did not live up to assurances. Eli Lilly also complained that our system of patenting was not to their liking. It may be their prerogative to complain about our system, but it should not be their right to change it. Like any other regulatory measure, Canada’s system of patenting was set by a Canadian government, in full compliance with existing international norms. Eli Lilly had every opportunity to press their concerns through Canadian courts. They did, and they lost. The story should have ended there. Yet ISDS offers a venue for Eli Lilly to take a course of action that would render our courts’ decisions irrelevant.

As I noted in an earlier post, the former Harper Government presented the TPP investment protection measures in glowing terms. While such a rosy outlook did not ring true, it is plausible that, having curtailed the Civil Service from doing its job of meaningful scrutiny, the mandarins in Mr. Harper’s office truly did not know better. But with the release of the text we now know that what is encoded into the TPP is ISDS at its worst. Experts who condemned the agreement before it was released have been vindicated, cold comfort as that may be.

Among those experts is internationally acclaimed economist Joseph Stiglitz. In your 2012 publication, Plutocrats: The Rise of the New Global Super-Rich and the Fall of Everyone Else, Stiglitz appears in your acknowledgement of scholars who became “important sounding boards and advisors (p.290).” It is no secret that Stiglitz views the TPP as a charade of a trade agreement; among his recent columns is this assessment:

… These agreements go well beyond trade, governing investment and intellectual property as well, imposing fundamental changes to countries’ legal, judicial, and regulatory frameworks, without input or accountability through democratic institutions.

Perhaps the most invidious – and most dishonest – part of such agreements concerns investor protection. Of course, investors have to be protected against the risk that rogue governments will seize their property. But that is not what these provisions are about. There have been very few expropriations in recent decades, and investors who want to protect themselves can buy insurance from the Multilateral Investment Guarantee Agency, a World Bank affiliate (the US and other governments provide similar insurance). Nonetheless, the US is demanding such provisions in the TPP, even though many of its “partners” have property protections and judicial systems that are as good as its own.

The tone from the participating governments of the TPP is that the agreement is good for business; they rely upon the implied orthodoxy that business well-being translates to citizen well-being. However, you have questioned this orthodoxy. In Plutocrats, you describe a heated exchange in 2011 between then-Governor of the Bank of Canada, Mark Carney and Jamie Dimon, CEO of JP Morgan Chase and write:

Are the interests of the state and its big businesses synonymous? If not, who decides? And if they do clash, does the state have the right—and the might—to curb specific businesses for the collective good (p.255)?

That our Minister of International Trade has your background suggests that the TPP will be examined comprehensively. That our civil service has been unshackled suggests that qualified personnel with backgrounds in law, commerce, human rights, and trade negotiation will be encouraged to exercise their expertise with vigour. That Prime Minister Trudeau has promised transparency suggests that, whatever decision is reached concerning the TPP, Canadians will be fully informed as to both its merits and demerits. If Canadian sovereignty must continue to be diminished, we expect to be told the truth.

But, I choose to be optimistic. The state will not be limited to serving only as a handmaiden to business. My optimism stems from an encore remark in Plutocrats:

The issue, instead, is whether the interests of business and of the community at large are always the same and, if they aren’t, whether the government has the will, the authority and the brains to defend the latter, even against the protests of the former (p.261).

You and your colleagues have been given the authority. Your collective credentials remove any doubt as to the brains. What remains to be answered is the question of will.

I wish you all the best in your endeavors.

Sincerely,
Meera

Meera Nair, Ph.D
Edmonton

 

Update — January 25, 2016

Minister Freeland has posted an open letter, detailing the state of the TPP Agreement. It is encouraging to read that the Federal Government has undertaken widespread consultation, and is committing to fully evaluate the agreement in a transparent manner: “… this should include extensive, non-partisan consideration, analysis, and testimony from all regions, sectors, and backgrounds. Most importantly, this process will be fully public.”

Freeland also states the Canada will sign the agreement in February, but emphasizes that signing the agreement now does not commit Canada to full ratification in two years.  (Readers may remember Howard Knopf’s explanation during discussion of the WIPO treaties, that signing is like dating, whereas ratification is like marriage.) Freeland echoes the simile; stating that, by signing, we preserve our status as “a potential full partner in the Agreement, with all of the rights and powers that go with it.”

Canadian opinion concerning the TPP Agreement is divided. It will not be possible for any government to please everyone. Whatever decision is ultimately arrived at, if it is chosen by knowledgeable, non-partisan actors, with the aim of making the best possible, overall decision, and, with frank acknowledgement of the more deleterious consequences, then Canada will have been well-served by its government.

 


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