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a belated “thank you”

Fair Duty by Meera Nair - Mon, 2014/03/17 - 00:10

On 5 March 2014, Intellectual Property for the 21st Century was officially unveiled by the Centre for Law, Technology and Society of the Faculty of Law at the University of Ottawa. The book is an outcome of a workshop held in the spring of 2012, where “interdisciplinary” was the word of the day. My contribution involved connections between Harold Innis and copyright as it is evolving through the 20th and 21st centuries. The diversity of scholarship set upon a common interest in intellectual property made for engaging discussion; it was a pleasure to participate with this endeavor.

The foreword, provided by David Vaver, an internationally acclaimed intellectual property scholar, includes these observations:

… patents, copyrights, trademarks, designs, and information and image rights have become vibrant individual disciplines and not just in law. … But crosstalk occurs less frequently than it could, and joint work, while growing, is still the exception rather than the norm. … Acting as facilitators [the editors] assembled a group of scholars and practitioners told them to get interdisciplinary with IP – whatever that meant to each one of them – and hope for the best. And as this volume demonstrates, the best can be very good indeed.

My thanks are due to Courtney Doagoo, Mistrale Goudreau, Madelaine Saginur, and Teresa Scassa. Their guidance before, during, and after the workshop, was immeasurable. Editing and shepherding a volume of this nature to completion is no small task – the book spans twenty-five chapters penned by more than thirty authors from different disciplines. I share Vaver’s concluding assessment: “This is an intellectual feast worth savouring and digesting. Anyone with even a passing interest in how society and intellectual property interact will enjoy sampling these delights.”

An overview of the book, and its table of contents, is available here. All chapters are freely available via Irwin Law’s Content Commons, see here.

While I recommend the book in its entirety, I must highlight a much-needed reminder from Graham Reynolds. In his exploration of the viability of a Public Domain Impact Assessment within copyright’s legislative process, Reynolds gives a broad explanation of what the public domain is. More specifically, it includes: “uses of material that are deemed not be covered by intellectual property rights through the application of defenses/exceptions to intellectual property infringement … (p.98).” Said another way, the public domain includes currently copyrighted works when accessed in accordance with fair dealing.

The stature of “public domain” is not only a function of the age of a work, it is also a function of how the work is used. (For further information; see Public Domain.)

Canadian Authors & Publishers: We Demand Education Talk To Us As Long As It Leads to New ...

Michael Geist Law RSS Feed - Fri, 2014/03/14 - 04:36
The Canadian Copyright Institute, an association of authors and publishers, has released a new paper that calls on the Canadian education community to stop relying on its current interpretation of fair dealing and instead negotiate a collective licence with Access Copyright. The paper was apparently published in the fall but is being released publicly now since Canadian education groups have refused to cave to Access Copyright's demands.

The CCI document, which raises some of the same themes found in an Association of Canadian Publisher's paper that distorts Canadian copyright law (thoroughly debunked by Howard Knopf), features at least three notable takeaways: the shift to threats of government lobbying, long overdue admissions that the value of the Access Copyright licence has declined, and emphasis on arguments that have been rejected by the courts and government. There are also three notable omissions: the fact that the overwhelming majority of copying in schools is conducted with publisher permission, the role of technological neutrality, and the relevance of other copyright exceptions. By the end of the document, the CCI and Access Copyright work to fabricate a new fair dealing test that is inconsistent with Supreme Court of Canada rulings as they call for dialogue so long as it leads to a new collective licence.

The Notable Takeaways

First, the CCI threatens the education community that it will lobby the government to change the law unless it resumes paying Access Copyright:

Without an acceptable solution - in other words, the resumption of licensing for schools, colleges and universities - writers and publishers will have to pursue political as well as legal solutions. This is not their preference. There exists a long and valued relationship (symbiotic, even) among writers, publishers, educators and students. We believe that there is a better way forward.

The threat of political solutions is particularly laughable given that the same groups lobbied extensively for two years during the Bill C-32/C-11 process to urge the government to scale back fair dealing. Despite numerous appearances before parliamentary committees, star witnesses, social media campaigns, and public opinion pieces, the government completely rejected their demands. With no appetite for more copyright reform in Ottawa, the threat of a renewed lobby campaign is no threat at all.

Second, Access Copyright and the CCI finally admit that the recent legal changes have reduced the value of their collective licence. After the Supreme Court decisions, Access Copyright stated:

This decision, however, has no impact on the requirement that royalties continue to be paid on
the hundreds of millions of pages of student texts that are copied for use in K‐12 classrooms
every year.

It even argued after the decision that the Supreme Court had not ruled that the copies at issue were fair dealing. Now the groups acknowledge:

Copyright owners may not like but they do accept the Alberta (Education) decision, and that means accepting a lower value for Access Copyright licensing.

In fact, the decreasing value of an Access Copyright license stems from more than just changes to Canadian copyright law.  The collective has also admitted that works older than 20 years are unlikely to be copied under its licences. In its 2012 Payback FAQ to authors, the collective noted:

Q. Why are you only asking for works published within the last 20 years?

A. Our statistical analysis of copying data shows that works published more than 20 years ago are unlikely to be copied under our licences.

This admission from Access Copyright shows how its repertoire is declining in value since a growing percentage of newer materials are available by alternative means, while the older materials may not be subject to an alternate licence, but they are unlikely to be copied. Over the coming years, the Access Copyright squeeze is only going to grow as the entire repertoire of materials likely to be copied - the materials published within the last 20 years - are all published in the digital/Internet era with many available through alternative means such as open access or site licences.

Third, the document's emphasis on the Supreme Court's dissenting opinion or attempts to downplay the law provides a sure sign of a weak argument. The law of the land is reflected by the majority, not the minority view. The references to a "very powerful dissent" or the "bare majority" suggest doubt that simply does not exist. As I pointed out in this post, each of Access Copyright's key arguments (user rights, copier perspective, private study, and aggregate copying) were rejected by the court. The majority view is unlikely to be revisited in the short term. In fact, should the issue return to the court, it is worth noting that the majority judges all remain on the bench, whereas the dissent has already had one retirement with another on the way.

The document also tries to downplay the effect of the Court's decision on numerous occasions. For example, it states:

with the recent addition of "education" as a fair dealing purpose, we accept that some copying for classroom distribution now meets the first test for what can be fair dealing - subject to the very important second test of fairness.

Yet the first test only requires an appropriate purpose. With the inclusion of education in the law as one of the purposes, all copying for classroom distribution undoubtedly meets that part of the test.

What the CCI and Access Copyright Do Not Say

The document is also notable for what it does not say. The CCI and Access Copyright emphasize the 250 million copies that are copied annually, rather than the 16.9 million copies addressed by the court. Yet the evidence in the case before the Copyright Board actually found far more copying. The Access Copyright sponsored study that lies at the heart of the K-12 case that ended up in Canada's highest court found that schools already had permission to reproduce 88% of all books, periodicals, and newspapers without even conducting a copyright analysis or turning to the Access Copyright licence.

That study, conducted by Circum Network Inc., tracked the photocopying practices at hundreds of schools across the country with full logging of all copying over two-week periods. The study found a huge amount of photocopying - the Canada-wide estimate was 14 billion copies - but the overwhelming majority have nothing to do with Access Copyright. In fact, once personal copies, unpublished copies, administrative documents, and self-produced documents were accounted for, the number of copies dropped to 4.5 billion. Most of those 4.5 billion copies were taken from books, but there was permission to reproduce nearly 4 billion of the copies without Access Copyright.

In other words, Access Copyright's own evidence is that schools obtained permission (typically through direct licences or permission from the publishers from whom they purchased hundreds of millions in books) to cover 88% of their book, periodical, and newspaper copying. Access Copyright is simply irrelevant for the overwhelming majority of copying even before anyone conducts a fair dealing analysis.

The document also conveniently omits the Supreme Court's emphasis on technological neutrality. For example, it states:

The Court looked only at photocopying of “short excerpts”. It said nothing about digital delivery. And in CCH, the Court questioned whether it would have come to the same conclusions with other methods of copying and if longer excerpts were involved.

Yet the court's discussion of alternative digital delivery models do not help Access Copyright given the new principle of technological neutrality articulated in the ESAC case:

The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.

The singular focus on fair dealing also omits the many additional exceptions available to education. The fact that much of the copying of short excerpts may simply be de minimis and not even require a fair dealing analysis (much less an Access Copyright licence) is not discussed, though the Copyright Board wants the collective to address the issue. Moreover, the education Internet exception, the non-commercial user generated content exception, the distance education exception, and others may all be used by education to cover some copyright uses. Indeed, these same groups warned during the C-11 process that those provisions would have the effect of granting education expansive new rights.

What is the End Game?

Leaving aside empty threats about lobbying, what is the Access Copyright end game? The document makes it clear that for all the references to "dialogue," from its perspective the only satisfactory outcome is an Access Copyright licence. Indeed, the document states:

Canada's copyright owners will support whatever action is needed to reinstate collective licensing in schools, colleges and universities.

Copyright law changes, the millions spent on site licenses, a diminishing repertoire, and the growth of open access publishing? All irrelevant in the eyes of Access Copyright which only wants to talk about reinstating a collective licence. If that wasn't enough to reject calls for dialogue, there is also an effort to fabricate a fair dealing test far different from the one articulated by the Supreme Court of Canada. In the place of user rights, the document raises a series of new considerations such as "whether the copying is spontaneous and non-systematic" (irrelevant from a fair dealing perspective), "whether the copying is directed by the teacher or is mandated by a board or ministry of education" (having lost the argument on whether teacher directed copying is fair dealing (it is), Access Copyright is now shifting to the claim that board directed copying is not fair dealing), or "whether the copies are retained/reused" (another non-fair dealing factor).

The reality is that the Supreme Court and the government were both clear with respect to the emphasis on user rights, fair dealing, and new user exceptions. The CCI, Access Copyright and its allies argued these issues before the court and Parliamentary committees. They lost. The new fair dealing guidelines adopted by the Canadian education community are a modest implementation of those rules. There is no need for threats or disingenuous calls for more dialogue, but rather acceptance of the law and efforts to adapt to the new legal environment. The CCI document suggests that is still not part of the collective's strategy for moving forward.

Can BlackBerry Patent a Keyboard?

IPBlog (Calgary) - Thu, 2014/03/13 - 15:00
Can there be a better way to start 2014 than with a patent infringement story with a Canadian twist? BlackBerry has filed a patent infringement lawsuit  against Typo Products LLC. If you are a believer in the maxim that "the only thing worse than bad press is no press" then ...

Get a signed, inscribed copy of “In Real Life” delivered to your door, courtesy of WORD Books

As previously mentioned, Jen Wang and I have adapted my short story "Anda's Game" as a full-length, young adult graphic novel called "In Real Life," which comes out next October. Brooklyn's excellent WORD bookstore has generously offered to take pre-orders for signed copies; I'll drop by the store during New York Comic-Con and sign and personalize a copy for you and they'll ship it to you straightaway.

If U.S. Cloud Computing Isn't Good Enough for the Canadian Government, Why Should It Be for You?

Michael Geist Law RSS Feed - Wed, 2014/03/12 - 04:30
In August 2011, the federal government announced plans to consolidate more than 100 different email systems used by over 300,000 employees into a single, outsourced email system. While the email transition is currently underway - Bell won the nearly $400 million contract last year - the decision quietly sparked a trade fight with the United States that placed the spotlight on the risks associated with hosting computer data outside the country.

At the heart of the dispute is the emergence of cloud computing services such as web-based email, online document storage, and photo sharing sites. These services are based on a computing infrastructure that relies on huge computer server farms and high-speed network connections that allow users to access their content from any device connected to the Internet.

My weekly technology law column (Toronto Star version, homepage version) notes that cloud computing services offer the promise of convenience and cost savings, but at a price of reduced control over your own content, reliance on third-party providers, and potential privacy risks should the data "hosted in the cloud" be disclosed to law enforcement agencies without appropriate disclosure or oversight.

The Canadian government was clearly concerned by dangers associated with storing potentially sensitive emails outside the country. Invoking a national security exception, one of its requirements for the single email system was that it be hosted in Canada on a secured server. As U.S. companies later noted, this effectively excluded them from bidding on the contract.

According to documents recently obtained by the B.C. Freedom of Information and Privacy Association, the companies escalated their concern to U.S. government officials, urging them to launch a trade complaint over the Canadian requirements. While the companies explored several alternatives that might address Canadian concerns, including encrypting all data and retaining the encryption key in Canada (thereby making it difficult to access the actual data outside the country), the government insisted on Canadian-based storage.

The reason? According to internal U.S. documents discussing the issue, Canadian officials pointed to privacy concerns stemming from the USA Patriot Act.

The privacy concerns raise a bigger question for millions of Canadians that use U.S. cloud services as well as organizations such as Canadian universities that are contemplating switching their email or document management services to U.S.-based alternatives. Simply put, if U.S. cloud services are not good enough for the Canadian government, why should they be good enough for individual Canadians?

In light of the Edward Snowden revelations of widespread surveillance by the National Security Agency, the answer for many Internet users will increasingly be that they are indeed uncomfortable with the loss of control over their data. In recent months, many countries have begun to explore mandating local cloud providers to ensure that domestic data stays in the country. In response, the U.S. has lobbied for inclusion of a provision in the Trans Pacific Partnership, a trade agreement currently being negotiated by more than a dozen countries including Canada, that would restrict the ability for countries to restrict data transfers and mandate local computer storage.  

The Canadian government has said little about its position on the issue despite the fact that Canadians are already particularly vulnerable to potential disclosures to law enforcement or intelligence agencies. According to OECD data, the majority of Canadian dot-ca domain name websites are hosted outside the country, with Canada ranking among the lowest countries in the developed world for domestic website hosting. Moreover, Canadian Internet providers such as Bell exchange their Internet traffic in the U.S., ensuring that even simple domestic emails frequently enter the U.S. network before returning to Canada.

Mandating local cloud computing services will not address many of the privacy concerns associated with widespread surveillance and inadequate oversight, but when even the Canadian government insists on domestic computer servers for its information, it may be time for individual Canadians to think about doing the same.

Security as a public health discipline, not an engineering one

In my latest Guardian column, If GCHQ wants to improve national security it must fix our technology, I argue that computer security isn't really an engineering issue, it's a public health issue. As with public health, it's more important to be sure that our pathogens are disclosed, understood and disclosed than it is to keep them secret so we can use them against our enemies.

Scientists formulate theories that they attempt to prove through experiments that are reviewed by peers, who attempt to spot flaws in the reasoning and methodology. Scientific theories are in a state of continuous, tumultuous improvement as old ideas are overturned in part or whole, and replaced with new ones.

Security is science on meth. There is a bedrock of security that is considered relatively stable – the mathematics of scrambling and descrambling messages – but everything above that bedrock has all the stability of a half-set custard. That is, the best way to use those stable, well-validated algorithms is mostly up for grabs, as the complex interplay of incompatible systems, human error, legacy systems, regulations, laziness, recklessness, naivete, adversarial cunning and perverse commercial incentives all jumble together in ways that open the American retailer Target to the loss of 100m credit card numbers, and the whole internet to GCHQ spying.

As Schneier says: “Anyone can design a security system that works so well that he can’t figure out how to break it.” That is to say, your best effort at security is, by definition, only secure against people who are at least as dumb as you are. Unless you happen to be the smartest person in the world, you need to subject your security system to the kind of scrutiny that scientists use to validate their theories, and be prepared to incrementally patch and refactor things as new errors are discovered and reported

If GCHQ wants to improve national security it must fix our technology

(Image: File:CoughsAndSneezesSpreadDiseases.jpg, Wikimedia Commons, Public Domain)

Snowden at SXSW: immediate impressions

Yesterday at SXSW, Barton Gellman and I did a one-hour introductory Q&A before Edward Snowden's appearance. Right after Snowden and his colleagues from the ACLU wrapped up, I sat down and wrote up their event for The Guardian, who've just posted my impressions:

Snowden described the unique recklessness of an American intelligence agency undermining internet security. “Our country’s economic success is based on our intellectual property – our ability to create, share, communicate and compete. Since 9/11, former NSA director Michael Hayden and current NSA director Keith Alexander have elevated offense at the expense of defense of our communications. They’ve eroded protection of our communications at the expense of defense of our communications.

“This is a problem because America has more to lose than anyone else when every attack can succeed. When you’re the country whose vault is more full than anyone else’s in the world it doesn’t make sense to attack all day without defending. It doesn’t make sense to weaken standards on vaults worldwide to create a back door that anyone can walk into. This weakens our national security and everyone else’s because we all rely on the same standards.

“Without security, we have nothing. Our economy can’t succeed.”

Soghoian made sure that the commercial implications of this were not lost on the entrepreneurial types in the audience, those who’d come to SXSW hoping to win the tech lottery. “Google, Yahoo and other internet companies want to sit between the conversations you have with your friends and add value. They want to mine your information, tell you about restaurants and suggest things that help you. That business model is incompatible with your security, with your having a secure, end-to-end connection to your friends.

“The irony of the fact that we’re using Google Hangouts to talk to Edward Snowden isn’t lost on me. End-to-end secure video conferencing tools aren’t polished. They’re not good enough to bounce traffic through seven proxies. In many cases, you have to choose between tools that are easy, reliable and polished and tools that are secure, but hard to use.

“Big companies have hundreds of developers to put on to user interface design. That’s not try of companies that are optimised for security. Those tend to be made by geeks, for geeks. But small developers can play a role. The next Twitter or WhatsApp should be both encrypted end-to-end and usable.

“Remember, adding security is easier for new companies than it is for the big incumbents. The big guys can’t deliver security to their users, because they’re hampered by their business-models. You can tell customers that if they give you $5 a month for encrypted communications, no one will be able to watch them. Many people will be willing to pay for that.”

Edward Snowden: 'The NSA set fire to the internet. You are the firefighters'

Canada - South Korea Trade Agreement Demonstrates Deals Possible Without Increasing IP Protections

Michael Geist Law RSS Feed - Tue, 2014/03/11 - 04:38
Canada and South Korea announced agreement on a comprehensive trade agreement earlier today. The focus is understandably on tariff issues, but the agreement also contains a full chapter on intellectual property (note that the governments have only released summaries of the agreement, not the full text, which is still being drafted). The IP chapter is significant for what it does not include. Unlike many other trade deals - particularly those involving the U.S., European Union, and Australia - the Canada-South Korea deal is content to leave domestic intellectual property rules largely untouched. The approach is to reaffirm the importance of intellectual property and ensure that both countries meet their international obligations, but not to use trade agreements as a backdoor mechanism to increase IP protections.

Yesterday I noted that Canada might be asked to increase the term of copyright protection given that South Korea had agreed to longer copyright terms in its recent agreements with the European Union, Australia, and the U.S. In fact, the U.S. agreement contains extensive additional side letters on Internet provider liability, enforcement, and online piracy.  The Canada - South Korea deal rejects that approach with copyright, trademark, patent, and enforcement rules that are all consistent with current Canadian law (plus the coming border measures provisions in Bill C-8). 

On copyright, the summary states the agreement:
  • reflects Canada's regime as updated by the 2012 Copyright Modernization Act, which brought Canada into compliance with the World Intellectual Property Organization's two Internet treaties;

  • reiterates existing aspects of Canada's regime, including the protection of technological protection measures (technology designed to protect copyrighted material), protection of rights management information, and special measures against copyright infringers on the Internet (no change to Canada’s notice and notice regime, which defines the responsibility of Internet service providers in respect of copyrighted material on their networks).
The specific reference to notice-and-notice is important since it confirms no takedown requirements nor three-strikes rules. The specific measures against copyright infringers may be interpreted as Canada's enabler provision that targets websites that facilitate infringement. Moreover, the references to reflecting Canada's regime indicates that there is no copyright term extension or other substantive changes.

The approach is much the same on both trademark and patent. On trademark, the summary states the agreement:

reflects existing aspects of Canada's trademarks regime, including those pertaining to trademark registration, application and cancellation as well as to well-known trademarks.

while on patents, it states the agreement is:

in line with Canada's current regime, including criteria regarding patentability and exclusions from patentability; no new commitments in the area of pharmaceutical patents.

The IP approach is notable for several reasons. First, the agreement confirms that neither Canada nor South Korea view increased IP protections as a trade priority.  This is not particularly surprising, but it is important within the context of the Trans Pacific Partnership negotiations. Canada is clearly committed to its current rules and seems likely to continue to oppose U.S. and Australian efforts to increase protections in the TPP.

Second, the decision to maintain existing domestic laws without pressuring the other country to conform to its approach illustrates that claims of the necessity for harmonized IP rules in trade agreement are simply untrue. A far more appropriate approach is to require consistency with international obligations.

Third, the Canada - South Korea agreement may provide a model for many other countries that wish to include intellectual property provisions in their trade agreements but are content to require each party to meet international standards rather than the domestic rules of one of the parties. The U.S. and E.U. approach has been to export their rules to other countries, but Canada and South Korea have demonstrated that respect for domestic choices and compliance international obligations is a better alternative.

Will the Canada - South Korea Trade Agreement Include Copyright Term Extension?

Michael Geist Law RSS Feed - Mon, 2014/03/10 - 04:54
Prime Minister Stephen Harper is currently in South Korea reportedly to finalize agreement on the Canada - South Korea trade agreement. The proposed deal has been the subject of a decade of negotiation with opposition from the auto industry resulting in significant delays. While the focal point of the agreement will be on tariff issues involving the automotive and agricultural sectors, the deal will include an intellectual property chapter. The IP issues have not received any attention (the entire agreement remains secret so discussion has been generally limited), but it is possible that it will require Canada to extend the term of copyright.

An initial Canadian environmental assessment of the agreement suggested that the IP chapter would simply reaffirm existing IP obligations. If the agreement is limited to reaffirming existing commitments, copyright term will not be touched since Canada meets the international requirement of life of the author plus 50 years.  However, South Korea's recent trade deals with both the European Union and Australia feature a minimum copyright term of life of the author plus 70 years (the Australian deal also includes a requirement for "measures to curtail repeated copyright infringement on the Internet"). Whether the Canadian deal contains a similar provision will be worth monitoring, both for the impact on Canadian copyright law and for the international trade implications such as the Trans Pacific Partnership that is currently under negotiation.

Industry Canada Says "Modernizing Privacy Regime" Planned for 2014-15

Michael Geist Law RSS Feed - Thu, 2014/03/06 - 23:58
Industry Canada's Report on Plans and Priorities for 2014-15 includes a notable paragraph on priorities for the digital economy.  The report states:

In 2014–15, Industry Canada will deliver the telecommunications consumer commitments included in the 2013 Speech from the Throne. These include taking legislative action to amend the Telecommunications Act to reduce roaming costs and prevent wireless providers from charging other companies more than they charge their own customers for mobile services. The Department will also protect consumer interests by encouraging compliance and adopting more effective remedies, including administrative monetary penalties, when violations occur. Industry Canada will continue to promote investment in high-speed broadband networks for rural Canadians.

These priorities are an important part of a robust digital economy. Other elements will include: modernizing the privacy regime to better protect consumer privacy online; monitoring the implementation of Canada's anti-spam legislation; and deepening analysis of Canada's communications infrastructure.

While the telecom actions were expected, the commitment to modernizing Canadian privacy laws is new (albeit long overdue).  Previous privacy reform bills died on last year, leaving the government years behind in addressing PIPEDA reform. The Industry Canada report suggests that some legislative action may finally be on the way.

Moving Targets: CRTC Sets Universal Broadband Access Target By Year End But Govt Plan Is For 2019

Michael Geist Law RSS Feed - Thu, 2014/03/06 - 05:02
The federal government released its Report on Plans and Priorities for 2014-15 today with departments and agencies identifying spending estimates and work priorities. The CRTC's report offers some interesting insights into its main activities and targets, particularly with respect to broadband access.

The latest CRTC broadband target is for 100% of Canadian households to have access to broadband speeds of 5 Mbps download and 1 Mbps upload by December 31, 2014. That target is a year ahead of schedule as last year's report set the 100% target for the end of 2015. The new target is also difficult to reconcile with the government's announcement that it plans to spend $305 million over the next five years to extend broadband to rural and remote areas. In fact, last week reports suggested that Industry Minister James Moore and the government had established a target of 2019 for universal access to broadband. If the CRTC target is achieved, the government's broadband plans and targets would appear already outdated. Interestingly, Industry Canada's report includes a target of 77% of the population with broadband subscriptions (not access) by March 2015, but broadband is defined is only 1.5 Mbps or higher.

The CRTC has also become more aggressive about its targets for broadband competition. Last year, it set a target of 50% of households having access to three or more broadband providers with a 5% annual increase thereafter. This year, it has set a target of 95% of households by March 2015 (oddly, it has scaled back its target for competitive access to broadcast distribution undertakings having targeted four or more last year, but only three or more this year).

In addition to broadband targets, the report features targets for everything from spam reduction to viewership of Canadian content. With the new anti-spam law set to take effect in July, the CRTC hopes to reduce spam by 10% over the next 12 months. The Canadian content targets have changed completely with the CRTC now focused on the viewership or listeners to Canadian content. By March 2015, the Commission target is 48% of total television viewing is to Canadian programming, while it wants 50% of radio listening to Canadian content. The CRTC targets differ slightly from those of Canadian Heritage, which set a target of 50% Canadian programming viewing by August 2015.

Protecting Consumers From Identity Theft and Scams

Google Public Policy BLOG - Wed, 2014/03/05 - 12:31

Posted by Sheily Chhabria, Head of Strategic Operations, Product Quality Operations
Keeping your information safe and secure is one of Google’s top priorities and to celebrate National Consumer Protection Week we wanted to share a few things that we do to help protect you and your information from harm on the web.
Google scans the web to find the most useful and interesting content to display in your search results, but while we’re looking for all that good stuff, we sometimes find sites or links that seem unsafe - that might be set up to steal your information or silently take over your computer. We identify about 10,000 of these bad sites daily and if you try and visit a site that is unsafe, we show warnings like the one below.   

These warnings help you avoid sites containing software that might steal your personal information or harm your computer.
These warnings appear on millions of Google Search results and we also make information about these unsafe sites available to other companies and developers so that users on many services, not just Google, can be protected from harm. This work helps protect you and about one billion other internet users from these types of sites .
If one of these bad sites did manage to steal your sensitive information, like your social security numbers or driver’s license, and published it on the web, you can report it to Google to have your information taken out of our Search results. We also follow this process for sensitive financial information like credit card numbers or bank account numbers.
Google also has strict policies about the kinds of goods and services that can be advertised using our ad systems and on our publisher network. For example, we don’t allow ads for certain types of things that might harm your computer or cost you money, like malicious downloads, or ads for products or services with unclear billing practices, like hidden costs. We also don’t allow ads with misleading claims (“lose weight guaranteed!”), for counterfeit goods, or fraudulent work-at-home scams (“make a million dollars an hour - from your kitchen!”). 
We don’t allow scammy ads that mislead consumers
In 2013 alone we removed more than 350 million bad ads from our systems and banned more than 270,000 advertisers from using Google’s ad services. We proactively look for these ads to keep them off our systems, and listen to feedback from consumers if they tell us an ad is no good. In fact, you can report scams, inappropriate content or bad behavior using some of the safety tools that are built into many Google products.  
Technology is complicated, but thankfully you don’t have to be a computer scientist to help protect yourself online. The Google Safety Center has advice and tips from security experts on the simple things you can do to protect yourself and your family from online threats like identity theft or scams. And if you’re looking for a way to celebrate along with us this week, please check out our blog post series on quick steps you can take to help improve your online safety and security. You can also get more information, videos and advice from some of the many consumer protection organizations celebrating this week, such as the Federal Trade Commission,  the National Association of Attorneys General and many individual State Attorneys General, and the Better Business Bureau.

The CRTC's Future of Television Consultation: The Missing Provocative Questions

Michael Geist Law RSS Feed - Wed, 2014/03/05 - 06:22
Last month, I blogged about the CRTC's Talk TV consultation and concerns that the questions were framed in a lopsided manner.  CRTC Chair Jean Pierre Blais was asked about those concerns in Twitter chat and he responded that the questions and answers "were intended to be provocative." I address that response in my weekly technology law column (Toronto Star version, homepage version) highlighting both the concerns with the survey and offering some additional provocative questions that the Commission excluded.

The column begins by noting that regulation of Internet video services and the prospect of pick-and-pay television channels headline the second phase of the Canadian Radio-television and Telecommunications Commission's future of television consultation which launched late last month. The "TalkTV" initiative is designed to make it easy for Canadians to participate, featuring six short scenarios followed by a limited number of choices for respondents.

While the consultation quickly attracted considerable participation - the commission said thousands of Canadians responded in the first week alone - its content raises serious concerns about future plans for CRTC regulation. Indeed, if the consultation is a signal of where the commission is headed, not only is the notion of true pick-and-pay channels dead and the much-disliked simultaneous substitution alive, but regulation of Internet video services may be just around the corner.

The Internet video discussion in the survey focuses almost exclusively on new regulatory fees for services such as Netflix. After asking respondents whether online services should be required to contribute to funding for Canadian content, provide closed-captioning, and adhere to regulated programming standards, the CRTC poses a series of follow-up questions that all involve additional costs.

Respondents are asked whether they would pay an extra 50 cents per month for Canadian-made programming (presumably the additional cost for a Canadian content contribution fund) or a few cents each month for closed captioning. The commission also inquires whether Canadians would be willing to pay $5 more each month for increased Internet usage costs. The CRTC floats the possibility that such usage would not count against monthly data caps, suggesting that it may be willing to violate net neutrality principles as part of a new Internet regulatory regime.

The consultation delves into other controversial issues, but often offers a lopsided perspective. Signal substitution, the longstanding practice that swaps a U.S. feed with the Canadian equivalent (with Canadian commercials) when the same program is being aired at the same time, was raised during an earlier part of the consultation as a policy ripe for reform. Once the issue is explained in the survey, respondents are offered just three choices: keep the policy unchanged, black out U.S. signals, or require Canadians to pay extra fees to compensate stations for lost revenues. 

Similarly, the consultation asks whether Canadians would like access to more U.S. and international programming. The Commission seemingly pre-judges the issue by framing the ramifications of new programming as increasing cable and satellite fees, creating lost Canadian jobs, or developing new channel packages with additional Canadian content to offset the foreign programming.

When asked about the apparently skewed approach during a recent Twitter chat, CRTC Chair Jean-Pierre Blais responded that the consultation was meant to be provocative. Few would object to a provocative approach that generates interest in broadcast policy, however, these provocations are entirely one-sided.

For government regulators, it is seemingly provocative to ask about Internet regulation and the implementation of new fees that could almost double the effective cost of services such as Netflix. It is also provocative to equate more consumer choice with lost Canadian jobs or to propose compensation for Canadian television stations if simultaneous substitution is removed.

Yet the commission does not offer up similarly provocative options such as the elimination of many broadcast regulations in order to create a level playing field with Internet services or removing the requirement that Canadians purchase basic television services with all cable and satellite packages. It also does not provoke respondents with the possibility of new rules to eliminate simultaneous substitution by forcing Canadian broadcasters to adjust to a more competitive marketplace or to re-imagine the role of public broadcasting in Canada.

Given that the CRTC rightly or wrongly often attracts the ire of Canadians, the survey also avoids the biggest provocation of all - does Canada still need the CRTC to regulate broadcasting?  The answer to that question might depend upon the final results of its future of television consultation.

Copyright Users' Rights in Canada Hits Ten: The Tenth Anniversary of the CCH Decision

Michael Geist Law RSS Feed - Tue, 2014/03/04 - 01:33
As Meera Nair noted last week, today marks the tenth anniversary the Supreme Court of Canada's landmark CCH Canadian v. Law Society of Upper Canada. A decade after its release, the case has grown in stature as the leading the users' rights copyright decision by a high court in the world. Writing for a unanimous court, Chief Justice McLachlin stated:

the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: 'User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.'

The articulation of fair dealing as a users' right represented a remarkable shift, emphasizing the need for a copyright balance between the rights of creators and the rights of users. While this approach unquestionably strengthened fair dealing, the immediate reaction to the CCH was somewhat mixed.

The academic community responded with articles by professors such as Craig, Drassinower and countless others that focused on the important change in copyright. More common were arguments that users' rights was simply a metaphor and that little had changed. For example, Access Copyright's responded publicly that "this ruling does not change the fact that most copying of copyright protected works does not fall under fair dealing. The Supreme Court stated definitively that copyright does exist in original works, and that is why organizations must sign an Access Copyright licence or risk breaking the law."  Incredibly, many educational institutions were similarly skeptical about the decision. In the months after the decision, few adjusted their policies and even the Council of Ministers of Education, Canada suggested in 2008 that more clarity on fair dealing was needed.

Five years after the decision, some groups began to work to roll back the CCH decision. In 2009, Access Copyright urged the government to establish limits on the ruling in its submission to the national copyright consultation:

Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers.

The government rejected the calls to limit fair dealing, however, instead expanding the provision with several new purposes including education, parody, and satire in its 2010 copyright reform bill.

With the government siding with users on the issue, the same groups hoped the Supreme Court of Canada would rethink its CCH ruling in the 2012 copyright cases. The Canadian Publishers' Council argued that the meaning of "users' rights" was overstated:

The Appellants and other Intervenors rely extensively on the concept of "users' rights" to promote a view of fair dealing that would substantially curtail copyright holders' rights and permit extensive copying of behalf of others. Their use of the term to justify this severe curtailment of exclusive rights illustrates the dangers of treating the word 'user rights' literally, rather than as a metaphor to express the importance of user interests.

Access Copyright emphasized the same concern:

In CCH this Court raised expectations when it held that fair dealing is a "user's right". Those raised expectations have led users like the appellants to ask that the right be clarified and made more predictable. However, this should not come at the expense of upsetting the balance between users' and creators' rights under the Act.

Yet the Supreme Court of Canada rejected those arguments, choosing instead in 2012 to re-affirm the importance of users' rights:

CCH confirmed that users' rights are an essential part of furthering the public interest objectives of the Copyright Act. One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision 'must not be interpreted restrictively'.

While some groups still seek to downplay the importance of fair dealing, ten years after CCH it is clear that users' rights are here to stay. The Supreme Court has continued its emphasis on a copyright balance that prominently features users' rights, the government has adopted copyright reform with a significant user-oriented component (expanded fair dealing, user generated content provision, Internet exceptions, format shifting, device shifting, backup copies), and the World Intellectual Property Organization reached agreement on its first users' rights copyright treaty last year with the Marrakesh Treaty for the blind and visually impaired.  There is still much work to be done, but the progress over the past decade owes a great deal to the battle between legal publishers and the Law Society of Upper Canada that culminated in the March 4, 2004 CCH decision that firmly placed copyright users' rights on the map.

US Forum-Selection Clause Upheld

IPBlog (Calgary) - Mon, 2014/03/03 - 18:00
- In this blog, we typically review forum-selection cases in the context of internet-related contracts and software licenses. A recent decision out of the US Supreme Court squarely addressed the issue of forum-selection clauses in a construction contract. While this is not an intellectual property case, it is instructive for Canadian ...

Podcast: Cold Equations and Moral Hazard

Here's a reading (MP3) of my latest Locus column, Cold Equations and Moral Hazard which considers the way that science fiction can manipulate our ideas about the technical necessity for human misery, and how that narrative can be hijacked for self-serving ends.

Apparently, editor John W. Campbell sent back three rewrites in which the pilot figured out how to save the girl. He was adamant that the universe must punish the girl.

The universe wasn’t punishing the girl, though. Godwin was – and so was Barton (albeit reluctantly).

The parameters of ‘‘The Cold Equations’’ are not the inescapable laws of physics. Zoom out beyond the page’s edges and you’ll find the author’s hands carefully arranging the scenery so that the plague, the world, the fuel, the girl and the pilot are all poised to inevitably lead to her execution. The author, not the girl, decided that there was no autopilot that could land the ship without the pilot. The author decided that the plague was fatal to all concerned, and that the vaccine needed to be delivered within a timeframe that could only be attained through the execution of the stowaway.

It is, then, a contrivance. A circumstance engineered for a justifiable murder. An elaborate shell game that makes the poor pilot – and the company he serves – into victims every bit as much as the dead girl is a victim, forced by circumstance and girlish naïveté to stain their souls with murder.

Moral hazard is the economist’s term for a rule that encourages people to behave badly. For example, a rule that says that you’re not liable for your factory’s pollution if you don’t know about it encourages factory owners to totally ignore their effluent pipes – it turns willful ignorance into a profitable strategy.

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."


Re: Another first time director for DOCTOR WHO series 8 - Warped Factor - Daily features & news from the world of geek

Russell McOrmond on Disqus - Mon, 2014/03/03 - 11:01

I also felt the emotion of that particular parting, even if I found the overall relationship creepy.

Having another similarly-aged human in the TARDIS for that romance works great for me. I like my science fiction to be able to mix genres at will, moving through romance, comedy, action, horror, etc -- or any mixture in a given scene a writer can pull off.

Cold Equations and Moral Hazard: science fiction considered harmful to the future

My latest Locus column is "Cold Equations and Moral Hazard", an essay about the way that our narratives about the future can pave the way for bad people to create, and benefit from, disasters. "If being in a lifeboat gives you the power to make everyone else shut the hell up and listen (or else), then wouldn’t it be awfully convenient if our ship were to go down?"

Apparently, editor John W. Campbell sent back three rewrites in which the pilot figured out how to save the girl. He was adamant that the universe must punish the girl.

The universe wasn’t punishing the girl, though. Godwin was – and so was Barton (albeit reluctantly).

The parameters of ‘‘The Cold Equations’’ are not the inescapable laws of physics. Zoom out beyond the page’s edges and you’ll find the author’s hands carefully arranging the scenery so that the plague, the world, the fuel, the girl and the pilot are all poised to inevitably lead to her execution. The author, not the girl, decided that there was no autopilot that could land the ship without the pilot. The author decided that the plague was fatal to all concerned, and that the vaccine needed to be delivered within a timeframe that could only be attained through the execution of the stowaway.

It is, then, a contrivance. A circumstance engineered for a justifiable murder. An elaborate shell game that makes the poor pilot – and the company he serves – into victims every bit as much as the dead girl is a victim, forced by circumstance and girlish naïveté to stain their souls with murder.

Moral hazard is the economist’s term for a rule that encourages people to behave badly. For example, a rule that says that you’re not liable for your factory’s pollution if you don’t know about it encourages factory owners to totally ignore their effluent pipes – it turns willful ignorance into a profitable strategy.

Cold Equations and Moral Hazard

it IS a big deal

Fair Duty by Meera Nair - Sun, 2014/03/02 - 19:47

On 27 February 2014, The NY Times published “No Big Deal”, by Paul Krugman on the Trans-Pacific Partnership (TPP) agreement and the apparent stalling of negotiations. He writes, “I am in general a free-trader, but I’ll be undismayed and even a bit relieved if the T.P.P. just fades away.” On that point, many people would likely share his relief. However, Krugman’s article is dangerous; he cloaks the TPP with an aura of blandness, arguing that the benign nature of the agreement is why it will not be missed. According to Krugman, the agreement does very little to enhance trade, instead:

… these days “trade agreements” are mainly about other things. What they’re really about, in particular, is property rights – things like the ability to enforce patents on drugs and copyrights on movies.  And so it is with T.P.P.

Krugman’s assessment of the TPP is framed by comparison to trade agreements of days gone by, when eliminating tariffs was a principle feature of negotiation. His remarks may be accurate in that regard, but by confining his assessment so narrowly, he avoids in-depth examination of the agreement as a whole. The TPP is not about trade. That word suggests a mutually beneficial exchange between two or more parties. The TPP is about domination and ensuring that countries do not oppose any actions taken by foreign corporations regardless of how those actions might affect health, environment, or even trade, within a host country.

Achieving such dominance includes imposing stringent measures upon intellectual property (more so than what is currently required by international agreement) and requiring that disputes arising are not adjudicated in either a court of law, or a seat of some impartiality like the WTO, but in private tribunals. (I have touched on the perils of investor-state dispute mechanisms, see here; Renée Loth writing for the Boston Globe on 22 December 2013 also covers this issue.)

Mr. Krugman could dismiss such remarks on the grounds that the actual agreement is yet to be seen. But that factor in itself ought to be a major reason for concern. Negotiations have been conducted in secret, with the public having to rely on a leaked document to discover what is being discussed. Granted, it is not possible, nor desirable, for any administration to govern by referendum. However, even U.S. elected representatives have not been privy to details. That combined with the desire of the Obama administration to fast-track the agreement, should have alerted Krugman: the TPP is a big deal.

But perhaps most startling of all is that Krugman’s article of the 27th is the second such article he has written. The first was published by The NY Times on 12 December 2013, titled “TPP”. Comparing the two articles, the tone is essentially the same; that judging by the former hallmarks of free trade, the TPP would not make much difference:

…  my starting point for things like this is that most conventional barriers to trade — tariffs, import quotas, and so on — are already quite low, so that it’s hard to get big effects out of lowering them still further.

That earlier article provoked some commentary. Dean Baker wrote a courteous dissent for the Center for Economic and Policy Research:

…it is a misunderstanding to see the TPP as being about trade. This is a deal that focuses on changes in regulatory structures to lock in pro-corporate rules. Using a “trade” agreement provides a mechanism to lock in rules that it would be difficult, if not impossible, to get through the normal political process.

Mike Masnick of TechDirt went into greater detail than Baker on the measures included in the TPP. And Masnick puts his fingers immediately on the value of an op/ed such as Krugman’s:

On [Krugman’s] basic reasoning, he’s correct. There’s little trade benefit to be gained here. In fact, some countries have already realized this. But that’s why the TPP is so nefarious. It’s being pitched as a sort of “free trade deal,” and Krugman analyzes it solely on that basis. That’s exactly what the USTR would like people to think, and it’s part of the reason why they’ve refused to be even the slightest bit transparent about what’s actually in the agreement.

Both responses are worth reading in their entirety; they are as germane today as they were three months ago.

Which leads me to question why Krugman continues to limit his exploration of the subject? He acknowledges that the TPP would, “increase the ability of certain corporations to assert control over intellectual property.” But he makes no effort to explore the ramifications of the increase. For such an accomplished economist, who writes under the tagline of “The Conscience of a Liberal,” this neglect is unconscionable.

Further Reading: InfoJustice.org (of the Washington College of Law, American University) has compiled a list of analyses (some for the agreement, others against), see here. Christopher Ingram, writing for The Washington Post (28 February 2014) describes the current composition of trade-advisory committees as selected by the Obama administration: “Of the 566 committee members, 306 come from private industry and an additional 174 hail from trade associations. All told they represent 85% of the voices on the trade committees.”

Update – 18 March 2014 – And more reading: On the Wrong Side of Globalization by Joseph Stiglitz.

Re: Another first time director for DOCTOR WHO series 8 - Warped Factor - Daily features & news from the world of geek

Russell McOrmond on Disqus - Fri, 2014/02/28 - 10:20

I don't mind romance between human companions, just not between a human and the doctor. I don't think I will ever get over the age/experience/etc differences of that type of pseudo-relationship. Rose, etc continue to creep me out.

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