Feed aggregator

Apple Encryption Saga and Beyond: What U.S. Courts Can Learn from Canadian Caselaw

Freedom to Tinker - Thu, 2016/04/21 - 07:00
It has been said that privacy is “at risk of becoming a real human right.” The exponential increase of personal information in the hands of organizations, particularly sensitive data, creates a significant rise in the perils accompanying formerly negligible privacy incidents. At one time considered too intangible to merit even token compensation, risks of harm […]

The Defend Trade Secrets Act and Whistleblowers

Freedom to Tinker - Wed, 2016/04/20 - 11:48
As Freedom to Tinker readers know, I’ve been an active opponent of the federal Defend Trade Secrets Act (DTSA). Though my position on the DTSA remains unchanged, I was both surprised and pleased to see that the revised Defend Trade Secrets Act now includes a narrow, but potentially useful, provision intended to protect whistleblowers from trade secret […]

Canadian Copyright Bill for the Blind in Need of Fine Tuning

Michael Geist Law RSS Feed - Tue, 2016/04/19 - 14:04

As the political world was focused on the Liberal government’s inaugural budget last month, Navdeep Bains, the Minister of Innovation, Science and Economic Development, introduced his first bill as minister by quietly moving ahead with plans to reform Canadian copyright law to allow for the ratification of an international treaty devoted to increasing access to copyrighted works for the blind.

The World Intellectual Property Organization’s Marrakesh Treaty expands access for the blind by facilitating the creation and export of works in accessible formats to the more than 300 million blind and visually impaired people around the world. Moreover, the treaty restricts the use of digital locks that can impede access, by permitting the removal of technological restrictions on electronic books for the benefit of the blind and visually impaired.

My weekly technology law column (Toronto Star version, homepage version) notes that the Canadian decision to ratify the Marrakesh Treaty is long overdue. The Conservatives announced plans to do so in last year’s budget but waited to table legislation days before the summer break and the election call. With that bill now dead, the Liberals have rightly moved quickly to revive the issue.

The treaty (and the Canadian bill) addresses three key issues. First, the bill establishes a new rule that permits non-profit organizations acting on behalf of persons with a print disability to reproduce copyright works in accessible formats without the need for permission from the copyright holder. This ensures that more accessible works will be created and distributed in Canada.

Second, once an accessible version of the work is created, the bill also allows the non-profit organization to make it available upon request to persons with print disabilities in other countries that are part of the treaty. With many countries signing on, this approach offers the potential to significantly increase the availability of accessible works with exchanges across borders.

Third, the bill amends the overly restrictive digital lock rules enacted in the 2012 copyright reforms. The Conservative government claimed that an exception for the blind addressed concerns that the law could create significant access restrictions, but the reforms represent a tacit admission that the exception is ineffective. Interestingly, the same restrictive language is used in an exception designed to address privacy concerns, suggesting that further copyright reforms are needed.

While the introduction of the bill represents an excellent first step, upcoming committee hearings offer the opportunity to fine tune the Canadian approach, which is more restrictive than required by the treaty. For example, the Canadian bill envisions the possibility of establishing additional fees payable by the non-profit organization to copyright collectives. The Marrakesh Treaty does not require adding royalty payments and many countries (including the United States) do not have such a provision.

The Canadian approach to exporting accessible works to other countries is also unnecessarily complex. The export exception does not apply to works that are “commercially available” “within a reasonable time and for a reasonable price” in the other country.

The limitation seems likely to create uncertainty and legal risks for those using the exception, creating the danger that some organizations may be reticent about exporting works for fear of running afoul of the law. The limitation is not found in proposed implementing legislation developed by international groups representing libraries and those with print disabilities.

Despite its shortcomings, the decision to focus on the world’s first user rights treaty sends a strong signal that the government recognizes the importance of ensuring that the law does not unduly restrict access to copyright works. With the Marrakesh Treaty nearly reaching the 20 ratifications necessary to take effect, the government must move quickly if it wants Canada to stand as one of the original group of ratifying countries.

The post Canadian Copyright Bill for the Blind in Need of Fine Tuning appeared first on Michael Geist.

Copyright Bill for the Blind Needs Fine Tuning

Michael Geist Law RSS Feed - Tue, 2016/04/19 - 14:01

Appeared in the Toronto Star on April 18, 2016 as Copyright Law for the Blind Needs Fine-Tuning

As the political world was focused on the Liberal government’s inaugural budget last month, Navdeep Bains, the Minister of Innovation, Science and Economic Development, introduced his first bill as minister by quietly moving ahead with plans to reform Canadian copyright law to allow for the ratification of an international treaty devoted to increasing access to copyrighted works for the blind.

The World Intellectual Property Organization’s Marrakesh Treaty expands access for the blind by facilitating the creation and export of works in accessible formats to the more than 300 million blind and visually impaired people around the world. Moreover, the treaty restricts the use of digital locks that can impede access, by permitting the removal of technological restrictions on electronic books for the benefit of the blind and visually impaired.

The Canadian decision to ratify the Marrakesh Treaty is long overdue. The Conservatives announced plans to do so in last year’s budget but waited to table legislation days before the summer break and the election call. With that bill now dead, the Liberals have rightly moved quickly to revive the issue.

The treaty (and the Canadian bill) addresses three key issues. First, the bill establishes a new rule that permits non-profit organizations acting on behalf of persons with a print disability to reproduce copyright works in accessible formats without the need for permission from the copyright holder. This ensures that more accessible works will be created and distributed in Canada.

Second, once an accessible version of the work is created, the bill also allows the non-profit organization to make it available upon request to persons with print disabilities in other countries that are part of the treaty. With many countries signing on, this approach offers the potential to significantly increase the availability of accessible works with exchanges across borders.

Third, the bill amends the overly restrictive digital lock rules enacted in the 2012 copyright reforms. The Conservative government claimed that an exception for the blind addressed concerns that the law could create significant access restrictions, but the reforms represent a tacit admission that the exception is ineffective. Interestingly, the same restrictive language is used in an exception designed to address privacy concerns, suggesting that further copyright reforms are needed.

While the introduction of the bill represents an excellent first step, upcoming committee hearings offer the opportunity to fine tune the Canadian approach, which is more restrictive than required by the treaty. For example, the Canadian bill envisions the possibility of establishing additional fees payable by the non-profit organization to copyright collectives. The Marrakesh Treaty does not require adding royalty payments and many countries (including the United States) do not have such a provision.

The Canadian approach to exporting accessible works to other countries is also unnecessarily complex. The export exception does not apply to works that are “commercially available” “within a reasonable time and for a reasonable price” in the other country.

The limitation seems likely to create uncertainty and legal risks for those using the exception, creating the danger that some organizations may be reticent about exporting works for fear of running afoul of the law. The limitation is not found in proposed implementing legislation developed by international groups representing libraries and those with print disabilities.

Despite its shortcomings, the decision to focus on the world’s first user rights treaty sends a strong signal that the government recognizes the importance of ensuring that the law does not unduly restrict access to copyright works. With the Marrakesh Treaty nearly reaching the 20 ratifications necessary to take effect, the government must move quickly if it wants Canada to stand as one of the original group of ratifying countries.

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 Copyright Bill for the Blind Needs Fine Tuning appeared first on Michael Geist.

Internet Voting? Really?

Freedom to Tinker - Mon, 2016/04/18 - 07:00
Recently I gave a TEDx talk—I spoke at the local Princeton University TEDx event.  My topic was voting: America’s voting systems in the 19th and 20th century, and should we vote using the Internet?  You can see the talk here:    

On distracted driving and required phone searches

Freedom to Tinker - Fri, 2016/04/15 - 07:00
A recent Arstechnica article discussed several U.S. states that are considering adding a “roadside textalyzer” that operates analogously to roadside Breathalyzer tests. In the same way that alcohol and drugs can impair a driver’s ability to navigate the road, so can paying attention to your phone rather than the world beyond. Many states “require” drivers to consent […]

Gone In Six Characters: Short URLs Considered Harmful for Cloud Services

Freedom to Tinker - Thu, 2016/04/14 - 07:37
[This is a guest post by Vitaly Shmatikov, professor at Cornell Tech and once upon a time my adviser at the University of Texas at Austin. — Arvind Narayanan.] TL;DR: short URLs produced by bit.ly, goo.gl, and similar services are so short that they can be scanned by brute force.  Our scan discovered a large […]

Intervening at the CRTC: Nothing Encourages Participation Like Background Checks and Legally Mandated Undertakings

Michael Geist Law RSS Feed - Wed, 2016/04/13 - 09:45

The Canadian Radio-television and Telecommunications Commission’s hearing on basic telecommunications services launched earlier this week with the Commission continuing its effort to engage the public with an open discussion forum that will allow for comments to placed on the record (comments outside of the CRTC universe – op-eds, blog posts or social media comments do not count). While CRTC chair Jean-Pierre Blais has emphasized his interest in hearing from Canadians, the recent experience of Concordia University professor Fenwick McKelvey highlights how more work is needed to remove barriers that may inhibit independent experts from participating in the process.

McKelvey told me he was very happy to participate, yet consider the barriers faced by academics or other independent experts seeking to contribute to the CRTC process. First, McKelvey (along with other academic intervenors) faced questions from Telus about their background, expertise, and funding. Telus demanded that each answer the following questions:

Did you receive any funding to support your intervention? If so, from whom?
Do you have a position at a university, or elsewhere, or are you in a centre, institute, or similar organization, that supported your intervention? If so, please describe your position at the centre, institute, or similar organization and identify the source(s) of funding.
Please describe any other entities with which you are or have been affiliated which have interests or have intervened before the CRTC or Industry Canada with respect to telecommunications policy and regulation issues.
Please provide a current copy of your curriculum vitae for the public record.

When the academics refused to disclose the information, Telus responded with lengthy arguments on why they should be required to provide all of this background information despite the fact that it has nothing to do with the substance of the hearing. Those demands alone might be enough for some to avoid the CRTC process.

While the demands for background checks came from Telus, the CRTC commissioners did themselves no favours in the first day of the hearing. Coming at the end of a long day, McKelvey brought two experts to discuss Internet measurement along with students to witness the proceedings. As the discussion became increasingly technical, Commissioner Molnar stated:

I have just one last question and I think this might be an undertaking, because you rapidly get beyond my technical capacity to understand what you’re saying, so in writing is easier for me.

After Molnar explained the legally required undertaking, McKelvey responded that he had concerns about timing, leading to the following exchange:

1880 MR. McELVEY …I would like to discuss with them whether it’s feasible within the May 5th timeline and am I allowed to say that I will get back to you on whether that’s feasible?
1881 COMMISSIONER MOLNAR: I wouldn’t think so.
— (LAUGHTER)
1882 MR. McELVEY: I don’t — I mean it’s my first time. I really do mean it as a genuine —
1883 THE CHAIRPERSON: Well I appreciate that, that it’s your first time, but normally people come ready for the possibility of having to answer within that timeline.

CRTC veterans and commissioners are likely to read the exchange and shrug their shoulders. Those are the rules – if you want to participate, you can find yourself subject to legally mandated undertakings that must be completed within tight time frames. While that may work well for government institutions and large companies with ample resources devoted specifically to these issues, for the average Canadian seeking to have their voice heard, this is likely to be viewed as a significant barrier to participation.

The post Intervening at the CRTC: Nothing Encourages Participation Like Background Checks and Legally Mandated Undertakings appeared first on Michael Geist.

Why Universal, Affordable Internet Access is a Job for Everyone

Michael Geist Law RSS Feed - Tue, 2016/04/12 - 09:15

The future of Internet access in Canada takes centre stage this week at a major hearing focused on whether it’s time to update the rules associated with universal access to communications services. Canada has long had regulations in place that ensure that basic telephone service is available to everyone, using a funding model that subsidizes higher costs in rural communities.

My weekly technology column (Toronto Star version, homepage version) notes that for most Canadians, however, basic telephone service no longer adequately addresses their needs. Today the Internet is widely recognized as the most indispensable communications tool, providing access to everything from electronic messaging to entertainment. While debates over broadband access have lingered for more than 15 years, there are still thousands of Canadians without service, owing to the lack of access or affordability.

The urban-rural digital divide frequently dominates Internet access discussions, yet a comprehensive national policy must also take affordability into account. Indeed, recent data indicates that there are two digital divides in Canada: the divide between those with and without access to high-speed Internet services (with access rates lower in rural communities) and the divide between subscribers and non-subscribers among those that have access. Affordability remains one of the most commonly cited reasons for not subscribing to an Internet access service despite its availability.

With dozens of groups slated to appear at the Canadian Radio-television and Telecommunications Commission (CRTC) hearing, there will be considerable pressure to declare Internet access an essential service and establish policies that ensure that all have affordable access.

A universal service program for the Internet would be a step in the right direction, but it would be a mistake to leave the issue solely to the telecommunications regulator. Fostering universal, affordable broadband access is a job for everyone with the need for active participation from all levels of government, the private sector, and community organizations.

Despite the federal government’s commitment to infrastructure spending in the most recent budget, very little was allocated in the short term for broadband services. Ensuring that all communities have access will require a public investment – the private sector will unsurprisingly prioritize the most profitable markets leaving some communities without access – along with policy frameworks that facilitate increased competition from independent providers and support the emergence of community-owned broadband services.

There are also opportunities for provincial and municipal governments in this area. Provincial governments should leverage existing networks, particularly those within education and health institutions, to bring access to the wider community. At a municipal level, using local construction initiatives to lay high-speed fibre accessible to any provider offers the chance to dramatically alter the competitive landscape.

The affordable access solution must also extend beyond government policy and funding with the private sector playing a critical role. For example, last week Rogers announced that it is extending its Connected for Success program to its entire cable footprint, effectively making affordable broadband access available to thousands of low-income Canadians.

The Rogers program first launched in Toronto in 2013 in partnership with Toronto Community Housing, offers broadband access for $9.99 per month. Once the program is fully implemented, the low cost service will be available to residents at more than 500 non-profit housing organizations.

The Rogers program is notable in part because it is the only such initiative in Canada. While the major telecom companies seemingly have little trouble matching price increases, they have been discouragingly unwilling to mirror the Connected for Success program.

On top of the issues around access and affordability, there is also the need for community programs dedicated to digital literacy, so that those new to the Internet can maximize the benefits. While younger Canadians have never lived in a world without the Internet, many others do not know where to start.

The Internet has dramatically changed our world, touching on virtually every aspect of society. Changing our rules on essential services to account for the digital world is long overdue.

The post Why Universal, Affordable Internet Access is a Job for Everyone appeared first on Michael Geist.

Affordable Internet Access is Everyone’s Business

Michael Geist Law RSS Feed - Tue, 2016/04/12 - 08:58

Appeared in the Toronto Star on April 11, 2016 as Affordable Internet Access is Everyone’s Business

The future of Internet access in Canada takes centre stage this week at a major hearing focused on whether it’s time to update the rules associated with universal access to communications services. Canada has long had regulations in place that ensure that basic telephone service is available to everyone, using a funding model that subsidizes higher costs in rural communities.

For most Canadians, however, basic telephone service no longer adequately addresses their needs. Today the Internet is widely recognized as the most indispensable communications tool, providing access to everything from electronic messaging to entertainment. While debates over broadband access have lingered for more than 15 years, there are still thousands of Canadians without service, owing to the lack of access or affordability.

The urban-rural digital divide frequently dominates Internet access discussions, yet a comprehensive national policy must also take affordability into account. Indeed, recent data indicates that there are two digital divides in Canada: the divide between those with and without access to high-speed Internet services (with access rates lower in rural communities) and the divide between subscribers and non-subscribers among those that have access. Affordability remains one of the most commonly cited reasons for not subscribing to an Internet access service despite its availability.

With dozens of groups slated to appear at the Canadian Radio-television and Telecommunications Commission (CRTC) hearing, there will be considerable pressure to declare Internet access an essential service and establish policies that ensure that all have affordable access.

A universal service program for the Internet would be a step in the right direction, but it would be a mistake to leave the issue solely to the telecommunications regulator. Fostering universal, affordable broadband access is a job for everyone with the need for active participation from all levels of government, the private sector, and community organizations.

Despite the federal government’s commitment to infrastructure spending in the most recent budget, very little was allocated in the short term for broadband services. Ensuring that all communities have access will require a public investment – the private sector will unsurprisingly prioritize the most profitable markets leaving some communities without access – along with policy frameworks that facilitate increased competition from independent providers and support the emergence of community-owned broadband services.

There are also opportunities for provincial and municipal governments in this area. Provincial governments should leverage existing networks, particularly those within education and health institutions, to bring access to the wider community. At a municipal level, using local construction initiatives to lay high-speed fibre accessible to any provider offers the chance to dramatically alter the competitive landscape.

The affordable access solution must also extend beyond government policy and funding with the private sector playing a critical role. For example, last week Rogers announced that it is extending its Connected for Success program to its entire cable footprint, effectively making affordable broadband access available to thousands of low-income Canadians.

The Rogers program first launched in Toronto in 2013 in partnership with Toronto Community Housing, offers broadband access for $9.99 per month. Once the program is fully implemented, the low cost service will be available to residents at more than 500 non-profit housing organizations.

The Rogers program is notable in part because it is the only such initiative in Canada. While the major telecom companies seemingly have little trouble matching price increases, they have been discouragingly unwilling to mirror the Connected for Success program.

On top of the issues around access and affordability, there is also the need for community programs dedicated to digital literacy, so that those new to the Internet can maximize the benefits. While younger Canadians have never lived in a world without the Internet, many others do not know where to start.

The Internet has dramatically changed our world, touching on virtually every aspect of society. Changing our rules on essential services to account for the digital world is long overdue.

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 Affordable Internet Access is Everyone’s Business appeared first on Michael Geist.

celebrating a parody, 49 years later

Fair Duty by Meera Nair - Tue, 2016/04/05 - 23:00

The inclusion in 2012, of education, in the categories qualifying for fair dealing, has received disproportionate attention, made up of as much umbrage as applause. Far more important additions made at the same time, parody and satire, have almost gone unnoticed. Their protection was long overdue.

The first case in Canada to address parody against a charge of copyright infringement was Ludlow Music Inc. v. Canint Music Corp (1967). The dispute centred on the song This Land Is Your Land, written by Woody Guthrie (1912-1967). Canadian songwriter Alec Somerville, of The Brothers In Law, crafted new lyrics to Guthrie’s tune and retitled the song as This Land Is Whose Land.

But distribution was short lived. In a case which began on 6 April 1967 and ended on 10 April 1967, Somerville’s creation was declared as infringing upon the copyright of Woody Guthrie’s work. Jackett P. of the Exchequer Court of Canada granted an injunction restraining further sales of the album.

It must be noted that royalties were offered for use of the tune of Guthrie’s creation, under the premise that there were two copyrights at issue: (1) the copyright of the tune and (2) the copyright of the lyrics. While Somerville relied on Guthrie’s tune, Somerville’s lyrics were entirely his own creation. However, that offer was rejected and Jackett P. decided that both tune and lyrics are encircled by a song’s copyright.

Ironically, the tune was hardly Guthrie’s alone. Nick Spitzer of NPR writes:

Guthrie had a keen ear for the recordings of Virginia’s Carter Family, and he was not afraid to borrow. A 1930 gospel recording, “When the World’s on Fire,” sung by the Carters, must have provided the tune for what would become “This Land Is Your Land.”

In Ramblin Man: The Life and Times of Woody Guthrie (2004), biographer Ed Cray further traces the tune to the southern gospel hymn Oh my loving brother. But this too is hardly surprising. Creative effort necessarily relies, consciously or not, on borrowed aspects of earlier works–creativity is always a collaborative undertaking. Skillful borrowing is the very essence of parody as it must capture the distinctiveness of the original creation and the creator.

An essay published in The Spectator on 20 May 1853, makes this point forcefully:

Every line ought to make us say, that is pure Tennyson or pure Browning, as the case may be; though the notion of the poem as a whole being connected with Tennyson’s or Browning’s name, should be an instant cause of laughter. … The parodist, then, to be successful, must have the most delicate sense of literary form and the fullest sympathy of comprehension for the work of those he parodies, as well as a true sense of humour and a special dexterity in the use of words and phrases.

That capacity, to invoke an original, to have a fullest sympathy of comprehension of the parodied work, as well as to couple humour with dexterity when crafting a new work, might have been written with Somerville in mind. Just as Guthrie’s work was in reaction to the  syrupy nature of Irving Berlin’s creation God Bless America, Somerville provided a more accurate and irreverent view of Canadian history. His variation on Guthrie’s song was expressly intended for release in 1967, the year of Canada’s centenary. (The album carrying the song was titled Exposé 67.)

Yet that fact likely added to the problem; the dispute was not settled on musicology alone. In 1959, Ludlow Music Inc. had licensed Guthrie’s work for adaptation and distribution in Canada, via revisions prepared and performed by The Travellers. The rights for this authorized Canadian version were held by Ludlow Music Inc. and the song was to play a prominent part in the centennial celebrations of 1967:

This song is a patriotic song and has been widely distributed in schools throughout Canada. The song will again be published in 1967 by the Centennial Commission in the songbook “Young Canada Sings — “Le Jeune Canada Chante”, 10,000 copies of the songbook will be distributed throughout Canada. Attached … is a copy of a letter from The Centennial Commission to Ludlow Music, Incorporated requesting permission to use the song “This Land is Your Land”. Ludlow Music, Inc., has consented to such use in both 1966 and 1967 (para. 11).

Ludlow Music Inc., unimpressed with Somerville’s work, sought to protect the innocence of the Canadian public:

… the use of words which are in bad taste and insulting to the Canadian public with the music of the composition “This Land is Your Land” will cause incalculable damage to the Plaintiff and destroy the meaning and acceptance of the song in the minds of the Canadian public (para. 12).

It is difficult to assess Canadian sensibilities of 49 years ago, but likely we are more resilient today. Canadians may judge for themselves, the merits of This Land Is Whose Land.

 

 

 


Syndicate content