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Canada's Copyright Mystique

Sara Bannerman - Wed, 2015/04/15 - 15:14
Two recent law review articles, both responding to the July 2012 release of the Supreme Court of Canada's "pentalogy" of decisions on copyright, take somewhat opposite views of the relationship of the Court's decision to Canadian copyright history.

Professor Ysolde Gendreau of Université de Montréal's law school argues[1] that Canadian copyright law, leading up to the Court's decision, lacked a statement of a broad purpose or philosophy of Canadian copyright.  There was, for example, no statement in the preamble to the Canadian Copyright Act outlining the act's overall purpose.  It also lacked an "historical mystique" that would lend an historical purpose to Canadian copyright, the way that, for example, the storied history of the French authors' rights movement lends understanding to the interpretation of French copyright today.  Given this absence, the Court strode into the void and fashioned for Canadians a purpose that placed users' rights on a similar level with authors' rights in Canadian copyright law--a step that Gendreau believes has "no textual foundation."

Professor Myra Tawfik of the University of Windsor's law school argues[2], on the other hand, that the Court, rather than taking a wrong turn in the absence of clear directional purpose, "demonstrates  a depth of understanding of, and a confidence in, Canada's own particular copyright story"--a story that is very different from those of countries like France, the US, or the UK.  Tawfik argues that the Court now finds itself not in a relative void, but rather in the midst of a fairly developed area of Canadian law: "Canadian copyright law is sufficiently well developed and internally coherent to stand on its own merits."

Both authors note that the literature on the "historical mystique" of Canadian copyright is beginning to appear; they cite my book, The Struggle for Canadian Copyright, Eli McLaren's Dominion and Agency, and Pierre-Emmanuel Moyse's "The Colonies Strike Back" chapter as offering some of the history of Canadian copyright.

In my view, Professor Tawfik's view is correct. The Court's view of the purpose of Canadian copyright law, which places users' rights on a similar footing to those of authors, reflects longstanding concerns in Canadian copyright history with the accessibility of books, their affordability, and also with developing Canadian creative industries and encouraging Canadian creativity.  The developing range of literature on Canadian copyright history reflects this.

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1. Gendreau, Ysolde. "Recent Canadian Development: Fair Dealing: Canada Holds to its Position." J. Copyright Soc'y 60 (2013): 673-673.


2. Tawfik, Myra J. "The Supreme Court of Canada and the" Fair Dealing Trilogy": Elaborating a Doctrine of User Rights under Canadian Copyright Law." Alberta L. Rev. 51 (2013): 191-201.

Canada’s Non-Commercial Copyright Fail: Why Did YouTube Mute a Holocaust Memorial Video?

Michael Geist Law RSS Feed - Wed, 2015/04/15 - 10:34

Holocaust Remembrance Day (Yom HaShoah) starts tonight with events planned around the world. Last year, my daughter Jordan participated in the March of the Living, an annual event that brings thousands of people from around the world to the concentration camps in Poland. The experience had a profound effect and since her return she has become increasingly active within the March of the Living organization including joining the Ottawa board of directors. As part of tonight’s Holocaust remembrance event in Ottawa, she was asked to create a video to commemorate last year’s trip including interviews with participants, pictures, and video. She spent hours interviewing 18 participants on their experience and worked through hundreds of photos and hours of video to create a five-minute snapshot.

Last week, she posted the video to YouTube in anticipation of tonight’s event. Within hours, she received a message from the event organizer’s wondering why so few interviews appeared on the video. When she looked into the issue, she found that YouTube had muted the audio track with interviews after a couple of minutes (at 2:14 to be precise). The reason? The video includes some copyrighted background music. YouTube’s approach when it matches audio to a copyrighted work is to mute the non-music track, though it provides an option to fill out a fair dealing/fair use claim. Jordan did that, pointing out that Section 29.21 of the Canadian Copyright Act provides specific protection for non-commercial user generated content.  The provision states:

It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual – or, with the individual’s authorization, a member of their household – to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if

(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;
(b) the source – and, if given in the source, the name of the author, performer, maker or broadcaster – of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;
(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter – or copy of it – or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

As of this morning, YouTube had not reinserted the audio track and Jordan spent many more hours creating a new version with different music.

The March of the Living video is precisely the kind of work that this provision is designed to cover: a non-commercial work with no substantial adverse effect on the work incorporated into the user-generated content. Yet more than two years after the provision took effect, YouTube and other online video providers have not adjusted their services to account for the Canadian law. In fact, a review of online video and social media sites finds that no one seems to account for the law within their terms and conditions or stated copyright policy.

During the copyright reform process, the non-commercial user generated content provision was cited as an innovative, “made-in-Canada” rule that provides legal protection for new creative works and the websites that host them.  During committee hearings, Google said:

Bill C-11′s protections for non-commercial, user-generated content will be important to creative communities in Canada. They allow creators to continue to confidently share their creations online with the world, and help foster the next generation of commercial successes.

Government MPs lauded the provision:

This exception recognizes that these new uses of creative content contribute to Canada’s cultural sector. For example, these uses can enhance interest in the original when videos of user-generated content go viral on the Internet. This innovative form of creation can also shed light on emerging talent from across our country and showcase it to the rest of the world. Of course the digital age does not just offer opportunities for creation; it also offers many unique opportunities for learning and education.

The decision by online video providers and social media sites to largely ignore the provision means lawful Canadian works will be muted or taken down contrary to the policy established by the government. There is no reason that online video providers can’t incorporate Canadian law into their service for their Canadian users by asking for affirmation that the work conforms to the provision upon posting (thereby creating a default that the work is lawful) or by creating a response mechanism that is consistent with user rights protections contained in Canadian copyright law.

The post Canada’s Non-Commercial Copyright Fail: Why Did YouTube Mute a Holocaust Memorial Video? appeared first on Michael Geist.

Decertifying the worst voting machine in the US

Freedom to Tinker - Wed, 2015/04/15 - 09:26
On Apr 14 2015, the Virginia State Board of Elections immediately decertified use of the AVS WinVote touchscreen Direct Recording Electronic (DRE) voting machine. This seems pretty minor, but it received a tremendous amount of pushback from some local election officials. In this post, I’ll explain how we got to that point, and what the […]

Back to the Drawing Board: Bell Drops Opt-Out Targeted Ad Program

Michael Geist Law RSS Feed - Tue, 2015/04/14 - 08:18

Days after the Office of the Privacy Commissioner of Canada released its decision that found that Bell was violating Canadian privacy law with its targeted ad program, the communications giant advised that it is withdrawing its program and deleting all customer profiles. A company spokesperson stated yesterday that Bell plans to re-introduce the program using an opt-in consent approach. That would likely require more than just a change to the privacy policy since the company would need to provide customers with incentives or compensation to get much acceptance to be voluntarily tracked.

My weekly technology law column (Toronto Star version, homepage version) notes that Bell’s targeted advertising program, which creates customer profiles that include age, gender, account location, credit score, pricing plan, and average revenue per user, generated controversy from the moment it was announced in October 2013. The communications giant maintained that it complied with Canadian privacy laws, yet many clearly disagreed as the Privacy Commissioner of Canada received an unprecedented barrage of complaints.

While concerns about tracking Internet usage and search queries garnered headlines, the fundamental legal issue was whether Bell was entitled to force its millions of customers to opt-out of the targeted advertising program if they did not wish to participate or if the law requires an explicit, opt-in approach in which consumers must proactively ask to be included before their tracking information is used for advertising purposes.

Last week the Privacy Commissioner of Canada rendered his verdict: Bell’s targeted advertising program violates the law since the consumer data used by Bell is sufficiently sensitive such that an opt-out approach does not adequately protect user privacy. Bell argued that the information it collects is non-sensitive and that opt-out was therefore good enough.

If the consumer data is taken piece by piece, Bell might have been right. Yet in an era of “big data”, the Privacy Commissioner effectively concluded that the sum of personal information is more than the parts. In the case of Bell, he placed the spotlight on the remarkable scale of the company’s data collection and usage:

“Bell is able to track every website its customers visit, every app they use – and in the future, potentially every TV show they watch and every call they make – using Bell’s network, whether at home or abroad. Under the RAP [Relevant Advertising Program], Bell can use this information to infer a wide range of both general and specific interests. The combination of this information with the extensive account/demographic information (e.g., age range, gender, average revenue per user, preferred language and postal code) used by Bell for the RAP will result in highly detailed and rich multi-dimensional profiles that, in our view, individuals are likely to consider quite sensitive.”

Bell was willing to make small adjustments to its program in response to the Privacy Commissioner’s concerns, but for months it would not budge on the opt-in issue. Indeed, with over 113,000 customers taking the trouble to navigate the opt-out form on its website in the first year alone, it likely knows that few will agree to have their personal information tracked and used without any compensation or incentives (by contrast, AT&T offers a discount on high-speed Internet services in some U.S. locations if customers allow it to track their web browsing history to deliver customized advertising).

Hours after the release of the Privacy Commissioner’s decision – which indicated that it was considering filing a legal action against Bell at the Federal Court of Canada to enforce the ruling – Bell issued a brief statement conceding that it is prepared to comply with all of the findings, including the opt-in requirement. The Privacy Commissioner met with company officials last Wednesday, but was apparently still unsatisfied with its compliance plans. That changed on Monday as the company caved on the opt-in issue.

While a courtroom showdown has been averted, Bell’s brazen decision to initially reject the ruling points to Canadian privacy law’s biggest flaw. Unlike provincial privacy commissioners and data protection regulators around the world, Canada’s federal privacy commissioner does not have order making power, relying instead on moral suasion or media pressure to convince companies to comply with the law.

The government claims that the law provides strong privacy protections, but merely hoping that companies will abide by their privacy obligations is not good enough. With Bill S-4, the Digital Privacy Act, currently before the House of Commons, the Bell targeted advertising case demonstrates why reforms are urgently needed to provide the Privacy Commissioner of Canada with long overdue power to enforce the law.

The post Back to the Drawing Board: Bell Drops Opt-Out Targeted Ad Program appeared first on Michael Geist.

Why Bell’s Opting-Out Approach Isn’t Good Enough

Michael Geist Law RSS Feed - Tue, 2015/04/14 - 08:14

Appeared in the Toronto Star on April 11, 2015 as Why Bell’s Opting-Out Approach Isn’t Good Enough

Bell’s targeted advertising program, which creates customer profiles that include age, gender, account location, credit score, pricing plan, and average revenue per user, generated controversy from the moment it was announced in October 2013. The communications giant maintained that it complied with Canadian privacy laws, yet many clearly disagreed as the Privacy Commissioner of Canada received an unprecedented barrage of complaints.

While concerns about tracking Internet usage and search queries garnered headlines, the fundamental legal issue was whether Bell was entitled to force its millions of customers to opt-out of the targeted advertising program if they did not wish to participate or if the law requires an explicit, opt-in approach in which consumers must proactively ask to be included before their tracking information is used for advertising purposes.

Last week the Privacy Commissioner of Canada rendered his verdict: Bell’s targeted advertising program violates the law since the consumer data used by Bell is sufficiently sensitive such that an opt-out approach does not adequately protect user privacy. Bell argued that the information it collects is non-sensitive and that opt-out was therefore good enough.

If the consumer data is taken piece by piece, Bell might have been right. Yet in an era of “big data”, the Privacy Commissioner effectively concluded that the sum of personal information is more than the parts. In the case of Bell, he placed the spotlight on the remarkable scale of the company’s data collection and usage:

“Bell is able to track every website its customers visit, every app they use – and in the future, potentially every TV show they watch and every call they make – using Bell’s network, whether at home or abroad. Under the RAP [Relevant Advertising Program], Bell can use this information to infer a wide range of both general and specific interests. The combination of this information with the extensive account/demographic information (e.g., age range, gender, average revenue per user, preferred language and postal code) used by Bell for the RAP will result in highly detailed and rich multi-dimensional profiles that, in our view, individuals are likely to consider quite sensitive.”

Bell was willing to make small adjustments to its program in response to the Privacy Commissioner’s concerns, but for months it would not budge on the opt-in issue. Indeed, with over 113,000 customers taking the trouble to navigate the opt-out form on its website in the first year alone, it likely knows that few will agree to have their personal information tracked and used without any compensation or incentives (by contrast, AT&T offers a discount on high-speed Internet services in some U.S. locations if customers allow it to track their web browsing history to deliver customized advertising).

Hours after the release of the Privacy Commissioner’s decision – which indicated that it was considering filing a legal action against Bell at the Federal Court of Canada to enforce the ruling – Bell issued a brief statement conceding that it is prepared to comply with all of the findings, including the opt-in requirement. The Privacy Commissioner met with company officials on Wednesday, but was apparently still unsatisfied with its compliance plans.

While a courtroom showdown may yet be averted, Bell’s brazen decision to initially reject the ruling points to Canadian privacy law’s biggest flaw. Unlike provincial privacy commissioners and data protection regulators around the world, Canada’s federal privacy commissioner does not have order making power, relying instead on moral suasion or media pressure to convince companies to comply with the law.

The government claims that the law provides strong privacy protections, but merely hoping that companies will abide by their privacy obligations is not good enough. With Bill S-4, the Digital Privacy Act, currently before the House of Commons, the Bell targeted advertising case demonstrates why reforms are urgently needed to provide the Privacy Commissioner of Canada with long overdue power to enforce the law.

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 Bell’s Opting-Out Approach Isn’t Good Enough appeared first on Michael Geist.

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