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Democracy in Action: Reflecting on the Toronto TPP Town Hall

Michael Geist Law RSS Feed - Thu, 2016/06/16 - 09:08

Yesterday I had the pleasure of appearing as a panelist at the government’s town hall meeting in Toronto on the Trans Pacific Partnership. The town hall, held in a packed auditorium at the University of Toronto, featured International Trade Minister Chrystia Freeland (in listening mode) along with three panelists (myself, C. D. Howe’s Daniel Schwanen, and Unifor’s Jerry Dias) and moderator Dan Breznitz of the Munk School.

It is easy to become cynical about the government’s emphasis on public consultations. They are happening everywhere – innovation, digital CanCon, TPP, and soon copyright to name a few. But to attend yesterday’s TPP town hall was to witness the remarkable passion and enthusiasm for public engagement on critical public policy issues. The event ran nearly 2 1/2 hours with dozens of speakers from an incredible range of ages, backgrounds, and interests. There were librarians and archivists focused on copyright term extension and digital locks; several doctors spoke to the impact of the TPP on public health and access to medicines, food experts highlighted the dangers associated with food security, environmental activists focused on the TPP and climate change, and speakers of all ages (including a 92 year old woman) expressed concern with the investor-state dispute resolution provisions. Some speakers quoted from Freeland’s book on plutocrats to note the inconsistency between the TPP and the Minister’s prior writing. An aboriginal student nearly broke down speaking about the need to consult first nations, bringing the room to its feet.

While there has been a tendency to dismiss critics of the TPP, there is an informed public anxious to make their views on the agreement known to the government. The audience was knowledgeable, citing specific issues and their potential impact. Conservative MPs have been urging the government to simply get on with TPP ratification, falsely claiming that they engaged in widespread consultation. The audience made it very clear that no one in the prior government had ever asked for their opinion as the negotiations unfolded.

Freeland emphasized that there is no rush to ratify the TPP as no country has done so and everyone has until at least 2018 before the agreement can take effect. The government seems content to listen, study the deal, and adopt a neutral approach to the question of ratification. In fact, the deadline for submissions to the Standing Committee on International Trade has been extended once again, with October 31st now the last date for submissions. That suggests that there will still be ample opportunities to speak out and if the Toronto TPP town hall is any indication, a willingness of the government to listen.

The post Democracy in Action: Reflecting on the Toronto TPP Town Hall appeared first on Michael Geist.

Canada’s Surveillance Crisis Now Hiding In Plain Sight

Michael Geist Law RSS Feed - Tue, 2016/06/14 - 14:27

Three years ago this month, Edward Snowden shocked the world with a series of disclosures that revealed a myriad of U.S. government-backed surveillance programs. The Snowden revelations sparked a global debate over how to best strike the balance between privacy and security and led to demands for greater telecom transparency.

My weekly technology law column (Toronto Star version, homepage version) notes that the initial Canadian response to the surveillance debate was muted at best. Many Canadians assumed that the Snowden disclosures were largely about U.S. activities. That raised concerns about Canadian data being caught within the U.S. surveillance dragnet, but it did not necessarily implicate the Canadian government in the activities.

Within months, it became clear that Canadian securities agencies were enthusiastic participants in numerous surveillance initiatives. Canadians played a lead role in projects focused on tracking travellers using airport Wi-Fi networks, monitoring millions of daily uploads and downloads to online storage sites, aggregating millions of emails sent by Canadians to government officials, and targeting mobile phones and app stores to implant spyware.

Moreover, the U.S. collection and mining of “metadata” – the data about data that covers geographic information and details about social links – was also at the heart of Canadian activities with a ministerial authorization granting officials the power to capture the potentially sensitive personal information with minimal oversight.

While these programs attracted attention for a day or two, it was the Conservatives’ introduction of Bill C-51, the anti-terrorism legislation that granted the government a host of new powers, that finally succeeded in generating a sustained focus on Canadian surveillance law.

The bill became law with few amendments, but emerged as the public’s shorthand for the need for reforms to surveillance activities. Public Safety Minister Ralph Goodale and the new Liberal government have promised changes, with expectations that they will focus initially on a new “super” oversight body for security agencies and later open the door to further amendments.

Yet despite assurances that improved oversight will provide adequate safeguards against intrusive surveillance, in recent months it has become apparent that weak oversight represents only a small part of the problem.

Consider this year’s report from the Communications Security Establishment (CSE) commissioner, who uses legal language to obscure an otherwise clear admission that there are ongoing metadata violations within the CSE. The report notes that metadata activities were “generally conducted in compliance with operational policy” and that the “CSE has halted some metadata analysis activities” that were the subject of previous criticisms.

The use of words like “generally” and “some” are no accident. The CSE Commissioner could have just as easily written that the CSE still does not conduct its metadata activities in full compliance with the law and that it has refused to stop some activities that were the subject of complaints. Yet the soft framing turns what should be a major story and source of concern into something largely ignored by the general public.

The same is true for a series of admissions related to “privacy breaches” at the CSE. In plain language, this suggests that Canadian security intelligence agencies revealed information to foreign agencies in a manner that violates the law. Indeed, reports indicate that this includes identifying information arising from phone calls and Internet usage.

These are not privacy breaches in the conventional sense of an inadvertent loss of information or a malicious hack into government systems. Those are privacy breaches largely beyond the control of the holder of the information. Rather, these are unlawful disclosures that run afoul of the law. In fact, rather than come clean about the violations, the CSE has refused to disclose the number of “privacy breaches” since 2007 and the government has said it cannot identify those affected.

Three years after Snowden thrust surveillance onto the public agenda, it is time for Canada to reshape how its securities agencies operate. The desperate need for a full airing of Canadian surveillance practices comes not from what was hidden for many years, but what has been happening in plain sight.

The post Canada’s Surveillance Crisis Now Hiding In Plain Sight appeared first on Michael Geist.

Security Agencies Need to Fess Up About Illegal Privacy Breaches

Michael Geist Law RSS Feed - Tue, 2016/06/14 - 14:25

Appeared in the Toronto Star on June 13, 2016 as Security Agencies Need to Fess Up About Illegal Privacy Breaches

Three years ago this month, Edward Snowden shocked the world with a series of disclosures that revealed a myriad of U.S. government-backed surveillance programs. The Snowden revelations sparked a global debate over how to best strike the balance between privacy and security and led to demands for greater telecom transparency.

The initial Canadian response to the surveillance debate was muted at best. Many Canadians assumed that the Snowden disclosures were largely about U.S. activities. That raised concerns about Canadian data being caught within the U.S. surveillance dragnet, but it did not necessarily implicate the Canadian government in the activities.

Within months, it became clear that Canadian securities agencies were enthusiastic participants in numerous surveillance initiatives. Canadians played a lead role in projects focused on tracking travellers using airport Wi-Fi networks, monitoring millions of daily uploads and downloads to online storage sites, aggregating millions of emails sent by Canadians to government officials, and targeting mobile phones and app stores to implant spyware.

Moreover, the U.S. collection and mining of “metadata” – the data about data that covers geographic information and details about social links – was also at the heart of Canadian activities with a ministerial authorization granting officials the power to capture the potentially sensitive personal information with minimal oversight.

While these programs attracted attention for a day or two, it was the Conservatives’ introduction of Bill C-51, the anti-terrorism legislation that granted the government a host of new powers, that finally succeeded in generating a sustained focus on Canadian surveillance law.

The bill became law with few amendments, but emerged as the public’s shorthand for the need for reforms to surveillance activities. Public Safety Minister Ralph Goodale and the new Liberal government have promised changes, with expectations that they will focus initially on a new “super” oversight body for security agencies and later open the door to further amendments.

Yet despite assurances that improved oversight will provide adequate safeguards against intrusive surveillance, in recent months it has become apparent that weak oversight represents only a small part of the problem.

Consider this year’s report from the Communications Security Establishment (CSE) commissioner, who uses legal language to obscure an otherwise clear admission that there are ongoing metadata violations within the CSE. The report notes that metadata activities were “generally conducted in compliance with operational policy” and that the “CSE has halted some metadata analysis activities” that were the subject of previous criticisms.

The use of words like “generally” and “some” are no accident. The CSE Commissioner could have just as easily written that the CSE still does not conduct its metadata activities in full compliance with the law and that it has refused to stop some activities that were the subject of complaints. Yet the soft framing turns what should be a major story and source of concern into something largely ignored by the general public.

The same is true for a series of admissions related to “privacy breaches” at the CSE. In plain language, this suggests that Canadian security intelligence agencies revealed information to foreign agencies in a manner that violates the law. Indeed, reports indicate that this includes identifying information arising from phone calls and Internet usage.

These are not privacy breaches in the conventional sense of an inadvertent loss of information or a malicious hack into government systems. Those are privacy breaches largely beyond the control of the holder of the information. Rather, these are unlawful disclosures that run afoul of the law. In fact, rather than come clean about the violations, the CSE has refused to disclose the number of “privacy breaches” since 2007 and the government has said it cannot identify those affected.

Three years after Snowden thrust surveillance onto the public agenda, it is time for Canada to reshape how its securities agencies operate. The desperate need for a full airing of Canadian surveillance practices comes not from what was hidden for many years, but what has been happening in plain sight.

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 Security Agencies Need to Fess Up About Illegal Privacy Breaches appeared first on Michael Geist.

preparation

Fair Duty by Meera Nair - Mon, 2016/06/13 - 08:38

When the Copyright Act was last amended in 2012, the government of the day sought to accomplish a number of objectives. The summary of Bill C-32 (unveiled for first reading on 10 June 2010) detailed the legislative intent:

(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

The language of (c) and (d) is clear; “greater use” implies greater than what had previously been feasible. The specific mention of of education as a permissible purpose of fair dealing and the introduction of exceptions to facilitate digital distribution by libraries or distance education programs, suggested that educators, libraries and students could enjoy greater use of copyright materials. With respect to (e), the implementation of exceptions for time or format shifts, the making of backups, and the creation of non-commercial user-generated content were all to the advantage of consumers. Yet the previous government’s insistence that digital locks reign supreme, rendered many of the new exceptions inert and reduced previous possibilities for unauthorized use of copyright material.

In 2010, it was no secret that the digital locks provision of Bill C-32 was modeled on the United States’ Digital Millennium Copyright Act of 1998. Since its inception, the supremacy of locks in the United States has been systematically challenged through triennial reviews. Advocates for the lifting of blanket prohibition on circumvention could plead their case to the Librarian of Congress; if successful, they were granted a three-year lifting of the prohibition. (A notable reprieve occurred in 2006, in relation to educational uses of audio-visual works.) The latest review occurred in 2015; Mila Owen and Henry Thomas describe the outcome.

By the time C-32 was under discussion in Canada, it was abundantly evident that American overreach in protection of digital locks was impeding legitimate unauthorized uses (such as fair use) under American law.

Michael Geist declared Bill C-32 as “flawed but fixable.” However, the government refused to entertain thoughts of adjusting the prohibition on breaking digital locks; despite the logic that breaking a lock for a non-infringing use, should not trigger a charge of infringement. At a Standing Committee meeting on 25 November 2010, Minister of Canadian Heritage James Moore appeared unconcerned about the wider implications of casting locks as sacrosanct; in response to a question posed by Liberal Member of Parliament Marc Garneau, about the inconsistency in the government’s actions, Moore gave a peculiar answer:

[It] is a question about balance, and as far as my personal digital media consumption habits, I personally choose to buy products that don’t have digital locks. It’s my right as a consumer to be able to do that. As we’re seeing increasingly with technology, certainly the music industry, the television industry, and the film industry are creating products where people have the right to shift things from one format to another. … if you look at all the submissions we have received–we’re talking about music, television, video, video games, the software industry–everybody believes that if they’ve invested money, labour, and effort to create products and decide to protect those products by whatever mechanisms they choose to digitally, they should be allowed to do that. And consumers are free to purchase or not purchase those devices.

Garneau then questioned Jean-Pierre Blais (Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage) about digital locks, with specific reference to fair dealing:

I would like to ask for clarification on the issue of digital locks and fair dealing. Would you say that in this bill digital locks trump everything? For example, if somebody wants to produce educational materials under fair dealing but they have digital locks on them, would the person be prevented from doing so?

It required repeating the question, but Garneau was finally given an answer:

Garneau: Let me ask specifically about education. That’s the one I brought up. Do digital locks trump the use of material, copyrighted material, for educational purposes under “fair dealing”?
Jean-Pierre Blais: In the bill, as drafted, the answer is yes.

As we approach 2017, perhaps Minister Marc Garneau could share his past experiences with Minister Mélanie Joly and Minister Navdeep Bains as they prepare for the mandated review of the Copyright Act.

 


Why the Privacy Commissioner Doesn’t Need Legal Reforms To Require Transparency Reports

Michael Geist Law RSS Feed - Fri, 2016/06/10 - 08:45

Privacy Commissioner of Canada Daniel Therrien was in the news this week as he expressed concern with the evasiveness of Canada’s spy agencies and the ongoing refusal of some of Canada’s telecom companies (namely Bell) to issue transparency reports. I’ll have more to say about privacy and government agencies in my technology law column next week, but on the issue of telecom transparency reports, I believe that Therrien already has the necessary legal mandate to act now. Therrien urged all telecom companies to release transparency reports, noting:

“I think Canadians are telling us, first of all, that they would much prefer that data be shared from telcos to government only with a warrant, with a court authorization. But when that does not happen, Canadians expect that there be transparency…frankly, if there’s not more progress I will continue to call for legislation on this issue.”

I wrote about why Canada’s telecom transparency reporting still falls short late last month, emphasizing that a non-binding approach to transparency reporting has been a failure. I indicated that there is a strong argument that the law already requires companies to issue transparency reports as part of their obligation to be accountable and open under PIPEDA. Principle 4.1.4(d) establishes the following requirement under the law:

Organizations shall implement policies and practices to give effect to the [privacy] principles, including:
(d) developing information to explain the organization’s policies and procedures

Moreover, Principle 4.8.1 states that:

Organizations shall be open about their policies and practices with respect to the management of personal information.

To date, discussion of these provisions has focused on the need for publicly-available privacy policies. Yet there is no reason to think that they are limited merely to those policies. Ensuring that an organization is fully accountable for the information it collects, uses, and discloses should include reports that explain policies, procedures, and practices around information disclosures to law enforcement.

Commissioner Therrien does not need to lobby for legal reforms or wait for the government to act. There are no legal barriers to disclosure and any decision to withhold such information is a choice made by telecom providers such as Bell. The Privacy Commissioner should launch an immediate investigation, demand that Bell (and any other holdouts) explain why they have not issued transparency reports and revealed their disclosure practices to date, and issue findings on whether they are violating the law.

The post Why the Privacy Commissioner Doesn’t Need Legal Reforms To Require Transparency Reports appeared first on Michael Geist.

Former Copyright Board Chair Vancise Takes Aim at the Board Critics

Michael Geist Law RSS Feed - Thu, 2016/06/09 - 08:45

The Honourable William Vancise, the former Chair of the Copyright Board of Canada, recently delivered a combative (and entertaining) speech at an ALAI conference in which he took the critics of the board head on. Although the conference was focused on the future of the Copyright Board, many lawyers who regularly appear before the board seemed reluctant to air their concerns in public. Instead, it fell to Vancise to liven the proceedings. The board has posted the speech online and it is well worth a read. I was in the audience and came in for criticism for this 2013 article titled It’s Time to Admit the Copyright Board is Broken.

Vancise reserved his strongest criticism for Music Canada and its lobbying campaign against Tariff 8:

Let me say that I found it completely unacceptable and totally inappropriate for such an association to lobby the Chairman of the Board, an independent quasi-judicial tribunal- and I am certainly not alone in this view. It showed a lack of respect for the institution. The proper forum for dealing with a decision that Music Canada’s clients don’t like is to take it to judicial review. I can go on at great length on the lobbying efforts of Music Canada but I think you get the picture. The real reason for the outrage is not so much its concern for the purity of the process or consistency in decision-making but rather the fact that Music Canada doesn’t like the tariff. It’s a question of whose ox is being gored.

Vancise was similarly unimpressed with Access Copyright’s criticism of recent decisions:

This brings me to Access Copyright, another organisation that is unhappy about some of the recent decisions of the Board as mentioned previously. This led Access Copyright to state in its latest annual report that: ‘In the Provincial – Territorial tariff decision and recent K-12 decision, the Copyright Board’s troubling opaque assessments led to outcomes that are simultaneously unfair for rights holders and impractical for users,’ although I don’t think Access Copyright speaks for users. The annual report went on to say that these decisions highlight the systemic dysfunction in the Canadian copyright landscape and highlight the need for legislative reform. Once again what matters here is whose ox is being gored. This time it is the ox of Access.

Vancise noted that this time I was supportive of the Board’s decision, responding to Access Copyright that “the solution to its problems does not lie in further litigation nor in making claims based on what it would like the law to be. Rather, it comes from rapidly changing its business model to reflect what Parliament, the Supreme Court, and now the Copyright Board have ruled with respect to fair dealing.”

The post Former Copyright Board Chair Vancise Takes Aim at the Board Critics appeared first on Michael Geist.

The TPP’s Impact on Canadian Culture Emerging as Political Issue

Michael Geist Law RSS Feed - Wed, 2016/06/08 - 08:45

Earlier this year, I posted on the cultural implications of the TPP, noting that the agreement represents a departure from trade deals by creating restrictions on Canadian cultural policy. Assuming services such as Netflix argue that any mandated Cancon contribution is discriminatory if they do not also receive the benefits accorded to established broadcasters or broadcast distributors, the TPP will effectively ban applying Cancon contributions to exempt entities.

Now it appears that the implications of the TPP for Canadian cultural policy are beginning to attract attention. Question period in the House of Commons featured the following exchange this week:

Mr. Pierre Nantel (Longueuil – Saint-Hubert, NDP):  Mr. Speaker, the trans-Pacific partnership also raises concerns for cultural industries. The TPP explicitly prevents the government from developing policies to support Canadian content on digital platforms. On one hand, we have a Minister of Canadian Heritage holding consultations on digital media, and on the other hand we have her government signing a treaty that will limit its own capacity to intervene online. Despite all her fine words, the minister’s hands will be tied. However, she promised to protect our cultural diversity in these trade agreements. How will the minister defend such an absurdity to our cultural industries?

Hon. Mélanie Joly (Minister of Canadian Heritage, Lib.):  Mr. Speaker, Canadian content and support for creators of content are a priority for our government. For years, our approach during trade talks has always been to maintain our capacity and to support cultural and creative industries. That remains unchanged today, especially during our talks on the TPP. We also want to seize the opportunities offered through our various trade talks. That is why our government is determined to listen to Canadians on the issue and that is why the Minister of International Trade is –

Minister Joly may have run out of time to respond, but the issue remains a major problem for a government that has focused on the need to update Canadian cultural policy in the digital age. Such a policy initiative will be difficult when the TPP creates limitations on the scope of potential policies, including clear restrictions on the extension of Canadian content contribution requirements.

The post The TPP’s Impact on Canadian Culture Emerging as Political Issue appeared first on Michael Geist.

Industry Canada to Foreign Affairs After CETA Leaks: Can We Get a Copy of the Text?

Michael Geist Law RSS Feed - Tue, 2016/06/07 - 10:34

As the Canada – EU Trade Agreement faces mounting opposition in Europe, it is worth looking back at the late stages of CETA negotiations that occurred after an October 2013 announcement that a deal had been reached. That announcement did not include a release of the text, which was still the subject of months of negotiations. In fact, long after the initial announcement, there were reports that European concerns with investor-state dispute settlement provisions were about to derail the entire agreement. By July 2014, it was obvious that CETA was in jeopardy. In August 2014, there were more assurances from the Canadian government about an agreement, but still no text. That same month, the agreement finally did become public, but only after a German public television leaked it online.

Documents obtained under the Access to Information Act show that Canadian government officials scrambled to respond. While the official line will be familiar – “Canada does not comment on the leaks of purported negotiating texts” – internally, officials were left scrambling as the agreement leaked in real time. In fact, after learning that additional appendices and materials had leaked online, Canadian official joked that “they’re scanning as fast as they can.”

The government officials may have sought to downplay the leaks, but more interesting is the response from Industry Canada:

“Given that the CETA text has already been leaked, could we get a copy of the consolidated text with attachments (annexes, side letters etc.)?”

In other words, even Canadian departments responsible for specific issues within CETA were kept in the dark about the overall text. This approach confirms consistent criticisms of Canadian negotiations during CETA and TPP.  Namely that there is little overall strategy and that departments are often unaware of the actual text of the agreement. When your own government officials are reliant on leaks for information about the deal, perhaps it is time to acknowledge that a change in approach is needed.

The post Industry Canada to Foreign Affairs After CETA Leaks: Can We Get a Copy of the Text? appeared first on Michael Geist.

Why an Australian Study Could Provide Canada with an Innovation Roadmap

Michael Geist Law RSS Feed - Mon, 2016/06/06 - 11:22

From the moment that the Liberal government renamed Industry Canada as Innovation, Science, and Economic Development it sent a clear signal that innovation is a top policy priority. Indeed, in recent months Minister Navdeep Bains has repeatedly called for bold policies focused on addressing Canada’s dismal innovation record.

My weekly technology law column (Toronto Star version, homepage version) notes that while the specifics of the Canadian innovation policy have yet to be revealed, a recent Australian government backed study provides a potential roadmap. The Australian Productivity Commission, which functions as an independent “think tank” for the government, released a 600 page draft report in April that proposes a myriad of changes to its intellectual property system.

The government asked the Commission to report back on whether the current legal frameworks “ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.” The result is a comprehensive report based on hundreds of submissions and consultations representing a broad range of views.

Canada and Australia may be geographically distant, but the similarities between the two countries on innovation and intellectual property are unmistakable. Both countries are net importers of intellectual property, meaning that current policies may benefit foreign companies and rights holders far more than domestic enterprises. With that in mind, the draft report recommends significant reforms to encourage innovation and strike a better balance.

For example, Australia faces the same problem as Canada with respect to patents and pharmaceutical drug innovation. The report notes that patent reforms designed provide longer protections and encourage more innovation within the country have actually failed to increase investment in research and development. Canada has experienced much the same problem with steadily declining research and development investment ratios despite promises from the industry that legal reforms would do the opposite.

In light of these results, the report recommends moving away from increased patent protections (as envisioned by trade agreements such as the Trans Pacific Partnership) and focusing instead on greater data sharing. The changes to pharmaceutical patents are just part of a wider series of proposed reforms that designed to limit patents that may inhibit new innovations.

The report’s copyright recommendations similarly find fault with overly restrictive rules that limit new innovation. It concludes that the term of copyright is too long, particularly since the commercial viability of most work largely ends years before copyright protection expires. It calls for a reduction in the term of copyright (the TPP would require an extension) and the adoption of a “fair use” provision, similar to that found in the U.S.

Many technology and Internet companies rely on the flexibility of fair use to create new businesses and the report expresses concern that Australian businesses are placed at a disadvantage with their fair dealing system. Canada’s fair dealing approach is more flexible than the current Australian law, but remains more restrictive than the fair use model found in the U.S. and recommended in the report.

Australian and Canadian consumers also encounter similar frustrations with many Internet-based services that offer less content at higher prices. The Australian report recommends addressing the issue by enacting legislation clarifying that it is not a violation of the law for consumers to bypass geo-blocking technologies. It believes that the change would create more competition and significantly reduce consumer costs.

As Canada crafts its innovation strategy, the Australian report points to the benefits of evidence-based policies that move beyond conventional rhetoric. When combined with
bold thinking – the Commission does not feel constrained by established practices – the draft report highlights how Canada and Australia share a discouraging record of adopting restrictive laws that may ultimately hamper domestic innovation and provides some innovative solutions to address the problems.

The post Why an Australian Study Could Provide Canada with an Innovation Roadmap appeared first on Michael Geist.

Looking Down Under for a Roadmap to Innovation

Michael Geist Law RSS Feed - Mon, 2016/06/06 - 11:16

Appeared in the Toronto Star on June 6, 2016 as Looking Down Under for a Roadmap to Innovation

From the moment that the Liberal government renamed Industry Canada as Innovation, Science, and Economic Development it sent a clear signal that innovation is a top policy priority. Indeed, in recent months Minister Navdeep Bains has repeatedly called for bold policies focused on addressing Canada’s dismal innovation record.

While the specifics of the Canadian innovation policy have yet to be revealed, a recent Australian government backed study provides a potential roadmap. The Australian Productivity Commission, which functions as an independent “think tank” for the government, released a 600 page draft report in April that proposes a myriad of changes to its intellectual property system.

The government asked the Commission to report back on whether the current legal frameworks “ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.” The result is a comprehensive report based on hundreds of submissions and consultations representing a broad range of views.

Canada and Australia may be geographically distant, but the similarities between the two countries on innovation and intellectual property are unmistakable. Both countries are net importers of intellectual property, meaning that current policies may benefit foreign companies and rights holders far more than domestic enterprises. With that in mind, the draft report recommends significant reforms to encourage innovation and strike a better balance.

For example, Australia faces the same problem as Canada with respect to patents and pharmaceutical drug innovation. The report notes that patent reforms designed provide longer protections and encourage more innovation within the country have actually failed to increase investment in research and development. Canada has experienced much the same problem with steadily declining research and development investment ratios despite promises from the industry that legal reforms would do the opposite.

In light of these results, the report recommends moving away from increased patent protections (as envisioned by trade agreements such as the Trans Pacific Partnership) and focusing instead on greater data sharing. The changes to pharmaceutical patents are just part of a wider series of proposed reforms that designed to limit patents that may inhibit new innovations.

The report’s copyright recommendations similarly find fault with overly restrictive rules that limit new innovation. It concludes that the term of copyright is too long, particularly since the commercial viability of most work largely ends years before copyright protection expires. It calls for a reduction in the term of copyright (the TPP would require an extension) and the adoption of a “fair use” provision, similar to that found in the U.S.

Many technology and Internet companies rely on the flexibility of fair use to create new businesses and the report expresses concern that Australian businesses are placed at a disadvantage with their fair dealing system. Canada’s fair dealing approach is more flexible than the current Australian law, but remains more restrictive than the fair use model found in the U.S. and recommended in the report.

Australian and Canadian consumers also encounter similar frustrations with many Internet-based services that offer less content at higher prices. The Australian report recommends addressing the issue by enacting legislation clarifying that it is not a violation of the law for consumers to bypass geo-blocking technologies. It believes that the change would create more competition and significantly reduce consumer costs.

As Canada crafts its innovation strategy, the Australian report points to the benefits of evidence-based policies that move beyond conventional rhetoric. When combined with
bold thinking – the Commission does not feel constrained by established practices – the draft report highlights how Canada and Australia share a discouraging record of adopting restrictive laws that may ultimately hamper domestic innovation and provides some innovative solutions to address the problems.

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 Looking Down Under for a Roadmap to Innovation appeared first on Michael Geist.

A Peek at A/B Testing in the Wild

Freedom to Tinker - Thu, 2016/05/26 - 09:40
[Dillon Reisman was previously an undergraduate at Princeton when he worked on a neat study of the surveillance implications of cookies. Now he’s working with the WebTAP project again in a research + engineering role. — Arvind Narayanan] In 2014, Facebook revealed that they had manipulated users’ news feeds for the sake of a psychology study […]

The Princeton Web Census: a 1-million-site measurement and analysis of web privacy

Freedom to Tinker - Wed, 2016/05/18 - 11:59
Web privacy measurement — observing websites and services to detect, characterize, and quantify privacy impacting behaviors — has repeatedly forced companies to improve their privacy practices due to public pressure, press coverage, and regulatory action. In previous blog posts I’ve analyzed why our 2014 collaboration with KU Leuven researchers studying canvas fingerprinting was successful, and […]

Is Tesla Motors a Hidden Warrior for Consumer Digital Privacy?

Freedom to Tinker - Wed, 2016/05/18 - 07:00
Amid the privacy intrusions of modern digital life, few are as ubiquitous and alarming as those perpetrated by marketers. The economics of the entire industry are built on tools that exist in shadowy corners of the Internet and lurk about while we engage with information, products and even friends online, harvesting our data everywhere our […]
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