- Election 2011
- Chronology (including bills)
- Electoral District (list)
- Participate in mailing lists
SFLC Files Amicus Brief in Alice Corp. v. CLS Bank, Launches Resource Page
- It is rare for a case to combine energy drinks, copyright law, DJs, rap and snowboarding in Canada. The court’s decision in Beastie Boys v. Monster Energy Co. is such a case. In this recent decision of the United States District Court (S.D. New York), Monster Energy defended a copyright infringement ...
I love reading with my daughter, Poesy, who has just turned six. We agree on almost all of her favorites, and re-reading them is one of our best-loved activities, and how we pass the time on boring bus-rides and so forth. However, there are a few books that Poesy loves, but which leave me cold. First among these is are the Ariol books, a long-running French kids' comic series that are being swiftly translated into English by Papercutz (there are three books out so far, and a fourth is due in May). Ariol was co-created by the amazing and talented Emmanuel Guibert, whose other work includes the anarcho-gonzo Sardine kids' comics; the brilliant WWI memoir Alan's War, and the extraordinary memoir of doctors in Soviet-occupied Afghanistan The Photographer.
I love Guibert, but not Ariol. Poesy, on the other hand, can't get enough of it. This is cool -- and better than cool, because my reluctance to read her these books over and over (and over and over) has actually driven her to be a much better independent reader, and she often picks up an Ariol book, sits herself down, and reads it to herself for hours, snickering. Ariol is like your kid's obnoxious friend who is so incredibly naughty that you dread his visits, and who your kid adores and wants to play with all the time (thankfully, he also lives in a comic book).
It's exciting to see Poesy developing her own taste, separate from ours, and I wanted to give her a chance to explain what she likes about Ariol. So we sat down in my office and recorded this video review together. If you've got little anarcho-readers in your household, Poesy wants you to know that you should let them read some Ariol books.
Ariol #4: A Beautiful Cow [forthcoming May 6, 2014]
The Copyright Board of Canada has issued a series of questions to Access Copyright in the tariff proceedings involving Canadian post-secondary institutions. Once Canada universities and colleges quit the proceedings, the Board was left to play a more aggressive role in questioning Access Copyright's claims. Its questions focus on several important issues (discussed further below), but perhaps most noteworthy is its preliminary conclusion on what constitutes insubstantial or de minimis copying.
In establishing the scope of copyright rights, the law refers to "the sole right to produce or reproduce the work or any substantial part thereof." Since the rights only arise once the full work or a substantial part of it are used, anything less than that - ie. an insubstantial part - is not subject to the rights identified in the Copyright Act. While some rights holders have argued that the standard for a substantial is very low (the National Post recently argued in a case that "even the reproduction of a small number of words in a newspaper article can be an impermissible reproduction"), the Copyright Board says that its preliminary view is that "copying of a few pages or a small percentage from a book that is not a collection of short works, such as poems, is not substantial." With respect to the tariff application, the Board says this excludes more than 2.5% of coursepack copying.
More importantly, if a few pages or a small percentage is unsubstantial, fair dealing will unquestionably constitute a much larger amount of copying. By definition, fair dealing involves copying of a substantial part of the work that is not subject to compensation nor require further permission from the rights holder. As discussed at length, determining whether the copying in question meets the fair dealing standard is subject to a two-part test established by the Supreme Court of Canada. Moreover, the Court has ruled that fair dealing is a user's right that "must not be interpreted restrictively." Since a few pages or a small percentage is insubstantial, fair dealing that is consistent with the Supreme Court of Canada's emphasis on user rights must involve a significantly larger percentage of the work. This suggests that the Canadian education approach of a single chapter or ten percent of a work is consistent with the law and might be too low (the consensus Israeli fair dealing guidelines that involved both education groups and publishers uses a 20% standard).
Beyond the de minimus copying issue, the Board poses several other important issues to Access Copyright. For example, it asks for the collective to provide a legal justification for including linking in its tariff, particularly in light of the Supreme Court of Canada decision of Crookes v. Newton (I discuss that here). It also seeks analysis of the university fair dealing guidelines and asks Access Copyright to describe its view of the impact of adding education to the fair dealing provision as part of Bill C-11 and of the Supreme Court of Canada fair dealing cases. The Board also asks Access Copyright to explain:
the basis for asserting that all copying carried out under the educational institutions' policies is compensable and subject to the tariff to be certified by the Board. Is it Access' position that there is no fair dealing at all in educational institutions?
The Board has posed some important questions and staked out a notable position on de minimus copying. Access Copyright's responses are due by March 18, 2014.
Next week marks a decade of post-CCH Canadian copyright dialogue in Canada. The decision addressed a number of issues including originality, and the implications of providing technology that might be used towards infringing behaviour. However, the decision has largely become known for its stance on fair dealing. It stood out on the world stage; described at the time by Michael Geist as: “one of the strongest pro-user rights decisions from any high court in the world, showing what it means to do more than pay mere lip service to balance in copyright.” And yet, looking at it now, it seems a little incredulous that a decision to uphold copyright’s structure as a set of limited rights, should garner so much attention.
March 4, 2004 began quietly enough. According to the news reports, the Supreme Court of Canada ruled that a library could make, at the request of a patron, a copy of a work of legal literature (i.e., an individual journal article, edited reasons for a judgement, a selected chapter from a treatise etc.). The library was only engaging in fair dealing. If anything felt odd, it was the implication that we needed the Supreme Court’s sanction for the modest copying that is carried out daily within libraries and among researchers. Perhaps recognizing the peculiarity of this spectacle, Chief Justice Beverley Mclachlin, writing for a unanimous court, took pains to remind us that:
Under s. 30.2(1), a library or persons acting under its authority may do anything on behalf of any person that the person may do personally under the fair dealing exceptions to copyright infringement (para. 83).
In her next breath, Mclachlin also indicated that this was superfluous to the matter at hand:
I concluded in the main appeal that the Law Society’s dealings with the publishers’ works were fair. Thus, the Law Society need not rely on the library exemption. However, were it necessary, it would be entitled to do so (para. 84).
What surrounded the decision with acclaim from public interest advocates, and loathing from some copyright owner representatives, was the recognition by the court that the system of copyright is inherently about nuance—that copyright does not support a blanket prohibition on all copying.
For most of the twentieth century, fair dealing had existed essentially in name only. In “The Changing Face of Fair Dealing” in ed. Michael Geist, In the Public Interest—the Future of Canadian Copyright Law (2006), Carys Craig writes that fair dealing was “all but redundant in the Canadian courts: rarely raised and cursorily rejected (p.438).” It has been only in the new millennium that the rights of the public began to gain attention. In this regard, CCH Canadian was not the watershed moment; that distinction was earned two years earlier in the Théberge v. Gallery d’Art du Petit Champlain decision by the Supreme Court. Even though the case had nothing to do with fair dealing, Justice Binnie, writing for the majority, decisively placed owners’ rights in service of the vitality of the public domain, and, made particular mention of the role of exceptions:
Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement … which seek to protect the public domain in traditional ways such as fair dealing … (para. 32).
Binnie’s remarks were later given added thrust in CCH Canadian. Reminding us that fair dealing “was always available,” Mclachlin continued with: “Research must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained (para. 49-51)”. And after a multi-factor examination of the copying under scrutiny (building and improving upon the four factors of American fair use) the Court declared fair dealing.
Encouraging as the decision was, it by no means assured anyone of success in the long-term pursuit of balance in copyright law. In a comment upon the case, Teresa Scassa wondered if it was “too little, too late.” The predilection of the world then (as it is now) was to adopt more expansive copyright and the Canadian government of the day showed no signs of taking a different course of action. She wrote:
… [W]hile the Canadian Supreme Court’s new balancing approach offers users greater scope under the existing copyright legislation than they have ever realistically been able to hope for, it is an approach that may be anachronistic, insufficient and ultimately against the grain of current legislative and international directions. The Court may well be situating itself as the last champion of a much beleaguered underdog – the ordinary user, and in this respect, the effort is welcome (p.97).
Certainly, the domestic reaction against the decision was swift and brutal. I have detailed this period of fair dealing history in “Fair Dealing at a Crossroads” in ed. Michael Geist, From Radical Extremism to Balanced Copyright (2010). Alarmed by the possibility of surrendering the absolutism that had characterized copyright in Canada, rights-holders representatives lost no time in presenting CCH Canadian as nothing less than an assault on creators. The nuance of the decision, its setting, and the emphasis of the Court that every instance of fair dealing is unique and must be examined holistically, could have eased the anxiety felt among Canada’s creative set. However, rights holders sought instead to present the decision in the blackest terms possible and paint fair dealing as unwelcome to Canadian creators. The irony of such pronouncements was that, even with its limited scope, fair dealing was the only measure within the Copyright Act that gave modest support to uses of copyrighted material that are critical to fostering creativity.
Looking back now, Scassa’s concerns may well have been borne out if, at the time, Canada had enjoyed federal governance of our usual variety. But two consecutive minority governments were not conducive to moving forward with copyright change. By the time of the third minority government, public consultation began and amendments were proposed and later accepted in the name of Bill C32/C11. The passage of time was critical; it allowed all parties to gain some perspective concerning the rise of digital technology and world-wide networks. Although, political pressures being what they are, Canada could not avoid the unwelcome addition of protection for technological protection measures (even when a use is non-infringing.) Nevertheless, fair dealing was given a modest nod of approval through the addition of parody, satire and education as legitimate purposes of fair dealing. As readers likely know, the purpose is only the first step. The fairness analysis, using later words of our Supreme Court, does the heavy-hitting.
Returning to Scassa’s comment, she drew particular attention to Mclachlin’s instruction that the availability of a license is not relevant to a decision of fair dealing. Scassa wrote: “This is an extremely important statement for libraries and universities which have struggled with the costs of reprography licenses to protect them against copyright infringement actions (p.95).”
Many scholars across Canada saw the decision as the impetus for Canada’s post-secondary institutions to engage with fair dealing; to educate their communities about the importance of the exception and offer guidance of how to best use the exception. Regrettably, this did not happen. When I took stock of fair dealing in 2010, I wrote: “In the years following CCH Canadian, Canadian educational institutions remained disquietly silent on the decision … CCH Canadian has not, to any appreciably degree, taken root in the Canadian university landscape (p.100-101).” Fortunately, Canadian educational institutions are showing more engagement now. (Lisa di Valentino offers some data upon this subject; see here.) Further reassurance came from the Supreme Court of Canada in 2012 concerning fair dealing’s legitimacy and application within K-12 schools (see Education v. Access in Notable Supreme Court Decisions). It must be emphasized that the decision of 2012 was based upon the earlier language of fair dealing, meaning before the inclusion of “education” as an allowable purpose within the law.
The impetus for this blog entry, though largely to indulge in reflection, is also to take the opportunity to identify what, if anything, is the legacy of CCH Canadian. With respect to procedure, it set a new standard for examination of fair dealing; effectively, all roads now begin with a multi-factor enquiry, with no particular factor taking precedence over any other. Policy-wise, the “long-term interests of society as a whole” cannot now be easily set aside. Both elements are valuable and contribute to stability for creators and users alike. But perhaps a legacy less visible is an affirmation through what did not happen. The complaints following the decision included dire warnings that the conduct of the Supreme Court of Canada was not in compliance with international norms, namely the three-step test devised through the Berne Convention, with later variations adopted in the TRIPs agreement and the WIPO Internet Treaties. But the independent action of our Supreme Court to operate in Canada’s best interests has not met with any challenge outside of Canada. The affirmation that international cooperation does not preclude independence on matters of domestic exceptions is something to celebrate.
Now, I'm delighted to announce that the company has produced a line of Litographs based on my novel Little Brother, with a gorgeous anti-surveillance design by Benjy Brooke.
Each piece is custom-made, and you can choose between a variety of color schemes or a black-and-white design. Tees are two-sided, screened from collar to hem, and come in both boy- and girl-cuts.
The company sends a new, high quality book to the International Book Bank for every poster they sell.
Mr. Lutz, you alluded to Bill C-11, our government's bill that was brought in last year, and you said it was a good first step. You went on to say that SR and ED was imperative. I wonder if you could elaborate on that, please. Then I'll come back to Mr. Moisan and another question.
Good afternoon. My name is Jon Lutz and I'm the vice-president and chief financial officer for EA Canada.
I've been with Electronic Arts for sixteen years, and I've spent the last eight years here in Burnaby, British Columbia, where we make world-renowned games such as NHL, FIFA Soccer, as well as the Ultimate Fighting Championship title, which is currently in development.
EA also has a number of other studios across Canada, including studios in Edmonton and Montreal, a location in Kitchener, Ontario, and our Charlottetown, Prince Edward Island studio. They make games such as Dragon Age, Mass Effect, and the widely popular mobile title, The Simpsons: Tapped Out.
Combined, EA employs close to 1,800 employees in Canada.
EA began its presence in Canada way back in 1991 with the acquisition of Distinctive Software in Burnaby. Distinctive Software itself was founded in the 1980s. Since that time, the studio has grown to be one of our largest in the world, and our company has continued to reinvest in Canada by opening, expanding, and acquiring new studios.
In the 1990s, the attractiveness of Canada was the incredible talent that existed in greater Vancouver, but also the proximity to our corporate headquarters in Redwood Shores, California, and the favourable currency exchange rate that existed at that time.
While our headquarters is still in California, many things have changed in our industry.
The macroeconomic environment that existed at the time has changed, with the dollar reaching close to parity and eroding some of the advantage we had when it was lower. Perhaps one of the biggest things that has changed is the size and importance of the Canadian industry as a whole. When we set up EA Canada in 1991, there weren't many video game companies in Vancouver, let alone across the country, but that has changed dramatically.
We've seen Vancouver grow its industry too. Where at a time it was the largest in Canada, we've seen the rise of the Montreal industry, which is now a world leader in our sector, boasting roughly 60% of all video game employees in Canada.
Perhaps the biggest change is that Canada as a country now boasts one of the biggest video game industries in the world.
This hasn't happened overnight, but it has happened rapidly due to a number of very strong economic policies, such as provincially administered targeted tax incentives that have helped our industry grow and stay competitive in an ever more globally competitive industry. But it remains the quality of employee we can find in Canada that keeps us here and compels us to reinvest.
As our industry grows, it has become harder and harder to find the intermediate and senior talent to fill all of the positions we have available. In order to produce the best products we can and stay ahead of the evolution of technology, we need access to a global labour pool.
Talent is the natural resource that we thrive on, and while we do everything we can to find that talent in Canada, sometimes for a number of reasons we need to look globally. Being able to take advantage of programs through ESDC and CIC that are efficient and reliable, and to prioritize highly skilled employees are vital to the continued growth of our company.
Recent changes have caused delays in this process; however, after hearing recent comments by Minister Kenney and talking to our trade association, which has been working hard on this issue, I'm now optimistic that the message is getting through.
We pride ourselves on being an innovative company that is on the cutting edge of our industry. We invest in R and D in Canada and take advantage of the SR and ED tax credit program to help offset some of the cost of this investment.
While the program is very valuable, it denies multinational enterprises the same benefit that is given to wholly-owned Canadian firms, even though very important and innovative R and D is being conducted here in Canada by companies such as ours.
Providing global companies with the same percentage tax credit in a refundable manner would make Canada much more competitive for investors to serve their increased R and D expenditure.
EA is a company that designs and produces intellectual property that is sold all over the world. As the economy moves from a brick and mortar model to a digital economy, the protection of intellectual property has become even more important than in the past.
Countries with the strongest intellectual property protection laws will be the ones that thrive in a digital economy. Canada's Bill C-11 on copyright reform was a strong first step toward improving Canada's protection of intellectual property.
I encourage you to continue to work to ensure that rights holders in Canada are protected and have the confidence to continue to produce innovative products here.
We believe that Canada has a number of key advantages that allow it to continue to be a world leader in the production and development of video games. We've shown our commitment to Canada by expanding from being a small acquisition 23 years ago to having multiple locations spanning from Vancouver to Charlottetown.
We employ a broad range of experience levels, from the recently graduated junior employee to the senior producer responsible for the overall product management of our games.
We invest in our employees, and EA works with local universities to help ensure the curriculum is up to date and reflective of what our industry needs from new employees.
We provide internships to help advance the skills of students while they're still in school. We ensure our employees continue to have access to the education they need to advance their careers and become more valuable within the company.
Initiatives like EA university, which puts employees through rigorous courses that enhance their skills in programming, art, and production, are huge investments by EA, which we believe benefit the employee and the company in the long term.
We hire Canadians whenever we can. It is much more expensive for us to recruit prospective employees living abroad and then relocate them and their families to Canada, but in some situations when we cannot find these people in Canada, we have no choice.
If I can leave you with one final thought today, it is that we exist in a global industry, within a global economy that is in competition for the best people to produce the most innovative entertainment experiences.
Without support like SR and ED to invest in those experiences and without efficient access to the best talent, our industry will not continue to be the Canadian success story that it is today. We can work together to ensure that this industry goes nowhere but up.
I appreciate the opportunity to speak with you today, and I am open to answering any questions you may have about Electronic Arts.
Why Copyright Trolling in Canada Doesn't Pay: Assessing the Fallout From the Voltage - TekSavvy Case
The Canadian media featured extensive coverage over the weekend of the federal court decision that opens the door to TekSavvy disclosing the names and addresses of thousands of subscribers and establishes new safeguards against copyright trolling in Canada. While some focused on the copyright trolling issues, others emphasized the disclosure of the names and the possibility of lawsuits.
What comes next is anyone's guess - Voltage indicates that it plans to
pursue the case - but the economics of suing thousands of Canadians for
downloading a movie for personal purposes may not make sense given
current Canadian law. This post examines the law and estimated costs of
pursuing file sharing litigation against individuals, concluding that
the combination of copyright reform, the Voltage decision, likely damage
awards, and litigation costs will force would-be plaintiffs to
reconsider their strategies.
Start with the likely damage award if a case went to court. The maximum liability for an individual for non-commercial infringement in Canada is $5,000 for all infringements. With nothing more than IP addresses, there is unlikely to be any evidence of commercial intent or benefits (going for a commercial claim would require far more evidence and expensive litigation). While $5,000 is the cap, the actual number is likely to be far lower as the law sets a minimum award of $100. The law provides some additional guidance for judges:
in the case of infringements for noncommercial purposes, the need for an award to be proportionate to the infringements, in consideration of the hardship the award may cause to the defendant, whether the infringement was for private purposes or not, and the impact of the infringements on the plaintiff.
I would argue that the actual number is likely to be at the low-end of the scale for a first-time case. These are non-commercial cases involving movies with a market value for consumers of around $15 to $25 with some selling for under $10. Moreover, the impact of the infringements on the plaintiff are also low since Voltage chose relatively low-profile movies (see page 9), some of which had minimal earnings (for example, Puncture earned $68,945 worldwide). Contrary to some reports, the Hurt Locker is not one of the films in this case.
Perhaps the best comparable is the New Zealand copyright tribunal three strikes cases which have awarded actual market value for the copyright work (eg. $2.39 for a song) and added tribunal and application fees, a deterrence fee, and a portion of the cost of obtaining the user's information. Tribunal and application fees would not apply to a demand letter in Canada. The deterrent fee has been as low as zero with others around $100 per infringement. There is often also a fee for obtaining the name and address, typically at about $50 for three notices.
Since Canadian demand letters would not involve tribunal or application fees, a reasonable number is going to be very close to the $100 minimum for a first-time, non-commercial infringement with no other warnings or notices. The federal court hinted at this last week, noting that "damages against individual subscribers even on a generous consideration of the Copyright Act damage provisions may be miniscule compared to the cost, time and effort in pursuing a claim against the subscriber."
As discussed in my post on the case, the decision establishes a system of court oversight for the demand letters as the contents will be approved by the parties (including CIPPIC) and the case management judge. The letter must also "clearly state in bold type that no court has yet made a determination that such subscriber has infringed or is liable in any way for payment of damages." With a full review of the letter, a court is unlikely to grant its approval if the demands are viewed as excessive. Indeed, it seems likely that the court will require settlement demands that are consistent with likely damage awards.
Even if Voltage were successful in convincing a court to award ten times the marketplace value of a $15 movie - $150 - the economics do not make sense. Assuming Voltage manages to convince 75% of recipients to settle for the $150 demand, the campaign would generate $225,000 in revenue. Yet that must be offset by paying the TekSavvy costs before any names are released (which alone were estimated at $200,000 at the federal court hearing), covering their own costs (assume a matching $200,000 to collect the IP addresses, retain experts, and fund the litigation), and dealing with thousands of demand letter recipients (if each letter costs $30 in time and money that adds another $45,000).
Under this scenario, Voltage will have settled three quarters of its cases for ten times the market value of a $15 movie and will have lost hundreds of thousands of dollars in the process. In fact, even if the demands were doubled to $300 per subscriber, the case will still just break even. Moreover, there are still the remaining 25% of recipients who have not responded, many of whom may believe they have (in the words of the federal court) "perfectly good defences to the alleged infringement." If Voltage pursues them in court, the costs of the litigation (the federal court ruled all follow-on cases will be subject to case management) will far outstrip any likely award as every court case is a money loser. If Voltage does not fight in court, the decision to only send demand letters will be used as evidence of copyright trolling in any future case and the federal court ruled that "improper motive" (ie. demand letters without intent to litigate) could be enough to deny future motions for subscriber information.
In sum, file sharing lawsuits against individuals in Canada do not make economic sense if the goal is to profit from the litigation (the Voltage case is different from earlier industry-backed lawsuits that were geared toward deterring file sharing). First, since Canadian law points to very low damage awards and court oversight will make it difficult to demand anything beyond the likely damage awards, settlements may not even cover costs. Second, some cases will require litigation and every case that goes to court will result in losses for the rights holder. Third, failure to litigate those cases will make it difficult to obtain future court orders for subscriber information since those litigants will be suspected of copyright trolling.
Interesting article by Ben Jones at TorrentFreak:
Why YouTube's Automated Copyright Takedown System Hurts Artists
Day in and day out automated bots detect and report millions of alleged copyright infringements, which are then processed by the receiving site without a human ever looking at them.
Needless to say, this process is far from flawless. In the past we’ve covered countless false, inaccurate, and just plain hilarious DMCA claims, but YouTube’s takedown process is particularly problematic.
Motions for summary judgment and spoliation sanctions filed in Grooveshark case, Arista v Escape Media
In the RIAA's case against Grooveshark, Arista Records v. Escape Media, the RIAA has filed a motion for summary judgment and a motion for judgment based on spoliation of evidence.
The federal court has released its much anticipated decision in Voltage Pictures v. Does, a case involving demands that TekSavvy, a leading independent ISP, disclose the identities of roughly 2,000 subscribers alleged to have downloaded movies without authorization. The case attracted significant attention for several reasons: it is the first major "copyright troll" case in Canada involving Internet downloading (the recording industry previously tried unsuccessfully to sue 29 alleged file sharers), the government sought to discourage these file sharing lawsuits against individuals by creating a $5,000 liability cap for non-commercial infringement, TekSavvy ensured that affected subscribers were made aware of the case and CIPPIC intervened to ensure the privacy issues were considered by the court. Copies of all the case documents can be found here.
The court set the tone for the decision by opening with the following quote from a U.S. copyright case:
"the rise of so-called 'copyright trolls' - plaintiffs who file multitudes of lawsuits solely to extort quick settlements - requires courts to ensure that the litigation process and their scarce resources are not being abused."
The court was clearly sensitive to the copyright troll concern, noting that "given the issues in play the answers require a delicate balancing of privacy rights versus the rights of copyright holders. This is especially so in the context of modern day technology and users of the Internet."
So how did the court strike the balance?
In short, by issuing a split decision. The court ruled that Voltage Pictures had met the legal standard for an order to disclose subscriber names and addresses, but it established a series of conditions and protections that extend far beyond previous cases. The conditions include court oversight of the "demand letter" that will be sent to subscribers, with a Case Management Judge assigned to review and approve its contents before being sent to any subscriber. Moreover, the letter must include a message in bold type that "no Court has yet made a determination that such subscriber has infringed or is liable in any way for payment of damages."
The win for Voltage Pictures is the order to disclose the subscriber names and addresses. The court felt bound by the Federal Court of Appeal Sony BMG case, which established that a "bona fide" claim is the standard needed for a court order (CIPPIC had argued for a higher "prima facie" standard). The court found that Voltage met the bona fide standard based on its statement of claim.
While Voltage argued that should be the end of the issue and privacy issues should not be a concern, the court was extremely troubled by the prospect of copyright trolling. It stated:
"This [Voltage's position] would be an acceptable position but for the spectre raised of the 'copyright troll' as it applies to these cases and the mischief that is created by compelling the TekSavvy's of the world to reveal private information about their customers. There is also the very real spectre of flooding the Court with an enormous number of cases involving the subscribers many of whom have perfectly good defences to the alleged infringement. Finally, the damages against individual subscribers even on a generous consideration of the Copyright Act damage provisions may be miniscule compared to the cost, time and effort in pursuing a claim against the subscriber."
Having cited the dangers of copyright trolling (and noted the limited damages available in these cases), the court canvassed the caselaw in the U.S. and the U.K. and identified principles that go beyond prior Canadian caselaw. First, where there is compelling evidence of "improper motive" of a plaintiff, the court might consider denying the motion entirely. Second, if such evidence is unavailable, there are numerous safeguards that can be established.
In this case, the court ruled that there is some evidence that Voltage has been engaged in litigation which may have an improper purposes, but not enough to deny the motion altogether. Instead, the court ordered release of the subscriber names and addresses with the following safeguards:
* The information age is, in many ways, the beginning of history
* It’s a moment at which every person is swiftly becoming an archivist of her own life, a curator of billions of blips of ephemeral communications and ruminations and interactions
* As any archaeologist who’s ever rejoiced at finding a midden that reveals how normal people lived their lives in antiquity can tell you, this ephemera, so rare and badly preserved through most of our history, is of incalculable value
* Which would you rather see: an oil painting of a Victorian monarch, a ramrod stiff photo of your great-grandmother in her confirmation smock, or a hundred transcripts of the conversations she shared with her peers and her family?
* The tools by which we accomplish this archival business are, of course, computers
* Carried in our bags and pockets, worn in and on our bodies
* There is one group of people in the world who understand how archiving works, who understand the importance of the ephemeral en masse, who can steer us to personal and cultural practices of preservation, archiving, dissemination, and access — it’s you, the museum sector
* Just as librarians — who have toiled for centuries at the coalface of information and authority, systematizing the process of figuring out which sources to trust and why — are more needed than ever now, when we are all of us required to sort the credible from the non-credible every time we type a keyword into a search box
* So too are curators and archivists more needed than ever, now that we are all archiving and curating all the live-long day
The old adage in real estate that it only takes one buyer held true in the Canadian 700 MHz spectrum auction. After potential new entrants such as Verizon declined to enter the Canadian market and Wind Mobile dropped out of the bidding at the last minute, many declared the spectrum auction a failure. Industry Minister James Moore and the government got the last laugh, however, with the auction generating $5.3 billion and the emergence of potential new national wireless player - Videotron (parent company is Quebecor). There had been some speculation that Quebecor might make a move outside of Quebec (Nowak, Corcoran) and seeing the company scoop up prime spectrum in Ontario, Alberta, and British Columbia offers renewed hope for a more competitive environment.
Quebecor's national wireless strategy remains a bit of a mystery. The arguments that this could lead to more competition are obvious: the CRTC's 2013 Communications Monitoring Report notes that Quebec's average revenue per user (ARPU), one of the wireless industry's key metrics, is easily the lowest in Canada. In 2012, Quebec ARPU was $51.95, compared to $61.87 in Ontario, $63.56 in B.C., and $73.50 in Alberta. Moreover, Quebec had the highest percentage of population with access to four or more facilities-based wireless providers at 82 percent of the population (Ontario was next closest at 63%). The Canadian Media Concentration Research Project finds that Quebec is the least concentrated market in Canada (though still highly concentrated), leading to the conclusion that "if there is any vindication of the viability of the '4th mobile wireless carrier' strategy in Canada, Quebec is it." In short, Quebec is the most competitive wireless market in Canada with four viable competitors and the prospect of extending that approach to Ontario, B.C., and Alberta would represent a significant change in the wireless competitive landscape.
The possibility of Quebecor becoming a national player does not end there. The government's move to regulate domestic wireless roaming creates the possibility of more competitive new entrants who can piece together national networks comprised of their own spectrum plus roaming on competitor networks in markets where they do not operate. There is also the possibility of Quebecor accelerating a national move by acquiring Mobilicity or even making a play for Wind Mobile.
Yet despite the optimism, there is still some lingering doubts about Quebecor's plans. The company's press release states "given the way the auction unfolded, Quebecor Media could not pass up the opportunity to invest in licences of such great intrinsic value in the rest of Canada. We now have a number of options available to us to maximize the value of our investment." In other words, this was relatively cheap spectrum given bidding restrictions on incumbents and the limited number other bidders that was too inexpensive to pass up ($233 million for seven licences in Quebec, Ontario, BC, and Alberta).
Moreover, the company's success in Quebec may stem in part from its ability to offer bundled services that include wireless, Internet, cable television, and home phone. Quebecor will be hard pressed to match the bundled approach outside its home province. If the company is a wireless-only player in Ontario, B.C., and Alberta, it may face many of the same challenges as the other 2008 new entrants.
From a consumer perspective, the possibility of more choice is great, however Quebecor is another large vertically integrated company with incentives to favour its own content. For example, in 2011, the CRTC ruled that it violated undue preference rules when it gave its video-on-demand service exclusive rights to some of its broadcaster programs. The Commission ordered the company to provide the programs to Telus and Bell.
For the moment, Canada is still dominated by the big three, who unsurprisingly bought the majority of available spectrum. But the spectrum auction outcome offers a ray of hope to those seeking a national wireless player who could shake up the Ontario, BC, and Alberta markets. Quebecor has a footprint of 500,000 wireless customers in Quebec and it just acquired prime spectrum on the cheap. If the government maintains its commitment of regulating wholesale domestic roaming and tower sharing, there may be the necessary ingredients to entice Quebecor to take a shot at becoming a viable fourth player in Canada's largest provinces.
The CRTC launched the second phase of its Talk TV consultation with a series of questions that place the big regulatory issues squarely on the table. After asking some basic data questions, the consultation addresses a series of issues with scenarios that are framed in a lopsided manner. The consultation addresses hot button issues such as online video, pick-and-pay channels, and simultaneous substitution, but the options presented to respondents are limited and skewed toward Internet regulation for online video or supporting the status quo for conventional broadcast. For example, access to more U.S. programming is presented as a choice between increased fees, lost Canadian jobs, or larger television packages with Canadian channels. The online video discussion is premised on new CRTC regulations that with a series of increased fee options presented.
consultation is a signal of where the CRTC is headed, not only is
the notion of true pick-and-pay channels dead and simultaneous
substitution alive, but the Commission may be willing to toss out
net neutrality in a race to regulate online video services. The issues raised in the consultation:
“To lose one parent, Mr. Worthing, may be regarded as a misfortune; to lose both looks like carelessness. … The fact is, Lady Bracknell, I said I had lost my parents. It would be nearer the truth to say that my parents seem to have lost me.”
“To say that it is scintillant – the one bright line and one brilliant epigram and inversion of ordinary speech into something extraordinarily comic, follows after another, is merely to repeat what has been said about the play from the beginning.”
Wilde enthusiasts may recall that February 14 marks the anniversary of the debut of The Importance of Being Earnest–A Trivial Comedy for Serious People. The play opened on that date in 1895, at St. James Theatre in London. Leonard Smithers undertook publication of the work a few years later, with a first edition run confined to 1000 copies. (In 2007, the BBC reported that #349 had been found in a charity shop, “appropriately inside a handbag.”)
Copyright enthusiasts have added reason to dwell upon Wilde; his image sparked a pivotal discussion on authorship and originality, the effects of which are felt to this day. In 1882, during a lecture tour of the United States, Wilde sat for a series of photographs with celebrity portrait photographer Napoleon Sarony. When one of the photographs was later incorporated, without permission, into a department store advertisement, Sarony claimed infringement.
That the American courts should have agreed with Sarony seems no matter for surprise today. But at the time, the issue arose as to whether a photograph could be considered the work of an author and thus be eligible as copyrightable material. In The Lingering Effects of Copyright’s Response to Photography (2004), Christine Haight Farley (Associate Professor of Law at Washington College of Law, American University) examines this case against her detailed study of the culture of photography. She writes:
It is not at all surprising that the Supreme Court could appreciate the beauty of the Sarony portrait of Wilde, and with the economic interests at stake at that moment in the history of the photography industry, the result was all but a foregone conclusion. What is, however, remarkable is how the Court could seemingly articulate a standard that could differentiate between high and low art; between art and science (p.389-390).
“Oscar Wilde, No. 18.” Image courtesy of the Museum of Metropolitan Art
Farley explains that the courts were in an awkward predicament. Photography had been lauded as a mechanical process that captures a scene entirely by technology. An absence of human intervention implied an inviolate image of record. Such accuracy carried great merit, adding value to news reporting, documentary publications and evidentiary processes. To argue that a photograph be regarded as a creative work required another interpretation of photography.
The court found such an interpretation by locating creativity in the composition of the scene. According to Sarony’s own brief, he chose the lighting, props, costumes, position, and even the expression of the subject. The Supreme Court uncritically took such a proposition as evidence of authorship, but also took care to limit their decision, “… These findings, we think, show this photograph to be an original work of art (emphasis in original).” The specificity allowed other photography to remain as purely mechanical.
However, the language of the decision reveals an inconsistency within the Court’s reasoning. When refuting the argument that Congress had erred in situating photographs as copyrightable material—that the Constitutional Clause which secures “…for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” does not support protection of photographs as writings—the Court identified an author as “he to whom anything owes its origin.” Yet the Court refused to entertain the idea that the composition of the picture lay in the activity at the camera, even though, as Farley writes:
The person operating the camera always exercises choice in producing a photograph. There are creative choices in the precise timing to click the shutter, the angle of the shot, the frame, the focus, the distance from the subject, the centering of the subject, etc. (p.434).
Farley continues and explains the inconsistency:
[The] Court would have some difficulty relying on this possible act of authorship because Sarony did not actually operate the camera. Sarony was not a photographer in the modern or technical sense. He was not interested in the camera work. Instead, he regularly employed a cameraman, Benjamin Richardson, to work the camera. There is no evidence that Sarony, as directorial as he was, had given any direction to Richardson about these technical choices. There is no indication that Sarony cared about that dimension of choice (p.434-435).
Biographer and historian Roy Morris Jr. indicates that, not only did Sarony not care about technique, he took pains to distance himself from such details. In Declaring His Genius: Oscar Wilde in America (2013), Morris writes:
In action, Sarony was a very hands-off photographer. He took no photos himself, delegating the task to his assistants while he gazed distractedly out the window. Nor did he develop the finished products, bragging that he did not know anything about the developing process (p.35-36).
Indeed, the developing process could also have been a place to locate creativity. As was also the selection of which photographs to register and publish. Farley explores all these avenues in detail and returns to the challenge the Court faced in ensuring photography’s standing as an untampered record of truth. Over the next century, courts would slowly recognize that the activity at the camera and laboratory had a place in the examination of authorship, but Farley’s work illustrates that the rationale employed in Burrow-Giles has surprising staying power.
Returning to The Importance of Being Earnest; readers likely know that the play marked the apex of Wilde’s career and his world would begin to unravel within a few days of the opening night. Soon after, he was charged and convicted of indecency—as per Victorian sensibilities of the day. He received the maximum sentence possible, two years of hard labour in prison, but it would be more accurate to say he received a life-sentence of permanent banishment. In a letter written from prison, he laments:
My tragedy has lasted far too long : its climax is over; its end is mean; and I am quite conscious of the fact that when the end does come I shall return an unwelcome visitant to a world that does not want me (p.22).
Sadly, Wilde’s pronouncement of the world of his lifetime proved to be accurate. Shunned and impoverished, he died with little fanfare in 1900. That his work would be held in such esteem in the century that followed, likely never crossed his mind.
Canadians love Internet success stories such as Netflix and Google as recent data indicates that millions now subscribe to the online video service and Google is the undisputed leader in search and online advertising. The changing marketplace may be a boon to consumers, but my weekly technology law column (Toronto Star version, homepage version) notes that it also breeds calls for increased Internet regulation. That is particularly true in the content industry, with the film and music sectors recently calling for rules that would target online video services, Internet providers, and search engines.
The Canadian Media Production Association, which represents independent producers of English films and television shows, recently told a Senate committee that new rules are needed to address the threat posed by popular Internet video services such as Netflix. The CMPA argued that a "level playing field" is needed to ensure that there is "choice, diversity and growth in a more open market place."
Consumers could be forgiven for thinking that the entry of Netflix into Canada has increased choice, diversity, and growth, yet the CMPA wants new rules that would raise costs and impose regulatory requirements on online video providers.
Its recipe for reform includes three specific changes that target Netflix. First, it wants new rules requiring foreign-based content companies to contribute to the creation of new Canadian content. The CMPA has not suggested a formula for contributions nor explained how it would distinguish between online services mandated to contribute and those exempted from such requirements.
Second, it wants to require Netflix to block the use of proxy services that can be used to disguise the geographic location of a user. Those services - which are popular with privacy advocates since they allow users to safeguard their personal information - can also be used to access the U.S. services that are otherwise unavailable in Canada such as Hulu or the U.S. version of Netflix.
Third, it wants Netflix to levy taxes on all subscriptions, raising broader questions about taxation issues for the myriad of online services that challenge conventional notions of jurisdiction.
The CMPA is not alone in advocating for new Internet-related rules. Music Canada, formerly known as the Canadian Recording Industry Association, has also begun to push for changes that could target Internet providers and search engines.
Late last year, the organization noted the need for website blocking to combat sites that facilitate infringement. Graham Henderson, the Music Canada president, wrote that government support (which now runs into the tens of millions of dollars in Ontario alone) should be accompanied by "judicious and reasonable regulation of the internet. The actions taken by courts in other jurisdictions have very reasonably required ISPs to block websites that are almost entirely dedicated to the theft of intellectual property." Website blocking has proven highly controversial in many countries, with some courts striking down blocking laws on free speech grounds.
The blocking requirements would target Internet service providers, but Music Canada has also identified search results as a problem. In a presentation to the Ontario Standing Committee on Finance and Economic Affairs, Henderson claimed "consumers cannot find legal services on Google," adding that "with government support, maybe we can urge intermediaries to actually do something to help consumers find legitimate sources, because I think theyâd like to." Whether that means requiring companies like Google to adjust their search results by eliminating some results or by prioritizing industry-friendly websites is unclear, yet the comments suggest the industry would favour some form of intervention or government pressure.
The Canadian government has to date been reluctant to wade into the Internet regulation debate. Moreover, regulators such as the CRTC have long exempted online services such as Netflix from broadcast-style regulation. Yet as online services continue to reshape the marketplace, the pressure for new rules seems likely to intensify.
Nearly two years ago, I wrote a post about how the Canadian digital economy strategy seemed to be taking shape. The government had moved on several legislative issues including copyright and spam, it was bringing together federal and provincial ministers to discuss the issue, the open government initiative was on the way, and telecom policy was beginning to emerge as a major concern. All that was missing was an announcement, identification of some targets, and the signal that this was a priority. While I'm told that some in government also saw it this way, then-Industry Minister Christian Paradis let the moment slip away and the entire digital strategy become little more than a punchline.
Yesterday's federal budget marks the revival of the Canadian digital strategy. The government will undoubtedly still point to past accomplishments (the budget references reforms that date back to the 2006, so digital economy activities from several years ago are surely fair game), but this budget provides many of the remaining ingredients for a digital strategy (Mark Goldberg offers a similar perspective). Once again, all that is left is missing is the official announcement from Industry Minister James Moore. So what will the Canadian digital strategy contain? Based on this budget, it would seem to include:
Connectivity and Access: The government has set a target of "near-universal" access to broadband (which it is defining as 5 Mbps) within five years. That is consistent with the CRTC's target from 2011, but at a far slower pace, since the Commission talked about universal access by the end of 2015, not 2019. In addition to broadband access, the government is continuing support for computers in schools and embracing regulation of wireless services in an effort to address ongoing concerns (including those of the Competition Bureau) about the state of competition. This includes previously announced wholesale wireless roaming regulation, stronger enforcement powers, more spectrum auctions, tower sharing, and foreign investment changes.
In sum, the good news is that there is finally a government target for universal broadband access, some money to finish the job, and a commitment to address wireless competition concerns. The bad news is that a 5 Mbps goal by 2019 is too slow. By comparison, the Digital Agenda for Europe sets a target of 30 Mbps by 2020 and Australia has targeted 100 Mbps by 2016.
Intellectual Property: The government has already passed copyright reform and will soon also pass Bill C-8, the anti-counterfeiting bill that includes major reforms to Canadian trademark law. It recently tabled five intellectual property treaties that focus on the administration of intellectual property rights. The budget confirms the intent to pass the amendments needed to ratify or accede to those treaties. In addition, it will reform plant breeders rights, another form of IP. All of the latest IP reforms are being driven by trade agreements as these are required reforms for the Canada - European Union Trade Agreement.
Online Commerce: Electronic commerce issues often fall within provincial jurisdiction (for example, online contracting), but the government seems to have identified several areas where it can play a role. The anti-spam legislation that takes effect later this year is the most obvious policy intervention, but the budget contains two more. First, the government has launched a consultation (deadline in 120 days) on the collection of sales tax on e-commerce transactions. It asks:
the Government is inviting input from stakeholders on what actions the Government should take to ensure the effective collection of sales tax on e-commerce sales to residents of Canada by foreign-based vendors. For example, should the Government adopt the approach taken in some other countries (such as in South Africa and the European Union) and require foreign-based vendors to register with the Canada Revenue Agency and charge the Goods and Services Tax/Harmonized Sales Tax (GST/HST) if they make e-commerce sales to residents of Canada?
Second, the government says it plans to introduce anti-money laundering and anti-terrorist financing regulations for virtual currencies such as Bitcoin. The budget cites a 2013 Senate report for support for the move, though that report does not reference virtual currencies. There have been some efforts elsewhere to address money laundering concerns with online currencies, but some remain skeptical over whether the concern is warranted.
The government may have also encouraged the Competition Bureau to flex its muscles on online commerce issues, leading to the recent e-books settlement and the greater cooperation between the CRTC and the Bureau.
Content: The budget includes a couple of digital items involving online content with money allocated for the Virtual Museum of Canada and Online Works of Reference, which includes The Canadian Encyclopedia/Encyclopedia of Music in Canada and The Dictionary of Canadian Biography. Unfortunately, a serious commitment to digitization is still absent. I suspect that the government will point to many earlier initiatives - changes to the Canada Media Fund (including major funding several years ago) and the IP reforms - as evidence of its support for online content. The other important element of government policy is how Canadians access content, with the government's commitment to a pick-and-pay model for television broadcasting and its likely opposition to regulation of Internet video providers focusing on the access side of the equation.
Skills Development: Every budget includes money for skills development and this one is no different. While there are no references to specific digital skills development, training programs, research funding, and other support can be easily brought into the digital agenda umbrella.
Government as a Model User: Given the inaccessibility of the budget website yesterday, the government still has plenty of room to improve in holding itself out as a model user. Yet the budget also includes key elements here: funding for an Open Data Institute and emphasis of web-based services (particularly for veterans) provide examples that would fall within the digital strategy. Indeed, open data has made real progress in recent years with more data sets available and the creation of a non-commercial open licence for government works.
The actual Canadian digital strategy may not look identical to this - privacy and security did not fall within the budget but would presumably be part of a strategy - but there is enough in this budget to provide observers with a good guess about where things seem to be headed.
I was recently The Struggle for Canadian Copyright: Imperialism to Internationalism, 1842-1971. The podcast, available here, is part of the New Books in Communications series interviewing authors about their work. Other podcasts include Robert Darnton speaking on the Future of Libraries, Melissa Aronczyk on Branding the Nation, and Jonathan Sterne on MP3: The Meaning of a Format, among others.
interviewed by Jeff Pooley on her book
Other key sites
Digital Copyright Canada BLOG