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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 […]

Canada’s New Telecom Policy Begins to Take Shape With Rejection of Bell Appeal, Support for Net Neutrality

Michael Geist Law RSS Feed - Tue, 2016/05/17 - 08:25

For the first six months of the new Liberal government, telecom watchers were unsure about whether Navdeep Bains, the Minister of Innovation, Science, and Economic Development, would maintain the pro-consumer and competition approach that typified the previous government. The Bains ministerial mandate letter referenced the importance of competition, choice, and investment in communications, leaving enough wiggle room to shift in a new direction.

My weekly technology law column (Toronto Star version, homepage version) notes that the full policy remains a mystery, but developments over the past two weeks suggest that a major change in approach is unlikely. With several big issues still to be decided – a plan for universal broadband access and review of the proposed Bell acquisition of MTS among them – getting a better sense of government policy is essential for business and consumers.

Last week, the government ended months of speculation by rejecting a Bell cabinet appeal of a Canadian Radio-television and Telecommunications Commission (CRTC) decision on broadband infrastructure. In July, the Commission extended open access measures to fast fibre connection services, which it hopes will create a more competitive marketplace for Internet access.

The CRTC decision means that companies such as Bell will be required to share their fibre networks with other carriers on a wholesale basis. The approach matches the one used for slower DSL services that plays a key role in enabling an independent ISP community, leading to better services, pricing, and consumer choice.

The Bell appeal received controversial support from the mayors of Toronto and Ottawa, though Toronto City Council voted overwhelmingly to support the CRTC decision and more competition.

While supporters of the CRTC decision feared that the government might break with the past emphasis on competition, overturning the ruling never made much political sense. There was little to be gained by angering the hundreds of thousands of Canadians that rely on services from independent Internet providers and few believe that the major telecom companies will stop investing in new networks, particularly since they are still paid for usage on a wholesale basis. Implementing the CRTC ruling will take months, but the government’s decision to uphold it paves the way for future fibre competition.

While the Bell appeal captured the lion share of telecom policy attention, not to be overlooked is a recent exchange in the House of Commons in which the government affirmed its support for net neutrality. The issue arose in response to a question over Quebec’s plan to force Internet providers to block access to unlicensed online gambling websites.

Conservative MP Dan Albas asked how the government plans to respond to the Quebec bill, which he noted raises concerns about state-backed Internet censorship. Canadian Heritage Minister Mélanie Joly replied that the government believes in net neutrality, an affirmation that Canadians should have the right to access content and applications of their choice online.

The reliance on net neutrality in response to the Quebec bill is notable, given that there are alternative arguments such as exclusive federal jurisdiction over telecom policy and Charter of Rights issues. The Quebec government seems determined to pass the legislation, setting up a certain court challenge by Internet providers and perhaps the federal government. In the meantime, the Liberal government has confirmed that net neutrality remains a key part of its telecom policy position.

If government support for broadband competition and net neutrality remains intact, the next big question is whether the goal of four wireless competitors in every market is still part of the policy toolkit. That principle is at stake in the Bell – MTS merger review.

Manitobans enjoy some of the lowest wireless costs in Canada, as the presence of a fourth carrier in that province creates more competition and better pricing. With MTS out of the way, costs are bound to increase to levels more commonly found in the rest of the country, leaving the government with a crucial competition decision that will impact the future of wireless services in Canada.

The post Canada’s New Telecom Policy Begins to Take Shape With Rejection of Bell Appeal, Support for Net Neutrality appeared first on Michael Geist.

Rejecting Bell’s Broadband Fight Sends a Clear Signal

Michael Geist Law RSS Feed - Tue, 2016/05/17 - 08:10

Appeared in the Toronto Star on May 16, 2016 as Rejecting Bell’s Broadband Fight Sends a Clear Signal

For the first six months of the new Liberal government, telecom watchers were unsure about whether Navdeep Bains, the Minister of Innovation, Science, and Economic Development, would maintain the pro-consumer and competition approach that typified the previous government. The Bains ministerial mandate letter referenced the importance of competition, choice, and investment in communications, leaving enough wiggle room to shift in a new direction.

The full policy remains a mystery, but developments over the past two weeks suggest that a major change in approach is unlikely. With several big issues still to be decided – a plan for universal broadband access and review of the proposed Bell acquisition of MTS among them – getting a better sense of government policy is essential for business and consumers.

Last week, the government ended months of speculation by rejecting a Bell cabinet appeal of a Canadian Radio-television and Telecommunications Commission (CRTC) decision on broadband infrastructure. In July, the Commission extended open access measures to fast fibre connection services, which it hopes will create a more competitive marketplace for Internet access.

The CRTC decision means that companies such as Bell will be required to share their fibre networks with other carriers on a wholesale basis. The approach matches the one used for slower DSL services that plays a key role in enabling an independent ISP community, leading to better services, pricing, and consumer choice.

The Bell appeal received controversial support from the mayors of Toronto and Ottawa, though Toronto City Council voted overwhelmingly to support the CRTC decision and more competition.

While supporters of the CRTC decision feared that the government might break with the past emphasis on competition, overturning the ruling never made much political sense. There was little to be gained by angering the hundreds of thousands of Canadians that rely on services from independent Internet providers and few believe that the major telecom companies will stop investing in new networks, particularly since they are still paid for usage on a wholesale basis. Implementing the CRTC ruling will take months, but the government’s decision to uphold it paves the way for future fibre competition.

While the Bell appeal captured the lion share of telecom policy attention, not to be overlooked is a recent exchange in the House of Commons in which the government affirmed its support for net neutrality. The issue arose in response to a question over Quebec’s plan to force Internet providers to block access to unlicensed online gambling websites.

Conservative MP Dan Albas asked how the government plans to respond to the Quebec bill, which he noted raises concerns about state-backed Internet censorship. Canadian Heritage Minister Mélanie Joly replied that the government believes in net neutrality, an affirmation that Canadians should have the right to access content and applications of their choice online.

The reliance on net neutrality in response to the Quebec bill is notable, given that there are alternative arguments such as exclusive federal jurisdiction over telecom policy and Charter of Rights issues. The Quebec government seems determined to pass the legislation, setting up a certain court challenge by Internet providers and perhaps the federal government. In the meantime, the Liberal government has confirmed that net neutrality remains a key part of its telecom policy position.

If government support for broadband competition and net neutrality remains intact, the next big question is whether the goal of four wireless competitors in every market is still part of the policy toolkit. That principle is at stake in the Bell –    MTS merger review.

Manitobans enjoy some of the lowest wireless costs in Canada, as the presence of a fourth carrier in that province creates more competition and better pricing. With MTS out of the way, costs are bound to increase to levels more commonly found in the rest of the country, leaving the government with a crucial competition decision that will impact the future of wireless services in Canada.

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 Rejecting Bell’s Broadband Fight Sends a Clear Signal appeared first on Michael Geist.

Libraries, archives' role in making orphan works accessible up for debate at WIPO

Sara Bannerman - Thu, 2016/05/12 - 12:46
Discussion of the internationalization of copyright limitations and exceptions, such as expanded exceptions to copyright for libraries, educational institutions, and people with disabilities, continue this week at the World Intellectual Property Organization (WIPO)'s Standing Committee on Copyright and Related Rights.

Discussions of access provisions in international copyright have been ongoing since 2004 and have, so far, resulted in the establishment of the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Today's discussions focused on building on the work done under the Marrakesh Treaty to see the possible establishment of an international instrument internationalizing copyright limitations and exceptions for libraries and archives.  International provisions are necessary because, as I note in chapter 4 of my book, International Copyright and Access to Knowledge (Cambridge UP, 2016):
libraries face a number of problems as they attempt to provide both traditional and new services to their users – many related to new technologies. Digitization, license agreements imposed by publishers of electronic journals and books, and Technological Protection Measures (TPMs) all introduce problems of access, preservation,and maintaining copyright exceptions. Moreover, the globalized possibilities of resource sharing, which take place increasingly across borders, are undermined by the territoriality of copyright law. IFLA, the ICA, and others suggest that a treaty is the best way to ensure that a minimum set of limitations and exceptions for libraries and archives exist, and that they apply in cross-border environments. (76)*One focus of today's WIPO discussions was on the topic of orphan works, or copyright works where the copyright owner can't be found.  Libraries and archives are often the "adoptive parents" of orphan works; they are in a position to facilitate access to these works, especially through digital means.  However, copyright regimes often stand in the way, as can differing national regimes.  The International Federation of Library Associations and Institutions (IFLA), which is active at the meetings, notes that:
...there is a lot of progress to be made, with as many different copyright regimes there as there are states, each giving different types and degrees of protection if any at all. Moreover, as digital technologies bring about radical change in the information environment, a failure to act is the same as going backwards. This is why IFLA is engaging in support of change both at the global (WIPO) level, and nationally.SCCR delegates. © WIPO 2016. Photo: Emmanuel Berrod.

 IFLA is asking for "changes which would give libraries the right to work across borders, to give access to orphan works, and to import books which are available in other countries."  For them, "the goal – an international framework which frees up libraries and librarians – is worth the effort."  After all, IFLA explains, "it’s through exceptions and limitations to copyright that we can do our job."

Current proposals that are on the table for orphan works (see page 34-39 of the current working document) would allow entities such as libraries to reproduce, make available to the public, and otherwise use orphan works.  Some proposals apply these provisions, as well, to retracted works (African Group, Equador, India), and some would require remuneration to authors or copyright owners who are subsequently identified (Equador).  However, there is no consensus among states on such proposals, with the United States and the European Union among the key detractors.

The chair's summary of today's discussion is expected to be disseminated tonight.

Tomorrow's discussions are expected to focus on the internationalization of exceptions and limitations for educational and research institutions and for persons with other disabilities.

For those following the discussion, a number of groups are blogging and tweeting from WIPO:
My June 2015 post about these negotiations is here.
* Discount code for International Copyright and Access to Knowledge: Bannerman2015

wrapping copyright in the maple leaf

Fair Duty by Meera Nair - Sun, 2016/04/24 - 10:21

On Friday, The Globe and Mail published “Kids will suffer if Canada’s copyright legislation doesn’t change” by Kate Taylor. I usually enjoy reading Taylor’s work; her capacity to grasp the heart of an issue by delving into underlying facts is often impressive. Unfortunately, on this occasion, her exploration is incomplete and emotion is presented as analysis.

While amendment of the Copyright Act is a year away, there should be no doubt that lobbying has begun. As per the time-honoured script, the essential step is to wrap copyright in the maple leaf. The very fabric of Canada is under assault, and only strengthening copyright can save us all. The script makes for good drama, but is short on evidence.

Taylor, like John Degen last month and Heather Menzies earlier this year, places the challenges of Canada’s educational publishing industry at the feet of the 2012 statutory expansion of fair dealing. (Such a selective invocation of Canadian copyright-related history conveniently omits any mention of the role played by Access Copyright in bringing about the decline of collective licensing.) The claim that reduced revenue from textbook sales is due to unauthorized copying is not new. But when put to the Supreme Court, after consideration of all the facts, a majority of the judges felt that the conclusion did not logically follow:

Access Copyright pointed out that textbook sales had shrunk over 30 percent in 20 years.  … [but] there was no evidence that this decline was linked to photocopying done by teachers … several other factors [are] likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning (para. 33).

But the rising use of Internet-based materials does not placate those who have taken it upon themselves to protect our children. Taylor writes: “ … teachers increasingly turn to free online materials, using fewer Canadian sources in the classroom and fewer materials directly tied to the provincial curriculum. [Advocates] are concerned there is no quality control of free material.” It is entirely plausible that the causality runs the other way: teachers are finding quality materials online, materials which also happen to be free. (The Khan Academy comes to mind.) But in the hands of those opposing any dilution of the traditional publishing industry, “free” and “online” are invoked with a dismissive air at best, or a pejorative connotation at worst.

Setting aside the prospects for alternative publishing models (for now), let us assume that Taylor’s, Degen’s and Menzies’ analyses are correct.  Let us assume that all the ills of the educational publishing sector are solely the fault of fair dealing. What then? Have any of them considered that years of expanding the scope of copyright has only meant that even more Canadian dollars flow out of the country than stay in? Since before Confederation, the market north of the 49th parallel has been dominated by foreign copyright holders. First British, then American. Copyright is a blunt instrument; any discussion of remedy via copyright should not ignore the trade imbalance. Applying copyright with broad brushstrokes through blanket licensing means fewer Canadian dollars are left to focus exclusively on Canadian creators.

Copyright governs much more than educational publishing, but even if it was confined to educational publishing, an important question has been left unanswered: Do Canadian sources make up the majority of all materials in all subjects taught in primary, secondary and tertiary education in Canada? If the answer is Yes, please provide evidence. If the answer is No, it is astounding that in the name of Canada, taxpayers, students and families are being chivied to provide more of our hard-earned dollars to predominantly benefit non-Canadian entities.

The effort spent railing about fair dealing could be better spent seeking measures that will target support directly to Canadian creators. Given the renewed spirit of federal-municipal relations, why not lobby for dedicated funding for school boards to support creation of open-education resources (OER) specifically to fill the need for Canadian content? Canadian history, geography, and politics could be addressed by local writers and illustrators, in collaboration with teachers, librarians, and archivists. How about seeking some manner of matched funds, to encourage every municipality to sponsor a writer-in-residence? What about expanding the existing Public Lending Right program to address nonfiction educational materials? A little imagination could bring about surprising dividends.

A Made-In-Canada approach to education is not a new concept. Law professor Myra Tawfik describes early 19th century efforts in Lower Canada to secure appropriate learning materials for children:

Lower Canadian teachers began to write or compile their own teaching manuals and schoolbooks. Preferring these to British or American imports and wanting to print multiple copies for use in their schools, they quickly discovered that the cost of printing their manuscripts was well beyond their means. Consequently, they began to petition the House of Assembly asking that it either assume the cost of printing or grant a sum of money to defray the costs (p.81).

Notably, when the House of Assembly delivered the requested support, it came with conditions regarding price and distribution.

As Canada approaches its 150th birthday, with a nod to the spirit that prompted the Massey Commission, the creation of the Canada Arts Council, and the emphasis upon Canadian Studies’ programs, it is time to focus on Canadian creators in a meaningful way.

 


celebrating a parody, 49 years later

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 


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