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The NY Times reports that Canada played a notable role in assisting the NSA to weaken encryption standards. The Times reports:
internal memos leaked by a former N.S.A. contractor, Edward Snowden, suggest that the N.S.A. generated one of the random number generators used in a 2006 N.I.S.T. standard - called the Dual EC DRBG standard - which contains a back door for the N.S.A. In publishing the standard, N.I.S.T. acknowledged âcontributionsâ from N.S.A., but not primary authorship.
Internal N.S.A. memos describe how the agency subsequently worked behind the scenes to push the same standard on the International Organization for Standardization. âThe road to developing this standard was smooth once the journey began,â one memo noted. âHowever, beginning the journey was a challenge in finesse.â
At the time, Canadaâs Communications Security Establishment ran the standards process for the international organization, but classified documents describe how ultimately the N.S.A. seized control. âAfter some behind-the-scenes finessing with the head of the Canadian national delegation and with C.S.E., the stage was set for N.S.A. to submit a rewrite of the draft,â the memo notes. âEventually, N.S.A. became the sole editor.â
For the past two years, I have been describing the government's long-missing digital economy strategy as the Penske File, a Seinfeld reference to a non-existent work project. The government's Seinfeldian approach to digital policies continued yesterday, with Industry Minister James Moore hosting a Festivus-like event on Canada's anti-spam legislation. The anti-spam law was passed in 2010, but intense lobbying has delayed approval of the final regulations that are needed to bring the law into effect.
The by-invitation roundtable featured most of the business associations that have criticized the legislation along with several consumer/public interest representatives. Consistent with the Seinfeld episode on Festivus, the 90-minute event opened with the airing of grievances, providing the critics with an opportunity to deliver their concerns directly to the Minister. The consumer and public interest representatives spoke in favour of the legislation and of the need for the government to move quickly to finalize the regulations. While the government's plans remain to be seen, Moore is clearly engaged on the issue and, given that the law was passed years ago, will hopefully demonstrate a feat of strength by bringing it into effect.
A draft of my comments (which were changed slightly in delivery) are posted below.
Opening Remarks, Spam Roundtable (September 10, 2013)
I appreciate the opportunity to participate in this roundtable. I'm a law professor at the University of Ottawa and I was a member of the National Task Force on Spam that in 2005 unanimously recommended that the government introduce anti-spam legislation.
I'd like to open with four quick points.
First, I'd like to address the imbalance at today's roundtable. I don't criticize the fact that the critics far outnumber the supporters today since the squeaky wheel invariably gets the attention. As we saw this summer on the wireless file, Canadian business groups can be very good at generating attention when they oppose government policy.
Rather, I think it is important to recognize that there are many Canadians - both individuals and businesses - that support this legislation. They are the thousands of Canadians who participated in the work of the anti-spam task force, who appeared before the Industry Committee to speak in support of the anti-spam bill once introduced, and who referenced the need to bring the anti-spam law into effect as part of their comments in the digital economy strategy consultation several years ago.
I think many Canadians reasonably thought that passing this legislation in 2010 was largely the end of their civic participation in this policy issue. The bill was extensively debated, amended, and ultimately passed by Parliament. There should no room for debate on whether the legislation should be brought into force. The only question should involve the regulations associated with the legislation.
Second, I want to emphasize that spam and spyware remain a serious problem in need of a legislative solution. Law alone won't solve the problem, but failure to act legislatively leaves Canada at risk of becoming a spam haven and Canadians without recourse to address harmful online activities.
There are improved filtering solutions today, yet the problems with spam remain. Last night, I checked my Gmail spam box. As is the case most days, there was several legitimate business messages that I've opted for that were sent to spam, one important personal message incorrectly identified as spam, and several messages from email groups that I participate in. The daily misidentification of spam by aggressive filters means that business messages often don't get through and the reliability of email is undermined. That hurts both business and consumers.
Third, there is a sense of déjà vu here. In preparing for this meeting, I came across the following comments:
"especially from the perspective of small business, there's a bit of a fear of the unknown here"
"It has many more cost implications. There are some alarm bells going off and people are saying, "Whoa - let's think about this for a moment."
"It is so easy for companies to take their business someplace else, and we are constantly threatened by this. Literally, if you make too many regulations and add to the costs, it is very simple to house sites in the United States, Bermuda, or someplace else."
The first two comments come from the Canadian Chamber of Commerce and the third from ITAC. But they aren't about CASL. They are comments from 1999 about PIPEDA. The knee-jerk criticism of privacy legislation is not only short-sighted, but also very old and ultimately wrong.
Fourth, many of the concerns expressed with respect to this legislation are greatly exaggerated. Indeed, the claims make this summer's attempt to link spectrum with Canadian water resources seem positively reasonable by comparison. If you believe the criticism, the legislation will place lemonade stands at risk, create onerous obligations not found elsewhere, and create massive new costs for Canadian business.
Yet the reality is that most of the criticism does not stand up to scrutiny. The legislation starts with a simple proposition - obtain customer consent and you can do pretty much whatever you like. Given the delays, Canadian business will have nearly ten years from its first introduction to ask one time for permission. With that permission in hand, the law does not create serious barriers to electronic marketing. Beyond the basic consent requirements, there are a host of exceptions - for personal relationships, business-to-business, and many others. A reasonable reading of these exceptions - the same kind of reading the businesses that now claim the exceptions are too limiting will use the moment the law takes effect - clears away virtually all the horror stories.
Further, the opt-in approach found in the Canadian law is the standard in most of the world. It can be found in Australia, the United Kingdom, the European Union, and Japan, who have all recognized that weaker opt-out models simply don't provide effective protection.
Finally, the claims associated with costs leave the impression that Canadian businesses have no compliance costs today. That's just not true. PIPEDA and the do-not-call list both create obligations for businesses. If they are not already maintaining lists, respecting opt-outs, and ensuring full compliance, they aren't following the law. CASL creates new obligations but it doesn't change the fact that compliance costs are not new.
Intellectual property (IP) contracts in Alberta are interpreted just as any contract would be. The same basic rules of interpretation apply, whether it is an IP assignment or transfer, a software license, a complex techology asset acquisition, the hiring of a technology employee or consultant, a non-disclosure agreement or any commercial agreement with ...
Posted by Fred von Lohmann, Legal Director, Copyright
More music, video, text and software is being created on the Internet by more people in more places than ever before. Every kind of creative endeavor, both amateur and professional, is being transformed by the new opportunities and lower costs made possible by digital tools and online distribution. But copyright infringement remains a problem online, and Google is working hard to tackle it.
Today, we are releasing a report, “How Google Fights Piracy,” bringing together in one place an overview of the programs, policies, and technologies we have put in place to combat piracy online. Here are few highlights:
Hundreds of Google employees work on the problem of piracy online, and we will continue to work with copyright owners to focus our energies on combating the problem.
The Labour Day weekend ended with a bang for telecom watchers as Verizon, the U.S. giant that was contemplating entering the Canadian market, announced that it was no longer interested in moving north. That decision represents a major loss for consumers, who would have benefited from greater choice and increased competition.
Yet days before the Verizon change of heart, the Canadian Radio-television and Telecommunications Commission released its own noteworthy announcement, issuing a request for information to all Canadian wireless companies on their roaming pricing. The request, which covers everything from roaming agreements with U.S. companies to roaming revenues and consumer costs, may be the start of a long-overdue effort to reign in Canadian roaming fees that the OECD has reported are amongst the highest in the world.
The Commission acknowledged mounting concern over roaming fees, which kick in whenever Canadians use their wireless devices outside the country (and occasionally within the country when a provider does not offer their own service). After attempts to gather data from publicly available information failed to provide a clear picture, the CRTC initiated the request for information, much of which has never been made publicly available.
Based solely on the readily accessible information, however, my weekly technology law column (Toronto Star version, homepage version) notes that roaming fees render typical usage of cellphones when out of the country unaffordable for most Canadians.
Consider an average family of four that travels to the U.S. for a long weekend. Each person travels with their cellphone, but limits their use to a few calls, checking email, and some text messages to co-ordinate plans. The parents spend only 20 minutes per day talking on their devices, the kids are limited to 10 minutes, and everyone sends ten texts per day. The family avoids bandwidth intensive activities such as streaming video or uploading multiple photographs.
The total cost for such modest usage? On Rogers, the hour of total talk time costs $87 per day, checking emails costs $31.96 per day, and the 40 texts adds another $30 to the bill. With a daily cost of $148.96, the three-day weekend total roaming cost runs to $446.88 plus taxes.
The situation is even worse with Bell and Telus, who both charge more for data usage. Assuming the emails used 10 MB per day per person (a very modest figure), Bell's pricing of $6 per MB (Telus charges $5 per MB) would add over $200 per day to the family's cost, bringing the weekend cost to over $1000.
By comparison, Vodafone Australia recently unveiled a daily cap for its customers that roam in the U.S. The plan gives subscribers the same voice, text, and data usage as their domestic plans for only AU$5 per day (the same offer applies to travel in the UK and New Zealand).
Many other countries have already taken action against the gouging that appears to occur on roaming fees. In fact, costs in the European Union have dropped by 91 per cent over the past six years in response to regulatory initiatives that have capped roaming fees in Europe.
Canadian providers have been anticipating a regulatory response to high roaming fees. Earlier this summer, a Rogers executive told telecom analysts that "the roaming initiatives, which frankly we think are imperative in the long run to kind of get roaming in line, or I think we will see the same kinds of things that we've seen in other parts of the world where it becomes high on the regulatory agenda."
Rogers has already taken some steps to drop roaming pricing, resulting in tens of millions of dollars in reduced revenues. Yet those reductions still yield in the pricing described above. With costs still high by international standards and a lack of competition an ongoing concern, regulated roaming pricing is overdue and an important step in meeting the government's goal of "more choice, lower prices, better service."
In June the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled was established through the World Intellectual Property Organization. 51 countries signed the treaty, but Canada and others have not yet signed.
At the upcoming September/October meeting of the General Assembly of WIPO, "An opportunity for additional Member States to sign the Treaty will be available...on September 27, 2013" (page 2 para 7).
The UK, Switzerland, and Brazil, along with 48 other countries, all signed the treaty on the last day of the diplomatic conference. To signify its support for the treaty and for rights for the visually impaired, and to reflect the reportedly valuable role that Canada played during the negotiations, Canada should sign the Marrakesh Treaty on September 27.
Interest groups and individuals should encourage their governments also to sign the treaty on September 27. While September 27 will be an ideal occasion to do so, the treaty remains open for signature for one year until June 27 2014. After that date, it will continue to be possible to accede to the treaty.
Posted by Diana Smetters, Software Engineer
This summer we’re posting regularly with privacy and security tips. Knowing how to stay safe and secure online is important, which is why we created our Good to Know site with advice and tips for safe and savvy Internet use. -Ed.
Strong passwords help protect your accounts and information on the web. But forgetting your password is like losing your keys—you can end up locked out of your own home. It gets worse if your password gets compromised or stolen. Sometimes the thief will change your password so you can't get back into your own account—kind of like someone stealing your keys and then changing the lock.
If you've lost your Google password, you need a way to get back into your Google Account—and back to all of your stuff in Gmail, Maps, Google+ and YouTube. To help you, Google needs to be able to tell that you’re the rightful account owner even if you don't have the right password. There are a few easy steps you can take right now to make it easy for you—and no one else—to get into your Google Account if you forget or don’t know the password.
1. Add a recovery email address. By registering an alternate email address with your Google Account settings, you’re giving Google another way to reach you. If you forget your password, Google can send a link to that recovery email address so you can reset your password. Google can also use that email address to let you know if we detect something suspicious happening with your account.
Setting up your recovery options can help you get back in if you get locked out of your Google Account
2. Add a phone number to your Google Account. Your mobile phone is the best way to regain access to your account if you forget your password. It's like the "fast lane" for account recovery: we text a code to the phone number you've registered with us, and you're back in business in no time. Your phone is more secure and reliable than other means of recovering your account. Methods like “secret” questions (asking your mother’s maiden name or city where you were born) may have answers that are easy to remember, but they are also possible for bad guys to uncover. And we’ve consistently seen that people who register a recovery phone are faster and more successful at getting their accounts back than those recovering their accounts via email.
You can also get a text message if Google detects that something suspicious is going on with your account. Giving a recovery phone number to Google won’t result in you being signed up for marketing lists or getting more calls from telemarketers. 3. Keep your recovery options up to date. It’s a good idea to check your recovery options every so often. For example, if you change your phone number after setting up your recovery options, take just a minute to update your recovery settings to match. We'll remind you of your current settings every so often to make it easier for you to keep them up to date.
That’s it! You can either update your recovery options next time you’re prompted, or you can take two minutes to do it right now on our Account recovery options page. For more advice on how to protect yourself and your family online, visit our Good to Know site, or check out some of the other posts in our series on staying safe and secure.
Posted by Richard Salgado, Director, Law Enforcement & Information Security and Pablo Chavez, Director, Public Policy and Government Affairs
Today we filed an amended petition [PDF] in the U.S. Foreign Intelligence Surveillance Court. This petition mirrors the requests made to Congress and the President by our industry and civil liberties groups in a letter earlier this year. Namely, that Google be allowed to publish detailed statistics about the types (if any) of national security requests we receive under the Foreign Intelligence Surveillance Act, including Section 702. Given the important public policy issues at stake, we have also asked the court to hold its hearing in open rather than behind closed doors. It’s time for more transparency.
In addition, along with a number of other companies and trade associations, we are also meeting the President’s Group on Intelligence and Communications Technologies today. We’ll reiterate the same message there: that the levels of secrecy that have built up around national security requests undermine the basic freedoms that are at the heart of a democratic society.
This gave me an idea for a more general service: a dead man's switch to help fight back in the war on security. This service would allow you to register a URL by requesting a message from it, appending your own public key to it and posting it to that URL.
Once you're registered, you tell the dead man's switch how often you plan on notifying it that you have not received a secret order, expressed in hours. Thereafter, the service sits there, quietly sending a random number to you at your specified interval, which you sign and send back as a "No secret orders yet" message. If you miss an update, it publishes that fact to an RSS feed.
Such a service would lend itself to lots of interesting applications. Muck-raking journalists could subscribe to the raw feed, looking for the names of prominent services that had missed their nothing-to-see-here deadlines. Security-minded toolsmiths could provide programmes that looked through your browser history and compared it with the URLs registered with the service and alert you if any of the sites you visit ever show up in the list of possibly-compromised sites.
Early last week Michael Geist informed us that the Association of Universities and Colleges of Canada (AUCC) had commissioned detailed guidelines concerning fair dealing from Osler, Hoskin & Harcourt. AUCC’s request was prompted by Access Copyright’s lawsuit against York University; a lawsuit launched earlier this year on the dubious claim that York University’s fair dealing policies were encouraging infringement. As I wrote then:
Access Copyright is once again trying to roll back the interpretation of fair dealing fostered in Canada by both the Supreme Court of Canada and the Government of Canada. This progressive interpretation took shape slowly, with Court decisions spanning 2002-2012 and Government efforts at amendment benefiting from more than ten years of deliberation. Both bodies took measured steps that recognize the importance of maintaining copyright’s limits. Access Copyright is setting its sights on the educational community that took guidance from the government and the Court.
On Friday, Howard Knopf posted a very thoughtful assessment of the guidelines, drawing attention to their conservative nature. He is concerned that “these guidelines could become a ceiling rather than the foundation or ground floor of fair dealing.” Together with Geist’s assessment that “the guidelines provide useful information for teachers and students,” we see the range of possibilities.
The guidelines are only that: guidelines. How each institution might incorporate that material is a different matter. The first challenge is the form of the guidelines. It seems that these were written by lawyers, to be read by other lawyers. (No disrespect is intended to any lawyer; it is only that the text conjures up the worst of stereotypical imagination.)
There is an underlying assumption that potential readers are well-versed in Canada’s new millennium judicial history concerning fair dealing. If that is in fact true, these guidelines will not curb legitimate fair dealing where the copying exceeds the bounds of what is suggested. (As to whether the very presence of these guidelines narrows fair dealing in the eyes of a court, that is a different issue and one I will address another day.)
Before enunciating limits on amounts and dictating habits of practice, a guidance document should set the stage by giving details of the Supreme Court decisions that facilitated fair dealing to this point. Particularly so, as research and teaching, two key activities of post-secondary institutions, were addressed.
In CCH Canadian v. Law Society of Upper Canada (2004) the Court upheld individual copying of journal articles, made by a library at the request of a patron for the purpose of research. The Justices unanimously declared that research should be given a “large and liberal interpretation” and that the mere presence of licensing options did not eliminate fair dealing. (Also contained within that decision was the clear stipulation that the library was not responsible for the conduct of patrons using copying equipment within the library.) And, the Court reminded Canadians that librarians could stand in the fair dealing shoes of their patrons.
In Access v. Education (2012) the Court upheld the copying of supplemental short excerpts of copyrighted material for distribution to students in a classroom. Central to the decision is that the works were supplemental. A welcome comment was the recognition that teachers shared the fair dealing purposes of their students, effectively standing in those shoes.
[And, if one wishes to be thorough about it, it should be pointed out that, when the Supreme Court of Canada had the opportunity to address technological neutrality, it resoundingly supported the principle in 2004 and again in 2012.]
Taken together, there is no reason that fair dealing cannot comfortably protect the creation and delivery of short excerpts of copyrighted material to students in an manner that enhances efficiency for students, teachers, librarians and researchers.
Brief snippets of these cases are found in my Notable Supreme Court Decisions; links to each case are within. As I wrote three years ago, our Supreme Court has made a habit of presenting decisions such that all Canadians may understand what is happening at the highest court in the land. Moreover, the decisions have been the subject of many books and articles. Canadian academia need only appeal to their very strength and treat this subject as any other academic issue – something to learn about and engage with. If that happens, documents like AUCC’s guidelines are less intimidating and less likely to foreclose discussion on fairness.
And, we should not be surprised by the somewhat stilted guidance, as historically AUCC has not been at ease discussing fair dealing. That the guidelines themselves are not available at the AUCC website (they were only circulated to universities, Knopf very kindly posted links to the documents) is symptomatic of the organization’s unease. An earlier guideline was equally absent, as I discovered in 2011.
Even after the 2012 decisions by the Supreme Court of Canada, AUCC still did not make their position on fair dealing prominent. If one searches for “fair dealing” at the AUCC website, a document titled “Fair dealing policy for universities” can be found among the resulting hits. The document is brief, but helpful in providing a rule-of-thumb guidance, with encouragement that fair dealing is a flexible provision. The document begins with:
The fair dealing provision in the Copyright Act permits use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties. To qualify for fair dealing, two tests must be passed. First, the “dealing” must be for a purpose stated in the Copyright Act: research, private study, criticism, review, news reporting, education, satire or parody. Educational use of a copyright-protected work passes the first test. The second test is that the dealing must be “fair.” In landmark decisions in 2004 and in 2012, the Supreme Court of Canada provided guidance as to what this test means in educational institutions.
And then, a standard guidance is given concerning limits (i.e., 10% of work, one chapter, an entire illustration, etc.…). This is more useful than the offering of last week as this document givens the contours of fair dealing and individual institutions can build upon this. Yet, AUCC was unwilling to publicize this document either.
At their website, AUCC makes mention of copyright as part of their policy work. However, the listed content is far out of date and only pertains to advocacy for amendment. That is, of course, important to policy development in Canada. But, getting one’s hands dirty is the next step in policy development and AUCC is reluctant on that score.
Fortunately, as both Geist and Knopf point out, many universities and colleges have made copyright and fair dealing a priority on their campuses. People are talking about these matters; this is a significant step forward. Institutions have prepared guidelines of their own and are working towards educating faculty, staff and students about the nuances in the system of copyright.
For BC’s educational community, in association with the open textbook project, BC Campus has compiled a list of all post-secondary institutional sites on copyright; see here. (I checked, almost all the links are still active.) And, for everyone, a more readable set of guidelines, dated to February 2013, is available from Canadian Association of University Teachers (CAUT); see here. Note that the amounts described for copying by CAUT are consistent with AUCC’s guidance, but the development and presentation of the topic is much better and thus enhances understanding of the issues.
On close inspection, I saw that the contract they wanted me to speak under required me:
* to exclusively assign all rights to the talk to them;
* to indemnify them against all claims (including nuisance claims) arising from the talk (meaning that they could simply hand money to nuisance complainants and send me the bill).
Effectively, this would have meant that I could not adapt this speech for further use, use parts of it in articles, or allow people to share it under CC licenses. It would also have meant that if someone made a baseless legal threat over my speech, they could have given that person money to go away and sent the bill to me, without limitation, forever.
I give hundreds of talks a year and have never been asked to sign a comparable agreement. The agreement was non-negotiable. Campus Party organisers blamed it on the event's sponsor, Telefonica.
I did not ask for, nor was I offered, any compensation from Campus Party. I was acting as a volunteer, as I have done before for other Campus Parties (in 2011, I chaired Campus Party Mexico City's headline event, a panel with Tim Berners-Lee, Al Gore and Vint Cerf, also working on a volunteer basis).
Even if I had been working commercially, rather than volunteering, Campus Party's agreement would have been unacceptable. It is without precedent in my long and broad experience as a paid and volunteer speaker.
I wish I had noticed the offending clauses in the contract sooner. I should have looked more closely. In my defense, my previous experience with Campus Party led me to trust them, and in my rush to get things squared away, I didn't give it the attention it was due.
I am very sorry that I won't be able to appear at the event tonight, and I hope that anyone who is attending to see me will understand, and will come to some future event in London instead. For example, I'm appearing at Nesta's Futurefest later this month (http://www.futurefest.org/).
I hope that the main Campus Party organisation will reconsider its relationship with the UK event and require them to treat their volunteers in an equitable and fair manner, and not with heavy-handed, one-sided, unprecedented contracts that strip unpaid speakers of their rights to use their own words in the future.
This is only the second or third time I've cancelled a public engagement in more than a decade of touring and speaking, and it's the only time I've cancelled on such short notice. But I had no choice. Campus Party's contract would have effectively taken away my ability to work and speak on the subject of my life's work, and they were unwilling to modify it.
My latest Locus column, Libraries and E-books, talks about the raw deal that libraries are currently getting from the big five publishers on ebook pricing (libraries pay up to five times retail for their ebooks, and are additionally burdened with the requirement to use expensive, proprietary collection-management tools). I point out that libraries are effectively the last main-street "retailer" of books, and represent a valuable ally for publishing in the age of ebooks, where all the other major players are not just ebook vendors, but ebook publishers as well, and looking to take market-share from the publishers.
Unlike every other channel for e-books, libraries are not the publishers’ competitors. They don’t want to sell devices. They don’t want to win over customers to a particular cloud. They just want readers to read, writers to write, and publishers to sell. They deserve a better deal than they’re getting.
There’s a good case to be made for libraries getting discounts on e-books, rather than paying premiums. For one thing, they’re excellent customers and they make bulk-buys. For another, the e-books that libraries buy stay in their collection forever, unlike print books. When a library downsizes its stock of last-year’s print bestseller, it puts most of its copies in its booksale for a nominal sum, a dollar or two, and often those books end up in the used-book stream, being sold alongside the new books on Amazon at steep discounts, competing for readers’ dollars.
But e-books can’t be sold in the booksale. They don’t ever end up competing with new books – and they never generate revenue for libraries as used books. That is, even when priced at par, e-books make more money for publishers and less money for libraries.
Publishers should be courting libraries as neutral parties and potential allies in the e-book wars. Publishers are in direct competition with e-book companies like Amazon, who publish e-books as well as selling them. But when Amazon sells an e-book, it gets mountains of business intelligence from the transaction: who is buying, where, from which keywords, and with what other books (for starters). What does the publisher get? An aggregate sales figure, 90 days after the fact. Of course Amazon is running circles around the Big Five publishers: the publishers know nothing about their customers, and Amazon knows everything about them.
As students and faculty prepare to head back to campus this week, many will be greeted by new copyright guidelines that clarify how materials may be used without the need for further permission or licensing fees. Just over a year after the Supreme Court of Canada released five landmark copyright decisions in a single day and the Canadian government passed copyright reform legislation over a decade in the making, the education community has begun to fully integrate the new copyright landscape into campus policies.
My weekly technology law column (Toronto Star version, homepage version) notes the new rules are significant since they grant teachers and students far more flexibility to use portions of materials without the need for copyright collective licences. The changes come as a result of the expansion of fair dealing, the Canadian equivalent of the U.S. fair use rules. The government expanded the scope of fair dealing to explicitly include education as a recognized purpose in 2012, while the Supreme Court has repeatedly emphasized the importance of a broad, liberal interpretation to fair dealing in order to ensure an appropriate balance in copyright law.
With those developments in hand, Canadian educational institutions crafted a general fair dealing policy last year confirming that educators can rely on fair dealing to use up to ten percent of a copyright-protected work (or a single article, a chapter from a book, a newspaper article, or a poem or photograph taken from a larger collection) without the need for a licence provided they meet a six-factor test.
After Access Copyright, a copyright collective, launched a lawsuit against York University over its reliance on fair dealing for much of its copying, the Association of Universities and Colleges of Canada (AUCC), the leading university association, asked Osler, Hoskin & Harcourt, a top Canadian law firm, to develop a series of application guidelines that offer more detailed, specific recommendations for many common copyright uses within education environments.
The new guidelines were completed earlier this month and provide useful information for both teachers and students. The university community believes that consistent application of the guidelines will reduce the likelihood of infringement and enhance Yorkâs defence against the Access Copyright lawsuit, suggesting that near-identical guidelines will be used across the country.
While all the documents start from the same position - fair dealing - each provides specific guidance for a user group or use. For example, teachers and professors are advised that they may provide up to 10 per cent of a work as a handout to students, email a copy of the work to students enrolled in a class, post a copy of the work on a password-protected website that is accessible only to students, or display a copy of the work in a class presentation.
New application guidelines also specifically address two of the most popular ways materials are provided to students: course packs and online learning management systems. Fair dealing can be relied upon for course packs, which are customized printed compilations of readings. However, the guidelines require that no profit be made in the production or sale of course packs and that they be sold to students directly by the university.
Fair dealing also applies to online learning management systems, though the AUCC adopts a fairly restrictive approach by requiring the university to operate or control the system (services such as Dropbox are excluded), password-protect the site, and conduct regular audits to ensure that the fair dealing guidelines are being applied appropriately.
The AUCC guidelines confirm that the benefits of the user rights approach articulated by the Supreme Court of Canada are emerging as an integral part of campus copyright policies. For teachers and students alike, the new policies will mean greater flexibility in the use of copyrighted materials, fewer restrictive reporting requirements, and access to more materials as universities reallocate funds from unnecessary collective licences to digitization of materials and wider access to electronic databases.
Registration for the conference on the Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law is now open. The conference is scheduled for Friday, October 4th from 12:30 to 5:30 with a reception to follow. There is no cost for the conference, but advance registration is appreciated. Speakers include Carys Craig, Paul Daly, Jeremy deBeer, Greg Hagen, Elizabeth Judge, Ariel Katz, Teresa Scassa, Sam Trosow, and Margaret Ann Wilkinson.
With Verizon CEO Lowell McAdam stating yesterday that "Verizon is not going to Canada", the government's best hope for "more choice, lower prices, better service" may have been lost. The mere possibility of a Verizon entry into Canada sparked a massive lobbying campaign by the incumbent carriers, who used every tool at their disposal - huge advertising spend, direct lobbying, lawsuits, union protests, and favourable media on their own networks - to try to sway public opinion and pressure the government to change its approach. The government did not come close to doing so, recognizing that Canadian wireless pricing is high and that its proposed policies were consistent with many other developed countries. The companies claim the concern is merely about spectrum (not competition), yet companies like Telus applauded the government when the spectrum rules were first released in 2012 and it was only after Verizon indicated its potential interest in entering the market that the rules were characterized as loopholes and unfair.
So what comes next?
After the share price of the incumbents jumps up to reflect the premium the market gives to the lack of Canadian competition and the arguments that the government should delay the auction disappear, the government will be left with the same reality that existed before Verizon. As I noted in an earlier post, there are primarily two things that will drive corporate behavior in any market - competition and government regulation. On the competition side, the government must consider whether further steps are needed to entice significant new players into the market. These may include complete removal of foreign investment restrictions from both telecommunications and broadcast.
In the absence of robust competition, however, regulation is needed. The Canadian government should be doing all it can create more competition, but it must also commit to regulation - even if temporary - until that competitive environment develops. The CRTC signalled a willingness to regulate roaming pricing last week, but that may only be the start of far more dramatic steps that are needed to bring Canadians more choice, lower prices, and better service.
In my last post, I described the literary and dramatic qualities that made Martin Luther King, Jr.’s I have a dream speech one of the most celebrated speeches of the twentieth century; the copyright challenges surrounding the speech; and pointed out the existence of unauthorized copies of the speech and its coverage. I suggested that:
… the King estate is tacitly allowing the audio and video to circulate for the greater good, safe in the knowledge that the estate is only facilitating fair use, not abandoning their own copyright. Which raises the question of why not offer their own legitimately posted video? Wishful thinking being what it is, why not unveil such an offer on Wednesday?
Wednesday came and went without any posting of the speech’s coverage in the digital archives. Stories concerning the speech, published on the 28th and since, continued to lament the absence of the speech. It seemed to go unnoticed that for the fiftieth anniversary, the Estate posted a link to an unauthorized YouTube video of the speech. And, while the text of the speech could already be found in the archive, on the announcement webpage for the celebrations, the Estate offered a large-font elegant pamphlet copy, printed in 1963 as “a public service courtesy of Mr. James A McGann, Founder-President West Indian American Club.”
These gestures, together with the digital archive, suggests an estate willing to assist students, teachers and individuals who wish to read and hear the speech.
Coverage of this matter has bordered on the hostile. That King’s material can only be licensed for republication was a bone of contention, leading to the peculiar spectacle of dismay that CNN and MSNBC had to pay licensing fees to broadcast the original speech. Such is the nature of that business. But that does not negate individual fair use or fair dealing with the speech. While earlier cases involving professional media companies were settled without investigation of fair use, given the better fortunes of fair use these days, plus the gesture offered by the estate, individual creative and learning activities have reasonable grounds to proceed in accordance with copyright law. That King’s works are copyrighted is not cause for dismay.
Moreover, it is disturbing that some of the recent articles phrase King’s efforts to copyright his work as “apparently” and “purportedly” to raise funds for the civil rights movement (ex. see here and here). To imply that King was pocketing the proceeds is either an unfortunate misuse of vocabulary or a deliberate attempt to sensationalize the issue. Reviewing the archive, paying close attention to the documents associated to Joan Daves (King’s literary agent) I was struck by this entry from March 26, 1965. Daves writes to King’s secretary, Dora Macdonald:
It has been some time since I have heard from you or had any letter referred to my office, but one needs no great imagination to realize what tensions, pressures, and preparations you all must have faced. I have been with all of you in my thoughts and found it hard at times to stick to my duties up here; I am relieved and thankful this morning that the drive in Selma has ended on so momentuous a note and safely for Dr. King and those nearest him.
Daves go on to discuss copyright:
Please send me right away the complete text for Dr. King’s speech in Montgomery on the 25th; tell me if any steps have been taken to secure copyright If they have not, it is of the utmost importance that I do this right away. I only hope that it has not already been thrown into the public domain by publication in the newspapers prior to copyrighting.
Then Daves gives an account of the various royalties that had arrived recently and were expected from upcoming publications. She adds: “I hope these monies will take care of the most immediate responsibilities which Clarence Jones [King's attorney] told me Dr. King must meet.”
At the bottom of the page, is a handwritten scribble: “Shocking news this morning about yet another murder. What kind of people are these?” (Emphasis in original.)
[Daves’ letter was in reference to the March from Selma to Montgomery on March 25, 1965.]
It should not take much imagination to consider that the fight for civil rights was not backed by an abundance of funds and that copyright royalties were welcome and put to good use. But despite taking care to ensure that copyrights were filed and opportunities for publication duly exploited, the King operation did not preclude zero-rated licenses. On April 14, 1967, responding to a request from the High Commission of India to translate one of King’s books into Marahati, Daves writes:
In view of the information you kindly made available to me, we are giving you this permission without a fee, with the understanding that your edition will amount to approximately 1,000 copies to be sold at a price of Rs. 3/ to Rs. 5/. If the situation should change at any future time, and further editions are published on a commercial basis, we shall expect to again hear from you.
To readers today, this might sound like a Creative Commons license – a work may be used for free, but the license does not extend to commercial activity.
As to how the Estate has operated in the more recent past, the commercialization of the speech for advertising purposes, and the denial of the use in documentary film, do not reflect well on the Estate. The involvement of aggressive third-parties to monitor the use of copyrighted material is disappointing to say the least, but consider the time frame when this happened. It was during the dark days of American fair use (where courts supported the view that any use of a work must be paid for) and it coincided with the trumpeting of intellectual property as the engine of growth and prosperity. At that time, modern technology and world-wide networks were seen as simultaneously ushering in vast wealth and never-before-seen piracy.
It remains that the Estate will sell a DVD of the speech for $20 from their gift shop and also allows Amazon to sell on their behalf. This is not footage that is decaying in any warehouse of a Hollywood studio. And, since the anniversary, the Estate is clearly sanctioning unauthorized copies for personal viewing. Until 2038, when King’s copyrights expire, this may be all that we can enjoy. That it is less than what we want should not provoke an international hand-wringing.
The most disturbing aspect of this story is the growing assumption that the work should be easily available online. That “this day and age”, entitles people to effortlessly view whatever they wish, and do with it whatever they wish, in blissful ignorance of the law. It speaks to a culture where YouTube is the prime repository of information. We do students no favours by championing such a culture.
Fortunately, some teachers are taking a different route. Students are encouraged to explore the King archive and the Stanford research site for text, images and audio relating to Martin Luther King and the civil rights movement. To which I suggest, perhaps remind students that such ease should be enjoyed and handled in accordance with the law. This is not difficult to do, as fair dealing and fair use comfortably protect individual acts of learning and creativity.
Granted, the archive is not easy to work with. The text is often quite faint. Many documents are handwritten. When documents are typed, sometimes the reader confronts the intensity of never-ending uppercase (perhaps even harder to read than cursive script). There are no options for select, copy, and paste. Transcription has to be done by hand. But that in itself is an exercise in media history. And through the extent of the original documents, students may learn that the civil rights movement was not a one day event, but a heartbreaking, disciplined effort that spanned years. A must-read document is a speech by Corretta Scott King, describing the early days:
On December 5, 1955, 50,000 Negroes of Montgomery decided it was ultimately more honourable to walk in dignity than to ride in humiliation and walked the streets of Montgomery until buses were integrated. This was the beginning of the non-violent mass demonstration for integration in Montgomery, Alabama, and for America. After walking for 381 days and having suffered all kinds of threats, intimidation, being arrested, shot and shot at, bombed: the buses were integrated by a mandate from the Supreme Court. This was a great victory, not only for the Negroes of Montgomery but for 17 million Negroes, America and democracy.
The demand for universal, easy access only makes it more difficult for those arguing to safeguard the existing limits on copyright. Such a demand strikes fear into the hearts of writers, artists, and musicians who might otherwise agree that exceptions are a necessary part within the system of copyright. This compromises efforts to hold on to flexible fair dealing, for fair use that is not driven by commercial considerations, and for meaningful international exceptions within trade agreements. The well-heeled film, music and book publishing industries, knowing they can never eradicate illegitimate copying, are focused on narrowing the scope for legitimate copying. The clamour that everything be found in YouTube is manna from heaven for lobbyists; they can comfortably argue that people are not interested in using exceptions, that people only want absolutely unfettered access.
Outside of the opinion of lobbyists, there seems little doubt that copyright terms are too long. It is absurd that in the life-plus-seventy jurisdictions a work is protected for another lifetime after the authoring body is cold. But the outcry over I have a dream has overshadowed how much is available online to foster further scholarship and creativity, through individual acts of fair dealing or fair use.
Throughout the battle this summer over the potential of a Verizon entry into Canada, the incumbent telecom companies have tried to paint their position as supporting more competition, but rejecting the rules the government believes are needed to facilitate that same competition. Wind Mobile CEO Tony Lacavera recently called out the incumbents and their association - the Canadian Wireless Telecommunications Association - for opposing more competition:
The Canadian Wireless Telecommunications - which we joined being assured it would equally represent all wireless companies in Canada - is a mere puppet of the Big Three. Far from supporting the new entrants like WIND Mobile, CWTA has been advocating against bringing more competition to the marketplace.
Today in Toronto, two of Canada's largest unions will hold a rally not over the wireless spectrum rules but rather over the very prospect of more competition. The release from the Communications, Energy and Paperworkers Union and the Canadian Auto Workers states that the rally is planned:
to protest the Harper government's decision to allow U.S. telco giant Verizon to compete in Canada's telecommunications market.
Notwithstanding persistent claims that the wireless fight is about "fairness", this rally lays bare the real motivation of many - stopping new competitors from entering the Canadian market.
- Consider this: A service organization we'll call CloudCo collects and compiles personal information from its corporate customer. The individual whose personal information is being collected has a relationship directly with the corporate customer, but not with CloudCo. The personal information has been shared with CloudCo without the individual's knowledge or consent. Sound familiar? Many cloud service providers host ...
Carleton professor Dwayne Winseck has posted a bombshell report that uncovers editorial interference at Bell with Bell Media President Kevin Crull issuing directives to CTV and company-owned local television and radio channels to provide favourable coverage of the wireless issue just as the incumbent campaign against Verizon was ramping up in early July. Winseck posts details on internal company emails that indicate Crull sent the message to provide coverage on the CRTC-sponsored Wall Report:
Kevin Crull our President wants us to give this report some coverageâ¦.â and âKevin is asking if this report can get some coverage today on Talk Radio. National news is covering for TVâ.
As I posted on the same day as the emails, the Wall Report actually found that Canada falls on the high side of wireless pricing among the countries surveyed. Yet Crull was looking for different talking points from Bell's media properties. As Winseck notes:
The emails begin by setting out a couple of definitional issues and then distill the two key talking points to be covered: (1) that cellphone rates in Canada have fallen in recent years and (2) that they are generally cheaper than in the US.
The editorial interference may not be particularly surprising, but it is enormously troubling. It highlights the danger of vertically integrated companies such as Bell that use their power to manipulate public discourse for corporate gain through their own media properties. This form of editorial interference by corporate interests raises serious questions about the independence of one of Canada's largest news organizations. As Winseck concludes:
Perhaps the fact that journalists and the news divisions of such TMI conglomerates will be deployed to protect dominant market positions and capitalization might not be all that surprising, but it should still be concerning to journalists and the rest of us who need them to offer views of the world unvarnished by their corporate overlords. That the execs at BCE and Bell Media news divisions went so cheerily along with Crull's memo serves neither journalism nor the public well.
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