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Official Release of TPP Text Confirms Massive Loss to Canadian Public Domain

Michael Geist Law RSS Feed - Thu, 2015/11/05 - 10:48

The New Zealand government posted the official Trans Pacific Partnership text today after years secret negotiations and occasional leaks of the text. It is an enormous deal with dozens of side letters between countries – Canada alone has eight side letters on intellectual property with seven TPP countries – that will require considerable study.

From a copyright perspective, the TPP IP chapter leaked soon after the deal was concluded and the chapter looks largely consistent with that document. There is a notable change involving the Internet provider and host takedown rules, however. I earlier blogged that the chapter included a takedown provision not found in Canadian law that would have required blocking content based on being made aware of a court order finding infringement. I noted that the provision would have allowed decisions from other countries to effectively overrule Canadian law. The released text has been amended to limit the provision to domestic court rulings ensuring that only Canadian court rulings would apply. This is a positive change that better reflects current law. It does point to the danger of negotiating in secret, where potential concerns go unaddressed without the opportunity for expert review. Given the size of the deal, it seems likely that there will be many more instances of poorly drafted provisions that raise unintended consequences.

Unchanged from the leaked text is the confirmation of the extension of the term of copyright to life of the author plus an additional 70 years. This marks a 20 year extension in the term of copyright, dealing a massive blow to access to Canadian heritage and resulting in hundreds of millions in cost.  For example, there are 22 Governor-General award winning fiction and non-fiction authors whose work will not enter the public domain for decades.  These include Margaret Laurence, Gabrielle Roy, Marian Engel, Marshall McLuhan, and Donald Creighton.

The list of winners whose works were scheduled to enter the public domain over the next 20 years, but will now wait until at least 2037 (assuming a 2017 reform date):

FICTION

  • Igor Sergeyevich Gouzenko (The Fall of a Titan)
  • Winifred Estella Bambrick (Continental Revue)
  • Colin Malcolm McDougall DSO (Author, Execution)
  • Germaine Guèvremont (The Outlander)
  • Philip Albert Child (Mr. Ames Against Time)
  • Gabrielle Roy (The Tin Flute)
  • Jean Margaret Laurence (The Stone Angel/ A Jest of God)
  • Marian Engel (Bear)
  • Hugh Garner (Hugh Garner’s Best Stories)

NON-FICTION

  • James Frederick Church Wright (Slava Bohu)
  • Laura Goodman Salverson (Confessions of an Immigrant’s Daughter)
  • Edgar Wardell McInnis (The Unguarded Frontier)
  • Evelyn M. Richardson (We Keep a Light)
  • William Sclater (Haida)
  • Marjorie Elliott Wilkins Campbell (The Saskatchewan)
  • William Lewis Morton (The Progressive Party in Canada)
  • Josephine Phelan (The Ardent Exile)
  • Donald Grant Creighton (John A. Macdonald, The Young Politician)
  • Frank Hawkins Underhill (In Search of Canadian Liberalism)
  • Herbert Marshall McLuhan (The Gutenberg Galaxy)
  • Noah Story (The Oxford Companion to Canadian History and Literature)
  • Francis Reginald Scott (Essays On the Constitution)

In addition to Canadian authors, there many well-known international figures that will be kept out of the public domain such as John Steinbeck, Martin Luther King, Andy Warhol, Woody Guthrie, and Elvis Presley.  The damage to the public domain in Canada is huge and stands as one of the worst aspects of the TPP’s intellectual property chapter.

The post Official Release of TPP Text Confirms Massive Loss to Canadian Public Domain appeared first on Michael Geist.

The Coming Battle over the Internet and Canadian Cultural Policy

Michael Geist Law RSS Feed - Tue, 2015/11/03 - 11:07

Appeared in the Toronto Star on November 2, 2015 as Don’t Expect Liberals to Undo CRTC Reforms

Canada’s cultural industries greeted the election of a new Liberal government with considerable excitement, hoping to the turn the page on a decade of Conservative policies that were widely viewed as prioritizing consumers over creators. The Liberal platform was silent on major regulatory changes, but it did promise to reverse cuts to the CBC and to increase allocations to the Canada Council for the Arts, Telefilm, and the National Film Board.

The cultural sector will undoubtedly welcome the infusion of millions more in taxpayer support, but the bigger fight will be over legal reforms to treat telecom and Internet companies as cultural businesses and require them to make Canadian content contributions similar to those paid by conventional broadcasters.

The prospect of telecom and Internet provider payments has been part of a long-standing campaign from cultural groups who fear that a shrinking broadcast sector will ultimately mean smaller handouts for Canadian content creation. The campaign has thus far failed to bear much fruit: the Supreme Court of Canada ruled in 2012 that Internet providers were not subject to the Broadcasting Act and last year the Conservatives led the charge against a “Netflix tax” that would have required the popular online video service to make Canadian content contributions.

While the “Netflix tax” issue is supposedly dead – all political parties indicated early during the election campaign that they did not support such a tax – many are still hoping to find new sources of private sector funding and the telecom and Internet industries offer the juiciest target.

Indeed, the prospect of new revenue sources is often what lies behind calls for a re-examination of the governing statutes, criticism that the Canadian Radio-television and Telecommunications Commission (CRTC) has abandoned sound policy in favour of popularity, suggestions that Industry Canada and Canadian Heritage merge on communications policy, or claims that telecom and Internet companies be treated as “cultural distributors” who should be required to pay their fair share.

This back to the future approach may sound reassuring to an industry that relied for years on legislative protections and mandated payments, yet it reflects a bygone era of regulation designed for a world of scarcity where broadcast spectrum and consumer choice was limited. This led to a highly regulated environment that used various policy levers to shelter the Canadian market from external competition, limited new entrants, and imposed a long list of content requirements and advertising restrictions.

As a result, a dizzying array of regulations kept the entry of new competitors to a minimum, enshrined genre protection so that Canadians were treated to domestic versions of popular foreign channels such as HBO and ESPN, and firmly supported simultaneous substitution, a policy that allows Canadian broadcasters to simulcast U.S. programming but substitute their own advertising.  The Canadian cultural sector supported the system in return for steady payments to support new productions along with guarantees that a small slice of the broadcast schedule would be reserved for Canadian content.

The Internet forever changed the rules of the game, creating a world of abundance that ushered in new competitors and unlimited consumer choice. Recent CRTC data confirms what is increasingly obvious to anyone familiar with the viewing habits of teenagers and younger adults: 58 per cent of anglophone Canadians between the ages of 18 and 34 now subscribe to Netflix, which helps explain why conventional television viewership is declining among younger Canadians.

Recognizing that its relevance was at risk, the CRTC took steps last year to shift toward this new world, focusing on maximizing consumer choice, preserving net neutrality, and giving Canadian creators the tools to succeed in a global market.

The change in government has opened the door to new speculation that a renewed focus on cultural support might also mean a re-examination of CRTC policy and government telecom regulation. The Liberals smartly avoided promises to undo the shift in cultural policy, perhaps recognizing that the CRTC reforms were right not because they were popular. They were popular because they were right.

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 The Coming Battle over the Internet and Canadian Cultural Policy appeared first on Michael Geist.

Why a Battle over the Internet and Canadian Cultural Policy is Brewing

Michael Geist Law RSS Feed - Tue, 2015/11/03 - 11:06

Canada’s cultural industries greeted the election of a new Liberal government with considerable excitement, hoping to the turn the page on a decade of Conservative policies that were widely viewed as prioritizing consumers over creators. The Liberal platform was silent on major regulatory changes, but it did promise to reverse cuts to the CBC and to increase allocations to the Canada Council for the Arts, Telefilm, and the National Film Board.

The cultural sector will undoubtedly welcome the infusion of millions more in taxpayer support, but the bigger fight will be over legal reforms to treat telecom and Internet companies as cultural businesses and require them to make Canadian content contributions similar to those paid by conventional broadcasters.

My weekly technology law column (homepage version) notes that the prospect of telecom and Internet provider payments has been part of a long-standing campaign from cultural groups who fear that a shrinking broadcast sector will ultimately mean smaller handouts for Canadian content creation. The campaign has thus far failed to bear much fruit: the Supreme Court of Canada ruled in 2012 that Internet providers were not subject to the Broadcasting Act and last year the Conservatives led the charge against a “Netflix tax” that would have required the popular online video service to make Canadian content contributions.

While the “Netflix tax” issue is supposedly dead – all political parties indicated early during the election campaign that they did not support such a tax – many are still hoping to find new sources of private sector funding and the telecom and Internet industries offer the juiciest target.

Indeed, the prospect of new revenue sources is often what lies behind calls for a re-examination of the governing statutes, criticism that the Canadian Radio-television and Telecommunications Commission (CRTC) has abandoned sound policy in favour of popularity, suggestions that Industry Canada and Canadian Heritage merge on communications policy, or claims that telecom and Internet companies be treated as “cultural distributors” who should be required to pay their fair share.

This back to the future approach may sound reassuring to an industry that relied for years on legislative protections and mandated payments, yet it reflects a bygone era of regulation designed for a world of scarcity where broadcast spectrum and consumer choice was limited. This led to a highly regulated environment that used various policy levers to shelter the Canadian market from external competition, limited new entrants, and imposed a long list of content requirements and advertising restrictions.

As a result, a dizzying array of regulations kept the entry of new competitors to a minimum, enshrined genre protection so that Canadians were treated to domestic versions of popular foreign channels such as HBO and ESPN, and firmly supported simultaneous substitution, a policy that allows Canadian broadcasters to simulcast U.S. programming but substitute their own advertising.  The Canadian cultural sector supported the system in return for steady payments to support new productions along with guarantees that a small slice of the broadcast schedule would be reserved for Canadian content.

The Internet forever changed the rules of the game, creating a world of abundance that ushered in new competitors and unlimited consumer choice. Recent CRTC data confirms what is increasingly obvious to anyone familiar with the viewing habits of teenagers and younger adults: 58 per cent of anglophone Canadians between the ages of 18 and 34 now subscribe to Netflix, which helps explain why conventional television viewership is declining among younger Canadians.

Recognizing that its relevance was at risk, the CRTC took steps last year to shift toward this new world, focusing on maximizing consumer choice, preserving net neutrality, and giving Canadian creators the tools to succeed in a global market.

The change in government has opened the door to new speculation that a renewed focus on cultural support might also mean a re-examination of CRTC policy and government telecom regulation. The Liberals smartly avoided promises to undo the shift in cultural policy, perhaps recognizing that the CRTC reforms were right not because they were popular. They were popular because they were right.

The post Why a Battle over the Internet and Canadian Cultural Policy is Brewing appeared first on Michael Geist.

no surprise

Fair Duty by Meera Nair - Thu, 2015/10/29 - 22:11

Two weeks ago we received the unremarkable news that Google Books had prevailed at the United States Court of Appeals for the Second Circuit; that the copying of entire books in order to provide information about the books, including displaying snippets of content, was fair use. I say “unremarkable” as the outcome was expected. The Second Circuit was the appellate court that sent this dispute back to a district court expressly because the district court had not considered fair use. After due consideration, in November 2013 the district court declared that Google Books’ operations fell within fair use. That triggered an appeal from the Authors Guild (despite the fact that the appeal would be heard by the same Second Circuit).

The present decision of the Second Circuit was penned by Judge Pierre Leval, who might be best known as the founding father of the relevance of “transformative” in American fair use dialogue. It should not surprise anyone that Leval emphasized the expanded utility wrought by Google Books. Placing the decision firmly upon the American constitutional foundation for copyright, namely that the system of copyright must “promote the progress of science and the useful arts,” Leval writes: “the purpose of Google’s copying of the original copyrighted books is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest, as well as those that do not include reference to it (p.22, emphasis in original).”

Judge Leval carries out the four-factor analysis, as per statutory custom in the United States. Mike Masick (Techdirt) provides detailed coverage of the analysis, noting in particular that the United States has yet another clear indication that commerciality does not impede fair use and that the use of bogey man arguments offered without any evidence (such as the possibility that would-be hackers could obtain the complete scans of the books) have no place in a serious consideration of law. Further analysis and coverage of this matter by Patricia Aufderheide (Center for Media and Social Impact), Brandon Butler (American University) and Kevin Smith (Duke University) all make for very good reading.

From a Canadian perspective the decision is a reminder that the United States’ culture of fair use is distinct from our culture of fair dealing. American fair use history was marked by an unfortunate period of time where commerciality and market impact became the touchstones upon which fair use was determined. Consequently, what was considered world-wide as the best exception, by virtue of flexible language that could accommodate futures unknown, lay inert in the United States. It has taken the country decades to restore fair use as a meaningful exception within the system of copyright, and establish that fair use is not simply a means to address market failure.

(Perhaps it was through observing this unfortunate path, that our Supreme Court took pains to safeguard Canada’s development of fair dealing with a strict reminder that the presence of licensing was not sufficient to deny fair dealing nor was market impact the most important factor of analysis.)

In 2010, I dealt with this portion of American fair use history in some detail. In “Fair Dealing at a Crossroads,” From Radical Extremism to Balanced Copyright (ed. Michael Geist), I wrote:

The prominence of commerciality, through the first and fourth factors, was set in the 1984 Sony decision, even though that action was inconsis­tent with the statutory language of the law. Although the United States’ Supreme Court sought to correct its mistakes, with some success in 1994, lower courts continued to place undue emphasis upon commerciality (p. 92, citations omitted).

The success of 1994 was Campbell v. Acuff Rose Music, Inc, a fair use dispute over a commercially released parody. Favoring fair use, the American Supreme Court of the day sought a way to blunt the emphasis upon commerciality and gave rise to the importance of “transformative” as “… altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism … .” Their reasoning drew from the work of Judge Leval.

Since 1994, American courts have systematically returned to the language around “transformative,” giving fair use a reasonable ambit of application and chance of success, as befitting a measure that has been referred to as providing “breathing space within the confines of copyright.” But while the language of “transformative” is a key feature of American dialogue, Canadians are fortunate not to be so reliant on terminology.

Our leading decisions concerning fair dealing focused upon exact reproduction of works (whole or in part) often with the same purpose that the works were intended for at their inception. By virtue of a contextual analysis, our Supreme Court declared those circumstances as giving rise to fair dealing. True, the reasoning employed would meld along the lines of expanded utility but we need not frame our reasoning to match a particular phrase. Our Supreme Court asks us to examine uses of copyrighted work broadly, with a scope of inquiry tailored to the situation at hand. Fair dealing rests upon the entirety of that analysis.


C-51 Reform, TPP Top the List of “Real Change” Tech Policy Priorities

Michael Geist Law RSS Feed - Wed, 2015/10/28 - 08:40

Digital policies may not have played a significant role in the just-concluded national election, but the arrival of a majority Liberal government will leave many expecting “real change” on the digital front in the years ahead. My weekly technology law column (Toronto Star version, homepage version) notes that Prime Minister-designate Justin Trudeau is likely to focus on key economic promises from his platform once Parliament resumes. However, there will be several digital issues that should command attention during his first 12 months in office.

1.    Bill C-51.  The Liberals voted for the controversial anti-terror law, but the party promised changes to it if elected. In particular, it pledged to establish an all-party review mechanism similar to those found in many other countries that will bring Members of Parliament into the oversight process. Moreover, the Liberals promised to increase the powers of the Privacy Commissioner of Canada and add a mandatory three-year review provision to the law, suggesting that the current government may both start and end its term in office with reviews of the anti-terror legislation.

While Bill C-51 has been Canada’s hot button privacy issue since its introduction last January, the new government will also have a chance to quickly put its stamp on other privacy issues. This could include issuing a strong endorsement of the Supreme Court of Canada’s Spencer decision on the reasonable expectation of privacy in Internet subscriber information by committing to stopping warrantless access to such data.

2.    The Trans Pacific Partnership. The TPP emerged as an election issue late in the campaign after the 12 member countries reached an agreement-in-principle on a deal that could have a major impact on the Canadian economy. The TPP involves far more than just the elimination of tariff barriers since it requires reforms such as an extension in the term of copyright, new Internet takedown requirements, and restrictions on domestic privacy protections.

The Liberals were careful to avoid taking a firm position on the TPP, arguing that the absence of a text made it impossible to cast judgment on the still-secret treaty. Once the TPP is publicly-released, expect it to launch extensive public hearings, enabling the study that was largely absent during the negotiation process.

An actual ratification process may wait until 2017, however, since the TPP does not take effect unless the United States is on board. With opposition from leading U.S. presidential candidates such as Hillary Clinton, the other TPP countries will likely wait until the U.S. TPP process concludes before proceeding with their own implementing legislation.

3.    Telecom competition. The Liberals will likely let the Canadian Radio-television and Telecommunications Commission lead on issues such as broadcast reform and the review of telecom services. By 2017, however, the term of current chair Jean-Pierre Blais will conclude and there will be mounting pressure to consider issues such as net neutrality, wireless competition, and broadcast regulation as a political matter.

The more immediate issue for the government is a Bell Canada appeal to the cabinet over a CRTC decision mandating independent Internet providers’ access to high-speed fibre Internet connections. The decision is designed to increase competition, though Bell Canada argues that it will reduce carrier investment. If the government sides with the telecom giant, it would signal a significant shift away from the recent emphasis on marketplace competition and increased consumer choice.

4.    Copyright Access for the Blind.  One of the last bills introduced by the Conservative government was a small copyright bill to allow Canada to ratify the Marrakesh Treaty for the Visually Impaired. The treaty, which is nearing the necessary 20 ratifications in order to take effect, would increase access to copyright works for the blind around the world. There is unlikely to be any opposition to the treaty and the new government could move quickly to bring the bill back to the House of Commons.

5.    Open government. The Liberals promised a comprehensive overhaul of open government policies with dozens of potential reforms to create a more open and transparent government. From a digital perspective, the party platform committed to the elimination of fees for access to information requests (beyond the initial filing fee), a no-fee personal information request portal, increased funding for the Privacy and Information Commissioners, and individual, secure online accounts for all government services.

The post C-51 Reform, TPP Top the List of “Real Change” Tech Policy Priorities appeared first on Michael Geist.

Privacy, Telecom Competition Among Trudeau’s Tech Policy Priorities

Michael Geist Law RSS Feed - Wed, 2015/10/28 - 08:39

Appeared in the Toronto Star on October 26, 2015 as Privacy, Telecom Competition Among Trudeau’s Tech Policy Priorities

Digital policies may not have played a significant role in the just-concluded national election, but the arrival of a majority Liberal government will leave many expecting “real change” on the digital front in the years ahead. Prime Minister-designate Justin Trudeau is likely to focus on key economic promises from his platform once Parliament resumes. However, there will be several digital issues that should command attention during his first 12 months in office.

1.    Bill C-51.  The Liberals voted for the controversial anti-terror law, but the party promised changes to it if elected. In particular, it pledged to establish an all-party review mechanism similar to those found in many other countries that will bring Members of Parliament into the oversight process. Moreover, the Liberals promised to increase the powers of the Privacy Commissioner of Canada and add a mandatory three-year review provision to the law, suggesting that the current government may both start and end its term in office with reviews of the anti-terror legislation.

While Bill C-51 has been Canada’s hot button privacy issue since its introduction last January, the new government will also have a chance to quickly put its stamp on other privacy issues. This could include issuing a strong endorsement of the Supreme Court of Canada’s Spencer decision on the reasonable expectation of privacy in Internet subscriber information by committing to stopping warrantless access to such data.

2.    The Trans Pacific Partnership. The TPP emerged as an election issue late in the campaign after the 12 member countries reached an agreement-in-principle on a deal that could have a major impact on the Canadian economy. The TPP involves far more than just the elimination of tariff barriers since it requires reforms such as an extension in the term of copyright, new Internet takedown requirements, and restrictions on domestic privacy protections.

The Liberals were careful to avoid taking a firm position on the TPP, arguing that the absence of a text made it impossible to cast judgment on the still-secret treaty. Once the TPP is publicly-released, expect it to launch extensive public hearings, enabling the study that was largely absent during the negotiation process.

An actual ratification process may wait until 2017, however, since the TPP does not take effect unless the United States is on board. With opposition from leading U.S. presidential candidates such as Hillary Clinton, the other TPP countries will likely wait until the U.S. TPP process concludes before proceeding with their own implementing legislation.

3.    Telecom competition. The Liberals will likely let the Canadian Radio-television and Telecommunications Commission lead on issues such as broadcast reform and the review of telecom services. By 2017, however, the term of current chair Jean-Pierre Blais will conclude and there will be mounting pressure to consider issues such as net neutrality, wireless competition, and broadcast regulation as a political matter.

The more immediate issue for the government is a Bell Canada appeal to the cabinet over a CRTC decision mandating independent Internet providers’ access to high-speed fibre Internet connections. The decision is designed to increase competition, though Bell Canada argues that it will reduce carrier investment. If the government sides with the telecom giant, it would signal a significant shift away from the recent emphasis on marketplace competition and increased consumer choice.

4.    Copyright Access for the Blind.  One of the last bills introduced by the Conservative government was a small copyright bill to allow Canada to ratify the Marrakesh Treaty for the Visually Impaired. The treaty, which is nearing the necessary 20 ratifications in order to take effect, would increase access to copyright works for the blind around the world. There is unlikely to be any opposition to the treaty and the new government could move quickly to bring the bill back to the House of Commons.

5.    Open government. The Liberals promised a comprehensive overhaul of open government policies with dozens of potential reforms to create a more open and transparent government. From a digital perspective, the party platform committed to the elimination of fees for access to information requests (beyond the initial filing fee), a no-fee personal information request portal, increased funding for the Privacy and Information Commissioners, and individual, secure online accounts for all government services.

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 Privacy, Telecom Competition Among Trudeau’s Tech Policy Priorities appeared first on Michael Geist.

Provisions: how Bitcoin exchanges can prove their solvency

Freedom to Tinker - Mon, 2015/10/26 - 15:43
Millions of Bitcoin users store their bitcoins with online exchanges (e.g. Coinbase, Kraken) which store bitcoins on their customers’ behalf. They present an interface that looks somewhat like an online bank, allowing users to log in and request payments to other users or withdrawals. For many users this approach makes a lot more sense than the traditional approach of storing private keys on your laptop or phone […]

The TPP’s Canadian Copyright Costs Creating Concern

Michael Geist Law RSS Feed - Mon, 2015/10/26 - 10:58

The Trans Pacific Partnership agreement is still not public – the text may not be released for sometime – but with the leak of the intellectual property chapter, the implications for Canadian law is already well known.  Despite the prior government’s claims that the deal was largely consistent with current law, the reality is that the TPP will require significant changes to Canadian copyright.

The biggest change is a requirement to extend the term of copyright from life of the author plus 50 years to life plus 70 years. The additional 20 years will keep works out of the public domain for decades. The New Zealand government estimates that this change alone will cost NZ$55 million per year for a country that is one-ninth the size of Canada. Moreover, New Zealand was able to negotiate a delayed implementation of the copyright term provision, with a shorter extension for the first 8 years and only after the full extension.  The TPP also would appear to bring a copyright takedown system to Canada without the involvement of Canadian courts and potentially without the application of Canadian copyright law.

The Globe and Mail picked up on these issue in a masthead editorial published last week. The Globe notes:

Extending the copyright would come at a cost to Canadian consumers, possibly in the hundreds of millions of dollars. It’s not clear where the benefits are. Nor is it exactly clear what this has to do with free trade.

The Canadian Press also covers the issue, with lawyers noting that the deal may undo Canadian law, creating significant disruptions in the process.

The post The TPP’s Canadian Copyright Costs Creating Concern appeared first on Michael Geist.

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