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Date: Wednesday, 16 Apr 2014 04:17
Access Copyright has filed its response to the Copyright Board of Canada's series of questions about fair dealing and education in the tariff proceedings involving Canadian post-secondary institutions. I have several posts planned about the 40 page response, which continues the copyright collective's longstanding battle against fair dealing. This one focuses on Access Copyright's astonishing effort to urge the Copyright Board to reject the Supreme Court of Canada's clear ruling on the relevance of licensing within the context of fair dealing.

Access Copyright has frequently argued that the availability of a licence should trump fair dealing. For example, in the 2001 copyright consultation it stated:

As a rule, where collective licensing is in place there should be no exception or limitation to a right for which the holder has a legitimate interest. As defined in the Act, anytime that a licence to reproduce a work is available from a collective society within a reasonable time, for a reasonable price and with reasonable effort, it is commercially available.

Access Copyright reiterated its position in its 2003 intervention in the Law Society of Upper Canada v. CCH Canadian case.  It argued:

Copibec and Access Copyright submit that the obtaining of photocopy licences, when they are offered by collective societies that are authorized by copyright owners to grant licences on their behalf, is an established and readily available alternative to the dealing. Where collective societies have created a workable market for institutional users to obtain licences for the right to reproduce works protected by copyright, courts should acknowledge that the reproduction of such works, absent a licence, will generally affect the potential market for those works, and take this factor into account in any analysis of whether a dealing is "fair."

The Supreme Court of Canada proceeded to directly respond to the Access Copyright argument in its CCH decision. The unanimous court ruled:

The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person's decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner's monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act's balance between owner's rights and user's interests.

That is about as clear cut as you can get: Access Copyright directly raised an argument and the Court unanimously rejected it. So what does Access Copyright do in its brief to the Copyright Board? Go right back to the same argument that the Supreme Court rejected:

In the digital age, the availability of a licence – whether from the rightsholder directly or from the collective that represents the rightsholder – has to be a consideration as to whether there is an alternative to the dealing. (The commercialization of works in a digital environment is done through the issuance of licences as opposed to the sale of physical copies of works.) In this case, a licence is clearly available from Access Copyright: the works in issue are all in Access Copyright’s repertoire. Further, the evidence filed by Access Copyright establishes that licences for the exact excerpt of the works that have been copied are available for purchase from the publishers. Given these alternatives, the copying purportedly permitted by the Policies is unfair.

Unfortunately, this example is only one of many misleading or inaccurate claims in the Access Copyright brief.  More on its effort to deceive the board on the timing of the Supreme Court of Canada's fair dealing decisions and the government's expansion of fair dealing in Bill C-11 in a post tomorrow.
Author: "Michael Geist" Tags: "access copyright, cch, copyright board, ..."
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Date: Monday, 14 Apr 2014 04:09
My post and column on the expansion of warrantless disclosure under Bill S-4, the misleadingly named Digital Privacy Act, has attracted some attention and a response from Industry Canada.  The department told iPolitics:

"Companies who share personal information are required to comply with the rules to ensure that information is only disclosed for the purpose of conducting an investigation into a contravention of a law or breach of an agreement. For example, self-regulating professional associations, such as a provincial law society, may wish to investigate allegations of malpractice made by a client. When organizations are sharing private information, the Privacy Commissioner can investigate violations and may take legal action against companies who do not follow the rules. This is consistent with privacy laws in British Columbia and Alberta and was recommended by the Standing Committee Access to Information, Privacy and Ethics."

The response may sound reassuring, but it shouldn't be.

First, the Privacy Commissioner of Canada can obviously address complaints regarding companies that do not follow the rules. However, the new rules plainly allow warrantless disclosure of personal information for an investigation into a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed. This broadly worded exception will allow companies to disclose personal information to other companies or organizations without court approval.

Second, the disclosure itself is kept secret from the affected individual, who is unlikely to complain since they will be unaware that their information has been disclosed. 

Third, allowing a regulated industry to conduct investigations (such as a provincial law society) is a far narrower issue than the wide open warrantless approach found in the bill.

Fourth, while the Standing Committee on Access to Information, Privacy and Ethics may have recommended a similar reform in 2006, that recommendation was rejected by both the Conservative government and the Privacy Commissioner of Canada. The committee recommendation appears to have come from a single submission from the Canadian Bar Association. The CBA appeared before the committee but was not questioned about the proposal.
The CBA proposal focused specifically on personal information legally available to a party to a legal proceeding. That is much narrower than the Bill S-4 provision. 

Yet even that narrower proposal was rejected by the Conservative government in its response to the committee recommendations:

The government notes the Committee's recommendation and acknowledges that it was made in response to concerns expressed by certain stakeholders regarding the need to ensure that PIPEDA does not impede litigation procedures.  However, the government does not share the Committee's view that such an amendment is necessary at this time.

The Privacy Commissioner of Canada also publicly opposed the recommendation, which she included among the six issues about which she had particular concerns:

The Canadian Bar Association recommended that the AB and BC Acts both provide clarity in regard to information legally available in a legal proceeding. I do not believe that this issue has posed any great difficulty over the past five years. The OPC has stated in complaints that the access provisions of PIPEDA may be broader than the requirements of discovery, depending on the breadth of documents relevant to a proceeding.

In other words, Bill S-4 contains an expanded version of a provision that one group asked for without facing any questions, that the government rejected when it was proposed, and about which the Privacy Commissioner of Canada expressed particular concern. In response, Industry Canada claims that Canadians can file complaints if the provision is misused, but by definition they will not know that their personal information has been disclosed.
Author: "Michael Geist" Tags: "pipeda, privacy, s-4, warrantless disclo..."
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Date: Thursday, 10 Apr 2014 03:55
Earlier this week, the government introduced the Digital Privacy Act (Bill S-4), the latest attempt to update Canada's private sector privacy law. The bill is the third try at privacy reform stemming from the 2006 PIPEDA review, with the prior two bills languishing for months before dying due to elections or prorogation. 

The initial focus has unsurprisingly centered on the new security breach disclosure requirements that would require organizations to disclose breaches that puts Canadians at risk for identity theft. Security breach disclosure rules are well-established in other countries and long overdue for Canada. The bill fixes an obvious shortcoming from the earlier bills by adding some teeth to the disclosure requirements with the addition of penalties for violations of the law. Moreover, Bill S-4 stops short of granting the Privacy Commissioner full order making power as is found at the provincial level, but the creation of compliance orders has some promise of holding organizations to account where violations occur.

Despite those positive proposed changes to Canadian privacy law, the bill also includes a provision that could massively expand warrantless disclosure of personal information.

The government is already working to expand warrantless disclosure of subscriber information to law enforcement with Bill C-13 (the "cyber-bullying bill") including an immunity provision from any criminal or civil liability (including class action lawsuits) for companies that preserve personal information or disclose it without a warrant. The law currently entrusts companies with a gatekeeper role since it permits them to either voluntarily disclose personal information as part of a lawful investigation or demand that law enforcement first obtain a court order. The immunity provision makes it more likely that disclosures will occur without a warrant since the legal risks associated with such disclosures are removed.

In light of revelations that telecom companies and Internet companies already disclose subscriber information tens of thousands of times every year without a court order, the immunity provision is enormously problematic. Yet it pales in comparison to the Digital Privacy Act, which would expand the possibility of warrantless disclosure to anyone, not just law enforcement. Bill S-4 proposes that:

"an organization may disclose personal information without the knowledge or consent of the individual... if the disclosure is made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;

Unpack the legalese and you find that organizations will be permitted to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. This applies both past breaches or violations as well as potential future violations. Moreover, the disclosure occurs in secret without the knowledge of the affected person (who therefore cannot challenge the disclosure since they are not aware it is happening).

When might this apply? 

Consider the recent copyright case in which Voltage Pictures sought an order requiring TekSavvy to disclose the names and addresses of thousands of subscribers. The federal court established numerous safeguards to protect privacy and discourage copyright trolling by requiring court approval for any demand letters being sent to subscribers. If Bill S-4 were the law, the court might never become involved in the case. Instead, Voltage could simply ask TekSavvy for the subscriber information, which could be legally disclosed (including details that go far beyond just name and address) without any court order and without informing their affected customer.

In fact, the potential use of this provision extends far beyond copyright cases. Defamation claims, commercial battles, and even consumer disputes may all involve alleged breaches of agreements or the law. While the organization with the personal information (telecom companies, social media sites, local businesses) might resist disclosing information without a court order, the law would not require them to do so. 

The resulting framework from C-13 and S-4 is stunning from an anti-privacy perspective:
  • organizations could disclose subscriber or customer personal information without a court order to law enforcement with full legal immunity from liability
  • organizations could disclose subscriber or customer personal information without a court order to any other organization claiming investigation of an actual or potential contractual breach or legal violation
  • the disclosures would be kept secret from the affected individuals
  • the disclosing organizations would be under no obligation to report on their practices or past disclosures
The government claims the Digital Privacy Act "will provide new protections for Canadians when they surf the web and shop online". What it does not say that the same bill will open the door to massive warrantless disclosure of their personal information.
Author: "Michael Geist" Tags: "digital privacy act, privacy, s-4, secur..."
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Date: Wednesday, 09 Apr 2014 08:35
In my first post on Digital Canada 150, Canada's digital strategy, I argued that it provided a summation of past accomplishments and some guidance on future policies, but that it was curiously lacking in actual strategies and goals. Yesterday I reviewed how Canada's universal broadband access target lags behind much of the OECD (Peter Nowak characterizes the target as the Jar Jar Binks of the strategy). The problems with Digital Canada 150 extend far beyond connectivity, however.  In comparing the Canadian strategy with countries such as Australia and the United Kingdom, it becomes immediately apparent that other countries offer far more sophisticated and detailed visions for their digital futures. While there is no requirement that Canada match other countries on specific goals, it is disappointing that years of policy development - other countries were 5 to 10 years ahead of Canada - ultimately resulted in a document short on strategy, specifics, and analysis.

For example, compare the clarity of goals between Canada and the Australia strategy:

By 2020, Australia will rank in the top 5 OECD countries in the portion of households that connect to broadband at home.
"Over 98% of all Canadians will have access to high-speed Internet at 5 megabits per second (Mbps) - a rate that enables e-commerce, high-resolution video, employment opportunities and distance education - providing rural and remote communities with faster, more reliable online services."

By 2020, Australia will rank in the top 5 OECD countries in the portion of businesses and not-for-profits using online opportunities to drive productivity improvements, expand their customer base, and enable jobs growth
"Canadian companies, large and small, will use digital tools to boost productivity, develop their businesses and capture growing markets and home and abroad."
By 2020, the majority of Australian households, businesses, and other organizations will have access to smart technology to better manage their energy use.
No discussion of energy use.
By 2020, 90% of high prority consumers (older Australians, babies, etc.) will have access to individual electronic health records.
No discussion of health records. Closest goal is "Canada will be one of the global leaders in applying 'big data' to change how we think about and carry out health care, research and development, as well as the myriad of activities of business and government."
By 2020, Australia schools will have connectivity to develop and collaborate on innovative and flexible educational services and resources to extend online learning resources to the home and workplace
No discussion of schools (only reference is to support for Computers for Schools program).
By 2020, Australia will have at least doubled its level of teleworking so that at least 12% of Australian employees report having teleworking arrangements with their employer
No discussion of teleworking.
By 2020, 80% of Australians will choose to engage with the government through the Internet or other type of online service.
"The Government of Canada will be a leader in using digital technologies to interact with Canadians, making it simpler and quicker to access services and information online."
By 2020, gap between households and businesses in capital cities and those in regional areas will have narrowed significantly
No discussion of urban vs. rural divide.

The Canadian strategy simply ignores many key areas commonly found in digital strategies such as telework, telehealth, and education.  Moreover, even where the strategy addresses similar issues there are few targets that can be used to measure success. Instead, the Canadian strategy frequently talks generically about being a "leader".

Not only does the Australia strategy establish measurable goals, it openly discusses where the country stands and why action is needed. For example, the strategy examines Internet usage data, noting that:

"About 26 per cent of Australians 15 years or over did not use the internet in 2008–09. This figure is much higher for retired persons, low-income earners,
 Indigenous Australians and those living in remote areas."

There are similar statistics available in Canada. Internet use among the richer half of the country is actually over 90 per cent with the top quartile of household income at 94.5 per cent and the second quartile at 90.2 per cent. Internet use among the bottom quartile of Canadians stands at only 62.5 per cent (the third quartile is 77.8 per cent). The digital divide remains consistent across all demographics with wealthier households far likelier to use the Internet than poorer ones regardless of their age.

Last year, the Australian government released a 152 page update on its strategy, identifying dozens of actions that had been taken or that were underway.  In addition to cybercrime initiatives similar to those in Canada, actions included developing a new curriculum for technologies and promoting the adoption of cloud computing in Australia.  The update also provided data on whether the government was meeting its target goals.

The United Kingdom's Digital Britain report, which dates back to 2009 and is 245 pages length (roughly 10 times the size of Digital Canada 150), is even more extensive. For example, on the issue of connectivity, it discusses both access and affordability, recognizing that access alone is insufficient. To address affordability, it proposed a 300 million pound Home Access program for low income families. Digital Britain also discusses the future of its public broadcaster, the BBC, to address how it can remain relevant in the online world. There is no reference to the CBC in Digital Canada 150.  Digital Britain also reaches into issues such as health, transport, energy, and education, areas largely ignored in Digital Canada 150. Moreover, Digital Britain has been followed by Digital Britain One and Digital Britain Two, both focused specifically on enhancing government online.

Digital Canada 150 need not be identical to the strategies found in Australia, the United Kingdom or any of the other myriad of countries that have released digital strategies. Yet after years of waiting, it is not unreasonable to expect something more than 26 pages that is focused primarily on past accomplishments, establishes few measurable goals, and ignores crucial areas such as affordability of computers and connectivity, health care, energy, and education.
Author: "Michael Geist" Tags: "australia, digital britain, digital cana..."
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Date: Tuesday, 08 Apr 2014 08:12
The release of Digital Canada 150, the federal government's long-awaited digital strategy, included a clear connectivity goal: 98 percent access to 5 Mbps download speeds by 2019. While the government promises to spend $305 million on rural broadband over the next five years and touts the goal as "a rate that enables e-commerce, high-resolution video, employment opportunities and distance education", the reality is that Canada now has one of the least ambitious connectivity goals in the developed world. 

Just how badly does the government's connectivity ambitions compare to other OECD countries? Consider just some of the target speeds from other countries as compiled three years ago by the OECD:

Target Year
Target Speed
100% access to 25 Mbps
100% premises, 93% homes, schools and business to 100 Mbps
100% access to 100 Mbps
99% within 2 km of network permitting 100 Mbps
75% access to 50 Mbps
100% household access to 100 Mbps
100% access to 30 Mbps
Luxembourg 2020
100% access to 1 Gbps
Slovak Republic 2020
100% access to 30 Mbps
Sweden 2020
90% access to 100 Mbps
United States
100% access to 4 Mbps
Not only is the target speed low compared to many other countries (the U.S. being the notable exception), but the goal of universal broadband access comes years after other countries put similar policies into place. For example, other countries with universal access targets include:

Universal Access Target Year
Czech Republic
2015 (rural speeds at least 50% of city speeds)
United Kingdom

The Canadian target of 2019 is later than all of these countries, some by more than a decade.  In fact, the government's target date is far later than the Canadian Radio-television and Telecommunications Commission, which set a 2015 deadline with the same speed goal. Unfortunately, the lack of ambition is not limited to connectivity. More on how the Canadian digital strategy pales in comparison to peer countries by largely omitting key issues such as affordability, education, tele-health, and energy in a post tomorrow.
Author: "Michael Geist" Tags: "broadband, digital canada 150"
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Date: Saturday, 05 Apr 2014 16:50
Four years after the Canadian government first announced plans to develop a digital economy strategy, Industry Minister James Moore traveled to Waterloo, Ontario, Friday for the release of Digital Canada 150. The long-awaited strategy document identifies five key areas for policy development: connecting Canadians, protecting the online environment, developing commercial opportunities, digital government, and Canadian content.

My weekly technology law column (Toronto Star version, homepage version) argues the release of Digital Canada 150 succeeds on at least three levels. First, it puts to rest the longstanding criticism that the government is uninterested in digital issues. Moore quickly emerged as the government’s digital leader after taking the reins at Industry Canada, promptly focusing on wireless competition, spam regulation, and now a digital strategy. After years of complaints that the digital strategy issue was Ottawa's equivalent of the "Penske File" - all talk and no action - Moore has acted.

Second, Digital Canada 150 demonstrates that the federal government has been more engaged on digital issues in recent years than is generally appreciated. Indeed, much of the document is presented as a report card, with the requisite check boxes on numerous legislative initiatives (copyright and trademark reform, spam), regulatory developments (wireless competition), and program funding (rural broadband, digital media). The message is clear: the broader strategy document may have been missing, but digital issues were not forgotten.

Third, Moore's document provides some guidance on future policy development. While there are few surprises, there is confirmation that the government plans to introduce private sector privacy reform, invest in rural broadband, introduce regulations on crypto-currencies, continue its welcome emphasis on open data, and push through lawful access legislation that has been framed as a "cyber-bullying" bill.

Despite these successes, Digital Canada 150 ultimately suffers from some notable omissions. For a strategy document, it is curiously lacking in actual strategy. The government updates Canadians on what it has done and provides some insight into what it plans to do, but there are few new strategies articulated.  

Measurable targets and objectives typically guide strategy documents, yet there are not many to be found in Digital Canada 150. In fact, the most obvious target - 98 percent broadband access of 5 Mbps - is slower than many comparable targets around the world and comes years later than the Canadian Radio-television and Telecommunications Commission's stated goal for the same level of Internet connectivity.

Further, the document never links together digital policies with other government initiatives in a strategic manner.  The government has emphasized its international trade agenda, but there is no effort to link trade agreements with a strategy to bring Canadian business online to market and sell to a global marketplace. Similarly, Canadian foreign policy has adopted strong positions against authoritarian regimes, yet there is no strategy that combines that policy with one that prohibits the export of censorship technologies to those countries that repress free speech.

Digital Canada 150 is also largely silent on the issue of investing in the online environment. The recent spectrum auction generated billions of dollars in revenue, but there are seemingly no plans to directly invest the "digital dividend" on digital issues.

Most disappointingly, Digital Canada 150 lacks a big picture goal or target that might have made the whole greater than the sum of its parts.  There was no shortage of possibilities such as a national digital library to revolutionize access in schools and communities, a rethinking of Canadian surveillance policy so that mounting fears of widespread surveillance of individuals might be addressed, structural separation of Internet providers or a plan to join forces with the private sector to bring affordable access and computing equipment into every home in Canada.

These were the types of initiatives that might have captured the public's imagination and put an identifiable face on a broader strategy document. Instead, four years of waiting has yielded a modest vision of Canada’s digital future that frequently focuses more on what the government has done than on where it wants to go. Moore deserves credit for bringing the strategy to the finish line, but given the remarkable possibilities created by the Internet and new technologies, many Canadians were likely hoping for more.
Author: "Michael Geist" Tags: "digital canada 150, moore"
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Date: Wednesday, 02 Apr 2014 04:14
The U.S. Trade Representative issued its annual Foreign Trade Barrier Report on Monday. In addition to identifying the geographical indications provisions in the Canada - EU Trade Agreement, telecom foreign ownership rules, and Canadian content regulations as barriers, the USTR discussed regulations on cross-border data flows. I wrote about the issue recently, noting that the Canadian government restricted access to its single email initiative to Canadian-based hosting.

The USTR picks up on the same issue in its report:

The strong growth of cross-border data flows resulting from widespread adoption of broadband-based services in Canada and the United States has refocused attention on the restrictive effects of privacy rules in two Canadian provinces, British Columbia, and Nova Scotia. These provinces mandate that personal information in the custody of a public body must be stored and accessed only in Canada unless one of a few limited exceptions applies. These laws prevent public bodies such as primary and secondary schools, universities, hospitals, government-owned utilities, and public agencies from using U.S. services when personal information could be accessed from or stored in the United States.
The Canadian federal government is consolidating information technology services across 63 email systems under a single platform. The request for proposals for this project includes a national security exemption which prohibits the contracted company from allowing data to go outside of Canada. This policy precludes some new technologies such as "cloud" computing providers from participating in the procurement process. The public sector represents approximately one-third of the Canadian economy, and is a major consumer of U.S. services. In today’s information-based economy, particularly where a broad range of services are moving to "cloud" based delivery where U.S. firms are market leaders; this law hinders U.S. exports of a wide array of products and services.

This issue bears watching given the growing momentum for localized data hosting conflicting with provisions in the Trans Pacific Partnership that would seek to restrict such provisions.
Author: "Michael Geist" Tags: "data protection, privacy, ustr"
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Date: Tuesday, 01 Apr 2014 08:06
The lawful access fight of 2012, which featured then-Public Safety Minister Vic Toews infamously claiming that the public could side with the government or with child pornographers, largely boiled down to public discomfort with warrantless access to Internet subscriber information. The government claimed that subscriber data such as name, address, and IP address was harmless information akin to data found in the phone book, but few were convinced and the bill was ultimately shelved in the face of widespread opposition.

My weekly technology law column (Toronto Star version, homepage version) notes the government resurrected the lawful access legislation last year as a cyber-bullying bill, but it has been careful to reassure concerned Canadians that the new powers are subject to court oversight.  While it is true that Bill C-13 contains several new warrants that require court approval (albeit with a lower evidentiary standard), what the government fails to acknowledge is that telecom companies and Internet providers already hand over subscriber data hundreds of times every day without court oversight.  In fact, newly released data suggests that the companies have established special databases that grant law enforcement quick access to subscriber information without a warrant for a small fee.

The latest data comes from a government response to NDP MP Charmaine Borg's effort to obtain information on government agencies requests for subscriber data. While many agencies refused to disclose the relevant information, Canada Border Services Agency revealed that it had made 18,849 requests in one year for subscriber information including geo-location data and call records.

The CBSA obtained a warrant in 52 instances with all other cases involving a simple request without court oversight. The telecom and Internet providers fulfilled the requests virtually every time - 18,824 of 18,849 - and the CBSA paid a fee of between $1.00 and $3.00 for each request.

The CBSA revelations follow earlier information obtained under the Access to Information Act that the RCMP alone made over 28,000 requests for subscriber information in 2010 without a warrant. These requests go unreported - subscribers don't know their information has been disclosed and the Internet providers and telecom companies aren't talking either.

The recent disclosures also reveal that the telecom companies have established law enforcement databases that provide ready access to subscriber information in a more efficient manner. For example, the Competition Bureau reports that it "accessed the Bell Canada Law Enforcement Database" 20 times in 2012-13. 

The absence of court oversight may surprise many Canadians, but the government actively supports the warrantless disclosure model. In 2007, it told the Privacy Commissioner of Canada that an exception found in the private sector privacy law to allow for warrantless disclosure was "designed to allow organizations to collaborate with law enforcement and national security agencies without a subpoena, warrant or court order." The cyber-bullying bill further supports the warrantless disclosure model since it contains a provision that grants Internet providers and telecom companies full immunity from any civil or criminal liability for voluntarily disclosing subscriber information.

While much of the warrantless disclosure data remains shrouded in secrecy - many government departments refuse to divulge details about their practices and the telecom companies and Internet providers have declined requests to come clean - the latest revelations confirm fears that subscriber information is disclosed tens of thousands of times every year without court oversight.

The law may grant the companies the right to disclose subscriber information without a warrant, but the pervasive warrantless disclosure is still deeply troubling and represents an abdication of their responsibility to safeguard the privacy interests of their subscribers.
Author: "Michael Geist" Tags: "lawful access, privacy, subscriber infor..."
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Date: Wednesday, 26 Mar 2014 07:45
The debate over Bill C-13, the government's latest lawful access bill, is set to resume shortly.  The government has argued that the bill should not raise concerns since new police powers involve court oversight and the mandatory warrantless disclosure provisions that raised widespread concern in the last bill have been removed.  While that is the government's talking points, I've posted on how this bill now includes incentives for telecom companies and other intermediaries to disclose subscriber information without court oversight since it grants them full civil and criminal immunity for doing so. Moreover, newly released data suggests that the telecom companies don't seem to need much of an incentive as they are already disclosing subscriber data on thousands of Canadians every year without court oversight.

This week, the government responded to NDP MP Charmaine Borg's request for information on government agencies requests to telecom providers for customer information. The data reveals that the telecom companies have established law enforcement databases that provides ready access to subscriber information. For example, the Competition Bureau reports that it "accessed the Bell Canada Law Enforcement Database" 20 times in 2012-13.  The wording may be important, since the Bureau indicates that it accessed the information, rather than Bell provided it. It is not clear what oversight or review is used before a government agency may access the Bell database.

The Canada Border Services Agency report featured the biggest numbers with 18,849 requests in one year for subscriber information including geolocation data and call records. The CBSA obtained a warrant in 52 cases with all other cases involving a simple request without court oversight. The telecom providers fulfilled the requests virtually every time - 18,824 - and the CBSA paid between $1.00 and $3.00 per request. The RCMP presumably has far higher numbers, but it says that it does not keep track in a centralized database (an earlier access to information request revealed even bigger numbers).

While this data provides only a glimpse at warrantless disclosure of subscriber information, it confirms fears that telecom companies provide such information tens of thousands of times every year without court oversight (and perhaps without even internal oversight if access to a database is granted). The law may grant telecom companies the right to disclose subscriber information without a warrant, but the pervasive warrantless disclosure is deeply troubling and represents an abdication by telecom providers of their responsibility to safeguard the privacy of their subscribers.
Author: "Michael Geist" Tags: "bell, borg, c-13, lawful access"
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Date: Tuesday, 25 Mar 2014 08:23
The Government of Quebec has lost its complaint over the domain name Quebec.com.  In a unanimous panel decision that included Copyright Board of Canada board member Nelson Landry, the government failed to demonstrate bad faith and raised questions about why it waited 15 years to launch a complaint.
Author: "Michael Geist" Tags: "domain names, quebec.com"
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Date: Tuesday, 25 Mar 2014 08:21
Earlier this month, the U.S. government surprised the Internet community by announcing that it plans to back away from its longstanding oversight of the Internet domain name system. The move comes more than 15 years after it first announced plans to transfer management of the so-called IANA function, which includes the power to add new domain name extensions (such as dot-xxx) and to alter administrative control over an existing domain name extension (for example, approving the transfer of the dot-ca domain in 2000 from the University of British Columbia to the Canadian Internet Registration Authority).

My weekly technology law column (Toronto Star version, homepage version) notes the change is rightly viewed as a major development in the ongoing battle over Internet governance. Yet a closer look at the why the U.S. is embarking on the change and what the system might look like once the transition is complete, suggests that it is not relinquishing much power anytime soon. Rather, the U.S. has ensured that it will dictate the terms of any transfer and retain a "super-jurisdiction" for the foreseeable future.

Day-to-day administration of the domain name system is currently managed by the Internet Corporation for Assigned Names and Numbers (ICANN), a U.S.-based non-profit company that operates under a contract with the U.S. government. Critics argue that this means that the U.S. retains final authority over key Internet governance decisions. 

The United Nations and supporting governments have attempted to loosen U.S. control on several prior occasions without success. Despite those failures, the U.S. now voluntarily says it will walk away from its oversight power, tasking ICANN with developing a transition plan that must "support and enhance the multistakeholder model." The U.S. adds that it will not accept a proposal based on a government-led or an inter-governmental organization solution, short-circuiting any hopes the U.N. might have had for assuming control.

Why is the U.S. proposing to walk away now? In recent months, there has been growing momentum to revisit the issue, triggered by the Edward Snowden revelations of widespread Internet surveillance. Although NSA surveillance has no real connection to Internet governance - the management of the domain name system is not typically a surveillance target - the issue has galvanized many countries and groups who sense an opportunity for change. By forcing the issue, the U.S. has successfully seized the agenda and set the conditions for a transfer of power.

While a transfer would be perceived by many to represent a change in control, the reality is that the U.S. will not be relinquishing much power even when (or if) the transition occurs. In the years since the U.S. first indicated that it would shift away from Internet governance, it has steadily erected jurisdictional authority over a considerable portion of the Internet infrastructure.  

For example, in 2009 the U.S. and ICANN entered into an agreement that institutionalized "the technical coordination of the Internet's domain name and addressing system." That document included a commitment for the U.S. to remain involved in the Governmental Advisory Committee (GAC), the powerful body within ICANN that allows governments to provide their views on governance matters. It also contained an ICANN commitment to remain headquartered in the U.S., effectively ensuring ongoing U.S. jurisdiction over it.

Not only is the U.S. able to assert jurisdiction over ICANN, but it has also asserted jurisdiction over all dot-com, dot-net, and dot-org domain names. In 2012, a U.S. court ordered the seizure of a dot-com domain that was registered in Canada with no U.S. connection other than the location of the domain name registry. This effectively means the U.S. retains jurisdiction over half of all domain name registrations worldwide regardless of where they are registered or who manages the system.

The U.S. might transition away from the current model (though the initial 2015 date seems ambitious), but much of its jurisdictional power will remain largely unchanged. The latest announcement has the potential to fulfill a promise made nearly two decades ago, but skeptics can be forgiven for suspecting that power over Internet governance will remain firmly rooted in the U.S. no matter how the issue is resolved.
Author: "Michael Geist" Tags: "iana, icann, internet governance"
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Date: Wednesday, 19 Mar 2014 04:45
Last week marked the 25th anniversary of the drafting of Tim Berners-Lee's proposal to combine hypertext with the Internet that would later become the World Wide Web. Berners-Lee used the occasion to call for the creation of a global online "Magna Carta" to protect the rights of Internet users around the world.

The desire for enforceable global digital rights stands in sharp contrast to the early days of the Web when advocates were more inclined to tell governments to stay away from the burgeoning medium. For example, John Perry Barlow's widely circulated 1996 Declaration of the Independence of Cyberspace, asked governments to "leave us alone", claiming that conventional legal concepts did not apply online.

While the notion of a separate "cyberspace" would today strike many as inconsistent with how the Internet has developed into an integral part of everyday life, the prospect of a law-free online environment without government is even more at-odds with current realities. Rather than opposing government, there is a growing recognition of the need for governments to ensure that fundamental digital rights are respected.

My weekly technology law column (Toronto Star version, homepage version) notes that building on Berners-Lee's vision of global online protections, the World Wide Web Foundation, supported by leading non-governmental organizations from around the world, has launched a "Web We Want" campaign that aims to foster increased awareness of online digital rights. The campaign focuses on five principles: affordable access, the protection of personal user information, freedom of expression, open infrastructure, and neutral networks that do not discriminate against content or users.

Supporters recognize that global protections are more likely to develop on a country-by-country basis, with potential domestic support for national digital bills of rights. In the United Kingdom, the opposition Liberal Democrats have already thrown their support behind a digital bill of rights, while the United Nations Human Rights Council has backed a resolution declaring Internet access and online freedom of expression a human right.

With Industry Minister James Moore set to unveil the long-awaited national digital strategy (reportedly to be dubbed Digital Canada 150), these issues have the potential to play a starring role.  

The government has identified universal access as a key issue, allocating $305 million in the most recent budget for broadband initiatives in rural and remote communities.  While there is some disagreement on a target date for universal Canadian broadband - the CRTC has set its goal at 2015, while the federal government is content with 2019 - there is a consensus that all Canadians should have affordable broadband access and that there is a role for the government to make that a reality in communities that the leading Internet providers have largely ignored.

The protection of personal information raises questions about the adequacy of current privacy rules and the concerns associated with widespread surveillance. Industry Canada's Report on Plans and Priorities for 2014-15 quietly referenced "modernizing the privacy regime to better protect consumer privacy online" as a legislative priority for the coming year, the clearest signal yet that the government plans to re-introduce privacy reform.

The surveillance concerns will undoubtedly prove even more challenging, with the government saying little about the steady stream of revelations of government-backed surveillance. The Canadian role in global surveillance activities and the government's decision to revive lawful access legislation represent the most disturbing aspects of online policies that must be addressed for digital rights leadership.

As the government finally embarks on its digital strategy, it has an opportunity to do more than just tout recent policy initiatives. Instead, it should consider linking its goals with the broader global initiatives to help create the Web we want.
Author: "Michael Geist" Tags: "digital rights, web we want"
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Date: Tuesday, 18 Mar 2014 04:04
Yesterday, I was contacted by a Toronto radio station wanting to discuss wireless pricing increases  that have occurred over the past few months (including increases over the weekend at both Rogers and Bell). Their key question was what lay behind the increased prices?  While some might point to reduced roaming revenues or costs associated with the spectrum auction, I believe the answer is far simpler.

The carriers increased prices because they can.

Indeed, this is precisely what the Competition Bureau of Canada concluded could and would happen in its analysis of the wireless environment in Canada.  In its  January 29, 2014 submission to the CRTC, it stated:

In the Bureau's view, mobile wireless markets in Canada are characterized by high concentration and very high barriers to entry and expansion. Furthermore, Canadian mobile wireless markets are characterized by other factors that, when combined with high concentration and very high barriers to entry and expansion, create a risk of coordinated interaction in these markets. Given these factors, the Bureau's view is that incumbent service providers have market power in Canadian retail mobile wireless markets.

And what is market power? As the Bureau notes, "market power is the ability of a firm or firms to profitably maintain prices above competitive levels (or similarly restrict non-price dimensions of competition) for a significant period of time."

The risk of coordinated action and the ability to profitability maintain prices above competitive levels? Sounds familiar.
Author: "Michael Geist" Tags: "crtc, wireless"
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Date: Friday, 14 Mar 2014 08:36
The Canadian Copyright Institute, an association of authors and publishers, has released a new paper that calls on the Canadian education community to stop relying on its current interpretation of fair dealing and instead negotiate a collective licence with Access Copyright. The paper was apparently published in the fall but is being released publicly now since Canadian education groups have refused to cave to Access Copyright's demands.

The CCI document, which raises some of the same themes found in an Association of Canadian Publisher's paper that distorts Canadian copyright law (thoroughly debunked by Howard Knopf), features at least three notable takeaways: the shift to threats of government lobbying, long overdue admissions that the value of the Access Copyright licence has declined, and emphasis on arguments that have been rejected by the courts and government. There are also three notable omissions: the fact that the overwhelming majority of copying in schools is conducted with publisher permission, the role of technological neutrality, and the relevance of other copyright exceptions. By the end of the document, the CCI and Access Copyright work to fabricate a new fair dealing test that is inconsistent with Supreme Court of Canada rulings as they call for dialogue so long as it leads to a new collective licence.

The Notable Takeaways

First, the CCI threatens the education community that it will lobby the government to change the law unless it resumes paying Access Copyright:

Without an acceptable solution - in other words, the resumption of licensing for schools, colleges and universities - writers and publishers will have to pursue political as well as legal solutions. This is not their preference. There exists a long and valued relationship (symbiotic, even) among writers, publishers, educators and students. We believe that there is a better way forward.

The threat of political solutions is particularly laughable given that the same groups lobbied extensively for two years during the Bill C-32/C-11 process to urge the government to scale back fair dealing. Despite numerous appearances before parliamentary committees, star witnesses, social media campaigns, and public opinion pieces, the government completely rejected their demands. With no appetite for more copyright reform in Ottawa, the threat of a renewed lobby campaign is no threat at all.

Second, Access Copyright and the CCI finally admit that the recent legal changes have reduced the value of their collective licence. After the Supreme Court decisions, Access Copyright stated:

This decision, however, has no impact on the requirement that royalties continue to be paid on
the hundreds of millions of pages of student texts that are copied for use in K‐12 classrooms
every year.

It even argued after the decision that the Supreme Court had not ruled that the copies at issue were fair dealing. Now the groups acknowledge:

Copyright owners may not like but they do accept the Alberta (Education) decision, and that means accepting a lower value for Access Copyright licensing.

In fact, the decreasing value of an Access Copyright license stems from more than just changes to Canadian copyright law.  The collective has also admitted that works older than 20 years are unlikely to be copied under its licences. In its 2012 Payback FAQ to authors, the collective noted:

Q. Why are you only asking for works published within the last 20 years?

A. Our statistical analysis of copying data shows that works published more than 20 years ago are unlikely to be copied under our licences.

This admission from Access Copyright shows how its repertoire is declining in value since a growing percentage of newer materials are available by alternative means, while the older materials may not be subject to an alternate licence, but they are unlikely to be copied. Over the coming years, the Access Copyright squeeze is only going to grow as the entire repertoire of materials likely to be copied - the materials published within the last 20 years - are all published in the digital/Internet era with many available through alternative means such as open access or site licences.

Third, the document's emphasis on the Supreme Court's dissenting opinion or attempts to downplay the law provides a sure sign of a weak argument. The law of the land is reflected by the majority, not the minority view. The references to a "very powerful dissent" or the "bare majority" suggest doubt that simply does not exist. As I pointed out in this post, each of Access Copyright's key arguments (user rights, copier perspective, private study, and aggregate copying) were rejected by the court. The majority view is unlikely to be revisited in the short term. In fact, should the issue return to the court, it is worth noting that the majority judges all remain on the bench, whereas the dissent has already had one retirement with another on the way.

The document also tries to downplay the effect of the Court's decision on numerous occasions. For example, it states:

with the recent addition of "education" as a fair dealing purpose, we accept that some copying for classroom distribution now meets the first test for what can be fair dealing - subject to the very important second test of fairness.

Yet the first test only requires an appropriate purpose. With the inclusion of education in the law as one of the purposes, all copying for classroom distribution undoubtedly meets that part of the test.

What the CCI and Access Copyright Do Not Say

The document is also notable for what it does not say. The CCI and Access Copyright emphasize the 250 million copies that are copied annually, rather than the 16.9 million copies addressed by the court. Yet the evidence in the case before the Copyright Board actually found far more copying. The Access Copyright sponsored study that lies at the heart of the K-12 case that ended up in Canada's highest court found that schools already had permission to reproduce 88% of all books, periodicals, and newspapers without even conducting a copyright analysis or turning to the Access Copyright licence.

That study, conducted by Circum Network Inc., tracked the photocopying practices at hundreds of schools across the country with full logging of all copying over two-week periods. The study found a huge amount of photocopying - the Canada-wide estimate was 14 billion copies - but the overwhelming majority have nothing to do with Access Copyright. In fact, once personal copies, unpublished copies, administrative documents, and self-produced documents were accounted for, the number of copies dropped to 4.5 billion. Most of those 4.5 billion copies were taken from books, but there was permission to reproduce nearly 4 billion of the copies without Access Copyright.

In other words, Access Copyright's own evidence is that schools obtained permission (typically through direct licences or permission from the publishers from whom they purchased hundreds of millions in books) to cover 88% of their book, periodical, and newspaper copying. Access Copyright is simply irrelevant for the overwhelming majority of copying even before anyone conducts a fair dealing analysis.

The document also conveniently omits the Supreme Court's emphasis on technological neutrality. For example, it states:

The Court looked only at photocopying of “short excerpts”. It said nothing about digital delivery. And in CCH, the Court questioned whether it would have come to the same conclusions with other methods of copying and if longer excerpts were involved.

Yet the court's discussion of alternative digital delivery models do not help Access Copyright given the new principle of technological neutrality articulated in the ESAC case:

The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.

The singular focus on fair dealing also omits the many additional exceptions available to education. The fact that much of the copying of short excerpts may simply be de minimis and not even require a fair dealing analysis (much less an Access Copyright licence) is not discussed, though the Copyright Board wants the collective to address the issue. Moreover, the education Internet exception, the non-commercial user generated content exception, the distance education exception, and others may all be used by education to cover some copyright uses. Indeed, these same groups warned during the C-11 process that those provisions would have the effect of granting education expansive new rights.

What is the End Game?

Leaving aside empty threats about lobbying, what is the Access Copyright end game? The document makes it clear that for all the references to "dialogue," from its perspective the only satisfactory outcome is an Access Copyright licence. Indeed, the document states:

Canada's copyright owners will support whatever action is needed to reinstate collective licensing in schools, colleges and universities.

Copyright law changes, the millions spent on site licenses, a diminishing repertoire, and the growth of open access publishing? All irrelevant in the eyes of Access Copyright which only wants to talk about reinstating a collective licence. If that wasn't enough to reject calls for dialogue, there is also an effort to fabricate a fair dealing test far different from the one articulated by the Supreme Court of Canada. In the place of user rights, the document raises a series of new considerations such as "whether the copying is spontaneous and non-systematic" (irrelevant from a fair dealing perspective), "whether the copying is directed by the teacher or is mandated by a board or ministry of education" (having lost the argument on whether teacher directed copying is fair dealing (it is), Access Copyright is now shifting to the claim that board directed copying is not fair dealing), or "whether the copies are retained/reused" (another non-fair dealing factor).

The reality is that the Supreme Court and the government were both clear with respect to the emphasis on user rights, fair dealing, and new user exceptions. The CCI, Access Copyright and its allies argued these issues before the court and Parliamentary committees. They lost. The new fair dealing guidelines adopted by the Canadian education community are a modest implementation of those rules. There is no need for threats or disingenuous calls for more dialogue, but rather acceptance of the law and efforts to adapt to the new legal environment. The CCI document suggests that is still not part of the collective's strategy for moving forward.
Author: "Michael Geist" Tags: "access copyright, cci, copyright, fair d..."
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Date: Wednesday, 12 Mar 2014 08:30
In August 2011, the federal government announced plans to consolidate more than 100 different email systems used by over 300,000 employees into a single, outsourced email system. While the email transition is currently underway - Bell won the nearly $400 million contract last year - the decision quietly sparked a trade fight with the United States that placed the spotlight on the risks associated with hosting computer data outside the country.

At the heart of the dispute is the emergence of cloud computing services such as web-based email, online document storage, and photo sharing sites. These services are based on a computing infrastructure that relies on huge computer server farms and high-speed network connections that allow users to access their content from any device connected to the Internet.

My weekly technology law column (Toronto Star version, homepage version) notes that cloud computing services offer the promise of convenience and cost savings, but at a price of reduced control over your own content, reliance on third-party providers, and potential privacy risks should the data "hosted in the cloud" be disclosed to law enforcement agencies without appropriate disclosure or oversight.

The Canadian government was clearly concerned by dangers associated with storing potentially sensitive emails outside the country. Invoking a national security exception, one of its requirements for the single email system was that it be hosted in Canada on a secured server. As U.S. companies later noted, this effectively excluded them from bidding on the contract.

According to documents recently obtained by the B.C. Freedom of Information and Privacy Association, the companies escalated their concern to U.S. government officials, urging them to launch a trade complaint over the Canadian requirements. While the companies explored several alternatives that might address Canadian concerns, including encrypting all data and retaining the encryption key in Canada (thereby making it difficult to access the actual data outside the country), the government insisted on Canadian-based storage.

The reason? According to internal U.S. documents discussing the issue, Canadian officials pointed to privacy concerns stemming from the USA Patriot Act.

The privacy concerns raise a bigger question for millions of Canadians that use U.S. cloud services as well as organizations such as Canadian universities that are contemplating switching their email or document management services to U.S.-based alternatives. Simply put, if U.S. cloud services are not good enough for the Canadian government, why should they be good enough for individual Canadians?

In light of the Edward Snowden revelations of widespread surveillance by the National Security Agency, the answer for many Internet users will increasingly be that they are indeed uncomfortable with the loss of control over their data. In recent months, many countries have begun to explore mandating local cloud providers to ensure that domestic data stays in the country. In response, the U.S. has lobbied for inclusion of a provision in the Trans Pacific Partnership, a trade agreement currently being negotiated by more than a dozen countries including Canada, that would restrict the ability for countries to restrict data transfers and mandate local computer storage.  

The Canadian government has said little about its position on the issue despite the fact that Canadians are already particularly vulnerable to potential disclosures to law enforcement or intelligence agencies. According to OECD data, the majority of Canadian dot-ca domain name websites are hosted outside the country, with Canada ranking among the lowest countries in the developed world for domestic website hosting. Moreover, Canadian Internet providers such as Bell exchange their Internet traffic in the U.S., ensuring that even simple domestic emails frequently enter the U.S. network before returning to Canada.

Mandating local cloud computing services will not address many of the privacy concerns associated with widespread surveillance and inadequate oversight, but when even the Canadian government insists on domestic computer servers for its information, it may be time for individual Canadians to think about doing the same.
Author: "Michael Geist" Tags: "cloud computing, patriot act, privacy, s..."
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Date: Tuesday, 11 Mar 2014 08:38
Canada and South Korea announced agreement on a comprehensive trade agreement earlier today. The focus is understandably on tariff issues, but the agreement also contains a full chapter on intellectual property (note that the governments have only released summaries of the agreement, not the full text, which is still being drafted). The IP chapter is significant for what it does not include. Unlike many other trade deals - particularly those involving the U.S., European Union, and Australia - the Canada-South Korea deal is content to leave domestic intellectual property rules largely untouched. The approach is to reaffirm the importance of intellectual property and ensure that both countries meet their international obligations, but not to use trade agreements as a backdoor mechanism to increase IP protections.

Yesterday I noted that Canada might be asked to increase the term of copyright protection given that South Korea had agreed to longer copyright terms in its recent agreements with the European Union, Australia, and the U.S. In fact, the U.S. agreement contains extensive additional side letters on Internet provider liability, enforcement, and online piracy.  The Canada - South Korea deal rejects that approach with copyright, trademark, patent, and enforcement rules that are all consistent with current Canadian law (plus the coming border measures provisions in Bill C-8). 

On copyright, the summary states the agreement:
  • reflects Canada's regime as updated by the 2012 Copyright Modernization Act, which brought Canada into compliance with the World Intellectual Property Organization's two Internet treaties;

  • reiterates existing aspects of Canada's regime, including the protection of technological protection measures (technology designed to protect copyrighted material), protection of rights management information, and special measures against copyright infringers on the Internet (no change to Canada’s notice and notice regime, which defines the responsibility of Internet service providers in respect of copyrighted material on their networks).
The specific reference to notice-and-notice is important since it confirms no takedown requirements nor three-strikes rules. The specific measures against copyright infringers may be interpreted as Canada's enabler provision that targets websites that facilitate infringement. Moreover, the references to reflecting Canada's regime indicates that there is no copyright term extension or other substantive changes.

The approach is much the same on both trademark and patent. On trademark, the summary states the agreement:

reflects existing aspects of Canada's trademarks regime, including those pertaining to trademark registration, application and cancellation as well as to well-known trademarks.

while on patents, it states the agreement is:

in line with Canada's current regime, including criteria regarding patentability and exclusions from patentability; no new commitments in the area of pharmaceutical patents.

The IP approach is notable for several reasons. First, the agreement confirms that neither Canada nor South Korea view increased IP protections as a trade priority.  This is not particularly surprising, but it is important within the context of the Trans Pacific Partnership negotiations. Canada is clearly committed to its current rules and seems likely to continue to oppose U.S. and Australian efforts to increase protections in the TPP.

Second, the decision to maintain existing domestic laws without pressuring the other country to conform to its approach illustrates that claims of the necessity for harmonized IP rules in trade agreement are simply untrue. A far more appropriate approach is to require consistency with international obligations.

Third, the Canada - South Korea agreement may provide a model for many other countries that wish to include intellectual property provisions in their trade agreements but are content to require each party to meet international standards rather than the domestic rules of one of the parties. The U.S. and E.U. approach has been to export their rules to other countries, but Canada and South Korea have demonstrated that respect for domestic choices and compliance international obligations is a better alternative.
Author: "Michael Geist" Tags: "canada, copyright, ip, south korea"
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Date: Monday, 10 Mar 2014 08:54
Prime Minister Stephen Harper is currently in South Korea reportedly to finalize agreement on the Canada - South Korea trade agreement. The proposed deal has been the subject of a decade of negotiation with opposition from the auto industry resulting in significant delays. While the focal point of the agreement will be on tariff issues involving the automotive and agricultural sectors, the deal will include an intellectual property chapter. The IP issues have not received any attention (the entire agreement remains secret so discussion has been generally limited), but it is possible that it will require Canada to extend the term of copyright.

An initial Canadian environmental assessment of the agreement suggested that the IP chapter would simply reaffirm existing IP obligations. If the agreement is limited to reaffirming existing commitments, copyright term will not be touched since Canada meets the international requirement of life of the author plus 50 years.  However, South Korea's recent trade deals with both the European Union and Australia feature a minimum copyright term of life of the author plus 70 years (the Australian deal also includes a requirement for "measures to curtail repeated copyright infringement on the Internet"). Whether the Canadian deal contains a similar provision will be worth monitoring, both for the impact on Canadian copyright law and for the international trade implications such as the Trans Pacific Partnership that is currently under negotiation.
Author: "Michael Geist" Tags: "canada, copyright, south korea, term ext..."
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Date: Friday, 07 Mar 2014 03:58
Industry Canada's Report on Plans and Priorities for 2014-15 includes a notable paragraph on priorities for the digital economy.  The report states:

In 2014–15, Industry Canada will deliver the telecommunications consumer commitments included in the 2013 Speech from the Throne. These include taking legislative action to amend the Telecommunications Act to reduce roaming costs and prevent wireless providers from charging other companies more than they charge their own customers for mobile services. The Department will also protect consumer interests by encouraging compliance and adopting more effective remedies, including administrative monetary penalties, when violations occur. Industry Canada will continue to promote investment in high-speed broadband networks for rural Canadians.

These priorities are an important part of a robust digital economy. Other elements will include: modernizing the privacy regime to better protect consumer privacy online; monitoring the implementation of Canada's anti-spam legislation; and deepening analysis of Canada's communications infrastructure.

While the telecom actions were expected, the commitment to modernizing Canadian privacy laws is new (albeit long overdue).  Previous privacy reform bills died on last year, leaving the government years behind in addressing PIPEDA reform. The Industry Canada report suggests that some legislative action may finally be on the way.
Author: "Michael Geist" Tags: "industry canada, pipeda, privacy"
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Date: Thursday, 06 Mar 2014 09:02
The federal government released its Report on Plans and Priorities for 2014-15 today with departments and agencies identifying spending estimates and work priorities. The CRTC's report offers some interesting insights into its main activities and targets, particularly with respect to broadband access.

The latest CRTC broadband target is for 100% of Canadian households to have access to broadband speeds of 5 Mbps download and 1 Mbps upload by December 31, 2014. That target is a year ahead of schedule as last year's report set the 100% target for the end of 2015. The new target is also difficult to reconcile with the government's announcement that it plans to spend $305 million over the next five years to extend broadband to rural and remote areas. In fact, last week reports suggested that Industry Minister James Moore and the government had established a target of 2019 for universal access to broadband. If the CRTC target is achieved, the government's broadband plans and targets would appear already outdated. Interestingly, Industry Canada's report includes a target of 77% of the population with broadband subscriptions (not access) by March 2015, but broadband is defined is only 1.5 Mbps or higher.

The CRTC has also become more aggressive about its targets for broadband competition. Last year, it set a target of 50% of households having access to three or more broadband providers with a 5% annual increase thereafter. This year, it has set a target of 95% of households by March 2015 (oddly, it has scaled back its target for competitive access to broadcast distribution undertakings having targeted four or more last year, but only three or more this year).

In addition to broadband targets, the report features targets for everything from spam reduction to viewership of Canadian content. With the new anti-spam law set to take effect in July, the CRTC hopes to reduce spam by 10% over the next 12 months. The Canadian content targets have changed completely with the CRTC now focused on the viewership or listeners to Canadian content. By March 2015, the Commission target is 48% of total television viewing is to Canadian programming, while it wants 50% of radio listening to Canadian content. The CRTC targets differ slightly from those of Canadian Heritage, which set a target of 50% Canadian programming viewing by August 2015.
Author: "Michael Geist" Tags: "broadband, crtc, industry canada, moore"
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Date: Wednesday, 05 Mar 2014 10:22
Last month, I blogged about the CRTC's Talk TV consultation and concerns that the questions were framed in a lopsided manner.  CRTC Chair Jean Pierre Blais was asked about those concerns in Twitter chat and he responded that the questions and answers "were intended to be provocative." I address that response in my weekly technology law column (Toronto Star version, homepage version) highlighting both the concerns with the survey and offering some additional provocative questions that the Commission excluded.

The column begins by noting that regulation of Internet video services and the prospect of pick-and-pay television channels headline the second phase of the Canadian Radio-television and Telecommunications Commission's future of television consultation which launched late last month. The "TalkTV" initiative is designed to make it easy for Canadians to participate, featuring six short scenarios followed by a limited number of choices for respondents.

While the consultation quickly attracted considerable participation - the commission said thousands of Canadians responded in the first week alone - its content raises serious concerns about future plans for CRTC regulation. Indeed, if the consultation is a signal of where the commission is headed, not only is the notion of true pick-and-pay channels dead and the much-disliked simultaneous substitution alive, but regulation of Internet video services may be just around the corner.

The Internet video discussion in the survey focuses almost exclusively on new regulatory fees for services such as Netflix. After asking respondents whether online services should be required to contribute to funding for Canadian content, provide closed-captioning, and adhere to regulated programming standards, the CRTC poses a series of follow-up questions that all involve additional costs.

Respondents are asked whether they would pay an extra 50 cents per month for Canadian-made programming (presumably the additional cost for a Canadian content contribution fund) or a few cents each month for closed captioning. The commission also inquires whether Canadians would be willing to pay $5 more each month for increased Internet usage costs. The CRTC floats the possibility that such usage would not count against monthly data caps, suggesting that it may be willing to violate net neutrality principles as part of a new Internet regulatory regime.

The consultation delves into other controversial issues, but often offers a lopsided perspective. Signal substitution, the longstanding practice that swaps a U.S. feed with the Canadian equivalent (with Canadian commercials) when the same program is being aired at the same time, was raised during an earlier part of the consultation as a policy ripe for reform. Once the issue is explained in the survey, respondents are offered just three choices: keep the policy unchanged, black out U.S. signals, or require Canadians to pay extra fees to compensate stations for lost revenues. 

Similarly, the consultation asks whether Canadians would like access to more U.S. and international programming. The Commission seemingly pre-judges the issue by framing the ramifications of new programming as increasing cable and satellite fees, creating lost Canadian jobs, or developing new channel packages with additional Canadian content to offset the foreign programming.

When asked about the apparently skewed approach during a recent Twitter chat, CRTC Chair Jean-Pierre Blais responded that the consultation was meant to be provocative. Few would object to a provocative approach that generates interest in broadcast policy, however, these provocations are entirely one-sided.

For government regulators, it is seemingly provocative to ask about Internet regulation and the implementation of new fees that could almost double the effective cost of services such as Netflix. It is also provocative to equate more consumer choice with lost Canadian jobs or to propose compensation for Canadian television stations if simultaneous substitution is removed.

Yet the commission does not offer up similarly provocative options such as the elimination of many broadcast regulations in order to create a level playing field with Internet services or removing the requirement that Canadians purchase basic television services with all cable and satellite packages. It also does not provoke respondents with the possibility of new rules to eliminate simultaneous substitution by forcing Canadian broadcasters to adjust to a more competitive marketplace or to re-imagine the role of public broadcasting in Canada.

Given that the CRTC rightly or wrongly often attracts the ire of Canadians, the survey also avoids the biggest provocation of all - does Canada still need the CRTC to regulate broadcasting?  The answer to that question might depend upon the final results of its future of television consultation.
Author: "Michael Geist" Tags: "broadcast, crtc, talktv"
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