William Gibson, the American-Canadian science fiction writer who coined
the term cyberspace, is well-known for having stated "the future is
already here - it's just not evenly distributed." The quote succinctly
points to the gradual dissemination of new technologies that start with
first adopters but can take years to spread more widely.
To borrow from Gibson, in recent weeks it has become increasingly clear
that the future of education is here, though it is not evenly
distributed. My weekly technology law column (Toronto
Star version, homepage
version) notes the emerging model flips the current approach of
expensive
textbooks, closed research, and limited access to classroom-based
learning on its head, instead featuring open course materials, open
access to scholarly research, and Internet-based courses that can
simultaneously accommodate thousands of students. The concern is that
other countries are becoming first adopters, while Canada lags behind.
For example, David Willetts, the United Kingdom Minister of State for
Universities and Science, left no doubt about his government’s view on
open access to publicly funded research in a remarkable
speech to the
Publishers Association annual general meeting in London earlier this
month. Willetts told the industry that the UK government "is committed
to the principle of public access to publicly-funded research results"
and that it "believes that published research material which has been
publicly financed should be publicly accessible - and that principle
goes well beyond the academic community."
As Willetts was telling publishers that trying "to preserve the old
model is the wrong battle to fight", Harvard and MIT were announcing
an
ambitious partnership to bring free or low cost Internet-based classes
to thousands of students. The "edX" initiative starts with US$60
million in funding from the two universities with five courses planned
for the fall. It joins similar offerings from Stanford (which offered
13 courses online this year) as well as Princeton, the University of
Michigan and the University of Pennsylvania.
While the U.S. online teaching initiatives come out of the university
system, last year the U.S. government injected hundreds of millions of
dollars into open course materials for colleges. Led by the Departments
of Labor and Education, the $2
billion program offers $500 million per
year for the development of openly licensed materials that must carry
the Creative Commons BY licence, which permits their free derivative
use for both commercial and non-commercial purposes.
With billions of dollars invested in research that is freely available,
course materials that can be freely adapted for any purpose, and free
online courses from some of the world’s leading institutions, the shape
of education is set to change dramatically in the coming years.
Yet there are serious doubts whether Canada is ready for these changes.
While countries such as the UK forge ahead with mandatory open access
policies, the major Canadian granting institutions dole out hundreds of
millions of dollars in grants without strict requirements to ensure
that the resulting data and research publications are made openly
available to the public that has funded it.
The massive investment in open course materials will likely prove
attractive to Canadian schools and students, with the prospect that
domestic materials are dropped in favour of more flexible, free
alternatives. Several B.C. and Alberta universities are investing in
the creation of their own open materials, but more is needed to
Canadianize the steady stream of U.S. funded works.
As for online education, there may be the occasional pilot project from
Canadian universities, but no one seems ready to confront the emerging
reality of competition from top tier schools from around the world
offering online courses at low cost to Canadian students. In fact, many
schools seem stuck in their traditional model, complete with
restrictive licensing agreements that are likely to slow the technology
transition. The future of education may be here, but few Canadian
universities have woken up to its implications.
The Business Software Alliance released its annual global
software piracy report
this week with new data that not only shows that Canada hit yet another
all-time low but has experienced the biggest percentage decline in the
world over
the past five years. For the past few years, the BSA report has
repeatedly found that piracy is declining in Canada. In 2009, Canada
was characterized
as a "low piracy country", in 2010 the industry noted
that Canada's piracy rate was at an all-time low, and last year it dropped
further to another all-time low.
The latest report says the Canadian piracy rate dropped further in
2011. In fact, over the past five years, the Canadian rate has dropped
by 18% (from 33% to 27%), the sharpest decline in the world. No other
country has seen its piracy rate drop as quickly. While there are
ongoing concerns
about the BSA methodology, it is striking that at the very time the
U.S. and other lobby groups seek to paint Canada as a piracy haven,
their own data suggests the opposite is true.
Bill C-11, the copyright reform bill, passed
the report stage
yesterday, leaving only a third reading debate and vote before the bill
heads to the House of Commons. While many good elements in the bill
remain intact, it is worth noting what the Conservatives voted against
by opposing every amendment proposed by the NDP, Liberals, Green Party,
and Bloc at committee and at report stage. Proposed amendments that
were defeated included:
link circumvention to copyright infringement so that Canadians
could continue to exercise their fair dealing rights in the digital
environment
address a flaw in digital lock exception on perceptual
disabilities that may restrict the ability of blind to circumvent a
digital lock to access a work
create a new notice requirement for the inclusion of digital locks
create a new qualified circumventer system, similar to that found
in New Zealand, so that those Canadians without the technical ability
to circuvent a digital lock in permitted circumstances can do so
add a new digital lock exception to protect minors
remove the digital lock restrictions for time shifting and backup
copies
create a system to allow the Copyright Board to create new
digital lock exceptions
amend the network services provision so that providers can offer
network-based PVRs and other cloud computing services. As it currently
stands, the bill may create legal risks for such cloud-based storage
services.
change the restriction on digital interlibrary loans by requiring
a notification of restrictions (including an ability to use a work for
more than five business days) rather than the need to take measures to
stop restricted activity
remove the 30 day destruction requirement on lessons for teachers
and students that use that new exception
None of these amendments were radical or undermined the goals of the
legislation. There is much to like in Bill C-11 but the defeat of
provisions designed to improve access for the blind, preserve fair
dealing, enhance education, and open the door to innovative services
hardly seems like something to celebrate.
UBC, one of Canada's largest universities, has announced
that it will not sign the Access Copyright model licence. The decision
is particularly notable since UBC President Stephen Toope is also the
chair of AUCC, which negotiated the model licence. UBC says it is
"taking the bolder, more principled and sustainable option" and points
to three main reasons for the decision:
UBC has existing license agreements with over 950 publishers
providing access to online resources. UBC’s decision positions us
towards a sustainable future and full adoption of digital learning and
teaching technologies.
UBC remains concerned about the affordability of higher
education, which is borne in part by taxpayers and in part by
students. The measures taken by UBC since its 2011 decision have
positioned it well and enable UBC’s students and faculty to access
teaching and research materials more cost-effectively than if UBC were
to enter into a license based on the model.
The AUCC model license only permits copying of up to 10% of a
work (20% in case of course packs) and only with respect to a narrow
repertoire that is almost exclusively print-based. Therefore, the
license would not be cost-effective for UBC and does not absolve
faculty members and students from the need to respect the legal rights
of copyright owners.
UBC deserves great credit for taking a principled stand at a time when
the AUCC has abdicated its leadership on the copyright issue and many
other universities seem likely to sign the agreement since the costs
can simply be pased along to students. While there are obviously risks,
there is also the opportunity for great rewards as UBC may position
itself as a national leader at a time that other universities are
content to take a major step backward.
The government yesterday gave notice
of time allocation
on the Bill C-11 debate, which will cut short the debate over the
copyright bill. The move does not come as a surprise, given the
willingness to use time allocation for other bills and the
Conservatives' consistent position that it will not further amend the
bill. As I've stated repeatedly, there is much to like in Bill C-11
including expanded fair dealing, new consumer exceptions, new rights
for user generated content, the notice-and-notice approach for ISPs,
and the a cap on non-commercial statutory damages (this came up during
the House of Commons debate as Conservative MP Chris Alexander quoted
my comment on some of the balanced provisions but omitted the criticism
on digital locks). Moreover, the decision to reject demands
for website blocking, notice-and-takedown, an iPod tax, and disclosure
of subscriber information suggest that the bill could have been
considerably worse.
However, the decision to leave the digital lock rules unchanged remains
the bill's biggest flaw and given the widespread opposition to the
approach makes a mockery of Canadian Heritage Minister James Moore's
insistence that the bill reflects the public support. Yesterday, Moore defended
the approach: Read More ...
With regard to digital locks, the
legislation would maintain fidelity within the spirit and intent of the
WIPO treaties, which is that the government does not impose digital
locks or TPMs on anything. We are respecting the rights of those who
wish to protect their own creations with digital measures if they
choose to. This is about empowering citizens, creators, those who
invest in software, video games, movies and television shows. This is
about protecting their right to protect themselves from those who would
steal from them. This is not about the government imposing anything.
This is about respecting international law, respecting WIPO and
respecting those who wish to protect themselves from those who would
steal from them. It is a pretty simple concept.
Meanwhile, Conservative MP Robert Goguen argued
that "if we do not have locks, it will wipe out the industry."
Both comments demand a response. As Moore surely knows, the Bill C-11
approach on digital locks goes far beyond the requirements needed to
respect international law or comply with WIPO. There are dozens of
countries that have implemented digital lock rules with more
flexibility than the Canadian approach. Further, a review
of the creation of the WIPO Internet treaties demonstrates that a more
flexible approach is wholly consistent with their spirit and intent. As
for claims that no locks will wipe out the industry, note that Canadian
digital music sales have now grown faster than U.S. sales for the past
six consecutive years, all without digital lock legislation.
The reality is that the digital lock rules were overwhelmingly
opposed as part of the 2009 national copyright consultation and
generated strong opposition from opposition
political parties, business groups, creator associations, consumer
groups, and education representatives. During the committee
process both the NDP and Liberals proposed
numerous amendments to the digital lock rules, all of which were
defeated. Yesterday, the Green Party's Elizabeth May proposed further
amendments (May cited me in a tweet
on the proposed amendments, but my
help on the digital lock rules was largely limited to pointing to my public
submission
to the Bill C-32 committee). Those amendments are also likely to be
defeated, creating yet one more lost opportunity to amend a bill that
seems destined to pass in much the same form as when it was introduced
in June 2010.
Bill C-11, the copyright reform bill, is scheduled for debate today,
with a long list of proposed
amendments
from the Green Party's Elizabeth May and from Bloc MP André
Bellavance. Given the government's previous rejection of NDP and
Liberal amendments, there is little reason to believe any of these
proposals with garner support. That said, May's proposals offer
sensible changes to many of the most criticized elements of the bill,
particularly the digital lock rules. Her proposals include:
linking circumvention to copyright infringement
creating a new notice requirement for the inclusion of digital
locks
creating a new qualified circumventer system, similar to that
found in New Zealand
adding a new digital lock exception to protect minors
removing the digital lock restrictions for time shifting and
backup copies
adding a system to allow the Copyright Board to create new
digital lock exceptions
removing the requirement that students destroy lesson materials
under a new exception within 30 days of the course concludes
removing the requirement for schools to use digital locks to stop
further communication of lessons subject to a new exception
removing the requirement that libraries take measures to ensure
digital inter-library loans cannot be used for more than five business
days
A previous May proposal to create new limits to education fair dealing
has been dropped, though she is proposing giving the Governor in
Council the power to create regulations to define "education" for the
purposes of fair dealing.
As is the case with all mergers involving Canadian broadcast companies,
the proposed Bell Media purchase of television and radio giant Astral
immediately generated interest in the Canadian television production
community, who anticipated yet another huge payday that follows from
each of these deals. The Canadian Radio-television and
Telecommunications Commission, which must approve the transaction,
requires purchasers to "make clear and unequivocal commitments to
provide tangible benefits representing 10 percent of the value of a
transaction" (the percentage for television assets is typically 10
percent and 6 percent for radio assets).
Given the rapid pace of consolidation in the Canadian broadcasting
industry, the size of these tangible benefits packages, which often
provide funding for new Canadian productions, has grown dramatically in
recent years. In 2007, Astral’s
purchase of Standard Radio led to a $12
million benefits package, Rogers
acquisition of five CITY-TV stations
resulted in a $37.5 million benefits package, and CTVglobemedia’s
purchase of CHUM netted over $100 million. In 2010, Shaw’s
purchase of
Canwest Global generated a $180 million benefits package. The Bell
purchase of CTVglobemedia in 2011 topped that with a $239 million
benefits package and now the Bell Media - Astral deal could be even
bigger.
With over $750 million from these deals alone, the benefits policy has
clearly succeeded in generating new capital for the creation of
Canadian programming. Yet with so much at stake, my weekly technology
law column (Ottawa
Citizen version, homepage
version) asks whether the current approach optimizes what has
emerged as one of the
largest sources of media funding in Canada.
The benefits system typically involves a two-stage process. First, the
purchaser starts by arguing that its contribution should be lower than
the CRTC’s 10 percent standard. For example, Shaw argued that it faced
additional uncertainties since it was purchasing Canwest Global out of
bankruptcy protection. The CRTC agreed and used a lower figure for a
portion of the transaction.
Once the CRTC settles on the value of the transaction and the
percentage of benefits, the second stage involves a battle over how to
allocate the money. The purchaser invariably wants to direct funding
toward its own projects. In 2010, the CRTC allowed Shaw to allocate $23
million toward new digital transmitters, while Bell’s 2011 benefits
package included $60 million for its satellite service and $30 million
for its newly acquired A Channel stations.
Meanwhile, producers simply want millions allocated toward new
programming and other groups are happy to scoop up whatever is left. In
the 2011 Bell deal, $3 million was marked for a new Canadian Broadcast
Participation Fund, which will allow public interest groups to
intervene in broadcasting cases before the CRTC.
While the beneficiaries welcome the benefits payments, the entire
system leads to questionable expenditures and conflicted policy. Groups
that might otherwise raise concerns about unprecedented marketplace
consolidation mute their criticisms for fear of being shut out of the
benefits payday. The purchasers build the ten percent contribution into
their transaction cost, direct much of the money to projects that
further their own self-interest, and use the system to deflect broader
policy concerns.
The CRTC is ultimately called upon to adjudicate this mess, yet it has
no real expertise in determining how to spend $750 million. A far
better approach would be to separate stage one (the size of the
transaction and the amount of the benefits package) from the stage two
specific allocations. The CRTC could determine the total size of the
package during its review of the transaction, but could take the
specifics of how to spend the money out of the hands of purchasers and
producers by shifting toward a more conventional peer-reviewed granting
process.
While no one wants to rock the boat, the current system leads to
dubious proposals and primarily benefits established players who know
how to navigate the system. If Canada wants to encourage new media and
new entrants, a new system is needed.
Earlier this year, I appeared at the European Parliament's INTA
Committee Workshop on ACTA where I reached the following conclusion:
This report concludes that ACTA's
harm greatly exceeds its potential benefits. Given ACTA’s corrosive
effect on transparency in international negotiations, the damage to
international intellectual property institutions, the exclusion of the
majority of the developing world from the ambit of the agreement, the
potentially dangerous substantive provisions, and the uncertain
benefits in countering counterfeiting, there are ample reasons for the
public and politicians to reject the agreement in its current
form. In
doing so, governments would help restore confidence in the global
intellectual property system and open the door to a new round of
negotiations premised on transparency, inclusion, and evidence-based
policy-making.
While I previously posted my opening
remarks and a video
of comments,
I was unable to post the full report until granted approval by the
European Parliament INTA Committee (the Dutch government issued a response
to my comments). That report
is now available for download and is part of a full report
on the workshop that includes all the background reports and a
summary of the workshop discussion. My analysis
follows the same format as the comments but offers more detailed
analysis and discussion.
The Standing Committee on Industry, Science and Technology, fresh off
its e-commerce study, kicks off a new study on intellectual property
this morning. The study will apparently focus
on "the important role of intellectual property in Canadian
innovation and leading edge technology." Today's
hearing will feature witnesses from CIPO and Industry Canada's IP policy
office. The other witnesses have not been announced, but it is
essential that the committee hear from independent experts and
innovative companies who go beyond cheerleading intellectual property
under the "more is better" mantra by also pointing to the risks from
overbroad patent laws that can harm innovation, restrictive trademark
protections that can stifle free speech, and inflexible copyright laws
that undermine innovation and leading edge technologies. The challenge
for the committee is to ensure that it strikes a balance so that it can
develop an informed report that provides useful recommendations for
future government action.
The government posted its Reports on
Plans and Priorities for dozens of departments and agencies
yesterday. The Industry
Canada report
makes for interesting reading as there is a section on the still
missing Digital Economy Strategy that includes targets for e-commerce
buying and selling in Canada. The department states:
Industry Canada will continue to
implement measures in support of the Digital Economy Strategy to
accelerate adoption of digital technologies, promote trust and
confidence in the online marketplace and foster a globally competitive
ICT sector based on a modern legislative framework, a robust digital
infrastructure and a digitally skilled workforce.
Leaving aside the fact that there is no digital economy strategy - or
at least the government has still not released the long overdue
document - the report also includes a target to determine whether the
Canadian online economy is "governed by an effective policy and
regulatory framework." The government's performance indicator is the
percentage of Canadians buying and selling online, with the targets set
at 43% of Canadians buying and 15% selling.
If anyone needed confirmation that the government, now led on this file
by Industry Minister Christian Paradis, is completely clueless when it
comes to the digital economy strategy, these targets provide it.
First, there are multiple factors that comprise success in the Canadian
digital economy (overall sales, new Canadian Internet companies,
venture capital investment, global traffic, business use of e-commerce,
etc.) such that merely
relying on purchasing habits are insufficient.
Second, the government could not have set a less ambitious target.
According to the Statistics Canada 2010 Canadian Internet Use survey, 51%
of Canadian Internet users ordered goods or services for personal
or household use in 2010, while 19%
of Internet users
sold goods or services. The Statscan data admittedly covers Internet
users (as discussed below comprising 80% of the population), while the
government is interested in all Canadians, but the two-year old data
suggests Canadians are already at or above the digital economy targets.
This week's Industry
Committee report on e-commerce cites similar data and indicates
that 54% of Internet users had placed online orders by 2009. Given how
long Canadians have waited for a digital economy strategy, it
is hard to believe the government is setting outdated targets before
even releasing the strategy document.
In fact, Industry Canada also identifies two
additional targets
with respect to e-commerce that provide further cause for
concern.
First, it sets a target of 65% of Canadian businesses being aware of
their responsibilities and compliance obligations under Canada's
privacy laws. Given that private sector privacy legislation took effect
in 2001 (broadly applicable in 2004), setting a target that
acknowledges that one-third of all Canadian businesses will not even be
aware of their legal obligations with respect to privacy is incredibly
weak. In fact, the Privacy Commissioner of Canada sets a target of 90%
awareness among private sector organizations in its report.
In addition, the department has set a target of 86% of Canadians using
the Internet. The last Canadian
Internet Use Survey,
based on 2010 data, found that 80% of Canadians use the Internet. While
increasing the 80% figure is laudable, it may be difficult to do with
the government's decision to cancel the Community Access Program, which
was particularly instrumental in providing access to lower income
Canadians. According to Statistics
Canada, nearly 4 in 10 non-users (39%) come from households in the
lowest income quartile.
Dozens of leading U.S. law professors have written
to the U.S. Senate Committee on Finance to express concern about the
lack of constitutional authority to approve the Anti-Counterfeiting
Trade Agreement without submitting it for Congressional approval. May.17/12Comments (0)
Harvard Professor Winston Hide has stepped
down from the editorial board of the prestigious Genomics journal
over the lack of open access. May.17/12Comments (0)
In addition to the UBC decision to not sign the Access Copyright model
licence, the Manitoba Library Association has added
its voice
in opposition to the agreement. Moreover, the Trent University Senate
has adopted a motion stating "that the Senate, in solidarity with the
CAUT, the CFS and dozens of other constituent and governing bodies,
reject this unfair and unreasonable AUCC-Access Copyright 'model
license' and instead affirm and abide by 'the right to fair and
reasonable access to copyrighted works for educational purposes.'"
May.16/12Comments (1)
The Globe's John Ibbitson has a column
that confirms much of the private speculation about lawful access,
namely that the bill is going nowhere so long as Vic Toews remains
public safety minister. This is consistent with the prevailing view
that Toews is so closely associated with the worst of the bill -
warrantless disclosure of subscriber information, new surveillance
technologies, and divisive us vs. them framing - that a change will be
needed for the bill to come back. Ibbitson focuses on the likelihood of
Parliament proroging before the bill is revamped and returns, yet
speculating on those issues is always difficult. What is certain
is
that lawful access will return at some point, meaning Canadians will
need to remain vigilant to ensure that any future bill addresses the myriad of
concerns associated with Bill C-30.
May.16/12Comments (2)
Conservative MP Dean Del Mastro offers up one of the oddest copyright
analogies during the C-11 debate, likening format shifting to socks
and shoes.
May.16/12Comments (11)
The Wall Streeet Journal's MarketWatch picks
up
on Canada's missing digital economy strategy, using the Penske File
framing to discuss the failure of Industry Minister Christian Paradis
to lead on the file.
May.16/12Comments (0)
Ariel Katz has an exhaustive,
4,000 word must-read post
on the Georgia State University fair use decision and some of the
implications for Canadian copyright and the university licensing. Every
Canadian university that signs the Access Copyright letter of intent
today should read this post first.
May.15/12Comments (1)
Queen's University has announced
it will sign a non-binding letter of intent to accept the Access
Copyright - AUCC deal. The University said the non-binding letter of
intent "will allow the university more time to consider whether to
accept the model licence." Look for many universities to follow suit
today as May 15th is the Access Copyright's imposed deadline for an
indication of support. May.15/12Comments (1)
Access Copyright will likely promote many universities signing its
agreement with AUCC tomorrow, but opposition to the deal continues to
mount across the country:
the Queen's University Senate will consider a motion
opposing the AUCC - Access Copyright agreement later this month.
Carleton University's Graduate Students' Association have posted
a public letter
opposing the deal
the B.C. Library Association passed a resolution
urging universities and colleges "not to capitulate to Access
Copyright's unfair and unreasonable demands"
