The Toronto Sun reports that anti-counterfeiting lawyer Lorne Lipkus believes that a Private Member's bill focusing on expanded copyright will be introduced shortly. There is no word on which MP is working with copyright lobbyists, but the bill will apparently including tougher sentences and increased seizure powers at the border. Dec.03/09Comments (7)
The National Post reports that CARFAC, which represents Canadian visual artists, has filed a complaint against the National Gallery of Canada. CARFAC is seeking a new royalty for the use of members' works on the National Gallery website. Dec.03/09Comments (1)
C-393, a Private Member's bill designed to improve the current access to medicines legislation, has passed second reading in the House of Commons. I wrote about the problems with the current system earlier this year. Dec.03/09Comments (0)
The Electronic Commerce Protection Act received first reading in the Senate on Monday with plans for second reading tomorrow. It will then go to the Senate Standing Committee on Transport and Communications for review. Dec.03/09Comments (0)
Facing an advertising lawsuit of its own, Rogers has filed suit against Bell over its wireless advertising claims. Rogers notes that Bell has virtually no customers on its new network and cannot substantiate reliability claims. Dec.03/09Comments (0)
Oxfam has expressed concern about the impact of ACTA on poor countries and people. It rightly fears that the treaty could make it more difficult for the poor to access generic medicines. Dec.02/09Comments (1)
The Public Interest Advocacy Centre has released a major new report on net neutrality. Staying Neutral: Canadian Consumers and the Fight for Net Neutrality, canvasses recent decisions and makes recommendations for future actions. It arises from six focus groups conducted in Vancouver, Toronto, and Montreal. Dec.02/09Comments (0)
Facing an advertising lawsuit of its own, Rogers has filed suit against Bell over its wireless advertising claims. Rogers notes that Bell has virtually no customers on its new network and cannot substantiate reliability claims. Dec.02/09Comments (2)
The Canadian Medical Association Journal has announced that it will cease being an open access journal beginning in January 2010 with plans to restrict some content to subscribers. Canadian medical researchers who wish to publish in an open access journal can still publish in Open Medicine, a peer-reviewed, independent open access journal edited by the former CMAJ editorial team. Dec.01/09Comments (1)
The Anti-Counterfeiting Trade Agreement made it to the floor of the House of Commons yesterday as NDP MP Charlie Angus raised concerns about the agreement, the lack of transparency, and questions about whether the recent copyright consultation was little more than theatre given the prospect that ACTA will decide what Canadian copyright law ultimately looks like.
Industry Minister Tony Clement responded by arguing that the ACTA is not law in Canada, stating that it is "subservient" to domestic law. While that is true for the moment, once it is completed the pressure to implement - much like the WIPO Internet treaties - will be enormous. Clement also stated that people interested in the treaty could check out my website to learn more. While I appreciate the shout-out, it should be obvious to everyone that this website is not a replacement for full and frank disclosure on ACTA and the Canadian government's position on the treaty. A full Hansard transcript of the exchange, along with the YouTube version, follows below:
Angus: Mr. Speaker, the European Union has leaked details of the secret ACTA negotiations in Korea and guess what? It has exposed the industry minister's so-called public consultations on copyright as a total sham, because ACTA will deep six Canada's ability to establish copyright policy. Further, it will strip thousands of citizens from the right to even use the Internet under the idiotic “three strikes and you are out“ policy. The government has no right to negotiate away our domestic copyright laws. Will the minister table in the House the mandate letter that was given to the negotiators to start the ACTA talks?
Clement: Mr. Speaker, despite the hon. member's fear-mongering, the Government of Canada has not adhered to or agreed to anything in the ACTA negotiations. The ACTA negotiations are in fact subservient to any legislation that is put forward in the House. In good faith, I and my colleague, the hon. Minister of Canadian Heritage and Official Languages, talked to the people of Canada, talked to stakeholders about a future copyright bill. We are proud of the fact that we have had that consultation because we got some good ideas, even from some NDPers.
Angus: Mr. Speaker, the ACTA provisions read like a wish list for the U.S. corporate lobby because it will override any flexibility for WIPO, it will gut our domestic copyright policies and it will criminalize thousands of Internet users through the three strikes provision. Canada needs a minister who is willing to stand up for the innovation agenda, not a minister who is acting like a hand puppet for the U.S. embassy. Why will the minister not table the ACTA negotiations so we can open it to public scrutiny?
Clement: Mr. Speaker, if the hon. member wants to read more about it, he could go to Michael Geist's website. The fact is that anything that goes on in ACTA is completely subservient to what we as parliamentarians decide on this issue. We have gone further in terms of ensuring the public is aware of the issues involved in copyright renewal and reform than any other government and we are proud of that record.
The Electronic Commerce Protection Act, Canada's anti-spam bill (Bill C-27) passed through the House of Commons yesterday as a motion to support sending the bill to the Senate received approval. The bill received all-party support but will undoubtedly face an intense lobbying campaign at the Senate. Copyright lobbyists, real estate agents, and marketing survey companies were among the most aggressive lobby groups seeking changes when the bill was considered by the Industry Committee. Clement stood his ground and the resulting bill is a good one. Indeed, the lobbying efforts and attempts to weaken the bill did not go unnoticed. During yesterday's discussion in the House, NDP MP Brian Masse, the party's representative on the Industry Committee, noted "when it gets to the Senate we will see whether or not there is going to be another lobby effort either to kill the bill or to weaken it some more."
Meanwhile, Liberal MPs who failed to garner support for their reforms were still pressing for changes. MP Siobhan Coady stated "while the Liberal Party believes the bill remains unnecessarily restrictive to legitimate business in its approach in many regards, we will support the bill at third reading as action must be taken against spam. We will monitor the legislation closely going forward to ensure that it does not stifle legitimate electronic commerce in Canada." Getting C-27 through the House is a big step, but the lobby attempts to water down the bill will no doubt be back for another round as the bill hits the Senate.
The European Commission analysis of ACTA's Internet chapter has leaked, indicating that the U.S. is seeking to push laws that extend beyond the WIPO Internet treaties and beyond current European Union law (the EC posted the existence of the document last week but refused to make it publicly available). The document contains detailed comments on the U.S. proposal, confirming the U.S. desire to promote a three-strikes and you're out policy, a Global DMCA, harmonized contributory copyright infringement rules, and the establishment of an international notice-and-takedown policy.
The document confirms that the U.S. proposal contains seven sections:
Paragraph 1 - General obligations. These focus on "effective enforcement procedures" with expeditious remedies that deter further infringement. The wording is similar to TRIPs Article 41, however, the EU notes that unlike the international treaty provisions, there is no statement that procedures shall be fair, equitable, and/or proportionate. In other words, it seeks to remove some of the balance in the earlier treaties. Paragraph 2 - Third party liability. The third party liability provisions focus on copyright, though the EU notes that it could (should) be extended to trademark and perhaps other IP infringement. The goal of this section is to create an international minimum harmonization regarding the issue of what is called in some Member States "contributory copyright infringement". The U.S. proposal would include "inducement" into the standard, something established in the U.S. Grokster case, but not found in many other countries. This would result in a huge change in domestic law in many countries (including Canada) as the EU notes it goes beyond current eu law. Paragraph 3 - Limitations on 3rd Party Liability. This section spells out how an ISP may qualify for a safe harbour from the liability established in the earlier section. These include an exemption for technical processes such as caching. As reported earlier, ACTA would establish a required notice-and-takedown system, which goes beyond Canadian law (and beyond current EU law). Moreover, ACTA clearly envisions opening the door to a three-strikes and you're out model, as the EU document states:
EU understands that footnote 6 provides for an example of a reasonable policy to address the unauthorized storage or transmission of protected materials. However, the issue of termination of subscriptions and accounts has been subject to much debate in several Member States. Furthermore, the issue of whether a subscription or an account may be terminated without prior court decision is still subject to negotiations between the European Parliament and the Council of Telecoms Ministers regarding the Telecoms Package. Paragraph 4 - Anti-circumvention Provisions.ACTA would require civil and criminal penalties associated with anti-circumvention provisions (legal protection for digital locks). The EU notes that this goes beyond the requirements of the WIPO Internet treaties and beyond current EU law which "leaves a reasonable margin of discretion to Member States." The EU also notes that there is no link between the anti-circumvention provisions and copyright exceptions. The U.S. proposal also requires the anti-circumvention provisions to apply to TPMs that merely protect access to a work (rather than reproduction or making available). This would again go beyond current EU law to include protection against circumventing technologies like region coding on DVDs. From a Canadian perspective, none of this is currently domestic law. As previously speculated, the clear intent is to establish a Global DMCA. Paragraph 5 - Civil and Criminal Enforcement of Anti-Circumvention. This section requires both civil and criminal provisions for the anti-circumvention rules, something not found in the WIPO Internet treaties. The anti-circumvention provisions are also designed to stop countries from establishing interoperability requirements (ie. the ability for consumers to play purchased music on different devices). The EU notes that this not consistent with its law, which states "Compatibility and interoperability of the different systems should be encouraged." Of course, might reasonable ask why such a provision is even in ACTA. Paragraph 6 - Rights Management Information protection. This section includes similar criminal and civil requirements for rights management information. Paragraph 7 - Limitations to Rights Management Information protection.
In summary, the EU analysis confirms the earlier leak (though the Internet chapter has seven sections, rather than five). The fears about the U.S. intent with respect to ACTA are confirmed - extending the WIPO Internet treaties, creating a Global DMCA, promoting a three-strikes and you're out model, even stopping efforts to create interoperability mandates. ACTA would render current Canadian copyright law virtually unrecognizable as the required changes go far beyond our current rules (and even those contemplated in prior reform bills). This begs the question of whether the Department of Foreign Affairs negotiation mandate letter really goes this far given the domestic changes that would be required. This latest leak also reinforces the need for all governments to come clean - releasing both the ACTA text and government analysis of the treaty should be a condition of any further participation in the talks.
isoHunt, the Canadian-based Torrent search engine, has filed a follow-up statement of claim against the Canadian Recording Industry Association as it seeks a declaration that it is operating legally in Canada. The filing is well worth reading as it explains BitTorrent technology and argues that isoHunt is a P2P search engine that merely indexes torrent files found on other indexing sites (it describes itself as a Super-Indexer). Further, it notes the limits of its involvement in the copying process as well as its compliance with the DMCA notice-and-takedown system. isoHunt clearly tries to position itself as a specialized search engine that does not host infringing content. The filing is the second in the case. CRIA challenged isoHunt's earlier filing, arguing that a full trial was needed. The B.C. courts agreed and this marks the continuation of the case.
The CRIA response will be interesting since it faces a conflict between its rhetoric and its view of Canadian law. On the one hand, it has argued that the isoHunt case is indication that Canadian law is out-of-date, suggesting that it provides a clear sign that reform is needed. On the other, given that it initiated cease and desist letters, it is unlikely to simply say that isoHunt is correct and that it is operating legally. In other words, if it challenges isoHunt's claims, it acknowledges that it believes that Canadian law can be used to stop torrent search sites. If it doesn't make such an argument, it can continue to make the claim for reform, but it loses the case.
Justice Minister Rob Nicholson today tabled the Child Protection Act (Online Sexual Exploitation). As widely reported, Bill C-58 creates a mandatory disclosure requirement on Internet providers where they become aware of child pornography websites or have reason to believe a subscriber is using their service to violate child pornography laws. Where an Internet provider submits a report on a user, they must preserve the relevant computer data for 21 days and they are prohibited from disclosing the disclosure to the customer. Failure to report may result in fines or imprisonment and providers are granted immunity from liability for reporting the activity. The definition of Internet provider is broad, extending beyond just ISPs to include those providing Internet access, hosting, or email services. In other words, services like Google, Hotmail, and Facebook are all covered.
The bill shares similarities with provincial laws (ie. Ontario) and those that report under the provincial law are exempt from the federal version. While few will criticize a bill targeting child pornography - everyone agrees that child pornography is abhorrent and we need to ensure that we have laws to deal with the problem - it is hard to see what this bill actually accomplishes. Canada already has: Read More ...
law enforcement focused on child pornography virtually to the exclusion of all other online issues
Further, while there are reports that Canada is a source of child pornography websites, a major European based study concluded that focusing on the World Wide Web and blocking content makes little sense in trying to combat child pornography (the same report found that image blocking initiatives like the Canadian Project Cleanfeed are ineffective). Instead, the real problems lies in dissemination of child pornography in newsgroups, private groups, and other private spaces that fall largely outside the potential for tips envisioned by Bill C-58 or Canada's Project Cleanfeed.
Multiple reports today indicate that opposition is growing in Europe to plans for three-strikes policies that could lead to the termination of Internet access for some subscribers. In the U.K., protests are mounting over those plans in the recently introduced Digital Economy Bill. The BBC reports that thousands of people have signed a petition urging the government to reconsider its approach, while the Open Rights Group says it has seen a big spike in membership. The UK's Internet Service Provider Association has unsurprisingly voiced its opposition, stating "rather than focusing blindly on enforcement, the government should be asking rights holders to reform the licensing framework so that legal content can be distributed online to consumers in a way that they are clearly demanding." The Telegraph reports popular author Stephen Fry has lent his support to opposing the bill, vowing to urge people to sign the petition until a million people have signed on.
Meanwhile, European Union Telecom Commissioner Vivianne Reding has warned Spain against adopting a three-strikes model without a procedure before a judge. Reding added: Read More ...
"The new internet freedom provision now provides that any measures taken regarding access to and use of services and applications must always respect the fundamental rights and freedoms of citizens. Effective and timely judicial review is as much guaranteed as a prior, fair and impartial procedure, the presumption of innocence and the right to privacy. We need to find new, more modern and more effective ways in Europe to protect intellectual property and artistic creation. Repression alone will certainly not solve the problem of internet piracy; it may in many ways even run counter to the rights and freedoms which are part of Europe's values since the French Revolution."
The Spanish telecommunications industry is reportedly puzzled by the comments since the Spanish government has made it clear it does not plan to adopt a three-strikes approach. Reding's comments - along with the protests in the UK - provide an important reminder that three-strikes remains highly controversial and is opposed by thousands of people as well as leading politicians.
In the weeks leading to the CRTC hearing on broadcasting licences, Canadians were inundated with splashy advertising campaigns claiming that new fees for local signals were either a TV tax or would save local television. With all of the major broadcasters and cable companies appearing before the commission, the fee-for-carriage (or value-for-signal) issue unsurprisingly took centre stage at last week's hearing.
Yet those convinced that the broadcaster plan was limited to a new fee were in for a rude awakening. My weekly technology law column (Toronto Star version, homepage version) notes that fee-for-carriage is only part of the story, as broadcasters are also seeking to block U.S. signals, leave some Canadian communities without over-the-air television, and delay the transition to digital television transmission until 2013.
The prospect of blocking U.S. television signals will come as a shock to many, but both CTV and Canwest, Canada's two largest private broadcasters, have asked the CRTC to establish a new program deletion policy. Read More ...
For many years, Canadian broadcasters have benefited from simultaneous substitution, which allows them to air U.S. programs at the same time as U.S. broadcasters but to substitute their broadcast (complete with advertisements) on both channels. That policy is the reason programs such as House or Desperate Housewives air simultaneously in the U.S. and Canada, creating an important commercial advantage for Canadian broadcasters.
The broadcasters now wish to expand the simultaneous substitution policy with program deletion. It would provide that when a Canadian broadcaster purchases the rights to a U.S. program, they would have the right to air it whenever they choose within a seven-day window. The hook is cable and satellite companies would be required to block the U.S. broadcast of the same program if it did not air simultaneously.
The proposal, which would lead to millions of Canadians regularly encountering blank screens instead of expected programs, would perversely increase the attractiveness of U.S. programming. Moreover, given the increasing expectation of on-demand program viewing, it seemingly would send more Canadians away from broadcast television to the Internet where there are no blackout messages and most programs are readily available in both legal and illegal forms.
The broadcasters also confirmed some Canadian communities will lose their over-the-air signal as part of the transition from analog to digital. For decades, Canadian broadcasters have used spectrum to transmit over-the-air analog broadcast signals; estimates indicate ten percent of Canadians still rely on over-the-air TV signals.
The shift to digital transmission brings several advantages including better image and sound quality and more efficient use of spectrum that will open the door to new telecom services. Yet the broadcasters are not willing to invest in digital transmitters for all communities, leaving residents of Kingston, Sudbury, Thunder Bay, and Kelowna (among others) without over-the-air signals.
Moreover, the broadcasters admit they will not be able to complete the transition by the August 31, 2011 deadline. Instead, they now target 2013, four years later than their U.S. counterparts.
A delay necessarily will hold up the availability of new spectrum to be freed-up as part of the transition. This spectrum - known as the 700 MHz spectrum - opens up a host of possibilities for new innovation, competitors, and open Internet access. For Canadians anxious for new entrants into the wireless sector, delayed availability of the spectrum will mean more delays in spectrum auctions, keeping the market at a stand-still and costing taxpayers billions of dollars in lost spectrum revenue.
If the plan is fully adopted, Canadians would be left with blacked out broadcasts, lost spectrum revenue, and delayed telecom competition. After a week of hearing from broadcasters and cable companies, it is clear that the hearing is about far more than TV taxes and saving local television.
The OECD has released new data on its global counterfeiting estimates, concluding that the share of counterfeit and pirated goods in world trade is estimated to have increased from 1.85% in 2000 to 1.95% in 2007. That represents an increase to $250 billion worldwide. That is obviously a big number, but notably far lower than the claims from ACTA supporters. Copyright lobby groups have long claimed - without empirical support - that counterfeiting and piracy represents 5 - 7% of global trade. The OECD data indicates those claims are wildly exaggerated.
This is particularly relevant in Canada where counterfeiting claims have been based on the same faulty data (the international story is similar). For example, the Chamber of Commerce's IP Council claimed in its report on IP that "it has been conservatively estimated that counterfeiting and piracy cost the Canadian economy $22 billion annually in lost tax revenue, investment and innovation." The source for this claim is a speech by Chamber President Perrin Beatty. Similarly, the Ontario Chamber of Commerce has argued: Read More ...
The US Chamber of Commerce estimates that counterfeiting and piracy costs the US economy approximately $250 billion per year. Given that the GDP of the Canadian economy is approximately nine per cent of the US economy, the cost of counterfeiting and piracy in Canada is approximately USD $22.5 billion.
As I reported a couple of years ago, there are two related sources for the claims that puts Canadian counterfeiting over $20 billion. The first was a CTV news report that was based on a completely unsubstantiated claim that claimed 20% of the Canadian market is "pirate product." The second was a 2005 powerpoint presentation from the Canadian Manufacturing and Exporters that featured a single bullet point claiming $20 - 30 billion in losses annually. The source for that claim was simply taking 3 - 4 % of the value of Canadian trade.
The OECD data would suggest that counterfeiting in Canada is far lower than these estimates. Using the basic metric of percentage of trade, Canada represents about 2.8% of world trade or roughly $7 billion of $250 billion (in a $1.4 trillion economy). That number is less than one-third the claims of the Ontario Chamber of Commerce.
In fact, there is reason to believe that the Canadian number is actually even lower. The OECD also ranks all countries through a "General trade-related index of counterfeiting and piracy of economies." Canada fares well - ranking as among the lowest rates of counterfeiting and piracy within the economy among developed countries - with a rate that is lower than Australia, France, Italy, Korea, the Netherlands, Spain, the UK, and the United States (among others). Our low counterfeiting ranking suggests that assuming Canada is equal contributor to counterfeits in line with our trade ranking is likely wrong. Instead, Canada is a low piracy country despite persistent efforts to paint us as a piracy haven.
In the face of widespread criticism of the lack of ACTA transparency, participating governments and music industry lobbyists have claimed that the transparency issue is much ado about nothing. As governments seek to keep relevant information secret, those same governments released a joint statement last week arguing that "it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation."
It is important to emphatically state that this is simply not the case for many multilateral agreements and the activities of international organizations that typically serve as the forum for global agreement discussions. U.S. NGO groups have made a strong case for how ACTA's lack of transparency is out-of-step with many other global norm setting exercises. With regard to international fora, they note that the WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions have all been far more open than ACTA. For example, it notes that the WIPO Internet treaties, which offer the closest substantive parallel to the ACTA Internet provisions, were by comparison very transparent: Read More ...
The two WIPO Internet Treaties (WCT and WPPT) were negotiated in a completely open meeting at the Geneva Convention Center. The public was allowed to attend without accreditation. The draft texts for the WCT and the WPPT were public, and the U.S. government requested comments on the draft texts, which were available, among other places, from the U.S. Copyright Office.
Two other documents offer similar reviews of the transparency of negotiation documents and opportunities for public participation. The inescapable conclusion is that the ACTA approach is hardly standard. Rather, it represents a major shift toward greater secrecy in the negotiation of international treaties on intellectual property in an obvious attempt to avoid public participation and scrutiny.
