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europe infinite copyright by Jose Mesa (CC BY 2.0) https://flic.kr/p/amMHBV

How Canada Shaped the Copyright Rules in the EU Trade Deal

In late December 2009, Wikileaks, the website that publishes secret government information, posted a copy of the draft intellectual property chapter of the Canada – European Trade Agreement (CETA). The CETA deal was still years from completion, but the leaked document revealed that the European Union envisioned using the agreement to mandate a massive overhaul of Canadian law.

The leak generated concern among many copyright watchers, but when a German television station leaked the final text of the agreement last week, it contained rules that largely reflect a “made-in-Canada” approach. Why the near-complete reversal in approach on one of the most contentious aspects of a 500 page treaty?

My weekly technology law column (Toronto Star version, homepage version) notes the starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright.

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August 21, 2014 1 comment Columns
GAC_0031 by icannphotos (CC BY-SA 2.0) https://flic.kr/p/8Z8CzX

Government Control Over Internet Governance: Proposal Would Give the GAC Increased Power over ICANN Board Decisions

The debate over Internet governance for much of the past decade has often come down to a battle between ICANN and the ITU (a UN body), which in turn is characterized as a choice between a private-sector led, bottoms-up, consensus model (ICANN) or a governmental-controlled approach. The reality has always been far more complicated. The U.S. still maintains contractual control over ICANN, while all governments exert considerable power within the ICANN model through the Governmental Advisory Committee (GAC).

While the GAC claims its role is merely to provide “advice” to ICANN, it often seems to take the view that its suggestions can’t be refused. Indeed, late on Friday, ICANN proposed a by-law change that would grant governments even greater control over its decision-making process. At the moment, ICANN looks to various supporting organizations to develop policies designed to represent the views of many different stakeholders, including the GAC. Where the GAC and the ICANN board disagree on a policy issue, the ICANN board decision governs provided that a simple majority of board members vote against the GAC advice and that ICANN provide an explanation for the decision.

ICANN is now proposing that the threshold be increased so that 2/3 of eligible ICANN board members would be required to vote against GAC advice in order to reject it.

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August 18, 2014 6 comments News
Credit Cards by Sean MacEntee (CC BY 2.0) https://flic.kr/p/kkUu3B

From Cell Towers to Credit Card Data: Telecom Privacy Case Reveals Scope of Police Demands for Subscriber Information

Last month, media reports covered a recently released Ontario court decision involving a Peel Regional Police warrant application for subscriber data from Telus and Rogers. The two telecom companies challenged the order, arguing that it was overbroad. The police withdrew the order in favour of a more limited request, but the court decided that the Charter issues raised by the request should still be examined.

The money quote from the judge – “the privacy rights of the tens of thousands of cell phone users is of obvious importance” – captured the attention, but the case is more interesting for the data it provides on police warrant applications for subscriber data. The case reveals that Telus received approximately 2,500 production orders and general warrants in 2013, while Rogers produced 13,800 files in response to production orders and search warrants that year.

Even more interesting is how the police were seeking access to a huge amount of subscriber information by asking for all records involving dozens of cell phone towers, including subscriber data, billing information, bank data, and credit card information.  The specifics as described by the court:

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August 14, 2014 4 comments News
The Ring of ccTLDs #3 by Grey Hargreaves (CC BY 2.0) https://flic.kr/p/9KttQB

Does Anyone Own a Country’s Domain Name?

Earlier this year, a group of U.S. litigants launched an unusual domain name lawsuit. The group consisted of family members of victims of terror attacks they claim were sponsored by the governments of Iran, Syria, and North Korea. The group had succeeded in winning over a billion dollars in damages in several lawsuits filed in U.S. courts.

Unable to collect, they sued the Internet Corporation for Assigned Names and Numbers (ICANN), the body that administers the Internet’s domain name system. Their goal: seize the dot-ir, dot-sy, and dot-kp domain name extensions (the respective country-code domains) by ordering ICANN to transfer them as compensation.

My weekly technology law column (Toronto Star version, homepage version) notes the notion of seizing a country’s domain name extension may sound implausible, but the case is proceeding through the U.S. court system with ICANN filing a brief late last month. ICANN is unsurprisingly seeking to dismiss the case, arguing that the domain name extensions are not property that is capable of seizure (I am a board member of the Canadian Internet Registration Authority, Canada’s dot-ca administrator, but this article represents my own views and not those of CIRA).

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August 12, 2014 0 comments Columns
The Ghost of iCraveTV?: The CRTC Asks Bell For Answers About Its Mobile TV Service in Net Neutrality Case

The Ghost of iCraveTV?: The CRTC Asks Bell For Answers About Its Mobile TV Service in Net Neutrality Case

Before there was Youtube, Hulu, Netflix, and broadcasters streaming their content on the Internet, there was iCraveTV.  iCraveTV, a Canadian-based start-up, launched in November 1999, by streaming 17 over-the-air television channels on the Internet.  The picture was small, connection speeds were slow, but the service was streaming real-time television years before it became commonplace. The company relied upon two Canadian laws to provide the service: the Copyright Act, which contains a provision permitting retransmission of broadcast signals subject to certain conditions, and the CRTC’s New Media Exemption order, which excluded new media broadcasters from regulation.

The company faced an immediate legal fight from Hollywood and broadcasters. Within months of launching, the service shut down. U.S. demands for Canadian law reform ultimately led to changes to the Copyright Act, which effectively excluded “new media retransmitters” from taking advantage of the retransmission provision.

iCraveTV is long forgotten for most Internet users, but the legal framework that ultimately emerged was invoked this week by the CRTC in Canada’s leading net neutrality case.

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August 7, 2014 2 comments News