Latest Posts

Beatles Vinyl by Erwin Bernal (CC BY 2.0) https://flic.kr/p/axnRZ4

Canadian Music Industry Hit With Competition Complaint Over Public Domain Recordings

Earlier this year, I wrote about the secret campaign by major record labels and publishers to stop the release of public domain recordings, most notably Beatles records that outsold the offerings from major label records at retail giant Wal-Mart. The campaign included extensive lobbying for an extension in the term of copyright for sound recordings. The government included the extension in the April 2015 budget, with Prime Minister Stephen Harper writing personally to the Graham Henderson of Music Canada to inform him of the change. The reforms were a gift to the recording industry, with the result that Canadian consumers now face higher prices and less choice.

Stargrove Entertainment, the company behind the public domain Beatles releases, has found that the industry is still blocking attempts to bring works in the public domain to market. As a result, this week it filed a complaint with the Canadian Competition Tribunal, claiming that major record labels such as Universal Music and Sony Music, music publishers, and CMRRA are violating Canadian competition law by refusing to deal, engaging in illegal price maintenance, and exclusive dealing. The company is seeking an order requiring the companies to provide a mechanical licence so that it can continue to produce and sell public domain records. The complaint (CT-2015-009) should be posted on the Tribunal site shortly.

The complaint tells a fascinating behind-the-scenes tale, with the recording industry doing everything in its powers – including posting false reviews and pressuring distributors – to stop the sale of competing records. The complaint notably identifies Universal Music Canada as a key player in the alleged activities, including former President Randy Lennox, who last week jumped to Bell Media.

Read more ›

September 1, 2015 0 comments News
Senado / Senate by Márcio Cabral de Moura (CC BY-NC-ND 2.0) https://flic.kr/p/9LDyaV

Senate Reports Give a Glimpse of Potential Future Digital Policies

The trial of Senator Mike Duffy featured several notable revelations last week about the inner workings of the Prime Minister’s Office. One of the most important was found in a 2013 memo written by former chief of staff Nigel Wright that focuses on the control exerted by the PMO over the Senate. While the Senate is nominally an independent body of “sober second thought”, the memo highlights how the PMO expects Senate leadership to follow directions from the Prime Minister and to avoid developing policy positions without advance consultations and approval.

For anyone who has followed Senate committee reviews of legislative proposals, the Wright memo is not particularly surprising. This past spring, a Senate committee review of Bill C-51, the controversial anti-terrorism legislation, heard from experts such as the Privacy Commissioner of Canada about much-needed reforms. Yet once it was time to vote, the committee left the bill unchanged, lending an air of theatre to the entire process.

My weekly technology law column (Toronto Star version, homepage version) notes that assuming that policy control over Senate committee remains a priority, a recent batch of Senate reports provides new insights into future Conservative policies. Weeks before the election call, Senate committees began releasing long-awaited reports on a wide range of issues including national security, digital commerce, and the future of the CBC. In fact, more Senate committee reports were released in June and July (15 in total) than in the previous 18 months combined.

Read more ›

August 25, 2015 2 comments Columns
07290271 by SumOfUs (CC BY 2.0) https://flic.kr/p/wE5K8y

Premature Capitulation: How Canada Caved at the TPP Talks in Hawaii

Late last month, Canada joined eleven other countries including the United States, Japan, and Australia in Hawaii for what many experts expected would be the final round of negotiations on the Trans Pacific Partnership. According to media reports, the Canadian government was among those expecting the talks on the proposed trade deal that covers nearly 40 per cent of world GDP to conclude, with officials lining up the corporate community to immediately express their support for the agreement.

However, negotiators left Hawaii empty handed, as disputes over intellectual property laws, safeguards and tariffs for the dairy and sugar industries, as well as disagreement over the auto sector, could not be resolved.  With Canada plunged into an election campaign hours later, the government sought to assure its TPP partners that it could continue to negotiate even while acting in a “caretaker” capacity.

My weekly technology law column (Toronto Star version, homepage version) notes that while those negotiations are expected to resume in the weeks ahead, sources advise that Canada dropped numerous demands on key patent and copyright issues in Hawaii, likely in the mistaken belief that a concluded deal was imminent. Indeed, after withholding agreement on critical issues such as anti-patent trolling rules, website blocking, restrictions on digital locks, trademark classification, and border enforcement, Canadian negotiators caved to U.S. pressure but failed to garner agreement.

Read more ›

August 17, 2015 6 comments Columns
Net Neutrality rally by Alistair (CC BY-NC 2.0) https://flic.kr/p/4RFiJd

Why Canada’s Net Neutrality Enforcement is Going at Half-Throttle

Canada’s net neutrality rules, which require Internet providers to disclose how they manage their networks and to treat content in an equal manner, were established in 2009. The policy is administered by the Canadian Radio-television and Telecommunications Commission (CRTC), which releases quarterly reports on the number of complaints it receives and whether any have been escalated to enforcement actions.

At first glance, the reports on the so-called Internet traffic management guidelines suggest that net neutrality violations are very rare. My weekly technology law column (Toronto Star version, homepage version) notes that last year, there were typically a few complaints each month and all were quickly resolved. The CRTC does not disclose the specific targets or subject matter of the complaints.

Yet according to documents obtained under the Access to Information Act, the complaints and their resolution give cause for concern. There are generally two types of complaints: those involving throttling technologies that limit speeds to render real-time services unusable or treat similar content in different ways, and quality-of-service issues that seem like throttling to the customer.

Read more ›

August 10, 2015 6 comments Columns
Netflix - Generic Photo - Creative Commons by Matthew Keys (CC BY-ND 2.0) https://flic.kr/p/vsTUgA

Netflix Taxes and Canadian Digital Issues in the Election Spotlight

This week my regular technology law column (Toronto Star version, homepage version) focused on the long election campaign and the prospect that digital issues might get some time in the spotlight. The column pointed to three broad themes – what comes after Bill C-51, the Trans Pacific Partnership, and a digital strategy 3.0. As part of the digital strategy discussion, I stated that questions abound, including “are new regulations over services such as Netflix on the horizon?”

Prime Minister Stephen Harper addressed that question yesterday with a video and tweet in which he pledged that the Conservatives will never tax digital streaming services like Netflix and Youtube. Harper added that the Liberals and NDP have left the door open to a Netflix tax, but that he is 100% opposed, “always has been, always will be.” Both opposition parties quickly responded with the NDP saying they have not proposed a Netflix tax and the Liberals saying they have never supported a Netflix tax and do not support a Netflix tax.

So is this much ado about nothing?

Read more ›

August 6, 2015 12 comments Columns