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Canadian File Sharing Lawsuit Could Upend Copyright Privacy Protections

The centerpiece of Canada’s 2012 digital copyright reforms was the legal implementation of the “notice-and-notice” system that seeks to balance the interests of copyright holders, the privacy rights of Internet users, and the legal obligations of Internet service providers (ISPs). The law makes it easy for copyright owners to send infringement notices to ISPs, who are legally required to forward the notifications to their subscribers. The personal information of subscribers is not disclosed to the copyright owner.

Despite the promise of the notice-and-notice system, it has been misused virtually from the moment it took effect with copyright owners exploiting a loophole in the law by sending settlement demands within the notices.

My weekly technology law column (Toronto Star version, homepage version) notes that the government has tried to warn recipients that they need not settle – the Office of Consumer Affairs advises that there are no obligations on a subscriber that receives a notice and that getting a notice does not necessarily mean you will be sued – yet many subscribers panic when they receive notifications and promptly pay hundreds or thousands of dollars.

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June 28, 2016 1 comment Columns
Open Textbook Summit 2014 Day 1 by BCcampus_News (CC BY-SA 2.0) https://flic.kr/p/narczC

Fictional Claims: Why Kids Are Not Suffering With Canada’s Copyright Fair Dealing Rules

In recent weeks, there has been some media coverage claiming that Canadian educational materials are disappearing in the face of copyright fair dealing rules. For example, several weeks ago, Globe and Mail writer Kate Taylor wrote a column on copyright featuring the incendiary headline that “Kids Will Suffer if Canada’s Copyright Legislation Doesn’t Change.” This week, the CBC provided coverage of a writer’s conference panel with a piece titled “Copyright-free material edging out Canadian texts” that speaks of sales falling off a cliff.

These articles are the latest shots in the battle launched by Canadian publisher and writer groups against fair dealing. The campaign includes regular meetings with Members of Parliament from all parties (speak to almost any MP and they will tell you that they have heard horror stories about Canadian copyright), international letter writing campaigns, and commissioned studies that feature unsubstantiated claims about the state of licensing revenues in Canada (the PWC study comes with the caveat that “we provide no opinion, attestation or other form of assurance with respect to the results of this Assessment”).

While there have been some notable responses from people such as Meera Nair, many copyright watchers have remained largely silent, perhaps assuming that the reliance on false rhetoric will fail to find an audience. It is true that the claims have fallen flat with key independent decision makers such as the Supreme Court of Canada, the Copyright Board of Canada, and the Australian government’s Productivity Commission, but the persistent rhetoric could lead to an inaccurate view of Canadian copyright just as a review of the law is planned for 2017.

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June 23, 2016 7 comments News
Montréal (Île des Sœurs) by JasonParis (CC BY 2.0) https://flic.kr/p/a2nnAu

Ignore the Scare Tactics: The Real Future of Bell Investment in Fibre Networks

Bell’s defeat this week at the Federal Court of Appeal over its MobileTV service marked the second high profile regulatory loss in recent months for Canada’s largest communications company. Last month, the government rejected Bell’s cabinet appeal of a CRTC decision on broadband infrastructure. The CRTC ruling means that companies such as Bell will be required to share their fibre networks with other carriers on a wholesale basis.

Bell’s appeal (and accompanying lobbying effort) was premised on the notion that CRTC regulation would force the company to reconsider its fibre investment. Indeed, its cabinet appeal stated:

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June 22, 2016 4 comments News
iPhone TV by Wesley Fryer (CC BY-SA 2.0) https://flic.kr/p/98ZUNZ

Federal Court of Appeal Upholds CRTC Ruling That Bell Mobile TV Service Violated Telecom Law

In the fall of 2013, Ben Klass, a graduate student in telecommunications, filed a complaint with the CRTC over how Bell approach to its Mobile TV product. Klass noted that Bell was offering a $5 per month mobile TV service that allowed users to watch dozens of Bell-owned or licensed television channels for ten hours without affecting their data cap. By comparison, users accessing the same online video through a third-party service such as Netflix would be on the hook for a far more expensive data plan since all of the data usage would count against their monthly cap.

In January 2015, the CRTC released its decision in the case, siding with Klass. The Commission expressed concern that the service “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.”  While Bell argued that the mobile TV service was subject to broadcast rather than telecom regulation, the CRTC ruled that mobile television services effectively invoked both broadcast and telecom regulation, since a data connection was required to access the service.

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June 21, 2016 0 comments News
Betamax by Joel (CC BY-NC-ND 2.0) https://flic.kr/p/7vT7o1

Why the Federal Court Crackdown on Set-Top Boxes Threatens to Chill Canadian Tech Innovation

The ability to record television programs is a feature that most consumers take for granted today, but when the Sony Betamax was first introduced in the 1970s, it revolutionized television and sparked high profile lawsuits by the major Hollywood studios who wanted to block its availability. The battle between Universal Studios and Sony ultimately made its way to the U.S. Supreme Court, which ruled that Sony was not liable for contributing to copyright infringement since its product had substantial non-infringing uses.

My weekly technology law column (Toronto Star version, homepage version) notes that the battle between established players and distributors of disruptive technologies has since played out many times in courtrooms and legislatures around the world. From the introduction of the portable MP3 player (which the recording industry tried to stop in a 1999 case) to disputes over the availability of virtual private network services, judges and policy makers often return to the U.S. Supreme Court’s recognition that stopping the distribution of new technologies merely because they are capable of infringing copyrights would create an enormous barrier to new products and services that have many different uses.

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June 20, 2016 13 comments Columns