Last month, I blogged about the CRTC's Talk TV consultation and concerns that the questions were framed in a lopsided manner. CRTC Chair Jean Pierre Blais was asked about those concerns in Twitter chat and he responded that the questions and answers "were intended to be provocative." I address that response in my weekly technology law column (Toronto Star version, homepage version)
highlighting both the concerns with the survey and offering some
additional provocative questions that the Commission excluded.
The column begins by noting that regulation of Internet video services and the prospect of
pick-and-pay television channels headline the second phase of the
Canadian Radio-television and Telecommunications Commission's future of
television consultation which launched late last month. The "TalkTV"
initiative is designed to make it easy for Canadians to participate,
featuring six short scenarios followed by a limited number of choices
Read More ...
While the consultation quickly attracted considerable participation
- the commission said thousands of Canadians responded in the first
week alone - its content raises serious concerns about future plans
for CRTC regulation. Indeed, if the consultation is a signal of
where the commission is headed, not only is the notion of true
pick-and-pay channels dead and the much-disliked simultaneous
substitution alive, but regulation of Internet video services may be
just around the corner.
The Internet video discussion in the survey focuses almost
exclusively on new regulatory fees for services such as Netflix.
After asking respondents whether online services should be required
to contribute to funding for Canadian content, provide
closed-captioning, and adhere to regulated programming standards,
the CRTC poses a series of follow-up questions that all involve
Respondents are asked whether they would pay an extra 50 cents per
month for Canadian-made programming (presumably the additional cost
for a Canadian content contribution fund) or a few cents each month
for closed captioning. The commission also inquires whether
Canadians would be willing to pay $5 more each month for increased
Internet usage costs. The CRTC floats the possibility that such
usage would not count against monthly data caps, suggesting that it
may be willing to violate net neutrality principles as part of a new
Internet regulatory regime.
The consultation delves into other controversial issues, but often
offers a lopsided perspective. Signal substitution, the longstanding
practice that swaps a U.S. feed with the Canadian equivalent (with
Canadian commercials) when the same program is being aired at the
same time, was raised during an earlier part of the consultation as
a policy ripe for reform. Once the issue is explained in the survey,
respondents are offered just three choices: keep the policy
unchanged, black out U.S. signals, or require Canadians to pay extra
fees to compensate stations for lost revenues.
Similarly, the consultation asks whether Canadians would like access
to more U.S. and international programming. The Commission seemingly
pre-judges the issue by framing the ramifications of new programming
as increasing cable and satellite fees, creating lost Canadian jobs,
or developing new channel packages with additional Canadian content
to offset the foreign programming.
When asked about the apparently skewed approach during a recent
Twitter chat, CRTC Chair Jean-Pierre Blais responded that the
consultation was meant to be provocative. Few would object to a
provocative approach that generates interest in broadcast policy,
however, these provocations are entirely one-sided.
For government regulators, it is seemingly provocative to ask about
Internet regulation and the implementation of new fees that could
almost double the effective cost of services such as Netflix. It is
also provocative to equate more consumer choice with lost Canadian
jobs or to propose compensation for Canadian television stations if
simultaneous substitution is removed.
Yet the commission does not offer up similarly provocative options
such as the elimination of many broadcast regulations in order to
create a level playing field with Internet services or removing the
requirement that Canadians purchase basic television services with
all cable and satellite packages. It also does not provoke
respondents with the possibility of new rules to eliminate
simultaneous substitution by forcing Canadian broadcasters to adjust
to a more competitive marketplace or to re-imagine the role of
public broadcasting in Canada.
Given that the CRTC rightly or wrongly often attracts the ire of
Canadians, the survey also avoids the biggest provocation of all -
does Canada still need the CRTC to regulate broadcasting? The
answer to that question might depend upon the final results of its
future of television consultation.
TagsShareWednesday March 05, 2014
Canadians love Internet success stories such as Netflix and Google as
recent data indicates that millions now subscribe to the online video
service and Google is the undisputed leader in search and online
advertising. The changing marketplace may be a boon to consumers, but my weekly technology law column (Toronto Star version, homepage version) notes that it
also breeds calls for increased Internet regulation. That is
particularly true in the content industry, with the film and music
sectors recently calling for rules that would target online video
services, Internet providers, and search engines.
The Canadian Media Production Association, which represents independent
producers of English films and television shows, recently told a Senate
committee that new rules are needed to address the threat posed by
popular Internet video services such as Netflix. The CMPA argued that a
"level playing field" is needed to ensure that there is "choice,
diversity and growth in a more open market place."
Read More ...
TagsShareThursday February 13, 2014
Consumers could be forgiven for thinking that the entry of Netflix
into Canada has increased choice, diversity, and growth, yet the
CMPA wants new rules that would raise costs and impose regulatory
requirements on online video providers.
Its recipe for reform includes three specific changes that target
Netflix. First, it wants new rules requiring foreign-based content
companies to contribute to the creation of new Canadian content. The
CMPA has not suggested a formula for contributions nor explained how
it would distinguish between online services mandated to contribute
and those exempted from such requirements.
Second, it wants to require Netflix to block the use of proxy
services that can be used to disguise the geographic location of a
user. Those services - which are popular with privacy
advocates since they allow users to safeguard their personal
information - can also be used to access the U.S. services that are
otherwise unavailable in Canada such as Hulu or the U.S. version of
Third, it wants Netflix to levy taxes on all subscriptions, raising
broader questions about taxation issues for the myriad of online
services that challenge conventional notions of jurisdiction.
The CMPA is not alone in advocating for new Internet-related rules.
Music Canada, formerly known as the Canadian Recording Industry
Association, has also begun to push for changes that could target
Internet providers and search engines.
Late last year, the organization noted the need for website blocking
to combat sites that facilitate infringement. Graham Henderson, the
Music Canada president, wrote
that government support (which now runs into the tens of millions of
dollars in Ontario alone) should be accompanied by "judicious and
reasonable regulation of the internet. The actions taken by courts
in other jurisdictions have very reasonably required ISPs to block
websites that are almost entirely dedicated to the theft of
intellectual property." Website blocking has proven highly
controversial in many countries, with some courts striking down
blocking laws on free speech grounds.
The blocking requirements would target Internet service providers,
but Music Canada has also identified search results as a problem. In
a presentation to the Ontario Standing Committee on Finance and
Economic Affairs, Henderson claimed
"consumers cannot find legal services on Google," adding that "with
government support, maybe we can urge intermediaries to actually do
something to help consumers find legitimate sources, because I think
they’d like to." Whether that means requiring companies like Google
to adjust their search results by eliminating some results or by
prioritizing industry-friendly websites is unclear, yet the comments
suggest the industry would favour some form of intervention or
The Canadian government has to date been reluctant to wade into the
Internet regulation debate. Moreover, regulators such as the CRTC
have long exempted online services such as Netflix from
broadcast-style regulation. Yet as online services continue to
reshape the marketplace, the pressure for new rules seems likely to
The longstanding debate over the state of wireless services in Canada
has veered across many issues - pricing, roaming fees, locked devices,
new entrants, and foreign investment to name a few. At the heart of all
of these questions is a single issue: is the current Canadian wireless
My weekly technology law column (Toronto Star version, homepage version) notes the competitiveness of the Canadian market is a foundational question
since the answer has huge implications for legislative and regulatory
policy. If the market is competitive, regulators (namely the CRTC) can
reasonably adopt a "hands-off" approach, confident that competitive
forces will result in fair prices and consumer choice. If it is not
competitive, standing on the sidelines is not option, thereby pressuring
government and the CRTC to promote more competition and to implement
measures to prevent the established players from abusing their
Read More ...
TagsShareMonday February 10, 2014
The importance of the question has not been lost on the incumbent
wireless providers. Responding to public and government
concerns about the state of competition, Bell recently told
"the wireless market in Canada remains robustly
competitive." Similarly, Telus maintains
the "claim that Canada's wireless market is uncompetitive is,
frankly, not just woefully misleading, it is an insult to Telus'
team members." To support their position, the incumbent providers
have relied on a University of Calgary study that concluded "there
is no competition problem."
Yet if there is a neutral arbiter on the state of wireless
competition in Canada, it would be the Competition Bureau of Canada,
an independent law enforcement agency responsible for ensuring a
competitive marketplace. Indeed, in a recent submission to the CRTC,
Bell cites to a 2005 Competition Bureau decision to support its
contention that the market remains competitive.
Last month, the Competition Bureau offered its latest
opinion on the wireless competitive environment
and it wasn't
even close: it believes the Canadian market is not competitive and
regulation is needed.
The Bureau's opinion came in a submission to the CRTC on domestic
roaming regulation. Both the Commission and the government have
indicated they plan to pursue regulation to guard against abusive
wholesale pricing of domestic roaming. The issue may be invisible to
consumers, but it is a major concern for regional and smaller
wireless providers, who rely on the national incumbents' networks
for access in markets they do not serve. Those providers claim
that the incumbents are charging unfair prices, thereby limiting
their ability to compete.
While the national providers have been dismissive of the need for
regulation (Bell has argued that entire process is "without legal
foundation"), the Bureau examined the issue and concluded that
companies like Bell can use roaming to shield themselves from
competition, noting that "making it more costly for entrants to
access incumbent networks through roaming agreements is one way for
an incumbent service provider to relax competitive pressure."
If the market was competitive, this would not be a concern. However,
the Bureau concluded that the incumbents enjoy "market power", which
it defines as "the ability of a firm or firms to profitably maintain
prices above competitive levels (or similarly restrict non-price
dimensions of competition) for a significant period of time."
Moreover, it rejected the University of Calgary study, concluding
that it "does not provide adequate support for Bell's claims that
mobile wireless markets in Canada are competitive."
Given its findings, the Bureau urged the CRTC to establish
regulatory safeguards on domestic roaming pricing. New domestic
roaming regulations may be the initial takeaway, but the Bureau's
finding could have far bigger implications. Not only does it
validate federal industry minister James Moore's insistence on the
need for more wireless competition, but it also opens the door to
examining other potential competitive barriers, including exclusive
content deals, international roaming arrangements, and access to new
Earlier this week, I wrote a column (Toronto Star version, homepage version)
arguing that Canada's telecom companies should come clean about their
disclosures of customer information. That column was in response to a public letter from leading civil liberties groups and academics sent to Canada's leading telecom companies asking them to
shed new light into their data retention and sharing policies. The
letter writing initiative, which was led by Christopher Parsons of the
Citizen Lab at the University of Toronto's Munk School of Global
Affairs, is the latest attempt to address the lack of transparency
regarding how and when Canadians' personal information may be disclosed
without their knowledge to law enforcement or intelligence agencies.
That initiative has now effectively been joined by the Office of the
Privacy Commissioner of Canada and NDP MP Charmaine Borg. Chantal
Bernier, the interim Privacy Commissioner of Canada, released recommendations
yesterday designed to reinforce privacy protections in the age of
cyber-surveillance. The report includes the following recommended reform
require public reporting on the use of various disclosure
provisions under PIPEDA where private-sector entities such as
telecommunications companies release personal information to national
security entities without court oversight.
Read More ...
TagsShareWednesday January 29, 2014
In addition, Borg has filed an order
paper question (Q-233)
seeking detailed data on requests to
telecom companies from various government agencies.
As my column notes, concerns with telecom secrecy has become
particularly pronounced in recent months as a steady stream of
revelations that have painted a picture of ubiquitous surveillance
that captures "all the signals all the time", sweeping up billions
of phone calls, texts, emails, and Internet activity with
Canada's role in the surveillance activities remains a bit of
mystery, yet there is little doubt that Canadian telecom and
Internet companies play an important part as intermediaries that
access, retain, and possibly disclose information about their
In the United States, companies such as Verizon and AT&T
have announced plans to issue regular transparency reports on the
number of law enforcement requests they receive for customer
information. The telecom transparency reports come following a
similar trend from top Internet companies such as Google
The first Verizon
was released last week and it revealed that there are
hundreds of thousands of requests for subscriber information every
year. Last year this included more than 30,000 demands for location
data, the majority of which lacked a warrant.
By contrast, Canada's telecom companies remain secretive about their
participation in the surveillance activities, with no transparency
reports and no public indications of their willingness to disclose
customer information without a court order.
The scope of such participation is potentially very broad. Not only
is there the prospect of co-operation with Canadian intelligence
agencies, but Canadian networks and services are frequently
configured to allow for U.S. surveillance of Canadian activities.
For example, Bell and Rogers link their email systems for
residential customers to U.S. giants with Bell linked to Microsoft
and Rogers linked to Yahoo. In both cases, the inclusion of a U.S.
email service provider may allow for U.S. surveillance of Canadian
email activity. Moreover, Bell requires other Canadian Internet
providers to exchange Internet traffic outside the country at U.S.
exchange points, ensuring that the data is potentially subject to
Secret disclosures of subscriber information extend beyond
surveillance programs run by Canadian and U.S. intelligence
agencies. Under Canadian law, telecom companies and Internet
providers are permitted to disclose customer information without a
court order as part of a lawful investigation. According to data
obtained under Access to Information, the RCMP has successfully
obtained such information tens of thousands of times.
In fact, Bill C-13, the so-called "cyberbullying" bill, includes a
provision that is likely to increase the number of voluntary
without court oversight since it grants telecom
companies and Internet providers complete immunity from any civil or
criminal liability for those disclosures.
The privacy implications of this secret disclosure system are
enormous, potentially touching on the private data of hundreds of
thousands of Canadians. Yet the policies seemingly operate between
the cracks in the law, permitting some disclosures without court
oversight, blocking notifications to those who are affected, and
even providing financial compensation from taxpayers to the telecom
companies for their co-operation.
Canadian privacy law requires telecom companies and Internet
providers to adhere to an openness
that includes making "readily available to
individuals specific information about (its) policies and practices
relating to the management of personal information." Those
companies have failed to comply with the spirit of this principle,
suggesting that Privacy Commissioner of Canada should consider
supplementing last week's civil society letter with an investigation
of her own.
Among the many Internet success stories of the past two decades,
Google stands alone. The undisputed king of search, hundreds of
millions rely on it daily, supporting an Internet advertising
business model that generates tens of billions of dollars annually.
My weekly technology law column (Toronto
Star version, homepage version) notes that kind of success
invariably leads to legal and regulatory issues, though most of
Google's legal fights have focused on content, such as the inclusion
of controversial websites in its search index, the digitization of
millions of books through its book search initiative, and the
removal of links that may lead to websites that host infringing
Read More ...
TagsShareTuesday January 21, 2014
Until recently, Google's Internet advertising business model has,
with a few notable exceptions (including a large U.S.
involving pharmaceutical advertising), been spared
much regulatory scrutiny. That has started to change with high
profile actions in the U.S. and European Union and the prospect of
similar investigations in Canada.
In the U.S., the Federal Trade Commission conducted a two-year
investigation into Google's business practices that wrapped up last
year with a settlement
featuring several commitments for business practice changes. The
settlement stopped short, however, of finding anti-competitive bias
in Google's search results.
While the U.S. settlement was widely viewed as a win for Google,
European regulators are conducting their own investigation and may
demand greater concessions. In fact, European officials recently warned
the company that time is running out to settle claims of abuse of
its dominant position.
The U.S. and European Union may have been active on the Google
front, but Canadian officials have generally remained on the
sidelines. The federal privacy commissioner has examined
privacy-related issues, with action involving Google
(its popular street-level mapping service) and Google
, but broader investigations into the company's business
model have been largely absent.
That too is changing, as in recent months both the Competition
Bureau and the federal privacy commissioner have either launched or
concluded investigations involving Google's business model. Both
investigations were complaint-driven, suggesting that competitors or
disgruntled users may increasingly turn to those regulatory bodies
to address their concerns.
mirrors the actions in the U.S. and
Europe. According to court
filed in December, the Bureau has worked with
Google's competitors to identify the information the company should
be ordered to disclose as part of a competition law investigation.
Last month, the Federal Court of Canada issued an order mandating
disclosure of information related to the company's business
activities, which the complainants claim rise to the level of
The investigation remains at an early stage with no indication that
the Bureau is close to reaching a conclusion. However, the Bureau's
interest in Google indicates that the company is now firmly on the
Canadian radar screen and competition watchers will be looking
closely to see whether Canada follows the U.S. example or adopts the
more aggressive European approach.
The federal privacy commissioner has also waded into Google's
business model. Last week, the office concluded an investigation
into online behavioural advertising that arose from a complaint by a
Google user who was uncomfortable with health-related targeted
advertisements that suggested his Internet usage was being tracked.
After he searched for medical devices for sleep apnea, he began
receiving advertisements on random sites for the devices.
The reality is that website usage is tracked, hence the mounting
demands for do-not-track legislation that would provide users with
greater control over the data generated by their Internet
activities. In this case, the privacy commissioner concluded
that the advertising breached Canadian privacy law as the tailored
advertisements involved sensitive information that required an
explicit opt-in consent.
Google agreed to several changes in response to the finding,
including increased monitoring of its advertising programs to ensure
compliance with company policies and the law. Given the heightened
interest from Canadian regulators, the company is apparently no
longer alone in the monitoring of its advertising practices and
Net neutrality has been one of the defining Internet policy issues of
the past decade. Starting with early concerns that large telecom and
Internet providers would seek to generate increased profits by creating a
two-tier Internet with a fast lane (for companies that paid additional
fees to deliver their online content quicker) and a slow lane (for
everyone else), the issue captured the attention of governments and
My weekly technology law column (Toronto Star version, homepage version) notes that while the net neutrality challenges evolved over time, the core question
invariably boiled down to whether Internet providers would attempt to
leverage their gatekeeper position to create an unfair advantage by
treating similar content, applications or other services in different
Read More ...
TagsShareWednesday January 15, 2014
In response, net neutrality rules surfaced that were designed to
safeguard online competition. Countries such as Chile
and the Netherlands
included net neutrality requirements within their telecom laws,
while others developed regulatory guidelines and principles. In
Canada, the Canadian Radio-television and Telecommunications
Commission established the Internet
traffic management practices
in 2009, which serve as the
Canadian net neutrality rules.
Concerns over net neutrality may have receded once policies were
established, yet Internet providers continued to search for business
models that could generate incremental revenues from their networks.
Having failed to establish a two-tier Internet based on speed, they
now appear to be focused on an alternative two-tier approach based
on data usage.
The premise of a two-tier Internet based on data usage stems from
the proliferation of data caps among many providers, particularly
for fast-growing wireless Internet services. The days of
"unlimited Internet" are over at many providers, replaced by
packages that include a fixed amount of data usage each month with
expensive overage charges for those that exceed their monthly
Sensing consumer frustration with data caps, network providers have
begun to offer access to some services or content that does not
count against the monthly cap. The result is a new two-tier
Internet: one Internet that counts against the monthly data cap and
another that does not.
For example, last week AT&T, one of the largest U.S. Internet
wireless providers, unveiled plans to offer "Sponsored
", which will allow websites and content owners to
essentially pay for users to access their content. Subscribers will
access sponsored data in the same manner as other content through
AT&T's wireless Internet service, but it will not count against
the user's monthly cap.
AT&T argues that the plan does not run afoul of U.S. net
neutrality rules since all content is delivered at the same speed
(those rules were called into question in a legal
yesterday). Yet the change creates a two-tier
Internet with obvious advantages for deep-pocketed content providers
who can promote their services as "data-free", while potentially
superior start-up services become perceived as costlier
Canadian providers have also begun to examine how data caps can be
used to differentiate between content. For example, Bell offers a $5
per month mobile TV service that allows 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.
The Bell plan is currently the subject of a complaint
before the CRTC, which maintains that Bell's practices violate the
Commission's net neutrality rules by treating similar content in an
unequal manner. The complaint will be addressed in the coming
months, but regardless of the outcome, it is increasingly clear that
there is a new front in the net neutrality fight with Internet
providers intent on leveraging data usage to create a two-tier
Months of surveillance-related leaks from U.S. whistleblower Edward
Snowden have fuelled an international debate over privacy, spying, and
Internet surveillance. The Canadian-related leaks - including
disclosures regarding spying on the Brazilian government and the
facilitation of spying at the G8 and G20 meetings hosted in Toronto in
2010 - have certainly inspired some domestic discussion. Ironically, the
most important surveillance development did not involve Snowden at all.
My weekly technology column (Toronto Star version, homepage version) notes that late last year, Justice Richard Mosley, a federal court judge, issued a
stinging rebuke to Canada's intelligence agencies (CSEC and CSIS) and
the Justice Department, ruling that they misled the court when they
applied for warrants to permit the interception of electronic
communications. While the government has steadfastly defended its
surveillance activities by maintaining that it operates within the law,
Justice Mosley, a former official with the Justice Department who was
involved with the creation of the Anti-Terrorism Act, found a
particularly troubling example where this was not the case.
Read More ...
TagsShareWednesday January 08, 2014
Mosley's concern stems from warrants involving two individuals that
were issued in 2009 permitting the interception of communications
both in Canada and abroad using Canadian equipment. At the time, the
Canadian intelligence agencies did not disclose that they might ask
their foreign counterparts (namely the "five eyes" partners in the
U.S., U.K., Australia, and New Zealand) to intercept the foreign
In June 2013, the CSEC Commissioner, who is responsible for
reviewing CSEC activities, issued his annual
. It included a cryptic recommendation that the agency
"provide the Federal Court of Canada with certain additional
evidence about the nature and extent of the assistance CSEC may
provide to CSIS."
That recommendation caught Mosley's attention, who ordered CSEC and
CSIS to appear in court to disclose if the recommendation was linked
to the warrants he had issued and discuss whether the additional
evidence might have had an impact on the decision to grant the
warrants in the first place.
It turns out that the additional evidence - which involved several
warrants including those issued by Mosley - was indeed the fact that
CSEC was tasking foreign agencies to conduct interceptions on its
behalf. Based on the new submissions, Mosley concluded that
Canadian intelligence agencies strategically omitted disclosing the
information as it admitted that the evidence provided to the court
"was ‘crafted' with legal counsel to exclude any reference to the
role of the second parties."
The failure of Canada's intelligence agencies to meet their legal
obligations of full and frank disclosure raises serious questions
about the adequacy of oversight over Canada's surveillance
activities. When concerns were raised last year about the
activities, then- defence minister Peter MacKay assured the public
that there is "rigorous" oversight and that all aspects of the
programs were carried out in compliance with the law.
The federal court ruling raises real doubt about the validity of
those assurances. Indeed, there are lingering questions about both
the impartiality of Justice lawyers who provided advice to "craft
evidence" and the ability for the federal court to serve as a key
oversight mechanism for Canadian surveillance, particularly when
some programs do not require court approval and reports from the
CSEC commissioner have faced lengthy delays.
The deliberate attempt to mislead the key oversight body by omitting
relevant information should anger more than just Mosley, who clearly
felt that he was duped by CSIS. In response, the government should
commission an independent review to examine current oversight
mechanisms, identify shortcomings on both oversight and the law, and
recommend potential reforms to salvage a system that is under
increasing public scrutiny and criticism.
The coming year is likely to be a very significant one for law and
technology. As the year unfolds, my recent law and technology column (Toronto Star version, homepage version) lists 14 questions (along with
possible answers) that will go a long way to determining the path of
Canadian technology law policy.
1. Will the government finally unveil a national digital strategy?
The long-promised national digital strategy could become a reality in
2014 after years of inaction. Industry Minister James Moore is on the
verge of clearing out the lingering policy issues he inherited and may
be ready to set his own path on a digital strategy.
2. Will the wireless spectrum auction be judged a failure?
The contentious wireless spectrum auction should take place early in
2014, but with few, if any, new competitors, the auction seems destined
to do little more than entrench the status quo.
Read More ...
3. Whose roaming regulations will come first: the
government's or CRTC's?
Both the government and the CRTC have embarked on domestic wireless
roaming initiatives that should come to fruition in 2014. The
government plans to amend the law to address wholesale roaming
pricing that hurts smaller players, while the CRTC is engaged in a
fact-finding exercise on roaming that could lead to new regulations.
4. What else will the government do to address
With the government spending millions to promote the competitive
shortcomings of the Canadian wireless market, addressing roaming
pricing is likely only the start with the possibility of a fully
regulated wholesale market that could facilitate more competition.
5. Who will be the next Privacy Commissioner of
The search is currently underway for the next Privacy Commissioner
of Canada. Given the privacy reform delays and the mounting concern
over surveillance, the next commissioner will immediately be placed
on the hotseat.
6. Will the Snowden surveillance revelations
reverberate in Canada?
Public concern over ubiquitous surveillance has mounted in recent
months with the steady stream of Snowden leaks. The Canadian
government has said little to date, but silence may not be an option
for much longer should there be further disclosures about Canadian
involvement in global surveillance activities.
7. How will the government handle Bill C-13, the
lawful access bill?
The return of lawful access legislation - now framed as a
cyber-bullying bill - has met with criticism from all sides of the
political spectrum. The government may seek to diffuse the concern
by sending the bill to committee for review after first reading,
thereby signaling its willingness to entertain amendments.
8. How will the government unbundle television
The government's commitment to a pick-and-pay model for cable and
satellite television services will emerge as a hot issue in the
coming year with some broadcast distributers opposing the
pro-consumer plan. While there is little doubt the government will
stick with the policy, there is no clear-cut implementation plan.
9. What policy changes will result from the CRTC's
The CRTC has embarked on a national conversation on television, but
the outcome remains unknown. Removal of foreign investment
restrictions and simultaneous substitution policies are possible
changes that would shake up in the market.
10. How will Alberta fix its privacy law?
The Supreme Court of Canada has given Alberta one year to amend its
privacy law, which it recently ruled is unconstitutional. The
Alberta reforms may serve as a model for other provinces and the
11. What is the future of the Trans Pacific
Canada's participation in the TPP negotiations could have major
ramifications for domestic intellectual property and e-commerce law.
The TPP talks stalled late last year, but U.S. pressure to conclude
a deal could soon lead to dramatic changes to Canadian law.
12. What is in the fine print of the Canada -
European Union trade deal?
The Canada - EU trade agreement negotiations may have concluded, but
the actual text remains a secret. Its release this year will finally
allow for detailed analysis of costs and benefits of the proposed
13. Will Eli Lilly terminate its $500 million
lawsuit against Canada?
Eli Lilly, which is suing the federal government for $500 million
due to two invalidated patents, seems to hope that the threat of
litigation will generate momentum for patent law reform. There is no
sign that the government will cave to the pressure.
14. Will the federal court order TekSavvy to
disclose the identity of thousands of subscribers?
The biggest current copyright case before the courts is the attempt
to force TekSavvy, a leading independent Internet provider, to
disclose the identity of thousands of subscribers accused of
unauthorized downloading. Depending on the outcome, the decision
could open the door to copycat litigation.
TagsShareTuesday January 07, 2014
With Edward Snowden and the great wireless war of 2013 leading the
way, law and technology issues garnered headlines all year long. My weekly technology law column (Toronto Star version, homepage version) takes a
look back at 2013 from A to Z:
A is for Americangirl.ca, a Canadian domain name that was the
subject of two dispute claims in 2013. The popular doll company
relied on a quirk in the policy that permitted a follow-up complaint
after its first case was rejected.
B is for Bell TV, which a federal court ordered to pay $20,000 for
violating the privacy of a customer. The case arose when Bell TV
surreptitiously obtained permission to run a credit check by
including it as a term in its rental agreement without telling the
C is for the Competition Bureau of Canada, which launched an
investigation into alleged anti-competitive practices by search
Read More ...
TagsShareMonday December 30, 2013
D is for Distributel, an independent Internet provider that
successfully defeated demands that it disclose the identities of
some its subscribers in a mass copyright lawsuit. After Distributel
contested the request, the rights holder dropped
E is for the Electronic
Commerce Protection Regulations
, the long-delayed anti-spam
law rules. The regulations were finalized in December, paving the
way for the law to take effect next year.
F is for Kevin Fearon, whose robbery arrest has sparked a privacy
case that is headed to the Supreme Court of Canada. Police searched
Fearon’s cellphone without a warrant, claiming that the phone was
not password protected. The Ontario Court of Appeal ruled
that the search was lawful.
G is for gorgonzola, one of several cheeses that will be subject to
new geographical indications rules as part of the Canada –
European Union trade agreement
H is for Héritage, the digitization project that generated considerable
following revelations that some Library of Canada
materials might initially be placed behind a paywall.
I is for isoHunt, the notorious Canadian-based torrent search site
after a U.S. court ruled that it violated copyright law.
J is for Justice Ministers Robert Nicholson and Peter MacKay. After
that any new Criminal Code reforms would not include lawful access
provisions, MacKay promptly reneged
on the commitment
by inserting many such powers in a
K is for Kickstarter, the online crowdsource funding website. The
Ontario Securities Commission worked
on establishing the legal rules for crowdsourced funding.
L is for dot-land, one of the new top-level domains
that were added to the Internet’s root this year with hundreds more
to follow in the months ahead.
M is for Industry Minister James Moore, who led the government’s
effort to enact anti-counterfeiting
N is for the Nike shoes that were at the centre of dispute between
eBay and a Quebec-based seller. The court sided
with the seller
, rejecting the validity of some terms in
eBay’s online contract.
O is for the national
open access policy
being developed by Canada’s federal
research granting agencies.
P is for pick-and-pay pricing for television channels, which the
federal government promised
to pursue in its Speech from the Throne.
Q is for the Queen
, a Supreme Court of Canada decision in which the court
affirmed the privacy value of metadata.
R is for roaming
, which the government announced it would pursue
to protect new entrants seeking to offer national access to wireless
S is for Edward
. Snowden’s months-long leaks of surveillance
information generated a global debate on privacy and surveillance,
while Swartz’s tragic suicide raised awareness of open access and
overly aggressive copyright enforcement.
T is for the Trans Pacific
, a massive trade agreement currently being
negotiated by a dozen countries including Canada.
U is for United Food and Commercial Workers Local 401, which
successfully challenged the constitutionality
of Alberta’s privacy legislation
at the Supreme Court of
V is for Verizon, the U.S. telecom giant, whose potential entry to
a massive lobbying and advertising campaign on the state of wireless
W is for the wireless
code of conduct
, which effectively limited consumer wireless
contracts to two years.
X is for the anonymous defendants who were served
in a defamation lawsuit launched by former
Toronto Maple Leafs president Brian Burke.
Y is for York University, which was sued
by Access Copyright for copyright infringement due its reliance on a
widely accepted policy on fair dealing.
Z is for Zyprexa, one of two invalidated patents that sit at the
heart of a $500
filed by pharmaceutical company Eli Lilly
against the Government of Canada.
The government's promise to implement a "pick-and-pay" television model
that would allow consumers to subscribe to individual channels from
cable and satellite providers garnered significant attention this fall.
The approach was promoted as a pro-consumer reform that better reflects
expectations that the public controls when, where, and on what device
they watch broadcast programming.
Consistent with the government's policy commitment, the Canadian
Radio-television and Telecommunications Commission will soon report on
the regulatory implications of such a reform. Changing cable packages
may only be the beginning, however, as CRTC Chair Jean-Pierre Blais has
stated that the regulator needs to "develop a regulatory framework that
will be flexible enough to be adapted to the new technological reality."
My weekly technology law column (homepage version, Toronto Star version) notes the unbundling of television packages represents the broadcast
distribution side of the changing environment, but the flip side of the
coin involves the need for changes to Canadian broadcast policy. If
Industry Minister James Moore and the CRTC are prepared to shake up the
way Canadians access television, they should also consider changing
longstanding and increasingly outdated broadcast rules, starting with
the gradual elimination of "simultaneous substitution" policies.
Read More ...
Simultaneous substitution dates back to 1971, when the CRTC
published a detailed policy statement for the nascent cable industry
that allowed for the substitution of local commercials for U.S.
advertisements where the same program ran on Canadian and U.S.
channels at the same time. The effect was to simultaneously impose
the Canadian feed on both the Canadian and U.S. channels. The
Supreme Court of Canada upheld the validity of the policy in 1977,
leading to decades of frustrated Super Bowl viewers who are unable
to see the U.S. commercials during the game.
Canadian broadcasters have been big boosters of the simultaneous
substitution policy, claiming that it generates significant revenues
that can be used to support more expensive and less profitable
Canadian programming. The U.S. programs can be licensed for a
fraction of the cost of original Canadian programming and
simultaneous substitution increases the visibility of Canadian
advertising by placing it on multiple channels.
Yet despite the purported advantages, simultaneous substitution has
come at a heavy price to the independence of Canadian broadcasters.
Given their reliance on the policy, U.S. broadcasters effectively
control the Canadian prime time broadcast schedule since the
Canadian priority will be to match whatever the U.S. counterpart is
broadcasting. If the U.S. broadcaster moves the time or date of a
program, the Canadian broadcaster typically matches the change in
order to retain simultaneous broadcast.
Moreover, Canadian programming invariably suffers as a result since
Canadian broadcasters often limit their promotion of domestic
programs and can rarely guarantee a steady placement in the
programming schedule. U.S. programming also becomes more expensive,
since simultaneous substitution increases its economic value.
The new technological reality suggests that simultaneous
substitution should become less and less important over time. Given
consumer ability to watch programs through a myriad of non-broadcast
avenues such as cable on-demand features, Internet streaming,
personal video recorders, or online subscriptions, viewing a program
in its designated time slot is increasingly part of a bygone era.
There is little doubt, however, that broadcasters will fight to
retain the policy. Bell Media said earlier this fall that it would
support a policy that would block Canadian access to U.S. channels
altogether if simultaneous substitution were removed. Alternatively,
it favours a non-simultaneous substitution policy that replaces U.S.
commercials whenever the program airs.
Canadian broadcasters may have been content to compete largely on
picking U.S. winners in the past, but future success will depend on
developing their own original content to sell to a global audience.
Simultaneous substitution creates a protected market that delays the
inevitable. The policy may have made sense in the 1970s to support
the development of the Canadian broadcast distribution system, but
if the government is serious about bringing broadcast into the 21st
century, it is simultaneous substitution that should face
TagsShareTuesday December 17, 2013